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ber v. Virginia, 103 id., 344. Taxes upon passenger carriers of a specific amount for each passenger carried were held to be taxes on the passengers in Passenger Cases, 7 How., 283; Crandall v. State of Nevada, 6 Wall., 35; and Henderson v. The Mayor, 92 U. S., 259. Taxes on vessels according to measurement, without any reference to value, were declared to be taxes on tonnage. State Tonnage Cases, 12 Wall., 204; Peete v. Morgan, 19 id., 581; Cannon v. New Orleans, 20 id., 577; and Inman Steamship Co. v. Tinker, 94 U. S., 238.

The present case, as it seems to us, comes within this principle. The tax is the same on every message sent, and because it is sent, without regard to the distance carried or the price charged. It is in no respect proportioned according to the business done. If the message is sent the tax must be paid, and the amount determined solely by the class to which it belongs. If it is full rate the tax is one cent, and if less than full rate one-half cent. Clearly, if a fixed tax for every two thousand pounds of freight carried is a tax on the freight, or for every measured ton of a vessel a tax on tonnage, or for every passenger carried a tax on the passenger, or for the sale of goods a tax on the goods, this must be a tax on the messages. As such, so far as it operates on private messages sent out of the state, it is a regulation of foreign and interstate commerce and beyond the power of the state. That is fully established by the cases already cited. As to the government messages it is a tax by the state on the means employed by the government of the United States to execute its constitutional powers, and therefore void. It was so decided in McCulloch v. Maryland, 4 Wheat., 316, and has never been doubted since.

It follows that the judgment, so far as it includes the tax on messages sent out of the state, or for the government on public business, is erroneous. The rule that the regulation of commerce which is confined exclusively within the jurisdiction and territory of the state, and does not affect other nations or states or the Indian tribes, that is to say, the purely internal commerce of a state, belongs exclusively to the state, is as well settled as that the regulation of commerce which does affect other nations or states or the Indian tribes belongs to congress. Any tax, therefore, which the state may put on messages sent by private parties, and not by the agents of the government of the United States, from one place to another exclusively within its own jurisdiction, will not be repugnant to the constitution of the United States. Whether the law of Texas in its present form can be used to enforce the collection of such a tax is a question entirely within the jurisdiction of the courts of the state, and as to which we have no power of review.

The judgment of the supreme court of Texas will be reversed and the cause remanded with instructions to reverse the judgment of the district court and proceed thereafter as justice may require, but not inconsistently with this opinion; and it is so ordered.

$ 6. Power of congress. The act of congress of July 24, 1866, declares that "any telegraph company now organized, or which may hereafter be organized, under the laws of any state of this Union, shall have the right to construct, maintain and operate lines of telegraph along any of the military or post-roads of the United States, which have been or may hereafter be declared such by act of congress,” and by an act approved June 8, 1872 (sec. 3964, R. S. U. S.), all railroads are declared to be post-roads. Held, that an act of the legislature of Florida giving to a telegraph company incorporated by it the exclusive right to erect and use lines of telegraph over the right of way of a certain railroad, within certain counties of the state, was in conflict with act of 1866, and therefore void. The Pensacola Telegraph Cc. r. The Western Union Telegraph Co., * 2 Woods, 643. 8 7. Congress has the constitutional power to give telegraph companies organized under

messages sent by telegraph companies operating in that state. The Western Union Telegraph Company failed to pay the tax and suit was brought to collect it. There was judgment in the state court against the company, which was affirmed by the supreme court of the state. A writ of error was sued out by the company.

§ 4. A telegraph company an instrument of commerce, subject to the regulation of congress. When and how it may become an agent of the United States.

Opinion by Waite, C. J.

In Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U. S., 1, this court held that the telegraph was an instrument of commerce, and that telegraph. companies were subject to the regulating power of congress in respect to their foreign and interstate business. A telegraph company occupies the same relation to commerce as a carrier of messages that a railroad company does as a carrier of goods. Both companies are instruments of commerce, and their business is commerce itself. They do their transportation in different ways, and their liabilities are in some respects different, but they are both indispensable to those engaged to any considerable extent in commercial pursuits.

Congress, to facilitate the erection of telegraph lines, has by statute authorized the use of the public domain and the military and post-roads, and the crossing of the navigable streams and waters of the United States for that purpose. As a return for this privilege those who avail themselves of it are bound to give the United States precedence in the use of their lines for public business at rates to be fixed by the postmaster-general. Thus, as to government business, companies of this class become government agencies.

The Western Union Telegraph Company, having accepted the restrictions and obligations of this provision by congress, occupies in Texas the position of an instrument of foreign and interstate commerce, and of a government agent for the transmission of messages on public business. Its property in the state is subject to taxation the same as other property, and it may undoubtedly be taxed in a proper way on account of its occupation and its business. The precise question now presented is whether the power to tax its occupation can be exercised by placing a specific tax on each message sent out of the state or sent by public officers on the business of the United States.

$ 5. A law imposing a tax by a state on telegraphic messages sent over the lines of a telegraph company is unconstitutional and void so far as it applies to messages sent out of the state or by an officer of the United States on public business.

In Case of the State Freight Tax, 15 Wall., 232, this court decided that a law of Pennsylvania requiring transportation companies doing business in that state to pay a fixed sum as a tax "on each two thousand pounds of freight carried,” without regard to the distance moved or charge made, was unconstitutional so far as it related to goods taken through the state, or from points without the state to points within, or from points within to points without, because to that extent it was a regulation of foreign and interstate com

In this the court but applied the rule announced in Brown v. Maryland, 12 Wheat., 419, that, where the burden of a tax falls on a thing which is, the subject of taxation, the tax is to be considered as laid on the thing rather than on him who is charged with the duty of paying it into the treasury. In that case it was said a tax on the sale of an article imported only for sale was a tax on the article itself. To the same general effect are Welton v. State of Missouri, 91 U. S., 275; Cook v. Pennsylvania, 97 id., 566; and Web

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ber v. Virginia, 103 id., 344. Taxes upon passenger carriers of a specific amount for each passenger carried were held to be taxes on the passengers in Passenger Cases, 7 How., 283; Crandall v. State of Nevada, 6 Wall., 35; and Henderson v. The Mayor, 92 U. S., 259. Taxes on vessels according to measurement, without any reference to value, were declared to be taxes on tonnage. State Tonnage Cases, 12 Wall., 204; Peete v. Morgan, 19 id., 581; Cannon v. New Orleans, 20 id., 577; and Inman Steamship Co. v. Tinker, 94 U. S., 238.

The present case, as it seems to us, comes within this principle. The tax is the same on every message sent, and because it is sent, without regard to the distance carried or the price charged. It is in no respect proportioned according to the business done. If the message is sent the tax must be paid, and the amount determined solely by the class to which it belongs. If it is full rate the tax is one cent, and if less than full rate one-half cent. Clearly, if a fixed tax for every two thousand pounds of freight carried is a tax on the freight, or for every measured ton of a vessel a tax on tonnage, or for every passenger carried a tax on the passenger, or for the sale of goods a tax on the goods, this must be a tax on the messages. As such, so far as it operates on private messages sent out of the state, it is a regulation of foreign and interstate commerce and beyond the power of the state. That is fully established by the cases already cited. As to the government messages it is a tax by the state on the means employed by the government of the United States to execute its constitutional powers, and therefore void. It was so decided in McCulloch v. Maryland, 4 Wheat., 316, and has never been doubted since.

It follows that the judgment, so far as it includes the tax on messages sent out of the state, or for the government on public business, is erroneous. The rule that the regulation of commerce which is confined exclusively within the jurisdiction and territory of the state, and does not affect other nations or states or the Indian tribes, that is to say, the purely internal commerce of a state, belongs exclusively to the state, is as well settled as that the regulation of commerce which does affect other nations or states or the Indian tribes belongs to congress. Any tax, therefore, which the state may put on messages sent by private parties, and not by the agents of the government of the United States, from one place to another exclusively within its own jurisdiction, will not be repugnant to the constitution of the United States. Whether the law of Texas in its present form can be used to enforce the collection of such a tax is a question entirely within the jurisdiction of the courts of the state, and as to which we have no power of review.

The judgment of the supreme court of Texas will be reversed and the cause remanded with instructions to reverse the judgment of the district court and proceed thereafter as justice may require, but not inconsistently with this opinion; and it is so ordered.

& 6. Power of congress.— The act of congress of July 24, 1866, declares that “any telegraph company now organized, or which may hereafter be organized, under the laws of any state of this Union, shall have the right to construct, maintain and operate lines of telegraph. along any of the military or post-roads of the United States, which have been or may hereafter be declared such by act of congress,” and by an act approved June 8, 1872 (sec. 3964, R. S. U. S.), all railroads are declared to be post-roads. Held, that an act of the legislature of Florida giving to a telegraph company incorporated by it the exclusive right to erect and use lines of telegraph over the right of way of a certain railroad, within certain counties of the state, was in conflict with act of 1866, and therefore void. The Pensacola Telegraph Cc. v. The Western Union Telegraph Co., * 2 Woods, 643. $ 7. Congress has the constitutional power to give telegraph companies organized under

*

state laws the right to construct telegraph lines on the post-roads of the United States, and to prescribe the terms to be complied with by the companies. Ibid.

$ 8. Congress, by its legislation on the subject of inter-oceanic telegraphic communication, has declared it to be a subject-matter of national concern and commercial intercourse. And under the liberal and comprehensive meaning which the supreme court of the United States has given to the power to regulate commerce, it is safe to say that an inter-oceanic telegraph cable, with its terminus upon the territory of the United States, comes within the regulating power of congress. Power of Congress to Regulate Telegraphs, * 12 Op. Atty Gen'l, 337.

$ 9. It is doubtful whether the legislative power of congress extends over the subjectmatter of intercourse by a telegraph strictly within the limits of a state, or extending through two or more states, having its termini within the territory of the United States. Ibid.

$ 10. By virtue of its power to regulate commerce congress may exercise control over telegraphs, and, having legislated upon the subject, any state law in conflict with such legislation is inoperative and void. Thus, the state of Florida, having attempted to confer upon a single corporation the exclusive right of transmitting intelligence by telegraph over a certain portion of its territory, held, that the statute of July 24, 1866 (14 Stat., 221; R. S. U. S., § 5263 et. seq.), in effect amounts to a prohibition of all such state monopolies, and that as against a company claiming the privileges of the above act, the grant of exclusive privileges by the Florida legislature was wholly inoperative. Pensacola Telegraph Co. v. Western Union Telegraph Co., 17 Alb. L. J., 306; 10 Ch. Leg. N., 251; 6 Otto, 1.

$ 11. The operation of the act of congress of July 24, 1866, is not limited to military and post-roads of the U.nited States which are on the public domain. Ibid.

$ 12. A state can confer upon a corporation the exclusive right for a limited period to operate telegraph lines. (Per FIELD and Hunt, JJ., dissenting.) Ibid.

$ 13. Oceanic telegraphs, connecting the United States with foreign countries, are most important agents as vehicles of commercial intercourse, and as such become subject to the regulating power of congress. Congress, in the exercise of this power, may prescribe rules upon which they shall be operated, and fix for them a tariff of charges. Power of Congress to Regulate Telegraphs,* 12 Op. Att'y Gen'l, 337.

§ 14. Delay in sending messages.- Where the usual line of business of a telegraph company is through a repeating office, the company is not liable for reasonable delays dispatches may encounter in such office on account of other business. Behm v. Western Union Telegraph Co.,* 8 Biss., 131 ; 25 Int. Rev. Rec., 170; 7 Rep'r, 710.

$ 15. Where a dispatch does not indicate on its face that the sender will be liable to suffer loss in case it is not promptly forwarded, and the company is not so notified, it will only be liable for nominal damages for negligence in sending. Ibid.

$ 16. In a small town, where little business is done by the telegraph company, one operator and a messenger boy are a sufficient force, and the company is not guilty of negligence in not employing a larger one. Nor in such a place, under such circumstances, was it negligence in the telegraph company for the operator to leave the office in charge of the messenger while he was absent a reasonable time at dinner. Ibid.

$ 17. It is not the duty of a telegraph company, when a message is left at one of its small offices, to forward it as quickly as electricity will carry it. The company is entitled to a reasonable time. What such reasonable time is the jury must determine from all the circumstances of the case. Ibid.

$ 18. A telegraph company is not liable in damages for delay and negligence in sending a message from a principal to his agent on the board of trade in Chicago, by reason of which delay the principal claims to have suffered a loss on certain contracts for the sale of rye to be delivered in September at his option, the parties never having intended that the property should be delivered either by consignment or the transfer of warehouse receipts, but that the contracts should be settled by the payment of differences. Such contracts are void, and, being void, no legal liability could have been incurred thereon by reason of the delay. Melchert v. American Union Telegraph Co., 11 Fed. R., 193; 3 McC., 521.

$ 19. In a suit against a telegraph company for damages aileged to have been occasioned by defendant's delay in forwarding and delivering a dispatch sent to plaintiff at M. by his agent at N., the plaintiff can only recover such damages as must have been within the reasonable contemplation of the parties at the time of the contract. If the plaintiff, through his agent in N., at the time he left the message for transmission, informed the defendant's agent that the message was important, and the dispatch itself indicated that it was a business message, and that serious damage might accrue to the plaintiff if it was not promptly transmitted, it became the duty of the defendant to use diligence to put it upon its trapsit, and it would become liable for the damage which might be the result of negligent delay in sending the message.

But if the plaintiff's agent simply said it was an important message, and requested its early transmission, but the dispatch itself was so worded that it did not in any

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way indicate that the plaintiff might suffer damage by its delay, then the defendant would only be liable for nominal damages. Dorgan v. The Telegraph Co., * 1 Am. L. T. (N. S.), 406.

$ 20. If the negligence consisted in a lack of promptness in the delivery of the dispatch after it reached its destination, and the dispatch did not of itself indicate its importance, in such case the plaintiff would only be entitled to nominal damages, no matter what might have been said by plaintiff's agent at the other end of the line concerning the importance of the dispatch. Ibid.

$ 21. If by reason of the negligence of a telegraph company there is delay in sending or delivering a message, whereby the plaintiff suffers damage, he can have no recovery against the company if he contributed to bring it about by his own carelessness and neglect; and whether he is chargeable with contributory negligence is a question for the jury. Ibid.

$ 22. The stipulation on the blanks furnished by a telegraph company, upon which its patrons are required to write out the dispatch to be sent, providing that the company shall be liable for delays in the delivery, or for the non-delivery, of an unrepeated message, only to the amount paid for sending the same, is not binding. A company has no right to exact such a condition. It is against public policy, and absolutely void. Ibid.

$ 23. In case of the receipt of a message at its destination at 10 o'clock P. M., it is for the jury to determine, in view of all the circumstances of the case, whether due diligence required the delivery of the message that night. Whether the message showed upon its face that its delivery that night was a matter of importance to the plaintiff, and that a failure to deliver immediately would involve him in loss, and it appeared that the message was a day message, and had been delayed, or whether, on the other hand, the message did not on its face indicate the importance of immediate delivery, and the plaintiff had left no notice at the office of the defendant that he expected an important message, and had not requested an immediate delivery, etc., the negligence of the defendant under the circumstances is still a question for the jury. Ibid.

$ 24. Those who use the telegraph as a means of communication, unless they insure the delivery of their messages, take the risk of delay and failure of their messages to reach their destination arising from the accidents and obstructions to which telegraphic lines are liable. Ibid.

$ 25. It is the duty of a telegraph company to transmit messages impartially, in good faith, and in the order in which they are received. If an adherence to this rule contributed to the delay in the transmission of a message, and, together with obstructions in the working of the line, caused the delay in the transmission, then a prima facie case of negligence is established against the company in favor of the plaintiff, who paid uninsured day rates, is orercome. Ibid.

$ 26. The engagement of telegraph companies is to receive and to transmit by telegrapb, and to deliver without unnecessary delay, the message, according to directions. Ibid.

$ 27. Where a message was left at the office in N. for transmission to M., at about twenty minutes after 5 P. M., and did not reach its destination until 10 P. M., and was not delivered until half-past 10 the next morning, and under ordinary circumséances it would take only about four minutes to transmit the message from N. to M., the plaintitf having paid uninsured day rates for the message, held, that a prima facie case of negligence. was made out against the defendant, the telegraph company. Ibid.

§ 28. Negligence in erecting wires; damages.- A telegraph company, while erecting a wire, left the same for a time stretched across the street at a distance of about two feet above the ground. Just at this time plaintiff came riding down the street on horseback, and, no timely warning being given him, the feet of his horse became entangled in the wire, and he was thrown to the ground and seriously injured. Held, that, in suit for damages against the telegraph company, it was error for the court to instruct the jury that exemplary damages could be recovered proportioned to the nature and extent of the injury and all circumstances of exaggeration or extenuation attending the alleged negligence of the defendant. Western Union Telegraph Co. v. Eyser, 1 Otto, 495, n.

$ 29. Contract against public policy.— A railroad company having charter powers to construct and operate a telegraph line entered into a contract with a telegraph company relinquishing its right and privilege to operate the line. Held, that a provision in the contract for transmitting the private, social and family messages of the executive officers of the railroad company vitiated the contract and rendered it illegal, as being against public policy. Western Union Telegraph Co. v. Union Pacific R’y Co., 1 McC., 418.

$ 30. Cables interfering with vessels.- A propeller, while backing up to the side of a bridge near a bulk-head, where she was accustomed to go, to adjust her course, caught up with one of her screws a cable which had been laid across the river by a telegraph company empowered by statute so to do. Efforts were inade to free the screw by working the engine the other way until the cable was apparently free, when the agents of the telegraph company offered

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