103 Va. 742 | Va. | 1905
delivered the opinion of the court.
The defendant in error, J. M. Umstadter, recovered a judgment in the Court of Law and Chancery of the city of Norfolk against the plaintiff in error, Postal Telegraph-Cable Company, for $100, the penalty imposed by section 1291 of the Code of 1887 for failure to transmit a message. To that judgment this writ of error was awarded.
The facts of the case, briefly stated, are that the defendant in error, at Norfolk, Virginia, delivered to a messenger boy of the telegraph company, upon one of its blank forms containing the usual conditions, a message to be transmitted from that city to a person in the State of New York, paying the proper charges thereon, which was never transmitted.
The first error assigned is that the judgment is erroneous because the statute which imposed the penalty, so far as it applies to interstate messages, is in violation of Art. 1, sec. 8, of the Constitution of the United States, which authorizes Congress “to regulate commerce with foreign nations and among the several States, and with the Indian tribes.”
It is settled law that a telegraph line is an instrument of commerce, and that telegraph companies are subject to the regulating power of Congress in respect to their foreign and interstate business. Pensacola Tel. Co. v. Western Union Tel. Co., 96 U. S. 1, 24 L. Ed. 708; Western Union Tel. Co. v. Texas, 105 U. S. 460, 26 L. Ed. 1067; Postal Tel., &c. Co. v. City of Richmond, 99 Va. 102, 37 S. E. 789.
It is also settled that whatever authority a State may possess over the transmission and delivery of messages by telegraph
But in the case of Western Union Tel. Co. v. James, 162 U. S. 650, 40 L. Ed. 1105, 16 Sup. Ct. 934, it was held that a statute of the State of Georgia imposing a penalty upon a telegraph company for failure to deliver impartially, in good faith and with due diligence, a message sent from another State to a person in Georgia, was a valid exercise of the police power of the State, and not in violation of the commerce clause of the Federal Constitution. In discussing the question, whether or not the statute involved in that case was valid, Mr. Justice Peckam, who delivered the opinion of the court, said, among other things, that “in one sense it (the statute) affects the transmission of interstate messages, because such transmission is not completed until the message is delivered to the person to whom it is addressed, or reasonable diligence employed to deliver it. But the statute can be fully carried out and obeyed without, in any manner, affecting the conduct of the company with regard to the performance of its duties in other States. It would not unfavorably affect or embarrass it in the course of its employment, and hence until Congress speaks upon the subject, it would seem that such a statute must be valid. It is the duty of a telegraph company, which receives a message for transmission directed to an individual at one of its stations, to deliver that message to the person to whom it is addressed with reasonable diligence and in good faith. That is a part of its contract, implied by taking the message and receiving payment therefor.
“The statute in question is of a nature that is in aid of the performance of a duty of the company that would exist in the absence of any such statute, and it is in no wise obstructive of its duty as a telegraph company. It imposes a penalty for the
“Hor is the statute open to the same objections that were regarded as fatal in Western Union Tel. Co. v. Pendleton, 122 U. S. 347, 30 L. Ed. 1187, 7 Sup. Ct. 1126, 1 Inters. Com. Rep. 306. Ho attempt is here made to enforce the provisions of the State statute beyond the limits of the State, and no other State could, by legislative enactment, affect in any degree the duty of the company in relation to the delivery of messages within the limits of the State of Georgia. Ho confusion, therefore, could be expected in carrying out within the limits of that State the provisions of the statute. It is true it provides for a penalty for a violation of its terms, and permits a recovery of the amount irrespective of the question whether any actual damages have been sustained by the individual who brings the suit; but that is only a matter in aid of the performance of the general duty owed by the company. It is not a regulation of commerce, but a provision which only incidentally affects it.”
We have quoted thus fully from the opinion of the court in that case, because it is the latest expression of opinion of that court as to the extent of the police power of the States in reference to interstate messages, and by the principles there enumerated we are to be governed in the decision of the question now under consideration. In that case the default of the telegraph company occurred wholly in the State of Georgia. In this case the whole default took place in this State. In the one case, it was a failure to deliver in a reasonable time after the message had reached the station to which it was destined; in the other, it was a failure to transmit at all from the point of origin. It may be that that portion of the statute under consideration, in so far as it provides that messages shall, with certain exceptions, be transmitted in the order of delivery, is
The provision of the Virginia statute involved in this case seems to us to be within the reasoning and the spirit of the
“It cannot be doubted,” says Judge Cooley in his work on Constitutional Limitations (6th Ed.),.p. 715, and his statement is quoted with approval by the Supreme Court of the United States in Lake Shore, &c. R. R. Co. v. Ohio, &c., 173 U. S. 285, 297, 43 L. Ed. 702, 19 Sup. Ct. 465, 470, “that'there is ample power in the legislative department of the State to adopt all necessary legislation for the jmrpose of enforcing the obligations of railway companies, as carriers of persons and goods, to accommodate the public impartially, and to make any reasonable puovision for carrying with safety and expedition.”
The same power must exist as to telegraph companies, for they exercise a public employment and are bound to serve all customers alike without discrimination. Primrose v. W. U. Tel. Co., 154 U. S., p. 14, 38 L. Ed. 883, 14 Sup. Ct. 1098.
We are of opinion, therefore, that the provision of sec. 1291 of the Code, imposing a penalty upon a telegraph company for failing to transmit a message faithfully and impartially, is not in violation of the commerce clause of the Eederal Constitution.
By section 88 of the Constitution of this State, which prescribes the jurisdiction of this court, it is provided that “in no case where the jurisdiction of the court depends solely upon the fact that the constitutionality of a law is involved, shall the court decide the ease upon its merits, unless the contention of the appellant upon the constitutional question be sustained.”
As our jurisdiction in this case depends solely upon the con
The judgment of the Court of Law and Chancery must be affirmed.
Affirmed.