# Western Union Telephone Company v. Pendleton/Opinion of the Court

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United States Supreme Court
122 U.S. 347
Western Union Telephone Company v. Pendleton
The contention of the Western Union Telegraph Company is that the law of Indiana is in conflict with the clause of the constitution vesting in congress the power to regulate commerce among the states.
In Telegraph Co. v. Texas, 105 U.S. 460, it was decided by this court that intercourse by the telegraph between the states is interstate commerce. Its language was: '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.'
Although intercourse by telegraphic messages between the states is thus held to be interstate commerce, it differs in material particulars from that portion of commerce with foreign countries and between the states which consists in the carriage of persons and the transportation and exchange of commodities, upon which we have been so often called to pass. It differs not only in the subjects which it transmits, but in the means of transmission. Other commerce deals only with persons, or with visibl and tangible things. But the telegraph transports nothing visible and tangible; it carries only ideas, wishes, orders, and intelligence. Other commerce requires the constant attention and supervision of the carrier for the safety of the persons and property carried. The message of the telegraph passes at once beyond the control of the sender, and reaches the office to which it is sent instantaneously. It is plain, from these essentially different characteristics, that the regulations suitable for one of these kinds of commerce would be entirely inapplicable to the other.
In the consideration of numerous cases in which questions have arisen relating to ordinary commerce with foreign countries and between the states, this court has reached certain conclusions as to what subjects of commerce the regulation of congress is exclusive, and indicated on what subjects the states may exercise a concurrent authority until congress intervenes and assumes control. Cooley v. Board of Wardnes of the Port of Philadelphia, 12 How. 299; Gilman v. Philadelphia, 3 Wall. 713; Crandall v. Nevada, 6 Wall. 35; Welton v. State of Missouri, 91 U.S. 275; Henderson v. Mayor of New York, 92 U.S. 259; Inman S. S.C.o. v. Tinker, 94 U.S. 238; Hall v. De Cuir, 95 U.S. 485; County of Mobile v. Kimball, 102 U.S. 691; Transporation Co. v. Parkersburgh, 107 U.S. 691, 2 Sup. Ct. Rep. 732; Gloucester Ferry Co. v. Pennsylvania, 114 U.S. 196, 5 Sup. Ct. Rep. 826; Wabash, St. L. & P. Ry. Co. v. Illinois, 118 U.S. 557, ante, 4; and Robbins v. Shelby Taxing-Dist., 120 U.S. 489, 493, ante, 592. But with reference to the new species of commerce, consisting of intercourse by telegraphic messages, this court has only in two cases been called upon to inquire into the power of congress and of the state over ghe subject. In Pensacola Tel. Co. v. W. U. Tel. Co., 96 U.S. 1, this court had before it the act of congress of July 24, 1866, (14 St. 221,) 'to aid in the construction of telegraph lines, and to secure the use of the same for postal, military, and other purposes;' and it held that the act was constitutional so far as it declared that the erection of telegraph wires should, as against state interference, be free to all who accepted its terms and conditions, and that a telegraph company of one state, accepting them could not be excluded by another state from prosecuting its business within her jurisdiction. In Telegraph Co. v. Texas, 105 U.S. 460, from the opinion in which we have quoted above, it was held that a statute of Texas imposing a tax upon every message transmitted by a telegraph company doing business within its limits, so far as it operated on messages sent out of the state, was a regulation of foreign and interstate commerce, and therefore beyond the power of the state.
In these cases the supreme authority of congress over the subject of commerce by the telegraph with foreign countries or among the states is affirmed whenever that body chooses to exert its power; and it is also held that the states can impose no impediments to the freedom of that commerce. In conformity with these views, the attempted regulation by Indiana of the mode in which messages sent by telegraphic companies doing business within her limits shall be delivered in other states cannot be upheld. It is an impediment to the freedom of that form of interstate commerce, which is as much beyond the power of Indiana to interpose as the imposition of a tax by the state of Texas upon every message transmitted by a telegraph company within her limits to other states was beyond her power. Whatever authority the state may possess over the transmission and delivery of messages by telegraph companies within her limits, it does not extend to the delivery of messages in other states.
The object of vesting the power to regulate commerce in congress was to secure, with reference to its subjecs , uniform regulations, where such uniformity is practicable, against conflicting state legislation. Such conflicting legislation would inevitably follow with reference to telegraphic communications between citizens of different states, if each state was vested with power to control them beyond its own limits. The manner and order of the delivery of telegrams, as well as of their transmission, would vary according to the judgment of each state. Indiana, as seen by its law given above, has provided that communications for or from officers of justice shall take precedence, and that arrangements may be made with publishers of newspapers for the transmission of intelligence of general and public interest out of its order; but that all other messages shall be transmitted in the order in which they are received; and punishes as an offense a disregard of this rule. Her attempt, by penal statutes, to enforce a delivery of such messages in other states, in conformity with this rule, could hardly fail to lead to collision with their statutes. Other states might well direct that telegrams on many other subjects should have precedence in delivery within their limits over some of these, such as telegrams for the attendance of physicians and surgeons in case of sudden sickness or accident, telegrams calling for aid in case of fire or other calamity, and telegrams respecting the sickness or death of relatives.
Indiana also requires telegrams to be delivered by messengers to the person to whom they are addressed, if they reside within one mile of the telegraph station, or within the city and town in which such station is; and the requirement applies, according to the decision of its supreme court in this case, when the delivery is to be made in another state. Other states might conclude that the delivery by messenger to a person living in a town or city being many miles in extent was an unwise burden, and require the duty within less limits; but, if the law of one state can prescribe the order and manner of delivery in another state, the receiver of the message would often find himself incurring a penalty because of conflicting laws, both of which he could not obey. Conflict and confusion would only follow the attempted exercise of such a power. We are clear that it does not exist in any state.
The supreme court of Indiana placed its decision in support of the statute principally upon the ground that it was the exercise of the police power of the state. Undoubtedly, under the reserved powers of the state, which are designated under that somewhat ambiguous term of 'police powers,' regulations may be prescribed by the state for the good order, peace, and protection of the community. The subjects upon which the state may act are almost infinite, yet in its regulations with respect to all of them there is this necessary limitation: that the state does not thereby encroach upon the free exercise of the power vested in congress by the constitution. Within that limitation, it may, undoubtedly, make all necessary provisions with respect to the buildings, poles, and wires of telegraph companies in its jurisdiction which the comfort and convenience of the community may require.
It follows from the views expressed that the judgment of the court below must be reversed, and the cause remanded for further proceedings not inconsistent with this opinion; and it is so ordered.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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