nation in the exercise of its commercial, postal and other governmental affairs and business. Plenary power is embraced in the terms of the statute with an express object to effectuate these purposes, for it is so declared upon the face of the act.3 § 39a. Post Roads Act a legitimate regulation of interstate commercial intercourse.- The Post Roads Act of 1866 was a legitimate regulation of commercial intercourse by telegraph among the States and appropriate legislation to carry into execution the power of Congress over the postal service; it was merely an exercise of National power to withdraw such intercourse from State control and interference.* § 40. Power of Congress Commerce - Post-offices and post roads. Under the Constitution of the United States, Congress has power to regulate commerce with foreign nations, and among the several States; to establish post-offices and post roads, and to make all laws necessary and proper for carrying into execution the powers enumerated and all other powers vested by the Constitution in the Government of the United States, or in any department or officer thereof.5 § 41. Object of vesting power in Congress - Commerce.The object of vesting the power in Congress to regulate commerce, was to secure, so far as practicable, uniform regulations against conflicting State legislation, and this applies to telegraphic interstate communications. In a Nebraska case, the court in considering the question of discrimination by a telegraph company says: "The act of Congress, known as the Interstate Commerce Act,' contains a few new features and was chiefly designed to carry into statutes of the United States 3 Hewett v. Western Un. Teleg. Co., and Dist. Col., 4 Mackey (D. C.), 424, 16 Am. & Eng. Corp. Cas. 276, 2 Cent. Repr. 694, 2 Am. Elec. Cas. 222, 225, 226, per Merrick, J. 4 Western Union Teleg. Co. V. Pennsylvania R. Co., 195 U. S. 540, 49 L. Ed. 312, 25 Sup. Ct. 133. Const. U. S., art. 1, § 8, pars. 3, 7, 17; Pensacola Teleg. Co. v. West ern Un. Teleg. Co., 96 U. S. 1, 24 L. Ed. 708, 1 Am. Elec. Cas. 253. 6 Western Un. Teleg. Co. V. James, 162 U. S. 650, 6 Am. Elec. Cas. 867, 40 L. Ed. 1105, 16 Sup. Ct. 934, per Mr. Justice Peckham, quoting Mr. Justice Field, in Western Un. Teleg. Co. v. Pendleton, 122 U. S. 347, 30 L. Ed. 1187, 7 Sup. Ct. 1126, 358, 2 Am. Elec. Cas. 55. (the United States, as such, not having any common law), the principles of the common law already enforced by the States in their domestic affairs. England and many of the States have adopted similar statutes, not so much to engraft new principles upon the law as to make certain and more readily enforce principles already established.” 7 § 42. Legislative intent - New discoveries-Regulation of commerce. The use of public streets, roads and highways is not limited to the means employed when the land was taken or the dedication made. When the use contemplated includes as a means new discoveries or inventions, if such use does not interfere with the purpose for which said streets, roads and highways may rightfully be taken, having in view the necessities of the time and the progress and conveniences of the age, then it is a lawful use. It is subject, however, to such limitations as may exist under the law of eminent domain, to legislative control and to the lawful exercise of governmental police power within the territorial jurisdiction of the State or local government. So the constitutional power of Congress to regulate commerce and to establish post-offices and post roads cannot be held to include merely such instrumentalities of commerce or of the postal service, as were known and employed at the time of the adoption of the Constitution or of the enactment of Federal statutes, but must extend to and embrace such means, instrumentalities, discoveries and inventions as to keep pace with the progress, growth and developments of the country. This last rule of inclusion is, however, also subject to the lawful exercise of the police powers of the State or local governments, and to the limitations imposed by the law of eminent domain. But no State can impose impediments upon the free exercise of interstate commerce.8 7 Western Un. Teleg. Co. v. Call Pub. Co., 44 Neb. 326, 5 Am. Elec. Cas. 683, 62 N. W. 506, per Irvine, C. As to federal common law see § 42a, herein. "The powers thus granted are not confined to the instrumentalities of commerce or the postal service known or in use when the Constitution was adopted, but they keep pace with the progress of the country, and adapt themselves to the new developments of time and circumstances. They extend from the horse with its rider to the stage coach, from the sailing vessel to the steamboat, from the coach and § 42a. Interstate commerce Regulation of by common law and acts of Congress. The principles of the common law are operative upon all interstate commercial transactions except so far as they are modified by congressional enactment. There is no body of federal common law, separate and distinct from the common law existing in the several States, in the sense that there is a body of statute law enacted by Congress separate and distinct from the body of statutes enacted by the several States. steamboat to the railroad, and from the railroad to the telegraph, as these new agencies are successively brought into use. They were intended for the government of the business to which they relate, at all times and under all circumstances. As they were intrusted to the General Government for the good of the nation, it is not only the right but the duty of Congress to see to it that intercourse among the States and the transmission of intelligence are not obstructed or unnecessarily incumbered by State legislation." Pensacola Teleg. Co. V. Western Un. Teleg. Co., 96 U. S. 1, 24 L. Ed. 708, 1 Am. Elec. Cas. 250, 253, 254, per Mr. Chief Justice Waite, cited in Pierce v. Drew, 136 Mass. 75, 1 Am. Elec. Cas. 571, 578, where it is said by Devens, J.: "When land was taken for a highway, that which was taken was not merely the privilege of traveling over it in the then known vehicles, or of using it in the then known methods, for either the conveyance of property or the transmission of intelligence." (This last case is important in that it holds that the use of streets for poles and wires for a telegraph line is not an additional servitude so as to entitle the owners of the fee to additional compensation. But see chaps. XVI and XVII herein on this point.) The substance of the above quotation from the Pensacola case is given in The Wisconsin Teleph. Co. v. Oshkosh, 62 Wis. 32, 1 Am. Elec. Cas. 687, 690, 21 N. 828, per Cassody, J., and it is there held that a telegraph statute includes telephone companies by implication, even though passed before the invention of the telephone. Cassody, J., also quotes in this case from Stephen, J., in Attorney-General v. Edison Telephone Co., of London, Lim., 6 Q. B. D. 244, 43 Law Times, 687, 2 Am. Elec. Cas. 440, 447, 448, as follows: "Of course no one supposes that the legislature intended to refer specifically to telephones many years before they were invented, but it is highly probable that they would, and it seems to me clear that they eventually did, use language embracing future discov eries as to the use of electricity for the purpose of carrying intelligence." In State ex rel. Webster v. Nebraska Teleph. Co., 17 Neb. 126, 1 Am. Elec. Cas. 700-704, the court, Reese, J., in considering a statute against discrimination, notes that the telephone company (respondent) was organized under the gen eral corporation laws of the State, says that it had "undertaken to supply a public want or necessity," speaks of it as a new demand or necessity in commerce, and as 8 part of the telegraphic system of But it is an entirely different thing to hold that there is no common law in force generally throughout the United States, and that the countless multitude of interstate commercial transactions are subject to no rules and burdened by no restrictions. other than those expressed in the statutes of Congress. The principles of the common law are operative upon all interstate commercial transactions except so far as they are modified by congressional enactment and this applies to telegraph companies.9 the country, and then quotes from the Pensacola case the greater part of what we have first above given in this note. The same quotation from the Pensacola case is also set forth in Dailey v. State, 51 Ohio, 348, 5 Am. Elec. Cas. 186, 195, 196, although the same was not considered directly applicable to the facts of the citing case, that being a conviction for cutting shade trees by a telegraph line acting under the Post Roads Act. In Hudson River Teleph. Co. v. Watervliet Turnp. & Ry. Co., 135 N. Y. 393, 4 Am. Elec. Cas. 275, 278, 32 N. E. 148 (this case reverses 61 Hun [N. Y.], 140), the court, per Maynard, J., says: "The Act of 1862 cannot properly be limited to such methods of operating street surface railways in cities as had then been invented, and were then in actual use The language, literally construed, includes undiscovered, as well as existing modes of operation. Electricity, as a natural and applied force, was then well known, and it is reasonable to infer that its adaptation as a propelling power was then anticipated. It would be an unjust reflection upon the wisdom and intelligence of the law-making body to assume that they intended to confine the scope of their legislation to the present, and to exclude all consideration for the development of the future. If any presumption is to be indulged in, it is that general legislative enactments are mindful of the growth and increasing needs of society, and they should be constructed to encourage rather than to embarrass the inventive and progressive tendency of the people." So also in case of telegraph lines, words to the same effect are used by Long, J., in People v. Eaton, 100 Mich. 208, 5 Am. Elec. Cas. 87, 91, 59 N. W. 145. But see State ex rel. Laclede Gas-Light Co. v. Murphy, 130 Mo. 10, 5 Am. Elec. Cas. 71, 81, per Macfarlane, J. "Though courts should and do extend the application of the rules of the common law to the new conditions of advancing civilization, they may not rightfully create a new principle unknown to the common law nor abrogate a known one. If new conditions cannot properly be met by the application of existing laws, the supplying of needful new laws is the province of the legislative, not the judicial department." Baker, J., in Western Un. Teleg. Co. v. Ferguson, 157 Ind. 64, 65, 60 N. E. 679, in discussion of "Mental anguish" law, and nondelivery of telegram. 9 Western Un. Teleg. Co. v. Call Pub. Co., 181 U. S. 92, 101, 102, 45 § 43. Telegraph is instrument of commerce Control of Congress. The telegraph is an instrument of commerce, and interstate telegraphic communication is commercial intercourse, within the constitutional jurisdiction of Congress to regulate and control. These rules are well settled.10 L. Ed. 765, 21 Sup. Ct. -, per Brewer, J., a case as to unjust discrimination in charges. The telegraph company claimed that the services it rendered were a matter of interstate commerce, over which Congress had sole jurisdiction with the right to alone prescribe rules and regulations; that Congress had not prescribed any regulations; that there was no national common law; that the statute or common law of the State was wholly immaterial. 10 United States: Leloup v. Port of Mobile, 127 U. S. 640, 8 Sup. Ct. 1350, 32 L. Ed. 311, 12 Inters. Com. Rep. 134, 2 Am. Elec. Cas. 84 (cited, Postal Teleg. Cable Co. v. Charleston, 153 U. S. 692, 5 Am. Elec. Cas. 663, 668, 38 L. Ed. 871, 14 Sup. Ct. 1094; in Moore v. Eufaula, 97 Ala. 670, 4 Am. Elec. Cas. 615, 616, 11 So. 921; also in Philadelphia v. The Postal Teleg. Cable Co., 67 Hun [N. Y.], 21, 4 Am. Elec. Cas. 92, 95, 21 N. Y. S. 556); Primrose Western Un. Teleg. Co., 154 U. S. 1, 5 Am. Elec. Cas. 809, 817, 38 L. Ed. 883, 14 Sup. Ct. 1098. Pensacola Teleg. Co. v. Western Un. Teleg. Co., 96 U. S. 1, 24 L. Ed. 708, 1 Am. Elec. Cas. 250, 254, 257. (Cited with approval in Ratterman v. Western Un. Teleg. Co., 127 U. S. 411, 425, 2 Am. Elec. Cas. 68, 75, 32 L. Ed. 229, 8 Sup. Ct. 1127. This latter case is cited in City Council of Charleston v. Postal Teleg. Cable V. Co. [Ct. Com. Pl., So. Car. 1891], 9 Ry. & Corp. L. Jour. 129, 3 Am. Elec. Cas. 56, 63.) California: San Francisco v. Western Un. Teleg. Co., 96 Cal. 140, 4 Am. Elec. Cas. 594, 596-601, 31 Pac. 10. Indiana: Western Un. Teleg. Co. v. Pendleton, 95 Ind. 12, 48 Am. Rep. 692, 1 Am. Elec. Cas. 632, 633 (this case was reversed, but not the rule stated in text. See same case, 122 U. S. 347, 7 Sup. Ct. 1126, 18 Am. & Eng. Corp. Cas. 18, 30 L. Ed. 1187, 2 Am. Elec. Cas. 49, 54. Examine Western Un. Teleg. Co. v. James, 162 U. S. 650, 16 Sup. Ct. 934, 40 L. Ed. 1105, 6 Am. Elec. Cas. 858). Kansas: Chicago & Atchison Bridge Co. v. The Pacific Mut. Teleg. Co., 36 Kan. 113, 2 Am. Elec. Cas. 274, 278, 12 Pac. 535. Mississippi: Postal Teleg. Cable Co. v. Adams, 71 Miss. 555, 4 Am. Elec. Cas. 606, 14 So. 36. Nebraska: Western Un. Teleg. Co. V. City of Fremont, 39 Neb. 692, 4 Am. Elec. Cas. 626, 635, 58 N. W. 415. Nevada: Western Un. Teleg. Co. v. Atlantic & Pacific States Teleg. Co., 5 Nev. 102, Allen's Teleg. Cas. 428. New Jersey: Matter of Taxation of The Pennsylvania Teleph. Co., 48 N. J. Eq. 91, 3 Am. Elec. Cas. 9, 20 Atl. 846. Ohio: Dailey v. State of Ohio, 51 Ohio, 348, 5 Am. Elec. Cas. 186, 37 N. E. 710, 196. Virginia: Western Un. Teleg. Co. v. Tyler, 90 Va. 297, 4 Am. Elec. Cas. 816, 818, 18 S. E. 280. |