Western Union Telegraph Co. v. Hughes

.Whittle, J., delivered the opinion of the court. [241] Tbe facts in tbis case are essentially the same as in the case of Western Union Telegraph Company v. Reynolds, 100 Va. 450, 41 S. E. 856, 93 Am. St. 971, where the court sustained a judgment against the company for the statutory penalty, for failure to transmit and deliver a telegram, the initial and terminal points of which were both within the State of Virginia, notwithstanding the circumstance that the line passed in part over the territory of another State. It is insisted, however, by counsel for plaintiff in error that this doctrine has been overruled by the decision of the Supreme Court of the United States in the more recent case of Hanley v. Kansas City So. R. Co., 187 U. S. 617, 23 Sup. Ct. 214, 47 L. Ed. 333. We cannot assent to that contention. In thé last named case the court merely decided that the Railroad Commission of the State of Arkansas could not, without violating the commerce clause of the Federal Constitution, fix and enforce rates for the continuous transportation of freight between two points in the State of Arkansas, where, a large part of the imite is outside of the State through the Indian Territory, or Texas. The distinction between that case and the case at bar is obvious. In the latter there is no- attempt to fix and enforce rates for the transmission of telegrams, but the court simply upheld the recovery of a penalty imposed by the statute upon a telegraph company doing business in the State for failure to transmit faithfully and impartially, and as promptly as practicable, a telegram, in accordance with its contract. This principle was distinctly recognized and sustained by the Supreme Court of the United States in construing a similar statute’ of the State of Georgia, in the case of Western Union Telegraph Co. v. James, 162 U. S. 650, 16 Sup. Ct. 934, 40 L. Ed. 1105, the authority of which is in no wise impaired by the case referred to. It is true that this court, in the Reynolds case, cited and relied on Lehigh Valley R. Co. v. Pennsylvania, 145 U. S. 192, [242] 12 Sup. Ct. 806, 36 L. Ed. 672, as analogous authority. But it will be observed that that case, like the case of Hanley v. Kansas City So. R. Co., involved the power of a State to fix the rate of taxation upon the receipts of a railway company “for the mileage within the State, from transportation by continuous carriage from a point in the State, but over a line which, in its course between these points, passed out of the State into another State and back again into the State.” It was that doctrine, and not the principle of the James case that has been modified by the recent decision of the Supreme Court of the United States. The case in judgment, in our opinion, involves the exercise of an important police power of the State, a power which ought not to be surrendered, and -which we are unwilling to surrender, in the absence of a direct and authoritative declaration on the part of the Supreme Court of the United States that it is violative of the Federal Constitution. ' For these reasons the court will adhere to its former decision, and dismiss the case for want of jurisdiction.