It was unquestionably the duty of the company to provide and keep a competent engineer to run the engine. This it impliedly contracted to do when Thomas entered the service of the company, and he had the right to rely upon the presumption that they would discharge their duty in this respect. Now, did they perform this duty by permitting the engineer to turn over the management of the engine to a raw and inexperienced man, who, far from being an engineer, was just learning the duties of a fireman. Surely, to ask the question is to answer it. But it is said that this was the act of the engineer, and that the engineer and brakeman are fellowservants, and that this negligence of the engineer was one of the risks Thomas assumed when he entered into the service of the company. However this may be ordinarily, for we do not desire to express any opinion upon the point, it is perfectly clear that it can afford the company no protection in this case. For 209 here the company was represented by its alter ego, the conductor, who saw every thing that was done, and permitted the duties of the engineer to be discharged by this inexperienced apprentice. Had he thought for a moment he could almost have foreseen the inevitable result. It is said, however, that there is no allegation of the failure of the company to keep a competent engineer in the declaration, and, therefore, that question is not in issue. We attach no importance to this objection. The declaration details all the facts of the case with the utmost particularity, especially that the engine was being managed and run by a fireman of little or no experience in the management of the engine, and this was all that was necessary to advise the company what complaint it was called upon to answer.

It is clear beyond controversy that the negligence of the company contributed to and had a share in producing the accident, and this renders the railroad company liable, even though the negligence of a fellow-servant of the plaintiff was contributory also. This has been held over and over again: Grand Trunk Ry. Co. v. Cummings, 106 U. S. 700; Richmond etc. R. R. Co. v. George, 88 Va. 229; Lawson's Rights, Remedies, and Practice, p. 543, sec. 307. This is decisive of the case. The judgment of the circuit court of Pulaski county is right, and must be affirmed.

Judgment affirmed.

RAILROADS-CONDUCTORS AS VICE-PRINCIPALS.-A railway conductor having the entire control and management of a train is the personal repre

sentative or vice-principal of his employer, for whose negligence such employer is answerable to subordinate servants: Daniel v. Chesapeake etc. Ry. Co., 36 W.Va. 397; 32 Am. St. Rep. 870, and note. To the same effect, Bailroad v. Spence, 93 Tenn. 173; 42 Am. St. Rep. 907, and note. See, also, the extended note to Moon v. Richmond etc. R. R. Co., 49 Am. Rep. 406-415.

Master and Servant-Concurrent NegligeNCE OF MASTER AND OF FELLOW-SERVANT.-If the negligence of a master combines with that of a fellow-servant, and the two contribute to the injury of another servant, the latter may recover damages of the master: Railroad v. Spence, 93 Tenn. 173; 42 Am. St. Rep. 907, and note.

RAILROADS-FELLOW-Servants.-A conductor in charge of a railway train and a brakeman engaged thereon are not fellow-servants: Mason v. Richmond etc. R. R. Co., 111 N. C. 482; 32 Am. St. Rep. 814, and note. Contra, see Campbell v. Cook, 86 Tex. 630; 40 Am. St. Rep. 878,

WESTERN UNION TELEGRAPH COMPANY V. Tyler.

[90 VIRGINIA, 297.]

INTERSTATE COMMERCE-DElivery of TELEGRAPH MESSAGES.-A state statute making it the duty of every telegraph or telephone company to deliver with promptness every message received to the person to whom it is addressed, if the regulations of the company require such delivery, or to forward it promptly as directed, and providing a penalty for every failure to deliver or forward such message as promptly as practicable, such penalty to be paid to the person sending the message or to the person to whom it is addressed, is not void, as imposing a burden upon, or as a regulation of, interstate commerce, when applied to the failure of an interstate telegraph company to deliver in that state a message sent from another state, and deliverable in the former state,

Stiles & Holladay, for the plaintiff in error.

B. Haden, for the defendant in error.

297 LEWIS, P. This was an action against the Western Union Telegraph Company, to recover a statutory penalty of one hundred dollars, for the failure of the company to deliver as promptly as 298 practicable a certain dispatch sent from Ashville, North Carolina, to the plaintiff, at Clifton Forge, in this state. Section 1292 of the code, under which the action was brought, reads as follows:

"It shall be the duty of every telegraph or telephone company, upon the arrival of a dispatch at the point to which it is to be transmitted by said company, to deliver it promptly to the person to whom it is addressed, where the regulations of the company require such delivery, or to forward it promptly as directed, when the same is to be forwarded.

For every failure to deliver or forward a dispatch as promptly as practicable the company shall forfeit one hundred dollars to the person sending the dispatch, or to the person to whom it was addressed."

It is admitted that the dispatch in question was not delivered as promptly as practicable, but the company, nevertheless, denies the plaintiff's right to recover on two grounds, viz: 1. Because the action, if maintainable at all, ought to have been in the name of the commonwealth; and 2. Because section 1292 of the code is repugnant to that clause of the constitution of the United States which gives to Congress the power to regulate commerce among the several states.

As to the first point little need be said. Section 712 of the code provides that "where any statute imposes a fine, unless it be otherwise expressly provided, or would be inconsistent with the manifest intention of the general assembly, it shall be to the commonwealth," etc; and by section 745 it is provided that "wherever the word 'fine' is used in this chapter it shall be construed to include a pecuniary forfeiture, penalty, and amercement." But these sections, upon which the company relies, have no application to a case like the present. Section 1292, which gives a right of action in a case of this sort, expressly provides that the forfeiture shall be "to the person sending the dispatch, or to the person to whom it was addressed "; and it would therefore be manifestly inconsistent 299 with the intention of the legislature to hold that the commonwealth has any interest in the penalty sought to be recovered in the present case, or that the action is not properly in the name of the plaintiff.

The next question, then, is, whether section 1292, so far as it relates to a case like the present, is unconstitutional.

That the power of Congress to regulate commerce among the states is unlimited and supreme is not disputed. It was so decided in the great case of Gibbons v. Ogden, 9 Wheat. 1, and the subsequent decisions to the same effect are very numerous. It must also be conceded that telegraphic communication, like the transportation of passengers and merchandise, is commerce, and that such communication, when had between different states, is interstate commerce. In Telegraph Co. v. Texas, 105 U. S. 460, it was distinctly decided that a telegraph company occupies the same relation to commerce as a carrier of messages that a railroad company does as a carrier of goods; that both companies are instruments of

commerce; and that their business is commerce itself: See, also, Western Union Tel. Co. v. Pendleton, 122 U. S. 347; Leloup v. Port of Mobile, 127 U. S. 640. Nor is it denied that those subjects of commerce which are national in their nature, admitting of only one uniform system or plan of regulation, such as the transportation of commodities, or the transmission of messages, between different states, is subject to the exclusive control of Congress, and, consequently, that any regulation thereof by state legislation, whether Congress has legislated on the subject or not, is void: Cooley v. Board of Port Wardens, 12 How. 299; Welton v. Missouri, 91 U. S. 275; Henderson v. Mayor etc., 92 U. S. 259; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196; Robbins v. Shelby Taxing Dist., 120 U. S. 489; Leisy v. Hardin, 135 U. S. 100; Lehigh Valley R. R. Co. v. Pennsylvania, 145 U. S. 192; Western Union Tel. Co. v. Texas, 105 U. S. 460; Leloup v. Port of Mobile, 127 U. S. 640.

These principles were acted on by this court in Norfolk etc. R. R. 300 Co. v. Commonwealth, 88 Va. 95, 29 Am. St. Rep. 705, and we do not understand them to be controverted in the present case.

But does the statute, the validity of which is here drawn in question, amount to a regulation of commerce? In Western Union Tel. Co. v. Pendleton, 122 U. S. 347, a statute of Indiana was held to be repugnant to the commerce clause of the constitution, so far as it attempted to regulate the delivery of dispatches sent from that state into other states, because, as the court said, conflicting legislation would inevitably follow with reference to telegraphic communications between different states, if each state was vested with power to control them beyond its own limits.

But that is not the question in the present case, nor does the reasoning in that case apply to this. This is an action for the failure to deliver in this state a dispatch sent from another state and deliverable here, under a statute of this state. There is no question as to the extraterritorial operation of the statute, and it will be time enough to decide that question when it arises.

It has been argued with great earnestness that the statute amounts to a regulation of interstate commerce, but we are unable to come to that conclusion. If it can be said to affect commerce at all it does so only remotely or incidentally. It prescribes no new rule, and imposes no additional duty, and,

so far as the delivery of telegrams is concerned, it simply prescribes a penalty for a failure to deliver where the regulations of the company itself require such delivery. That it would be competent, moreover, for the state to afford redress through her courts, according to the common law, for the negligent failure of a telegraph company to deliver a dispatch sent from another state, is unquestionable, and if this may be done it is equally competent for the state to seek, by legislation in advance, to prevent such violation of duty.

We think the case is within the principle of the decision in Sherlock v. Alling, 93 U. S. 99, namely, that "the legislation 301 of a state, not directed against commerce or any of its regulations, but relating to the rights, duties, and liabilities of citizens, and only indirectly and remotely affecting the operations of commerce, is of obligatory force upon citizens. within its territorial jurisdiction, whether on land or water, or engaged in commerce, foreign or interstate, or in any other pursuit."

This principle was applied and amplified in Smith v. Alabama, 124 U. S. 465, and again in Nashville etc. Ry. Co. v. Alabama, 128 U. S. 96.

In the Smith case the question was whether a statute of Alabama, making it unlawful for any locomotive engineer to drive or operate any train of cars without having been first examined and licensed, was in contravention of the commercial power of Congress, so far as it applied to engineers employed on interstate trains; and it was held that it was not. After a full consideration of the case the conclusions announced were: 1. That the statute was not in its nature a regulation of commerce; 2. That it was properly an act of legislation within the reserved power of the state to regulate the relative rights and duties of persons within the state, so as to secure safety of persons and property; and 3. That so far as it affected interstate commerce it did so only indirectly, and not so as to burden or impede such commerce.

In the course of the opinion it was said, by way of illustration, that a common carrier, although engaged in interstate commerce, is liable, according to the local laws of the particular state in which he may be guilty of any nonfeasance or misfeasance, as, for example, for his failure to deliver goods at the proper time and place, or for injuries to passengers caused by his negligence, and that in neither case would it be a defense that the law giving the right of redress was void,

AM. ST. REP., VOL. XLIV.-58