105.

Argument for Public Service Commission of Mass.

reason of the fact that corporations rather than individuals are concerned, or that modern inventions have made greater speed possible. The interstate transaction, to wit, the communication from the agent in New York to the agent in Boston, is in no way affected by the requirement that all persons in Massachusetts must be treated alike. The case of International Textbook Co. v. Pigg, 217 U. S. 91, is not in point, since there the communication was direct, by mail, from the company in Pennsylvania to the pupil in Kansas (see at p. 100).

The information received by the companies in Boston is distributed to divers customers there. If the companies' agents, after receipt of the information, had proceeded to set it up in type, strike off a hundred copies and send one by messenger to each of a hundred customers, it would seem clear that the interstate transaction was completed when the agent in Boston received the information, and that the business of printing the copies and distributing them should be regarded as entirely intrastate matter. Can it make any difference that the printing machine is set up in the customer's office and operated simultaneously with ninety-nine like machines in other offices? The interstate transmission ceased before the retailing operation began, just as when the owner of goods begins retailing them out to different customers within the State the interstate transit has ceased. Commonwealth v. Peoples Express Co., 201 Massachusetts, 564; Kirmeyer v. Kansas, 236 U. S. 568.

The present case cannot correctly be regarded as an interstate transportation of property by the owner, the telegraph company, from New York to Boston, and a sale by the company in Boston of the property transported. So far as a property right exists it is a right to keep to oneself or to publish or communicate to others the matter collected. Board of Trade v. Christie Grain & Stock Co., 198 U. S. 236; Dodge Co. v. Construction Informa

Argument for Public Service Commission of Mass. 247 U. S.

tion Co., 183 Massachusetts, 62. In furnishing the quotations to the brokers the telegraph companies are exercising the property right derived by them from the Stock Exchange, under contract, but in no sense are they selling or transferring it.

However, even if the transaction is regarded as a transfer of property, the retailing out of property to a hundred different customers in Boston which has been received by one interstate shipment would be subject to the police regulations of the State. So far as the communication of this information is spoken of as a sale of "news" it is applying an analogy to a sale of goods, and the principle of breaking bulk seems properly to be applied to such analogy, and would bar any claim to exemption from state regulation.

Even the doctrine of special immunities inherent in an "original package" does not nullify police regulation by a State as to retail trade. Austin v. Tennessee, 179 U. S. 343; Cook v. Marshall County, 196 U. S. 261; Rast v. Van Deman & Lewis Co., 240 U. S. 342, 360.

al

There must be some time when a subject-matter, though moving in interstate commerce, becomes subject to state control. Mutual Film Corporation v. Ohio Industrial Commission, 236 U. S. 230, 240.

The fact that it is physically impossible to operate ticker instruments in Boston by means of a transmitter located in New York, and that, accordingly, it is necessary to use the Morse telegraph system for the transmission from New York to Boston, would seem to strengthen the claim that the interstate character of the transmission ceased when that transmission ended.

Even if matter affected is held to constitute interstate commerce, the subject is open to state regulation until acted upon by Congress.

The power of a State to regulate common carriers, even though interstate commerce is incidentally affected,

105. Argument for Public Service Commission of Mass.

is well established, and such regulations remain effective until such time as Congress may act upon the matter. Western Union Telegraph Co. v. Crovo, 220 U. S. 364; Minnesota Rate Cases, 230 U. S. 352; Vermilye v. Western Union Telegraph Co., 207 Massachusetts, 401.

Such statutes are not regulations of interstate commerce but proper police regulations for the enforcement of the rules and policies of the common law. Western Union Telegraph Co. v. James, 162 U. S. 650; Missouri, Kansas & Texas Ry. Co. v. Haber, 169 U. S. 613, 634; Western Union Telegraph Co. v. Wilson, 213 U. S. 52, 55.

The requirement of the Massachusetts statute that the telegraph companies shall serve all citizens without unfair or unreasonable discrimination is but an enforcement of a common law duty. Primrose v. Western Union Telegraph Co., 154 U. S. 1; Western Union Telegraph Co. v. Call Publishing Co., 181 U. S. 92, and other cases.

Surely, if it is lawful for a State to enforce the commonlaw duty by means of a penalty, as was done in the Crovo Case, supra, it may provide a more perfect means of enforcement by specific order of a commission, and equitable relief. Missouri Pacific Ry. Co. v. Larabee Flour Mills, 211 U. S. 612.

Congress has not legislated with reference to any matters affected by the order of the Public Service Commission.

Assuming that an agreement of the telegraph company to furnish service only to persons approved by the Stock Exchange is wholly valid, the order of the commission and decree of the court in no way attacked or injured this property right, either with or without due process of law. The order is simply for the telegraph companies to remove the discrimination. They can do this either by furnishing the quotations to Mr. Foster in the exercise of the rights which they now have or may acquire from the Exchange,

or by ceasing to give to others in Massachusetts the service which is denied to him.

The Exchange was not an indispensable party to the proceedings before the Commission and in the court proceedings to enforce the order.

The clause of the contract by which the telegraph company agrees to furnish its service only to persons approved by the Stock Exchange is void so far as it prevents the telegraph company from serving the public without discrimination. Commercial Union Telegraph Co. v. New England Tel. & Tel. Co., 61 Vermont, 241; Chesapeake & Potomac Telephone Co. v. B. & O. Telegraph Co., 66 Maryland, 399, 416; Bell Tel. Co. of Philadelphia v. Commonwealth ex rel. B. & O. Tel. Co., 3 Atl. Rep. 825; Heaton Peninsular Button-Fastener Co. v. Eureka Specialty Co., 77 Fed. Rep. 288, 293.

The Stock Exchange has granted to the telegraph company, with knowledge of the public character of the business in which it is engaged, the right to distribute this information by ticker or otherwise. Having so parted with it, the property becomes subject to all obligations which the law, from reasons of public policy, attaches to property devoted to a public use. Louisville & Nashville R. R. Co. v. United States, 238 U. S. 1, 19.

MR. JUSTICE HOLMES delivered the opinion of the court.

Four cases were argued together in this Court. The first two were suits in the Supreme Judicial Court of Massachusetts, one a statutory petition by the telegraph companies to have an order of the Public Service Commission annulled, the other a bill by the Commission to have the same order enforced. The cases were consolidated and reserved on the pleadings for determination by the full Court, which decreed that the petition of the plaintiffs in error should be dismissed and the order of

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Opinion of the Court.

the Commission obeyed. 224 Massachusetts, 365. The order recited that the Gold and Stock Telegraph Company by the Western Union Telegraph Company lessee and the United Telegram Company had without just cause refused to supply to Calvin H. Foster the continuous quotations of the New York Stock Exchange by means of ticker service then supplied to others, declared the refusal an unlawful discrimination and required the two companies to remove the discrimination forthwith.

The material facts may be abridged as follows: The New York Stock Exchange, having a monopoly of the information collected by it on the floor of the Exchange concerning the prices quoted in transactions there, made contracts with the plaintiffs in error of the same general character as those before the Court in Board of Trade v. Christie Grain & Stock Co., 198 U. S. 236, 246, and Hunt v. New York Cotton Exchange, 205 U. S. 322. By these contracts for specified lump sums the Exchange agreed to furnish to the Telegraph Companies simultaneously. full and continuous quotations of prices made in transactions upon the Exchange. The Telegraph Companies "may" in their turn furnish quotations to their "patrons at intervals of more than fifteen minutes subject to discontinuance upon objection of the Exchange, and may furnish continuous service by ticker to subscribers, provided the latter sign applications in duplicate, one of which is to go to the Exchange, the application not to be effectual until the subscriber is approved by the Exchange, agreeing that the Telegraph Company may discontinue the service "whenever directed so to do by said New York Stock Exchange." The application recognizes that the quotations are furnished under contract with the Exchange and agrees not to furnish the quotations to branch offices or correspondents unless first approved by the Exchange and also signing agreements, one of which is to be delivered to the Exchange. The contract states