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234 U. S.

Opinion of the Court.

Contzen survey, which we have seen was directed to befiled by the lower courts without alteration, a decision which we approve.

There are other contentions of appellants which call for no extended comment, as we concur with the courts below in regard to them. For instance, it is contended that the surveyor general of New Mexico had lost authority to approve the location and that duty had devolved upon the surveyor general of Arizona. To the contention it may be replied, as the Court of Appeals in effect replied, that the act of 1860 devolved the duty on the surveyor general of New Mexico and the Land Office, upon whom devolved the ultimate responsibility, and who approved the location.

A point is made upon attempts to change the location, of which it is enough to say that they were not accepted by the Land Department and the claimants were remitted to the location under consideration.

Another contention is made on the conflict of the grant as located with other grants, to which the Court of Appeals replied that it was not now concerned with such question and that if, as suggested, a controversy should arise it "will properly be adjudicated in the courts where the lands are located." In this we concur.

Whose duty it was to pay the expense of the survey is also in controversy. The appellants assert it to have been the duty of the claimants under the act of June 2, 1862 (12 Stat. 410, c. 90), and that was the view, we have seen, of the Land Department. The appellees contend that the obligation was upon the Government under the granting act. That act provides, as we have seen, that "it shall be the duty of the surveyor general of New Mexico to make survey and location of the lands so selected by said heirs of Baca when thereunto required by them. The obligation is explicit, and there was reason for it. To accommodate conflicting claims and at the instance of

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the Government the Baca claimants gave up their rights to a definite tract of land, and, as appellees say, expressing the equities of the claimants, whatever its character or condition, and the Government therefore would naturally make provision for the location of the substituted land as expeditiously as possible and without expense to the Baca heirs. We therefore think the act of 1860, not that of 1862, applied.

The contention that appellees have not shown sufficient title is untenable.

Decree affirmed.

234 U. S.

WESTERN UNION TELEGRAPH COMPANY v. BROWN.

ERROR TO THE SUPREME COURT OF THE STATE OF SOUTH CAROLINA.

No. 355. Argued May 5, 1914.-Decided June 22, 1914.

A recovery in one jurisdiction for a tort committed in another must be based on the ground of an obligation incurred at the place of the tort which is not only the ground, but the measure, of the maximum recovery.

A State cannot legislate so as to affect conduct outside of its jurisdiction and within territory over which the United States has exclusive jurisdiction.

A State may not determine the conduct required of a telegraph company in transmitting interstate messages by determining the consequences of not pursuing such conduct in another State.

The statute of South Carolina making mental anguish caused by the negligent non-delivery of a telegram a cause of action is, as applied to telegrams the negligent non-delivery of which occurred in the District of Columbia, an unconstitutional attempt to regulate conduct within territory wholly under the jurisdiction of the United

234 U. S.

Argument for Plaintiff in Error.

States; such statute is also unconstitutional, as to messages sent from that State to be delivered in another State, as an attempt to regulate interstate commerce. 92 So. Car. 554, reversed.

THE facts, which involve the constitutionality of a statute of the State of South Carolina in regard to negligent non-delivery of telegraph messages, are stated in the opinion.

Mr. Rush Taggart and Mr. Francis Raymond Stark, with whom Mr. George E. Fearons and Mr. Julian Mitchell were on the brief, for plaintiff in error:

The statute is unconstitutional, as to interstate messages at least, under the commerce clause, where there has been no breach of duty by the telegraph company within the State. In this case there was no breach in South Carolina.

The message was interstate commerce and not subject to regulation by the State of South Carolina.

Any statute is an invalid regulation of interstate commerce which imposes a liability outside of that created by the contract and unknown to the common law for an act or omission occurring in the course of interstate transportation or transmission entirely outside the borders of the State. West. Un. Tel. Co. v. Commercial Milling Co., 218 U. S. 406, distinguished.

This principle has been constantly recognized in other than telegraph cases. Adams Exp. Co. v. Croninger, 226 U. S. 500; Birkett v. West. Un. Tel. Co., 103 Michigan, 361; Chicago &c. R. R. v. Polt, 232 U. S. 165; Chicago &c. Ry. Co. v. Solan, 169 U. S. 133; Hanley v. Kansas City So. Ry. Co., 187 U. S. 617; Jacob v. West. Un. Tel. Co., 135 Michigan, 600; Mo. Pacific Ry. Co. v. Kansas, 216 U. S. 262; Penna. Ry. Co. v. Hughes, 191 U. S. 477; Stoutenburgh v. Hennick, 129 U. S. 141; West. Un. Tel. Co. v. Carew, 15 Michigan, 525; West. Un. Tel. Co. v. Commercial Mill.

Argument for Defendants in Error.

Co., 218 U. S. 406; West. Un. Tel. Co. v. Crovo, 220 U. S. 364; West. Un. Tel. Co. v. James, 162 U. S. 650; West. Un. Tel. Co. v. Pendleton, 122 U. S. 347; Yazoo &c. Ry. Co. v. Jackson Vinegar Co., 226 U. S. 217.

The statute is unconstitutional because conflicting with the exclusive legislative power of Congress in the District of Columbia. West. Un. Tel. Co. v. Chiles, 214 U. S. 274; West. Un. Tel. Co. v. Greer, 115 Tennessee, 368; West. Un. Tel. Co. v. Snodgrass, 94 Texas, 283.

234 U.S.

Mr. Frank J. Hogan, with whom Mr. W. Turner Logan and Mr. John P. Grace were on the brief, for defendants in

error:

The statute in no way contravenes the Federal Constitution. Atchison, Topeka &c. R. R. v. Matthews, 174 U. S. 96, 100; Cooley's Const. Lim. (7th ed.), 255.

The law of the State from which the telegram is sent to the addressee in another State determines whether the addressee may recover for mental anguish caused by negligent failure to deliver or delay in delivering a message at its destination, whether the form of action be ex contractu or ex delicto. Bryan v. Telegraph Co., 133 No. Car. 603; Cashion v. West. Un. Tel. Co., 123 No. Car. 267; Hancock v. Telegraph Co., 137 No. Car. 497; Johnson v. Telegraph Co., 144 No. Car. 410; Ligon v. West. Un. Tel. Co. (Texas), 102 S. W. Rep. 429; Lyne v. West. Un. Tel. Co., 123 No. Car. 129; Mentzer v. West. Un. Tel. Co., 93 Iowa, 752; Markley v. West. Un. Tel. Co., 151 Iowa, 612; Reed v. West. Un. Tel. Co., 135 Mississippi, 861; Shaw v. Postal Tel. Cable Co. (Miss.), 56 L. R. A. 486; Stuart v. West. Un. Tel. Co., 66 Texas, 580; Whitehill v. West. Un. Tel. Co., 136 Fed. Rep. 499, 501; West. Un. Tel. Co. v. Woodard, 84 Arkansas, 323; West. Un. Tel. Co. v. Henderson, 89 Alabama, 510; West. Un. Tel. Co. v. Frith, 105 Tennessee, 167; West. Un. Tel. Co. v. Waller, 96 Texas, 589; West. Un. Tel. Co. v. Young (Tex.), 121 S. W. Rep. 226,

234 U.S.

Argument for Defendants in Error.

228; West. Un. Tel. Co. v. Sloss (Tex.), 100 S. W. Rep. 354; .West. Un. Tel. Co. v. Buchanan, 35 Tex. Civ. App. 437; West. Un. Tel. Co. v. Anderson (Tex.), 78 S. W. Rep. 34; West. Un. Tel. Co. v. Lacer (Ky.), 93 S. W. Rep. 34; Bigelow's Leading Cases, p. 622; Jones on Tel. and Tel. Companies, § 598; Joyce on Electric Law, § 825; 2 Shearman & Redfield on Negligence, 5th ed., § 543; Thompson on Electricity, § 427; 41 L. R. A. (N. S.) 223, note.

It is the rule that in tort actions the law of the place where the injury was sustained, rather than the place where the negligence occurs, obtains. Beacham v. Portsmouth Bridge, 68 N. H. 382; Bigby v. United States, 188 U. S. 400, 408; B. & O. So. West. Ry. v. Reed, 158 Indiana, 25; Cameron v. Vandergrift, 53 Arkansas, 381; Ex parte Phenix Ins. Co., 118 U. S. 610; Herman v. Port Blakely Mill Co., 69 Fed. Rep. 648; Johnson v. Elevator Co., 119 U. S. 388; Le Forest v. Tolman, 117 Massachusetts, 109; Mexican Cent. Ry. Co. v. Gehr, 66 Ill. App. 173; Michael v. Kansas City Ry. Co. (Mo.), 143 S. W. Rep. 67; P. C. C. & St. L. Ry. v. Austin, Admr., 141 Kentucky, 722; Pendar v. H. & B. Machine Co. (R. I.), 87 Atl. Rep. 1; Randolph's Admr. v. Snyder, 139 Ky. 159; Railroad Company v. Becker, 67 Arkansas, 1; Railroad Company v. Doyle, 60 Mississippi, 977, 984; Rundell v. La Compagnie Generale, 100 Fed. Rep. 655; Smith v. Southern Railway, 87 So. Car. 136; Sullivan v. Old Colony Street Ry., 200 Massachusetts, 303, 308; The Plymouth, 3 Wall. 20, 36; Bouvier's Law Dic., Tort, p. 650; Mr. Justice Holmes in 10 Harv. Law Rev. 471; 56 L. R. A. 216, note.

A State acting within its police powers may pass laws designed for the protection of persons within its borders, although such laws incidentally affect interstate commerce, provided Congress has not legislated upon the subject, and it is one not purely national in its nature. Ivy v. West. Un. Tel. Co., 165 Fed. Rep. 371; West. Un. Tel. Co. v. James, 162 U. S. 650; West. Un. Tel. Co. v. VOL. CCXXXIV-35

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