100 Va. 459 | Va. | 1902
delivered the opinion of the court.
This was an action of debt instituted by the defendant in error against the plaintiff in error, in the Hustings Court of the city of Radford, to recover the penalty prescribed by section 1291 of the Code for its failure to transmit faithfully and impartially, and as promptly as practicable, and in the order of its delivery, the following telegram, sent by the defendant in error from East Radford, Va.:
“To A. Collier,
Tom’s Creek, Va.:
Please send transportation myself and one by wire. Answer immediately.
O. M. REYNOLDS.’’
Upon the trial, the company demurred to the evidence. The jury found a verdict for the plaintiff for the .statutory penalty, $100, in usual form. Whereupon the court overruled the demurrer, and rendered judgment for the plaintiff.
It appears that the company’s telegraph line from East Rad-ford, Va., to, Tom’s Creek, Va., is by way of Bluefield, in the State of West Virginia; that at the latter point it has established a relay office, that is to say, an office at which messages are taken from one wire and sent over another to their destination. The wire from East Radford ends at Bluefield, from which place there is another wire extending to Tom’s Creek. Both wires are the property of the company. The relay office at Bluefield is its office, and the agent in charge of that office is its agent, whose duty it is to receive and transmit messages.
It further appears that the telegram in question was transmitted, in accordance with the requirements of the statute, from East Radford to Bluefield, but was never forwarded from the relay office at that place to its destination at Tom’s Creek.
Contrariwise, the company maintains that, as the line passes in part over the territory of another State, and the default complained of was that of its agent engaged in handling messages heyond the -borders of this State, the transaction was not embraced by section 1291.
It is further insisted that, if the effect of the statute is to regulate the business of the company outside the State, it is contrary to the commerce clause of the Constitution of the United States, and void.
Where the initial and terminal points are both in the same State, and the telegram is transmitted over the wires of the same company, and concerns only citizens of that State, the message is a domestic message, and its character, in that respect,, is not altered by the circumstance that the line passes in part over territory of another S'tate. Uor is it affected by the fact that the company has established a relay office in such” other State. The statute deals with the company, not its agents. The company in this ease undertook to transmit the message from one point to another in Virginia, and it cannot escape the penalty imposed by statute for its dereliction of duty on the theory that the statute has no extra-territorial force. The default complained of was not the stoppage of the message at Bluefield, but the failure to transmit it as promptly as practicable to Tom’s Creek. And the response of the company that it was guilty, but guilty at a point heyond the limits of the State, constitutes no defence.
The contract was with the company and not with its agent. It was an entire contract, and it is wholly immaterial at what, particular point in the line the breach occurred.
The continuity of the contract to transmit the message from East Radford to Tom’s Creek was no more affected by the relay office at Bluefield, than would be the undertaking of a stage coach company or a railroad company to transport passengers or freight between the same points, by a change of horses or drivers, or by substituting one locomotive for another, or one train crew for another, along the route.
The contract imposed a continuous duty. It was between a citizen of Virginia and the company, and in no wise affected or concerned any business in West Virginia, either as regards the company or citizens of that or any other State. It, therefore, contained no element of interstate commerce.
It was held in the case of State v. Western Union Tel. Co., 16 S. E. (N. C.), 389, that the regulation of the telegraph rates between points in North Carolina was not an interference with interstate commerce, although the line passed into Virginia between the points, where it was all owned and operated by one corporation.
So in the case of Lehigh Yalley R. Co. v. Pennsylvania, 145 U. S. 192, the State of Pennsylvania levied a tax on the gross-receipts of all railroad companies derived from the transportation by continuous carriage from points in Pennsylvania to other points in the same State, that is to say, passing out of Pennsylvania into another State and back again into Pennsylvania, in the course of transportation. The Lehigh Valley Railroad Company had no road of its own from M'aueh Chunk, Pa., to Philadelphia, but in transporting its coal, and general freight traffic,, it used its own line from hlauck Chunck to Phillipsburg, N. J., from which point it was, under an arrangement for a continuous passage with the Pennsylvania Railroad Company, transported
(Quoting from the opinion of Chief Justice Marshall in Gibbons v. Ogden, 22 U. S., 9 Wheaton, 189): “Commerce undoubtedly is traffic, but it is something more. It is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse”........ and proceeds: “The point of departure and the point of arrival were alike in Pennsylvania.- The intercourse was between those points, and not between any other points. Is such intercourse, consisting of continuous transportation between two points in the same State, made interstate, because, in its accomplishment some portion of another State may be traversed? Is the transmission of freight or messages between two places in the same State made interstate business by the deviation of the railroad or telegraph on to the soil of another state?.......... It is simply whether in the carriage of freight and passengers between two points in the same State, the mere passage over the soil of another State, renders that business foreign which is domestic. We do not think such a view can reasonably be entertained, and are of opinion that this taxation is not open to constitutional objaction by reason of the particular way in which Philadelphia was reached from Mauch Chunk.”
The court further says: “We will observe, however, that we think the principle laid down by that (the trial) court is peculiarly adapted to cases like the present, in which there is such an exceptional facility for the evasion of State authority to fix the rate of charges. This may be done in an instant, and with
The ease under consideration falls within the influence of these decisions, which show that the telegram in question was a domestic message, and that no Federal or constitutional question is involved.
In the case of Western Union Tel. Co. v. Tyler, 90 Va. 297, this court held that section 1292 of the Code was not in conflict with the Constitution of the United States, or any act of Congress passed in pursuance thereof, and that decision was reaffirmed in the case of Western Union Tel. Co. v. Bright, 90 Va. 778.
In the case of Western Union Tel. Co. v. James, 162 U. S. 650, a similar provision of a Georgia statute was declared to be a reasonable exercise of the police power of the State, and not unconstitutional.
In the more recent case of Western Union Tel. Co. v. Powell, 94 Va. 268, it was said: “When this writ of error was awarded section 1291 had not been held by this court to he constitutional, nor had the decision in the James case been made by the Supreme Court of the United States, holding such legislation to be a valid exercise of the police powers.
“Under the circumstances surrounding this ease, we cannot say that the jurisdiction of this court was not invoked in good faith to determine the constitutionality of the statutes in question. Its jurisdiction having been properly invoked upon one of the grounds provided in the Constitution and laws, it has jurisdiction for all purposes, although the amount involved is less than $500.”
The latest expression of this court, on the subject, is found in the case of Western Union Tel. Co. v. Goddin, 94 Va. 513, where this language occurs:
“At the time the writ of error in the case before us was awarded the constitutionality of sec. 1292 had been twice passed*468 upon in this court, and it was no longer a debatable question. The test of ‘good faith’ does not fully meet the difficulty. Counsel and parties may with perfect good faith ask the reiterated judgment of this court upon any question, and we do not clearly perceive how this court could say at just what point the appeal to it was wanting in good faith.
“A better test, perhaps, is to be found in considering whether or not the point presented is any longer open for argument. Is it a debatable question?......Applying this test, it is plain that the constitutionality of sec. 1292 is not an open one in this court. It is no longer debatable.’ ”
That ease is conclusive of this on that alleged ground of jurisdiction.
On the remaining ground, namely, that the recovery is a penal amercement, it is sufficient to say that the decision last referred to is equally conclusive. The recovery in that case was the $100 penalty imposed by section 1292 for the failure to deliver promptly a telegram, and sections 1291 and 1292 are in pari materia.
It follows from these views that this case must be dismissed for want of jurisdiction.
Dismissed.