State ex rel. Railroad Commissioners v. Western Union Telegraph Co.

Shepheed, C. J.: The Board of Railroad Commissioners is “authorized and required to make or cause to be made just and reasonable rates of charges for the transmission of messages by any telegraph line or lines doing business in the State.” Laws 1891, ch. 320, § 26. It may cause notice to be served upon corporations or persons.charged with a violation of the rules prescribed by it in pursuance of the above — 220 — authority, and upon a hearing, may ascertain and direct ampie and full recompense to be made by the company, corporation or person offending, which recompense may be enforced by civil action, as prescribed in section 10 of said act. Mayo v. Telegraph Co., 112 N. C., 343. It is a Court of record, with “ the powers and jurisdiction of a Court of general jurisdiction,” as to all subjects embraced in said act, by virtue of the laws of 1891, ch. 498. Express Co. v. Railroad, 111 N. C., 463. The defendant being served with process appeared before this Court to answer the complaint or petition of Eugene Albea, called plaintiff herein, and filed its answer. Thereupon a trial was had, and it appearing that the said Albea, having tendered no commercial message to any of the offices of the defendant, it was adjudged that he had no cause of complaint, and the proceeding was practically dismissed as to him. The Commission, however, having the defendant before it, proceeded under its general powers to make rates of charges for the transmission of business by the defendant from and to points in North Carolina, which rate of charges is the same as that applicable to all the offices of the defendant within the limits of the State. The Commission, after having disposed of the complaint of Albea, should have amended the proceeding so as to substitute as complainant the “ State of North Carolina ex rel. the Railroad Commission but as it has been fully heard without reference to this irregularit}’, we have ordered that the amendment be now made, and the proceeding be entitled accordingly. The Code, § 273; Reynolds v. Smathers, 87 N. C., 24. The order of the Board, which is the subject of review, is as follows: “That the telegraph offices at Edenton and Elizabeth City and at other points on the Norfolk and Southern Railroad in North Carolina are offices of defendant, and that said offices shall transmit commercial messages at rates prescribed by the Commission to any point in North Carolina.” — 221 — This order is based upon certain findings of fact, some of which are except- d to. Bat inasmuch as it was agreed that his Honor might pass upon these questions in the place of a jury, and as there was evidence sufficient to warrant such findings as under the view we have taken are material to be considered, they cannot be reviewed in this Court. Battle v. Mayo, 102 N. C., 413; Fertilizer Co. v. Reams, 105 N. C., 283. It appears, in the language of his Honor, “that the defendant owns, controls and operates a line of telegraph from Edenton, N. 0., passing through Elizabeth City, N. C., Hert-ford, Moyock, N. C., and other places along the track of the Norfolk a> d Southern Railroad to Berkley and Norfolk, Virginia.. * * * That the company receives and transmits over this line (commercial) messages at the towns and villages of Hertford, Moyock and other places along said line to any place in North Carolina, where it has an office, at the uniform rate of twenty five cents per message of ten words, except at Edenton and Elizabeth City,” at which two last named offices the defendant receives no commercial business, the said offices being devoted exclusively to the business of the Norfolk and Southern Railroad Company in respect to the running of its trains, etc. It is very clear to us that under the authority given it to make rates for “ the transmission of messages by any telegraph line or lines doing business in the State,” the Commission (sub-, ject, of course, to the right of appeal) has the incidental power of ascertaining what particular corporation is at least in the control or operation of the same. This would seem indispensably necessary to a proper exercise of its authority to fix rates as well as to know against whom to proceed under section 10 of the act, in the event of a violation of such regulation. The exception in this respect, therefore, must be overruled. A more serious question, however, is presented by the ruling of the Court upon the third conclusion of the Commission, which is as follows: “That telegraphic messages trans222 milted by defendant over its said line from Elizabeth City or Edenton, or other points in North Carolina to points in said State, do not constitute commerce between States, although traversing another State in the route, and are subject to the rate prescribed by the Commission.” It appears from the findings of fact that the shortest and only route over the wire of the defendant by which messages can be transmitted to many points in this State, necessarily “traverses, in part, the State of Virginia and thence back into North Carolina,” and it is insisted that such messages so transmitted are interstate commerce, and therefore not subject to the tariff regulation of the Commission. It is not denied that the offices of the defendant along the line of the Norfolk and Southern Railroad Company, except those at Edenton and Elizabeth City, receive commercial messages for transmission, in the manner described, to various points in North Carolina, and it is plain that such business does not relate to the intercourse of the citizens of this State with those of some other State. It is purely an intercourse between the citizens of North Carolina through the means afforded b}r a corporation having extensive facilities of communication within the limits of the said State, and the uniform rates fixed by the Commission for the business, which the said corporation accepts, or is under legal obligation to ^accept, in nowise affects or interferes with any business which the defendant undertakes for the citizens of Virginia, either between themselves or with the citizens of other States. Neither are we able to see how the mere fixing of rates between different points in this State can in any way conflict with any regulation which the State of Virgiuia may have the power to impose in respect to its domestic business. It must be manifest, therefore, that this business is without a single feature of interstate commerce, unless it can be found in the fact that in the transmission of a message it must traverse a part of the defendant’s own line in the State of — 223 — Virginia. AVe have been referred to several cases in which it has been held, in respect to the continuous carriage of freight by a railroad company under such circumstances, that a State Commission had no power to prescribe rates, and also that a State had no right to levy a tax upon the gross receipts, even as to that part derived from the transportation within its territory. State v. Chicago Railroad Co., 40 Minn., 266; Stemberger v. Railroad, 29 S. C., 510; Cotton Exchange v. Railroad, 2 Interstate Commerce Reports, 386. Without attempting to discuss these cases, and to distinguish them in some particulars from ours, it is sufficient to say that if they are not distinctly overruled, their principle is certainly in conflict with the reasoning of the opinion of the Supreme Court of the United States (Fuller, C. J.) in The Lehigh Valley Railroad 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 other States and back again into Pennsylvania in the course of transportation. . The Lehigh Valley Railroad Company has no road of its own from Mauch-Chunk, Pennsylvania, to Philadelphia, but in transporting its coal and general freight traffic it uses its own line from Mauch-Chunk to Phillipsburg, New .Jersey; from which point it is, under an arrangement for a continuous passage with the Pennsylvania Railroad Company, transported by the latter road via Trenton to Philadelphia. It was insisted that the State could not tax that part of the gross receipts derived from so much of the transportation as was wholly within the State of Pennsylvania, because the freight, during its entire transportation, was impressed with the character of interstate commerce. The Court sustained the tax, and although it may be said that the decision relates only to that part of the receipts which arose from the trails224 porlation within the State, yet it must be apparent from a perusal of the opinion that this conclusion was reached on the ground that such continuous transportation was not interstate commerce. Indeed, the entire course of the reasoning of the Court is in support of this very principle, and is clearly applicable to the question involved in this appeal. The language of the Court is plain and emphatic, and we do not feel at liberty to ignore it and especially when it is applied to telegraphic communication, under the peculiar circumstances of this case. The Court, in speaking of the grant of power to regulate commerce between the States, remarked: “But, as was said by Chief Justice Marshall, the words of the grant do not embrace that commerce which is completely interna], which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to nor affect other States. Commerce,” observed the Chief Justice, “undoubtedly, is traffic, but it is something more; it is intercourse.” The Court further proceeded to say: “The point of departure and the point of arrival were alike in Pennsylvania. The intercourse was between those points, and not between anj' 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 line on to the soil of another Stale?” Again, in another part of the opinion it is said: “ 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 be reasonably entertained, and are of the opinion that this taxation is not open to constitutional objection by reason of the particular way in which Philadelphia was reached from Mauch225 Chunk.” The Courp uses the words “continuous passage,” from which it is to be inferred that if, after the freight passed beyond Pennsylvania, it was transferred to another transportation agency in New Jersey,-and by.this other agency carried to Philadelphia, it would be interstate, commerce, and the same if consigned to a point in New Jersey and then re-shipped to Philadelphia. It is in evidence that the defendant owns and operates a continuous wire, or system of wires, from the offices mentioned to other points in North Carolina, and therefore it is not compelled to transfer its business to any other agency outside of North Carolina in order that it may reach its destination in this State. In this respect our case is stronger than the one from Pennsylvania, as the road from Phillipsburg to Philadelphia was owned and operated by another corporation, and.not by the Lehigh Valley Railroad Company. We refrain from entering into an extended discussion of the subject, and are content to follow thg reasoning of the Supreme Court of the United States, whose authority upon such questions is conclusive. We will observe, however, that we think the principle laid down by that Court is peculiarly adaptable 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 without expense by so adjusting the wires that messages must go through a part of the territory of another State. We-think the exception should be overruled. The remaining exception w’hich it is necessary to consider relates to that part of the order which substantially commands the defendant to open its offices át Edenton and Elizabeth City for the transmission of commercial messages. It is urged, but not very seriously pressed, that the order only means that the company shall transmit such messages at the prescribed rates, whenever it undertakes to do that character of business at those points. The order of the Court is not, — 226 — in our opinion, susceptible of such a construction, but whatever doubt there may be must surely vanish when it is considered in connection with the finding.of the Commission upon which it is based, and which the Court, in its judgment, approves and adopts. This finding is that the operators in said offices “are the agents and operators of the defendant, and that it is their duty to transmit commercial messages when tendered to them to points in North Carolina at the rate prescribed by the Commission.” It is impossible, without violating all rules of interpretation, as well as destroying the plain import of language, to adopt the view contended for, and it is, therefore, necessary to determine whether the Commission act conferred upon the Commission the authority to direct that the said offices should be opened for commercial business. That it has no such authority is settled by this Court in Mayo v. Telegraph Co., supra (decided since the trial of this proceeding), in which it is declared that “there is nothing to show the intent of the statute to give to the Commission power to prescribe other rules and regulations for telegraph lines than those directed in section 26, with regard to their charges for the transmission of messages, as neither of the other sections could be made to apply to telegraph, even if the same had been specifically named.” Under this decision, so much of the order as is open to the objection referred to, must be set aside, but in all other respects it is affirmed. Let it not be understood that we are deciding that a corporation, like the defendant, exercising its franchise, the right of eminent domain and other unusual privileges, under a grant from the State for the benefit of the public, can give any undue or unreasonable preference or advantage to any particular person, company or corporation. This question may be presented when commercial messages have been tendered and declined at the said offices, but we think it would be going outside of the record to pass upon it now. And — 227 — especially should we refrain from doing so when the intelligent counsel, who appeared for the defendant, very properly concluded that the Court would not anticipate a point of such importance, and therefore did not deem it necessary to discuss it. The order of the Court is modified and Affirmed.