Marshall v. Western Union Telegraph Co.

Whitfield, J., delivered the opinion of the court. The message in this case was transmitted from Birmingham, Ala., to Quincy, Miss., correctly. The delay occurred either at Birmingham, in starting it, or in the transmission. There was nothing to show to which of these two causes the delay was due. The operator at Quincy promptly delivered it upon reception at that office. The action is to recover the penalty provided by § 4326 of the code of 1892, and the effort is to recover the penalty for failure to transmit the message ‘ ‘ within a reasonable time, without good and sufficient reason. ’ ’ Counsel for appellant contend that Telegraph Co. v. Pendleton, 122 U. S., 347 (7 Sup. Ct., 1126; 30 L. Ed. 1187); has been overruled by Telegraph Co. v. James, 162 U. S., 650 (16 [161] Sup. Ct., 934; 40 L. Ed. 1105), and that Alexander v. Telegraph Co., 66 Miss., 161 (5 So., 397), has, by this last case, been modified. Learned counsel misconceive the cases. Telegraph Co. v. Pendleton was a suit in an Indiana court to inflict the penalty of an Indiana statute for a default which occurred wholly in Iowa. The message was transmitted promptly to Ottumwa, la., but the agent there (transmission being ended) delayed delivery from there (the office of destination) to the sendee. It was this failure by the operator at the office of destination, after transmission was ended, to promptly deliver to the sendee, that constituted the entire default. And, this default occurring wholly in Iowa, the Indiana statute could not have extra-territorial application to it. Telegraph Co. v. James, was a suit in Georgia, seeking under a Georgia statute to inflict the penalty of that statute in a Georgia court for a default which occurred wholly in Georgia. The statute was enforced, not extraterritorially, but for a default occurring wholly within the limits of the state under whose police power the statute was enacted. The vital and distinguishing test between the cases is that in the Pendleton case the default occurred wholly without the state whose statute was invoked, and in the James case the default occurred wholly within the state whose statute was invoked. In the James case, also, the default consisted wholly in the failure of the operator at the office of destination to deliver the telegram with due dilligence after its reception by him, transmission being ended. He kept it from one evening until the next morning. We understand both eases to hold that it is competent for a state, in the exercise of its police power, to enforce a reasonable penalty for a failure on the part of the company to deliver, within a reasonable time, without good excuse therefor, from the office of destination to the sendee, a telegram, transmission being wholly over. And this the Alexander case holds. We also think it fairly deducible from both cases that a [162] state statute imposing a penalty for delay in the transmission of the message over the wires from one state to another state would be an interference with interstate commerce, within the meaning of the federal constitution (sec. 8 of article 1). The language of Justice Peckham, at page 661, T62 IT. S., page 938; 16 Sup. Ct., and page 1108, 40 L. Ed., “It is yet under the jurisdiction of the state where it is to be delivered (after its arrival therein at the place of delivery),” indicates this, as does the distinction drawn (seepages 659, 660, 162 U. S.', page 937; 16 Sup. Ct., and page 1108, 40 L. Ed.) between state legislation that but incidentally affects commerce, such as was considered in Smith v. Alabama, 124 U. S., 465 (8 Sup. Ct., 564; 31 L. R. A., 508), and, which, at any rate, would be valid until congress should legislate upon the subject, such legislation being local in its nature, in aid of commerce, and the general duty of the company without the statute, and that other kind of state legislation, which seeks to regulate subjects so extensive and national in character that only congress could deal with them. Whether we are correct, however, in this deduction from these two cases as to the voidness of state legislation seeking to regulate the transmission of messages from one state into another, we are satisfied that our statute (sec. 4326) does not impose a penalty for failure to transmit within a reasonable time, etc. The statute seems to have been carefully drawn, so as to preserve the very distinction adverted to. At all events, its language plainly limits the penalty as to tramission, to transmitting “ incorrectly.” It is a penal statute and must be strictly construed. If a statute should be enacted imposing a penalty for unexcused delay in transmission of an interstate message, where the evidence showed that the whole of such delay occurred between points in this state, a different case would be presented, though whether such a statute would be valid we do not say. There is no showing in this case as to where the delay in transmission occurred, or whether the delay might not [163] have consisted in failing to start the dispatch promptly. And this is a suit for a penalty, not for damages caused by negligent transmission or delay in delivery. The rule announced in 25 Am. & Eng. Enc. Law, 831, and note 3, seems to apply to the latter class of suits. But, on our view of this case, this is immaterial. On the case before us, we think the learned circuit judge has reached the right conclusion — there being no proof of any recoverable, actual damages, and the judgment is Affirmed.