Telegraph Co. v. Powell.

There are two counts in the declaration. The first is based on section 1291, and the second on section 1292. The defendant company demurred to the declaration, and to each count thereof. The demurrer was overruled. action of the court is assigned as error.

This

The demurrer to the declaration put in issue the constitutionality of the statutes upon which the action was based. The ground upon which it is claimed that these sections were invalid is that they are regulations of interstate commerce in so far as their provisions apply to interstate messages, and that, although the message in this case was a domestic message-a subject over which the State Legislature clearly had jurisdiction-yet inasmuch as these sections are general, applying alike to both classes of messages, and their provisions being so connected together that what is valid cannot be separated from what is invalid, they must be held to be wholly void. Trade. Mark cases, 100 U. S. 82. Whether the provisions of these sections are so connected together that one cannot be separated from the other is immaterial, as, in our opinion, the whole of both sections is constitutional.

It was held by this court in W. U. Tel. Co. v. Tyler, 90 Va. 297, and W. U. Tel. Co. v. Bright, 90 Va. 778, that section 1292 was not repugnant to the commerce clause of the Federal Constitution, and, for like reasons and upon the same grounds, which need not be again stated here, we are of opinion that section 1291 is not in conflict with that Constitution.

Since this writ of error was awarded, the Supreme Court of the United States, in the case of W. U. Tel. Co. v. James, reported in 162 U. S. 650 (a case arising on similar provisions in the statutes of the State of Georgia), held such provisions as to interstate messages to be a reasonable exercise of the police power of the State, and not in conflict with the commerce clause of the Federal

Telegraph Co. v. Powell.

Constitution, in the absence of congressional legislation upon the subject.

It is claimed by the defendant in error that the decisions of this court upon section 1292, and the decision of the Supreme Court of the United States in the James case, referred to above, upon a statute containing provisions similar to sections 1291 and 1292, have settled the validity of these sections, and that this case no longer involves a constitutional question, and for that reason this writ of error ought to be dismissed as improvidently awarded, without considering the other errors assigned in the case, because the amount involved in the case is less than $500. This contention cannot be sustained. When this writ of error was awarded, section 1291 had not been held by this court to be constitutional, nor had the decision in the James case been made by the Supreme Court of the United States, holding such legislation by the State to be a valid exercise of their police power. Under the circumstances surrounding this case, 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 ground provided in the Constitution and laws, it has jurisdiction of the case for all purposes, although the amount involved is less than $500. W. U. Tel. Co. v. Bright, 90 Va. 778, 779.

The next assignment of error is that the declaration, even if sections 1291 and 1292 of the Code be held valid, does not state a good cause of action, and that the demurrer to each count thereof should have have been sustained.

It is material in an action upon a penal statute, where the statute does not authorize the plaintiff to declare generally, that the offense or act charged to have been committed or omitted by the defendant should appear to have been within the provisions of the statute, and that all

Telegraph Co. v. Powell.

the circumstances necessary to support the action should be stated in the declaration. 1 Chit. Pl. 386 (side pages 356, 357); 4 Minor, Inst. (3rd ed.) 705; 3 Rob. Prac. (new) 612, etc.

The first count of the declaration does, we think, state a good cause of action. As to it the demurrer was properly overruled.

The second count, however, is fatally defective, and the demurrer to it should have been sustained.

The language of the statute (section 1292 of the Code) on which that count is based provides that:

It shall be the duty of every telegraph or telephone company upon the arrival of a dispatch at the point to which it is to be transmitted by said company, to deliver it promptly to the person to whom it is addressed, where the regulations of the company require such delivery, or to forward it promptly as directed, when the same is to be forwarded. For every failure to deliver or forward a dispatch as promptly as practicable, the company shall forfeit one hundred dollars to the person sending the dispatch or to the person to whom it was addressed.

There is no averment that the dispatch in question ever arrived in Richmond, the point to which it was to be transmitted. Without the averment and proof of that fact, there could be no recovery by the plaintiff upon that count. Neither was there any express averment that the regulations of the company required the delivery of such message at the number and street designated. Perhaps, as is contended by the counsel of the plaintiff, the aver ment that it was the duty of the company to deliver the message at 1107 Taylor street, Richmond, Va., may be considered as substantially averring that the regulations of the company required such delivery, but this is by no means clear in an action on a penal statute. Be that as it may, the second count is clearly sufficient for the firstnamed defect. For this error the judgment of the trial court will have to be reversed, unless it appears from the

Telegraph Co. v. Powell.

record that no injury could or did result to the defendant therefrom.

The record does not show that the defendant in any way restricted its general liability for the service which it undertook to render, and, in the absence of such a contract, it cannot rely upon the conditions of the message blank upon which were written the message delivered to the telegraph company for transmission. The plaintiff did not sign that blank, nor did he authorize any one else to do so for him.

The facts certified show that the message sent from Matthews Court House to Richmond, Va., was transmitted over the line of the Tidewater Telephone Company, as well as over the line of the defendant company, and that the mistake in the address which was made in its transmission occurred before it was delivered for transmission to the defendant company. There is nothing in the record to show that the defendant company did not transmit the message as received by it faithfully and impartially, and as promptly as practicable, to Richmond, the point to which it was to be transmitted. The plaintiff having failed to prove the case made in the first count in the declaration, and the second count not being sufficient, as we have seen, to sustain a recovery, the judgment of the lower court must be reversed, the demurrer to the second count of the declaration sustained, and the cause remanded to the lower court, with leave to the plaintiff to amend his declaration if he be so advised.

Telegraph Co. v. James.

WESTERN UNION TELEGRAPH COMPANY V. JAMES.

United States Supreme Court, May 4, 1896.

(162 U. S. 650.)

GEORGIA TELEGRAPH STATUTE-CONSTITUTIONAL LAW.

The statute of the State of Georgia, imposing a penalty upon telegraph companies for failure to transmit and deliver telegrams with impartiality, good faith and due diligence, on payment of the usual charges, was within the police power of the State to enact, in relation to messages from points outside to points within that State, and did not infringe the interstate commerce provisions of the Federal Constitution. Cases of this series cited in opinion, appearing in bold faced type: Pensacola Tel. Co. v. W. U. Tel. Co., vol. 1, p. 250; Tel. Co. v. Texas, vol. 1, p. 373; W. U. Tel. Co. v. Pendleton, vol. 2, p. 50; Primrose v. W. U. Tel. Co., vol. 5, p. 809.

FACTS stated in opinion.

John F. Dillon (with whom were George H. Fearons and Rush Taggart on the brief), for plaintiff in error.

No appearance for defendant in error.

Mr. Justice РECKHAM delivered the opinion of the court: This action was brought by the defendant in error against the telegraph company to recover the amount of a penalty which the plaintiff below alleged he had sustained by reason of the failure of the company to promptly deliver a telegraphic dispatch directed to plaintiff at his residence in Blakely, in the State of Georgia.

The statute under which the action was brought was passed by the Legislature of the above named State, October 22, 1887, and reads as follows: