Baltimore & Ohio Tel. Co. v. Lovejoy

• Decision Date: 12 February 1887
• Citation: 3 S.W. 183
• Parties: BALTIMORE & OHIO TEL. CO. <I>v.</I> LOVEJOY.
• Court: Arkansas Supreme Court

3 S.W. 183

BALTIMORE & OHIO TEL. CO.v.

LOVEJOY.

Supreme Court of Arkansas.

February 12, 1887.

Appeal from circuit court, Craighead county.

J. C. Hawthorne, for appellant. E. F. Brown, for appellee.

SMITH, J.

Lovejoy recovered judgment against the telegraph company for the penalty of $100 given by section 6419 of Mansfield's Digest for non-delivery of the message. It is now objected that the justice of the peace before whom the action was begun, had no jurisdiction of the subject-matter. The civil jurisdiction of justices is confined to three classes of cases: Actions arising on contract, actions of replevin, and actions for injuries to personal property. Const. 1874, art. 7, § 40. Unless, therefore, this is an action ex contractu, the objection must be sustained. Now, a relation of contract does exist between the sender of a message and the telegraph company. But the action to recover the statutory penalty does not arise on the contract to transmit, but on the statute which imposes the penalty for the neglect of the duty which the company owes to the public. This point was determined in Bagley v. Shoppach, 43 Ark. 375, which was an action against an officer to enforce a forfeiture for exacting excessive fees.

We are aware that in Katsenstein v. Railroad Co., 84 N. C. 688, the supreme court of North Carolina reached an opposite conclusion. In that state the jurisdiction of justices of the peace in civil cases is limited to actions upon contracts; but it was held that an action to recover a penalty under a statute was an action upon a contract. The court seems to have been led to this conclusion by the consideration that, under the old system of pleadings, debt was the appropriate form of action to recover a penalty, and that debt was classified as an action ex contractu. But debt was not necessarily founded upon contract. It lay wherever the sum demanded was certain, without regard to the manner in which the obligation was incurred or is evidenced; as, for instance, on the judgment of a court of record. Hence debt for a statutory penalty, while it was in form ex contractu, was in reality founded upon a tort. Chaffee v. U. S., 18 Wall. 538; Stockwell v. U. S., 13 Wall. 542.

In Little Rock & Ft. S. Tel. Co. v. Davis, 41 Ark. 79, a judgment similar to the one we are now considering was affirmed; but the question of jurisdiction was not raised, and escaped the attention of the court.

The judgment is vacated, and the cause dismissed.