Leavell v. Western Union Tel. Co

• Decision Date: 02 April 1895
• Court: North Carolina Supreme Court
• Parties: LEAVELL . v. WESTERN UNION TEL. CO.

21 S.E. 391

116 N.C. 211

LEAVELL .

v.WESTERN UNION TEL. CO.

Supreme Court of North Carolina.

April 2, 1895.

Telegraph Companies—Illegal, Rates—Illegal Discrimination.

1. Where a telegraph company has a continuous line between two points in the state, it cannot defend an action for violation of the rate prescribed by the commissioners for the transmission of a message sent over the lines of one company, on the ground that the message was in fact sent over the lines of two companies. Railroad Com'rs v. W. U. Tel. Co., 18 S. E. 389, 113 N. C. 213, affirmed.

2. Nor is it any defense that the part of the defendant's line between the points where the message was sent by the other company was fully occupied by the work it had contracted to do for a railroad company, as the contract with the railroad, giving it a preference to the exclusion of others, is an illegal discrimination.

Appeal from board of railroad commission.

Action upon relation of R. E. Leavell against the Western Union Telegraph Company for violation of the rate prescribed by the railroad commission of North Carolina From a judgment of the railroad commission against the defendant, defendant appeals. Affirmed.

Robert Stiles, for appellant.

The Attorney General, for appellee.

CLARK, J. In Atlantic Exp. Co. v. Wilmington & W. R. Co., 111 N. C. 463, 16 S. E. 393, this court affirmed the constitutionality of the act (chapter 320, Acts 1891) establishing the railroad and telegraph commission. In Mayo v. Telegraph Co., 112 N. C. 343, 16 S. E. 1006, it sustained the power of such commission, under section 26 of said act, to establish rates for telegraph companies. In Railroad Com'rs v. Western Union Tel. Co. (Albea's Case) 113 N. C. 213, 18 S. E. 389, the court held that telegraphic messages transmitted by a company from and to points in this state, although traversing another state in the route, do not constitute interstate commerce, and are subject to the tariff regulation of the commission. In this it followed the unanimous opinion of the supreme court of the United States, delivered by Fuller, C. J., in Lehigh Valley R. Co. v. Pennsylvania, 145 U. S. 192, 12 Sup. Ct 806. To the same purport, Campbell v. Railroad Co., 86 Iowa, 587, 53 N. W. 351. In the present case the commission find as a fact that "the defendant has a continuous line by which messages may be transmitted from Wilson to Edenton and other adjacent points in North Carolina, but this line traverses a part of the state of Virginia, passing through the city of Norfolk"; and it properly holds, upon the evidence, "that thetelegraph office at Edenton is under the control of the defendant, and the operator, though employed by the railroad company, is the agent and operator of the defendant." It necessarily follows from this state of facts that, as the defendant could have sent the message the whole distance over its own line, it cannot be heard to say that it did not do what it ought to have done, and thus collect 50 cents for the message, instead of 25, as allowed by the commission tariff. The defense set up, that in fact it only carried the message to Norfolk, and then paid another company to forward it to...