Postal Telegraph Cable Company v. Shannon

• Decision Date: 11 November 1907
• Citation: 91 Miss. 476,44 So. 809
• Court: Mississippi Supreme Court
• Parties: POSTAL TELEGRAPH CABLE COMPANY v. WILLIAM P. SHANNON

44 So. 809

91 Miss. 476

POSTAL TELEGRAPH CABLE COMPANY v. WILLIAM P. SHANNON

Supreme Court of Mississippi

November 11, 1907

October 1907

FROM the circuit court of, first district, Hinds county, HON ROBERT L. BULLARD, Judge.

Shannon appellee, was plaintiff in the court below, and the Telegraph Company, appellant, defendant there. From a judgment in plaintiff's favor for the full sum demanded, defendant appealed to the supreme court.

Plaintiff sued defendant before a justice of the peace for $ 90 claiming $ 65 as actual damages, and demanding $ 25 as a statutory penalty, for defendant's failure to transmit and deliver within a reasonable time a telegram, delivered by one Sturdivant at Glendora, Mississippi, December 11, 1906 to the telegraph company, for transmission to plaintiff at Jackson, Mississippi. Plaintiff obtained judgment in the justice's court, and defendant appealed to the circuit court. Plaintiff claimed the $ 25 penalty on the idea that Code 1892, § 4326 and amendments thereto, had been brought forward and made part of the Code 1906.

The Legislature which adopted the Code of 1906, as shown by its journals, passed and adopted several Code sections which were in some unknown way omitted from the enrolled bills, filed in office of the secretary of state. Among the missing sections was one numbered § 4879a, providing a $ 25 statutory penalty to be recovered of a telegraph company for failure to promptly deliver messages. The commissioners having charge of the publication of the Code inserted the missing sections therein, as if they were not omitted from the enrolled bill, calling attention by the use of a foot note, however to the omission.

Plaintiff affirmed that the statutory penalty section was the law of the state, defendant denied that it had any validity.

Reversed and remanded.

Lowry & Lowry, for appellant.

The judgment of the court below for $ 90 embraces $ 65 claimed by appellee as compensatory damages, and $ 25 as alleged statutory penalty for appellant's failure to transmit and deliver promptly a telegram from one Sturdivant, at Glendora, Miss. to appellee, in Jackson, Mississippi. Appellant's declaration states that the telegram was delivered to the telegraph company on the night of December 11, 1906.

A recovery cannot be had against a telegraph company for a penalty of $ 25 or any other sum for failure to deliver and transmit promptly a telegram on the date mentioned.

Code 1892, § 4326, imposing a penalty on telegraph companies for unreasonable delay in the delivery of messages, was a general law, and, not being contained in the enrolled bill of the Code of 1906, was repealed. Code 1906, § 13. The section expressly repeals all laws of a general nature not brought forward and embodied in the new code.

The commissioners who supervised the publication of the Code of 1906 may have been rendering the state a service, and no doubt they thought they were, by publishing therein sundry features of old statutes not brought forward in the new, but they were not making laws; they had no power to do so.

V. Otis Robertson, for appellee.

The appellant company offered no evidence in the court below to the effect that the section in question, Code 1906, § 4879a, was not legally enacted by the Legislature. Accordingly it is not incumbent on this court to pass upon the question whether or not the section mentioned is law. It has been repeatedly held that an appellate court will not look behind the printed code of laws, or hear evidence to impeach its validity for the first time when the case is before the appellate court. Bedard v. Hall, 44 Ill. 91; Grobe v. Cushman, 45 Ill. 119; State v. Brown, 33 S.C. 151; Burt v. Winona, etc., R. R. Co., 31 Minn. 472; Hoppell v. Brethaner, 70 Ill. 167; State v. Rico, 64 Mich. 385.

The memorandum prefacing the Code does not constitute evidence, and the obligation rests upon the appellant to show that the Code section in question had not been enrolled.

Even if the section in question, under which we contend appellant is liable, is not a part of the Code of 1906, it was, at the time here in consideration, the law, being part of the Code of 1892 unrepealed.

Section 4 of the "Act of Adoption," referring to the Code of 1906, contains the following language: "Before said Code is finally printed, a proof thereof shall be submitted to the secretary of state, who shall carefully read and compare the same with the official code in his office, and shall correct any errors found in said proof." Now, the question arises: "Did the secretary of state compare the proof before or after the memorandum prefacing the Code was perpared? If before, why did he not exclude the sections referred to? If after, by what authority shall any person place before an unsuspecting public certain s...