Southern Bell Tel. & Tel. Co. v. D'alemberte

• Decision Date: 26 January 1897
• Parties: SOUTHERN BELL TELEPHONE & TELEGRAPH CO. v. D'ALEMBERTE.
• Court: Florida Supreme Court

21 So. 570

39 Fla. 25

SOUTHERN BELL TELEPHONE & TELEGRAPH CO. v. D'ALEMBERTE.

Florida Supreme Court

January 26, 1897

Error to circuit court. Escambla county; William D. Barnes, Judge.

Action by the Southern Bell Telephone & Telegraph Company against A H. D'Alemberte for damages for compelling payment of an illegal license tax. From a judgment for defendant, plaintiff brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. The office of a proviso is to restrain the enacting clause; to except something which would otherwise be within it, or in some manner to modify it; and, where it follows and restricts an enacting clause general in its scope and language, it is to be construed strictly, and limited to objects fairly within its terms.

2. Where a telephone plant consists of separate wires and instruments for the use of subscribers, all connecting with each other by means of a call wire common to all at a central office, and the sum of the length of all its wires thus in use exceeds 25 miles, the company operating such plant is subject to a license tax of $100, under the sixteenth subdivision of section 9, c. 4010, Acts 1891, although the sum of the distances covered by the poles supporting its wires is less than 25 miles.

3. Where a word used in a statute has both a popular and a technical meaning, the court will give it effect according to its popular signification, if it was so used by the legislature; and other parts of the statute may be referred to in determining the sense in which it was used.

4. Plaintiff's right of recovery is confined to the cause of action alleged in his declaration. If he fails upon such grounds, he cannot be permitted to recover on any other not alleged.

COUNSEL

Maxwell & Maxwell and John E. Hartridge, for plaintiff in error.

John C. Avery, for defendant in error.

On August 25, 1892, plaintiff in error brought suit against defendant in error in the circuit court of Escambia county, and on September 5th filed its declaration alleging that it was a corporation engaged in the telephone business and had for several years owned and operated a telephone plant in the provisional municipality of Pensacola, in said county, consisting of the furniture and apparatus at its central office in said city, and the instruments at the house of each subscriber, and of a system of poles and wires connecting the subscribers with the central office, and a call wire common to all, and connecting all of the subscribers and the central office; that in many parts of the plant a number of wires are strung or suspended on a single line of poles, each wire connecting a different subscriber at a different point with the central office; that the word 'line,' as used in the telephone business, has in such business a clearly defined, well known, established, and definite meaning, viz. a line of poles and the wires suspended thereon, without regard to the number of those wires; that the plaintiff's plant in Pensacola embraces only 23 miles of line as thus defined, although the length of the wire used thereon is much greater, viz. about 70 miles that defendant was then, and for several years past had been, the collector of revenue for said county, and ex officio collector of revenue for said provisional municipality, duly elected, qualified, and authorized to act as such officer; that on October 1, 1891, plaintiff endeavored to procure and duly applied for a license from the state, county, and municipality of Pensacola to operate its said telephone plant, having a line of less than 25 miles in length, and tendered to defendant, as collector, the amount of the license taxes and fees therefor, as fixed by the state, county, and municipality, respectively, viz. the sum of $50.50, and demanded that the licenses be issued to it; that defendant refused to accept the sum tendered, or to issue the licenses, demanding of plaintiff that it procure licenses for the operation of a telephone line of more than 25 miles in length, and upon its refusal to do so the defendant procured the plaintiff's local manager and agent to be repeatedly arrested upon the criminal charge of doing business in operating a telephone line without a license therefor, instituting a new prosecution upon such criminal charge each day, and furthermore levied upon the apparatus and property of plaintiff, of great value, which property was indispensable to plaintiff in the operation of its plant and business, and was proceeding to sell the same for the payment of the license tax for doing business with a telephone line of more than 25 miles in length, when the plaintiff, in order to save its agent from further prosecution, and prevent the loss of, and recover, its property levied upon, after first protesting against the payment of the license tax demanded by defendant as being illegal, paid the same in the sum of $200, and the further sum of $5 as the cost of levy, to the defendant; that so much thereof as is in excess of the sum of $50, for a line less than 25 miles in length, was wrongfully and illegally demanded and received by defendant of plaintiff, to plaintiff's damage of $300.

Defendant filed a demurrer to this declaration on October 5, 1892, upon the grounds: (1) It does not appear by the said declaration that the term 'line,' as used in the telephone business, is the same as when used in the law of the state of Florida, imposing said license tax. (2) It does not appear by the said declaration that there are less than 25 miles of telephone line, within the meaning of the law, within the city of Pensacola. (3) It does not appear by the said declaration that there are less than 25 miles of telephone line in the county of Escambia, within the meaning of the law. (4) It appears by the allegations in the said declaration that plaintiff's telephone lines within the city of Pensacola are more than 25 miles in length. (5) The said declaration is otherwise bad in substance, and insufficient in the law.

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