W.U. Tel. Co. v. Taylor

• Decision Date: 24 February 1890
• Citation: 11 S.E. 396,84 Ga. 408
• Parties: WESTERN UNION TEL. CO. v. TAYLOR.
• Court: Georgia Supreme Court

11 S.E. 396

84 Ga. 408

WESTERN UNION TEL. CO. v. TAYLOR.

Supreme Court of Georgia

February 24, 1890

Syllabus by the Court.

1. The jurisdiction of justices' courts being limited by the constitution to "civil cases arising ex contractu, and cases of injuries or damages to personal property," they cannot be invested by the legislature with jurisdiction over actions to recover a penalty imposed by statute upon telegraph companies for undue delay in the transmission and delivery of messages. The penalty is for the wrongful violation of a public duty, and neither in whole nor in part for a mere breach of contract.

2. A suit in a court having no jurisdiction of the subject-matter resulting in a judgment for the defendant, is a nullity.

3. Even payment by the company of the expenses of the plaintiff incurred by reason of non delivery of the message would not unless received in full settlement or by way of accord and satisfaction, bar an action for the penalty.

4. The charge of the court was substantially correct, and if, in some respects, inaccurate, there was no material error.

5. The evidence warranted the verdict.

Error from city court of Macon; HARRIS, Judge.

Guerry & Hall, for plaintiff in error.

M. G Bayne, for defendant in error.

BLECKLEY C.J.

The action was by Mrs. Taylor against the telegraph company to recover a penalty of $100 for failure to deliver to her a telegram sent from Macon to Brunswick by Bayne, and addressed to her. It was founded on the act of 1887, (Pamph. Laws 111,) which reads as follows: "Every electric telegraph company with a line of wires wholly or partly in this state, and engaged in telegraphing for the public, shall, during the usual office hours, receive dispatches, whether from other telegraphic lines or from individuals; and on payment or tender of the usual charge, according to the regulations of such company, shall transmit and deliver the same with impartiality and good faith, and with due diligence, under penalty of one hundred dollars, which penalty may be recovered by a suit in a justice or other court having jurisdiction thereof, by either the sender of the dispatch or the person to whom sent or directed, whichever may first sue: provided, that nothing herein shall be construed as impairing or in any way modifying the right of any person to recover damages for any such breach of contract or duty by any telegraph company; and said penalty and said damages may, if the party so elect, be recovered in the same suit. Such companies shall deliver all dispatches to the persons to whom the same are addressed, or to their agents, on payment of any charges due for the same: provided, such persons or agents reside within one mile of the telegraphic station, or within the city or town in which such station is. In all cases the liability of said companies for messages in cipher, in whole or in part, shall be the same as though the same were not in cipher." The company pleaded specially in bar of the action that Bayne, the sender of the message, had sued, prior to the filling of this suit, for the same penalty in a justice's court, and that a recovery was had by the company. The plea alleged that the justice's court was a court of competent jurisdiction, but upon motion of plaintiff's counsel the plea was stricken, on the ground that the justice's court had no jurisdiction. The jury having found for the plaintiff, the company moved for a new trial because of this ruling, and on various other grounds. This motion was overruled.

1. The general scheme of the constitution in conferring jurisdiction upon the inferior courts, which it specifies, is to deal exhaustively with the subjects-matter which it mentions and enumerates. This scheme extends also, even as to the superior court, to means and modes of exercising jurisdiction, as, for instance, new trials and writs of certiorari. Pitts v. Carr, 61 Ga. 454; Maxwell v. Tumlin, 79 Ga. 570, 4 S.E. 858; Pope v. Jones, 79 Ga. 487, 4 S.E. 860. Doubtless the legislature might by statute confer additional jurisdiction on some of the courts and magistrates mentioned in the constitution, but to do so the material for such super added jurisdiction would have to be drawn from other subjects-matter; that is, from such as the constitution has not dealt with expressly in making distribution of judicial powers among the inferior courts, etc., which it enumerates. The act of 1887, above recited, is certainly a legislative attempt to clothe justices' courts with jurisdiction over actions for penalty, and whether the attempt can be held efficacious or not depends upon a right classification of such actions with reference to article 6, § 7, par. 2, (Code 1882, § 5153,) of the constitution of 1877. The paragraph reads as follows: "Justices of the peace shall have jurisdiction in all civil cases arising ex contractu, and in cases of injuries or damages to personal property, when the principal sum does not exceed one hundred dollars, and shall sit monthly at fixed times and places; but in all cases there may be an appeal to a jury in said court, or an appeal to the superior court, under such regulations as may be prescribed by law." The corresponding provision in the constitution of 1868 (Code 1873, § 5104) was as follows: "The justices of the peace shall have jurisdiction, except as hereinafter provided, in all civil cases where the principal sum claimed does not exceed one hundred dollars, and may sit at any time for the trial of such cases; but, in cases where the sum claimed is more than fifty dollars, there may be an appeal to the superior court, under such regulations as may be prescribed by law." It is manifest that the latter constitution intended to narrow the earlier one in respect to the jurisdiction of justices' courts over civil cases. Both constitutions fix the same limit as to amount, but in one there is no limit whatever as to the nature of the civil cases over which jurisdiction may be exercised, save where exclusive jurisdiction is conferred on some other court, while in the other the cases are such only as arise ex contractu or from torts to personal property. Though the legislature may, perhaps, confer at will jurisdiction upon justices' courts or justices of the peace touching some subjects-matter, the subject-matter of "civil cases," in so far as these courts or magistrates can take cognizance of the same, is dealt with exhaustively by the constitution. The legislature has no more power to invest them with jurisdiction over civil cases not arising ex contractu, or from torts to personal property, than over cases involving more than $100 principal, or those arising ex delicto from injuries to real property. It follows that, unless an action for a penalty is one arising ex contractu within the sense and meaning of the constitution, the justice's court which entertained and decided the suit brought by Bayne, the sender of the message, against the company, was without jurisdiction, for it is manifest that the suit was not for injury or damage to personal property.

2. The decisive question, then, is whether an action for the penalty imposed upon telegraph companies by the act of 1887 is one arising ex contractu. Had the expression been "civil cases in form ex contractu," there would have been no doubt as to its embracing actions for a penalty, for debt is a form of action ex contractu and that debt upon a statute for a penalty definite in amount was generally, if not always, maintainable, is quite certain. 1 Chit. Pl. 112, 371-375; Bullard v. Bell, 1 Mason, 299 But, though in form ex contractu, the action for a penalty was, and still is, founded upon a tort. 1 Chit. Pl. 45; Chaffee v. U.S. , 18 Wall. 516; Martin v. McNight, 1 Overt. 330. In McCoun v. Railroad Co., 50 N.Y. 176, which was a suit brought to recover a penalty or forfeiture under a statute to prevent extortion by railroad companies, ALLEN, J., said: "Upon the question actually decided by the court below, I am of the opinion that court erred in holding the summons to have been regularly issued under the first subdivision of section 129 of the Code. The actions within that subdivision must 'arise on contract, and be for the recovery of money only.' This action is for the recovery of money only, and in that respect is within the provisions of the subdivision, but is not upon contract. That term was used in its ordinary and proper sense. A contract is a drawing together of minds until they meet, and an agreement is made to do or not to do some particular thing. It may be express, or it may be implied or inferred from circumstances, and this implication is but the result of the ordinary and universal experience of mankind. If A. borrows money of B., the courts may imply a promise to repay the money, for the universal experience is that in such a case a promise is exacted and made. An implied promise or contract is but an express promise, proved by circumstantial evidence. It is quite distinct from that fiction by which a statute liability has been deemed sufficient to sustain an action of assumpsit, upon the ground that a party subjecting himself to the penalty or other liability imposed by statute has promised to pay it. That features does not suppose a contract, but simply a promise ...