Western Union Tel. Co. v. Brown

• Decision Date: 15 September 1886
• Citation: 8 N.E. 171,108 Ind. 538
• Parties: Western Union Tel. Co. v. Brown.
• Court: Indiana Supreme Court

108 Ind. 538

8 N.E. 171

Western Union Tel. Co.

v.Brown.¹

Supreme Court of Indiana.

September 15, 1886.

Appeal from Vigo circuit court.

McDonald, Butler & Mason, for appellant. Stimson & Stimson, for appellee.

Zollars, J.

Appellee was awarded judgment below against appellant for the statutory penalty as provided by section 4176, Rev. St. 1881, being section 1 of an act passed in 1852, for a failure to transmit a message in proper time.

Appellant's counsel contend that the act of 1885 (Acts 1885, p. 151) by implication repealed the above section of the act of 1852, and that that repeal took away all right to the penalty, although a penalty in a like amount is provided by the act of 1885 for a violation of its provisions.

Section 4176, supra, 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 the same with impartiality and good faith, and in the order of time in which they are received, under penalty, in case of failure to transmit, or if postponed out of such order, of one hundred dollars, to be recovered by the person whose dispatch is neglected or postponed: provided, however, that arrangements may be made with the publishers of newspapers for the transmission of intelligence of general and public interest out of its order, and that communications for and from offices of justice shall take precedence of all others.”

The act of 1885 is as follows:

“An act prescribing certain duties of telegraph and telephone companies, prohibiting discrimination between parties, providing penalties therefor, and declaring an emergency.

Section 1. Be it enacted, that every telegraph company with a line of wires wholly or partly within this state, and engaged in doing a general telegraphic business, shall, during the usual office hours, receive dispatches, whether from any other telegraph lines or other companies or individuals, and shall, upon the usual terms, transmit the same with impartiality, and with good faith, and in the order of time in which they are received, and shall in no manner discriminate in rates charged or words or figures charged for, or manner or conditions of service between any of its patrons, but shall serve individuals, corporations, and other telegraphic companies with impartiality: provided, however, that arrangements may be made with the publishers of newspapers for transmission of intelligence of general and public interest out of its order, and that communications for and from officers of justice shall take precedence of all others. * * *”

“Sec. 3. Any person or company violating any of the provisions of this act shall be liable to any party aggrieved, in a penalty of one hundred dollars for each offense, to be recovered in a civil action in any court of competent jurisdiction: provided, nothing in this act shall be construed to take away or abridge the right of such aggrieved party to appeal to a court of equity to prevent such violations or discriminations by injunction or otherwise.”

In our judgment, this later act operated as a repeal of the above section 4176. The title is comprehensive, and clearly indicates an intention on the part of the legislature to revise the whole subject of penalties against telegraph companies for a failure to transmit messages promptly, and with impartiality. The act also covers the whole subject-matter; is different and more comprehensive in its terms than section 4176; contains provisions not found in that section, and that are not reconcilable therewith. When such is the case, the later act repeals the former upon the same subject. State v. Christman, 67 Ind. 328, and cases there cited; Lindsay v. Lindsay, 47 Ind. 289;State v. Horsey, 14 Ind. 185;De Pauw v. City of New Albany, 22 Ind. 204;Coghill v. State, 37 Ind. 111;Dowdell v. State, 58 Ind. 333;Hayes v. State, 55 Ind. 99;Wright v. Wright, 97 Ind. 444;State v. Board Com'rs, etc., 104 Ind. 123; S. C. 3 N. E. Rep. 811; Hadley v. Musselman, 104 Ind. 459; S. C. 3 N. E. Rep. 122.

Section 4176 required that messages should be transmitted promptly and with impartiality, whether received from other telegraph companies or from individuals, but the penalty was only for a failure to transmit the message or the postponing of it out of its order. It also provided that the penalty might be recovered by the person whose dispatch was neglected or postponed. The act of 1885 provides that messages shall be transmitted promptly and with impartiality, whether received from other telegraphic lines or other companies, or from individuals, and that the company “ shall in no manner discriminate in rates charged or words or figures charged for, or manner or condition of service between any of its patrons.” It further provides that any person or company violating any of the provisions of the act shall be liable to any party aggrieved in a penalty of $100 for each offense, etc. The portions above italicized show the difference between the two acts.

In the act of 1852 (section 4176, supra) the penalty, as we have seen, is alone for the failure or delay in the transmission of the message. In the act of 1885 the penalty may be recovered also for any forbidden discrimination. The act of 1852, (section 4176, supra,) as interpreted by this court, gave a right of action for the penalty to the sender of the dispatch only. W. U. Tel. Co. v. Pendleton, 95 Ind. 12;W. U. Tel. Co. v. Reed, 96 Ind. 195;W. U. Tel. Co. v. Kinney, 7 N. E. Rep. 191.

Whether or not the act of 1885, by the use of the term “party aggrieved,” extends the right to the penalty to any one except the sender of the dispatch, is a question we need not here decide.

The message which gave rise to this action was delivered to the company on the second day of December, 1883. The action was commenced in December, 1884, and tried in July, 1885. It will thus be seen that the action is to enforce a penalty incurred, if at all, under the above section 4176, and that the action was pending when the act of 1885 took effect, on the eighth day of April, 1885. There is no vested right in a penalty. The general rule is that an action cannot be maintained to recover a penalty after the act giving it is repealed, unless it be saved by the repealing act. Thompson v. Bassett, 5 Ind. 535. There is no such saving clause in the act of 1885. It does not follow, however, that appellee's right of action for the penalty was lost with the repeal of section 4176. In 1877 an act was passed, the first section of which, among other things, provided as follows: “And the repeal of a statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.” Rev. St. 1881, § 248. This statute clearly...