Western Union Telegraph Company v. Mississippi Railroad Commission

• Decision Date: 18 May 1896
• Citation: Western Union Telegraph Company v. Mississippi Railroad Commission, 74 Miss. 80, 21 So. 15 (Miss. 1896)
• Court: Mississippi Supreme Court
• Parties: WESTERN UNION TELEGRAPH COMPANY v. MISSISSIPPI RAILROAD COMMISSION

21 So. 15

74 Miss. 80

WESTERN UNION TELEGRAPH COMPANY v. MISSISSIPPI RAILROAD COMMISSION

Supreme Court of Mississippi

May 18, 1896

March 1896

FROM the circuit court of Jefferson county HON. WM. P. CASSEDY Judge.

This suit was instituted by the Mississippi Railroad Commission against the Western Union Telegraph Company for the penalty provided by § 4329, code 1892, for a failure to comply with § 4328 of said code. The code sections read thus:

"4328. Telegraph and express companies to maintain necessary offices, etc.--Every telegraph and express company shall establish and maintain offices for the transaction of business with the public, in their respective capacities as common carriers, at each city, town and village convenient to its routes, if, in the opinion of the railroad commission the public convenience and necessities require it; and they shall not discontinue an office, once established, without the consent of the commission, which has authority to require such companies to establish and maintain offices, and to require telegraph companies to keep night operators at every place where, in its judgment, the business and public convenience justify and require it.

"4329. Penalty on carriers for violating the law.--If any railroad or other common carrier shall violate any of the provisions of this chapter, or shall fail to do and perform any duty imposed by law, or shall fail to comply with any lawful order of the commission, or to conform to any of its reasonable rules and regulations, or shall demand or receive a greater sum for the transportation and handling of any passenger or freight than authorized by law or the commission, it shall be liable to a penalty of five hundred dollars for every such failure or overcharge not otherwise punished, to be recovered by action in the name of the commission in any county where such failure may occur or overcharge be made; but in trials of cases brought for a violation of any tariff or charges as fixed by the commission, it may be shown in defense that such tariff, so fixed, was unreasonable and unjust to the carrier."

The constitution of the state provides: ''Section 195. Express, telegraph, telephone, and sleeping car companies are declared common carriers in their respective lines of business, and subject to liability as such."

Acting under these provisions of law, the plaintiff began its suit and charged in its declaration that the telegraph company having previously established an office at Fayette, in Jefferson county, applied to the commission for permission to abandon the office, which request the commission refused, because, in its opinion, public convenience and necessity required the maintenance of the office; that after this refusal of consent, the telegraph company, without authority, abandoned the office.

The defendant's second plea set up that it was a New York corporation, that it was not doing business in Mississippi by reason of any grant, right, privilege, franchise, or immunity obtained from this state; that it obtained its right to erect its lines along the post roads of the state under an act of congress, and that the office at Fayette was on such a road, and was established before the creation of the railroad commission, and before the enactment of the law under which the suit was brought, and that the company was engaged in interstate commerce. To this plea a demurrer was interposed, and it was sustained.

The defendant's third and fourth pleas set up the matters averred in the second plea, and, in addition, that the receipts and business at the Fayette office were insufficient to pay the expense of keeping it open for business, and that if maintained it would necessarily be at a loss to the company. The court below sustained demurrers to these pleas. A trial was had on the first plea, which was a general traverse of the declaration, and a judgment obtained for the plaintiff. The defendant appealed.

Judgment reversed.

Mayes & Harris, for appellant.

If the conclusions of the railroad commission under the statute, § 4328, code 1892, are subject to judicial inquiry, the pleas held bad upon demurrer in the court below set up facts which amply justified the appellant in closing its office at Fayette. But if the statute be construed as leaving the question absolutely subject to the will of the commission, then it is unconstitutional and utterly void.

The statute, so far as a very exhaustive research by us has disclosed, is unique--is sui generis; it stands alone, without precedent. It is not even in harmony with other sections of the chapter relating to the supervision of common carriers, of which it forms a part. The section should not be construed as having a retroactive operation; it should not be applied to offices which were in existence at the time of its enactment. To construe the section as so applying, and as leaving the whole matter in the discretion of the commission, renders it utterly indefensible, either by precedent or on principle, and makes it violative of the fundamental principles and most cherished provisions of both the state and federal constitutions. It arbitrarily appropriates the property of existing telegraph companies to public use without any pretense at compensation; it deprives the companies of property without due process of law; and it denies the companies the equal protection of the law. It is in derogation of common right, in that it deprives the companies of the right and freedom accorded to every other person--that of pursuing or abandoning a lawful occupation at will.

So construed and applied, when fully analyzed and reduced to its real value, it must be treated as if written thus: "A telegraph company shall not discontinue an office once established." The words, "without the consent of the commission, " adds nothing, and should be treated as superfluous, because there is no provision by which the consent of the commission can be obtained. A telegraph company is as defenseless as if the words were omitted. The difference is immaterial between saying, "You shall not dispose of your property, " on the one hand, and averring on the other, "You shall not dispose of your property without the consent of A, " when no provision is made by which that consent can be obtained. In either case, one of the most valuable and essential attributes of ownership is taken from you absolutely; namely, the right of disposition. It is perfectly obvious that the value to the owner under such restrictions would not only be greatly diminished, but, in many instances, wholly destroyed, and, in some instances, no doubt, the very ownership would become an intolerable burden. The elementary text-books, treating of the right of the state to impose burdens upon the owners of property, tell us that all ownership is subject to certain qualifications, and that the state has the right to take private property for public use in certain instances: (1) By taxation, (2) by the exercise of the right of eminent domain, (3) public necessity (salus populi suprema lex--a branch of police power), and (4) in the exercise of what is called the police power.

Manifestly, the provision under discussion cannot find its defense in the taxing power. It cannot be defended as the exercise of the right of eminent domain, because no pretense of compensation or hearing is provided for or contemplated. It cannot fall under the head of public necessity. That right is based upon the maxim, salus populi suprema lex, and justifies the destruction or appropriation of private property to public use in cases of emergency--as, for instance, in time of war, or when property is destroyed to prevent the spread of fire or pestilence. The statute cannot be defended upon this ground; and, if defensible at all, it must be as an exercise of the other branch of police power, and we cannot find any recognized principle which gives support to the statute thereunder.

The basic principle upon which all legislation on the subject of regulating business concerns rests (and the judicial decisions trace it to this source), is to be found in the following extract from the treatise De Portibus Maris, by Lord Hale: "A man, for his own private advantage, may, in a port or town, set up a wharf or crane, and may take what rates he and his customers can agree upon for craneage, wharfage, etc., for he doth no more than is lawful for any man--namely, make the most of his own. If the king or subject have a public wharf unto which all persons to that port must go to lade and unlade their goods, as for the purpose, because they are the only wharfs licensed by the king, or because there is no other wharf in that port, as it may fall out where the port is newly erected; in that case there cannot be taken arbitrary and excessive duties for craneage, wharfage, etc. Neither can they be enhanced to an immoderate rate; but the duties must be reasonable and moderate, though settled by the king's license or charges, for now the wharf, crane or other conveniences are affected with a public interest and they cease to be juris privati only." This clause is also quoted in the opinion of the court in Munn v. Illinois, reported in 94 U.S. 113, and is cited with approval as announcing the principle on which the decisions are based.

Now, we see, in analyzing this statement of Lord Hale, that the fact that the business is affected with a public interest has the effect of limiting the extent to which the owner can charge and prevents the exaction of excessive duties or immoderate rates. It is nowhere intimated in this celebrated passage that because the crane or wharf is affected with the public interest, the state would have a right to confiscate the wharf or crane, or that, because it was affected with the...