Yancey v. Batesville Telephone Company

• Decision Date: 21 January 1907
• Citation: 99 S.W. 679,81 Ark. 486
• Parties: YANCEY v. BATESVILLE TELEPHONE COMPANY
• Court: Arkansas Supreme Court

99 S.W. 679

81 Ark. 486

YANCEY v. BATESVILLE TELEPHONE COMPANY

Supreme Court of Arkansas

January 21, 1907

Appeal from Independence Circuit Court; William L. Moose, Judge affirmed.

Action by J. C. Yancey against the Batesville Telephone Company and the Southwestern Telegraph & Telephone Company. A demurrer to the complaint was sustained. Plaintiff appealed. Reversed.

Reversed and remanded.

J. W. & M. House, for appellant.

1. The question presented is the construction of § 7948 Kirby's Digest, being section 11 of the act approved March 31, 1885. Appellee's contention that the penalty of $ 100 only attaches to the violation of the latter part of the section is based partly upon the punctuation of the act as it appears, in the printed act and the Digest. This would be in any event a narrow construction of the act, but, by reading the original enrolled bill on file in the office of the Secretary of State, it is seen that following the words "partiality" in the third line, and "in like situations" in the sixth line of the section, commas are used, instead of semi-colons, making it clear that appellee's interpretation is untenable. The duty prescribed by the section is one which is already required by the common law; and if no penalty is attached for a violation of this duty, it furnishes no remedy which did not exist before. If appellee's construction is true, the first part of the section is a nullity--confers no rights and requires no duty not already fully protected under the common law. 50 F. 677; 23 F. 539; 10 Am. St. Rep. 114; 48 Id. 729; 47 Id. 798; 15 Id. 893; 46 Id. 769; 52 Id. 404; 59 Id 167.

2. In this case the complaint alleges and shows that the defendant furnished facilities and telephone communication to other patrons, and refused to furnish the same to him under the same conditions and circumstances. This is a violation of the statute, and the demurrer was improperly sustained. 72 Ark. 478; 88 S.W. 834.

W. L. & D. D. Terry, for appellant; Wright & Reeder, McLauren & Wozencraft and Walter J. Terry, of counsel.

1. A limiting clause, or phrase, following several expressions to which it might apply, should be restricted to the last antecedent. Endlich's Interpretation of St. § 414.

It is a rule in the construction of statutes that in the first instance the grammatical sense of the words is to be adhered to. 53 F. 912. But courts must interpret statutes according to the ordinary and plain language used. 2 Daly, N. Y. 67; Endlich's Int. St. 11, 17 et seq.

Mere discrimination or inequality of prices was not actionable at common law, but only unjust discrimination or excessive or unreasonable charges. 28 Am. St. Rep. 142; 18 L. R. A. 221; 26 Am. Rep. 731; 16 Id. 579; 24 Ill.App. 322; 64 Ark. 274. Likewise, at common law, it is the privilege of a public carrier to charge less than a fair compensation to one person, or class of persons, and another can not justly complain so long as the terms to him are reasonable. 40 F. 183; 27 F. 532. For the same reason the extension of the courtesy of credit to one, and requiring cash of another, is not, in itself, an unlawful discrimination.

Compare Indiana Acts, 1885, p. 150; and for a history of the litigation giving rise to and growing out of this character of legislation, see 10 Am. St. Rep. 121; Id. 132, note; 23 F. 540; 47 F. 672; 50 F. 677; 66 Md. 399. From which it is seen that such legislation grew out of the efforts of rival telegraph and telephone companies to prevent unjust discriminations on the part of the Bell Telephone Company and its licensees in favor of themselves and of the Western Union Telegraph Company as against these rival companies; but these companies, being interested in both telegraphing and telephoning business, were interested in not inflicting penalties themselves; hence the penalty is directly attached to that particular clause of the section 11 which says: "Nor shall such company discriminate against any individual or company * * * by requiring as a condition for furnishing such facilities that they should not be used in the business of the applicant." * * * Note also that the promoters of this legislation obtained the repeal of § 6419, Mansf. Digest, permitting individuals to recover penalties against telegraph companies for the negligent transmittal or delivery of messages; and likewise a similar repeal in Indiana. 108 Ind. 539. These are matters proper to be considered in the interpretation of statutes. 57 F. 429; Endlich, Int. St. §§ 28, 29.

This is a penal statute, and both the statute and the complaint must be strictly construed. 72 Ill.App. 575; 76 Me. 412; 87 Mo. 280; 40 Mich. 288; 36 Conn. 78; 30 N.C. 188; 8 Tenn. 99; 53 Ark. 423; 50 Ark. 80; 56 Ark. 226; Id. 47; Black on Int. Laws, 282-3; 77 Cal. 404, 69 Ind. 298. To justify the court in awarding a penalty, appellant must bring his case within the strict letter of the law affixing the penalty. 64 Ark. 284. "A general averment of discrimination, but no statement of fact which shows any," is not sufficient. 40 F. 392.

The question as to what constitutes reasonable, proper and equal facilities necessary involves a consideration of the place, accommodations, terms and conditions at and under which facilities are sought, as compared with those where such interchange is conceded or afforded. 37 F. 623. The allegation that defendants "have discriminated and shown partiality against the plaintiff continuously each for the past twelve months," standing alone, is a mere conclusion of law on the part of the pleader. 38 Ark. 519; 64 Ark. 284.

2. Section 10 of the act, and not section 11 is the one that applies to long-distance messages. Under this section, discriminations would be the matter of price or promptness. 50 Ark. 78. As to meaning of "telephone exchange" see 105 F. 696.

3. The facts alleged in the complaint do not constitute the character of discrimination contemplated in either section 10 or 11 of the act. 139 U.S. 127; 48 Am. St. Rep. 738; 69 Ind. 199; 1 Blackford, 151; 72 Ill.App. 569; 30 N.C. 184; 45 Ark. 298; 76 Me. 412; 87 Mo. 280; 36 Conn. 78. A complainant, to recover for a penalty, must state the facts which show unlawful discrimination. "He must be held strictly to bring himself, by his pleadings, within the conditions of the statute. It must set forth every fact necessary to show that his case is within the statute." The special circumstances must be pleaded definitely. 7 Watts, 181; 28 N.C. 352; 40 Mich. 185; 38 Ark. 521; 68 Ark. 254.

4. The complaint does not state sufficient facts to constitute a cause of action for a penalty. Cases supra.

J. W. & M. House, for appellant in reply.

A penal statute must be construed as any other. The intent of the Legislture is the paramount question, and when that is ascertained it is the duty of the court to enforce it. "Penal statutes are not to be construed so as to work absurdity or defeat their purpose." 45 Ark. 391; 6 Wall. 395.

2. When the language of a statute or the intent of the Legislature is uncertain, punctuation may afford some indication of it, and sometimes, in doubtful cases, even decide it. Sutherland on Stat. Const. 232; Endlich, Stat. Const. § 33; 1 Abb. (U.S.), 196; 23 Fed. Cas. No. 16, 513, p. 144; 46 Ia. 673. The settled rule is that the punctuation of the original act as passed by the Legislature governs, instead of the punctuation of the printed copy, and that the printed act may be corrected by the enrolled act. 55 Vt. 174; 70 Ind. 331; Sutherland, Stat. Con. § 40; McLean, U.S. 480; 54 Miss. 378.

3. There is no good reason why the penalty should attach to the third clause of the section, and not to the others, because, without the penalty, the applicant could, under either clause, enforce his rights to the extent of obtaining equal facilities. To confine the penalty to the last clause would be class legislation. It is not intended as a limiting phrase, as contended by appellees. Endlich on Stat. Const. § 414, p. 482; Id. § 81; 70 Pa.St. 311; 2 Daly (N. Y.), 66; 15 Abb. Pr. (N. Y.), 432; 1 Black (U.S.), 55; 65 Pa.St. 311; Sutherland, Stat. Const. § 259, p. 340; Id. § 267, p. 350; Endlich, Stat. Const. § 381, p. 533; 100 Pa.St. 63. If a statute is valid, it is to have effect according to the purpose and intent of the lawmaker. The intent is the vital part. Sutherland on Stat. Const. 234; Id. 237, et seq.

OPINION

BATTLE, J.

The following is the complaint in this action:

"On this day comes the plaintiff, J. C. Yancey, and states that he is a resident of the city of Batesville, Independence County, Arkansas; that the defendants, the Batesville Telephone Company and the Southwestern Telegraph & Telephone Company, are corporations, each organized and created under the laws of the State of Arkansas; that the Batesville Telephone Company is engaged in operating a telephone exchange in the said city of Batesville, in said State, and in furnishing the citizens thereof with telephone connections through the central office of the exchange maintained by said defendants, so as to give the citizens of said city, who are subscribers for telephone instruments connected with said exchange, facilities for communicating with all other parties who are subscribers to said telephone and others; that they also maintain and operate a long-distance telephone exchange from said city of Batesville to divers points at a distance from said city of Batesville. This plaintiff further states that the defendant, the Southwestern Telegraph & Telephone Company, is engaged in operating a long-distance telephone exchange in the State of Arkansas, in Pulaski, Lonoke, White, Jackson, Independence and other counties in said State of Arkansas; that the defendants operated their respective telephone exchanges in connection with each...