Summary
In Leavell v. Telegraph Co., 116 N.C. 220, this Court affirmed the last cited case, saying: "In R. R. Commission v. Telegraph Co. (Albea's case), 113 N.C. 213, the Court held that telegraphic messages transmitted by a company from and to points in this State, although traversing another State in the route, do not constitute interstate commerce and are subject to the tariff regulation of the commission.
Summary of this case from Speight v. Telegraph Co.Opinion
(February Term, 1895).
Telegraph Companies — Telegraph Commission — Illegal Rates of Charge for Service — Discrimination.
1. Where a telegraph company has a continuous line between two points in this State the fact that, in transmitting it, it sent the message over the lines of another company does not excuse its violation of the rate prescribed by the Railroad Commissioners for the transmission of a message sent over the lines of one company.
2. It is the duty of a telegraph company to have sufficient facilities to transact all the business offered to it for all points at which it has offices, since it is not a mere private duty but a public duty which its franchise authorizes it to perform.
3. A contract whereby a telegraph company gives to a railroad company a preference of business over its line to the exclusion of others is an illegal discrimination and cannot excuse the telegraph company for using the line of another company in the transmission of a message between two points in this State between which it has a continuous line.
COMPLAINT heard before the Railroad Commission, in Raleigh, on 13 November, 1894.
The complaint was filed 21 August, 1894, alleging a violation of the tariff rate prescribed by the Commission for the transmission of telegraphic messages.
The plaintiff alleged that 17 August, 1894, he delivered a ten-word message to the defendant at Wilson, N.C. to be transmitted to (212) Edenton, N.C. and was required by the defendant to pay fifty cents for the transmission of the message, and that this was a violation of the rate prescribed by the Railroad Commission of North Carolina.
The defendant answered the complaint on 31 August, 1894, through its General Superintendent, J. B. Tree, alleging that the "telegraphic tolls from Wilson, N.C. to Norfolk, Va., are twenty-five cents for ten words, and the rate from Norfolk, Va., to Edenton, N.C. is twenty-five cents, making a total of fifty cents. The message was sent via Norfolk because it is the only telegraph route by which the business addressed to Edenton can be handled and turned over to the Elizabeth City and Norfolk Telegraph Company, at Norfolk, Va., as the Western Union Telegraph Company has no commercial office at Edenton, N.C."
The Commission found the facts and adjudged:
(217) 1. That the telegraphic office at Edenton, on the line of the Norfolk Southern Railroad, is under the control of the defendant, and that the operator in said office, although employed by the said railroad company, is the agent and operator of the defendant.
2. The telegraphic message transmitted by the defendant over said line of the Norfolk Southern Railway Company from or to Edenton, to or from Wilson, or any other point in North Carolina, does not constitute commerce between the states, although traversing another state in the route, and is subject to the rates prescribed by the Commission.
3. That defendant cannot be heard to say that it did not send (218) the message mentioned in this case over its own line from Norfolk to Edenton.
4. That the charge of fifty cents mentioned in this case was in violation of the rates prescribed by the Commission.
Wherefore, it is adjudged by the Commission, and so ordered, that defendant refund to plaintiff the sum of twenty-five cents, the excess above the rates allowed by law, and that said defendant desist from further violation of the rates prescribed by the Commission for transmission of messages from Wilson to Edenton.
From this judgment defendant prayed an appeal to the Supreme Court.
(220) Attorney-General for plaintiff.
Robert Stiles for defendant.
In Express Co. v. R. R., 111 N.C. 463, this Court affirmed the constitutionality of the act (chapter 320, Acts 1891) establishing the Railroad and Telegraph Commission. In Mayo v. Telegraph Co., 112 N.C. 343, it sustained the power of such Commission under section 26 of said act, to establish rates for telegraph companies. In R. R. Commission v. Telegraph Co. (Albea's case), 113 N.C. 213, the Court held that telegraphic messages transmitted by a company from and to points in this State, although traversing another state in the route, do not constitute interstate commerce, and are subject to the tariff regulation of the commission. In this it followed the unanimous opinion of the Supreme Court of the United States, delivered by Fuller, C. J., in R. R. v. Pennsylvania, 145 U.S. 192. To the same purport is Campbell v. R. R., 86 Iowa 587.
In the present case the Commission find as a fact that "the defendant has a continuous line by which messages may be transmitted from Wilson to Edenton and other adjacent points in North Carolina (221) but this line traverses a part of the State of Virginia, passing through the city of Norfolk;" and it properly holds upon the evidence "that the telegraph office at Edenton is under the control of the defendant, and the operator, though employed by the railroad company, is the agent and operator of the defendant." It necessarily follows from this state of facts that as the defendant could have sent the message the whole distance over its own line, it cannot be heard to say that it did not do what it ought to have done and thus collect 50 cents for the message instead of 25, as allowed by the commission tariff. The defense set up, that in fact it only carried the message to Norfolk and then paid another company to forward it to Edenton, cannot be regarded when it might itself have completed the delivery of the message. The defendant seeks to excuse itself on the plea that it has only one wire to Edenton, and that this is fully occupied at that office by the work it does for the railroad company. But it is the duty of the telegraph company to have sufficient facilities to transact all the business offered to it for all points at which it has offices. If the press of business offered is so great that one wire or one operator at a point is not sufficient it is the duty of the company to add another wire or an additional employee. It is not a mere private business, but a public duty which the defendants by their franchise are authorized to discharge. It is further to be noted that in giving to the railroad company the preference in the use of their line to Edenton, while at other points, as Moyock, Centreville and Hertford on the same line, the public is admitted to the use of the wire, the defendant is making a forbidden and illegal discrimination in favor of one customer and against the public at large, as was intimated in Albea's case, supra, 113 N.C. on page 226. The findings of fact and (222) evidence are fuller, and present a somewhat different and stronger case against the defendant than in Albea's case. By section 11 of the defendant's contract with the railroad company the defendant remains owner of the telegraph line to Edenton, N.C. and its belongings which are to remain "part of its general telegraph system" and "to be controlled and regulated by the telegraph company." Section 3 of the contract gives the railroad messages precedence over commercial business, but stipulates that when railroad business shall require the exclusive use of one wire the telegraph company shall on sixty days notice furnish material for a second wire, which second wire shall be used for railroad business exclusively, and such commercial business as can be done without interfering with railroad business. Section 6 provides that where the railroad company shall open offices, the operators "acting as agents of the telegraph company" shall receive such commercial and public telegrams as may be offered, collecting rates prescribed by the telegraph company, and render monthly statements and pay over the receipts to the telegraph company. Section 7 provides that whenever the volume of business at any point justifies it, the telegraph company shall put in an additional operator. It will be thus seen that the line to Edenton is an integral part of the defendant's general telegraph system. It is only by virtue of its franchise as a telegraph company that it can operate its line to Edenton at all. It cannot discriminate at that point in favor of or against any customer. It cannot subtract itself from obedience to the rates prescribed by the authority of the State, acting through the Commission, by a contract giving one customer, the railroad, preference in business and pleading that such business occupies the only wire it has. The discrimination is itself illegal. Besides, if it were not, the small cost of an additional wire, which it is common knowledge does not exceed ten dollars per mile, furnishes no ground to (223) exempt the defendant from furnishing the additional facility to do the business for all. The charge of a double rate between Edenton and other points in North Carolina is a far heavier imposition upon the public than the cost of the additional wire to defendant, and is just the kind of burden and discrimination which the Commission was established to prevent. In Albea's case, supra, no commercial message was tendered, and the point now decided was not presented by the record. The ruling of the Commission is in all respects
Affirmed.
Cited: Caldwell v. Wilson, 121 N.C. 474; Pate v. R. R., 122 N.C. 881; Corporation Commission, 127 N.C. 288; Telephone Co. v. Telephone Co., 159 N.C. 14; Speight v. Tel. Co., 178 N.C. 150.