Canidate v. Western Union Telegraph Co. , 203 Ala. 675 ( 1920 )

The plaintiff (appellant) instituted this action against defendant (appellee) on the 29th day of April, 1919. The complaint contains two counts, the first ex contractu and the second ex delicto, claiming damages for the failure of the defendant company promptly to transmit and deliver a telegraphic message committed to the telegraph operator at Pike Road, Ala., to the plaintiff at Bessemer, Ala., on March 21, 1919. Besides a general traverse of the allegations of these counts, the defendant interposed plea 2, reproduced in the statement of the case ante. Demurrer to the plea, also stated in the report of this appeal, was overruled. Pretermitting the suggestion that the matter asserted could, if available at all, be introduced under the general issue in refutation of material allegations of both counts of the complaint, the meritorious question raised by the demurrer will be decided; counsel noting that a large number of pending causes will be affected by the conclusion reached on this review.

The plea's substance is that at the time this message was filed, as well as at the time this suit was commenced, the defendant's telegraph lines were in the exclusive possession and control of the United States, acting through the efficient exercise by the President of the discretion and authority vested in him by the resolution of Congress, quoted in the plea, of the 16th day of July, 1918 (U.S. Comp. St. Ann. Supp. 1919, § 3115 3/4x), and through the President's proclamation committing to the Postmaster General the supervision, possession, control, and operation of the wire lines within the jurisdiction of the United States. The proposition of legal result underlying the plea is, in our opinion, supported and vindicated by the Supreme Court in Dakota Central Telephone Co. v. State of South Dakota et al. (decided June 2, 1919) 250 U.S. 163,39 Sup. Ct. 507-510, 63 L. Ed. 910, 4 A.L.R. 1623. The control and possession of all wire lines taken by the United States government, through its official agencies and under validly vested discretionary authority unrevisable by the judicial departments, state and federal, was a complete control and an exclusive possession, thus relegating to the category of mere agents of the United States the functions of the wire companies, as individual entities, and the persons whose service was directed to carrying on, even for private persons or institutions, the business of receiving and transmitting intelligence by wire. In the cited decision the Supreme Court, through Chief Justice White, said:

"But although it may be conceded that there is some ground for contending, in view of the elements of authority enumerated in the resolution of Congress, that there was power given to take less than the whole if the President deemed it best to do so, we are of opinion that authority was conferred as to all the enumerated elements and that there was hence a right in the President to take complete possession and control to enable the full operation of the lines embraced in the authority. The contemporaneous official steps taken to give effect to the resolution, the proclamation of the President, the action of the Postmaster General under the authority of the President, the contracts made with the telephone companies in pursuance of authority to fix their compensation, all establish the accuracy of this view, since they all make it clear that it was assumed that power to take full control was conferred and that it was exerted so as to embrace the entire business and the right to the entire revenues to arise from the act of the United States in carrying it out. Indeed, Congress in subsequently dealing with the situation thus produced would seem to have entertained the same conception as to the scope of the power conveyed by the resolution and dealt with it from that point of view. Act Oct. 30, 1918, c. 197, 40 Stat. 1017."

The complete control and the exclusive possession of this, as well as all other wire lines within the resolution of Congress, as effected through the proclamation of the President, having passed to the United States, the defendant (appellee) was not and could not have been engaged in the business described in the complaint, except, and that only, under the derivative authority, a mere agency, imposed upon the telegraph company by the paramount governmental processes set forth in the plea, to the end that whatever service the physical properties and the company's personnel might render in the transmission of intelligence by wire should be and was a public governmental service or function, to or in respect of the discharge of which, within the realm of the company's legitimate activity under the complete control and exclusive possession of the government, neither the company, as such, nor the persons so serving in the operation of any of the functions of the company so dominated, were subject to individual, corporate, or personal liability to third persons for a breach of a contract or for a tort (the breach of a public duty) predicated alone of a contract for the transmission of intelligence by wire. Belknap v. Schild, 161 U.S. 10, 17, 18, 16 Sup. Ct. 443,40 L. Ed. 599; In re Ayers, 123 U.S. 443, 501, 502, 8 Sup. Ct. 164,31 L. Ed. 216.

In view of the decision of the Supreme Court in the Dakota case, it is unnecessary to comment upon the opinion at nisi prius, reported under the title of Witherspoon Sons v. Postal Telegraph Cable Company (D.C.) 257 Fed. 758.

The judgment is affirmed.

Affirmed.

ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.