Cumberland Telegraph & Telephone Co. v. Sanders , 83 Miss. 357 ( 1903 )

Whitfield, C. J.,

delivered tbe opinion of tbe court.

Section 4326 of tbe code of 1892 is a highly penal statute, and must be strictly construed. We are clearly of tbe opinion that tbe only messages or matter referred to in that section are written or printed messages or matter. Tbe very language of the statute clearly indicates this. Tbe messages or matter tbe failure to transmit correctly and deliver which subjects the telegraph and telephone companies to the penalty therein provided are declared to be messages “addressed to a person,” etc. These messages, it is said, must be transmitted correctly; that is, correctly as written. “To transmit correctly and deliver the same” — that is, the messages or matter so addressed — is the precise language used. It may be true that a large part of the messages or matter handled by a telephone company is orally delivered as the business is actually conducted, but the question is what character of messages or matter this particular statute describes when it provides the penalty for tbe failure to correctly transmit and deliver such messages or matter. Tbe statute itself is very imperfectly framed as regards telephone companies, for there is a manifest difference in some respects between tbe nature of the business conducted by tbe two companies, as tbe respective businesses are actually conducted; and this defect or imperfection in the statute, as it relates to telephone companies, properly calls for an amendment by tbe legislature. It is our business to construe tbe statute strictly as it is now framed, and under tbe familiar principles of construction applicable to penal statutes we are of tbe opinion that wbat took place here is not within tbe purview of the statute.

As stated in Western Union Telegraph Co. v. Dozier, 67 Miss., 291, 7 South., 326, “Tbe very expression as to a message delivered to be sent carries with it tbe idea of a written or printed messageand so here tbe very expressions to which we have referred clearly indicate that as to telephone companies, as tbe law now stands, only those which are written or printed come within tbe purview of this statute. There was nothing here but a mere call, the object of the call being to secure the presence of the parties at the telephone at Sumner, and to communicate with them as desired. Until the legislature shall so amend the law as to make it clear that this sort of matter orally delivered and transmitted is meant to be dealt with in this penal fashion, the penalty cannot be recovered.

Reversed and remanded.