Quaere whether § 184, Penal Code, prohibiting the
carriage of letters or packets otherwise than in the mail by
carriers on post routes except under certain specified conditions,
is penal or remedial, or whether it is to have a liberal or strict
construction.
Letters of officers of the carrier, a railroad company, to
officers of the telegraph company with which it has a contract and
in whose business it participates, relating to immediate and day by
day action, is current, as distinguished from exceptional,
business, and falls within the permitted exceptions of § 184, Penal
Code.
The facts, which involve the construction of § 184 of the Penal
Code of the United States, prohibiting, except under specified
conditions, the carriage of letters and packets otherwise than in
the mails, are stated in the opinion.
Page 235 U. S. 515
MR. JUSTICE McKENNA delivered the opinion of the Court.
Indictment in two counts against the railroad company for
carrying otherwise than in the mails certain letters in violation
of § 184 of the Penal Code of the United States. The section is as
follows:
"SEC. 184. Whoever, being the owner, driver, conductor, master,
or other person having charge of any stagecoach, railway car,
steamboat, or conveyance of any kind which regularly performs trips
at stated periods on any post route, or from any city, town, or
place to any other city, town, or place between which the mail is
regularly carried, and which shall carry, otherwise than in the
mail, any letters or packets except such as relate to some part of
the cargo of such steamboat or other vessel, to the current
Page 235 U. S. 516
business of the carrier, or to some article carried at the same
time by the same stagecoach, railway car, or other vehicle, except
as otherwise provided by law, shall be fined not more than fifty
dollars."
The counts are similar except as to the letter carried. The
indictment alleged that the railroad between designated points
(Jersey City, New Jersey, and Montgomery, New York) regularly made
trips; that it had made a contract with the Western Union Telegraph
Company by which provision was made for a joint operation of
telegraph lines over the right of way of the railroad company; that
the business was under the supervision of a joint superintendent
named E. P. Griffith, and that the telegraph office at Montgomery,
both for railroad and commercial business, was in charge of G. A.
Osborne, the station agent of the railroad; that, on June 27, 1912,
the railroad carried otherwise than in the mails the following
letter:
"June 27, 1912"
"Mr. G. A. Osborne,"
"Agent, Erie Railroad and Manager W. U. T. Co."
"Montgomery, N.Y."
"Dear Sir: --"
"The revenue of the W. U. T. Co's. receipts at Montgomery, N.Y.
would indicate that the new telegraph service, such as day and
night letters, had not been thoroughly presented to the people of
Montgomery. At many of the Erie Railroad stations similar to
Montgomery, very handsome increases in telegraph receipts have been
shown on account of this new service, and as the Erie Railroad
participates in the telegraph revenues from its railroad stations,
it is desired that their revenue from the telegraph company shall
increase as well as the revenue from its freight and passenger
traffic, and I hope you will do everything to make such
showing."
"Yours truly,"
"(Sd.) E. P. Griffith"
"Supt. of Telgh. "
Page 235 U. S. 517
The letter upon which the second count is based was as
follows:
"June 27, 1912"
"Mr. G. A. Osborne,"
"Agent Erie Railroad Co. and Manager W. U. Tel. Co."
"Montgomery, Orange County, N.Y."
"Dear Sir:"
"I forwarded to you by train mail on June 20th a copy of the new
Western Union Telegraph Company's tariff book, which shows a
considerable number of changes in telegraph rates, particularly
with respect to the old 40-cent rate having been reduced to 30
cents to a considerable number of points, and I would ask that you
familiarize yourself with the new rates in order to avoid check
errors. The misquoting of rates creates a large number of error
sheets and correspondence, and not only confuses the auditing
department of the W. U. Tel. Co., but also delays settlements
between the Telegraph Company and the Erie Railroad."
"As you are aware, the Erie Railroad receives a percentage of
the W. U. Tel. Co.'s telegraph receipts at all Erie railroad
stations where the agent of the railroad, under contract with the
telegraph company, also acts as the agent or manager of the
telegraph company, and that the handling of Western Union
telegrams, in making up of Western Union reports, from which the
railroad company's proportion of receipts are figured, and all of
the accounting and correspondence relative to Western Union matters
are as much the current business of the railroad as handling
accounts or reports made in connection with the freight shipments
or sale of tickets for the railroad, the railroad company receiving
a revenue from all."
"Your attention is specially called to modification of rule No.
8 for the instructions to all New York state offices only, and to
be used instead of rule 8 printed in the tariff book, printed copy
of which I enclose herewith."
"Yours truly,"
"(Sd.) E. P. Griffith"
"Supt. of Telgh. "
Page 235 U. S. 518
The indictment was demurred to by the railroad company on the
ground that the matters set forth therein were not sufficient in
law to constitute a crime. The demurrer was sustained, the court
expressing itself to be "clearly of the opinion that the
current business of the carrier,'" referred to in § 184, is the
kind of business in which it appears from the indictment the
carrier was engaged, and that the sending of the letters in
question was in accordance with law.
The opinion of the court exhibits the point in the case, to
which, though a short one, considerable argument has been addressed
by counsel. The solution of it is in the contract between the
companies.
It is a very elaborate document, regulating the relations of the
railroad and telegraph companies by a variety of provisions and
details. By it, the railroad company leased to the telegraph
company the right to maintain the telegraph line it (the railroad
company) then had, and operate the same, and the right to build new
lines. One wire was to be provided for railroad use and one for
commercial use, though joint wires were to be used where nothing
more was required.
Article 6 of the agreement is especially relied on by the
railroad company. It provides that, at all telegraph offices now or
hereafter maintained at the stations of the railroad company, it
shall, at its own expense, furnish office room, light, and heat for
telegraph service, and also at its own expense provide an operator
and other employees who, acting as agents for the telegraph
company, shall receive, transmit, and deliver, exclusively for the
telegraph company, such commercial and public messages as may be
offered, and shall charge the telegraph company's tariff rates
thereon, and shall render to the telegraph company monthly accounts
thereof, the railroad company to pay all of such receipts to the
telegraph or other employees, but not to be responsible
Page 235 U. S. 519
for the failure of its operators to pay over such receipts.
The telegraph company agrees to pay the railroad company as soon
as practicable after the close of each month 25% of the cash
receipts at offices in the railroad company's stations or other
public buildings, received from commercial or public messages of
the telegraph company, with certain exceptions not material to
mention, and transmit free telegrams relating to railroad business,
the railroad company to carry materials, furnish offices and
operators, pay for certain lines, and give exclusive privileges, as
far as possible, to the telegraph company. The railroad company is
given the right to investigate the accounts of the telegraph
company so far as they relate to such earnings. Either party may
discontinue any of its offices. If the telegraph company removes
any of its offices from the railroad company's stations, the latter
company shall still have the right to continue doing a commercial
business in such station, and the telegraph company will provide
the usual signs for such business, the railroad company not to
solicit business in competition with the telegraph company.
By the twelfth article, it is provided that the telegraph lines
and wires and the offices and operators in railroad stations shall
be under the supervision and control of a competent joint
superintendent of telegraph, who shall be appointed by the railroad
company subject to the approval of the telegraph company, and be
paid jointly and equally by both companies at a salary to be fixed
by both, each company paying one half thereof. Either company may
discharge the joint superintendent, but his successor can only be
appointed on the written consent of both parties. By the ninth
article, it is expressly covenanted and agreed that the joint
superintendent and all other persons engaged in the work
contemplated by the agreement, by whichever company paid, shall be
deemed
Page 235 U. S. 520
to be the servants of the telegraph company except when engaged
in the transmission of messages for the railroad company, and in
certain construction work.
It will be observed that, while the companies in many respects
are independent, they are also, in some respects at least,
dependent. The telegraph is a facility of the railroad company, and
necessary to its operations, the telegraph company doing what the
railroad company did for itself before the agreement, and, but for
the agreement with the telegraph company, would have to do. The
railroad company has an interest in the receipts of the other
company, and is concerned in their amount and the maintenance and
increase of the telegraph business. The control of the telegraph
company's instrumentalities and its offices and operators is in a
"competent joint superintendent of telegraph," in whose appointment
the railroad company has a voice, and whom it also may discharge.
It is, however, not possible, and keep this opinion within a
reasonable length, to detail the many ways in which the two
companies are related, and while it may be said that there is a
railroad business in which the telegraph company has no concern --
that is, business distinctly railroad -- yet it is also so far
concerned with the telegraph business as to make its efficient and
successful operation of interest to it. To promote such operation
was the purpose of the two letters which are the basis of the
indictment, and the business comes within the description of the
statute and is "current."
In reaching this conclusion, it is not necessary to consider the
character of the statute, whether it be penal or remedial, or
whether it is to have a strict or a liberal construction. It is one
justified by the words of the statute and in view of the facts by
its history, and is not precluded by anything that was said at the
time the act was amended. As originally enacted and carried into
the Revises Statutes (§ 3985), it forbade the carrying,
"otherwise
Page 235 U. S. 521
than in the mail, any letters or packets, except such as relate
to some part of the cargo of such steamboat or other vessel, or to
some article carried at the same time by the same stagecoach,
railway car, or other vehicle."
The section coming before the Attorney General for construction,
the opinion was expressed that it only intended to prohibit the
transportation of communications between third parties, and did not
prohibit the transportation of communications, whatever their
substance, belonging to the carrier, or relating to the carrier's
business. 21 Op.Atty.Gen. 394. It is the contention of the
government that, when § 184 came to be enacted, that construction
was narrowed by the use of the word "current," Senator Bacon, who
suggested it, in effect so declaring, and urged it as an amendment,
so that the new section might not relate, as the senator said, to
the "financial transactions" of the carriers, "or anything of that
kind, but to current business and operations." To this comment
counsel for the government adds the definition of "current" from
the dictionaries as "now passing; present in its course; as the
current month or year," and supposes this to be the meaning which
was in Senator Bacon's mind, and urges the view that "the
current business' of the carrier therefore is that business
which is at any particular time, in the present course of its
transactions." But, so confined in meaning, it is not very clear
what enlargement the new section is on the old one. We cannot so
confine it. The statute certainly cannot mean that the described
business should have no relation to the past and no connection with
the future, however near. It may be that there might be a business
so completely consummated or so much in speculation that it could
not be described as "current," but the letters with which this case
is concerned are not of either character. They regard not only
immediate, but day-by-day action, and so
Page 235 U. S.
522
relate to "current," as distinguished from exceptional,
business.
Judgment affirmed.
MR. JUSTICE McREYNOLDS took no part in the consideration and
decision of the case.