(concurring.) — Judge Hill and I concur in the foregoing opinion solely on the authority of Connell v. Tel. Co., 108 Mo. 439. If that case was not a controlling authority upon us under the constitution, we should rule that section 2725, Revised Statutes, 1889, in enacting that a telegraph company should “provide sufficient facilities at all its offices for the dispatch of the business of the public * * * and on payment or tender of their usual charges for transmitting dispatches * * * to transmit the same promptly and with impartiality and good faith, under a penalty of $200 for every neglect or refusal so to do,” covered the delivery of the telegram.
Speaking for myself I will add that it was so held by the St. Louis Court of Appeals in Brashears v. Tel. Co., 45 Mo. App. 433. It was likewise so expressly ruled on a like statute in Little Rock Tel. Co. v. Davis, 41 Ark. 79.
Our statute reads that, “on payment of the usual charges for transmitting dispatches as established by the rules and regulations” of the company the company *398shall “transmit the same promptly.” These charges, as every one knows, include the delivery. And so it is likewise well known that such companies have “established rules and regulations,” excusing or restricting delivery to certain limits. Endlich on Statutes, at page 2, says that in construing penal statutes, “no case shall be held to fall within it which does not fall both within the reasonable meaning of its terms, and within the spirit and scope of the enactment.” What is the reasonable meaning of the terms of our statute “to transmit promptly?” Is the dispatch merely to be transmitted promptly from the company’s office in one town to the office in another town? If that is all, why send it at all? In ninety-nine cases out of a hundred it is no more likely to reach the person addressed than if it had remained in the sending office. The mail would be much more expeditious. The word ‘ ‘transmit’ ’ as used in the statute, and for which the charges and rules spoken of in the statute are made, evidently include the delivery. The transmission is to the party .addressed, and not simply to the company’s office in the town or city in which he resides. If a telegram is addressed to “John Doe, custom-house, St. Louis, Mo.,” what is its destination; the company’s office in St. Louis,, or John Doe at the custom-house? It appears to us that to construe the statute as stopping short of delivery, is not alone contrary to its spirit and intent, but is in the face of its express language; for Webster gives as one of the primary definitions of the word “transmit” that it is to' send from one person to another. It appears to us as quite apparent that the meaning, scope and spirit of the statute under all rules of construction is to inflict a penalty for a failure to deliver a dispatch to the party addressed. It is to so deliver that the company has been paid its charges provided for in the statute. To *399restrict the statute to the mere sending a dispatch over the wire requires additional language to that which the statute now contains.
The courts in some of the states having statutes wholly unlike ours have made rulings under such statutes which are not at all applicable to our statute. In 1885 the statute of Arkansas was altogether changed, so that instead of reading, as it had theretofore read, substantially as ours, was made to read that the telegraph company should “transmit over its tvires to localities on its line” all dispatches offered. The case of Brooks v. Tel. Co., 192 S. W. Rep. cited by Judge Smith was a decision under such a statute, which the court held to- mean wllat it says viz: to transmit over the wire to localities on the line. The court expressly-notes that such a statute is different from their former statute, which reads like ours merely “to transmit.” In the remaining case cited from 88 Georgia, 538, the statute of Georgia itself distinguishes between transmission and delivery. Our statute has, it is true, recently been amended concerning the amount of the penalty, etc.; and in addition there was added, that, “the burden of proof shall be upon the company to show that the wire was engaged as the reason for the delay in transmitting such dispatch.” But this in no wise controls the preceding provisions of the section. It is merely the enactment that if the cause of delay was the fact that the wire was taken up with other business the burden of showing this was upon the company, which would have the knowledge of such fact. The amendment cannot mean that the wire being engaged was the only excuse to be allowed a telegraph company. The dispatch might not be sent for the reason that the wire was down or broken or for many unavoidable causes. The legislature doubtless selected an instance or cause of excuse which laid póculiarly *400within the knowledge of the' company and the proof of which the company should be required to assume the-burden.