(specially concurring).
I concur in the opinion just rendered solely because of, the opinion of the United States supreme court in the case of Western Union Telegraph Co. v. Addie Speight, 253 U. S. -, 41 Sup. Ct. 11, 65 L. Ed. -, delivered October 25, 1920, and because the present case is not shaped on pleading and proof to present the question reserved in that opinion as to whether a practice of the company in routing the message outside of the state for the purpose of defeating the operation of state laws would be held to be interstate commerce, where delay and additional expense AArould result in the handling of the company’s business. In that case the United States supreme court said:
“The course adopted was more convenient and less expensive for the company, and there was nothing to show motives except the facts. As things were, the message was sent in the quickest way. The court below did not rely primarily upon the finding of the jury as to the purpose of the arrangement, but held that when, as here, the termini were in the same state, the business was intrastate, unless it Avas necessary to cross the territory of another state in order to reach the final point. This, as we have said, *740is not the law. It did, however,, lay down that the burden was on the company to show that what was done ‘was not done to evade the jurisdiction of the state.’ If the motive were material, as to which we. express no opinion, this again is a mistake. The burden was on the plaintiff to make out her case.”
The pleading in the present case did not allege that the message Avas purposely sent out of the state and back into it for the purpose of defeating state jurisdiction, nor does it allege that the message could have been more speedily delivered by sending it direct from one point-in the state to another point therein. It does not allege, further, that it could have, been sent more cheaply by the company directly from one state office to the other. The facts in evidence sIioaa- that the message from Artesia wás sent by way of Durant, Avhieh is situated between Vaiden, the point for Avhieh the telegram AA'as destined, to the Nbav Orleans office, where the delay occurred, .and Avas then sent back directly through Durant to Vaiden in this state. The proof shoAvs that no message can be sent, under the practice of the company, from Artesia to any point in this state, without being first sent outside of the state and thence back into the state. The proof further shows-that the telegraph company has a relay office in Jackson,, Miss., Avhieh is situated between the destination of the telegram, to Avit, Vaiden, and the New Orleans office, and which it seems necessarily could have been relayed more quickly and cheaply, giving better service at cheaper rates, from Jackson to Vaiden, than to go through Jackson and to NeAV Orleans and return. It plainly appears from the testimony that the rules of the company Avere shaped for the .purpose of making all messages whatsoever interstate messages, so as to defeat absolutely the laws and regulations of the state.
I cannot believe that the United States supreme court will hold that such practice will defeat state jurisdiction and laws when it is clearly established by allegation and proof that messages are sent purely to defeat state laws, *741and not for the purpose of cheapening or rendering quicker service to the public. This is a matter that should receive the attention of the state railroad commission, the state legislature, the Interstate Commerce Commission, and Congress. Of course, where a message can be relayed, so as to expedite the business of the company or to reduce the expense to the company, it has and should have the right to relay; but where the practice tends to increase the expense, or to render less efficient service, It should not be resorted to.
There is another question, which Ave have purposely passed without decision, on the understanding that the question is pending for decision in the United States supreme court, and that is the question as to whether A. S. Burleson, Postmaster General, having charge of the business as an agent of the President during the period of government operation, can be sued at all. The question properly should be decided before deciding the case on the merits. It ivas presented by a plea in abatement of the action, to which plea a demurrer was interposed by the plaintiff, and sustained by the court. But we reserve decision on this point, and reverse and remand the case, as indicated in the opinion in chief.