Davis v. Pacific Telephone & Telegraph Co.

A rehearing was granted in this case for consideration of a question not discussed in the Department opinion, namely, whether "telephone" is included within the meaning of "telegraph," as used in section 591 of the Penal Code. It appeared that in the criminal action the defendant was charged with cutting telegraph wires, while the facts without dispute disclosed that the wires which he cut were used as telephone wires. The importance of the consideration in the case at bar arises from the fact that if telephone wires are not within the purview of section 591 it would tend to show lack of probable cause to procure the arrest and prosecution of a person charging him with cutting telegraph wires, when the known fact was that he had cut telephone wires.

The cases are numerous where the question has come under consideration, and the holding of the courts has been uniform that "telephone" is included within the meaning of "telegraph." Many of these cases are noted in 25 American and English Encyclopedia of Law, at page 746. In Attorney General v. EdisonTeleph. Co., 6 Q.B. Div. 244, it was held that a telephone was a telegraph within the meaning of the telegraph acts, although the telephone was not invented or contemplated at the time of the passage of those acts. It was further declared that a conversation through the telephone was a message, or, at all events, "a communication transmitted by a telegraph, and therefore a telegram within the meaning of the acts." In Richmondv. Southern Bell Teleph. etc. Co., 85 Fed. Rep. 19, the circuit court of appeals, construing an act of Congress of 1866 relative to "telegraph companies," and answering the question whether those words included telephone companies, declared that each was but a form of use, the product and result of the same principle, and that the names were only used to distinguish the method of communication. In Chesapeake etc. Teleph. Co. v. Baltimore etc.Tel. Co., 66 Md. 399, 59 Am. Rep. 167, the court, in construing an early act relative to telegraph companies, declared that the term "telegraph," which means and includes any apparatus or adjustment of instruments for transmitting messages or other communications by means of electric currents and signals, embraces the telephone. In Iowa etc. Tel. Co. v. Board ofEqualization, 67 Iowa, 250, it was held that, by reason of the substantial identity *Page 316 of telephonic and telegraphic modes of communication, the telephone company was to be regarded for purposes of taxation as coming under the denomination of a telegraph company.

These cases are sufficient by way of illustration, though many more could be instanced. They are civil cases, it is true, but they at least serve to show the unanimity and uniformity of the courts' determinations upon the question.

If the consideration could be limited to a strict etymological point of view, it would have to be conceded at once that there is a difference in the meaning of the two words, the one conveying the idea of transmission of writing to a distance, the other the transmission of sound to a distance. In the very early history of the telegraph it is a matter of common knowledge that there was an actual recordation of letters under the Morse code. That soon passed away, and the telegraph operator of to-day receives by sound upon a principle no different from that which obtains in the telephone. Again, in the case of submarine cables neither sound nor writing is always employed, but the varying deflections of an indicator within sight of the receiver serve the like purpose. The words, therefore, cannot be limited to their etymological meaning, and consideration must be had to their present sense and acceptation. Anderson's Dictionary of Law, defining "telegraph," says that it "includes any apparatus for transmitting messages or other communications by means of electric signals." Defining "telephone," he declares it to be "a conversation held through a telephone, a message or a communication transmitted by a telegraph — a telegram. A telephone is a telegraph. The idea conveyed by each term is the sending of intelligence to a distance." Accepting these definitions — and they are well supported — the term "telegraph" means any apparatus for transmitting messages by means of electric currents and signals, and embraces within its meaning the narrower word "telephone."

But is this construction justifiable in the case of the penal statute? Section 4 of our Penal Code provides that "the rule of the common law that penal statutes are to be strictly construed has no application to this code. All its provisions are to be construed according to the fair import of their terms with a view to effect its object and to promote justice." In contemplation *Page 317 of this section, in recognition of the fact that a substantial identity exists between the two words, we think no hesitation need be expressed in declaring that under section 591 of the Penal Code a criminal prosecution will lie for the illegal destruction of a telephone wire.

The opinion heretofore rendered in Department is, therefore, adopted, and the judgment is affirmed.

Garoutte, J., McFarland, J., Van Dyke, J., Temple, J., Harrison, J., and Beatty, C.J., concurred.

The following is the opinion of Department One above referred to, rendered on the 12th of June, 1899: