Western Union Telegraph Company v. Call Publishing Company

This was an action commenced on April 29, 1891, in the district court of Lancaster county, Nebraska, by the Call Publishing Company, to recover sums alleged to have been wrongfully charged and collected from it by the defendant, now plaintiff in error, for telegraphic services rendered. According to the petition the plaintiff had been engaged in publishing a daily newspaper in Lincoln, Nebraska, called the Lincoln Daily Call. The Nebraska State Journal was another newspaper published at the same time in the same city, by the State Journal Company. Each of these papers received Associated Press despatches over the lines of defendant. The petition alleged:

'4th, That during all of said period the defendant wrongfully and unjustly discriminated in favor of the said State Journal Company and against this plaintiff, and gave to the State Journal Company an undue advantage, in this: that while the defendant demanded, charged, and collected of and from the plaintiff for the services aforesaid $75 per month for such despatches, amounting to 1,500 words or less daily, or at the rate of not less than $5 per 100 words daily per month, it charged and collected from the said State Journal Company for the same, like, and contemporaneous services only the sum of $1.50 per 100 words daily per month.

'Plaintiff alleges that the sum so demanded, charged, collected, and received by the said defendant for the services so rendered the plaintiff, as aforesaid, was excessive and unjust to the extent of the amount of the excess over the rate charged the said State Journal Company for the same services, which excess was $3.50 per 100 words daily per month, and to that extent it was an unjust and wrongful discrimination against the plaintiff and in favor of the State Journal Company.

'That plaintiff was at all times and is now compelled to pay said excessive charges to the defendant for said services, or to do without the same; that plaintiff could not dispense with such despatches without very serious injury to its business.'

The telegraph company's amended answer denied any unjust discrimination, denied that the sums charged to the plaintiff were unjust or excessive, and alleged that such sums were no more than a fair and reasonable charge and compensation therefor, and similar to charges made upon other persons and corporations at Lincoln and elsewhere for like services. The defendant further claimed that it was a corporation engaged in interstate commerce; that it had accepted the provisions of the act of Congress entitled 'An Act to Aid in the Construction of Telegraph Lines and to Secure to the Government the Use of the Same for Postal, Military, and other Purposes,' approved July 24, 1866 [14 Stat. at L. 221, chap. 230]; that it had constructed its lines under the authority of its charter and that act; and denied the jurisdiction of the courts of Nebraska over this controversy. A trial was had resulting in a verdict and judgment for the plaintiff, which judgment was reversed by the supreme court of the state. 44 Neb. 326, 27 L. R. A. 622, 62 N. W. 506. A second trial in the district court resulted in a verdict and judgment for the plaintiff, which was affirmed by the supreme court of the state (58 Neb. 192, 78 N. W. 519), and thereupon the telegraph company sued out this writ of error.

Messrs. Rush Taggart and John F. Dillon for plaintiff in error.

Mr. Franklin W. Collins submitted the case for defendant in error, and Mr. John M. Stewart was with him on the brief.

Mr. Justice Brewer delivered the opinion of the court: