121 Ga. 48 | Ga. | 1904
(After stating the foregoing facts.) If the Railroad Commission had authority to adopt that portion of Rule 36. set forth above, the petition set out a cause of action. The law declares that the railroad commissioners “shall make reasonable and just rules and regulations, to be observed by all railroad companies doing business in this State, as to charges at any and all points for the necessary . handling and delivery of freights; shall make such just and reasonable rules and regulations as may be necessary for preventing unjust discriminations in the transportation of freight and passengers on the railroads in this State; . . and shall make just and reasonable rules and regulations, to be observed by said railroad companies, on said railroads, to prevent the giving or paying of any rebate or bonus, directly or indirectly, and from misleading or deceiving the public in any manner as to the real rates charged for freight and passengers.” Civil Code, § 2189. The rule of the commission provides that railroad companies, in the conduct of their intrastate business, shall afford to all persons “ equal facilities in the transportation-
It is contended that the power of the Railroad Commission in reference to unjust discriminations is confined to rates and charges; and the case of State v. Wrightsville & Tennille R. Co., 104 Ga. 437, is cited to sustain this contention. There is, however, no authoritative ruling in that case to the effect that the power of the Railroad Commission is so limited. It was there held that the refusal of the railroad company to issue a through bill of lading over the line of one of its connecting carriers, when it was in the habit of issuing such bills of lading over the line of another connecting carrier, was not a violation of Rule 32 of the commission (see 30 Rep. R. R. Com. 32), which contained substantially the provisions of the act of 1874,'as contained in the Civil Code, §§ 2212-2214. It was held that the Railroad Commission had no power, either under the act referred to or under the rule, to compel a railroad company to make a contract. There is nothing in that decision, when taken in the light of the question then under consideration, which can he construed into a ruling that the word “transportation,” as used in the clause of the act now under consideration, included only service rendered between the initial point of carriage and the terminal station of -the railway company at the point of destination. Having reached the conclusion that the authority of the Railroad Commission to make rules and regulations for preventing unjust discriminations in the transportation of freight authorized the promulgation of Rule 36, .it is unnecessary to determine whether the withholding of service of the character withheld from the plaintiff in the present case, when such service was rendered to other customers similarly situated, was such an indirect giving
It was also erroneous to sustain the special demurrer, for the reason that those portions of the petition which were attacked .by the special demurrer were not allegations in relation to the cause of action, but were simply averments of- matters of aggravation which might be proved and considered by the jury in determining whether the conduct of the railroad company had been so wilful as to authorize the assessment of exemplary damages under the provisions of the Civil Code, § 2197.
During the argument attention' was called to the fact that in the 31st Report of the Railroad Commission of Georgia the rules appear to have been amended and rearranged, and what was originally Rule 36 has become Rule 2, and that the language of the rule had been changed. See page 20. It does not appear from the published report when these changes were made, but an examination of the minutes of the Railroad Commission shows that the change in Rule 2 did not take effect until May 1, 1904, and therefore Rule 36 was in force at the time of the transactions complained of in the petition. It would seem, upon principle, that we should take judicial notice of what appears upon the minutes of the Railroad Commission as to the promulgation of its rules and 'regulations; but we now make no authoritative ruling on this question. If • we can take judicial notice of what appears on such minutes, it appears. therefrom that Rule 36 was in force at the time of the injury complained of. If we can not take such judicial notice, we must look to the petition, and the petition avers that Rule 36 was in force at the time in question.
Judgment reversed.