32 Tex. 546 | Tex. | 1870
Hearne, the plaintiff below, brought suit against the plaintiff in error, to reclaim certain sums of money which he alleges were extorted from him through his agents,, Austin, Lewis & Co. and J. S. Sellers & Co., by said railroad
The petition alleges that the railroad company was limited to certain rates of charge on freights at given distances, by the-terms of its charter, and that it exceeded its franchise, and unjustly charged him more than by law it was entitled to charge and receive. This is the gravamen of the action; and to determine this question by law was the sole duty of the court below, and we can not see how any very grave difficulty could have arisen in pursuance of this single purpose.
The railroad company answered by a general demurrer, and also by a general denial, except as to its corporate character, and the distance from Millican to Houston; and especially averred that the act of September 1st, 1856, as claimed by the plaintiff, was passed on the 30th of August, 1856, and read (so much of it as applied to the case) as follows: “ Said company shall have the right to demand and receive such rates and prices for the transportation of passengers and freight as they think proper to establish—not to exceed five cents per mile for passengers, or fifty cents per hundred, or twenty-five cents per foot for freight, per every hundred miles the same may be carried.” It appears that there was a verbal variance in the act between the printed copies of the private statutes and the enrolled bill. On the argument of the demurrer, the defendant produced a certified copy of the enrolled bill to prove the variance, claiming that this copy was the best evidence of what the law really was.
The court refused to receive the copy so certified, and overruled the demurrer. And it appears from the record that upon the trial it admitted the evidence of merchants and shippers to prove that by custom cotton was shipped by weight and not by measurement. We think the court erred in overruling the demurrer, in refusing to receive the certified copy of the enrolled bill as the best evidence of the terms and meaning of the law as it passed the Legislature, and in receiving evidence;
We think the District Court, in this case, should have taken the reading of the certified copy of the enrolled bill for the true meaning of the printed law. But the materiality of this reading of the company’s franchise, to us is not very apparent.
Let us see what the rights of the company are under the law as received by the District Court: “ The company may charge fifty cents per hundred pounds, mid it may charge twenty-five cents per foot,” but certainly not both, upon the same article. Or let us read it as the plaintiff in error claims it should be read: “ The company may charge fifty cents per hundred, or twenty-five cents per foot.” The latter reading renders it a little more apparent that the company are not to charge according to both standards upon the same article.
It is not insisted that the company has violated its franchise by charging both by weight and measurement, but that this particular kind of freight, by custom, could only be charged as weight freight; and the court admitted evidence of the custom of shippers to govern an express grant of the Legislature to this incorporation. And certainly a very learned and able argument was submitted to us in defense of this action of the court below. But we can not give way to any argument, however able, logical and cogent, which merely points out to us
It is sometimes said that the Camden and Amboy Railroad Company owns the State of New Jersey, and that the Pennsylvania Central and the Erie alike control the great States of New York and Pennsylvania; and this is by no means the first time that a court of justice has been compelled to acknowledge its inability to correct what have been deemed public abuses.
Notwithstanding the great and growing necessity in our State for railroads, it may be well that our young giant should take warning of the abuses of incorporated monopolies. Yet, it must be said that this was the pioneer road in the State— built when capital was scarce, running through a country but thinly inhabited, where but little trade could be expected, and that, from these and other causes, necessity required that it should have extraordinary franchises. This is, no doubt, all true, and should be considered before the hue and cry be raised against the company. The public should consider the great advantages derived by the State from the construction of such a road, and the immense sums of money expended in building and operating it, and such indulgence be awarded as fairness requires. These are all matters which really do not concern nor make up any part of our opinion in the case at bar. But so much has been said in argument of the latitudinous powers of this company, and its abuses of legitimate power, that we feel it due to the Legislature that something should be said in vindication of their acts; besides, the Legislature has still reserved the power to take up and control this franchise, should public necessity require it.
We do not think the plaintiff in error has exceeded the expressed grants of power given to it by the Legislature, and we are, therefore, of opinion that the court below should have
Reversed and dismissed.
