64 S.E. 578 | N.C. | 1909
This action is instituted for the recovery of the penalty imposed by section 2631 of the Revisal, for failure to receive a carload of lumber tendered defendant by plaintiff at Black Mountain station, to be shipped to W. H. Westall, at Asheville, both points being within this State.
The facts, as stated in defendant's brief, are: Plaintiff had contracted to sell lumber, f. o. b. cars at Black Mountain, to Westall, at Asheville, Plaintiff hauled the lumber to Black Mountain, loaded it on cars, furnished by defendant 7 June, 1906, and demanded a bill of lading, which defendant's agent declined to give to him, upon the ground that an embargo had been placed upon shipments of lumber consigned to W. H. Westall and English Co., at Asheville, on account of accumulation of business for them at that point. When the embargo against Westall was placed, there were many loaded cars on defendant's yard at Asheville for him, which he could not or would not handle, and this, with other conditions, created a congested condition of the Asheville yards and caused the embargo to be placed upon shipments to him. There was evidence tending to show that the defendant's yards and tracks at Asheville were congested by an unusual number of cars of freight which were left unloaded; that on 30 May, 1906, defendant's superintendent issued the following notice: "To all agents, Asheville Division: Until further notice, place embargo on all shipments of lumber consigned to W. H. Westall and English Co., at Asheville, N.C. account accumulation of business for these people at Asheville." On 16 June the embargo against Westall was canceled.
There was evidence tending to show that, before and during the time of the embargo, defendant had on its yards and tracks at Asheville for Westall some eighteen or twenty cars of lumber — had more than could be placed on his tracks for unloading — and they occupied other tracks; *475 that they congested the yard and occupied cars that defendant required to move other freight on the line. The traffic in the summer of 1906 was one-third heavier than ever before. Plaintiff testified that he made several demands upon defendant's agent for a bill of (578) lading, each of which was refused, until 20 June, 1906, when he gave him the bill and shipped the car.
The only issue submitted to the jury was directed to the number of days which defendant refused to receive the carload of lumber. Under instructions of his Honor the jury found a delay of "nine days, deducting two Sundays." His Honor rendered judgment for the penalty of $50 a day imposed by the statute, amounting to $450. Defendant excepted and appealed, assigning errors set out in the opinion. The exceptions to the rulings of his Honor are not very clearly stated in the record, but in the well-considered brief of defendant's counsel the questions argued before us are thus formulated:
1. "Was the defendant entitled to have its reasons and excuses for not issuing the bill of lading, on demand, considered by the jury?
2. "Can the plaintiff recover a penalty for each day of delay to ship without showing a daily renewal of the tender?
3. "Is the statute (Revisal, sec. 2631) void, (a) as a regulation of interstate commerce in conflict with Article I, section 8, clause 3, of the Constitution? (b) as being in conflict with the Fourteenth Amendment to the Federal Constitution?"
In discussing the first question we are uncertain whether his Honor was of the opinion that the statute imposed upon the defendant an absolute duty to receive plaintiff's lumber for shipment to Westall, and that no defense was open to it other than "the act of God or the public enemy," or whether, taking all of the evidence as true, it failed to show such a condition as excused the defendant from receiving the lumber for shipment to Westall. Having received the testimony, over plaintiff's objection, it would seem that his Honor was of the opinion that no valid defense was established. As the construction of the (579) statute has in this and other appeals been pressed upon our consideration, we think it well to discuss and decide it. Section 2631 provides that transportation companies "whose duty it is to receive freight for shipment" shall, for refusing to receive all freight "whenever tendered" to its agent, etc., forfeit and pay a penalty of $50 for each day it refuses to receive said freight, together with actual damages sustained. The freight must be tendered at a regular depot and within business *476
hours. Alsop v. Express Co.,
This brings us to a consideration of the defense offered by defendant as an excuse for not receiving plaintiff's freight. Do they establish or tend to establish any valid, legal excuse? While plaintiff was permitted to place the lumber on the car at Black Mountain, it is conceded that defendant refused to receive it for shipment or to issue a bill of lading for it. This was a refusal to receive. Twitty v. R. R.,
We do not intimate that defendants has any right to issue an embargo upon one or more of its customers or patrons and refuse to carry or receive any freight for him. To permit this to be done would empower the carrier to discriminate, not only against him, but against other persons from dealing with him. It is a fundamental principle of the common law enforced by statutes and made indictable in this State for a common carrier to unjustly discriminate between members of (585) the public. Revisal, sec. 3749. It must serve all alike, under the same circumstances. The purpose of the law is the "prevention of unjust discrimination, or, to put the proposition affirmatively, to secure to every person constituting a part of the public an equal and impartial participation in the use of the facilities which the carrier is capable of affording and which it is its duty to afford." Lumber Co. v.R.R.,
The evidence shows that at a time when all of the railroads and the people were confronted with an unusual condition in regard to the transportation of freight Westall permitted eighteen or twenty cars loaded with lumber to stand upon the defendant's tracks at Asheville. How far this conduct would have been a valid defense to an action brought by him for penalties for failing to transport and deliver freight is not presented in this case. The Corporation Commission has made rules and imposed penalties for their enforcement in regard to unloading cars. If they are not sufficiently stringent and the penalties not sufficiently large to protect the roads and their patrons from congested yards and tracks, we have no doubt the commission will make them so. We can not weaken the principles of the common law, founded in wisdom and justified by experience, nor construe away the plain provisions of statutes to accomplish this end. If the enforcement of these statutes in some instances work hard results, the appeal must be made to the General Assembly for their modification. We can not think it improper to express the hope that a clear recognition by those who manage railroads, and by those who use them, of their respective rights and duties will remove much of the friction which has resulted in the statutes enacted by our Legislature.
The defendant next urges that the penalty of $50 for each day the said company refuses to receive said shipment can be recovered only when a tender is made on each day. We can not concur in this view. The plaintiff hauled his lumber to the defendant's regular depot and, with its consent, placed it upon the car, demanding a bill of lading, *482 which was refused. Plaintiff says that he went to the agent two or three times and asked if he had shipped it, and he said that he had not. He wanted plaintiff to unload the car, which he refused to do. The agent said that he was holding the car at plaintiff's expense. Plaintiff explains how, by reason of the refusal to ship the lumber, he was compelled to cancel other orders which he had accepted from (587) Westall — was compelled to stop sawing, his only occupation, etc. To require the plaintiff to haul the lumber home and return it to the depot each day, or to go through the empty form of making constructive tender, imposes either an unwarranted hardship or savors of trifling with a man's substantial rights. The plaintiff left the lumber on the car, with a standing tender and demand that it be shipped it. This was well understood by the defendant's agent when on 18 June, 1906, without any other reason than that the embargo was raised, he shipped it. It is not shown that conditions at Asheville had changed on that day. If plaintiff had removed his lumber on the refusal to ship — hauled it away — of course, he could claim only for the day when it was tendered; but he made his "tender good" each day and at all hours of the day. The statute would be of little value as a remedy for an existing evil if the narrow construction is given it as contended by defendant. The Legislature evidently intended to impose a penalty for each day upon which the freight was at the depot ready for shipment. If the freight tendered were bales of cotton, hogsheads of tobacco, or other heavy, bulky articles, it would be impracticable to haul and rehaul it to defendant's depot each day. While penal statutes are to be construed strictly as against the party against whom they are enforced they are not to be so construed as to make them of no force and effect. Upon the defendant's evidence the tender was made on 7 June, and kept good until the lumber was shipped on 18 June. Each day's delay in shipping was "a refusal to ship," within the meaning of the statute.
Defendant contends that the statute is a regulation of interstate commerce and violates the Constitution of the United States. The proposition is founded upon the decision in R. R. v. Mayes, supra. In that case the demand was for cars to ship cattle beyond the State. Here the point from which the lumber was to be shipped and its destination were both within the State. Defendant's contention is that, while this is true, as it is an interstate road, engaged in interstate commerce, if it is compelled to receive all freight whenever tendered, it will be prevented from discharging its duty to its patrons engaged in interstate commerce. To state the contention in the words of defendant's brief, "The (588) statute, if enforced, would interfere with interstate commerce, in that it would require the defendant, under heavy penalties, excessive and unreasonable, to give preference to intrastate shipments." The *483 contention is also made that "the statute, in terms, includes freight tendered for both interstate and intrastate shipments," and that this Court has in several cases applied this and similar statutes to interstate shipments.
Passing the question whether, in the absence of any suggestion that to receive plaintiff's lumber when tendered in the slightest degree interfered with the duty of defendant to its interstate business, it is in a position to raise the question in this appeal, we think it well to examine the contention and decide it. St. George v. Hardie,
Without extending this discussion further, we find in the decisions of the Supreme Court of the United States the principle uniformly announced and enforced, that "until specific action by Congress or the commission, the control of the State over these incidental matters remains undisturbed." It is not claimed that either Congress, directly or through the Interstate Commerce Commission, has enacted any statute or made any rule with which the statute conflicts or interferes. Of course, neither has any power, by statute or rule, to enforce the duty of carriers to receive or transport all intrastate shipments; hence it must follow that if the State can not do so because possibly its enforcement may indirectly affect interstate commerce, they may receive and transport such freight at such times as suits their convenience or pleasure, *485
free from any control whatever. It would work a strange result if the State has lost so essential an element of her police power without surrendering it to the Federal Government — that it is not lodged in either government. It is not denied that the State must exercise the police power in subordination to the power which she has conferred upon the Federal Government to regulate interstate commerce, and all statutes are to be construed and applied in the light of this fact. The law in this respect is thus stated by Justice Matthews in Smith v. Alabama,
Discussing the same objection to a statute enacted by the Legislature in Ohio requiring a road engaged in interstate commerce to run three *486 trains a day each way, and to stop at a certain class of stations, JusticeHarlan, in an able and vigorous opinion, said: "We perceive in the Legislature of Ohio no basis for the contention that the State has invaded the domain of national authority or impaired any right secured by the national Constitution. . . . The State of Ohio, by (592) the statute in question, has done nothing more than to so regulate the use of a public highway, established and maintained under its authority, as will reasonably promote the public convenience. It has not unreasonably obstructed freedom of commerce among the States. Its regulations apply equally to domestic and interstate railroads. Its statute is not directed against interstate commerce, but only incidentally affects it." Calvert on Interstate Com., 159.
It is said that we have held that the statute applies to interstate shipments. In Bagg v. R. R.,
After an anxious consideration of the very full briefs and the authorities cited, we are unable to concur with the defendant that the (593) enforcement of the statute regulates or interferes with interstate commerce, nor do we see how, under the conditions existing at Asheville, N.C. the receipt for shipment of plaintiff's lumber at Black Mountain, N.C. could directly or indirectly affect its duty to the public as an interstate carrier. *487
But defendant urges that the statute is harsh and oppressive — takes its property without due process of law, and therefore violates the Fourteenth Amendment. The power of the State to impose penalties upon carriers for failure to discharge public duties is not denied. Branchv. R. R., supra; Stone v. R. R., supra. The same contention was made in R. R. v. Emmons,
No error.
Cited: Cotton Mills v. R. R., post, 610; S. c., post, 614; Hardware Co.v. R. R., post, 706; Reid v. R. R., post, 758, 763, 769; Lumber Co. v. R.R.,
(595)