35 N.J.L. 89 | N.J. | 1871
This suit is brought to recover back alleged overcharges made by the Erie Railway Company for the transportation of merchandise for the plaintiffs, between Paterson and Jersey City. The goods were delivered to the company at their freight depots in Paterson and Jersey City, and transported over the company’s line between those points. The rest of the transportation, from Jersey City io New York, was done by the plaintiffs with their own wagons. The company had been accustomed to charge the plaintiffs at the rate of $1.06 per ton for freight between Paterson and Jersey City, up to November 10th, 1869, at which time a further demand was made of five cents for each hundred pounds, for terminal expenses. This demand was made by the agents of the company under an order issued by the company to them, dated November 2d, 1869, as follows :
*94 “ To Station Agents :
“ On and after the 10th instant, you will, in addition to the regular tariff rate, make an additional charge of five cents per one hundred pounds (for terminal expenses) on all freight destined for Jersey City or New York. This must .appear upon your way-bills as a separate item. The same •charge will be made upon all freights from Jersey City or New- York. This applies to all stations, whether on the main and branches on the Hudson Railroad, the Northern Railroad of New Jersey, and Paterson Branch and Union Railroad.”
The company collected these additional amounts from November 10th, 1869, the plaintiffs alleging that the same were paid under protest. The plaintiffs, in their declaration, claimed that the whole of the terminal charges were illegal, and also that the rate of $1.06 per ton was too much by six cents. This latter claim was abandoned, as the same was voluntarily paid, yet the inquiry in this cause will necessarily cover the whole question of rates that the company may charge between Paterson and Jersey City. The claim for five cents a ton additional, as terminal, appears' in all the bills presented to the plaintiffs as a separate item.
The first question will be as to the rates the company can charge for transportation between Paterson and Jersey City. This involves an examination into the status of the Erie Railway Company in New Jersey, and the charters under which their line is operated between the points named, and also an examination of some acts applicable to railroads generally.
The defendants operate a continuous line of railroad between Paterson and the Hudson river, the whole distance of which is about sixteen miles, disregarding the fractions. Of this line about one-half a mile (being in the city of Paterson) is a part of the Paterson and Ramapo road, built under a charter of March 10th, 1841, (Laws of 1841, p. 97,) and another part of the line, being about twelve and a half miles,
The ease shows that the Paterson and Ramapo and the Paterson and Hudson River roads are now held and operated by the Erie Railway Company, under certain leases originally made to the Union Railroad Company, which were assigned to the New York and Erie Railroad Company, and which, by certain judicial proceedings against that company, by foreclosure and sale, with the aid of certain legislation in this state, (Acts of March 22d, 1860, and March 13th, 1862,) became vested in the Erie Railway Company, so that such company is now the lessee of said roads, and possessed of all their franchises. These leases have been fully legalized and confirmed by two several acts, one passed March 14th, 1853, (Laws of 1853, p. 480,) the other, March 13th, 1862, (Laws of 1862, p. 207.) The Erie Railway Company has therefore full legislative authority to exercise the franchises of those two companies, and is subject to the provisions and limitations of their charters and supplements. The case does not develop the precise relation of the defendants to the Long Dock Company. The fact, however, appears that the Long Dock Company built the road through the tunnel, aud to the ferry, and that the same is operated by the Erie Railway Company as a part of their line from Paterson. It is a matter of some regret that this omission appears in the case, but neither side offered to show that relation on the trial, and the case must therefore be determined under this uncertainty.
It is claimed by the defendants that the Long Dock Company was only authorized to construct their railroad, without being empowered to use it as carriers, and that the same was
The Erie company has full possession of the Long Dock road, and is apparently using every franchise necessary to its operation. This, of course, is subject to such rights as any other companies may have to its use as a public highway. The powers under which the defendants run the Long Dock road must arise in one of three ways :
First. As a foreign corporation, carrying on simply a carrying business within our state, and exercising only the common law right of carriers; or,
Secondly. As lessees of the Long Dock Company, exercising its franchises; or,
Thirdly. As lessees of the Paterson and Hudson road, and using the Long Dock road as a public highway.
Each of these views must be examined, and the first is as to the claim of the company as common carriers merely.
The business of a common carrier is general, and has its foundation in the common law, needing in itself no legislative authority. It is not a franchise, and I have no doubt that, by the comity of states, a foreign corporation may exercise in this state a carrier business merely, and may, for that purpose, like any other citizen of the state, use its highways, whether they be ordinary public roads, turnpikes, or railroads. The use merely of ,these highways is of common right; they are intended for the accommodation of the public, and although they are created by the exercise of the prerogative power, yet the use of them is of common right. The mode of use, however, by the public, is different on a railroad from that on a common highway or turnpike. On these the public have a common right to travel by foot or in their vehicles, or in all the ordinary modes of travel on such highways ; but on a railroad it is not so. A railroad, although a
Any of our citizens, by force of the common law, could use all the conveniences which a railroad affords for the purpose of traveling and transportation, and a foreign corporation, by the comity of states, could alike úse them the same as a citi
There are certain franchises not necessarily local, as, for instance, the creation of a corporation. And a corporation, like an individual, though belonging to another state, may have all the common rights which our people are entitled to, unless in some way abridged by reason of state policy. The right to build a turnpike and take tolls for its use, is local — ■ that, is, it must be exercised within the jurisdiction of its creation, and by such instrumentalities as the legislature has provided or recognized. A railroad, both as to its construction and running, is the same. Franchises of this nature are special, and must'be exercised in subserviency to such hands as the legislature has designated. The trust is not transferable. The very nature of it, as well as obvious reasons of state policy, require that if any part of the governmental power is lodged in the hands of certain persons or corporations, they should be prevented from transferring it at their option. Hence the necessity of legislative sanction to leases for the control of a railroad, where its franchises are to be used by the lessees, as of their own right, and not as mere agents of the body authorized. A railroad corporation may perform, outside of its territorial existence, a great many of its functions, but those franchises which are purely local, must he
A corporation authorized to establish and conduct a ferry, will be held liable as a common carrier when such liability results only as an incident to the franchise.
A foreign corporation professing to use our railroads only as common carriers, may, in the modes of use, become so-amalgamated with the franchises as to make it difficult to say whether such foreign corporation has usurped any of the franchises or not. A foreign railroad company using any of our roads as a carrier merely, might furnish to them material facilities for transportation, entirely consistent with the integrity of the local franchise. It is very difficult to draw the line to which the right as a carrier would extend, and beyond which it might be regarded as an invasion of the franchise. That line need not be drawn in this case, as there is no question but that the Erie Railway Company is fully in the exercise, apparently, of all the franchises necessary to operate a railroad for public use. It is well, however, to remark, that the privileges of foreign companies to our roads should be liberally regarded, and they allowed every advantage consistent with the substantial maintenance of the right of our state to control its own instrumentalities, in the performance of such governmental duties as.it is deemed best to delegate to others. As, for instance, there should be a liberal comity
Eegarding the Erie Eailway Company as running the Long Dock road, and considering that their carrying business is done by reason of tlieir possessing and operating that road, and supposing that there is no legislative authority to exercise the franchise of running a railroad, that company then would stand in this condition; it would be a foreign corporation doing a carrying business in this state by usurpation of our own state franchises Its freights are charged for and earned in that mode. The act is an entirety. The conqiany cannot dissociate any common law right from what must be regarded as an act antagonistic to the laws of our state. It cannot ask protection upon the principles of comity when the business for which compensation is claimed is done by illegal means. The position of our state must be this : if a foreign corporation is content to do a carrier’s business, or any other business, with such means as are common to our own people, such business should receive the countenance of our laws. But if not so content, and it invades our sovereignty, and thereby conducts it business, it should accomplish nothing by its wrong. The result, then, on this point is, that if the Erie Eailway Company is not operating that road by legislative authority in this state, it cannot separate any common law claim as a carrier from its violation of our law, and thereby be allowed to charge as a common law carrier merely.
The second ground under which the power of the Erie Company upon the Long Dock road may be said to exist, is as lessees of that road, and exercising the franchises of the Long Dock Company. The presumption would be, in the
In the supplement of 1858, (Laws of 1858, p. 312,) there would seem to be some recognition of the right to operate this road by the Long Dock Company. Another supplement of 1858 (Laws of 1858, p. 204,) makes it a public highway, free for the passage of locomotives with their trains, upon payment of certain tolls. Whether, by force of the word maintain, in the original charter, and by the implication of the supplement of 1858, (Laws of 1858, p. 312,) the Long Dock Company were empowered, as carriers, need not be now settled ; for if they were, it must be subject to the limitations, as to rates, contained in the New Jersey Railroad charter, and those are the same ts in the original charter of the Paterson and Hud
The third ground upon which the defendants may be empowered to run the Long Hock road is as lessees of the Paterson and Hudson road, and using the Long Dock road as a public, highway, under the franchises of the Paterson and Hudson company. And this is the true ground on which the company now stand in operating the Long Dock road. The Paterson and Hudson company, by act of January 21st, 1831, (Harr. Lmws, p. 318,) were empowered to construct a road from Paterson to Weehawken, and thence to some suitable place on the Hudson river, within fifty feet of high-water mark, with power to hold real estate at such termination, but not to approach nearer than fifty feet of high-water mark at either of the then ferries of Hoboken, 'Weehawken, or Jersey City. This interdiction to fifty feet of high-water mark was evidently intended to cut the company off from ferry privileges or any interference with the shore owners. The power of the company, however, substantially extended to the river. This same provision is found in the New Jersey company’s charter. By a supplement of November 18th, 1831, (Harr. Laws, p. 365,) this company was authorized to locate and
It will thus be seen that the Paterson and Hudson company had full power to construct a railroad from Paterson to the Hudson' river. That company was also empowered by the charter to run the same. A tunnel through Weehawken or Bergen hill, was evidently in contemplation at the formation of the company.
At first the road was constructed as far as Bérgen hill, then it turned southerly and connected with the New Jersey road, under certain agreements. Its connection now is with the Long Dock road, and reaches the Hudson’ river through that channel.
The lease to the Union Company was executed September 9th, 1852, and under it the Union Company were “to use, employ, and put in force all the rights, powers, and chartered privileges of the Paterson and Hudson company, for the purpose of making a tunnel or otherwise passing Bergen hill, and extending and making a railroad from any point on the Paterson and Hudson road to the Hudson river, to some point opposite to the city of New York, and for receiving tolls and making and collecting, by all lawful ways, money, at the rates permitted under and by the charter of the
The Paterson and Hudson road, with the franchises of the company, is now legally in the possession of the Erie Eailway Company.
The Long Dock Company, by section nine of their charter, were empowered to build a lateral or branch railroad, to intersect any other railroad authorized or constructed by law; and witli a proviso that no branch railroad constructed by virtue of that section should intersect or cross any other railroad without the consent of the company to whom the same may belong. Under this provision, the Long Dock road was constructed and connected with the Paterson and Hudson road. By the supplement of March 4th, 1858, passed while the road was being constructed, the tunnel and railroad were declared to be a public highway for the passage of locomotives with their trains, &e., upon the payment of certain tolls.
Tiie supplement of March 11th, 1858, provided that all locomotives and (heir trains and railroad carriages that may or eludí be authorized by law to be placed and run upon the same, should be regulated as to time of starting, running, &c., so as not to interfere with the use and occupancy of said railroad by the Long Dock Company or the New York and Erie Railroad Company or their grantees or assignees. Evidently the purpose of the legislature in this legislation was to make this tunnel-road a highway for other railroads authorized to be constructed and to run over the same general route, so that such railroads, so authorized, could use it as a part of their own road on payment of the tolls provided by the supplement of March 4th, 1858. The effect of it is, that on payment of the tolls, a connecting company, so authorized, could enjoy its franchises by running over the Long Dock road the same as if such company had built it. The Long Dock road is peculiarly a railroad-highway, and intended as
The public had a right to demand of the Paterson and Hudson company the means of access to the Hudson river, and in the absence of a substitute, to require the complete construction of the Paterson and Hudson road. That company, instead of building a road, are now using this tunnel-road as a substitute.
The tolls provided by the Long Dock supplement are, in some sense, an equivalent for the expenditure necessary in the construction of an extension by the Paterson and Hudson company, and in lieu of such construction, this railroad-highway has been authorized.
For all purposes of transportation, the Paterson and Hudson company must be regarded as exercising their franchises over this highway the same as if they had built the road, and their freights and charges must be in accordance with the charter of that company and the lavys affecting it. Any arrangement the Erie Railway Company may have with the Long Dock Company, by which the use of the road may bo compensated otherwise than by tolls, cannot affect this condition. We were referred, on the argument, to an act to authorize the New York and Erie Railroad Compauy to purchase and hold lands, and to complete and finish tiie railroad of the Paterson and Hudson River Railroad Company, passed February 21st, 1856. Objection having been made to its use, as not having been offered in evidence and not being declared a public act, I have not felt at liberty to give it any force in this connection, the legislation already referred to being sufficient to establish the ¡mint before us without the aid of that act. It should not, however, be considered as clear that that act is not public. It perhaps might be regarded as but a supplement to the Paterson and Hudson charter, and if so, would be public'alike with that. The status, then, of the Erie company is as follows: in going from Paterson to Jersey City, it uses the franchises of the Paterson and Ramapo road for about one-half a mile, and for the rest of' the distance, the
The rates that the defendants may charge under the special acts affecting the Patersou and Ramapo and Paterson and Hudson companies, are as follows : the Paterson and Ramapo charier allows at the rate of ten cents per ton for each mile for transportation, and the Paterson and Hudson charter at the rate of six cents per mile per ton. This latter rate is the same as in the charter of the New Jersey Railroad and Transportation Company; so that if the Long Dock Company are carriers, and the Erie company the legal possessors of their franchises, this would regulate the charges over the Long Dock road; but, as the case stands, the Erie company must be considered as running over the Long Dock road under the Paterson and Hudson charter and rates.
In addition to the rates in the charter of the Paterson and Hudson company, the supplement of November 18th, 1831, already stated, allowed that company to charge ten cents for ('very ton of goods, wares, and merchandise passing through the tunnel. It is evident that when that supplement was passed, it was expected that that company would build the tunnel. This item of ten cents had been regularly charged to the plaintiffs previous to the imposition of the $1 terminal, and paid without objection. It formed a part of the $1.06 per ton. Considering the Paterson and Hudson company, by their leases, as ru.ruing through the tunnel, the same as if they had built it, the payment of the tolls being regarded as an equivalent for its construction, I think that the Erie Railway Company should he allowed to charge that ten cents, under the supplement of November 18th, 1831. The rate for transportation, then, between Patersou and Jersey City would be as follows : half a mile on the Patersou and Ramapo road, five cents; ten cents fof the tunnel; and fifteen miles and a fraction for the Paterson and Hudson road, at six cents, making ninety-one cents, the total being $1.06. This is the legal amount per ton, without reference to general acts, and
We come now to the general acts affecting railroads. The defendants claim that under an act relative 'to freights and fares on certain railroads in this state, passed March 14th, 1856, (Laws of 1856, p. 276,) which act, by supplement of March 4th, 1858, was extended to all other railroads in the state, (Laws of 1858, p. 201,) they could charge at least five cents a hundred pounds on each of the several roads composing their line. This act is known as the Belvidere and Fleming-ton Railroad act, and it applied to connecting railroads. The supplement having extended it so as to make it a public act, we cau refer to the legislation which induced the original act, in order to give it a construction, even if such legislation is not expressly declared to be public.
The Flemington Railroad Company, by its charter, ivas authorized to connect Avith other roads. (Laws of 1849, p. 99, § 13.) The act to authorize the Belvidere Delaivare Railroad Company and the Flemington Railroad and Transportation Company, out of the net earnings of said companies, to make and declare the same dividends to stockholders, passed February 16th, 1853, (Laws of 1853, p. 90,) shoivs that these companies Avere to connect their roads and run in connection, and were authorized to make dividends out of the common earnings. The second section of the act of March 14th, 1856, is as follows: “ It shall be laiyful for the said companies to charge five cents for the whole distance carried for each hundred pounds of merchandise or other species of property, other than hereinafter mentioned, whenever the present legal charges shall not amount to said sum.” Regarding the BelA-idere and Flemington roads as running in connection, Avith a common interest, the Avords “ whole distance ” in that section cannot, by any natural or just construction, be limited to the distance that connecting freight may be carried on each road. That act applied to a case Avhere tAim roads were authorized to run in common, and the irords “whole distance earned” Avere intended to mean such distance as freights might be carried
In extending this act to all other railroads in the state, it is not necessary, for present purposes, to decide that each independent railroad could not have the benefit of it. My own impressions are that it could. It is sufficient, however, in this ease, to say that where roads do run in common, and are operated by one. company as a continuous line, that the extension of this Belvidere and Flemingtou act will not allow that company to limit the words “ whole distance ” to each road forming a component part of the whole line. The $1.06 which the Erie company could legally charge from Paterson to Jersey City, being in excess of five cents peí hundred pounds for the whole distance, the Erie company cannot be benefited by the acts and supplements in question.
The defendants also claimed the right, on the trial, to show that the merchandise transported for the plaintiffs was express matter, within the meaning of the act relative to freights and fares on railroads, approved March 11th, 1867, (Nix. Dig. 795
The plaintiffs’ goods were not carried by special agreement,
The dispute was excluisvely as to the terminal. Had a ■different mode of estimating the weight been claimed at the time of delivery, or any attempt liad been made to charge for more single packages, or any claim been made that the whole or any larger part of the goods was express matter, on which double rates could be charged, the plaintiffs might have refused to sentí their goods, or at the time, brought the company to a distinct issue, by insisting on their carrying them upon such inodes of estimate as the plaintiffs thought right. At the time of delivery, the means were at'hand on the part of die plaintiffs to ascertain the exact nature of the goods. Now they may not be. And again, when the amount of weight was agreed on, the plaintiffs could well consent to the transportation, knowing that the only matter then in dispute, as it was clear from the course of dealing between them, was the $1 terminal, and that they might supppose they could recover
It is undoubtedly a general rule of law that money voluptarily paid with a full knowledge of the facts, even if for an unjust claim, and even if paid under protest simply, cannot be recovered back. There are many cases, however, to which the rule does not apply. The action for money had and received, speaking generally, lies to recover money which in equity and good conscience ought to be refunded. But this expression is too general as a guide. The ordinary cases where it is maintained are stated by Lord Mansfield in the case of Moses v. McFarland, 2 Burr. 1009, very concisely, as follows: “But it lies for money paid by mistake, or upon a consideration which happens to fail, or for money got through imposition, express or implied, or extortion, or oppression, or an undue advantage taken of the plaintiff’s situation, contrary to laws made for the protection of persons under those circumstances.” Although the decision in Moses v. McFarland is overruled, yet this statement of the Lord Chief Justice is cited ■approvingly in the law. In ordinary cases between individuals, where a person has no power to enforce an unjust claim but by legal remedies, and another pays it, even under protest, he cannot recover it. Both parties are on an equal footing. But where they are not on an equal footing, and money is paid, not by compulsion of law, but by compulsion
Under the lads, then, of this case, the payment must be regarded as under coercion, and the jury were so bound to find, except as to the first two bills claimed, of the date of November 10th, 1869 ; protest having been made after they were presented and goods delivered, they may be considered as voluntarily paid. *
The plaintiffs are therefore entitled to a judgment on the verdict, upon remitting the amount of these two bills.
Beasley, Chief Justice, and Justice Depue concurred.
Rev., p. 914, §§ 40, 42.
Rev., p. 913, §§ 29, 34.
Rev., p. 913, § 33.