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---.--. - ---. .4- . 1-- -N " -- -__ -~1 I7 . ~ 4 - TEI FREIGYI' 'ON COTTON. -0 TIYE F). TEXT OF JUDG MC I A.C E.Y'S -LJSCS. T D-CJIE2. Learned nli Exhaustlvo Documnetit-A Review of the Usago of South Carolina Corporations With Regard to Cottn--The Ialroad Companies 1avo Ticemmolves Established a Usago from tvhioh They Vannot Now Escapme--Tho Thirt.y-Potndsc to-the Uubio-Foot Theory--Tho Respond1 'ent Enjoined fron Charging on Cotton as an "Article of Monsurormeut." The .following it; the full text of tilge Mackey's decree in the procced ng recently brought by Railroad Con issionet-3onhan against the Char otte, Columbia and Augusta iRailroad ompany, to restrain that corporation 'om charging freight on cotton as an aiile 'of measuremont-," -ald to coln el the Company to charge on the same a'.heavy article" :+ 'On .the .25th day of November, 1879, he R dlator herei filed his petition eciting his appointment as Railroad ommissioner of the State of South arolina, pursuant to an "Act to reate a Railroad Commissioner and o define his duties" apkproved Decen or 24 -1879. The Rlelator therein 'leged, inter ali(t, that in said official pacity, he notified (he Charlotte, Ce mlbia and Augusta Railroad, on the st 'day of October, 1879, that. in his tdgment it was engaged in violating s charter, by charging for the trai' brtation of cotton ii hal,, an anmctat .i excess of the rate of flitty ce""s per mxi!retl pounds for each one -itt(lred iles, and that the said Conaly, silce he receipt of sai notice n,ad contin ed to chige suC;1 exes-e rate. The Relator, thoref.te, prayed that rule should issue the said Com any to show ca'4 wh antil iijunction hould not issu 'prohibitg an( res training it fr.(). further continiipg to totate the.Armiit or' it\chitarter In the atuters set fortli ii the said peltion. A rule was accordingly, issued-by me, zuLrnable on the 9th dpv of Decemn ber, 1879. The Respoit ent, it return to the rule, deities thatit has violatel 'ts charter in regard ;) the rates of toll charged for the tnnsport.ation of erchamdise, and ad1ts as tiuec that t has char.g(l rat exceedling fifty JIM per" hundrel )ounds tir each undred miles, on a ton in )ales, but elies that. such ra " are not allowed its charter. 't the lmatter ini -'ne is a legal qu ion atrisiug upon o construction ( Section X. of its arter, upon the determiuatioin of bich depends the light otflRespondent charge on cotter in bales by weight measurement. That the Rospond t Claims the rigit, under said Sec on, to chaugo o," cotton in bales by easurement., anildoes so charge, ani s charges, so ?iade, are less than fteou cents per ubic foot for every undred miles, ahd alleges that such harges are authorized by its charter. hat at the September Term, 1879, of e Court of Common Pleas for the ounty of Faiufield, a cause entitled F. Elder & Co. vs. The Charlotte, olumbia & Augusta Railroad Con 's nv," was tried before his Honor Villian H. l'allace, presiding judge, hich cause - envolved precisely the tame legal gi stion whic is involved in this proceedng, an] a judgment was ;thereil> mnrd In favor of thlis Re.. ;,epondent, sik iilng its right tocharge ' or the trat ortation of cotton in ales by n asuremwent. That said idgment ws appealed from, and such ppeal is na_ on the docket of the upreme C4irt for'hearing at an early ay. TIhat aid app~eal will deermaine - c issues ,i Ised in these proceedings, t If the ~judgmnent of tihe Circuit 'ourt is at tained, then the ijunctiona rayed fo'. conld not be righitflully Sranlted, yt lie' the reversin4f of said udgmnent touldt be immediately foi owed by 4compliance by the Re 9pondent ih~ the lawv as adjudged. nid an i nction be unnlecessary. 'hat should itdjnidgmnent be reversed, 10 injury aimuch ]less nao "irreparia le injury" vill have been done sliip -pers, for thett le Respondent. wilil im mnediately r'ei y, or (enn be fo)rcedl to rea,all In 4cess of the legal rate, wai Siloshold .alId Judgmnent be sus tained, anid th~ inijunctiona now p)rayed for have been ~ranted and of' force In the meanawi the Res >ondenit wil have aufrered i -eparable injury', as Its loss of Its let. I charges cannot 1)e recover'ed by at raoees of Ilaw, and the petition'er 1:It tese proeedihngs can not be made to glvo ana unldertakintg to mnake good such loss. That a state snent of the facts pf' the cause tried at Fairfield Cour't House is set for'th in pri'ted patmphlet herewith filed, it folios 1, 2, 8, 4 antd 5, antd the deciree of' Judge Wallace is ialso set for-th in said pamphlet, together with the raites char'ged on cotton In bales ntow anid ince tile first (lay of October' last, all hich matters'in said p)aiph)let con Inedt andl referr'ed to, are* made(4 parhlt f thlis .return. Whierecforeo; Itespond it plays that the petition be dis issed and the ruile dlisch arged. Blefore proceedinag to deterine the sueOs hereini, It 1s tiroper' for- me to llsider so Inuch of the- .aturn as sets ththat the ver'y questions involved Jhis proceedinag have recently bee'n { ed in the Court of Commnon Pleas , air f4lld Cout.ty, and that ana appeal now pendionomn that decision In Supremue Court of the State. I fall perceive anty mnerIt In this statemienat a ground for' dischtarg~I1g the rule in 6 case untdr' cons5Id 'at1on. The so of Elder & Co. vs. ''eCharlotte, lumbia & Augusta R rIhoad Comi ny, was an actioni brought 'by the aintiff's to r'ecover the sum 'moj' 1.22 wh-ih1 thaleged. he defend t exacted and received fromn themi, excess of the legal charlg~ for freght ten bales of' cotton from Vinnsbor'o SCharlotte, Nort.h Carohini, a die 11e of sevenlt .wd m niles. The tIon was bfough .-i the . Court of 'lal Justices ai ~t Was subpnitted to jury as a question of flict, whot,hr p bales of cottOlt shipped b2)t tdintifib were "heavy tarth artices of measure gut."p und a verdict 'for ~ : .thoe ugio - i i atapild* , " 'ri~ lefuIPIl - a "leavy arti le)' but is an "article of measurement," as bales of that class, compared in weight and bulk witih other art.icles, fh-st, exhaust the carry ing capacity of the freight ears used for the transportation of the same. I sha-H not coinit the grave ilnpro ; priety ofi-reviewing this decisiont, but -1 am necessarily constrained to notice the (rou n(s up11 which it rests, as it hasbeen filed as a partofthe Respoelid ent.'s return in this case. It is well settled law that the judgment in it cau11Se binds only the parties to the cauise\ Certain.ly the right of action (f a any person is nlot to be concluded, erj even stspendcled, by a judgment r<n dered in a cause in whichl he could tot. I be heard, and the appeal from wichI lie canl in nowise control. Especidly is this true of a public officer chaged i withI the dluty, on behlfi of the ptblie., r of invoking -a judiciat deternintiou ih as to thle )oWers oft. corporatio that I In his judgulent. is engaged in i, open and contiring violation of I8and 11 the terms of its chartel", by eacting . excessive rates of toll from thl(public. 1 Section 8 of the Act croxting the . office of Railroad Commissi4ler for I the State of South Carolinahrovides t tltt, ''whenever in the juktnent of I the RItAlroad Coinmuissionio it. shall i appea that. any such corpction has violated any laws, or neglktled in any li respect or particulhr to olply With I -the terms of its charter ir with the I provisions of any of the laws of thei I State, especially in reprt;d to the col- il noctions with other railQads, the rates t of toll and the tine sc4dule, he shlu r give notice thereof inl yriting to suce t corporation, and ift.4e violation or b neglect is continued ;tter" such notice, 0 the Connissioner slAll make applica- 9 tion to ia Circuit iourt or a 'Judge h thereof, in cvacatirtfor an hjunetion, .a o restrain the coupanlly coi)plain(d of 11 ron fturther contauilg to violate the c law or the tells of its charter." I? (Statues at Lar3, Vol. 16, p. 789.) v 1.11111 iunable, therefore, to perceive b1 either the lega0(rce or the relevancy of 1 the argument JyV which Itiscontended, C that althougl it, is made the duty of 1 the Conlnisioner by a solemn Statute V of the Statcto m ake application for an t< injnuctiouto restrain a railroad cor- ti loration which in his judgment is 0 violating its charter, yt,. it is the t (yt.y of"his Court to refuse such ap- I plicllti(,ln, however Ieritorious it may c appeat, because ini a suit biought by a t privi(m individual, involving the same c issu<, the presidinfg Judge of tnother Il Ciruit has decided ill fixor of this b) Rtcspolldeltt, and an allppel from Ihat b1 decision is now pending. i Nor is this t1 extraordinarv view at ai reinforced C by the consideration wh;1h has been n urged in its support, tltt if that de- I cision is reversed slippirs who have s paid charges that are aijuged execs- tl sive may recover the xcess by an 9 action against the ComhAny. If I am e to contemplate the mapitude of the i1 interests involved in tl? decision of a t purely legal question, I should hold e the interests of "ship ers" to be the s lowest in the scale of value. Says an f eminent writer, on the law ot' evi dence, treating of things judicially i taken notice of: "Thegeneral customs 1 and usages of merclants, as well as at the pubi Statutes md general laws at and customs of thicrown country are 1 recognized without lroof of the Courts 11 of all civilized natiols.' '(1. Greenleaf V o01 Evidence, .)1 may, therelore, f properly take udicial notico . of the e fact that accord ng to the custom of t trade, as it relates;o the article of cot- i ton in bales, the 'producers are not v generally the shipcrs of the staple, a but, on the contrary, in the vast ma- t jority of cases, do L.ot ship directly, but sell LI s pro(ducdt at the various ( market towns of theiu resp)ective coun1- c ties to merchants who purchiase Oil 1 specuilationi to ship abl1oad f tor resale, The cost of' tranSsp)ofttion Is a tax 1 up)on the producer, who s(ells for shlip-t mont, for thie silpper deducts from .1 the purchase picte paid( by him for the f produc nt in (lie local nu;r'ket, (lie cost of transportation to thit foreign mar ket in wyhich hie is to0 ruilize upon01 his venture. 1H1nce0 if thie charges for* 1 transportationi are excessive the pr'o- I ducer wvho sells, and not the shipperc who buys, is mnuloted In the reduled(i value of his product caused by (ho illo;;al charge. F~or the producer' .in I such case, thierO Is no0 remethy at law, and lie must b4 subjeuted to Irrepara- I ble iejur*y unless the Courts, upon01 a I proper case nyude, initerpose by injunc- l tion to restrjina the Company fromn diemanding excessive rates of toll.1 The matter at issue amust however be decided as a iiuestion of' law, depend(- I cnt upon01 t cO true constructioni of'( Rtespondient'. charteir, the moaning ando 1 effect of wivihl are to be de0termnined(a by (hose est blishied rules for the in- I terpr'etat.lon of Statutes, which are 4 alike comnmdnded by reason, And( sanIc-< tionied by tIhe highest judicial authori- I ty. Itf that oasructioni should oper'ate 4 to affet inji 'ously ~et' (lhe interests of (lie iorphor'at.ion or of' the public, the remedy is to be sought in the (i legislative ilepa rt.mcnt. (Court4 ai'e to exp)ound Stiitutoes with r'ef'erhne c to, the legal rights vested under' theni, anid not to frame sy'steais of ex pe dliency to fit (lie varying interests of c0ljopoations1 orof' lidividuals.4 The qulestionl to be diecidled In thils ease aies 11pon1 the constructioni of Section X. oft the Act, entitled "A n Act to pr1oduce conformity in (lie charter granted thie CIharlott'e, Colum bla* & Augusta Railroad Company, by the Slates of North COurolina and7 South Carolina,'' passed 'Oecember' 19, 1848. (Statutes at Large, XI, 628.) The Sectioni Is as follows: "SzccruON X. That (lie saId Company shall havo exclusive righ6 of' convey huce or tr'ansp)ortatlin of' per'sons, kods nmerchanidise andl prodluce over __o__ 4abn o b,o by themn con el, and shall have Power' o charo drancorinto ofpro 0U< , duo, erchiandise an ter ar um not exceedin. . not od~einig si i o ~I faf51i,til88 the ~ o be naMi orte wio 90 Ma Articles and fifleen ceils per cubic foot u a ticles of measuremont for ccry hnun" red mliles." 'lds clau,e of its -charter is col ;truted by the Corporation le sp udent, as authorizing it to charge to the transportation of cotton comll lpt -sed in bales a .-ate not toxceeding ti .y cents per hundrced pounds for each Ih ndred miles, holding that such cot t ut as packed in the ordinary hand or I >rse power presses o' t-he count.ry is > be classed as an article of neasure tent., and not as a hcayy articlc, and therere snb)cct to a freight charge lot exceeding fif'teen cents per cub,ic oot for every hundred miles. The lespondenit has therefore charged apon shuh bales a rate of toll in excess f lifty cents per hundred p)otumds f'or achl h1u1ndred miles and claimis the ight under its charter to increase its ate )upon the Samlie to the limit of ifteen cents per cubic foot for the aid distance. The (lifference in the unount of tolls cl'ected by such classi leation Inaty be illustratted by the nstanice of a bale of cot.ton weighing 60 pounds and containing 35 cubic ect. If charged as at heavy article, t he full limit of the charter rate, the reight thereon would be $2.30 per tulcred miles, while if charged 1as aln rticle of lmeasurelmnent, the Company may demand the sum of $5.25 for rallsporting it thle samec distance, n sup Iport of its view the tespondeut submits that the bale Istauced would weigh less by a frac ionl than fourteen pounds to the cubic )ot, and would thus sooncr exhaust be cubic capacity or Inner area of the ox cars used inl t'llnsport.ing this class t 1ieight, thanl articles of less bulk and reater specitir, gravi"y or" weig3ht, 'And enco. to classify such bales 11s heavy rticles would be detrimental to the iterests of Respondent, as the weight apacity of the cars is generally 20,000 >unds, while twei.t --ix of such bales loult exhaust the cubic capacity of a ox car althougl aggregating' only I,060 pounds. 'T'he ]lcspondent urges, lereforc, that flhe true iltentaldlnean Ig of its charter are that articles 'eighintg less than thirty pounds . the cubic toot may be c:assed as ar ches of lmleasurelelnlt, while articles f thirty potluds or tuore to tlhe cubic . ot are to be classed aus leavy articles. L is furl"ther contended that. tie practi il el'cct of this loiuula will be to es tblishl unlifornaity in the fr-eightI barges upon all articles, 11s the Ixi n11111 charge upon an article charged .v weight at ite rate of fifty cents per un(lred 1wiioul be litleen cents foir iirty pounds, while atft lteen cents per ubic foot, the standard of specific ravity being thirty pounds to thecubic )ot, the charge would amuount to the tme. It is further submitted that As standard of classillcation will best ive effect to the legislative intelt, as xpressed in the charter, by harmolliz g the rates of toll charged, alike with he weight capacity aue< the cubic apacity of the cars provided by Re poldent for the trantsplortattion of mrigh1ts. I htave thus g iven1 the saliint points a lespodeit's au"gulnent a1s tunfold mg the groundson which reposes its ssumle<l right to rate cotton in bales s articles of measutrelent. The theo y presented uight be deemed tenable the Respondent wcre ia private indi Idual engaged in the carriage of reight, or it' the question Wei 0 whetl r thie freight charged for the tra.nspor ltioln of cotton in bales was a reason ble rate. In the fonner case the pri atfe carrier could not be subjected to ny restrictions, save those imposed brougll consilderations ofself-interest, 1ndu1ced b)y tile fear of comlpetition or 'thierwise, whsile in fhe latter, the basis 1' clifiiiiction lOlwouki be immalllterial, .s the reasIonaibleness of tile char11ge vouild alone be at issue. Uut the lRe ponldenIt 1.9 aL railr'oad cor'poratin inl hie enjo)ymlenlt 01' a highly valutable ranchlilse, granllted by the State. This rancllhise emlbraces not 0 iiy a righlt of' ray13 over' a wide and1( poll)Ious belt of' ounltryV extenldinIg over' not less than 7.5 miles of' terrIit.or'y in length, and 30 feet ini breadth, whein1 it was1 emI >OWer'ed f'or tile purpose5 of' its r'oad ons5trulctionl to diIvest tile ownerlshhip f prioper'ty by a comlpulsor'y sale after' alulationl mIade, wvith tihe fl-ee gift ot'all ntids of'thle State lylig withuin sixty-five cet of saidl roadi. (See Act to chalter lie CJharlott.e and1( Southi Car'olina Ral - ond Company, passed( Decc. 18, 1846, sections 16 ai 18.) As a conIsidlera 14)n for tile vlualble privileges with Vh1i1c1 it hats been~ vested, and( the spe thal and1( excltusivye rights conferried 1pon3 it, tils corporaftion hlas conitr'acy 1(d to p)er''f ertainf duities to the mlblic whIich ar-c deflned ii Its charter, htichi, as a saf'eguar'd for the public, mposes liits upon01 Its ci1jorpoate po0w irs5 to enforce the per'formuance of those 'ichly endowed by the publl3 Is charg 1(d ly tile pr&oper oflcer ot' the State ,vithl havig violatedo Its charter ini a na1tter1 tihat deeiply IoneCrns11 the coml non interests of the people wvhose'be lcliry it is, answer's back with tilo ar' tumnen,tumn ab inconvecnienti, sett ing up t$ o wn conivenlice, it can hope) to suuc :ced( ill such an issue on)ly by precvall ng upon01 tIle coutsto Ignore both the lictates of rhiI(ht reason0, andt tIhe fun lalmental rulesho for' the IhiteorprIetaltion) >fStatutles. Inl myI opinion tile termiu 'heavy articles"as used in thle chiater' >f the Charlotte, Columbia and Au [usta Rlailroad Company wvas Iitenid. xd to includte lottoni comTpressed( In alos by the orinaIlfry presses of the ~ountr'y, of the usual fonrmi andt weighlt as th1ey wore kunowni in the commercial world at the (late of said chaurter'. AMy ceasonis for tis conclusion are as fol ows: Up to the (late of said 'ciharter mdi for' a per1iod( of m1oreO thanii tirity -car's after its enactinent, cotton in I)ales was classed only as an ai'ticle of' bveighlt in fixing tile r'ate of toll to be shar'ged for Its tr'ansportationi. While Ii ecogizYe the biding force of tho to as seVerely explonnlded by Mu'. try,' tat conltemipor'ary con tr'~ ni nel'r abrogate tile text, fl'ltter- away Its obvious erOI nafr-row down its 0ntlarge~ its nt ral n Cons o, 1. wing a practical construction of the leg- I ishitive intent. The only just limita tion is that such usage shall not be re fei'Jd to fi r the purpose of contradict ing (t varying ti o obvicus sense of the language of the Statute. The object of coistruction as applied to a Statute is to give ellect to t.he intention of Ihe Legislature in enacting it. Says Mr. Justice Coolcy, In (ihe case of all writ ten laws it is the intent of the law giver that is to be eibrCed." (Cooley 'on. LIn., 5.) The learned counsel for the Respondent, however, while ad nitting that the Statute in question requires construction, and that there lore its import is not obvious, objects to any reference to coinitemporary usage as ia saf standard of initerpretation. This obfrction is opposed by the over whelmng weight ofauthority in such cases. Said Chief Just ice Marshall,deliv ering the opinion ofthe Supreme Court of the United States in a celebrated cause, "Great weight has always been attached, and very rightly attached, to contemporaneous exposition," (Co hens vs. Virginia, 6 Wheaton, 264.) in the case of Stuart vs. Lat1i1, the Supreme Court of the United States say, in reply to the objection, that Judges of the Court had no no right to sit as Circuit Judges: To this ob ject ion, which is of recent date, it is suilicient to observe that practice and acliesceice uinder it. fora period ofsev eral years con mmencing wit h thl orgaui zation of the judicial system, affords an irresistible answer. It is a contem porarv ileripretat.ion of the most forci ic na.ture. This practical exposition is too strong and obstinate to be shaken or controlled." (1 Cranch, 299.) in the case ofThe Kig v- Osborne (4 East., 335) Lord Ellenborough said, '1 consider it as established on the best authorities in (lie law, that conttelpo ranueous and subsequently continuing usage may be resorted to for the con struction of a charter." Lord Manlls field enforced she sane principle in Cook vs. Booti.(Cowper, 828.) And Lord lliardwick said (3 Atk.,,574): In the constructioii oftancient. grants and deeds there is it) beler way of con struing themi1 thau by usage, anad eon le mporonea CZxoitio is (lie best. w:ay to go by." III the case of Iivingstoii vs. Tlenbrock (16 .Johnsion, 14) the rule wa s applied in teraus that are exceed ingly opposite to Ithe mal.ler Itow ulder consideration. The question before the court in that. case wit whet.her a party authorized by the terms of his grant to "eut, and hew timber for bnilding" in tle woods of tle Maior of Liviigston was (hereby empowered to cut an(1 hew timber for Fencing. Chief Justice Spencer deliveritag the the opinionl of the Supreme Court of New York s:aid, "1t' a witness would be admitted under these circunstances and if firon the lapse of timne we are not to expect ainy proof of that kind, the next best evideice arises fron the acts of the parties, which go to denonstrate the construction they put on the grant, and the sense in which they understood the words used." (Sec also Perrine vs. Ches. & 1)el. Canal. 9 Ho ward, 118.) Authorities to the same effect might be readily multiplied, but I shall close mny citations on this point with the folowing extract front Phillips on the Law of Evidence (vol. 2, 745) "Cont tinual usage is Ia strong practical ex position of the meaning of the par ties. And modern usage of forty or lifty years duration is evidence not only for that 1"eriod, but evidence from which it may be presumed, if nothing is shown to the contrary, that the saime course was pursued in earlier times. Even in the case of an Act of Parlia mont universal usage has been referred to ats a proper expositur, where the the language is douibt ful." See also 2 Coke lnst. 282, and the Baink of Eng land vs. Anderson, 3 Binugham's New Cases, 666.) The questioni now recurs, has there been long continued practical constructioni of the terms of this charter, by contemporaneous anid uniform usage'? I thlik that this cana be established be yonid a reasonable dloubt), and that thme words imn questioni have beeni inter prieted by an unbroken iuage, extend( mgi" over at periiodl of morei thant fifty yearis. T1wenuty years prior to (lie date of this IRespondent's charter, thme General Assenmbly passed an Act in corp)orating (lie South Carolina Cainal Rtailroad Complany (Act Dec. 19, 1827, VI II. Statutes 36.4) and embodied the t'ollowingv words in Section 4 of the same: "'Thle charge for the transporta tion of goods, produce, &c., shall not exceed t.hirty-tIve cents per hundred p)otunds, onl heatvy articles, and ten cents per cubic foot oni articles by rneasurem ent, for everiy one huiind red midles. These words are Identical w ith those contained in llcsponmdenit's charter, except as to thie rate of tolls. Yet the South Carolina Railroad Comi pany' has invariably, during the long period above stated and down to the present (lay, classedl cotton in bales as "'heavy articles," and charged thereon by wvelight and not 1)y mecas urement. At (lie (date of itesponid en t's charter~ the South Caroli na ital - road was In full operationi, and had been running Its freghut and passen ger trains for years to Columbia, (lie Capital of the State, where the Legis lature annually convenied. That body was largely.composed of cotton planit er's, and It muhst be assumed from their direct I(iiiua Interest in thle mratter of~ freight, charges on cotton, that wvhenx they Inserted the words "heavy articles" anid ''articles of' measurement," in lleApondent?s char ter in the year' 1846, they were fully awvare of the construction that had1( been given to the samfe words in the charter of another company granted by thecm In the year 1827. That coni struction was, moreover, the one that was most favorable to producers anid shippers, and least favorable to the raliroad companlhiy that adopted and acted upon It. It is hIghly rea.soinable to presume that a Legislature so com posed Intended that of t.wo freight classificatIons to which articles of transportation might be subjected, cotton ehhuld be placcd ini the more favored class. 'ThIs presumption Is strenigthenedl wheni we recur to the fact that cotten was then, as now, the bhiof roduct of the State, and that all es. O.urlshed or languished, Solikerfalli it ThaUGa (I non-muanttfiacturing people, and was theref'ore inutcnde(d foir salo in distant mirkets, Hence it is saf' to conclude that to t\lrnish a cheap and rapid m1e1ans of transportat ion to market for this valuable product.. mulst have been the chief' motive that impelled popular subscriptions to the capital stock of this Coupaty, as provided for in its cha rter, lint upon Respondent's theory, the Legislature intemded that the Soth Carolina RIailroad Conpany should have the right to charge on cotton in bales as articles of mueasurement., which at the rates fixed by its charter would have enabled that 'corporation to have charged on a 500-pound bale at cotton, containing 40 cubic feet, the "umn of $5.20 front Columbia to Charleston, at distance of 130 miles while the same 1 do, if' transported that. distance as a heavy article, at the Cxtrelo charter rate) would have been charged $2.274 only. And un this basis of classiticat ion, at the rates of toll allowed in Respondent's char Ier, the charge on a bale of cotton of the above s (ated weight and cubic on tents, would bc from Colnunbia to Charlotte, N. C., J110 miles, rated as in article of neasurementt, $6.00, and is an article of weight only $2.75. T'he teslontent's construction of its abarter'-righits, it will thuts be perceiv ad, discriminates severely against cot Loi, which, it has beeI shown, might be reasonably presumed to have been the favored product of the State. But we are not left. to presumption in this particular, for we have posit.ivo legis lation discriminating in favor of this product. By the Act of Decenber 20, 1828, fixing the rates of toll to be sharged on boats passing through the Lansford, Catawba, Saluda l( and other Stnianls thereinl am1tuaed, it was p1 rovid Id, that "For every boat, loaded with :otton, one cent onl each hale, for each ock. For every boal loaded other wise thant with cottont, :t74 cents for 'ach lock. For every eauihty boat. 124 -xuts. When a h. at is loaded with es8 lhan thirteeu bales of' cotton it hall pass as an emnpty boat. When bot is loaded with le.s than one ton it shall p;:s as aant eniupy boat." (VI. . i7n.) 'lhe rates of lie Colun iaa (anuall were established by anl Act :8' ( ie saine dale, its follows: "Itor !very batl. loauded with cot on, one ,eut ott each bale ; but boats loaded with less than tw,uty.v-five bales of -uttun -imll pay oine dolhu'"." For oabs loaded otherwise (hanl with cot 0on, the filowinlg rates are required: rom L $1.00 to $2.0n per boat, accord ur to size. For each eitpl.y boat 1.00. It will be observed that as to the irst nanied canals, a boat loaded with ,,-")} pounlds of cotton, or twelve MIles, estiuting a bale at 450 pounds, was allowed to pass as an empty boat, an(1 was charged ontly 124 eents, while t boat with one ton or 2210 pounds of any other ladiug than cotton was char"ge(d 374 cents pet' lock. On the Columbia Catnal a boat loaded with Lwenty-four such bales, or any num 4er less than twentty-Ilive, was charged tl, as atin ompty boat, while a ))oat with any other ladintg, however light, was charged at least $2.00. I have Ilought these details not unnecessary, Es they serve not only to exhibit the practical eflect of 1tespondett's con dtruction of its charter, but make inanif'est the fact that at the very period when the words, which are uow construed to impose on cotton the hi"'hest rate of toll, were first em hbodieh it a railroad charter, it was the declared pol icy of the State to dis r'iimiate in tvor f tht article. Thiat there tmay lbe a State policy, not dleclared in terms. butt deducible from the genet'al scope of' its legislation, as to a fiscal 01' inidustial entter'prise, I have nto doubt. Ini the Bank of Au gusta vs. Earle (13 Peters, 584) ChIef Justice T1anuy says, hix refereunce to the alleged policy of' Alabamta t.o ex l ude f'oreign cor'porat ins from put' athasinug hills ot' exchntge within her' lindt,: "We, huowever'do ntot mean to say that thier' are ntot many subjects upon01 which thme policy1 of'the several States is abunudanutly evident from the nattur' of their listituit.ionis, and( the gfenerail scope of their legislation, and which do ntot need the aid of' a plositive inid( speclial law to gu1ide the. dOcisionus of' thme Cour'ts." hut adit(tttinug, rirpumnti gra'tiu, that, the wor'ds of' the charter in gu est ion are amnbigu ouis. the pracical contseqtunces of' he sponidenit's consttructionu, above shownt, would be siuflinienet to reject It. In the case of' thme Untited States vs Fi'sher (2 Cranch, 501) ChIef' Justice Marishatll said: "TLhat the consequences are to b)e consider'ed in xpoutnding laws, where the inttenit Is doubitt'tl, is a principle not to be contr'ovorted. V, hero rights are itnfringed, wheuro f'undamntal pincipcle)s tire over trownu-where the generatl systeun of' the laws Is dlepaited froma-the leg islative intent must be cxpressedl witht liresistible c'learnesis, to idiuce a Coturt of Jutstice to siupoeadsg to effect such obje'cts."~ In (hale River Bridge vs. Warr'en Br'idge, the Supremne Courit of' thte Untited Stiates say, "that alny amibiguuity In tho termus of' the conltract must oper'ate igainset the corpor'aton, and1( int favor of the p)ublic, and1( the corpor'ation catn ahulmn nothing butt what Is clearly givent by thue Act." (11 Peters, 644.) "lit the :ounstrucntion of a char'ter', to be0 In doubt Is to be resolvedI, anid overy resoluitiouu whImich spr'inmgs from ilonbt Is agatinst the cot'por'ation." (Penntsylanima 11. Rt. vs. Canual Comu milssiors, 21 Pent, 22.) "Am bIgitties amnd utncet'tainthes In thie ex p0ressins used, must be strictly hlcd against tIme cor'portion; and1 wher'e dutbious or' obscut'e expressionms are used( in the Statntes, conietlmoaneouts usage may be resoied to, to obtaint the trtue intent of the e,pressionts." (Pottei's Law of Corpor'ations, Vol. 1, Itmywell be hold that this cor' por'atiol Is toppe)d from dentying then eoorrectuess of a contstrucilont of Its charter, which, ahlmhough most favora ble to time public, It hmas asserted and acted upomn for more thant a quarter of a century. (Crtainly 'this Is the establlished doctrine applied to rail road corporations, a-to. the locationm of their routesap b i ofr Its owyn charter by tl.c location and 'construction of its road will be held binding upon the company.." (Red field on Iaws of Railways, V%ol, 1, 123.) As to the thi-rty-pounds-cubic f iot theory, it was, in my o:pinion, as toreign to the contetomplationt of the legislators who -enacted this charter, as w.as the mat.hemantical pizle of the duplication of the cube, that baflled the genius of Euclid, or the perplex ing problem of the asymptote of the hyperbola. To impute to them any such occult theory is to take a highly transcendental view of the legislative mind. Nor is the capacity of IRe spondent's cars to convey articles of ieasurenclt, at all more relevant to the issue, than would be the tractive power of its engines to carry articles of weight. The equipment of its road is changeable at the will of the Ite spondent, and for Courts to give judi cal sanction to such ain argument wrould he to erect a most variaie at uncertain standard by which to nlcsur - public rights. In view of the law and the facts in the premises, it is ordered, adjudged and decreed: That the rule heretofore granted in the above entitled cause be, and the same is hereby made absolute, and that the Respondent herein, The Charotte, Columibia.& Augusta Rait road Company, its ollicers, agents, ser vants and enployes be, and the same are hereby, perpetually prohibited and enjoined from charging for the trans portation of cotton in bales, otherwise than as articles of weight, subject only to the same rates of toll per hundred pounds, as are applicable to all other heavy articles, pursuant to the charter of the said company as herein construed. It is further o-der ed thati a copy of this order be forth With served upon the said Respondent, and that the lRespondent do pay the costs of this proceeding. T, J. Macxiy, December 24, 1879, Circuit Judg S.tltA SEtNHAtD'A She Gives the New Spanish Queen a Lesson in the Art of Kisshlag. What a spectacle we saw last night on the stage of tihe Francais l 4.I Ier ianti" is the cef//'d'crumcre of' the mod erin repertoire of the F'raneais, and last; night, helicve mime, Sara Biernhardt muaid her valiant. conadjutors were on their mettle. During the first fourt acts Le Ilernhard. has little opportu nit y to be more than a iliving piece of statuary. What posest What aban don I I' very atlitude grace, not a poise of a tinger that might not satis fy the eye of Canova ; yet no set grou p ing, ill case. Thus for the font sup pressed acts Sara moves, a thing of beauty and repose, the latter broken only by the lire of that classic utter a:nce: "You are my lion, superb and gen erous 1 I love von I" But when the fifth act comes, you mmist prepare to have your nerves sha:,en. Great. IIeavensl Is It possi ble that such love as this can only be stage-feigning? What must this actor Mounet-Sully be made of if, when the curtain fialls, ie can blandly say, "Good evening," and turn his back on this maddening creature who has been tmauling him, with piating breast, and liquid eyes, and liltlf-exhausted voice for nearly an hour? It must cer tainly be said for Sara Bernhardt that she has discovered new departures in the art of kissing. I don't believe the man lives whose back hair has been so extensively, thorouglv. and extiastivelv kissed as ~Mouncat-Suilly's las by Sara 'rnhardt. F"roma the very motnetnt Donna Soi finds that the 1)1ans of the cotnspirators are likely to succeed, anid she is ntot goling t.o have her lIer'nanti as sihe thought she0 was, Icrnthardt beginas hera st.udy of' kisses, which cetaJinly includes all the variat.ions-andante, allegro cona more, il penscroso, carescetndo, and( never mrinutetmo, utntil they ar'e both dead, and(, pr'esumably, can ntever' get kissed any mtore. As a kisser', Sara is too numttero(us to montin. She does ntot stantd on thto otrdcr of' lher' kissinag, but kisses at on1ce. Conventiotnal kissitng spoits are areeable, but ntot indispen~ siable, if inot hoady. F"or itnstance, whlenm Ilerani Is using his lips to abuse his etnemies with, atnd, thort fore, is obliged to botrrow thaem for a little while f'ronm Sara, site em ploys thec timec puttitng kisses all1 over himta like the buttons on the jacket of thme page In ''Couasin Joe." Sheo stands on hera tip. toes-for Mouncet-Sully Is over six feet ftal-to kiss the rear' cetntral lock ont the apex of his cratniuma; leaving hot hands clasped up there, she goes on exceursionts with hter scarlet 11ips ln the Interstices of his neck-frill. Whton hanmper'ed by thto con ventionialities of' untphilosplaic syoarinig apipatrel, agaitst whose absurd tratnmels Cari lrle's sage protested so valiatntly (mani bling, according to the Tencmfelsdroeck thteor'y, a naked atnd not a clothed ani nanl), sihe finds tao tmore man to kiss, shte simply falls to kissing hIs wvard robe. 8Se puuts lier loving hmead upont his aarm, anad kisses all the velvet atndi satint thecreaboutis. Site wimnds her'self arounmd his waist atnd kisses every puffi on thme fronat of htis dloublet. And when at last he-kiss-assaualted with the persistenucy of a b)esleger bat tcritg a fortress-shecds on haer lis tao ble smile, atmd liftitng lis kissing slena dIerling right off her foot, clasps her with his lonig, strontg arms to lis broad breaCIst and e~os intto the kissitng busi ntess imrseil there is positively a sigh of' 'relief anid satisfaction amontg the audiettc. She has got her kiss at last, poor gi ; we hope sihe oenjoys it I Weo can see the lithe, snake-like i'ramo shiver' under it, and~ hoar theo golden voice, br'okoen into syllablesb bykissing, mutmnri ecstatically, "Oh, my Her ntani!I" Ie htas got haer uap clear of'tte floot', as a n(otheor holds at babe, onto armi aaround( hera shoulders, thte other per'du itt the folds of hter traina of p)ink silk roepot ho is simply nur'sintg her. A gr'oup int statuary Ayo, so help me. , Michaoel Antigo N ow, by the swan of Leda, by the Cii >i love of P'syche, by oveory kissing dit i n %he paganmyth ifQi itho kis onie-S ylys era more accomplished as an artist than imi pet.ons as a man. And while the fture Queen of S ain was leaning on the scarlet eushion in front of her in the imperial box, to witness tids fascinat"ing spectacle, at lesson to her in the divine art of kiss ing, poor Eugenic was resting at the residence of the Duke do Mouchy, in the Avenue do Courcelles, after a fa tiguing voyage from 'England.-Olive Logan in Paris Lettor. CY CL.OPEDIA. NP4W1V REVISED EDITIO., ENTIRIELY t'EWItITTEN BY THiE ABLEST WituiEst ON EV-ERY SUDJECT, Printed from New Type, antd Illustrat ed with several hlousand En gravings ia-ld Maps., Tim work originally published under the title of the New American Cyclop dia Was comierced in 188, since whi time the wide circulation which it ha attained in all parts of the United States, and tire signa'l developments which have taken plaeo in every bronch of sci ence, literature, and art, have induced the -editors :a'nd publishers to submit it to an exact and thorough revision, and to issue a new edition, eatitled Till: AMEItICAN CYCLOPiEDIA, Within the lust twenty years the pro gress of discovery in every department of knowledge has made a new work of ref erence an imperative want. The movement of political affairs has kept pace with the discoveries of science, and their fruitful application to the in dustrial and useful arts and the conven. ience and refinement of social life. 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