The news and herald. (Winnsboro, S.C.) 1877-1900, January 17, 1880, SUPPLEMENT, Image 5
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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.
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