Atl. Exp. Co v. Wilmington & W. R. Co

• Citation: 111 N.C. 103,16 S.E. 393
• Court: United States State Supreme Court of North Carolina
• Decision Date: 13 December 1892
• Parties: ATLANTIC EXP. CO. v. WILMINGTON & W. R. CO. et al.

16 S.E. 393

111 N.C. 103

ATLANTIC EXP. CO.

v.WILMINGTON & W. R. CO. et al.

Supreme Court of North Carolina.

Dec. 13, 1892.

Constitutional Law —Establishment of Railroad Commission—Discrimination in Freight Rates—Enforcement of Penalty—Petition— Practice—Privileges to Express Companies.

1. Acts 1891, c. 320, establishing a railroad commission, and investing the same with authority to make reasonable regulations for the prevention of excessive charges and unjust discriminations by railroad companies, is constitutional, since the act does not confer on the commission power to pass a law, but power to make regulations reviewable by the court to carry into effect a law already passed.

2. Acts 1S91, c. 820, § 4, provides that all unjust discriminations and preferences by railroad companies shall be unlawful. Section 5 provides that the railroad commission shall make rules for preventing such discriminations and preferences. Section 10 provides that if any railroad company shall violate such regulations, and if, after due notice, full recompense for the wrong done shall not be made within 30 days, such company shall incur a penalty to be fixed by the court; the action to be in the name of the state, and be instituted by the commissioners through the attorney general or district solicitor. Held, that violations of section 4 are not to be prosecuted by indictment, but determined by the commission.

3. Where the law establishing a railroad commission provides for the service of notices, the attendance of witnesses, the punishment of contempts, the rules of evidence, and appeals from decisions, a claim properly presented is not to be denied because the particular form of the complaint, or the manner in which the proceeding is to be entitled, or some other immaterial matter of detail, is not particularly prescribed, since the commission has the inherent power of every court of record to make rules necessary to the exercise of the powers conferred upon it.

4. Acts 1891, c 320, § 4. provides that it shall be unlawful for any common carrier to give any unreasonable preference to any particular person, company, or locality, or any particular description of traffic, or to subject any person, company, or locality, or any particular description of traffic, to any undue disadvan tage. Held, that this section does not change or enlarge the duty imposed on railroad companies by the common law, under which they are not obliged, because they furnish facilities to one express company, to furnish other express companies with facilities for doing an express business on their roads, the same in all respects as they provide for themselves or afford to any particular express company, where such railroad companies have never held themselves out as common carriers of express companies.

5. Rule 8, "Regulations Concerning Freight Rates, " provides that no railroad company shall, by reason of any contract with any express or other company, refuse to act as a common carrier to transport any article proper for transportation by the train for which it is offered. Held, that this rule does not require railroad companies to furnish an express company with facilities for carrying on its business on their roads, but simply requires them to transport articles tendered by an express company.

Appeal from superior court, Wake county; H. G. Connor, Judge.

Action by the Atlantic Express Company against the Wilmington & Weldon and the Richmond & Danville Railroad Companies for refusing to afford plaintiff proper facilities for carrying on its business. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.

W. W. Clark and O. H. Guion, for appellant.

A. W. Haywood and F. H. Busbee, for appellees.

Shepherd, C. J. Although we are of the opinion, for the reasons hereinafter stated, that the particular relief asked for in this proceeding is not authorized by the provisions of what is known as the "Railroad Commission Act, " still we do not feel at liberty to ignore the important question of jurisdiction suggested in the answers of the defendants and the arguments of counsel. The question is a serious one, and involves in a great measure the efficiency of the legislation designed for the "supervision" of railroad companies and other common carriers in respect to the fixing of reasonable freight and passenger tariffs, the prevention of unjust discriminations and preferences, and the regulation of other matters pertaining to transportation within the state, in which the public is deeply interested. That the legislature has the authority to provide reasonable rules and regulations for the effectuating of such purposes is too well settled to admit of discussion, (Durham & N. R. Co. v. Richmond & D. R. Co., 104 N. C. 673, 10 S. E. Rep. 664; Railroad Co. v. Iowa, 94 U. S. 155; Railroad Co. v. Richmond, 19 Wall. 584;) and it is equally well settled that, in delegating such authority to a commission, it does not transcend its constitutional powers, (Stone v. Trust Co., 116 U. S. 307, 6 Sup. Ct. Rep. 334, 388, 1191; 19 Amer. & Eng. Enc. Law, 686, and the numerous authorities cited in the notes.) "The difference between the power to pass a law and the power to adopt rules and regulations to carry into effect a law already passed is apparent and great; and this we understand to be the distinction recognized strikingly by all the courts as the true rule in determining whether or not, in such cases, a legislative power is granted. The former would beunconstitutional, whilst the latter would not." Railroad, etc., Co. v. Smith, 9 Amer. & Eng. R. Cas. 385. A careful scrutiny of the act of assembly constituting a "railroad commission'" (Acts 1891, c. 320) fails to disclose a purpose to confer upon that body anything in the nature of legislative power. The act, among other things, denounces excessive charges, unjust discriminations and preferences, as unlawful, and invests the commission with authority to "make such just and reasonable rules and regulations as maybe necessary for pie-venting" the same; the reasonableness and legality of such rules and regulations being reviewable by the courts. This power, as we have just seen, may be delegated to a commission, and any objection on that ground is therefore untenable.

It is insisted, however, that the commission has no jurisdiction to entertain and pass upon complaints made in respect to the violation of the provisions of section 4, and perhaps other sections, of the said act. That section declares that all unjust discriminations and preferences shall be unlawful, and it is urged that the only remedy provided against its infraction is by indictment, to be prosecuted in a court of competent jurisdiction. It is very plain to us that the contention is without foundation, us in section 5 the authority of the commission to make rules and regulations for the prevention of these very acts is expressly conferred. The subjects embraced in section 4 are perhaps the most important that are confided to the regulation of the commission; and, without reference to the plain language of the act, it is hardly to be supposed that the legislature intended to insert therein a merely penal provision, entirely independent of and unconnected with the duties imposed upon that body. Neither is there any force in the argument that the legislature cannot confer judicial powers upon the commission, as the constitution (arti-cle4, §2) expressly authorizes the establishment of such courts inferior to the supreme court as the legislature may deem proper; and it is to be observed that the commission has been " created and constituted a court of record, " with all the "powers and_ jurisdiction of a court of general jurisdiction as to all subjects embraced in the act creating" the same. Acts 1891, c. 498. Whether a court having no power to enforce its judgments fulfills the definition of a court of record and of general jurisdiction is unnecessary to be considered. It is sufficient to say that the legislature has the authority to establish courts inferior to the supreme court, and to "allot and distribute "its jurisdiction "as it may deem proper." Const, art. 4, § 12. The question, then, is simply whether the power to hear and determine complaints of this character has been conferred, and this is easily solved by a perusal of section 10 of the said act, which is as follows: "That if any railroad company doing business in this state, by its agent or employes, shall be guilty of a violation of the rules and regulations provided and prescribed by said commissioners, and if, after due notice of such violation, given to the prin€ipal officer thereof, * * * ample and full recompense for the wrong or injury done thereby to any person or corporation, as may be directed by said commissioners, shall not be made within thirty days from the time of such notice, such company shall incur a penalty for each offense of not less than fifty dollars nor more than five thousand dollars, to be fixed by the judge of the court in which such action shall be tried. An action for the recovery of such penalties shall lie in any county of the state where such violation has occurred or wrong has been perpetrated, and shall be in the name of the state of North Carolina. The commissioners shall institute such action through the attorney general or solicitor of the judicial district in which the violation has occurred, " etc. It must be noted that the present proceeding is not an action instituted by the commissioners for the enforcement of penalties; nor is it, as suggested, an ordinary civil action for the recovery of damages, as is provided in section 11 of the act. It is brought for the purpose of seeking "ample and full recompense" for the alleged " wrong and injury " done the complainant. The act looks beyond the mere infliction of a penalty for the violation of a rule or regulation, and evidently provides for specific redress in the premises. This redress is to be "directed...