North Carolina Corp. Comm'n v. Seabd. Air Line Ry. Co

• Citation: 52 S.E. 941,140 N.C. 239
• Court: United States State Supreme Court of North Carolina
• Decision Date: 12 December 1905
• Parties: NORTH CAROLINA CORP. COMMISSION. v. SEABOARD AIR LINE RY. CO.

52 S.E. 941

140 N.C. 239

NORTH CAROLINA CORP. COMMISSION.

v.SEABOARD AIR LINE RY. CO.

Supreme Court of North Carolina.

Dec. 12, 1905.

1. Railroads— Regulation— Establishment of Side Track.

Where the action of the corporation commission in requiring a railroad company to install a private switch has been affirmed by the circuit court on a jury finding that the requirement was reasonable, the fact that the switch would increase the danger of operating the road is no cause for reversing the judgment of the circuit court.

2. Same — Reasonableness of Order — Evidence.

On an issue as to the reasonableness of an order of the corporation commission requiring a railroad to establish a private switch, evidence that the railroad had previously maintained a switch at the same place without inconvenience or accident was admissible.

Brown J., dissenting.

Appeal from Superior Court, Wake County; justice, Judge.

Proceeding by the state, on relation of the North Carolina Corporation Commission, on petition of the Round Pine Lumber Company, against the Seaboard Air Line Railway Company. Prom a judgment affirming the action of the commission, the railway company appeals. Affirmed.

T. B. Womack and Pou & Puller, for appellant.

H. E. Norris and Seawell & McIver, for appellee.

CLARK, C. J. The corporation commission act (Laws 1899, p. 292, c. 164, § 2,) enumerates in 26 subheads the powers conferred upon the corporation commission. Among these, subsection 15 authorizes the commission "to require the construction of side tracks by any railroad company to industries already established or to be established: Provided, it is shown that the proportion of such revenue accruing to such side track is sufficient within five years to pay the expenses of its construction"—and further restricting the power by forbidding the commission to require the construction of any side track more than 500 feet. The power of the General Assembly to establish a commission to supervise and regulate the rates and operations of quasi public corporations exercising public franchises has been too often decided in the state and federal Supreme Courts to be again discussed. The matter has been discussed, with the citation of authorities. R. R. Connection Case, 137 N. C. 14, 49 S. E. 191 et seq.; Corporation Commission v. Railroad (Rate Case) 127 N. C. 283, 37 S. E. 266; Express Co. v. Railroad, 111 N. C. 463, 16 S. E. 393; and in many others, among them, Corporation Commission v. Railroad ("Track Scales Case") 51 S. E. 793, at this term.

As to this special matter, which arises under subhead 15, authorizing the commission to require the establishment of side tracks for the use of industrial plants, there is, in view of the great industrial development of the state, scarcely any power granted to the commission that is of greater importance. Owing to the exigencies of their business, as well as the greater cost of land immediately at railroad stations and in towns, many factories, and especially most lumber plants, are situated at some distance from any passenger and freight station, though usually on the line of some railroad. To require their products, which are usually shipped in car load lots, to be hauled to a distant station, often over bad roads, when the trains perhaps pass In a few yards of the plant, would entail a great and useless expense, to the great discouragement of such enterprises in our midst. To avoid this the railroads, whenever the receipts in their judgment would justify it, have for years been putting in such sidings, upon which empty cars would be placed when called for, and, when loaded, would be taken away by some passing train. Such sidings are not passenger or freight stations named in subsections 12, 13, 13a, and 14, and have not (except possibly in rare instances) any agent. Prior to the enactment of this provision of the statute the establishment of such sidings rested in the arbitrary will of the common carrier, who could also discontinue such sidings at will. Such powers, it will be seen at once, placed the industrial development of the state at the mercy of the railroad management, which could mar the prosperity of any plant along its line by refusing a siding, or arbitrarily discontinuing it if established. This power could be used for both political and pecuniary advantage. Whether it was ever so used or not the General Assembly, while not prohibiting the carrier from continuing to establish such sidings at its pleasure, deemed it wise to take the power of refusing to grant or continue such sidings out of the arbitrary will of the common carrier by authorizing the corporation commission to require the establishment of such sidings in proper cases. It did not, however, substitute the arbitrary power of the commission for the arbitrary power of the carrier, but it gave the former authority to require such sidings only when the "revenue accruing from such side track is sufficient within five years to pay the expense of its construction, " and subject also to a review of the reasonableness of such order on appeal to the superior court, and by further review as to the rulings on the law to this court. By a subsequent act (Laws 1903, p. 788, c. 444, amended by chapter 693, p. 1073, of the same year) a penalty is imposed for refusing to receive loaded cars at such side...