Branch v. The Wilmington & Weldon R.R. Co.

• Decision Date: 30 June 1877
• Citation: 77 N.C. 347
• Parties: A. BRANCH v. THE WILMINGTON & WELDON RAILROAD COMPANY.
• Court: North Carolina Supreme Court

77 N.C. 347

A. BRANCH

v.THE WILMINGTON & WELDON RAILROAD COMPANY.

Supreme Court of North Carolina.

June Term, 1877.

CIVIL ACTION tried on appeal from a Justice of the Peace at Spring Term, 1877, of WILSON Superior Court, before Moore, J.

On the 10th of October, 1876, the plaintiff delivered to defendant company at its depot in the town of Black Creek, Wilson County, thirty-one bales of cotton to be shipped to Norfolk, Virginia, and at the same time the defendant gave to the plaintiff a bill of lading for the cotton, signed by the agent of the company. The plaintiff did not tender payment of freight, nor was it demanded, nor was it the custom for shippers to prepay freight, nor was there any agreement between the parties that the cotton was not to be shipped within five days from date of its delivery to the company. The cotton was shipped on the morning of the 19th of October, 1876.

The defendant owned a large number of cars and engines--more than sufficient for the ordinary freight business--but during the season of 1876, there was a great press of business for about six weeks in transporting through cotton from Wilmington to the northern markets, which amounted to 4200 bales during the said month. The cars were used for the shipment of this freight, a large quantity of which was detained in Wilmington, owing to the inability of the company to afford more speedy transportation. There was considerable competition between different roads for this class of business. The gauge of the road south of Wilmington from which the cotton was received, is different from that of defendant's road, which rendered it necessary to break bulk at Wilmington. The gauge of the roads north of Weldon is the same as that of defendant's road, and the defendant could have obtained from the north, a sufficient number of cars for the transportation of all its freight, both local and through.

Upon the foregoing facts found by His Honor, a jury trial having been waived, there was judgment that the plaintiff recover of the defendant, the sum of one hundred dollars and costs, and the defendant appealed.Mr. F. A. Woodard, for plaintiff , cited Ulman & Scott v. State of Illinois, and Chicago & Burlington R. R. Co. v. Quincey, U. S. Supreme Court Reports; Cooley Const. Lim. pp. 576, 578, 580, 581; State v. R. & D. R. R. Co., 72 N. C. 634; Hardy v. C. C. Railway Co., 76 N. C. 55; 2 Dillon Corp. § 455.

Mr. W. N. H. Smith, for defendant , cited State v. R. & D. R. R. Co., 73 N. C. 527; State v. Simpson, Ibid, 269; Cooley Const. Lim. 576, et seq.

RODMAN, J.

1. The recent decisions in the Supreme Court of the United States in what have been called the “Granger Cases” (not yet officially reported but which will probably be found in 94 U. S. Reports) enable us to put our decision in this case upon a principle, not only satisfactory as being reasonable and just, but which, as being established by a judgment of the Court of final resort having jurisdiction of the question, must be taken as beyond controversy.

The principle is this; “When private property is devoted to a public use, it is subject to public regulations.” And this is more especially true, when the owner has either a legal or a virtual monopoly of the business in which the property is used.

This principle has immemorially in England, and in this country from its first settlement, been assumed in Acts of the several Legislatures, prescribing the charges of innkeepers, ferrymen, and other common carriers, public wharfingers, warehousemen, &c.

The Act of 1798, (Rev. Code, ch. 79 § 3,) as to ordinaries and innkeepers authorized the County Courts to rate their prices for liquor, diet, lodging, provender, &c. The Act of 1779, (Rev. Code, ch. 101, § 27) regulates in like manner the tolls at public ferries, and the Act of 1777, (Rev. Code, ch. 71, § 61) the tolls at public mills.

The constitutionality of these Acts has never been questioned, but they have been always regarded as wise and politic exercises of the police power of the State.

There can be no distinction in principle between the power to enact those Acts and the one in question in this case. Of course?? it cannot affect this case, that the defendant is a corporation. Corporations, like all other persons, are subject to the police power of the State. There is no exemption in this respect in the charter of the company. It was granted great privileges in consideration of the performance of certain duties to the public. It enjoys a virtual monopoly of the carriage of freights within a certain distance on each side of its line across nearly the entire breadth of the State. It enjoys, through the proverbial “wisdom of the Legislature,” the privilege of having its property exempt from the general burden of taxation. There could not be a clearer case of private property devoted for a valuable consideration to a public use, and consequently subject to public regulation.

That the regulation in question is within the scope of the police power of the State seems clear to us. A common carrier is bound by the common law to convey goods committed to him for that purpose within a reasonable time, and on failure, is liable in damages.

The Legislature considered the common law liability as insufficient to compel the performance of the public duty. It must have thought that the interest of local shippers, for whose interest principally the road was built, and against whom the company had a complete monopoly, were being sacrificed by wanton delays of carriage in order that the company might obtain the carriage from points where there were competing lines by land or water;--as from Wilmington or Augusta. It declared, therefore, that the maximum of delay should be five days after a receipt for carriage, and imposed a penalty for every day's delay beyond. The Act does not supersede or alter the duty or liability of the company at common law. The penalty in the case provided for is super-added. The Act merely enforces an admitted duty.

2. Having seen that the company was prima facie liable, we proceed to consider its excuse. It is unnecessary to consider whether any excuse short of “an act of God or of the King's enemies,” would suffice. 1 Pars. Shipping, 314. We concur with the Judge that the excuse offered was insufficient.

A common carrier (especially one having a monopoly of the carriage) who invites the public custom is bound to provide sufficient power and vehicles to carry all the goods which his invitation naturally brings to him. The quantity of local freight he can foresee with approximate accuracy, and his first duty is to provide for that. If in consequence of special inducements held out by him, the amount of freight from distant and foreign points, or through freights, which may not be a matter of certain calculation, is unexpectedly large, he is not at liberty to delay and injure the local shippers whose wants he foreknew and was...