Nance v. Southern Ry. Co.

• Decision Date: 09 December 1908
• Citation: 63 S.E. 116,149 N.C. 366
• Parties: NANCE v. SOUTHERN RY. CO.
• Court: North Carolina Supreme Court

63 S.E. 116

149 N.C. 366

NANCE v. SOUTHERN RY. CO.

Supreme Court of North Carolina

December 9, 1908

Appeal from Superior Court, Surry County; Justice, J.

Action by J. F. Nance against the Southern Railway Company. From a judgment of nonsuit, plaintiff appeals. Affirmed.

Clark C.J., and Hoke, J., dissenting.

This was an action to recover a penalty alleged to have accrued against defendant for refusing to permit plaintiff, standard keeper of Surry county, to examine and adjust defendant's scales used by it at Pilot Mountain, N.C. There was no evidence that the scales were used in "buying or selling." Plaintiff showed that defendant used them in "weighing freight for shipment." His honor, being of the opinion that plaintiff could not recover, rendered judgment of nonsuit. Plaintiff appealed.

W. L Reese, for appellant.

Manly & Hendren and W. F. Carter, for appellee.

CONNOR J.

The right of the plaintiff to maintain this action depends upon the construction of chapter 77, § 3073, Revisal 1905. The defendant insists that, correctly construed, the penalty is incurred only by a person "buying and selling" by weights and measures, and that, as it does neither, it is not within the language or spirit of the statute. Section 3063 c. 77, provides that no trader, or other person, shall buy or sell, or otherwise use in trading any other, etc. Section 3067: "If any person, after demand by the standard keeper for permission to examine and adjust the same, shall buy, sell or barter, by any weight or measure which shall not be tried by the standard keeper, etc., he shall forfeit and pay $40, etc." Section 3073 provides: "Every person using weights and measures and steelyards *** shall allow and permit the standard keeper of the county to try, examine and adjust by the standard, at least once every two years all the said weights and measures *** used in weighing; and every trader or dealer by profession and every miller, at least once in every two years thereafter, shall permit their weights, measures, etc., used in weighing, to be examined and adjusted by the standard keeper of the county in which such weights, etc., are used *** and every person using, buying or selling by weights and measures who shall neglect to comply with the requisites of this section shall forfeit $50 to be recovered at the instance of the standard keeper, one half to his use and the other half to the use of the county wherein the offense is committed."

Before proceeding to discuss the principal question presented upon the appeal, we desire to call attention to the italicized sentence found in section 3073 and the history of the legislation upon the subject. The first statute relating to weights and measures in this state was enacted in 1741 (chapter 32). See Laws N.C. 1715-96, p. 146. It will be well to note the provisions of this statute, and the amendments made to it, for the purpose of aiding in the construction of Revisal 1905, § 3073. The act of 1741, § 1, provides: "That no inhabitant or trader shall buy or sell or otherwise make use of in trading" any other than standard weights and measures. Section 3 makes it the duty of the justices to provide standard weights and measures and appoint a standard keeper. Section 4: "That any person whatsoever using weights or measures shall bring all their measures and weights to the keeper of the standard, where such person shall reside or trade, to be there tried by the standard, sealed and stamped; and if any person or persons shall buy, sell or barter by any weights or measures which shall not be stamped" a penalty of pounds sterling>>>>10 is imposed. Section 5: "And whereas steelyards, by use are subject to alteration," it is enacted "that all persons who shall use, buy or sell by steelyards shall once in every year try the same with the standard and take a certificate from the keeper, upon pain of twenty shillings, proclamation money." By chapter 965, Laws 1818, the act was again amended, "providing that every trader, buying or selling by weights and measures, shall before the first day of May next, and at least once every two years thereafter, cause their weights and measures to be examined, etc. And every trader buying or selling by weights and measures, neglecting to comply with the requisites of this act, shall forfeit the sum of fifty dollars," etc. Some doubt having arisen as to the proper construction of the statute as amended, the Legislature of 1823 (Laws 1823, c. 48) enacted: "That no person except traders and dealers by profession, and millers, shall be required to restamp their weights and measures; any law to the contrary notwithstanding." This statute removed any possible doubt as to the state of the law, and no further amendment was made to it, when, in 1834, the commission, composed of Judges Iredell, Nash, and Battle, revised the statute law of the state. In chapter 120, Rev. St. 1837, they incorporated into section 4 the original statute as amended, in these words: "Every person whatsoever using weights and measures shall bring them to the keeper of the standard where such person shall reside, to be there tried by the standard; and every trader or dealer by profession and every miller, shall at least once in every two years thereafter cause their weights and measures to be tried and adjusted." There can be no doubt that the careful and learned commissioners so construed the original statute and the amendments made previous to that time. No change was made by the several revisals of our statute law, as will be seen by reference to Rev. Code 1854, c. 117, § 5, Battle's Rev. (1873) c. 116, § 5, and Code 1883, c. 65, § 3841, until 1893 (Laws 1893, p. 85, c. 100), when an act was passed making it the duty of every person using weights and measures to allow and permit the standard keeper to examine and adjust by the standard, once in every two years, their weights and measures used in weighing. This review of the Legislature upon the subject throws lights upon the construction of the words used in the clause of section 3073 upon which plaintiff's alleged cause of action is founded. It will be conceded that, as the statute stood from 1823 until 1893, no duty was imposed upon any other persons than "traders or dealers by profession and millers" to have their weights and measures stamped once, and "every two years thereafter." That being so, when the Legislature came to impose a penalty for neglecting to "comply with the requisites of this section," it confined the penalizing language to "every person using, buying or selling." It will be noted that they are the same words used in the act of 1818, c. 965, which is expressly limited to "every dealer buying or selling," and a legislative declaration is made in 1823 (chapter 48) that they applied to "no person except traders and dealers by profession." It is difficult to foresee the results flowing from such a radical change in a statute, which affects almost every home and household in this state, subjecting them to penalties which, if enforced, would seriously embarrass thousands of our citizens.

As the law is now written, it is made the duty of every person using weights and measures in North Carolina to have them tried by the standard keeper "at least once in every two years." We have no power or right to strike the words out or to construe them away. The language, in that respect, is too plain for construction. Every housewife, who has draw steelyards, balances, or any other kind of weights, quart or pint measures, in her pantry, which she uses for domestic purposes, must allow and permit the standard keeper at least once in two years, to try them. Every farmer who uses them for his domestic or agricultural purposes to weigh in his cotton, measure in his corn, peas, or other crops, whether for his own use, or simply to enable him to know the yield of his land, is under like obligation. This strange result is rendered still more so when we turn to the first section of the statute, and find that no one other than a trader or other person, who shall buy or sell, or otherwise use in trading, any weights or measures, is required to use such as are according to the standard. In other words, a housewife, who has learned that a tumbler holds a half pint, or a farmer that a rock picked up in his field weighs two pounds, or a piece of iron one pound, may use it in measuring or weighing, but if either uses a "weight or measure," they must have it tried by the standard. When we turn to section 3067 we find that any person who, after demand by the standard keeper for permission to examine or adjust his weights and measures, shall buy or sell or barter by such weights, etc., not tried, shall be penalized, but he may use them in any other way with impunity. The plaintiff insists that, not only is the duty imposed prescribed by section 3073, but that for a "neglect to comply" with his demand, every person shall "forfeit fifty dollars," one-half of which is for his own use. We are thus brought to inquire what, if any, effect shall be given to the words used in the penalizing clause "using, buying or selling by weights and measures." The plaintiff insists that they perform no office; have no force and effect. That the word "using," being all-comprehensive, overshadows and, for all practical purposes, eliminates them. It is an elementary rule in the construction of a statute that, in ascertaining the intention of the Legislature, resort must first be had to the language used. In other words, the statute must, if possible, be made to speak for itself. If the Legislature has used language of clear import, the court should not indulge in speculation or conjecture for its meaning.

In applying this rule the entire sentence, section, or statute must be taken into...