Town Of Durham v. North Carolina R. Co.1

• Decision Date: 25 March 1891
• Citation: 12 S.E. 1040,108 N.C. 399
• Court: North Carolina Supreme Court
• Parties: Town of Durham v. North Carolina R. Co.1

12 S.E. 1040

108 N.C. 399

Town of Durham

v.North Carolina R. Co.¹

Supreme Court of North Carolina.

March 25, 1891.

Pleading—Pkivate Statute.

Laws N. C. 1848-49, c. 82, being the charter of the North Carolina Railroad Company, is a private statute, although it contains public statutory provisions, and under Code, § 204, must be pleaded; and it is error to permit it to be read to the jury in argument, unless it is first introduced in evidence.

Appeal from superior court, Chatham county; MacRae, Judge.

In the argument to the court and jury, the counsel for the defendants began to read the charter of the North Carolina Railroad Company, being Laws 1848-49, c. 82. Objection was made by plaintiff, because the charter had not been offered in evidence. The objection was overruled on the ground that it was a public act, of which the court would take judicial notice; and the court allowed said charter to be read and commented on, both to the court and jury, without the same having been introduced in evidence. Theplaiutiff excepted, and assigned this ruling as error.

Batchelor & Derereux, W. W. Fuller, and J. S. Manning, for appellant.

D. Schenck, F. H. Busbee, W. A. Guthrie, and J. W. Graham, for appellee.

Merrimon, C. J., (after stating the facts as above.) We are constrained to grant a new trial in this case upon the ground that the charter (Acts 1848-49) of the defendant (the North Carolina Railroad Company) is a private statute, and, the plaintiff objecting, the court erroneously allowed the defendant to read and comment upon the same to the jury, without having first put it in evidence in a proper way on the trial. The defendant contends earnestly that this charter is a public statute. It must be conceded that it embraces two or three public statutory provisions, but as to its chief purpose, and in the respects material for which it was read to the jury, it is clearly private and eviden tial in Its nature and application. Its purpose is to authorize and create not a public or political corporation, but a private one; to extend to individuals such as purchase and own its shares of capital stock personal and private advantages. The charter confers corporate powers to enable individuals the more successfully to do and prosecute the important business of transportation of persons and freights on a large scale, and receive compensation therefor, and thus incidentally to extend important public convenience and advantage, which latter is largely the consideration to be paid for the franchises granted to the corporators. The statute, in so far as it confers corporate powers and rights, concerns and pertains to individuals and their business, and thus it has that quality which renders it a private statute. The rights of the public are incident to and grow out of the business of such corporations, and these may be regulated by public statutory provisions to be found in some respects in the charter itself, and in others in separate public statutes. State v. Chambers, 93 N. C. COO, and the author-ties there cited; State v. Railroad, 73 N C. 527. See also, Hughes v. Commissioners, 107 N. C. 598, ante, 465. A private statute may embrace one or more public statutory provisions, and so also a public statute may embrace private statutory enactments; but such intermixture of statutes does not change or modify their respective natures. Whether the statute, or some enactment in it, is public or private, is a question of law which the court must determine, in the absence of statutory enactment declaring and settling its nature. Humphries v. Baxter, 6 Ired. 437; State v. Wallace, 94 N. C. 827; Potter, Dwar. St. 53, and notes. It was insisted on the argument that, inasmuch as the charter contained public statutory provisions, it thereby became, and therefore is, a public statute. As we have just said, such intermixture could not change the nature of a statute or a provision con tained in it. This court has repeatedly decided that statutes containing public statutory provisions were private statutes. The charter of the Bank of North Carolina (Hayw. Man. 61) clearly contained such provisions,...