The news and herald. (Winnsboro, S.C.) 1877-1900, 1879-09-16

struction. The charge is made by
weight because 1t is more easy and
more in contormMlcc with Il practical
uniform rule for all articles and with
railroad statistics of tonnage. All cars
are marked "2 10000 lbs," "22, 900 lbs ;"
&c. But while the Road estimates hy
weight, it has its different classi-
fications in which bulk enters as
factor. Again, the usage in cotton,
lumber and certain other articles is to
have special rates, lumber by the foot, +,
cotton by the bale, &c. Again, usage
based on Il misunderstanding of the
law cannot be q safe criterion. 1t
nay have existed for years and then
be discovered to be erroneous. Until
the case ofKnox & Gill VS.. the South
Carolina Railroad, $. c., y %, the
railroads in this State understood the
distance conc hundred miles" to be an
question whether cotton or any other
article was charged by weight or by
measurement was of no Importance.
4th. Usage based upon II different
Interest cannot be taken as a guide.
Only II portion OF the railroads in
South Carolina have the restrictions Of
our charter. Their usage would be
no criterion
9th. Usage, to have the force Of
what is styled in law q "custom,"
must be uniform, uninterrupted. not Il
m0tuS "SDS. If based Oh q wrong con-
construction Of the charter ii is Il muk-
rs "s"s aud therefore not a custom.
6:h. Usage may be mi$intcrprctcd,
that is, appearing as charge by
weight, vet bulk may enter in as Il
hidden factor, as in the the system Of
classification 0: irciyhts. 1t would be
absurd to charge Il uniform rate for
long and short distanccs-as for in
stance for five miles and for five hun
drcd miles. The cost Of handling is
such that the Road might prefer for
short distances TO pay the shipper the
freight charge TO keel freight away.
How arc we 10 conSlruc the statute?
No decision of law by any court has
construed il. Knox e. Gill VS.. the S.
&. Railroad merely decided that cone
hundred miles" was an indiviSiblc
nnit. This point of charging by meas
urcmcnt WAS made III Chester. The
merchants sued the Road for over
charge, and the jury "cnmc down. in
their favor. An appeal was taken
from the Justices court and decided in
favor ofmrasurcmcnt by the then Judge
Thomas, but no appeal was taken TO
the Supreme Court and it has never
decided this question. This case is
referred TO in my argument in Knox
Il Gill, to prevent the court from
giving a general decision, and continc
chem to the special point raised in that
case, leaving this point for subsequent
decision.
Are parties to dispute and ,jurics to
decide? This makes as many suits as
there arc articles, and us often rs the
same article changes shape. More
over, TO leave the question to q jury
W ould leave the jury to decide Gucs-
tons Of law, and that too when u cor
poraion is party. Will it do TO re-
sort TO the usual meaning Of the terms
as employed in common parlancc?
Let us see. The following heavy ar
ticlcs are commonly estimated by
measurements: Dressed marble and
granite, lumber, hardware in boxes,
other heavy articles as bacon in boxes.
Feathers, bundles ofbrooms, old rags,
bedding, and such things arc neither
articles of weight nor ofmcasurcmcnt.
Will the shape of The article or the
manner in which it is packed dc!cr-
mine? Here we hayc the distinction
between loose bacon and bacon
in boxes, cotton in all its forms,
seed cotton, fleece cotton in bags. light
bales Of 800 pounds, heavy bags Of
500 pounds, and compressed cotton.
Any light article could be made heavy
if enough were put in one package.
Carriages may be set up, or sent in
parts. The same distinction might be
made rs to furniture in parts or iiurni-
turc put together; also, between
empty barrels and barrels filled with
liquors.
If we cannot fix an absolute rule in
all cases will the shippers be proper
parties to construc the statutes? Ger
tainly not. Will the Railroad? Or(li-
narilv it might be said not. But in
This cascit is the propcrpaty, because
the statute is SO made that any i'm
proper distinction by the Road would
inflict loss,lpon it. If it charges for Il
bulky article by weight it loses. But
when the statute construcs itself
neither usage, jurics nor parties ought
to decide. a contemplation OF tho
charter shows that the statute says a
cubic foot Of thirty pounds is the di-
viding line. This is the KEY, this the
line of dcmarkation or classification
furnished by the statute itself. An ar
ticlc weighing less than thirty pounds
to the cubic foot is 10 be estimated by
bulk, one more than that by weigh!
Lastly as - the cubic contents OF
thc car. we say it contains 1900 cubic
feet. The plaintiffs claim 1900 feet
Moreover, since the car is loaded in
ihr side instead Of through the top, the
real bulk capacity is $50 cubic feet
The weight capacity is 10000 pounds,
on which 500 can be charged. G5C
cubic feet at fifteen cents would allow
$97 80. The two charges arc, there,
fore, nearly uniform.
In conclusion Wc hold that the true
construction ofthc charter leads TO tho
conclusion that tho restriction is in.
tcndcdto preventive railroad-1, when
charging by weight from charging
over fifty cents per hundred pounds
2, when by measurement from charg.
ing over fifteen cents per cubic foot.
ARGUMENT or II. A.GAILLARD, ESQ.
la 4 q 4 :,