The news and herald. (Winnsboro, S.C.) 1877-1900, 1880-04-20
TUE FREIGHT ON CO7TOS.

Corrt ia tho Cns,s Brought by tk. l,ail
ro&d Commissioner and tho Iyinnsborc
. Merchants Hespectiveiy.
The following is the opinion Of the
Supreme Court delivered by Chief
Justice Willard, in the case of The
Railroad Commissioner VS.. The Char
lotte, Columbia anI Augusta Railroad
Company:
The question on this appeal is one
OF the construction Of the clause of thr
charter Of The defendant corporation
that provides as follows: "That the
said company shall have tic exclusive
right or conveyance or transportation
persons, goods, merchandise and
produce over the said railroad to be bv
them constructed, and shall have DOW.
cr to charge for such transportation of
persons. goods, produce, mcrcandisc
and other articles any sum not exceed
ing the following rates, viz: On Der
sons, not exceeding six cents per mile
for each person, unless the distance
which any person may be transported
he less than ten miles, in which case
the President and Directors NAV be
entitled to make All extra charge of
fitty cents for taking up and Duttinp
down such person SO transported; for
the transportation OF goods, produce,
merchandise and otter articles not cy.
cccdiug fifty cents per hundred pounds
for each hundred miles on heavy ar
tclcs. and fifteen cents cubic foot on
articles OF measurement for every hun
drcd miles; and for transportation of
the mails such sums as The, may agree
Tor with The agents Of the United
| States"
| THO question is whether cotton.
packed in bales. in the manner used
for the purpose Of transportation NAV
be regarded as an 'Hrticlc Of mcasllrc-
ment, SO as to authorize il Charge for
the transportation Of the same, at the
rate OF Fifteen cents per cubic foot for
every hundred mics. The plaintiff
charges that cotton in that condition is
, to be regarded rs IL "hcavy article"
, within The intent and meaning Of the
statute. The first inquiry is, whether
the Court can determine, as matter Of
law, whether cotton in bales is 4 hcury
urttcic or an article Of measurement
in The sense in which these terms arc
employed in the statute. 1t is true,
rs slated by the Circuit Judge in his
opinion, that the Court takes notice of
the general customs of the country {:
but that does not impl! that the usagcs
OF business, as general rule, lay
within the judicial notice of the
Courts. Those customs that have
been Incorporated as part of the COM
mon law, as defined by adjudicatcd
cases, are, beyond question, subjects
Of judicial notice without proof in
point Of fact. 1t is not to be denied
that customs may and do become so
Incorporated, that have had their
origin since the period Of time to
which the common law looks as the
test of antiquity. 1t may well be
questioned whether any modern Gus
tom becomes Incorporated in the COM
mon law until it has been established
as matter Of fact by judicial aulhori-
~. The change Of the status Of such
Il question from one Of fact to one of
law is by gradual and almost inscnsi-
PIC steps. but is Of merely speculative
interest as II regards the present case.
1t is clear that the terms hcary articles
and articles Of measurement cannot be
defined, in their application to goods
OF different kinds, by mere legal att
thorily; but assuming them to be in
tclligiblc to those concerned in the
business Of transportation by rail, or
by more general means, their sense
must be made apparent by testimony
OF such custom or habit Of business
as tends to define their import. If
these terms are to be regarded as used
III sense peculiar those engaged in q
particular business, then their force
can only be asccrtaincd by testimony
adduccd for that purpose and u matter
OF fact. Thatthcy cannot be regarded
III any other sense will become nppar.
ent from the consideration Of their
nature.
IT is evident that The term heuru A.
NctcS is used in a technical sense, and
not according TO its popular use, from
the fact that it is contrastcd with 0,fi-
cfeS Of measurement. Articles of
measurement arc such as arc ordinari-
ly transported by measurement and
not by weight. 1t cannot be said that
there is any such class OF articles as
0ficteS Of measurement in q general
sense, and commonly known and un-
dcrstood rs such. and hence the term
must have particular or technical
sense. Without doubt articles OF
mtusuremcnt arc charged according to
volume, cubic capacity, because they
arc light as compared with the class
called heavy, and that accounts for the
term heavy being applied to tho oppo-
site class, but that affords the reason
OF the term, but not its definition.
it is said, however, tlat the statute
affords means by which thc terms
hcdcy and articles Of measurement
may be defined without the aid Of cx-
trinsic proof in such manner us to &C
complish what should be regarded as
the object Of the statute, namely: to
make every article transported pay
according to single standard bv
which the two clements Of weight and
volume arc brought to q common unit
OF comparison. 1t is said that an ar-
tclc that weighs thirty pounds and
occupies the space of one cubic foot
Will pay al equal amount, whether it
IS computed according to weight or to
measurement. and that, therefore, al
article weighing more tl,un thirty
pounds to the cubic foot should be
charged as heavy, because it is hcavi-
or than the article selected in the unit
and that articles Of less than thirty