The times dispatch. [volume] (Richmond, Va.) 1903-1914, 1906-02-24
COURT s OPINION
IS FAR REACHING e
Judge Keith Hands Down Opin-
ion OF Interest to All
.. Corporations.
PUBLIC AND PRIVATE ACTS
Immunity is Not PRESUMED From
a General Grant Of Att
tlority.

&
the ease of'rownsend etsals. VS. the Nor
folk Raiwas;nnd Light Company. by. tie
Supreme Court on yesterday, is OF moro
than passing interest, since there were
questions involved In which every cor
poration of any moment was Interested.
'phc. opinion was delivered 10y Judge
James Keith. president of the court, who
went ut great length into the questions
involved. and discussed them fully from
their various standpoints.
The Norfolk Railway and Light COM
pany in operating It's plant in Norfolk,
defaced and injured the property of one
Townsend by reason OF the smoke from
the power-house OF the company. Town
send brought suit in the Circuit Court
of Norfolk and recovered damages. From
this decision the defendant company APP
pealcd. justifying what 1t had done by
pleading Legislative authority for It's acts.
The opinion says:
IA public service corporation is to he
considered In two aspects. 1t has duties
which 1t owes to the public and which It
must perform; Ii has other duties not OF
Il public nature, which are incidental to
those OF a public character, In the per-
formanoe Of which 1t stands upon the
FOOTING OF a private corporation.
With respect. to the duties OF the
first class, 1t may be said that In doing
that which under the law 1t may be re-
CURED to do, 1t cannot be considered as
doing an unlawful act; and IL a lawful
act be done without negligence, any in
jury which 1t occasions is damnum obsuue
injura.'' ss
This construction of law was earnestly
assailed in the petition for n rehearing.
"a oil q y, n let How
existed between the public and private
functions of corporation and that all
was lawful which the Legislature author
lied TO be done. although the authority
conferred was not Imperative. but merely
permissve.
When Not Liable.
Judge Keith discussed at length the
Fisher and Makely. cases, after which he
says:
a public service corporation, acting
without negligence, Is not liable for In
jures which are the necessary conse-
quence of the performance of its author
| izsd functions"
we must again advert to the principle
that all opinions are to be considered in
the light of the facts to which they apply.
for the transition from an authorized to
an unauthorized aet--from that which is
lawful to that which Is unlawful--is often
times by easy and almost imperceptble
gradations. so that in the enunciation of a
principle the eye must always he kept
upon the precise facts upon which ii Is
to operate"
After quoting from the charter of the
| defendant company, in which 1.-The said
company is authorized" to promote. es-
tablish and maintain the business of
general railway and electrical company,
&C., &C.. Sc" Judge Keith continued.
ut will be seen that the language Is
not imperative. but permissve. and that
1t does not confer statutory sanction for
the commission OF a nuisance in any way
| whatsoever. and most ass,redly cannot
be said to confer 1T In express terms Or
| by clear and unpuestionable implication
from the powers given. so that 1t cannot
| be fairly said that the Legislature con-
| templatecl the doing of the very act which
| occasioned the injury, and immunity is
not to be presumed from n general grant
of authority"
Must Afford a Remedy.
But it is said that the decision In this
| case, If permitted to stand, will practi-
| callv debar the use of many of the most
| important and developing features of our
modern growth.
1t would be a source of regret if, in the
| administration of Justice by the establish
ment and enforcement of sound prinel-
| pies. the prosperity of our people should
be hindered or checked. but 1t would he
! not only source of regret, but of re-
I proach, If ma terial prosperity were stimu-
| lated and encouraged by a refusal to give
| to every citizen Il remedy for wrongs he
may sustain. even though inflicted by
| forces which constitute factors in our
material development and growth. Courts
have no policies. and cannot permit con-
sequences to influences their Judgment
! further than to serve rs warnings and
| incentives to thorough Investigation and
careful consideration OF the causes sub
4 mitted to them.
| Those duties being faithfully performed,
\ courts may await the result with pa
| thence. IL not always with confidence, and
+ say, With the great Lord Mansfield, Fiat
I justitia. ruat acoelum. va Es
1 The petition to rehear is denied,