Augusta Brokerage Co. v. Central of Georgia Railway Co.

Cobb, J.

(After stating the foregoing facts.) If the Railroad Commission had authority to adopt that portion of Rule 36. set forth above, the petition set out a cause of action. The law declares that the railroad commissioners “shall make reasonable and just rules and regulations, to be observed by all railroad companies doing business in this State, as to charges at any and all points for the necessary . handling and delivery of freights; shall make such just and reasonable rules and regulations as may be necessary for preventing unjust discriminations in the transportation of freight and passengers on the railroads in this State; . . and shall make just and reasonable rules and regulations, to be observed by said railroad companies, on said railroads, to prevent the giving or paying of any rebate or bonus, directly or indirectly, and from misleading or deceiving the public in any manner as to the real rates charged for freight and passengers.” Civil Code, § 2189. The rule of the commission provides that railroad companies, in the conduct of their intrastate business, shall afford to all persons “ equal facilities in the transportation- *52 and delivery of freight, without unjust discrimination against any.” The commission is authorized by the very terms of the act to make any reasonable rules that may be necessary to prevent unjust discriminations in the transportation of freight-; and to allow to one shipper privileges which are not allowed to another whose situation is substantially the same is unquestionably ah unjust discrimination. It is said, though, that, even conceding this to be true, the railroad commission is authorized simply to make rules in reference to the transportation of freight; that transportation ends when the goods arrive at the terminal station of the railway company at the point of destination; that a regulation dealing with the conduct of the carrier after the goods have reached such station is not a regulation of transportation, but a regulation of the use of'terminal facilities; and that therefore the rule which deals with discriminations as to facilities' should not be construed to refer to facilities which are brought into operation after the transportation service has been completed. The case of Dixon v. Central of Georgia Railway Company, 110 Ga. 173 , is. cited to establish the proposition that there is a distinction between a transportation service and switching or transfer service, and that the service which was withheld from the plaintiff- in the present case was a switching or transfer service, and not a transportation service. There is nothing in that case which holds that where a railroad company, as a result of either a contract or a custom, delivers from its terminal station loaded cars on a side-track at the place of business of a consignee, it is not, when so engaged, performing duties incident to transportation of freight; but it was simply held that, construing what was then rule 25, in reference to the rate to be charged for switching or transferring cars from a point on one road to a connecting road or warehouse within the space of three miles, in connection with the rules regulating rates of freight ordinarily to be charged, the ordinary rates of freight were allowable until the car reached the terminal station at destination, and that rule 25 was operative from such station to the point where such car was delivered to the connecting road, place of business, or warehouse. The court was not dealing with the word “ transportation ” as found in the act, and the expression “transportation service” was used for conven *53 ienee, simply to distinguish the service performed before the terminal station was reached and the service performed between the terminal station and the connecting road or warehouse. If a railway company carries freight beyond its terminal station, when this service is performed, either voluntarily or as the result of a contract or custom, it is no less engaged in the transportation of freight than it was when the freight was being carried between the initial point of carriage and the terminal point of carriage; and the words “transporting” and “transportation,” which occur in the rule under consideration in the Dixon case, are there used in this- very sense. See 30 Rep. R. Com. 31.

It is contended that the power of the Railroad Commission in reference to unjust discriminations is confined to rates and charges; and the case of State v. Wrightsville & Tennille R. Co., 104 Ga. 437 , is cited to sustain this contention. There is, however, no authoritative ruling in that case to the effect that the power of the Railroad Commission is so limited. It was there held that the refusal of the railroad company to issue a through bill of lading over the line of one of its connecting carriers, when it was in the habit of issuing such bills of lading over the line of another connecting carrier, was not a violation of Rule 32 of the commission (see 30 Rep. R. R. Com. 32), which contained substantially the provisions of the act of 1874,'as contained in the Civil Code, §§ 2212-2214. It was held that the Railroad Commission had no power, either under the act referred to or under the rule, to compel a railroad company to make a contract. There is nothing in that decision, when taken in the light of the question then under consideration, which can he construed into a ruling that the word “transportation,” as used in the clause of the act now under consideration, included only service rendered between the initial point of carriage and the terminal station of -the railway company at the point of destination. Having reached the conclusion that the authority of the Railroad Commission to make rules and regulations for preventing unjust discriminations in the transportation of freight authorized the promulgation of Rule 36, .it is unnecessary to determine whether the withholding of service of the character withheld from the plaintiff in the present case, when such service was rendered to other customers similarly situated, was such an indirect giving *54 of a bonus to the other customers as to be an unjust discrimination in rates and charges. The commission had authority to make the rule; the conduct of the railroad company was in violation of the rule; and it was therefore error to sustain the motion to dismiss the petition.

It was also erroneous to sustain the special demurrer, for the reason that those portions of the petition which were attacked .by the special demurrer were not allegations in relation to the cause of action, but were simply averments of- matters of aggravation which might be proved and considered by the jury in determining whether the conduct of the railroad company had been so wilful as to authorize the assessment of exemplary damages under the provisions of the Civil Code, § 2197.

During the argument attention' was called to the fact that in the 31st Report of the Railroad Commission of Georgia the rules appear to have been amended and rearranged, and what was originally Rule 36 has become Rule 2, and that the language of the rule had been changed. See page 20. It does not appear from the published report when these changes were made, but an examination of the minutes of the Railroad Commission shows that the change in Rule 2 did not take effect until May 1, 1904, and therefore Rule 36 was in force at the time of the transactions complained of in the petition. It would seem, upon principle, that we should take judicial notice of what appears upon the minutes of the Railroad Commission as to the promulgation of its rules and 'regulations; but we now make no authoritative ruling on this question. If • we can take judicial notice of what appears on such minutes, it appears. therefrom that Rule 36 was in force at the time of the injury complained of. If we can not take such judicial notice, we must look to the petition, and the petition avers that Rule 36 was in force at the time in question.

Judgment reversed.

All the Justices concur.