Town of Durham v. Richmond & Danville Railroad , 108 N.C. 399 ( 1891 )

There was a verdict and judgment thereon for the defendants, from which the plaintiff appealed.

In the argument to the court and jury, the counsel for the (400) defendants began to read the charter of the North Carolina Railroad Company, being Laws 1848-49, ch. 82. Objection was at once made by plaintiffs, 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 his Honor allowed said charter to be read and commented on, both to the court and jury, without the same having been introduced in evidence. The plaintiff excepted and assigned this ruling as error. 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 defendants 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 defendants contend 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 evidential 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 (401) 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. S. v.Chambers, 93 N.C. 600, and the authorities there cited; S. v. R. R., 73 N.C. 527. See also Hughes v. Comrs., 107 N.C. 598; R. R. v. R. R.,106 N.C. 27; United States v. Trinidad, 137 U.S. 160; R. R. v. FifthBaptist Church, 108 U.S. 317.

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. Humphriesv. Baxter, 28 N.C. 437; S. v. Wallace, 94 N.C. 827; Pot. Dwar. on Stats., 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 contained in it. This Court has repeatedly decided that statutes containing public statutory provisions were private statutes. The charter of the Bank of North Carolina (Haywood Manual, 61) clearly contained such provisions, (402) and in Bank v. Clark, 8 N.C. 36, it was held expressly that it was a private statute. A statute (Laws 1866-67, ch. 80) in respect to "The Washington Toll Bridge," expressly referred to and made applicable to it in certain respects the public statutes (Rev. Code, ch. 101), but this Court held that the statute was private. Comrs. v. Bridge Co.,61 N.C. 118. To the same effect is Humphries v. Baxter,28 N.C. 437.

The charter in question provides that the State shall be a stockholder of the corporation created by it, and it is such stockholder for a large amount. It was insisted that this made the statute public in its nature. We do not think so. The State, laying aside its sovereign character for the purposes of the corporation, put itself upon a footing with other corporations, except that it has advantages conceded to it on account of the large amount of stock it owns. That the State is a stockholder does not necessarily render the corporation a public one. Marshall v. R. R.,92 N.C. 322; Bank v. Clark, 8 N.C. 36. The State was a large stockholder in the bank whose charter was held in the last case cited to be a private statute. Connor v. Arkansas, 15 How., 304.

It was further insisted that the statute was published among the public statutes, and therefore it is public. There is no provision in it or elsewhere directing that it be so published. That it was, could not alter or affect its nature in legal contemplation.

It is clear, in our judgment, that the statute in question is private in its nature and purpose in the respects as to which the appellants read and commented upon to the jury. It should have been put in evidence on the trial. It is not questioned that private statutes must be pleaded (The Code, sec. 264), and that they must be proven when they become necessary as evidence.

It is strange, indeed, that the appellees failed to put the statute (403) in question in evidence, especially as it was so convenient to do so. They simply needed to read it from the statute book (The Code, sec. 1339). The evidence afforded by it was material. The plaintiff insists upon its rights to have the material evidence produced on the trial according to law. This was not done, and therefore it is entitled to a new trial and we so adjudge.

We do not deem it proper to decide several other interesting questions presented by the record, because to do so might unduly prejudice one party or the other on the next trial.

Error.

After the opinion in this case had been filed, the appellant made a motion for an allowance for costs of extra printing.