The opinion
ClaRK, J.,
(concurring): At common law common carriers were under no compulsion to receive goods or freight till ready to ship the same. Lane v. Cotton, 1 Ld., Ray, 652. Nor, after acceptance of the goods for shipment, were they liable for delays if the goods were shipped within a reasonable time, and what was “a reasonable time” depended upon the facts and circumstances surrounding each particular *294 case. These regulations sprang out of the former condition of things when the modes of transportation were of a more primitive order. The law-making power in this State has modified the common law rule in both particulars.
In 1874-75 the Legislature enacted the statute, which is now section 1967 of The Code, making a delay of more than five days in shipping goods after accepting them per se unreasonable delay, and affixing a penalty of $25 for each day’s delay beyond that limit. This act has been held constitutional, and has found judicial construction in several cases with which the profession is familiar. Branch v. Railroad, 77 N. C., 347 ; Keeler v. Railroad, 86 N. C., 346 ; Branch & Pope v. Railroad, 88 N. C., 570 .
It still remained in the power of common carriers to nullify the Act of 1874-’75, by exercising their common law right of not receiving goods till their own convenience should be suited or they should be in readiness to ship. • For this reason, doubtless, the Legislature passed the Act of 1879 (now The Code, § 1964), which provides that “ railroads and other transportation companies, whose duties it is to receive freights, shall receive all articles of the nature and kind received by such company for transportation “ivhenever tendered at a regular station,” &c.
The words “ whenever tendered,” upon a reasonable construction, signify “whenever tendered” in the. ordinary business hours of such companies at the place of tender. If the object had been to prescribe merely the place where the tender should be made, the statute would have naturally read “if tendered at a regular station,” &c. “Whenever tendered” has, clearly, reference to the time of tender and to the common law rule which gave the carrier the right to defer accepting goods till ready to ship. The regulation adopted by the defendant company, that it will only receive packages each day just before the departure of *295 the train going in the direction of the desired shipment-, is in direct conflict with the statute. To give it validity would enable transportation companies, by regulations adopted in their own interest and for their own convenience, to repeal an act of the Legislature passed in the interest of and for the convenience of the public. An analagous case is the decision in Branch & Pope v. Railroad, 88—573, which held to be invalid a regulation “ Goods to be shipped at the convenience of the company,” which had been inserted by the defendant in its bills of lading, in hope of avoiding the penalties of section 1967.
It is our duty to give the statute such construction as will effectuate the legislative will. Should its execution, according to a fair and legitimate construction, impose any hardship upon transportation companies, the remedy is to be sought in a modification of the act by the Legislature, and not in its virtual repeal by judicial construction.
Error.