# Harvey v. Atlantic Coast Line Railroad > Supreme Court of North Carolina · December 7, 1910 · 153 N.C. 567 URL: https://www.frixlaw.com/law-library/cases/9811310 ## Case - **Full name:** Thomas Harvey v. Atlantic Coast Line Railroad Company. - **Court:** Supreme Court of North Carolina - **Decided:** December 7, 1910 - **Citations:** 153 N.C. 567; 69 S.E. 627; 1910 N.C. LEXIS 131 - **Precedential status:** Published - **Opinion:** Concurrence by Clark - **Judges:** Hoke, Clark, Brown, Walker - **Cited by:** 16 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9811310 ## Opinion text Clark, C. J., concurring. Tbe defendant issued its mileage books containing a contract that there should be a legal tender to any agent for a ticket for transportation at 2 cents per mile, and that if there was no agent the holder could ride upon his mileage. When the plaintiff tendered his mileage book, the agent had no more right to reject it or to postpone the bolder thereof than if he had tendered the cash. Tbe rights of the bolder were therefore exactly the same as if the agent had refused him a ticket when he tendered the full amount, of transportation in cash. If the defendant’s agent can thus postpone the bolder of a mileage book to those tendering cash the result is to utterly discredit mileage so that no one will wish to buy. This Court has never set aside a verdict because excessive. This is a matter left to the sound judgment of the presiding judge. This Court does not pass upon the conduct of the jury, but only upon the conduct of the judge, and we have held in a recent opinion, Freeman v. Bell, 150 N. C., 146 , that we will only pass upon the question whether the judge grossly abused bis discretion in refusing to set aside a verdict. As the plaintiff does not appeal, there is no allegation against the conduct of the judge in reducing the verdict to $2,500. The -only question before us is whether it was gross abuse of discretion on the part of Judge Allen in not reducing it below $2,500. Speaking for myself, I do not think that it would have been a gross abuse of *577 discretion if the presiding judge bad allowed the verdict to stand as rendered by the jury. Tbe plaintiff was wrongfully expelled from the ear, as tbis Court bolds, and for tbat wrong and humiliation be was entitled to compensation of wbicb the jury, under our laws, are the judges. It is true, as suggested by defendant’s counsel, tbat if be bad paid a further amount wbicb was illegally demanded be might have retained a seat on the car. If our ancestors bad been willing to pay a petty sum illegally demanded as a stamp tax, or a small illegal duty upon tea, we might have avoided the great seven years’ struggle and have been still an appanage of Great Britain. Tbe plaintiff was not only asserting bis legal rights at a great disadvantage, against a powerful corporation, but in doing so be was asserting the rights of every traveler, for transportation over a common carrier, upon tender of the proper sum, is a valuable legal right conferred by the sovereign when it created the corporation. It is not by the grace and favor of the common carrier, but as a legal right tbat one is entitled to use its-cars upon tender of the legal fare. Tbe liability of defendant for punitive damages is not raised by the complaint and tbat point is not before us. I not only concur in tbe opinion of tbe Court, but further, upon a point as to wbicb it was not found necessary for tbe Court to express itself, I am of opinion tbat tbe requirement tbat tbe bolder of a mileage book shall present it and obtain a ticket thereon is an unreasonable regulation and therefore void. By chap. 216, Laws 1907, the General Assembly prescribed 2% cents per mile as a maximum legal rate for transportation over the railroads in tbis State. Thereupon, as is usual, one of the said railroads applied to the Federal Court to defeat the execution of the will of the people of tbis State. Tbat matter came before tbis Court in State v. R. R., 145 N. C., 495 , where many phases of tbis subject were discussed. An account was ordered by the Federal Court to be taken to ascertain whether the reduction of rate by the General Assembly was confiscatory. Tbe result was that it was ascertained that the judgment of the public in exercising its right to regulate these corporations bad not only not been unjust, but tbat the earnings of the railroads *578 bad been greatly increased thereby. The railroad officials then addressed a letter to the Executive of this State in wbicb they proposed that if the State would change the rate to 2% cents per mile they would issue mileage books good on their lines within and without the State and good on all the railroads in the State at the rate of 2 cents per mile. Thereupon, the special session of 1908 was called which enacted the 2½ cents per mile rate. Nothing was said in the statute as to the mileage book, as that was an offer on the part of the railroads. Every one thought that of course the mileage books would be such as had always been issued over the roads in this State, and that holders thereof would be saved the trouble of getting tickets. Such had always been the case with mileage and no one had heard till then of a mileage book in North Carolina which was not good upon the train, but which was required to be first presented to the agent and a ticket obtained. ' The distinguished counsel who argued this case before us on the part of the plaintiff contended that this change was made through spite on the part of the railroad companies because they had been compelled to yield to the expressed will of the people, and that it was a deliberate plan also on their part to discourage the public from availing themselves of the privilege of using mileage by making it more troublesome than the purchase of tickets, instead of a convenience as formerly. We need not discuss motives. It would seem clear from the history of the transaction that the change is a breach of good faith. It was not what the public understood, or had a right to understand, the railroads to offer. The learned counsel for the plaintiff earnestly contended in their brief that the regulation requiring the purchase of a ticket in exchange for mileage is in itself unreasonable. If so, the regulation is void. Ammons v. R. R., 138 N. C., 555 . Counsel then set out seriatim the reasons which the defendant has given for exacting such requirement of the traveling public: (a) That it is a check upon the dishonesty of conductors. In reply to that they justly assert the excellent character of the railroad conductors in this State, and maintain that as a body they are honest, faithful and courteous, and that if one can be found *579 that is not so, inasmuch as the railroad company selects these officers, and can discharge them at will, it is not reasonable to impose this vast amount of inconvenience upon the traveling public, which has not been required heretofore. They add that the railroad companies still allow conductors to collect cash fares. Indeed this defendant requires the mileage book to he presented to the conductors as well as the ticket. Why then require the ticket at all? (b) As to the second contention that there may be loss by reason of conductors losing the mileage that they take up, counsel point out that they are no more liable to lose mileage than tickets or cash, and that such excuse was never heard of before, and is not now heard of over the great systems elsewhere in this Union over which mileage books are still used as heretofore. (c) As to the third contention, that baggage can be fraudulently checked by those riding on mileage books, plaintiff’s counsel assert that it is easy for the baggagemaster to punch the mileage book to the point to which the baggage is checked as it is to punch the ticket that is received in exchange for it, and that such requirement to prevent fraud was not needed heretofore in this State and is but rarely used on the railroads in this country, except in this immediate section, notwithstanding the vastly greater quantity of baggage which is carried elsewhere. The plaintiff’s brief further asserts that it takes from three to five times as long to issue a ticket in exchange for mileage as for one issued for cash, and that the result is a congestion and a wholly unnecessary delay, not only to the holders of the mileage book, but to the entire traveling public as well, and that such delay is vexatious and the regulation is unreasonable and without any good cause. The reason heretofore given, during all these long years here, and which is still given elsewhere, for the issuance of mileage books at reduced rates is that it expedites the issuance of tickets to others and saves clerical hire to the road, besides the use by the carrier of the money thus paid in advance. But if as now under this regulation it requires from three to five times as long to issue tickets in exchange for mileage as for cash, there is no reason why the Legislature should not relieve the railroads *580 of tbis burden, and the traveling public of this great inconvenience by requiring the railroads to sell the tickets straight at 2 cents for cash, instead of buying mileage at 2 cents and exchanging it for tickets. In addition to the reason so well given by the distinguished counsel showing that this regulation is unreasonable and void, there is this further consideration, derived from the reports of the Interstate Commerce Commission and of the North Carolina Corporation Commission: 1. That mileage books are still used on the trains without being exchanged for tickets, in Alabama, Arizona, Arkansas, Colorado, Connecticut, Iowa, Kansas, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Jersey, New York, North Dakota, Oklahoma, Pennsylvania, Rhode Isand, Texas, Yermont, Wisconsin, and on some railroads in this State. There are some railroads in Indiana, Louisiana and Ohio which require tickets in exchange for mileage. Practically it seems that the annoying and vexatious system which has been put in force here is almost unknown outside the territory covered by the three great railroad systems in this and adjacent States. It cannot be reasonable in any view to subject our people longer to this annoyance, and I think the Court might well hold it unreasonable and void in this case and relieve the public of being further subjected thereto. A flat 2 cents per mile rate is the law in Arkansas, Connecticut. Illinois, Indiana, Iowa, Kansas, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nebraska,New Hampshire, New Jersey, New York, Oklahoma, Pennsylvania, Rhode Island, South Dakota, "West Virginia, and Wisconsin, and there are other States which have a 2 cent mileage rate. On the great Pennsylvania system, with its thousands of miles of subsidiary roads, not only is a mileage book accepted by the conductor on the train without the previous purchase of a ticket, but it is good not only for the holder thereof, but for every other person traveling with him at the time, whom he shall designate. There can be no reason why this should not be universally the case. Every other business in the world considers the convenience and wishes of its patrons. Those railroads who do not think this their duty also *581 should recall that their charters are granted by the public to the end that they may be operated for the greatest comfort and convenience of the public and subject to public regulations, provided only that their owners are allowed a reasonable profit upon the true value of their property. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9811310. Public record. Not legal advice.