(180 N. C. 422) (Supreme Court of North Carolina. Nov. 24, 1. Discovery 89-Petition by plaintiffs for order compelling defendant to produce contracts held proper. at the same price it has fixed by contract to other consumers under substantially the same circumstances does not interfere with the power company's applying to the Corporation Commission to fix the rates it shall be permitted to charge all consumers receiving such service, but neither the commission nor defendant company can fix rates unjustly favoring one consumer over another. 6. Discovery 106-Number of copies of contracts to be furnished under statute a matter for presiding judge. In suit for mandamus by consumers against a power company to compel it to continue to furnish current without discrimination in favor of others for like service, plaintiffs proceeded properly by petition under Revisal 1908, § In mandamus proceedings to compel defend1656, to obtain order of the superior court ant power company to furnish plaintiff consumrequiring defendant power company to furnishers with current at the rates at which it is furthem copies of specified contracts claimed to have been made by defendant with other consumers under substantially similar conditions. 2. Electricity-Mandamus 133-Court can prevent discrimination in rates by power company, and mandamus will lie. nished to other like consumers under similar circumstances, plaintiffs' consumers should not demand, under Revisal 1908, § 1656, to be furnished more contracts between defendant power company and other consumers than are reasonably sufficient to establish their allegations of discrimination in rates; it not being for the The court is empowered to prevent discrim- Supreme Court to say what copies shall be furination in rates by all public service companies, nished, a matter under the statutes and the as a company furnishing electric power, and general principles of law left to the sound legal mandamus will lie to compel a company to fur-discretion of the presiding judge. nish its service to the consuming public without discrimination; such power of the court being inherent, and independent of the corporation commission or statutory law. 3. Electricity 11-Corporation Commission not empowered to authorize discrimination by power company. The Corporation Commission had no power to authorize an electric power company to make discrimination between consumers in the matter of rates, and, if it appears to the court that an unlawful discrimination exists, it can be corrected by mandamus without regard to whether it results from a contract imposed by defendant power company directly or otherwise; for, while the court will not fix rates, it will review the Corporation Commission itself if it unjustly authorizes discrimination. 4. Electricity 11-Customers of power company seeking to compel furnishing of current at like rates entitled to have copies of contracts with other customers. In mandamus proceedings by a street railway and a public service company to compel a power company to continue furnishing current at the same rate it is furnished to other customers, contracts made by defendant power company with other customers establishing the fact that it is selling its current to them under substantially the same conditions at a less price than it is charging plaintiffs are material, and plaintiffs, under Revisal 1908, § 1656, are entitled to have copies of such contracts brought into court; such contracts also being material as tending to support plaintiffs' allegations that defendant power company had dedicated its property to the use of public service corporations other than plaintiffs engaged in selling current to the consuming public. 5. Electricity 11-Mandamus to compel power company to give equal rates does not interfere with company's application to fix rates. Mandamus requiring defendant power company to furnish current to certain consumers Appeal from Superior Court, Guilford County; Ray, Judge. Petition by the Salisbury & Spencer Railway Company and the North Carolina Public Service Company for writ of mandamus against the Southern Power Company, wherein demurrer to the petition was overruled and defendant appealed, judgment being affirmed in 179 N. C. 19, 101 S. E. 593, but the petition dismissed on rehearing in 179 N. C. 331, 102 S. E. 625, and, from an order made on motion of plaintiffs to require defendant to furnish them copies of certain contracts, defendant appeals. Order affirmed. Cansler & Cansler, of Charlotte, and Broadhurst & Cox and W. P. Bynum, all of Greensboro, and W. S. O'B. Robinson, Jr., of Charlotte, for appellant. A. L. Brooks, of Greensboro, Lynn & Lynn, and Roberson & Dalton, of High Point, for appellees. BROWN, J. This is an appeal from an order made in the cause reported 179 N. C. 19, rehearing page 331, 101 S. E. 593, 102 S. E. 625. It was decided in that case that the defendant is a public service corporation enjoying the right of eminent domain in North Carolina and that it may be compelled to furnish the electric current to the plaintiff and other customers without unjust discrimination. It has been further held that a mandamus lies to compel the defendant to continue furnishing current to the plaintiffs at the same rate that the defendant furnishes it to other customers who are similarly situated with the plaintiff's. The motion of the plaintiffs to require the defendant to furnish them copies of certain specified contracts which it is claimed the defendant has made (105 8.E.) with other customers under substantially, own contracts for current, and that it is similar conditions, is based upon section 1656 of Pell's Revisal, and is founded upon an affidavit, the verified complaint, and the two previous opinions rendered by this court in this case. Plaintiffs aver that these contracts, if produced, will show an unjust discrimination as to rates and will enable plaintiffs to establish their allegation that the defendant is unlawfully discriminating against them. charging first one customer and then another different rates for the same or, substantially similar service. No public service corporation engaged in public employment can successfully sustain such a position. The court possesses ample power to prevent discrimination in rates by all public service companies, and it cannot be doubted that mandamus will lie to compel the defendant to furnish its service to the consuming public without dis courts and exists independent of the Corporation Commission, or even statutory law. It is derived from the common law. [1] That the plaintiffs are proceeding prop-crimination. This power is inherent in the erly by petition in the cause to obtain the order is well settled. Justice v. Bank, 83 N. C. 11. In Evans v. Railroad, 167 N. C. 416, 83 S. E. 617, the court, construing this statute, said: "The power of the court to order the production of a paper under this statute is indisputable, but it must be a paper which contains evidence pertinent to the issue. * * If it is a paper writing which is pertinent to the issue, then the matter of ordering its production is confided by the statute to the sound discretion of the judge of the superior court, and his ruling will not be reviewed here." The defendant insists that the judge below erred in requiring copies of these contracts to be furnished plaintiffs, upon the grounds: (1) That the affidavit and motion does not set forth sufficient facts to warrant the order; and (2) that, even if the affidavit be sufficient, the contracts are not material to the proper determination of the issues involved. The learned counsel for defendant contends that these contracts relate to the question of rates which it is charging other consumers, that the courts have no authority to fix rates, that the question of discrimination in rates is one solely for the Corporation Commission, and that the courts cannot afford relief in this case. To these contentions plaintiffs reply that they are not seeking to have the court fix rates, but are willing to accept the rates which the defendant has already fixed by its own written contracts with other consumers of current similarly situated. This conclusion is forcibly stated by Mr. Justice Brewer in his opinion in Missouri P. R. Co. v. Larabee Flour Mills Co., 211 U. S. 619, 29 Sup. Ct. 216, 53 L. Ed. 359. That was likewise a case of mandamus instituted in the state courts. It is there said: in the business of a common carrier, yet, when riers. the obligation of equal service to all arises; action or special mandate, can be enforced by and that obligation, irrespective of legislative the courts. Neither is there any significance th the absence of a special contract between the Missouri Pacific and the mill company." Justice Connor, speaking for the court in Garrison v. Railroad, 150 N. C. 585, 64 S. E. 582, quotes with approval the foregoing opinion and adds: "In no possible form can this fundamental truth be evaded. It is a 'thing fixed' in the common law, enforced by both common law and statutory remedies, its violation denounced as criminal and subjected to severe punishment. We cannot permit any departure from it, however persuasive the reasons assigned may be for doing so." The plaintiffs further contend that the defendant has filed a statement with the Corporation Commission denying that it has any right or authority to fix the rates between it and consumers of current, such as the plaintiffs, and that the Corporation Commission has failed to prescribe any rates, leaving the defendant free to charge every consumer [3] The fact that the Corporation Comwhatever it pleases for current, and that mission has the power and authority to fix these contracts now in existence when pro- the rates at which the defendant shall sell duced will demonstrate that the defendant its current and electric energy to all consumis unjustly discriminating against the plain-ers connecting with its lines in no wise pretiffs. [2] The complaint in this case avers that the defendant is operating unrestrained by governmental control, and denies the right of both the Corporation Commission and the cludes the courts from preventing the defendant from making unlawful discriminations in rates charged for the same, or substantially similar service. The Corporation Commission itself has no power to authorize the court that an unlawful discrimination, tiffs allege exist, there can be no question exists, it can be corrected by mandamus with- of its materiality upon the issues arising in out regard to whether it results from a con- this case. tract imposed by the defendant directly or otherwise. While the court will not fix rates, it will review the Corporation Commission itself if it should unjustly discriminate. The contention of the defendant that such matters are for the Corporation Commission was expressly denied by this court in Walls v. Strickland 174 N. C. 299, 93 S. E. 857. That was likewise an action for mandamus, and the sole question presented to the court was: "The defendants excepted and appealed, upon the ground that, telephone companies being subject to the control and regulation of the Corporation Commission, the courts have no jurisdiction of the action." The law governing the powers and duties of the court with relation to granting relief against unjust discrimination in rates was very fully discussed and determined by this court in Lumber Co. v. Railroad, 141 N. C. 175, 53 S. E. 823, 6 L. R. A. (N. S.) 225. In that case the plaintiff sought to recover the difference between $2.50 per thousand charged for hauling logs and $2.10 charged other shippers for the same service, under substantially similar conditions. The court there adopted the lowest rate as the governing rate, and plaintiff was allowed to recover the difference. Plaintiffs in the present case aver that a similar practice is engaged in by the defendant, and it seeks by a mandamus to prevent the discrimination by requiring the defend Mr. Justice Allen, delivering the opinion of ant to charge it the same rate which it has the court, says: "The error in the position of the defendants is in failing to distinguish between the regulation and control of telephone companies, which, as to individuals and corporations, are committed by statute to the Corporation Commission (Rev. § 1096; chapter 966, Laws 1907), whether exclusively so or not we need not say, and the refusal to perform a duty to the plaintiff, arising upon facts that are established." already established for other consumers taking current under substantially similar circumstances. Such practices are unlawful, and the remedy is at the election of the party injured. In Railroad Case, supra, the shipper elected to wait and sue for the difference paid, while here the plaintiff has elected to seek a mandamus to prevent the unlawful discrimination, and thus avoid a multiplicity of suits. A learned English judge has reIt thus appears that this court has de-cently very aptly said that the modern busiclined to abdicate its jurisdiction and authority in such cases to deal with "the refusal to perform a duty to the plaintiff, arising upon facts that are established." [4] The plaintiffs, both in their verified complaint and in their affidavit in support of this motion, aver that these contracts will establish the fact that the defendant is now selling current to other consumers under the same, or substantially similar conditions, at a less price than it is charging the plaintiffs. If this be so, the evidence is very material, and the plaintiffs are entitled to have copies of same. A number of the contracts appear to be between defendant and other utility companies and municipalities purchasing current for resale, as are the plaintiffs. Aside from the issue as to discrimination in rates, these contracts are material as tending to support plaintiffs' allegation that the defendant has dedicated its property to the use of other public service corporations which are reselling current to the consuming public. To illustrate: The parties have put directly in issue a contract between the defendant and the Southern Utility Company; the plaintiffs alleging that not only does this contract show an unlawful discrimination in rates, but that it also establishes that the defendant has dedicated its property to the service of that utility, which in turn is serving the cities of Charlotte, Winston-Salem, Reidsville, and other towns and cities in ness world has a right to expect the courts "to be service stations and not repair shops." Justice Connor, in delivering the opinion of the court in the Railroad Case, supra, quotes with approval an editorial note in the Harvard Law Review, vol. 19, No. 6, p. 453, as follows: "It has been remarked many times that the common law may be relied upon to meet, by principles, the complex conditions created by the continual development of its fundamental the constant evolution in the industrial organization. One of the most striking of modern instances of this capacity of growth in the common law is the astonishing progress in the working out of the detail of the exceptional law governing the conduct of public callings. So dependent are all commercial activities upon adequate service by the great companies which conduct these public employments, that the all who apply shall be served with adequate general situation demands the stern code that facilities for reasonable compensation, and without discrimination. Enforcement of all branches of this law is necessary at all times; but the commercial community is most interested to-day in the prevention of personal discrimination. It is established now, past all qualification, that it is the duty of the common carrier to serve all alike who may ask the same service, so that all shippers from a given point may compete with each other in distant markets upon equal terms. For it is now recognized that the slightest differences in the rate may result in the long run in building up (105 8.E.) This court in the same case, in discussing the precedure by which the court would determine what was an unjust discrimination, and what rate the complaining party should pay, quotes with approval the language of Lord Hatherly, in Directors, etc., v. Evershed, 3 App. Cas. 1029, as follows: "According to the strict meaning of the acts of Parliament, as interpreted by the decisions, from the very moment that the company charges A. a given sum when B., another person, comes to the company to have the same service rendered under the same circumstances, he We fail to find any abuse of such discretion in the exercise of this power by the learned judge of the superior court, as the contracts called for are all apparently pertinent to the issues raised by the pleadings. The order of the superior court is affirmed. Affirmed. (115 S. C. 186) YOUMANS et al. v. YOUMANS et al. (No. 10521.) 1920.) cannot be charged one farthing more than has (Supreme Court of South Carolina. Nov. 10, been charged A.; he can only be charged precisely what the act authorizes the company to charge, namely, that which has been charged others, and the moment the directors take on themselves to charge less to another person, they must charge less to him too." This well-recognized principle of law has already been correctly stated by this court in this case, by the Chief Justice, 179 N. C. 34, 101 S. E. 601, where is is said: "It will not be difficult for the court, upon the hearing, to determine the lowest rate charged by the defendant for current and power furnished cotton mills, factories, municipalities, or other public service companies, under the same or substantially similar conditions. The lowest rate thus established will automatically become the proper rate to be charged the plaintiffs for such service. Otherwise, the defendant will still be unlawfully discriminating against the plaintiffs." [5] By the application of this doctrine the court does not fix defendant's rates, but simply adopts the lowest rates which the defendant power company itself has fixed for the same, or substantially similar service. Plaintiffs are not asking a lower or different rate from that now given other consumers under similar conditions. This does not interfere with defendant's applying to the Corporation Commission at any time to fix the rates it shall be permitted to charge these plaintiffs and other consumers of current receiving such service, but neither the commission nor the defendant can fix rates that unjustly favor one consumer over another. The courts are always open to prevent this kind of discrimination, and, manifestly, the only way to prevent discrimination is to require the defendant to furnish current to these plaintiffs at exactly the same price it has fixed by contract to other consumers under substantially the same circumstances. [6] As to the number of contracts to be furnished, the plaintiffs should not demand more than is reasonably sufficient to establish their allegations. It is not for us to say what copies shall be furnished, for that is a matter which, under the statute as well as under the general principles of law, is left to the sound legal discretion of the presiding judge. Bank v. Newton, 165 N. C. 363, 81 S. E. 317. 1. Deeds 128-Deed in trust conveyed life estate, rule in Shelley's Case not applying. A clause in a deed of certain property "in trust to and for the sole and separate use of my daughter, J., during her natural life and after her death to the heirs of her body forever," held to convey to the daughter only a life estate, so that remainder goes to the heirs of her body per formam doni, the rule in Shelley's Case not applying, although such daughter went into possession of the property, the trustees having the power under the deed to take possession of the property if they deemed it unsafe to leave it in the possession of the daugh ter. 2. Deeds 194(5)-Delivery presumed from recording. Delivery of a deed will be presumed from the recording thereof. 3. Life estates 8-No adverse possession against remaindermen. Possession cannot be adverse, and the statute of limitations cannot run against remaindermen during the lifetime of the life tenant. Appeal from Common Pleas Circuit Court, Hampton County; I. W. Bowman, Judge. Action by Lula Youmans and others against B. B. Youmans and others. Judgment for defendants, and plaintiffs appeal. Reversed and remanded. W. D. Connor, of Hampton, for appellants. W. H. Fitz Simons, of Charleston, Grier, Park & Nicholson, of Greenwood, Geo. Warren, of Hampton, and W. B. De Loach, of Camden, for respondents. FRASER, J. On the 20th day of November, 1844, Lewis Manker executed a certain trust deed to Henry Smart and James Walker, trustees, in which he conveyed to said trustees, for the sole and separate use of certain of his daughters, certain personal property The clause conveying the and real estate. property for his daughter, Julia E. Manker, who afterward married Thomas Youmans, now deceased, reads as follows: "To have and to hold the slaves Cyrus, Kate and Mahaley and the future issue and increase of the females. And, also, all that portion of the hereinbefore mentioned tract of land with and that the fee to the said lands vested in the improvements thereon lying north of the her children at their birth, and that the said Charleston and Augusta road, and one-plaintiffs are now entitled to their distribuhalf or portion of the stock of horses, hogs, tive share in said lands. The court overruled cattle, wagons, plantation tools and household their contention and held that Mrs. Youmans and kitchen furniture, in trust to and for the took a fee conditional and that her conveyances, after the birth of issue, conveyed a fee simple to her grantees, and directed a verdict for defendants. The deed, however, allowed the trustees to take charge of the land, if they deemed it necessary, and manage it for the life tenant. The trustees had a duty to perform and the use was not executed, and therefore the rule in Shelley's Case does not apply. The deeds of Mrs. Youmans conveyed only her life estate and the remainder goes to the heirs of her body per formam doni. sole and separate use of my daughter, Julia E. Manker, during her natural life, and after her death, to the heirs of her body forever, not subject to the debts, contracts or engagements of any husband or any person or persons whatever. "And I do hereby bind myself, my heirs, executors and administrators to warrant and forever defend all and singular the said lands, slaves, horses, cattle, hogs, wagons, tools and furniture to the said Henry Smart and James Walker, trustees, in trust as aforesaid, authorizing and requiring them to permit my said daughters to have possession, management and control of said property, and to receive the rent, labor, services, hire or profits thereof in all cases, so long as the said Henry Smart and James Walker, trustees, as aforesaid, or their successors in office, shall deem it safe and prudent to do so-but if the said Henry Smart and James Walker, or their successors in office, [2] Delivery of the trust deed is presumed from the record thereof. There is no sufficient evidence to rebut the presumption of delivery. [3] The defenses of adverse possession and the statute of limitations cannot be susas trustees, shall deem it unsafe to leave the tained, because the statute could not run said property or any portion thereof, in the against the remaindermen during the lifepossession of my said daughters, the said trus-time of the life tenant. tees or their successors in office shall have the power to take possession of the said property and to hire the said slaves and to render to my said daughters the hire and wages thereof for their better maintenance and support of my said daughters and the support and education of their children." Julia E. Manker married Thomas Youmans in 1846. He died in 1884. She died in November, 1911. There were born to their marriage eight children, as follows: Edwin C. Youmans, who died unmarried and without issue before his mother, Julia E. Youmans; J. P. Youmans, who died, leaving his will in which his property is left as indicated in the testimony; Mrs. Louisa C. Lewis, who is still living; Cornelia Lewis, who died prior to her mother, Julia E. Youmans, leaving a number of The judgment of the circuit court is reversed, and the case is remanded for partition in accordance with the rights and interests of the parties according to the views herein announced. HYDRICK and WATTS, JJ., concur. The CHIEF JUSTICE and GAGE, J., absent on account of sickness. (115 S. C. 183) COMMISSIONERS OF PUBLIC WORKS OF children and grandchildren; B. B. Youmans, (Supreme Court of South Carolina. Nov. 26, who is still living; Mrs. Annie Moore, who died before her mother, Julia E. Youmans, leaving a husband and two children; L. L. Youmans, who died before his mother, leaving certain heirs; and Calvin Youmans, who died before his mother, Mrs. Julia E. Manker, leaving certain heirs at law as set forth in the testimony herein. In the years 1898, 1905, and 1906, Mrs. Julia E. Youmans conveyed by certain deeds, purporting to be fee-simple conveyances, all of the tract of land north of the Orangeburg road, leaving out the heirs at law of Mrs. Cornelia Lewis and Mrs. Annie Moore, who were two of her children; which heirs at law have commenced this action for partition. [1] Plaintiffs contend that, under the old trust deed of Lewis Manker to Smart and Walker, Mrs. Youmans only took a life estate, 1920.) |