Williams,
J.
(after stating the facts as above). The question involved here is the construction of the tariff sheet rate of the defendant as to the rates for “cotton uncompressed, any quantity,” and “cotton compressed, any quantity”; the former being 75 cents and the latter 65 cents per hundred pounds between the points named. The cotton having been delivered by the shipper to the carrier in an “uncompressed” state, with the understanding that it would be compressed and transported by the carrier in a “compressed” condition to its ultimate place of consignment, and the tariff sheet not covering such a specific consignment, the question arises as to whether or not this shipment was properly chargeable at the rate for “uncompressed” cotton or “compressed” cotton. See
In re Alleged Unlawful Rates and Practices in the
Transportation of Cotton by the K. C., M. & B. R. Co. et al,
8 Interst. Com. R. 121.
It does not seem very material whether we view this tariff rate as a legislative act or merely a contract, as the rule of construction, with a few exceptions, seems to be the same in each case. The agent of the carrier testified as follows:
“Q. If the rate is given in the tariff as 65 cents for compressed cotton, what does that mean? What does that include? A. Well, I take it that it means the cotton that is to be compressed in transit. Q. What I want is the regulation and custom, who pays the compressing charges ? A. It is customary for the company to pay for the compressing. Q. I believe you said, in answer to Mr. Blake’s question, you stated where the rate was 75 cents for uncompressed cotton, that that was where the shipper demanded that the cotton be shipped through flat, without being compressed? A. Yes, sir.”
Mr. Lawson in his work on Usages and Customs (1887) p. 463, § 223,-lays down the rule that:
“Where a statute is expressive as to some points and silent as to others, usage may well supply the defects, if not inconsistent, with the express directions of the statute.”
And, further, that:
“In a general statute doubtful words may be explained by reference to general usage.”
And, that:
“In a statute applicable to a particular place only, ambiguous words may be construed by the usage at that place.”
In the explanation of doubtful' language in a legislative act contemporaneous and continuing usage, has always been much relied on. Lawson on Usages and Customs (1887) § 223, p. 462, and authorities cited in footnote 4.
In the case of
McKeen v. DeLancy’s Lessee,
5 Granch, 22, 3 L. Ed. 25, it was held:
“Under the act of Pennsylvania of 1715, which requires a deed to be acknowledged before a justice of the peace of the county where the lands lie, it had been the long-established practice
before the year 1775 to acknowledge deeds before a justice of the Supreme Court of the province of Pennsylvania. And although the act of 1715 does not authorize such a practice, yet as it has prevailed, it is to be considered as a correct exposition of the statute.”
In the same case the rule was laid down that courts did not take judicial knowledge of a custom.
See, also,
Jackson v. Gumaer,
2 Cow. (N. Y.) 567 ;
McFerran et al. v. Powers et al.,
1 Serg. & R. (Pa.) 102.
In the case of
Detroit & Milwaukee R. Co. v. Van Steinburg,
17 Mich. 99, the late Chief Justice Cooley, in delivering the opinion of the court, said:
“It was also suggested that the evidence would, have had some tendency to establish a general practice among railroad companies, which must be presumed to have been established, because necessary to prevent similar accidents, but no further attempt was made to prove any such general practice; and, as the custom of only one company could have no tendency to establish it, I think the judge erred in admitting the evidence, especially as there is no claim that it was offered for any such purpose.”
In the case of
Bancroft v.
Peters, 4 Mich. 619, the court said:
“But how does the plaintiff stand in this respect? He represents -the New York & Erie Eailroad Company; they received and shipped the property as ‘unwrought marble.’ In the absence of any testimony and unexplained, that must be presumed to have been the agreement between the parties, that is, it must be presumed that both parties understood that it was to be shipped as" ‘unwrought marble.’ The plaintiff, then, had' to rebut that presumption by proof. The agent of the company was sworn in the ease, and testified that it was so designated by mistake; that he, the witness, and other officers of the company had always regarded this species of property as properly designated by the term ‘wrought.’ This opened the case for further evidence, and it became a question of fact to know in what sense these terms were used by manufacturers, dealers, and carriers when applied to marble, and upon this point there was considerable evidence, and the court could not have done less than to submit it to the jury, and it was so submitted, and the jury found against the plaintiff, and we cannot say that the verdict was wrong, nor can we say that any improper evidence was submitted to them,”
In the case of
Greason v. St. Louis, I. M. & S. R. Co.,
112 Mo. App. 116, 86 S. W. 722, which was an action to recover for an overcharge on freight, it is said:
“No decision has been cited that dumber’ means hewn ties. If the word dumber’ has any peculiar meaning among dealers in it or in transportation circles, which would embrace or exclude hewn ties, no evidence of the fact was offered. The meaning to be applied to the word in the letter in question is its ordinary meaning in vernacular speech, unless the previous dealings between the plaintiffs and the defendant, or the circumstances under which the letter was written, or the light thrown on the intention of the letter by the other facts in evidence, the tariff sheet, and the testimony of the freight agent compel a different significance.”
See, also,
Martin et al. v. Marshall et al.,
7 Manning
&
Granger (49 Eng. Con. Law) 729 ;
Wayne v. Steamboat General Pike,
16 Ohio, 423;
Andrews, Use, etc., v. Roach & Coffey,
3 Ala. 590, 37 Am. Dec. 718;
Cooper et al. v. Berry et al.,
21 Ga. 526, 68 Am. Dec. 468;
Berry et al. v. Cooper & Boykin, Ex’rs,
38 Ga. 543.
In the case of
Higgins v. Brown, Judge et al.,
30 Okla. 355, 94 Pac. 703, this court said:
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Williams,
J.
(after stating the facts as above). The question involved here is the construction of the tariff sheet rate of the defendant as to the rates for “cotton uncompressed, any quantity,” and “cotton compressed, any quantity”; the former being 75 cents and the latter 65 cents per hundred pounds between the points named. The cotton having been delivered by the shipper to the carrier in an “uncompressed” state, with the understanding that it would be compressed and transported by the carrier in a “compressed” condition to its ultimate place of consignment, and the tariff sheet not covering such a specific consignment, the question arises as to whether or not this shipment was properly chargeable at the rate for “uncompressed” cotton or “compressed” cotton. See
In re Alleged Unlawful Rates and Practices in the
Transportation of Cotton by the K. C., M. & B. R. Co. et al,
8 Interst. Com. R. 121.
It does not seem very material whether we view this tariff rate as a legislative act or merely a contract, as the rule of construction, with a few exceptions, seems to be the same in each case. The agent of the carrier testified as follows:
“Q. If the rate is given in the tariff as 65 cents for compressed cotton, what does that mean? What does that include? A. Well, I take it that it means the cotton that is to be compressed in transit. Q. What I want is the regulation and custom, who pays the compressing charges ? A. It is customary for the company to pay for the compressing. Q. I believe you said, in answer to Mr. Blake’s question, you stated where the rate was 75 cents for uncompressed cotton, that that was where the shipper demanded that the cotton be shipped through flat, without being compressed? A. Yes, sir.”
Mr. Lawson in his work on Usages and Customs (1887) p. 463, § 223,-lays down the rule that:
“Where a statute is expressive as to some points and silent as to others, usage may well supply the defects, if not inconsistent, with the express directions of the statute.”
And, further, that:
“In a general statute doubtful words may be explained by reference to general usage.”
And, that:
“In a statute applicable to a particular place only, ambiguous words may be construed by the usage at that place.”
In the explanation of doubtful' language in a legislative act contemporaneous and continuing usage, has always been much relied on. Lawson on Usages and Customs (1887) § 223, p. 462, and authorities cited in footnote 4.
In the case of
McKeen v. DeLancy’s Lessee,
5 Granch, 22, 3 L. Ed. 25, it was held:
“Under the act of Pennsylvania of 1715, which requires a deed to be acknowledged before a justice of the peace of the county where the lands lie, it had been the long-established practice
before the year 1775 to acknowledge deeds before a justice of the Supreme Court of the province of Pennsylvania. And although the act of 1715 does not authorize such a practice, yet as it has prevailed, it is to be considered as a correct exposition of the statute.”
In the same case the rule was laid down that courts did not take judicial knowledge of a custom.
See, also,
Jackson v. Gumaer,
2 Cow. (N. Y.) 567 ;
McFerran et al. v. Powers et al.,
1 Serg. & R. (Pa.) 102.
In the case of
Detroit & Milwaukee R. Co. v. Van Steinburg,
17 Mich. 99, the late Chief Justice Cooley, in delivering the opinion of the court, said:
“It was also suggested that the evidence would, have had some tendency to establish a general practice among railroad companies, which must be presumed to have been established, because necessary to prevent similar accidents, but no further attempt was made to prove any such general practice; and, as the custom of only one company could have no tendency to establish it, I think the judge erred in admitting the evidence, especially as there is no claim that it was offered for any such purpose.”
In the case of
Bancroft v.
Peters, 4 Mich. 619, the court said:
“But how does the plaintiff stand in this respect? He represents -the New York & Erie Eailroad Company; they received and shipped the property as ‘unwrought marble.’ In the absence of any testimony and unexplained, that must be presumed to have been the agreement between the parties, that is, it must be presumed that both parties understood that it was to be shipped as" ‘unwrought marble.’ The plaintiff, then, had' to rebut that presumption by proof. The agent of the company was sworn in the ease, and testified that it was so designated by mistake; that he, the witness, and other officers of the company had always regarded this species of property as properly designated by the term ‘wrought.’ This opened the case for further evidence, and it became a question of fact to know in what sense these terms were used by manufacturers, dealers, and carriers when applied to marble, and upon this point there was considerable evidence, and the court could not have done less than to submit it to the jury, and it was so submitted, and the jury found against the plaintiff, and we cannot say that the verdict was wrong, nor can we say that any improper evidence was submitted to them,”
In the case of
Greason v. St. Louis, I. M. & S. R. Co.,
112 Mo. App. 116, 86 S. W. 722, which was an action to recover for an overcharge on freight, it is said:
“No decision has been cited that dumber’ means hewn ties. If the word dumber’ has any peculiar meaning among dealers in it or in transportation circles, which would embrace or exclude hewn ties, no evidence of the fact was offered. The meaning to be applied to the word in the letter in question is its ordinary meaning in vernacular speech, unless the previous dealings between the plaintiffs and the defendant, or the circumstances under which the letter was written, or the light thrown on the intention of the letter by the other facts in evidence, the tariff sheet, and the testimony of the freight agent compel a different significance.”
See, also,
Martin et al. v. Marshall et al.,
7 Manning
&
Granger (49 Eng. Con. Law) 729 ;
Wayne v. Steamboat General Pike,
16 Ohio, 423;
Andrews, Use, etc., v. Roach & Coffey,
3 Ala. 590, 37 Am. Dec. 718;
Cooper et al. v. Berry et al.,
21 Ga. 526, 68 Am. Dec. 468;
Berry et al. v. Cooper & Boykin, Ex’rs,
38 Ga. 543.
In the case of
Higgins v. Brown, Judge et al.,
30 Okla. 355, 94 Pac. 703, this court said:
“Indeed, where a particular construction has been generally accepted as correct, and especially where this has occurred contemporaneously with the adoption of the Constitution or statute, and by those who had opportunity to understand the intention of the instrument, it is not to be denied that the presumption exists that the construction rightly interprets the intention. And when this has been given by officers in the discharge of their official duty, and rights have accrued in reliance upon it, which would be divested by the decision that the construction was erroneous, the argument
ab inconvenienli
is sometimes allowed to have very great weight.”
The words and phrases employed in a tariff approved by thé Interstate Commerce Commission seem to be subject to the same rules of construction as when used in legislative acts. The intention or understanding of the parties as to the meaning of the words employed in the tariff at the time the shipping contract was entered into would neither control nor be binding so as to constitute a valid contract if in conflict with such
tariff rate, for all shipping contracts made in violation of tariff rates approved by the Interstate Commerce Commission are absolutely void. If we were permitted to look to the intention of the parties and what they meant, for the purposes of construing or interpreting the tariff rate, we might permit a contract to be made that was in conflict, and not in accord, with the tariff provision, which would not be permissible. If a custom or usage is approved, and the tariff provision is so uncertain, doubtful, ambiguous, or indefinite as to call for construction and interpretation, the same shall be made in the light of such custom or usage and the contemporaneous interpretation placed thereon by the officers' under the limitations and conditions as héreinbefore set out.
It appears that the baled cotton delivered by the plaintiffs to the defendant was by or for said railway company compressed and thereafter shipped by it to its place of consignment; there being no other tariff rate than that heretofore referred to applicable to such shipment. The regulation by law of the charges by a public carrier is to the .end that the public may not only have proper service for a reasonable charge, but that there may be no discrimination as against shippers. There is no appearance in this transaction of any device to evade any regulation.
The question arises further as to whether the usage or custom was sufficiently proved. We think not. Only the custom of the plaintiff in error railway company was proved. It was necessary to go further and show the custom or usage of the railway companies in the cotton growing states, at least in the southwest, relative to the paying of the compressage as a part of the freight charge. This was not done, and for that reason the judgment is reversed and remanded, with instructions to grant a new trial.
Dunn, C. J., and Turner, J., concur; Kane and Hayes, JJ.,. concur in the conclusion.'