Chesapeake & Ohio Railway Co. v. Beasley

BuchaNAN, L,

dissenting:

In so far as the opinion of the court overrules the decision in the case of Richmond & Danville Railroad Co. v. Payne, 86 Va. 481, 10 S. E. 749, 6 L. R, A. 849, I dissent from it.'

It was held in that case that while section 1296 of the Code of 1887 did not permit a common carrier to exempt itself from liability for its own negligence, or the negligence of its servants, yet it did not prevent it from entering into a contract limiting the amount for which it should be liable, in consideration of the goods being carried at reduced rates, provided the contract was fairly entered into and its terms were just and reasonable.

Whatever may be thought of the correctness of that decision, the question decided is, in my judgment, no longer an open one in this State. That decision was made in January, 1890, nearly fifteen years ago. By an act approved January 18, 1904 (Acts, 1902-3-4, p. 968), the statute law of the State in reference to public service corporations was revised so as to conform to. the provisions of the present Constitution of the State. Whilst many radical changes were made by the act, no alteration was *801made in the language of section 1296 of the Code of 1887, except to make it apply to all transportation companies, in performing their duties as common carriers; and, as amended, it was re-enacted as cl. 25 of ch. 3 of that act (p. 980), and now appears as cl. 25 of sec. 1294c of the Code of 1904.

It is a well settled rule of construction that when a foreign statute, which has been construed by the courts of that State, has been incorporated into the laws of this State, it must be presumed that the Legislature intended to adopt the interpretation placed upon the statute by the courts of the foreign State. Doswell v. Buchanan, 3 Leigh. 394, 410, 23 Am. Dec. 280; Danville v. Pace, 25 Gratt. 1, 5, 18 Am. Rep. 663; N. & W. Ry Co. v. O. D. Baggage Co., 99 Va. 111, 37 S. E. 784, 50 L. R. A. 722; N. & W. Ry. Co. v. Cheatwood’s Admr., 103 Va. 356, 367, 49 S. E. 489.

If this be true of a foreign statute incorporated into our laws, it must a fortiori be true in the re-enactment of a statute which lias been construed by this court.

In Mangus v. McClelland, 93 Va. 786, 789-90, 22 S. E. 364, 365, it was said, that “it was a familiar rule of construction, that where a statute has been construed by the courts, and is then re-enacted by the Legislature, the construction given it is presumed to be sanctioned by the Legislature, and thenceforth becomes obligatory upon the courts. See Anable’s Case, 24 Gratt. 563, where this rule of construction was held to be binding upon courts even in criminal cases, and a fortiori it is binding upon them in civil cases.” See also Swift & Co. v. Wood, 103 Va. 494, 496, 49 S. E. 643, where it is reiterated that such a construction is obligatory upon the courts.

In my humble judgment, the construction placed upon section 1296 of the Code of 1887, by this court in R. & D. R. Co. v. Payne, supra, is as much binding upon the courts since the reenactment of that section as clause 25 of section 1294c of the Code of 1904, as if the Legislature had declared in.the body of the statute that it should not be construed as prohibiting a com-*802moa carriel’ from entering into a contract limiting tbe amount of' its liability in consideration of the goods being carried at reduced rates, provided the contract be fairly entered into and its terms be reasonable and just. To hold otherwise it seems to me, with all deference to the majority of the court is, not merely overruling a former decision of this court, but is repealing to that extent- an act of the Legislature.