37 the statute must not only be reasonable in and of itself as between the carrier and patron, but relatively reasonable as compared with other lawful rates. These enactments constitute a sufficient standard on which action by the commission may be taken. Although to provide that charges shall be just and reasonable and a departure therefrom constitutes a crime is not sufficiently certain and definite to answer the requirements of criminal law, yet it has been held to make the same provision as the basis of authority of a commission to fix rates is sufficiently definite. When it is provided by statute that if a carrier charges in excess of just and reasonable compensation, it will be guilty of extortion and punishable criminally therefor, the time of determining the question of reasonableness is postponed until after the charge has been imposed, and no one can know in advance what a court or jury may regard as reasonable; whereas, under a statute declaring that only just and reasonable rates shall be charged and authorizing a commission to determine and prescribe what rates fall within that description, the question is determined so far as the carrier is concerned prior to the imposition of the charge. This is a distinction to be drawn between such standard as a basis for the action of a governmental agency, and for the conduct of private individuals. 38 The requirements that have been enumerated plainly operate as limitations also upon the commission. Jurisdiction has not been placed in the hands of the commission to make general maximum rates for all commodities between all points. The distinction between a general power to fix rates and to amend specific rates seems to be that if in case of an order prescribing a scheme of maximum rates they would fail to produce adequate return for the operation of the railroad, that fact in and of itself, would demonstrate the unreasonableness of the order; whereas, in case of a particular rate, if it can be regarded as for the (37) Chicago, Burlington & Quincy R. R. Co. v. People. 77 Ill. 443, 447; Same v. Jones, 149 III. 361, 375; Louisville & Nashville R. R. Co. v. Kentucky, 99 Ky. 133, 136; Oregon R. & Nav. Co. v. Campbell, 173 Fed. Rep. 957; Same v. Same, 177 Fed. Rep. 318; Louisville & Nashville R. Co. V. Railroad Commission of Tennessee, 19 Fed. Rep. 679, 691. (38) Missouri, Kansas & Texas R. Co. v. Interstate Commerce Commission, 164 Fed. Rep. 645, 648. use of a facility, the rate is not necessarily to be regarded as confiscatory because it cannot be shown that the compensation fixed for the specific service, does not amount to an adequate return therefor.39 The action of the commission is merely amendatory. Its changes must be predicated upon a finding of unreasonableness or unlawfulness of existing rates.40 A rate fixed by the commission must not be below the confiscatory point nor above the extortionate point; and must be just and reasonable as compared with other rates. It is not a delegation of legislative power to authorize an executive officer or board to determine the reasonableness of a matter or thing in its relation to other matters and things.*1 The orders of the commission are selfexecuting; that is, upon their being regularly made they become positive rules of conduct.42 In express terms the statute requires that the maximum fixed by the commission be not exceeded by carriers.43 Congress has established the rule governing all rates, and the commission completes the act by declaring what rates will conform to the rule. The rates thus finally ascertained become the "law of the land" with the same force and efficacy as if the figures in the commission's order were written in the statute. In the absence of the order of the commission being set aside, the rates fixed therein are the only amounts the carrier is entitled to receive for services actually rendered. They are the only rates that the 45 (39) Atlantic Coast Line Co. v. North Carolina Corp. Commission, 206 U. S. 1, 25. (40) Sec. 15 of Act to Regulate Commerce, as amended. (41) Monongahela Bridge Co. V. United States, 216 U. S. 177; Oregon R. & Nav. Co. v. Campbell, 177 Fed. Rep. 318; Same v. Şame, 173 Fed. Rep. 957. (42) Sec. 15, of Act to Regulate Commerce as amended; Sec. 11, of Elkins Act, as amended (34 Stat. at Large, 584); Gulf, etc., R. Co. v. Helfley, 158 U. S. 98; Texas, etc. R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426; Texas, etc., R. Co. v. Mugg, 202 U. S. 242; Texas & Pacific Ry. Co. v. Cisco Oil Co., 204 U. S. 449. (43) Sec. 1 of Elkins Act; and sec. 1 of Act to Regulate Commerce, as amended; Van Patten v. Chicago, etc., R. Co., 81 Fed. Rep. 545, 552; Southern Ry. Co. v. Tift, et al., 206 U. S. 428; Illinois Central R. R. Co. v. Interstate Commerce Commission, 206 U. S. 441, Texas, etc., R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426. (44) Oregon R. & Nav. Co. v. Campbell, 173 Fed. Rep. 957, 975; Knoxville v. Water Co., 212 U. S. 1, 8; Chicago, Milwaukee & St. Paul R. R. Co. v. Minnesota, 134 U. S. 418, 460. (45) Chicago, Milwaukee & St. Paul R. R. Co. v. Ackley, 94 U. S. 179. carrier is permitted to charge, and are conclusively presumed to be the legal rate." A rule of conduct for the carrier is thus irrevocably fixed and determined in advance. It is specifically made the duty of every common carrier to observe and comply with the orders of the commission so long as the same remain in effect. Rates not in excess of the maximum prescribed by the commission must be put in force by filing schedules thereof, and printing and publishing same. The use of rates not filed and published as required by law is forbidden.4s For violation of these requirements, appropriate penalties are prescribed, but the statute does not authorize their imposition so as to amount to a deprivation of an opportunity on the part of the carrier to contest the legality of the commission's order fixing rates, as jurisdiction is specifically conferred upon the commerce court to suspend the operation of the commission's orders pending a hearing in that court.50 In its procedure for determining the propriety of rates, the statute requires that the commission must give a "full hearing." upon reasonable notice." General rules or orders for the regulation of proceedings before the commission, including forms of notices and service thereof, must conform as nearly as may be to the rules and orders in use in the courts of the United States. 56 the existence or creation of preferences and discriminations. The interests to be considered at the inquiry are those of the public as well as of the owner of the property, together with all circumstances and conditions reasonably applicable to the situation, including rights of tion, including rights of shippers, producers, and consumers, and the welfare of communities where traffic originates and is sent. The commission must not improperly exclude facts and circumstances that ought to have been considered.58 A carrier is entitled to have a finding that any particular charge is unreasonable and unjust. before it is required to alter it; and the order must forthwith be served on the carrier. There can be no doubt that the provisions enumerated as to notice and hearing and scope of inquiry give the carrier and interested parties all the rights they are entitled to claim under due process of law." 59 V. 184, 196; Interstate Commerce Commission Cincinnati. New Orleans & Texas Pacific Ry. Co., 167 U. S. 479, 493; Stickney v. Interstate Commerce Commission, 164 Fed. Rep. 638, 643; affirmed in 215 U. S. 98. (55) Cincinnati, Hamilton & Dayton Ry. Co. v. Interstate Commerce Commission, 206 U. S. 142, 154; Illinois Central R. R. Co. v. Interstate Commerce Commission, 206 U. S. 441, 454; New York, New Haven & Hartford R. R. Co. v. Interstate Commerce Commission, 200 U. S. 361, An interested party may require the pro- 402; Louisville & Nashville R. R. Co. v. Behlceedings to be public.52 mer, 175 U. S. 648, 675; Interstate Commerce Commission v. Chicago, Rock Island & Pacific Ry. Co., 218 U. S. 88, 110. Before the commission can determine and prescribe rates in lieu of existing rates, it must be of opinion that existing rates are unjust and unreasonable, or otherwise un- Delaware, Lackawanna & Western R. R. Co., (48) Sec. 6 of same Act. (49) Secs. 6 and 16 of Act to Regulate Commerce, as amended; and sec. 1 of Elkins Act, as amended. (50) Secs. 1 and 3 of Act to Create a Commerce Court (36 Stat. at L. 539). (51) Sec. 15 of Act to Regulate Commerce, as amended. (52) Sec. 17 of same Act. (53) Sec. 15 of same Act. (54) Illinois Central R. R. Co. v. Interstate Commerce Commission, 206 U. S. 441, 455; Cincinnati, New Orleans & Texas Pacific R. R. Co. V. Interstate Commerce Commission, 162 U. S. (56) Interstate Commerce Commission V. 220 U. S. 235; Atchison, Topeka & Santa Fe Ry. Co. et al., v. Interstate Commerce Commission and the United States, decided by Commerce Court, July 20, 1911, No. 2, April Session, 1911. (57) Missouri, M. & T. R. Co. v. Interstate Commerce Commission, 164 Fed. Rep. 645; Covington & Lexington Turnpike Co. v. Sandford, 164 U. S. 578, 597; Interstate Commerce Commission v. Alabama Midland Ry. Co., 168 U. S. 144, 165; Texas & Pacific Ry. Co. v. Interstate Commerce Commission, 162 U. S. 197, 220. (58) Illinois Central R. R. Co. v. Interstate Commerce Commission, 206 U. S. 441, 455; Texas & Pacific Ry. Co. Interstate Commerce Commission, 162 U. S. 197, 217; Cincinnati, New Orleans & Texas Pacific Ry. Co. v. Interstate Commerce Commission, 162 U. S. 184, 194; Interstate Commerce Commission v. Alabama Midland Ry. Co., 168 U. S. 144. V. and that there is no room for the exercise of arbitrary discretion on the part of the commission. Judicial review in the commerce court is expressly provided for; and the constitutional question whether a rate prescribed by the commission is so low as to amount to confiscation may be reviewed therein.62 63 The law expressly confers the rate-making power. From the nature of the power, Congress was constitutionally able to confer it. The possibility that the commission might err and fix rates below the compensatory point, does not militate against its exercise of the power within constitutional limits, and no objection can be raised on this ground, when a court is open for redress, although the court will not interfere to say that rates will necessarily have a confiscatory effect, unless the case presents clearly and beyond all doubt a flagrant attack upon the rights of private property under the guise of regulation. Upon an application of the commission to the commerce court for enforcement of its order, or of a carrier to have the same set aside, the commission's order is not conclusive, but only prima facie, so that the carrier, in all instances, has an opportunity to have the validity of rates prescribed for its use determined by the tribunals established and provided for by the constitution for the protection of rights of property. 64 The act appears to prescribe a sufficient standard for the guidance of the commission, in that it is not left to that body arbitrarily to invent a rule by which it determines what is right and proper according to its own understanding, but its action must be based upon the unreasonableness of existing rates, and the rate which it prescribes must be reasonable in and of itself and in relation to other rates and must conform in other respects to the requirements of the law. Under the operation of the principle that a legislative enactment is sufficient, which prescribes a general rule gov Where timber, sold with the agreement that it was to be stacked for six months and delivered at a certain place, was burned before the end of the six months, there could be no recovery of the purchase price, if the contract was executory, and the title had not passed to defendant. This action is to recover the purchase price of certain lumber, which the plaintiffs, M. J. Hendricks and wife, Emma G. Hendricks, alleged they sold to the defendant. On the 23rd day of December, 1905, the plaintiffs and defendant entered into the following contract: "North Carolina, Davie County. This contract made and entered into this day by and between M. J. Hendricks, of Davie county, N. C., the Mocksville Furniture Company, witnesseth: That the said M. J. Hendricks has bargained, sold to the said Mocksville Furniture Company, its successors, and does hereby bargain, sell and convey to said Mocksville Furniture Company and its successors all the oak and poplar timber-except the young trees and some for board purposes -suitable for furniture purposes on the following lands situate in Davie county, N. C., and bounded as follows, to wit: On the east by the lands of Mrs. B. C. Rich and Mrs. M. E. Tatum and Mocksville Furniture Comon the north by the ands of Mockspany; ville Furniture Company and Sam Eaton; on the west by the lands of Miss Mattie Eaton; on the south by the lands of J. W. Etchison and A. J. Hutchins and L. A. Furches, containing 200 acres more or less. The price to delivery at Mocksville-material stipulations, which the plaintiffs agreed to perform. This is upon the familiar principle that one who seeks to recover upon a contract with interdependent conditions must show performance on his part. Lawing v. Rintles, 97 N. C. 350, 2 S. E. 252. be paid for said lumber by said Mocksville been stacked six months, and there was no Furniture Company is $15.00 per thousand feet, less the mill culls, delivered at their factory in Mocksville, N. C., after the said lumber has been sawed and stacked by the said M. J. Hendricks for six months, and he agrees to cut and saw the whole within one year from this date. The Mocksville Furniture Company agrees to advance to said M. J. Hendricks $7.50 per thousand feet as soon as said lumber is stacked on sticks and the balance to be paid by said Mocksville Furni ture Company when the same is delivered at Mocksville as aforesaid. Received of Mocksville Furniture Company $100.00 advanced on above lumber, receipt of which is hereby acknowledged. Witness my hand and seal this the 23d day of December, 1905. M. J. Hendricks. (Seal.) Emma G. Hendricks. Witness: J. Minor." About the last of August or the 1st of September, 1907, acting under this contract, the plaintiffs had at their mill, about eight miles from Mocksville, 30,000 feet of lumber in stacks, but which had been stacked less than six months, and 2,000 feet of lumber, which had been recently sawed, and was not stacked, all of which was about that time destroyed by fire, without negligence on the part of plaintiffs or defendant. The defendant advanced to the plaintiffs $7.50 per thousand on the 30,000 feet, which had been stacked, and nothing on the 2,000 feet. Thereafter the plaintiffs delivered to the defendant 30,000 feet of lumber under said contract, upon which had been advanced $7.50 per thousand, and demanded payment of the remainder of the contract price, which the defendant refused, claiming that the plaintiffs owed it the amount it had advanced on the lumber which was burned. His honor held that under said contract the title to the lumber was in the defendant, and rendered judgment in favor of the plaintiffs for $480, being $7.50 per thousand on the 30,000 feet and $15 per thousand on the 2,000 feet, both of which lots were ourned, and $7.50 per thousand on the 30,000 feet delivered, and for $32.36, which the defendant admitted it owed on other matters. The defendant excepted and appealed. ALLEN, J. (after stating the facts as above). The determination of the controversy between the plaintiffs and the defandant depends upon the interpretation of, their contract. (1) If it is executory, and under its provisions the title to the timber was not in the defendant, there could be no liability, because it is admitted that the timber had not (2) As was said in Hornthal v. Howcutt, 254 N. C. 229, 70 S. E. 172: "The object of courts in the construction of a paper writing is to discover what the parties to it intended, and whether apt language has been used to give effect to that intention;" and "the intent as embraced in the entire instrument is the end to be attained, and each and every part of the contract must be given effect, if this can be done by any fair and reasonable interpretation." Davis v. Frazier, 150 N. C. 451, 64 S. E. 200. * * ** In this last case, Justice Hoke quotes with approval Lawson on Contracts, secs. 388 and 389, as follows: "The third main rule is that that construction will be given which will best effectuate the intention of the parties, to be collected from the whole of the agreement; and, to ascertain the intention, regard must be had to the nature of the instrument, the condition of the parties executing it, and the objects which they had in view. Courts will examine the whole of the contract, and so construe each part with the others that all of them may, if possible, have some effect, for it is to be presumed that each part was inserted for a purpose, and has its office to perform. So, where two clauses are inconsistent, they should be construed so as to give effect to the intention of the parties, as gathered from the whole instrument. So every word will, if possible, be made to operate, if by law it may, according to the intention of the parties." If we apply this rule of construction, and look at the entire instrument, what did the parties intend? The plaintiffs argue with much force that there is nothing ambiguous in the language used, and that says in express terms that the timber is conveyed to the defendant. This conclusion is reached, however, by looking at only a part of the contract, and that part, standing alone, has no consideration to support it. If the parties intended the title to the timber to pass upon the execution of the contract, it would be reasonable to expect the conveyance of the timber to be upon consideration of so many dollars, or for a certain amount zer thousand feet. It no. where appears that the defendant agreed to buy or pay for timber. It wanted lumber, and agreed to pay for it when delivered at Mocksville. The amount paid in advance is not spoken of as a payment, but an advancement. Another circumstance which tends to show that it was not the intention of the partties that the paper writing should operate to pass the title to the timber at the time it was signed is that a part of the land on which the timber stood belonged to Mrs. Hendricks, and there is no seal to her sig nature, and no probate and private examination as to her. Mr. Hendricks said his examination: "The description of the land in the contract covers about 150 acres of the lands of myself and wife." Also there is no provision allowing the defendant to enter and cut, upon failure of the plaintiffs to do so. on As it appears to us, the situation of the parties was this: The plaintiffs had timber, which they wished to sell, and the defen dant needed lumber. The plaintiffs agreed to cut and saw their timber into lumber and deliver it at Mocksville for $15 per thousand feet; but, as the defendant could not use green lumber, it was stipulated that the lumber should be stacked six months before delivery, and that the defendant should advance $7.50 per thousand feet to aid in pay ment of operating expenses. This is, in our opinion, a proper interpretation of the contract, and, if so, it is executory, and the title to the lumber was not in the defendant at the time of the fire. A contract, in many respects similar to the one now before us, was considered at this term, in Wiley v. Lumber Co., 72 S. E. 305. In that case plaintiff and another sold to the defendant "all the pine and gum timber of every description above the size of 12 inches at the base on a certain tract of land"; the written contract of conveyance and sale providing that defendant should have full time to have said timber cut and removed from said land, and extending in any event for such purpose to the full term of three years. The instrument also conveyed to the defendant (the grantee) the privilege to have a right of way over the grantors' lands, and to erect thereon necessary tramroads, etc., for the purpose of carrying out the timber; and there was further provision that the grantors were to cut and deliver said timber at the logbed of defendant's tramroad, and to be paid therefor at the rate of $4 per thousand, etc.; and Justice Hoke, speaking for the court, says: "Defendant is right in the position that when one has bought and paid for a lot of growing timber, and same has been conveyed him, with the privilege of removal within a given time, the contract as to the removal is so far unilateral that the purchaser is not obligated to cut and remove the timber. If he fails to do so within the time, his right or estate therein is forfeited, and inures, as a rule, to the owner of he land. We have so held in two cases at the last term. Hornthal v. Howcutt, 154 N. C. 228, 70 S. E. 171; Bateman v. Lumber Co., 154 N. C. 248, 70 S. E. 474. But the contract in question here is not of that character. Applying to it the accepted rule of construction 'that the intent of the parties as embodied in the entire instrument is the end to be attained, and that each and every part must be given effect, if this can be done by any fair and reasonable interpretation' (Davis v. Frazier, 150 N. C. 451 [64 S. E. 200]). A perusal of this entire instrument will disclose that, while it begins by reciting $450 as the consideration, the controlling stipulation of the contract provides that the parties plaintiff were to cut and deliver 'said timber' at the logbed, and the parties defendant were to pay for the same the sum of $4 per thousand feet'; and it is also expressly provided that the $450 first referred to as the consideration was only an advancement on the contract price, and to be accounted for as the timber was delivered." There was error in the ruling of the court, and a new trial is ordered. New trial. NOTE-Delivery in Executory Contract of Sale Postponed for Benefit of Buyer-We do not find any cases precisely upon this point in the principal case overlooked, as we think. After giving our view as to materiality of the point, we cite some cases, which, by analogy seem to us of some bearing. The opinion in the principal case appears to us to proceed upon a wrong theory. It considers whether or not "it was the intention of the parties that the paper writing should operate to pass the title to the timber at the time it was signed." or with delivery at Mocksville. The real question, it seems to us, is whether or not title passed with the stacking of the timber, there to remain for six months, as said provision in reference to stacking and there remaining for six months was for the timber to become seasoned. Therefore for the timber to thus remain was a provision purely in the interest of the buyer and against the interest of the seller. In other words, it would not seem that after all arrangements had been made for the timber to become seasoned and while it was in process of becoming seasoned. the increase in value ensuring to the benefit of the buyer, that a creditor of the seller could deprive the buyer of this increase he had stipulated |