Adams v. Central of Georgia Ry. Co.

McClellan, J. The report of the previous appeal of this cause appears in 189 Ala. 665, 66 South. 628. The action is for damages for the alleged wrongful ejection of the plaintiff, a passenger, after he had seasonably tendered to the conductor IB cents as and for the maximum of the lawfully demandable passenger fare between. Dunnavant and Sterretts, two stations on the appellee’s line in this state. The conductor demanded 15 cents as fare between those points. The plaintiff refused to pay more than 13 cents, the sum he tendered, and was ejected. The bill of exceptions recites: “The defendant offers in evidence the Central of Georgia Railway Local Passenger Tariff No. 57, between all stations from Birmingham, Ala., to. [435] Columbus, Ga., inclusive, together with certificate thereto in words and figures as follows: “The passenger tariff introduced was Central of Georgia Local Passenger Tariff No. 57, I. C. C. No. 663, which gives the passenger fare between the various stations on said railroad between Columbus, Ga., and Birmingham, Ala., and shows the fare from Dunnavant to Sterrett and from Sterrett to Dunnavant, to be 15 cents, and the distance to be 5.1 miles, which said tariff was accompanied by the following certificate, viz.: “ ‘Railroad Commission of the State of Alabama. “ ‘Montgomery, Ala., Jan. 23, 1913. “ T hereby certify that the Central of Georgia Railway Company’s Local Passenger Tariff No. 1, 1909, filed with the Railroad Commission of Alabama, shows the passenger fare from Dunna-vant, Alabama, to Sterretts’, Alabama, to be fifteen (.15) cents. And I further certify that the said passenger fare of fifteen (.15) cents was the effective fare between said points during the month of February, 1911, except where cash fares were paid to the conductor. “ ‘And I further certify that Supplement No. 2 to Central of Georgia Railway Company’s Local Passenger Tariff No. 57, 1. C. C. No. 633, filed, with the Railroad Commission of Alabama, shows conductor’s fare from Dunnavant, Alabama, to Sterretts’, Alabama, during the month of February, 1911, to be thirty (.30) cents. “ ‘ [Sighed] S. P. Kennedy, Secretary.’ ” (1) The plaintiff objected “to said certificate” on the following grounds, viz.: That it was irrelevant; illegal; immaterial. The plaintiff also objected to this statement in the certificate: “And I further certify that the said passenger fare of fifteen (.15) cents was the effective fare between said points during the month of February, 1911”- — on the same grounds above noted as directed to the certificate as a whole, and also on these additional grounds: (4) The same is a-conclusion; (5) it is undertaking to certify to what the law is in .reference to the rate between said points. No question is made against the authority or the competency of the secretary to make a proper certificate. If he was the appropriate custodian of the records of that department he was authorized to make a certificate. — Code, § 3983. This statute only contemplates the certification of transcripts of official documents or records in official custody. [436] (2) In the absence of valid authorization, an-official custodian is not competent to certify to anything not copied from the documents or records in his custody. Such a custodian cannot deduce from documents or records his conclusions of fact and give thereto by his certification any sanction or force as evidence. The general rule is that if facts, outside of the reproduced official record or document, are necessary to be proven, the ordinary methods to establish facts in the courts must be observed.—Peebles v. Tomlinson, 33 Ala. 336; Bonner v. Phillips, 77 Ala. 427; Jones on Ev. § 543; 2 Ency. of Ev. pp. 964-967. There are exceptions, not here important, to that rule; some of them being, of course, the result of positive law affecting the subject.—See Jones on Ev. § 544; 2 Ency. of Ev., pp. 963, 964; Walling v. Morgan Co., 126 Ala. 326, 28 South. 433. (3) If a certificate by an official custodian authorized to certify contains extraofficial, inadmissible assertions of fact or conclusion, that circumstance will not deprive the certificate of its appropriate effect in so far as the official was authorized to certify.—Johnson v. Hocker, 1 Dall. (Pa.) 406, 1 L. Ed. 197; Petrucio v. Gross (Tex. Civ. App.) 47 S. W. 43. (4) The entire certificate of the secretary of the Railroad Commission of Alabama was, in our opinion, inadmissible. The filing of schedules of rates, by common carriers, with the Railroad .Commission of Alabama under the statutes of forcé in 1911 (Code, §§ 5521, et seq.), presupposes, at least prima facie, that that department will note on the schedule .or in its records the fact and date of filing a schedule. Presumptively, either the rec ■ ords of the department or the schedule itself will disclose the fact and date of a filing of the schedule. If so, the properly certified copy will serve to show both the fact and date of the filing. Hence the statement in the secretary’s certificate that a certain schedule of rates was filed (no date is attempted to be given therein) was but a recital of his conclusion, it may be supposed, the document or records in his custody. It was not a subject to which he was authorized to certify. The other features of the certificate, including that to which separate objection was taken, were clearly without the secretary’s power or authority to authenticate. They were only deductions from some source; a conclusion only the court was empowered to consider and attain from sources of which a court may properly take cognizance. The certificate should have been excluded on the general grounds stated by the objection.—Sanders v. Davis, 153 Ala. 375, 44 South. 979. [437] (5) Without an efficiently certified copy of the schedule referred to in the bill of exceptions — even though the schedule was admitted in evidence without objection to it as distinguished from the certificate, and even though the conductor testified that it was the schedule sent him by the company and by which the fares were charged and collected — there was in the case no evidence that this was the duly filed and published schedule in force, at the time plaintiff was ejected. — Code, §§ 5521, et seq. (6) If the schedule described in the bill of exceptions was the duly filed and published schedule then in force, fixing 15 cents as the passenger fare between Dunnavant and Sterretts, the sound doctrine of Texas & Pacific Ry. Co. v. Abilene Oil Co., 204 U. S. 426, 27 Sup. Ct. 350, 51 L. Ed. 553, 9 Ann. Cas. 1075, is due to be applied to the case in hand; the considerations governing the conclusion there being present here. Where a rate of-carriage exacted or charged is that which has been duly fixed, and filed by the carrier for the service in accordance with the statutes (Code, §§ 5521, 5525, 5667, and sections 5527, 5531, as amended [Acts 1909, p. 210]), and it has not been changed by the state department vested with power thereto, a passenger cannot maintain an action at common law against the carrier on the ground that the rates so fixed and published are excessive and unreasonable (Texas & Pacific Ry. Co. v. Abilene Oil Co., supra). In order to maintain the uniformity in rates contemplated by the statutory system, the remedy is through the Commission to correct the exaction of excessive and unreasonable rates under duly filed and published schedules; not by an action at law for damages consequential from the exaction of the rates specified in a legally existing schedule. It necessarily results from the applicable doctrine announced by the Supreme Court in the decision cited that a plaintiff in an action at law for damages cannot invoke inquiry into the correctness or the existence of the basis or bases -'of rates specified in the duly filed and published schedule of rates; distance between stations being an essential basis for the ascertainment and promulgation of a passenger fare, between certain points, when, as is the case, the rate per mile or part of a mile is established. If a mistake in distance is innocently made, or if by fraudulent design the incorrect distance is- expressly recited in a duly filed, published and effective-schedule of rates or is made the basis for the calculation to ascertain the fare between two points at a given lawful rate per mile [438] or part of a mile, the inquiry can only be instituted before and .made by the commission. (7) Since the evidence before the trial court fell short of .affirmatively showing that the schedule of rates referred to in the quoted part of the bill of exceptions was the duly filed, published, and effective schedule of rates of passenger fares in force at the time this plaintiff was ejected because he tendered a less .sum for the service he desired than that specified in the schedule, the court was in error in giving the general affirmative charge for the defendant. The judgment is reversed, and the cause is remanded. Reversed and remanded. Anderson, C. J., and Somerville, Gardner, and Thomas, JJ., concur in the entire opinion. Sayre, J., concurs in the opinion except with respect to the ruling on the question of evidence considered and decided.