Louisville & N.R. Co. v. Com.

• Citation: 51 S.W. 164,106 Ky. 633
• Parties: LOUISVILLE & N. R. CO. v. COMMONWEALTH. [1]
• Decision Date: 20 May 1899
• Court: Court of Appeals of Kentucky

51 S.W. 164

106 Ky. 633

LOUISVILLE & N. R. CO. v. COMMONWEALTH. ^[1]

Court of Appeals of Kentucky.

May 20, 1899^[2]

Appeal from circuit court, Marion county.

"To be officially reported."

The Louisville & Nashville Railroad Company was convicted of the offense of charging more for a short than for a long haul and it appeals. Affirmed.

Wm Lindsay, H. W. Bruce, Walker D. Hines, Edward W. Hines, W. C McChord, W. J. Lisle, and John McChord, for appellant.

H. W Rives, W. S. Taylor, and M. H. Thatcher, for the Commonwealth.

HOBSON J.

Section 218 of the constitution is as follows: "It shall be unlawful for any person or corporation owning or operating a railroad in this state, or any common carrier, to charge or receive any greater compensation in the aggregate for the transportation of passengers or of property of like kind, under substantially similar circumstances and conditions, for a shorter than for a longer distance over the same line, in the same direction, the shorter being included within the longer distance; but this shall not be construed as authorizing any common carrier, or person, or corporation owning or operating a railroad in this state to receive as great compensation for a shorter as for a longer distance: provided, that upon application to the railroad commission such common carrier, or person or corporation owning or operating a railroad in this state, be authorized to charge less for longer than for shorter distances, for the transportation of passengers or property; and the commission may, from time to time, prescribe the extent to which such common carrier, or person, or corporation, owning or operating a railroad in this state may be relieved from the operation of this section." To carry the above into effect, the general assembly enacted the following statute: "If any person owning or operating a railroad in this state, or any common carrier, shall charge or receive any greater compensation in the aggregate for the transportation of passengers or property of like kind, under substantially similar circumstances and conditions, for a shorter than for a longer distance over the same line in the same direction, the shorter being included within the longer distance, such person shall, for each offense, be guilty of a misdemeanor, and fined not less than one hundred nor more than five hundred dollars, to be recovered by indictment in the Franklin circuit court, or the circuit of any county into or through which the railroad or common carrier, so violating, runs or carries on its business. Upon complaint made to the railroad commission that any railroad or common carrier has violated the provisions of this section, it shall be the duty of the commission to investigate the grounds of complaint, and, if, after such investigation, the commission deems it proper to exonerate the railroad or common carrier from the operation of the provisions of this section, an order to that effect shall be made by the commission, and a copy thereof delivered to the complainant and the railroad or common carrier, and the same shall be published as a part of the report of the commission; and after such order, the railroad or common carrier shall not be prosecuted or fined on account of the complaint made. If the commission, after investigation, fails to exonerate the railroad or common carrier from the operation of the provisions of this section, an order in writing to that effect shall be made by the commission, and a copy thereof delivered to the complainant and the railroad or common carrier, and the same shall be published as a part of the report of the commission; and after such order it shall be the duty of the commission to furnish a statement of the facts, together with a copy of its order, to the grand jury of any county, the circuit court of which has jurisdiction, in order that the railroad or common carrier may be indicted for the offense; and the commission shall use proper efforts to see that such company or common carrier is indicted and prosecuted." Ky. St. § 820. Appellant transported coal from Altamont to Louisville at $1 per ton, and to Elizabethtown at $1.30 per ton, while it charged $1.55 per ton from Altamont to Lebanon, an intermediate station on its line of road. Complaint being made to the railroad commission, it investigated the matter, and made an order in writing, declining to exonerate appellant from the operation of the provisions of the section above quoted; and thereafter, at the suggestion of the commission, appellant was indicted in the Marion circuit court, as provided in the statute. The case was tried, and, appellant having been adjudged guilty, it prosecutes this appeal to reverse the judgment imposing a fine upon it of $300.

Appellant justified the difference of the rate on the ground that at Louisville the coal hauled from Altamont came in competition with the coal brought down the Ohio river on boats, and that at Elizabethtown it came in competition with the Western Kentucky coal brought there by the Illinois Central Railroad. It insists that these rates could be made no higher on account of this competition, and that the rates to noncompetitive points like Lebanon were reasonable, and were unaffected by the reductions referred to which were necessary for the coal to be handled in those markets at all. The evidence offered by it to sustain this contention was excluded by the court below on the trial on the ground that competition is not one of the circumstances or...