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

• Decision Date: 04 April 1896
• Citation: 99 Ky. 132,35 S.W. 129
• Parties: LOUISVILLE & N. R. CO. v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

35 S.W. 129

99 Ky. 132

LOUISVILLE & N. R. CO. v. COMMONWEALTH.

Court of Appeals of Kentucky.

April 4, 1896

Appeal from circuit court, Marion county.

"To be officially reported."

Wm Lindsay, J. W. Alcorn, E. W. Hines, Lisle & McChord, Walker D. Hines, and H. W. Bruce, for appellant.

W. J Hendrick, W. H. Sweeney, and W. H. Rives, for the Commonwealth.

HAZELRIGG J.

The indictment in this case charges that the appellant "did unlawfully charge, collect, and receive from A. Vancleave &amp Co., the sum of forty-one and 70/100 dollars, as toll or compensation for the transportation of car load of coal weighing 53,800 pounds, being at the rate of one and 55/100 dollars per ton, from Pittsburg, Ky. to Lebanon, in Marion county, over the line of said railroad, a distance of _____ miles, the said rate of one and 55/100 dollars per ton, for the said transportation of said coal, being more than a just and reasonable compensation therefor, contrary to the form of the statute," etc. A conviction followed, and from a judgment on the verdict of the jury for the sum of $500, the company has appealed. Its complaints are that the statute prohibiting extortion by railroad companies, and providing a penalty therefor, prescribes no standard as to what is just and reasonable for the guidance of the corporation, and altogether fails to define what it may and what it may not do; that it is therefore void for uncertainty; that, even if the statute is valid, the indictment states no facts showing the appellant guilty of the offense charged, but only the conclusion of the pleader that the rate charged was more than a just and reasonable compensation. It is also urged that the trial court erred in refusing to grant to appellant a change of venue upon the testimony heard, and in the admission of incompetent evidence; and it further insists that, on the facts of the case, the charge is reasonable and just within the meaning of the statute, and especially so as the charge is within the rate allowed by the company's charter.

The chief question to be considered is the one affecting the validity of the statute, the provisions of which are found in sections 816 and 819 of the Kentucky Statutes. The first-named section reads as follows: "If any railroad corporation shall charge, collect or receive more than a just and reasonable rate of toll or compensation for the transportation of passengers or freight in this state, or the use of any railroad car upon its track or upon any track it has control of, or has the right to use in this state, it shall be guilty of extortion." Section 819 fixes the penalty for the first offense at not less than $500 nor more than $1,000, and increases the penalty for subsequent infractions of the law. The circuit court of any county into or through which the road runs and the Franklin circuit court are given jurisdiction of the offense, the prosecution to be by indictment, or action in the name of the commonwealth, upon information filed by the board of railroad commissioners. That this statute leaves uncertain what shall be deemed a "just and reasonable rate of toll or compensation" cannot be denied; and that different juries might reach different conclusions, on the same testimony, as to whether or not an offense has been committed, must also be conceded. The criminality of the carrier's act, therefore, depends on the jury's view of the reasonableness of the rate charged. And this latter depends on many uncertain and complicated elements. That the corporation has fixed a rate which it considers will bring it only a fair return for its investment does not alter the nature of the act. Under this statute it is still a crime, though it cannot be known to be such until after an investigation by a jury, and then only in that particular case, as another jury may take a different view, and, holding the rate reasonable, find the same act not to constitute an offense. There is no standard whatever fixed by the statute, or attempted to be fixed, by which the carrier may regulate its conduct. And it seems clear to us to be utterly repugnant to our system of laws to punish a person for an act, the criminality of which depends, not on any standard erected by the law, which may be known in advance, but on one erected by a jury; and especially so as that standard must be as variable and uncertain as the views of different juries may suggest, and as to which nothing can be known until after the commission of the crime.

If the infliction of the penalties prescribed by this statute would not be the taking of property without due process of law, and in violation of both state and federal constitutions, we are not able to comprehend the force of our organic laws. In Louisville & N. R. Co. v. Railroad Commission of Tennessee (C. C.) 19 F. 693, a statute very similar to the one under consideration was thus disposed of by the learned judge (Baxter): "Penalties cannot be thus inflicted at the discretion of a jury. Before the property of a citizen, natural or corporate, can be thus confiscated, the crime for which the penalty is inflicted must be defined by the lawmaking power. The legislature cannot delegate this power to a jury. If it can declare it a criminal act for a railroad corporation to take more than a 'fair and just return' on its investments, it must, in order to the validity of the law, define with reasonable certainty what would constitute such 'fair and just return.' The act under review does not do this, but leaves it to the jury to supply the omission. No railroad company can possibly anticipate what view a jury may take of the matter, and hence cannot know, in advance of a verdict, whether its charges are lawful or unlawful. One jury may convict for a charge made on a basis of 4 per cent., while another might acquit an accused who had demanded and received at the rate of 6 per cent rendering the statute, in its practical working, as unequal and unjust in its operation as it is indefinite in its terms." The supreme court of the United States, in Railroad Commission Cases, 116 U.S. 336, S.Ct. 334, 348, 349, 388, 391, 1191, refers to this Tennessee case, and substantially approves it by distinguishing the case then before the court from the...