Louisville & N. R. R. v. Commonwealth

71 S.W. 910, 114 Ky. 787, 1903 Ky. LEXIS 40

• Court: Court of Appeals of Kentucky
• Decided: February 11, 1903
• Status: Published

Opinions

Opinion op the ooubt by

JUDGE BARKER

— Reversing.

The appellant was- indicted by the grand jury of the Marion circuit court, at its January term, 1899, for a violation of section 8201 of the Kentucky Statutes, commonly known as the “Long and Short Haul Statute.’’ It will not be necessary in this case to examine the indictment, further than to say that its allegations an1 sufficient, and that it contains,, among other things, a statement that it was found upon the recommendation of the railroad, commission. The case came on for trial in the Marion circuit court in 1902, and the only evidence introduced by the Commonwealth in support of the allegation that the indictment was found upon the recommendation of rhe railroad commission was a report of the commission to the Marion circuit court and grand jury, made in 1895, charging the appellant with violations of section 820 of the Kentucky Statutes, and recommending its ind:ctment in some fifteen specially named cases, none of which was the case at bar. The appellant, at the dose of the Commonwealth’s testimony, moved the court for a peremptory instruction to the jury to find it not guilty. This motion was overruled. The court then gave written instructions to the jury, and, the case having been submitted, a verdict of guilty was returned, and a penalty of $.‘500 imposed upon appellant. The motion for a new trial having been overruled, the case is here on appeal.

The conclusion which we have reached regarding the law of this case makes it unnecessary to examine or discuss any other questions than such as are involved in the proposition as to whether or not the court erred in overruling appellant’s motion for a peremptory instruction.

In order to obtain the meaning and intent of section 820 of the Kentucky Statutes, it is necessary to take a brief survey of the history of this enactment.

There had been much complaint, of long standing, throughout the Commonwealth, that the railroads were habitually engaged in the business of discriminating between localities in the matter of freight rates; that cities and communities were being pushed forward in the march of material progress by friendly discrimination on the part of the railroads, at the expense of other cities and communities, which were being retarded and repressed by, unfriendly discriminating rates. Whether or not this was true, is immaterial. It was believed to be true, and this belief on the part of the people oE the State was crystallized in section 218 of the Constitution, and in the subsequent enactment of section 820, providing a remedial procedure to carry into effect the provisions of the Constitution on this subject. But while there was ardent desire on the part of the people and their representatives to repress the offense of unjust discrimination by railroad corporations, there was also a wholesome fear of unjustly and wantonly injuring these great and necessary agencies of the material prosperity of the Commonwealth by hasty and ill-informed zea.1 in the matter of applying the remedy to the supposed wrong. It was recognized that the subject of transportation in railroad business involves one of the most profound and abstruse problems with which railroad, managers have to deal. It was seen that, with this problem, the average juryman, whether grand or petit, would be helpless and impotent; that he would neither have the trained power nor the necessary data to enable him to understand the difficult subject involved in the expression “substantially similar circumstances and conditions;” and that a jury organized in a community smarting under the exasperation of a supposed invidious discrimination of rates against it would be unable to take any but a narrow and sectional view of the acts from the effects of which they were suffering. Therefore it was deemed wise to take the whole subject out of the danger of sectional bias, and place it in the hands of a commission representing not one community, but the whole State — a commission which should be elected, in the aggregate, by all of the people of the Commonwealth, and which for this reason would represent the interest of the whole State, and not the interest of any single city or locality; a commission which would take into consideration the needs of the manufacturer, the miner, the lumberman and the railroads, as well as the interest of the people at large, and which would lift the subject out of the realm of sectionalism, and place it in the realm of commercial statesmanship. In order that the commission should do this, they were to be elected for a term of years, that they might have ample time to study all of the questions involved in their duty. They were given a salary adequate to warrant the devotion of their whole time to the questions of railroad management, and it was made the duty of every railroad corporation in the State to make an annual report to them, embracing every fact concerning the affairs of the corporation which were presumed by the framers of the law to be necessary to a proper understanding of the whole problem of regulating the railroad corporations of the Commonwealth; and, for fear that the statutory report required had overlooked some data necessary or useful to this end, it was provided that the corporations should answer any other questions propounded to them by the commissioners. The commissioners were invested with the power to summon any person or persons they pleased, and to examine them under oath touching any subject connected with the affairs of the operation of a railroad in the State. It is impossible to read the whole law, the substance of which is here sketched, without being impressed with the fact that the commissioners were to be prepared to grapple with problems which no grand or petit jury of the Commonwealth could successfully compass, and that the duty of making the investigation which involved the exercise of all this knowledge, so laboriously acquired, lies at the very root of, and is precedent to, an indictment by a grand jury for an offense which could only be properly investigated by an intelligent and well-informed commission. It would, indeed, be a vain and useless thing to establish a railroad commission, to be elected by the people of the whole State; and put into their hands all the data concerning railroads which the owners and managers thereof possessed, if the problems to be solved were such as an average jury' would be competent to grasp and understand. If there was nothing in the problem but the respective distances of the localities, and the respective rates charged thereto, the proposition would, instead of being profound and abstruse, be reduced to the simplicity of the equation that two plus two equals four. But there was recognized to be far more in the problem than the distances of the two localities from the point of shipment, and the respective rates imposed. The question of competition was to be considered, and was recognized as being involved in the problem of “substantially similar circumstances and conditions;” and this being a subject with which the commission could, and the jury could not, deal, it was required, as a condition precedent to an indictment in any particular case, that the commission should first decide' whether or not the circumstances and conditions were substantially similar. If, after examination, this question was decided adversely to the railroad, then the remaining facts necessary to be established to constitute its guilt were peculiarly within the province of the jury. If this question was decided in favor of the railroad, then there was nothing for the jury to do in the premises.

In the case of the Illinois Central Railroad Company v. The Commonwealth, 23 R., 1159, 64 S. W., 975, it was held by this court that an investigation by the railroad commission was a condition precedent to an indictment by a grand jury for a violation of the provisions of section 820 of the Kentucky Statutes. In the case cited the court said: “In the construction of statutes, the cardinal aim of the court is to arrive at the intention of the Legislature. The court will presume that the Legislature meant something by all the provisions of the statute, and will endeavor to give them all a fair effect. If the Legislature had intended indictments to be found for each offense, regardless of action by the railroad commission, we see no reason why the section might not have stopped with the first sentence, defining the offense and providing for its punishment; for by the next section (Kentucky Statutes, section 821) it is made the duty of the commission ‘to see that the laws relating to all railroads, except street, are faithfully executed,’ and under this provision it would be the duty of the commission to see to violations of the preceding section. Not only so, but it provided in section 820 that, if the commission deems it proper to exonerate a carrier from the operation of its provisions, an order to that effect shall be made, and after such order the carrier shall not be prosecuted for that matter. To indict the carrier in the first place without action by the railroad commission would be to deprive it of all benefit of this provision. If the commission had only power to pass on the same facts as the grand jury, it might, perhaps, be maintained that the Legislature intended to provide a cumulative remedy, and that a preliminary hearing before the commission was not essential. But such is not the fact.” The court, then, after discussing various decisions of this court on kindred propositions, goes on to say: “It will be observed that the constitutional convention did not adopt a hard and fast rule, making the charge of more for the short than for the long haul unlawful, but expressly empowered the commission to authorize the railroad to charge less for longer than for shorter distances, and to prescribe from time to time the extent to which the carrier might be relieved from the operation of the section. There were many industries in the State whose interest required this. More than one coal famine had occurred. The only security against a recurrence of this trouble was our domestic coal, but this could not be available unless given lower rates, so that it could compete in the market with the coal shipped by water If it could not thus compete, it could not be relied on as a supply in an emergency. The low rate in this case was given on coal shipped to Louisville, because it there came in competition with coal brought down the Ohio river. The railroad commission was the only tribunal authorized to relieve appellant from the operation of the section. No such power was vested in the courts. The question of competition could not be examined there, nor could it be shown that a proper case existed for exoneration from the section. The Legislature therefore provided for the preliminary] hearing before the railroad commission, not as a cumulative remedy, but that it might determine whether the carrier should be exonerated or not; and therefore it was provided that, if the commission relieved the carrier from the operation of the “section, no prosecution should be had on account of the matter complained of. It also further provided that, if the commission failed to exonerate the carrier, it should make an order in writing to that effect, and 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 jurisdicton, in order that the railroad company or carrier may be indicted for the offense.' The requirement that the commission should furnish the grand jury a copy of its order, in order that the railroad company might be indicted for the offense, must be read in connection with the previous clause — that, if the company was- exonerated, the railroad company should not be prosecuted. The plain meaning of the two together is that the railroad company may be indicted for the offense if not exonerated, and may not be indicted if it is exonerated, and the copy of the order of the commission refusing to exonerate it is required to be furnished to the grand jury in order that the company may be indicted.” It is no answer to this reasoning to say that, four years before the indictment in question was found, the commission had decided other cases under section 820, involving freight rates! between the same localities, against the railroad, and recommended its indictment and punishment therefor.

The problem of competition in railroad traffic is an ever-varying one, and the decision of the commission at any given time could, of necessity, only determine the condition of the question at the time of its promulgation, and prior thereto. Of the future; unless they possessed the gift of prophecy, they could not determine. The same necessity for a thorough examination of. the circumstances and conditions of competition would exist at any subsequent time as at the original investigation, unless we are to suppose that there are never any changes in the status of railroad competition. On the contrary, common experience teaches, us that what would be a righteous decision on the question of competition of freights between localities at any given time might be iniquitously unjust at a subsequent time; and therefore it is impossible to suppose that the lawmaking power meant that the declaration of the commission' in refusing to exonerate appellant from the provisions of section 820 at any given time was to act as a formal declaration of war on it, under which letters of marque and reprisal were to be issued and enforced by the grand jury, along its line until such time as peace might be declared, by a new edict of the commission. -Such a conclusion would be crude and unscientific, and does violence to the plain letter of the statute.

Section S20 gives the remedy for violation of section 218 of the Constitution, and it comes within the familiar rule of construction that, when a statute gives a remedy, it is usually exclusive, or as said in The Illinois Central Railroad Company v. The Commonwealth, supra, “the Legislalature -provided, therefore, for the preliminary hearing before the railroad commission, not as a cumulative remedy, but that it might determine whether the carrier should be •exonerated or not.”

There is nothing in the principles enunciated in the cases of The Louisville & Nashville Railroad Company v. The Commonwealth, 104 Ky., 226 (20 R., 491) 46 S. W., 707, 47 S. W., 210, 598, 43 L. R. A., 541. The Louisville & Nashville Railroad Company v. The Commonwealth, 106 Ky., 633 (21 R., 232) 51 S. W., 164, 1012, or The Louisville & Nashville Railroad Company v. The Commonwealth (21 R., 232) 51 S. W., 167, inimical to the views herein expressed. In each of these cases a trial was had before the railroad commission, and a judgment refusing to exonerate the railroad rendered, as a prerequisite to the indictment by the grand jury. In each case the indictment was returned on the advice or suggestion of the commission. Bo far as these cases illustrate anything in the case at bar, they tend to bear out the necessity for an investigation by the commission as a condition precedent to an indictment in every case. They certainly do not militate against this view, as the slightest examination will show. The question of the necessity for an investigation by the commission as a prerequisite to an indictment never arose in this court until the I. C. R. R. v. The Commonwealth, supra. The principle announced in the case at bar is the principle of The I. C. R. R. v. Commonwealth carried to its natural and legitimate conclusion.

The guilt of the railroad in any given case does not depend on the commission, or on its rules and regulations, but on the question whether the' corporation has or has not violated the provisions of section 218 of the Constitution. The investigation of the commission only establishes the fact as to whether it has or has not violated said sec-lion. In reaching their conclusion as to whether the corporation is guilty or innocent, the commission examines into the question as to whether or not the conditions and; circumstances are substantially .similar. If so, the corporation is guilty; if not, it is innocent. As the guilt or innocence of the corporation depends on the existence or non-existence of facts, which are, or at least may be, ever-varying, it follows, as a legal and logical sequence, that, if the corporation is to have the benefit of these ever-varying conditions, before it is indicted, such investigations must be had in each and every case, as a prerequisite to an indictment.

We conclude, therefore, that the investigation of the railroad commission, and an adverse decision by it against the railroad, are necessary, in every case, before an indictment can be had under section 820 of the Kentucky Statutes; that no declaration of the commission on the subject of competition in freights can be projected into the future, but must act alone on the present and the past. This construction, we think, is in harmony with the act in question. We believe that it puts into the hands of a brave, intelligent and zealous commission ample power to repress the wrongs of the railroads sought to be remedied, and yet ■relieves these corporations from the wanton assaults of narrow sectionalism or of greedy cupidity. It gives opportunity for the development of the mines and the manufactories of the State, for the expansion of its commerce, and affords to every locality such protection against invidious discrimination as is consistent with the general uplift and prosperity of the State — an uplift and prosperity whose reflex benefit, it is believed, will more than repay the given locality for any sacrifice it makes in favor of the common good.

The court below should have sustained the motion of appellant for a peremptory instruction. Wherefore the ease is reversed for proceedings consistent with this opinion.