Louisville & Nashville Railroad v. Commonwealth

46 S.W. 707, 104 Ky. 226, 20 Ky. L. Rptr. 1380, 1898 Ky. LEXIS 151

• Court: Court of Appeals of Kentucky
• Decided: June 23, 1898
• Status: Published

Opinions

CHIEF JUSTICE LEWIS

delivered the opixiox oe the coubt.

Appellant was in the Marion Circuit Court, upon recommendation of the State Railroad Commission, indicted for the offense of charging greater compensation for transporting property for a shorter than for a longer distance, the particular circumstances being thus stated:, “The defendant, :f * * operating a line of railroad in this State extending from Pittsburgh through said county of Marion and city of Lebanon, on September 8,, 1894, * * * did transport a car load of coal from Pittsburgh to Lebanon on said line for J. M. Shreve, and unlawfully charged and received from him as compensation therefor $40.30, being at the rate of $1.55 per ton,, when for transportation of a similar car load of coal under similar circumstances and conditions for a longer distance-over the same line of road, namely, from Pittsburgh to Louisville and to Elizabethtown, in the same direction, the distance from Pittsburgh to Lebanon being shorter,, and included within the longer from Pittsburgh to Louisville and to Elizabethtown, said defendant at said time did charge and receive less compensation than $1.55 per ton from various persons at Louisville and Elizabeth-town; defendant at said time not having been authorized by the railroad commission of this Commonwealth to-charge less for a longer than for a shorter distance for transportation of coal,” etc. As determination of the question of sufficiency of the indictment, also of other legal questions that arose during trial of this ease in the lower court, depend upon the construction to be given section 218 of tlie Constitution and section 820, Ky. Stat., they are here copied entire:

“Sec. 218. 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 may in special cases, after investigation by the Commission, 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 operations of this section.”

“Sec. 820. 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 himdred nor more than five hundred dollars, to be recovered by indictment in the Franklin circuit court, or the circuit court 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 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, the railroad or carrier shall not be prosecuted or fined on account of the complaint made. If the Commission, after investigation, fails to exonerate the railroad or carrier from the operation of the provisions of this section, an order in waiting 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 company or carrier may be indicted for the offense; and the Commission shall use proper efforts to see that such company or carrier is indicted and prosecuted.”

It is made ground of demurrer that section 820, under which the indictment was found, is inconsistent with section 218, and therefore, invalid, because there is omitted the proviso contained in the latter. But, as that proviso is self-executing, and gives to the carrier immediate right to make the application therein mentioned, and to the Commission full power to act upon it when made, iteration of it in the statute was needless. Certainly, section 820 does not at all interfere with the exercise of either the constitutional right of the carrier or constitutional power of the Commission. On the contrary, it contains the additional provision that, even without previous application by the carrier, the Commission may, after investigation, made upon complaint by another of violation of that section, exonerate such carrier from operation of its provisions.

Another ground of demurrer is that the indictment embraces two distinct offenses, “one the charging of a less rate to Louisville than to Lebanon, and the other of charging a less rate to Elizabethtown than to Lebanon.” A statement in the indictment that greater compensation in the aggregate was charged and received from J. M. Shreve for transportation of coal from Pittsburgh to Lebanon than was charged and received from various persons for transporting coal from Pittsburgh to Louisville and Elizabethtown would have been more apt; but the statement as made does not vitiate the indictment, or involve accusation of more than one offense. Neither section 218 nor section S20 was intended to fix or limit the general raje of compensation for transporting persons and property; but specially to inhibit-greater or as great compensation in the aggregate for shorter as for longer distances. So, whatever may have been the amount actually charged and received for transportation of coal from Pittsburgh to Louisville and Elizabethtown, the alleged offense was not, or could not be, completed until there was charged and received from J. M. Shreve greater compensation for transporting coal from Pittsburgh to Lebanon, which consisted of a single act, and involved a single offense. The Criminal Code requires an indictment to describe and identify an offense in terms so direct and certain as to apprise the defendant of the accusation on which he is .to be tried, and to make the verdict and judgment rendered available as pleaded in bar of a subsequent prosecution for the same offense. It was, therefore, necessary in the present indictment — as was done — to designate the person to the wrong and injury of whom the alleged offense was committed, and to state that the recited amount of compensation charged and received from him, on or about a specified date, for transportation of coal the described shorter distance was greater in the aggregate than the amount then being charged and received from various or divers persons for transportation of same kind and quantity of coal the described longer distance. But it was not necessary to state the precise amount charged and received for such longer distance, because the fact it was exceeded by or was less than the specified amount charged and received in the particular instance for the shorter distance had been already sufficiently alleged. Nor was it necessary to designate any particular person or persons, probably numerous, than whom Shreve had been charged and required to pay greater compensation; for section 21S was intended to prevent discrimination rather between localities than between persons. So, in order to convict of an offense like the present, it suffices to state in the indictment that the specified amount charged or received for the shorter distance was greater than that charged or received from persons generally or usually for the longer distance, and to support the allegation by the carrier’s published schedule of rates or other competent evidence of the fact.

There was also a motion made in the lower court to set aside the indictment because it does not contain a ■statement that the Railroad Commission, after investigation of the complaint that section 820 had been violated by appellant, made the required order refusing to exonerate it from operation of its provisions. Assuming, for the present, that such investigation and order following it must, in every case, precede an indictment under that, section, we think the allegation made on the subject sufficient, and consequently the motion was properly overruled.

The facts stated in the indictment as constituting the ■offense charged were on the trial proved or admitted. But all testimony offered for the purpose of showing existence of competition at Louisville and Elizabethtown between carriers of coal or other facts affording reason or excuse, irrespective of cost of service, for charging or receiving greater compensation in the aggregate for the shorter than longer distance over appellant’s road was excluded; and all instructions to the jury hypothecated upon such facts were refused. The following instruction, showing the construction put upon section 218 by the lower court, was given: “That in determining whether two or more car loads of coal are transported under ■substantially similar circumstances and conditions when one is transported for a longer distance over the same line of road than for a shorter distance in the same direction, the shorter distance being included ■within the longer distance, they (the jury) should consider such circumstances and conditions as relate to the nature and character of the service by the defendant in the actual handling and movement of the coal transported.” Section 218, as will be observed, does not prohibit less proportional compensation being charged or received for the longer than shorter distance, but makes it an offense to charge or receive, under substantially similar circumstances and conditions, greater compensation in the aggregate for the shorter than for the longer distance. It is proper here to consider the following part of that section: “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 shorter as for a longer distance.” That particular provision, we think, was not intended to neutralize, nor could it very materially affect, what precedes it; for the difference between greater or as great compensation charged or received for transportation would ordinarily be too minute for calculation. The main inquiry in this case is whether the words “substantially similar circumstances and conditions” were intended to relate to the actual cost of transportation, estimated with reference to necessary outlays and expenditures in carrying passengers and loading, moving, and unloading freight trains, orto competition at particular places in the business of transportation, or other conditions affecting policy or convenience of the carrier only. If attention be given alone to the grammatical construction of section 218, the words in question might possibly be made apply in either or all the conditions mentioned. But attending to the sense of that section, which in character is both remedial and prohibitory, or restraining, and manifestly intended to conserve mutuality of rights and duties between parties to the contract of carrying, and prevent wrong by one to the other, the natural conclusion would be the words were designed to relate exclusively to the cost of service, for with that is the general public as' well as the carrier concerned. And that legislative power exists to so regulate conduct of the business of a railroad corporation, including charges for transportation, as that those dealing with it be not wronged or oppressed, is unquestionable; for the chartered franchise and privileges of such corporation are always, and can be granted only, in consideration of public service to be rendered; and, of course, upon implied reservation of legislative power, to inhibit at any time unjust discrimination between persons and localities. But as the section seems to be not so plain to counsel as to preclude discussion, we will look to the reason for its adoption — always a sure guide to the meaning of lawmakers; As there existed in neither the former Constitution nor statutes enacted under it any provision of the character, scope, or purpose of section 218, it was obviously adopted to prevent continuance of what was deemed a wrong hitherto committed with impunity by reason of a defect of the law. Therefore, the nature of that wrong being ascertained, as may be readily done by recurring to facts of common occurrence, and too widely known to escape judicial notice, that interpretation should be given which' will “most surely advance the remedy and suppress the mischief.” For many years prior to the adoption of the present Constitution there had been general and unavailing complaint of discrimination by railroad companies of this State, respecting compensation charged and received, in favor of localities where existed, competition in the business of transportation, and of comparatively excessive compensation being exacted at localities where, because there was not such competition, shippers were at the mercy of the carriers. But it was argued substantially there, as here and now, that competition made such difference of circumstances and conditions as justified the discrimination complained of. The Legislature did not attempt to give relief. The court, in absence of an express statute on the subject, and as long as the amount of compensation charged or received was within the charter limit, could not intervene to prevent a railroad company adopting, as matter of assumed business policy, rates to meet competition. There was no complaint of discrimination between places on the same line of railroad where there was not competition. And, if there had been, the court was, upon common-law principles applicable to common carriers, empowered to prevent it, because such discrimination would have been wanton, and without excuse of business policy or necessity. It is thus made manifest the object of section 218 was to remedy a defect of the law by thereafter- disallowing competition, or other considerations affecting the carrier only, not the general public, as excuse for charging or receiving greater- compensation in the aggregate for transporting persons or property in this State the shorter than longer distance. And it is based upon two propositions: First. That the actual cost of transportation is not generally greater for the shorter than longer distance; therefore to charge and receive greater compensation in the aggregate for the former than the latter is unfair and oppressive. Second. That it is contrary to usual business methods, and not to be assumed, that a railroad company would, even under- stress of competition, reduce rates of compensation for transportation to and from competitive points, so low as not to leave a reasonable margin of profit; therefore an excess of aggregate compensation for transportation to and from non-competitive points is generally an unjust .and inexcusable extortion. So, if competition be held to constitute, in the meaning of section 21.8, the real difference of “circumstances and conditions,” the section, though deemed of such urgent importance as to be made part of the organic law, would be scarcely effectual for any purpose whatever; for there could not be an approach to similarity, but necessarily a complete dissimilarity, of circumstances and conditions of the transportation of persons and property the longer distance, nearly always to and from a place where there is competition, and the shorter distance nearly always to and from a place where there is not competition. Consequently, discrimination in aggregate compensation between such localities could still be made at will of the carrier, and without legal restraint.

It is further contended that a railroad company should be permitted to vary rates of compensation regardless of cost of service, and even to the extent of arbitrary, discrimination between localities, in order to develop resources of the State, and at the same time increase its own business. Due estimate should be put upon advantages to society that have resulted from the construction and will continue to result from the extension of railroads; and due regard should be had to the rights and interests of carriers as well as of those who patronize them. But such considerations do not justify a wrong interpretation, and consequent defeat, of the main purpose of section 218. After all, the best guaranty of success by the company and benefit to the general public from the oper-, ation of railroads is to abide by the law as it is, and deal fairly, justly, and impartially with persons and Iocalities. It is true that for well-known reasons there can not be exact similarity of circumstances and conditions1 as respects proportional cost of transportation the longer and shorter distance. But there is ordinarily a substantial similarity as respects the actual cost. Hence section 218 prohibits, not greater proportional, but greater, compensation in the aggregate being charged or received for the shorter than longer distance. However, the framers of the Constitution, aware of the impracticability •of fixing unchangeably relative amounts of compensation to be charged and received, or rules applicable in every case to the complicated and varying business of railroads, and of the injustice that might sometimes result from doing so, invested the Railroad Commission with power to authorize, in special cases, a railroad company to charge less for the longer than shorter distance, and to prescribe from time to time the extent to which such company may be relieved from operation of section 218. And section 820, enacted in harmony with section 218, provides that, after an order of the Commission exonérating a railroad company from operation of its provisions as to any special violation complained of, the company shall not be prosecuted on account of it. With such order the court can not interfere. But an order of the commission refusing to exonerate makes the company liable to prosecution; and the court thus acquiring jurisdiction, must, of course, determine the proper construction of the two sections, for upon that, the facts being found, depends guilt or innocence in each case. As already indicated, we think the lower court did not err in giving the instruction referred to, nor in excluding all evidence having no bearing upon the case of transportation.

Counsel have cited Texas Pacific R. Co. v. Interstate Commerce Commission, 162 U. S., 197 [16 Sup. Ct., 666], and Interstate Commerce Commission v. Alabama Midland R. Co. (recently decided by the Supreme Court of the United States) [18 Sup. Ct., 45], in which, construing section 4 of the Interstate Commerce Act, substantially like section 218, it was held that, when difference of rates between two points of shipment is the ground of complaint, competition is a leading element to be considered; though in each case the court was divided. The Interstates Commerce Act was intended to operate, not within limits of a State merely, but between and through States. And, whatever construction that high tribunal may put upon section 4 of that act, we, in exercise of the province belonging to the Supreme Court of each State to construe its own laws, have endeavored to so construe section 218 as not to kill it; and, to strengthen the belief we have not misconstrued it, part of the dissenting opinion of Justice Harlan in the last-named case is here quoted: “Besides, the acts of Congress are now so construed as to place communities on the lines of interstate commerce at the mercy of competing railroad companies engaged in such commerce. The judgment in this case, if I do not misapprehend its scope and effect, proceeds upon the ground that railroad companies, when competitors for interstate business at certain points, may, in order to secure traffic for and at those points, establish rates that will enable them to accomplish that result, although such rates may discriminate against intermediate points. Under such an interpretation of the statutes in question, they may well be regarded as recognizing the authority of competing railroad companies' engaged in interstate commerce, when their interests will be subserved thereby, to build up favored centers of population at the expense of the business of the country at large. I can not believe that Congress intended any such result, nor do I think that its enactments, properly interpreted, would lead to such a result.” The judgment is affirmed.