Opinion op toe court bt
JUD'GE HOB'S-ON
¡Reversing.
The grand jury of Mercer county returned an indictment on February 6, 1902, charging-1 that appellant witliin 12 months before the finding of the indictment, transported a barrel of gasoline for Henry E. Samuels from Louisville to Harrodsfeurg, Ky., for the price of 26 cents per 100 pounds- and contemporaneously therewith transported between the same points a barrel of gasoline of the -same class and kind of freight for Wallace Green for the price of 21 cents per 100 pounds; that this was done willfully and knowingly, with intent to discriminate in favor of Green and- against Samuels, in violation of section 215 of the Constitution of Kentucky; “All railway, transfer, belt lines, or railway bridge companies shall receive, load, unload, transport, haul, deliver, and handle freight of the same class for all persons, associations, or corporations, from and to the same points [910] and upon the same conditions, in the same manner and for the same charges, and for the same method of payment.” Section 217 of the Constitution, which fixes the penalty for a violation of section 215, is as follows: “Any person, association, or corporation, willfully or knowingly violating any of .the provisions of sections two hundred and thirteen, two hundred and fourteen, two hundred and fifteen, or two hundred and sixteen, shall, upon conviction by a court of competent jurisdiction, for the first offense be fined two thousand dollars; for the second offense, five thousand dollars, and for the third offense shall thereupon, ipso facto, forfeit its franchises, privileges or charter rights; and if such delinquent be a foreign corporation, it shall, ipso facto, forfeit its rights to do business in this state; and the Attorney General of the Commonwealth shall forthwith, upon notice of the violation of any of said provisions, institute proceedings! to enforce the provisions of the aforesaid, sections.” The proof on the trial showed that Samuels lived at Harrodsburg, a point on appellant’s line of railroad, but that Green lived at Perryville, which was 10 miles away from appellant’s road. Twenty-six cents per 100 pounds' were charged Samuels for the barrel of gasoline shipped to him, which was billed to him at Harrodsburg. The barrel of gasoline shipped to Green was billed to him at Perry-ville, and was shipped at the rate of 36 cents per 100 pounds from Louisville to Perryville. When the gasoline reached Harrodsburg, it was delivered to a man named Erwin, who ran a wagon daily from Harrodsburg through Perryville to Mitchellsburg, carrying the United States mail; also persons and property. He took the gasoline to Green, collecting the charges going to the railroad, which were 21 cents per 100 pounds, and paid the amount to the company. Green paid Erwin 50 cents for bringing the barrel over, which was 10 [911] cents less than was coming to Erwin on the basis of 15 cents per 100 pounds.
There was an árrangement between Green and Erwin that Erwin would haul gasoline over at 50 cents a barrel. This arrangement seems to have grown out of the fact that there is a station on the Louisville & Nashville Railroad four miles from Perryville, from which also goods were hauled to Perry-ville, and Erwin was underbidding to get the hauling on his route. The railroad had for a number of years a published: tariff on this class of goods by which the rate was fixed to Harrodsburg at 26 cents and to Perryville at 36 cents. When the rate was first made, about the-year 1889, a man named James was running the wagon line, and the rate of 15 cents for the wagon line was then agreed on between him and the the railroad company. After three years he sold out to sc man named Tatum, and subsequently Erwin c-ame in under Tatum; but the railroad company had no agreement with Erwin. It simply billed the goods to Perryville as before. Erwin received them at Harrodsburg and delivered them at Perryville. The railroad company did not know that Erwin was making any reduction on the 15 cents per 100 pounds allowed for his part of the haul. The goods were not delivered to the consignees at Harrodsburg, but were required to be earned over by the wagon lino and delivered at Perryville. The wagon line hauled for everybody that applied, and! also carried for a time the express.matter, each owner as he came in succeeding to all the rights and privileges of his predecessors. The proof leaves no doubt that the operator of the wagon line was a common carrier. Robertson v. Kennedy, 2 Dana 431, 26 Am. Dec. 426; Caye v. Pool (108 Ky. 124; 21 R. 1600) 55 S. W. 887, 49 L. R. A. 251; Chevallier v. Straham, 47 Am. Dec. 639.
If there had been a railroad operated by another company [912] running from Harrodsburg through Perryville to Mitchellsburg, and the barrel of gasoline had been taken by appellant to Harrodsburg, and by the other company to) Perryville, appellant receiving 21 cents per 100 pounds for carrying it, .and the other company 12y2 cents, it could not be maintained that this would have been a violation of section 215 of the Constitution ; for it is well settled that a through rate can be made' less than the sum of the local rates between the two points. .Were it otherwise, all through freight would have to be hauled at the local rates. Railroad Company v. Osborne, 52 Fed. 912, 3 C. C. A. 347; Tozer v. U. S. (C. C. ) 52 Fed. 918; Interstate Commerce Commission v. B. & O. R. R., 145 U. S. 276, 12 Sup. Ct. 844, 36 L. Ed. 699; Parsons v. Chicago, etc. R. R. Co., 167 U. S. 447, 17 Sup. Ct. 887, 42 L. Ed. 231.
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Opinion op toe court bt
JUD'GE HOB'S-ON
¡Reversing.
The grand jury of Mercer county returned an indictment on February 6, 1902, charging-1 that appellant witliin 12 months before the finding of the indictment, transported a barrel of gasoline for Henry E. Samuels from Louisville to Harrodsfeurg, Ky., for the price of 26 cents per 100 pounds- and contemporaneously therewith transported between the same points a barrel of gasoline of the -same class and kind of freight for Wallace Green for the price of 21 cents per 100 pounds; that this was done willfully and knowingly, with intent to discriminate in favor of Green and- against Samuels, in violation of section 215 of the Constitution of Kentucky; “All railway, transfer, belt lines, or railway bridge companies shall receive, load, unload, transport, haul, deliver, and handle freight of the same class for all persons, associations, or corporations, from and to the same points [910] and upon the same conditions, in the same manner and for the same charges, and for the same method of payment.” Section 217 of the Constitution, which fixes the penalty for a violation of section 215, is as follows: “Any person, association, or corporation, willfully or knowingly violating any of .the provisions of sections two hundred and thirteen, two hundred and fourteen, two hundred and fifteen, or two hundred and sixteen, shall, upon conviction by a court of competent jurisdiction, for the first offense be fined two thousand dollars; for the second offense, five thousand dollars, and for the third offense shall thereupon, ipso facto, forfeit its franchises, privileges or charter rights; and if such delinquent be a foreign corporation, it shall, ipso facto, forfeit its rights to do business in this state; and the Attorney General of the Commonwealth shall forthwith, upon notice of the violation of any of said provisions, institute proceedings! to enforce the provisions of the aforesaid, sections.” The proof on the trial showed that Samuels lived at Harrodsburg, a point on appellant’s line of railroad, but that Green lived at Perryville, which was 10 miles away from appellant’s road. Twenty-six cents per 100 pounds' were charged Samuels for the barrel of gasoline shipped to him, which was billed to him at Harrodsburg. The barrel of gasoline shipped to Green was billed to him at Perry-ville, and was shipped at the rate of 36 cents per 100 pounds from Louisville to Perryville. When the gasoline reached Harrodsburg, it was delivered to a man named Erwin, who ran a wagon daily from Harrodsburg through Perryville to Mitchellsburg, carrying the United States mail; also persons and property. He took the gasoline to Green, collecting the charges going to the railroad, which were 21 cents per 100 pounds, and paid the amount to the company. Green paid Erwin 50 cents for bringing the barrel over, which was 10 [911] cents less than was coming to Erwin on the basis of 15 cents per 100 pounds.
There was an árrangement between Green and Erwin that Erwin would haul gasoline over at 50 cents a barrel. This arrangement seems to have grown out of the fact that there is a station on the Louisville & Nashville Railroad four miles from Perryville, from which also goods were hauled to Perry-ville, and Erwin was underbidding to get the hauling on his route. The railroad had for a number of years a published: tariff on this class of goods by which the rate was fixed to Harrodsburg at 26 cents and to Perryville at 36 cents. When the rate was first made, about the-year 1889, a man named James was running the wagon line, and the rate of 15 cents for the wagon line was then agreed on between him and the the railroad company. After three years he sold out to sc man named Tatum, and subsequently Erwin c-ame in under Tatum; but the railroad company had no agreement with Erwin. It simply billed the goods to Perryville as before. Erwin received them at Harrodsburg and delivered them at Perryville. The railroad company did not know that Erwin was making any reduction on the 15 cents per 100 pounds allowed for his part of the haul. The goods were not delivered to the consignees at Harrodsburg, but were required to be earned over by the wagon lino and delivered at Perryville. The wagon line hauled for everybody that applied, and! also carried for a time the express.matter, each owner as he came in succeeding to all the rights and privileges of his predecessors. The proof leaves no doubt that the operator of the wagon line was a common carrier. Robertson v. Kennedy, 2 Dana 431, 26 Am. Dec. 426; Caye v. Pool (108 Ky. 124; 21 R. 1600) 55 S. W. 887, 49 L. R. A. 251; Chevallier v. Straham, 47 Am. Dec. 639.
If there had been a railroad operated by another company [912] running from Harrodsburg through Perryville to Mitchellsburg, and the barrel of gasoline had been taken by appellant to Harrodsburg, and by the other company to) Perryville, appellant receiving 21 cents per 100 pounds for carrying it, .and the other company 12y2 cents, it could not be maintained that this would have been a violation of section 215 of the Constitution ; for it is well settled that a through rate can be made' less than the sum of the local rates between the two points. .Were it otherwise, all through freight would have to be hauled at the local rates. Railroad Company v. Osborne, 52 Fed. 912, 3 C. C. A. 347; Tozer v. U. S. (C. C. ) 52 Fed. 918; Interstate Commerce Commission v. B. & O. R. R., 145 U. S. 276, 12 Sup. Ct. 844, 36 L. Ed. 699; Parsons v. Chicago, etc. R. R. Co., 167 U. S. 447, 17 Sup. Ct. 887, 42 L. Ed. 231.
The fact that the connecting carrier took the goods on a ¡vehicle pulled by horses and not by steam, is not relied on as changing the principle; but it is urged that Erwin had no contract with the railroad company, and that therefore, he took the goods simply as the agent of the consignee, Green. Without considering whether a contract should be implied from the fact that'he came in under James, who made the contract with the railroad company, we rest our judgment on the ground that appellant had received the goods consigned to Perryville, and had, by its bill of lading agreed for 36 cents per 100 pounds to transport them to Perryville. This was not a shipment to Harrodsburg. There was in such a shipment and the shipment to Samuels at Harrodsburg no discrimination between shippers of the same class of freight between the same points. Appellant had the right to charge less for part of the through haul than the local rate to that point. When-it received the goods and undertook: to carry them to Perry-ville, it was its duty to see that they got to Perryville. Its obligations under such a contract were different from those [913] under a contract to carry goods to Harrodsburg. It was a through shipment from Louisville to Perryville. Erwin came in under it, and whether there was any contract, ex-, press or implied, between it and Erwin, there was an express contract between it and the shipper that it would transport the goods from Louisville to Perryville. We are therefore of opinion that the facts shown establish no violation of the constitutional provision quoted. If there was anything in the evidence indicating an evasion of the constitutional provision by the billing of the goods to Perryville and tbe delivery of them at Harrodsburg to the consignee in order to discriminate between shippers, a different question would be presented. But tbe facts show perfect good faith, and also show that only in this way can appellant carry goods to Perryville.
Judgment reversed and cause remanded, withl directions to dismiss'the indictment.