108 Ky. 615 | Ky. Ct. App. | 1900
Opinion of the court by
Reversing.
Appellants in the years 1894 and 1895 shipped a large quantity of tobacco from Auburn, Logan county, Ky., over appellee’s road, and were charged by it for the transportation of the tobacco at the rate of thirty cents per hundred pounds. The distance from Auburn to Louisville is 132 miles. Guthrie, Ky., is another point on the same line, 163 miles from Louisville, and Hopkinsville is 188 miles from Louisville. During the same period when appellants were paying thirty 'cents per hundred pounds for the transportation of their tobacco, appellee carried tobacco from Hopkinsville to Louisville for eighteen cents per hundred pounds, and from Guthrie for twenty-four cents; the tobacco from Hopkinsville and Guthrie being hauled through Auburn, and over the same route as that carried for appellants. On these facts, appellants filed their action to recover from appellee the amount paid it for the transportation of their tobacco over and
It is insisted however, for the appellee, that the Legislature, by section 819 of the Kentucky Statutes, has provided a remedy to the party aggrieved, where the carrier is guilty of extortion or unjust discrimination; but that this remedy does not include violations of the long and short haul clause, which are covered by section 820, Id., providing for the indictment of the carrier in this state of case, but giving no right of action to the party aggrieved. It is earnestly argued that the Legislature made the carrier liable to indictment for violating the long and short haul clause, but failed to give the person aggrieved a remedy, for the reason that the rate charged him might be reasonable, and he was not prejudiced by the carrier’s charging some one at another point less than should have been paid.
While there is great plausibility in this argujnent, we think the matter must be determined not from the statute, but from the Constitution itself. Section 218 of the Constitution is as follows: “It shall be unlawful for any person or corporation, owning or operating a railroad in
It will be seen that the above makes it unlawful for the carrier to charge or receive a greater compensation in the aggregate for the transportation of property of like kind, under 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. The thing made unlawful is the greater charge for the short than for the long haul. The violation of this section does not consist in charging for the long haul less than is charged for the shorter, or in charging more or less than is reasonable for either. The carrier is given the right to fix the charge for the long haul, so far as this section goes; but he is not allowed, when he
The prime purpose of the constitutional provision .was the protection of the citizen from a greater charge for a short than for a longer haul. The Constitution itself provides no remedy, civil or criminal, for its violation. The indictment of the carrier as provided by the statute may deter him from future violation of the law. But this will not remedy the wrong already done the shipper, and, when money is obtained in violation of the express terms of the Constitution, its proper effect and purpose will be in a great measure defeated if the wrongdoer is allowed to retain the fruits of his illegal exaction. This is never allowed where money has been obtained in violation of a statute, where the statute is silent'as to- the remedy; and a constitutional provision can not be less effective than a statute. The rule is thus stated in Bish. Non-cont. Law, sections 132-184: “Whenever the common law, a statute, a municipal by-law, or any other law imposes on one a duty, if of a sort affecting the public within the principles