Louisville & Nashville R. R. v. Commonwealth

105 Ky. 179 | Ky. Ct. App. | 1898

CHIEF-JUSTICE LEWIS

delivebed the opinion of the coubt.

Appellant was indicted for the offense of unjust discrimination, alleged to have been committed as follows: “The said Louisville & Nashville Railroad Company * * * did unlawfully, after having received from the Lebanon Roller-Mills Company the same rate of compensation for the transportation of coal to Lebanon, Ky., that the said defendant had charged, demanded, and collected from J. M. Shreve for the contemporaneous transportation of coal of a like amount, for the same distance, over the same line, in the same direction, refund and pay to the said Lebanon Roller-Mills Company a portion of the amount so received from it for said transportation, to wit, the sum of $11.88, as a rebate, and failed and refused to refund or pay back to the said J. M. Shreve any portion of the amounts so demanded and collected from him for the transportation of coal as aforesaid, thereby charging, demanding, collecting, and receiving from the said Lebanon Roller-Mills Company a less compensation for services rendered in the transportation of coal to Lebanon, Ky., than was demanded, collected, and received for a like and contemporaneous service in the transportation of a like traffic, contrary to the form of the statute in such cases made and provided,” etc.

The indictment was found under section 817, Ky. Stat., as follows: “If any corporation engaged in operating a railroad in this State shall directly or indirectly by any special rate, rebate, drawback or other device, charge, demand, collect or receive from any person a greater or less compensation for any service rendered in the transportation of passengers or property than it charges, demands, collects or receives from any other person for doing for him a like and contemporaneous service in the transportation of like kind of traffic, it shall be deemed guilty of unjust discrimination.’.’ The penalty for the offense, as prescribed in section 819, is a fine, for the first offense, of not less than $500 nor more than $1,D00; for the second offense, not less than $500 nor more than $2,000; and for the third offense, not less than $2,000 nor more than $5,000.

A demurrer to the indictment was filed, consideration of which requires reference to section 215 of the Constitution, to effectuate which seems to be the object of section 817, ICy. Stat. Section'215 provides: “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 and upon the same conditions in the same manner and for the same charges and for the same method of payment.” By section 217 of the Constitution it is provided that, for willfully or knowingly violating any provision of section 215, the penalty, upon conviction by a court of competent jurisdiction, shall be, for the first offense, a fine of $2,000; for the second offense, a fine of $5,000; and, for the third offense, a forfeiture, ipso facto, of franchise privileges and charter rights. It is further provided that the Attorney G-eneral shall forthwith, upon notice of violation of section 215, institute proceedings to enforce the provision of it. It will be observed that every duty or requirement, violation of which section 817, Ky. Stat., denominates unjust discrimination, and made punishable by section 819, Id., is, if not specifically, substantially and fully enjoined upon railroad companies by section 215 of the Constitution; for every device specified in section 817 by which a railroad company may charge or receive a greater or less compensation for transportation of property from one person than from another is a violation of section 215, and, operating in connection with section 217 of the Constitution, it is final and self-executing. It is therefore manifest that, so far as sections 817 and 818 conflict with sections 215 and 218, they are void, and, so far as the indictment in this case lacks any statement of fact necessary to constitute a complete offense under the two sections of the Constitution, it is defective.

1. The offense of unjust discrimination can not, according to section 217, be punished, unless it. is knowingly or willfully committed. Consequently, omission of the indictment to charge that it was so committed is a fatal defect.

2. A railroad company is required by section 215 to charge the same amount of compensation for transporting, from and to the same points, freight of thfe same class or kind, not freight of different classes or kinds. And, to make a good indictment for violating that section, it should be stated, either affirmatively, that the freight in question, for which the defendant company is alleged to have charged different owners or shippers different amounts of compensation, was of the same class or kind, or, negatively, was not of different classes or kinds. But that averment was omitted, though manifestly material; for that it is allowable and proper for a railroad company to classify freight according to its quality or character and marketable value, and discriminate in charges for carrying different classes or kinds, is not only universally recognized, but plainly authorized by section 215.

3..There can not be a violation of that section unless different charges be made for transporting freight of the same class from and to the same points and upon the same conditions.

For the reasons mentioned, the judgment is reversed, and the case remanded, that demurrer to. the indictment may be sustained.