113 Ky. 630 | Ky. Ct. App. | 1902
Opinion of the court by
Reversing
In the year 1900 the appellants instituted a number of suits at iaw' to recover penalties for the violation of sections 4799, 4801, 4803, Kentucky Statutes. Section 4799 provides that a warehouseman, in settling with a shipper, shall account to him for the net weight of the tobacco sold,, including the sample; section 4801, that the warehouseman, in selling leaf tobacco at public auction, shall receive as
It is shown by the evidence that for years a custom has existed among the warehousemen to deduct from the net weight of the tobacco 10 pounds for -sample, and-to settle with the seller on this basis, although the sample in fact weighs about 5 pounds less, and the warehouseman collects from the buyer for the entire net weight of "the tobacco, less the actual •weight of the sample. In other words-, it is shown that the warehouseman, as the agent of the sel
It is shown by the proof that, in addition to the charges made by the warehouseman against the seller, he also charges the buyer what is known as' an “outage fee.” This is not a charge for the selling of the tobacco, but covers the services of the warehouseman in having the hogsheads re-coopered and stored for the buyer for a reasonable time until he is ready to receive them. By the custom of the trade, the buyer has 15 days for this purpose, and after this he is charged storage. The outage fee charged the buyer is $2. The statute does not affect this charge; it
Under the statute, including the resales and the outage fees, the warehouseman will get about $4.35 a hogshead for selling. In addition to this, there is a profit on storage, insurance, drayage, and other matters, that is considerable, and will probably amount, to 30 or 40 cents a hogshead. The cost of selling, according to the proof, is from $3.00 to $4.20; but in ibis are included, according to the statements of the only witness who furnishes us his figures, some items of questionable correctness., A great many witnesses have testified, giving it as their opinion that business can not be done under the statute; but, when their statements are analyzed, it is found that their conclusions are largely based on other provisions than those in controversy. The proof in the case, with the exception of one single deposition, was all taken ’in a suit pending in the Graves circuit court about the year 1890, and only the proof taken for the warehousemen in that case is before uS. The mere opinions of wetnesses without the facts on which they are based are of very little value, and this is especially true; where the witnesses are, by situation or interest, biased and not impartial. About 175,000 hogsheads are sold annually by appellees. But a short time is taken to sell a hogshead, and it is hard to escape the conviction, from the proof, that there is a very bitter rivalry between them to secure trade, and that this rivalry is somewdiat promoted by the scale of fees that are charged under the rules. In other words, the rules allow a liberal compen-' sation, and it is a matter of importance to the warehouse to secure the trade of a customer, and in order t-o secure
The last General Assembly passed the following act repealing the statute in question:
“ft) That an act entitled ‘An act to regulate the sale of leaf tobacco in this Commonwealth, approved April 5, 1892, he and the same is hereby repealed.
“Í2) That no penalty provided in said act shall hereafter be recoverable in any court of this.Commonwealth.”
This act became a law without the Governor’s signature on March 29, 1902.
The statute in controversy having thus been repealed, the question arises, What are the rights of the parties? By section 405, Kentucky Statutes, no new law shall be construed to repeal a former law as to any act done, or any penalty incurred, or any right accrued under it. Rut what one Legislature provides, another may repeal; and the act of March 29, 1902, not only repeals the former statute under which these proceedings were instituted, but. in terms, provides that no penalty under that act shall hereafter be recovered in any court of the State. It is settled that, in order to enter judgment for a penalty, there must be a statute in force at the time authorizing the court to enter the judgment, and that if the act is repealed pending the action the court is without power to give judgment, and the action must be dismissed. Com. v. Cain, 77 Ky., 525; Speckert v. City of Louisville, 78 Ky., 287; Dinsmore v. Express Co., 183 U. S., 115, 22 Sup. Ct., 45. We are therefore without authority to proceed further in these actions, if the statute of March 29, 1902, is constitutional; for, though it does not take effect until 90 days
The judgment complained of is therefore reversed, and the cases are remanded, with directions to the circuit court to. discharge the injunction and dismiss the equity action, with costs, and to strike the ordinary actions from the docket.
The mandate in these cases is modified so as to direct the circuit court to dismiss the ordinary actions without prejudice and without judgment for costs, all power to proceed further therein having been taken away by the Legislature. This is what we meant when we directed the actions to be stricken from the docket.