122 N.C. 1052 | N.C. | 1898
Lead Opinion
The defendant Company was indicted for an unlawful discrimination in the transportation of passengers, under section 4 of Chapter 320 of the Acts of 1891. — The Railroad Commission Act. Section 4 of that Act is in the following words: ‘ ‘ That if any common carrier subject to the provisions of this Act shall directly or indirectly, by any special rate, rebate, draw back or other device, charge, demand, collect or receive from any person or persons a greater or less compensation for any service rendered or to be rendered in the transportation of passengers or property subject to the provisions of this Act than it charges, demands, or collects or receives from any other person or persons for doing for him or them a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions, such common carrier shall be deemed guilty of unjust discrimination, which is hereby prohibited and declared to be unlawful. ” Section 25 of the Act is written as follows: “ That nothing in this Act shall prevent the carriage, storage, or handling of property free or at reduced rates for the United States, State or municipal governments, or for charitable purposes, or to or from fairs or exhibitions for exhibition thereat, for the free carriage of destitute and homeless persons transported by charitable societies and the necessary agents employed in such transportation, or the free transportation of persons traveling in the interest of orphan asylums or any department
The bill of indictment was in form as follows:
“The jurors for the State upon their oath do present, that on the first day of July, in the year of our Lord, one thousand eight hundred and ninety-seven, the Southern Railway Company was a corporation, operating a line of railway from Goldsboro to Charlotte, in said State, and doing the business of a common carrier in the State of North Carolina subject to the provisions •of Chapter 320, Public Laws of 1891; and that the said Southern Railway Company required and received of persons traveling over its line of railway a regular first-class passenger fare of three and one-quarter (3£) cents per mile for each passenger.
“And the jurors aforesaid do further present that the said Southern Railway Company on the day and year aforesaid, and at and in the county aforesaid, unlawfully and wilfully did collect and receive from one H. L. Grant a less compensation for the transportation of said H. L. Grant from the city of Raleigh to the town*1055 Goldsboro, in said State, than it collected, demanded and received for the transportation of other passengers from the city of Raleigh to the said town of Goldsboro, for a like and contemporaneous service, in the transportation of passengers in its first-class carriages, under substantially similar circumstances and conditions.
“And the jurors aforesaid, on their oath aforesaid, do say that the said Southern Railway Compauy did then and there wilfully and unlawfully and unjustly discriminate in the collection of passenger fares in favor of the aforesad H. L. Grant and against other persons to whom like and contemporaneous service was rendered, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State.
“And the jurors aforesaid, on their oath aforesaid, do further present, that on the first day of July, in the year of our Lord, one thousand eight hundred and ninety-seven, the Southern Railway Company was a corporation operating a line of railway from Goldsboro to Charlotte, in said State, and doing business of a common carrier in the State of North Carolina, subject to the provisions of Chapter 320 of the Public Laws of 1891; and that said Southern Railway Company demanded and received a regular passenger fare of three and one-quarter (3-|-) cents a mile for passengers traveling in its first-class carriages over its line of railway.
“And the jurors aforesaid do further present, that the said Southern Railway Company on the day and year aforesaid, and at and in the county aforesaid, wilfully and unlawfully did make and give undue and unreasonable preference and advantage to one H. L. Grant, by then and there carrying the said H. L. Grant as a passenger free of charge over its line of railway from*1056 the city of Raleigh to the town of 'Goldsboro, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State.
Pou, Solicitor.”
The Jury rendered a special verdict in which they found the following facts: “That the defendant is a corporation carrying on the business of a common carrier in the State of N. 0. and operates a railroad, part of which line lies beween the cities of Raleigh and Goldsboro in said State; that during the year 1897 the defendant, through its Vice-President, issued to one Hiram L. Grant, who was a member of the General Assembly of N. 0., an annual free pass, which was accepted as valid for transportation in the State of N. 0.; that on the 1st day of July, L897, the said Hiram L. Grant was, on the presentation of this annual pass, to defendant’s conductor, transported free by the defendant between the cities of Raleigh and Goldsboro in said State; that upon the train there were persons who paid for their transportation at the rate of three and a quarter cents per mile for first-class passengers; that during the greater part of the year 1897 passes of substantially like character were issued to the Chief Executive and to the State' officers and to members of the Railroad Commission, as they had. been for many years previously and were accepted and used by them in the same manner as by the said Grant; that the members of the Railroad Commission are charged with the duties as set forth.in Chapter 320 of the Acts 1891; that the officer of defendant who issued the annual pass was advised by counsel and by members of the Railroad Commission that he was not violating the law of the State; there was no actual intent to violate the law upon the part of the officer of defendant issuing the
The question presented for our decision is, Does the Act prohibit and make indictable the giving of free transportation to passengers by common carriers? Upon its face clearly it does not in all cases, because in section a5 the giving of such free transportation, or transportation at reduced rates, to certain classes of persons therein particularly specified, is allowed; but the person who received free transportation in this case did not come within either of the exceptions of the statute.
In the argument here the counsel of the defendant company contended that the defendant had not violated the provisions of the statute, First, because there was no intention on its part to violate the law; Second, that the statute does not in express terms forbid the giving of free transportation to passengers and that, if the General Assembly had intended such prohibition, that body ought to have made known its purposes in clear and unmistakable language; Third, that the giving of free transportation to a particular person, while it charged for like and contemporaneous service another person the prescribed rate of fare, is not an linjust discrimination; that thereby no injustice is done to the person who pays his fare, for he has only paid what the law declares a fair price for the service'rendered; Fourth, that the “dead-head” and the paying passenger do not necessarily stand ‘ ‘ Under substantially similar circumstances and conditions,” as contemplated in the statute; and, last, that the Act itself has received an almost universal and practical construction in accordance with the foregoing views by the habit of railroad
The crucial point in the case is centered around the defendant’s contention and assumption that the “like and contemporaneous service” in the transportation of two individuals, one carried free and the other for the prescribed tariff rate, is not necessarily “under substantially similar circumstances and conditions;” that is, that the company can take into consideration, as to whether it will give free transportation to a passenger, the circumstances and conditions which surround two persons, and, if one is a “higher official” or a large shipper,, or a politician of power whose influence may be of service to the company, or one of social distinction, and the other a laborer, then the conditions and circumstances are not the same and, therefore, the statute does not apply. Of course, if this contention of the defendant is sound, this case is at an end, and the free transportation of passengers is therefore in no case unlawful. So, we will examine that position of the defendant 'first in order.
What then in respect to the transportation of passengers in connection with the statute is meant by the words “substantially similar circumstances and conditions ? ” It cannot be doubted that, if each of two persons desired to ship a thousand pounds of freight of like kind over a railroad between the same points and at the same time, the company must render the same service at the same rate to both, whether one of the shippers was a politican with a “pull,” or a “higher officer,” or a member of the legislature or of Con
In our opinion, Section 4 of The Act in plain words prohibits the making of a greater charge'against one person than against another, for a like and contemporaneous service under substantially similar circumstances and conditions, applicable to-the carriage of both passengers and property. The language is so clear “that he may'read who runs.” In contemplation of Section 4 of the Statute, the only possible difference between two individuals is that in relation to the size of their bodies; but this can have no bearing upon the matter of transportation, as the difference in size or weight of persons (over a certain age) has not yet been regarded in the business “of hauling passengers” as ground for making difference in passenger rates. Boiled down, the contention of the defendant on this point is just this: “If one person should be the governor of the State, a member of Congress or of the G-eneral Assern - bly, or a leader in what is called the business or the social world, and the other is an ordinary toiler for his bread, a case of substantially dissimilar circumstances and conditions exist, and the company may give the favored ones free transportation for their influence, and charge and receive from the other full fare because he has no influence. Can it be supposed for a mdment that the General Assembly of North Carolina would enact a law, a law purporting to protect the great body of the people against inequality and unjust discrimination on the part of railroad companies, based on such class distinctions? This contention of the defendant, if it could be maintained, would simply divide
We will now consider the other positions of the defendant: It was insisted that the company was ignorant of the provisions of the law in respect-to the prohibition of the free transportation of passengers and that it had no intention to commit the offence with which it is charged; and counsel dwelt especially upon that finding in the special verdict in which the jury said “There was no actual intent to violate the law upon the part of the officer of defendant issuing the pass.” Who was the officer of the company who issued the pass and who put into the hands of the “deadhead” passenger the piece of paper which secured his free transportation that his intention should be inquired into? Probably some local attache. What notice does the law take of his intentions or purposes in the matter before us? The thing which was denounced by the statute and for which the defendant is indicted, is not the act of giving the free pass, the mere handing to the passenger the piece of paper on which was written the privilege of riding free, but the act of transporting the favored passenger without charge or the payment of fare. The law would be violated if no pass was actually
If there is anything well settled by the decisions of this court it is that, wherever an act is denounced as unlawful by statute, the doing of that act constitutes the offence, and the intent with which the act is done is immaterial; and this has been settled law for a long period of time. In the case of State v. King, 86 N. C., 603, the Court said, “When an act forbidden by law is intentionally done the intent to do the act is the criminal intent which imparts to it the character of an offence; and no one who violates the law, which he is conclusively presumed to know, can be heard to say that he had no criminal intent in doing the forbidden act.” In State v. McBrayer, 98 N. C., 619 it is held that when the statute plainly forbids an act to be done and it is done by some person, the law implies conclusively the guilty intent although the offender was honestly mistaken as to the meaning of the law he violates. In State v. Voight, 90 N. C., 741 the Court said, “The criminal intent is inseparably involved in the intent to do the act which the law pronounces criminal.” To the like effect are the decisions in State v. Kittelle, 110 N. C., 560; State v. Downs, 116 N. C., 1064; State v. Chisenhall, 106 N. C., 676; State v. Scoggins, 107 N. C., 959; State v. McLean, 121 N. C., 589.
But how is it possible to seriously consider that the defendant acted in this matter in ignorance of the law? It is not too much to say in a judicial opinion that the
In the third annual report of the Inter-state Commerce Commission (Vol. 3, p. 300, filed November 30, 1889) it is' stated that “the statute (Inter-state Commerce Act) undoubtedly was framed to prohibit passes or free transportation of persons as one of the forms of unjust discrimination, favoritism and misuse of corporate powers that had grown into an abuse of large proportions and become demoralizing in its influence, and detrimental to railroads, both in loss of revenue and in provoking public hostility. One of the minor and meaner phases of this abuse is the distinctive preference shown in various ways by employees both in service and civility to holders of passes, as if discrimination by free carriage includes discrimination in treatment of passengers.”
“It is well known that .pei-sons who are carried free were to a large extent precisely the persons who had no claim whatever to such favors. They were officials and others from whom free passes might be expected to
It is of interest to observe that it appears from that report that the returns of the railroad companies embraced therein show the largest number of Interstate free passes issued were designated as “complimentary.” The next most numerous classes embraced steamship and transportation lines, officers, Federal, State and municipal, palace car companies and newspapers. Of State free passes, the largest number were issued to members of the legislatures, drovers with “complimentaries” next, and United States, State and municipal officers, newspapers and shippers next in numbers.
In the investigation of this subject as it affected the Boston and Maine Railroad Company (Inter-state Commerce Report, Yol. 5, p. 69, December, 1891), it was decided by the Commission that the giving of free passes to others than those embraced in the exceptions was illegal. The opinion of the Commission was in the following words: “The construction we give to Section 2 of the Act to regulate commerce is that, where the service by the carrier subject to the Act is like and contemporaneous for different passengers, the charge to one of a greater or less compensation than to another
The report goes on however to say that “Mr. Chandler made a reply not without interest or point.” In the same decision the Commission said further: “Other utterances and decisions of the Commission to the same legal effect have been made every year since its organization, and its construction of the Act has been indicated by its repeated recommendations to Congress to add other classes of persons to the exceptions (as they were always regarded by the
As to the last position of the defendant, that is, the alleged practical construction which the common carriers and the favored passengers have put upon the statute, the first giving and the last receiving free transportation, just as they did before the enactment of the statute, and assuming that the general community have adopted that as the proper construction of the law, we have nothing to say, except that it would seem to all reasonable minds that such a construction could not be the proper one, .and that the law as often construed by the Inter-state Commerce Commission, which construction seems true to us, is a just and wholesome law.
Affirmed.
Dissenting Opinion
dissenting : — I feel compelled to dissent from the judgment of the court; but in doing so, I wish to express my unqualified concurrence in the able opinion of Justice MONTGOMERY, except in so far as it necessarily conflicts with what is said herein. That free transportation, under whatever device it may be given, is prohibited by the Act of 1891, unless covered by the statutory exceptions, is unquestionable; and I am glad that it has now been settled by a unanimous court. Such a construction is in strict accordance with the settled rules of judicial interpretation and with the highest principles of public policy.
It is currently reported that' a hundred thousand passes were issued in the State of North Carolina within
The defendant here admits a free transportation, but pleads want of intent. Ordinarily the admission of the forbidden act would be conclusive evidence of guilt; as in misdemeanors, at least, the intent to commit the act is the criminal intent, unless the statute itself consti
If the Act itself forbade the issuing of passes in express terms, it would be an end of the question. But it does so only by implication as is shown in the opinion of the Court. It is true it seems to us a clear and necessary implication; but it evidently did not seem soto the higher officers of State and members of the Legislature who accepted these passes.
We can scarcely ask a clearer insight into the law and a nicer sense of propriety from the soulless corporation than we do from those who make and enforce the law. This Act was ratified March 5, 1891, more than seven years ago. Since then we have had four different legislatures, three governors and seven different railroad commissioners as well as two complete sets of solicitors. I do not mean to impute any improper motive to these men, many of whom I personally know, and whose names and characters are too well known to need any vindication from me; but is it not possible that the defendant may have been honestly misled in issuing passes to them from the mere fact that they would receive them? The giving of a pass is only malum prohibitum, and not malum in se, and is neither as to the one that receives it. There is nothing innately wrong in it, further than that it is prohibited by law and may lead to dangerous abuses. Moreover, section 5 of the Act under consideration provides that the Railroad Commissioners “Shallmake such just and reasonable rules and regulations as may be necessary for preventing unjust discrimination in the transportation of freight and passengers on the railroads in the State. ”
The possible results of an adverse decision to the defendant are practically beyond calculation. If it has issued fifty thousand passes a year for the two years within the statute, it is not probable that over forty thousand were issued to the excepted classes, leaving at least sixty thousand violations of law. This would subject it to penalties of which the minimum would be sixty millions of 'dollars and the maximum three hundred millions. It is true that this may not be the result. Solicitors may -not prosecute, the Executive may pardon or the legislature may condone; but with this I have nothing to do. Upon the special verdict
I am aware that, in arriving at my conclusions, I have been forced to ignore some of the general rules of judicial construction, but under the exceptional circumstances appealing so strongly to my judgment I do not feel that we should permit the bar sinister of an iron clad rule of interpretation to lie in cold obstruction across the conscience of the court.