Fla. Cent. & Peninsular R.R. Co. v. Reynolds, 183 U.S. 471 (1902)
Case details
Citation
183 U.S. 471
Full caption
FLORIDA CENTRAL AND PENINSULAR RAILROAD COMPANY v. REYNOLDS.
Country
United States
Jurisdiction
Federal
Court
Supreme Court of the United States
Decided
Jan. 6, 1902
FLORIDA CENTRAL AND PENINSULAR RAILROAD
COMPANY v. REYNOLDS.
ERROR TO THE SUPREME COURT OF THE STATE OF FLORIDA.
No. 183. Argued November 5, 6,1901.—Decided January 6,1902.
There is nothing in the Federal Constitution which forbids a State to reach backward and collect taxes from certain kinds of property which were not at the time collected through lack of statutory provision therefor, or in consequence of a misunderstanding as to the law, or from neglect of administrative officials, without also making provision for collecting the taxes, for the same years, on other property.
The constitution of Florida of 1868, art. 16, sec. 24, as amended by art. 11 of the amendments of 1875, is as follows:
“The property of all corporations, whether heretofore or hereafter incorporated, shall be subject to taxation, unless such property be held and used exclusively for religious, educational, or charitable purposes.”
Sec. 26, chap. 3413, of the Laws of Florida, March 5,1883, reads:
“If any assessor, when making his assessments, shall discover that any land in his county was omitted in the assessment roll of either or all of the three previous years, and was then liable to taxation, he shall, in addition to the assessment of such land for that year, assess the same separately for such year or years that may have been so omitted, at the just value thereof in such year, noting distinctly the year when such omission occurred; and such assessment shall have the same force and effect as it would have had if made in the year the same was omitted, and taxes shall be levied and collected t ereon in like manner and together with the taxes of the year in which the assessment is made; but no lands shall be assessed for more than three years’ arrears of taxes, and all ands shall be subject to such taxes omitted to be assessed, into
whosoever hands they may come.”
In 1885 this statute was passed :
“Sec . 1. That in all cases in which any railroad or the properties thereto belonging or appertaining in this State, in the tax years commencing March 1, 1879, 1880 and 1881, or any of such years, were not assessed for taxes for such years, it shall be the duty of the comptroller to cause the same or so much thereof as were not assessed to be assessed for state and county taxes, and twenty per centum of the taxes so assessed for said years and now unpaid shall be collected at the same time the taxes for the year 1885 shall be assessed and collected, and each year thereafter an additional twenty per centum of said taxes shall be collected at the same time and in the same manner as the taxes for such year are collected, until the whole amount of said unpaid taxes for the years 1879, 1880 and 1881 are paid.
“ The taxes to be assessed under this act shall be the same in amount as they would have been had they been assessed in such years or any of them as to which there was a failure to assess.” Laws of Florida, February 12,1885, chap. 3558.
This statute was followed in 1891 by one in these words:
“ Sec . 1. That the state and county taxes assessed by the comptroller of the State of Florida, upon any railroads and the properties thereof in said State, for the years 1879, 1880 and 1881, under and in pursuance of ‘ An act to provide for the assessment and collection of taxes on railroads and the properties thereof for the years 1879, 1880 and 1881, as to which there was no assessment,’ but which have not been collected, shall be collected, and the payment thereof enforced at the same times and in the same manner, as is now, or may hereafter be provided by law, for the collection and the enforcement of the payment of taxes assessed upon the railroads and the properties thereof in the State of Florida.” Laws of Florida, June 8, 1891, chap. 4073.
The assessment of railroad property in Florida was not made by the county assessors but by the comptroller of the State. Acts, State of Florida, March 7, 1879, chap. 3099, secs. 45, 46.
The plaintiff is a corporation organized under the laws o Florida on November 17, 1888, and was the owner of several lines of railway, which on May 1, 1889, it acquired from t e p. 473Florida Railway and Navigation Company, under foreclosure proceedings. The Florida Railway and Navigation Company was organized on February 29, 1884, by the consolidation of several companies, and on July 1 of that year it placed upon its properties a trust deed to secure the payment of 810,000,000 bonds.
This bill was filed November 2, 1892, in the circuit court of the second judicial circuit of Florida, in and for the county of Leon. Its purpose was to restrain the collection of certain taxes and to recover other taxes paid under protest. After three appeals to the Supreme Court of the State (35 Fla. 625, 39 Fla. 243, 28 Southern Rep. 861), the final outcome of the litigation was a decree dismissing the plaintiff’s bill in toto.
Mr. Frederic D. McKenney and Mr. Wayne Mac Veagh for plaintiff in error. Mr. Thomas L. Clarice and Mr. John A. Henderson were on their brief.
Mr. W. B. Lamar for defendants in error.
Mr . Just ick Brew er , after stating the case, delivered the opinion of the court.
No question is presented concerning the claim for the taxes paid under protest, counsel for plaintiff stating in their brief that “ the sole relief sought in this court is to obtain a reversal of the decree of the state Supreme Court, in so far as it reversed the decree of the circuit court enjoining the sale of complainant’s lines of railroad for the taxes assessed for the years 1879, 1880 and 1881, such taxes amounting to $96,181.69,” and in respect to this matter they sum up their contention in these words:
‘By the law of 1885 the State attempted to authorize the assessment of taxes for 1879-1881, but only upon property be°nging to railroad companies, though it appears from the rec-
ord that other properties of like class, i. e., real estate belonging to individuals and owners, not railroad companies, had not een assessed for taxes for such years.
“ It surely cannot be ‘ due process of law ’ for the State of Florida in 1885, to arbitrarily impose a burden theretofore unheard of upon security holders who in 1884 had invested their money upon the faith of a title then clear of such burden.
“ It surely cannot be less than a denial of the equal protection of the laws for the State of Florida in 1885 to impose burdens theretofore unheard of upon the property of railroad companies, which under the laws of Florida is real estate, while permitting other real estate, otherwise owned, to escape such burdens.”
The decision of the Supreme Court of the State establishes that these proceedings are not in conflict with the constitution of Florida. The single question, therefore, to consider is whether there is anything in the Federal Constitution which forbids a State to reach backward and collect taxes from certain kinds of property which were not at the time collected through lack of statutory provisions therefor, or in consequence of a misunderstanding as to the law or from neglect of administrative officials, without also making provision for collecting the taxes for the same years on other property. It will be perceived that there was no new levy of taxes. No act of the legislature was passed imposing an additional burden upon the property of the State in general, or upon any particular property, but the case is one in which general levies having been made for the years named certain property which ought to have paid taxes under them—and thus contributed its share of the expenses of the State—failed to do so, and the effort is to compel that property to discharge its obligation. The objection is not that the property ought not during those years to have paid its proportion of the taxes, but that it ought not now to be compelled to pay such proportion because certain other property was similarly situated and no effort is made to compel payment from it.
The fault, if fault there be, is one of omission rather than commission. The act of the legislature is not a mandate to a single officer, charged with the duty of assessing all property, to assess certain property and to omit to assess the rest, but the general legislation having provided that railroad property shoul be assessed by the comptroller and real estate by county assess ors, the act simply directed the comptroller to discharge the p. 475duties of assessment as to the property committed to his care, and omitted any direction to the county assessors. This omission, it is contended, makes the act unconstitutional. In other words, the legislature may not pass an act directing one officer to discharge his duty unless it couples therewith a direction to other officers charged with kindred duty to perform theirs. It would seem to follow that if the legislature had, on the same day, passed another act with like command to the county assessors, the two acts together would be constitutional, though each standing alone would not be; and as the time of its passage is not generally of the essence of a statute, it would also seem to follow that if the legislature should to-day pass an act directing the county assessors to assess delinquent real estate for those years, this late enactment would give constitutional vitality to that passed years ago. How far can this theory of constitutionality be sustained ?
It must be remembered that(i taxes are not debts in the ordinary sense of that term; ” that they are “ the enforced proportional contribution of persons and property, levied by the authority of the State for the support of the government, and for all public needs.” Cooley on Taxation, 1st ed. pp. 13 and 1. They are obligations of the highest character, for only as they are discharged is the continued existence of government possible. They are not cancelled and discharged by the failure of duty on the part of any tribunal or officer, legislative or administrative. Payment alone discharges the obligation, and until payment the State may proceed by all proper means to compel the performance of the obligation. No statutes of limitation run against the State, and it is a matter of discretion with it to determine how far into the past it will reach to compel performance of this obligation.
No question of bona fide purchase arises, for it was held by the Supreme Court that inasmuch as no assessment of this railroad property had been made during the years named, and no len thereon for taxes established, a bona fide purchaser would ave taken it free from any liability for such taxes, but it was
a so held that the present owner was not a bona fide purchaser, an this being a local matter the decision is conclusive upon this court.
The question how far the provisions of the Fourteenth Amendment interfere with a state’s system of taxation has been more than once before this court. It was very carefully considered in Bell's Gap Railroad Co. v. Pennsylvania, 134 U. S. 232, and the general rule thus stated by Mr. Justice Bradley on page 237:
“The provision in the Fourteenth Amendment, that no State shall deny to any person within its jurisdiction the equal protection of the laws, was not intended to prevent a State from adjusting its system of taxation in all proper and reasonable ways. It may, if it chooses, exempt certain classes of property from any taxation at all, such as churches, libraries and the property of charitable institutions. It may impose different specific taxes upon different trades and professions, and may vary the rates of excise upon various products; it may tax real estate and personal property in a different manner; it may tax visible property only, and not tax securities for payment of money; it may allow deductions for indebtedness, or not allow them. ... We think that we are safe in saying that the Fourteenth Amendment was not intended to compel the State to adopt an iron rule of equal taxation.”
It is well known that the States vary materially in their systems of taxation. Each determines for itself what in its judgment is best for the interests of its people. In some there are general exemptions of particular classes of property, such as property used for religious, educational and benevolent purposes. Some, in order to encourage certain industries, such as manufacturing, make either general or special exemptions. Some think it for their best interest to derive their revenues from personal property, corporations and licenses, and exempt real estate. In some, contracts for exemption are authorized by the state constitution ; in others, they are forbidden. Now, considering the great diversity in these systems it would obviously have worked a marked revolution if the first section of the Fourteenth Amendment had been construed as compelling a cast iron rule of equal taxation. It was not intended, as held in the case quoted from, and also in Barbier v. Connolly, 113 IT. S. 27, to restrain the legislature from any proper and legitimate classification both as respects property for taxation and the methods p. 477of assessment and taxation. Doubtless it would prohibit a State from selecting some obnoxious person and casting upon his property the sole burden of taxation, or a burden differing from that cast upon others whose property was similarly situated, but it does not prevent a State from exercising its judgment as to the property to be taxed and the modes of taxation, providing all property similarly situated is treated in the same way.
Besides those just cited, other cases in this court affirm the same propositions. In The Delaware Railroad Tax, 18 Wall. 206, a special act of the State of Delaware imposing a tax of three per cent upon the net earnings or income received by railroad and canal companies from all sources was sustained, the court saying (p. 231):
“ The State may impose taxes upon the corporation as an entity existing under its laws, as well as upon the capital stock of the corporation or its separate corporate property. And the manner in -which its value shall be assessed and the rate of taxation, however arbitrary and capricious, are mere matters of legislative discretion. It is not for us to suggest in any case that a more equitable mode of assessment or rate of taxation might be adopted than the one prescribed by the legislature of the State; our only concern is with the validity of the tax; all else lies beyond the domain of our jurisdiction.”
In Home Insurance Company v. New York, 134 IL S. 594, a tax upon the corporate franchise or business of corporations, graded according to the dividends declared by the corporation, was sustained, the court, on p. 606, referring in these wrords to the objection that the tax wTas in conflict with the Fourteenth Amendment:
‘ But the amendment does not prevent the classification of property for taxation—subjecting one kind of property to one rate of taxation and another kind of property to a different rate distinguishing between franchises, licenses and privileges, and visible and tangible property, and between real and personal property. Nor does the amendment prohibit special legislation, ndeed, the greater part of all legislation is special either in the extent to which it operates, or the objects sought to be obtained
by it. And when such legislation applies to artificial bodies, it is not open to objection if all such bodies are treated alike under similar circumstances and conditions, in respect to the privileges conferred upon them and the liabilities to which they are subjected. Under the statute of New York all corporations, joint stock companies and associations of the same kind are subjected to the same tax. There is the same rule applicable to all under the same conditions in determining the rate of taxation. There is no discrimination in favor of one against another of the same class. Barbier v. Connolly, 113 U. S. 27, 32; Soon Hingv. Crowley, 113 U. S. 703, 709 ; Missouri Pacific Bailway v. Humes, 115 U. S. 512,523; Missouri Pacific Bailway n . Mackey, 127 U. S. 205, 209 ; Minneapolis c&c. Bailway Co. v. Beckwith, 129 U. S. 26, 32.”
In Giozza n . Tiernan, 148 U. S. 657, a difference in the amount of license required from parties carrying on different kinds of business, was the ground of attack upon a state statute, but the statute was sustained, and in respect to the Fourteenth Amendment it was said (p. 662): “Nor in respect of taxation was the amendment intended to compel the State to adopt an iron rule of equality; to prevent the classification of property for taxation at different rates; or to prohibit legislation in that regard, special either in the extent to which it operates or the objects sought to be obtained by it. It is enough that there is no discrimination in favor of one as against another of the same class. Bell's Gap Railroad v. Pennsylvania, 134 U. S. 232; Home Insurance Co. v. New York, 134 U. S. 594; Pacific Express Co. v. Seibert, 142 U. 8. 339. And due process of law within the meaning of the amendment is secured if the laws operate on all alike, and o not subject the individual to an arbitrary exercise of the powers of government. Leeper v. Texas, 139 U. S. 462.
In King n . Mullins, 171 U. S. 404, a discrimination in the laws of West Virginia as to the matter of forfeiture in tax proceedings between the owners of tracts of less than one thousand acres and those owning larger tracts, was challenge , but the court overruled the contention, saying (p. 435):
“ Another point made by the plaintiff in error is, that t e p. 479provision of the constitution of Virginia, exempting tracts of less than one thousand acres from forfeiture is a discrimination against the owners of tracts containing one thousand acres or more, which amounts to a denial to citizens or landowners of the latter class of the equal protection of the laws. We do not concur in this view. The evil intended to be remedied by the constitution and laws of West Virginia was the persistent failure of those who owned or claimed to own large tracts of land, patented in the last century, or early in the present century, to put them on the land books, so that the extent and boundaries of such tracts could be easily ascertained by the officers charged with the duty of assessing and collecting taxes. Where the tract was a small one, the probability was that it was actually occupied by some one, and its extent or boundary could be readily ascertained for purposes of assessment and taxation. We can well understand why one policy could be properly adopted as to large tracts which the necessities of the public revenue did not require to be prescribed as to small tracts. The judiciary should be very reluctant to interfere with the taxing systems of a State, and should never do so unless that which the State attempts to do is in palpable violation of the constitutional rights of the owners of property. Under this view of our duty, we are unwilling to hold that the provision referred to is repugnant to the clause of the Fourteenth Amendment forbidding a denial of the equal protection of the laws.”
See also Pacific Express Company v. Seibert, 142 U. S. 339; Thomas v. Gay, 169 U. S. 264. Text-books affirm the same doctrine. Burroughs on Taxation, sec. .56, says : “ The rule is, that the legislature may select the subjects of taxation in their iscretion; ” and in Cooley on Taxation, chap. 6, p. 124, it is said. There is no imperative requirement that taxation shall e equal. . , . The legislature must decide when and how an for what public purposes a tax shall be levied, and must se ect the subjects of taxation. This is legislative, and the egis ative conclusion in the premises must be accepted as
proper and final.”
Gilman v. Sheboygan City, 2 Black, 510, is not in conflict p. 480with these views. True, in that case a tax levied for a special purpose by the city was adjudged void on the ground that it was levied exclusively on real property, but the decision was placed upon a conflict with the constitution of the State as interpreted by its Supreme Court. In other words, the Supreme Court of the State having in several cases held that such a discrimination avoided a tax, this court simply followed those decisions, saying, p. 518, that it considered itself “ bound in cases like this to follow the settled adjudications of the highest state court giving constructions to the constitution and laws of the State.”
In the light of these decisions if the State of Florida had deemed it for the best interests of its people to encourage the building of railroads by exempting their property from taxation, such exemption could not have been adjudged in conflict with the Fourteenth Amendment, even though thereby the burden of taxation upon other property in the State was largely increased. Indeed, that was the policy of the State prior to the constitution of 1868. And, conversely, if the State had subjected railroads to taxation, while exempting some other class of property, it would be difficult to find anything in the Fourteenth Amendment to overthrow its action. The mere fact that such legislation may operate with harshness is not of itself sufficient to justify the court in declaring it unconstitutional. These matters of classification are of state policy, to be determined by the State, and the Federal government is not charged with the duty of supervising its action.
If the State, as has been seen, has the power, in the first instance, to classify property for taxation, it has the same right of classification as to property which in past years has escaped taxation. We must assume that the legislature acts according to its judgment for the best interests of the State. A wrong in tent cannot be imputed to it. It may have found that t e railroad delinquent tax was large, and the delinquent tax on other property was small and not worth the trouble of specia provision therefor. If taxes are to be regarded as mere de > then the effort of the State to collect from one debtor is no
Mb . Just ice Brown , dissenting.
prejudiced by its failure to make like effort to collect from another. And if regarded in the truer light as a contribution to the support of government, then it does not lie in the mouth of one called upon to make bis contribution to complain that some other person has not been coerced into a like contribution. In Winona db /St. Peter Land Co. v. Minnesota, 159 U. S. 526, legislation of Minnesota for the collection of delinquent taxes on real estate was challenged because of a lack of similar legislation in respect to personal property, but the challenge was overruled, the court saying (p. 539):
“ This statute rests on the assumption that, generally speaking, all property subject to taxation has been reached and aims only to provide for those accidents which may happen under any system of taxation, in consequence of which here and there some item of property has escaped its proper burden; and it may well be that the legislature in view of the probabilities of changes in the title or situs of personal property might deem it unwise to attempt to charge it with back taxes, while at the same time, by reason of the stationary character of real estate, it might elect to proceed against that. At any rate, if it did so it would violate no provision of the Federal Constitution, and whether it did so or not was a matter to be determined finally by the Supreme Court of the State.”
Our conclusion is that, so far as the Federal Constitution is concerned, the legislature of Florida had the power to compel the collection of delinquent taxes from the railroad companies for the years 1879,1880 and 1881, even though it made no provision for the collection of delinquent taxes for those years on other property. The judgment, therefore, of the Supreme Court of Florida is
Affirmed.
Mr . Justic e Brow n , dissenting.
1 J ^aVe n° whatever of the validity of the act of the ^egis ature of Florida of 1883, requiring the assessor, upon discovering that any land in his county was omitted from the assessment roll of the three previous years, to assess the same
VOL. CLXXXIII—31
Mb . Just ice Be own , dissenting.
for such, years, since this was a provision applicable to all real estate in his county omitted from the assessment rolls for such years. But the act of 1885 did not proceed upon this basis. It arbitrarily selects railroad properties from all other species of property, and requires their assessment for another three years prior to the three covered by the act of 1883, and thereby, as it seems to me, denies them the equal protection of the laws. Under the act of 1883 all owners of real property omitted from the assessment rolls of the three previous years were put upon an equality, and made debtors to the State for the taxes of those years; but to segregate railroads from all other delinquent property, and tax them for another three years, as is done by the act of 1885, seems to me to open the statutes to the criticism of the court, "wherein it is«said : “ Doubtless it ” (the Fourteenth Amendment) “would prohibit a State from selecting some obnoxious person and casting upon his property the sole burden of taxation, or a burden differing from that cast upon others whose property was similarly situated.”
It appears quite immaterial that under the act of 1883 the property was to be assessed by the county assessors, and in the act of 1885 by the State Comptroller. The wrong done to the railway company is not in the selection of an agent to collect the taxes, but in the selection of a specially odious tax, namely, for antecedent years, and imposing it upon one class of delinquents alone. If, for instance, a license tax, varying in amount, were imposed upon a dozen different occupations, and by another act, subsequently passed, were made retroactive for three years, could the legislature by still another act, made applicable only to those employed in one out of these twelve occupations, make such act retroactive for another three years, without denying to those engaged in that occupation the equal protection of the laws ?
I do not wish to be understood as saying that the State may not impose a specific and even a discriminating tax upon railways, but after the liability to the State of all real property owners has once been established, and all placed upon the same footing, I do not think a particular species of property can e arbitrarily taken and subjected to a discriminating tax for a p. 483series of years, during which, and upon the ground that, the state officers had neglected their duty. If state railway taxes may be made retroactive for three years, and again for another three years, I see no reason why this method of taxation may not be continued indefinitely so long as any property remains from which it may be collected. This kind of discrimination seems to be measurable only by the rapacity of the legislature.
McCHORD v. LOUISVILLE AND NASHVILLE RAILROAD COMPANY.
McCHORD v. LOUISVILLE, HENDERSON AND ST.
LOUIS RAILWAY COMPANY. McCHORD v. CHESAPEAKE AND OHIO RAILWAY
COMPANY.
McCHORD v. SOUTHERN RAILWAY COMPANY IN
KENTUCKY.
McCHORD v. CINCINNATI, NEW ORLEANS AND
TEXAS PACIFIC RAILWAY COMPANY.
app eal s fro m the cir cui t court of the uni ted sta tes fo r th e
DISTRICT OF KENTUCKY.
Nos. 141,142,143,144,145. Argued January 7, 8,1901.—Decided January 6,1902. By the decrees in these cases, the Railroad Commission of the Common-
wealth of Kentucky was enjoined from proceeding to fix rates under a certain act of the General Assembly charged to be unconstitutional, the ground of equity jurisdiction being threatened multiplicity of suits, and irreparable injury. his court, being of opinion that under the Kentucky statutes the duty of en orcing the rates it might fix vested in the Railroad Commission, held
at none of the alleged consequences could be availed of as threatened
Before the rates were fixed at all.
The se are appeals from the final decrees of the Circuit Court 0 e United States for the District of Kentucky, perpetually p. 484enjoining Charles C. McChord and others, railroad commissioners of the State of Kentucky, from doing any of the things required by, or from taking any action whatever against complainants under a certain act of the general assembly of the Commonwealth of Kentucky, approved March 10, 1900, c. 2, which is entitled and reads as follows :
“ An act to prevent railroad companies or corporations owning and operating a line or lines of railroad and its officers, agents, and employés from charging, collecting, or receiving extortionate freight or passenger rates in this Commonwealth, and to further increase and define the duties and powers of the railroad commission in reference thereto, and prescribing the manner of enforcing the provisions of this act and penalties for the violation of its provisions.
“Be it enacted by the General Assembly of the Commonwealth of Kentucky :
“ Sec . 1. When complaint shall be made to the railroad commission accusing any railroad company or corporation of charging, collecting or receiving extortionate freight or passenger rates over its line or lines of railroad in this Commonwealth, or when said commission shall receive information or have reason to believe that such rate or rates are being charged, collected or received, it shall be the duty of said commission to hear and determine the matter as speedily as possible. They shall give the company or corporation complained of not less than ten days’ notice, by letter mailed to an officer or employé of said company or corporation, stating the time and place of the hearing of same ; also the nature of the complaint or matter to be investigated, and shall hear such statements, arguments or evidence offered by the parties as the commission may deem relevant ; and should the commission determine that the company or corporation is, or has been, guilty of extortion, said commission shall make and fix a just and reasonable rate, toll or compensation which said railroad company or corporation may charge, collect or receive for like services thereafter rendered. The rate, toll or compensation so fixed by the commission shall be entered and be an order on the record book o their office and signed by the commission, and a copy thereo p. 485mailed to an officer, agent or employé of the railroad company or corporation affected thereby, and shall be in full force and effect at the expiration of ten days thereafter, and may be revoked or modified by an order likewise entered of record. And should said railroad company or corporation, or any officer, agent or employé thereof charge, collect or receive a greater or higher rate, toll or compensation, for like services thereafter rendered than that made and fixed by said commission, as herein provided, said company or corporation, and said officer, agent or employé shall each be deemed guilty of extortion, and upon conviction, shall be fined for the first offence in any sum not less than five hundred dollars nor more than one thousand dollars, and upon a second conviction, in any sum not less than one thousand dollars nor more than two thousand dollars, and for third and succeeding convictions in any sum not less than two thousand dollars nor more than five thousand dollars.
“Sec . 2. The circuit court of any county into or through which the line or lines of road carrying such passenger or freight, owned or operated by said railroad, and the Franklin circuit court, shall have jurisdiction of the offence against the railroad company or corporation offending, and the circuit court of the county where such offence may be committed by said officer, agent or employé, shall have jurisdiction in all prosecutions against said officer, agent or employé.
“ Sec . 3. Prosecutions under this act shall be by indictment. “ Sec . 4. All prosecutions under this act shall be commenced within two years after the offence shall have been committed.
‘ Sec . 5. In making said investigation said commission may, when deemed necessary, take the depositions of witnesses before an examiner or notary public, whose fees shall be paid by the State, and upon the certificate of the chairman of the commission, approved by the governor, the auditor shall draw his warrant upon the treasurer for its payment.”
Al] the bills sought the same relief, and their averments, excepting those in respect of alleged contracts with the State in re ation to rates set up in the bills of the Louisville and Nashvi e Railroad Company and of the Cincinnati, New Orleans and exas Pacific Railway Company, were in substance the same.
The act of March 10, 1900, was set out in full ; its provisions recapitulated ; and complainants’ view of the legal effect thereof given. The third paragraph was : “ All of your orator’s rates charged, collected or received within the State of Kentucky are just and reasonable and have not been sufficient for many years to give it a fair return upon the reasonable value of its investment, notwithstanding it has at all times operated its property with the strictest economy and in the most skillful manner.”
It was then averred that it was the duty of the railroad commission to see that the laws relating to all railroads, except street, were faithfully executed, and to exercise a general supervision over the railroads of the State ; that its functions were administrative ; that it was not established as a court ; and that under the state constitution it could not be permitted to exercise judicial powers. That all common carriers were subject only to the requirement that their rates should be just and reasonable, and they were in case of controversy entitled to have the judgment of the courts on that question, but that the act referred to singled out railroad corporations and deprived them of any opportunity to have a judicial determination of the reasonableness of their rates when disputed ; substituted the non-judicial determination of the railroad commission ; and subjected them to penalties, there being no infliction of penalties provided as to other common carriers. That if defendants be permitted to proceed under the act, each complainant “ will be compelled to charge the rates fixed by them without any opportunity for a judicial investigation and determination as to their reasonableness, and it will thus be deprived of the lawful use of its property and in substance and effect of its prop* erty itself without due process of law, and will also be denied the equal protection of the laws, in violation of section 1 of article 14 of the amendments to the Constitution of the United States.”
It was further averred that the act was in conflict wit clause 3 of section 8 of article I of the Constitution of the United States, giving Congress the exclusive power to regulate commerce among the States, and with the acts of Congress in that behalf.
The bills then continued:
“And defendants have called for and obtained from your orator a list of rates fixed and charged by it for transportation of freight and passengers over its railroads in the State of Kentucky for the purpose of considering whether or not they shall be altered and reduced in accordance with the terms of said act, and are giving it out in speeches and interviews that they intend to proceed at once under said act, and unless restrained by the order of this court defendants will proceed at once to hear and determine complaints under said act, although the same is in contravention of the Constitution of the United States in all the particulars hereinabove set out, and is therefore null and void, and will proceed thereupon to reduce' your orator’s rates to such as they think your orator should charge, and will thereafter at pleasure modify and still further reduce the rates so fixed, and if your orator does not observe the rates so fixed, no matter how unjustly and unreasonably low, your orator will be subjected to innumerable prosecutions throughout the State of Kentucky for failing to comply with such rates fixed in this unconstitutional manner, and it will be subjected to innumerable suits by consignors and consignees, who will claim the right to ship at said rates so unconstitutionally fixed and to sue for any excess they may be charged over said rates, though rightfully charged, and at the same time all your orator’s officers and agents and servants, though perfectly innocent of any offence and though merely assisting your orator to maintain its constitutional rights, will be indicted, prosecuted, and heavily fined, to the great demoralization of the public service which your orator is bound to render, and so it is, unless said defendants are restrained by the order of this court from proceeding under said act, your orator’s contract rights will be impaired, it will be deprived of its property without due process of law, denied the equal protection of the law, and subjected to great and irreparable wrong and injury and to a vast multiplicity of prosecutions and actions in the courts of said State.”
The cases were disposed of on demurrer.
The constitution of the State of Kentucky provided :
§ 209. Railroad commission—Number—Qualifications— p. 488Powers—Election—Term of office—Removal of.—A commission is hereby established, to be known as ‘ The Railroad Commission,’ which shall be composed of three commissioners. During the session of the general assembly which convenes in December, eighteen hundred and ninety-one, and before the first day of June, eighteen hundred and ninety-two, the governor shall appoint, by and with the advice and consent of the senate, said three commissioners, one from each superior court district as now established, and said appointees shall take their office at the expiration of the terms of the present incumbents. The commissioners so appointed shall continue in office during the term of the present governor, and until their successors are elected and qualified. At the regular election in eighteen hundred and ninety-five, and every four years thereafter, the commissioners shall be elected, one in each superior court district, by the qualified voters thereof, at the same time and for the same term as the governor. No person shall be eligible to said office unless he be, at the time of his election, at least thirty years of age, a citizen of Kentucky two years, and a resident of the district from which he is chosen one year, next preceding his election. Any vacancy in this office shall be filled as provided in section one hundred and fifty-two of this constitution. The general assembly may, from time to time, change said districts so as to equalize the population thereof; and may, if deemed expedient, require that the commissioners be all elected by the qualified voters of the State at large. And if so required, one commissioner shall be from each district. No person in the service of any railroad or common carrier company or corporation, or of any firm or association conducting business as a common carrier, or in anywise pecuniarily interested in such company, corporation, firm or association, or in the railroad business, or as a common carrier, shall hold sue office. The powers and duties of the railroad commissioners shall be regulated by law ; and until otherwise provided by law, the commission so created shall have the same powers and ju risdiction, perform the same duties, be subject to the same reg ulations, and receive the same compensation, as now conferre , prescribed and allowed by law to the existing railroad com p. 489missioners. The general assembly may, for cause, address any of said commissioners out of office by similar proceedings as in the case of judges of the Court of Appeals ; and the general assembly shall enact laws to prevent the nonfeasance and misfeasance in office of said commissioners, and to impose proper penalties therefor.”
“ § 218. Penalty for charging more for short than long haul—Power of commission.—It shall be unlawful for any person or corporation, owning or operating a railroad in this State, or any common carrier, to charge or receive any greater compensation in the aggregate for the transportation of passengers, or of property of like kind, under substantially 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 ; but this shall not be construed as authorizing any common carrier, or person or corporation, owning or operating a railroad in this State, to receive as great compensation for a shorter as for a longer distance: Provided, Ihat upon application to the railroad commission, such common carrier, or person, or corporation owning or operating a railroad in this State, may, in special cases, after investigation by the commission, be authorized to charge less for longer than for shorter distances for the transportation of passengers, or property ; and the commission may, from time to time, prescribe the extent to which such common carrier, or person or corporation, owning or operating a railroad in this State, may be relieved from the operations of this section.”
The following are sections of the General Laws of Kentucky of 1894:
§ 816. Extortion—what is.—If any railroad corporation shall c arge, collect or receive more than a just and reasonable rate o toll or compensation for the transportation of passengers or reight in this State, or for the use of any railroad car upon its rac , or upon any track it has control of, or the right to use in is State, it shall be guilty of extortion.
discrimination—what is.—If any corporation engage in operating a railroad in this State shall, directly or inrect y, 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 a like kind of traffic, it shall be deemed guilty of unjust discrimination.
“ § 818. Preference or advantage forbidden—Rules defining same quantity of freight.—It shall be unlawful for any corporation to make or give any undue or unreasonable preference or advantage to any particular person or locality, or any particular description of traffic, in any respect whatever, in the transportation of a like kind of traffic; or to subject any particular person, company, firm, corporation or locality, or any particular description of traffic, to any undue or unreasonable prejudice or disadvantage. . . .
“ § 819. Penalty in damages for extortion, discrimination, preference—Jurisdiction—Duty of commission—Limitation.—Any railroad corporation that shall be guilty of extortion or unjust discrimination, or of giving to any person or locality, or to any description of traffic, an undue or unreasonable preference or advantage, shall, upon conviction, be fined for the first offence in any sum not less than five hundred dollars nor more than one thousand dollars; and, upon a second conviction, in any sum not less than five hundred dollars nor more than two thousand dollars ; and, upon a third conviction, in any sum not less than two thousand dollars nor more than five thousand dollars. The circuit court of any county into or through which the line of rai - road may run, owned or operated by the corporation allege to be guilty as aforesaid, and the Franklin circuit court, sha have jurisdiction of the offence, which shall be prosecuted by indictment, or by action in the name of the Commonwealt , upon information filed by the board of railroad commissioners; and such railroad corporation shall also be liable in damages to the party aggrieved to the amount of damages sustaine , o-gether with cost of suit and reasonable attorneys’ fees to e fixed by the court. Indictments under this section shall be ma only upon the recommendation or request of the railroad com. mission, filed in the court having jurisdiction of the o ence, p. 491and all prosecutions and actions under this law shall be commenced within two years after the offence shall have been committed, or the cause of action shall have accrued.
“§820. Long and short haul over same road—Penalty—Jurisdiction of courts—Duty of commission.—If any person owning or operating a railroad in this State, or any common carrier, shall charge or receive any greater compensation in the aggregate for the transportation of passengers or property of like kind, under substantially 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, such person shall, for each offence, be guilty of a misdemeanor, and fined not less than one hundred nor more than five hundred dollars, to be recovered by indictment in the Franklin circuit court, or the circuit court of any county into or through which the railroad or common carrier so violating runs or carries on its business. Upon complaint made to the railroad commission that any railroad or common carrier has violated the provisions of this section, it shall be the duty of the commission to investigate the grounds of complaint, and if, after such investigation, the commission deems it proper to exonerate the railroad or common carrier from the operation of the provisions of this section, an order in writing to that effect shall be made by the commission, and a copy thereof delivered to the complainant and the railroad or common carrier, and the same shall be published as a part of the report of the commission; and after such order, the railroad or carrier shall not be prosecuted or fined on account of the complaint made. If the commission, after investigation, fails to exonerate the railroad or carrier from the operation of the provisions of this section, an order in writing to that effect shall be made by the commission, and a copy thereof delivered to the complainant, and the railroad or common carrier, and the same
shall be published as a part of the report of the commission; and after such order, it shall be the duty of the commission to nrnish a statement of the facts, together with a copy of its order, to the grand jury of any county, the circuit court of which has jurisdiction, in order that the railroad company or carrier may be indicted for the offence; and the commission p. 492shall use proper efforts to see that such company or carrier is indicted and prosecuted.
“ § 821. Three commissioners—Duties.—There is established a department in the state government to be known as the railroad commission, which shall be composed of three commissioners, one of whom shall act as chairman, and whose duty it shall be to see that the laws relating to all railroads, except street, are faithfully executed, and to exercise a general supervision over the railroads of the State. Each of said commissioners is authorized to administer oaths, and two of them shall constitute a quorum.”
“ § 826. Rates from foreign points to be examined by commission—Duty of commission.—Said, commission shall examine all through freight rates from points out of this State to points into this State; and whenever they find that a through rate charge into or out of this State is excessive or unreasonable, or discriminating in its nature, they shall call the attention of the railroad officials in this State to the fact, and to urge them' of the propriety of changing such freight. And when such rates are not changed, it shall be the duty of said commission to present the facts to the Interstate Commerce Commission and appeal to it for relief, and they shall receive upon application the services of the attorney general of this State and into the condition, management, and all other matters concerning the business of railroads in this State, so far as the same pertain to the relation of such railroads to the public, and whether such railroad corporations, their officers and employés, comply with the laws of the State ; and whenever it shall come to their knowledge, or they shall have reason to believe, that the laws affecting railroad corporations in their business relations to the public have been violated, they shall prosecute, or cause to be prosecuted, the corporations or persons guilty of such violation.
“ § 827. Examination of officers and employés by commission —Penalty for contempt.—They shall have the power to examine, under oath, any person, or the directors, officers, agents an employés of any railroad corporation doing business in t State, concerning the management of its affairs, and to obtain information pursuant to this law ; and shall have power to issue p. 493subpoenas for the attendance of witnesses, and to administer oaths; and any person who shall neglect or refuse to obey the process of subpoenas issued by said commission, or who, being in attendance, shall refuse to testify, shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be punished for each offence by a fine of not less than fifty dollars nor more than one hundred dollars, or by imprisonment not less than ten nor more than fifty days, or both, in the discretion of the jury.
“ § 828. Penalty for failing to make required reports or obstructing commission—Jurisdiction of courts.—Each officer, agent or employe failing or refusing to make, under oath, any report required by the commission within the time required, or failing or refusing to answer fully, under oath, if required, any inquiry propounded by the commission, or who shall, in any way, hinder or obstruct the commission in the discharge of its duty, shall be guilty of a misdemeanor, and shall be fined for each offence not less than five hundred nor more than one thousand dollars; and it shall be the duty of the commission to prosecute the person offending; and the Franklin circuit court, or the circuit court of any county through which the railroad runs, the officer, agent or employe of which has violated the provisions of this section, shall have jurisdiction of such prosecution ; and it shall be the duty of the Commonwealth’s attorney to prosecute all indictments, actions and proceedings under this law.
‘ § 829. Complaints against companies—Award of Commission-Proceedings upon.—The commission shall hear and determine complaints under sections eight hundred and sixteen, eight hundred and seventeen and eight hundred and eighteen. Such complaints shall be made in writing, and they shall give e company complained of not less than ten days’ notice of the line and place of the hearing of the same. They shall hear
an reduce to writing all the evidence adduced by the parties, an render such award as may be proper. If the award of the commission be not satisfied within ten days after the same is ren ered, the chairman shall file a copy of said award and the cvi ence heard, in the office of the clerk of the circuit court of e county, which, under the Code of Practice, would have p. 494jurisdiction of said controversy, and the clerk of* said court shall enter the same on the docket for trial; and summons shall be issued, as in other cases, against the party against whom the award shall have been rendered, requiring said party to appear in the court, within the time allowed in ordinary cases, and show cause why said award shall not be satisfied. If such party fails to appear, judgment shall be rendered by default, and the same proceedings had thereon as in other ordinary cases. If a trial is demanded the case shall be tried, in all respects, as other ordinary cases in which the same amount is involved, except that no evidence shall be introduced by either party except that heard by the commission, except such as the court shall be satisfied, by sworn testimony, could not have been produced before the commission by the exercise of reasonable diligence; the judgment and proceedings thereon shall be the same as in other ordinary cases.”
J/r. Robert J. Breckenridge, Mr. David W. Baird and Jfr. Lewis McQuown for appellants. Mr. Aaron Kohn and Mr. Zach. Phelps were on their brief.
Mr. Alexander Pope Humphrey, Mr. Walker D. Himes and Mr. James P. Helm for appellees. Mr. Edward Colston, Mr. H. W. Bruce, Mr. Helm Bruce, Mr. Thomas Kennedy Helm, Mr. W. H. Wadsworth and Mr. A. M. T. Cochran were on their brief.
Mr . Chief Justice Full er , after stating the case, delivered the opinion of the court.
By the decrees the Railroad Commission of the Commonwealth of Kentucky was permanently restrained from proceeding under the act of March 10,1900, which was alleged and held to be unconstitutional.
Conceding that the mere fact that a duly enacted law is unconstitutional does not entitle a party to relief by injunction against proceedings in compliance therewith, it is contende that ground of equity jurisdiction existed here in the want o p. 495adequate remedy by the ordinary processes of law for the threatened consequences of the exercise of the power to fix rates in multiplicity of suits and irreparable injury.
It is insisted that, according to the terms of the act, the order of the Commission fixing the rate, toll or compensation which the railroad companies may charge, is self-executing, and that no duty to enforce it is imposed on the Commission; that the companies are shut up by the act, to the final determination of the Commission that they have charged more than a just and reasonable rate, and that on the trial of indictments for failure to observe the rates made by the Commission, the courts cannot entertain any inquiry as to the reasonableness of the rates so fixed because such inquiry is unwarranted by the statute, and because such an investigation would be illusory and worthless. And that even if the question of constitutionality could be raised in defence, yet that if such order be permitted to be entered of record, and notified as provided, the companies, if they do not comply, will be at once exposed to innumerable prosecutions, and to financial ruin by the accumulation of penalties before a judicial decision as to the validity of the statute could be had, if it should then happen that the statute is upheld.
However all this may be, we think it is not to be doubted that these bills cannot be maintained if it appear that the Commission is charged with the duty of enforcing the orders it may enter fixing rates. The objection that before this is done, the Commission is required to exercise judicial functions in determining that the companies have charged or received more than a just and reasonable rate, goes to the validity of the act. The xing of rates is essentially legislative in its character, and the general rule is that legislative action cannot be interfered with by injunction.
It is true that in Stone v. Farmer^ Loan db Trust Company,
U. S. 307, the suit was brought to enjoin the railroad commission of Mississippi from proceeding under the provisions of a cer am statute therein mentioned against a railroad company, u t e question of jurisdiction does not seem to have been raise . The case was considered on its merits and the bill p. 496directed to be dismissed. Mr. Chief Justice Waite, speaking for the court, among other things, said: “As yet the commissioners have done nothing. There is, certainly, much they may do in regulating charges within the State, which will not be in conflict with the Constitution of the United States. It is to be presumed they will always act within the limits of their constitutional authority. It will be time enough to consider what may be done to prevent it when they attempt to go beyond.”
In New Orleans Waterworks Co. v. New Orleans, 164 U. S. 471, 472, the general rule was stated and applied, and Mr. Justice Harlan, who delivered the opinion of the court, said: “ We repeat that when the city council shall pass an ordinance that infringes the rights of the plaintiff, and is unconstitutional and void as impairing the obligation of its contract with the State, it will be time enough for equity to interfere, and, by injunction to prevent the execution of such ordinance. If the ordinances already passed are in derogation of the plaintiff’s contract rights, their enforcement can be prevented by appropriate proceedings instituted directly against the parties who seek to have the benefit of them. This may involve the plaintiff in a multiplicity of actions. But that circumstance cannot justify any such decree as it asks.”
The rule was also applied by Mr. Justice Field in Alpers v. San Francisco, 32 Fed. Rep. 503, where complainant sought an injunction to restrain the passage of an ordinance which he alleged would impair the obligation of a contract he had with the city. Mr. Justice Field said: “This no one will question as applied to the power of the legislature of the State. The suggestion of any such jurisdiction of the court over that body would not be entertained for a moment. The same exemption from judicial interference applies to all legislative bodies, so far as their legislative discretion extends. . . . The courts cannot in the one case forbid the passage of a law nor in the other the passage of a resolution, order or ordinance. If by either body, the legislature or the board of supervisors, an unconstitutional act be passed, its enforcement may be arrested. The parties seeking to execute the invalid act can be reached by t e courts, while the legislative body of the State or of the p. 497municipality, in the exercise of its legislative discretion, is beyond their jurisdiction. The fact that in either case the legislative action threatened may be in disregard of constitutional restraints, and impair the obligation of a contract, as alleged in this case, does not affect the question. It is legislative discretion which is exercised, and that discretion, whether rightfully or wrongfully exercised, is not subject to interference by the judiciary.”
In Southern Pacific Company v. Board of Bailroad Commissioners, 78 Fed. Rep. 236, the law of California provided that the commissioners might “ enforce their decisions and correct abuses through the medium of the courts; ” and, in substance, that after the rate was made by the commission, a copy of the order should be served on the corporation affected thereby, and that twenty days thereafter the rate should take effect. A bill was filed before the twenty days had expired, and Mr. Justice McKenna, then Circuit Judge, held, that it was the duty of the commissioners to enforce the rate, and that an injunction would lie. The railroad commission had made an order reducing the grain rates of the company eight per cent, and had passed a resolution declaring that its general charges were twenty-five per cent too high, and that “ this board proceed at once to adopt a revised schedule of rates in accordance herewith in order that the same may be in force before January 1, 1896.” The court enjoined the enforcement of the eight per cent reduction, which had already been made, but declined to restrain the twenty-five per cent reduction, because no decisive action had been taken.
Reading the various sections of the General Statutes of Kentucky, set forth in the statement preceding this opinion, as in pari materia with the act of March 10, 1900, which should be one since they are parts of one system, having the same gen-
eral objects in view, we think it apparent that the duty devolves on the Commission to enforce the rates it may fix under the latter act. By section 816, extortion was defined to be charging more than a just and reasonable rate. Section 817 defined unjust discrimination, and section 818 forbade undue or unreasonable preference.
ection 819 denounced the same penalties on conviction of vol . clxx xiii —32 p. 498the offence of extortion, or of unjust discrimination, or of unreasonable preference, and provided for prosecution by indictment, or by action in the name of the Commonwealth, on information filed by the board of railroad commissioners ; that the railroad companies should be liable in damages to the party aggrieved ; and also that prosecution by indictment should only be had on the recommendation or request of the railroad commission.
By section 829 the Commission was empowered to hear and determine complaints under sections eight hundred and sixteen, eight hundred and seventeen and eight hundred and eighteen, and to enforce their awards in the courts..
The duty was imposed on the Commission to initiate indictments under section 820 for charging greater compensation, in the aggregate, for a shorter than for a longer haul.
Section 821 made it the duty of the Commission to see that the laws relating to railroads should be faithfully executed, and to exércise a general supervision over the railroads of the State.
So that unless the act of March 10, 1900, operated to repeal the provisions of the prior law, by withdrawing from the Commission the duty of enforcing the rates it might fix, it was its duty so to do, and indictments were to be found at its instance.
Section 816 read thus : “ If any railroad corporation shall charge, collect or receive more than a just and reasonable rate of toll or compensation for the transportation of passengers or freight in this State, or for the use of any railroad car upon its track, or upon any track it has control of, or the right to use in this State, it shall be guilty of extortion.”
In Louisville <& Nashville Railroad Co. n . Commonwealth, 99 Ky. 132, this section was considered. The court held that the section could not be enforced as a penal statute for want o certainty, and said :
“ That this statute leaves uncertain what shall be deeme a 4 just and reasonable rate of toll or compensation,’ cannot e denied, and that different juries might reach different cone u sions, on the same testimony, as to whether or not an offence has been committed, must also be conceded.
“ The criminality of the carriers act, therefore, depends on the jury’s view of the reasonableness of the rate charged ; and this latter depends on many uncertain and complicated elements.
“That the corporation has fixed a rate which it considers will bring it only a fair return for its investment does not alter the nature of the act. Under this statute it is still a crime, though it cannot be known to be such until after an investigation by a jury, and then only in that particular case, as another jury may take a different view, and, holding the rate reasonable, find the same act not to constitute an offence. There is no standard whatever fixed by the statute, or attempted to be fixed, by which the carrier may regulate its conduct; and it seems clear to us to be utterly repugnant to our system of laws to punish a person for an act, the criminality of which depends, not on any standard erected by the law which may be known in advance, but on one erected by a jury. And especially so as that standard must be as variable and uncertain as the views of different juries may suggest, and as to which nothing can be known until after the commission of the crime.”
The court referred to and quoted from Chicago, Burlington &c. Bailroad v. Jones, 149 Illinois, 361, and Chicago <&c. Baitroad v. The People, 11 Illinois, 443, in which it was held under a similar statute that the want of certainty in lack of reference to a standard under its first section was obviated by its eighth section providing for the making by the railroad and warehouse commissioners of schedules of reasonable and maximum rates, which, being done, the Supreme Court of Illinois said, “ there will be a standard of what is fair and reasonable, and the statute can be conformed to and obeyed.”
Such being the state of the law, the act of March 10,1900, was passed.
The mischief to be cured in respect of extortion as defined y section 816 was the want of certainty, and the remedy pro-
V1 ed was the fixing of the rates by the railroad commission.
n so providing, the act, while repeating many of the provisions of section 819, did, indeed, omit reference to an action by waji of information, and to liability in damages, and it also p. 500omitted the provision that indictments should be made only on the recommendation or request of the railroad commission, but it does not, therefore, follow that it was the legislative intention, without any expression thereof in terms, to repeal so important a provision.
Was the provision repealed by necessary implication? “We say by necessary implication, for it is not sufficient to establish that subsequent laws cover some or even all of the cases provided for by it (the prior law) ; for they may be merely affirmative, or cumulative, or auxiliary.” Story, J., Wood v. United States, 16 Pet. 342, 362.
Repeals by implication are not favored, and are only allowed to the extent that repugnancy exists, and in order to give an act not clearly intended as a substitute for an »earlier one, the effect of repealing it, the implication of the intention to do so must necessarily flow from the language used, bearing in mind the necessity and occasion of the law. And where it is plain that the new law is in aid of the purposes of the old law, the latter will not be held to be abrogated except so far as there is palpable inconsistency.
We do not think that it was intended to repeal the provision of section 819 requiring indictments to be found only on the recommendation or request of the Commission, and still less that it was intended to circumscribe in this particular the general duty of the Commission to see that the laws relating to railroads should be faithfully executed.
Dealing, as we are, with the statutes of Kentucky, we are gratified to find these views confirmed by the Court of Appeals of that Commonwealth in Illinois Central Railroad Company v. Commonwealth, decided October 25, 1901, its opinion having been furnished us at the close of the argument, and since reported in 64 S. W. Rep. 975.
In that case the railroad company was indicted under section 820, and fined for charging more for a shorter than a longer haul. The indictment was returned before the railroad com mission had determined whether the company should be ex onerated as provided by that section. The judgment was reversed, and Hobson, J., speaking for the court, said :
“ In the construction of statutes the cardinal aim of the court is to arrive at the intention of the legislature. The court will presume that the legislature meant something by all the provisions of the statute, and will endeavor to give them all a fair effect. If the legislature had intended indictments to be found for each offence, regardless of action by the railroad commission, we see no reason why the section might not have stopped with the first sentence defining the offence and providing for its punishment, for by the next section (821) it is made the duty of the Commission ‘ to see that the laws relating to all railroads, except street, are faithfully executed; ’ and under this provision it would be the duty of the Commission to see to violations of the preceding section. . . . From the section as a whole it is clear that the legislature had in mind providing for the exoneration of the railroad from its provisions in proper cases and exempting the carrier from criminal liability to this extent. It therefore provided for an investigation by the railroad commission, a determination by it whether it deemed it proper to exonerate the railroad and for the enforcement of its decision by indictment by the grand jury in case the railroad was not exonerated. To allow the carrier to be indicted in advance of any action by the railroad commission under this section would be to deprive it of all opportunity for exoneration. The legislature had no such result in mind, but clearly aimed to secure to the carrier a hearing on this question.
“ The long and short haul matter is only another form of undue discrimination and preference, which are provided for by section 819, and indictments under this section can only be had upon the recommendation of the railroad commission. This as been a settled legislative policy, as shown by the act of
pril 6,1882, (see General Statutes, 1021,) which was in force at the time of the adoption of the constitution and the present s atutes. In other words, the legislature has always acted up°h \e i^ea interests of the entire people of the State 8 ou d be looked to in these matters, and that the railroad commission must first determine them before the grand juries of o State should find indictments.”
fourth section of the act of the general assembly of p. 502Kentucky of April 6, 1882, (Acts, 1881, p. 66, c. 790,) entitled “ An act to prevent extortion and discrimination in the transportation of freight and passengers by railroad corporations, and in aid of that purpose to establish a board of railroad commissioners, and define its powers and duties,” set forth in the edition of the Kentucky statutes of 1887, p. 1021, and referred to by the court, provided for the infliction of penalties on railroad companies convicted of extortion or unlawful discrimination, and that the offender should be “ prosecuted by indictment or or by action in the name of the Commonwealth, upon information filed by the board of railroad commissioners ; ” and also that the companies should be liable in damages to the parties aggrieved. The act of March 10,1900, does not appear to have been intended to change the settled legislative policy that indictments should be found on the recommendation of the Commission.
The result of these considerations is that the duty of enforcing its rates rests on the Commission and that none of the consequences alleged to be threatened can be set up as the basis of equity interposition before the rates are fixed at all. Whether after they are determined their enforcement can be restrained is a question not arising for decision on this record, and we are not called on to dispose of other contentions of grave importance, which were pressed in argument, as if now requiring adjudication.
Decrees reversed and cases remanded to the Circuit Court with a direction to sustain the demurrers and dismiss the hills.