CHARLES C. MCCHORD, James F. Dempsey, and John C. Wood, Appts., v. LOUISVILLE & NASHVILLE RAILROAD COMPANY. CHARLES C. MCCHORD, James F. Dempsey, and John C. Wood, Appts., 0. LOUISVILLE, HENDERSON, & ST. LOUIS RAILWAY COMPANY. Statement by Mr. Chief Justice Fuller: *These are appeals from the final decrees [483) of the circuit court of the United States for the district of Kentucky, perpetually CHARLES C. MCCHORD, James F. Demp- enjoining "Charles C. McChord and others, [484] sey, and John C. Wood, Appts, v. railroad commissioners of the state of Kentucky, from doing any of the things re CHESAPEAKE & OHIO RAILWAY COM- quired by, or from taking any action what PANY. (See S. C. Reporter's ed. 483-502.) Railroad commission-amendment of statute question of repeal injunction against action by commission. 1. No repeal of the provisions of Ky. Gen. Stat. 1894, $ 819, that prosecution by indictment of railroad companies for charging unlawful rates shall be had only on recommendation or request of the railroad commission, and also for an action in the name of the commonwealth on information filed by the board of railroad commissioners, was effected by Ky. act March 10, 1900, providing for the fixing of rates by such commission, although, while repeating many of the provisions of the section, it omitted these provisions. 2. An injunction against action by the Kentucky railroad conmission cannot be had on suit of railroad companies before any rates are fixed by the commission, as the duty of enforcing its rates rests on the commission, and the remedy of the railroad companies by the ordinary processes of law is adequate. NOTE. On repeal of prior statutes-see notes to Titusville Iron Works v. Keystone Oil Co. (Pa.) 1 L. R. A. 362; Evansville v. State en rel. Blend (Ind.) 4 L. R. A. 93; State v. Massey (N. C.) 4 L. R. A. 308; United States v. 356 Caddies of Tobacco, 20 L. ed. U. S. 235, and Hart & H. Mfg. Co. v. Anchor Electric Co. 38 As to injunction to restrain a threatened wrong-see note to Gardner v. Stroever (Cal.) С. С. А. 136. 6 L. R. A. 90. 183 U. S. U. S., Book 46. ever against complainants under, a certain act of the general assembly of the commonwealth of Kentucky, approved March 10, 1900, which is entitled and reads as fol lows: "An Act to Prevent Railroad Companies or Corporations Owning and Operating a Line or Lines of Railroad, and its Officers, Agents, and Employees, 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 Violations 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 employee 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 of their office, and signed by the commission, and a copy thereof *mailed to an officer, agent, or employee of [485] the railroad company or corporation affected thereby, and shall be in full force and effect at the expiration of ten days there19 289 after, and may be revoked or modified by tion it could not be permitted to exercise an order likewise entered of record. And judicial powers. That all common carriers should said railroad company or corporation, or any officer, agent, or employee 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 employee shall each be deemed guilty of extortion, and upon conviction shall be fined for the first of fense in any sum not less than $500 nor more than $1,000, and upon a second conviction, in any sum not less than $1,000 nor more than $2,000, and for third and succeeding convictions, in any sum not less than $2,000 nor more than $5,000. "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 offense against the railroad company or corporation offending, and the circuit court of the county where such offense may be committed by said officer, agent, or employee shall have jurisdiction in all prosecutions against said officer, agent, or employee. "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 offense 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 fee 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." All the bills sought the same relief, and their averments, excepting those in respect of alleged contracts with the state in relation to rates set up in the bills of the Louisville & Nashville Railroad Company and of the Cincinnati, New Orleans, & Texas Pacific Railway Company, were in substance the same. 1486] *The act of March 10,1900, was set out in full, its provisions recapitulated, and complainants' view of the legal effect thereof given. The 3d 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 skilful 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 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 nonjudicial 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 property itself, without due process of law, and will also be denied the equal protection of the laws, in violation of § 1 of article 14 of the Amendments to the Constitution of the United States." It was further averred that the act was in conflict with clause 3 of $ 8 of article 1 of the Constitution of the United States, giving Congress the exclusive power to regu late commerce among the states, and with the acts of Congress in that behalf. *The bills then continued: [487] "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 the state; that its functions were adminis- and servants, though perfectly innocent of trative; that it was not established as a any offense, and though merely assisting court; and that under the state Constitu- your orator to maintain its constitutional rights, will be indicted, prosecuted, and The cases were disposed of on demurrer. provided: [488]Qualifications ceedings 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 commissioner 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 di"$209. Railroad commission-Number- rection, the shorter being included within *Powers-Election-Term the longer distance; but this shall not be of office-Removal of. A commission is construed as authorizing any common carhereby established, to be known as 'The rier, or person, or corporation owning or Railroad Commission,' which shall be composed of three commissioners. During the session of the general assembly which convenes in December, 1891, and before the 1st day of June, 1892, 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 1895, 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 § 152 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 And if by the qualified voters of the state at large. 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 peculiarly interested in such company, corporation, firm, or association, or in the railroad business, or as a common carrier, shall hold such 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 jurisdiction, perform the same duties, be subject to the same regulations, and receive the same compensation as now conferred, prescribed, and allowed by law to the exist[489]ing railroad commissioners. The general operating a railroad in this state, to receive as great compensation for a shorter as for a longer distance; provided, That 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 charge, collect, or receive more than a just and reasonable rate of toll or compensation for the transporta tion 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. "§ 817. Discrimination-What is. If any corporation engaged in operating a railroad in this state shall, directly or indirectly, by any special rate, rebate, drawback, or other device, "charge, demand, collect, or receive [490] 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 assembly may, for cause, address any of said person, company, firm, corporation, or locommissioners out of office by similar pro-cality, or any particular description of traf fic, to any undue or unreasonable prejudice | not be prosecuted or fined on account of the 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 offense in any sum not less than $500 nor more than $1,000; and upon a second conviction, in any sum not less than $500 nor more than $2,000; and upon a third conviction, in any sum not less than $2,000 nor more than $5,000. The circuit court of any county into or through which the line of railroad may run, owned or operated by the corporation alleged to be guilty as aforesaid, and the Franklin circuit court, shall have jurisdiction of the offense, which shall be prosecuted by indictment or by action in the name of the commonwealth, upon information filed by the board of railroad commissioners; and such railroad corporation shall also be liable in damages to the pa amount of damages sustained, together cost of suit and reasonable attorneys' fees to be fixed by the court. Indictments under this section shall be made only upon the recommendation or request of the railroad commission, filed in the court having jurisdicM01]tion of the offense; *and all prosecutions and actions under this law shall be commenced within two years after the offense shall have been committed or the cause of action shall have accrued. the party aggrieved to the with "§ 820. Long and short haul over same road-Penalty-Jurisdiction of courtsDuty 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 offense be guilty of a misdemeanor, and fined not less than $100 nor more than $500, 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 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 furnish 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 offense; and the commission *shall [492] 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, to exercise a general supervision vision over the railroads of the state. Each of said commissioners is authorized to administer oaths, and two of them shall constitute a quorum." and "§ 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 charged into or out of this state is excessive or unreasonable or discriminating in its na ture, 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 rates. 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 gen. eral of this state and into the condition, management, and all other matters concerring 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 employees, comply with the laws of the state; and whenever it shall come to their knowledge or they shall have reason to be lieve 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 violations. "§ 827. Examination of officers and employees by commission-Penalty for contempt. They shall have the power to examine under oath any person, or the directors, officers, agents, and employees of any railroad corporation doing business in this state, concerning the management of its affairs, and to obtain information pursuant to pursuant this law; and shall have power to issue *sub-[493] pœnas for the attendance of witnesses, and to administer oaths; and any person who shall neglect or refuse to obey the process of subpœnas 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 offense by a fine of not less than $50 nor more than $100, or by imprisonment not less than ten nor more than fifty days, or both, in the discretion of the jury. thereon shall be the same as in other ordinary cases." Messrs. David W. Baird, Robert J. Breckinridge, and Lewis McQuown argued the cause, and, with Messrs. Aaron Kohn and Zack Phelps, filed a brief for appellants: Jurisdiction of equity is moved only by property rights. 482. A suit against a state officer to enjoin the execution of a state law, when he is not specifically charged with the execution thereof other than by virtue of a general duty, is a suit against the state. "§828. Penalty for failing to make re- Taylor v. Beckham, 178 U. S. 548, 44 L. quired reports or obstructing commission- ed. 1187, 20 Sup. Ct. Rep. 890; Re Sawyer, Jurisdiction of courts. Each officer, agent, 124 U. S. 200, 31 L. ed. 402, 8 Sup. Ct. Rep. or employee 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 Fitts v. McGhee, 172 U. S. 516, 43 L. ed. its duty, shall be guilty of a misdemeanor, 535, 19 Sup. Ct. Rep. 269; Re Ayers, 123 and shall be fined for each offense not less U. S. 443, 31 L. ed. 216, 8 Sup. Ct. Rep. than $500 nor more than $1,000; and it 164. shall be the duty of the commission to prosecute the person offending; and the Franklin tion. circuit court, or the circuit court of any county through which the railroad runs, the cinnati, N. O. & T. P. R. Co. 167 U. S. 494, officer, agent, or employee of which has vio- 42 L. ed. 251, 17 Sup. Ct. Rep. 896; Interlated the provisions of this section, shall state Commerce Commission v. Alabama have jurisdiction of such prosecution; and Midland R. Co. 168 U. S. 144, 42 L. ed. 414, it shall be the duty of the commonwealth's attorney to prosecute all indictments, actions, and proceedings under this law. The making of a rate is a legislative func Interstate Commerce Commission v. Cin 18 Sup. Ct. Rep. 45; Chicago & G. T. R. Co. v. Wellman, 143 U. S. 339, 36 L. ed. 176, 12 Sup. Ct. Rep. 400; Chicago, M. & "§ 829. Complaints against companies St. P. R. Co. v. Minnesota, 134 U. S. 418, 33 Award of commission-Proceedings upon.L. ed. 970, 3 Inters. Com. Rep. 209, 10 Sup. The commission shall hear and determine Ct. Rep. 462, 702; Stone v. Farmers' Loan complaints under $8 816, 817, 818. Such & T. Co. 116 U. S. 307, 29 L. ed. 636, 6 Sup. Ct. Rep. 334, 388, 1191; Reagan v. Farmers' Loan & T. Co. 154 U. S. 362, 38 L. ed. 1014, 4 Inters. Com. Rep. 560, 14 Sup. Ct. Rep. v. Ames, 169 U. S. 466, 42 L. 1047; Smyth They of the commission be not satisfied within ten days after the same is rendered, the chairman shall file a copy of said award and the evidence heard in the office of the clerk of ed. 819, 18 Sup. Ct. Rep. 418. There is no distinction between the exercise of the function directly by the legislature or mediately through a commission. Covington & L. Turnp. Road Co. v. Sandford, 164 U. S. 580, 41 L. ed. 560, 17 Sup. Ct. Rep. 198; Smyth v. Ames, 169 U. S. 466, 42 L. ed. 819, 18 Sup. Ct. Rep. 418; Reagan the circuit court of the county which, un- v. Farmers' Loan & T. Co. 154 U. S. 362, 38 der the Code of Practice, would have juris- L. ed. 1014, 4 Inters. Com. Rep. 560, 14 Sup. [494]diction of said controversy, and the clerk of Ct. Rep. 1047; St. Louis & Š. F. R. Co. v. said court shall enter the same on the dock- Gill, 156 U. S. 664, 39 L. ed. 567, 15 Sup. et for trial; and summons shall be issued, Ct. Rep. 484; Chicago, M. & St. P. R. Co. v. 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 Minnesota, 134 U. S. 418, 33 L. ed. 970, 3 Inters. Com. Rep. 209, 10 Sup. Ct. Rep. 462, 702; Budd v. New York, 143 U. S. 517, 36 L. ed. 247, 4 Inters. Com. Rep. 45, 12 Sup. Ct. Rep. 468; Lake Shore & M. S. R. Co. v. Smith, 173 U. S. 684, 43 L. ed. 858, be satisfied. If such party fails to appear, 19 Sup. Ct. Rep. 565. judgment shall be rendered by default, and the same proceedings had thereon as in oth er 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 Injunction does not lie against the exercise of a legislative function. Cooley, Const. Lim. 55, 153; State ex rel. Johnson v. Hitchcock, 1 Kan. 178, 81 Am. Dec. 503; State ex rel. Anderson v. Boone County Ct. 50 Mo. 317, 11 Am. Rep. 415; Patterson v. Barlow, 60 Pa. 54; Works, Courts and their Jurisdiction, 183, 186; United States ex rel. Goodrich v. Guthrie, 17 How. 284, 15 L. ed. 102; Brashear v. commission by the exercise of reasonable Mason, 6 How. 92, 12 L. ed. 357; Decatur diligence; the judgment and proceedings v. Paulding, 14 Pet. 497, 10 L. ed. 559: |