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thereon shall be the same as in other ordinary cases."

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, Messrs. David W. Baird, Robert J.
shall be deemed guilty of a misdemeanor, Breckinridge, and Lewis McQuown ar-
and, upon conviction thereof, shall be pun-gued the cause, and, with Messrs. Aaron
ished for each offense by a fine of not less Kohn and Zack Phelps, filed a brief for ap-
than $50 nor more than $100, or by imprison- pellants:
ment not less than ten nor more than fifty
days, or both, in the discretion of the jury.

Jurisdiction of equity is moved only by property rights.

Taylor v. Beckham, 178 U. S. 548, 44 L. 1187, 20 Sup. Ct. Rep. 890; Re Sawyer, 124 U. S. 200, 31 L. ed. 402, 8 Sup. Ct. Rep. 482.

execution

A suit against a state officer to enjoin the execution of a state law, when he is not specifically charged with the thereof other than by virtue of a general duty, is a suit against the state.

Fitts v. McGhee, 172 U. S. 516, 43 L. ed. 535, 19 Sup. Ct. Rep. 269; Re Ayers, 123 U. S. 443, 31 L. ed. 216, 8 Sup. Ct. Rep. 164.

The making of a rate is a legislative func

tion.

Interstate Commerce Commission v. Cincinnati, N. O. & T. P. R. Co. 167 U. S. 494, 42 L. ed. 251, 17 Sup. Ct. Rep. 896; InterCommerce state Commission v. Alabama

828. Penalty for failing to make re quired reports or obstructing commission-ed. Jurisdiction of courts.-Each officer, agent, 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 its duty, shall be guilty of a misdemeanor, and shall be fined for each offense not less than $500 nor more than $1,000; 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 employee of which has violated the provisions of this section, shall 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 18 Sup. Ct. Rep. 45; Chicago & G. T. R. attorney to prosecute all indictments, ac- Co. v. Wellman, 143 U. S. 339, 36 L. ed. tions, and proceedings under this law. 176, 12 Sup. Ct. Rep. 400; Chicago, M. "S$29. 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 §§ 816, 817, 818. Such T. Co. 116 U. S. 307, 29 L. ed. 636, 6 Sup. complaints shall be made in writing, and they shall give the company complained of not less than ten days' notice of the time and place of the hearing of the same. They shall hear and reduce to writing all the evidence adduced by the parties, and render such award as may be proper. If the award

of the commission be not satisfied within ten

Ct. Rep. 334, 388, 1191; Reagan v. Farmers' Loan & T. Co. 154 U. S. 362, 38 L. ed. 1014, 1047; Smyth v. Ames, 169 U. S. 466, 42 L. 4 Inters. Com. Rep. 560, 14 Sup. Ct. Rep. ed. 819, 18 Sup. Ct. Rep. 418.

There is no distinction between the ex

ercise 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 v. Farmers' Loan & T. Co. 154 U. S. 362, 38 L. ed. 1014, 4 Inters. Com. Rep. 560, 14 Sup. Ct. Rep. 1047; St. Louis & §. F. R. Co. v. Gill, 156 U. S. 664, 39 L. ed. 567, 15 Sup. Ct. Rep. 484; Chicago, M. & St. P. R. Co. v. 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. 19 Sup. Ct. Rep. 565. Co. v. Smith, 173 U. S. 684, 43 L. ed. 858,

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 the circuit court of the county which, under the Code of Practice, would have juris[494]diction 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 Johnson v. Hitchcock, 1 Kan. 178, 81 Am. Cooley, Const. Lim. 55, 153; State ex rel. ordinary cases in which the same amount is Dec. 503; State ex rel. Anderson v. Boone involved, except that no evidence shall be County Ct. 50 Mo. 317, 11 Am. Rep. 415; introduced by either party except that Patterson v. Barlow, 60 Pa. 54; Works, heard by the commission, except such as the Courts and their Jurisdiction, 183, 186; court shall be satisfied, by sworn testimony, United States ex rel. Goodrich v. Guthrie, could not have been produced before the 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:

Injunction does not lie against the exercise of a legislative function.

Marbury v. Madison, 1 Cranch, 137, 2 L. ed. | C. A. 625, 92 Fed. 735: Southern P. Co. v.

60; Mississippi v. Johnson, 4 Wall. 475, 18 L. ed. 437.

Injunction does not lie against the making of a rate, or against a commission before the rate is made.

Railroad Comrs. 78 Fed. 236; Ryan v. Williams, 100 Fed. 172; Erie R. Co. v. Erie & W. Valley R. Co. 100 Fed. 808.

After the Kentucky commission shall have made a rate, the question of the reasonableness of that rate or its constitutionality will become a pure question of law.

South Ottawa v. Perkins, 94 U. S. 260, 24 L. ed. 154; Post v. Kendall County, 105 U. S. 667, 26 L. ed. 1204; Gardner v. The Collector, 6 Wall. 499, sub nom. Gardner v. Barney, 18 L. ed. 890; Wilkes County v. Coler, 180 U. S. 506, 45 L. ed. 642, 21 Sup. Ct. Rep. 458; 1 Thompson, Trials, § 1053: Cooley, Const. Lim. 6th ed. 162, 163; 19 Am. & Eng. Enc. Law, pp. 634, 639, 645; Lyons v. Woods, 153 U. S. 663, 38 L. ed.

Stone v. Farmers' Loan & T. Co. 116 U. S. 307, 29 L. ed. 636, 6 Sup. Ct. Rep. 334, 388, 1191; Spring Valley Waterworks v. Schottler, 110 U. S. 347, 28 L. ed. 173, 4 Sup. Ct. Rep. 48; Lake Shore & M. S. R. Co. v. Smith, 173 U. S. 684, 43 L. ed. 858, 19 Sup. Ct. Rep. 565; Reagan v. Farmers' Loan & T. Co. 154 U. S. 367, 38 L. ed. 1016, 4 Inters. Com. Rep. 560, 14 Sup. Ct. Rep. 1047; Smyth v. Ames, 169 U. S. 466, 42 L. ed. 819, 18 Sup. Ct. Rep. 418, 171 U. S. 361, 43 L. ed. 197, 18 Sup. Ct. Rep. 888, 4 Inters. Com. Rep. 835, 64 Fed. 165; Hig-859, 14 Sup. Ct. Rep. 959; Nesbit v. People, ginson v. Chicago, B. & Q. R. Co. 100 Fed. 19 Colo. 450, 36 Pac. 224; State v. Searcy, 235, 102 Fed. 197; Chicago, M. & St. P. R. 39 Mo. App. 393; Comstock v. Tracey, 46 Co. v. Minnesota, 134 U. S. 418, 33 L. ed. Fed. 170; Creager v. Hooper, 83 Md. 504, 35 970, 3 Inters. Com. Rep. 209, 10 Sup. Ct. Atl. 161; Jones v. United States, 137 U. S. Rep. 462, 702; San Diego Land & Town Co. 216, 34 L. ed. 697, 11 Sup. Ct. Rep. 80; v. National City, 174 U. S. 739, 43 L. ed. State v. Wagner, 61 Me. 178; Gard v. Cal1154, 19 Sup. Ct. Rep. 804; Williams v. lard, 6 Maule & S. 69: Illinois C. R. Co. v. Mississippi, 170 U. S. 213, 42 L. ed. 1012, Whittemore, 43 Ill. 420, 92 Am. Dec. 138; 18 Sup. Ct. Rep. 583; Trammell v. Dins- South Florida R. Co. v. Rhodes, 25 Fla. 40, more, 42 C. C. A. 623, 102 Fed. 800; South-3 L. R. A. 733, 5 So. 633; 1 Elliott, Railern P. Co. v. Railroad Comrs. 78 Fed. 236, 87 Fed. 21; Western U. Teleg. Co. v. Myatt, 98 Fed. 335; State ex rel. Godard v. John- Messrs. Walker D. Hines, James P. son, 61 Kan. 803, 49 L. R. A. 662, 60 Pac. Helm, and Alexander Pope Humphrey 1068; Tilley v. Savannah, F. & W. R. Co. argued the cause, and, with Messrs. Edward 4 Woods, 446, 5 Fed. 658; Storrs v. Pensa-Colston, W. H. Wadsworth, and A. M. J. cola & A. R. Co. 29 Fla. 617, 11 So. 227; Cochran, filed a brief for appellees: Chicago, B. & Q. R. Co. v. Jones, 149 Ill. A court of equity has jurisdiction of these 378, 24 L. R. A. 141, 4 Inters. Com. Rep.actions. 683, 37 N. E. 247: Louisville & N. R. Co. Union P. R. Co. v. Cheyenne, 113 U. S. v. Railroad Commission. 19 Fed. 679. 516, sub nom. Union P. R. Co. v. Ryan, 28 Messrs. David W. Baird and Lewis L. ed. 1098, 5 Sup. Ct. Rep. 601: Smyth v. McQuown also argued the cause on rear-Ames, 169 U. S. 516, 42 L. ed. 838, 18 Sup. gument, and, with Messrs. Robert J. Breck- Ct. Rep. 418; Watson V. Sutherland, 5 inridge and Aaron Kohn, filed an additional brief for appellants:

The rate fixed by the commission is not a judgment establishing guilt and inflicting penalties, but is simply a law establishing rates, made after full and satisfactory in vestigation.

Southern P. Co. v. Railroad Comrs. 78 Fed. 260; Chicago, M. & St. P. R. Co. v. Minnesota, 134 U. S. 418, 33 L. ed. 970, 3 Inters. Com. Rep. 209, 10 Sup. Ct. Rep. 462, 702.

The action of the commission being, in law, the act of the legislature by deputation merely, an injunction will not be granted to restrain the exercise of the function to make rates, because this would be an interference with the legislative power of the state.

New Orleans Waterworks Co. v. New Orleans, 164 U. S. 471, 41 L. ed. 518, 17 Sup. Ct. Rep. 161: Alpers v. San Francisco, 12 Sawy. 631, 32 Fed. 503.

The Kentucky commission has the duty to enforce the rate after it has made it.

Louisville & N. R. Co. v. Com. 99 Ky. 132, 33 L. R. A. 209, 35 S. W. 129; Southern P. Co. v. Railroad Comrs. 78 Fed. 236.

Injunction does not lie on the ground of mere fears.

Lake Erie & W. R. Co. v. Fremont, 34 C.

roads, § 202; 2 Wood, Railroads, § 297, p. 1198.

Wall. 74, 18 L. ed. 580: Louisville & N. R. Co. v. Railroad Commission, 19 Fed. 679; Stone v. Farmers' Loan & 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. 1047; Chicago & N. W. R. Co. v. Dey, 1 L. R. A. 744. 2 Inters. Com. Rep. 325, 35 Fed. 882; Clyde v. Richmond & D. R. Co. 57 Fed. 436; Southern P. Co. v. Railroad Comrs. 78 Fed. 238: Georgia R. & Bkg. Co. v. Smith, 128 U. S. 177, 32 L. ed. 377, 9 Sup. Ct. Rep. 47; Cotting v. Kansas City Stock-Yards Co. 79 Fed. 680; Bank of Kentucky v. Stone, 88 Fed. 390.

Messrs. W. H. Wadsworth and A. M. J. Cochran filed a separate brief for appellees: A railroad commission may be enjoined from fixing rates where it has no power to make such rates.

Stone v. Farmers' Loan & T. Co. 116 U. S. 307, 29 L. ed. 636, 6 Sup. Ct. Rep. 334, 388, 1191.

A suit against a railroad commission to prevent an enforcement of rates fixed because unreasonable is not a suit against the state.

Reagan v. Farmers' Loan & T. Co. 154 U. S. 362, 38 L. ed. 1014, 4 Inters. Com. Rep.

560, 14 Sup. Ct Rep. 1047; Smyth v. Ames, 169 U. S. 466, 42 L. ed. 819, 18 Sup. Ct. Rep. 418.

provisions of a certain statute therein mentioned against a railroad company, but the question of jurisdiction does not seem to Messrs. James P. Helm, Helm Bruce, have been raised. The case was considered Thomas Kennedy Helm, H. W. Bruce, and on its merits, and the bill directed *to be dis-[496] Walker D. Hines, also filed a brief for ap-missed. Mr. Chief Justice Waite, speaking pellee, the Louisville & N. R. Co. for the court, among other things, said: "As yet the commissioners have done noth

494] Mr. Chief Justice Fuller delivered the ing. There is, certainly, much they may do 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 contended that ground of equity jurisdiction existed here in the want of ade495 quate 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.

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. 482, 41 L. ed. 518 524, 17 Sup. Ct. Rep. 161, 165, 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 unconIt is insisted that according to the terms stitutional and void as impairing the obligaof the act the order of the commission fixing tion of its contract with the state, it will be the rate, toll, or compensation which the time enough for equity to interfere, and by railroad companies may charge is self-exe-injunction prevent the execution of such cuting, and that no duty to enforce it is im- ordinance. If the ordinances already passed posed on the commission; that the compa- are in derogation of the plaintiff's contract nies are shut up by the act to the final de- rights, their enforcement can be prevented termination of the commission that they by appropriate proceedings instituted directhave charged more than a just and reasona-ly against the parties who seek to have the ble 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 unwarrant- The rule was also applied by Mr. Justice ed by the statute, and because such an in- Field in Alpers v. San Francisco, 32 Fed. vestigation would be illusory and worthless; 503, where complainant sought an injuncand that, even if the question of constitution to restrain the passage of an ordinance tionality could be raised in defense, 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.

benefit of them. This may involve the plaintiff in a multiplicity of actions. But that circumstance cannot justify any such decree as it asks."

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. However all this may be, we think it is The courts cannot in the one case forbid the not to be doubted that these bills cannot be passage of a law nor in the other the pasmaintained if it appear that the commis-sage of a resolution, order, or ordinance. sion is charged with the duty of enforcing If by either body, the legislature or the the orders it may enter fixing rates. The board of supervisors, an unconstitutional 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 fixing 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 Railroad Commission Cases, 116 U. S. 307, sub nom. Stone v. Farmers' Loan & T. Co. 29 L. ed. 636, 6 Sup. Ct. Rep. 334, 388, 1191, the suit was brought to enjoin the railroad commission of Mississippi from proceeding under the

act be passed its enforcement may be ar-
rested. The parties seeking to execute the
invalid act can be reached by the courts.
while the legislative body of the state or of
the municipality, in the exercise of its leg-[497]
islative discretion, is beyond their jurisdic-
tion. The fact that in either case the legis-
lative 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 leg-
islative discretion which is exercised, and
that discretion, whether rightfully or wrong-
fully exercised, is not subject to interference
by the judiciary.”

In Southern Pac. Co. v. California Railroad Comrs. 78 Fed. 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 8 per cent, and had passed a resolution declaring that its general charges were 25 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 8 per cent reduction, which had already been made, but declined to restrain the 25 per cent reduction, because no decisive action had been taken.

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 & N. R. Co. v. Com. 99 Ky. 132, 33 L. R. A. 209, 35 S. W. 129, this section was considered. The court held that the section could not be enforced as a penal statute for want of certainty, and said:

"That this statute leaves uncertain what shall be deemed a 'just and reasonable rate of toll or compensation' cannot be denied, and that different juries might reach different conclusions, on the same testimony, as to whether or not an offense has been committed, must also be conceded.

*"The criminality of the carrier's act, [499] 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 offense. There is no standard whatever fixed by the statute, or attempted to be fixed, by which the car

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 done, since they are parts of one system, having the same general 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 § 816 extortion was defined to be charging more than a just and reasonable rate. Section 817 defined unjust discrimination, and § 818 forbade undue or unreasonable pref-rier may regulate its conduct; and it seems

erence.

Section 819 denounced the same penalties [498]on conviction of the offense 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 829 the commission was empowered to hear and determine complaints under §§ 816, 817, and 818, and to enforce their awards in the courts.

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, B. & Q. R. Co. v. Jones, 149 Ill. 361, 24 L. R. A. 141, 4 Inters. Com. Rep. 683, 37 N. E. 247; and Chicago, B. & Q. R. Co. v. People, 77 Ill. 443, in which it was held under a similar statute that the want of certainty in lack of reference to a standard under its 1st section was obviated by its 8th section providing for the making by the railroad and warehouse commissioners of schedules of reasonable and maximum Section 821 made it the duty of the com- rates, which, being done, the supreme court mission to see that the laws relating to rail- of Illinois said: "There will be a standard roads should be faithfully executed, and to of what is fair and reasonable, and the statexercise a general supervision over the rail-ute can be conformed to and obeyed." roads of the state.

The duty was imposed on the commission to initiate indictments under § 820 for charging greater compensation, in the aggregate, for a shorter than for a longer haul.

Such being the state of the law, the act

So that unless the act of March 10, 1900, of March 10, 1900, was passed. operated to repeal the provisions of the The mischief to be cured in respect of exprior law, by withdrawing from the com-tortion, as defined by § 816, was the want mission the duty of enforcing the rates it' of certainty, and the remedy provided was

the fixing of the rates by the railroad com- | § 821) it is made the duty of the commismission.

In so providing, the act, while repeating many of the provisions of § 819, did, indeed, omit reference to an action by way of information and to liability in damages, and it [500] also *omitted 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.

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sion '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 deWas the provision repealed by necessary termination by it whether it deemed it propimplication? "We say by necessary implier to exonerate the railroad, and for the encation, for it is not sufficient to establish forcement of its decision by indictment by that subsequent laws cover some or even all the grand jury in case the railroad was not of the cases provided for by it [the prior exonerated. To allow the carrier to be inlaw]; for they may be merely affirmative, or dicted in advance of any action by the railcumulative, or auxiliary." Story, J., Wood road commission under this section would v. United States, 16 Pet. 362, 10 L. ed. 995. be to deprive it of all opportunity for exRepeals by implication are not favored, oneration. The legislature had no such reand are only allowed to the extent that result in mind, but clearly aimed to secure to pugnancy 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 § 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 C. R. Co. v. Com. decided October 25, 1901, its opinion having been furnished us at the close of the argument, and since reported in 23 Ky. L. Rep. 1159, 64 S. W. 975.

In that case the railroad company was indicted under § 820, and fined for charging more for a shorter than a longer haul. The indictment was returned before the railroad commission had determined whether the company should be exonerated as provided by that section. The judgment was reversed, and Hobson, J., speaking for the court,

said: [501]*"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 offense, regardless of action by the railroad commission, we see no reason why the section might not have stopped with the first sentence defining the offense and providing for its punishment, for by the next section (Ky. Stat.

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 § 819, and indictinents under this section can only be had upon the recommendation of the railroad commission. This has been a settled legislative policy, as shown by the act of April 6, 1882 (see Gen. Stat. 1021), which was in force at the time of the adoption of the Constitution and the present statutes. In other words, the legislature has always acted upon the idea that the interests of the entire people of the state should be looked to in these matters, and that the railroad commission must first determine them before the grand juries of the state should find indictments."

The 4th section of the act of the general assembly of Kentucky of April 6, 1882[502] (Acts 1881, p. 66, chap. 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 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

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