another might acquit an accused who had demanded and received at the rate of 6 per cent., rendering the statute, in its practical working, as unequal and unjust in its operation as it is indefinite in its terms.' The Supreme Court of the United States, in Railroad Commission Cases 116 U. S. 336, 6 Sup. Ct. 334. 348, 388, 391, 1191, refers to this Tennessee case, and substantially approves it by distinguishing the case then before the court from the Tennessee case. This case is also used to support the text in 8 Am. & Eng. Enc. Law, p. 935, where it is said: 'Although a statute has been held to be unconstitutional which left it to the jury to determine whether or not a charge was excessive and unreasonable, in order to ascertain whether a penalty is recoverable, yet where the action is merely for recovery of the illegal excess over reasonable rates, this is a question which is a proper one for a jury.' Mr. Justice Brewer, in the case of Railway Co. v. Dey, 35 Fed. 866, had under consideration the provision of a statute similar to the one we have before us, and, while the statute was upheld, it was only because there was a schedule of rates provided in the act which rendered the test of reasonableness definite and certain. The learned judge there said: 'Now the contention of complainants is that the substance of these provisions is that, if a railroad company charges an unreasonable rate, it shall be deemed a criminal, and punished by fine, and that such a statute is too indefinite and uncertain, no man being able to tell in advance what in fact is, or what any jury will find to be, a reasonable charge. If this were the construction to be placed upon this act as a whole, it would certainly be obnoxious to complainant's criticisms, for no penal law can be sustained unless its mandates are so clearly expressed that any ordinary person can determine in advance what he may and what he may not do under it. In Dwar. St. 652, it is laid down that it is impossible to dissent from the doctrine of Lord Coke that ‘acts of Parliament ought to be plainly and clearly, and not cunningly and darkly, penned, especially in legal matters.' See also U. S. v. Sharp, Pet., C. C. 122. Fed. Cas. 16, 264; The Enterprise, i Paine, 34, Fed. Cas. No. 4, 499; Bish. St. Crimes 41; Lieb. Herm. 156. And the learned judge concludes there is very little difference between a provision of the Chinese Code, which prescribed a penalty against any one who should be guilty of 'improper conduct,' and a statute which makes it a criminal offense to charge more than a reasonable rate. The same learned judge discussing the kindred subject of unreasonable difference in rates in Tozar v. U. S. 52 Fed. 917, said: 'But, in order to constitute a crime, the act must be one which the party is able to know in advance whether it is criminal or not. The criminality of an act cannot depend upon whether a jury may think it reasonable or unreasonable. There must be some definiteness and certainty. When we look on the other side of the question, we find the contention of the State supported by neither reason or authority. No case can be found, we believe, where such indefinite legislation has been upheld by any court when a crime is sought to be imputed to the accused. In the case from 77 Ill. the court said: 'That section, by itself, makes the offense to consist in taking more than a fair and reasonable rate of toll and compensation, without reference to any standard of what is fair and reasonable. In such case it may be seen different persons have different opinions as to what is a fair and reasonable rate. Courts and juries, too, would differ, and at one time or place a defendant might be convicted and fined in a large amount for the same act which in another place or at another time, would be held to be no breach of the law, and what might be thought a fair and reasonable rate on one road might be thought otherwise upon another road. There would be no certainty of being able to comply with the law. A railroad corporation, with the purpose of conforming to the law, might fix its rates at what it believed to be reasonable, and yet be subjected to the heavy penalties here prescribed. The statute furnishes evidence that it did not intend to leave the railroad in this state of uncertainty and danger, and exposed to such seeming injustice. The eighth section provides how reasonable rates shall be ascertained, what they shall be, and that the railroad and warehouse commissioners for each of the railroad corporations in the State a schedule of reasonable maximum rates thus furnishing a uniform rule for the guidance of the railroad companies. These authorities and the argument abundantly supporting them are sufficient.

"Other objections to the judgment below need not be discussed, as the one noted is fatal, and the statute cannot be enforced as a penal statute."88

In the aggregate the foregoing authorities prove and dem

Louisville & N. R. Co. v. Commonwealth, 35 S. W. Rep. 129-181.

onstrate that though often neglected, the ancient maxim “Ubi jus incertum, ibi jus nullum" (Where the law is uncertain, there is no law), is still a fundamental part of our jurisprudence, and that in consequence all uncertain penal statutes are unconstitutional because not constituting "due process of law."

Since the foregoing essays were first published by me, several cases have been decided or come to my notice which are more or less related to the principle for which contention is herein made. These cases are cited in the footnote.97

Me Junkins vs. State, 10 Ind. 145 (A. D. 1858).

Sce" ERRATA," p. 5

top. 406

CHAPTER XXII.

“DUE PROCESS OF LAW” IN RELATION TO

STATUTORY UNCERTAINTY AND

CONSTRUCTIVE OFFENSES.

PART 1.--The Synthesis and the Application.*

In the foregoing chapters, I justified with considerable elaboration the proposition that in the United States no man can be punished for mere constructive offenses.

I have gone further and have attempted to formulate a statement of the nature of law as viewed in the scientific aspect, in contradistinction to that arbitrary power which punishes constructive offenses, and I have undertaken to make a comprehensive discussion as to what is a constructive offense in relation to “due process of law.” Here I shall undertake only to summarize those conclusions, already justified in various ways, and apply them to our laws against "obscene" literature and art.

CONSTRUCTIVE CRIMES CLASSIFIED. Constructive offenses naturally divide into two general classes. In the first of these the more direct responsibility for the prohibited construction rests with the courts, and arises from the judicial engraftments made upon legislative enactments, while the second class includes those where the more direct responsibility for the evil primarily rests with the legislature for having attempted to construct a wrong, by penalizing conduct not in itself injurious nor of injurious tendencies according to any known laws of the physical universe. These two general classes of constructive crime readily lend themselves to a further subdivision according to the various conditions which conduce to such baneful punishments for mere constructive wrongs. These different sources of such error will now be pointed out with a little more system and elaboration, and it is believed that the following statements are justified by, and generalize all, that is included in the discussion and the authorities cited in the several chapters on "due process of law."

JUDICIAL LEGISLATION UNDER PRETENSE OF INTERPRETATION.

The first class of constructive offenses is best understood. Here the act under investigation is one which under any of the tests prescribed hereafter, may properly be penalized, but it is not within the plain letter of the prohibitive statute because the statutory tests of criminality, though certain in meaning and covering acts of the same general character, manifestly do not specifically include the conduct under investigation. In such a case the judicial enlargement of the field plainly marked out by the statute is so universally recognized as improper, because judicial legislation, and therefore within the domain of the prohibited constructive offenses, as to need no argumentative support. Indeed, all judicial rules for the strict construction of criminal statutes are founded upon the necessity of precluding judges from creating law.

If the act penalized by the statute under consideration is assumed to be one which may be penalized, and the contention herein made, namely, that none of the judicial tests of "obscenity” has that certainty required by the Constitution, is held good, then the last declared principle has no application. On the other hand, if the judicial tests of "obscenity" do have the certainty required, then this principle still does annul the law, becauses these “tests” of guilt are clearly of judicial creation, extending the statute beyond what the words of the legislative enactment necessarily imply.

AMBIGUOUS STATUTES. The second class of constructive offenses is less perfectly understood. Here the act under investigation is again one which, under any of the tests prescribed hereafter, may properly be penalized, but the statutory language is ambiguous in its specification of the criteria of guilt. Such statutes often seduce judges into an abuse of their power by a misapplication of rules of construction. Where the words descriptive of the crime are ambiguous (open to several interpretations, some or all of which meanings, taken separately, are very certain in their application to all specific facts), it is erroneously assumed by many courts that it is an exercise of the judicial function of statutory interpretation to select that one among