*486

fense in any sum not less than $500 nor road commission, and subjected them to penmore than $1,000, and upon a second convic-alties, there being no infliction of penaltion, 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.

ties 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, "Sec. 2. The circuit court of any county without any opportunity for a judicial ininto or through which the line or lines of vestigation and determination as to their road carrying such passenger or freight reasonableness, and it will thus be deprived owned or operated by said railroad, and the of the lawful use of its property, and, in Franklin circuit court, shall have jurisdic-substance and effect, of its property itself, tion of the offense against the railroad com- without due process of law, and will also be pany or corporation offending, and the cir- denied the equal protection of the laws, in cuit court of the county where such offense violation of § 1 of article 14 of the Amendmay be committed by said officer, agent, or ments to the Constitution of the United employee shall have jurisdiction in all pros- States." ecutions 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.

*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 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 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 innum erable 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 It was then averred that it was the duty claim the right to ship at said rates so unof the railroad commission to see that the constitutionally fixed and to sue for any exlaws relating to all railroads, except street, cess they may be charged over said rates, were faithfully executed, and to exercise a though rightfully charged, and at the same general supervision over the railroads of 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 court; and that under the state Constitu- any offense, and though merely assisting tion 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 nonjudicial determination of the rail

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

*488

687.

a vast multiplicity of prosecutions and actions in the courts of said state."

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 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 the aggregate for the transportation of passengers, or of property of like kind, unThe cases were disposed of on demurrer. der substantially similar circumstances and The Constitution of the state of Kentucky conditions, for a shorter than for a longer provided: distance over the same line, in the same di"209. Railroad commission-Number-rection, the shorter being included within Qualifications →*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 com- operating a railroad in this state, to receive posed of three commissioners. During the as great compensation for a shorter as for session of the general assembly which con- a longer distance; provided, That upon ap venes in December, 1891, and before the 1st plication to the railroad commission, such day of June, 1892, the governor shall ap- common carrier, or person, or corporation point, by and with the advice and consent owning or operating a railroad in this state of the senate, said three commissioners, one may, in special cases, after investigation by from each superior court district as now es- the commission, be authorized to charge less tablished, and said appointees shall take for longer than for shorter distances for the their office at the expiration of the terms of transportation of passengers or property; the present incumbents. The commission- and the commission may from time to time ers so appointed shall continue in office prescribe the extent to which such common during the term of the present governor, and carrier, or person, or corporation, owning until their successors are elected and quali- or operating a rairoad in this state may be fied. At the regular election in 1895, and relieved from the operations of this secevery four years thereafter, the commissioners tion." 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 "§ 817. Discrimination-What is.-If any districts so as to equalize the population corporation engaged in operating a railroad thereof, and may, if deemed expedient, re in this state shall, directly or indirectly, byg quire that the commissioners be all elected any special rate, rebate, drawback, or other by the qualified voters of the state at large. device,* charge, demand, collect, or receive* And if so required, one commissioner shall from any person a greater or less compenbe from each district. No person in the sation for any service rendered in the transservice of any railroad or common carrier, portation of passengers or property than it company, or corporation, or of any firm or charges, demands, collects, or receives from association conducting business as a common any other person for doing for him a like carrier, or in anywise peculiarly interested and contemporaneous service in the transin such company, corporation, firm, or asso-portation of a like kind of traffic, it shall be ciation, or in the railroad business, or as a deemed guilty of unjust discrimination. common carrier, shall hold such office. The "§ 818. Preference or advantage forbidpowers and duties of the railroad commis-den-Rules defining same Quantity of sioners shall be regulated by law; and until freight.-It shall be unlawful for any corotherwise provided by law, the commission poration to make or give any undue or unso created shall have the same powers and reasonable preference or advantage to any jurisdiction, perform the same duties, be particular person or locality, or any parsubject to the same regulations, and receive ticular description of traffic, in any respect the same compensation as now conferred, whatever, in the transportation of a like prescribed, and allowed by law to the exist- kind of traffic; or to subject any particular ing railroad commissioners. The general as-person, company, firm, corporation, or losembly may, for cause, address any of said cality, or any particular description of trafcommissioners out of office by similar pro- fic, to any undue or unreasonable prejudice ceedings as in the case of judges of the court or disadvantage. 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

" 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 unreasona ble preference or advantage, shall, upon conviction, be fined for the first offense in any sum not less than $500 nor more than $1,

+491

000; and upon a second conviction, in any [er with a copy of its order, to the grand sum not less than $500 nor more than $2,-jury of any county, the circuit court of 000; and upon a third conviction, in any which has jurisdiction, in order that the sum not less than $2,000 nor more than $5,- railroad company or carrier may be indicted 000. The circuit court of any county into for the offense; and the commission shall* or through which the line of railroad may use proper efforts to see that such company run, owned or operated by the corporation or carrier is indicted and prosecuted. alleged to be guilty as aforesaid, and the "§ 821. Three commissioners-Duties.Franklin circuit court, shall have jurisdic- There is established a department in the tion of the offense, which shall be prosecuted state government to be known as the railroad by indictment or by action in the name of commission, which shall be composed of the commonwealth, upon information filed three commissioners, one of whom shall act by the board of railroad commissioners; and as chairman, and whose duty it shall be to such railroad corporation shall also be lia- see that the laws relating to all railroads, ble in damages to the party aggrieved to the except street, are faithfully executed, and amount of damages sustained, together with to exercise a general supervision over the cost of suit and reasonable attorneys' fees to railroads of the state. Each of said combe fixed by the court. Indictments under missioners is authorized to administer oaths, this section shall be made only upon the rec- and two of them shall constitute a quorum." ommendation or request of the railroad com- "§ 826. Rates from foreign points to be mission, filed in the court having jurisdic- examined by commission-Duty of commistion of the offense; *and all prosecutions and sion.-Said commission shall examine all actions under this law shall be commenced through freight rates from points out of within two years after the offense shall have this state to points into this state; and been committed or the cause of action shall whenever they find that a through rate have accrued. charged into or out of this state is excessive "$820. Long and short haul over same or unreasonable or discriminating in its naroad-Penalty-Jurisdiction of courts ture, they shall call the attention of the Duty of commission.-If any person owning railroad officials in this state to the fact, or operating a railroad in this state, or any and to urge them of the propriety of chang common carrier, shall charge or receive any ing such rates. And when such rates are greater compensation in the aggregate for not changed, it shall be the duty of said the transportation of passengers or proper commission to present the facts to the Inty of like kind, under substantially similar terstate Commerce Commission and appeal circumstances and conditions, for a shorter to it for relief, and they shall receive upon than for a longer distance, over the same application the services of the attorney genline, in the same direction, the shorter be- eral of this state and into the condition, ing included within the longer distance, such management, and all other matters concernperson shall for each offense be guilty of a ing the business of railroads in this state, so misdemeanor, and fined not less than $100 far as the same pertain to the relation of nor more than $500, to be recovered by in- such railroads to the public, and whether dictment in the Franklin circuit court or such railroad corporations, their officers and the circuit court of any county into or employees, comply with the laws of the through which the railroad or common car- state; and whenever it shall come to their rier so violating runs or carries on its busi- knowledge or they shall have reason to beness. Upon complaint made to the railroad lieve that the laws affecting railroad corpocommission that any railroad or common rations in their business relations to the pubcarrier has violated the provisions of this lic have been violated, they shall prosecute, section, it shall be the duty of the commis- or cause to be prosecuted, the corporations sion 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 complain-ished for each offense by a fine of not less ant 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, togeth

or persons guilty of such violations.

con

" 827. Examination of officers and employees by commission-Penalty for tempt.-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 this law; and shall have power to issue subpœnas 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 pun

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.

"828. Penalty for failing to make required reports or obstructing commission—

Mr. Chief Justice Fuller delivered the opinion of the court:

Jurisdiction of courts.-Each officer, agent, or employee failing or refusing to make under oath any report required by the commis- By the decrees the railroad commission sion within the time required, or failing or of the commonwealth of Kentucky was perrefusing to answer fully, under oath, if re-manently restrained from proceeding under quired, 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 prose cute 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 it shall be the duty of the commonwealth's attorney to prosecute all indictments, actions, and proceedings under this law.

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 there with, it is contended that ground of equity jurisdiction existed here in the want of ade 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.

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-exe"§ 829. Complaints against companies- cuting, and that no duty to enforce it is imAward of commission-Proceedings upon.- posed on the commission; that the compaThe commission shall hear and determine nies are shut up by the act to the final decomplaints under §§ 816, 817, 818. Such termination of the commission that they complaints shall be made in writing, and have charged more than a just and reasonathey shall give the company complained of ble rate; and that on the trial of indictments not less than ten days' notice of the time for failure to observe the rates made by the and place of the hearing of the same. They commission the courts cannot entertain any shall hear and reduce to writing all the evi- inquiry as to the reasonableness of the rates dence adduced by the parties, and render so fixed, because such inquiry is unwarrantsuch award as may be proper. If the award ed by the statute, and because such an inof the commission be not satisfied within ten vestigation would be illusory and worthless; days after the same is rendered, the chair- and that, even if the question of constituman shall file a copy of said award and the tionality could be raised in defense, yet that evidence heard in the office of the clerk of if such order be permitted to be entered of the circuit court of the county which, un-record and notified as provided, the compader the Code of Practice, would have juris-nies, if they do not comply, will be at once diction of said controversy, and the clerk of exposed to innumerable prosecutions, and said court shall enter the same on the dock-to financial ruin by the accumulation of penet 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."

Messrs. David W. Baird, Robert J. Breckinridge, Lewis McQuown, Zack Phelps, and Aaron Kohn for appellants.

Messrs. Walker D. Hines, James P. Helm, Alexander Pope Humphrey, Helm Bruce, Edward Colston, W. H. Wadsworth, H. W. Bruce, Thomas K. Helm, and A. M. J. Cochran for appellees.

validity of the statute could be had, if it alties before a judicial decision as to the 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 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 tioned against a railroad company, but the provisions of a certain statute therein menquestion of jurisdiction does not seem toe have been raised. The case was considered? on its merits, and the bill directed to be dismissed. Mr. Chief Justice Waite, speaking for the court, among other things, said: "As yet the commissioners have done noth

*497

ing. 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, 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 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 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."

fected 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 reduc tion, 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 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 The rule was also applied by Mr. Justice more than a just and reasonable rate. SecField in Alpers v. San Francisco, 32 Fed. tion 817 defined unjust discrimination, and 503, where complainant sought an injunc-§ 818 forbade undue or unreasonable preftion to restrain the passage of an ordinance erence. which he alleged would impair the obliga- Section 919 denounced the same penalties tion of a contract he had with the city. Mr. on conviction of the offense of extortion, or Justice Field said: "This no one will ques- of unjust discrimination, or of unreasonation as applied to the power of the legisla-ble preference, and provided for prosecution ture of the state. The suggestion of any by indictment, or by action in the name of 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 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.

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 The duty was imposed on the commission invalid act can be reached by the courts, to initiate indictments under 820 for while the legislative body of the state or of charging greater compensation, in the agthe municipality, in the exercise of its leg-gregate, for a shorter than for a longer islative discretion, is beyond their jurisdic- haul. tion. 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 So that unless the act of March 10, 1900, that discretion, whether rightfully or wrong-operated to repeal the provisions of the 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 af

Section 821 made it the duty of the commission to see that the laws relating to railroads should be faithfully executed, and to exercise a general supervision over the railroads of the state.

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

00