The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1898-06-12
AGREES WITH THE COURT ON
THE ILLEGALITY OF FREE
PASSES.
COULD BE NO CRIMINAL INTENT
When the Railroad Commissioners Accepted
Free Passes Themselves and Hun
dred Thousand Others Ac'
copied Them.

Justice IL. M. OOuSliS Oh A1otuANdS
after adjournment of the Spring term
filed dissenting opinion III the rail-
road free pass case.
The News and Observer printed last
week a synopsis of the decision of the
majority of the court in an opinion writ
ten by Justice Montgomery.
Justice Douglas declares that he
agrees with the court that the issuance
of free passes is unlawful, and only dis
sents on the question of criminal in
tent His dissenting opinion is as fol
lows:
No. 1872, Wake County State VS.. South
ern Railway Company. Douglas, j.,
dissenting:
/ feel compelled to dissent from the
judgment of the court: but in doing SO,
wish to express by unqualified concur
renee in the able. opinion of Justice
Montgomery, except IN so far as it neces-
sarily conflicts with what is said herein.
That free transportation under what
ever device it may be given, is prohibit
ed by the act of 1891 unless covered by
the statutory exceptions. is unquestiOna-
BILE: and | am glad that it has now been
settled by a unanimous court. Such a
construction is in strict accordance with
the settled rules of judicial interpreta
ton and with the highest principles of
public policy.
cit is currently reported that Il hun
dred thousand passes were issued in the
state of North Carolina within the
year 1897. OF our three leading
railroad systems. one reported over
fifteen thousand passes issued. while
another reported thirty thousand. The
defendant herein, the largest system of
all, and having direct pecuniary in
terest of vital Importance before the
legislature. refused to make any report,
relying upon its legal exemption from
compulsory self elimination. Taking
the estimate of 100000 passes as cor
rect, as it is 397 miles from Raleigh to
Murphy on the west. and still further
to Elizabeth City on the east, it is fair
to assume that each pass would repre-
sent at least one hundred miles of travel,
equal to $325 in fare This would rep
resent the equivalent of S325,O00 a
year given to somebody, but to whom we
do not know, and for what purpose we
need not inquire. These figures may not
be correct, but they are the best obtaina-
BILE under the circumstances.
1t is needless to suppose that transport
tation of such great pecuniary value
would be given without some return, eth
er present or prospective; and in any as
pect its continuance would be unjust to-
the public interest. and dangerous to the
public welfare Free transportation to
so large an amount would necessarily
place an additional burden upon the
travelling public to make up the def
cheney; while its irresponsible distribu-
ton would be a serious menace to pub
lie morality. So far, / fully concur in
the opinion of the court; but to convict
a person charged with crime, it is re-
quisite. not only to determine that Il
crime is committed, but also that the de-
PENDANT is guilty of the crime.
The defendant here admits the free
transportation but pleads want Of in
tent. Ordinarily the admission of the
forbidden act would be conclusive evil
denee of guilt; as in misdemeanors, at
least, the intent to commit the act is
the criminal intent, unless the statute
itself constitutes the intent the grava-
men Of the offence. In this action how
ever, there seem to me SO many peculiar
circumstances that have never happened
before, and may never happen again, as
to take the case out of the usual rules
of construction, and force us to regard
it sui generis.
If the act itself forbade the issuing of
passes in express terms, it would be an
end of the question. But it does so only
by implication, as is shown in the opin-
ion of the court. 1t is true, it seems to
us a clear and necessary implication;
hut it evidently did not seem so to the
higher officers OF state and members of
the legislature who accepted these
passes.
We can scarcely ask a clearer insight
into the law and q nicer sense Of pro-
priety from the soulless corporation
than we do from those who make and
enforce the law. This act was ratified
March s. 1891, more than seven years
ago. Since then we have had four diff
ferent legislatures. three governors and
seven different railroad commissioners,
as well as two complete sets of solicitors.
do not mean to impute any improper
motive to these men, many of whom |
personally know, and whose names and
characters are too well known to need
any vindication from me: but is it not
possible that the defendant may have
been honestly misled in issuing passes
10 them from the mere fact that they
would receive themg
The giving of pass is only nahum pro-
hibitum. and not nahum in Sc, and is
neither as to the one that receives IL.
There is nothing innately wrong in it..
further than that it is prohibited by law,
and may lead to dangerous abuses. More
over. section Of the act under consid-
GRAFTON provides that the railroad com
missioners ''shall make such just and
reasonable rules and regulations as may
be necessary for preventing unjust dis
elimination in the transportation of
freight and passengers on the railroads
in the State
1t was the imperative duty of the
commission without any outside sug
gestion, TO make all just rules necessary