The Washington herald., 1907-07-23
JUSTICE PRETCHARD'S DECISION

are necessary 10 promote Lue WtiIdIt OF
the public, in view Of the fact that this
court has amply protected the rights Of
those who May purchase tickets by re-
curing the complainant TO give a bond
amply sufficient TO secure the payment
OF any damages that may be sustained.
On the other hand, Il is a penal statute
enacted with the sole view Of enforcing
obedience to the first section Of the act
which undertakes TO fix maximum pas
senger rates. Therefore. inasmuch as the
validity Of the act which preScribes pas
SengeT rates is being contested. and the
court has. by injunction, restrained the
enforcement OF the same. there IS every
reason why this court should exercise It's
discretion in granting the writ OF habeas
corpus, when 1t is apparent that the
prosecutions OF the complainant and its
agents are being instituted solely for the
purpose of lettering the complainant
from prosecuting its original suit. In
view Of this situation the court is called
upon TO determine the question whether
the petitioner Is entitled TO be discharged.
inasmuCh as il appears 10 the court that
the act on account Of which he was in
dicted was committed in pursuance OF
an order and decree Of this court.
Duty Of the Company.
This court by proper order having d.
rected that the complainant should pro-
vide a ticket with a coupon attached
thereto representing the difference be-
tween the present rate and the proposed
rate, It thereby became the duty OF the
company and its agents to strictly COM
ply with the requirements Of such order,
and any failure on their part TO observe
the same would render them liable to at
tachment for contempt, and under such
circumstances. the duty being enjoined by
this court, the performance of the same
by the complainant and It's agents would
render them liable 20 punishment under
the statute OF the State. Any attempt 10
punish the company or its agents for the
observance Of the order anfDdecTee of this
court would be IN utter disregard OF the
comfy which should exist between the
state and Federal cOIrts as we'll as an
absolute nulltty If the State courts pos
sessed the power 70 indict persons acting
under the directions Of the Federal court
Tor the performance Of a duty en1oined
upon them IN a salt which may be
brought in such court, then the power Of
the Circuit Courts Of the United States
would be completely paralyZed and such
courts would be rendered unable 20 pro-
coed 10 the determination OF any question
involving the validity OF the statute Of a
State legislature
Another Phase of the Question.
While the court is OF opinion that the
petitioner is entitled TO be discharged for
the reasons hereinbefore stated, never
theiess there is another phase Of this
question which the court should consider
in order that there may be a proper de-
termination Of the matter in controversy,
and IN the consideration of which IL is
incumbent upon the court 20 pass upon
the validity Of section 4 OF the act in
question.
THE foregoing section. among other
things, provides that the company or its
agents shall pay a penalty of 800 for
each failure 20 comply with the require
ments OF the act It has been held that
no State can constitutiOnally close the
doors of the courts 20 a judicial inquiry
into the cOnsuutiOnality of the rates II
fixes. In the case of Railroad Company
vs.. Minnesota. l34 L. s, IS. IL was held
by the Supreme Court Of Minnesota that
the act IN hiking rates was conclusive. and
there could be no inquiry into such rates
hy judicial tribunals Accepting this con-
structiOn of the Minnesota act by the
supreme Court OF that State, the Supreme
Court OF the United States declared the
act unconstitutional. because il denied the
railroad company a judicial investigation
into the validity Of the rates. If this can
not be accomplished directly. IL cannot be
done indirectly. II Is well settled that
what cannot be done BY express enact
ment cannot be done by device or indi-
rection. Therefore any system of penal
ties which is intended to have the effect
and which IS so framed as TO have the ef-
feet OF closing the doors OF the courts TO
a judicial inquiry as 70 rates Is in COnse-
quence Of THAI fact unconstitutional and
void Section of the act in question
clearly attempts 10 do this.
Findings of the Court.
In making this reference I do not wish
TO be understood as criucising the State
court for there is DO one in the State for
whom l entertain a higher regard than
Judge Long
It is also shown by the uncontradicted
evidence IN this case that at least $500
tickets are sold daily by complainant at
its various offices in the State in its inter
state business, thereby making it possible
for u 10 be sued $500 times in one day for
penalties amounting TO $500 in each in
stance. on account of It's failure 20 COM
ply with the statute fixing passenger
rates. Thus it will be seen. that by an
enforcement of the statute judgments can
be obtained against the complainant for
the sum of 5000 for each day. The ag-
gregate penalties for which Judgment
could be obtained for one day would
amount 10 sum more than eight times
as much as the sum involved in the orig
inal suit for one year between complain
ants and defendants. This system Of legis-
lation is also condemned by Judge La
COWDe IN the case OF Consolidated Gas
Company against Mayer. I46 Fed Rep
lJ1, and the conclusion is irresiSt BILE from
what this distinguished iurist has 70 say
that such system Of penalties is uncOH-
stitutiOnal and void. This not only ap-
plies 10 penalties in favor Of individuals
against the company, but also as to pen
alties against agents OF the company.
which would render il utterly impossible
Tor the company 10 carry on its business
while having an orderly inquiry made by
the courts as to its constitutional rights.
i am therefore OF the opinion that the
section Of the act attempting 20 impose
penalties and fines is unconstitutional and
void upon the face Of the act For the
reasons hereinbefore stated the petitioner
Will be discharged. An order discharging
the petitioner from the custody of the
officers of the State Court will be entered
and copy Of the same will be certified
TO the police justice Of the city of Ashe-
vile and the sheriff of Buncombe County.