The semi-weekly messenger. [volume] (Wilmington, N.C.) 1897-1908, 1907-07-26

rates by iudicial tribunals. Accepting
this construction OF the Minnesota act
by the supreme court OF tnat SIa1e
the supreme court of the United state
declared the act Unconstitutional, De-
cause 1t denied the railroad company
4 judicial Investigation into the valid
ity Of the rates. II this cannot be ac-
. complished directly IL canno be done
indirectly. Ii Is well settled that what
| cannot be done by express enactmeII
cannot be lone by device or !ndi-
rectior. Therefore any system of oeu-
alties which is intended to have the
effect and which is so framed rs To
have the effect Of closing the doors
OF the courts t a judicial inquiry as
TO rates, is in consequence Of that fact
| unconstitutional and void. Section
four OF the act in question clearly at
tempts I o do this. 1t imposes upon the
! company as n penalty for an uEsuc-
cessful attempt to appeal TO the court
no matter how bona fde this biz is
made, such enormous fines aud penal
ties in favor OF individuals as TO bur-
den the challenger of the act in the
courts so as 10 make ii II the penalties
were valid practically impossible for
| SuCH al appeal U" sc A4dNe-
In the case OF Getting VS. Kansas
| Stock Yards Company, 1S3 L. ). 100.
! Mr.. Justice Brewer, who delivered the
| opinion of the court in discussing this
| phase OF Inc Quesjia2l said:
1T may be said thai this is = penal
| statute. and Therefore /; is 70 BE- con-
| strued in favor Of the Delinquent, ana
| that We have d right tC,expect that The
| state courts will construe the penalty
as nct attaching % the-"harSe for EACH
head OF stock, but only 10 that ui0u
the separate punches Shipped BY diff
{ feTent individuals. But J%the Language
50 clear that there is ra doubt as 10
| the construction? Is there not enough
81 it TO justify a construction winch
| nay be accepted by th~ trial courts
and approved by the Sup5eme court OF
TIE state n is not the construction
| of a state statute by the supreme court
of the state. as in a case like this,
conclusive upon us? The party upOn
wham. s,Ish a liability isEthreatened
takes the chances of the construction
of e. doubtful statute. If 4 one con
| Struction is placed upon it he'll OBJ
viousiy, eVsn accepting the largest eS"
| innate of value placed by NY witness
| upon the property of the company. u
single days violation of the statute
/ WOULD exhaust such entire value in
| satisfaction Of the penalties incurred.
{ ia. this. feature of the case We are
{ brought face to ace with e question
which legislation Of other states *
| presenting. Do the laws secure to an
individual an equal protection WhHnr
I - - lNr-N -, a~r,, into A,,r nfNI
make his, claim or defense subject ~
the condition that upon a failure 10
{ make good that claim or defense the
| ysaalty for sN2ch failure either appr3~
J pirates oil of his property or subjects
| him to e~XtTayagant n unreasonable
| loss? Let us make some Illustrations
to suggest the scope Of this tnoHSat.
| Suppose = law were passed tact if III,
J labOring man should bTing II defend
| an action and fail in his cia IN or ~.
| fence, either IN whole or in. part ne
| should in the one instance sOrfelt to
| defendant haIf of the amC1dt OF his
| claim. and in the other be punished
by a fine equal to half OF thC-recovoTy
against hl1l. and that SUch, law by
it's terms applied only tns lahoring
men, woul,f there be the sIis-ntest nrS-
itation in holding that the labOrer was
denied the equal protection Of the
laws2 The mere fact that the courts
are open to hear his claim or deieEse
| is not sufficient and if upon him aona,
| there is visited a substantial
| penalty Tor a failure TO make
! good his entire claim or 5efenGe.
Take another Illustration: Suppose
a statute that every CORPORATION. fail
| ing to establish it's entire claim. or
! make good its entire de3eace. should
1 as a penalty therefor forfeit its incur-
/ poraae franchise and that no penalty
| of any kind. except tho mattar CT
/ csRts, was attached to like failures q
| could il be said that the corporations
! received the equal protection Of the
laws?
Take still another illustration: Sup
| rose a law which, Whil@ opening the
| doors CT the courts TO AL ifIigants, pro-
| vfded that Il failure of any plaintiff or
defendant to make GOOD his entire
claim Or entire defence should subject
/! him TO. a forfeiture OF all his property
o Z some other great penalty; then.
even if as all ~litig4nts were treated
! alike it could be slid that there was
equal protection o. the laws, woulI
not such burden uron all be adjudgea
| a denial Of due HOcesS of law? ut
! Our these are rztrems Illustrations
| and they serve ally to illustrate the
proposition that z. statute (althous1
in terms opening !he doors OF the our
to a particular 'AiganB which PLACES
upon him, as a penalty for a failure
to. make good lis claim or defence. a
burden so grea! as ia practically -
Imidate him from asserting chat
which he belle Yes to be his rights is,
when no such penalty is inflicted lpo1
othe9s, tantan tDunt to a denial 4 The
[ equal protection of the laws. Ii NAV
be said tina these illustrations are
not pertinent because they are of civil
ACTIONS, whereas rais statute makes