The farmer and mechanic. [volume] (Raleigh, N.C.) 18??-19??, 1907-12-10
which is RIGHT ...WALKER OR CLARK?
Court Was Unanimous Except to Fine the Southern Railway
The Two Opinions on Whether that Ought or
Ought Not TO Stand
OPINION OF THE COURT

Walker j. What we have
already said is sufficient to convince
US that the Federal Court is without
jurisdiction to stay the institution uf
criminal proceedings in a State court,
ana we would affirm the judgment in
7 TINS case If it did not appear that no
criminal offense is charged in the bill
| of Indictment.
We will now consider that question.
! The State contends that the first sec
| uOn of the Act of 1907 contains a
distinct prohibition against common
! carriers of passengers charging more
/ than two and one quarter cents per
mile and that while a penalty is i'm
| posed for a violation OF that section.
/ II is done by subsequent section of
the Act and where this occurs. al
! though the offence may be a new one.
| or one not existing at the common
! law, the State can proceed by indict-
! mcnt TO punish a violation of the first
i section, and the party specially ag-
! grieVed thereby may also at the same
! time recover the penalty, it being con-
! ceded, as we understand, t~4at if the
| penalty had been imposed in the first
| section where the prohibition is
found this would not be so, and an
! indictment would not lie If there is
any respectable authority for such q
! position, and we do not think there is,
it io not only inherently unsound, but
| Mr.. Bishop says that it is not cnly re-
| fined but is contrary to ali reason. It
| IS distinction without difference in
! law or in fact. The act prohibits a
! charge bOVe two and a quarter cents
and then provides in a subsequent
! section ca, that any railroad cOmpa-
ny violating it's provisions shall be
! liable to a penalty of $500 for each
violation, recoverable by the person
/ aggrieVed in a civil action. and any
! agent of the company violating the
! act shall be guilty of misdemeanor.
How could the Legislature more clear
! ly or convincingly have expressed its
/ intention to discriminate, as to the
/ consequences, between a violation of
! the railroad company and a similar
vialOtiOn by its agent, and what prac-
! teal difference can it make whether
| the penal provision is in the first or
/ the fourth section of the act? DOaS
| not the latter section distinctly refer
| to the former. the same as if it had
/ been incorporated with it? The rule
| of construction relied on by the State
t seems to have arisen from a total mis-
! conception of the English authorities.
/ and rank dictum of Justice Ashurst
| in Rex V. Harris. T. r. 205, with no
authority cited to support it. Lord
| Kenyon who wrote the leading opinion
| in the same case. expressly states that
| the offence created by the Act of
! Parliament (26 Geo. Ch. 6, Sec. -,
/
! in council, was IN itself an offence at
| common law and Lord Ashurst after
! wards in his opinion explains, if he
/ does not destroy his dictum by con-
| fining it to the special facts of that
| case The law is thus stated by
! Bishop in his Work on Statutory
! Crimes (1S73) Sec $50: THE doctrine
! is that, where an offence is created
| by statute, and the same statute pre-
! scribes the penalty, or the mode OF
else
| sort only that which the statute pre-
I scribes can be followed. But where
the offence is at common law, statute
| ry provisions not directly repugnant
| to the common law are cumulative,
and either law may be followed. And
! where a statute forbids thing before
| lawful. but provides no penalty, the
! indictment for the offence IS at COM
mon law. So, where II prescrlbes no
| mode of prosecution, the common law
| Indictment lies He cites numerous
cases in the note to that section,
among them several English cases,
which sustain his statement Of the
rule and under it the case of Rex V.
Harris. supra. was forrectly decided,
because the penalty imposed by the
statute construed In that case was for
an offence which previously existed at
the common law. The authorities cited
! by the learned counsel for the state,
| can be easily reconciled with the prin-
I
are read with reference to the par
| ticular facts being considered in them.
Reg. V. Buchanan, Ad. & ltl. t5o 4;
c. Id $50 was a case of IKE hlnu
with Rex V. Harris. the offence OF an
attorney practicing without having
been duly admitted or called to the
! bar, or enrolled, was made a conteTipl
of court which, we know, and 1t IS 50
held in the opinion by Lord Dennah,
was also miSdemeanor at common
10 * int faH hx j
tce that if penalty had been I'M
| posed, instead of the remedy by at
| tachment for contempt given, the re
suit in that case would have been dlt-
ferent Section 237 cited from L
| Bishop on Cr. Law is, IN our opinion,
inferentially against the States con-
tention We reproduce it here: It
| is obvious that 70 prohibit thing by
a statute is to bring it within the
Jurisdiction of the tribunals Whence
we see, carrying in our minds what IS
stated in the last section. how and
why. as explained in another volume,
when statute fOrbids thing affect
ing the public but is silent as to any
| penalty. the doing of it is indictable
at the common law" In Rex V. Wright,
| Burr SAB. it was held that 'indict-
ment lies not upon an act Of Parila-
ment. which creates new offence and
prescribes paIucuar remedy. Lord
| Mansfield said in that case: 'I al
ways took it. that where new created
| offences are only. prohibited by the
! general prohibitory clause of an act Of
Parliament, an indictment Will lie; but
where there is a prohibitory particu-
lar clause, specifying only particular
remedies, there such particular
remedy must be pursued. For other
wise the defendant would be liable to
a double prosecution; one upon the
general prohibition, and the other
| upon the particular specific remedy
And when afterwards informed that
the counsel for the Crown gave up
the natter he replied, II do not
wonder at all at it: [ thought he
would do so. I have looked into it
and there is nothing in it. That case
of Crofton (where the contrary is
supposed to have been decided) has
been>denied many times" In Rex V
Robinson, Burr. 799-Sa3, the great