The Montgomery advertiser., 1908-03-30

lation. in effect. drives the property stay out of the court or else, 70 pay tSs gSs gas for % tss @ te sS he f w sGS o courts. The penalty here is inposed for the unsuccessful resort 70 tne to compel observarce of the statute afterwards. Different considerations might apply If the penalty were ex- ssd sss s s.sr dsy the court o s ccurss s
 general power of the State to pres cribe penalties for the violation or it's laws is not denied. but the scheme un- must have some just relation to the defense open in the court to all other persons sIilasly rt, slsSstse sset .o ed by such penalties. rnuNt not be closed to him upon whom ne penalty Is visited. When a statute hxes pen- s or ss for ies feward seS 5s tha and the carrier actually performs that duty and accepts the reward under pro- test. and goes into court to recover not for refusing to perform q public duty. which has in fact been discharg- cd. but for going into court to enforce
 prons,,y right gns,ds ssaiSnst tss puS1is of the duty under protest by fixing a heavy penalty upon the exercise of that right. The Legislature has no epwer ts sons s' nPo 9Pon s ss ss protection of q right of property. any other consequence than oruinarily att tach to other persons under like cir- cumstances where they are the unsuc- cessful plaintiffs.
 Excessive Fines.
 The command regarding the inposi. e more tU bs es soats SSt sso imposes limitations upon the exercise of legislative power. The Legislature must not coerce the discretion of the conviction. 50 high as to compel an ex- else of discretion left by the Statute as to thu. amount of the fine, must not of pGfs M pss to shs nature M and s S. a gree of the offense. and the object sought to be accomplished by apon sas Dsnsslss dos donx ea'1ess wsics hsrs the penalties are Imposed. Is an en- tlreiy lawful one, and so Is the act of transportation for which the reward. Is demandsd. The only offense is the endeavor to obtain q larger amount than the statute fixes as the reward for the service. It Is the occupation. at be affected. The numerous penalties prescribed are, In effect for carrying on the business if there is a demand for more than the statutory charge. The nature of the business ia such that 1t Is inevitable. if 1t be conducted at all. that 1t involves very many trans actions. at the same time. in many dif- ferent places. In dealing with the ness but Is carved up Into as many businesses for the purpose Of the stat ute, as there are transactions in given day. and each Is made q separate offense. 4 single days non -observance cases like these where all the rall- roads are of considerable length, to answer Al the same time in many places for innumerable violations of operation. and to make q test case, the carrier IS subjected to innumerabls penalties. The Imposition Of fine of a million dollars q day for the failure license to transact business which is lawful in itself. would shock the con- science of the ordinary mind: yet these are the results which the system or penalties is designed to bring about. determining whe hether fine Is excessive in a given case arc quite unsatisfac- tory. They all unite, however. In the doctrine tha, nnot 1T me w s ss sqcE sae The reasons why such penalties can not be enforced are powerfully stated by Mir. Justice Brewer In Cotting v. Kansas City Stockyards Co.,, lSS U. 6. 7s, which though dicta in that case. are urianswerabLe The same conclusion has been reached in q number of de- cisions in the circuit courte Mercan- tile Trust co. v. Texas Pacitic Railway Go, 5i Federal. S29: l.. & N. R. R. Co. V. McChord. 103 Federal. 2ie; Consoli- dated Gas Go. V. Meyer las Federal, I50: Ex parte Wood. 15s Federal. 1S0. The Supreme Court of Alabama. deoid- ed the same principle years ago In S. N. R. R. Co. v. Morris. 65 Ala. 1s4; and enforced it In a number of cases as late as Randolph V. Builders & Painters Supply Co. lo6 Ala. 501. See also Waily V. Kennedy, 2 Yerger, B54; Holden V. James, II Mass. 39s; Mis- aouri V. Lewis, 100 U. s. 22; Railroad 60. V. Ellis. i65 U. S. t50. The penal tIes however, are separable from tue part of the statute, which fixes the wafes. whose validity Is not dependent upon the unconstitutional portions of the statutes. as to penalties.
 Statute preventing use of gntes at
 stations to keep out intending pas-
 aeuNerN when tickets are not sold
 nf statutory rates, of doubtful va-
 IIdify.
 XII. Another statute whose consti- tutionality is challenged, is that which nrovidts when the carrier falls to keep for sale or to sell on demand at pas