In S. v. R. R., 122 N.C. 1052, 41 L.R.A., 246, the defendant set up the plea of ignorance of the law, but the Court said every one was fixed with knowledge of the law.Summary of this case from McNeill v. R. R
(Decided 24 May, 1898.)
Indictment for Discrimination in Railroad Rates — Free Passes — Penal Statute, Construction of — Indictable Offense — Intent — Indictment.
1. Section 4 of chapter 320, Acts of 1891 (Railroad Commission Act), which prohibits the making of a greater charge against one person than against another for a like and contemporaneous service under substantially similar circumstances and conditions, applies to the carriage of both persons and property without regard to the social, political, or business influence or distinction of the persons served.
2. The transportation by a common carrier of any person (except of the classes specified in section 23 of Railroad Commission Act) without charge is unlawful under section 4 of said act, the offense being the actual free transportation and not the issuance of the free pass.
3. Where an act is forbidden by statute the doing of it constitutes the offense, and the intent with which it was done is immaterial.
4. Where an act is made an offense by statute, without reference to the intent, a charge in an indictment that it was willfully done is surplusage, and the intent need not be proved.
5. In construing a penal statute prohibiting discrimination between passengers, the construction placed on it by common carriers generally and by private individuals and officials will not be considered.
INDICTMENT for unlawful discrimination in the transportation of passengers by a railroad company, tried before Timberlake, J., at March Term, 1898, of WAKE. The facts appear in the opinion. (1053)
W. C. Douglass and Cook Green for the State.
F. H. Busbee for defendant.
The defendant company was indicted for an unlawful discrimination in the transportation of passengers, under section 4, chapter 320, Laws 1891 — the Railroad Commission Act. Section 4 of that act is in the following words: "That if any common carrier subject to the provisions of this act shall directly or indirectly, by any special rate, rebate, drawback or other device, charge, demand, collect, or receive from any person or persons a greater or less compensation for any service rendered or to be rendered in the transportation of passengers or property subject to the provisions of this act than it charges, demands, or collects or receives from any other person or persons for doing for him or them a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions, such common carrier shall be deemed guilty of unjust discrimination, which is hereby prohibited and declared to be unlawful." Section 25 of the act is written as follows: "That nothing in this act shall prevent the carriage, storage, or handling of property free or at reduced rates for the United States, State or municipal governments, or for charitable purposes, or to or from fairs or exhibitions for exhibition thereat, for the free carriage of destitute and homeless persons transported by charitable societies and the necessary agents employed in such transportation, or the free transportation of persons traveling in the interest of orphan asylums or any department thereof, or the issuance of mileage, excursion, or commutation passenger (1054) tickets; nothing in this act shall be construed to prohibit any common carrier from giving reduced rates to ministers of religion, or to municipal governments for the transportation of indigent persons or to inmates of national homes or State homes for disabled volunteer soldiers and of soldiers and sailors orphan homes, including those about to enter and those returning home after discharge, under arrangement with the boards of managers of said homes; nothing in this act shall be construed to prevent railroads from giving free carriage to their own officers and employees, or to prevent the principal officers of any railroad companies or company from exchanging passes or tickets with other railroad companies for their officers or employees . . ."
The bill of indictment was in form as follows:
"The jurors for the State upon their oath do present that on 1 July, 1897, the Southern Railway Company was a corporation operating a line of railway from Goldsboro to Charlotte, in said State, and doing the business of a common carrier in the State of North Carolina subject to the provisions of chapter 320, Laws 1891; and that the said Southern Railway Company required and received of persons traveling over its line of railway a regular first-class passenger fare of three and one-quarter (3 1/4) cents per mile for each passenger.
"And the jurors aforesaid do further present that the said Southern Railway Company, on the day and year aforesaid, and at and in the county aforesaid, unlawfully and wilfully did collect and receive from one H. L. Grant a less compensation for the transportation of said H. L. Grant from the city of Raleigh to the town of Goldsboro, in said (1055) State, than it collected, demanded, and received for the transportation of other passengers from the city of Raleigh to the said town of Goldsboro, for a like and contemporaneous service, in the transportation of passengers in its first-class carriages, under substantially similar circumstances and conditions.
"And the jurors aforesaid, on their oath aforesaid, do say that the said Southern Railway Company did then and there wilfully and unlawfully and unjustly discriminate in the collection of passenger fares in favor of the aforesaid H. L. Grant and against other persons to whom like and contemporaneous service was rendered, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State.
"And the jurors aforesaid, on their oath aforesaid, do further present, that 1 July, 1897, the Southern Railway Company was a corporation operating a line of railway from Goldsboro to Charlotte, in said State, and doing business of a common carrier in the State of North Carolina, subject to the provisions of chapter 320 of the Public Laws of 1891; and that said Southern Railway Company demanded and received a regular passenger fare of three and one-quarter (3 1/4) cents a mile for passengers traveling in its first-class carriages over its line of railway.
"And the jurors aforesaid do further present, that the said Southern Railway Company, on the day and year aforesaid, and at and in the county aforesaid, wilfully and unlawfully did make and give an undue, unreasonable preference and advantage to one H. L. Grant, by then and there carrying the said H. L. Grant as a passenger free of charge over its line of railway from the city of Raleigh to the town of (1056) Goldsboro, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State. "POU, Solicitor."
The jury rendered a special verdict in which they found the following facts: "That the defendant is a corporation carrying on the business of a common carrier in the State of North Carolina, and operates a railroad, part of which line lies between the cities of Raleigh and Goldsboro in said State; that during the year 1897 the defendant, through its vice-president, issued to one Hiram L. Grant, who was a member of the General Assembly of North Carolina, an annual free pass, which was accepted as valid for transportation in the State of North Carolina; that on 1 July, 1897, the said Hiram L. Grant was, on the presentation of this annual pass to defendant's conductor, transported free by the defendant between the cities of Raleigh and Goldsboro in said State; that upon the train there were persons who paid for their transportation at the rate of three and a quarter cents per mile for first-class passengers; that during the greater part of the year 1897 passes of substantially like character were issued to the Chief Executive and to the State officers and to members of the Railroad Commission, as they had been for many years previously, and were accepted and used by them in the same manner as by the said Grant; that the members of the Railroad Commission are charged with the duties as set forth in chapter 320, Laws 1891; that the officer of defendant who issued the annual pass was advised by counsel and not by members of the Railroad Commission that he was not violating the law of the State; there was no actual intent to violate the law upon the part of the officer of defendant issuing the pass." Judgment was pronounced on the special verdict against the defendant and the minimum penalty was imposed. (1057)
The question presented for our decision is, Does the act prohibit and make indictable the giving of free transportation to passengers by common carriers? Upon its face clearly it does not in all cases, because in section 25 the giving of such free transportation, or transportation at reduced rates, to certain classes of persons therein particularly specified, is allowed; but the person who received free transportation in this case did not come within either of the exceptions of the statute.
In the argument here the counsel of the defendant company contended that the defendant had not violated the provisions of the statute: First, because there was no intention on its part to violate the law; second, that the statute does not in express terms forbid the giving of free transportation to passengers, and that if the General Assembly had intended such prohibition, that body ought to have made known its purposes in clear and unmistakable language; third, that the giving of free transportation to a particular person, while it charged for like and contemporaneous service another person the prescribed rate of fare, is not an unjust discrimination; that thereby no injustice is done to the person who pays his fare, for he has only paid what the law declares a fair price for the service rendered; fourth, that the "dead-head" and the paying passenger do not necessarily stand "Under substantially similar circumstances and conditions," as contemplated in the statute; and last, that the act itself has received an almost universal and practical construction in accordance with the foregoing views by the habit of railroad companies generally giving free passes since the enactment of the (1058) law, just as they did before, to "gentlemen long eminent in the public service," "higher officers of the State, members of the Legislature, members of the Railroad Commission," etc.
The crucial point in the case is centered around the defendant's contention and assumption that the "like and contemporaneous service" in the transportation of two individuals, one carried free and the other for the prescribed tariff rate, is not necessarily "under substantially similar circumstances and conditions"; that is, that the company can take into consideration, as to whether it will give free transportation to a passenger, the circumstances and conditions which surround two persons, and if one is a "higher official" or a large shipper, or a politician of power whose influence may be of service to the company, or one of social distinction, and the other a laborer, then the conditions and circumstances are not the same and, therefore, the statute does not apply. Of course, if this contention of the defendant is sound, this case is at an end, and the free transportation of passengers is therefore in no case unlawful. So we will examine that position of the defendant first in order.
What then, in respect to the transportation of passengers in connection with the statute, is meant by the words "substantially similar circumstances and conditions"? It cannot be doubted that, if each of two persons desired to ship a thousand pounds of freight of like kind over a railroad between the same points, and at the same time, the company must render the same service at the same rate to both, whether one of the shippers was a politician with a "pull," or a "higher officer," or a member of the Legislature or of Congress, or a laborer. Beyond question, (1059) that would be a like and contemporaneous service in the transportation of a like kind of traffic under "substantially similar circumstances and conditions."
In our opinion, section 4 of the act in plain words prohibits the making of a greater charge against one person than against another, for a like and contemporaneous service under substantially similar circumstances and conditions, applicable to the carriage of both passengers and property. The language is so clear "that he may read who runs." In contemplation of section 4 of the statute, the only possible difference between two individuals is that in relation to the size of their bodies; but this can have no bearing upon the matter of transportation, as the difference in size or weight of persons (over a certain age) has not yet been regarded in the business "of hauling passengers" as ground for making difference in passenger rates. Boiled down, the contention of the defendant on this point is just this: If one person should be the Governor of the State, a member of Congress or of the General Assembly, or a leader in what is called the business or the social world, and the other is an ordinary toiler for his bread, a case of substantially dissimilar circumstances and conditions exist, and the company may give the favored ones free transportation for their influence, and charge and receive from the other full fare because he has no influence! Can it be supposed for a moment that the General Assembly of North Carolina would enact as law, a law purporting to protect the great body of the people against inequality and unjust discrimination on the part of railroad companies, based on such class distinctions? This contention of the defendant, if it could be maintained, would simply divide the people of the State, not into the sheep and the goats, the good and the bad, and reward or punish (1060) them by giving to one and withholding from the others free passes, but into those whose influence is considered valuable to the corporation on the one part, and the remainder of the people on the other, and then giving to the first-named class the privilege of using the public franchise free, while it extorts from the latter the full rates allowed by law; the extortion consisting in making those least able to bear it pay the cost of transporting the well-to-do and influential. That position of the defendant cannot be maintained.
We will now consider the other positions of the defendant: It was insisted that the company was ignorant of the provisions of the law in respect to the prohibition of the free transportation of passengers, and that it had no intention to commit the offense with which it is charged; and counsel dwelt especially upon that finding in the special verdict in which the jury said "There was no actual intent to violate the law upon the part of the officer of defendant issuing the pass." Who was the officer of the company who issued the pass and who put into the hands of the "dead-head" passenger the piece of paper which secured his free transportation that his intention should be inquired into? Probably some local attache. What notice does the law take of his intentions or purposes in the matter before us? The thing which was denounced by the statute, and for which the defendant is indicted, is not the act of giving the free pass. the mere handing to the passenger the piece of paper on which was written the privilege of riding free, but the act of transporting the favored passenger without charge or the payment of fare. The law would be violated if no pass was actually issued, if the passenger was carried free. The favored passenger might be known personally to the conductor, or be made known to him by (1061) preconcerted signs, or mileage books distributed gratis or sold at reduced rates; and in other ways the law might be violated. But we leave the matter of the handing over, by the officer, of the free pass to the passenger and his intention in so doing, as it has no bearing in the case; and we will take up the question of the intent of the acting, working, planning corporation in its giving the free transportation.
If there is anything well settled by the decisions of this Court it is that, wherever an act is denounced as unlawful by statute, the doing of that act constitutes the offense, and the intent with which the act is done is immaterial; and this has been settled law for a long period of time. In the case of S. v. King, 86 N.C. 603, the Court said: "When an act forbidden by law is intentionally done the intent to do the act is the criminal intent which imparts to it the character of an offense; and no one who violates the law, which he is conclusively presumed to know, can be heard to say that he had no criminal intent in doing the forbidden act." In S. v. McBrayer, 98 N.C. 619, it is held that when the statute plainly forbids an act to be done and it is done by some person, the law implies conclusively the guilty intent although the offender was honestly mistaken as to the meaning to the law he violates. In S. v. Voight, 90 N.C. 741, the Court said, "The criminal intent is inseparably involved in the intent to do the act which the law pronounces criminal." To the like effect are the decisions in S. v. Kittelle, 110 N.C. 560; S. v. Downs, 116 N.C. 1064; S. v. Chisenhall, 106 N.C. 676; S. v. Scoggins, 107 N.C. 959; S. v. McLean, 121 N.C. 589.
It is to be observed that in the section of the act under which (1062) this defendant was indicted neither the word "intent" nor any word synonymous with the word intent was used. The act simply denounced the unjust discrimination. And, besides, section 25 of the act excepts from the provisions of section 4 certain carefully specified classes of persons, and such explicit enumeration of the excepted classes absolutely and necessarily excludes all other persons. It is true that in the bill of indictment the word "wilfully" was used in connection with the discrimination, and it was insisted for the defendant that a vicious or covinous intent on its part was necessary to be proved. But that did not follow even if such intent had been alleged in the indictment. It would have been surplusage. S. v. Edwards, 90 N.C. 710; S. v. Keen, 95 N.C. 646. It is only where a statute makes the particular intent an essential element of the crime that it need be charged and proved." S. v. McCarter, 98 N.C. 637. As to the plea of ignorance of the statute in reference to unjust discrimination between passengers, it is only necessary to cite some of the numerous decisions of this Court on that point. In S. v. Downs, supra, the Court said: "Ignorance of the law excuses no one, and the vicarious ignorance of counsel has no greater value." S. v. Boyette, 32 N.C. 336. The law does not encourage ignorance in either. S. v. Dickens, 2 N.C. 406. If ignorance of counsel would excuse violations of the criminal law, the more ignorant counsel could manage to be the more valuable and sought for, in many cases, would be his advice."
But how is it possible to seriously consider that the defendant acted in this matter is ignorance of the law? It is not too much to say in a judicial opinion that the defendant is represented in his legal department by many of the best equipped lawyers in the country; (1063) and it would be a most violent presumption to say, or even to think, that they were not thoroughly posted as to the laws, State and Federal, concerning the interests and liabilities of their clients under this statute. Through their counsel the defendant must have been acquainted with the act of Congress concerning interstate commerce and the rulings of the Commission (Interstate) upon the act; and that act in section 2 is in the very words of the fourth section of the act of our General Assembly, chapter 320, Laws 1891 — the law under which the defendant is indicted. The defendant could hardly be ignorant, in fact, of the decided cases reported by the Interstate Commerce Commission on the matters about which the defendant is before the court. In the case of Griffee v. R. R., in Nebraska, before that commission (2 Interstate Com. Reports, 301) the report and opinion filed nearly ten years ago, it was held in effect that free transportation to a passenger was in contravention of section 2 of the act (U.S.) to regulate commerce (that section being, as we have said, identical with section 4 of the act of our General Assembly of 1891). In the same volume (page 359) in the case of Slater v. R. R., it was declared that free transportation furnished on an annual pass to a person not embraced in one of the excepted classes was illegal. In that case it was further said by the Commission: "Carriers can reward persons not in their stated and regular employment for occasional services or benefits indirectly received, in other and better ways than by furnishing them with free transportation. It may be said that a pass costs the carrier little or nothing, and that when the good-will and occasional good words of a person, who is able to influence the direction of traffic, can be obtained so cheaply, it is a handicap to (1064) prevent the carrier from making use of the opportunity; but the evils in the unrestricted employment of free passes by common carriers had grown so great and had become so apparent, both to the public and to the carriers themselves, that it was deemed by Congress to be absolutely necessary to eradicate the whole system from Interstate Commerce in order to put an end to the abuses which had grown beyond the limits of any other regulation or control. The law was framed accordingly prohibiting the giving of free transportation to passengers carried under substantially similar circumstances and conditions as an unjust discrimination under the general terms employed, with only the exception made in section 22. . ."
In the third annual report of the Interstate Commerce Commission (Vol. 3, page 300, filed 30 November, 1889) it is stated that "the statute (Interstate Commerce Act) undoubtedly was framed to prohibit passes or free transportation of persons as one of the forms of unjust discrimination, favoritism, and misuse of corporate powers that had grown into an abuse of large proportions and become demoralizing in its influence, and detrimental to railroads, both in loss of revenue and in provoking public hostility. One of the minor and meaner phases of this abuse is the distinctive preference shown in various ways by employees both in the service and civility to holders of passes, as if discrimination by free carriage includes discrimination in treatment of passengers."
"It is well known that persons who are carried free were to a large extent precisely the persons who had no claim whatever to such favors. They were officials and others from whom free passes might be expected to secure reciprocal favors, and men of wealth and prominence (1065) who rode at the expense of others less able to pay; or the passes were given to influence business. In nearly all cases, not specifically exempted by the act, the motive in demanding or giving them was one deserving of no favor. The principle of equality under like conditions for the traveling public had been grossly violated by the railroads, favored persons or classes of persons had been furnished free transportation at the expense of the general public by higher general charges to reimburse for gratuitous carriage."
It is of interest to observe that it appears from that report that the returns of the railroad companies embraced therein show the largest number of interstate free passes issued were designated as "complimentary." The next most numerous classes embraced steamship and transportation lines, officers, Federal, State, and municipal, palace car companies and newspapers. Of State free passes, the largest number were issued to members of the legislatures, drovers with "complimentaries" next, and United States, State, and municipal officers, newspapers, and shippers next in numbers.
In the investigation of this subject as it affected the Boston and Maine Railroad Co. (5 Interstate Commerce Reports, 69, December, 1891), it was decided by the Commission that the giving of free passes to others than those embraced in the exceptions were illegal. The opinions of the Commission was in the following words: "The construction we give to section 2 of the act to regulate commerce is that, where the service by the carrier subject to the act is like and contemporaneous for different passengers, the charge to one of a greater or less compensation than to another constitutes unjust discrimination and is unlawful, unless (1066) the charge of such greater or less compensation is allowed under the exceptions provided in section 22, and that, where the traffic is `under substantially similar circumstances and conditions' in other respects, it is not rendered dissimilar within the meaning of the statute by the fact that such passengers hold unlike or, as sometimes termed, unequal official, social, or business positions, or belonging to different classes as they ordinarily exist in a community, or are arbitrarily created by the carrier. Under this construction of the act, the practice of the defendant in giving free transportation, such as it concedes was issued `to gentlemen long eminent in the public service,' `higher officers of States, and prominent officials of the United States, members of legislative railroad committees, persons whose good-will is important to the corporation,' is unwarranted, unless the favored person also comes under some exception specified in section 22 of the act to regulate commerce. In this matter it was that Mr. Richard Olney (afterwards Attorney-General under Mr. Cleveland), who represented the Boston Railroad Co., stated in his brief that Mr. Chandler, who brought the proceeding for the people, was inspired to make the charges in the complaint by `personal spite and political considerations.'"
The report goes on, however, to say that "Mr. Chandler made a reply not without interest or point." In the same decision the Commission said further: "Other utterances and decisions of the Commission to the same legal effect have been made every year since its organization, and its construction of the act has been indicated by its repeated recommendations to Congress to add other classes of persons to the exceptions (as they were always regarded by the Commission) contained in section 22. We find not only these views held by the Commission from the organization, but by the Federal courts when the question has (1067) arisen." The case of Harvey v. R. R., 5 I. C. C., 153, closes with the following declaration: "The fundamental and pervading purpose of the law is equality of treatment. It assumes that the railroads are engaged in a public service and requires that service to be impartially rendered. It asserts the right of every citizen to use the agencies which the carrier provides on equal terms with all his fellows, and finds an invasion of that right in every unauthorized exemption from the charges, commonly imposed. No form of favoritism and no species of partiality seem more odious or indefensible than that which accords to personal influence or public station privileges not enjoyed by the community at large. The free carriages of certain persons merely because they occupy official positions, or have acquired some measure of distinction, offends the rudest conception of equality and contravenes alike the policy and the provisions of the statute."
As to the last position of the defendant, that is, the alleged practical construction which the common carriers and the favored passengers have put upon the statute, the first giving and the last receiving free transportation, just as they did before the enactment of the statute, and assuming that the general community have adopted that as the proper construction of the law, we have nothing to say, except that it would seems to all reasonable minds that such a construction could not be the proper one, and that the law, as often construed by the Interstate Commerce Commission, which construction seems true to us, is a just and wholesome law. In the face of the clearly expressed provisions (1068) of the law and in face of the repeated constructions of that part of the Federal statutes regulating interstate commerce, which is in precisely the same words in which our statutes are framed upon the point now before us, the defendant took its chances. It has in doing so violated the criminal law of the State and must abide the consequences as all others ought to do who break the laws. It must be presumed that common carriers know well what they are doing in this matter. They are nor, and neither do they wish to be considered, charitable institutions; they are corporations formed for profit and gain; and whenever they grant a thing of value — free transportation to a passenger not embraced in the excepted classes specified in the act — they must be acting, as they think, on business principles expecting a return upon their investments. If, in pursuing their business interests, they violate the law, they must abide the result. There is no error, and the judgment is