concurring: I would be content to simply concur in,the very able and exhaustive opinion prepared for the Court by Mr. Justice Walker, without .any expression of my own, but for a suggestion made in the dissenting opinion that our decision probably necessitates the calling of a special session of the General Assembly, and the regret therein expressed that so heavy an expense should be incurred by the taxpayers.
In view of what this Court has decided in this case, it is hard to believe that any one should seriously entertain the idea that a special session of the General Assembly is either necessary or advisable as a result of its decision. We have held: (1) That the Federal courts have no power whatever to interfere in this matter with the enforcement of our statute. (2) That every agent of the defendant, from the president down, who sells a ticket or directs the sale of one above the statutory rate may be indicted, fined and imprisoned. (3) That for each ticket so sold, the corporation itself, as a distinct inanimate entity, separate and apart from its agents who control it, may be mulcted to the extent of $500.
*548With the proper enforcement of this statute, as expounded by us, no railway company could survive a week’s violation of it. The railway officials know this, and for that reason it is universally understood that they have entered into an agreement to keep in force the statutory charge until the rate litigation pending in the Federal Court and referred to in our opinion shall have been finally determined by the Supreme Court of the United States. That the railroad companies will continue to obey the law until then, and notwithstanding our decision, no reasonable man can scarcely doubt. But consideration of that kind ought not to control our decision when we are firmly convinced of its inherent soundness. We have based our decision upon that part of section 4 of the statute which does not appear in the dissenting opinion, but does appear in the opinion of the Court, and is in these words: “That any railroad company violating any provision of this act shall he liable to a penalty of $500 for each violation,” to be recovered by the party aggrieved.
We find that the following principle of statutory construction is embedded in our law and has been acted upon from time immemorial: that where a statute creates a new offense (an act which was not an offense before) and imposes a money penalty for its violation and provides how that penalty shall be recovered, the offender shall be punished by that method only, and the remedy by indictment is forbidden.
The application of that established principle of statutory construction to this case necessarily destroys this indictment. Any lawyer or layman who reads the opinion of Mr. Justice Walker will see that he has traced the establishment of this principle down through the centuries from the earliest days of the common law to recent decisions of this Court, and fortified it by an unbroken, and overwhelming line of judicial precedents and the opinions of the most eminent text writers, none of which is controverted or denied. It is suggested, however, that we should overrule our decisions if they stand in the way *549of sustaining tbe indictment against tbis corporation. There are some decisions which have been overruled because experience has shown their inutility. But the authorities relied on by us establish a great and beneficent principle of human rights, applicable to individuals as well as to corporations, and that is, that no one shall receive double imnishment, and never unless the power to inflict it and the intent to impose it are perfectly clear.
It is plainly manifest that the General Assembly did not intend that double punishment should be inflicted in this case. No penalty is imposed on the agents who control and act for the railway corporation. They are indictable for a simple misdemeanor, as they are responsible human beings who control and act for the corporation and may be punished. But, inasmuch as the corporation itself is an inanimate thing and cannot be punished by imprisonment, the General Assembly wisely determined it should be punished by money penalties, and that, instead of the penalties going to the State, they should go to the traveling public who suffer by a violation of the law.
We have decided this case upon a construction of our statute, and that we have decided it according to the established law of the land I have no doubt mil be the conclusion of the fair-minded and unprejudiced lawyers and laymen who may read these opinions.
“It is the function of a judge,” says my Lord Golee, “not to make but to declare the law according to the golden metewand of the law and not by the crooked cord of discretion.”