concurring opinion:
The only part of this opinion in which I concur is that the case of The Illinois Central Railroad Company v. Commonwealth, 23 R., 1159, 64 S. W., 975, controls in this case, and that therefore the peremptory instruction should have been given to find for the appellant. I do not assent to some of the statements and expressions in the opinion, nor do I agree with any ¡statements therein which are, or seem to be, in conflict with previous opinions of this court construing section 218 of the Constitution.
I dissented from the opinion of the court in The Illinois Central Railroad Co. v. Commonwealth, 23 R., 1159, 64 S. W., 975, upon the idea that the Legislature in the enactment of section S20 had gone farther than it was authorized to go by section 218 of the Constitution. Section 218 of the Constitution reads as follows: "‘It shall be unlawful for any person or corporation owning or operating a railroad in this State, or any common carrier, to charge or receive any greater compensation in the aggregate for the transportation of passengers, or of property of lilce kind, under substantially similar circumstances and conditions, for a shorter than for a longer' distance over the same line, in the same direction, the shorter being included within the longer distance; but this shall not be construed as authorizing any common carrier, or person or corporation, owning or operating a railroad in this State, to receive as great compensation for a shorter as for a longer distance; provided, that upon application to the railroad commission, such common *800carrier, or person or corporation, owning or operating a railroad in this State, may in special cases, after investigation by the commission, be authorized to charge less for-longer than for shorter distances for the transportation of passengers, or property; and the commission may, from time to time, prescribe the extent to which such common-carrier, or person or corporation, owning or operating a railroad in this State, may be relieved from the operation of this section.” Section 820, Kentucky Statutes, reads as follows: “If any person, owning or operating a railroad in this State, or any common carrier, shall charge or receive any greater compensation in the aggregate for the transportation of passengers or property of like kind, under substantially similar circumstances and conditions, for a shorter than for a longer distance, over the same line in the same direction, the shorter being included within the longer distance, such person shall, for each offense, be guilty of a misdemeanor, and fined not less than one hundred nor more than five hundred dollars, to be recovered by indistment in the Franklin Circuit Court, or the circuit court of any county into or through which the railroad or common carriers so viola,ting runs or. carries on its business. Upon complaint made to the railroad commission that any railroad or common carrier has violated the provisions of this section, it shall be the duty of the commission to investigate the grounds of complaint, and if, after such investigation, the commission deems it proper to exonerate the railroad or common carrier from the operation of the provisions of this section, an order in writing to that effect shall be made by the commission, and a copy thereof delivered to the complainant and the railroad or common carrier and the same shall be published as a part of the report of the commission; and after such order, the railroad *801or carrier shall not be prosecuted or fined on account of the complaint made. If the commission, after investigation, fails to exonerate the railroad or carrier from the operation of the provisions of this section, an order in writing to that effect shall be made b.y the commission and a copy thereof delivered to the complainant and the railroad or common carrier, and the same shall be published as a part of the report of the commission; and, after such order, it shall be the duty of the commission to furnish a statement of the facts, together with a copy of its order, to the grand jury of any county, the circuit court of which has jurisdiction, in order that the railroad company or carrier may be indicted for the offense; and the commission shall use proper efforts to see that such company or carrier is indicted and prosecuted.”
In Illinois Central Railroad Company v. Commonwealth, the question before the court, as stated by it, was “whether, under the statute, the carrier may be indicted by the grand jury before the railroad commission has refused to exonerate it.” In that case complaint had not been made to the railroad commission before the indictment was found, and the court decided that it was necessary that the railroad commission should act upon a complaint, and refuse to exonerate the carrier, before an indictment could be found. In discussing the matter, the court said: “If the Legislature had intended an indictment to be found for each offense, regardless of action by the railroad commission, we see no reason why this section might not have stopped with the first sentence, defining the defense and providing for its punishment. . . . Tb indict the carrier in the first place without the action of the railroad commission would be to deprive it of all benefit of this *802provision. . . . The Legislature therefore provided for the preliminary hearing before the railroad commission, not as a cumulative remedy, but that it might determine whether the carrier should be'exonerated or not; and therefore it was provided that, if the commission relieved the carrier from the operation of the section, no prosecution could be had on account of the matter complained of.” Again the court said: “To allow the carrier to be indicted in advance of any action by the railroad commission under this section would be to deprive it of all opportunity for exoneration.” As I understand the facts, no complaint was ever made to the railroad commission that the appellant had been guilty of the unlawful act for which it was indicted. The railroad commission therefore never had ah opportunity to determine whether or not an indictment •should be found against it.
The court refusing to recede from its position in that case, the question then arises, should a member of this court disregard that opinion in order to sustain this prosecution? I am unwilling to do so. It appears that complaints in other cases were filed with the railroad commission, ■to the effect that the appellant had violated section 820 of the Kentucky Statutes in the matter of the transportation of coal to Lebanon; and, as the railroad commission refused to exonerate in those cases, therefore it must be held as having refused to exonerate the railroad company from its unlawful act here in question. The court, in the Illinois Central case, held that section 820 of the Kentucky Statutes was constitutional. This act denounces a penalty for any violation of it. It means to make a carrier liable to prosecution for any violation of it in the transportation of the property of any individual, corporation, etc. It. is contemplated by the section that some one *803shall make complaint to the railroad commission, so that it shall act upon the complaint. It is called upon under that section to determine whether the carrier shall be exonerated from the act of which complaint is made. It is provided in the section that, if the commission refuses to exonerate the carrier, an order in writing to that effect shall be made, and a copy thereof made and delivered to the complainant and carrier; and it is further the duty of the commission to make a statement of the facts, and furnish that, together with its order, to the grand jury of the county, etc. If the opinion of the court is correct in the Illinois Central case, then the carrier is entitled to a hearing before the railroad commission on any complaint that is made of its violation of the section of the statute, and the grand jury can not return an indictment until the railroad commission has passed upon the question and refused to exonerate. Section 218 of the Constitution authorizes the railroad commission in special cases, after investigation, to allow carriers to charge less for the long than the short distance, etc., and may prescribe the extent to which such common carrier may be relieved from the operation of that section of the 'Constitution. A; “special case” referred to in that section might embrace a case for all the coal hauled to Lebanon from some point South of there, or it might embrace a case for the transportation of all wheat that might be transported there. It was not intended to restrict it simply to permission to some carrier to make a single shipment, and charge less for the long than for the short haul. This provision of the Constitution authorizing the railroad commission to consider special cases, etc', is not for the purpose of allowing it to determine whether the carrier shall be indicted for past offenses, but is for the purpose of allowing it to *804determine whether or not it shall be entitled to charge less for the longer than for the shorter distance for the transportation of passengers, property, etc., and to determine to what extent the common carrier should be relieved from the operation of the section. This section does not attempt to confer upon the railroad commission the right to relieve against previous acts, but to give it the authority to make it lawful for the carrier to charge more for the short than for the long haul. If the carrier charges more for the short than for the long haul, under substantially similar circumstances and conditions, under section 218 of the Constitution, it is guilty. It can only be guiltless under that section, for such acts, when the railroad commission has authorized it to charge less for the longer than for the short distance, or it has been relieved from the operation, of the section. This section is dealing with the future, not the past, acts of the carrier. Section 820 of the Kentucky Statutes allows the commission to exonerate the carrier from a single act which it has done in violation of the statute, although the carrier had not previously been authorized to charge less for the long than for the short haul. This section is predicated upon the idea that the railroad commission has not given the carrier the right to charge less for the long than the short haul; that the carrier, for that reason may have violated section 218 of the Constitution. Section 820, Kentucky Statutes, has reference to past acts, while section 218 of the Constitution is dealing with future ones.
My opinion is that section 820 of the Kentucky Statutes did not conform to the requirements of the Constitution, for reasons in part above indicated;-hence I dissent in the Illinois Central case. . The pardoning power is not vested in the railroad commission by the Constitution, but in the *805Governor. However, as that opinion is the law, it should be respected by this court, and the court should not allow a punishment to be inflicted upon a carrier in disregard of the law as adjudicated therein. If this court refuses to follow the law as determined by it, such refusal is not calculated to beget respect for its opinions. Being of the opinion that, under the rule of the Illinois Central case, the appellant was entitled to peremptory instruction, I concur in the opinion in this case to that extent only, as the opinion in that case, is as binding upon me as if I had originally agreed to it.
To preserve the unity of history, I desire to add the following to my concurring opinion:
In the Illinois Central case the court had under consideration an indictment which described the offense in language as follows:
“The said Illinois Central Railroad Company, a railroad corporation owning and operating now and at the time hereinafter mentioned, a line of railroad extending from Deanfield, Ky., through Stephensburg, Ky., and Hardin county, Ky., to Louisville, Ky., did, on the - day of October, 1898, and within twelve months before the finding of this indictment, in the said county of- Hardin, unlawfully charge and receive of W. H. Oliver for the transportation of a carload of coal over said railroad from said Dean-field to said Stephensburg the sum of $35.40, being at the rate of six cents per hundred pounds, when for the transportation of a similar car load of coal of like kind from said Deanfield to said Louisville, under substantially similar circumstances and conditions, over the same line in the same direction, said Illinois Central Railroad Com*806pany did at said time charge and receive of various persons less compensation than six cents per hundred pounds, the distance from said Deanfield to said Stephensburg being shorter than and included in the distance from said Dean-field to said Louisville, and defendant, at said time, not laving been authorized by the railroad commission of this. Commonwealth to charge less for the transportation of coal for said longer than for said shorter distance.”
The charge in the indictment was for charging W. H. Oliver more for the short than other persons were charged for the long haul, etc. It was a single shipment under consideration. The word “exoneration” is not used in section 218 of the Constitution. It appears in the statute only. Exoneration is therefore only provided for in the statute. Exoneration is “the state of being disburdened or freed from a charge.” It is something that is supposed to take place after a charge has been made. The carrier for making a charge against the prohibition of section 218 of the Constitution is guilty of its violation whether the railroad commission has been called upon to relieve the carrier from its operation, and refused to do so, or has never been called upon to determine whether or not it should be relieved from its operation. When the railroad commission refuses to relieve the carrier from the operation of section 218 of the Constitution, the matter stands as if no action had been taken whatever.
Judge Nunn dissents.