dissenting opinion:
To properly understand the questions before us in this-case, it is necessary to review the previous decisions of this court construing the section of the statute in contro*807versy, and the provision of the Constitution it was designed to carry into effect. In the first case (Louisville & Nashville Railroad v. Commonwealth, 104 Ky., 226 (20 R., 491) 46 S. W., 707, 47 S. W., 210, 598, 43 L. R. A., 541) it was insisted that the existence of competition at the terminus of the longer haul, of itself, took the case out of the •operation of the statute and the constitutional provision; but it was held that the difference of circumstances and conditions contemplated by these provisions did not include •extrinsic facts not connected with the carriage in any way, such as existence of competition' at one point, and not at another. In that case it was also contended that the special case from which the carrier might be exonerated meant a special shipment, and that therefore it was necessary to aver in the indictment the amount charged and received for the longer haul, and the name of the person thus favored. The court held otherwise, on the ground that the gravamen of the offense is charging for the shorter haul a greater rate than the prevailing rate for the longer haul. The court said: “Nor was it necessary to designate any particular person or persons, probably numerous, than whom Shreve had been charged' and required to pay greater compensation; for section 218 (Constitution) was intended to prevent discrimination rather between localities than between persons. So, in order to convict of an offense like the present, it 'suffices to state in the indictment that the specified amount charged or received for the shorter distance was greater than that charged or received from persons generally or usually for the longer ■distance, and to support the allegation by the carrier’s published schedule of rates, or other competent evidence of the *808fact.” In the next case (Louisville & Nashville Railroad v. Commonwealth, 106 Ky., 683 (21 R., 232) 51 S. W., 164, 1012) the preceding case was adhered to. But that case had been prepared with a view to an appeal to the United States .Supreme Court, and the question was again raised as to what was the special case referred to in section 218 of the 'Constitution, and what was the meaning of the words “complaint” and “exoneration” in section 820 of the Kentucky Statutes. The question before the court was whether these words referred to each shipment of freight, or to discrimination in rates between localities. In other words, could the carrier be exonerated as a special case on certain class of freight between given points, or must he be exonerated on each shipment to any individual— whether a barrel of pork, a box of dry goods, or a car of coal? If the latter, it was said that the statute gave the carrier no practical protection at all, because he could not be exonerated on any shipment until it was made, and his exoneration on that shipment was of no effect on any other shipment, so that he could never know how to conduct his business, and therefore the statute was not in accord with the Constitution, because it afforded no practical means of exoneration from the section. In answer to all this, the court said: “It w.as the aim of the Constitution to require the railroads in the State to treat all localities fairly and with equality; but as differences of condition, ever-varying, would constantly arise, it prescribed no fixed rule, but created a tribunal to act as umpire between the railroads and the people, and decide when and to' what extent a greater charge might be made for a short than for a long haul under like circumstances and conditions, with full power in special cases, from time to time to pre*809scribe 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. It is not confined in its power to each shipment as it may be made, but may prescribe from time to time a suspension of the section on freight of a given character between given points, as the public interest and tile ends of justice may require.” In the third case (Louisville & Nashville Railroad Company v. Commonwealth (21 R., 239) 51 S. W., 167) the question was made by the railroad company that the order of the railroad commission was improperly admitted in evidence against it. On the other hand, it was insisted by the Commonwealth that the order of the commission was properly admitted in evidence, as it was the basis of the proceeding. Although there had been some differences in the court on the other questions, on this question the whole court concurred in the judgment, that the order of the commission was properly admitted in evidence. This question had been made by the railroad company before in the first case, which had been affirmed, but in that case the railroad company insisted that the averments of the indictment were not sufficient to show that the railroad commission had refused to exonerate it. The court held the indictment sufficient. Of course it was not claimed by the court or by counsel that the order of the railroad commission was competent to be read to the jury unless it was a prerequisite to the prosecution, and the basis of it. For it could not be competent on any other ground. And the admission of it was' very prejudicial, if it was incompetent, for it served to put the defendant in a bad light before the jury, and in that case the jury had inflicted a very' heavy fine.
*810Taking these three cases, in which all the court concurred, so far as the questions now before the court go, what do they establish? (1) That section 218 of the Constitution, and the statute made to enforce it, were “intended to prevent discrimination rather between localities than between persons; that it was the aim of the Constitution to require the railroads of the State to treat all localities, fairly and with equality.” .(2) That in special cases the commission might exonerate the carrier, but it was not confined in its power to each shipment as it might be made, but might prescribe from time to time, a suspension of the section on freight of a given character between given points, as the public interest and the ends of justice required. (3) That the order of the railroad commission refusing to exonerate the carrier was the basis of the prosecution.
After all this had been settled, the case of Illinois Central Railroad v. Commonwealth of Kentucky, 23 R., 1159, 64 S. W., 975, arose; and in it the court was urged, notwithstanding what it had previously decided, to hold that the order of the railroad commission was not the basis of the proceeding, and that a prosecution might be maintained before any order had been made by the railroad commission refusing to exonerate the carrier. The court refused to recede from its previous opinion, and this is all that was decided in that case. No question was made in that case by court or counsel as to the necessity of an exoneration of the-carrier, or a refusal to exonerate him, for the shipment of a particular carload of coal, or a shipment to a particular person. The court had previously held unanimously, so far as that question went, that the exoneration need not be on each shipment, but might be on a given character of freight *811between given localities. In the opinion of the court the precise question that was- in the mind of the court is shown by its statement of the case in these words: “Appellant was indicted in the Hardin circuit court, and fined two hundred dollars, for charging more for hauling a carload of coal from Deanfield, Kentucky, to Stephensburg, Kentucky," than from Deanfield, through Stephensburg, to Louisville: The indictment was returned June 10, 1899. At that time the, railroad commission had not determined whether appel-; lant should be exonerated as provided by statute. The first question to be determined on the appeal is whether, under' the statute, the carrier may be indicted by the grand jury before the railroad commission had refused to exonerate it.” 1 When the court used the words “exonerate,” and “exonera-' tion,” it used them in the sense in which those words had, after the fullest deliberation, been defined by the entire court, — as not referring to a particular shipment, but to a difference of- rate between localities. This case merely adhered to the rule that had been before laid down, changing it in no particular, and, with the preceding cases, made out what seems to be a reasonable, construction for both the carrier and the shipper, giving both some practicable protection from the statute. When it was decided, the railroad commission, pursuant to the rule before laid down, had made general orders exonerating carriers on coal between certain points, but the Illinois Central Company was indicted before action was taken as to it. The carrier need not be exonerated from each shipment that he makes, but may be exonerated on the rate of a given class of freight between certain points, and this exoneration remains in force until changed by the railroad commission. So that the carrier, when his rights have thus been defined, can safely *812carry on his business without incurring criminal liability until the commission makes some further order, and after that is made he must conform to it. On the other hand, the shipper, when the commission has refused to exonerate the carrier, may appeal for his protection to the grand jury of his county to indict the carrier for extorting money from him which it has no right to charge. In this way obedience to the orders of the commission is se,cured, shippers are protected, and at the same time the carrier can not be put to the cost of criminal prosecution without action by the railroad commission determining that a state of facts does not exist, justifying the exoneration of the carrier from the operation of the long and short haul clause; nor can he be deprived of a hearing on this question, as he would be if he might be indicted in advance of action by the railroad commission, for the evidence on this subject can not be introduced before the jury, as only the railroad commission has power to exonerate from the section.
In the majority opinion, as well as in the separate concurring opinion, none of the three first cases decided by the court are criticised or overruled, and it must be assumed from this that the court does not mean to overrule those cases. Putting those cases by the side of the opinion which is now delivered, the court places itself in a very anomalous, position. It is thus held, on the one hand, that the word “complaint” and the. word “exonerate,” in the statute, where the carrier is exonerated, do not refer to the particular shipment by a particular shipper, but to a discrimination between localities,- in giving a less rate for the long than for the short hank And it is at the same time, held that the same words in the same statute, where the carrier is not exonerated, do refer to the particular shipper, and not to *813the discrimination between localities by the giving of a lower rate for the long than for the short haul. Certainly the court can not maintain such a position that the same words in the same statute have one meaning in favor of the carrier, and a different meaning against the carrier. But if the court’s decision in this case is to be taken as overruling the previous cases, and determining that the words “complaint” and “exonerate,” in the statute, refer to. the particular shipper, either in favor of the carrier or against i-t, then it will follow that the exoneration of the carrier is of no service to it, except as to the particular shipment in controversy, and he can be indicted for the next shipment, and null never know in advance how intelligently to carry -.m his business. If such had been the legislative intent, there was no need in the statute to require action by the railroad commission before the, carrier could be indicted, nor reasonably would such a heavy penalty have been imposed. The court’s opinion, construing the statute to mean that the carrier could not be indicted before, the commission had declined to exonerate it, rests, in the end, upon the construction of the statute made in the, previous cases, — that the exoneration was not from a particular shipment, but as to the rate on the article in question between the localities.
Much has been said in the case about the hardship of it, but, when the court of last resort is influenced by such considerations as this in the construction of a statute, who shall stand up for the. sanctity of the law, which,- after all, is the protecting aegis of life, liberty and property? But there is no such hardship as supposed. If the commission exonerates the carrier, this order continues in force until revoked by the .commission, and until then both the *814carrier and the shipper know how to order their affairs. It is the duty of the carrier to- conform to the order of. the commission, where it refuses to exonerate. If a change of circumstances arises, either the carrier or the shipper can bring the matter to the attention of the commission, and have the question reinvestigated. In the first case it was objected to the statute, among other things, that it gave the carrier no right to complain, and was therefore inconsistent with the Constitution; but the court held that the provision of the Constitution was to this extent, self-executing, and that either the carrier or the shipper could complain. L. & N. Railroad v. Commonwealth, 104 Ky., supra. If, after the commission refuses to exonerate the carrier, he, in disobedience of its order, continues his discrimination, the state of case arises which the Legislature contemplated in section 820, and which it, by its severe penalties, undertook to prevent. To construe the statute to mean that the carrier can not be indicted Without action by the railroad commission, and that it can only be indicted then as to the particular shipment it has investigated, is to deny the people of the State all reasonable protection from the statute. It seems to me that there is no reason for departing now from the conservative middle line which the court has heretofore laid down, to which the business of the State has been adjusted, and which gives a reasonable protection to both the shipper and the carrier.
The separate concurring opinion is devoted mainly to showing that the court was wrong in the case of The I. C. Railroad v. Commonwealth. Space does not permit a reargument of the question then decided. Suffice it to say that, if the statute is unconstitutional, it is the only *815authority of the court for inflicting criminal punishment. The penalties therein denounced are the punishment of the aets therein provided for, and it does not follow, by any means, that the Legislature would have provided these penalties for a greater charge for the short than for the longer haul, unless it had provided for an exoneration of the carrier; for the plain purpose of the section was to provide a modus for carrying into effect the provisions of the Constitution, and to provide an adequate penalty to secure respect for the orders of the commission. It is not one of those cases, therefore, where the court could reject part of the statute as unconstitutional, and enforce the remainder. The case of Illinois Railroad v. Commonwealth was written upon the idea that this court had settled that the exoneration of the carrier was not as to each shipment, but as to the rate between localities, and that an exoneration once made thereon protected the carrier until this order of the commission was revoked. The court then merely followed its previous ruling. It did not decide that there must be a refusal to exonerate on each shipment before an indictment of the carrier could be had. The doctrine now announced is not warranted by anything in that opinion, but, on the contrary, is a departure from the principles on which that opinion is based. The ground of that decision was simply that, as the exoneration or refusal to exonerate went to the rate between the localities, the commission was to pass on the rate before the carrier could be indicted. If the commission approved the rate, there could be no indictment. If it refused to exonerate the carrier, he might be indicted, not only for what he had done, but for what he might do thereafter, in violation of the ruling of the commission. One reason which the Leg-. *816islature probably had in mind in framing the statute as it did was that emergencies might arise when immediate action by the carrier might be necessary before the commission could decide; and it was allowed, at its peril, to trust to the commission giving an exoneration, if it saw fit, where the public necessities demanded it, as in the case of a coal famine, or the burning of a town, or the like. The commission was given general supervision over the matter, as it had been before, and it was supposed that no great harm in this way could be done, as complaint might be made any time to the commission.
As- heretofore construed by the court, the carrier can not suffer unduly, and may safely carry on his business after .the commission has once acted; and, on the other hand, the shippers are adequately protected by the power to indict and punish the carrier not only for all violations of the order of the board, but for his previous acts, if he is not exonerated.
The order of the board made in 1899 in this case, by its terms .following the decision of this court, exonerated the carrier from that time and for the future, and until the further order of the board. It does not purport, on its face, to have any retroactive effect. The commission did not assume to exercise condoning power. It has no such power. It has only the power of exoneration, and, when it refuses to exonerate, its order must be obeyed while in force; and, if it is not obeyed, the carrier can only appeal for pardon to the executive as to acts done in violation of the orders of the commission.
I therefore dissent from the judgment of the court.
Judge Settle concurs in this dissent.Petition for rehearing overruled.