in whatever form it may be enacted by which the property of onè individual is, without compensation, wrested from him for the benefit of another, or of the public. This, as has been often observed, is a government of law, and not a government of men, and it must never be forgotten that under such a government, with its constitutional limitations and guarantees, the forms of law and the machinery of government, with all their reach and power, must in their actual workings stop on the hither side of the unnecessary and uncompensated taking or destruction of any private property, legally acquired and legally held."

In St. Louis & San Francisco Ry. Co. v. Gill, 156 U. S., it was held that when a State Legislature establishes a tariff of railroad rates so unreasonable as to practically destroy the value of the prop erty of the company engaged in the carrying business, courts of the United States may treat it as a judicial question and hold such legislation to be in conflict with the Constitution of the United States, -depriving the company of its property without due process of law, and as depriving it of the equal protection of the law.

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In the case of Covington, &c., Turnpike Co., v. Sanford, 164 U. S., 578, it was held that the courts have the power to inquire whether a body of rates prescribed by a Legislature is unjust and unreasonable and such as to work a practical destruction of rights of property, and if found so to be, to restrain its operation, because such legislation is not due process of law.

In Smyth v. Ames, 169 U. S., 466, after an elaborate review of all the authorities, the court held, as it had frequently done be fore, that a railroad corporation is a person within the meaning of the fourteenth amendment declaring that no State shall deprive any person of property without due process of law, nor deny to any person within its jurisdiction the equal protection of the law. In that case the court also held that a State enactment, or regulations made under the authority of a State enactment establishing rates for the transportation of persons or property by a railroad that will not admit of the carrier earning such compensation as, under all the circumstances, is just to it and to the public, would deprive such carrier of its property without due process of law, and deny to it the equal protection of the laws, and would therefore be repugnant to the fourteenth amendment of the Constitution of the United States. The court held further, that while rates for the transportation of persons and property within the limits of a

they are so unreasonably low as to deprive the carrier of its property without such compensation as the Constitution secures, and, therefore, without due process of law, can not be so conclusively determined by the Legislature of the State, or by regulations adopted under its authority, that the matter may not become the subject. of judicial inquiry. The court also held further, that the idea that any Legislature, State or Federal, can conclusively determine for the people or for the courts that what it enacts in the form of law, or what it authorizes its agents to do, is consistent with the fundamental law, is in opposition to the theory of all our institutions as the duty rests upon all courts, State or Federal, when their jurisdiction is properly invoked, to see to it that no right secured by the supreme law of the land is impaired or destroyed by legislation. And Mr. Justice Harlan, in delivering the opinion of the court in that case, at page 528, said: "The perpetuity of our institutions and the liberty which is enjoyed under them depends, in no small degree upon the power given the judiciary to declare null and void all legislation that is clearly repugnant to the su preme law of the land."

The courts of the United States have not hesitated, and, in order to preserve to all persons, corporations and individuals alike, the guarantees of the Constitution against invalid legislation, whether State or national, should not hesitate to enforce the supreme law of the land. If in these cases the Legislature or the railroad commission had established any rate by or through the act complained of, the reasonableness and justness of that rate would be the legiti mate subject of judicial inquiry under the decisions referred to, but no rates have in fact been fixed, and none are authorized to be fixed except pursuant to the express provisions of the act itself, nor until the commission has, after trial, "determined" that the railroad company has been "guilty of extortion." It will be observed that there is no general power delegated to the commission to fix rates, nor does the statute creating the commission give it any such right. Its sole authority in the premises is stated in the act above set forth, and must be based upon its conviction of the railroad of extortion. It can not move until what we may call this jurisdictional fact has been ascertained to exist, and then, having proceeded to determine that the railroad has been guilty of extortion, "although it has been furnished with no unmistakable statutory standard as to what is to be held to be extortion, it lowers the rate of that road for that particular service. Its own opinion, its own judg

ment, is the sole guide upon both questions. If the law only conferred on the commission power to fix a schedule of rates for all railroads in the State generally it would be the duty of the court to await its action in that regard, and then permit those rates, if called in question, to stand or fall as they might, in the court's judgment, be just and reasonable or the reverse.

It might be conceded that in case a railroad commission was given general power to establish a schedule of rates, a failure on the part of a carrier to conform to those rates when established might be made punishable. (Reagan v. Farmers' Loan & Trust Co., 151 U. S., 362.) But this does not yet reach the cases before us. Here the power given is to be exercised only where the commission has "determined" that the railroad company has been "guilty of extor. tion" in a given instance or instances complained of, and then apparently only by way of punishment therefor, or as an occasion for laying a foundation for other punishment, although the Legislature has established no definite test (unless in the Louisville & Nashville Railroad case) of what is an extortionate rate, and no positive guidance in the case of any of the complainants, unless it be that company, whose charges are fixed at the maximum rates stated in its bill. It is frankly and altogether properly conceded upon all hands that the railroad commission is not constitutionally a judicial body, and can not, under the Constitution or laws of Kentucky, rightly exercise judicial functions. Section 27 of the present Constitution of the State provides that the powers of the government shall be divided into three separate departments, and each of them be confined to a separate body of magistracy, namely, the legislative, the executive and the judicial, and section 28 provides that no person or collection of persons being of one of those departments shall exercise any power properly belonging to either of the others. Under section. 109 to 144 inclusive, the judicial department of the State Govern ment is established, and no judicial tribunals, except those named therein, can lawfully be established in Kentucky. A railroad commission is not one of these.

The Supreme Court of the United States in many cases hold thai a railroad commission is a mere administrative body, and part only of the executive department of the government.

Our analysis of the act in question, however, has clearly shown that the whole apparent purpose of the act was to give the commission the judicial power, or at least the quasi-judicial power, to

tion," and as a result to lower the freight rate of that railroad for: similar services. The commission could act only upon complaint. made to it, unless in the presumably rare instances when informa-tion should otherwise come to it. The complaint must show what. is loosely called a charging of an "extortionate" freight rate. The company complained of must be notified. This, it is true, must begiven, not personally, but only through the mails, and the notice may be sent to a mere employe, who may be the most insignificant. laborer, and one who cares nothing for the interests of his employer. But there must be, at least, this sort of notice through the mails. At the hearing of the complaint evidence which the commission may adjudge to be "relevant" may be heard. Arguments may be submitted and depositions may be taken and read. When the commission had "determined" that the company is "guilty of extortion” it shall then fix the rate thereafter to be charged in similar cases by that company only and not by carriers generally. This shall be entered upon the records of the commission. Afterwards, if the company thus found "guilty of extortion" shall in a like case charge or collect a rate greater than the one thus fixed, or if any of its employes shall do so, it shall be guilty of the crime of extortion.

These matters all bear the marks of a judicial proceeding, and the fixing of a lower rate has all the appearance of inflicting that much punishment upon the party found "guilty of extortion" by this non-judicial body. But the act goes further, and provides that if after the rate is thus fixed, that if after this possible punishment is thus inflicted, that company charges a higher rate for similar services, however reasonable it, in fact, might be in the judg ment of a court, the real judicial tribunals of the State are then given the power to punish it or its employes therefor, though the power is apparently withheld from those courts of judicially inquiring whether the rate thus fixed under these circumstances by the commission was just or reasonable, or whether in the case of the Louisville & Nashville Company they exceeded the rates it is expressly authorized to charge by its charter.

It will be seen, too, that the act might literally apply equally and indiscriminately to domestic and to interstate traffic alike, although as to the latter it can not be pretended that the Legislature could give the commission any power whatever. That the commission can not, upon any complaint or information, lawfully base any action upon charges of freight rates upon interstate commerce is too clear for argument, but as that may be true, and the

commission still have power to fix rates upon local freight, the question yet remains as to the respective rights of the complainants and the commission in respect to domestic commerce.

In a line of cases like Baldwin v. Franks, 120 U. S., 686, the rule is established that where the language of a statute is so broad as to cover cases which are beyond the constitutional limits of legislative power, as well as those which are not, the courts will not attempt to separate them, but will hold the entire statute to be void, and it is insisted that this principle should be applied at this point to these cases. It is, however, conceived that while the rule must apply to congressional enactments, there may be difference where State laws are involved where there is a degree of necessity for confirming the language used to State concerns. But without deciding the point, and assuming, as is probably fair, that the Legislature only meant the act in question to refer to changes of freight rates on local commerce, it still seems to the court that it is subject to several objections which can not be overcome.

First, if one railroad should be convicted by the commission of having been "guilty of extortion" and if a lower rate should consequently be fixed by it, such rate is prescribed for the guilty railroad alone and for none of the others. The effect of the determination that the railroad has been guilty of extortion is individual. This being so, the others are still at liberty to charge, as proper, a rate, which, if charged by the one thus convicted, would be deemed extortion, thus not not merely inflicting a single penalty for a single offense, but placing the guilty railroad at the disadvantage of having a lower rate than its rivals, and depriving it of the equal protection of the laws. It can not be just, it can not be an equality of right or of protection, for an act to be unlawful if done. by one railroad in Kentucky and perfectly lawful if done by another railroad in the same State.

Second, the investigation of a complaint and the decision thereon by the commission that the railroad complained of is "guilty of extortion," being the only way to put the act in motion, the railroad is entitled to first have a judicial determination of the question of its guilt before the rate can be lowered as a penalty for the act charged to have been committed. The commission can not judicially, nor by due process of law, determine the one question upon which its right to fix a lower rate must depend. This is emphasized by the absence of any precise statutory standard by which the commission