Page:The Green Bag (1889–1914), Volume 20.pdf/784

 THE SHERMAN ANTI-TRUST LAW There seems to be no authority and, I think, with submission, that there is no sufficient reason for such a proposition." THE AMENDMENT WOULD DESTROY THE ACT AS A PENAL STATUTE. To my mind the most serious legal objection to this proposed amendment is the fact that the introduction of the element of reasonableness or unreasonableness would entirely invalidate the penal character of the act. If this was invalidated, there would not be enough of the act left for any extended discussion. From all the authorities submitted by the opponents of the bill, with the answers thereto on the part of the Hon. Herbert Knox Smith, my judgment is that there is very little question that such would be the result of the adoption of the proposed amend ment. I do not go so far as to say that the gentlemen actively promoting the legis lation contemplated or intended such a result. Nor am I certain that the legal gentlemen whose names were not dis closed, who were apparently responsible for the peculiar provisions of the act, con templated such a result. I think it quite probable that they were undertaking to accomplish results that they thought might be advantageous to the interests that they represented, without taking into account the question as to what the effect of the amendment proposed would be upon the act itself. ' Upon this question, the following author ities, in my judgment, are conclusive: In 26 Indiana App. 279, the court was passing upon an act of the legislature which provided : "It shall not be lawful for any person to haul over any turnpike or gravel roads at any time when the same is (are) thawing through or is (are), by reason of wet weather, in condition to be cut up and injured by heavy hauling, a load on a narrow-tired wagon of more than 2,500 pounds." The court held that the act was invalid

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on the ground that it was indeterminate and uncertain, saying: "There must be some certain standard by which to determine whether an act is a crime or not, otherwise cases in all respects similar, tried before different juries, mij.ht rightfully be decided differently, and a person might properly be convicted in one county for hauling over a turnpike in that county, and acquitted in an adjoining county of a charge of hauling the same load on the same wagon over a turnpike in like condition in the latter county, because of the difference of conclusion of different judges and juries based upon their indi vidual views of what should be the standard of comparison of tires, derived from their varying experiences in the opinions of witnesses as to what difference of width of tires would constitute one wagon a narrowtired wagon and another a broad-tired wagon." In the case of the Chicago and North western Railroad Company v. Dey, et al (35 Fed. Rep. 866), the opinion by Mr. Justice Brewer, the court says: "The next proposition of complaint is that the law is a penal one; that it imposes enormous penalties without clearly defining the offenses. It will be observed that section 2 . requires that all charges shall be reasonable and just. . . . Now the con tention of complaint is that the substance of the provisions is that if a railroad com pany charges an unreasonable rate it shall be deemed a criminal and punished by fine, and that such a statute is too indefinite and uncertain, no man being able to tell in advance what the fact is, or what any jury will find to be, a reasonable charge. If this were the construction to be placed upon this act as a whole, it would certainly be obnoxious to complainant's criticism, for no penal law can be sustained unless its mandates are so clearly expressed that any ordinary person can determine in advance what he may and what he may not do under it."