The railroad company has brought this case here by a writ of error to the circuit court of Simpson county, state of Kentucky, that being the highest court of the state in which a decision could be had, for the purpose of reviewing the judgment of that court in favor of the defendant in error (plaintiff below) based upon a violation of § 218 of the Constitution of Kentucky. That section 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 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; 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 carrier, 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 operations of this section.'
This action involves the question of the validity of the above section, as construed by the court below with reference to interstate commerce.
The plaintiff, T. R. Eubank, on June 9, 1899, duly filed in the clerk's office of the Simpson county circuit court a petition in which he alleged, in substance, that he was doing business in Franklin, in the state of Kentucky; that the defendant was a corporation chartered under the laws of that state as a common carrier, and that it owned and operated a line of railway for the transportation of freight and passengers from Nashville, Tennessee, running north through Franklin, Kentucky, and continuing on to Louisville, Kentucky, a distance of 185 miles, and that the distance from Franklin, Kentucky, to Louisville, Kentucky, over the defendant's line, is 134 miles, and is included in and a part of the distance of 185 miles from Nashville to Louisville; that during the years 1897 and 1898 the defendant transported tobacco for the complainant from Franklin, Kentucky, to Louisville, Kentucky, at the rate of 25 cents per 100 pounds, and that during all this time the plaintiff was shipping and did ship and transport tobacco from Nashville, Tennessee, to Louisville, Kentucky, over the same road, at the sum of 12 cents for 100 pounds; and the complainant averred in his petition that the company had no right to charge him a greater freight rate for the transportation of tobacco from Franklin, Kentucky, to Louisville, Kentucky, than 12 cents per 100 pounds, and he therefore brought suit to recover back from the defendant the difference between that sum and the sum paid by him, viz., 13 cents per 100 pounds, the amount carried being 145,245 pounds.
The defendant tendered special and general demurrers to this petition on the ground, among others, that it sought to make a law of the state of Kentucky applicable to a rate charged by defendant from Nashville, Tennessee, to Louisville, Kentucky; and that if the law were so construed it would become a regulation of interstate commerce and be invalid, because in conflict with and repugnant to subsection 3 of § 8 of article I. of the Constitution of the United States, and also in violation of the Interstate Commerce Act.
These demurrers were overruled by the court, and thereupon the defendant tendered its answer, setting up its defenses in four separate paragraphs.