604
THE GREEN BAG
In Tozer v. The United States (53 F. R. 17) the facts are stated as follows: "George K. Tozer was indicted for a vio lation of the interstate commerce act pro hibiting undue preferences. The Court sustained a demurrer to the fourth count, and the defendant was convicted under the second and third counts. The court subse quently denied defendant's motion for a new trial and an arrest of judgment, and from the judgment of conviction the defend ant brings error." Mr. Justice Brewer in delivering the opinion of the Court, said: "But in order to constitute a crime the act must be one which the party is able to know in advance whether it is criminal or not. The criminality of an act can not depend upon whether a jury may think it reasonable or unreasonable. There must be some definiteness and certainty. In the case of Chicago and Northwestern Railroad Company v. Dey (52 Fed. Rep.) I had occasion to discuss this matter, and I quote therefrom as follows:" The court then quoted the part of the Dey case that I have already cited, and said: "' Applying that doctrine in this case and eliminating the idea that the through rate is a standard of comparison of the local rate there is nothing to justify a verdict of guilty against the defendant.'" In the case of Louisville and Nashville Railroad Company v. Commonwealth (99 Ky. 133), Judge Hazelrigg, delivering the opinion of the court, said : '• The indictment in this case charges that the appellant did unlawfully charge, collect and receive . . . more than a just and reason able compensation therefor contrary to the form of the statute, etc. "A conviction followed and from the judg ment on the verdict of the jury for the sum of $500, the company has appealed. . . . "That this statute leaves uncertain what shall be deemed a 'just and reasonable rate of toll or compensation" can not be
denied and that different juries might reach different conclusions on the same testi mony as to whether or not an offence has been committed must also be conceded. "The criminality of the carrier's act, therefore, depends upon the jury's view of the reasonableness of the rate charged: and this latter depends on many uncertain and complicated elements. . . . ' ' There is no standard whatever fixed by the statute or attempted to be fixed, by which the carrier may regulate its conduct; and it seems clear to us to be utterly repug nant to our system of laws to punish a per son for an act the criminality of which depends not upon any standard erected by the law which may be known in advance, but on one erected by a jury. And espe cially so as that standard must be as vari able and uncertain as the views of different juries may suggest and as from it nothing can be known until after the commission of the crime. "If the inflictions of the penalties pre scribed by this statute would not be the taking of the property without due pro cess of law and in violation of both State and Federal constitutions, we are not able to comprehend the force of our organic laws. . . . "When we look to the other side of the question we find the contention of the State supported by neither reason nor authority. No case can be found, we believe, where such indefinite legislation has been upheld by any court where a crime is sought to be imputed to the accused." It is to be noticed that this case is predi cated upon language substantially identical with that which it is proposed to inject into the Sherman anti-trust law by this amend ment. The same question was considered by the court in the case of Commonwealth v. Louisville and Nashville Railroad Com pany (46 S. W. Rep. 700) where a statute prohibited a corporation from giving any undue or unreasonable preference or ad
