THE SHERMAN ANTI-TRUST LAW vantage to any particular persons or local ities, and the court said: "It seems to us the opinion of this court in the case of Louisville and Nashville Rail road v. Commonwealth (35 S. W. 129) is decisive of this, for ' undue or unreasonable preference or advantage to any particu'ar person or locality' is just as indefinite and uncertain as the phrase 'just and reason able rate' of toll or compensation." In the case of McChord v. The Louisville and Nashville Railroad Company (183 U. S. 498) after quoting the Kentucky case (99 Ky. 133), the Supreme Court of the United States said that the former law under which that decision was rendered having been found defective, had been amended by later acts which established a definite standard, and sustained the statute for that reason, approving at the same time the reasoning of the court in the other cases. In the case of Czarra v. Board of Medical Supervisors (25 App. Cases, D. C., p. 450) the court, holding a statute invalid that was indefinite in its terms providing for the revoking of a physician's license "for unprofessional or dishonorable conduct," said: "But when the legislature declares an offense in words of no determinate signifi cation, or its language is so general and indefinite, as that it may embrace within its comprehension not only the acts com monly recognized as reprehensible, but others also which it is unreasonable to presume were, intended to be made criminal, the courts possess no arbitrary discretion to discriminate between those which were and those which were not intended to be made unlawful, and can do nothing else than declare the statute void for its uncertainty." In the case of ex parte Andrew Jackson (45 Ark.) the court held a Federal statute void for indefiniteness and uncertainty, which made it a crime for anybody to commit an offense "against good mora1s," for precisely the same reasons and upon
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the same ground laid down by the courts in the citations to which I have already called attention. Upon this point the committee were presented with a very interesting and some what extraordinary discussion of the law from the Commissioner of Corporations. In the memorandum filed by the Hon. Herbert Knox Smith, he discusses this question of the effect of the amendment, taking the ground that the authorities did not justify the conclusion to which I have heretofore arrived. His first legal sugges tion in connection with this question, which is entitled to consideration, is: "The only case at all anal gous which is opposed to this view (that is his view) is that of United States v. Tozer (52 Fed. Rep. 917) where it was held that there can be no conviction under the provisions of an act prohibiting undue preference in a case where the jury is required to determine whether the preference is reasonable or un reasonable." As to this suggestion of the Commissioner, it is to be said that a representative of his office was in attendance upon the committee at every one of its hearings, taking notes for the use of the Commissioner, and that all of the cases to which I have called atten tion in this speech were specifically pre sented to the committee and discussed in the presence of this representative of the Commissioner of Corporations, so that at least a representative of the Commissioner had definite and specific knowledge that the case of the United States v. Tozer was not the only case at all aralrgous, but he had definite and specific information that there were not only other cases analogous, but that there were several cases specifically and precisely in point against the contention made by the Commissioner. Instead of the case of United States v. Tozer being the only case at all analogous, the following cases, the most of which are in point, and all of them, beyond all question analogous, had been cited and discussed:
