State v. Phillips. differing from this description should not be received or counted. The tickets in question conformed to these requirements except that on the face of the Republican tickets there appeared four printer's rules or dashes between heading and names, and between names. The court held that such tickets were within the prohibition. They said: We think the effect of section 137 of the Code of 1880, is to condemn as illegal, and not to be received or counted, every ballot which has on its back or face any device or mark, other than names of persons, by which one ballot may be distinguished from another. This statute does not condemn devices or marks on the outside of a ballot merely, but clearly embraces the face of the ballot as well. That is apparent from the exception contained in it, and a device or mark on the face of the ballot is as much within what we suppose to have been the object of this provision as one on the outside or back of it. It is apparent from the provision that its object is not only to preserve secrecy as to what ballot an elector casts, which is the leading idea of statutes in some other States, which prohibit any device or mark on a ballot folded, which betrays the secret of the voter, but also to secure absolute uniformity as to the appearance of ballots, in order that intelligence may guide the electors in their selection, and not a mere device or mark by which ignorance may be captivated. The legislature was trying to prevent multitudes from 'being voted,' and being guided by a mere device or mark by which they should distinguish the ballots they were to use in the process, without a knowledge of the names of persons for whom their ballots were being cast." The Albany Law Journal remarks: "We think the human intellect would have to be racked to produce a more fantastically absurd reason for an enactment whose reason is perfectly apparent. The enactment was unquestionably intended to facilitate a secret ballot, and to prevent the possibility of a fraudulent rejection of any ticket by the inspectors after a casual glance. There is grave doubt whether the prohibition of devices or marks was intended to extend to the face of the ticket. The idea that the absence of devices or marks was intended to secure the reading of the ticket and to operate as an 'intelligence qualification' is completely novel. An enactment that nobody should vote unless he can read would be much more to that purpose. Then the assumption that printer's rules and dashes, the common slight ornaments of every printed ballot, are devices or marks by which one ticket may be known or distinguished from another,' is equally absurd. It involves the assumption that other tickets had no such devices and marks, and that they are of a distinguishing character, "both of which assumptions are manifestly unfounded. The court in another part of its opinion give the true reason of the enactment as follows: 'It was well known that ballots are prepared beforehand under the direction of political managers, and are distributed for use among electors, and it was further known that captivating marks and devices on ballots, appealing to ignorance and blind party zeal, were a favorite resort as an electioneering device, deemed legitimate and freely practiced with much effect, and the purpose of section 137 was to stop the pernicious practice, and to make the prohibition effective by prohibiting any mark or device by which one ticket can be distinguished from another, and by rejecting any ballot in violation of its requirements.' This of course does away with the force of the former reasoning." CHALMERS, C. J., took no part. VOL LI-82 A statute authorized railroads to charge for freight "not exceeding the rate of fifty cents per hundred pounds per hundred miles." Held, that they might charge fifty cents for less than one hundred pounds. SUIT (See note, p. 653.) UIT for penalty for charging excessive freights. The opinion states the case. The defendant had judgment below. Ford & Taliaferro and W. K. Homan, for appellants. Ballinger, Mott & Terry, for appellee. DELANY, J. Article 4256 of the Revised Statutes limits the fare to be paid by passengers on our railroads to five cents for each mile or fraction of a mile. Article 4257 is as follows: "Railroad companies may charge and receive not exceeding the rate of fifty cents per hundred pounds per hundred miles, for the transportation of freight over their roads, * provided that when the dis tance from the place of shipment to the point of destination of any freight is fifty miles or less, a charge not exceeding thirty cents per hundred pounds may be made for the transportation thereof." Article 4258. "Any railroad company which may violate either of the two preceding articles shall forfeit and pay to the person injured thereby the sum of five hundred dollars, to be recovered before any court having jurisdiction of the amount, in the county through. or into which, the passenger or freight may have been transported." What is the meaning of the words, "not exceeding the rate .. fifty cents per hundred pounds per hundred miles?" Appellants insist that the word "rate" is used in the sense of proportion, and that it applies to freights weighing less than one hundred pounds, as well as to those weighing more. According to their view of the statute, the railroads must carry fifty pounds of freight one hundred miles for twenty-five cents, twenty-five pounds for twelve and a half cents, and one pound for half a cent. They present the argument thus: "If a hundred pounds is taken as the Murray v. Gulf, C. & S. F. R. Company. unit of weight, one hundred miles must be taken as the unit of distance; and if the same amount may be charged for one pound as for one hundred pounds, the same amount may be charged for one mile as for one hundred miles; therefore the same amount may be charged for carrying one pound one mile as for carrying one hundred pounds one hundred miles, which is unreasonable." Admit the force of all this, yet the doctrine contended for by the appellants will lead to results equally unreasonable. Let us see. Appellants would have the railroads carry one pound one hundred miles for half a cent; fifty miles for one-fourth of a cent; twentyfive miles for one-eighth of a cent, and when we get down to one mile the compensation would be too small to be discovered by the naked eye. These matters appear to us too minute to be made the subject of statutory regulation. It is certainly a rather startling proposition to say that the legislature intended to impose a penalty of $500 upon a railroad company for an overcharge of one-hundredth part of a cent in a freight bill. If therefore the word "rate" is used in the sense of proportion, it must be limited to the ascending scale; that is to say, railroads may charge fifty cents per hundred pounds per hundred miles, and they may charge at the same rate, or in the same proportion, for larger amounts and for longer distances. Appellants refer us to several cases which we will notice. First among these is the case of Knox v. Railroad Co., 5 Rich. 22. This was a suit to recover of the company the amount of overcharges for the transportation of a large quantity of merchandise and cotton. The distance was thirty-seven miles, and the company had charged the same amount as they would have charged for a distance of one hundred miles. The charter allowed "for the transportation of goods by weight not exceeding fifty cents per hundred pounds per hundred miles." The court held that for heavy articles the company could only charge for the actual distance of transportation at a rate not exceeding fifty cents per hundred pounds per hundred miles. We are referred to two cases from Alabama: Harrell v. M. & M. R. Co., 59 Ala. 322; and M. & M. R. Co. v. Steiner, 61 Ala. 559. These were cases in which large quantities of freight had been transported over the road for short distances. The statute provided that the company might, for the transportation of local freight, "demand not exceeding fifty per cent, more than the rate Murray v. Gulf, C. & S. F. R. Company. charged for the same description of freight over the whole line of its road." In commenting upon this statement the court used the following language: "The charge for the transportation over the whole line is so much, which is equivalent to so much per mile. Local freight must be carried at the same rate plus fifty per cent. Thus, if the charge on the whole line be one hundred, the charge for half the line will be fifty plus fifty per cent, equal to twenty five one-hundredths added to fifty, which gives seventy-five as the result." We are also referred to the case of Rogon v. Aiken, from Tennessee, 9 Lea, 609; s. c., 42 Am. Rep. 684. That was a suit to recover overcharges on a road which was only fifteen miles long. The charter provided that the "charge for transportation shall not exceed thirty-five cents per hundred pounds on heavy articles, for every hundred miles." Mr. Justice COOPER, in commenting on the statute, says: "The charge for one hundred pounds on the whole length of defendant's road would be about five cents; and for one pound, five one-hundredths of one cent. It cannot be supposed that the legislature intended such a result unless it has said so, or used language which fairly requires such a construction. In the absence of words fixing a smaller unit, or indicating a proportion, the obvious and natural inference would be that the legislature had in mind only the unit of one hundred pounds and one hundred miles, and intended merely to designate a maximum charge." The learned judge then refers to the cases which we have just quoted and says: "The courts of South Carolina and Alabama admitted the hardship of the construction of this statute upon the railroad companies; but felt themselves constrained to adopt it because the language used showed a legislative intent that the charges should be proportioned. We are of opinion that no such intent appears in the language of our statute; that the object was to fix a maximum charge beyond which the companies could not go, and to leave the tariff of charges within that limit to the companies, subject to the rule of the common law and the regulating power of the courts and the legislature." It will be noticed that in all those cases the freight was large in amount and the distances below a hundred miles. And in those States there seemed to have been no regulation of the charges for short distances except the rather indefinite one in Alabama concerning local freight. But our statute contains the specific provision that when the distance is fifty miles or less the charge shall Murray v. Gulf, C. & S. F. R. Company. No provision how not exceed thirty cents per hundred pounds. ever is made for an amount less than one hundred pounds. We concur with the court below in the opinion that one hundred pounds must be regarded as the unit fixed by the legislature. If this rule be correct the present suit cannot be maintained, as in each of the counts in the petition the amount of freight carried was less than one hundred pounds. We have not found it necessary to determine whether article 4258 of the Revised Statutes was repealed by the act of April 10, 1883, or not, and we express no opinion on the subject. Our opinion is that the judgment should be affirmed. Motion for rehearing overruled. * * * * * Judgment affirmed. NOTE BY THE REPORTER.- See Concord, etc., Railroad v. Forsaith, 59 N. H. 122; s. c., 47 Am. Rep. 181. In Mobile, etc., Ry. Co. v. Steiner, 61 Ala. 559, the court said: "In the case of Harrell v. Mobile & Montgomery Railway Company, 59 Ala. 321, we construed in part the act regulating the charges for transportation of freight upon railroads within this State,' approved April 19, 1873, Pamph. Acts 62. In that statute it is declared that all railroad companies in the State may for the transportation of local freight demand and receive not exceeding fifty per cent more than the rate charged for the transportation of the same description of freight over the whole line of its road.' In the case referred to it is said: We cannot assent to the argument. that the fifty per cent additional, which the statute allows the corporation to charge for the transportation of local freight, means fifty per cent on the charge over the whole line of the railroad, irrespective of the distance the local freight may be carried. The language of the statute forbids that construction. Fifty per cent more than the rate charged * over the whole line of its road' are the words of the statute. Rate is the emphatic word of the sentence. In this connection it is employed in the sense of proportion a standard of valuation; a rule or measure of assessment. That is an assessment according to a given standard. The charge for transportation over the whole line is so much which is equivalent to so much per mile. Local freight must be carried at the same rate plus fifty per cent. Thus if the charge over the whole line be 100, the charge over half the line will be 50, plus 50 per cent-25-100 equal to 75-100, the true result.' It is contended for appellant that the word ' rate,' in the statute quoted, was employed to express the class or quality of the freight over the whole line of the road, by whose tariff the legislature intended to graduate the tolls for local freights; and that the permitted charges for trans porting local freight, no matter how short the distance, might be raised to a sum which will be equal to fifty per cent increase on the charge for the same class of freight over the whole line of the road. This would not only give to the word a strained interpretation, but would render it meaningless, superfluous and unnecessary. Another clause in the statute expresses that idea in language |