Hutchison, &c., v. L. & N. R. R. Co. 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 Commis sion, such common carrier, or person or corporation own. ing 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." It will be seen that the above makes it unlawful for the carrier to charge or receive a greater compensation in the aggregate for the transportation of property of like kind, under 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. The thing made unlawful is the greater charge for the short than for the long haul. The violation of this section does not consist in charging for the long haul less than is charged for the shorter, or in charg ing more or less than is reasonable for either. The car rier is given the right to fix the charge for the long haul, so far as this section goes; but he is not allowed, when he Hutchison, &c., v. L. & N. R. R. Co. has done this, to charge more for the shorter than for the longer haul. When appellee charged eighteen cents per hundred pounds for the carriage of tobacco from Hopkinsville to Louisville, it violated no law. It only violated the law when it charged appellants for a shorter haul on the same route more than eighteen cents. By this vio lation of law it obtained from them more money than it should have received. It is a familiar common-law rule that one who is aggrieved by a violation of law may have his action against the party committing the violation, to recover such damages as he has thereby sustained. This principle was recently applied in City of Henderson v. Clayton, (Ky.), 57 S. W., 1, and, under the principles announced in that case, appellants are entitled to recover the excess of freight collected from them. The prime purpose of the constitutional provision was the protection of the citizen from a greater charge for a short than for a longer haul. The Constitution itself provides no remedy, civil or criminal, for its violation. The indictment of the carrier as provided by the statute may deter him from future violation of the law. But this will not remedy the wrong already done the shipper, and, when money is obtained in violation of the express terms of the Constitution, its proper effect and purpose will be in a great measure defeated if the wrongdoer is allowed to retain the fruits of his illegal exaction. This is never allowed where money has been obtained in violation of a statute, where the statute is silent as to the remedy; and a constitutional provision can not be less effective than a statute. The rule is thus stated in Bish. Non-cont. Law, sections 132-134: "Whenever the common law, a statute, a municipal by-law, or any other law imposes on one a duty, if of a sort affecting the public within the principles Hutchison, &c., v. L. & N. R. R. Co. of the criminal law, a breach of it is indictable, and a civil action will lie in favor of any person who has suffered specially therefrom. Or, if the matter of the law ilvolves only the interests of individuals, any one who has received harm from another's disobedience may have his suit against him for the damages. But if the law as interpreted was not meant to protect the class of persons to which the one suing belongs, or to protect anybody from the sort of injury complained of, or if in a way held to be exclusive it provides a different remedy, the action can not be maintained." Id., section 132. "The reason of the doctrine is, that remedy is inseparable from law, which can not exist without it; that each particular rem edy must be adapted to its corresponding wrong, being an indictment for a wrong to the public, and a civil action for one to an individual; and that still a statute creating a right, or any other statute, may ordain any different remedy which the Legislature prefers." Id., section 13. "To illustrate: If the law confers on one the right to do a thing, another who prevents his doing it disobeys the law, and consequently is liable to a suit for the damages." Id., section 134. While there is some conflict of authority as to the rule in cases of violation of a municipal by-law, and the text in this respect has not been followed in this State, the decisions are uniform in support of the text in all other respects. Other authorities are collected in the case of City of Henderson v. Clayton, above referred to. Judgment reversed, and cause remanded for further proceedings not inconsistent with this opinion. City of Newport v. Holly. CASE 87-Warrant for DISORDERLY CONDUCT UNDER CITY ORDINANCE- City of Newport v. Holly. 1 APPEAL FROM MONTGOMERY CIRCUIT COURT. MUNICIPAL CORPORATIONS-VALIDITY OF ORDINANCE-PENALTY Held: LESS 1. Kentucky Statutes, section 3490, provides that the board of council of a city of the fourth class shall have power "to make by-laws and ordinances for the carrying into effect of all the powers granted for the government of the city and to do all things properly belonging to the police of incorporated cities." Id., section 3495, provides that "arrests may be made for drunkenness or disorderly conduct at any time without warrant." Id., section 3513, provides that the police court of the city shall have jurisdiction over "cases of indecent or immoral behavior, or conduct calculated to disturb the peace and dignity of said town." Held, that an ordinance providing that "whoever shall be guilty of any boisterous or disorderly conduct in the city shall be fined not less than five nor more than twenty dollars" is valid. 2. Though that ordinance prescribes a less penalty for the offense of disorderly conduct than is prescribed by Kentucky Statutes, section 1268, for the offense of a breach of the peace, riot, rout, unlawful assembly, or affray, it does not violate the Constitution, section 168, providing that "no municipal ordinance shall fix a penalty for a violation thereof at less than that imposed by the statute for the same offense," as the offenses are not the same. 3. Criminal Code Practice, section 319, providing that accused may have a jury trial in all cases in which a fine of more than $16 may be imposed, was repealed, as to the prosecutions in the police court of a city of the fourth class, by Kentucky Statutes, section 3530, empowering the police judge in cities of that class to hear and determine cases within his jurisdiction, except "where the fine may be more than $20." 4. Under the Constitution, section 7, providing that "the ancient mode of trial by jury shall be held sacred and the right thereof remain inviolate," and Id. section 11, providing that the accused "in prosecutions by indictment or information shall have 108 621 f120 333 City of Newport v. Holly. speedy, public trial by an impartial jury of the vicinage," minor offenses may be tried by a police judge without a jury, as such offenses were not either at the time of the adoption of the constitution, or at common law, required to be tried by a jury. W. B. WHITE, ATTORNEY FOR APPELLANT. 1. The city ordinance is valid. 2. The police court had jurisdiction. 3. Where the punishment for violation of a city ordinance can not exceed a fine of $20, the accused can not legally demand a trial by jury. 4. The circuit court could properly consider only the validity of the "Disorderly Conduct" ordinance, and the legality of section 3530 of the Kentucky Statutes, and should have dismissed so much of the appeal for want of jurisdiction as stayed proceedings on the judgment in the police court. 5. The warrants are not defective, but even if they are, the circuit court erred in passing upon them at all. Ky. Stats., secs. 3513, 3530, 3519; Sec. 156 Ky. Const.; Long v. Stine, 19 Ky. Law Rep., 246; Hall v. Com., &c., 19 Ky. Law Rep., 578; Wade v. Com., 3 Ky. Law Rep., 441. 1. The city of Mt. Sterling has no right to pass an ordinance for disorderly conduct under section 3490 of the Kentucky Statutes, and fix the penalty at less than that fixed by the statute. 2. The defendant was entitled to a jury trial which was demanded and refused. Ky. Stats., secs. 3490, 1268, 3519, 3530; Criminal Code, sec. 319; Ky. Constitution, secs. 7, 11, 248. OPINION OF THE COURT BY JUDGE HOBSON-REVERSING. Appellee was arrested upon two warrants issued from the police court of the city of Mt. Sterling, charging her with the offense of disorderly conduct committed in the city, and was fined five dollars in each case. She prose cuted an appeal to the. Montgomery Circuit Court, insisting that the by-law was void because unauthorized by the charter, and that she had been improperly denied trial by jury in the police court. The circuit court sustained |