this case is that such earnings may legally be given to the wife. It will not be contended that if the husband had owned property before the creation of plaintiff's debt, or acquired property afterward, that he could make a gift of the same to his wife and thus defeat the claim of the appellant; and yet if appellee's contention in this case be conceded the same result is reached. The fact that the husband engaged to render service at an inadequate price cannot change the principle involved.

It seems to us that appellee, H. D. Frisbie, was at the time of the trial of this case, June 8, 1893, equitably entitled 182 to at least $3,000 interest in the property described in the petition and evidence over and above exemptions, exclusive of the homestead, and that this interest, to the extent of $3,000, should have been subjected to the payment of plaintiff's claim, and that the court erred in dismissing appellant's petition.

The judgment is, therefore, reversed and cause remanded, with directions to adjudge a sale of enough of the property, excluding the homestead, to pay plaintiff $3,000, with interest from June 8, 1893, or to place same in the hands of a receiver, to be rented out until the said sum is paid. The chancellor will adopt the mode by him deemed most equitable, and for further proceedings consistent with this opinion.

HUSBAND AND WIFE-SEPARATE ESTATE OF WIFEWHEN CHARGEABLE WITH HUSBAND'S DEBTS.-If a man skilled in any employment does business in his wife's name with the capital furnished by her, and large profits over and above the necessary expenses of the business, including the support of himself, wife, and family, accrue therefrom, owing to his skill and experience, and he turns such profits over to his wife, or invests them in property for her, a court of equity will treat such arrangement as fraudulent, and will make an equitable distribution of such profits between the wife and existing creditors of the husband: Boggess v. Richards, 39 W. Va. 567; 45 Am. St. Rep. 939, and note. See, contra, Rush v. Vought, 55 Pa. St. 437; 93 Am. Dec. 769. See, also, Penn v. Whitehead, 17 Gratt. 503; 94 Am. Dec. 478; Michigan etc. Co. v. Chapin, 106 Mich. 884; 58 Am. St. Rep. 409, and monographic note.

LOUISVILLE AND NASHVILLE RAILROAD COMPANY V. COMMONWEALTH.

[99 KENTUCKY, 132.]

CRIMINAL STATUTE, WHEN VOID FOR UNCERTAINTY. A statute declaring that any railway corporation which shall charge, collect, or receive more than a just or reasonable rate of toll or compensation for the transportation of passengers and freight or the use of any railway car shall be guilty of extortion, is void for uncertainty, because it furnishes no test by which to determine what charges for its services are just or reasonable, as it cannot be known therefrom, when a charge is made, whether it is lawful or not, nor can this be ascertained except by the verdict of a jury.

CRIMINAL LAW, CONSTITUTIONALITY OF.-An act cannot be made criminal which the party committing cannot know in advance whether it is criminal or not. Hence, the making of an unreasonable charge for services cannot be made criminal under a statute creating no test of reasonableness in this respect.

William Lindsay, J. W. Alcorn, E. W. Hines, Lisle & McChord, Walker D. Hines, and H. W. Bruce, for the appellant.

W. J. Hendricks, W. J. Sweeney, and H. W. Rives, for the appellee.

185 HAZELRIGG, J. The indictment in this case charges that the appellant "did unlawfully charge, collect, and receive from A. Vancleave & Co. the sum of forty-one and 70-100 dollars as toll or compensation for the transportation of a carload of coal, weighing 53,800 pounds, being at the rate of one and 55-100 dollars per ton, from Pittsburg, Ky., to Lebanon, in Marion county, over the line of said railroad, a distance of miles, the said rate of one and 55-100 dollars per ton for the said transportation of said coal, being more than a just and reasonable compensation therefor, contrary to the form of the statute, etc."

A conviction followed, and from the judgment on the verdict of the jury for the sum of $500 the company has appealed.

Its complaints are, that the statute prohibiting extortion by railroad companies, and providing a penalty therefor, prescribes no standard as to what is just and reasonable for the guidance of the corporation, and altogether fails to define what it may and what it may not do; that it is, therefore, void for uncertainty; that even if the statute is valid, the indictment states no facts showing the appellant guilty of the offense charged, but only the conclusion of the pleader that the rate charged was more than a just and reasonable compensation.

It is also urged that the trial court erred in refusing to grant to appellant a change of venue upon the testimony heard, and in the admission of incompetent evidence: and it further insists that, on the facts of the case, the charge is reasonable and just,

within the meaning of the statute, 136 and especially so as the charge is within the rate allowed by the company's charter.

The chief question to be considered is the one affecting the validity of the statute, the provisions of which are found in sections 816 and 819 of the Kentucky statutes. The first-named section reads as follows: "If any railroad corporation shall charge, collect, or receive more than a just and reasonable rate of toll or compensation for the transportation of passengers or freight in this state, or the use of any railroad car upon its track, or upon any track it has control of or has the right to use in this state, it shall be guilty of extortion."

Section 819 fixes the penalty for the first offense at not less than $500, nor more than $1,000, and increases the penalty for subsequent infractions of the law. The circuit court of any county into or through which the road runs, and the Franklin circuit court, are given jurisdiction of the offense, the prosecution to be by indictment or action in the name of the commonwealth, upon information filed by the board of railroad commissioners.

That this statute leaves uncertain what shall be deemed a "just and reasonable rate of toll or compensation" cannot be denied, and that different juries might reach different conclusions, on the same testimony, as to whether or not an offense has been committed, must also be conceded.

The criminality of the carrier's act, therefore, depends on the jury's view of the reasonableness of the rate charged; and this latter depends on many uncertain and complicated elements.

That the corporation has fixed a rate which it considers will bring it only a fair return for its investment does not alter the nature of the act. Under this statute it is still a 137 crime, though it cannot be known to be such until after an investigation by a jury, and then only in that particular case, as another jury may take a different view, and, holding the rate reasonable, find the same act not to constitute an offense. 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 repugnant to our system of laws to punish a person for an act, the criminality of which depends, not on any standard erected by the law which may be known in advance, but on one erected by a jury. And especially so as that standard must be as variable and uncertain as the views of different juries may suggest, and as to which nothing can be known until after the commission of the crime.

If the infliction of the penalties prescribed by this statute

would not be the taking of property without due process of law And in violation of both state and federal constitutions, we are not able to comprehend the force of our organic laws.

In Louisville etc. R. R. Co. v. Railroad Commission, 19 Fed. Rep. 679, a statute very similar to the one under consideration was thus disposed of by the learned judge (Baxter): "Penalties cannot be thus inflicted at the discretion of a jury. Before the property of a citizen, natural or corporate, can be thus confiscated, the crime for which the penalty is inflicted must be defined by the law-making power. The legislature cannot delegate this power to a jury. If it can declare it a criminal act for a railroad corporation to take more than a "fair and just return" on its investments, it must, in order to the validity of the law, define, with reasonable certainty, what would constitute such "fair and just return." The act under review does not do this, but leaves it to the jury to 138 supply the omission. No railroad company can possibly anticipate what view a jury may take of the matter, and hence cannot know in advance of a verdict whether its charges are lawful or unlawful. One jury may convict for a charge made on a basis of four per cent, while another might acquit an accused who had demanded and received at the rate of six per cent, rendering the statute, in its practical working, as unequal and unjust in its operation as it is indefinite in its terms."

The supreme court of the United States, in Railroad Commission Cases, 116 U. S. 336, refers to this Tennessee case, and substantially approves it by distinguishing the case then before the court from the Tennessee case.

This case is also used to support the text in 8 American and English Encyclopedia of Law, page 935, where it said: “Although a statute has been held to be unconstitutional which left it to the jury to determine whether or not a charge was excessive and unreasonable in order to ascertain whether a penalty is recoverable, yet where the action is merely for recovery of the illegal excess over reasonable rates this is a question which is a proper one for a jury."

Mr. Justice Brewer, in the case of Chicago etc. Ry. Co. v. Dey, 35 Fed. Rep. 866, had under consideration the provisions of a statute similar to the one we have before us, and, while the statute was upheld, it was only because there was a schedule of rates provided in the act which rendered the test of reasonableness definite and certain. The learned judge then said: "Now the contention of complainant is, that the substance of these provisions is that if a railroad company charges an unreasonable rate it shall be deemed a criminal and punished by fine, and that such

a statute is too indefinite and uncertain, no man being able 139 to tell in advance what in fact is or what any jury will find to be a reasonable charge. If this were the construction to be placed upon this act as a whole, it would certainly be obnoxious to complainant's criticism, for no penal law can be sustained unless its mandates are so clearly expressed that any ordinary person can determine in advance what he may and what he may not do under it."

"In Dwarris on Statutes, 652, it is laid down 'that it is impossible to dissent from the doctrine of Lord Coke that acts of parliament ought to be plainly and clearly, and not cunningly and darkly, penned, especially in legal matters': See, also, United States v. Sharp, Pet. C. C. 122; The Enterprise, 1 Paine, 34; Bishop's Statutory Crimes, sec. 41; Lieber's Hermaneutics, 156."

And the learned judge concludes that there is very little difference between a provision of the Chinese Penal Code, which prescribed a penalty against anyone who should be guilty of "improper conduct," and a statute which makes it a "criminal offense to charge more than a reasonable rate."

The same learned judge, discussing the kindred subject of unreasonable differences in rates, in Tozier v. United States, 52 Fed. Rep. 917, 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 cannot depend upon whether a jury may think it reasonable or unreasonable. There must be some definiteness and certainty."

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. 140 Manifestly, in actions by shippers against carriers for recovering back the excess of charges over reasonable rates, the rule is quite different. In such actions, the statute may be invoked as merely declaratory of the common law, and the question of reasonable rates is one to be heard by the court or jury. It is, in fact, a question of contract. Common carriers are "bound to carry when called upon for that purpose, and charge only a reasonable compensation for the carriage. These are incidents of the occupation in which they are authorized to engage": Winona etc. R. R. Co. v. Blake, 94 U. S. 180.

If this charge is more than is reasonable, there is a violation of the contract, and the suit of the person aggrieved is because of such violation.

In some states, the shipper is entitled to recover double or