JUDGE HOBSON
delivered the opinion of the court.
Section 218 of the Constitution is as follows: “It shall be unlawful for any person or corporation owning or operating a railroad in 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 commission such common carrier, or person or corporation owning or operating a railroad in this State, may, in special cases, after investigation by the commission, be authorized to charge 1-ess 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 operation of this section.”
To carry the above into effect, the General Assembly enacted the following statute:
“If any person owning or operating a railroad in this State, or any common carrier, shall charge of receive any [636]*636greater compensation in the aggregate for the transportation of passengers or 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, such person shall, for each offense, be guilty of a misdemeanor, and fined not less than one hundred nor more than five hundred dollars, to be recovered by indictment in the Franklin Circuit Court, or the circuit court of any county into or through which the railroad or common carrier, so violating, runs or carries on its business. Upon complaint made to the Kailroad Commission that any railroad or common carrier has violated the provisions of this section, it shall fye the duty of the Commission to investigate the grounds of complaint, and if, after such investigation, the Commission deems it proper to exonerate the railroad or common carrier from the operation of the provisions of this section, an order to that effect shall be made by the Commission, and a copy thereof delivered to the complainant and the railroad or common carrier, and the same shall be published as a part of the report of the Commission; and after such order, the railroad or common carrier shall not be prosecuted of fined on account of the complaint made. If the Commission, after investigation, fails to exonerate the railroad or common carrier from the operation of the provisions of this section, an order in writing to that effect shall be made by the Commission, and a copy thereof delivered to the complainant and the railroad or common carrier, and the same shall be published as a part of the report of the Commission; and after such order it shall be the duty of the Commission to furnish a statement of the facts, together with a copy of its order, to the grand jury of any county, the [637]*637circuit court of which has jurisdiction, in order that the railroad or common carrier may be indicted for the offense; and the Commission shall use proper efforts to see that such company or common carrier is indicted and prosecuted.” (Kentucky Statutes, section 820.)
Appellant transported coal from Altamont to Louisville at $1 per ton, and to Elizabethtown at $1.30 per ton, while it charged $1.55 per ton from Altamont to Lebanon, an intermediate station on its line of road. Complaint being made to the Railroad Commission, it investigated the matter, and made an order in writing, declining to exonerate appellant from the operation of the provisions of the section above quoted; and thereafter, at the suggestion of the Commission, appellant was indicted in the Marion Circuit Court, as provided in the statute. The case was tried, and, appellant having-been adjudged guilty, it prosecutes this appeal to reverse the judgment imposing a fine upon it of $300.
Appellant justified the difference of the rate on the ground that at Louisville the coal hauled from Altamont came in competition with the coal brought down the Ohio river on boats, and that at Elizabethtown it came in competition with the Western Kentucky coal brought there by the Illinois Central Railroad. It insists that these rates could be made no higher on ' account of this competition, and that the rates to non-competitive points like Lebanon were reasonable, and were unaffected by the reductions referred to which were necessary for the coal to be handled in those markets at all. The evidence offered by it to sustain this contention was excluded by the court below on the trial on the ground that competition is not one of the circumstances or conditions exempting the railroad from the operation of the section of the Constitution above [638]*638quoted. It is earnestly argued for appellant that the transportation is not under substantially similar circumstances and conditions when competition exists at one point and not at another and we are referred to numerous decisions of the Federal courts so holding.
On the other hand, it is contended for the State that to adopt this construction is to emasculate' the section, and deprive it of all practical operation and effect.
The precise question thus presented was determined by this court in the case of L. & N. R. R. Co. v. Com., 104 Ky., 226 [46 S. W., 707; 47 S. W., 210, 598], where the construction of the section adopted by appellee was sustained. We are urged to overrule that case; but it was fully considered, and then reconsidered by the whole court, and we are disinclined, with substantially no new light upon the question, to set aside the conclusion of the court reached then after so mature deliberation.
It is insisted for appellant that this construction of the section makes it an arbitrary interference with the right of appellant to engage in competitive traffic, depriving it of its property without due process of law, denying it the equal protection of the law, impairing the obligation of its charter contract, and unlawfully interfering with interstate commerce. All of these objections may be considered together.
A railroad is only an improved modern highway. It must, of necessity, be subject to public control, like its predecessor, the turnpike; for the industry and commerce of the country are dependent upon it. To hold that only railroad men understand rates, or that they shall be allowed alone to fix the rates, and that no tribunal can review their decision as to what rates are reasonable, is to put Jin their hands a power dangerous to the welfare of the [639]*639community, and utterly out of keeping with the doctrine that they are public agencies, and so hare the right to appropriate to their use the property of the citizen against his consent upon making him just compensation. It has been notorious that railroad managers have, by discrimination in favor of certain shippers or a given locality, brought ruin to others.
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JUDGE HOBSON
delivered the opinion of the court.
Section 218 of the Constitution is as follows: “It shall be unlawful for any person or corporation owning or operating a railroad in 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 commission such common carrier, or person or corporation owning or operating a railroad in this State, may, in special cases, after investigation by the commission, be authorized to charge 1-ess 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 operation of this section.”
To carry the above into effect, the General Assembly enacted the following statute:
“If any person owning or operating a railroad in this State, or any common carrier, shall charge of receive any [636]*636greater compensation in the aggregate for the transportation of passengers or 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, such person shall, for each offense, be guilty of a misdemeanor, and fined not less than one hundred nor more than five hundred dollars, to be recovered by indictment in the Franklin Circuit Court, or the circuit court of any county into or through which the railroad or common carrier, so violating, runs or carries on its business. Upon complaint made to the Kailroad Commission that any railroad or common carrier has violated the provisions of this section, it shall fye the duty of the Commission to investigate the grounds of complaint, and if, after such investigation, the Commission deems it proper to exonerate the railroad or common carrier from the operation of the provisions of this section, an order to that effect shall be made by the Commission, and a copy thereof delivered to the complainant and the railroad or common carrier, and the same shall be published as a part of the report of the Commission; and after such order, the railroad or common carrier shall not be prosecuted of fined on account of the complaint made. If the Commission, after investigation, fails to exonerate the railroad or common carrier from the operation of the provisions of this section, an order in writing to that effect shall be made by the Commission, and a copy thereof delivered to the complainant and the railroad or common carrier, and the same shall be published as a part of the report of the Commission; and after such order it shall be the duty of the Commission to furnish a statement of the facts, together with a copy of its order, to the grand jury of any county, the [637]*637circuit court of which has jurisdiction, in order that the railroad or common carrier may be indicted for the offense; and the Commission shall use proper efforts to see that such company or common carrier is indicted and prosecuted.” (Kentucky Statutes, section 820.)
Appellant transported coal from Altamont to Louisville at $1 per ton, and to Elizabethtown at $1.30 per ton, while it charged $1.55 per ton from Altamont to Lebanon, an intermediate station on its line of road. Complaint being made to the Railroad Commission, it investigated the matter, and made an order in writing, declining to exonerate appellant from the operation of the provisions of the section above quoted; and thereafter, at the suggestion of the Commission, appellant was indicted in the Marion Circuit Court, as provided in the statute. The case was tried, and, appellant having-been adjudged guilty, it prosecutes this appeal to reverse the judgment imposing a fine upon it of $300.
Appellant justified the difference of the rate on the ground that at Louisville the coal hauled from Altamont came in competition with the coal brought down the Ohio river on boats, and that at Elizabethtown it came in competition with the Western Kentucky coal brought there by the Illinois Central Railroad. It insists that these rates could be made no higher on ' account of this competition, and that the rates to non-competitive points like Lebanon were reasonable, and were unaffected by the reductions referred to which were necessary for the coal to be handled in those markets at all. The evidence offered by it to sustain this contention was excluded by the court below on the trial on the ground that competition is not one of the circumstances or conditions exempting the railroad from the operation of the section of the Constitution above [638]*638quoted. It is earnestly argued for appellant that the transportation is not under substantially similar circumstances and conditions when competition exists at one point and not at another and we are referred to numerous decisions of the Federal courts so holding.
On the other hand, it is contended for the State that to adopt this construction is to emasculate' the section, and deprive it of all practical operation and effect.
The precise question thus presented was determined by this court in the case of L. & N. R. R. Co. v. Com., 104 Ky., 226 [46 S. W., 707; 47 S. W., 210, 598], where the construction of the section adopted by appellee was sustained. We are urged to overrule that case; but it was fully considered, and then reconsidered by the whole court, and we are disinclined, with substantially no new light upon the question, to set aside the conclusion of the court reached then after so mature deliberation.
It is insisted for appellant that this construction of the section makes it an arbitrary interference with the right of appellant to engage in competitive traffic, depriving it of its property without due process of law, denying it the equal protection of the law, impairing the obligation of its charter contract, and unlawfully interfering with interstate commerce. All of these objections may be considered together.
A railroad is only an improved modern highway. It must, of necessity, be subject to public control, like its predecessor, the turnpike; for the industry and commerce of the country are dependent upon it. To hold that only railroad men understand rates, or that they shall be allowed alone to fix the rates, and that no tribunal can review their decision as to what rates are reasonable, is to put Jin their hands a power dangerous to the welfare of the [639]*639community, and utterly out of keeping with the doctrine that they are public agencies, and so hare the right to appropriate to their use the property of the citizen against his consent upon making him just compensation. It has been notorious that railroad managers have, by discrimination in favor of certain shippers or a given locality, brought ruin to others. It was the aim of the Constitution to require the railroads in the State to treat all localities fairly and with equality; but, as differences of conditions ever varying would constantly arise, it prescribed no fixed rule, but created a tribunal to act as umpire between the railroads and the people, and decide when and to what extent a greater charge might be made for a short than for a long haul under like circumstances and conditions, with full power in special cases “from time to time [to] 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 is not confined in its power to each shipment as it may be made, but may prescribe, from time to time, a suspension of the section on freight of a given character between given points, as the public interest and the ends of justice may require.
We are unable to see that as yet any right of appellant has been invaded, or that it has any just cause of complaint. If it be true that the public interests require the discrimination in rates shown in this case, and that no injustice has really been done, it may be that upon presentation of the facts to the Railroad Commission it would allow the rates to stand, and make an order exonerating appellant from the operation of the section.
It does not appear that appellant has presented its case to the Railroad Commission, and we infer that it has not [640]*640done so from the fact that this case seems to have been specially prepared to present these questions here, and there is no reference to a similar effort before the Railroad Commission. Although the Commission refused to exonerate appellant on the evidence it had before it, it does not follow that it would still refuse to do so if proper evidence was offered. It represents the whole State, including the railroad and its stockholders as well as other people, and has always shown a laudable zeal for the interest of the entire State. The power to determine this matter must be vested somewhere, and, the Constitution having created a special tribunal for this purpose, we can not see that its provisions are subject to any of the objections raised by appellant.
If the railroad companies are not to be allowed to have exclusive control over the rates for the long and short haul, and the sole right to determine when competition exists, and to what extent, special rates, for this reason, may be given, we do not see any more just arrangement that can be made than the selection of an -impartial tribunal to hear and determine the matter. Since Adam’s first-born dyed his hands in his brother’s blood, self-interests have warped and controlled human judgment. However honest and faithful railroad managers may be, they necessarily look first to the interests of those they serve; and no principle of constitutional law is violated when the State, which has created these agencies for the public service, creates an impartial tribunal to prevent their great powers from being used to build up certain favored ones at the expense of others.
Counsel for appellant in effect concede in their brief that the State may prevent unjust discrimination, and that if appellant’s rates are judicially determined not to be reasonable, it may then be punished.
[641]*641Their argument, in effect, is that appellant may be punished under the section of the Constitution, although its rates are reasonable, and the discrimination is made necessary by competition in trade over which it has no control. This assumes that the Railroad Commission will allow the interests of the State to suffer from an unjust rule, or that it will do injustice to appellee. We can not see that a jury is better qualified to pass on the reasonableness of a rate than a skilled commission, nor is it by any means sure that a trial by jury would be in practice any more satisfactory to appellee. It is true, the Commission may make mistakes; but we see no reason for the apprehension that an impartial tribunal will err more to the prejudice of one of the parties to a controversy than that party might himself to the prejudice of the other, if the solution of the question were left to him alone. It may b'e the Commission, on the complaint referred to, from the evidence before it, concluded that the rate to Louisville was as large as it should be to afford a fair compensation for the haul to Lebanon, or that the competition with another railroad in the State did not justify the discrimination in favor of Elizabethtown. If it erred in any of its conclusions, it has power, from time to time, on further evidence, and a fuller hearing, to make such orders as the ends of justice may require; and, if the State may control the matter at all, we can not see that the plan proposed is unfair, or in excess of the rightful police power of the State.
It is urged that this construction of the Constitution will allow coal and other freights from without the State to be shipped cheaper than they can be hauled to the same point if shipped within the State, as under the interstate commerce act, competition is held to exclude the carrier from the long and short haul clause. The Constitutional [642]*642Convention no doubt had just such cohsiderations in mind when it gave the Railroad Commission the plenary, powers conferred on it as above explained. It is the duty, and no doubt will be the pleasure of the Railroad Commission to so regulate the matter that no injustice shall be done any industry in the State, and the true interests of the Commonwealth as a whole shall be promoted.
The Interstate Commerce Act, under the Construction that has been given it, has proved a sore disappointment to many of. its friends.. The subject is new. That act was an experiment. The provision of our Constitution is an experiment in another direction. The subject is one of great difficulty, and, if experience does not And our provision to bring just results, it may lead to that system which will do justice to all, and biing these intricate questions to a just and fair settlement. Judgment afArmed.
CHIEF JUSTICE HAZELRIGG and JUDGES DuRELLE and BUR-NAM DISSENTING.