BURGESS, J.
— This proceeding was instituted in the circuit court of Linn county by plaintiffs, in their official capacity as members of the Board of Railroad and Warehouse Commissioners, against the defendant, under section 1150, Revised Statutes 1899.
It is provided by section 1085, Revised. Statutes 1899, that in case of the shipment of live stock by the carload, railroad companies shall pass the shipper or his employee to and from the point designated in the contract or bill of lading, in consideration of the price paid for the car, and without further expense to the shipper. Informal complaints having been made to the Board of Railroad and Warehouse Commissioners that the defendant railway company was refusing to furnish shippers of live stock by the carload with return transportation, a hearing was had before said board, due notice having been given to defendant, after which hearing an order was made by the board directing the defendant to pass the shipper of live stock, or his employee, to and from the place designated in the contract, or bill of lading, as provided in said section 1085. The order thus made was duly served upon the defendant, and upon its refusal to comply therewith this suit was instituted by plaintiffs to enjoin the defendant from violating the order of the board and the provisions of said section 1085.
The defendant demurred to the petition upon the following grounds:
“1. Because said petition does not state facts sufficient to constitute a cause of action.
“2. Because section 1085 of the Revised Statutes of Missouri, 1899, upon which plaintiffs’ complaint is founded and their said petition predicated, is invalid and void, because it is repugnant to and in conflict with the 14th Amendment to the Constitution of the United States in this, that said statute operates as a deprivation of property without due process of law, and is a [8]*8denial of the equal protection of the laws, in denying to railroad companies the right to charge and exact the payment of tolls or fares for the transportation of persons over their lines.
“3. Because said section of the statutes undertakes to require railroad companies, as common carriers, to render valuable service without compensation.”
The demurrer was overruled by the court, and the defendant declining to plead further, final judgment was rendered as prayed for in the petition, from which judgment defendant appealed to this court.
It is insisted by defendant that the court below erred in overruling the demurrer interposed by it to the petition, and in rendering judgment against the defendant and in favor of plaintiffs, because section 1085, Revised Statutes 1899, upon which the complaint is predicated, is repugnant to and in conflict with the láth Amendment to the Constitution of the United States, and, therefore, void.
The statute in question is as follows:
“Section 1085. "Whenever any railroad company or corporation doing business within the limits of this State shall receive and ship any live stock, or watermelons when shipped with the privilege of peddling along the line of said road or roads, by the carload* said company shall, in consideration of the price paid for said car, pass the shipper or his employee to and from said point designated in contract or bill of lading without further expense to shippers, under penalties as in the two preceding sections: Provided, that this section shall not be so construed as to permit a shipper of live stock to peddle the same along the line of said road or roads.”
This section of the statute was enacted in 1889, and approved June 12th of that year. [Laws 1889, p. [9]*963.] The headnotes or catch-words to the act and the title thereto are as follows:
‘ ‘ Corporations : Railroads — Shippers to Ride Free, When.
11 An act to amend an act to require railroad companies, or persons owning or operating any railroad or railroads in this State, to furnish suitable and convenient cars for shipping live stock, and transporting and delivering the same to consignees at any station or stockyard in this State, approved March 31, 1887, by adding a new section thereto.
“Section 1. Company to pass shippers,” etc.
The Legislature of this State, in 1875, enacted for the first time a statute fixing the maximum rates authorized to he charged by railroad companies for the shipment of live stock in carloads within this State. These rates were “not exceeding ten dollars per carload for the first twentydive miles, and not exceeding seven dollars per carload for the second twenty-five miles, and four dollars per carload for each additional twenty-five miles, or fractional part thereof, unless the fraction be less than thirteen miles, in which case the rate shall not exceed two dollars per carload for such fractional part.” [Laws 1875, p. 114.] This statute was brought forward and incorporated, without amendment, into the revisions of 1879:, 1889 and'1899,, being section 1194, Revised Statutes 1899. Railroad companies were thus limited in the charges they might make for shipping live stock when the act of 1889 was passed, now section 1085, Revised Statutes 1899. Prior to the said act of 1889 there was no statute requiring railroad companies to furnish shippers of live stock or their employees free transportation.
While it is conceded by defendant that the Legislature has the power to fix the maximum rates which railroad companies may charge for the transportation of persons and property, provided such rates be just [10]*10and reasonable to both the carrier and the public, it insists that the Legislature cannot “enact'a law making maximum rates, and then proceed to make exceptions to it in favor of such persons or classes as in the legislative judgment or caprice may seem proper,” citing Railroad v. Smith, 173 U. S. 695.
The right of the defendant to charge and collect fares or tolls for the transportation of persons and property over its line is the essence of its franchise, and to trench upon this right would be to deprive it of its property without due process of law, and to deny to it the equal protection of the law.
The said 14th Amendment to the Constitution of the United States, among other things, provides‘that “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”
Railroad v. Campbell, 61 Kan. 439, was an action against the railway company to recover a sum of money paid as passenger fare on the lines of. the road of the company from Kansas City, Kansas, to Attica, Kansas. The plaintiff in the case shipped a carload of live stock from the latter place to the former. On the going trip he rode free on a stock shipper’s contract issued to him by the railroad company’s agent at the shipping point, and on the return trip demanded to be carried free, in accordance with the provisions of chapter 167, Laws of 1897, of said State. This demand was refused, and to avoid ejection from the train he paid the required fare. He then brought action to recover the amount paid, together with an attorney’s fee for the prosecution of the suit. Judgment was rendered in his favor, first, by a justice of the peace, next, by the district court, and lastly by the court of appeals. The [11]
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BURGESS, J.
— This proceeding was instituted in the circuit court of Linn county by plaintiffs, in their official capacity as members of the Board of Railroad and Warehouse Commissioners, against the defendant, under section 1150, Revised Statutes 1899.
It is provided by section 1085, Revised. Statutes 1899, that in case of the shipment of live stock by the carload, railroad companies shall pass the shipper or his employee to and from the point designated in the contract or bill of lading, in consideration of the price paid for the car, and without further expense to the shipper. Informal complaints having been made to the Board of Railroad and Warehouse Commissioners that the defendant railway company was refusing to furnish shippers of live stock by the carload with return transportation, a hearing was had before said board, due notice having been given to defendant, after which hearing an order was made by the board directing the defendant to pass the shipper of live stock, or his employee, to and from the place designated in the contract, or bill of lading, as provided in said section 1085. The order thus made was duly served upon the defendant, and upon its refusal to comply therewith this suit was instituted by plaintiffs to enjoin the defendant from violating the order of the board and the provisions of said section 1085.
The defendant demurred to the petition upon the following grounds:
“1. Because said petition does not state facts sufficient to constitute a cause of action.
“2. Because section 1085 of the Revised Statutes of Missouri, 1899, upon which plaintiffs’ complaint is founded and their said petition predicated, is invalid and void, because it is repugnant to and in conflict with the 14th Amendment to the Constitution of the United States in this, that said statute operates as a deprivation of property without due process of law, and is a [8]*8denial of the equal protection of the laws, in denying to railroad companies the right to charge and exact the payment of tolls or fares for the transportation of persons over their lines.
“3. Because said section of the statutes undertakes to require railroad companies, as common carriers, to render valuable service without compensation.”
The demurrer was overruled by the court, and the defendant declining to plead further, final judgment was rendered as prayed for in the petition, from which judgment defendant appealed to this court.
It is insisted by defendant that the court below erred in overruling the demurrer interposed by it to the petition, and in rendering judgment against the defendant and in favor of plaintiffs, because section 1085, Revised Statutes 1899, upon which the complaint is predicated, is repugnant to and in conflict with the láth Amendment to the Constitution of the United States, and, therefore, void.
The statute in question is as follows:
“Section 1085. "Whenever any railroad company or corporation doing business within the limits of this State shall receive and ship any live stock, or watermelons when shipped with the privilege of peddling along the line of said road or roads, by the carload* said company shall, in consideration of the price paid for said car, pass the shipper or his employee to and from said point designated in contract or bill of lading without further expense to shippers, under penalties as in the two preceding sections: Provided, that this section shall not be so construed as to permit a shipper of live stock to peddle the same along the line of said road or roads.”
This section of the statute was enacted in 1889, and approved June 12th of that year. [Laws 1889, p. [9]*963.] The headnotes or catch-words to the act and the title thereto are as follows:
‘ ‘ Corporations : Railroads — Shippers to Ride Free, When.
11 An act to amend an act to require railroad companies, or persons owning or operating any railroad or railroads in this State, to furnish suitable and convenient cars for shipping live stock, and transporting and delivering the same to consignees at any station or stockyard in this State, approved March 31, 1887, by adding a new section thereto.
“Section 1. Company to pass shippers,” etc.
The Legislature of this State, in 1875, enacted for the first time a statute fixing the maximum rates authorized to he charged by railroad companies for the shipment of live stock in carloads within this State. These rates were “not exceeding ten dollars per carload for the first twentydive miles, and not exceeding seven dollars per carload for the second twenty-five miles, and four dollars per carload for each additional twenty-five miles, or fractional part thereof, unless the fraction be less than thirteen miles, in which case the rate shall not exceed two dollars per carload for such fractional part.” [Laws 1875, p. 114.] This statute was brought forward and incorporated, without amendment, into the revisions of 1879:, 1889 and'1899,, being section 1194, Revised Statutes 1899. Railroad companies were thus limited in the charges they might make for shipping live stock when the act of 1889 was passed, now section 1085, Revised Statutes 1899. Prior to the said act of 1889 there was no statute requiring railroad companies to furnish shippers of live stock or their employees free transportation.
While it is conceded by defendant that the Legislature has the power to fix the maximum rates which railroad companies may charge for the transportation of persons and property, provided such rates be just [10]*10and reasonable to both the carrier and the public, it insists that the Legislature cannot “enact'a law making maximum rates, and then proceed to make exceptions to it in favor of such persons or classes as in the legislative judgment or caprice may seem proper,” citing Railroad v. Smith, 173 U. S. 695.
The right of the defendant to charge and collect fares or tolls for the transportation of persons and property over its line is the essence of its franchise, and to trench upon this right would be to deprive it of its property without due process of law, and to deny to it the equal protection of the law.
The said 14th Amendment to the Constitution of the United States, among other things, provides‘that “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”
Railroad v. Campbell, 61 Kan. 439, was an action against the railway company to recover a sum of money paid as passenger fare on the lines of. the road of the company from Kansas City, Kansas, to Attica, Kansas. The plaintiff in the case shipped a carload of live stock from the latter place to the former. On the going trip he rode free on a stock shipper’s contract issued to him by the railroad company’s agent at the shipping point, and on the return trip demanded to be carried free, in accordance with the provisions of chapter 167, Laws of 1897, of said State. This demand was refused, and to avoid ejection from the train he paid the required fare. He then brought action to recover the amount paid, together with an attorney’s fee for the prosecution of the suit. Judgment was rendered in his favor, first, by a justice of the peace, next, by the district court, and lastly by the court of appeals. The [11]*11railroad company prosecuted error to the Supreme Court. The only question involved in the case was the constitutionality of the enactment under which the demand for free transportation was made, the title of the act and the only section necessary to refer to in this case being as follows:
“An Act to amend chapter 195, of the Laws of 1895, being an act entitled ‘An act to require railroad companies to furnish free transportation to shippers of stock in certain cases, and providing a remedy in case of failure or refusal on the part of the railroad company to comply with the provisions of this act; ’ to provide a penalty for the violations of the provisions of this act, and repealing all acts and parts of acts in conflict herewith.
“Section 1. That section 1 of chapter 195, of the Laws of 1895, be amended so as to read as follows:
“Section 1. Whenever any railroad company, or corporation, doing business within the limits of this State shall receive and ship any live stock by the carload, said company, in consideration of the usual price paid for the shipment of said car, shall pass the shipper or his employee to and from the point designated in the contract or bill of lading, without further expense to the shipper in the way of fare: Provided, however, that in all cases where a shipper ships more than one carload of stock at the same time the said railroad company shall be and is hereby required to pass free, as aforesaid, only one additional person, shipper, or employee, for every three carloads shipped in addition to the first carload.”
It was held by the court that said act, in requiring railroad companies to furnish free transportation to shippers of live stock in certain cases, was a deprivation of property without due process of law, and a denial of the equal protection of the laws, and, therefore, [12]*12unconstitutional and void under the Fourteenth Amendment to the Federal Constitution:
The court said: “The property of a railroad company consists not alone in its franchise to he a corpora-' tion, nor its right of way and track, nor its rolling-stock and other tangible property, but it consists, in its most essential character and important sense, in the right to charge and collect tolls for the transportation of persons and property over its line. "Without the right to take tolls such corporation could not do business, and a denial of its right to take tolls would as effectually render valueless all of its other property as a confiscation of its other property would defeat its ability to carry on its business. Upon the conception of the right to take tolls as a species of property belonging to railroad corporations rest all the decisions of all the courts, both State and Federal, denying the right of State Legislatures to restrict such tolls below a reasonable amount. It needs but a glance at the act in question, and but a moment’s thought over the consequences to result from a sanction of its provisions, to perceive that it strikes vitally at the fundamental right of a railroad company to own and enjoy that species of property which exists in the form of its franchise to charge and collect tolls. It purports in its title to be, and is; ‘An act to require railroad companies to furnish free transportation to shippers of stock in certain cases,’ and in its body it requires railroad companies, ‘in consideration of the usual price paid for the shipment of a car of stock, to pass the shipper or his employee to and from the point designated in the contract or bill of lading, without further expenses to the shipper in the way of fare.’ Upon no theory whatever, consistent with the idea that the franchise of railroad companies to take tolls is a species of property, or consistent with the adjudications of the courts that such right of property is protected by the Fourteenth Amend- ■ [13]*13ment to the Federal Constitution, can such an enactment be upheld. Once grant that so much of the property of railroad companies as is involved in their right to charge passenger fare to shippers of stock can be taken away by legislative enactment, and it necessarily follows that the like property of theirs which consists in their right to charge passenger fare to other shippers of other kinds of property can also be taken away for like reasons; and once grant, upon like considerations, that the property right of railroad companies to take tolls for passenger carriage can be thus taken away, and the right to take tolls for freight transportation can be likewise taken away; and once grant that the right to take tolls for freight and passenger carriage can be taken away, and it follows that the right to own and possess the rolling-stock and other like property necessary to the operation of the road can be likewise taken away; in short, there would be no end to the extention of legislative authority over the right of railroad companies to own and enjoy property.”
Railroad v. Smith, 173 U. S. 684, involved the validity of an act of the Legislature of Michigan requiring railroad companies to keep for sale 1000-mile tickets at specified rates, less than the regular rates, to be issued in the name of the purchaser and the members of his family, and to be good for use for two years from the date of sale. The court said: “If the Legislature can interfere by directing the sale of tickets at less than the generally established rate, it can compel the company to carry certain persons or classes free. If the maximum rates are too high in the judgment of the Legislature, it may lower them, provided it does' not make them unreasonably low as that term is understood in the law; but it cannot enact a law making maximum rates, and then proceed to make exceptions to it in favor of such persons or classes as in the legislative judgment or caprice may seem proper. "What [14]*14right has the Legislature to take from the company the compensation it would otherwise receive for the use of its property in transporting an individual or classes of persons over its road, and compel it to transport them free or for a less sum than is provided for by the general law? Does not such an act, if enforced, take the property of the company without due process of law? We are convinced that the Legislature cannot thus interfere with the conduct of the affairs of corporations.”
The statute in question does not mention any consideration for the free transportation to the stock-shipper, or his employee, to the point of destination and return, other than “the price paid for said car,” such price or compensation for said car being prescribed and limited by section 1194, Revised Statutes 18991.
If the purpose of the Legislature, in requiring the railroad company to give free transportation to the shipper of live stock, or his employee, was to enable the shipper or his employee, free of charge, to accompany and care for the stock, the statute does not so state; nor does it impose upon the shipper the duty of caring for the stock, such duty now, as always, resting upon the carrier, and if he neglects it, and by reason of such neglect the stock be injured, the carrier will be responsible to the shipper in damages, although the shipper be on the same train with the stock at the time such injury occurs. The statute does not require the shipper to accompany the stock, and if the intention of the Legislature in enacting such law was that the shipper should accompany and care for the stock, it should so have provided, and, in consideration of the free transportation to the shipper, have to some extent absolved the carrier from the duty and responsibility of caring for the stock now resting upon it.
Since it cannot be assumed that the usual price paid per car for the shipment of live stock is excessive [15]*15to the extent of one passenger fare to and from the point designated in the hill of lading, the free transportation must he regarded as a gratuity, or rather a discrimination in favor of the shipper of live stock by the carload, as against the shipper of other classes of freight, by the carload, and as such it is as unjust to the latter as it is to the railroad company. It is clear that such legislation is “so inherently unreasonable as to constitute a violation of the due process and equal protection clauses of the 14th Amendment.” [Railroad v. North Carolina Corp. Com., 206 U. S. 1.] In that case it is said: “Let it also be conceded that a like repugnancy to the Constitution of the United States would arise from an order made in the exercise of the power to fix a rate when the result of the enforcement of such order would be to compel a carrier to serve, for a wholly inadequate consideration, a class or classes selected for legislative favor, even if, considering rates as a whole, a reasonable return from the operation of its road might be received by the carrier.”
Plaintiffs contend that the only maximum freight rate involved in this case is the rate on live stock in carload lots, and that the carrier is not required to render the service of transporting the shipper or his employee free, but that the carrier receives as its compensation for such service a part of the consideration paid for the car. We are unable to see the force of this argument. The law fixing the maximum freight rates on live stock contains no provision whatever for the transportation of the shipper free with the stock, and it cannot be that, if the Legislature, in fixing the maximum rate, intended that the carrier should perform passenger service to be paid for in the transportation of the stock, it would not so provide in the act.
It is also said by plaintiffs that the subsequent enactment of section 1085, supra, “is in effect merely á reduction of the maximum rate on Class H [live stock [16]*16in carloads] in that it imposes on the carrier an additional service, while the rates prescribed remain as .before.” This is virtually admitting the unconstitutionality of the law, as already indicated. Besides, there is nothing disclosed by the record to justify such contention.
From the foregoing conclusions it results that said section 1085, in so far as it requires railroad companies to furnish, free of charge, return transportation to shippers of stock by carload over the line of their road or roads to the point from which shipment is made, is in violation of the 14th Amendment to the Constitution of the United States, and void, because it deprives the carrier of its property without due process of law, and is a denial of the equal protection of the law in that it denies railroad companies the rig’ht to charge and exact payment of tolls or fares for the transportation of shippers of stock over their lines which they are 'allowed to charge other shippers for the same kind of service.
Our conclusion is that the judgment should he reversed and the proceedings dismissed. It is so ordered.
Gantt, C. J., Valliant, Fox,,and Graves, JJ., concur; Lamm, J., in the result. Woodson, J., dissents.