McGrew v. Missouri Pacific Railway Co.

132 S.W. 1076, 230 Mo. 496, 1910 Mo. LEXIS 218

• Court: Supreme Court of Missouri
• Decided: November 12, 1910
• Status: Published

Opinions

WILLARD P. HALL, Special Judge

Differences i|n opinion in Division resulted in the filing of two opinions therein, and in the transfer of the case to Banc. One member of the court having been of counsel in the trial court, only six of the judges sat in the case in Banc, and they dividing equally, a special judge was called in.

This is an action by plaintiff to recover damages from defendant for its violation of the short-haul rule in charging him greater amounts, i. e., higher rates per ton, for transportation of freight for certain distances over its railroad than it charged for transportation of freight of the same class for greater distances over said railroad.

Plaintiff owned and operated a coal mine at My-rick, Missouri, on the line of said railroad, and shipped his coal from there to various stations on said railroad in this state. The petition contained thirty-nine counts, covering a great amount of transportation from Myrick to different stations. In each count were stated the quantity in tons of coal transported, the station of destination, its distance from Myrick, the rate per ton .charged, the lower rate charged for coal of the same class from Myrick to another station at a greater distance from Myrick on defendant’s railroad in Missouri, and the total excess of the charges illegally made for all the coal transported.

In its answer to each count defendant admitted the allegations of fact in the petition as above stated, but it denied that the rate charged plaintiff was illegal for reasons stated. Those reasons were that the rate charged plaintiff had been fixed by the Board of Bail-road and Warehouse Commissioners, that the rate from Myrick to the more distant station had also been fixed by said board and had been made by defendant because of 'the fact that said station was a competitive point, which rendered the conditions and circumstances of the latter station dissimilar from those of the station to which plaintiff had shipped his coal, and prevented the difference between the two rates constituting discrimination.

The case was tried by the court without a jury.

Plaintiff submitted his case upon the pleadings.

Defendant asked the court to give a declaration of law to the effect that plaintiff was not entitled to a judgment upon the pleadings, and the court refused it.

Defendant offered printed and unauthenticated copies of the reports of the Board of Bailroad and Warehouse Commissioners in support of its answer. The trial court rejected same, because of the lack of authentication.

Defendant offered to prove by its general freight agent the reason for the differences in rates complained of by the plaintiff, but the court refused to receive the evidence.

At the close of the evidence, the court gave a declaration of law for plaintiff to the effect that upon the pleadings and evidence the finding and judgment should be for plaintiff.

In accordance with said declaration of law the court rendered judgment for plaintiff on the various counts of the petition for the amount of the excessive charges respectively stated therein, but not for the statutory penalties sued for. The judgment was solely for said excessive charges, and aggregated $7,462.43.

On this appeal by defendant from that judgment, defendant does not urge as error the action of the trial court in rejecting the evidence offered as hereinbefore stated, but assuming that plaintiff’s action is entirely founded upon sections 1126 and 1160, Revised Statutes 1899, it seeks to reverse said judgment on the ground that said sections of the statute are invalid, because unconstitutional for various reasons assigned, and because repealed by a subsequent statute.

It is unnecessary at this place to further explain the nature of the objections urged against the validity of said sections; that will be done in the opinion.

Plaintiff’s counsel says that said objections were not made in the trial court, and contends that they cannot be made in this court for the first time.

No further statement is deemed necessary at this time.

I. It is, of course, true, as contended by plaintiff’s counsel, that an appellant cannot try a case on one theory in the trial court and upon another theory in the appellate court, and that, generally speaking, if a constitutional question is not raised at the trial, it cannot be urged upon appeal.

■ But where plaintiff’s cause of action is founded upon a statute, the constitutionality and life of the statute' are involved from the start to the finish, because unless the statute has legal force and effect plaintiff has no cause of action, and defendant, at any time and in any court until the final end of the case, has the right to object that plaintiff’s petition does not state facts sufficient to constitute a cause of action for the reason that the statute upo’n which it is founded is unconstitutional or has been repealed. Defendant has the right to object for the first time in the appellate court that the petition does not state a cause of action, and it matters not what the ground of objection.may be, provided only that it be good and sufficient in law. [R. S. 1899, sec. 602; Andrews v. Lynch, 27 Mo. 167; Burns v. Patrick, 27 Mo. 434; Syme v. Steamboat, 28 Mo. 335; Weil v. Greene County, 69 Mo. 281; Wells v. Mutual Benefit, 126 Mo. 630; State ex rel. v. Smith, 141 Mo. 1; State ex rel. v. Smith, 177 Mo. 69', 92; Kaukauna Co. v. Green Bay Co., 142 IJ. S. 254.]

II. The first objection made to the validity of said sections of the statutes is that the act containing them was not passed in accordance with tne provision' of the Constitution then in' force in relation to the title of laws enacted by the Legislature.

Said sections of the Revised Statutes of 1899 were sections 1 and 4 of an act of the Legislature approved April 1, 1872, Laws 1871, p. 69. Section 1126 was section 1 of said act; section 1160’ was section 4.

At the time said act was passed the Constitution of 1865 was in force. Section 32, article 4, of said Constitution- provided: ‘ ‘ No law enacted by the General Assembly shall relate to more than one subject, and that shall be expressed in the title. ’ ’

The title of said act was: “An act to prevent unjust discrimination and extortion in the rates to he charged, by the different railroads in this State, for the transportation of freight on said roads.”

Section 1 of said act (now sec. 1126, R. S. 1899), prohibited every railroad company in the State from doing three things: 1. From charging for the transportation of property for any distance over its road any larger amount as compensation, than is charged by it for the transportation of similar quantities of the same class of property over a greater distance over its road. 2. From charging different rates for receiving, handling or delivering freight at different points on its road, or any road used by it in connection therewith. 3. From charging.for the transportation of property over any portion of its road a greater amount as compensation, than shall be charged by it for the transportation of similar quantities of the same class of property over any other portion of its road of equal distance. -

Section 4 of said act (now sec. 1160, R. S. 1899),' merely prescribed a penalty for violating the provisions of the act, and need not be considered further in this connection.

The objection is that the body of the act, i..e., section 1 thereof, was broader than the title.

In support of that objection counsel argue that the title was aimed at unjust discrimination only, whereas the body of the act prohibited every discrimination, just, as well as unjust. They say that the title conceded that there might be just discrimination, but that the body of the act denied such concession. They say that the title was merely declaratory of the common law, which prohibits only unjust discrimination and tolerates just discrimination, while the body of thé act prohibited every discrimination without regard to whether it was just or unjust.

I do not think any of these arguments sound. The body of the act did not prohibit all discriminations; it prohibited only the -three discriminations specified therein. It did not prohibit any just discrimination at all; the legislative prohibition was a legislative condemnation of the specified discriminations as unjust and they became unjust by reason of such condemnation. Grant that the title conceded that there might be just discrimination, how did that concession imply that the body of the act would not condemn given discriminations as unjust, and prohibit them under pains and penalties? The common law rule as to discriminations by common carriers is not entirely settled. The courts are not all agreed as to what that rule is. [Interstate Com. Commission v. Railroad, 145 U. S. 263, 275.] But it is conceded that at common law only unjust discriminations are ■condemned, and that the question as to whether a' ■discrimination is unjust is for the courts to decide. At common .law there is no list of specific discriminations condemned as unjust. Every case is to be decided by the court on its own facts.

Counsel’s argument, therefore, that the title was declaratory of the common law, is that the title indicated that the act would not declare or define anything to be an unjust discrimination and prohibit it, but tliat the act would merely “prevent” such things as the courts might decide to be unjust discriminations. If such a thing was capable of accomplishment legally, I do not think that the title can be so construed. The title clearly indicated that the act would prohibit such things as might be declared therein to be unjust discriminations.

'If this last argument of counsel’s about the title being merely declaratory of the common law be correct, then, under said title, the act legally could probably have contained no provision whatever against ■discriminations between localities in the State, but its provisions legally would probably have been restricted to discriminations between individuals, for the reason that the common law probably does not require equality between localities, [Beale & Wyman on Railroad Rate Regulation, sec. 831.] These authors say in part, speaking of the common law: “While discrimination in rates between individuals is - illegal, even if the higher rate is reasonable in itself, this is not true as to discrimination between localities. If a general rate charged to all shippers in a certain place is reasonable in itself it is not rendered illegal merely because shippers in another place are charged a lower rate.”

A contrary view seems to be expresed in C. & A. Railroad v. People, 67 Ill. 11, but the view of said authors appears to be sustained by Interstate Com. Com’n v. B. & O. Railroad, 145 U. S. 263, 275, supra, where it is said in part that prior to the enactment of the Interstate Commerce Act the principles of the common law demanded little more than that common carriers “ should carry ... in the order in which the goods were delivered at the particular station, and that their charges for transportation should be reasonable, ’ ’ and that ‘ ‘ it was even doubtful whether they were bound to make the same charges to all persons for the same service; though the weight of authority in this country was in favor of equality of charge to all persons for similar services.”

If, therefore, the contention of defendant’s counsel in this respect is' correct, and if the common law forbids only unjust discrimination between individuals, and not between localities at all, then logically it would follow, as stated above, that the word “ discrimination” in the title of said act referred only to discrimination between individuals, and that the act legally could not have prohibited any discrimination between localities.

■ Indeed this yiew.was suggested in one of the opinions in Division. It was suggested in said opinion that the things prohibited by the act are not discriminations at all. This view is not sound.

. The entire subject of discrimination by railroads is one of very recent growth. This is true of discrimination between individuals as well as of discrimination between localities. On account of the uncertainties and the insufficiencies of the common law upon the subject, many of the states have adopted and enacted laws, constitutional and statutory, prohibiting and regulating discriminations, both local and individual. It is said that in more than twenty-eight states local discrimination is now forbidden. [Beale & Wyman on Railroad Rate Regulation, sec. 1211.] It is entirely clear that courts, law-writers, legislatures and constitutional conventions speak of discrimination between localities in the same sense that they do of discrimination between persons. And I am entirely clear that the word “discrimination” in said title applied to local as well as individual discrimination, and included what is known as a short-haul regulation. •

The title was not declaratory of the common law.

It is, of course, not disputed that, under such a constitutional provision as that of the Constitution of 1865, the body of an act must not be broader than its title. As said by Judge Cooley, the title is the conclusive index to the legislative intent. And acordingly it has been held by this court that, under a title, “An Act to change the penalty for disturbances of the peace,” the Legislature could not make that a disturbance of the peace which was not previously such an offense. This case has been urged quite vigorously by defendant’s counsel in support of their contention. But there was nothing in the title of the Act of 1872 to indicate a purpose to merely provide penalties for discriminations. The words of the title, “An Act to prevent unjust discriminations,” etc., cannot be restricted to the mere imposition of penalties, but clearly extend to the prohibition of things as well as to the imposition of penalties for doing the things. And there is nothing in said words restricting .the body of the act to existing unjust discriminations.

The title was broad enough to include every unjust discrimination, whether unjust in law prior to the enactment or not, and broad enough to authorize the Legislature to declare unjust discriminations which previously had been tolerated under the law. The provisions of the act made the things prohibited unjust discriminations, and thus said provisions were fully covered by the title.

This must be true unless the words of the title be held to have intended to make the question as to whether á discrimination is unjust a judicial question, and to restrain the Legislature in said act from declaring any discrimination unjust. This is but another way of stating counsel’s contention hereinbefore already stated. There is nothing in the words of the title from' which such intention can be inferred.

In my opinion the body of the act in no sense can be said to be broader than its title. The title indeed is broader than the body of the act. The title applies to and includes every unjust discrimination, while the body of the act covers only three specified acts of unjust discrimination.

Said act, title and all, was substantially a copy of a statute of Illinois enacted in 1871. The only difference between the two was in the penalties imposed. The Illinois statute provided for a forfeiture of the franchises of the guilty railroad company, while our act did not. This difference is immaterial here.

The Supreme Court of Illinois in 1873, after our Act of 1872 had been enacted, decided that the Illinois statute was unconstitutional (C. & A. Railroad v. People, 67 Ill. 11), and that decision is urged as strong and persuasive, though not controlling authority, in support of the objection now under consideration. But in that case it was not decided that the Illinois statute was unconstitutional on acount of any defect in its title. The invalidity was placed upon entirely different and broader grounds. The Constitution of Illinois contained a provision which the court construed to restrict the power of the Legislature to prohibit discriminations to those which are unjust, and to make the question of the injustice of any alleged unjust discrimination a judicial question to be decided by the courts. The court held that under that constitutional provision the Legislature had no power to declare anything to be an unjust discrimination, that the Illinois statute did declare the prohibited things to be unjust discrimination, and, therefore, that said statute was in conflict with the Constitution, and void. In discussion the court said _ that the Legislature had power to prohibit only unjust discriminations, and that said act prohibited both just and unjust discriminations, but the gist of the decision was as just stated, to-wit, that the constitutional provision made the question of the injustice of every discrimination a judicial question, to be decided by the courts and not by legislative enactment. Nothing was said by the court about the title of said statute, except that in the course of argument the court remarked that said title indicated the purpose of the Legislature to follow the Constitution and to prohibit unjust discriminations only, but that the statute had gone further. The point was not made in that case, nor did the court intimate that the title was defective because not broad enough to cover the provisions of the statute, upon the assumption that the Legislature of Illinois had the power to declare the things mentipned therein to be unjust discriminations. The inference is quite strong that all parties concerned thought the question involved in said case to be one of power on the part of the Illinois Legislature, and not of form or mode of executing said power. ,

There is nothing in that case, in my opinion, opposed to the conclusion hereinbefore stated, that the title, “An Act to prevent unjust discrimination,” etc., is broad enough to include all thing’s which the Legislature may legally prohibit as unjust discrimination.

At the time of the passage of our Act of 1872, the Constitution then in force contained no provision limiting the power of the Legislature to prohibit dis- . crimination by railroads.

III. Defendant’s counsel next object that if the Act of 1872 was not unconstitutional as passed, it subsequently became unconstitutional upon the adoption of our present Constitution in 1875', for the reason that the provisions of said act are in conflict with certain provisions of said Constitution.

If said act is in conflict with, said Constitution, it became inoperative upon the adoption of the Constitution. Section 1 of the schedule which forms a part of that Constitution so provides.

The constitutional provisions referred to as the basis of said objection constitute section 14 of article 12 of our present Constitution, and read as follows:

“Railways heretofore constructed, or that may hereafter be constructed in this State, are hereby declared public highways, and railroad companies common carriers. The General Assembly shall pass laws to correct abuses and prevent unjust discrimination and extortion in the rates of freight and passenger tariffs on the different railroads in this State, and shall from time to time pass laws establishing reasonable maximum rates of charges for the transportation of passengers and freight on said railroads, and enforce all such laws by adequate penalties.”

Those provisions were borrowed literally from the Illinois Constitution of 1870', and it was those provisions that the Supreme Court of that state, in 1873, in C. & A. Railroad v. People, 67 111. 11, construed to limit and restrict the power of the Legislature to prohibit discriminations by railroads and other common carriers to those discriminations which are unjust, and to make the question of the injustice of any alleged unjust discrimination a judicial question to be decided by the courts.

It is urged that we adopted the provisions with the construction that had been placed upon them. The general rule is that where one state borrows a constitutional provision from another state that had previously been construed by the courts of the latter state, such construction is presumed to have been adopted along with the provision. The reason for said rule is that if it were intended to exclude the. previous construction, the legal presumption is that the terms of the provision would be so changed as to effect that intention. [Com. v. Hartnett, 3 Gray (Mass.) 450; Pennock v. Dialogue, 2 Pet. (U. S.) 1; Hogg v. Emerson, 6 How. (U. S.) 483.] And if we had adopted those provisions of the Illinois Constitution alone without more, there would have been great force in the contention that the effect of it was to repeal the Act of 1872, although it”is apparent that the question even then would have been quite different from that which would have been presented had we first adopted said constitutional provisions, and afterwards enacted the Act of 1872. In the latter contingency, the presumption would have been very great that by adopting said constitutional provisions it was our - intention to prevent the enactment of such an act as the Act of 1872, and to prevent the Legislature from defining unjust discrimination, and to permit it to prevent only such discrimination as the courts might decide to be unjust. But the Act of 1872 was enacted before our adoption of said constitutional provisions and said act was within the power of our Legislature at the time of its enactment, and it declared specific acts of discrimination to be unjust and unlawful; and had said constitutional provisions, standing alone, been adopted by us, the question then would have been as to the effect of the use of the word “unjust” in said provisions to set aside the policy of this State as declared in said act, and to repeal it because declaring specific acts of discrimination unjust without regard to the decisions of the courts thereon. It is -clear that the two questions suggested here are not identical, and that they would not necessarily require the- same answer. In the one case the presumption would be much greater than in the other.

But we did not adopt those constitutional provisions alone. Not only did we adopt as a part of our present Constitution said provisions which annulled the Illinois statute, that had enacted the short-haul rule, but we also adopted the very gist of that statute, i. e., the short-haul rule itself, and wrote- that very rule into our Constitution, making it section 12 of article 12 thereof. Said section reads as follows:

“It shall not be lawful in this State for any railway company to charge for freight or passengers a greater amount, for the transportation of the same, for a less distance than the amount charged for any greater distance; and suitable laws shall be passed by the General Assembly to enforce this provision; b'-ut excursion and commutation tickets may be issued at special rates.”

That action was most significant. The Illinois court had decided in 18-73 that the Illinois statute prohibited all discrimination by railroad companies in the transportation of freight in any direction, the same or not; under any circumstances or conditions, similar or dissimilar; and whether just or unjust in the opinion of the courts. The convention that framed our Constitution of 1875, with that decision before it, took the gist of that statute and inserted it into our Constitution, establishing the short-haul rule, but extending it to the transportation of passengers as well as that of freight. That action is consistent only with the intent on the part of the convention that framed the Constitution, to establish the short-haul rule in this State as a part of its fundamental law.

Moreover, in 1873, Pennsylvania had adopted a new Constitution, a section of which prohibited undue or unreasonable discrimination in charges or facilities for the transportation of passengers or freight, and provided that “persons and property transported over any railroad shall be delivered at any station at charges not exceeding the charges for transportation of persons and property of the same class, in the same direction, to any more distant station.” [Art. 17, sec. 3.] Two years afterwards when we framed our present Constitution, with the recent constitutions of both Illinois and Pennsylvania before us, we took the short-haul rule, but we worded it in our own way, following in a general way the Illinois statute, ignoring the limitations in the Pennsylvania Constitution restricting the rule to hauls in the same direction, and making it apply to hauls in the same or the opposite direction.

Since 1875 other states have adopted constitutions making a short-haul provision a part of them. Said states are Arkansas, California, Kentucky, Montana, Oklahoma, South Carolina, Virginia and Washington. In none of them is the short-haul rule stated so broadly or unconditionally as in our Constitution. In most of them the haul must be in the same direction, in some of them under the same or like conditions and circumstances, and in not a few of them some state commission is authorized to grant relief from the rule on a proper showing.

The language of our Constitution, so widely different from all the others in these respects, was not a mere accident, but indicates a- fixed and settled purpose and intention to establish a rigorous and unalterable and unvarying short-haul rule as the policy of the State.

The effect of making the short-haul rule a part of our Constitution was to exclude-the construction by the Illinois Supreme Court of the Illinois constiturtional provision borrowed by us.

The two sections of our Constitution should be read together in determining their meaning, their purpose and their effect. We should also consider the condition of the law at the time ,we adopted said Constitution. At that time the Constitution of 1865- was in force. That Constitution, as hereinbefore said, contained no restriction upon the power of the Legislature over discrimination in railroad rates, and, under that Constitution, said power was unlimited unless restricted in some manner by the Constitution of the United States. “The governments of the states possess all the powers of the Parliament of England, except such as have been delegated to the United States or reserved by the people. The reservations by the people are shown in the prohibitions of the constitutions” of the states. The state constitutions are -not grants of power, but are restrictions on the powers which the state government would otherwise possess. [Munn v. Illinois, 94 U. S. 113; State v. Tower, 185 Mo. 79; Ex parte Roberts, 166 Mo. 207, 212; State ex rel. v. Sheppard, 192 Mo. 497, 506; Ex parte Berger, 193 Mo. 16.] The legislature of a staté possesses all legislative power except as restricted by the provisions of the Constitution of the United States or of the Constitution of the state. This fundamental rule of our state governments is declared by section 1 of article 4 of our present Constitution in the provision: “The legislative, power, subject to the limitations herein contained, shall be vested in a Senate and House of Representatives to be styled ‘The General Assembly of the State of Missouri.’ ”

In State v. Tower, 185 Mo. 79, this rule is stated, and it is said that under said rule “the Legislature has the power to declare places or practices . . . public nuisances, although not such at common law,” that is, to “declare that a nuisance which before was not a nuisance.”

The regulation of railroads is within the legislative power of the state. [Beale & Wyman on Railroad Rate Regulation, secs. 1301-1306; Munn v. Illinois, supra; C., B. & Q. Railroad v. Iowa, 94 U. S. 155; Peik v. Railroad, 94 U. S. 164.] It was in the exercise of that power that the Legislature passed the Act of 1872.

Sections 12 and 14 of said article of our Constitution when read together, as they should be, leave no doubt of the intention of its framers to adopt the short-haul rule, and to put it in operation in this State. Such intention, as hereinbefore stated, is clearly manifested in section 12, and there is nothing in section 14 indicating a contrary intention. The language of the latter section that is supposed to indicate a contrary intention is that which directs the Legislature to pass laws “to correct abuses and prevent unjust discrimination and extortion in the rates of freight and passenger tariffs in this State.” It is argued that an implied rstriction arises from that language limiting the power of the Legislature to prevent only such discrimination as is unjust, that it could not have been intended to thus restrict the power of the Legislature in section 14, and in section 12 to have empowered the Legislature to enforce the short-haul rule not only where it is just to do so, but also where it is unjust to do so, and, therefore, that said implied restriction should be extended to section 12 and applied to' it as well as to section 14.

The implied restriction upon the power of the Legislature thus sought to be enforced, arises from language in section 14 which refers to discrimination generally, whereas the short-haul rule established by section 12 applies to a particular class of discrimination, and is specifically established in positive and explicit terms. If there is any inconsistency between the two sections in the respect under consideration,, the specific class of discrimination treated of in section 12 must be regarded as withdrawn from the provisions, of section 14 relating to discrimination generally, and the positive and explicit terms of the former section cannot be restrained by such implication arising from the subsequent general words of the latter section.

The following statement of the established rule as to the controlling effect of a particular enactment over a general enactment, in the construction of statutes, fits this ease: “It is an old and familiar rule that where there is in the same statute a particular enactment and also a general one, which in its most comprehensive sense would include what is embraced in the former, the particular enactment must be operative and the general enactment must be taken to affect only such cases within its general language as are not within the provisions of the particular enactment.” [26 Ency. Law (2 Ed.), 629.] Generally “if two provisions are irreconcilably repugnant, the last in order of time and local position will be preferred,” but this general rule gives way where the first provision is particular and the last one is general. In such case an exception is made, and the particular intent prevails. [8 Cyc. 743.] In speaking of the effect that positive and explicit provisions have to deny an implication from subsequent words, Mr. Chief Justice Marshall said in Faw v. Marsteller, 2 Cranch (U. S.) 10: “In searching for the literal construction of an act it would seem, to be generally true that positive and explicit provisions, comprehending in terms a whole class of cases, are not to be restrained by applying to those cases an implication drawn from subsequent words unless that implication be very clear, necessary and irresistible.”

If there is any implied restriction upon the power of the Legislature over discrimination in railroad rates, arising from the general provisions of section 14, the short-haul rule, established specifically by the positive and explicit provisions of section 12 must be excepted from said implied restriction.

But no such implied restriction arises from the provisions of section 14.

The construction of the language of said provisions by the Illinois court was rejected by us, and rejected in toto, and those provisions should be construed in the light of the general rules that govern in the construction of constitutional provisions.

Constitutional limitations upon the legislative power may be made, it is true, either expressly or by implication, but the implication must at least be clear and strong and convincing (Danville v. Pace, 25 Gratt. 9; Whitlock v. Hawkins, 105 Va. 242, 248), if not absolutely necessary (Cooley’s Const. Lim. [6 Ed.] 201, 204).

If section 14 of article 12 be construed in the light of that rule, and of the fundamental rule that the provisions of a State Constitution are not grants of power, but limitations of power, there can be no serious doubt about its meaning.

That portion of said section that relates to the subject of discrimination reads as follows: “The General Assembly shall pass laws to . . . prevent unjust discriminations . . . in the rates of freight and passenger tariffs on. the different railroads in this State.”

Those words are a mandate to the Legislature to prevent unjust' discriminations in railroad rates, and are not a limitation upon its power to prevent such discriminations as it may deem proper to prohibit. A constitutional command to the Legislature to do one thing is not a denial of its power to do other things.

In Evers v. Hudson, 36 Mont. 135, it was held that a constitutional provision requiring the Legislature to establish free common schools is a mandate to the Legislature to establish such schools, and is not a limitation upon the power of the Legislature to establish other schools. The court said that the provision “is not a limitation upon the legislative power, but is a solemn mandate to the Legislature.”

In State v. Fountain, 69 Atl. 926 (Del. Gen’l Sess. 908), it is held that a constitutional requirement that certain questions shall be submitted by the Legislature to a vote of the people, is not a limitation upon the power of the Legislature to submit other questions to a vote of the people.

To the same effect is the separate concurring opinion of Justice Willard in Barto v. Himrod, 8 N. Y. (4 Seld.) 483, 493, in which he said: “And I do not mean to lay much stress upon the implication arising from the express provision to submit a law creating a debt to the people, and the silence of the Constitution in relation to submitting to the people other matters of legislation. The maxim, expressio unius est exclusio alterius, is more applicable to deeds and contracts than to a constitution, and requires great caution in its application in all cases.”

The Constitution of Pennsylvania provided: “The Legislature shall, as soon as conveniently may be, provide by law for the establishment of schools throughout the State, in such manner that the poor may be taught gratis.” An act of the Legislature establishing a school system was attacked on the ground that it violated that provision of the Constitution. In answer to the objection raised, Chief Justice Black, who wrote the opinion of the court, pointed out the fundamental difference between the Constitution of the United States and the constitutions of the states, i. e., that the former is a grant of powers, while the latter are limitations of power, and, after quoting the above section of the State Constitution, added: “It seems to be believed tbat tbe last clause of this section is a limitation to tbe power of tbe Legislature, and tbat no law can be constitutional which looks to any .other object than tbat of teaching tbe poor gratis. Tbe error consists in supposing tbis to define tbe maximum of tbe legislatve power, while in truth it only fixes tbe minimum. It enjoins them to do thus much, but does not forbid them to go beyond it.”

In Williams v. Mayor of Detroit, 2 Mich. 560, 563-564, the court held tbat though the maxims expressio unius est exclu-sio alterius and expressum facit cessare taciturn generally apply to tbe construction of all instruments and laws, there are certain laws to which tbe maxims cannot be strictly applied without doing-violence to tbe plain intent of tbe framers of tbe laws, and tbat tbis is especially true in tbe construction of state constitutions, owing to their character and objects, which tbe court explained at some length, and then, in effect, said tbat tbe imposition by tbe Constitution upon tbe Legislature of certain specific duties, limitations, restraints and regulations in certain' important particulars, binds tbe Legislature, of course, in those particulars, but tbat notwithstanding tbat, all other acts properly pertaining to the legislative power of the state are ivithin the competency of the legislative department, and binding upon the people.

Tbe maxims mentioned in tbe case last cited have been, by all who make it, counsel and members of tbis court, invoked as the chief support for tbe contention tbat said portion of section M limits tbe power of tbe Legislature. But those maxims are not rigid rules of unvarying and universal application; they are merely rules adopted for the construction of written words, and like all such rules, are intended to be used for tbe purpose of ascertaining tbe true meaning of tbe words, in order tbat tbe purpose intended may be accomplished, and should never’be permitted to be used to obscure tbat meaning or thwart tbat purpose. [Lexington v. Commercial Bank, 130 Mo. App. 687, 692; McFarland v. Railroad, 94 Mo. App. 336, 342; Brown v. Buzan, 24 Ind. 194, 198; Scott v. Laporte, 162 Ind. 34, 54; Multnomah County v. Guarantee Co., 46 Ore. 523 537; State v. Houghton, 142 Ala. 90, 97; Wheeling Railroad v. Railroad, 72 Ohio St. 368, 385; Swick v. Coleman, 218 Ill. 33, 40; Helm v. Grayville, 224 Ill. 274, 278-279; Portland v. Tel. Co., 103 Me. 240, 249; Campbell v. Skinner Mfg. Co., 53 Fla. 632, 640; Endlich on Interp. Stat., secs. 398-399, 533 and 535; 1 Story on the Const. (4 Ed.), sec. 448; Potter’s Dwarris on Stats, and Consts., p. 48; 26 Ency. Law (2 Ed.), 604; Jameson, Const. Conv. (4 Ed.), sec. 574; Brown’s Legal Maxims (7 Am. Ed.), p. 653; Saunders v. Evans, 8 H. L. Cas. 729; Eastern Archipelago Co. v. The Queen, 2 El. & Bl. 878, 879; Hon. Joel Parker, Deb. Mass. Conv., 1853, vol. 1, p. 153.]

In 1 Story on the Constitution (4 Ed.), see. 448, in speaking of said maxims, Judge Story says: “These maxims, rightly understood and rightly applied, undoubtedly furnish safe guides to assist us in the task of exposition. But they are susceptible of being applied, and indeed are often ingeniously applied, to the subversion of the text and the objects of the instrument. Thus it has been suggested that an affirmative provision in a particular case excludes the existence of the like provision in every other case, and a negative provision in a particular case admits the existence of the same thing in every other ease. Both of these deductions are, or rather may bq,. unfounded in solid reasoning. Thus it was objected to the Constitution that, having provided for the trial by jury in criminal casés, there was an implied exclusion of it in civil cases. As if there was not an essential difference between silence and abolition, between a positive adoption of it in one class of cases and a discretionary right (it being clearly within the reach of the judicial powers confided to the Union) to adopt or reject it in all or any other cases. One might with just as much propriety hold that because Congress has power ‘to declare war, ’ but no power is expressly given to make peace, the latter is excluded; or that, because it is declared that ‘no bill of attainder or ex post facto law shall be passed’ by Congress, therefore Congress possesses in all other cases the right to pass any laws. The truth is that, in order to ascertain hour far an affirmative or negative provision excludes or implies others, we must look to the nature of the provision, the subject-matter, the objects and the scope of the instrument. These, and these only, can properly determine the rule of construction.”-

Lord Chancellor Campbell said in Saunders v. Evans, supra, that said maxims are not of universal application, but depend upon the intention of the parties as discoverable upon the face of the instrument or of the transaction.

Judge Parker said in the Constitutional Convention of Massachusetts of 1853, supra: “I do not understand the principle to be that the mention of one mode excludes all other modes which tvould have existed but for the mention of that mode.”

These authorities fully sustain my construction of the portion of said section 14 of the Constitution quoted above. That portion of said section was not intended as a grant of power to the Legislature to prevent discrimination in railroad rates, the Legislature already possessed that power; but the Legislature, with the single exception of the Act of 1872, had never exercised it, and that part of said section was adopted as a command to the Legislature to further exercise it, and to enact laws to prevent all unjust discriminations in such rates. The use of the word “unjust” was not made to limit the power of the Legislature in that regard, but to require the exercise of said poiuer. It was not intended by said word to deprive the Legislature of the power of determining by statute what should be unjust discrimination, and to make that a judicial question for the decision of the courts, which otherwise the Legislature could have finally settled, but it was intended to require the Legislature to act, and to declare what should be unjust discrimination. The action of the Legislature was still to be final and conclusive, just as it would have been before, and discrimination which the Legislature should prohibit, in- the meaning of that section of the Constitution, would-be unjust and illegal.

On the other hand, if the Legislature should enact that any given discrimination might be practiced by the railroads except that prohibited by section, 12 of said article, such discrimination would be legal, and the courts could not declare it unlawful on the ground that it was unjust, and therefore prohibited by the provisions of said section 14.

It is suggested that the clause of said section 14 that requires the Legislature to pass laws establishing reasonable maximum rates for railroads is against the above conclusion, for the reason that said clause clearly was intended, not only to require such legislation, but also to limit the power of the Legislature in that regard to fixing rates that are reasonable, and to prohibit it from fixing rates that are below what are reasonable; and that if such limitation and prohibition were intended in relation to rates, like limitation and prohibition were intended as to discrimination, and that the Legislature cannot prevent just discrimination any more than it can prevent reasonable-rates.

I do not think that section 14 can be construed to limit or restrict the power of the Legislature in regard to rates. That section clearly was intended to-require the Legislature to fix such maximum rates for railroads as it might deem reasonable, and there was no intimation contained in said section that the reasonableness of the rates fixed by the Legislature should be a judicial question to be determined by the courts. At common law common carriers are required to make reasonable charges, and extortionate charges can be-restrained by the courts, and at common law, therefore, the reasonableness of charges is a judicial question, but the State in its sovereign capacity has the power to fix rates and tq authorize them to be charged, and to place them beyond the power of the interference of the courts on the ground that they are extortionate. Statutory rates, except for some constitutional or statutory provision so authorizing, cannot be adjudged by the courts to be extortionate. Rates established by the Legislature under said section 14 cannot be adjudged extortionate by the courts.

There are constitutional limitations upon the power of the Legislature to regulate rates, but they are not found in said section 14.

It is now firmly established that the provision of the Fourteenth Amendment to the Constitution of the United States that forbids the taking of private property without due process of law, prohibits the State from confiscating the use of the property of any public service corporation by fixing rates so low as to deprive such corporation of reasonable compensation for such use, and that the reasonableness of the compensation is a judicial question. [Chicago, etc., R. R. v. Minnesota, 134 U. S. 418; Chicago, etc., R. R. v. Well-man, 143 U. S., 339; Reagan v. Trust Co., 154 U. S. 362; St. Louis, etc., R. R. v. Gill, 156 U. S. 649 ; Covington Turnpike Co. v. Sandford, 164 U. S. 578; Smyth v. Ames, 169 U. S. 466; San Diego Land Co. v. National City, 174 U. S. 739 ; Cotting v. Stock Yards Co., 183 U. S. 79; Stanislaus County v. San Joaquin Co., 192 U. S. 201; Ex parte Young, 209 U. S. 123; Knoxville v. Knoxville Water Co., 212 U. S. 1; Willcox v. Consolidated Gas Co., 212 U. S. 19.]

In all of those cases the plenary power of the State to regulate the rates of public service corporations is fully recognized, but it is held that such power is so limited and restricted by said provision of the Federal Constitution that, in the exercise of it, the State cannot take the úse of the property of such a corporation for the public without just compensation, and in all those cases it is conceded that the rates -established by the State, subject to that exception, are controlling and beyond the interference of the courts. The patrons of the public service corporation cannot complain that the statutory rates are too high. In that regard the reasonableness of the rates is conclusively established by legislative enactment. The corporation is not bound by the established rates simply because it has the right to receive reasonable compensation for the use of its property under a requirement to that effect by the Federal Constitution, and the right to a decision of the courts as to whether that requirement has been complied with. Just as the question of the reasonableness of the compensation in all cases where private property is taken for public use, is a judicial question, and regardless of the form of the proceeding in which said question arises, the proceeding is judicial and removable as such to the Federal courts. [Madisonville Traction Co. v. Mining Co., 196 U. S. 239; Mason City R. R. v. Boynton, 204 U. S. 570.] But except for that constitutional requirement, the reasonableness of such rates is purely a legislative question.

A like restriction, of course, is imposed upon the power of the Legislature to establish rates by sections 20 and 21 of article 2 of our Constitution, which prohibit the taking of private property without just compensation, and section 30 of said article, which provides that no person shall be deprived of his property without due process of law. What has just been said about the restriction upon such power imposed by the Federal Constitution applies to those provisions of oúr own Constitution. Their effect is to make the reasonableness of such rates a judicial question only when the rates are attacked by the corporation as confiscatory.

The constitutional limitations mentioned cannot be held to protect railroad companies in making any given discriminations prohibited by the Legislature, on the ground that they are just, unless it can be maintained that the refusal of the State to permit said discriminations is in effect the confiscation of the railroads or of the use thereof. It is perfectly clear that no such position can be maintained. It is not such confiscation for the State to establish and enforce a uniform and rigid rule of equality in rates between all individuals and localities, without exception and regardless of differences in conditions. Such a rule may be unwise, and may result in inconvenience and injustice, and may even destroy and prevent, in many instances, the equality sought to be enforced by the rule itself. But in no sense .is it the taking of the property of the railroads.

Therefore, if section 14 of said article of the Constitution stood alone, and not with section 12, I should hold that it created no limitation upon the legislative power of the State.

Mention, however, should be made of the case of W. U. Tel. Co. v. Pub. Co., 44 Neb. l. c. 335, wherein a constitutional provision similar to that of Illinois was given the same construction as that given by the Illinois court. The Nebraska court held that had there been no such provision in the Constitution of that State, the Legislature would have had power to prevent any discrimination, but that said provision, on the principle of the maxim, expressio wiius, etc., must be held to limit the power of the Legislature to the prevention of unjust discriminations, that is to say, to discriminations adjudged by the courts to be unjust. For the reasons heretofore given I am of the contrary-opinion.

Bnt the two sections must he construed together, and construed together there is no doubt about the matter, in my mind.

There is nothing in the opinion of Judge Napton in Sloan v. Pacific Railroad, 61 Mo. 24, inconsistent with any of the views expressed herein. There is not even a dictum contained in said opinion against any of these views; The only point decided in that case was that the railroad company had a valid contract authorizing it to regulate its rates until a fixed- date that had not yet arrived. What is supposed to be a dictum against the power of the Legislature to enact the Act of 1872 against railroads generally is the expression of Judge Napton: “The Act of 1872 undertakes to define the obligations of railroad companies and to declare that a charge for one distance, if it exceeds a charge for a longer one, is an unjust discrimination. It may be so; but whether it is or not, is a question for the courts to decide and not the Legislature. The Act of 1872 declares that such discrimination is an unjust one, without regard to any circumstances whatever.” That expression should not be read separate and apart from its context. The very next words of Judge Napton show that he meant to say that the common law rule declared by him in said expression, and not the Act of 1872, was in force as to the Pacific Railroad Company because of said contract. Continuing, Judge Napton said: “In other words, the Legislature, by this act, assumes a power which the charter had originally granted to the company, and which the Act of 1868 had continued to confide in the company for ten years after the passag’e of that act, and the -only question is whether the Act of 1868, under which this road is now held, is a valid act; for if it is, then primarily, the defendant is invested with, the power to fix its rates of freight and passage, subject to such police regulations as the State always retains power to make.” Judge Napton then proceeded to discuss the question of the police power of the State as affected by said contract, and in effect held that the Legislature could not, as against the Pacific Railroad, until after the expiration of said contract, abrogate the principles of the common law applicable to discrimination by railroad companies. He said that any citizen had the right to hold the company liable for unjust discrimination, but that the Legislature had no power to pronounce unjust certain discriminations made by the company, because of said contract with the company, and in conclusion said: “An arbitrary rule was adopted by the Legislature determining that certain rates were unjust. Whether they were so or not was a matter depending on circumstances, of which the Legislature were not made judges. The liability of the defendant at common law and on general principles not abrogated by the Legislature [because of said contract], was a matter for the determination of courts of justice with the aid of juries.” There was in all this no intimation that had there been no contract, the Pacific Railroad would not have been bound by the Act of 1872, or that the Legislature was without power to enact it.

I have not considered the policy of the Act of 1872. Because it must be axiomatic in every government existing under a written Constitution, that every rule clearly established by the Constitution ought to be enforced by the courts in its true spirit without regard to their opinion of the wisdom of the rule. The people make the Constitution. They alone can amend or repeal it, and the courts would interfere with the people’s prerogative were they by unfriendly construction to limit or hinder the enforcement of any constitutional rule according to its true spirit. Courts have said that such a construction of a constitutional provision should not be made as would lead to unjust and inequitable consequences, or to a manifest absurdity. [Fusz v. Spaunhorst, 67 Mo. 256.] But where the meaning of the constitution is plain and unequivocal, and its intention clear and unmistakable, the courts have nothing to do -with the policy of the rule established, and they should accept the spirit of the rule as well as its letter, and enforce it as if they believed in its wisdom. There should be no half-hearted support of the Constitution or half-hearted enforcement of its commands by the courts. The mandates of the constitution should be regarded by the courts, established under its provisions, as sacred, and should be enforced zealously. This court has said, in speaking of the power of the courts to construe constitutional provisions: “In exercising that power the courts should take a large and comprehensive view of constitutional language, mindful that ‘every scripture is to be interpreted by the same spirit which gave it forth,’ and with a deep desire to enforce its full and exact meaning.” [Wells v. Railroad, 110 Mo. l. c. 297.]

In Hills v. Chicago, 60 Ill. 86, 91, the court said: “When a particular act is inhibited by the clear and unambiguous language of the Constitution, the policy of such inhibition, or the inconvenience that may ensue from its enforcement, is a matter with which the court has no concern; its duty is simply to reverently recognize and faithfully enforce

IV. It is next insisted that the Act of 1872, and section 12 of article 12 of our Constitution, construed as above, are in conflict with article 5 and section 1 of article 14 of the amendments to the Constitution of the United States.

The Fifth Amendment relates only to acts of Congress, and'therefore is not in point.

Something was said in the preceding paragraph hereof in relation to the dne process of law required by the Fourteenth Amendment, but something further should be said upon the subject. Defendant’s counsel contend that the railroads have the same constitutional right to a decision of the courts upon the question as to what is just discrimination that they have upon the question as to what is reasonable compensation for property taken for public use or for the use of property already devoted to the public use..

In L. & N. Railroad v. Kentucky, 183 U. S. 503, the Supreme Court of the United States denied a like contention, and held that, in the absence of a valid agreement protecting it from interference on the part of the State in this regard (if indeed such an agreement could be made, which was not decided), a railroad company has no constitutional right to discriminate either between individuals or localities, and that the State has the constitutional power to prohibit absolutely all such discriminations. In small part the court said: “It is said that, while it is true that railroad companies receive their right to exist and to maintain their roads from the State, yet their ownership of such roads is property, and, as such, is protected from arbitrary interference by the State.' But though it be conceded that ownership in a railroad is property, it is property of a kind that is subject to the regulations prescribed by the State. . . . "What we now say is that a state corporation voluntarily formed cannot exempt itself from the control reserved to itself by the State by its Constitution, and that the plaintiff in error, if not protected by a valid contract, cannot successfully invoke the interposition of the Federal Courts, in respect to the long and short-haul clause in the State Constitution, on the ground simply that the railroad is property. Nor is there any foundation for the objection that the provision in question denies to the plaintiff in error the equal protection of the laws. The evil sought to be prevented was the use of public highways in such a manner as to prefer, by difference of rates, one locality to another, and the remedy adopted, by the State was to declare such preferences illegal, and to prohibit any person, corporation, or common carrier from resorting to them. . . The practical inefficiency of this remedy to reach the desired end, and the resulting injury to the welfare- of both the producers and the consumers of an article like coal, when brought into -competition with coal brought from without the State, are strongly urged on behalf .of the plaintiff in error; but however well founded such objections may be, they go to the wisdom and policy of the enactment, not to its validity in a Federal point of view. The people of Kentucky, if it can be shown that their laws are defective in- their conception or operation, have the remedy in their own. hands.” [183 U. S. 513-514.]

The court expressly denied that the doctrine established in a long line of its decisions, that a State cannot deprive a public service corporation of the use of its property under the guise of unreasonable rates, has any application to this objection. [183 U. S. 510-511.] It recognized the power of a state absolutely to prohibit all and every Hnd of discrimination, saying that the provision in the laws of Kentucky authorizing the exoneration of carriers from the operation of the law on certain conditions was ex gratia. [183 U. S. 515].

V. It is next objected that the Act of 1872 was repealed by the Act of 1887, and therefore that the former act is without force or effect, even if it was valid as passed, and- not afterwards invalid because violative of section 14, article 12 of our present Constitution.

This is the question upon which Court in Banc divided. I approached its consideration with diffidence on that account, but the conclusion reached, in my opinion, is reasonably free from doubt. The only doubt I have is due to tbe difference among the members o£ the court upon the question.

In a former suit between these same parties it was decided in Division that the Act of 1872 was not repealed by the Act of 1887. [McGrew v. Railroad, 177 Mo. 533.] The correctness of that decision is now to be decided by the court.

The general rules that prevail in determining whether a given statute has been repealed by a later one upon the sanie subject have little to dó with the determination of the question here, for the reason that the act of 1887, contained a section declaring its purpose and effect as related to other laws then in force. Section 21 of said act is as follows: ‘ ‘ This act is not intended to repeal any law now in force, unless in direct conflict therewith, but is intended to be supplemental to such laws.”

Said section furnishes the sole and only test for determining whether the Act of 1872 was repealed by the act of 1887. There could be no repeal by implication in the face of .that express provision in the Act of 1887. There could be no repeal under any general rule for the construction of statutes in the face of the specific and particular rule established in said- act itself. There could be no repeal contrary to that declared intention of the Legislature. [Ex parte Yerger, 8 Wall. 85, 105 (opinion by Mr. Chief Justice Chase) ; Patterson v. Tatum, 3 Sawy. 164, 169-170 (opinion by Mr. Justice Field) ; People v. Harris, 123 N. Y. 70 (opinion by Chief Justice Ruger) ; Robinson v. Rippey, 111 Ind. 112 (opinion by Judge Elliott) ; 1 Lewis’s Sutherland, Stat. Cons. (2 Ed.), 272; 26 Ency. Law (2 Ed.), 733.]

' The question, therefore, is, are the two acts in direct conflict so that both cannot stand, or is it possible for them both to stand, and the later be treated as supplemental to the earlier?

It is not necessary to say that this question should be decided without any regard whatever to our views of the merits of the policy inaugurated by the Act of 1872 (Robinson v. Nippey, 111 Ind. 112); and we should take up the consideration of the question with the remark of Mr. Chief Justice Chase in mind that “addition is not substitution” (Ex parte Yerger, 8 Wall, l. c. 105).

The Act of 1887'was passed at an extra session of the Legislature called by Governor Marmaduke by a proclamation which thus stated the matters for action at such session.

“To provide the legislative enactments necessary or expedient to enforce and execute those laws and principles, with reference to railways and railroad companies, which the people themselves have enacted and declared in their Constitution.” [House Journal, Extra Sess., 1887, p. 3.]

When the Legislature met, May 11, 1887, the Governor communicated a special message, in which he elaborated the program indicated in his proclamation, but did not enlarge it. He spoke of the demands expressed by the people in the Constitution twelve years previously for legislation “affecting railroads as public highways, and railroad companies as common carriers;” he declared that those demands had been too long neglected, and, without making any specific mention of what said demands were, he referred the' Legislature to his recent biennial message for a statement of them.

In that message under the heading “Eailroads,” the Governor had called the particular attention of the Legislature to certain provisions of the Constitution in the following words:

“I call your particular attention to the following sections of article 12 of our Constitution: ‘Section 7, prohibiting corporations from engaging in other business than that expressly authorized in its charter,’ also, section 8, fixing the conditions under which corporations may issue stock or bends, and prohibiting all fictitious increase of stock; also, and very especially, section 14, which declares railways to be public highways, and the companies operating them common carriers; it also directs the General Assembly to pass laws to correct abuses and to prevent unjust discrimination and extortion, and to fix maximum rates and charges and ‘enforce all such laws by adequate penalties;’ also section 17, which prohibits the consolidation of parallel or competing lines under one management; also, section 22, which prohibits the president and other officers of any railroad company being interested, directly or indirectly, in furnishing material or supplies to such company; also, section 24, which prohibits railroad and other transportation companies from granting free passes or tickets ‘to members of the General Assembly or members of the Board of Equalization, or any state or county or municipal officer. ’ ’ ’

It was in compliance with said proclamation and messages that the Legislature passed the Act of 1887, entitled, “An Act to Regulate Railroad Corporations.”

It is most significant that the Governor made no mention of section 12 of article 12 of the Constitution. He called attention to six other sections of said article, but said nothing about that section. He must have been familiar with that section, and he must have been familiar with the Act of 1872, whose provisions formed a part -of the Revised Statutes of 18791 (sec. 820). Having in mind the failure of the Legislature to carry out the injunctions imposed upon it by the. provisions of section 14 to enact certain legislation, he surely would have said something about the "legislation enjoined upon the Legislature by section 12 for the enforcement of its provisions, if-he had not thought that the Act of 1872 was a sufficient enforcement of them. Whatever may be the explanation, the significant fact is that the Governor made no mention of the shorthanl rule covered by section 12 and the Act of 1872.

Another important fact to be borne in mind is, that the Governor’s entire 'effort was to secure omitted legislation, not to correct defective legislation already enacted. He sought new laws; not the repeal of existing* laws.

No intimation is intended that, under sáid proclamation and messages, the Legislature in special session could not have repealed the Act of 1872 had it deemed it proper so to do, in enacting the legislation which it had been called upon to enact; but the facts mentioned furnish strong argument in favor of the proposition that the Legislature, by the Act of 1887, did not intend to repeal the Act of 1872,-but did intend to make the former act supplemental to the latter.

The Act of 1887 was quite comprehensive. It contained 21 sections. And it covered all sorts of discrimination, including both discrimination against localities and against individuals.

It is manifest that said act, so far as it concerned discrimination against individuals, was not in conflict with the Act of 1872, which was wholly confined to local discriminations. As to all individual discriminations the Act of 1887 was supplemental to the Act of 1872. No argument seems necessary to establish this self-evident proposition.

All the local discriminations covered by -the Act of 1887 are discriminations under “like circumstances”' or “substantially similar circumstances and conditions.” The Act of 1872, as construed by everybody, ignores circumstances .and conditions, and prohibits the forbidden things, regardless of circumstances and conditions. The Act of 1887 has a short-haul section, but it is confined to hauls in the same direction under similar circumstances and conditions. [Laws 1887, sec. 4, p. 17; R. S. 1899, sec. 1134.] As hereinbefore frequently and as just stated, the short-haul section of the Act of 1872 is not confined to any direction or circumstances and conditions, but includes all hauls in every direction and under all circumstances and conditions. That is to say, the Act of 1887 forbids a railroad company to receive “any greater compensation in the aggregate for the transportation of like kinds of property under similar circumstances and conditions for a shorter than a longer distance over the same line in the same direction” (Id.), while the Act of 1872 prohibits a railroad company to receive for the transportation of property any greater amount as compensation than is charged for the transportation of the same class of property over a greater distance upon the same road, without regard to direction or circumstances or conditions. .

It is plain to me that there is no necessary conflict between the two acts in regard to the short-haul clause. Both acts can stand. It is, of course, plain that anything in this regard covered by the Act of 1887 is also covered by the Act of 1872, because a haul in the same direction and under similar circumstances and conditions, in the meaning of the former act, must be a haul in some direction and under some conditions, in', the meaning of the latter act. But that does not create conflict. Two laws do not conflict with each other simply because they ‘ ‘ establish the same right or provide redress for the same wrong,” and in such a case, “the person seeking to enforce the right or avenge the wrong may proceed on the law he chooses.” [Bishop’s Written Laws, see. 163d; Robinson v. Rippey, 111 Ind. 112.] In the case last cited Judge Elliott said, among other things: “The fact that both of the statutes are directed to the attainment of the same end does not warrant the conclusion that the later repeals the former. Statutes constructing two systems for the government of the same subject may both stand. [Beals v. Hale, 4 How. 37; Wood v. United States, 16 Pet. 342, 363; Daviess v. Fairhairn, 3 How. 636; Raudebaugh v. Shelley, 6 Oh. St. 307.] ”

The acts of 1872 and 1887 created two systems for preventing discrimination hy railroad companies. The system created hy the latter act contains some hut not all of the things contained in the system created hy the former act, and many other things. The systems are hy no means identical, and they do not conflict with each other.

What if a violation of the short-haul section of the Act of 1887 also violates the Act of 1872? The person injured by said violation can proceed under the Act of 1872, and the fact that the matter or thing complained of also constitutes a violation of the Act of 1887 will not prevent his recovery. Take the case at har. The allegations in every count of the petition show a violation of the Act of 1872 and not of the Act of 1887, for the reason that there is, except in one count, no allegation that the longer and shorter hauls were in the same direction, and in none of the counts is there any allegation that the hauls were under the same or like circumstances and conditions. Proof of said omitted fact would not have defeated plaintiff’s recovery. Such proof would have been essential to a recovery under the Act of 1887, hut such proof would not have prevented a recovery in the cáse at har, founded on the Act of 1872.

This is precisely the view taken of a similar situation by Mr. Justice Story in Wood v. United States, 16 Pet. 342, 363. The question there was whether certain sections of an act of Congress of 1830' and 1832 were repugnant to a certain section of the act of 1790. He said in part: “In truth, however, there is not the slightest repugnancy between these sections of the acts of 1830- and 1832, and the sixty-sixth section of the Act of 1799. The former apply only to cases where there has been an opening and examination of the packages imported, before they have passed from the custody; of the custom-house; and in the course of such examination, the fraudulent intent in the making up of the package or invoice has been detected; and thereupon it declares the same to be forfeited. Now, the sixty-sixth section of the Act of 1799 may cover the same cases, but the forfeiture is the same; and therefore the provisions in such a case may well be deemed merely cumulative, and auxiliary to each other. But the sixty-sixth section is not confined to such cases. On the contrary it covers all cases where the goods have entered, and have passed from the custom-house without any examination or detection of the false invoices. It is, therefore, much more broad in its reach. To enforce a forfeiture under the sections of the acts of 1830 and 1832, it would be necessary to allege, in the information or libel, all the special circumstances of the examination and detection of the fraud, under the authority of the collector; for they constitute a part of the res gestae, to.which the forfeiture is attached. B,ut under the sixty-sixth section, no such allegations would be necessary or proper, as the forfeiture immediately attaches to every entry of goods falsely and fraudulently invoiced, without any reference whatever to the mode or the circumstances under or by which it .is ascertained.”

The fact that the penalties created by the two acts are different is immaterial. In order to enforce the penalties prescribed by the Act of 1887 for violating its short-haul section, it is necessary to allege and prove that the shorter and longer hauls were made in the same direction and under similar circumstances and conditions. Such allegations ■ and proof would not be needed to enforce the penalty prescribed by the Act of 1872, and in a proceeding to enforce the latter penalty it would be no defense to show the facts making the defendant liable to the other penalties. Just as in a proceeding against one for a common assault, it is no defense to prove that the assault was felonious.

This principle has been recognized by the Supreme Court of the United States in Beals v. Hale, 4 How. 37, 53. In that case the court referred to a number of cases cited in Coke, and added: “Among them' is one where an act of parliament made an offense punishable at the quarter sessions, and another passed making it punishable at the assizes, without any words of repeal. It was held that you may indict under either or at either court. [11 Coke 63.]”

For these reasons I think that McGrew v. Mo. Pac. Ry. Co., 177 Mo. 533, was correctly decided.

There was an inaccuracy in the opinion in that case which, in my opinion, was not of controlling importance. Mention of it is now made because of the importance given to it during the discussion of the present case. It was stated that section 1126, Revised Statutes 1899, which was section 1 of the Act of 1872, was passed in obedience to the mandate of section 12 of article 12 of the Constitution. The statement was made as a “cogent reason” why the Act of 1872 was not repealed by the Act of 1887. The statement was, of course, erroneous, for the reason that the .Act of 1872 antedated the Constitution, but to my mind the error is of no importance. The important fact is, that the Act of 1872 was deemed, in a great measure, to be an enforcement of said section 12 of article-12 of the Constitution, and it was argued that for that reason its repeal was not probable.

YI. The petition was framed upon the Act of 1872, but in view of the fact that the trial court denied the penalties asked, and allowed only the difference between the higher rates charged plaintiff and the lower rates charged by defendant for the longer distances, the judgment could be sustained upon section 12 of article 12 of the Constitution, without the aid of the Act of 1872, provided that said section of the Constitution is self-enforcing. Because if said section is self-enforcing, that is to say, if it, without the aid of any statutory enactment, makes it unlawful for a railroad company to charge more for a shorter haul than a longer one of the same class of property in any direction, the same or not, and under any or all circumstances and conditions, then clearly the measure of damages for doing the unlawful thing, in the absence of any statute upon the subject, is the amount of the excess charged for the shorter distance over that charged for the longer distance. [W. U. Tel. Co. v. Pub. Co., 44 Neb. 346.]

For this reason it seems important to determine whether said section of the Constitution is self-enforcing.

Much has been said by courts and text-writers upon the question as to what constitutional provisions are and what are not self-enforcing or self-executing.. It is not'thought necessary to go into this subject with the purpose of endeavoring to state a rule that will reconcile all the authorities or that will determine ali cases that may hereafter arise.

It must be conceded by all that wherever the Constitution of a State establishes a rule creating a new right so that, had the right, as created by the Constitution, existed at common law, it could have been enforced by some common law action, then the constitutional provision is self-enforcing to the extent of authorizing its enforcement by an appropriate action at law. And it matters not that the Legislature might be able to supply other and better methods for protecting or enforcing said right, or even that the Legislature should be directed by the Constitution itself to pass suitable laws for enforcing the rule established by it. If the right be clearly created by the Constitution, it can be enforced in the courts without legislative action. The courts will find a remedy, and will not permit the Legislature to destroy the right by failure to act, any more than by affirmative action. Constitutional rights are above legislative destruction or impairment, by action or non-action.

In Householder v. Kansas City, 83 Mo. 488, the question was as to the self-executing character of the following provision of our Constitution:

“Private property shall not be taken or damaged for public use without just compensation. Such compensation shall be ascertained by a jury or board of commissioners of not less than three freeholders, in such manner as may be prescribed by law; and until the same shall be paid to the owner or into court for the owner, the property shall not be disturbed or the proprietary rights of the owner therein divested.” [Const., art. 2, see. 21.]

The court was composed of Judges Hough, Henry, Norton, Ray and Sherwood. In an opinion by Judge Henry, concurred in by all, it was held that said provision is self-executing. It was said in the opinion that the clause relating to the ascertainment of compensation was intended to authorize the Legislature to prescribe an exclusive method of ascertaining the damages, under the limitations named, but that the failure of the Legislature to prescribe any method could not be permitted to deprive the owner of the property taken or damaged for public use of just compensation; that the first clause of said section gave him an unconditional right to such compensation; that the failure of the Legislature to prescribe a statutory method for the ascertainment of said compensation affected the remedy only and not the right; and that the owner of said property could maintain an action at'common law for the value of his property taken. This in accordance with the settled rule of law that there is and can be no such thing as a legal right without a remedy for its enforcement, which Judge Henry stated in these words: “Wherever a statute or the organic law creates a right, but is silent as to the remedy, the party entitled to the right ‘may resort to any common law action which will afford him adequate and appropriate means of redress. ’ ’ ’ That case has been followed and approved in the following cases, among others: Sheehy v. Railroad, 94 Mo. 574; Keith v. Bingham, 100 Mo. 300; Hickman v. Kansas City, 120 Mo. 117; Sharp v. National Biscuit Co., 179 Mo. 553; Cummings v. Winn, 89 Mo. 51. The Householder ease states the recognized doctrine in this state, and the doctrine sustained by reason and the overwhelming weight of authority.

In the previous case of St. Joseph School Board v. Patten, 62 Mo. 444, it was held in an opinion by Judge Napton, concurred in by Judges Sherwood and Hough, that our constitutional provision limiting the rate of taxation for school purposes, with the proviso that the rate might be increased in certain classes of school districts on the condition that a majority of the taxpayers voting at an election to be called to decide the question, vote for said increase, was self-executing, and that the failure of the Legislature to provide for an election on this question of such increase did not affect the self-executing character of said provision.

But in another prior case this court had rendered a decision out of line with the doctrine announced in the Householder case. In Fusz v. Spaunhorst, 67 Mo. 256, the question was whether the following provision of our Constitution was self-executing so as to make the officers of the bank liable under its provisions:

“It shall be a crime, the nature and punishment of which shall be prescribed by law, for any president, director, manager, cashier or other officer of any banking institution, to assent to the reception of deposits, or the creation of debts by such banking institution, after he shall have had knowledge of the fact that it is insolvent, or in failing circumstances; and any such officer, agent or manager shall be individually responsible for such deposits so received, and all such debts so created with, his assent.” [Art. 12, sec. 27.]

This court held in an opinion by Judge Sherwood, concurred in by Judges Napton, Hough, Norton and Henry, that the provision making the officers of the failing bank liable is not self-executing. The opinion was based largely upon the first part of the section, “‘It shall be a crime, the nature and punishment of which shall be prescribed by law,” etc., which, of course, was not self-executing, and it was argued that neither was it intended to make the civil part of the section self-executing. Groves v. Slaughter, 15 Pet. 449, was cited among other cases in support of the court’s «opinion. The Pusz case is no longer recognized as the law in this State, any more than is Groves y. Slaughter recognized as having been correctly decided.

In Cummings v. Winn, 89 Mo. 51, 56, Judge Henry .said that he had concurred in the opinion in Pusz v. Spaunhorst, but had become satisfied that said opinion was erroneous, citing the Householder case in support «of his present conviction. Speaking of the section of the 'Constitution involved in the Spaunhorst case, he said that the first clause declaring “it shall be a crime, the mature and punishment of which shall be prescribed by law,” etc., is clearly not self-executing, but that the last clause is. He added: “It declares the individual responsibility of the guilty officer — confers a right upon •the depositor, or creditor, to recover from such officer Ms debt or deposit. When the law gives a right but prescribes no remedy, any common law action may be resorted to, adapted to the case, and under our code there can be no difficulty as to the remedy. We have In this State ‘but one form of action for the enforcement or protection of private rights, and redress or prevention of private wrongs, which shall be denominated a civil action.’ [Sec. 3641, R. S. 1879.]”

In Sharp v. National Biscuit Company, 179 Mo. 553. it was held that the amendment to our Constitution authorizing three-fourths of a jury in civil cases in courts of record to render a verdict is self-executing. In the opinion in that case Fusz v. Spaunhorst was treated as having been overruled in Cummings v. Winn, 89 Mo. 51.

In State ex rel. v. Lesueur, 145 Mo. 322, it was held by a unanimous opinion by Court in Banc that the constitutional provision that “no corporation . . . shall be created or organized, . . . unless the persons named as corporators shall . . . pay into the State Treasury fifty dollars for the first fifty thousand dollars or less of capital stock” is self-executing.

Section 6 of article 12 of the Constitution, in relation to cumulative voting in corporations, has been assumed to be self-executing. Judge Gantt said in Gregg v. Granby Co., 164 Mo. l. c. 626, that said section granted the right to each shareholder to vote on the cumulative plan.

In State v. Warner, 165 Mo. 399, it was held that the provision of the Bill of Rights in our Constitution that “in criminal prosecutions the accused shall have the right to appear and defend in person and by counsel,” is self-executing. In the opinion it was said, in part, that “whenever a constitutional right, such as is now under discussion, has no statute specially adapted to enforce it, by its own inherent potency, and leaning not on the adventitious aids of statutory regulation, it supplies the lack of statutory provisions and enforces itself.” [165 Mo. 414-415.]

In State v. Kyle, 166 Mo. 287 (in Banc), in an opinion by Judge Burgess, concurred in by all the other judges, it was held that the amendment to our Constitution, making indictment and information concurrent remedies in prosecutions for felonies, is self-executing. Judge Burgess said that there are a number of provisions in our Constitution that are self-executing, and that require no legislation to put them in operation, and that the test in all cases involving this question is, can the provision in question be enforced without legislation ?

In Evans v. McFarland, 186 Mo. 703, 727 (in Banc), it was held that the provision of our Constitution that fixed a maximum of indebtedness which any municipal or political corporation or subdivision of the State can incur, provided that such corporation or subdivision can assent to an increase on indebtedness beyond said maximum amount, but provided further that any such corporation or subdivision shall,before or at the time of giving such assent, provide for the collection of an annual tax sufficient to pay the interest on such indebtedness as it falls due, and also to constitute a sinking fund for the payment thereof, etc., is self-executing. To a like effect is East St. Louis v. Amy, 120 U. S. 600.

The courts elsewhere in this country quite generally announce the same doctrine.

The Constitution of Maryland contained the following provision:

“The rate of interest in this State shall not exceed six per cent per annum, and no higher rate shall be taken or demanded, and the Legislature shall provide, by law, all necessary forfeitures and penalties, against usury.”

Mr. Chief Justice Taney held on the circuit that said provision was self-executing, and that a note bearing usurious interest was void in toto. [Dill v. Ellicott, Taney (U. S.) 233, 7 Fed. Cas. No. 3, 811.] Subsequently the Court of Appeals of Maryland decided that said provision was self-executing, but that it avoided only so much of the contract as provided for excessive-interest. [Bandel v. Isaac, 13 Md. 202.] Chief Justice Lb Grand said in small part: “The thing forbidden by the Constitution is the taking or demanding a higher rate of interest than six per cent: it is not forbidden to take or demand that or a lesser rate. The thing forbidden is the excess and nothing else, and that is-what is illegal and void, and it is within the province of the Legislature to punish this illegality by forfeitures and penalties. Whilst the Constitution makes it competent to the Legislature ‘by law/ to forfeit the whole, or any part, of the money loaned, and in addition to impose a penalty, yet, until it does exercise this office, all that'is ‘avoided’ by the Constitution is the excess beyond the six per cent.” [p. 221.]

A like provision of the Constitution of Texas has been held to be self-executing, and the view of Chief Justice Taney is there taken. [Watson v. Aiken, 55 Tex. 536; Hemphill v. Watson, 60 Tex. 679; Quinlan’s Estate v. Smye, 21 Tex. Civ. App. 156.]

In Hemphill v. Watson, supra, Chief Justice Willie said in part: “This provision is prohibitory in its nature and self-executing so far as to render all contracts of the kind denounced immediately illegal; and it left to the Legislature the only remaining duty of saying what penalties should be imposed upon offenders against this clause of the Constitution.”

A provision of the Constitution of Illinois that the recorder’s court of the city of Chicago should be continued and called the “Criminal Court of Cook County,” and should have jurisdiction in all criminal cases and quasi-criminal matters arising in the county of Cook, or which might be brought before it pursuant to law, was held to be selffenforcing. [People v. Bradley, 60 Ill. 390.].

So too was the provision of said Constitution that private property should not be taken or damaged for public use without just compensation, and that such compensation, when not made by the State, should be ascertained by a jury, and should be prescribed by law. [People ex rel. v. McRoberts, 62 Ill. 38.] In the course of the opinion in the case last cited, the court' quoted the words of the Constitution ‘ ‘ as shall be prescribed-by law,” discussed the words somewhat, and said: “The inhibition of any other mode of determining the compensation is independent of and complete without the words quoted. They merely declare the duty of the Legislature.” The court also said, speaking of other provisions of the Constitution: “Section 12 prohibits imprisonment of a debtor, unless upon refusal to deliver up his estate, ‘as shall be prescribed by law.’ Does the freedom of a citizen from incarceration, therefore, depend upon the action of the Legislature? We apprehend not. He is secure from imprisonment for debt except upon a refusal to surrender his estate for the benefit of his creditors, or there is strong presumption of fraud; and until the manner of surrender is provided by law. Section 16 forbids the quartering of troops in the house of the citizen, even in time of war, ‘ except in the manner prescribed by law.’ The failure to prescribe the manner cannot destroy the prohibition.” In speaking of the same section of the Constitution of that State the Supreme Court of Illinois in a subsequent case, said: “It is a constitutional right of which the party may not be debarred, either by the action or non-action of the Legislature.” The following provision of the Constitution of Illinois has been held to be self-enforcing:

“No county, city, township, school district or other municipal corporation, shall be allowed to become indebted in any manner or for any purpose, to an amount, including existing indebtedness, in the aggregate exceeding five per centum on the value of the taxable property therein, to be ascertained by the last assessment for state and county taxes previous to the incurring of such indebtedness.” [Law v. People ex rel., 87 Ill. 385.].

In part it was said in the opinion by Mr. Justice Walker: “It has also been repeatedly held, and is regarded as settled doctrine, that all negative or prohibitory clauses of this character found in a constitution execute themselves, as legislative provisions, in the same or other language, prohibiting the incurring of such indebtedness, conld be no more binding or forcible than the Constitution itself.”

A provision of the Constitution of Tennessee that * ‘ tbe Legislature shall have no power to authorize lotteries for any purpose, and shall pass laws to prohibit the sale of lottery tickets in this State,” was held to- be itself a prohibition of lotteries. [Bass v. Nashville, Meigs 421.]

In Mallon v. Hyde, 76 Fed. 388, it was held that the provision of the Constitution of Washington, making individually liable an officer of a bank receiving deposits after he has knowledge of the bank’s insolvency, is self-executing. And to the same effect is Rice v. Howard, 69 Pacific 77 (Cal.), in relation to a like provision of the Constitution of California.

The double liability of stockholders of corporations established by constitutional provisions is also held en-forcible without legislative enactment in aid of such provisions.

In State v. Woodward, 89 Ind. 110, the court held that the following provision of the Constitution of that State was self-enforcing: “No lottery shall be authorized, nor shall the sale of lottery tickets be allowed.” In part the court said: “We are of opinion that the provision is not a mere check upon future legislation, but an absolute prohibition of lotteries and the sale of lottery tickets. It is so far self-executing as to take away any right or authority that might theretofore have existed to conduct lotteries or sell lottery tickets. Its evident meaning is that from the time of the adoption of the Constitution there should, be no authority for conducting lotteries, nor should lottery tickets be sold. It needed legislation, to be sure, to make the conducting of lotteries or the selling of lottery tickets a crime with a prescribed punishment, but the provision effectually took away any authority that might have previously existed to do those things. See Cooley’s Const. Lim., [4th Ed.] pp. 99 to 102, and notes; also the opinion by Mr. Chief Justice Sharkey, in the case of Brien v. Williamson, 7 How. (Miss.) 14.”

The great case on this subject is Brien v. Williamson, 7 How. (Miss.) 14. The Constitution of Mississippi provided: “The introduction of slaves into this State as merchandise or for sale, shall be prohibited from and after the first day of May, eighteen hundred and thirty-three: Provided, that the actual settler or settlers shall not be prohibited from purchasing slaves in any State of this Unión, and bringing them into this State for their own individual use, until the year eighteen hundred and forty-five. ’ ’ The Supreme Court of that State held said provision of the Constitution to be self-executing, and to be a prohibition of the traffic described, and that a note given in part payment for a negro imported by the payee in violation of said provision was void. The court that decided that case consisted of William L. Sharkey, Chief Justice, and Edward Turner and Alex M. Clayton, Associate Justices. Mr. Chief Justice Sharkey wrote the opinion, in the course of which he said in part: “We hold the contract void on either of two grounds. First, that the provision in the Constitution of 1832 does per se prohibit the introduction of slaves into this state as merchandise or for sale. . . In support of our first position it is prope'r that we should inquire in the outset what a Constitution is, and how it operates. It is a form of government established by the people, designated for their general welfare as a society and as individuals. In the language of a learned jurist, ‘it was made by the people, made for the people, and is responsible to the people. ’ It is but the frame and skeleton of a government, containing the general outline, leaving the detail to be filled up in subordination and auxiliary to the essential and fundamental principles thereby established. But it is not on that account the less binding. It is from its very nature and object the supreme law of the land, fixed and unalterable, except by the power that made it. It contains only certain great principles which aré to control in all legislation, and extend through the whole body politic. These principles are of themselves laws. Constitutions do not usually profess to insure obedience by prescribing penalties; they merely declare the rule or establish the principle, which being paramount, makes void whatever is repugnant to it. Its mandates or principles bind by a moral power. . . G-eneral principles, thought to be essential to a free government, are declared; and {emanating from the sovereign authority) that mere declaration imparts to them all the force of a supreme law. ... We may safely assert without the shadow of a doubt, that the convention did intend that the importation of slaves into this State as merchandise, should be prohibited after the 1st of May, 1833, either by force of the constitutional provision, or by legislative enactment, and having so intendéd and declared it through the Constitution, it became as much a fundamental and fixed principle in the government, as any other, principle or provision whatever. It became by that mere declaration, propria vigore a law, and whether it may be supposed to be defective in not providing ail the means necessary to enforce the prohibition makes no difference, provided it can by any means be carried into effect. Even if It was intended only as a mandate to the Legislature, its operation was to be on the citizens generally. It was not designed as one of those provisions which expend their whole force in directing and regulating the action of the legislative body, but its design was evidently to protect the people against a supposed evil. A time was fixed at which the evil should be prohibited; and from that time it was a law in full force. The Legislature could not defeat it by removing the prohibition, and this shows that it had an existing operative force. Having that existing operative force, it was not liable to be defeated by omission. It was one of those principles which required no -legislative aid to give it strength, although some may think that its strength was susceptible of a more efficient application by legislative aid. All fundamental principles, whether inherent or otherwise, in any form of government, constitute a part of the law of that government. When the people prescribe their constitutional form of government, tney ordain that every part of that form must have its appropriate effect; every principle is to be regarded as fundamental and self-executing.” In his great opinion (p. 21) Mr. Chief Justice Sharkey also said: “The words ‘ shall be, ’ when used by a lawmaking power, are words of enactment; they declare the law.”

The Mississippi Court had taken the same view of the law in previous cases, but the Supreme Court of the United States had declined to follow the State court in the construction of the State Constitution. [Groves v. Slaughter, 15 Pet. 449.] Mr. Chief Justice Sharkey’s opinion was written, in effect, in answer to the Supreme Court of the United States. G-roves v. Slaughter was decided by a divided court, and the several opinions written therein show clearly that the judgment of the court was the result of the exigencies of the slavery question and to avoid the decision of grave Federal questions.

Mr. Chief Justice Sharkey’s opinion was followed subsequently in cases affected by said provision of the Constitution of Mississippi, in Tennessee (Yerger v. Rains, 4 Humph. 259), and in Arkansas (Moore v. Clopton, 22 Ark. 125, 128), and its correctness, now after the slavery question has passed away forever, is, I believe, tacitly accepted by even the courts of the United States.

In Illinois Cent. Railroad v. Ihlenberg, 75 Fed. 873, in an opinion by Judge Taet, it was held that a clause of the Constitution of Mississippi which provided that any knowledge by an injured employee of the defective or unsafe condition of machinery should be no defense to an action for injury caused thereby, was self-executing.

And in Davis v. Burke, 179 U. S. 399, which was an appeal from an order denying a writ of habeas corpus to appellant who had been found guilty of murder in the first degree, appellant objected to conviction on the ground, among others, that he had been illegally prosecuted by information, (1) because the constitutional provision of Idaho which in terms permitted prosecution by information was not self-enforcing, and (2) that the statute of that State, known as the Information Act, was void, because not passed in the manner required by said Constitution. The court held that said constitutional provision was self-enforcing. Mr. Justice Brown wrote the opinion of the court. He said in part: “Where a constitutional provision is complete in itself it needs no further legislation to put it in force. ... In other words, it is self-executing only as far as it is susceptible of execution. But where a Constitution asserts a certain right, or lays down a certain principle of law or procedure, it speaks for the entire people as their supreme law, and is full authority for all that is done in pursuance of its provisions. In short, if complete in itself, it executes itself. When a constitution declares that felonies may be prosecuted by information after a commitment by a magistrate, we understand exactly what is meant, since informations for the prosecution of minor offenses are said by Blackstone to be as old as the common law itself, and a proceeding before magistrates for the apprehension and commitment of persons charged with crime has been the usual method of procedure since the adoption of the. Constitution, It is true the Legislature may see fit to prescribe in detail the method of procedure, and the law enacted by it may turn out to be defective by reason of irregularity in its passage. In such case a proceeding by information might be impeached in the State court for such irregularity, but it certainly would not be void as long as it was authorized by the Constitution. For us to say that the accused had been denied due process of law would involve the absurdity of holding that what the people had declared to be the law was not the law.”

In Central Iron Works v. Pennsylvania Railroad, 5 Pa. Dist. 247, in an opinion by Simonton, P. J., it was held that a provision of the Constitution of Pennsylvania was self-enforcing, that declared that “persons and property transported over any railroad shall be delivered at any station at charges not exceeding the charges for transportation of persons and property of the same class, in the same direction, to any more distant station.” Judge Simonton said among other things: “There are undoubtedly many provisions in the Constitution which presuppose and require legislation to carry them into effect, but there are also many, efficient in themselves, which need no aid from legislation. Of these, art. 16, sec. 4, providing for cumulative voting for directors of corporations, is one. [Pierce v. Com., 104 Pa. St. 150.] Delivering the opinion of the court in this case, G-oedon, J., said, at p. 155': ‘But it is said this provision is but directory, and it cannot go into effect without legislative action directing the manner of its exercise. To this proposition we cannot assent. . . . The constitutional right is one that belongs solely and exclusively to the individual shareholder. . . . Legislative action is, therefore, uncalled for. . . . With the right itself, the Ceneral Assembly cannot meddle.’ So, here, the right conserved by the Constitution belongs to each individual shipper, and the ordinary process of the courts is ample for its enforcement. There is, .therefore, no necessity for legislative action.” In further part Judge Simonton said: “Nothing could be added to this [constitutional provision] by an act of the Legislature which would render it more clear or definite, and, as was said in Pierce v. Com., supra, it would not be in tbe power of the Legislature to take anything from it.” Judge Simonton further referred to the fact that the provision of the Constitution of Pennsylvania which prohibits the damaging of private property without just compensation had been held to be self-enforcing. [Reading v. Althouse, 93 Pa. St. 400; Fredericks v. Canal Co., 148 Pa. St. 317.] And that no one had contended that the provision of said Constitution providing that no existing railroad, canal or other transportation company, should have the benefit of a certain article thereof, except on condition of the complete acceptance of all the provisions of said article, needed legislation to enforce it; and that no claim had ever been made that legislation was necessary to enforce that provi ^ on of said Constitution that prohibits the consolidation of competing or parallel lines of transportation.

Section 12 of article 12 of our Constitution clearly establishes an unconditional short-haul rule, without regard to direction or to circumstances and conditions. Said section declares that it shall be unlawful for any railroad company to charge for the transportation of freight or passengers a greater amount for a less distance than “the amount charged for any greater distance.” That declaration establishes a rule, and creates a right in every passenger and shipper to a compliance with, and an obedience to its terms. The direction to the Legislature that it pass suitable laws to enforce the rule established, contained in said section, did not suspend the rule or right of passengers and shippers to a compliance with its terms, until the Legislature should comply with said direction and pass such laws. Said section has the same force and effect as if it read: “It shall not be lawful in this State for any railroad company to charge■, under penalties which the General Assembly shall prescribe, for freight or passengers a greater amount for the transportation of the same, for a less distance than the amount charged for any greater distance. ’ ’ Had said section read that way, its effect as an operative law would have been too clear for controversy. To my mind it is equally' clear under; the present reading.

Something was said in argument about said section being too vag*ue and uncertain to be self-executing. But this argument is untenable. Said section is not identical with the Act of 1872. The former includes both freight and passengers, while the latter applies only to freight; the former applies only to hauls for a greater distance, while the latter includes hauls both for a greater and the same distance; and the former applies only to the short-haul rule, while the latter includes both that rule and a provision requiring equality of rates for “receiving, handling or delivering freight at different points” on the same road. All these differences are immaterial so far as concerns the point under discussion. The words of the section of the Constitution and of the Act of 1872 in defining the greater haul are identical. Nothing is said in either indicating direction or condition and circumstances. The act has been uniformly construed, in this State and in Illinois, to mean any direction, and any and all circumstances and conditions, and therefore, if the Act of 1872 is sufficiently explicit, so too is the section of the Constitution.

In my opinion plaintiff’s judgment can be sustained upon said provision of our Constitution, without the aid of the Act of 1872.

The judgment is affirmed.

Gantt, Valliant and Lamm, JJ., concur; Fox, C. J., Burgess and Woodson, JJ., dissent.