I. From the facts stated, I agree to most that is written in the majority opinion, except the latter part thereof which deals with the reasonableness of the penalty imposed by our statute, and the statement in the first paragraph thereof, wherein it is said: "The statute under which this suit is brought contains no provision limiting its application to intrastate shipments." I think the penalty imposed is so unreasonable as toUnreasonable make the statute in question violative of thePenalty. provisions of the Federal Constitution, discussed, and learnedly discussed, by my brother. Many of the cases cited by my brother would so indicate. There mere fact that this statute has not heretofore reached the Federal court, or this court, may as well be explained upon the theory that the lawyers of the State feared the results, and hence refrained from asking the doubling or trebling of damages, as upon the theory that the corporations reached thereby recognized its reasonableness. The divers and sundry McGrew cases upon our books are illustrative. There were penalty clauses in the statutes covering those cases, but astute counsel for plaintiff never invoked them. Nor are claims for damages under statutes having penalty clauses always or usually trivial in amount. The McGrew *Page 260 cases, supra, are illustrative. Others might be cited, but these suffice.
What is the actual penalty fixed by this statute? In my judgment it is (1) the attorney's fee, and (2) the giving to a plaintiff of twice the amount of his adjudicated claim, in addition, as a penalty. In other words the statute not only allows the plaintiff to recover that to which he is entitled as damages, but it goes further and requires the defendant to pay an attorney's fee, and in addition to the adjudicated actual damages, twice the amount of the adjudged damages, for such is the result of treble damages. It can't be well said that the allowance of an attorney's fee, is other than a penalty. I think the statute violates the provision of the Federal Constitution discussed by my brother, and as the action is under the statute, the judgment should be simply reversed.
II. The action is brought under Sections 3184 and 3191, Revised Statutes 1909. Section 3204 limits in specific terms these statutes to intrastate shipments, and for that reason I dissent from what is said in paragraph one of the majority opinion, quoted, supra. Section 3204, Revised Statutes 1909, reads:
"All the provisions of said Sections 3179 to 3207 shall be held to apply to shipments made from any point within the State to any point within the State, whether the transportation of the same shall be wholly within this State or partly within this and adjoining State or States." The italics are ours.
It will be noted that this section covers both sections involved in this action. It is a qualification to the broad language of these sections, and limits their application to intrastate transactions. We have so specifically ruled. [Seawell v. Railway Co., 119 Mo. l.c. 233 et seq.]
So whilst we concur in the ruling that defendant should have pleaded an interstate shipment, if in fact, there was one, yet we do not concur in the view that our statutes cover anything further than intrastate shipments. *Page 261 Had the plaintiff's petition shown this car of coal to have been an interstate shipment, it would have been demurrable. Not only has this court held these statutes applicable only to intrastate shipments, but in Steel v. Railroad, 165 Mo. App. l.c. 316, et seq., the St. Louis Court of Appeals has so ruled.
Our statute would seem to make intrastate commerce out of a shipment which started in this State and ended in this State, although the shipment traversed through another state between the starting and stopping points. That kind of a shipment has been denominated interstate by the United States Supreme Court. [Hanley v. K.C. Southern Ry. Co., 187 U.S. 617.] Clear it is that our statutes have no reference to interstate matters, and this suffices. For the reasons stated, I dissent. Woodson, J., consurs.