Southern Railway Co. v. Melton

Fish, C. J.,

dissenting. I fully appreciate the force of the maxim that an act of the legislature should not be declared unconstitutional unless the conflict between the act and the fundamental law be clear and palpable. I have, no doubt, however, as to the unconstitutionality of rule nine of the railroad commission of this State; as, to my mind, it is manifestly an attempt on the part of the commission to exercise a legislative power by virtue of the act of 1905, which the General Assembly could not lawfully delegate. Accordingly, under the mandate of the constitution (Civil Code, §5733) that the judiciary shall declare unconstitutional acts void, I am •constrained to dissent from the views entertained by my learned associates as to the validity of rule nine of the commission.

The oft-quoted language of Judge Cooley on the subject of the delegation of legislative power may be aptly repeated. He says: “One of the settled maxims in constitutional law is, that the power *301conferred upon the legislature to make laws can not be delegated by that department to any other body or authority. Where the sovereign power of the State has located the authority, there it must remain; and by the constitutional agency alone the laws must be made until the constitution itself is changed. The power to whose judgment, wisdom, and patriotism this high prerogative has been intrusted can not relieve itself of the responsibility by choosing other agencies upon which the power shall be devolved, nor can it substitute the judgment, wisdom, and patriotism of any other body for those to which alone the people have seen fit to confide this sovereign trust.” Cooley’s Const. Lim. (7th ed.) 163. In 1 Lewis’s Sutherland on Stat. Const (2d ed.) §87, it is said: "The power to make laws for a State vested in the legislature is a sovereign power, requiring the exercise of judgment and discretion. It is a delegated power, — delegated in a constitution by the people in whom inherently are all the powers. On common-law principles, as well as by settled constitutional law, it is a power which can not be delegated.” Many adjudications are cited by both of the distinguished authors from whom we have quoted, to sustain the doctrine announced. The decisions in some of such cases, I may say, are in conflict with rulings of this court under similar facts. Some of the earlier eases not in harmony with our decisions have since been overruled by the courts rendering theni, the general doctrine, however, being still adhered to. The soundness of the doctrine stated has been frequently recognized by this court. Mayor etc. of Savannah v. Hussey, 21 Ga. 89 (68 Am. D. 452); Grinad v. State, 34 Ga. 270, 274; Mayor etc. of Brunswick v. Finney, 54 Ga. 317 326; McMahon v. Mayor etc. of Savannah, 66 Ga. 217, 224 (42 Am. E. 65); Georgia Railroad v. Smith, 70 Ga. 694; Central Georgia Co. v. Exchange Bank, 101 Ga. 345, 353 (28 S. E. 863); Central Railway Co. v. State, 104 Ga. 831, 838 (31 S. E. 531, 42 L. R. A. 518). The remarks of Judge Benning, of a contrary tenor, in Bowers v. Inferior Court of Dougherty County, 23 Ga. 80, 81, are obiter.

That legislative power can not be delegated is a general rule; but, like all other rules of the common law, it is flexible, extending as far as the reason and principles on which it is founded go, and ceasing when the reason ceases. It admits of exceptions connected with the principle which supports the rule, or which may be presumed to have been intended by the people who are the original *302source of the power. 1 Lewis’s Suth. Stat. Const. (2d ed.) §87. Accordingly, it is held that Congress may delegate legislative power to territorial governments. While this is a departure from the general rule, it is consistent with the principles which support the rule; for it is a concession of the right of self-government to those who would otherwise have no voice in making the laws which govern them. Again, all the authorities agree that the power to make local by-laws and regulations may be delegated to municipal corporations. Such delegation is justified on the ground of presumed intention of the people, from the immemorial practice in this country and in England, of creating their local governments. Mayor etc. of Brunswick v. Finney, McMahon v. Mayor etc. of Brunswick, supra. These departures decentralize the governing power; the governed have thus a direct voice in the regulation of their local affairs. 1 Lewis’s Suth. Stat. Const. §95; Cooley’s Const. Lim. (7th ed.) 165. So, as it has been often held, the legislature may empower the courts to adopt rules of practice.

It is, perhaps, impossible to lay down any hard and fast rule by which it may be certainly and readily determined whether a given law is or is not an unlawful delegation of legislative power. Therefore courts can not be too confident in asserting where the precise limitation is upon the competency of the legislature to delegate its powers. State v. Gloucester County, 50 N. J. L. 385, 394 (15 Atl. 272, 1 L. R. A. 86). In Cincinnati etc. Railroad Co. v. Commissioners, 1 Ohio St. 77, Judge Ranney stated the distinction between the delegation of legislative and administrative powers, which distinction has been frequently quoted and applied by other judges. He said: “The true distinction . . is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law.” In Lock’s Appeal, 72 Pa. 491 (13 Am. R. 716), Justice Agnew said the proper distinction is this: “The legislature can not delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. To deny this would be to stop the wheels of government. There are many things upon which wise and careful legislation must depend which can not be known to the lawmaking power, and must, therefore, *303be a subject of inquiry and determination outside of tbe halls of legislation.”

The constitutional inhibition of the delegation of legislative power does not prevent the grant of power not strictly legislative to agencies created by the legislature to make rules and regulations for the government of a particular subject. And it has been repeatedly held that a statute creating a board of commissioners authorized to supervise the operation of railroads within the State, and to regulate freight, passenger, and warehouse charges, is not unconstitutional as delegating legislative powers. 8 Cyc. 834; 4 U. S. E. (Michie), 290, 291, and eases cited. In creating such a board and investing it with such power, the legislature really, however, enacts the law which governs the subject, but intrusts to the board the execution of that law. Eor the law the statute must be looked to, as the board can not enact laws, although it may make reasonable rules and regulations where the power to do so is expressly or impliedly conferred by statute. 2 Elliott on Railroads (2d ed.), §678; 8 Cyc. 830 et seq.; 6 Am. & Eng. Enc. L. (2d ed.) 1029; Georgia Railroad v. Smith, 70 Ga. 694. The constitution of this State, art. 4, sec. 2, par. 1 (Civil Code, §5797), declares: “The power and authority of regulating railroad freights and passenger tariffs, preventing unjust discriminations, and re quiring reasonable and just rates of freight and passenger tariffs, are hereby conferred upon the General Assembly, whose duty it shall be to pass laws, from time to time, to regulate freight and passenger tariffs, to prohibit unjust discriminations on the various railroads of this State, and to prohibit said roads from charging other than just and reasonable rates, and enforce the same by adequate penalties.” In 1879 (Acts 1878-9, p. 125) the General Assembly passed an act for the purpose of carrying out the above-quoted provisions of the constitution. By that act the railroad commission was established and its powers and duties defined. The act required the commission to make reasonable and just rates of freight and passenger tariffs, and charges for the use of ears, to be observed by all railroad companies doing business in this-State on the railroads thereof, and to make reasonable and just rules and regulations, to be observed by such companies, as to charges for necessary handling and delivery of freights, and for preventing unjust discriminations and the giving or paying of rebates. The *304act provided that if any such railroad company should charge, collect, demand, or receive more than a fair and reasonable rate of toll or compensation for the transportation of passengers, freight, or for the use and transportation of any railroad car, it should be guilty of extortion and punished as prescribed by the act. Punishment was also prescribed for unjust discriminations, and for any violation of the rules and regulations provided and prescribed by the commission, the penalty for each offense to be not less than one thousand dollars nor more than five '■ thousand dollars, to be fixed by the presiding judge, the action for the recovery of the penalty to be in the name of the State and instituted by the commission. Civil Code, §2185, et seq. There was nothing in the act authorizing the commission to prescribe a punishment, or penalty or monetary liability, for the violation of any rule or order which it might adopt. In 1882 the ease of Georgia Railroad v. Smith, 70 Ga. 694, was brought to this court. There the railroad company denied the power of the commission to regulate freight and passenger tariffs over its road, on the grounds, among others, because, (1) under the constitution the duty was imposed on the General Assembly to regulate freight and passenger tariffs, and (2) the act of 1879 establishing the railroad commission was unconstitutional and void, as being an attempt to delegate legislative powers to the commission. In delivering the opinion, Justice Crawford said: “The object of the constitutional provision and the legislative enactment was to give proper protection to the citizens against unjust rates for the transportation of freights and passengers over the railroads of the State, and to prevent unjust discriminations, even though the rates might be just. It was not expected that the legislature should do more than pass laws to accomplish the ends in view. When this was done, its duty had been accomplished. All laws are carried into execution by means of officers appointed for that purpose; some with more, others with less; but all must be clothed with power sufficient for the effectual execution of the law to be enforced. Legislative grants of power to the officers of the law to make rules and regulations which are to have the force and effect of laws are by no means uncommon in the history of our legislation.” He then referred to the power conferred upon the Justices of the Supreme Court and judges of the superior courts to establish rules for such courts. He *305also pointed out the impossibility of the legislature entering into the details of fixing freight and passenger tariffs over all the railroads of the State, and, on the question as to the delegation of legislative power, concluded as follows: “In our judgment, the act creating the railroad commission is not unconstitutional and void. . . The difference between fhe-nower to pass a law and the power to adopt rules and regulation^ to carry into effect a law already passed is apparent and strikingly great, and this we understand to be the distinction recognized by all the courts as the true rule in determining whether or not in such eases a legislative power is granted. The former would be unconstitutional, whilst the latter would not.” The ease of People v. Harper, 91 Ill. 357, was cited, wherein it was held that the authority granted by the •legislature to .a board of railroad and warehouse commissioners to fix the rates of charges for the inspection of grain and compensation of the inspectors was not an unwarrantable delegation of legislative power. The case of Tilly v. Savannah etc. Railroad Co., 5 Fed. 641, was also cited, wherein the point was made that the act of the General Assembly of this State, establishing a railroad commission, and authorizing it to fix just and reasonable maximum rates for the railroad companies doing business in this State, was unconstitutional because it conferred legislative power upon the commission. It was there held that the act was not unconstitutional, on this or any other ground urged; and the court cited the rule laid down by Judge Ranney in Cincinnati etc. Railroad Co. v. Clinton County, 1 Ohio St. 77, as to the distinction between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and the conferring of the authority or discretion as to its execution, to be exercised under and in pursuance of the law; the first of which can not be done, whilst to the latter no valid objection can be made. It appears, therefore, that the soundness of this rule declaring the distinction between powers delegable and powers non-delegable by the legislature was expressly recognized by this court in the case of Georgia Railroad v. Smith, 70 Ga. 694, and the ruling there made, upholding the constitutionality of the act authorizing the commission to fix reasonable and just rates, was based upon the rule that the legislature can delegate to a commission the power to adopt rules and regulations to carry into effect a legislative enactment already *306passed. The following language was used in the headnotes to that ease: “The railroad commissioners are officers appointed to carry into execution the laws passed by the legislature. . . The powers of the railroad commissioners are not legislative.” That the legislature can not delegate to a commission the power to make the law, which necessarily involves a discretion as to what it shall be, was also expressly declarecl in that case, and the rule has been uniformly recognized by this court and all other courts, so far as my information goes. The question now under consideration in the case at bar is not whether the legislature can constitutionally grant power to an agency created by it to make rules and regulations for the government of a particular subject, and the legislature itself prescribe a penalty or liability for the violation of such rules and regulations as may be adopted by such agency, to be enforced in the courts; but the point is, can the legislature constitutionally empower such an agency to make rules and regulations for the government of a particular subject and also authorize the agency itself to prescribe a penalty or pecuniary liability for the violation of the rules and regulations it may adopt? In the opinion Justice Lumpkin endeavors to demonstrate that the one dollar per car per day imposed on a railroad company for a violation of the rule is not a penalty, or at least not a penalty in the strict sense of the word. In the very question certified by the Court of Appeals on this subject, one of the inquiries is whether the rule is unconstitutional “because the prescribing of the penalties therein referred to by the railroad commission of Georgia was an attempt on the part of said body to legislate,” etc. Rule nine of the commission requires a railroad company, upon written application therefor, to furnish a car or cars to a shipper, within four days (Sundays and legal holidays excepted) from seven o’clock a. m. of the day following the receipt of such application, and declares that “For a violation of this rule the railroad company at fault shall, within thirty days after demand in writing therefor, pay to the shipper so offended the sum of one dollar per car per day, or fraction of a day, after the expiration of free time, during which each violation continues.” The act of 1905, under which the commission claims power to adopt the rule in question, declares: “That whenever a shipper or consignor shall require of a railroad company the placing of a car or cars to be used in car-load shipments, then, *307in order for the consignor or shipper to avail himself of the forfeitures or penalties prescribed by the rules and regulations of said railroad commission, it must first appear that such shipper or consignor made written application for snch car or cars to said railroad; provided further, that such railroad commission shall, by reasonable rules and regulations, provide the time within which said car or cars shall be furnished after being ordered as aforesaid, and the penalty per day per car to be paid by said railroad company in the event such car or cars are not furnished as ordered; and provided further, that, in order for any shipper or consignor to avail himself of the penalties provided by the rules and regulations of said railroad commission, such shipper or consignor shall likewise be subject, under proper rules to be fixed by said commission, to the orders, rules, and regulations of said railroad commission.” The third section of the act provides: “That before any railroad company is subjected to the penalties provided by this act, said railroad commission shall require said railroad company to show cause therefor;” etc. (Italic mine.) It is apparent, therefore, that the commission, by the rule in question, not only imposes upon railroad companies the public duty of furnishing a car or cars to shippers within a given time, but itself prescribes a fixed pecuniary liability, repeatedly referred to in the act of 1905 as a penalty, to be paid by the railroad companies for a violation of the rule. Why is not the one dollar per car per day imposed on a railroad company for failure to perform the duty prescribed by the commission as much a penalty as the “penalty of one hundred dollars” which the act of 1887 (Acts 1887, p. Ill) gave either the sender of a dispatch, or the person to whom it was directed, the right to recover from telegraph companies for failure to transmit a dispatch with impartiality, good faith, and with due diligence? The act of 1887 was held to be penal in its nature, and therefore to be strictly construed. Langley v. W. U. Telegraph Co., 88 Ga. 777 (15 S. E. 291); W. U. Telegraph Co. v. Ryals, 94 Ga. 336 (21 S. E. 573). In W. U. Telegraph Co. v. Taylor, 84 Ga. 408 (11 S. E. 396, 8 L. R. A. 189), it was held that “The penalty [in act of 1887] is for the wrongful violation of a public duty, and neither in whole nor in part fox a mere breach of contract.” The same ruling was made in W. U. Telegraph Co. v. Pendleton, 95 Ind. 12 (48 Am. R. 692), in construing a similar *308statute, and therefore that justice’s courts had no jurisdiction of an action for such penalty. And in Woodburn v. W. U. Telegraph Co., 95 Ga. 808 (23 S. E. 116), it was held, that an action for the penalty under th.e act of 1887 abated after the repeal of the act. To same effect W. U. Telegraph Co. v. Lumpkin, 99 Ga. 647 (26 S. E. 74), and ease cited. It is said in the majority opinion that the act of 1887 “was different in its character from that now being discussed.” The only differences suggested are that the act of 1887 gave either the sender or the person to whom the telegram was directed the right to recover the penalty, whichever might first sue, and that it was provided that nothing in the act should be construed as impairing the right of any person to recover damages for a breach of contract or duty of the company. Surely the mere fact that either the sender or the person to whom the message was directed could recover the penalty under the act of 1887 can not be a sound reason for holding that such act provided for the recovery of a penalty, whilst the right of recovery, under the rule of the commission, of the one dollar per car per day for a violation of such rule is not for a penalty because it is limited to the offended shipper. The liability’in such case is imposed for the violation of a public duty; and if the rule of the commission had given the consignee as well as the shipper a right of action for an infraction of the rule, the liability, in my opinion, would be no more nor less a penalty. Nor am I prepared to say that, if the rule under consideration were valid, a recovery of the one dollar per car per day would impair the right of the shipper to recover damages for a breach of contract or duty of the railroad company. To so hold might in effect be a ruling that the rule of the commission repeals a common-law right of the shipper. As the act of 1887 and that of 1905 both expressly designate the liability, respectively provided for, as a penalty, I am unable to comprehend why it is not as much a penalty in the one act as in the other. There are various sections of the Civil Code imposing penalties upon railroad companies for failure to perform specified public duties. The legislature specifically denominated such liabilities as penalties, and I assume that they were meant to be such. Section 2281 provides for the recovery by a passenger of a penalty of fifty dollars for the failure of the railroad company to check his baggage. Sections 2299 and 2300 make it the duty of railroad companies to sell *309tickets of and to connecting roads, and section 2301 prescribes a penalty for refusing so to do, to be recovered by the company whose road may be discriminated against or by the person offering to purchase a ticket, and provides that "such penalty may be recovered by each of said parties, and the recovery by one shall not be a bar to recovery by the other.” Section 2209 provides for the recovery, by one paying overcharges for storage, of "the same penalties and measure of damages as is provided in the case of overcharges of freight rates.” Section 2244 gives a landowner the right to recover of a railroad company twenty-five dollars a day for the company’s failure, after notice prescribed, to build cattle-guards; and in Alabama etc. R. Co. v. Fowler, 104 Ga. 148 (30 S. E. 243), it was held that this section "being a statute authorizing the recovery of a penalty, it should be strictly construed.” And section 2251 declares that railroad companies shall be liable for the "penalty” imposed by section 2250 on their overseers or track-menders for failure to file reports of stock killed on the railroad, where such overseer or track-mender is insolvent. The case of Huntington v. Attrill, 146 U. S. 657 (13 Sup. Ct. 224, 36 L. ed. 1123), is cited and quoted from in the majority opinion, for the purpose of showing the strict and primary meaning of the words "penal” and "penalty.” The question in that case was whether a statute of the State of New York (Laws 1875, c. 611, §§21, 37), making the officers of a corporation, who sign and record a false certificate of the amount of its capital stock, liable for all its debts, is a penal law within the strict, primary, and international sense, so as to bring it within the rule forbidding the penal laws of one-country to be enforced in any other country. It was held, in effect, that as criminal laws, that is to say, laws punishing crimes, constitute the whole class of penal laws which can not be enforced extra-territorially, the statute in question was not a penal law in the international sense. Justice Gray in his opinion said (and his language is quoted by Justice Lumpkin) : "Strictly and primarily, they [the words "penal” and “penalty”] denote punishment, whether corporal or pecuniary, imposed and enforced by the State, for a crime or offense against its laws. . . But they are also commonly used as including any extraordinary liability to which the law subjects a wrong-doer in favor of the person wronged, not limited to the damages suffered. . . Statutes giving a private *310action against the wrong-doer are sometimes spoken of as penal in their nature, but in such cases it has been pointed out that neither the liability imposed nor the remedy given is strictly penal.” He further said, in reference to the statute in question: “As the statute imposes a burdensome liability on the officers for their wrongful act, it may well be considered penal, in the sense that it should be strictly construed. But as it gives a civil remedy, at the private suit of the creditor only, and measured by the amount of his debt, it is as to him clearly remedial.” Statutes of a nature similar to that of New York, making the directors or trustees of corporations, as they are variously called, liable to pay' debts of the corporation which have been contracted by them during the period of certain official defaults, have been held by most courts to be penal statutes and therefore to be strictly construed, while some courts have held them to be not penal but remedial in their nature. 3 Thomp. Cor. §4164; 10 Cyc. 852 et seq.; 1 Cook, Cor. (5th ed.) §223, p. 462, n. 2; 21 Am. & Eng. Enc. Law, 882 et seq. Judge Thompson (3 Thomp. Cor. §4165) thinks the better view is that such statutes should not be regarded as creating penalties or as giving actions for penalties, but rather as a measure of security for the public. And he cites Neal v. Moultrie, 12 Ga. 104. In 21 Am. & Eng. Enc. Law, 883 it is said: “The true position is perhaps an intermediate one, that as the statutes impose a burden upon the officers for their wrongful act, they may be considered penal in the sense that they should be strictly construed; but as they give a civil remedy, at the private suit of a creditor, measured by the amount of his debt, they are, as to him, remedial.” In Neal v. Moultrie, 12 Ga. 104, cited in the majority opinion, the action was against the directors of a bank upon the personal-liability clause of its charter, providing that the total amount of the debts of the bank should not exceed three times the amount of the stock paid in, over and above the amount actually deposited for safekeeping, and in case of excess making the directors individually liable for the same, as well as their heirs, executors, or administrators, the bank being also liable. The controlling question adjudicated was that the limitation of six months, provided by the act of 1776, as to actions for “any penalty, fine, or forfeiture whatsoever,” “inflicted or imposed by any act of the General Assembly,” did not apply to the action against the directors. It is *311true that it was held: “that in all eases where a statute creates a right of action and recovery in individuals, or a particular class of individuals, such statute is not penal, but remedial.” • In the opinion some stress was placed upon the facts that the act did not designate the liability as a penalty or forfeiture, and that it made not only the directors themselves but their executors or administrators subject to the liability. Judge Nisbet, delivering the opinion, said: “There is no designation of the liability for the excess as a fine, a forfeiture, or a penalty. It may be presumed that if the legislature had intended to inflict a fine, to create a forfeiture, or to provide a penalty, they would have used language clearly expressive of such a purpose. They have said nothing whatever about a fine, a penalty, or a forfeiture.” “They have said that in case of excess the directors shall be liable, . . in their individual . . capacity; that an action of debt may be brought against them, . . not only against them, but against their executors or administrators (plainly indicating the excess to be a debt chargeable upon their estates), and that this action may be brought and prosecuted by any creditor or creditors of the corporation. Now here is, with clearness and precision, the liability declared, the persons in whose favor the directors are liable, and the remedy by which the liability is to be enforced. From the terms of this rule, I say, then, that it is difficult, if not impossible, to come to any other conclusion than that it is a remedial provision, designed to protect any creditor against loss by reason of an excess of debts.” In Banks v. Darden, 18 Ga. 318, 341 where the liability of the directors and stockholders of a bank with a charter similar to that involved in 12 Ga. 104, was up for adjudication, Judge Lumpkin delivering the opinion said: “that the individual liability of the directors and of the stockholders, under the charter, is *not strictly a contract, although, from convenience, it is frequently called so; but it is an obligation, quasi ex contractu, which is imposed by operation of mere law. The State passes a law— the law of incorporation of the Planter’s and Mechanic’s Bank. This law, unlike public law, is binding upon no one until some one voluntarily assents to make it the rule of his conduct. The stockholders, in accepting the charter, and the directors, when elected, made it, for themselves, a rule of conduct. By the issue of more than three dollars to one, the directors committed an illegal — a *312tortious act, and made themselves personally liable to the plaintiff for a breach of duty, because he was a creditor of the corporation. And an action quasi ex contractu is raised in his favor against the directors. This is a statute liability — it is quasi ex contractu — hut it can not be called technically a contract; it need not be proved as contracts between parties must be.” In Hargroves v. Chambers, 30 Ga. 580, 603, in referring to the liability of the directors under the same charter considered in 18 Ga. 318, Judge Lyon, speaking for the court, said: “The liability of these defendants is not a penalty, and so adjudged in all the cases. Banks vs. Darden, 18 Ga. 318. But it is a right vested in the plaintiff at the time of making the contract with the bank, as an incident to that contract and a security for its performance.” So in Bell v. Farmell, 176 Ill. 489 (52 N. E. 346, 42 L. R. A. 804, 68 Am. St. E. 194), cited in the majority opinion, it was held: “If a statute provides that stockholders of corporations shall be liable to their creditors, such liability must be regarded as contractual and not as penal.” In the opinion the court, quoting from Diversy v. Smith, 103 Ill. 378 (42 Am. R. 14), said: “‘But the statute under consideration . . prohibits the making of all contracts. It imposes the liability upon the trustees and corporators, not because the company was authorized to contract in their names or on their behalf, or so as to otherwise bind them, but because it prohibited the commencement of business and issuing of policies, and the trustees and corporators, in violation of their duty, caused or permitted business to be commenced and policies to be issued.’ Sedgwick says: ‘Penal statutes are acts by which a forfeiture is imposed for transgressing the provisions of the act.’ He moreover adds: ‘A penal law may also he remedial, and a statute may be remedial in one part and penal in another.’ In Potter’s Dwarris on Statutes, 74, it is said: ‘A penal statute is one which imposes a forfeiture or penalty for transgressing its provisions or for doing a thing prohibited.’ It is the effect, not the form of the statute that is to be considered; and when its object is clearly to inflict a punishment on a party for violating it — i. e., doing what is prohibited or failing to do what is commanded to be done — it is penal in its character.’ In the decision the distinction between a penal and a contractual liability is made. In the one case the liability arises by a violation of the law. But where the statute *313declares that the corporation may transact business and the stockholders shall be liable for debts contracted, then the liability is primary and based upon contract.” A somewhat similar view of statutes as to the liability of directors was taken in Fitzgerald v. Weidenbeck, 76 Fed. 695, where it vjas in effect held that they should not be construed as penal, but as simply presenting a case where the grant of a franchise to be personally exempt from the indebtedness which the grantees contract in their own behalf is made with a qualification which reads itself into the grant. See 10 Cyc. 853.

Unlike the statute involved in Neal v. Moultrie, 12 Ga. 104, wherein there was no designation of the lilability as a forfeiture or a penalty, the act of 1905, under which it is claimed the commission has authority to require railroad companies to furnish a car within a given -time, and on failure to do so that the offending company, under the rule of the commission, is liable for one dollar per car per day, expressly designates such liability as a forfeiture or penalty, and it is not measured by the amount of any debt as the liability referred to in that case was said to be. Again, “the forfeitures or penalties prescribed by the rules and regulations of said railroad commission” are not obligations quasi ex contractu. ' The railroad companies chartered and doing business prior to the act of 1905 and the adoption of rule nine of the commission did not voluntarily assent to make it the .rule of their conduct. Ever since the adoption of the Code of 1863 (§2042) there has been in all our codes a section declaring that “A common carrier, holding himself out to the public as such, is bound to receive all goods and passengers offered that he is able and accustomed to carry, upon compliance with such reasonable regulations as he may adopt for his own safety and the benefit of the public.” The commission, under the act of 1905, substituted its own regulation as to furnishing ears for the regulation that the carrier previously had the right to adopt; and it can not be said that such carrier voluntarily assented to make the regulation of the commission the carrier’s rule of conduct. I am unable to comprehend how “the forfeitures or penalties prescribed by the rules and regulations” of the commission flow from any contractual relation between the shipper and the railroad company. The liability imposed upon the railroad company is not of the same nature as the liability im*314posed upon, directors and stockholders of corporations, which, as was said in 30 Ga. 603, is a right vested in the creditor at the time of making the contract with the bank, as an incident to that contract and a security for its performance, or, as it was in effect denominated, a quasi contracted liability, in 18 Ga. 341; but in my opinion the liability imposed upon a railroad company for failure to do what the rule of the commission requires is as much a penalty as to the company for failure to perform a public duty prescribed by the rule of the commission, as the liability imposed by the act of 1887 upon telegraph companies for- failure to perform a public duty prescribed by that act was a penalty, as it was held to be by many decisions of this.court. The rule imposes a burdensome liability on railroad companies, not by reason of any agreement or contract on their part, but solely as a punishment for their neglect or misconduct as to a public duty prescribed by the commission; and in this sense the liability is, to my mind, penal in its nature as respects the companies, and not contractual. When the commission adopts the regulation and itself prescribes a rule which subjects the railroad companies to a fixed pecuniary liability for an infraction of such regulation, it performs a strictly legislative function, the substance of the legislation being found in that part of the rule which prescribes punishment for disregard of the regulation so determined. In Chicago & N. W. Ry. Co. v. Dey, 35 Fed. 866, 874 (1 L. R. A. 744), from which there is a quotation in the majority opinion, the action was to enjoin the railroad commissioners of the State of Iowa from putting in force a certain schedule of rates proposed by them for all transportation within the limits of the State. The question as to whether commissioners could impose a liability for the violation of such schedule was not involved. Judge Brewer, in delivering the opinion, said: “While, in a general sense, following language of the Supreme Court, it must be conceded that the power to fix rates is legislative, yet the line of demarkation between legislative and administrative functions is not easily discerned. The one runs into the other.” It was held, however, that the statute authorizing the commission to make a schedule of railroad charges was not unconstitutional as an attempted delegation of legislative power, following the decisions in what is known as the Granger cases, 94 U. S. 113, 137 (24 L. ed. 77). As was done in Georgia Railroad v. Smith, 70 Ga. 694, *315the decision in 35 Fed. 866, was based largely upon the rule of ex necessitate; for Judge Brewer said: “The reasonableness of a rate changes with the changed condition of circumstances. That which would be fair and reasonable to-day, six months or a year hence may be either too high or too low. The legislature convenes only at stated periods; in this State only once in two years. Justice will be more likely done if this power of fixing rates is vested in a body of continual session than if left with one meeting only at stated and long intervals. Such a power can change rates at any time, and thus meet the changing conditions of circumstances.” It appears to me to be clear that the rule of necessity and the argument of inconvenience will not apply so as to justify the exercise of the legislative function of the commission in prescribing the liability of one dollar per car per day for failure to comply with the regulation adopted by that body, for the reason that the legislature in its wisdom and judgment could have readily determined for itself, without the aid of the commission, what would be a reasonable liability to be imposed on a railroad company for violating the regulation of the commission as to furnishing ears. I do not perceive that changed conditions of circumstances, occurring between the annual sessions of our General Assembly, would likely render the amount of such liability fixed at one session unfair and unreasonable before that body should again convene. In the cases of Neal v. Moultrie, 12 Ga. 104, Banks v. Darden, 18 Ga. 318, and Wheatley v. Glover, 125 Ga. 129 (54 S. E. 626), cited in the majority opinion, it was held that the liability of directors and stockholders of corporations is a statute liability — that is, one imposed by operation of law. Of course it requires a legislative act to create a statutory liability. When the legislature delegates to the commission power to adopt a rule or regulation and also to prescribe a fixed liability for the infraction of such rule or regulation, then it must be that such a liability is a commission-rule liability — ■ that is, one created by the commission under the authority delegated to it by the legislature so to do, and the commission thus exercises a legislative function.

Suppose that the liability for a violation of such rule is not a penalty, or penal in its nature, but is a civil demand, monetary obligation, or “reciprocal demurrage,” so that it does not come within the scope of the rulings made in many cases that penal laws *316are peculiarly -within the power of the legislature to enact, why is not the fixing by the commission of the liability, whatever it may be called, for a violation.of its own rule, legislation in a strict sense? Is the passage of a civil law any less a legislative act than the passage of a criminal law? As to the exercise of a legislative function what difference in principle exists between the two eases ? If the General Assembly can not delegate to the commission power to adopt a rule or regulation requiring railroads to furnish a prospective shipper a ear within a given time, and to authorize the commission to prescribe a fixed amount as a forfeiture or penalty (as the act of 1905 denominates it) “for a violation of this rule” (the language of rule nine), because this would be penal legislation and peculiarly a function to be performed by the General Assembly itself, I am not able to understand why it is not as much a delegation of legislative power to authorize the commission to adopt such a rule and to prescribe a liability to be paid for failure to comply with the same. The fact that the fixing of such liability by the commission may be termed, by those contending for the validity of the rule, a mere regulation whereby the liability imposed is a civil demand, monetary obligation, or “reciprocal demurrage,” does not furnish to my mind a sound distinction between the two cases. In either case it is, in my opinion, an attempt on the part of the General Assembly to relinquish a high prerogative conferred upon it by the sovereign power of the State, and to be exercised in accordance with its own judgment, wisdom, and patriotism, to another body, which' this court has in effect held is a mere administrative or executive body, possessing no legislative power beyond the authority to adopt (and this from the necessity of the case) rules and regulations to carry into effect a law already passed by the legislature. Georgia Railroad v. Smith, 70 Ga. 694. In none of the cases cited in the opinion of the majority of the court, as illustrations of powers which it has been held that Congress or a legislature can lawfully delegate, can I find that it has been decided that such legislative bodies can lawfully delegate to some other body or official the power to adopt rules and regulations and to prescribe a forfeiture, penalty, or monetary liability for the violation of such rules or regulations, unless it be in the two eases decided by the Florida court. I will proceed to make some reference to such cases. In the case of Aurora, 7 Cranch, 382 (3 L. ed. *317378), it was held that Congress may make the revival of an act depend upon a future event, and direct that event to be made known by a proclamation of the president. There Congress “only prescribed the evidence which should be admitted of a fact, upon which the law should go into effect.” The court said: “We can see no sufficient reason why the legislature should not exercise its discretion in reviving the act of March 1, 1809, either expressly or conditionally, as their judgment should direct. The 19th section of that act, declaring that it should continue in force to a certain time, and no longer, could not restrict their power of extending its operation without limitation upon the occurrence of any subsequent combination of events.” It has been many times held that the legislature may provide that an act may become operative upon the happening of a future event. In Field v. Clark, 143 U. S. 649 (12 Sup. Ct. 495, 36 L. ed. 294), it was held by the majority of the court, that the tariff act' of 1890, conferring authority upon the president to reduce the revenue and equalize duties on imports and to suspend by proclamation the free introduction of sugar, molasses, coffee, tea, and hides, when he is satisfied that any country producing such articles imposes duties or other exactions upon the agricultural or other products of the United States, which he may deem to be reciprocally unequal or unreasonable, is not open to the objection that it unconstitutionally transfers legislative power to the President. Justice Harlan, speaking for the majority of the court, said: “That Congress can not delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the constitution. The act of October 1, 1890, in the particular under .consideration, is not inconsistent with that principle. . . Congress itself prescribed, in advance, the duties to be levied, collected, and paid, on sugar, molasses, coffee, tea, or hides, produced by or exported from each designated country, while the suspension lasted. Nothing involving the expediency or the just operation of such legislation was left to the determination of the President. The words ‘he may deem/ in the third section, of course, implied that the President would examine the commercial regulations of other countries producing and exporting sugar, molasses, coffee, tea, and hides, and form a judgment as to whether they were reciprocally equal and reasonable, or the contrary, in their effect *318upon American products. But when he ascertained the fact that duties and exactions, reciprocally unequal and unreasonable, were imposed upon the agricultural or other products of the United States by a country producing and exporting sugar, molasses, coffee, tea, or hides, it became his duty to issue a proclamation declaring the suspension, as to that country, which Congress had determined should occur. He had no discretion in the premises except in respect to the duration of the suspension so ordered. But that related only to the enforcement of the policy established by Congress. As the suspension was absolutely required when the President ascertained the existence of a particular fact, it can not be said that in ascertaining that fact and in issuing his proclamation, in obedience to the legislative will, he exercised the function of making laws. Legislative power was exercised when Congress declared that the suspension should take effect upon a named contingency. What the President was required to do was simply in execution of the act of Congress. It was not the making of law. He was the mere agent of the lawmaking department to ascertain and declare the law upon which its expressed will was to take effect. It was a part of the law itself as it left the hands of Congress that the provisions, full and complete in themselves, permitting the free introduction of sugars,, molasses, coffee, tea, and hides, from particular countries, should be suspended in a given contingency, and that in case of such suspensions certain duties should be imposed.” In this connection the distinction between the delegation of power to make the law and the conferring of authority or discretion as to its execution, announced by Judge Ranney in 1 Ohio St. 88, supra, and in Lock’s Appeal, 72 Pa. St. 491, supra, is quoted, as well as what was said on the subject in Moers v. City of Reading, 21 Pa. St. 188.

In Butterfield v. Stranahan, 192 U. S. 470 (24 Sup. Ct. 349, 48 L. ed. 525), it was held, that “Where a statute acts on a subject as far as practicable and only leaves to executive officials the duty of bringing about the result pointed out, and provided for, it is not unconstitutional as vesting executive officers with legislative powers,” and that accordingly the act of March 2, 1897 (c. 358, 29 Stat. 604, U. S. Comp. St. 1901, p. 3194), to prevent the importation of impure and unwholesome tea is not unconstitutional upon the ground that the power therein conferred upon the Secre*319tary of the Treasury to establish standards is legislative and can not be delegated by Congress to administrative officers. The court said: “We are of opinion that the statute, when properly construed, . . but expresses the purpose to exclude the lowest grades of tea, whether demonstrably of inferior purity, or unfit for consumption, or presumably so because of their inferior quality. This, in effect, was the fixing of a primary standard, and devolved upon the Secretary of the Treasury the mere executive duty to effectuate the legislative policy declared in the statute. The case is within the principle of Field v. Clark, 143 U. S. 649” (12 Sup. Ct. 495, 36 L. ed. 294). In Union Bridge Co. v. United States, 204 U. S. 364 (27 Sup. Ct. 367, 51 L. ed. 523), it was held, that “Congress, when enacting that navigation be freed from unreasonable obstructions arising from bridges which are of insufficient height or width of span, or are otherwise defective, may, without violating the constitutional prohibition against delegation of legislative or judicial power, impose upon an executive officer the duty of ascertaining what particular cases come within the prescribed rule.” And that “The provisions in §18 of the river and harbor act of 1899, 30 Stat. 1121, 1153, providing for the removal or alteration of bridges which are unreasonable obstructions to navigation, after the Secretary of War has, pursuant to the procedure prescribed in the act, ascertained that they are such obstructions, are not unconstitutional either as a delegation of legislative or judicial power to an executive officer or as taking of property for public use without compensation.” The river and harbor act there involved declares, that “If the persons, corporation, or association owing or controlling any railroad or other bridge shall, after receiving notice to that effect, as hereinbefore required, from the Secretary of War, and within the time prescribed by him, wilfully fail or refuse to remove the same or to comply with the lawful order of the Secretary of War in the premises, such persons, corporation, or association shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding five thousand dollars,” etc. So the statute itself prescribed the penalty to be imposed for failure to remove a bridge in compliance with the order of the Secretary of War, after he had ascertained the fact that it came within the scope of the statute, and he was not given the power to adopt a rule or to pass an order and to himself *320prescribe a penalty or liability for its infraction. The controlling question decided in the Railroad Commission Cases, 116 U. S. 307 (6 Sup. Ct. 334, 388, 1191, 29 L. ed. 636), was that the statute of the State of Mississippi (Acts 1884, p. 31, c. 23), creating a railroad commission, and conferring upon it the power to make reasonable rules and regulations as to transportation within the limits of the State, does not impair the obligation of the contract contained in the charters of the railroad companies referred to in those cases. No reference was made to the question as to whether the legislature could constitutionally confer upon a commission the power to make rules for the regulation of transportation and also the authority to prescribe a penalty, forfeiture, or liability for the violation of such rules. Indeed the Mississippi statute, like the statute of this State creating a commission, did not delegate to the commission power to prescribe a penalty or liability for the violation of its mies or regulations. Nor was there any reference made to such question in the two Mississippi cases (Stone v. Yazoo &c. R. Co., 62 Miss. 607; Stone v. Natchez &c. R. Co., 62 Miss. 646) noted by the Supreme Court of the United States. The latter court said: '“The Supreme Court of Mississippi has decided in the eases (the two just cited) . . that the statute is not repugnant to the constitution of the State, ‘in that it creates a commission and charges it with the duty of supervising railroads/ To this we agree, and that is all that need be decided in this case.”

In Kansas v. Missouri Pacific Ry. Co., 76 Kan. 467 (92 Pac. 606), it was held that the statute of Kansas, conferring on a railroad commission power to regulate and control common carriers, delegates to such commission functions administrative in character. The court quoted from decisions wherein the distinction laid down in 1 Ohio St. 88, and in Lock’s Appeal, supra, was approvingly recognized. In Phinizy v. Eve, 108 Ga. 360 (33 S. E. 1007), it was held: “The forty-first section of the act of September 22, 1881, establishing a city court in the county of Richmond, which provides that the judge thereof shall be ex-officio commissioner of roads and revenues of that county, is not open to attack on the ground that it seeks to confer upon a judicial officer legislative functions,” etc. In that case the contention was that the judge of the city court, as commissioner of roads and revenues, was levying the taxes of the county, and that this was an exercise of legislative power. Presid*321ing Justice Samuel Lumpkin, speaking for the court, said: “If the judge, as county commissioner, exercises a legislative function, he must make a law. The General Assembly makes laws in the shape of statutes or joint resolutions. Judge Eve neither enacts a statute nor agrees to a resolution. He can not make a law nor can he change one. He must levy the taxes according to laws duly passed by the lawmaking power, and not agreeably to laws of his own creation. Every step is prescribed. The General Assembly has declared what are the subjects of taxation; when, how, and by whom, and to whom, returns are to be made; when and by whom the rate must be calculated; and when and by whom and to whom the money must be paid. It has further enacted how the laws on the subject of taxation shall be enforced, and fixed the tax liens. So the General Assembly, by which alone the taxing power can be exercised, has left nothing to be legislated upon by anybody else. There is legislation ample to cover the entire field. But this legislation has come from the lawmaking power, and not from the commissioner of roads and revenues.” The other Georgia cases cited in this connection are merely instances of where the statutes involved were of a local nature, and went into effect upon the vote of the locality to be affected.

In Blue v. Beach, 155 Ind. 121 (80 Am. St. 195, 50 L. R. A. 64, 56 N. E. 89), the Supreme Court of Indiana rendered a decision in adjudicating upon a statute creating a State board of health and authorizing it to adopt reasonable rules and regulations for the promotion of the public health. An examination of the statute will show, however, that while such board was vested with the power to make such rules and regulations, it was not given the power to prescribe a penalty or liability for the violation of its rules and regulations (Burns’ Revised Statutes of 1894, §§6711 et seq.), but the statute itself provided that “the secretary of any board of health, who shall fail or refuse to promulgate and enforce such rules and regulations, and any person or persons, or the officers of any corporation, who shall fail or refuse to obey such rules and regulations, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined,” etc. §6719. And section 6724 provides: “Any person or persons, or the officers of any corporation, who shall violate any of the provisions of this act, shall be deemed guilty of a misdemeanor,” etc. The distinctions made in Lock’s Appeal, 72 *322Pa. St. 491 (13 Am. St. R. 716), between the delegation of power to make a law and the delegation of power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend, was approvingly quoted by the court.

In Isenhour v. State, 157 Ind. 517 (87 Am. St. R. 228, 62 N. E. 40), the appellant was convicted for a violation of the pure-food law by having in his possession, with intent to sell the same, a certain quantity of milk adulterated as stated. The statute provided that “within ninety days after the passage of this act the board of health shall adopt such measures as may be necessary to facilitate the enforcement thereof, and shall prepare rules and ordinances, where and when necessary, regulating minimum standards of foods and drugs, defining specific adulterations, and declaring the proper methods of collecting and examining drugs and articles of. food.” It was held that there was not an attempted delegation of legislative power to the State board of health. The court said: “That which is required of the State board of health has no semblance of legislation. It merely relates to a procedure in the law’s execution for a reliable and uniform ascertainment of the subjects upon which the law is intended to operate.” “The peculiar character of the subject, embracing, as it does, considerations of sanitary science, is such as to require for just legal control something more than legislative -wisdom, to designate accurately the subjects and instances intended to be affected. The classification of these subjects, and the prescribing of rules by which they may be determined by a qualified agent, is not legislation, but merely the exercise of administrative power. The law itself is complete in all its parts. In respect to the matters to be determined by the State board of health in its execution, it awaits the performance of these duties. When performed, the law operates upon the things done by the board. While unperformed, the law remains ready to be applied whenever the preliminary conditions exist.”

In Brodbine v. Inhabitants of Revere, 182 Mass. 598 (66 N. E. 607), it was held that a statute giving a board of park commissioners authority to make rules and regulations for the government and use of the roadways or boulevards under its care, breaches whereof shall be breaches of the peace, punishable as such in any court having jurisdiction of the same, is not unconstitu*323tional as an attempted delegation of legislative power. There the statute, not the board of commissioners, provided for the punishment of violations of the rules and regulations of the board. The court said: “Apparently on grounds of expediency, amounting almost to necessity, the making of rules and regulations for the preservation of the public health has been intrusted to boards of health in towns as well as in cities, and to a State board of health, and the violation of the rules established by the city or town boards has long been and is now punishable in the courts [citing statutes of Mass.]. The validity of these statutes, which has long been recognized, stands upon one or both of two grounds. They must be considered as being within the principle permitting local self-government as to such matters, the board of health being treated as properly representing the inhabitants in making regulations, which are needed at short notice, and which could not well be made, in all kinds of cases, by the voters in town meeting assembled. Perhaps some of these statutes may also be justified constitutionally on the ground that the work of the board of health is only a determination of details in the nature of administration, which may be by a board appointed for that purpose, and that the substantive legislation is that part of the statute which prescribes a penalty for the disobedience of the rules which they make as agents performing executive and administrative duties.”

The act of Congress of August 17, 1894, granting to the Secretary of War authority to prescribe such rules and regulations for the use, administration, and navigation of canals, etc., owned or operated by the United States, as in his judgment public necessity may require, which, in United States v. Ormsbee, 74 Fed. 207, was held not invalid as a violation of legislative power, itself declares that “every person and every corporation which shall knowingly and wilfully violate such rules and regulations shall be deemed guilty of a misdemeanor, and on conviction thereof . . shall be punished by a fine not exceeding five hundred dollars,” etc. The Secretary of War is given no power to prescribe a penalty or liability for the violation of such rules and regulations as he may adopt. The cases cited in the opinion of the majority of the court, wherein it is held, in effect, that the legislative recognition of the army and navy regulations must be understood as giving to *324these regulations the force of law, do not, in my opinion, militate against the position I have taken in the instant case.

In State v. Atlantic Coast Line R. Co. (Fla.), 47 So. 969, an action was brought, under section 2908 of the General Statutes of Florida, 1906, by the railroad commissioners, in the name of the State, to Recover penalties fixed and imposed under the railroad-commission law upon railroad companies, for alleged violations of demurrage rule 8 of the commission rules, in refusing to pay liabilities to a shipper incurred under the rule. Rule 8 provides that railroad companies should be liable to a shipper in a charge of $1 per day per car for detaining cars properly loaded, with shipping instructions given. The judgment of the trial court, sustaining a demurrer to the declaration, was affirmed by the Supreme Court on the ground that, although “Penalties may be incurred by a railroad company under the statute for the penal violation of prescribed duties peculiar to such companies, the statute does not provide for incurring a penalty for mere refusal to pay a monetary liability imposed by a rule of the railroad commission.” (Italics mine.) It is apparent, therefore, that the question whether the legislature can constitutionally delegate to a commission the power to adopt rules for the regulation of the business of railroad companies, and to prescribe a penalty or monetary obligation or liability to be imposed for violations of such rules, was not presented for adjudication in that case, and, as said by Taylor, P. J., who concurred in the judgment, all that is said in the opinion delivered for the majority of the court as to the constitutionality of the rule referred to, and as to the power of the commission to prescribe the liability, is purely obiter dicta. The views of the majority of the court on the subject are, however, forcibly expressed, and perhaps are entitled to as much consideration and weight as if the question were really presented for decision. They expressly recognize the doctrine that legislative power can not be delegated, saying: “The statute does not attempt to give to the railroad commission power to prescribe a duty to be observed by a railroad company as a carrier, and also to provide a penalty as such for a breach of the duty. Such action, if taken, may be considered an attempt to authorize the commission to make a substantial law in violation of the constitution, since prescribing a penalty to be incurred is a legislative function. But the *325statute may give and does give the commissioners the authority, and makes it their duty, to prescribe reasonable and just rules and regulations stating the duties of'the railroad companies as common carriers, for the breach of which duties the carrier may incur a penalty prescribed by the statute for such breach.” The charge of $1 per car per day, referred to by the rule for delaying cars, was said not to be a penalty, but to be a monetary obligation incurred for breach of duty, that may be enforced by the shipper to whom it is due. I must respectfully differ with the learned court in this opinion; for to my mind, as I have already stated, it is the exercise of a legislative function for a commission to adopt a rule or regulation and to prescribe a fixed liability to bo imposed for its violation, whether the liability be denominated as a penalty, or in the nature of a penalty, or as a monetary obligation, the substantive legislation being that part of the rule prescribing the liability as a punishment 'for its violation.

In State v. Seaboard Air-Line Railway (Fla.), 47 So. 986, the action was brought by the railroad commissioners, in the name of the State, to recover a penalty of $1,000, imposed by the commission upon defendant for the violation of freight rule 3 of the commission, which provides that “No railroad company shall decline or refuse to act as common carrier to transport any article proper for transportation; and a failure to transport such article within a reasonable time after the same has been offered for transportation shall be deemed a violation of the rule.” The railroad commission act of Florida (General Statutes of Florida, §2882 et seq.) confers upon the commission power to make reasonable and just rates of freight and passenger tariffs, and reasonable and just regulations for the prevention of unjust discriminations, etc., “and to direct and control other matters pertaining to railroads that shall be for the good of the public,” and declares that any railroad company ' violating a rule of the commission shall incur a penalty of not more than $5,000, to be fixed and imposed by the commission, and to be. recovered by an action in the name of the State, the fact of the fixing and imposition of such fine by the commission to constitute prima facie evidence of the liability.” The rulings made in the ease were principally on points of practice or procedure; but in the majority opinion it was said: “In view of the extended discussion in the opinion in the case of State of Florida v. *326Atlantic Coast Line Railroad Company (filed this day [47 So. 969]), and the conclusion therein announced, it becomes unnecessary for us to consider the question of the constitutionality of the railroad commission act (Gen. Stat. 1906, §§2882-2925) further than to state that it has not been made to appear to us wherein sirch act is unconstitutional. We are also of the opinion, for the reasons stated therein, that the commissioners had the power and authority under such act to make at least that portion of freight rule 3 involved here, and that the same is not invalid or unreasonable.” As the action was in the name of the State to recover the penalty prescribed by the statute itself for a violation of a rule of the commission, it is clear that the question whether the commission could adopt a rule regulating the traffic of railroad companies and itself constitutionally prescribe a penalty or liability to be imposed for its violation was not involved in the case.

Statutes empowering corporate authorities of certain cities to appoint commissioners of pilotage, and conferring upon such commissioners power to prescribe rules and regulations for the government of pilots, to prescribe the fees for their services, and to impose such penalties not inconsistent with law, for neglect of duty, or for a violation of the orders or of the rules and regulations of the commissioners, as they may think proper, can not, in my opinion, be sustained except upon the principle permitting local self government as to such matters, the commissioners being treated as properly representing the inhabitants in making such regulations. See, in this connection, Commonwealth v. Plaisted, 148 Mass. 375 (19 N. E. 224, 2 L. R. A. 142, 12 Am. St. R. 566); Brodbine v. Revere, 182 Mass. 598 (66 N. E. 607).