(dissenting). The Railway and Canal Traffic Act of England, passed in 1854, provides: “Every railway company, etc., shall, according to their respective powers, afford all reasonable facilities for receiving and forwarding and delivering traffic upon and frota the several railways, etc., belonging to such companies, etc. And no such company shall make or give any undue or unreasonable preference or advantage to or in favor of any particular person or company, or any particular description of traffic, in any respect whatsoever; nor shall any such company subject any particular person or company, etc., to any undue or unreasonable prejudice or disadvantage in any respect whatsoever.” Sec. 2, ch. 31, 17 and 18 Yiet. See 27 Am. So Eng. R. Cases, appendix, p. 22. State legislation upon this subject has in all salient features followed this English statute. 5 Am. & Eng. Enc. Law, 178. Our statute ( § 6301, Sand. So H. Dig.), like the English act, in naming the objects protected against discrimination, does not mention “locality.”
In Vahlberg v. Keaton, 51 Ark. 534, the court, through Judge Hemingway, in speaking of a statute modeled after an English statute, said: “As the American states have adopted the English statute as a model, so the American courts have adopted the construction given it by the English courts.” Bank of Newport v. Cook, 60 Ark. 288; McDonald v. Hovey, 110 U. S. Rep. 619.
In Richardson v. Midland Ry. Co., 4 Ry. & Canal Traffic Canal Cases, 1, upon a complaint by two firms at Newark that tbeir traffic was unduly prejudiced by the railway company, by not being carried on as favorable terms as to rates and in other respects as Barton traffic, the court said: “It is not contended on the part of the railway company that it is any answer to a complaint of inequality of charge that the traffic favored and the traffic prejudiced are not in the same locality; and, assuming that there is a competition of interests, and that circumstances in other respects are not dissimilar, the traffic of two localities, both on the same system of railway, but it may be at a distance from each other (and Newark is 40 miles distant from Burton), is as much within the traffic act of 1854 as the traffic of two or more individuals in the same locality is.” Citing and quoting the earlier cases of Ransome v. The Eastern Counties Ry. Co., 1 Ry. & Canal Traffic Cases, p. 63, and Nicholson v. Great Western Ry. Company, 1 id. 121; see, also, Town of Newry v. Ry. Co., 7 Ry. & Canal Cases, 184; Gerard v. Ry., 4 Ry. & Canal Traffic Cases, 291. There is nothing in the railway and traffic act as to freight rates, etc., between different localities.
Nor was the Act of 1873 (36 and 37 Viet, c. 48), providing for commissioners.for the better enforcing the Railway and Traffic Act, passed until long after the earlier of the above cases were decided. The case of Richardson v. Midland Ry. Co., supra, although decided after the passage of the act of 1873, as we have seen, distinctly approved the construction given the Railway and Canal Traffic Act by the earlier cases. It thus appears that the English courts construe the Railway and Canal Traffic Act as applying to acts of undue and unreasonable discrimination between shippers of different localities; otherwise they would not have enforced it in such cases. But localities are not mentioned. Our statute is modeled after this act. Therefore, upon the authority of Vahlberg v. Keaton, and Bank v. Cook, supra, the same construction should be given the act under consideration as was given the Railway and Canal Traffic Act by the English courts.
But this is also the construction of the supreme court of the United States. The constitution of Colorado provides: “All individuals, associations and corporations shall have equal rights to have persons and property transported over any railroad in this state, and no undue or unreasonable discrimination shall be made in charges for or in facilities for transportation of freight or passengers within the state.” This is the identical language of the statute under consideration. First paragraph, § 6301, Sand. & H. Dig. An act of the legislature of Colorado provided: “ No railroad corporation shall charge, demand or receive from any person, company or corporation for the transportation of persons or property, or for any other service, a greater sum than it shall, etc., charge, demand or receive from any other person, company or corporation for a like service from the same place, or upon like conditions and under similar circumstances, and all concessions of rates, drawbacks and contracts for special i;ates shall be open to, and allowed all persons, etc., alike at the same rate per ton per mile, upon like conditions, and under similar circumstances.” An action was instituted by G. and M., coal merchants at Erie, and sell - ing coal at Denver, against the railroad to recover triple damages, under the statute, for unjust discrimination in freights for coal from Erie to Denver, and in favor of the town of Marshall, which was two miles further from Denver than the town of Erie. The rates from the two places to Denver were the same. Mr. Justice Brown, speaking for the court, said: “This act was intended to apply to intrastate traffic the same wholesome rules and regulations which congress two years thereafter applied to-commerce between the states, and to cut up by the roots the entire system of rebates and discrimination in favor of particular localities, special enterprises, or favored corporations, and to put all shippers on an ab-absolute equality. * * * It is bound to deal fairly with the public, to extend to them reasonable facilities for the transportation of their persons and property, and to put all its patrons upon an absolute equality.” Union Pac. R. Co. v. Goodridge, 149 U. S. 680. The Colorado statute was highly penal, the railroad being subject to a forfeiture of “three times the actual damage sustained by the party aggrieved.” Yet this was not deemed by the Supreme Court of the United States as any reason why the statute and the constitutional provision should not be enforced.
It will be observed that the Colorado statute quoted above says: “For -a like service from the same place," just what is decided in effect by the majority opinion is the meaning of our statute. But the Supreme Court of the United States, construing it in connection with the provision of the Colorado constitution exactly like our statute, enforced it as between individuals of different localities, showing clearly that the provision of the Colorado constitution embraced acts of discrimination between individuals of different localities, and was intended, like our act, to protect the parties named therein against all acts of “undue or unjust discrimination within the state.” And, although Erie and Marshall were different stations or localities, shippers there were treated, for the purpose of the Colorado constitution and statute preventing unjust discrimination, as being in like condition and under similar circumstances with reference to the railway company in shipments of coal. The fact of shippers being at different stations or localities does not necessarily make their condition or circumstances unlike in relation to the railroad company, as we have shown.
In the opinion of the court first announced it is said: “Was there any unjust or undue discrimination by appellants against appellee? Superior facilities for shipping were furnished at Van Burén. If this was a discrimination, it was not against any particular individual or association, nor against the shippers at any particular station, but against the shippers collectively at every station on the railroad except Van Burén—that is to say, in favor of one locality against all others. They furnished the same shipping facilities to all persons, associations and corporations at Van Burén which they refused to all parties at other stations. Hence there was no discrimination against individuals or associations, they being treated alike under the same circumstances. It appears from this, as well as the opinion just delivered, that the court holds that where shippers are at different stations or localities., there can be no undue or unjust discrimination between them. In other words, where the locality of shippers is not the same, there is such a difference in circumstances as to justify the discrimination in failing to furnish facilities, however great or unreasonable tbe difference might be. We are not concerned therefore about the discussion of the facts of this particular case, as it is conceded that Van Burén and Altus áre different stations, which, upon the doctrine announced by the court, must work a reversal and dismissal of this cause. It might be said, however, with reference to the facts, that the station agent at Van Burén, when asked the following question, to-wit: “It mattered not how much they needed them (the ears) down there [at Altus], you were going to keep enough for your people?” Replied: “That was about the size of it.” This would tend to show that the competition of another road at Van Burén was the real cause of the cars being kept .there, and not distributed to other points along the road where there was no competition. At any rate, this, in connection with all the other facts and circumstances, was sufficient to require the submission of the question of undue or unjust discrimination to the jury upon proper instructions.
We do not join issue with much that'is said in the able opinion just rendered by Judge Riddick. The opinion we have already de - livered shows that. We cannot consent that this statute shouldnot be enforced because another remedy by way of damages for failing to furnish transportation facilities is provided for the party aggrieved. The legislature, of course, was familiar with our constitutional provision preventing discrimination. Const. 1874, art. 17, § 3. Also with the statute passed in 1868 (§ 6193, Sand. & H. Dig.) requiring railroads to furnish sufficient accommodations for the transportation of passengers and property. This act was in obedience to the constitutional provision, and in harmony with the prior statute, and was intended as an additional or cumulative remedy. It is said in the last opinion ’that the “ appellees have already, in another action, recovered a judgment against the appellant company for a large amount, to compensate them for all damages suffered by reason of the delay in shipment complained of here, and that judgment has been affirmed by this court. But the mere fact that the company has wrongfully failed to furnish cars to appellees does not necessarily entitle them to a penalty in addition to their damages.” If our contention that the statute under consideration was intended as a cumulative remedy be correct, it is obvious that the above could only be considered as a mere “begging of the qhestion.” This question must be decided, and the truth is, it was decided in the first instance, without regard to whether or not the appellees had recovered judgment by way of damages for failing to furnish cars in another action; for, when the judges passed upon and decided the present cause, it was unknown to them that another case was pending here on appeal from a judgment for damages for failing to furnish cars.
The object of the statute is not to enforce the same facilities or equality in facilities, but to prohibit unjust or undue inequality, We think these qualifying words “undue or unjust” have either been overlooked, or have not been given the significance which their use in the statute requires. Many of the instances mentioned as showing the impracticability of giving effect to the statute under the construction we contend for would be recognized at once by any man of good common sense, whether judge or juror, as not an unjust or undue discrimination. These words “unjust or undue” allow for all differences in the situation and circumstances of shippers and railway companies, whether at the same or different stations. They furnish a wholesome restriction and safe limitation to the passion or caprice of jurors; and, within these bounds it would not be difficult, much less impracticable, for trial judges, with proper directions, to hold jury verdicts. At any rate, the question of whether there has been an unjust or undue discrimination, like ’ thousands of other mixed questions of fact, and law, must be left to the jury under proper instructions from the trial court. The fact of shippers being at different stations or localities is to be submitted to the jury along with every other fact in the determination of this question. But we insist that this fact being conceded or undisputed does not, of itself, justify the court in declaring as a matter of law that in such a case there can be no such thing as an undue or unjust discrimination. The. statute is plain. “No unjust or undue discrimination shall be made in charges for or in facilities for transportation of freight or passengers within the state.”
No amount of subtle reasoning or lengthy argumentation can either obscure or make clearer the legislative intent to proMbit acts of undue or unjust discrimination between the parties named “within the state.” Under the construction given-it by the court, the act is shorn of the very force and power which the legislature doubtless most designed it should have.'
Hughes, J., concurring.