ON MOTION FOR REHEARING.
GRAY, J.Appellants filed a motion for rehearing in this cause, claiming that the opinion is in conflict with the opinion of the Supreme Court in the case of McGrew v. Mo. Pac. Ry. Co., finally determined November 12, of this year. The motion has been argued orally in this court.
The McGrew case was not cited by counsel in their briefs, or mentioned in the oral argument at the time the case was submitted, and at the time the opinion was prepared in this case, we had no knowledge that the Supreme Court had considered the questions involved in the McGrew case.
This cause has been twice in the Supreme Court *685of this state. As stated in onr former opinion, the suit was instituted in 1899 to recover the penalties provided by sections' 1133 and 1134, Revised Statutes 1899. The circuit court sustained a demurrer to the plaintiffs’ petition, and plaintiffs appealed to the Supreme Court and secured a reversal of the judgment. The opinion on that appeal will be found in the 181 Mo., page 30, 79 S. W. 961. "When the cause was remanded, the defendant filed its answer and justified its discrimination as therein alleged. The trial resulted in a judgment in favor of the defendant, and plaintiffs again appealed to the Supreme Court, and the opinion on the second appeal will be found in the 131 S. W., page 881.
The only question passed on by the Supreme Court on the second appeal, was the jurisdiction of the Supreme Court to determine the cause. The Supreme Court held that it was without jurisdiction and certified the cause to this court.
Some of the questions in the cause, at the time it was instituted, have been settled by the Supreme Court on the two appeals. The first appeal settled affirmatively, so far as this court is concerned, the sufficiency of the petition. The second appeal determined other questions in the following language: “Looking further into the record, we have been unable to find that any constitutional question was raised in the circuit court and decided adversely to plaintiffs. Indeed, so far as we can gather from the recitals of the record, it was simply a construction of sections 1133, 1134, of ■the Revised Statutes of 1899, and neither side assailed the constitutionality of either of said sections.”
'We accepted the statement of the Supreme Court as to the issues involved, and attempted to decide them.
In ’ their motion for rehearing, appellants now claim, even though they have no right to recover under sections 1133 or 1134, yet they have a right to recover under article 12 of our state Constitution. La order. *686for us to so hold, we must construe said section of our Constitution, and thereby bring into the case a constitutional question that plaintiffs should'have presented to the Supreme Court before that court transferred the cause to this court, on the ground that no constitutional question was involved. Whether a constitutional question was in the case, was a matter for the Supreme Court to determine when the cause was in that court. And that court, having determined that no such question was involved it is binding on us in this case.
Accepting the statement of the Supreme Court, that the issues involved in this case are simply a construction of sections 1133 and 1134 of, the Revised Statutes of 1899', is there anything in our opinion in this case that is in conflict with the decision of the Supreme Court in the McGrew case ?
The McGrew case was a hard one for the Supreme Court to decide. When the cause was in one of the divisions of the court, differences resulted in the filing of two opinions, and the cause was transferred to the Court in 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 divided equally, and thereupon, the Honorable Willard P. Hall was called in as special judge, and wrote the opinion concurred in by three of the regular judges — three dissenting in a separate opinion. The question about which the court differed was whether section 1126, adopted in 1872, was repealed by sections 1133 and 1134, adopted in 1887.
In the McGrew case the plaintiff’s cause of action was under section 1126, and it was claimed by the defendant that the section was repealed by sections 1133 and 1134. The court held that section 1126 was not repealed, and that there is no necessary conflict between the sections. In so holding the court said:
*687“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.’
“The acts of 1872 and 1887 created two systems for preventing discrimination by railroad companies.The system created by the latter act contains some but not all of the thing's contained in the system created by the former act. ‘ The systems are by 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 bar. 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 or shorter hauls were made in the same direction, and in none of the counts is there any allegation that the hauls were under the same or like circumstances or 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, but such proof would not have prevented a recovery in the case at bar, founded on the act of 1872.
“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. ’ ’
'Thus it will be seen that the Supreme Court, in the McG-rew case, construed sections 1133 and 1134 *688precisely as we have. In the opinion in this case we hold that there is no conflict between sections 1126 and 1133 and 1134, in the following language: “The above sections must be read together, and when so read, and considered with reference to the time of their enactment, there is no- conflict or inconsistency between them.” We also held: “Section 1133 makes it unlawful for the carrier to give ‘ any undue or unreasonable preference or advantage.’ Therefore, in order to be a violation of that section the carrier must not only have given a preference or advantage, but it must have been an undue and unreasonable preference. Under section 1134 it is unlawfuL to charge more for the short haul than the longer one only when both are under ‘similar circumstances and conditions.’ It therefore becomes a question to be determined by the facts in each individual case whether the preference was undue and. unreasonable if the charge is under section 1133', and whether the haul under section 1134 was under similar circumstances and conditions.” In so holding, we are in perfect accord with the language of the Supreme Court in the McG-rew case, wherein it is said: “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.”
After a most careful consideration of appellants’ motion for rehearing, and fully realizing the importance of the questions presented, wé are firmly of the opinion that the motion for rehearing should be overruled, and the same is accordingly done.