dissenting : — I feel compelled to dissent from the judgment of the court; but in doing so, I wish to express my unqualified concurrence in the able opinion of Justice MONTGOMERY, except in so far as it necessarily conflicts with what is said herein. That free transportation, under whatever device it may be given, is prohibited by the Act of 1891, unless covered by the statutory exceptions, is unquestionable; and I am glad that it has now been settled by a unanimous court. Such a construction is in strict accordance with the settled rules of judicial interpretation and with the highest principles of public policy.
It is currently reported that' a hundred thousand passes were issued in the State of North Carolina within *1069the year 1897. Of our three leading railroad systems, one reported over fifteen thousand passes issued, while another reported thirty thousand. The defendant herein, the largest ■ system of all, and having a direct pecuniary interest of vital importance before the legislature, refused to make any report, relying upon its legal exemption from compulsory self crimination. Taking the estimate of 100,000 passes as correct, as it is 397 miles from Raleigh to Murphy on the West, and still further to Elizabeth City on the East, it is fair to assume that each pass would represent at least one hundred miles of travel, equal to $3.25 in fare. This would represent the equivalent of $325,000 a year given to somebody, but to whom we do not know, and for what purpose we need not enquire. These figures may not be correct, but they are the best obtainable under the circumstances. It is needless to suppose that transportation of such great pecuniary value would be given without some return either present or prospective: and in any aspect its continuance would be unjust to the public interest and dangerous to the public welfare. Free transportation to so large an amount would necessarily place an additional burden upon the travelling public to make up the deficiency; while its irresponsible distribution would be a serious menace to public morality. So far, I fully concur in the opinion of the court; but, to convict a person charged with crime, it is requisite not only to determine that a crime is committed but also that the defendant is guilty of the crime.
The defendant here admits a free transportation, but pleads want of intent. Ordinarily the admission of the forbidden act would be conclusive evidence of guilt; as in misdemeanors, at least, the intent to commit the act is the criminal intent, unless the statute itself consti*1070tutes the intent the gravamen of the offence. In this action, however, there seem to me so many peculiar circumstances that have never happened before, and may never happen again, as to take the case out of the usual rules of construction, and force us to regard it sui generis.
If the Act itself forbade the issuing of passes in express terms, it would be an end of the question. But it does so only by implication as is shown in the opinion of the Court. It is true it seems to us a clear and necessary implication; but it evidently did not seem soto the higher officers of State and members of the Legislature who accepted these passes.
We can scarcely ask a clearer insight into the law and a nicer sense of propriety from the soulless corporation than we do from those who make and enforce the law. This Act was ratified March 5, 1891, more than seven years ago. Since then we have had four different legislatures, three governors and seven different railroad commissioners as well as two complete sets of solicitors. I do not mean to impute any improper motive to these men, many of whom I personally know, and whose names and characters are too well known to need any vindication from me; but is it not possible that the defendant may have been honestly misled in issuing passes to them from the mere fact that they would receive them? The giving of a pass is only malum prohibitum, and not malum in se, and is neither as to the one that receives it. There is nothing innately wrong in it, further than that it is prohibited by law and may lead to dangerous abuses. Moreover, section 5 of the Act under consideration provides that the Railroad Commissioners “Shallmake such just and reasonable rules and regulations as may be necessary for preventing unjust discrimination in the transportation of freight and passengers on the railroads in the State. ”
*1071It was the imperative duty of the Commission, without any outside suggestion, to make all just rules necessary for carrying out all the provisions of the Act, the proper enforcement of which was the sole- object of their official existence. We have held, in Caldwell v. Wilson, 121 N. C., 425, 472, that the Commission is an administrative and not a judicial court; and this view is still more strongly expressed by the Supreme Court of the United States in Reagan v. Loan & Trust Co., 154 U. S., 362, 397, where it says : “Such a commission is merely an administrative board created by the State for carrying into effect the will of the State as expressed by its legislature.” It is their duty to actively enforce the law, and to prevent, and, if necessary, prosecute, all violations thereof that may come to their knowledge in any manner. They are the active instruments of its enforcement, and are not merely required to construe it upon a sworn complaint. For the purposes of their creative act, they are the grand inquest of the State, and should diligently enquire and true presentment make of all its violations. Any other construction of their powers and, duties would destroy their usefulness and make the commission a mere excrescence upon the Judicial system of the State. As a court, their powers are very limited; but, asa commission, they are charged with grave and responsible duties of the State, and are clothed with ample powers for their performance. While they may be compelled to' appeal to the courts for the ultimate enforcement of their decisions, they possess powers beyond the jurisdiction of any court., and which, if properly exercised, ma.y be made of inestimable value to the people. The.merefact of thorough investigation, and consequent publicity, of existing abuses will strongly tend to their correction. *1072The jury find in their special verdict: “That the officer of defendant who issued the annual pass, was advised by counsel and' by members of the Railroad Commission that he was not violating the law of the State;” “that there was no actual intent to violate the law upon the part of the officer of defendant issuing the pass.” They further find that during the year 1897 passes were issued to members of the Railroad Commission which, using the plural, must mean a majority of the commission, of whom there are only three. In a case of doubt, where the act-was not expressly prohibited in words by the statute, to whom better could the defendant have gone than to those charged in express terms with its enforcement? What more positive answer could it have received than the answer of a majority of the commission that it was not unlawful, coupled with the personal acceptance of a pass? ' I do not question the integrity of the commissioners. Th*ey were doubtless honestly mistaken, misled perhaps by the universal custom throughout the United States; but so, also, may have been the defendant. Is it not fair to say that it .was innocently misled ?
The possible results of an adverse decision to the defendant are practically beyond calculation. If it has issued fifty thousand passes a year for the two years within the statute, it is not probable that over forty thousand were issued to the excepted classes, leaving at least sixty thousand violations of law. This would subject it to penalties of which the minimum would be sixty millions of 'dollars and the maximum three hundred millions. It is true that this may not be the result. Solicitors may -not prosecute, the Executive may pardon or the legislature may condone; but with this I have nothing to do. Upon the special verdict *1073rendered in this case, and in view of the exceptional circumstances that force themselves upon our attention, I think that the defendant should be held not guilty purely upon the ground of intent. This would end the matter, as hereafter there could be no. honest mistake. As this court has now held that free transportation, outside of the excepted classes, is a violation of the Act, no matter under what form or device it may be given, the mere performance of the act will hereafter be deemed conclusive evidence of its guilty intent.
I am aware that, in arriving at my conclusions, I have been forced to ignore some of the general rules of judicial construction, but under the exceptional circumstances appealing so strongly to my judgment I do not feel that we should permit the bar sinister of an iron clad rule of interpretation to lie in cold obstruction across the conscience of the court.