Concurring Opinion.
Morris, J.7.
It is urged by appellant that the act of the General Assembly of Indiana passed February 27, 1905
(Acts 1905 p. 58, §§3918-3920 Burns 1914), is void because in conflict with §10 of Art. 1, of the Federal Constitution, and certain provisions of the 14th amendment to the Federal Constitution. This claim is unfounded. Adams Express Co. v. Croninger (1913), 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257, and cases cited; Hirth-Krause Co. v. Cohen (1912), 177 Ind. 1, 97 N. E. 1, Ann. Cas. 1914 C 708; Cooley, Const. Lim. (7th ed.) 555, 556; Mondou v. New York, etc., R. Co. (1911), 223 U. S. 1, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44; Mobile, etc., R. Co. v. Turnipseed (1910), 219 U. S. 35, 31 Sup. Ct. 136, 55 L. Ed. 78, Ann. Cas. 1912 A 463, 32 L. R. A. (N. S.) 226. Appellant also claims that the act violates §23 of Art. 4, of the Constitution of Indiana. The point is not well taken. It was for the legislature to determine whether a general law was applicable to the remedy sought. Gentile v. State (1868), *41929 Ind. 409; Smith v. Indianapolis St. R. Co. (1902), 158 Ind. 425, 63 N. E. 849, and cases cited.
8.
Counsel for appellant zealously contend that the statute is in conflict with §22 of Art. 4, of our Constitution which prohibits the legislature from passing “local or speeial laws * * * regulating the practice in courts of justice”. This section does not prohibit classification, however, if the same be natural, reasonable, and fair. Indianapolis St. R. Co. v. Robinson (1901), 157 Ind. 232, 61 N. E. 197; Board, etc. v. Lindeman (1905), 165 Ind. 186, 73 N. E. 912; Woods v. McCay (1895), 144 Ind. 316, 43 N. E. 269, 33 L. R. A. 97; Carr v. State (1911), 175 Ind. 241, 93 N. E. 1071, 32 L. R. A. (N. S.) 1190; Hirth-Krause Co. v. Cohen, supra. The act reads as follows: “Section 1. That in all actions against common carriers on account of the failure by such carriers to safely transport and deliver property received by them, it shall be sufficient for the shipper or person entitled to maintain such action to aver and prove, in the first instance, the delivery to and receipt by the carrier of such property for transportation to a point named, together with the failure of the carrier to so transport or deliver and the resulting damage.” §3918 Burns 1914. “Section 2. Any limitation by contract of the common law liability of such carrier is hereby made a matter of defense which shall be specifically set up by answer and which shall not be provable under a general denial. Such affirmative answer shall state facts showing that the contract counted upon is based upon a sufficient consideration, that is reasonable, that it was fairly entered into by the shipper after he had been given a bona fide and full opportunity to ship at a fair and reasonable rate without limitation of liability.” §3919 Burns 1914. “Section 3. A reply of a general denial shall be sufficient to close the issue. And the issue thus formed shall be tried as other issues of fact are tried.” §3920 Burns 1914.
Do the limitations of its provisions to actions against com*420mon carriers, render the classification unreasonable, unfair or unnatural? The authority of the legislature over the subject of pleading and evidence can not be disputed. Mobile, etc., R. Co. v. Turnipseed, supra; Indianapolis St. R. Co. v. Robinson, supra, and cases cited. Here, however, a rule of pleading and evidence is declared applicable only to suits against carriers. At common law, as decided in many jurisdictions, the shipper was entitled to an election to bring his action on the contract, or in tort, for damages arising from the violation of the carrier’s duties, even though there was an express contract; and, by electing to sue in tort, to leave the burden on the defendant to allege and prove any special contract limiting its liability. McGrath v. Northern Pac. R. Co. (1913), 121 Minn. 258, 141 N. W. 164; 6 Cyc. 514; Southern Pac. R. Co. v. Arnett (1901), 111 Fed. 849, 50 C. C. A. 17; Bartelt v. Oregon R., etc., Co. (1910), 57 Wash. 16, 135 Am. St. 959, 106 Pac. 487; Chicago, etc., R. Co. v. Calumet Stock Farm (1901), 88 Am. St. 74, note. However, previous to the enactment of the above statute, this court held that in an action by a shipper against a carrier, for failure to safely transport and deliver goods, it was incumbent on the shipper to allege and prove his cause of action, and, if it was founded on a written contract, recovery could not be had on proof of an oral one. Lake Shore, etc., R. Co. v. Bennett (1883), 89 Ind. 457; Hall v. Pennsylvania Co. (1883), 90 Ind. 459; Cleveland, etc., R. Co. v. Hollowell (1909), 172 Ind. 466, 88 N. E. 680. The statute, aside from the provisions relating to pleading and proof, practically declares the common-law rule in force in Indiana previous to its enactment. Cleveland, etc., R. Co. v. Hollowell, supra; Lake Erie, etc., R. Co. v. Holland (1904), 162 Ind. 406, 69 N. E. 138, 63 L. R. A. 948. The case last cited was finally disposed of in 1904, less than a year before the meeting of the General Assembly of 1905. It was alleged in the complaint in that case, that while a contract limiting defendant’s liability was executed, which recited that the *421shipper, having the option to ship at a higher rate with unlimited liability, voluntarily decided to ship under the special contract at a lower rate, yet, in fact he was accorded no such option. It was held the plaintiff could recover, because there was no consideration for the Written contract.
The case of United States Express Co. v. Joyce (1905), finally reported in 36 Ind. App. 1, 69 N. E. 1015, was an action involving a limited liability contract, and was appealed to the Appellate Court, and there the judgment below was affirmed on February 4, 1904. On petition the cause was transferred to this court, where the judgment was reversed on December 29, 1904, 72 N. E. 865. Two of the judges dissented. Within a short period thereafter, the personnel of this bench changed, and the opinion was stricken from the files, and the cause remanded to the Appellate Court, which again handed down its original opinion of affirmance. This enactment of this statute was on February 27, 1905. It thus not only appears that when this law of 1905 was enacted there was conflict among the decisions of the courts of the various states, relative to suits involving limited liability contracts, but there was also confusion and uncertainty in the decisions of the appellate courts of this State. In Indianapolis St. R. Co. v. Robinson, supra, this court held that the act of 1899 (Acts 1899 p. 58, §362 Burns 1914), which cast on defendants, in personal injury actions, the burden of proving the defense of contributory negligence, did not violate the constitutional provision in question, although the act was subject to the unusual criticism that where, in the same action, redress was sought for injury to person and property, resulting from the same accident, the plaintiff had the burden of alleging and proving freedom from contributory negligence, in reference to the property injury, while the defendant had the burden of proving such negligence in regard to the injury to plaintiff’s person. In view of the foregoing, we are of the opinion that the classification made by this act was not arbitrary, *422but was natural, fair and reasonable, and that it does not violate §22 of Art. 4 of our Constitution. New York Cent. R. Co. v. Lockwood (1873), 17 Wall. 357, 21 L. Ed. 627.
9.
10.
*423 11.
12.
*424 13.
*422It is contended that since the enactment of the railroad commission law (Acts 1905 p. 83), the rates filed by carriers with the commission, have, at least until their alteration, the force and effect of statutes, which the carrier may not violate without incurring criminal liability, and that notice of such rates is conclusively imputed to the shipper, and consequently that courts can not, on complaint of the shipper, adjudge such rates unreasonable, or hold that the shipper had no notice of the unlimited liability rate. Adams Express Co. v. Croninger, supra; Kansas City, etc., R. Co. v. Carl (1913), 227 U. S. 639, 33 Sup. Ct. 391, 57 L. Ed. 683. This contention ignores §2 of the act of 1905 (§3919 Burns 1914, supra), which casts on the carrier the burden of alleging and proving that the rate named m the contract was reasonable, and that the shipper was given a Iona fide and full opportunity to ship at a fair and reasonable rate without limitation of liability. As this act was constitutional, it can not be ignored, if in effect. It is in effect, unless repealed, and it has not been repealed unless the railroad commission law, enacted February 28, 1905, and amended in 1907, by implication, performs such function. Appellant contends that it must be held that the commission act repeals by implication, because passed a day later, this act approved February 27, 1905. This contention must stand the test of the following rules of construction: (1) Repeals by implication are disfavored, and are never recognized in the absence of irreconcilable repugnancy (9 Ind. Dig. Ann., Statutes, §159b) and then only to the extent of such repugnancy. Carver v. Smith (1883), 90 Ind. 222, 46 Am. Rep. 210; Jeffersonville, etc., R. Co., v. Dunlap (1887), 112 Ind. 93, 13 N. E. 403. (2) Where two acts are seemingly repugnant, they must, if possible, be so construed, that the latter will not operate as *423a repeal of the former. Blain v. Bailey (1865), 25 Ind. 165. (3) There is no irreconcilable conflict, unless, after the application of every recognized rule of construction, substantial harmony is found impossible. Hay v. City of Baraboo (1906), 127 Wis. 1, 105 N. W. 654, 115 Am. St. 977, 3 L. R. A. (N. S.) 84. (4) The presumption against an implied repeal of an act by another of a later date, during the same session, is “especially strong”.
Blumenthal v. Tibbets (1903), 160 Ind. 70, 73, 66 N. E. 159; State, ex rel. v. Board, etc. (1908), 170 Ind. 595, 621, 622, 85 N. E. 513, and authorities cited; 36 Cyc. 1086. (5) Two acts which took effect the same day, (as here) unless clearly irreconcilable, must be construed as being in pari materia. Sanders v. State (1881), 77 Ind. 227. (6) It is a maxim of general application, that general things do not derogate from things special. Black, Interp. of Laws 117. As applied to the question of an implied repeal of an earlier by a later act of the same session, it is held that the later act, if in general terms, and not expressly contradicting the provisions of the earlier one, shall not be considered as intended to affect its more particular and specific provisions, unless absolutely necessary to hold otherwise in order to give any meaning, at all, to the words of the later act. Black, Interp. of Laws 117; Sedgwick, Stat. and Const. Law (2d ed.) 98; 1 Lewis’ Sutherland, Stat. Constr. (2d ed.) §275; Dwarris, Statutes 765; Deneen v. Unverzagt (1907), 225 Ill. 378, 80 N. E. 321, 8 Ann. Cas. 396, and cases cited; Jersey City v. Hall (1910), 79 N. J. L. 559, 76 Atl. 1058, Ann. Cas. 1912 A 696; 36 Cyc. 1088, and authorities. The reason for such rule is clear. In passing the special act, the minds of the legislators were necessarily directed to the details of the special ease, and it is not probable that they should intend, by a general act, to derogate from that which they have carefully supervised and regulated. Lewis v. Cook County (1897), 72 Ill. App. 151; 36 Cyc. 1088. (7) Where a particular *424intention is expressed in an act, which conflicts with a general intention expressed in a later one, the particular intention shall be given effect, leaving the later act to operate only outside the scope of the former. State, ex rel. v. McCardy (1895), 62 Minn. 509, 64 N. W. 1133; 1 Lewis’ Sutherland, Stat. Constr. (2d ed.) §275, citing Dwarris, Statutes 765; Black, Interp. of Laws 118; Crane v. Reeder (1871), 22 Mich. 322; 36 Cyc. 1088; Woodworth v. Kalamazoo (1903), 135 Mich. 233, 97 N. W. 714.
14.
The object of all rules of statutory construction is the ascertainment of’ the legislative intent. Board, etc. v. Given (1907), 169 Ind. 468, 80 N. E. 965, 82 N. E. 918. In the search for such object, it is proper to consider the common law, and other statutes relative to the same subject-matter, together with contemporaneous legislative history, and the evils at which the legislation was aimed. State Board, etc. v. Holliday (1898), 150 Ind. 216, 49 N. E. 14, 42 L. R. A. 826.
9.
*425 15.
*424It can be said with assurance that neither of the statutes under consideration was intended to confer any new right or privilege on the carrier, or to take away or impap.' any right of the shipper then existing, at common law, or under any statute. With equal confidence it may be asserted that each statute was enacted for the better protection of shippers, and the commission act was especially aimed at excessive rates and unjust discrimination between persons and localities. Sullivan v. Minneapolis, etc., R. Co. (1913), 121 Minn. 488, 142 N. W. 3, 45 L. R. A. (N. S.) 612. At the common law, as determined by this court, it was unlawful for common carriers to fix unreasonable rates, or to unjustly discriminate between shippers, and they were liable in damages for a violation of the law in either respect. Louisville, etc., R. Co. v. Wilson (1892), 132 Ind. 517, 32 N. E. 311, 18 L. R. A. 105, and cases cited; Chicago, etc., R. Co. v. Wolcott (1895), 141 Ind. 267, 275, 39 N. E. 451, 50 Am. St. 320; Western Union Tel. Co. v. State, ex rel. (1905), *425165 Ind. 492, 500, 76 N. E. 100, 3 L. R. A. (N. S.) 153, 6 Ann. Cas. 880. Both at common law, and under our statutes, railway companies were authorized to establish rates. Louisville, etc., R. Co. v. Wilson, supra, 526; subd. 10, §5153 Burns 1901, §3903 R. S. 1881. The increase of rates by railway companies was restricted by the act of 1867. Acts 1867 p. 162, §5333 Burns 1901, §4038 R. S. 1881. Discrimination by express companies was forbidden by the act of 1901. §§3312b 3312f Burns 1901, Acts 1901 p. 149; Adams Express Co. v. State (1903), 161 Ind. 328, 67 N. E. 1033. The right of a carrier to contest the validity of a state regulation of interstate rates, is not impaired by its action in putting them into effect. Allen v. St. Louis, etc., R. Co. (1913), 230 U. S. 553, 33 Sup. Ct. 1030, 57 L. Ed. 1625.
9.
By §3 of the railroad commission act (§5533 Burns 1908, Acts 1907 p. 454) it is made the duty of the commission to “supervise” railroad freight rates, but the provisions of the section are expressly limited by clause h thereof, to cases where complaint against the carrier is filed with the commission. It does not appear that the rates here were ever the subject of consideration by the commission. They were made by the carrier and filed with the commission, as required by the act, but it is not alleged that they were ever approved by that body as a result of any hearing or investigation. The commission is authorized by clause b, §3, of the act, on failure so to do by the carriers, to establish joint freight rates, and by clause d thereof, to change or abolish rates found to be unreasonable, unjust or discriminative. By §5 of the original act (Acts 1905 p. 83) it was provided that in actions between private parties and carriers, under the law, rates approved by or made by the commission before the commencement of the action, should be deemed just and reasonable, and, in such respects not subject to controversy, except as thereinafter provided. This provision was eliminated by the amendment of 1907. Acts 1907 p. 468. Section 6 of the act as amended (§5536 *426Burns 1914, Acts 1913 p. 820) provides that any carrier, or party, dissatisfied with any final order of the commission, may bring an action in the proper court, to suspend or vacate such order; and when the cost of transportation may be involved in the action, the burden of proof is cast on the carrier. By §10 (§5540 Burns 1914, Acts 1911 p. 545) it is made a criminal offense for a carrier to charge any other than the regular rate, as named in the schedule filed with the commission, for any transportation service. Nowhere in the act is found any reference to limited liability contracts, except in clause d, §11 (§5541 Burns 1914, Acts 1911 p. 545), which is as follows: “nor shall any carrier limit or change its common law liability by contract or otherwise, as to its responsibility for the negligent acts of its agents and servants with reference to property in its custody as a common carrier; Provided, that nothing herein contained shall be so construed as to abridge, or in anywise lesson the liability of any such carrier as it now is under existing laws. * * *” The first clause above quoted is merely declaratory of the common law. Cleveland, etc., R. Co. v. Hollowell, supra. It is proper to state that the contract here, as appellant contends, does not attempt to absolve the carrier from liability from negligence but to measure the recovery by a valuation alleged to have been declared for the purpose of securing a lower rate. The proviso will be considered later.
In relation to the making of rates, filing schedules thereof with the commission, and the penalties against discrimination, it may be conceded, so far as concerns this controversy, that our railroad commission law is a substantial adoption of like provisions of the Interstate Commerce Act. Previous to the adoption of the Carmack amendment to the Interstate Commerce Act in 1906, there was a great diversity of laws in the several states relating to carrier’s limited liability-contracts. In some states such contracts were inhibited by constitutional provisions, statutes, or the state’s pub-*427lie policy, as declared by tbe courts. In others, such contracts were recognized as valid, subject to statutory, or common-law restrictions, as determined by the various courts. Adams Express Co. v. Croninger, supra.
Pennsylvania R. Co. v. Hughes (1903), 191 U. S. 477, 24 Sup. Ct. 132, 48 L. Ed. 268, involved a judgment under an interstate shipment, for $10,000 in favor of a shipper, in an action for the value of a horse, shipped under a special contract, to be performed in Pennsylvania, which, on its face, limited the recovery to the stipulated valuation of the animal, in the sum of $100. The common law, as interpreted by the supreme court of Pennsylvania, rendered the limitation invalid. It was contended by the carrier, that the law of Pennsylvania, as construed by its courts, was in conflict with the provisions of the interstate commerce act and hence invalid. In the course of the opinion it is said: “It may be assumed that under the broad power conferred upon Congress * * * it would be lawful for that body to make provision as to contracts for interstate carriage, permitting the carrier to limit its liability to a particular sum in consideration of lower freight rates for transportation. * * * we look in vain for any regulation of the matter here in controversy. There is no sanction of agreements of this character limiting liability to stipulated valuations, and, until Congress shall legislate on it, is there any valid objection to the state enforcing its own regulations upon the subject, although it may to this extent indirectly affect interstate commerce contracts of carriage?” Adams Express Co. v. Croninger, supra, was decided by the Supreme Court of the United States in January, 1913. The opinion was delivered by Mr. Justice Lurton, and in discussing the eases of Chicago, etc., R. Co. v. Solan (1898), 169 U. S. 133, 18 Sup. Ct. 289, 42 L. Ed. 688, and Pennsylvania R. Co. v. Hughes, supra, he said: “In view of the decisions of this court in the two eases last referred to, we shall assume that this case is governed by them, unless the subsequent legis*428lation of Congress is such as to indicate a purpose to bring contracts for interstate shipments under one uniform rule of law not subject to the varying policies and legislation of particular states.”
It was then held that by virtue of the provisions of the Carmack amendment, the Interstate Commerce Act superseded all statutory and declared policy regulations of the various states. This conclusion was reached, not because of any conflict between such regulations and the interstate act, for the opinion concedes that “there is no reference to the effect upon state regulation” in the interstate act as amended ; but it was arrived at, because Congress, by the amended act, was held to have intended thereby to cover the entire field. At no time could a state regulation have been upheld, had it been conceded as conflicting with the act of Congress, even though the scope of congressional legislation was limited; on the other hand, after congressional legislation did cover the entire field, no state regulation of interstate commerce could be held effective, even though conceded to be in aid of the act of Congress, and to more effectually carry out the obvious intent of the congressional act.
16.
9.
It should not be overlooked that the decision in the Croninger case involved nothing but an interpretation of the commerce act, standing alone. Had there been, in addition thereto, a previous act of Congress, similar to our act, regulating the enforcement of limited liability contracts, it is scarcely conceivable from the reasoning of the opinion, that the Supreme Court of the United States would have reached the conclusion that it did. In matters involving an interpretation of the Interstate Commerce Act, the determination of the Supreme Court of the United States is the law of the land and binding on the supreme courts of the various states. Wabash R. Co. v. Priddy (1913), 179 Ind. 483, 101 N. E. 724. The present case involves nothing but intrastate traffic, and the duty of construing our State statutes with reference thereto *429devolves solely on the courts of appeal of this State. While in such ease this court is in no wise bound to follow the reasoning of the Supreme Court of the United States, in decisions under similar statutes, a proper regard for .the wisdom of the judges of that great tribunal should impel a most careful consideration of such reasoning. No such consideration is appropriate here however, because of the absence from the congressional legislation of any provision resembling our act regulating limited liability contracts.
In Pittsburgh, etc., R. Co. v. Mitchell (1911), 175 Ind. 196, 91 N. E. 735, 93 N. E. 996, the complaint contained the averments required by the act of February 27, 1905. The shipment was an interstate one, and the defendant, among other things relied on a limited liability contract, ;and contended that our act of February 27, 1905, conflicted with the interstate commerce act, “in that the latter recognizes but one rate”. It was held by this court that there was no conflict between the two acts. It is true that the above case was decided before .the decision of the Croninger case, supra. It is also true that the shipment in the Mitchell case was made after the Carmack amendment was adopted, and for reasons already stated, there is no conflict between the decisions in the Mitchell and Croninger cases, in relation to conflict between the acts, though there is conflict as to the scope of the interstate commerce law, as amended in 1906. Our railroad commission law was enacted more than a year before the adoption of the Carmack amendment. However, in 1907, the act was amended so as to contain the same provisions in regard to rate discrimination as are found in the 1906 amendment of the interstate act. These amendments however cannot justly be said to affect the controversy here relative to the legislative intent. The Interstate Commerce Act was passed in 1887. U. S. Comp. Stat. 1901 p. 3154. It then denounced' discrimination and affixed a penalty. §§2, 3, 10 of same act. By the act of March 2, 1889, the original act was amended so as to make it a misdemeanor *430to obtain transportation at less than "the regular rates then established.” These provisions were in the Interstate Commerce Act when the case of Pennsylvania R. Co. v. Hughes, supra, was decided. In addition thereto, the congressional enactment of February 19, 1903, commonly known as the Elkins act, was also in effect; yet the court then discerned no conflict in the singleness and fixedness of rates established under the provisions of the act, and the various regulations and restrictions of the several states. By the congressional amendment of 1906, and by the Indiana amendment of 1907 .(Acts 1907 p. 434), the scope of each act was extended and unlawful discrimination was more specifically defined, but it was equally unlawful,' before, as after, the respective amendments, to furnish transportation for less than the regular rate, which as to unlimited liability contracts was the one published and on file with the commission.
In Cleveland, etc., R. Co. v. Hollowell, supra, the shipment was made in June, 1906. The cause was decided in 1909. It was contended there by appellant, that our act of February 27, 1905, was unconstitutional. The court held it was not necessary to determine that question, because, under the findings, the contract was invalid at common law. If appellant’s contention here is sound, that decision was erroneous, for if our commission law shall be construed as impliedly repealing the limited liability statute, it must, for stronger reason, be held to supersede any like common-law rule to the same effect.
It will not be contended that the legislature was without power to except limited liability contracts, or, as it is generally termed, released rates, from the measure of conelusiveness accorded other ones, and consequently it is not necessary here to determine such measure with reference to any other than released rates. However, under a Minne-sota statute which expressly declared that the carrier’s published rates should be "deemed just and reasonable”, a shipper who shipped chattels at the published rate was *431awarded damages, in. a common-law action for discrimination, measured by the difference between the published rate and one accorded a competitive shipper. Sullivan v. Minneapolis, etc., R. Co., supra.
17.
9.
It does not necessarily follow that because the legislature has fixed a penalty for charging any other than the published rate, that the latter must be held conclusively just and reasonable. A conspicuous example of such principle is found in our marriage laws. Persons may be punished criminally for entering into the marriage relation, without having first procured license, or taken the statutory steps for preserving a record of the marriage, and yet the latter be entirely valid. Teter v. Teter (1885), 101 Ind. 129, 134, 54 Am. Rep. 742. Section one of the Elkins act (1903) provided that in criminal prosecutions, the published rate should be “conclusively deemed to be the legal rate” (U. S. Comp. Stat. 1901, Supp. 1907 p. 880) ; yet such provision did not, previous to the congressional legislation of 1906, conflict with state regulations concerning released rates which restricted their validity to cases where it was shown, on proof, that they were reasonable. Adams Express Co. v. Croninger, supra.
Keeping in mind the evident legislative purpose in enacting the commission act, as not to restrict but to enlarge the rights of the shipper, and not to extend the privileges of the carrier, but rather to curtail them, it is difficult to reconcile the proviso in clause d, §11 of the act (§5541 Burns 1914, supra), with the legislative intent to repeal the former one. The normal function of a proviso is to limit and restrain the preceding enactment. 2 Lewis’ Sutherland, Stat. Constr. §§351, 352. This proviso declares “that nothing herein contained shall be construed as to abridge, or in anywise lessen the liability of any such carrier as it now is under existing laws.” Under the common law, as declared by the Appellate Court, at the beginning of the legislative session of 1905, in Evansville, etc., R. Co. v. McKinney *432(1905), 34 Ind. App. 402, 73 N. E. 148, the shipper had the right, in case of negligent loss of his property shipped, to recover the full value thereof, regardless of any contract of limitation, unless the limited liability rate was fair and reasonable, and was accepted by the shipper after full opportunity to ship under an unlimited one. By the act of the day previous to the passage of the commission law, this right was not only continued, but the burden of pleading and proving the reasonableness of the rate, etc., was shifted to the carrier.
No obscurity affects the language of the proviso, and it is its own best expounder of the legislative intent. To say that the theory of implied repeal, here presented, would not abridge or lessen the liability of carriers under then existing laws, requires a construction ignoring the plain meaning of nontechnical words — a construction never permissible. Subd. 1, §240 Burns 1914, §240 R. S. 1881. However,, should this proviso be ignored, and conceding that the courts erred in Pennsylvania R. Co. v. Hughes, supra, and cases following it, and in Pittsburgh, etc., R. Co. v. Mitchell, supra, and disregarded all the rules of construction heretofore enumerated except the sixth and seventh ones, it must be held under these two rules that the specific provisions of the act of February 27,1905, were not repealed by the general ones of the act of February 28, but that these particular provisions were intended to stand as exceptions to the general scope of operation of the commission act. Crane v. Reeder, supra; State, ex rel. v. McCardy, supra. This conclusion conflicts with no rule of construction, and is in unison with the obvious general intent of the legislature in both acts to secure to the shipper fairer treatment than theretofore accorded him.
The act of February 27, 1905 (Acts 1905 p. 58), is valid and in full force and effect and consequently the court did not err in sustaining appellee’s demurrer to the paragraphs *433of answer which proceeded on the theory that said act was either repealed or invalid.
Cos, C. J., and Spencer, J., -concur in foregoing opinion of Morris, J.
Note. — Reported in 105 N. E. 483, 491. As to limiting liability on joint undertaking between initial and connecting carriers, see 31 L. R. A. (N. S.) 50. On the elements entering into determination of reasonableness of railroad rates prescribed, by the state for local traffic, see 15 L. R. A. (N. S.) 108; 25 L. R. A. (N. S.) 1001. As to the authority of an agent shipping goods to enter into a contract limiting the liability of the carrier, see 1 Ann. Cas. 676; 19 Ann. Cas. 806; Ann. Cas. 1913 E 292. As to carrier’s liability for loss of or injury to live stock, see 130 Am. St. 432. See, also, under (1) 6 Cyc. 515; (2) 6 Cyc. 385, 393; (3) 6 Cyc. 408; (4) 38 Cyc. 1632; (5) 38 Cyc. 1703; (6) 6 Cyc. 403; (7) 6 Cyc. 518; (8) 36 Cyc. 1013; (9) 36 Cyc. 1093; (10) 36 Cyc. 1071; (14) 36 Cyc. 1106, 1137, 1145, 1147; (15, 17) 6 Cyc. 1915 Ann. 492-45; (16) 11 Cyc. 751.