dissenting opinion.
The right of eminent domain enables a railroad to take private property for public use. It performs a govern*648■mental function in providing a highway for travel and for the transportation of freight. Except private persons for profit undertake the performance of these governmental functions, wise statesmanship, would recognize the necessity, and provide the means for the carrying of passengers and the transportation of the world products. Wisdom counsels and justice demands the control within reasonable limits of the actions and conduct of citizens, and that the burdens which each shall bear shall be reasonable and equally distributed. Where a corporation secures the right to andl performs governmental functions, there is an implied reservation in every such grant of the power to exercise reasonable control of its affairs to the end that the public interest may be served, and that persons who use it may be forced only to pay reasonable compensation for the service performed for them, and that the carrier may not be permitted to discriminate against any person entitled to enjoy its use. To accomplish this much-desired result, the people have been concerned to have constitutional provisions adopted and statutes enacted until nearly if not every State in the Union has laws, organic and statutory, for the regulation of common carriers. These laws have been enacted because it is dangerous to have a great unrestrained power in any government. It must be checked; it must be controlled; else the public welfare is threatened. The people are deeply interested in the maintenance of the great highways of travel in this country, and a just sense of right should make them desire to see that those who have invested their capital in them have fair treatment and receive proper reward for the capital invested. They should not, in an effort to restrain these public agencies, be guilty of the spoliation of their property. The regulations which *649they impose should be just and reasonable. While this is true, they should never grow weary of watching in an effort to properly restrain agencies performing governmental functions. Those who control the aggregated wealth invested in them sometimes grow insolent and arrogant, forgetting they owe any duty to the public, and deny the right of the people to have enacted and enforced reasonable laws for their regulation. While the courts should stand between regulations to enforce which would be spoliation of the property of the public agency, yet they should, standi between the Constitution and those who would destroy some of its provisions. Although a court may not agree with the policy which induced the enactment of a constitutional provision, it can never justify itself in the destruction of that provision of the Constitution in the method of its interpretation. It is the power — the people — -which created the Constitution that should change its provisions, not the judiciary. That body, above all others, should sustain .and enforce it. In the Lake Front Cases, 146 U. S. 387, 13 Sup. Ct. 110, 36 L. Ed. 1018, Mr. Justice Field said: “The trust devolving upon the State for the public, and which can only be discharged by the management and control of property in which the public has an interest, can not be relinquished by a transfer of the property. . . . The State can no more abdicate this trust over property in which the whole people are interested than it can abdicate its power in the administration of government and the preservation of the peace. In the administration of government the use of such powers may, for a limited period, be delegated to a municipality or other body, but there always remains with the State the right to revoke those powers, and exercise them in a more direct manner, and one more conformable to its wishes.” *650In Railroad Co. v. Smith, 128 U. S. 174, 9 Sup. Ct. 47, 32 L. Ed. 377, Chief Justice Waite said: “Where property is thus affected [with a public use], the business in which it is used is subject to legislative control. So long as use continues, the power of regulation remains; and the regulation may extend, not merely to provisions for the security of passengers and freight against accidents, and for the convenience of the public, but also to prevent extortion by unreasonable charges, and favoritism by unjust discrimination. This is not a new doctrine, but old doctrine, always asserted whenever property or business is, by reason of special privileges received from the government, the better to secure the purpose to which the property is dedicated or devoted, affected’ with a public use.” The constitutional convention, being impressed with the idea that a common carrier ¡should charge one person or company the same -as another person or company for like service, adopted as part of the Constitution a provision against any discrimination in rendering like services for any person, corporation, or company. The Constitution does not provide for or authorize just discrimination or reasonable discrimination. The convention regarded that any discrimination was unjust and unreasonable, hence it intended that neither the courts nor the railroad commission should be called upon to determine whether the discrimination was unjust or unreasonable, therefore it used simple and unambiguous terms in prohibiting any discrimination in receiving, handling and transporting freight.
The sections of the Constitution bearing upon the question here involved read as follows:
(214) “No railway, transfer, belt line or railway bridge company shall make any exclusive or preferential contract or arrangement with any individual, association, or cor*651poration, for the receipt, transfer, delivery,- transportation, handling, care or custody of any freight* or for the conduct of any business as a common carrier.”
(215) “All railway, transfer, belt lines or railway bridge companies shall receive, load, unload, transport, haul, deliver and handle freight of the same class for all persons, associations or corporations from and to the same points and upon the same conditions, in the same manner and for the same charges, and for the ame method of pay ment.”
The indictments are under section 215. That section recognizes that it is proper that freight should be classified, and the charges for carrying it fixed on such classification. The offense charged is not that there was not a proper classification, but that the carrier placed all coal in one class, and! then gave a rebate to those who used- it for a particular purpose. The carrier, by its tariff sheet, informed the people of Lebanon that it would discriminate in the charges for the shipment of coal against all who did not use it for steam purposes. It is not a question of the classification of coals, but of shippers. The character and quality of coal can enter into the question of its classification, but the uses to which one shipper may put it can never take it from its class for the purpose of mak ing a difference in the rate of transportation. Section 215 is a command to all railways to receive, load, unload, transport, haul, deliver, and handle freight of the same class for all persons, etc., from and to the same points, and upon the same conditions, in the same manner, and for the same charges and for the same method of payment. They are not only required to carry it in the same manner, and for the same charges, but the framers of the Constitution did not intend that one shipper of freight *652of a certain class should even have any preference over another shipper of the same class of freight in the payment of the charges. While the word used in the section commanding the reception and transportation of the freight may be broad enough to cover every act connected with its shipment, yet so anxious were those who framed the Constitution to prevent discriminations that they added that freight of the same class should be carried for all persons, etc., “upon the same conditions, in the same manner.” They endeavored to use every word possible to prohibit discriminations between shippers of the same class of freight from and to the same points. Both carrier and shipper are protected by the clause to the effect that it shall be shipped “'in the same manner;” that is to say, that it shall be shipped in the usual bulk, in the same kind of cars, etc., and in the usual way. The phrase “upon the same conditions” was not inserted for the benefit of 'the carrier, but for the protection of the shipper. It was used to prevent any kind of discrimination resulting from any restriction, regulation, act or manner of receiving and handling or transporting freight. It was intended to comprehend every act or regulation not embraced in (he specific terms used in the section. It has no reference to the business which the shipper may bo conducting, his financial condition, the subsequent shipment of other products over the line of the carrier, or the profit which the carrier may derive therefrom. The word “conditions” does not qualify any other word or sentence in the section. It does not make conditional the imposition of the same charges when the same class of freight is shipped from and to the same points; neither does it provide for exceptional cases in the matter of charges, etc. It is used in the sense of stipulations, arrangements. *653The word does not have reference to tlie carrier and shipper in a business or personal sense, but to the contract or terms of shipment, whether they be expressed or implied. In 'order to justify the interpretation given the word, the court has transposed the words of the section, although grammatically constructed, and has interpolated into it the word “unjust.” The section, as transposed, is not susceptible of the construction given it by the court. Jt is admitted by the court that the words “unjust discrimination and undue or unreasonable preference” are not found in our Constitution, but it claims the Constitution uses the broader and more comprehensive expression “upon the same conditions.” We have endeavored to show that the use to which the transported product is applied is not a condition or element to be considered. To illustrate the meaning of the court, it furnishes an example of the shipment of coal in the month of July and in the month of December. Of course, it does not follow, because the carrier charged a certain price in July to A, that B is entitled in December to have the same thing shipped for the same charges. But, if the carrier ships a.car load of coal in July for A. and a car load for B. of the same class, from and to the same point, under the tariff rates then prevailing, the charge must be exactly the same. So, in December, when the shipments of the same class of freight are made from and to the same points, all persons are entitled to have it done for the same charge, as fixed by the tariff rates then prevailing. The illustration of the court is an unfortunate one if it was ■ intended to support the construction which it has given to the section.
The court is again unfortunate in its effort to illustrate the correctness of its position when it quotes from Inter*654state Commerce Commission v. Baltimore & O. R. Co., 145 U. S., 263 12 Sup. Ct., 844, 36 L. Ed., 699, where the court said: “It is not all discriminations or preferences that fall within the inhibition of the statute (interstate commerce act); only such as are unjust or unreasonable. For instance, it would be obviously unjust to charge A. a greater sum than B. for a single trip from Washington to Pittsburg; but, if A. agrees not only to go, but to return by the same route, it is no injustice to B. to permit him to do so for a reduced fare, since the services are not alike, nor the circumstances and conditions substantially similar, as required by section 2 to make an unjust discrimination.” Of course, the services there performed are not alike. Instead of selling a ticket from one place to another, one was supposed to be sold to a given point and return. If it had been a discrimination, as the interstate commerce act recognized just discrimination, the court -would have held that the selling of such a round-trip ticket was not unjust discrimination. The court, however, did say it would have been obviously unjust to charge A. a greater sum than B. for a single trip from Washington to Pittsburg. That is the offense charged in this case. It was the discrimination in the charges for the transportation of the same class of freight from one point to another. Suppose B. had not bought a round-trip ticket from Washington to rittsburg, but bought a trip ticket from Washington to Pittsburg, and, under the rule of the company, if his purpose in going to Pittsburg was to buy goods, and ship them to Washington over the carrier’s line, it would give him a rebate on the charge of transportation from Washington to Pitts-burg, can anybody believe for a moment that the court in that case would have given an opinion that that was not an unjust discrimination? If the Lebanon millers are enti-*655tied to have a rebate upon the coal they ship over appellant’s line, used for' steam purposes, because the carrier carries wheat to the mill and flour from it, then a discrimination is made by reason of the volume of business which the owners of the mill furnish the carrier. Every other element is ignored in fixing rates, and discrimination becomes the rule, not the exception to it. It is a discrimination against every person who uses coal in the city of Lebanon. If the volume of business which a shipper furnishes the road will justify a carrier in giving him a less rate than other shippers receive for like service, then it follows that the freight rates are not to be fixed according to the mandates of the Constitution, but according to the volume of business that is carried on by a shipper over the line of the carrier. It logically follows that, if There is a flour mill in Lebanon which manufactures only half so much as the mill in question, and only supplies half of the amounc of business for the carrier, it would be authorized to fix the freight rates according to the volume of business each should furnish it. If one man should be engaged in the retail dry goods business in Lebanon, and another . should be engaged in the retail and wholesale dry goods business there, then, because the wholesale man might reship some of the goods received by him over the line of the appellant, it could give him a less rate on the goods shipped by him than those shipped by the retail man. Again, suppose two gentlemen were engaged in that city in the grocery business, both of whom purchased their goods in Louisville, and from that point shipped them to Lebanon. One sold his goods for cash, and, of course, would have nothing to ship over the line of the appellant which he had taken in exchange for his goods; but the other grocery man exchanged all his goods for butter, *656eggs, poultry, and farm products, and found a market for them elsewhere, and to reach it, it was necessary to ship them over the line of the appellant. If the reasoning of the court be sound, then the carrier would be justified, owing to the difference in the method which these two grocery men employed in conducting their business, and the profits which the appellant derived from the grocery man who exchanged his goods for other products, in charging the trading grocery man less for the transportation of his groceries to Lebanon than the one who sold for cash. Suppose, again, two men were engaged in the milling business at Frankfort, Ky., and the appellant transported the coal and wheat used by each of them from the same point, and that one of them shipped the products of his mill to market over the line*, of the appellant and the other shipped the product of his mill by the Kentucky river; if the business which the appellant would receive from the manufacturers of flour in the transportation of freight for them is to enter into the question of fixing the charges for the transportation of the coal necessary to operate their mills, the appellant would be justified in charging a less rate on the coal transported for the one who shipped the products of his mill over its line, although the coal may have been shipped from the same point, and at the same time.
It is said that it is not injurious to domestic consumers of coal in Lebanon that those who use it for steam purposes pay a less freight rate for its transportation. That is no reason for giving an interpretation to the Constitution which does violence to it's language and purpose. It is true, one of the evils intended to be remedied was to prevent discrimination by carriers which would foster one and injure or destroy another business along this line. There, however, was another great and weighty considera-*657tioii with the constitutional convention, and that was that a carrier should be required to treat each citizen with equal fairness and consideration. It thought it was only reasonable that a carrier should carry the same quantity of the same class of freight from and to the same points for all persons for the same charge. It therefore enacted the provision of the Constitution in question. To show that was the purpose of the convention, section 214 prohibits a railroad company from even making any exclusive or preferential contract with any individual, association, or corporation for the receipt, transfer, delivery, transportation, handling, care, or custody of any freight, or for the conduct of any business as a common carrier. So the two sections, taken together, not only prohibit any discrimination, but prohibit the making of any contract of arrangement that would have that effect. The court cites but one case (Hoover v. Railroad Co. [Pa. Sup.], 27 Atl., 282) which enunciates the doctrine that a railroad company may give .to a manufacturer preferential rights in the transportation of his fuel because it derives a profit from the transportation of his manufactured products over its line. The court was construing a statute containing language materially different from the provisions of-our Constitution, The statute in that case prohibited the carrier from making “any undue or unreasonable discrimination.” That language implies that a discrimination can be made so long as it is not undue and unreasonable, while our Constitution does not recognize any discrimination as being reasonable or just. The court in Interstate Commerce Commission v. Baltimore & O. R. Co. had under consideration certain provisions of the interstate commerce act. The language of that act with reference to discrimi-*658nations differs widely from the provisions of our Constitution. Under sections 2 and 3 of that act, as adjudged in that case, the unlawfulness denied by sections 1 and 3 was “unjust discrimination,” or “an undue and unreasonable preference or advantage.” The court held that under those sections the possibility of just discriminations and reasonable preferences were recognized. The supreme court of the United States in Railway Co. v. Goodridge, 149 U. S., 680, (13 Sup. Ct., 970), (37 L. Ed., 986), had under consideration section 6, art. 15, Const. Colo., which reads as follows : “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 or in facilities for transportation of freight or passengers within the State, and no railroad company, nor any lessee, manager, or employe thereof, shall give any preference to individuals, associations, or corporations in furnishing cars or motive power.” And also section 7, p. 309, Sess. Laws Colo. 1885, which reads as follows: “(Unjust discrimination.) No railroad corporation shall, without the written approval of said commissioner, 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, while operating under the classification and schedule then in force, 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 rates shall be open to, and allowed all persons, companies and corporations alike, at the same rate per ton per mile, upon like conditions and under similar circumstances, except in special cases de*659signed to promote the development of the resources of this State, when the approval of said commissioner shall be obtained in writing,” etc. While the constitutional provision there in question prohibited undue and unreasonable discrimination, this language recognized the possibility of discriminations that would not be undue or unreasonable. Under the statute made pursuant to the provisions of the Constitution any person aggrieved by a person, company, or corporation who violated the constitutional provision and the statute was entitled to recover three times the ■amount of the actual damages sustained or overcharges paid. The injured parties sought to recover under that statute. The company had charged one shipper for freight on coal over and above what it charged another for the like service. The court held that this could not be done, and adjudged that the plaintiff was entitled to recover. The conclusion was reached that such discrimination was undue and unreasonable. This court, under a constitutional provision which prohibits any discrimination, holds that to charge one shipper more for like services than another is not unjust discriminaton. Under the opinion of the court, if two consumers of coal at Lebanon should have exactly the same quantity of coal of the same class shipped from the same point in Kentucky over appellant’s line to Lebanon, and one of them should save the ashes of the coal, and ship them over appellant’s line, it could give him a rebate on the coal shipped by him because of the business given it in the transportation of his ashes. Besides, it would logically follow from the opinion that the more of other freight shipped for a consumer of coal the greater the rebate the carrier would be authorized to give on the coal shipment without being guilty of unjust discrimination. So the result would be that the charges for the ship*660ment of coal would never depend.upon the kind of service rendered in its transportation, but upon the volume of other business, which the shipper of coal might furnish the carrier. If the court was correct in saying the phrase “and upon the same conditions”.did not have reference to the stipulations, regulations, arrangements, and mode of shipment, etc., then by the most unnatural, unreasonable, and arbitrary method the court gives it a meaning not warranted by the letter or the spirit of the law, for it justifies a discrimination, not upon any difference in the time of shipment of the coal, or the quantity shipped, or circumstances or conditions affecting the shipment, but because the carrier transports products other than coal for the shipper. So anxious was the court to interpolate the words “unjust discrimination” in section 215 that it quotes section 196, which contains these words, the court adding that section 215 is part of the scheme covered by sections 196 and 214. Sections 214, 215, 216, and 217 refer to railroads, transfer, belt lines, and railway bridge companies organized under the laws of Kentucky, etc. These sections in plain terms designate the common carriers mentioned, and seek to regulate them in the manner therein provided, and they appear in the Constitution under a heading “Railroads and Commerce.” While it used the words “unjust discrimination,” it can not with reason be contended that section 196 was intended to qualify the meaning of section 215. The part of section 196 relied upon simply declares that the Legislature should enact laws to prevent unjust discrimination by railroads, steamboats, or other common carriers. Section 215 prohibits any discrimination, and-, of course, the Legislature could only enact a law which would prevent any discrimination by railroads. It was not intended to confer upon the Legislature the right to desig*661nate what might be unjust discrimination, as section 215 in effect declares that any discrimination is unjust, and that every person is entitled to have the same class of freight shipped at the same price that any other person or company is entitled to have it shipped to and from the same points. If the constitutional convention had intended to leave to the Legislature the right to determine what should constitute unjust discrimination, then it was folly for the constitutional convention to have inserted section 215. It needs no legislation to enforce section 215, as decided by this court in Louisville & N. R. R. Co. v. Com., (48 S. W., 416). Section 217 prescribes the penalty for violation of sections 218, 214, and 215 in express terms, and this court so held. It is absurd to say that section 196 has any connection with section 215, or in any sense bears upon the question of its interpretation. We are of the opinion that any statute is violative of section 215 of the Constitution which authorizes a carrier to make any discrimination in the matter of charging for the carrying of freight of a certain class for any person, company, or corporation from and to the same points. We are also of the opinion that the grand jurors of the various counties of the State have the right, independent of any recommendation of the railroad commission, to return indictments against common carriers for the violation' of sections 213, 214, 215, and 216 of the Constitution. The constitutional provisions name the penalties which the carriers incur for the violation of these sections. Legislation is not needed to enforce their provisions, and it was never intended by the framers of the Constitution to take from the grand jurors of the several counties of the State the right to inquire into and indict persons who violate the provisions of the Constitution to which we have referred. The power which created. *662the Constitution provided this court as an instrumentality to uphold it. Instead of doing so with reference to section 215, it has, as we believe, practically destroyed it by its opinion in these cases.
Judges White and Guffy concur.