Opinion of the court by
JUDGE HOBSONAffirming.
This is an action similar in character to the case of Railroad Co. v. Walker (this day decided), 63 S. W., 20, and most of the questions raised herein were determined in that case.. Part of the coal, for the transportation of which it is claimed an excessive charge was made, was billed from Jellico, Tenn. But the proof shows that it was mined in Kentucky, and loaded on the cars at the switch at the mines, and there taken charge of by the appellant for transportation to the consignee at Lebanon, Ky. Appellant introduced no evidence, and the jury were warranted in concluding from the. testimony before them that this was in fact a Kentucky shipment. No question, of interstate commerce, therefore, arises.
A part of the shipments sued for were made by appellee, A. Vancleave, individually, and part by a firm composed of A. Vancleave and Finley Shuck. Some time be*971fore suit was brought, Shuck retired from the firm, selling out his entire interest to Vancleave. Vancleave brought the suit in his own name alone to recover upon all the shipments. The court required him to make Shuck a defendant to the action. Shuck thereupon appeared, and filed answer, disclaiming any interest in the matter. Appellee insisted that there was a misjoinder of causes of action, and that the cause of action which accrued to the firm could not be united with the cause of action which accrued to Vancleave personally, although the firm had been dissolved, and Vancleave had become the sole owner of all its assets. The court overruled appéllant’s objections to the joinder of the causes of action. We do not deem it necessary to determine whether the causes of action were properly joined or not, as appellant was clearly not prejudiced, and the case has been tried on the merits. Shuck having filed his disclaimer of interest, his name might have been stricken from the recorder the action might have been dismissed as to him. No other parties were affected except appellee, A. Vancleave, and the appellant.
Appellant also relies on the fact that the railroad commission has, since the cause of action accrued, exonerated appellant from the operation of section 820, Kentucky Statutes. This exoneration, by the terms of that section, protects it from a criminal prosecution on account of the matters complained of before the commission; but it has no effect upon the liability which appellant had previously incurred to the shippers under section 218 of the Constitution. The power of the commission under that section is not retrospective. The language of the proviso in regard to the power of the commission is as follows: “Provided, that upon application to the railroad commission *972such common carrier or person or corporation owning or operating a railroad in this State may in special cases, after investigation by the commission, be authorized to charge less lor longer than for shorter distances for the transportation of passengers or property; and the commission may from time to time prescribe the extent to which such common carrier or person or corporation owning or operating a railroad in this State may be relieved from the operation of this section.” The authority of the commission must be obtained before the greater charge is made for the short haul, else the charge is illegal. The power of the commission to relieve the carrier from the operation of the section from time to time to such extent as it may see proper has no reference to past liabilities. Section 820, Kentucky Statutes, was enacted'to carry into effect the constitutional provision, and is not inconsistent with it. The Legislature could not confer power which the Constitution had withheld, and it did not undertake to do so. The constitutional provision, in so far as it made unlawful the ¿making, of a greater charge for the short haul than for the longer, required no legislation to secure to the shipper a right of action for money extorted from him in violation of its provision. A right secured by the Constitution may be enforced by action without the aid of legislation. The Constitution does not require the railroad commission to act before the shipper can maintain his action. By the terms of the Constitution, the greater charge for the short haul is unlawful, unless authorized by the commission. The liability attaches unless the carrier has obtained the authority of the commission. The shipper is not required by the Constitution to go to the commission and therefore no action by the commission is necessary to enable him to maintain his suit. Judgment affirmed.