The bill filed in this case was for discovery, and for a decree for the amount of reciprocal demurrage charges; in other words; for full relief. A demurrer was interposed on the ground that to compel tire defendants to discover would subject them to the payment of penalties, and that it was an attempt to enforce a penal action in a chancery court. Belief by way of discovery was grounded upon this allegation in the bill: “That complainant is informed and believes, and therefore charges, that each of said cars was unreasonably detained by reason of being switched while in transit to some track between points of origination and destination, but of this the complainant has not the means of proof at his command, but which proof is wholly within the knowledge of the defendant.” The bill covers a period from September 21, 1907, to May 10, 1909, inclusive, in which it is charged that a very large number of shipments had been delayed. The chancellor sustained the demurrer, but on the ground alone that penalties could not be recovered in the chancery court, as shown by his decree, and dismissed the bill.
The first proposition urged in support of this decree is that the plaintiff’s remedy was at law; that he could have had the-witnesses summoned and all the documentary evidence secured by 'subpoenas duces tecum; and that the chancery court had no jurisdiction of this bill for discovery. This contention cannot be maintained. In Millsaps v. Pfeifer, 44 Miss. at page 807, *123the court said: “It is more than probable that the court below acted under the belief that, inasmuch as the defendants, under the statute of November 25, 1861, could have taken the testimony of the complainants in the original bill, there was no necessity for a cross-bill. Even conceding this to be true, it did not justify the court in sustaining the demurrer and dismissing the cross-bill. This act does not oust the court of chancery of its original jurisdiction of cross-bills, when filed for discovery only. It furnishes a cumulative mode of obtaining the testimony of the complainants in the original bill, and does not take from that court the right to entertain such bills, even when they call for discovery alone, and much less when they call for both discovery and relief, as in the present case. The defendants, therefore, had their election, either to take the testimony of the plaintiffs in the original bill under the statute, or to obtain discovery from them by cross-bill.” This was a square holding that, even if the bill were for discovery alone, the fact that the plaintiff might have examined the witnesses and secured documentary evidence at law did not oust the chancery court of its original jurisdiction to entertain the bill for discovery. And this was-the law prior to the Constitution of 1890.
But section 160 of that instrument has “lifted the jurisdiction in equity in this class of cases far above the region of doubt,” as said in Woods v. Riley, 72 Miss. at pages 76 and 77 (18 South. 384). In the last clause of that section it is provided: “In all cases where said court heretofore exercised jurisdiction auxiliary to courts of common law, it may exercise such jurisdiction to grant the relief sought, although the legal remedy may not have been exhausted or the legal title established by the-suit at law.” And the court said: “Clearly the relief sought by the complainant in this cause is such as falls within the auxiliary or ancillary jurisdiction of equity, and which, under the former practice in equity, was generally withheld until the right at law had been established, but, which, under the modern prac*124tice, was frequently afforded. Tbe Constitution not only destroys the obstacle which had formerly existed to the exercise of this auxiliary relief, but, as to the cases falling within paragraph ‘i’ of section 159, section 160 confers jurisdiction upon courts of equity to try legal as well as equitable titles. If a court of law first acquires jurisdiction, equity may, without awaiting exhaustion of the legal, remedy, afford auxiliary aid. If the •court of equity first acquires jurisdiction, it may proceed to final and complete relief, though the titles and rights involved are of a legal, as distinguished from an equitable, character.” These two opinions settle beyond controversy the question that the chancery court has jurisdiction to entertain a bill for discovery, although the complainant may have a legal means of obtaining proof. And they settle the further proposition that now, under section 160 and the Constitution of 1890, wherever the chancery court has entertained jurisdiction for the auxiliary purpose of discovery, it may go on and administer complete relief in the case.
The second proposition contended for in support of the decree is that equity has m» jurisdiction to enforce penalties, and this was the ground on which the chancellor proceeded. Whether or not reciprocal demurrage charges are penalties in any proper legal sense admits of grave doubt; but that we do not now decide. It is certain that, if they are, they are penalties imposed by authority of law, and not penalties arising out of •contract; and hence the court, having taken jurisdiction for the purpose of discovery, had the power to proceed and administer complete relief by decreeing for the amount of the reciprocal demurrage charges, if the evidence should sustain the allegations of the bill in that regard. In Lafayette County v. Hall, 10 Miss. 678, 13 South. 39, this court said, on that proposition: “Equally untenable is the position, assumed by counsel for ap-pellees, that equity will refuse its aid in the enforcement of penalties. The unsoundness of this view lies in the failure to mark the distinction between statutory penalties and penalties *125created by contract between private persons. The latter our courts of equity .refuse to enforce, but the former, the expression of the will of the lawmaking power, the courts of equity will not undertake to 'disregard and nullify by refusing their aid in proper cases. 1 Pom. Eq. Juris. § 458; Story, Eq. Juris. § 1326; State v. McBride, 76 Ala. 51; Clark v. Barnard, 108 U. S. 436, 2 Sup. Ct. 878, 27 L. Ed. 780. Having acquired jurisdiction, the court below should have given full relief, by following the law and enforcing the penalty. Legal remedies are constantly being worked out in courts of equity in causes where jurisdiction is acquired on some recognized ground of equitable interference.”
It follows, for these reasons, that the decree of the chancellor is reversed, tire demurrer overruled, and the cause remanded for answer, to be filed within thirty days from the filing of the mandate in the court below. Reversed.