DISSENTING OPINION.
WOODSON, J.The respondent instituted this suit in the circuit court of Lafayette county to recover $7,462.43, overcharges and penalties alleged to be due *563him from appellant for its violation of certain sections of the Eevised Statutes of 1899; regarding freight charges, for transportation of coal from Myriek, Missouri, to various other towns in this State.
There was a trial before the court, without the intervention of a jury, which resulted in a judgment for the respondent for the amount sued for, and the appellant duly prosecuted its appeal to this court.
The facts are undisputed, and are substantially as. follows:
The respondent is a coal miner and shipper at Myriek, Missouri; and appellant is a railroad corporation, duly organized and incorporated under the laws of this-State; Myriek and the other towns mentioned are located along the line of said railroad; respondent made-divers shipments of coal over said road to the said1 various towns. The suit is to recover overcharges and; penalties for the alleged violation of sections 1126 and! 1160, Eevised Statutes 1899, prohibiting railroads from; exacting a higher toll for carrying freight from one-point to another in the State than they charge for the same class and quantity of freight carried a greater distance. The appellant collected of respondent certain sums in excess per ton for said shipments than it. .did for the same class and quantity of coal shipped for longer distances, aggregating the sum sued for.
At the close of the testimony counsel for the- plaintiff prayed the court to grant this instruction on the. part of the plaintiff: “The court declares the law to be that-upon the pleadings and the evidence herein the-finding and judgment must be for the plaintiff,’’which-was by the court given. To the giving of which instruction on the part of the plaintiff, the defendant by its* counsel then and there duly excepted.
The respondent bases his cause of action upon sections 1126 and 1160, Eevised Statutes 1899, which are; as follows:
*564“See. 1126. No railroad corporation organized or doing business in this State, under any act of incorporation or general law of this State now in force, or which may be hereafter enacted, shall directly or indirectly charge or collect for the transportation of goods, merchandise, or property on its said road for any distance, any larger or greater amount as toll or compensation, than is charged or collected for the transportation of similar quantities of the same class of goods, merchandise or property over a greater dis-' tance upon the same road, nor shall such corporation charge different rates for receiving, handling or delivering freight at different points on its road or roads connected therewith, which it has a right to use, nor shall any such railroad corporation charge or collect, for the transportation of goods, merchandise or property over any portion of its road, a greater amount as toll or compensation than shall be charged or collected by it for the transportation of similar quantities of the same class of goods, merchandise or property over any other portion of its road of equal distance; and ail such rules, regulations or by-laws of any railroad corporation, as fix, prescribe, or establish any greater toll or compensation than is hereinbefore prescribed, are hereby declared to be void.
“Section 1160. Any railroad corporation which shall fix, demand, take or receive, from any person or persons, any greater toll or compensation for the transportation, receipt, handling or delivery of goods or merchandise, in violation of the- provisions of «this article, shall forfeit and pay for any such offense any sum not exceeding one thousand dollars, and costs of suit, including a reasonable attorney’s fee, to be taxed by any court where the same is heard by appeal or otherwise, to be recovered by civil action by the party aggrieved, in any court having jurisdiction thereof; and any officer, agent or employee of any such railroad corporation who shall knowingly or wil*565fully violate the provisions of this article shall be liable to the penalties prescribed in this section.”
It will throw some light upon the legal'propositions involved in this suit if we will bear in mind the history of this legislation. The two sections above quoted were originally enacted in 1872, and were sections 1 and 4 of that act [Laws of 1871, pp. 67 and 70]. Without alteration they were brought forward and incorporated in the Eevised Statutes of 1879, and are therein numbered sections 820 and 822, respectively. They were again brought forward without any change into the Eevised Statutes of 1889, and are sections 2629 and 2663, and were in like manner brought forward into the Eevised Statutes of 1899, and are now sections 1126 and 1160. Briefly stated, sections 1 and 4 of the Act of 1872 have been brought forward through all the revisions of the statutes without change down to and including the revision of 1899, and are numbered therein sections 1126 and 1160.
The appellant assails the constitutionality of those statutes for the reason that they were not enacted in accordance with the requirements of section 32, article 4, of the Constitution of 1865. That section reads as follows: “No law enacted by the General Assembly shall relate to more than one subject, 'and that shall be expressed in the title; but if any subject embraced in an act be not expressed in the title, such act shall be void only as to so much thereof as is not so expressed.”
The title to the Act of 1872 is as follows: “An Act to prevent unjust discrimination and extortion in the rates to be charged by the different railroads in this State, for the transportation of freight on said roads.”
The appellant contends that the title of the act is ■directed against unjust discriminations, while the act itself prohibits all discriminations iuhether just or unjust. The appellant insists that if the validity of that act is tested by the constitutional provision before quoted, then that portion of the act which prohibits all *566discrimination is void and inoperative, for the reason it is not mentioned in the title of the act.
The title of the Act of 1872 does not purport to prohibit all discrimination in the transportation of freight, but in express terms directs its inhibition against unjust discrimination only. The principle of eospressio unius est exclusio alterius applies here, and there is no possible escape from the conclusion that all discrimination is not embraced in the title of the Act of 1872. Having shown' that the title of the act in question does not prohibit all discrimination- by railroads in the shipment of freight, it would seem to be useless to cite authorities to sustain the proposition that such portion of the act which attempts to do so, is in the language of the Constitution, ‘void’ and inoperative; but since the majority of the court entertain different views regarding the legal questions involved in this case, I feel called upon to fortify each and every proposition that I shall present herein with an abundance of authority.
In consideration of that provision of the Constitution, this court in the case of St. Louis v. Weitzel, 130 Mo. l. c. 616, used the following language: “The evident object of the provision of the organic law relative to the title of an act was to have the title, like' a guide board, indicate the general contents of the bill, -and contain but one general subject which might be 'expressed in a few or a greater number of words. If those words only constitute one general subject, if they do not mislead as to what the bill contains; if they are inot designed as a cover to vicious and incongruous legislation, then the title can stand on its own merits, is an honest title and does not impinge on constitutional prohibitions.”
That great constitutional lawyer, Chief Justice Cooley, in treating this same question, in his valuable work on Constitutional Limitations, at page 2Ó5 {7 Ed.), used this language: “It may therefore be as-*567sinned as settled that the purpose of these provisions was: . . . Second, to prevent surprise or fraud upon the Legislature by means of provisions in bills of which the titles gave no intimation, and which might therefore be overlooked and carelessly and unintentionally adopted; and, third, to fairly apprise the people, through such publication of legislative proceedings as is usually made, of the subjects of legislation that are being considered, in order that they may have opportunity of being heard thereon, by petition or otherwise, if they shall so desire.” And continuing, on page 212, he says: “The courts cannot enlarge the scope of the title; they are vested with no dispensing power; the Constitution has made the title the conclusive index to the legislative intent as to what shall have operation; it is no answer to say that the title might have been made more comprehensive, if in fact the Legislature has not seen fit to make it so. Thus, ‘An act concerning promissory notes and bills of exchange,’ provided that all promissory notes, bills of exchange, or other instruments in uniting, for the payment of money, or for the delivery of specific articles, or to convey property,- or to perform any other stipulation therein mentioned, should be negotiable, and assignees of the same might sue thereon in their own names. It was held that this act was void as to all the instruments mentioned therein except promissory notes and hills of exchange; though it is obvious that it would have been easy to frame a title to the act which would have embraced them all, and which would have been unobjectionable.”
This same question came before this court again in the case of State v. Persinger, 76 Mo. 346, and on page 347, this language is used: “We are of the opinion that the motion to quash was properly sustained for the reason that the said act was entitled, ‘An act to change the penalty for disturbances of the peace.’ This title only authorized the passage of an act chang*568ing the penalty for such disturbances of the peace as were then by law declared punishable. The said Act of 1870, while it changed the punishment for such offenses, went further and undertook to amend the Act of 1868 by so changing it as to make it an offense for one person to disturb the peace of another person. "While the title of the act embraced but one subject, namely, a change • of the penalty for disturbing the peace, the body- of the act not only included that subject, but also another, viz., amending the law so as to make that a disturbance of the peace under the Act of 1870, which was not an offense under the Act of 1868. It therefore follows that as the Act of 18701 embraced two subjects, one of which was not expressed in its title, it is violative of the 32d section, article 4, of the Constitution of 1865, and void as to so much thereof as is not expressed in the title.”
The Act of 1872, now under consideration, is a verbatim copy of an act passed by the Legislature of Illinois in 1871. At the time of its enactment that state had a similar constitutional provision to ours, and is as follows: “The General Assembly shall pass laws to correct abuses and prevent unjust discrimination and extortion in the rates of freight and passenger tariffs on the different railroads in this State, and enforce such laws by adequate penalties, to the extent, if necessary for .that purpose, of their property and franchises.” [Sec. 15, art. II, Constitution of Illinois.] In obedience to that constitutional command, the Legislature of that state passed the act of which the one in question is an exact copy, and the title of that was as follows: “To prevent unjust discriminations and extortions in the rates to be charged by the different railroads in this State, for the transportation of freight on said roads.” The question we now have before us came before the Supreme Court of Illinois in the case of the Chicago & Alton Railroad Co. v. People ex rel., 67 Ill. 11, and in passing upon the constitutionality of *569that act, that court used this language: “This provision expressly directing the Legislature to pass laws to prevent unjust discrimination is a recognition of the palpable fact that there may be discriminations which are not unjust,'and by implication it restrains the power of the Legislature to a prohibition of those which are unjust. That was undoubtedly the object of the Legislature in passing the existing law. ' This is clearly shown by its title. But the act itself goes further. It forbids any discrimination whatever, under any circumstances, and whether just' or unjust, in the charges for transporting the same classes of freight over equal distances, even though moving in opposite directions, and does not permit the companies to show that the discrimination is not unjust. . . . Before this act can be enforced it should be so amended as to correspond with the requirements of the Constitution by directing its prohibitions against unjust discriminations. ’ ’
When we consider that the Supreme Court of Illinois has held the act of which ours is a copy to be unconstitutional, and the fact that said opinion is in harmony with the many decisions of this court, involving similar statutes and constitutional provisions, and fortified and reinforced as they are by Chief Justice Cooley’s great work, it seems to me that there is no logical escape from the conclusion that the Act of 1872, in so far as it prohibited all discriminations made by a railroad in the transportation of freight, was unconstitutional and void. These views are supported by the following cases from this court: State ex rel. v. Lafayette County, 41 Mo. 39; State v. Great Western Coffee Co., 171 Mo. 634; Kansas City v. Payne, 71 Mo. 159; State ex rel. v. Baker, 129 Mo. 482; Witzmann v. Railroad, 131 Mo. 612; Shively v. Lankford, 174 Mo. 535; Dart v. Bagley, 110 Mo. 42; In re Hauck, 70 Mich. 396; Callaghan v. Judge of Superior Court, 59 Mich. 610; 26 Am. and Eng. Ency. Law (2 Ed.), pp. 579, 590.
*570II. In the previous paragraph of this opinion we have assumed that the learned counsel for respondent was correct in his contention that the Act of-1872, from which sections 1126 and 1160 of the Revised Statutes of 1899 are literally copied, was enacted for the purpose of preventing railroad companies from making discriminations in the shipment of freight over their roads. My associate, in his opinion, has adopted that same view of that act; hut with all due respect for his ability, learning and judicial experience, I feel constrained to entirely disagree from the conclusions herein reached; and, if I am right in my construction of that act, it is not only unconstitutional upon the grounds stated in paragraph one hereof, but for two other equally valid reasons, which I will now proceed to state.
It should be borne in mind that the Constitution of 1865 was perfectly silent upon the questions involved in this- litigation, nor was there any legislation upon those matters until the Act of 1872 was passed. All freight and passenger traffic over railroads prior to that time was governed by the common law, which allowed common carriers to make reasonable and just discriminations in the transportation of freight and passengers. [4 Elliott on Railroads, secs. 1467, 1565 and 1676; 17 Am. and Eng. Ency Law (2 Ed.), p. 135; 2 Hutchinson on Carriers (3 Ed.), secs. 521, 588 and 589; Railroad Commission v. Weld, 96 Tex. 394.]
Now the body of the Act of 1872 did not say a word about just or unjust discrimination in the transportation of freight; nor is there any language contained in the act which prohibits either just or unjust discrimination, but left the shipper and carrier in that regard just where the common law placed them, with the exception as to short or long hauls. Section 1 of the Act of 1872 only prohibited railroad companies from charging more for a short haul than for a’ long one, along all portions of their lines, and has no refer*571ence directly or remotely to the question of discrimination. Section 2 defined the meaning of the words “railroad corporations,” as used in the act. Section 3 was to prevent the increase of tariff rates above what they were the year previous. Section 4 prescribes the penalty for the violation of the provisions of the act; and section 5 is an emergency clause.
The first constitutional provision adopted by this State upon this question is section 12 of article 12 of the Constitution of 1875, which reads as follows: “Sec. 12. It shall not be lawful in this State for any railway company to charge for freight or passengers a greater amount, for the transportation of the same, for a less distance than the amount charged for any greater distance; and suitable laws shall be passed by the General Assembly to enforce this provision; but excursion and commutation tickets may be issued at special rates.”
Clearly, this provision is fashioned after the Act of 1872, and was laying one of the two corner stones upon which the Legislature was commanded to base a system of laws, which would “correct abuses and prevent unjust discrimination and extortion in the rates of freight and passenger tariffs on the different railroads in this State. ’ ’ But taken by itself, this section of the Constitution is not so comprehensive in its provisions, commands and injunctives as were those of the Act of 1872. Neither that section nor that act prohibits discriminations in the transportation of freight and passengers, but were for the purpose of preventing railroads from charging more for a short haul than they charged for a long haul, which applied to everyone without discrimination, and if it was not for section 14 of the same article, I suppose it would hot be seriously contended that a railroad company would not have a perfect legal right, barring the common law rule, to discriminate in fav.or of one person against another, in furnishing cars and in receiving and de*572livering freight; nor from charging one person the same price for carrying freight five hundred miles that it charged another for carrying the same amount and quality a distance of fifty miles, or from charging one person the same price for a short and a long haul, and charging another a higher or lower price for carrying the same quantity and quality of freight the same distance. If there are any such inhibitions couched in either the Act of 1872 or in said section 12 of the Constitution I have been unable to find them. But in order to prevent just such discrimination? as above pointed out, section 14 of the same article of the Constitution was adopted, which is as follows:
“Sec. 14. Railways heretofore constructed, or that may hereafter be constructed in this State, are hereby declared public highways, and railroad companies common carriers. The General'Assembly shall pass laws to correct abuses and prevent unjust discrimination and extortion in the rates of freight and passenger tariffs on the different railroads in this State, and shall from time to time pass laws establishing reasonable maximum rates of charges for the transportation of passengers and freight on said railroads, and enforce all such laws by adequate penalties. ’ ’
When we consider sections 12 and 14 together, which we must do in order to get at the intention of the framers of the Constitution, it is clearly seen that it was their intention to have the Legislature pass such laws as would not only prevent railroad companies from discriminating in furnishing cars, receiving and delivering freight, but also to prevent all unjust and unreasonable discriminations among shippers in the short1 and long hauls; but neither of said sections, nor both construed together, were intended to prevent just and reasonable discriminations within the limitatious of those sections and laws thereafter to be enacted in pursuance thereof. If it had been the *573intention of the framers of the Constitution to prevent all discrimination, reasonable and just, as well as unreasonable and unjust, then why did they provide in both of said sections that the Legislature should enact suitable laws to carry into effect these provisions? If the intentions had been to prohibit all discrimination, then why did they not so state in so many words in the Constitution, and at the same time declare such provisions to be self-enforcing? By so doing all the legislation we have upon those subjects and the complications and litigation that have grown out of the same could and would have been avoided. But the fact that the Constitution did not so provide, taken in connection with its command to the Legislature to enact suitable laws to carry into effect those provisions and to prevent unreasonable charges and unjust discrimination and extortion, indicate to my mind that it was never, the intention to prevent just and reasonable charges and discriminations within the constitutional and statutory limitations then fixed, or thereafter to be established. And it should also be borne in mind that the constitutional provisions ■ under consideration were adopted, not because the Legislature <Md not previously possess ample power to enact such laws as would prevent the abuses therein denounced, but were intended as a command to the Legislature to enact such laws as would prévent the abuses therein mentioned and at the same time place limitations upon the power of the Legislature in fixing rates to be charged and prohibiting it from fixing a rate which would be below what was reasonable and just, and thereby withdraw from the Legislature the power to fix rates which would be confiscatory under the provisions of the State and Federal Constitutions. [McCully v. Railroad, 212 Mo. 1; Railroad v. Smith, 173 U. S. l. c. 687 and 688.]
The Constitution by commanding the Legislature to pass suitable lawrs to correct the abuses and *574extortions therein mentioned, and which had been practiced by many of the roads in fixing and collecting rates, no more intended thereby to abolish all discriminations than it did to prohibit the collection of all rates and tolls, because the very same language of' the section which is directed at the one is directed at the other, and both are found in the same clause and sentence of said section 14; and-what applies to one must of necessity apply to the other. Had the framers of the Constitution intended to prohibit the collections of all tolls for carrying freight and passengers, then that provision of the State Constitution would have been clearly void under articles 5 and 14 of the amendments of the Constitution of the United States, which provide that private property shall not be taken for public use without just compensation. [Railroad v. Smith, supra.] Such a provision would be confiscatory in its nature and violative of the Constitution of the United States. Then by parity of reasoning, if it was not the intention to abolish all tariff rates, then it was not the intention to prohibit all discriminations. Clearly, it was the intention of the framers of the Constitution to abolish only unreasonable and extortionate rates, and all unjust and unreasonable discriminations in the transportation of freight and passengers. [Chicago & Alton R. R. v. People ex rel., 67 Ill. 11.]
The Constitution commanded the Legislature to enact such laws as would carry into,effect those provisions, and in obedience to that mandate, and within the limitations prescribed, it attempted to enact such legislation as would prevent the collection of extortionate rates and from making unjust and unreasonable discriminations by fixing maximum rates; and in order to carry into effect- those rates the Legislature also created the Board of Railroad and Warehouse Commissioners with power to regulate, fix and publish schedules of tolls to be charged for transpor*575tation of freight and passengers, which were to be binding upon the companies until readjusted, or set aside by the judgment of some proper court, and by passing many other statutes prescribing the rights, powers and duties of such railroad companies. [R. S. 1899, secs. 1136-8; McGrew v. Railroad, 114 Mo. 210; Railroad v. Smith, supra; McCully v. Railroad, 212 Mo. l. c. 17 and 18; Winsor Coal Co. v. Railroad, 52 Fed. 716; Cohn v. Railroad, 181 Mo. 30.]
Now, if our interpretation of the Act of 1872 is sound, and if viewed in the light of said constitutional provisions 12 and 14, then we are unable to see how it can be contended that said act either prohibits just or unjust discrimination, or that if that had been the intention of the Legislature, then it would have been invalid under those constitutional provisions, after their adoption. In brevity, I do not believe it was the intention of.the Legislature, by the Act of 1872, to prohibit either just or unjust discrimination in the transportation of freight over railroads, for the reason that there is nothing in the body of the act which refers even remotely to that subject; but conceding, for argument’s sake, that such was the intention of the Legislature, then, in my opinion, it was abrogated and annulled by the adoption of the Constitution of 1875. That being true, the act is void, first, because the title of the act refers to one subject, namely, “unjust discriminations,” while the body of the act refers to an entirely different subject, to-wit, the short and long haul, which is a clear departure from the title of the •bill, and for that reason it is obviously unconstitutional and void, because the subject of the act is not expressed in the title thereof, as commanded by section 32 of article 4 of the Constitution of 1865, and, second, because even if valid when enacted, it was repealed and annulled by the adoption of the Constitution of 1875.
*576This is not only the plain meaning of the language. employed in the Act of 1872, and in the constitutional provisions mentioned, but it is the sound and common sense interpretation that has been placed upon them by the Board of Railroad and Warehouse Commissioners, and by every other State officer who has had anything to do with the 'administration of the railroad laws, and by every railroad- company in the State, from the time of the passage of the act and the adoption of the Constitution of 1875 down to the time of the institution of this suit, with one exception, and that exception is found in the case of McGrew v. Missouri Pacific Ry. Co., 177 Mo. 533, which will be- considered in a subsequent paragraph of this opinion. I am, therefore, clearly of the opinion that the Act of 1872 was null and void, and had no force or effect at the time of the institution of this suit because of the three reasons before stated
III. Aside from the foregoing observations regarding the interpretation and invalidity of the Act of 1872 in the light of sections 12 and 14 of the Constitution, those sections themselves demand a most careful consideration at the hands of this court.
This brings us to the consideration of whether there is a conflict, or seeming conflict, between those sections of the Constitution, and if so, what is the duty of this court in the premises'!
Section 12 makes it unlawful for a railroad company to charge a greater amount “for a less distance than the amount charged for a greater distance;” and section 14 makes it the duty of the General Assembly “to pass laws to correct abuses and prevent unjust discrimination and extortion in the rates of freight and passenger tariffs on the different railroads in this State.”
. It is to be regretted that the proceedings of the Constitutional Convention of 1875 have never been *577printed, so that the bench and bar could see the reasons given by the framers of the Constitution for the adoption of the different provisions thereof. If we had the time and opportunity to investigate the discussion of those matters, such investigation might prove most instructive; but in the absence of sufficient time and •opportunity to make such an investigation, we must ascertain from the wording of those sections of the Constitution their true meaning.
On the face of the two sections there appears to be a seeming irreconcilable conflict. If section 12 is literally construed, it might be held to. mean that all discriminations, as to the long and short haul, just as well as unjust, under all circumstances and conditions, are intended to be prohibited; in other words, to be a constitutional enactment similar to the Act of 1872. While on the other hand section 14 required the General Assembly to pass laws to correct abuses and prevent unjust discrimination.
If the framers of the Constitution had intended by section 12 to prohibit all species of discrimination, then section .14, requiring the General Assembly to pass laws to prevent unjust discrimination, was not •only a work of supererogation, as before suggested, but also created a manifest incongruity in the organic law. For it could not be true that the lawmakers intended by section 12 to prohibit absolutely all discriminations, and yet by section 14 to authorize the General Assembly to pass laws that would simply prevent unjust discrimination. And the framers of that Constitution must have had in mind not only the Act of 1872, but the decision of Napton, J., in Sloan -v. Railroad, 61 Mo. 31, holding’ that it was lawful for a carrier to make just discriminations where the circumstances and conditions were not the same. And likewise to have known that the Supreme Court of Illinois had recently decided that the Illinois statute, from *578winch, the Act of 1872 was borrowed, was unconstitutional, because it attempted to prohibit just, as well as unjust, discrimination.
But whatever may have been the reason that actuated the members of the Constitutional Convention, the result is that there is an incongruity, an irreconcilable inconsistency, between sections 12 and 14 of article 12 of the Constitution, and there is nothing that can now be done except either to hold that the one cuts the throat of the other, and, therefore, the Constitution itself is a felo de se (O’Brien v. Transit Co., 212 Mo. l. c. 66, and cases cited), and neither obtains, or else have this court to reconcile the two. The two can only be reconciled by holding that prohibitions of section 12 are explained, "modified and made consonant with the common law by the provisions of section 14. In other words, that the lawmakers explained in section 14 that by section 12 they only intended to prohibit unjust discrimination, and that what is an unjust discrimination is a question for the Legislature. This is'perfectly obvious, for the reason that the very same section of the Constitution provides that the Legislature shall “pass laws to correct abuses and prevent unjust discrimination and extortion in the rates of freight and passenger ■ traffic.” Why the latter provision, if section 12 was absolute and self-enforcing, as has been suggested? This idea is strengthened by the fact that section 12 itself also provides that the Legislature shall pass suitable laws to enforce its provisions, thereby showing the intention of the framers of the Constitution to delegate to the Legislature the power to reconcile the apparent conflict that exists between the two sections by enacting statutes which would avoid all extortion and unjust discrimination on the part of railroads, and at the same time protect the interests of the public and the roads themselves by permitting them to make just and reasonable discriminations under the sanction and *579approval of the State Board.of Railroad and Warehouse Commissioners. This view is supported by the decision of the Supreme Court of Illinois in the case cited of C. & A. Railroad v. People ex rel., 67 Ill. 11, and also by the decision in the case of Interstate Commerce Commission v. L. & N. Railway, 73 Fed. 409, construing the Interstate Commerce Act of 1887, wherein it was held that the transportation of goods involves the necessity of doing justice to three parties — the carrier, the trader and the public, the latter being the most important of all, because without that consideration, the carrier and the trader might be able to create a monopoly in respect to the necessaries of life by excluding competition from shippers at a greater distance from the point of consumption.
We conclude, therefore, that when sections 12 and 14 of the Constitution are construed together, it must necessarily be held that the framers of the Constitution did not intend to create any incongruity in the ‘organic law, or intend to prohibit all discriminations in one breath, and only to prohibit unjust discriminations in the next, but that the intelligent lawyers and judges that composed the Constitutional Convention of 1875 knew the prior state of the law, and intended only to legislate against, or provide against, unjust discrimination. Unless this be true, then we must convict those able gentlemen of a most lamentable mistake, and unless this be true, then sections 12 and 14 destroy and nullify each other.
But it has been suggested that in this case the judgment below can be sustained whether the Act of 1872 was repealed by the Act of 1887, or was substituted by the Act of 1887, or not, because section 12 of article 12 of the Constitution is self-enforcing, and any appropriate common law remedy can be invoked to enforce it, and no legislative aid is necessary. This view cannot be maintained, and at the same time give any possible effect to section 14 of article 12 of the *580Constitution and to the Act of 1887 passed pursuant thereto. It cannot he true that the framers of the Constitution intended section 12 to be self-enforcing, and at the same time intended to make it the duty of the General Assembly to pass laws preventing unjust discriminations. The Governor of the State and the General Assembly of the State have obeyed the mandates of section 14 and have passed an act (1887) which carries out that requirement of the Constitution. Now it would be a solecism to say that the framers of the Constitution had enacted a law which would 'be self-enforcing, and which would prohibit all dis'criminations of every kind, under all circumstances •and conditions, and at the same time to say that those learned lawmakers had also devolved a duty on the General Assembly to enact laws that would simply prevent unjust discrimination. It is likewise a solecism to say that one is absolutely prohibited from doing an act, and at the same time to say that he may do the act under certain circumstances and conditions.
The questions here presented for consideration and determination are not foreclosed by the decision •of the Supreme Court of the United States in Louisville & Nashville R. R. Co. v. Kentucky, 183 U. S. 503. These- questions and these complications and contradictions between the acts of 1872 and 1887, and the provisions of section 12 and 14 of article 12 of the Constitution, were not present in that case. The Fourteenth Amendment to the Constitution of the United States guarantees to every person due process of law, and no case can be found decided by the Supreme Court of the United States, and certainly not the case of Louisville & Nashville R. R. Co. v. Kentucky, 183 U. S. 503, that holds that a person can be convicted of a crime for doing an act such as is prohibited by the Act of 1872 and by section 12 of article 12 of the Constitution, and at the same time not be guilty under the provisions of the Act of 1887 and under section 14 of *581article 12 of the Constitution. It cannot he true that: any court could hold that a person could be guilty and not guilty at the same time, guilty under the Act of 1872 and under section 12 aforesaid, and not guilty under the Act of 1887 and under section 14 of article 12 aforesaid. Yet this is the condition presented in. this case, and there is no solution for it that will stand: the test of common sense, reason, logic or precedent,, or that will be sanctioned, in my judgment, by the Supreme Court of the United States, if this case is taken-into that court, as it probably will be, if the decision: is adverse to the appellant herein, .unless this court holds that the Act of 1872 was repealed necessarily by-the Act of 1887, and further holds that what seems to-be an absolute prohibition against all manner of discrimination under section 12 of article 12 of the Constitution is modified and explained by the provisions of section 14 of article 12 aforesaid; in other words, that only unjust discriminations are forbidden under, the Constitution and laws of this State.
IV. Having decided in paragraphs one and two-of this opinion that the Act of 1872 is unconstitutional and void, and also by the latter that said sections 12 and 14 of the Constitution are not self-enforcing, we will now determine whether or not there are any valid laws in force which give efficiency to those sections.
Respondent bases his right of recovery upon sections 1126 and 1160' of Revised Statutes of 1899', and. contends that they put in operation those sections of the Constitution, and that they are in full force and effect; while upon the other hand appellant retorts by saying that said sections, which are sections 1 and 4 of the Act of 1872, brought forward and copied without; change in the various revisions of the statutes front the time of their passage down to and including the-Revised Statutes of 1899, and are there numbered as-sections 1126 and 1160, are unconstitutional and void 5, *582and that the mere fact that they have been brought forward and copied into the various revisions did not breathe into them new life and validity.
If we correctly understand learned counsel for respondent, he does not seriously contend that the Act of 1872 when enacted was constitutional and valid, but contends that sections one and four thereof, which are sections 1126 and 1160' of the Revised Statutes of 1899, were re-enacted by an Act of 1879 revising* and amending chapters 63, 61, 65 and 66 of the General Statutes of 1865, and by incorporating therein the entire Act of 1872 and passing the whole as an amended and revised bill.
The opinion of 'Valliant, P. J., sustains this contention of respondent by'holding that “the General Assembly of 1879 passed an act entitled £An Act to revise and amend chapters 63, 61, 65 and 66 of the General Statutes of Missouri concerning corporations,’ approved May 31, 1879, in which the sections we are now considering were included. Chapter 63 of the General Statutes of 1865 was one of the chapters so revised and amended and was entitled, 1 Of Railroad Companies.’"This section was germane to the subject of the chapter and was an amendment to it. The section does not rest therefore on the mere act of the legislative committee carrying it forward as in the case cited.- [Brannock v. Railroad, 200 Mo. l. c. 568.] ”
I have two criticisms to suggest regarding that clause of the opinion of my learned associate. First, that while section 1 of the Act of 1872 was properly reenacted in 1879 and is now section 1126 Revised Statutes 1899, and upon which this suit is based, it was repealed by an Act of 1887. Second, that said sections 12 and 11 of the Constitution are not self-enforcing, and there is no statute or common law in force which prohibits reasonable and just discrimination by railroad companies in the transportation of freight and passengers over their roads under the direction and ap*583proval of the Board of Railroad and Warehouse Commissioners; hut upon the other hand, the Act of 1887 expressly, authorizes them to do so.
' I will discuss these propositions in the order stated, hut before doing so I wish to state in the first place that I am at a perfect loss to understand the motive which induced the plaintiff to institute and prosecute this suit, for the reason, as shown by the freight schedules, made and promulgated by the State Board ■ of Railroad and Warehouse Commissioners (which are public records and of which we have the right to take judicial notice), the rates with which he was charged were, in every instance, so far as I have been able to ascertain, less than the legal rates, and were evidently made for the purpose, among others, of enabling him to sell his coal in competition with the coal of mines located on other roads and in other states. If the reduced rates of which he complains had not been made by defendant he would not have been able to have marketed his coal, mentioned in this suit, in competition with coal from other mines, and would therefore have lost that trade, as will be presently shown. The defendant was also benefited by said reduced rates or it would not have made them, for the reason that it was thereby enabled to.secure the transportation of said coal which it otherwise would not have been able to have done on account of the competition of other mines located on other and shorter roads. Clearly, this was the case at Boonville, where coal was going there from Lowery City and Brownington over other roads; at Sweet Springs, where coal was going from Higginsvillle; and Joplin, where coal was going from various mines located in the State of Kansas. If the defendant company had not made the reduced rates complained of it would have meant that the mines located on other roads and in different states would have monopolized the coal business at the points to which the reduced rates were made, and that *584of course would have worked injury on those .communities as well as upon the plaintiff by limiting his mine output, and upon the defendant by depriving it of the transportation of the coal, about which this suit was brought.
Clearly, the plaintiff was not damaged by those reduced rates; but, upon the contrary, by enabling him to sell at the places named, the output of his mines was greatly increased, and the cost per ton for mining was doubtless reduced, and consequently he was thereby enabled to get a higher price for his coal than he could have received had his output been curtailed to the extent of the quantity sold at said competitive points.
Since the defendant had to run its trains any way, and as it could not, as before shown, secure the transportation of this coal unless it reduced the rates to those competitive points, it was benefited by the business so long as the rates which it received were more than the expense of the transportation.
This record shows that these reduced rates enabled the plaintiff to do business at those competitive points against mines located on other roads and in other states, and if like reductions aré to be made to all other, or non-competing points, the defendant could not afford to make the reductions to plaintiff and others to the competitive points, for the reason that the loss incident to the general reduction. would be much greater than the gain the defendant would derive from the plaintiff at the competitive points on account of the reduced rates. By consulting the geography of the State and the freight rates established by the State Board of Railroad and Warehouse Commissioners, it wili appear that the towns to which the reduced rates were made for the benefit of the plaintiff would get their coal from other mines over other roads at a less cost; and-no other point or person located on the Missouri Pacific;could justly claim that he or it was injured by the company giving the plain*585tiff the reduced rates mentioned, for the reason that those competitive towns would have the same rates from other roads whether the defendant made them or not; consequently no coal mine or other industry was or could be injured by the reduced rates made by the defendant to said competitive points.
But on the other hand, by the reduction of coal rates to the points mentioned, the My rick coal mines were benefited, and the plaintiff was thereby enabled to keep more men employed at his mines, and his output was greatly increased, and consequently his cost per ton was materially reduced and he was thereby better enabled to sell coal at a profit than he otherwise would have been. So was the consumer or industry at the competitive points benefited by reason of the .competition caused by plaintiff’s coal; and the defendant was also benefited by getting the transportation of all coal shipped by plaintiff to those points. All of these are State institutions, which should be encouraged and supported by all legitimate means.
By again consulting the geography of the country, it will-clearly appear that the Joplin coal rates complained of were made in competition with the coal and coal rates from the Cherokee and Pittsburg District of Kansas; and if our statute which provides that no-less charge shall be made for a longer than a shorter haul were to prevail, as contended for by counsel for plaintiff, it would mean in many cases that the industries in other states and foreign- transportation companies would thrive and wax fat at the expense of Missouri industries and carriers.
The close proximity of the Cherokee and Pitts-burg coal district of Kansas to Joplin and neighboring-Missouri towns is such that the Missouri coal mines could not market their products in any such town if it were not for said reduced rates, or if the long and short haul clause of the statute, as understood by some of my associates, was enforced. So long as no *586one in Missouri is injured, our industries should certainly be enabled to do business even in all competitive towns and cities of this State as against outsiders, which clearly they could not do if the construction placed upon our statutes by counsel for plaintiff is correct.
We know from the common knowledge that the cost of mining coal in this State far exceeds the cost of mining it in the State of Illinois, and if Missouri coal mines are not given reduced rates to Boonville and other competing points, Illinois coal will surely supply their needs. This great difference in the price of mining coal in Illinois as compared with mining it in Missouri enables the former with much higher railroad rates to sell its products in this State even against the legal freight rates made from the Missouri mines. The Missouri mines, therefore, in order to be enabled to do any business in many towns of this State competing with the Illinois coal, it is necessary for the railroads to make them a lower rate than the legal rate; for instance, by an examination of the state and interstate rates it appears that the rate from the Illinois, coal fields to Boonville is $1.95 per ton and to Marshall $2.10 per ton. Still this record shows that defendant has made a rate of forty cents per ton on coal from Myrick to Boonville, presumably in order to enable it to haul some of the coal that is consumed at the latter place. Otherwise, the Illinois mines would supply that city’s entire demand.
Of course, it goes without argument that the defendant, like other railroad companies, is desirous of getting as high freight rates as it possibly can. Self-interest prompts it to do so, and when a railroad, therefore, voluntarily reduces the rates prescribed for it by statute or by the railroad commissioners, it must mean that it cannot otherwise procure the freight for transportation. Railroad companies understand the commercial conditions governing the situation and that *587those conditions will not admit of transportation by them unless at reduced rates. Besides that, they understand that the communities they serve will be deprived of the advantages which flow from the successful operations of their industries. By making special or such reduced rates to meet those commercial conditions, the competition o’f other markets and of like or other commodities, they are conferring substantial benefits on those communities. If such reduced rates are not made, in all probability the business will not be forthcoming. Under such circumstances, it seems to me that carriers are justified in making such rates as will enable those communities to do business in competitive markets, provided there is no loss to them in the transaction; and it can be readily understood that if such reduced rates do not affect or influence the rates on other existing traffic, they can' sometimes and under certain conditions be made very low before a loss will result therefrom.
Where a railroad plant and all facilities are already ample and sufficient to enable it to transport such freight without further expenditures, then it will be seen that the expense incurred in this particular transportation would not be in proportion to that of its regularly established business. The difference in the rail carriers’ rates can sometimes be very great and it cannot be justly said that some are unreasonably high, or that others are unreasonably low, for the reason that the expense which a traffic under certain conditions adds to the already existing expense may be covered by very low rates without injury to any community or locality, and yet the rates which it may be necessary to charge upon other traffic must of necessity be higher so that the entire cost may be covered and the property be safely and successfully operated.
It is a common complaint made by the ordinary uninformed man, that the reduced competitive rates on the through rates which may be lower for a longer *588than for a shorter haul produce a loss to the railroads which they have to recoup or make hack by charging higher rates for shorter hauls; that is to say, that they do the business in such cases for less than they can afford to do it for were they not able to make an unreasonably high profit from their local business. That is an erroneous idea. If the railroads did not take the competitive business at the low rates, it would mean they would not procure any of that business, and consequently they would lose just so much revenue as would be derived from its transportation had they procured it. For instance, suppose a competitive through business was offered at ten cents a hundred and that the same carrier was charging twenty cents a hundred for the short haul or intermediate points. Under such conditions it must take the through competitive business at ten cents or not take it all, for the reason that other roads which have shorter routes would take the business for the ten cents, which would be their legal local rate. The intermediate stations do not complain of the reasonableness of their rates, because the longer competing line does not take the through freight, yet they do not see that by doing so it would enable it to carry local shipments at a lower rate. By taking the business at the ten-cent rate there may not be as much profit to the longer road as there would be if it charged and could receive the local higher rates, but by reason of the fact that there is some profit in the business at .the ten-cent or competitive rate, it can be justly said that such business adds - to the receipts of the company more than to its expenses, and for that reason it is justified in engaging in said through business, provided by so doing it does not injure or affect the intermediate shipper or his business upon which the higher rates are charged. By reason of there being some profit in the business, if profit it may be called, it makes the cost of the entire business of the company less *589per unit and it is thereby better able to give lower rates to the intermediate points than it otherwise would be.
I gather from the reports of the Interstate Commerce Commission that approximately the following divisions may be made of the entire expense of maintaining and operating the railroads of. the United States. One-third to pay interest on stocks and bonds; another third to be expended in maintaining stations and station grounds, salaries of the general officers, legal officers, division officers, station agents, clerks, telegraph operators, bridge men, section men, and all that class which it is necessary to retain whether the competitive through business is taken or not. In these, two-thirds of the expense which might be called a fixed expense goes on whether the railroad hauls ten million or thirty million tons of freight. The remaining third of the expense might be termed the movement expense, which consists of the wages of engineers, firemen, conductors and brakemen, locomotive and car repairers,, fuel, oil, waste, water, the wear and tear of rails, decay of ties, etc. As the competitive through traffic is offered at certain specified rates made by influences beyond the control of the carrier to change or affect, the question to be first determined is — will it pay this so-called movement expense? The other two-thirds of the expense of course goes on whether the through traffic is taken or not. Any sum received in excess of this movement expense is just so much more than can be applied toward meeting the fixed two-thirds expense, and the road is thereby enabled to make the burden lighter for the local or non-competitive traffic. The actual expense therefore attendant upon the transportation of competitive traffic which the railroad can secure only on condition that it charges certain specified rates made for it by outside influences entirely beyond its power to control, change or affect is the actual outlay which its movement necessitates.
It is thus seen that if the railroad plant and other *590facilities are ample to enable it to transport suck traffic without further outlays, the expense incurred will not be in proportion to that of its regularly established business, nor will the movement of competitive freight always incur the entire expense included in the several items before mentioned comprising the movement expense.
The movement expense of such traffic might be decreased materially according to the different conditions or exigencies that might arise. For instance, if the traffic was offered at a time when empty cars had to be returned, which at certain seasons of the year amount to thousands, the item of wages, fuel and other supplies, together with repairs of locomotives and cars, would not properly enter into the cost. The expense incident to these would be largely incurred with the movement of empty cars as well as with the loaded ones. Again, if the preponderance of tonnage was in the direction opposite to that which the competitive business was destined and such business enabled the carrier to load trains that would otherwise be hauled light or empty, the expense of the new competitive business would be inappreciable. Nor would this competitive business entail a proportionate share of the large expense of maintaining the track,. bridges and culverts, which constitute a large part of this third of the movement expense. The wear and tear of these are not in direct ratio to the tonnage transported. The wear and deterioration caused by the action of the weather, the repairs, renewals and washings of embankments, of the masonry, ballast and road crossings, the decay of ties, the bridges and fences would go on just the same whether this competitive business was or was not hauled, so that it would not be proper to charge such extra business with a tonnage proportionate to the expense of their maintenance.
Bearing in mind those many influences, it will be observed that many of the items comprising the move*591ment expense already incurred by tbe then existing business would not be changed by the addition of the new competitive traffic, and that the entire expense of its carriage would in many cases be inappreciable.
From what has been said it will be seen that the difference in the rates of railroads can sometimes be very great, and yet it cannot be justly said of them that some are unreasonably high or others unreasonably low; that the expense which a traffic under certain conditions adds to the already existing expenses of a railroad may be covered by very low rates without injury to any community or locality, and yet the rates which it may be necessary to charge upon other traffic of necessity be higher in order that the entire cost may be covered and the property be safély and, successfully operated. Any profit, therefore, which may be in the transportation of competitive traffic— and from what has been said as to the expense, we think it would be conceded that the rates would have to be exceedingly low before there was no profit — relieves the local traffic from so much of the burden of meeting the fixed steady expense, and so long as the receipts from this competitive traffic are in excess of the expenses incurred for its transportation, there can be no such thing as recouping loss on low rate competitive business by charging higher rates on lo-, cal traffic, no matter how large a difference there may be betweén the two rates.
We might cite a case in point, which might arise, wherein a carrier by the reduction of rates enables an industry on its line to carry on its business by meeting the new commercial conditions that may spring up from time to time. For instance, the piping of gas and oil from the Kansas and Oklahoma fields to Kansas City and St. Joseph threatened to displace in those cities the sale of Missouri-mined coal, especially that mined at remote points from those cities. To relieve the situation the railroads came to the aid *592of the coal mines and reduced the rates in some cases to nearly one-half the figures of the legal maximum rates, and thus enabled these mines to continue their business in those cities, which otherwise could not have sold a pound of coal in either of those markets. Nor could any intermediate station claim it was unjustly discriminated against by this act of the railroads; and if the railroads were obliged to make similar rates for corresponding distances on other portions of their lines, then, of course, it would mean that these reduced rates would have to be withdrawn, because the small profit derived from such reduced rates to those cities would be more than offset by the loss they would sustain by the reduced rates at the other places. In such case the coal mining industries of Missouri would be hurt — the railroad industry in so far as the coal traffic from those mines is concerned would be killed — the Kansas City and St. Joseph industries and other consumers would be crippled, but the Kansas and Oklahoma industries would be benefited by having a monopoly of the fuel business in those cities, and would command thereby higher prices from the consumer than they could otherwise get.
By consulting the Missouri Pacific time-tables and the Interstate Commerce reports, it will be seen that the defendant operates about sixteen hundred miles of railroad in the United States, and that about one-half of that mileage runs at right angles to its main lines. Commercially, the city of St. Louis chiefly serves the towns embraced within one-half of defendant’s entire mileage. The same time-table and reports show that the distance from St. Louis to the principal towns on the lines via the Missouri Pacific is longer than that of any other road which runs from that city direct to them. If, therefore,' the defendant desires to engage in the traffic of such towns, it will be obliged to make the same or lower rates to them as are made by the shorter-distance lines; but if it must *593observe the long and short-hanl principle of the statute at places not reached by the shorter lines, it may find that the loss from a reduction of rates to the noncompetitive points would be greater than the gain it hoped to derive from the business of the towns reached by the shorter lines — in which case it could not afford to engage in the business as against the shorter lines’ rates. A case in exact point may be suggested. The distance from St. Louis to Springfield via the Frisco road is two hundred and thirty-nine miles, and via the Missouri Pacific it is four hundred and ninety-seven miles. In order to engage in the Springfield business, the defendant would be obliged to make rates not to exceed those charged by the Frisco for two hundred and thirty-nine miles: but more than this, if the long and short-haul principle, as announced by counsel for plaintiff, were to be enforced, it would have to reduce the rates back two hundred and fifty-eight miles, or until it came to a station on its line which is two hundred and thirty-nine miles distant from St. Louis. The question would then be presented as to whether it could not better afford to give up the Springfield business wholly to the Frisco rather than reduce its rates over a two hundred and fifty-eight mile stretch of country. It must be readily seen that no one would be benefited by the latter course; St. Louis and Springfield would practically have but one road to serve them ■ instead of two, and the defendant would sustain the loss of the share of the business it might otherwise control to the city of Springfield. That is but one of the many like eases which would be produced in this State if the long and short-haul rule is to be observed, namely, the same situation would be produced at Jop-' lin, Carthage, Aurora, Lamar, Nevada, Charleston, Delta and many other places too numerous to mention, if we should go to other roads. On the other hand, no ’ one is or can be injured by the longer line being al*594lowed to engage in the business at such competitive points reached by the shorter line. The intermediate stations are not unjustly discriminated against or injured, for the reason that the lower rate would be effective by the shorter line to all junction -stations whether the longer line chose to charge them or not.
The courts and Interstate Commerce Commission have rendered many decisions, which will be presently noted, on similar questions to this, and have invariably held that the discrimination must be unjust before the railroad is prohibited from making the lower rate for the longer haul.
Counsel for defendant in arguing this cause stated that if the long and short haul of the statute as understood by counsel for plaintiff was observed, the annual loss of about $600,000 would be entailed upon his client.
While that statement is no part of the record, yet we may use it for the purpose of illustrating the question in hand, and the great loss that would be visited upon defendant if that rule is to be enforced; and. if capitalized at four per cent it would be equivalent to wiping out of existence about $15,000,000 worth of defendant’s property, and that too with no corresponding benefit to any one, but a positive injury to the competitive towns, as before shown. And that is not all, the same proportionate loss would be entailed upon all other railroads in this State.
The necessity of charging higher rates per mile over some divisions of a railroad than over others is. recognized by the State Railroad and Warehouse Commissioners. In promulgating its schedule of maximum-freight rates, effective March 1st, 1904, the commission authorized the railroads of this State to charge-higher rates per mile between St. Louis and Kansas City on all roads located south of the Missouri Pacific’s main line than on those roads situate north thereof. Any one can readily understand that it costs-more to construct and operate a railroad in some dis*595tricts of the State than in others, and it is but just that they should be compensated by charging higher rates in those districts.
The foregoing observations have been made for the purpose of showing that there is nothing connected, with the construction and operation of a railroad which, is inconsistent with the* idea that just and reasonable' discrimination may be made by a railroad company in the transportation of freight and passengers without doing injustice to or inflicting injury upon any shipper or community in the State, and for the purpose of‘ showing what great loss would be entailed upon the-railroads of the State and the public at large if -such discrimination is not permitted. It should be borne in mind that the framers of the Constitution, as well as-the Legislature which enacted the statute in question,, were perfectly familiar with the then existing condition of things before mentioned, when the former framed the organic law of the State, and when the latter enacted said statute, and certainly they must have acted with that condition of things in mind; and to charge either of those august bodies with a design to prevent all discrimination, just as well as unjust, under the circumstances, would do it an injustice and reflect upon its honesty and intelligence.
Returning from this divergence to the two propositions previously stated. Standing alone the Act of' 1872 and section 12 of article Í2 of the Constitution prohibit all kinds of discrimination as to long and short hauls, just as well as unjust, and therefore change-the common law in this respect.
The Act of 1887, as shown by its title, as well a© its words and context, and section 14 of article 12 of the Constitution, are aimed only at unjust discriminations, and recognize that it is reasonable, proper and lawful to charge a different or greater compensation where the short haul differs in' circumstances and conditions' from the long haul, and also where the short'. *596haul is not in the same direction, on the same line with the long haul. It is manifest, therefore, that two incompatible, inconsistent and antagonistic provisions of law are to be found in the Act of 1872 and section 12 aforesaid on the one side, and in the Act of 1887 and in section 14 of the Constitution aforesaid on the other side. Can these conflicting statutes and provisions of the Constitution be harmonized, and if not which must prevail?,
As to the statutes it is an invariable rule of law that if there is a conflict, the later one must prevail, for that is the last expression of legislative will. As to the Constitution a different question arises, for both provisions were adopted at the same time, and therefore both must be construed together, and all seeming conflict must be reconciled by construction. Otherwise, in cases of irreconcilable conflict, both would have to fail.
The framers of the Constitution of 1875 must be presumed to have known of the existence of the Act of 1872. Those learned gentlemen undertook for the first time to' have the organic law treat of this subject, and they expressed their will in sections 12 and 14 of article 12 of the Constitution. From 1872 and from 1875 the lawmakers were silent in respect to this matter. In 1877 the Governor of this State called the attention of the Genera] Assembly to these questions. The regular session did not act, and thereupon the Governor called a special session of the Legislature for the express purpose of legislating as to these questions, and that special session passed the Act of 1887. It was intended to be and purported to be a complete code of regulations pertaining to these questions. It was passed under a general law entitled, “An Act to Regulate Railroad Companies.” It did not amend the Act of 1872, or refer to it in any way. Great stress is laid upon section 21 of the Act of 1887, wherein it is said: “This Act is not intended to repeal any law *597now in force, unless in direct conflict therewith, hut is intended to be supplemental to such laws.”
But it will be observed that such language was wholly unnecessary and of no force, for if the Act of 1872 is in conflict with the Act of 1887, the Act of 1872 would be repealed by necessary implication, and the court would so hold whether the Legislature said so or not, and it was not within the power of the Legislature to make the Act of 1887 simply supplemental to the Act of 1872 if the Act of 1872 was in conflict with the Act of 1887. Those are questions of law to be decided by the courts and not by virtue of any expression of intention of the Legislature, for it is not a question of intention, but a question of conflict, and therefore a question of law.
So that the legislative declaration in section 21, instead of having any controlling effect upon the de*cision of these questions, shows on its face that the lawmakers themselves intended the Act of 1887 to be the law of Missouri, and that the law of 1872 should be considered repealed wherever it conflicted with the Act of 1887. At any rate the courts must decide what effect the Act of 1887 had on the Act of 1872.
The Act of 1887 necessarily repeals the Act of 1872, because the Act of 1872 prohibits just, as well as unjust, discriminations, and by section 1160, Revised Statutes 1899, punishes a. violation of the act with a fine of one thousand dollars. On the other hand, the Act of 1887 simply prohibits unjust discrimination, and the charging of a larger sum for a short haul than is charged for a long haul, but qualifies that by limiting it to cases arising “under similar circumstances and conditions” and “over the same line in the same direction.” Section 12 of the Act of 1887 punishes a violation of that act by a fine of five thousand dollars. In addition to all of which, a fine provided under the Act of 1872 goes to the person aggrieved, whereas under section 14 of the Act of 1887 the five *598thousand dollar fine goes to the school funds of the county where .sued for. Moreover, under the Act of 1872 the person aggrieved is authorized to maintain the action, whereas under the Act of 1887 the action must Be maintained in the name of the State of Missouri qt the relation of the Board of Railroad Commissioners to the use of the school funds. And the person aggrieved is only entitled under section 10 of the Act of 1887 to recover three times the amount of the actual damages sustained by him, with a reasonable attorney’s fee.
The result of all of which is that it is impossible to reconcile the Act of 1872 and the Act of 1887, both as to substance and as to procedure. For it cannot be true that it is an offense against the laws under the Act of 1872 to discriminate in any respect under any -circumstances, and at the same time be true that under the Act of 1887 there may be a discrimination where the circumstances are not similar, where the conditions are different, or where the long and short haul are not in the same direction. And likewise it cannot be true that a railroad company can be fined one thousand dollars under the Act of 1872 to be paid to the party aggrieved for making any kind of a discrimination under any circumstances whatever, and at the same time not be guilty of any offense under the law of 1887, because the circumstances and conditions were different and the hauls were not in the same direction. It cannot be true that there can be two laws on the same subject, one of which makes an act a crime under all circumstances and conditions, and punishes it with one fine, and the other makes only certain qualified acts criminal and punishes them with a different fine, to go to a different purpose, and recognizes that other acts may lawfully be done.
In other words, it cannot be true that the Act of 1872, which prohibits all discriminations, just as well as unjust, under all circumstances and conditions, can *599be reconciled with tbe Act of 1887, which does not prohibit all discriminations, bnt only unjust discriminations, and then only when the circumstances and conditions were the same and when the haul was in the same direction. Or otherwise stated, it cannot be true that a person can be guilty under one act and innocent under the other. Yet such is the result unless the Act of 1872 is repealed by the Act of 1887.
It is thus seen that the Act of 1887 covers the entire field of discrimination in the transportation of freight and passengers by railroad companies, the tolls and compensation to be charged therefor, and prohibiting a greater charge for a shorter haul than for a longer one, under the same conditions; and not only prescribes the penalties to be imposed for the violation of the act but the manner of collecting all damages done to persons in consequence of such violation is prescribed also. Under this state of things this court has repeatedly and properly held that “a statute is impliedly repealed by a subsequent one revising the whole subject-matter of the first, and intending to substitute the latter for the former.” [State ex rel. v. Patterson, 229 Mo. 364; State v. Hickman, 84 Mo. l. c. 79; State v. Roller, 77 Mo. l. c. 129; Smith v. State, 14 Mo. 152; State v. Summers, 142 Mo. 586, l. c. 595; Yall v. Gillham, 187 Mo. 393; Meriwether v. Love, 167 Mo. l. c. 521.]
By closer analysis of the Act of 1887, which con-. sists of twenty six sections, it will be more clearly seen that the subject of said section 1126 was not only fully covered thereby, but all other phases of discrimination were legislated upon, and the most drastic penalties imposed. Section 4 of the Act of 1887 clearly refers to the short and long hauls mentioned in said section 1126, and under the above rule of construction it must be held that the former by implication repealed the latter. Said section 4 of the Act of 1887 (Laws 1887, Ex. Sess., p. 17), is as follows: “It shall be unlawful *600for any such common carrier to charge or receive any greater compensation in the aggregate for the transportation of like kinds of property under similar circumstances and conditions for a shorter than a longer distance over the same line in the same direction; provided, however, that nothing contained in this section shall apply to the carriage, storage or handling of property, either free or at reduced rates, for the United States, for the State of Missouri, or for any fair, exposition, religious, scientific, benevolent or charitable purposes.” These two sections are directly in conflict with each other. Section 1126 prohibits a railroad company absolutely, and without an exception or qualification, from charging more for a shorter than a longer haul on any part of its line in any direction, while section 4 of the Act of 1887 is not so sweeping and general in its provisions, but only makes it unlawful for railroad companies to charge a greater compensation for the transportation of property of like kinds under similar circumstances and conditions for a shorter than for a longer distance, over the same line in the same direction. I have italicized the provisions of the latter section which jarincipally differentiate the two sections. Under section 1126 it would have been unlawful to charge a greater toll for the transportation of property of like kinds under dissimilar circumstances and conditions for a shorter than for a longer distance over the same line in the opposite direction, but clearly the language of section 4 would permit such greater charge, provided the conditions are dissimilar and the shipments are made in the opposite direction. It is thus seen that the Act of 1887 not only revises the entire Act of 1872 and the various sections of the various revisions, which are copies thereof, but it is also in direct conflict with and repugnant thereto.
As before stated, this court has repeatedly held that a later statute will repeal by implication a prior one, where the repugnancy between them is such that *601they cannot stand together or be consistently 'reconciled. [Glasgow v. Lindell, 50 Mo. 60; Pacific R. R. Co. v. Cass County, 53 Mo. 17; State ex rel. v. Dolan, 93 Mo. 467.]
If section 1126 is still the law of this State, railroad companies cannot lawfully do the things which section 4 of the Act of 1887, which is the .same as section 1134 of Eevised Statutes of 1899, expressly authorizes them to do, to-wit, to charge a greater toll for shorter hauls than for longer ones, when the conditions are dissimilar and the shipments are made in opposite directions; but if the rule announced in the cases last cited is sound, then section 1126 and not 1134 is repealed by necessary implication. And this conclusion is in harmony with another line of decisions of this court which hold the last expression of the Legislature upon a given subject should prevail in case of a conflict between it and a previous statute. [State ex rel. v. Heidorn, 74 Mo. 410.]
Again, if it was not the intention of the Legislature to repeal the Act of 1872 (sec. 1126, E. S. 1899), which prohibited the charging of more for a shorter than a longer haul in any direction, why did it provide against the charging of more for a shorter than a longer haul when the shorter haul was embraced in the longer one? Section 1126 by its terms prohibited the charging of more for a shorter than a longer haul in all directions, and therefore prohibited the charging of more for a shorter than for a longer haul when a shorter haul was embraced in the longer haul. Section 1134 was superfluous if section 1126 remained in force.
The principle that when tbe mind of the Legislature is directed to a particular subject, its enactment must be presumed to be exhaustive of the legislative intent with respect thereto, should obtain. Any other conclusion would convict the Legislature of passing a vain and foolish act.
The second reason why I cannot concur with the *602opinion of my learned associate is that sections 12 and 14 of article 12 of the Constitution are not self-enforcing, hut expressly provide that the Legislature should enact suitable laws for the purpose of carrying into effect those provisions. To hold otherwise would be equivalent to expunging that mandate from those sections. Under that constitutional mandate, there has been but one act passed by the Legislature to give force and effect to those constitutional provisions which is now-upon the statute books, and that is the Act of 1887, one section of which is the same as section 1134 of Revised Statutes of 1899. This section, as before stated, does not prohibit railroad companies from charging more for a shorter than for a longer haul, where the conditions are dissimilar, and the shipments are made in different directions.
, This same question has many times been before the Interstate Commerce Commission, our Railroad and Warehouse Commissioners, as well as before various Federal courts. The former and the latter have invariably placed the same construction upon the long and short-haul clause of the Act of Congress covering the same question, as will appear from the following citations, that the Railroad and Warehouse Commissioners of this State have uniformly placed upon the statute under consideration.
The possibility that a discrimination may be just is recognized by section 2 of the Act of Congress, in declaring what shall be deemed unjust. [Interstate Commerce Commission v. Railroad, 145 U. S. 263.]
It was not the purpose 'of the Act to prohibit jjist discrimination in the transportation of persons or property. [United States v. Railroad, 127 Fed. 785.]
The object of section 2 of the act is to prevent one shipper from getting advantage over another in the matter of rates’, only where both make a substantially like offering to the carrier. [United States v. Hanley, 71 Fed. 672.]
*603.When traffic is not of like kind, or when the service is not like and contemporaneous, or when the transportation is not rendered under substantially similar circumstances and conditions,' difference in charges does not constitute unjust discrimination within the meaning of section 2 of the act. [Interstate Commerce Commission v. Railroad, 43 Fed. 37, 47.]
The language of the act recognizes that a uniform rate between different shippers is not always possible or proper; that the time of service, the kind of traffic, and the circumstances and conditions under which it is transported, may materially change the just obligations and duties of the carrier to its patrons. [United States v. Hanley, 71 Fed. 672.]
A carrier subject to the act is only bound to give the same terms to all persons alike under the same conditions and circumstances. Any fact which produces an inequality of condition and a change of circumstances justifies an inequality of charge. [Interstate Commerce Commission v. Railroad, 141 Fed. 1003, 1014.]
In fixing rates for differing but analogous services, the carrier has the right to exercise an honest discretion. Trifling differences of cost or character of the services rendered do not justify disparity of charges; but where the differences are substantial, either in the work to be performed, or in the utility and value to the persons served, a fair relation of rates meets the carrier’s obligation. [Carr v. Railroad, 9 I. C. C. R. 1, 11.]
Discrimination to be unlawful must be unjust. All discriminations between persons are not unlawful under section 2 of the act, but only such as are 1 ‘ unjust. ’ ’ [Interstate Commerce Commission v. Railroad, 43 Fed. 37, 47.]” It is not all discriminations that fall within the inhibition of the act, but only such as are unjust or-unreasonable. [Interstate Commerce Commission v. Railroad, 145 U. S. 263, 276.]
*604What constitutes unjust discrimination? In order to constitute unjust discrimination under section 2 of the act, the carrier must charge or receive directly from one person a greater or less compensation than from another, or must accomplish the same thing indirectly hy means of a special rate, rebate or other device; but in either case it must be for a “like and contemporaneous service in the transportation of a like kind of traffic, under substantially similar circumstances and conditions.” [Interstate Commerce Commission v. Railroad, 145 U. S. 263, 281.]
What matters may or may not be considered in determining the question of discrimination? The provision that discrimination must not be unjust necessarily implies that strict uniformity is not to be enforced; but that all circumstances and conditions which reasonable men would regard as affecting the welfare of the carrying companies, and of the producers, shippers and consumers, should be considered by the commission in enforcing the provisions of the act. [Tex. & P. Ry. Co. v. Interstate Commerce Commission, 162 U. S. 197, 219.]
Discrimination must consist in the doing for or allowing to one party or place what is denied to another; it cannot be predicated of action which in itself is impartial. [Crews v. Railroad, 1 I. C. C. R. 401, 1 I. C. C. R. 703.]
When through rates for a longer distance are controlled by competition between carriers, the reasonableness of local rates not so affected is not to be determined by comparison with the through rates. [Charlotte Shippers Assn. v. Railroad, 11 I. C. C. R. 108.]
Rates from St. Louis, Nashville, Chattanooga to Hampton, Fla., were higher than rates from the same initial points to Palatka, Fla., the distance to Palatka being greater than that to Hampton. The rates to Palatka were fixed to meet competition at that point. *605No such competition existed at Hampton. Held that the reasonableness of the Hampton rates were not' to be determined by comparison with the rates to Pail atka. [Interstate Commerce Commission v. Railroad, 120 Fed. 934, refusing to enforce order of Commission, 8 I. C. C. R. 503.]
The proportions received by the inland carriers of through rates on import traffic from foreign ports to inland points in the United States were considerably lower than corresponding rates on domestic traffic from ports of entry to the same inland points. The through rates were controlled by competition at the foreign ports. The commission, without considering such competition, ordered the inland carriers to cease carrying imported traffic at any other than the rates established on domestic traffic. Held, that the effort of the commission to deprive inland consumers of the advantage of through rates, thus to give an advantage to traders and manufacturers at the large seaboard cities, would seem to create a mischief which the act was intended to remedy; that among the circumstances and conditions affecting rates which the commission should have considered, as well in the case of traffic originating in foreign ports as that originating within the United States, was competition; that the acceptance of proportions of the through rates which were lower than the corresponding domestic rates was not an act of unjust discrimination. [Texas & P. Ry. Co. v. Interstate Commerce Commission, 162 U. S. 197, reversing I. C. C. v. Texas & P. Ry. Co.]
In deciding whether the proportions of through rates on import traffic, accepted by the inland carriers-for haul from ports of entry to destination, were unlawful as compared with higher inland rates on domestic traffic between the same points. Held, that the commission should have considered the following facts: That the acceptance of import traffic enabled the carriers to take advantage of the preponderance of empty *606car movement from ports of entry, thns securing traffic for which any rates might he regarded as remunerative; that the through rates were affected by competition, both of ocean and inland carriers; that the through bills of lading furnished collateral for the transaction of business and took from the shipper and consignee the care as to intermediate charges and cost of handling, thus helping to swell the volume of business; that the tendency of the through billing was to eliminate the obstacles between producer and consumer. [Texas & P. Ry. Co. v. Interstate Commerce Commission, 162 U. S. 197, 206.]
The fact that a rate in one direction is materially higher than the rate on the same class of traffic over the same line between the same points in the opposite direction does not establish prima facie the unreasonableness of the higher rate. [MacLoon v. Railroad, 9 I. C. C. R. 642.]
The fact that a rate over a road or line in one direction is materially higher than the rate on the same class of traffic over the saíne road or line and between the same points in the opposite direction, does not, as in case of hauls over the same line in same directions, establish prima facie the unreasonableness of the higher rate. [Duncan v. Railroad, 6 I. C. C. R. 85, 103, 4 I. C. R. 385.]
Rate of 62 cents on “wool in the grease” was in effect from Philadelphia, Pa., to Port Wayne, Ind. Rate on the same commodity from Port Wayne to Philadelphia was only 34 cents. The movement of wool was almost wholly toward the East. Competition to secure east-bound traffic was therefore- more intense than that resulting from efforts to secure occasional shipments to the West. On complaint that west-bound rate was unreasonable as compared with- east-bound rate, held, that the -circumstances were so dissimilar that the reasonableness' of the former rate was not to *607be determined by comparison with the latter. [Weil v. Railroad, 11 I. C. C. R. 627.]
"Where, by reason of competition, rates to a longer distance point are lower than those in effect to a shorter distance point on the same line, the shorter distance being included within the longer, the reasonableness of the rates to the shorter distance point cannot be determined on mere comparison with those in effect to the longer distance point. [East Tennessee, V. & G. Ry. Co. v. Interstate Commerce Commission, 181 U. S. 1.]
The mere fact that rates to a longer distance point, which are controlled by competition, are reasonable, cannot be availed of as a ground for holding that rates to shorter distance points on the same line are unreasonable. [Interstate Commerce Commission v. Railroad, 88 Fed. 186, 195; affirmed 93 Fed. 83, 35 C. C. A. 217; 181 U. S. 29, refusing to enforce order of Commissioner, Rd. Com. of Ga. v. Clyde S. S. Co., 51 I. C. C. R. 324, 4 I. C. R. 120.]
As the petition in this case does not allege nor does the evidence disclose the fact that the shipments, mentioned in the petition, were all similar, and were made in the same direction, it fails to state a cause of action against the appellant, and the evidence fails to prove one, and for those reasons I believe the judgment should be reversed.
While dissenting in this case, I am not unmindful of the fact that Division No. 2 of this court has reached the same conclusion as those expressed in the opinion 'of Valliant, P. J., and while I feel like shrinking from the responsibility of running counter to the opinions of such eminent and experienced jurists, yet my sense of duty impels me to state the reason for the faith that is within me. So far I have devoted much time in trying to show why the majority opiniq>n is not sound, and will now proceed to make a few-observations regarding the opinion delivered by Division No. 2 in the case of McGrew v. Mo. Pac. Ry. Co., 177 Mo. 533.
*608The first criticism I have to offer to that opinion is directed at the following paragraph on page 544: “Another and cogent reason why section 1134 should not be held to have repealed section 1126 is, that the latter was passed in obedience to the mandate of the Constitution itself, in section 12 of article 12 of that instrument. ’ ’
This paragraph of the opinion contains an erroneous statement of fact regarding the enactment of section 1126, Revised Statutes ■ 1899. The opinion states that it was “passed in obedience to the mandate of the Constitution itself.” Now, the Constitution was not adopted until the year A. D. 1875, and an examination of the Laws of 1872, pp. 69 and 70, will show that the act of which section 1126 is an exact copy, was passed by the Legislature of 1872, which was three years prior to the adoption of the Constitution. That being true, it cannot be contended that said section was enacted in obedience to the command of the Constitution.
I, therefore, take it that if the fact upon which that portion of the opinion is based is erroneous, then the opinion in that particular must necessarily be erroneous also. And again, the Act .of 1872, from which section 1126 is a copy, was unconstitutional and void at the time of its passage, and could in no manner form a sound basis upon which to rest that decision. Nor can We escape that conclusion by saying that said act was re-enacted in 1879, for the manifest reason that it was repealed by the Act of 1887.
The second criticism I wish to suggest against that opinion is this: On page 543 the following language is used: “The first, or section 1126, Revised Statutes 1899, had and has for its object the regulation of freight charges in any direction, the same or opposite directions, on the same road and over any portion of the same road, regardless of ‘circumstances or conditions, ’ and is in the language of the Constitution itself, article 12, section 12, supra; whereas section 1134, Re- ■ *609vised Statutes 1899, by its terms is limited to shipments over that part of the railroad ‘in the same direction, under similar circumstances and conditions,’ and both can readily stand together.” Now, that is clearly a misconception of the meaning of those two sections of the statutes. The word “any” as used in section 1126 means all, and when that section declares it unlawful for a railroad company to charge a greater compensation for transportation of freight for a shorter than for a longer distance in “any” direction on “any” part of its road, it means that it is unlawful for the company to make such charge for such services-in all directions over its road. The word “any” as used in that section has the same meaning so far as directions are concerned as it has in a law or ordinance which declares it unlawful for a person to walk over a public flower garden in any direction, that is, walking in all directions over the garden is prohibited, and declared unlawful. That being unquestionably true, and if section 1126 is still in force, as stated in that opinion, then a railroad company under section 1134 cannot make such charges for hauling like freight under dissimilar conditions, and in opposite directions, as is expressly authorized by that section, and the reason therefor would be, as heretofore stated, that section 1126 prohibits such greater charge for shipments in all directions; so it must logically follow that if section 1126 is still in force, then 1134 is not. These two sections are irreconcilably in conflict with and repugnant to each other. Yes, so much so, that if section 1126 is still in force, then the human mind can- neither conceive nor state a case under section 1134 which would not violate section 1126. If such a thing can be done, I would like very much to see that case stated. Take the very facts stated in that opinion, and if section 1126 is in force, then defendant could not have interposed any defense whatever to it under section 1134, *610regardless of the directions in which the shipments were made. In order to sustain that case, the court there said: “This court will take judicial cognizance that a shipment from Myriek to Kansas City was not in the same direction that the shipment from Myriek to Boonville was, but, in fact, was in an opposite direction.” Now, if that is true, and the fact that the shipments mentioned were in opposite directions fastened the liability upon the defendant in that case, then by parity of reasoning this court should in this case take judicial notice of. the fact that shipments in this Case from Myriek to Kansas City and those te ITarrisonville are in the same direction so far as the line of railroad is concerned, and for that reason discharge the defendant in this case. But no, that cannot be done either, according to the opinion of Judge Valliant herein.
The effect of the two opinions is to find for Mr. McGfrew, whether the shipments are made in the same or opposite directions. In either event the company must lose, yet, according to section 1134, it is entitled to win under the conditions stated therein, but under those two opinions those conditions can never transpire. .It is, therefore, clearly seen that according to these two opinions section 1134, which is the later enactment, is repealed by section 1126, which is the prior enactment. I submit that in the very nature of things this cannot be done, and it is in conflict with the universal rule of construction, that where two statutes of different dates were enacted and are in conflict with each other, the one which was first enacted will be repealed by implication by the subsequent enactment and not vice versa.
Not only this, but by reading section 12 of article 12 of the Constitution, and section 1126, it will be seen that the opinion mentioned is in error when it says that section of the statute was enacted in pursuance to the very mandate of the. Constitution, and is in the *611language thereof. The language of the Constitution is as follows: “It shall not be lawful in this State for any railroad company to charge for freight or passengers a greater amount, for the transportation of the same, for a less distance than the amount charged for any greater distance.” From this quotation it will be seen that said section 1126 is not only not in the language of the Constitution, .but is much broader in its provisions than those of the Constitution. If said section 12 of the Constitution was as broad in its provisions as are those of section 1126, and as stated in that opinion “has for its object the regulation of freight charges in any direction, the same or opposite directions, on the same road and over any portion of the same road, regardless of ‘circumstances or conditions,’ ” then unquestionably section 1134 would be-clearly unconstitutional and void, because it permits a greater charge for a shorter haul than for a longer one,, where the conditions are dissimilar and the shipments-are in different directions.
I have thus attempted to show that section 1126 was not enacted in response to the mandate of the Constitution, as stated in that opinion, and that it is-much broader in its terms than are the provisions of said section 12 of the Constitution, and, therefore, it did not and could not prevent the Legislature in 1887 from repealing that section and enacting in lieu thereof section 1134.
This entire,trouble and litigation has grown out of the erroneous assumption that section 1126 was enacted in response to the mandate of the Constitution, and that it is in the language thereof, and in holding all other acts and statutes upon the subject to be in subordination to that section; whereas, in fact, it was enacted three years prior to the adoption of the Constitution, and was clearly unconstitutional at the time-of its passage, as before shown; and notwithstanding it was re-enacted in 1879, it was -clearly and unques*612tionably repealed by the Act of 1887, now section 1134, Revised Statutes 1899, which latter act expressly authorized the company to do just what the petition in the case charges it with doing, and is not, therefore, lawful.
Y. Counsel for respondent finally contends that appellant cannot raise any constitutional questions in this court, because they were not presented to the court below. As a general proposition that is true, but where the sole cause of action arises out of the violation of a statute which is unconstitutional, and there can be no recovery except by giving that statute force and effect, then its constitutionality can be raised at ■any stage of the proceedings, and in any court where the cause is pending, at any time.
The reason for that rule is that if the statute is unconstitutional and void, and that is the only law upon which the case can be predicated, then there is no law creating a cause of action, and consequently there can be no recovery. [State ex rel. v. Smith, 177 Mo. 69, l. c. 92; State ex rel. v. Smith, 152 Mo. 444; Ex parte Siebold, 100 U. S. 371; State ex rel. v. Smith, 141 Mo. 1; Kaukauna Co. v. Green Bay Co., 142 U. S. 254; Kirkwood v. Meramec Highlands Co., 160 Mo. l. c. 118.]
I am, therefore, of the opinion that the judgment should be reversed and judgment entered here for appellant.
Fox, G. J., and Burgess, J., concur.