DISSENTING OPINION OF HENRY W. BOND, JUDGE. '
I.
Being unable to agree with the views expressed in the learned majority opinion or the disposition of the case made by it, I herewith file my dissent.
Defective Pleading of Perfect Cause of Action.
The case is here on the appeal of the' plaintiff from a final judgment for defendant following the sustention of a demurrer to the amended petition. Both of these pleadings are set out in the majority opinion. They speak for themselves, and it is their language aloné which must fix their meaning and determine the questions presented for review. [Ashby v. Winston, 26 Mo. l. c. 213; Hamilton v. McLean, 169 Mo. l. c. 69; Kerr v. Simmons, 82 Mo. l. c. 275; Vaughan v. Daniels, 98 Mo. 234.]
Taking the petition first, the State of Missouri, as the only party plaintiff, alleged that defendant was indebted to it in the.sum of fifty thousand dollars for *696illegal charges for transporting its agents and its property during the pendency of an injunction awarded, by a Federal court against the enforcement of the rates prescribed for such services by the laws of this State; that said injunction was dissolved on appeal by the Supreme Court of the United States, and the' law fixing the rates for the carriage of persons and goods adjudged to have been valid from the date of its enactment; that the defendant acquired no title or ownership of the money which it had exacted from the plaintiff during a period of seven years; that the destruction of the State records prevented the setting forth of the very numerous and complicated items of the amount which plaintiff was compelled to pay for the hauling of its property to the various public institutions, but that defendant has a knowledge of all of such items and a full record of the same; that they can only be ascertained by an accounting and a discovery. The petition alleges that many other persons have similar rights to a recovery from defendant. The petition prays for an accounting and discovery of the amount unlawfully taken from plaintiff, and for the appointment of a referee, and for judgment for the sum ascertained. It also prays “that all persons and claimants similarly situated be permitted to come in and file their claims and become parties hereto,” and obtain similar redress, and for general relief.
Taking the demurrer next. Of the fourteen grounds stated only two can have any relevancy to the facts stated in the petition, the others are either repetitions or obviously untenable as not being confined to the- allegations contained in the petition. [Story, Eq. Pleadings (10 Ed.), sec. 448; Hubbard v. Slavens, 218 Mo. l. c. 622.] Those which need be discussed are, to-wit:
“2. Because the petition does not state facts sufficient to constitute a cause of action against this defendant.
*697‘ ‘ 3. Because plaintiff in said petition lias improperly united alleged claims or alleged causes of action of persons not named as parties plaintiff to said suit.”
The only questions which can arise on these demurrers are, first, whether the State has alleged a cause of action for itself; second, if so, whether that cause of action has been destroyed by the allegations in the petition that other suitors have similar causes of action which could be litigated herein if they should be permitted to become parties. These are the only ques-' tions which can arise on this appeal from a judgment finally dismissing plaintiff’s suit.
We will first inquire as to the right of the State to recover. If that shall be affirmed, then the first demurrer, which goes to the entire petition, must be overruled, for the rule is inexorable that a petition which states any cause of action, however defectively or imperfectly, is not subject to attack by a general demurrer. This is so elémentary and has been so repeatedly affirmed that we shall only call attention to two instances of the utterances of this court on the subject, to-wit:
“This court has repeatedly held that where the petition stated in the same or different' counts, several grounds for a recovery, it is error for the court to sustain a general demurrer to the petition.” [Johnson v. United Railways, 243 Mo. l. c. 288, per Wood-son, J.]
“Though the petition is very inartistically drawn, we regard its allegations as-tantamount to a cause of action defectively stated and not a defective cause of action; in which former case its defects cannot be taken advantage of by a general demurrer or its equivalent, an objection, as in this instance, because it does not state facts,” etc. [Water Co. v. City of Aurora, 129 Mo. l. c. 584, per Sherwood, J.]
The State as a public corporation is endowed with all the rights to sue in equity or at law which are pos*698sessed by other corporations or by natural persons. Having the power to make contracts or suffer wrongs, it has the inherent right to bring a suit 'to enforce the . one or redress the other. Like any other suitor, therefore, it was entitled to bring an action through its proper officer for any wrongs or damages sustained by the wrongdoing of the defendant. [State ex rel. v. Williams, 221 Mo. l. c. 260-1; State v. Moody, 202 Mo. l. c. 124; Brown v. State, 5 Colo. 496.] Hence the primary inquiry is whether the petition filed by it states facts sufficient to warrant a cause of action for which redress may be had in equity or at law. In determining this, all irrelevancy or surplusage will be ■ left out of view and regard will be had to those allegations which are essential to the statement of a ground of recovery. If when that is done, enough is found to be stated to show the infraction of any equitable or legal right of the State by the defendant, then it must be held that the action of the trial court in sustaining the general demurrer now under review was without any authority of law.
The facts stated in the petition, thus considered, disclose all the elements necessary to the recovery of a judgment or decree by plaintiff 'against the defendant for the amount claimed in the petition. This for the reason that by its general demurrer, not having filed any motion for indefiniteness, the defendant admits its indebtedness to' plaintiff in the amount and form alleged in the petition, or, as has been shown, that for seven years, and while defendant prevented the plaintiff from enforcing a valid law, it compelled the ¡fiaintiff, against the terms of that law, to pay defendant fifty thousand dollars made up of many distinct and various items forming a complicated account totaling fifty thousand dollars, all records of which in the possession of plaintiff have perished by fire, though a complete record thereof is in the control and custody of defendant.
*699In the light of reason and the adjudged law, these allegations contain the essentials of a cause of action for equitable relief, for in such instances equity possesses concurrent jurisdiction with courts of law. Indeed, if this suit had been brought on the law side of the court, as it might, for money which ex equo et bono belongs to plaintiff, the trial court would have compelled a reference under the express language of the statute giving it that power when “the examination of a long account on either side” is required, or where “the taking of an account shall be necessary for the information of the court,” which compulsory reference would have practically converted this suit into one in equity. [R. S. 1909, sec. 1996; Reed v. Young, 248 Mo. l. c. 613-14; Williams v. Railroad, 153 Mo. l. c. 495; Small v. Hatch, 151 Mo. l. c. 306.] That a case like the one in hand may be brought in equity or at law, dependent on the nature of the accounting and the adequacy of the redress, is beyond doubt under the decisions in this State and elsewhere. Whether equity will take jurisdiction of an action otherwise of assumpsit for money had and received, depends upon the complication of the accounts and the inadequacy of the remedy at law, or some other independent ground of equity jurisdiction, such as discovery or fraud, or the existence of fiduciary relations. [1 R. C. L., pp. 222-3-4; Beggs v. Edison Electric Co., 96 Ala. 295; Pierce v. The Equitable Assurance Soc., 146 Mass. 56; State ex rel. v. Denton, 229 Mo. l. c. 195; Hagan v. Bank, 182 Mo. l. c. 337; Arn v. Arn, 81 Mo. App. l. c. 137; Coal Co. v. Slevin, 56 Mo. App. l. c. 111.]
In speaking of the essentials of a petition in equity, it was said by Gantt, J.: “It will be observed that the bill necessarily also calls for an accounting and discovery, which is everywhere recognized as another ground for equitable relief.” [Hagan v. Bank, supra, l. c. 337.] So in a case where the court was powerless to compel a non-resident corporation *700to render an accounting consisting of complicated items for money had and received, this court said (Yalliant, J.): “Such an accounting is not beyond the jurisdiction of a court of equity that may have full jurisdiction of the corporation, but is beyond the jurisdiction of .a court of equity that has only the limited or qualified jurisdiction over a foreign insurance company that is given by our laws to our courts.” [State ex rel. v. Denton, supra, l. c. 196.]
Measured by these standards, it cannot be that the petition of plaintiff, as herein analyzed, fails to state a cause of action, cognizable either in equity or at law, for the amount which defendant illegally took from the plaintiff in the overcharges exacted for seven years. [McGrew v. Railroad, 230 Mo. l. c. 531; State ex rel. v. Railroad, 176 Mo. l. c. 717; Transportation Co. v. Sweetzer, 25 W. Va. 434; Heiserman v. Railroad, 63 Iowa, 732; Southern Ry. v. Ala. R. R. Com., 196 Fed. l. c. 560; Bellamy v. Railroad, 220 Fed. l. c. 878; Coal Co. v. Railroad, 52 Fed. 716.] The naked facts of the relations between the State, the only party plaintiff, and the defendant, pleaded in the petition, if proven, would have entitled the State as plaintiff to a judgment in the trial court. Those facts were sufficiently stated under the settled rules of pleading. [1 Cyc. 436.] A general demurrer can only lie for the total failure of the petition to state any ground whatever for relief, either at law or in equity. After excluding from the petition all matters of surplusage, there remains embossed on its face the statement of a clear, complete and concrete case for relief by the State for itself against the defendant, for an accounting in equity or upon assumpsit at law for money had and received. Necessarily, therefore, the demurrer for that the petition stated no cause of .action should have been overruled. [Taylor v. Railroad, 207 Mo. l. c. 500; Otto v. Young, 227 Mo. l. c. 218; Bank v. Lyons, 220 Mo. l. c. 550; State ex rel. v. Tittmann, 103 Mo. l. c. *701568; Steamship Co. v. Railroad, 144 Mo. App. l. c. 54; Simpson v. Bantley, 142 Mo. App. 490.]
For the error of the trial court in sustaining the demurrer and dismissing plaintiff’s suit for itself, and rendering final judgment for defendant, this cause should be reversed and remanded.
Suing for Self and Others Similarly Situated.
n.
The right of the State to recover for itself being indisputable under the facts stated in its petition showing the nature and extent of the loss caused to it by the wrongdoing of defendant, it only remains to inquire whether it has lost that right by inviting other persons to become parties hereto for the purpose of asserting their own claims.
This question is made by the second and special demurrer (E. S. 1909, sec. 1801) quoted above.
Neither the prayer of a petition nor any exhibits thereto are subject to a demurrer. Nothing is open to that objection but the stating part of the petition. [Curry v. Lackey, 35 Mo. l. c. 392; Saline Co. v. Sappington, 64 Mo. 72; Merrill v. Trust Co., 46 Mo. App. l. c. 242.] After setting out specifically its own cause of action against the defendant, the State alleged in substance that divers persons have been similarly injured by defendant, and invited them to become parties to the action and set up their respective claims. It is this reference in the petition to outsiders that constitutes the ground of the special demurrer now under review. This is apparent from the language of the demurrer, which specifies that the “petition has improperly united alleged claims or alleged causes of action of persons not named as parties plaintiff to said suit.” That form of stating the objection is as' far as the demurrer could go, since the only party to the petition is the plain-tiff, and.its cause of action is *702the only one alleged in the petition. There is not a line or a syllable in the entire petition which sets out the respective claims or canses of action of any other person, nor which mentions the name of any other party plaintiff. To prove this, one has only to read the petition. The pleader evidently thought his client’s case belonged to a class, hence after stating explicitly the elements and amount of the indebtedness of the defendant to the plaintiff he alleged that other unnamed persons had claims of a similar nature, and asked that they be permitted to come in as parties in their own right and allege and prove their own claims. Every lawyer has within his experience knowledge of the bringing of suits wherein the plaintiff, suing for himself, also asks that other persons may come in and join as parties and allege and prove their separate' demands. In a case where that is allowable, the practice is for the person who desires to join in the original suit to apply to the court having jurisdiction of it by a petition setting out his particular cause of action, and asking that he be allowed to join as a co-plaintiff upon terms. Such application to become a party is, when filed, subject to a demurrer and other defenses, but until it is made, there is no cause of action and no party plaintiff to be attacked by a demurrer, except those alleged and named in the original petition. Before the .coming in of new parties, the original petition might be attacked by a motion to strike out the allegations suggesting the joinder of other parties, if their claims were not unitable, for the statute provides, in terms, to-wit: “If irrelevant or redundant matter be inserted in a pleading, it may be stricken out, on motion of the adverse party.” [R. S. 1909, sec. 1815.] But a demurrer, which lies only for the actual misjoinder of several causes of action (R. S. 1909, sec. 1800), does not lie and cannot reach a mere proposal by the plaintiff to other persons to come in as parties and set up any causes of action they may have. In the *703case at bar, no plaintiff exists but tbe State, and no cause of action has been set forth in the petition except the cause of action of the plaintiff for fifty thousand dollars unjustly withheld from it by the defendant. As yet no other cause of action has been asserted under the petition, and no other plaintiff lias appeared or been added. Our statute on demurrers permits that objection to be made in cases where the statutory grounds have happened. To allow a demurrer before the actual existence of the statutory ground would not only abolish the authority of the statute, but would permit objection to be made for the happening of a thing which had not occurred when the objection was taken, and which might never occur. Such an absurdity is not tolerated in the science of pleading.
The answer to this special demurrer and to the other repetitions and variations of it wherein the defendant averred multifariousness and misjoinder of causes of action is, that no such defects are in the present suit by one plaintiff against one defendant, and where only one cause of action has been alleged. “When, if ever, other parties shall appear and state their respective causes of action, the defendant may demur and obtain a ruling on a point not now presented by the petition. Our conclusion is that all the demurrers upon the assumption of multifariousness or misjoinder are bad for the reason that no such defects are contained in the present petition. Exactly the same ruling was made by the Supreme Court of North Carolina in a stronger case, for there the bill of plaintiff mentioned the names and causes of action of three other parties, on whose behalf, as well as his own, he prayed for a decree against the defendant, asking that they be allowed to come in and join him. In the decision of the case said the court: (Nash, J.) “The first cause assigned in the demurrer, is answered by the demurrer itself. It is, that the plaintiff has asked the court to provide for the relief of Chestnut, Robin*704son and Murphy, who are not parties to the bill. A demurrer' is an allegation of a defendant, which, admitting the matters of fact alleged by' the bill to be true, shows that, as they are therein set forth, they are insufficient for the plaintiff to proceed upon, or oblige the defendant to answer. Now the plaintiff asks relief for himself, upon a state of facts, which, if true, clearly entitles him to relief. His officiously asking the aid of the court, for others, who are not parties to his bill, and do not ask it for themselves, certainly ought not, and cannot, deprive him of his right. It is an equitable, as well as legal maxim, that utile per inutile non vitiatur.” [Parish v. Sloan, 3 Iredell’s Eq. (N. C.) l. c. 609.]
The demurrers in the case at bar are not well taken for another reason. The Supreme Courts of the United States (Brown v. Trust Co., 128 U. S. l. c. 412) and of this State (McGlothlin v. Hemery, 44 Mo. l. c. 355) have established the rule that in the nature of things multifariousness or misjoinder of causes of action cannot exist except there be two more causes of action united in one petition, each of which, as stated, will support a judgment. In the present petition only one cause of action is alleged. No other cause of action is stated, and no other party than the State is made a plaintiff to the present petition, hence it cannot be that it contains two or more distinct causes of action, each of which would support a judgment. All the demurrers interposed by defendant which purported to raise the questions of misjoinder or multifariousness are shown by the language of the petition to be purely anticipatory, since no such defects notv exist in that pleading. It may be that the defendant was entitled to object to the allegations with reference to future joinder of other persons in the present suit, by a motion to strike them out as irrelevant and redundant. But defendant did not avail itself of that defense, which, if sustained, would not have affected the con*705tinuance of the suit by plaintiff. Clearly, defendant is in no position to ask that the erroneous judgment of the trial court dismissing plaintiff’s suit and rendering final judgment for defendant should be affirmed, when all the trial court would have been authorized to do would have been to treat the improper demurrers as motions to strike out, and to have sustained them to the extent of expunging from the present petition as surplusage so much of its allegations as referred to the coming in of prospective parties having other claims against the defendant. That was the fullest extent to which, under any view of the law, the circuit court was authorized to go. • It would have had no power, upon a motion to strike out parts of the petition referring to the claims of unnamed persons, to have made a ruling dismissing the valid cause of action belonging to the plaintiff, and certainly it had no such power when the only attack upon the present petition was in the form of an invalid and untenable de- ■ murrer under the statutes of this State and the universal rules of pleading.
Our conclusion is that there is no theory resting on reason or law which authorized the action of the trial judge in dismissing the suit of the plaintiff in this case, and entering judgment for defendant, and that his judgment should be reversed and the cause remanded, to be proceeded with in a manner consistent with these views.
III.
Amount of Recovery After injunction Dissolved: Bond.
What has been said disposes of all the questions presented by the record in the present appeal. Another question not appearing in the record has been argued in the brief of respondent and must arise on a re-tria.1 of this case. That question is whether the right of the State to recover the money wrong*706fully demanded and received by- the defendant, pending the continuance of the illegal injunction against the State, is limited by the amount specified in the bond given by defendant when it obtained the injunction?
If this were an action on the bond, or a motion under the statute to assess damages proximately caused by the injunction, then the bond given would be the measure of the liability of defendant, in the absence of any evidence that the injunction suit was a malicious abuse of process, although the damages sustained exceeded the amount of the bond. [R. S. 1909, sec. 2524-2525; City of St. Louis v. Gaslight Co., 82 Mo. 349; Holloway v. Holloway, 103 Mo. l. c. 284; Commission Co. v. Spencer, 236 Mo. l. c. 630; 2 High on Injunction (4 Ed.), see. 1663.] But that rule has no application where, as in this record, the suit is not brought for injuries proximately caused by the injunction, but is brought to recover what the defendant exacted at its peril during the pendency of an injunction which was finally held to have been illegally awarded by the Supreme Court of the United States. What was the effect of the injunction in the Federal court? Simply to prevent the enforcement against this defendant of the State statutes regulating its charges. It could not and did not go further. The sole issue in the case was whether the State of Missouri had violated the Constitution of the United States in exercising its sovereign power to make laws for the internal regulation of its affairs. That issue was decided against the State by the lower Federal court, but its ruling was vacated and. set at naught by the Supreme Court of the United States. Pending the final word of that great tribunal, the defendant in this case took the chance of violating the Missouri statutes, and compelled this plaintiff to pay fifty thousand dollars, contrary to the terms of the Missouri statutes. This was in violation of the law by defendant, who did it with imputed knowledge that *707the ultimate decision of the constitutionality of the statutes it was disobeying was the sole prerogative of the Supreme Court of the United States, and that in the event that court should sustain the statutes as constitutional exercises of the law-making power of this State, every dollar which it had taken from the State while the question of its right to enact these laws was in issue would be an illegal and wrongful appropriation of the property of the State. The injury thus done to the State was not proximately caused by the writ of injunction, but was caused by the wilful act of defendant during the period it was endeavoring to overthrow the laws of Missouri. The damage thus inflicted was not, therefore, in any- sense caused by the issuance of the temporary injunction, but was caused solely by the disobedience on the part of defendant of' the statutes of Missouri, at a time when their invalidity had not been conclusively adjudged. The necessary consequence is that defendant, upon the final establishment of the validity of these statutes, became liable to the State for the money which it had wrongfully taken from it during the period of testing the statutes. There is no logical escape from this conclusion. The defendant, unwilling to await the action of the courts in determining the validity of the laws of this State, violated them in advance, under the license of a provisional ruling of a court of first instances,' and after that ruling was annulled by the Supreme Court the defendant undertakes to set it up as a justification for the intentional violation of the statutes before a final determination of their binding force.
The plight of the defendant in this respect is not so good as the state of a party who has received money or property under a judgment which was subsequently reversed (for here the illegal charges began before a judgment nisi) yet in such cases the rule is unquestioned that the property so obtained must be restored to the owner. [2 Freeman on Judgments, sec. *708481-2; 3 Cyc. 462; Trustees v. Fry, 192 Mo. l. c. 563; Lanyon v. Chesney, 209 Mo. l. c. 9; Turner v. Edmonston, 210 Mo. l. c. 421; Wangelin v. Goe, 50 Ill. l. c. 469.]
This differentiation of the claim of the State for the overcharges specified in its petition, from injuries proximately caused by the writ of injunction, is not only the necessary result of analytical reasoning on the subject, but has been affirmed in a recent decision by the United States Circuit Court of Appeals. [Bellamy v. Railroad, 220 Fed. 876.] Certain railroads bad attacked the rate laws of the State of Arkansas by injunction in a Federal court of first instance. Upon appeal to the Supreme Court of the United States the Arkansas laws were fully upheld. Thereupon certain shippers brought actions to recover overcharges from the railroad, in the State court (declining to sue on the bond given in the Federal court). The railroad undertook to remove that cause to the Federal court. Upon appeal to the Federal Court of Appeals the cause was remanded to the State court. Said that court, in passing on the question as to whether the injunction bond was limitative of the rights of plaintiff: “Parties from tvhom excessive rates had been exacted■ were not confined to suing on the bonds. They also had the right given them by law to recover the■ overcharges. That right %oas not destroyed, by the injunction, but was simply suspended. As soon as the injunction was out of the way the right and remedy for its enforcement stood the same as if the injunction had never been issued.”
No judicature has gone further than the Federal courts in restricting the right of defendant in an injunction suit to a recovery of damages caused by the injunction to a suit on the bond. With that in mind, the United States Circuit Court of Appeals grasped at once the distinction between damages caused by an injunction and injuries caused by the action or con*709duct of the party who obtained the injunction, and held that those asserted by the State in this action were within the latter class, and hence it was not relegated in a suit therefor to an action on the bond. Our conclusion is, both on reason and authority, that the right of the State to recover in this case was not dependent upon nor limited by the terms of any bond which may have been given when the defendant sued out an injunction against the enforcement of its laws, in the Federal court.
IY.
Right of state to sue.
It is only necessary to say a word about the majority opinion. I understand it to concede the full right of the State in its corporate capacity to sue for the excess rates which it was compelled to pay defendant, just as any other person might. On that subject the language of the majority opinion is, to-wit: “Now, concluding, as we do, that both the State and these shippers and passengers can recover, the question is whether this petition is good against the demurrer lodged against it. . . . Under the facts pleaded, the State of Missouri is not suing in its governmental capacity. It is suing-just as any private corporation or individual would sue to recover money to which it alleges it is entitled. This petition gives the State and the shippers and passengers as plaintiffs in the petition.” The underlined statement concluding the above quotation is clearly incorrect. The petition does not give any plaintiff except the State itself. It merely asks that others having similar demands be “permitted” hereafter to come in. It does not even name such persons. This is important, for if they had been named as parties plaintiff, and if their claims had been so stated as to authorize a judgment in their favor, then the right to join them could have been questioned by a demurrer for misjoin*710der of causes of action. But the petition copied in the majority opinion shows on its face that my learned brother has fallen into an error in that respect. That error, although inadvertent, is serious, for it is the sole premise of the argument of the majority opinion, which, without its support, loses all force.
The learned majority opinion takes another view inconsistent with the statements of the petition, which is that the State in this case is asking to recover the demands of other persons without an assignment of their claims to it. This conception of the petition is utterly at variance with the language of that pleading, which goes no further than to say that other persons should be permitted to come into this case and collect their own. demands. There is no foundation in the petition for the statement that the State sought to recover judgment in its favor for the claims of any other person. On the contrary, the petition proposed that such persons alone should assert their own causes of action, and recover therefor in their own right. The only authority which is adduced in support of the foregoing incorrect view of the petition is the case of Oklahoma v. Railroad, 220 U. S. 277. When that State was a territory, under the jurisdiction of Congress, a Kansas railroad (Act of Congress, July 4, 1884) was empowered to enter there upon condition that the company should not charge the inhabitants a greater rate of freight than was allowed in Kansas, nor a greater passenger rate than three cents per mile. Congress, however, expressly reserved the right to regulate such rates “until a State government . . . shall exist” and then such State government shall be authorized ‘ ‘ to fix and regulate such rates. ’ ’ After the State government of Oklahoma was organized, a railroad operated under this grant charged the inhabitants a greater rate for transporting oil and other products than was authorized by the laws of Kansas for such service. Wherefore, the State of Oklahoma, as such, brought its *711original bill in tbe Supreme Court of tbe United States (Constitution of United States, article 3, section 1), asking the cancellation of the grant to the railroad, and a decree enjoining the railroad from charging the inhabitants more than the Kansas rates for transporting oil and other products. The court held that the bill was not maintenable, since the State had no property interest in the claims of its inhabitants against the railroad which authorized an injunction suit in the Supreme Court of the United States, where, under the Federal Constitution, the State could only come in in respect to matters to which it was a party, adding: “The opposite view must necessarily rest upon the ground that the Constitution when conferring original jurisdiction on this court ‘in all cases affecting ambassadors and other public ministers and consuls and those in which a State is a party’ (Art. 3, sec. 1), intended to include any and every judicial proceeding of whatever nature which the State may choose to institute, in this court, for the purpose of enforcing its laws, although the State may have no direct interest in the particular property or rights immediately affected or to be affected by the alleged violation of such laws. In the present case, the State seeks to enjoin the defendant company from charging more than the Kansas rates on the transportation of lime, cement, plaster, brick, stone, crude and refined oil. But the State, as such, in its governmental capacity, is not engaged in their sale or transportation, and has. no property interest in such commodities. It seeks only, as between the railway .company and shippers, by a general, comprehensive decree to enforce certain rates and to compel the railway company to respect the rights of all of the people of Oklahoma who may have occasion to ship such commodities over the railway.” Thereupon, only because the State had no claims of its own the bill was dismissed.
*712It would be difficult to find a clearer authority for the maintenance of the present suit, where the State has a direct interest to the extent of fifty thousand dollars. This distinction between the two cases seems to have been wholly lost sight of in the majority opinion when it cited the above authority, although that opinion, as has been shown by the quotation therefrom, and in other language, expressly concedes that in the case at bar the State has shown a valid claim of its own for which it is entitled to sue and recover in its private capacity, expressing the latter thought in the following words, to-wit: “When the State brings suit for the recovery of excess passenger and freight charges it had had to pay (whether that action be upon the injunction bond or a straight suit for the money), it is suing as any other corporation or citizen would sue. It is not acting in its governmental capacity. ” This and similar passages in the majority opinion show the utter inapplicability of the doctrine of the Supreme Court in the case cited. There the State had no property rights nor demands, but was endeavoring solely to assert its capacity as parens patriae or general guardianship of the interests of its inhabitants. On the most familiar principles, it can never bring an action of that sort to redress the private wrongs of its citizens.
For the foregoing reasons I cannot follow the views of the majority opinion. In this case the State is concededly damaged under the pleading to the extent of fifty thousand dollars. It has come into court setting out the constitutive facts showing that injury. No case has been cited precluding that recovery. It is the sole plaintiff; no others have appeared and pleaded the elements of their right to recover. No applications have been filed for permission to join and recover judgment for themselves by any citizen of the State; There has therefore been no misjoinder of causes of action, for only one has been stated, that of the State. *713Neither has the State asked that a judgment he rendered in its favor for any claim save its own. No attack warranted by the fundamental laws of pleading has been made on the right of the State to recover for itself its own loss. The demurrers filed are not addressed to the case stated in the petition, but purport to go beyond that and attempt to assail the'petition for what has not been included in its terms. It is elementary that this cannot be done.
It follows that the judgment dismissing plaintiff’s suit was patently erroneous and should be reversed and the cause rem’anded.