On Motion for Rehearing. Appellees have presented to this court a motion for rehearing, which, though containing nothing new, has been given due consideration. But we are still of the opinion that this court has correctly decided the case, and the motion referred to is overruled.
In thus finally disposing of the case the writer deems it proper, with the concurrence of his associates, to add some remarks to our former opinion.
The most important question in the case is the proper construction to be placed on section 2, article 10 of the Constitution of this state, which declares that all railroads in this state are public highways, and that railroad companies are common carriers, and in addition thereto reads:
"The Legislature shall pass laws to regulate railroad freight and passenger tariffs, to correct abuses and to prevent unjust discrimination and extortion in the rates of freight and passenger tariffs on the different railroads in this state, and [to] enforce the same by adequate penalties."
That provision of the Constitution is equivalent to a direct prohibition of unjust discrimination by railroads in either freight or passenger tariffs; and, therefore, if carrying one person free while another is required to pay for the same service is an unJust discrimination, then such free transportation is in violation of the Constitution, although the Legislature may have attempted to authorize such discrimination. Some courts and judges may have reached the conclusion and announced the doctrine that when a common carrier does not charge a particular person more than the law permits, the fact that it renders a similar service for other persons without charge does not constitute an unjust discrimination. We controvert the correctness of that doctrine, in so far as it is sought to have it applied in construing the constitutional provision under consideration.
The Constitution was adopted and became a law by a popular vote, and not by action of the Legislature, or any other body, and therefore its provisions are to be construed as they were understood by the average voter when he cast his ballot for or against the adoption of the Constitution. That rule is so well established that it is not necessary to cite authorities in its support, and perhaps it has never been more clearly and tersely expressed than was done by Chief Justice Gaines, in Brady v. Brooks, 99 Tex. 378, 89 S.W. 1052, In these words:
"The voters, as a rule, are unlearned in the law and, as persons of that class would reasonably construe the Constitution upon which they vote, such ought to be the construction of the courts."
Applying that rule to this case, we feel quite sure that if the electors who voted in the adoption of the present Constitution had been asked if they considered it an unjust *Page 1014 discrimination for a railroad to charge one passenger three cents per mile for transportation and carry another passenger free of charge, the great majority of them would have answered the question in the affirmative, unless it was accompanied by a statement showing some special reason why free transportation should be furnished, such as inability to pay, or some like reason. In construing the words "unjust discrimination" as they appear in that section of the Constitution it should be borne in mind that it is declared therein that railroads are public highways. Being public highways and rendering such an important service to the public generally, the corporations which own them are often designated in legal terminology as quasi public corporations. This is a proper designation, because under charters granted by the state they perform functions and render services which might have been performed and rendered by the state. Bearing in mind this and the fact that the section of the Constitution under consideration in its first sentence declares railroads to be public highways, it seems natural and reasonable that the average voter, or person of average intelligence, in reading that section of the Constitution, would understand it to embody a condemnation of every discrimination which can be measured in dollars and cents. Generally speaking, it may be conceded that persons who perform services by contract may charge one person and render similar services free for another person without being guilty of unjust discrimination; but when, instead of acting as a common carrier, as the state might do, it grants a charter to a corporation to perform such important services for the public, the rule ought to be different. In a wide and comprehensive sense every citizen of the state is a constituent thereof, die is a portion of the body politic, and therefore, as between him and the other constituents, the state has no moral right to discriminate by furnishing free to others that for which it compels him to pay, unless such discrimination is justified by some meritorious reason. Such being the moral rights of the citizen as between himself and the state, it would seem that when, the latter grants charters to railroad corporations authorizing them to construct railroads for the purpose of serving the people as common carriers, and the people place in their Constitution a declaration that such railroads are public highways and are prohibited from making unjust discriminations, the latter provision should be so construed as to prevent that which in sound morals would have been an unjust discrimination as between the citizen and the state, if the state had not granted such charters and had itself undertaken to perform such services as a common carrier.
When the case was originally submitted counsel for appellees urged the contention, and have repeated the same in the motion under consideration, to the effect that it was not intended by the makers of the Constitution that the courts should be vested with power to revise the action of the Legislature in enacting laws for the enforcement of the constitutional provision under consideration, and that it is for the Legislature alone to determine what will constitute an unjust discrimination in freight and passenger tariffs.
The contention referred to involves the proposition that the framers of the Constitution intended that the three departments of the government — executive, legislative, and judicial — should be entirely separate and independent of each other, to the extent that the courts should not have the power to determine whether or not any act of either other department was in violation of the Constitution and therefore invalid. At an early period in the history of constitutional government in this country, that doctrine was vigorously supported by some of our ablest and most patriotic citizens; but when the Supreme Court of the United States was called upon to consider it in reference to the federal Constitution, its soundness was denied, and the rule established to the effect that, under the federal Constitution, the federal courts have the power, and, under certain circumstances, it is their duty, to determine whether or not official action of either of the other departments is in contravention of the federal Constitution, and, if so, to declare such action invalid; and that such a decision by the Supreme Court of the United States constitutes the paramount law upon the particular subject.
Generally speaking, the federal doctrine upon that subject has been followed and applied by state courts in reference to state Constitutions. That is now the prevailing American doctrine; it has always prevailed in this state, and its application to this case refutes the contention urged by appellees' counsel.
*Page 1015Motion overruled.