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sections of the Constitution of Missouri and of the Revised Statutes of Missouri, deprive defendant of its property without due process of law and deny to it the equal protection of the laws.

Sections 3173 and 3211 of the Revised Statutes of Missouri, 1909, are repugnant to and in violation of Article 5 of the Amendments to the Constitution of the United States in this: That said sections deprive the defendant of its property without due process of law.

Sections 3173 and 3211 and Sections 3185 and 3193 of the Revised Statutes of Missouri, 1909, and Section 12 of Article 12 of the Constitution of Missouri, 1875, are in conflict with Section 8 of Article 1 of the Constitution of the United States and the various laws passed by Congress thereunder in this: That the said defendant is engaged in interstate commerce and owns and operates various lines of railroad as a part of its system which run into other states than Missouri and into the States of Kansas, Colorado, Nebraska, Oklahoma, Illinois, Arkansas and Louisiana, and that the train in which the plaintiff's property described in said count was being transported was at the time engaged in interstate commerce and contained car load lots and shipments of merchandise consigned and being carried from points without the State of Missouri to points within this state, and from points within this state to points without the same and from points without this state across the State of Missouri and to points in other states, and that by reason of the premises this state is without jurisdiction to adopt and pass the sections herein named and to enforce the provisions of the same against this defendant while so engaged in interstate commerce.

Sections 3173 and 3211 and Sections 3185 and 3193 of the Revised Statutes of Missouri, 1909, and Section 12 of Article 12 of the Constitution of Missouri, 1875, are in conflict with Section 8 of Article 1 of the Con

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Opinion of the Court.

244 U.S.

stitution of the United States and the various laws passed by Congress thereunder in this: That the defendant's railroad is an interstate road and its lines extend over and through the States of Missouri, Kansas, Colorado, Nebraska, Illinois, Oklahoma, Arkansas and Louisiana, and that it is engaged in interstate commerce over its said lines through all of said states and operates trains over the same in transporting freight and passengers through said States; that said section of the Constitution of Missouri and sections of the Revised Statutes seek to compel the defendant arbitrarily to fix its rates in this State and in all of said States and in comparison with rates existing in all such States without regard to the laws passed by Congress regulating interstate commerce.

Defendant denies each and every allegation therein contained.

Upon motion, the trial court struck from the answer"all alleged defenses pleaded to each of the counts in the petition except the traverses." No evidence was offered except the stipulation quoted below:

“It is hereby stipulated between the parties that the defendant's stations, the rates charged by the defendant, including those paid by the plaintiff, the amount of coal transported and the distance set out in the several counts of the petition are correctly stated therein. It is further stipulated that such coal was delivered by the plaintiff to the defendant for shipment in the usual and ordinary way without any direction or request by plaintiff as to what particular trains the same was to be transported in and that the defendant received and transported the same in the usual and ordinary course of business, on the usual trains passing over its road. It is further agreed that the trains in which the defendant hauled said cars of coal contained other cars and shipments consigned from points within this state to points without the same, from points without the same to points within this state and from

244 U.S.

Opinion of the Court.

points without this state through this state and to points in other states."

A jury being waived, the court rendered judgment upon each count for alleged overcharge, without penalty, on the first count $130.05, total upon all $16,504.19; and this action the state Supreme Court affirmed. 178 S. W. Rep. 1179.

The insistence here is that, as construed and applied $ 12, Article XII Missouri constitution (1875), and, also, $$ 3173 and 3211, Revised Statutes (1909), deprive plaintiff in error of property without due process of law and deny it equal protection, contrary to the Fourteenth Amendment, and, also, conflict with $ 8, Article 1, Federal Constitution.

Sections 3173 and 3211 originated in the Act of 1872. The first provides that no railroad corporation organized or doing business within the State shall “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 the second prescribes a penalty for violating the first, not exceeding one thousand dollars with costs, etc., to be recovered by aggrieved party:

The Supreme Court declared "each count of the petition is in legal effect identical with the counts of the petition in McGrew v. Railroad, 258 Mo. 23, and with those in the cases between the same parties cited in the opinion in

differing only in amounts, dates and destination of shipments and in distances used for purposes of comparison. • The assignments of error in this case, in legal effect, and the points and authorities, verbatim, are identical with those in that case. The authorities cited are exactly the same." And upon the

that case,

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opinion in the cause referred to, it affirmed the trial court.

In McGrew v. Missouri Pacific Ry. Co., 258 Missouri, 23, the court followed James C. McGrew v. Missouri Pacific Ry. Co., 230 Missouri, 496, where (the issues being the same as those here presented), after considering the whole subject, it was held that plaintiff's judgment could be sustained under $ 12, Article XII, constitution of Missouri (1875) without reliance upon any statute. The court said (230 Missouri, 546): “The petition was framed upon the Act of 1872, but in view of the fact that the trial court denied the penalties asked, and allowed only the difference between the higher rates charged plaintiff and the lower rates charged by defendant for the longer distances, the judgment could be sustained upon section 12 of article 12 of the Constitution, without the aid of the Act of 1872, provided that said section of the Constitution is self-enforcing. Because if said section is self-enforcing, that is to say, if it, without the aid of any statutory enactment, makes it unlawful for a railroad company to charge more for a shorter haul than a longer one of the same class of property in any direction, the same or not, and under any or all circumstances and conditions, then clearly the measure of damages for doing the unlawful thing, in the absence of any statute upon the subject, is the amount of the excess charged for the shorter distance over that charged for the longer distance."

(561.) "Section 12 of article 12 of our Constitution clearly establishes an unconditional short-haul rule, without regard to direction or to circumstances and conditions. Said section declares that it shall be unlawful for any railroad company to charge for the transportation of freight or passengers a greater amount for a less distance than 'the amount charged for any greater distance. That declaration establishes a rule, and creates a right in every passenger and shipper to a compliance with, and an

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obedience to its terms.

Said section has the same force and effect as if it read: 'It shall not be lawful in this State for any railroad company to charge, under penalties which the General Assembly shall prescribe, 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.' Had said section read that way, its effect as an operative law would have been too clear for controversy. To my mind it is equally clear under the present reading.”

In view of this ruling, it is unnecessary for us to consider either terms, validity, or possible application of sections of Revised Statutes mentioned in the answer.

Section 12, Article XII, constitution of Missouri provides: “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.” As construed and applied in the present cause, this section prohibits the carrier from charging in respect of intrastate commerce more for a shorter haul than for a longer one over any portion of its line within the State without regard to direction, circumstance or condition; and if this inhibition is disobeyed the shipper acquires an absolute right to recover any overcharge paid by him.

The record does not disclose when plaintiff in error was incorporated, or what provisions its charter contains. There is no suggestion of anything therein amounting to a contract exempting it from legislation commonly within the police power. No claim is made that the cost of moving freight over its lines in Missouri is without substantial relation to distance; and no facts are alleged which indicate material differences between conditions and cir

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