therefore the conditions present a case of discrimination in favor of the State of Missouri. The suggestion urged on us that the United States in the end recoups the State of Missouri for these outlays, does not affect the argument; so we need not inquire whether this be true or not. Since if it be so, said section 8396 makes, in the last analysis, a prima facie case of discrimination in favor of the United States as against any and all persons who, not being members of the organized militia traveling on orders from the Governor, are required to pay fare at the rate of two cents per mile. Neither the State nor the United States is mentioned in said section 23, supra, so no ban thereby is laid against either, which forbids in their favor a discrimination. We do not think section 23 of article 12 of the Constitution is in point.

to

II. The applicable part of section 14, supra, of the Constitution, which defendant contends renders said section 8396 unconstitutional, is the inhibition contained [517] in the words: "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." It is contended that, since the Constitution in plain terms requires the Legislature to "pass laws prevent unjust discrimination in the rates of . passenger tariffs on the different railroads," by this language and the unmistakable command of its converse it forbids the Legislature to pass any law, the effect of which is to produce a plain, and an alleged unjust, discrimination. May the Legislature having by the express command of the organic law a duty laid upon it to do a certain thing, not only fail to do that thing, but without any other authority from the Constitution, do the diametrically contrary thing? We do not think so. Such a conclusion in the light of our Constitution would serve as the mother in logic of a pestiferous brood of vicious, absurd and outrageous laws, which like chickens would come home to us to roost and vex us. For if the Legislature may validly pass a statute compelling the railroads to carry members of the organized militia for one cent per mile, and thus save to the State at the expense of the railroads, one cent for each mile traveled, it may, by the same token, pass an act requiring such transportation to be furnished for one mill per mile; likewise it may pass a statute requiring all transportation, both of freight and passengers, moving at the ultimate expense of the State, to be furnished at a merely nominal cost. We bear in mind of course such exceptions, if any, as might arise from the constitutional provision which forbids the giving of "free passes or tickets

at a discount" to State officers and others. [Sec. 24, art. 12, Constitution.]

Similar statutes, in the main features thereof, have been before the Supreme Court of both Kansas and [518] Minnesota. Though Kansas has no such constitutional provision as we have here under discussion, it was yet held in that State, In re Gardner, 84 Kan. 264, 113 Pac. 1054, 33 L.R.A. (N.S.) 956, that a statute which required railroads to furnish transportation to the officers and men of the Kansas National Guard when traveling to perform military duty under orders from competent authority, was invalid, for that it denied to the railroads the equal protection of the laws guaranteed by the 14th Amendment to the Constitution of the United States. In Minnesota, which likewise has no such section in its Constitution as section 23 of article 12, supra, a one-cent-per-milefare statute for the benefit of the organized militia and State naval reserves was held, in the case of State v. Chicago, etc. R. Co. 118 Minn. 380, Ann. Cas. 1913E 494, 137 N. W. 2, 41 L.R.A. (N.S.) 524, not to violate either the Federal or State constitutions in the respect that it took the property of the railroad without compensation, or without due process of law, or that it deprived it of the equal protection of the laws. That these opposite and contrary rulings are irreconcilable goes without saying, but in the view we hold of this case, in the light of the inhibition directed to our State Legislature by section 14 of article 12 of our Constitution, we are not necessarily called on to reconcile the wide differences existing in the views held by the able jurists who wrote these adverse holdings. While the precise contentions held in judgment in the cases of State v. Chicago, etc. R. Co. supra, and In re Gardner, supra, to wit, that our statute violates those Federal and State constitutional provisions guaranteeing due process of law, and the Federal Constitution's provision guaranteeing the equal protection of the laws, are all raised by defendant in the instant case, we need not discuss them; since we have another constitutional provision equally in point, and not subject to doubt and contrariety of ruling.

[519] The Supreme Court of the United States, passing upon an analogous matter in the case of Lake Shore, etc. R. Co. v. Smith, 173 U. S. 684, 19 S. Ct. 565, 43 U. S. (L. ed.) 858, likewise held that a statute of Michigan requiring railroads to issue thousandmile tickets and sell them at a price fixed by such statute, took the property of the railroad without due process of law and failed to afford to the railroad the equal protection of the laws, and thus violated the 14th Amendment to the Constitution of the United States. The Constitution of Michi

gan was not, of course, under review or there held in judgment; since it was not the province of the Supreme Court of the United States to pass upon whether the statute violated the Constitution of Michigan. The latter matter was for the courts of Michigan to determine. The statute of Michigan, so held to violate section 1 of the 14th Amendment, provided in substance that all railroads in Michigan, whether intrastate or interstate, should keep for sale and sell at all principal ticket offices one-thousand-mile tickets at a price not to exceed twenty dollars in the Lower Peninsula and twenty-five dollars in the Upper Peninsula; that such tickets should be non-transferable, valid for two years from the date of the purchase thereof, and whenever required by the purchaser should be issued in the names of such purchaser and his wife and children, designating the names of the purchaser and each member of the family on such tickets.

The Court of Appeals of New York in the case of Beardsley v. New York, etc. R. Co. 162 N. Y. 230, 56 N. E. 488, likewise held that a thousand-mile ticket law, similar to that held in judgment in Lake Shore, etc. R. Co. v. Smith, 173 U. S. 684, 19 S. Ct. 565, 43 U. S. (L. ed.) 858, was invalid because it violated the provisions of section 1 of the 14th Amendment to the Constitution of the United States. The identical point has been similarly ruled in other jurisdictions; in fact, in every jurisdiction to which our attention has been called, and in which the question has arisen. [State v. [520] Great Northern R. Co. 17 N. D. 370, 116 N. W. 89; Com. v. Atlantic Coast Line R. Co. 106 Va. 61, 9 Ann. Cas. 1124, 55 S. E. 572, 117 Am. St. Rep. 983, 7 L.R.A. (N.S.) 1086.] It may be objected that the opinions of the State courts following the ruling of the Supreme Court of the United States in the case of Lake Shore, etc. R. Co. v. Smith, supra, upon a Federal question, prove nothing of moment; that it is but a "piling of Pelion upon Ossa." This is conceded. The State courts are compelled to follow the Federal courts upon Federal questions. But it does show with some degree of certainty that the consensus of opinion is that the Supreme Court of the United States is still adhering to the views expressed in the Lake ShoreSmith case, supra, and that the case of Willcox v. Consolidated Gas Co. 212 U. S. 19, 15 Ann. Cas 1034, 29 S. Ct. 192, 53 U. S. (L. ed.) 382, 48 L.R.A. (N.S.) 1134, is not in conflict, as certainly in our views it is not in point therewith, though counsel rely with much assurance thereon, as likewise does the Supreme Court of Minnesota in the Simpson case, supra. Briefly, the Willcox case, supra, held that so long as the total income of an established gas company, mo

nopolistic as to its occupancy of the field, furnished an adequate profit upon the capital and plant employed, it did not legally matter that as to some customers, namely, the city and its departments, the profit was not enough to do so.

So if by reason of paucity of provisions in our organic law we had been compelled to resort (as counsel among other points urges us to do) to the inhibitions of the 14th Amendment against the passage of any State law which deprives a person of his property without due process of law, or which denies to such person the equal protection of the laws, we could in the above cases, and that of In re Gardner, supra, find authority well grounded and well-reasoned for our holding. But the makers of our own State Constitution, apparently zealous to prevent discrimination and preserve fairness of treatment, not only placed in our organic law the two sections which we quote above and with which we began this opinion, but also section 12 of article 12, [521] forbidding discrimination in short as opposed to long hauis; section 24 of article 12, which forbids the giving of passes, or the sale of tickets at a discount to certain stated officers, and section 30 of article 2, which forbids that any person shall be "deprived of life, liberty or property without due process of law." We merely mention these provisions arguendo to point the moral that the Constitution-makers labored to prohibit discriminations, rebates, combinations, monopolies and unfair practices which might confer upon some patrons of railroads advantages not attainable by others. We are not saying that they apply to the instant case. On the contrary, we say they do not. We mention them to emphasize the frame of mind of the Constitution-makers.

While Alabama (Sec. 243, Cons. 1901), Kansas (Sec. 10, Art. 17, Cons. 1874), Colorado (Sec. 6, Art. 15, Cons. 1876), Georgia (Par. 1, Sec. 2, Art. 4, Cons. 1877), Illinois (Sec. 15, Art. 11, Cons. 1870), Mississippi (Sec. 186, Cons. 1890), Pennsylvania (Sec. 3, Art. 17, Cons. 1874), South Dakota (Sec. 17, Art. 17, Cons. 1889), Texas (Sec. 2, Art. 10, Cons. 1874), Utah (Sec. 15, Art. 12, Cons. 1895), Washington (Sec. 18, Art. 12, Cons. 1889), and West Virginia (Sec. 9, Art. 11, Cons. 1872), each has provisions in their several constitutions, either making it the duty of their Legislature to pass laws to prevent unjust discriminations in freight and passenger rates upon railroads and common carriers, similar to our own constitutional provision (Sec. 12, Art. 12, Constitution 1875), or, providing that no such discrimination shall be permitted; yet our attention has not been called to, nor have we been able to find, any case in either of

these States on the precise point. Nevertheless, we feel neither hesitation nor doubt that section 8396, Revised Statutes 1909, is invalid, though we bear in mind the strict rule we are enjoined to follow in declaring [522] a law unconstitutional (State v. Baskowitz, 250 Mo. 82, Ann. Cas. 1915A 477, 156 S. W. 945; State v. Thompson, 144 Mo. 314, 46 S. W. 191); for it contravenes the provisions of section 14 of article 12 of our Constitution; provided we shall conclude that the discrimination compelled by its provisions is an "unjust discrimination." Let us look to this point.

III. We do not understand that the defendant contends against the authority of the Legislature reasonably to regulate its rates of passenger fare. This authority is well-settled; but likewise is it well-settled that the exercise of such right must be accomplished by means which do not result in depriving the railroads of due process of law or of the equal protection of the laws. This is the general rule, based wholly upon a consideration of the Federal questions involved, and without any specific reference, as a rule of decision, to our own constitutional provision (Sec. 14, art. 12, Constitution 1875) now being considered.

In the year 1907 the General Assembly of Missouri passed an act (Laws 1907, pp. 170 and 171) so amending section 1192, Revised Statutes 1899 (now Sec. 3232, R. S. 1909), as to fix the maximum fare permitted to be charged by railroads of defendant's class, for the transportation of adult persons, at two cents per mile, and for children under twelve years of age at one cent per mile. A reference to section 3232, as this section now appears in our statutes, will disclose that it does not upon its face specifically purport to fix or "establish reasonable maximum rates of charges for the transportation of passengers," authority for which is conferred by section 1 of article 12, supra, of the Constitution, nor is said section 14, either spe cifically or by the language adopted, in anywise referred to in this statute. Since, however, the only constitutional power to establish a reasonable maximum rate of charge for such service comes from said section [523] 14 of the Constitution, and since said statute indubitably does, by its terms, fix a maximum rate of charges, it follows that the rate of two cents per mile per person so fixed by said section 3232, is prima facie a "reasonable maximum rate." The fixing of the passenger fares at such sum is presumptively a legislative determination that such sum is "reasonable," that is to say, a reasonable compensation for the service rendered. [State v. Public Service Commission, 259 Mo. 704, 168 S. W. 1156; Atlantic, etc. R. Co. v. U. S. 76 Fed. 186; In re Gardner,

supra.] Such presumption is only prima facie, and may, of course, be overthrown by an adequate showing in a proper proceeding of the value of the capital employed, and of expenses and receipts during an adequate period. [Chicago, etc. R. Co. v. Wellman, 143 U. S. 339, 12 S. Ct. 400, 36 U. S. (L. ed.) 176; Dow. v. Beidelman, 125 U. S. 680, 8 S. Ct. 1028, 31 U. S. (L. ed.) 841; Budd v. New York, 143 U. S. 517, 12 S. Ct. 468, 36 U. S. (L. ed.) 247; Reagan v. Farmers' Loan, etc. Co. 154 U. S. 362, 14 S. Ct. 1047, 38 U. S. (L. ed.) 1014.]

In passing and before coming to a discussion of the main question, we may say that we cannot lend our concurrence to the bold position assumed by the State here: That neither the Constitution nor the statute forbidding discrimination relates to, or is binding upon, the State of Missouri. On the contrary there is, we think, nothing in its alleged sovereignty, or in the fact that by our Constitution railroads are declared to be public highways, which will serve to absolve the State from the application to it of its own Constitution and statutes. Yet we gather that some such view is involved in the position of learned counsel for the State. For our attention is called to the case of Atlantic, etc. R. Co. v. U. S. 76 Fed. 186, wherein the ruling is made that the said railroad may be compelled to transport soldiers traveling at the expense of the United States at a fare fifty per cent less than that charged private persons for similar transportation and service. The latter case is no authority for the view that the State by virtue of its inherent sovereignty [524] may exact from a common carrier a discriminatory rate, or a rate less than that charged to a private person for a like service. The railroad affected by the ruling in the case of Atlantic, etc. R. Co. v. U. S. supra, was what is called a "Land Grant Railroad," as to which the right to exact a lower rate for service rendered to the United States lies in a solemn legislative contract to this effect. It is, we think, surely too unreasonable for dignified discussion, to consider whether section 14 of article 12 of our Constitution, which declares railroads to be "public highways," nullifies by the use of the word "public" the provisions of section 21 of article 2, which forbids the taking of private property for "public use without just compensation." Some such idea must have been in the minds of the makers of the Constitution as this: That since section 20 of article 2 of the Constitution forbids the tak ing of private property for private use, the railroads could not exercise the right of eminent domain in the absence of a provision thus fixing, in a sense, their public character. The nature of this character and the sense in which such railroads are public highway

may be deduced by the curious, pursuant to the "method of exclusion" by an examination of the cases construing said "public highway" provision in section 14, supra. [Heman Constr. Co. v. Wabash R. Co. 206 Mo. 172, 12 Ann. Cas. 630, 104 S. W. 67, 121 Am. St. Rep. 649, 12 L.R.A. (N.S.) 112; Nevada v. Eddy, 123 Mo. 546, 27 S. W. 471; Farber v. Missouri Pac. R. Co. 116 Mo. 81, 22 S. W. 631, 20 L.R.A. 350; Hyde v. Missouri Pac. R. Co. 110 Mo. 272, 19 S. W. 483.] We need not here pursue it further.

Is the discrimination unjust? If a discrimination be apparent, as it is in the instant case, it does not follow as an inevitable corollary that it is an unjust discrimination. It needs neither a statute nor a constitutional provision to make unjust discrimination unlawful, for such discrimination was forbidden by the common law. [Porcher v. Northeastern R. Co. 14 Rich. L. (S. C.) 181; Hannibal, etc. R. Co. v. Swift, 12 Wall. 262, 20 U. S. (L. ed.) 423; Great Northern R. Co. v. Shepherd, [525] 8 Exch. (Eng.) 30; 4 Elliott on Railroads, sec. 1467.] While the question has arisen as a rule in cases brought by a shipper, injured in his business by such alleged discrimination, to recover damages (Sloan v. Pacific R. Co. 61 Mo. 24, 21 Am. Rep. 397); or in proceedings against railroads for violations of statutory provisions forbidding discriminations (Louisville, etc. R. Co. v. Com. 108 Ky. 628, 57 S. W. 508), we can yet see no valid reason for not applying the learning in the other cases as a decisive test in determining whether the one-cent-militia-fare statute is unjustly discriminatory as the term is used in our Constitution. For if a railroad be forbidden by law, or by the Constitution, to make unjust discriminations, it follows surely that it cannot by law be compelled to make them.

Arbitrary discriminations alone are unjust; if the difference in rates be based upon a reasonable and fair difference in conditions which equitably and logically justify a different rate, it is not an unjust discrimination. [Interstate Commerce Commission v Alabama Midland R. Co. 168 U. S. 144, 18 S. Ct. 45, 42 U. S. (L. ed.) 414; Interstate Commerce Commission v. Chicago G. W. R. Co. 209 U. S. 108, 28 S. Ct. 493, 52 U. S. (L. ed.) 705; Bayles v. Kansas Pac. R. Co. 13 Colo. 181, 22 Pac. 341, 5 L.R.A. 480; Root v. Long Island R. Co. 114 N. Y. 300, 21 N. E. 403, 11 Am. St. Rep. 643, 4 L.R.A. 331; Lough v. Outerbridge, 143 N. Y. 271, 38 N. E. 292, 42 Am. St. Rep. 712, 25 L.R.A. 674; Hoover v. Pennsylvania R. Co. 156 Pa. St. 220, 27 Atl. 282, 36 Am. St. Rep. 43, 22 L.R.A. 263.] Illustrating this view it was held in the case of Com. v. Interstate Consol. St. R. Co. 187 Mass. 436, 2 Ann. Cas. 419, 73 N. E. 530, 11 L.R.A. (N.S.) 973,

that a law requiring street railways to carry pupils of the public schools at rates not in excess of half the regular fare charged others for like hauls, was constitutional. In the course of its opinion, at page 438, the court said:

"The most important and difficult question in the case is whether there is constitutional justification for a discrimination between pupils of the public schools and other persons. If this were an absolute and arbitrary selection of a class, independently of good reason for making a distinction, the provision would [526] be unconstitutional and void. As was said by Mr. Justice Brewer in Gulf R. Co. v. Ellis, 165 U. S. 150, 159 [17 S. Ct. 255, 41 U. S. (L. ed.) 666, 670]: 'Arbitrary selection can never be justified by calling it classification. The equal protection demanded by the Fourteenth Amendment forbids this.' The subject of compelling a railroad company to make an exception as to its rates, in favor of a certain class of persons, was considered elaborately in Lake Shore, etc. R. Co. v. Smith, 173 U. S. 684 [19 S. Ct. 565, 43 U. S. (L. ed.) 858], and it was held that ordinarily the Legislature has not power to compel such action. The subject is also referred to in Wisconsin, etc. R. Co. v. Jacobson, 179 U. S. 287, 301 [21 S. Ct. 115, 45 U. S. (L. ed.) 194, 201]. But if the difference is founded on a reasonable distinction in principle, such discrimination does not deny the equal protection of the laws. [Opinion of Justices, 166 Mass. 589; Pacific Exp. Co. v. Seibert, 142 U. S. 339 [12 S. Ct. 250, 35 U. S. (L. ed.) 1035]; American Sugar Refining Co. v. Louisiana, 179 U. S. 89, 92 [21 S. Ct. 43, 45 U. S. (L. ed.) 102, 104].]

"In this case the selection of a class is not entirely arbitrary. The education of children throughout the Commonwealth is a subject for legislation which has occupied the thoughts of our lawmakers from early times. The duty of legislatures and magistrates to be diligent in the promotion of education, among all the people, is especially declared in chapter 5, section 2, of the Constitution of the Commonwealth. Compulsory attendance of children in the schools is provided for by our laws. [R. L. ch. 44, sec. 1.] Money may be appropriated by cities and towns for conveying pupils to and from the public schools. [R. L. ch. 25, sec. 15.] It cannot be said that the Legislature may not concern itself with the transportation of children to the public schools in the interest of popular education, just as it provides such children with books and other necessary articles. [R. L. ch. 42, sec. 35.] So far as this statute merely gives help to these pupils in connection with their acquisition of knowledge in the schools, it is justified. [527] As

a police regulation in the interest of education, the law may well require street railway companies to permit these children to ride to school upon their cars, without profit to the companies, provided it can be done without causing them loss. But if such a requirement involves expense, the cost can only be put upon the general taxpayers. It cannot be imposed upon the street railway companies, or upon that part of the public which pays fares to street railway companies. If, therefore, it plainly appeared that the enforcement of this section would cause expense to street railway corporations, which they must bear themselves, or put upon other classes of passengers in the form of increased fares to make good the loss from carrying school children at half rates, we should be obliged to hold that there was a taking of property without due process of law, through unconstitutional discrimination."

In the case of In re Gardner, 84 Kan. 1. c. 267, 113 Pac. 1054, 33 L.R.A. (N.S.) 956, the Supreme Court of Kansas holding invalid a statute on all-fours with the instant one, in the course of its opinion, on the phase of discrimination, said:

"This court is not inclined to the view that the power of the Legislature is completely exhausted by a maximum rate regulation, and does not so interpret the decision quoted. But members of the National Guard cannot be segregated from the body of the State's citizens and made a preferred class, unless they sustain some relation to transportation by rail which, in the nature of things, indicates they should have the benefit of an exceptional rate. Classification, to be valid, must be based upon differences in character, condition or situation which lead to that difference in regulation which the statute undertakes to make. Thus, in the case involving a reduced rate for school children on street cars (Com. v. Interstate Consol. St. R. Co. 187 Mass. 436), the considerations which moved the court to sustain the rate were, among others, that pupils [528] go to and from the public schools at hours when other persons make little use of the cars; that they are of such a size and age that they occupy much smaller spaces than other passengers; and that the difference in rate was of so much importance to parents that twice as many pupils would ride at half rate as at full rate, so that the revenue of the carrier would not be materially reduced. This court neither approves nor disapproves the conclusion reached in that case, but the method employed for testing the classification upon which the rate was based is sound."

Approving a similar view upon the principle under discussion, the Circuit Court of Appeals in the Seventh Circuit, in the case

of U. S. v. Chicago, etc. R. Co. 127 Fed. 1. c. 792, 62 C. C. A. 465, quoted with approval the rule laid down by Elliott on Railroads,

viz.:

"Neither at common law, nor under the Federal statute, does the mere fact that there is a difference in rates necessarily constitute an unjust discrimination, since there is no such discrimination in cases where the conditions and circumstances are essentially different. It is the English rule that, in passing upon the question of undue or unreasonable preferences, various facts and circumstances must be considered, and that an undue preference, within the meaning of the statute, is not shown by mere evidence of a difference in charges. The Federal courts have substantially adopted the rule declared by the English courts." "

If members of the organized militia averaged in weight but one-half that which other members of the traveling public weigh, or if they traveled at fixed hours or times when other business is slack; or if they carried far less, rather than far more baggage, equipment and impedimenta, than the ordinary traveling person carries; or if they traveled at known and definitely fixed times, in large bodies, or by the trainload; or if travel with them were a matter of personal volition, to be exercised or not as a low rate might induce, [529] rather than as a matter of stern duty transacted under order; or if the service of transportation required to be furnished were of an inferior class by a slow, unscheduled train, rather than that furnished to regular passengers who are compelled to pay two cents per mile, there might be some valid reason for saying as a matter of law that the plain discrimination presented is not an unjust discrimination. [Louisville, etc. R. Co. v. Wilson, 132 Ind. 517, 32 N. E. 311, 18 L.R.A. 105; Messenger v. Pennsylvania R. Co. 37 N. J. L. 531, 18 Am. Rep. 754.]

Upon this identical phase of the case we are constrained to concur in what was said by the Supreme Court of Kansas in the similar case of In re Gardner, supra, at page 268:

"In accordance with the principle recognized, the Legislature might no doubt require that precedence be given to the transportation of troops over other traffic, that special facilities for the movement of troops be supplied, that special schedules be adopted and that other exceptional services be rendered whenever the public interest demands them. But the law in question has no such basis for the discrimination which it makes. Major Mills stood upon precisely the same footing, so far as the expected service to him was concerned, as any other individual. The times when members of the National Guard will travel are as uncertain as for other