makes their finding of fact prima facie evidence thereof, and requires said board to investigate and prevent any unjust discrimination against either any person, firm, corporation, or locality. These are broad powers. They are not to be restricted. Such powers were conferred for the express and declared purpose of fixing charges which shall be reasonable and just, and prohibiting unjust and unreasonable charges and unjust discrimination. The court has no authority to limit the board in any respect, in that regard. Such board is to determine, in the first instance, at least, what are reasonable and just charges, what unreasonable and unjust, and when any person, firm, corporation, or locality is unjustly discriminated against. There can be no restriction of the word 'locality;' it may refer to a village, city, county, or portion of the state, the meaning in each case to be determined by the territory which the board shall find to be unjustly discriminated against. If there is discrimination against any person, firm, or corporation, it is the duty of the board so to find, and to require the railway company to cease its discrimination. To do so such board has the authority to require such railway company to reduce its rates to a reasonable and just standard. The power to fix a reasonable and just rate is clearly conferred on the board, as also the power to determine what rates are unjust and unreasonable. It is the duty of the board to prevent unjust discrimination in all the forms mentioned in the statute, and to do so it may determine what is a proper charge to and from any points within the state, and its order in that regard based on its findings of facts will be prima facie evidence of the correctness of the order.

In the case under consideration the board found that the rates and charges of the respondent were excessive; in other words, that there was unjust discrimination against that part of the state, and having so found, the board is clothed with ample power to require such railway company to reduce its rates and charges. The power of the board, therefore to es

tablish and regulate rates and charges upon railways within the state of Nebraska is full, ample, and complete."

From what has been said, it is apparent that the judgment of the district court was wrong and must be reversed, and it is so ordered and the cause remanded.

Decision en banc.

Reversed and Remanded.

CHIEF JUSTICE CAMPBELL not participating.

Decided May 6, A. D. 1912. Rehearing denied July 1, A. D. 1912.

[No. 7347.]

THE PEOPLE V. HUPP ET AL.

1. CRIMINAL LAW-Polluting Streams-A statute imposing a fine for discharging into any stream, ditch or flume, any refuse from a slaughter house, slops from an eating house or saloon (Mills Stat. sec. 1376, Rev. Stat. sec. 1817) is within the police power of the state, and it is the duty of the courts to enforce it.

The manager of a hotel or eating house who discharges into a running stream the slops from his premises, or other offensive matter, is within the statute, and liable to the penalty thereby imposed.

2. -Writ of Error by the People-Judgment-In a prosecution for a statutory offense, evidence was given for the people tending to show the guilt of the accused. The court without considering the evidence, construed the statute as imperative, disregarded it, and discharged the prisoner. The judgment was reversed and the cause remanded, for further proceedings according to law.

Error to Larimer County Court.-Hon. FRED W. STOVER, Judge.

Mr. GEORGE A. CARLSON, district attorney, Mr. FANCHER SARCHETT, deputy district attorney, Mr. Aв ROMANS and Mr. CHARLES B. WARD, for plaintiff in error.

Mr. JUSTICE BAILEY delivered the opinion of the court: On July 14th, 1910, by leave of court, the district attorney of the eighth judicial district filed in the office of the clerk of the county court of the county of Larimer an information, supported by proper affidavits, charging the defendants with the offense of polluting a stream of running water in this state, contrary to the statute. The information contained one count and, excepting formal matters, is as follows:

"That Josephine Hupp and Henry Hupp, late of the county of Larimer and state of Colorado, on or about the 7th day of July, in the year of our Lord one thousand nine hundred and ten, at and within the county and state aforesaid, then and there being the owners, proprietors, managers and agents of certain public hotels, eating houses and closets therewith connected, to-wit, Hupp Hotel and Hupp Annex, did unlawfully empty and discharge by means of one certain drain and pipe into a tributary of the Big Thompson river, said tributary then and there being a stream of running water, certain obnoxious, fleshy, and vegetable matter and sewage, subject to decay, such as refuse from privies, closets and slops from eating houses, all connected with and a part of said Hupp Hotel and said Hupp Annex, contrary to the form of the statute in such case made and provided and against the peace and dignity of the same people of the state of Colorado."

The statute of the state, under which the charge is laid, is section 1376, Vol. 1, Mills' Ann. Stats., and reads as follows:

"If any person or persons shall hereafter throw or discharge into any stream of running water, or into any ditch or flume in this state, any obnoxious substance, such as refuse matter from slaughter-house or privy, or slops from eating houses or saloons, or any other fleshy or vegetable matter which is subject to decay in the water, such person or persons shall, upon conviction thereof, be punished by a fine not less than one hundred dollars nor more than five hundred dollars for each and every offense so committed."

On July 27, 1910, the case was called for trial, a jury impaneled and sworn, and the testimony of the people introduced showing: First. That the tributary described in the complaint was a stream of running water in Estes Park, Larimer county, Colorado; Second. That in the Park was situated two hotels, which were known as the Hupp Hotel and the Hupp Annex, and that the defendants were engaged in conducting the same; Third. That from one of the hotels slops from the kitchen and overflow from the cess-pool were being discharged into said tributary; and Fourth. That from a drain connected with the hotels, and having its outlet in said tributary, there was being discharged into the stream refuse from privy vaults.

At the close of the evidence for the state a motion for the discharge of the defendants was made and sustained in the following ruling:

I

"The defendants' motion to dismiss will be sustained. do not believe this statute was ever meant to reach as far as it is being attempted to be brought at this time. I am not attempting to pass on the evidence. This should certainly be stopped, but as to bringing this as a criminal action and placing defendants in such a position that they might be convicted on a mere technical violation of the statute, 'does not seem to me to be embraced within the statute. The jury will be discharged, the defendants discharged, and the costs taxed against the people."

It will be seen from the above that the court did not pass upon the sufficiency of the evidence, but expressly declined to do so, and placed a construction upon the statute, which in effect made it inoperative and inapplicable to the case at bar and similar cases. It is contended that this construction is erroneous, and to have this question determined and the law declared, as to whether a person discharging refuse and filth, after the manner shown in this case, into a stream of running water in this state, is subject to and controlled by the provisions of the statute upon which the information is based, the

case is brought here on error for review under a specific law providing therefor.

The statute under consideration was passed by the legislature by authority of what is known as the police power of the state. That power has been variously defined. In Vol. 22, 2nd ed., American & English Ency. of Law, at page 918, it is said:

"The police power is an attribute of sovereignty and exists without any reservation in the constitution, being founded upon the duty of the state to protect its citizens and provide for the safety and good order of society. * * * It is founded largely on the maxim sic utere tuo, ut alienum non laedas."

And at page 922 of the same volume this is said:

"Health being the sine qua non of all personal enjoyment, it is not only the right but the duty of a state or of a municipality possessing the police power to pass such laws or ordinances as may be necessary for the preservation of the health of the people."

In Platte & Denver C. & M. Co. v. Dowell et al., 17 Colo. 376, 383, it is said:

"If, therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the constitution.'-Mugler v. Kansas, 123 U. S. 623.

But if a statute is evidently designed to promote the public health, the public morals, or the public safety, and especially if it tends to produce the effect designed, it is valid so far as this specific objection is concerned unless there be a palpable invasion of constitutional rights."

In State v. Griffin, 76 Am. St. Rep. 139, 149, it is said: "It is not for the court to inquire into the wisdom or unwisdom of such legislation. Whether the act 'be wise, rea