unless it shall clearly appear that it was so intended by the legislature, and not even then, if such construction would impair vested or constitutional rights." State v. Atwood, 11 Wis. 425; State ex rel. Davis & Star Lumber Co. v. Pors, 107 Wis. 427; Winneconne v. Winneconne, 122 Wis. 318. Nor is such intention "to be assumed from the mere fact that general language is used, which might include past transactions as well as future. Statutes are frequently drawn in such a manner. Yet such general language is held to have been used in view of the established rule, that statutes are construed as relating to future transactions and not to the past." Seamans v. Carter, 15 Wis. 548; Austin v. Burgess, 36 Wis. 190; 2 Lewis Sutherland Stat. Constr., sec. 684. There is also a cognate rule of construction, equally well established, that a remedial statute which merely confirms existing rights, provides a remedy for such rights, adds to or substitutes new remedies for existing ones, may and generally should be construed retrospectively in furthering the ends of justice, if the fair import of the language used will admit of such construction. 2 Lewis Sutherland Stat. Constr., sec. 671. "But the legislature under a pretense of a remedial law, cannot engraft upon such law provisions invading the sanctuary of vested rights, or prescribe rules of action to be observed in reference to acts past, impairing such rights or condemning such conduct, so as to make acts previously done which were lawful in their inception, unlawful ab initio." Smith Statutory & Constitutional Law, sec. 155. In arriving at a proper conclusion as to whether the amendment is remedial in character, as contended by counsel for petitioner, we must first ascertain whether the alleged claim was valid and existing at the time of the transactions out of which it arose; for no legal liability can be created out of a past transaction unless it arose by virtue of the then existing law. 2 Lewis Sutherland Stat. Constr., sec. 671, and cases cited in note. That sec. 1798 of the Statutes of 1898 prohibits unreasonable charges for transportation by railroad corporations is not controverted. This is merely confirmatory of the common law. But this section was superseded by the act of 1905. Therefore, to sustain the position of petitioner that the amendment to the act of 1905 merely provides a remedy for an existing right, it is essential to hold that the act either does not repeal the common law or is itself a remedial statute confirming the common law. In this connection much stress is laid by counsel for

petitioner upon sec. 3 of the act which provides that "the charges made for any service rendered in the transportation of passengers or property . shall be reasonable and just; and every unjust and unreasonable charge for such service is prohibited and declared to be unlawful." The sentence in italics was taken from the Interstate Commerce Act of 1887, and is found in similar statutes of other states. But what is an "unjust and unreasonable charge" within the meaning of the section quoted cannot be determined independently of and apart from the act as a whole. The terms "just and reasonable" and "unjust and unreasonable" are frequently used in other sections of the act. The correlation of the different sections, therefore, must be taken into consideration in arriving at a proper interpretation of the same. We shall therefore briefly set forth in substance the important provisions of the act material to the questions under consideration. Sec. 4 provides that every railroad shall print and file with the Commission schedules showing all rates and charges for transportation and shall keep on file in every station or depot two copies of such schedules accessible to the public; that such rates and charges shall not exceed the minimum charge fixed in the published schedule of rates in force on the first day of April, 1905; that no change shall be made in any schedule except upon ten days' notice to the Commission; that:

"It shall be unlawful for any railroad to charge, demand, collect or receive a greater or less compensation for the transportation of passengers or property or for any service in connection therewith than is specified in such printed schedules, including schedules of joint rates, as may at the time be in force, and the rates, fares and charges named therein shall be the lawful rates, fares and charges until the same are changed as herein provided."

Sec. 12 provides that upon complaint of any person, firm, etc., that any rate or charge is unreasonable or unjustly discriminatory, the Commission may investigate the matter and if upon such investigation it shall find that any rate or charge complained of is unreasonable or unjustly discriminatory, it may fix and order substituted therefor such rate or charge as it shall have determined to be just and reasonable, and that the Commission may make such investigation upon its own motion.

Sec. 15 is as follows:

"All rates, fares, charges, classifications and joint rates fixed

by the commisssion shall be in force and shall be prima facie lawful, and all regulations, practice and service prescribed by the commission shall be in force and shall be prima facie reasonable, until finally found otherwise in an action brought for that purpose pursuant to the provisions of section 16 of this act."

Sec. 16 gives the parties in interest a right of action against the Commission to set aside any order of the Commission fixing any rate, etc.

Sec. 22 prohibits the charging, demanding, collecting or receiving by a railroad any other compensation for services than that fixed in the schedules on file. A penalty is inflicted for a violation of any of the provisions of this section.

Sec. 24 makes it unlawful for any person to accept or receive any rebate, concession or discrimination whereby any property is transported at less than schedule rates.

Section 25. "If any railroad shall do or cause to be done or permit to be done any matter, act or thing in this act prohibited or declared to be unlawful, or shall omit to do any act, matter or thing required to be done by it, such railroad shall be liable to the person, firm or corporation injured thereby treble the amount of damages sustained in consequence of such violation."

Obviously, if any schedule rate is in and of itself, or for any reason, unjust and unreasonable and therefore unlawful under sec. 3, there is a direct conflict between this section and the following section which declares such rate to be lawful until changed in the manner prescribed. But such a consequence must be avoided if the act as a whole can be so construed as to harmonize all parts thereof. The rule of construction applicable here is stated by DIXON, C. J., in Harrington v. Smith, 28 Wis. 59, in the following language:

"The true rule for the construction of statutes is, to look to the whole and every part of the statute, and the apparent intention derived from the whole, to the subject matter, to the effects and consequences, and to the reason and spirit of the law; and thus, to ascertain the true meaning of the legislature, though the meaning so ascertained may sometimes conflict with the literal sense of the words. This principle in the construction of a statute, that every part of it must be reviewed in connection with the whole, and, in addition, that it must be construed so as to make all parts harmonize if practicable, and give a sensible and intelligible effect to each, and not to place one portion in antagonism to another, has been recognized and enforced in a great variety of cases, and is, in fact, elementary.”

We are not, however, without authority on the precise question here under discussion. The Interstate Commerce Act and similar legislation in other states in which like phraseology is used, have been construed by the courts in this same particular. In Winser Coal Co. v. Chicago & A. R. Co. 52 Fed. Rep. 716, a similar statute of Missouri was before the court for construction. Plaintiff charged that the defendant railroad company had exacted an unreasonable rate for carloads of coal shipped from Higginsville to Kansas City, Mo. It appeared that the rate charged was 65 cts. a ton. Plaintiff contended that the charge was excessive and that 45 cts. a ton was the reasonable charge and demanded judgment for treble the excess. There was no allegation that the charge made was in excess of the schedule rate. Judge Phillips, after reviewing the general policy and main features of the act, proceeds as follows:

"Throughout the entire act it is clear that it was the legislative mind to impose upon the chosen agents of the state-the railroad commissioners-the duty of supervising and regulating the rates charged by such carriers, and to ascertain and declare, from time to time, as the changing conditions of trade and commerce might suggest, what, as between shipper and carrier, is a reasonable and just rate of compensation. In the absence of any affirmative action by the commissioners, the legislature declares a maximum rate, and the carrier is to make and keep public a schedule within this maximum. The railroad commissioners may revise it, if deemed right and just to do so; and the rates thus fixed are to be observed by the carrier until changed conformably to the statute. The statute expressly deciares it to be unlawful for the carrier to exact a greater or less rate than that so scheduled. In the absence of any affirmative action by. the commissioners, the intendment of law arising from the legal presumption that public officers perform their duties should be that no complaint had arisen of unjust charges, or that the commissioners, who are presumed to be in possession of the schedule adopted by the carrier, deemed the maximum fixed by the carrier and the legislature to be reasonable and just. *

* *

"Statutes of this character are not peculiar to this state. Similar legislation is to be found in other states, such as Nebraska, Iowa, Illinois, Georgia, and perhaps others. While these statutes may differ somewhat in phraseology and detail, the general trend, scheme and policy are the same. The courts of those states, in construing their statutes in the particular under discussion, hold that the carrier may charge the maximum rate fixed by the statute and a liability to the penal action never arises until the carrier passes in his charges this dead line. This for the

reason, which stands upon a granite foundation of public justice and common sense, that no act of the citizen can be unlawful which the law permits. A statute which would attempt to declare a different rule would not only be a legal solecism, but would commit an act of felo de se. See Railroad Co. v. Dey (Iowa), 48 N. W. Rep. 98; Railway Co. v. Dey, 35 Fed. Rep. 873-876; State v. Fremont, etc. R. Co. (Neb.) 35 N. W. Rep.. 118, and 36 N. W. Rep. 305; Sorrell v. Railroad Co. 75 Ga. 509; Chicago B. & Q. R. Co. v. People, 77 Ill. 443.

“A right of action in favor of the shipper, it may be conceded, existed at common law for extortionate charges, but the statute has superseded the common law remedy. Young v. Railroad Co. infra; Ror. R. R. 1373 and notes. The plaintiff having no ground of action for an unreasonable and unjust charge against the carrier, except where the carrier has transcended the limit prescribed by the state's agents, the petition should allege the facts necessary to bring the case within the operation of the statute. Kennayde v. Railroad Co. 45 Mo. 258; King v. Dickenson, 1 Saund. 135; Bayard v. Smith, 17 Wend. 88."

The supreme court of Missouri had occasion to pass upon a similarly alleged state of facts in McGrew v. The Mo. Pac. Ry. Co. 114 Mo. 210. BURGESS, J., speaking for the court in that case, says:

"The petition nowhere alleges that the rates charged are in excess of the rates fixed by the defendant and filed with the railroad commissioners, and posted up in the depots and stations along the line of its road, nor does it allege that the charges were in excess of the maximum rates fixed by the commissioners or by the statute. If then the schedule rates of defendant were posted up in its depots and stations and filed with the commissioners, the presumption is that the rates were approved by them, or if the commissioners had fixed the rates, or they were fixed by statute, then rates so fixed were not unreasonable, because authorized by the statute." Sorrell v. Railroad, 75 Ga. 509; Railroad v. People, 77 Ill. 443.

In Kinnavey v. Terminal R. Assn. 81 Fed. Rep. 802, referring to the Interstate Commerce Act, the court says:

"Section 6 requires the carrier to print, and keep open to the public inspection at its stations, and file with the interstate commerce commission, schedules of its established rates and charges. for the transportation of freight, and prohibits any advance or reduction in such rates or charges without prior public notice, and further provides that it shall be unlawful for any carrier of interstate commerce to charge or receive from any shipper a greater or less compensation than that specified in the schedules.