The opinion
Mr. Justice Scott and Mr. Justice McAllister: We concur in reversing the judgment in this cause, but dissent from the reasoning of the opinion of the majority of the court, especially so far as it may be said to assume the constitutionality of the act under discussion. As the majority of the court have avoided any discussion of the real merits of the case, we do not deem it necessary to express our views at length.
Mr. Chief Justice Walker and Mr. Justice Scholfield :
We hold that the first, second and third sections of the act create complete offenses, independent of the eighth section; that the fourth section imposes penalties for their violation; that the eighth section only prescribes a rule of evidence on the trial for the recovery of the penalty. Whether that section is valid, and has changed the rule, does not, as we think, arise on the pleadings, and can only be presented for decision when the schedules provided for by it shall be offered in evidence.
We hold that the averments contained in the 20th count show a violation of the second and third sections of the act. and that it is good. Those sections define the offense of unjust discrimination, and the averments show that the offense was committed. The pleas fail to present a defense to the charge of unjust discrimination for the use of the cars, and the statute has declared that the facts stated in this count prima facie constitute an unjust discrimination, and the statute is warranted under the decision in the case of The Chicago and Alton Railroad Co. v. The People, 67 Ill. 11 , Avhere it Avas held that the General Assembly have the power to declare that the facts averred in this count shall be held prima facie evidence of unjust discrimination, leaving the company to overcome the presumption. In this case there was no evidence to rebut the presumption, but, on the contrary, the demurrer admits the facts, and we think the judgment should be affirmed under the 20th count in the declaration. But we refrain from the expression of any opinion as to -what, if any, change of the rules of evidence has been made by the eighth section of the act, as that question does not arise on this record. The want of time prevents us from presenting our views in a more extended form.