
    C., C., C. & St. L. Ry. Co. v. Wells.
    
      Fare for passengers on railroads — Fare charged may be multiple of five, when — How computed.
    
    1. A railroad company operating a railroad in whole or in part in this state, may charge as fare that multiple of five which is nearest to the product produced by multiplying the rate of three cents per mile by the distance, whether such multiple is above or below such product.
    2. If such product should be equi-distant from the multiple below and the one above, the railroad company may charge as fare either multiple.
    (Decided November 28, 1899.)
    Error to the Circuit Court of Seneca county.
    The defendant in error, Winfield S. Wells, filed his petition against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company, to recover penalties for charging a greater rate of fare than is allowed by statute. The petition contains five separate causes of action, and the whole amount of penalties sued for is $750, being the sum of $150 for each cause of action. The first cause of action is as follows:
    Plaintiff says that defendant is a corporation duly organized under the laws of the State of Ohio, and that it is operating a line of railway in and through the State of Ohio.
    For first cause of action against' the defendant, plaintiff says:
    That on the 15th day of June, 1897, plaintiff, in the due course of his business, purchased a ticket of the agent of the said railway company at the defendant’s railway station at Tiffin, Seneca county, Ohio, which entitled plaintiff to ride on defendant’s train running between its station at Tiffin, Ohio, and its station at the village of Carey, Wyandot county, Ohio; that thereupon plaintiff became a passenger and rode upon defendant’s train between the said stations of Tiffin and Carey. That the agent of said railway company, for said ticket, charged, demanded and received of said plaintiff, the sum and price of fifty cents for plaintiff’s fare between said stations.
    Plaintiff alleges that the distance between the stations of Tiffin and Carey as aforesaid is fifteen and 60-100 miles, by actual measurement, and that, the amount so charged and received by defendant was more than defendant was entitled by law to charge for riding on said railway said distance of fifteen and 60-100 miles; whereby an action has accrued to the plaintiff for the same and he is entitled to have and receive from defendant by reason of the premises, the sum of one hundred and fifty dollars.
    The other four causes of action are in substance and form the same as the first. To this petition the railway company demurred, for the reason that said petition does not contain facts sufficient to constitute a cause of action against it.
    The court of common pleas sustained the demurrer, and the plaintiff below not desiring to amend, his petition was dismissed and judgment rendered in favor of the railway company, to all of which the plaintiff excepted.
    The circuit court upon petition in error reversed the judgment of the common pleas, and overruled the demurrer. Thereupon the railway company filed its petition in error in this court, seeking to reverse the judgment of the circuit court, and asking an affirmance of the common pleas.
    
      McCauley & Weller, for plaintiff in error.
    
      Willis Bacon, for defendant in error.
   By the Court:

The action was brought under Sections 3374 and '3376 of the Revised Statutes. Section 3374 is as follows: “A company operating a railroad, in whole or in part, in this state, may demand and receive for the transportation of passengers on its road not exceeding three cents per mile, for a distance of more than eight miles; but the fare shall always be made that multiple of five nearest reached by multiplying the rate by the distance.” Section 3376 provides that for a violation of Section 3374, the railway company shall pay to the party aggrieved for every such overcharge a sum equal to double the amount of the overcharge, but in no .case less than $150.00.

These sections of the statute are highly penal, and should be strictly construed; and in case of doubt, should be so construed as to avoid the penalty; but if the intention of the general assembly is clear, then effect should be given to that intention, even though penalties may thereby be exacted.

The controversy arises over that part of the statute which provides that “the fare shall always be made that multiple of five nearest reached by multiplying the rate by the distance.”

The statute was passed to avoid the trouble of making change in pennies, and was regarded as a favor to the railroad companies. It was assumed that the losses and and gains would be substantially equal, and therefore there would be no loss either to the railroad companies or the public, while both would be greatly eonvenienced by making change in multiples of five.

To allow thé railroad companies to always charge as fare that multiple of five next above the product of the rate by the distance, would inure to their benefit and to the detriment of the public, while the object of the statute was to benefit neither, but convenience both.

It is urged by counsel for plaintiff in error, that the words “nearest reached,” mean a point approached but not yet reached, and that therefore the fare to be charged is that multiple of five first above the product of the rate by the distance and not below it, because the one beloAV has been reached and passed.

We are clearly of opinion that this was not the intention of the general assembly. The statute is not one of linear measure. It does not imply that by measurement a point is reached and passed, and another point approached and not reached. The true construction is that the rate is multiplied by the distance and the product thus obtained constitutes the point in numbers from which to reckon, and from this point the nearest multiple of five, whether above or below, is reached and made the fare to be charged. If this point should be equally distant from the multiple of five next below and the one next above, the railroad company may charge either fare without incurring any liability under the statute, because under a strict construction it could not be said in such cases that the statute had been violated.

Judgment affirmed.  