
    C. W. DICKEY v. HAWAIIAN TRAMWAYS COMPANY,
    [No. 3770.]
    Exceptions from CmcuiT Court, First Circuit.
    Submitted June 29, 1896.
    Decided July 22, 1896.
    Judd, C.J., Frear and Whiting, JJ.
    A statute provided that within Judd Street, the Industrial School 'and Punahou street in Honolulu, the fare on the cars of a street railway company shall he five cents for each passenger.
    The company prior to 1892 ran no car on a continuous trip between Judd street and Punahou, but at that time a connection was made between the cross lines so that a continuous trip was made between the above termini, for which the company charged a fare of ten cents. Held, that the legal fare was five cents, and that the company was liable for a penalty for charging a greater sum of money for fare on its cars under Section 9 of Chap. 34, Session Laws 1884, providing for such penalty.
   OPINION OP THE COURT BY

WHITING, J.

On exceptions by defendant to a judgment for plaintiff rendered by Circuit Judge A. W. Carter, in an action for the sum of one hundred dollars, being amount of penalty provided for by Section 9, Chap. 34, Laws of 1884, for an overcharge of fare on one of the cars of defendant’s street railway in Honolulu.

Counsel for defendant did not in this case adduce any argument or file any brief pointing out error, and did not the correctness of the decision of the Circuit Judge, but admitted that he only desired to have the final decision of this court in this case, which was heard and argued with another case between same parties on, however, a different state of facts (being ]STo. 3771), this case being of value for illustration and distinction.

We adopt the statement of facts and decision of the Circuit Judge, as follows:

“The parties agreed upon the facts: That on the 28th day of April, 1896, the plaintiff entered a car operated by the defendant company on Unuann street near School in Honolulu, and paid five cents fare, traveled on the car down Huuanu street, then along Queen street to Tort street, thence along Fort street to Beretania street, thence along Beretania street to Punahou street, thence along Punahou street to near the Oahu College grounds. When the car was on Fort street near Hotel street the driver of the car demanded a fare of five cents saying that the fare was ten cents from Huuanu street beyond Hotel street on Fort street.

The additional five cents was paid by plaintiff. The defendant company operates the cars on the route aforesaid and is a foreign corporation doing business in Honolulu.

That prior to 1892 there were three distinct routes without any connections, one from the foot of Judd’s Hill on Huuanu street to the city front, another on Beretania street and another on King street between the Industrial School and the Rifle Range (i. e. near Punahou street). That defendant company charged five cents fare on each of these routes. That in 1892 a connection was made between Huuanu and Fort streets on Queen street; and passengers were carried from Judd’s Hill to Punahou without changing cars, making one continuous trip.

A franchise was granted to W. R. Austin, his associates and assigns, to construct and maintain a street railroad upon certain streets in Honolulu by Chap. 34, Session Laws of 1884. This Act was amended and re-enacted by Chap. 18, Laws of 1886. An extension of time within which to complete the road was granted by Ohap. 23 of Laws of 1888. Privileges to construct and maintain the line upon streets other than those mentioned in the above acts was given by Chap. 54 of Laws of 1888.

L. A. Dickey and S. M. Ballon, for plaintiff.

P. Neumann and G. A. Davis, for defendant.

Section 12, Chapter 34 of the Laws of 1884 provides: “The rates of fare for each passenger upon the said railroad shall not exceed five cents for each passenger using said cars up to and within Judd street, the Industrial School, and to and within Pnnahon street, and ten cents for each passenger using said cars beyond the last mentioned points.”

Section 9 of said Chapter 34, provides:

“If said railroad or any agent or employe thereof shall demand or charge a greater sum of money for fare on the cars of such railroad than that fixed by this bill, such railroad or such agent or such employe shall forfeit to the person who is thus overcharged the sum of one hundred dollars to be recovered in a civil action in any court having jurisdiction thereof.”

The Circuit Judge decided that the language of the statute is not ambiguous. It provides that within Judd street, the Industrial School and Punahou street the fare shall be five cents for each passenger. The car made one continuous trip within the limits defined by law and the fare was five cents.

Judgment was given for plaintiff.

We are of the same opinion. Exceptions overruled.  