
    (Butler County Court of Common Pleas.)
    R. L. HEATON v. THE C., H. & D. R. R. CO.
    Under section 3374, Revised Statutes, which provides that railroad companies may charge a fare of three cents per mile, but that the fare “shall always be made that multiple of five nearest reached by multiplying the rate by the distance, ’ ’ a company may always charge that multiple of five next above or beyond the product of the rate by the distance, though the difference between such multiple and such product may be greater than that between the prgduct and the multiple of five next below it. Instance: For a distance of 21.8 miles,seventy cents and not 65 cents is the legal fare.
   Van Pelt, J.

On general demurrer to plaintiff’s petition, wbich states substantially the following facts: In June, 1892, plaintiff desiring to go from Dayton, 0., to Middletown, 0.-, a distance of 21.8 miles, took passage on a regular train of the defendant company running between the two places. He did not buy a ticket, intending to pay his fare on the train. The conductor demanded seventy cents as the fare. Plaintiff paid it under protest. He avers that said sum was more than defendant was entitled to charge for said distance, and that by reason thereof a right of action has accrued to him to recover the sum of $150, for which he prays judgments

Section 3374, Revised Statutes, provides that ‘ ‘ a company operating a railroad in whole or in part in this state, may demand and receive for the transportation of passengers oiFits road not exceeding three cents per mile, for a distance over eight miles; but the fare shall always be made, that multiple of five nearest reached by multiplying the rate by the distance. ’ ’

Section 3376, as amended March 17, 1892, (89 Ohio Laws, 117), provides that a company “which demands or receives a greater sum for the transportation of passengers * * * than the sum allowed by law, shall pay to the party aggrieved for every such overcharge a sum equal to double the amount of overcharge; * * * but in no case shall the amount be less than one hundred and fifty dollars, to any bona fide claimant using the road of such company, etc.”

The simple question in this case is — was- seventy cents more than the company was entitled to charge for the distance of twenty-one and eight-tenth miles? At three cents per mile the amount would be sixty-five and four-tenth cents. The nearest multiple of five below this is sixty-five cents even. The multiple of five next above is seventy cents. Which should the conductor have charged plaintiff? If the former, the petition states a cause of action. If the latter, it does not.

Plaintiff claims that the company could charge only the nearest multiple of five, though that might be less than three cents per mile for the whole distance; that the company must take the nearest multiple of five, whether it be above or below the product of the rate by the distance.

The company claims that it is entitled to charge that multiple of five next above the product of the rate by the distance, though the difference between such multiple and the product may be greater than between such product and the multiple of five next below it.

P. J. Whitmore, for plaintiff.

Thos. Millikin, for the company.

The court is of the opinion that the claim of the company is correct.It was entitled to the full three cents per mile. To adopt the plaintiff’s view in this and like instances would make the fare less than three cents a mile. The language of the section that the fare shall be the multiple of five “nearest reached” by multiplying the rate by the distance, authorizes the company, where the product of the rate by the distance is not an exact multiple of five, to go to the multiple next beyond that product. To reach, means to extend to, to stretch out as far as; and in this section nearest reached means nearest come up to or approached. Any other construction would lead to confusion. Let us see. Take a distance of twenty-two and one-half miles — this at three cents per mile would be sixty-seven and one-half cents. Exactly half way between sixty-five and seventy cents. One multiple is just as near to the product as the other. On plaintiff’s theory, which should the company charge? It cannot tell. But if we hold that the multiple of five “nearest reached” means always the multiple of five next above or beyond the product of the rate by the distance, there is no trouble in determining the fare for any and all distances.

This question has never been passed upon by our Supreme Court. In the case of R. R. Co. v. Skillman, 39 Ohio St. 444, the common pleas, in the charge to the jury, gave the same construction to the statute which is given above, but the higher court did not pass upon the correctness of the charge on this point.

Demurrer sustained.  