
    C. W. DICKEY v. HAWAIIAN TRAMWAYS COMPANY.
    [No. 3771.]
    Exceptions from Cibcuit Couet, First Circuit.
    Submitted June 29, 1896.
    Decided July 24, 1896.
    Judd, C.J., Frear and Whiting, JJ.
    A street railway company which is prohibited by law from charging more than five cents for each passenger using its cars within certain limits, cannot, by causing a change of cars within those limits, acquire the right to charge an additional fare.
   OPINION OF THE COURT BY

WHITING, J.

On exceptions taken by defendant to a judgment of the First Circuit Court in favor of plaintiff in an action to recover 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 a car of a street railway operated by defendant in Honolulu.

On June 3rd, 1896, tbe plaintiff entered a car operated by tbe defendant on Nuuanu street in Honolulu near School street, and travelled on said car as a passenger along Nuuanu street to Queen street thence along Queen street to tbe corner of Queen street and Fort street. On this car plaintiff paid a fare of five cents. This car stopped at tbe corner of Queen and Fort streets and returned by tbe same route. Tbe plaintiff requested of the driver of tbe car a transfer to the car going up Fort street and on Beretania street; tbe driver refused tbe transfer; thereupon plaintiff entered tbe first car going up Fort street which left about three minutes after tbe arrival of tbe Nuuanu street car and upon tbe demand of the driver of this car paid an additional five cents fare, making in all ten cents demanded and paid on this occasion to the employe of tbe defendant company.

'A franchise was granted to AY. R. Austin, bis associates and assigns to construct and maintain a street railway upon certain streets in Honolulu by Chap. 34, Laws of 1884. This Act was amended and re-enacted by Chap. 18, Laws of 1886. An extension of time within which to complete tbe road was granted by Chap. 23, Laws of 1888. Privilege to construct and maintain tbe line upon streets other than those mentioned in the above Acts was given by Chap. 54, Laws of 1888. Tbe defendant company operates the tramway in Honolulu and bolds its franchise under said Acts.

Section 12, Chapter 34, Laws 1884, provides:

“The rates of fare for each passenger upon the said railroad shall not exceed five cents for each passenger using said cars to and within Judd street, the Industrial School and to and within Punahou 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 said railroad, than that fixed by this bill, said railroad or such agent or snob employe shall forfeit to tbe person, who is thus overcharged, the sum of one hundred dollars to be recovered in a civil action in any court having jurisdiction thereof.”

Prior to 1888, the tramways were run under the Act of 1884, and there were three distinct routes, the one from Judd street or near there down Nuuanu street to the city front (northerly and southerly being the general direction); the other one was on Beretania street (easterly and westerly), and the third one on King street (parallel to Beretania street) running between the Industrial School and the Bide Bange near Punahou street (easterly and westerly). The Beretania street line turned into Port street and ran southerly to the city front parallel with Nuuanu street.

The defendant charged the public a five-cent fare on each of those routes, there being at that time no connection. In 1888, the legislature permitted the company to form a connection between Nuuanu street and Port street on Queen street, and from 1892 this junction was perfected and passengers were carried from Judd street on Nuuanu down Nuuanu to Queen street, along Queen to Port street, up Port to Beretania and along Beretania to Punahou, making one continuous trip. This was within the limits fixed by Section 12, Chapter 34, Laws 1884, for a five-cent fare.

After the bringing of the former action by the plaintiff (a decision wherein was filed July 22, 1896, and marked No. 3110 for identification), the defendant company abandoned the connection, and stopped the Nuuanu car on Queen street at the comer of Port street, which car it caused to return over the same route to Judd street. It, however, ran a car passing up Port street to Beretania street to Punahou, and still maintained its continuous track connection by a turn or curve from Queen into and up Port street. The defendant maintains all the necessary curves to form a continuous rail or track from Judd street to Queen, to Port and Beretania streets, to Punahou.

This is made a test case, the facts being agreed upon by the parties.

L. A. Dichey & S3. M. Ballou, for plaintiff.

P. Neumann and Q-. A. Davis, for defendant.

Tbe claim in tbis case is that tbe defendant bas tbe right to sever a connection wbicb they were not obliged to make, and, there being no longer one continuous trip, that passengers are liable for two fares.

Tbe system of tbe street railway in Honolulu operated by defendant is a general one and all its lines make connections, and, in nearly all, by means of curves, a continuous track or rail is laid so that a continuous trip can be made from point to point within tbe limits of tbe five-cent fare. The statute does not give tbe right to tbe defendant to treat any one line as a single road. Tbe statute is clear and not ambiguous, and shows that a passenger traveling on tbe cars within tbe limits stated by said Section 9, Obap. 34, can only be charged a fare of five cents. Tbe company must regulate its business in accordance with tbe terms of tbe statute granting its franchise, and it bas power and right to make reasonable regulations for tbe government and carrying of its passengers and tbe collection of fares and tbe conduct of its business. But tbe fact that it neglects or refuses to make suitable regulations to protect itself against fraud by passengers, does not permit it to charge a fare in excess of that allowed by law. It being within its power to carry passengers within tbe specified boundaries on a continuous trip, it cannot by a mere division of this trip by causing a change of cars at any particular point acquire tbe right to make a second charge of fare for the same trip.

It is clear that tbe company was entitled to charge but one fare of five cents in tbis case. By a mere change of cars tbe company does not become entitled to an additional fare. A person traveling on tbe ears of tbe defendant, however, must be a passenger and must make a continuous trip so far as practicable and this from one point within tbe limits specified to another point therein, and be is not entitled to a return upon tbe road for tbe one fare for it would not be tbe same trip.

Exceptions overruled.  