
    Pittsburgh, Cincinnati and St. Louis Railway Company v. Moore.
    1. A demurrer to a pleading admits only what is well pleaded therein. It does not admit a conclusion of law unwarranted by the facts on which it is predicated.
    2. Courts can not take judicial notice of a private or special statute, unless it be specially pleaded. And in pleading such a statute, or a right derived therefrom, it must, at least, be referred to by its title, and the day of its passage.
    3. Special privileges conferred on a railroad company by a private charter, granted under the constitution of 1802, do not so inhere in the road constructed under such charter as necessarily to pass to any corporation which may have acquired, under subsequent legislation, the right to operate the same.
    
      4. The act of April 25, 1873, amendatory of the 13th section of the act of May 1, 1852 (70 Ohio L. 161), which prohibits any corporation operating a railroad in this state from demanding and receiving for the transportation of passengers more than three cents per mile, for a distance of more than eight miles, gives the party aggrieved a right to recover from such corporation a forfeiture of not less than twenty-five dollars for each case of overcharge.
    Error to the Court of Common Pleas of Union county. Reserved, in the district court.
    
      The original action was brought in the Court of Common Pleas of Union county, by defendant in error, to recover of the plaintiff in error the forfeitures. provided by the act of April 25, 1873, entitled “ an act to amend section 13 of an act entitled ‘ an act to provide for the creation and regulation of incorporated companies in the State of Ohio/ passed May 1,1852 ” (70 Ohio L. 161). The statute under which the suit was brought reads as follows : “ Any corporation operating a railroad in whole or in part in this state, may demand and receive for the transportation of passengers on said road, not exceeding three cents per mile for a distance of more than eight miles; . . . and every such corporation . . . who shall violate, or permit to be violated, the provisions of this act, or any other corporation, company, person or persons who shall demand or re■ceive a greater sum of money for the transportation of passengers ... on or over their railroad than the sum allowed by law, shall forfeit and pay to the party aggrieved a sum equal to double the amount of the overcharge, but in no case shall the amount of the forfeiture be less than twenty five dollars.”
    In the petition of the plaintiff below, in as many paragraphs, separately stated and numbered, nineteen distinct violations of this statute were charged, in each of which the distance traveled over the road of defendant below is stated, and also the fare demanded and received by said defendant for such travel, which in each case exceeds the rate of three cents per mile. In no one of the cases alleged, however, did such excess amount to twelve dollars and a half, nor did the aggregate of such excess, in all the eases, amount to that sum. Plaintiff below demanded a judgment for twenty-five dollars for each of the alleged violations of the, statute.
    As to eight of these paragraphs, or causes of action, defendant below, who is here plaintiff in error, demurred, and' its demurrer was sustained. As to the remaining eleven» causes of action, three defenses were set up by answer:. The first was a general denial of the facts stated in the petition. By the second, it was claimed “ that the several causes of action, in the petition set forth, constitute, if true, but one cause of action for the penalty claimed therein.” The third defense was as follows: “As to the respective causes of action set forth in the third, sixth, seventh, eighth, ninth, tenth, eleventh, fourteenth, fifteenth, sixteenth, and seventeenth paragraphs, and to each of them, as if separately answered, the defendant, to each severally answer’s, and says: The defendant was, at the times mentioned in said respective paragraphs, operating the railroad in the petition described, leading from Columbus to Bradford Junction; that said railroad was constructed by the Columbus, Piqua and Indiana Bailroad Company, a corporation duly incorporated under the laws of the State of Ohio; and under, and by virtue of the franchises of said corporation, and the vested rights of property in respect to rates and tolls inhering and incident to said railroad, constructed by said corporation under its charter and the contract of the state with said-corporation, the defendant, operating said railroad as bailiffs, as in the plaintiff’s petition alleged, had, at the times respectively therein stated, good right and lawful authority to demand and receive of the plaintiff, and others, transported on said railroad as passengers, the rates and tolls respectively provided in said charter, and the act to which the same refers, between the several stations named respectively in each of said paragraphs, as provided in said charter; and the defendant denies that the distance between Milford Center and Piqua is only forty-four miles; and the defendant denies that the distance between Milford Center and Eletcher is only thirty-eight miles; and says that the distance between the said stations first named is forty-four miles, and four thousand seven hundred and thirty-six feet; and the distance between the stations herein last named is thirty-eight miles, and one hundred and eleven feet. And the defendant, therefore, insists that he had good right and lawful authority, and for the causes herein-before stated, to charge the said rates and fares in the said respective paragraphs mentioned, for the transportation of the plaintiff’ between the said several stations.”
    To this third defense the plaintiff' below demurred, and his demurrer was sustained; and thereupon, neither party demanding a jury, the cause was submitted to the court upon the remaining issues joined between the parties; whereupon the court found for the plaintiff, and that the defendant, by reason of the premises, had forfeited to the plaintiff the sum of two hundred and seventy-five dollars, to wit: twenty-five dollars for each of said overcharges; for which sum of two hundred and seventy-five dollars, judgment, was accordingly entered in favor of plaintiff below, and defendant below excepted to the ruling on such demurrer, and to said judgment.
    Plaintiff in error thereupon filed its petition in error in the district court, seeking a reversal of said judgment, on the ground of error in sustaining the demurrer to its third defense, and in holding it liable to a forfeiture of twenty-five dollars on each and every cause of action, in regard to which the court found for the plaintiff below. The questions arising, on this petition in error', were reserved by the district court, for the decision of the Supreme Court.
    
      J. S. Swan, for the plaintiff iir error:
    1. The penalty against railroad companies, under the above recited act of .April, 1873, for charging more for transportation than the law allows, is double the overcharges, and not the twenty-five dollars mentioned in the proviso. When, therefore, an action is brought to recover double the overcharges at different times, we claim, if the aggregate amount of the overcharges, when doubled, is less than twenty-five dollars, the plaintiff is entitled to a judgment for twenty-five dollars, to cover such double overcharges, and to cover the expenses of prosecuting the action; and, on the other hand, if the overcharges, doubled, amount to more than twenty-five dollars, the plaintiff is entitled, under the section, to a judgment for double the overcharges.
    As a peual statute will be construed strictly, and penalties not be implied or multiplied beyond its express terms, we refer the court to the peculiar language of the statute. It will be observed that it does not provide that the twenty-five dollars shall be recovered for each and every overcharge, where double the amount of each overcharge is less than twenty-five dollars. It would have so provided, if it had adopted the usual and customary language of penal statutes, had such been the intention. To find that intention the court must, after the word “ forfeiture,” in the proviso, interpolate the words “for each and every overcharge.” So, too, if double the overcharges sued for, amounts to twenty-five dollars or over, it is clear the plaintiff can recover no more than double the overcharges; and, in such case, the twenty-five dollars mentioned in the proviso has nothing to do with the amount of the recovery or forfeiture.
    Frequently, in the enormous number of separate packages and charges, overcharges may be so small in amount that, if double the overcharges only could be recovered in these small cases, the party suing before a justice, would not be compensated for his time and trouble. Hence the proviso in this act allowing a recovery in such case of twenty-five dollars, to compensate the party injured for his expenses in the prosecution, and not as a penalty inflicted upon the defendant.
    Again, if the twenty-five dollars had been intended as a penalty or punishment, it would not have been altogether remitted or dispensed with by the statute, in cases where the extortion was so great that double the overcharges amounted to more than twenty-five dollars ; and at the same time, when the overcharges were slight or nominal, and less than twelve dollars and fifty cents, punish it by a penalty of not less than twenty-five dollars. If, therefore, the twenty-five dollars is construed as a penalty or punishment, instead of an equitable compensation to the plaintiff for time ancl trouble, it has this absurd characteristic: that is, the twenty-five dollars, construed as a punishment-, comes in play when the extortion is a few cents; but if the extortion is exorbitant, the twenty-five dollar punishment is not inflicted at all, but the company refund double the overcharges only; thus, in fact, mitigating the punishment for the violation of a law, in proportion to the flagraney of the extortion which it was intended to discourage and punish by penalties. Fisher v. N. Y. C. R. R., 46 N. Y. 644.
    We claim, in this case, that the overcharges, when aggregated and doubled, being less than twenty-five dollars, the plaintiff below could claim a verdict and judgment for twenty-five dollars only; and that he should have prosecuted this action before a justice of the peace.
    II. The second defense is, that the defendants below were operating the line of road of the Columbus, Piqua and Indiana Railroad Company, as bailiffs, or mere agents, and under the charter of that company, were authorized to charge the rates complained of.
    The Columbus, Piqua and Indiana Railroad was, by special act, incorporated February 23, 1848 (47 Ohio L. 155). It was, by its charter, vested with all the rights prescribed in the act of February 1, 1848 (S. & C. 271, note), which grants the right of charging for transportation of passengers (S. & C. 273, note, § 12).
    The rates being “ allowed by law,” the act under which this action is brought does not affect or impair the charter of the Columbus, Piqua and Indiana Railroad.
    Since this case was reserved, the Supreme Court have held that the old charters, granted prior to 1851, are not impaired by subsequent legislation. It is therefore unnecessary to argue this question.
    The general demurrer to the answer should, we claim^ have been overruled.
    
      J. B. Cole, for defendant in error:
    In support of the judgment below, we cite Shields v. The State, 26 Ohio St. 86; State v. Sherman, 22 Ohio St. 411, as to the points that plaintiff in error being a new and distinct corporation, created under the new constitution, is governed by the laws under which the action is brought, and is not entitled to charge the rates allowed to the corporation which constructed the road, the said original corporation having ceased to exist before this one was created.
    As to the theory contended for by plaintiff in error, that all the offenses set forth in the petition, constitute but one cause or action for the penalty. That is equivalent to saying that the right of action that accrued immediately upon each offense, was barred as soon as the offense was repeated, therefore the theory is absurd. The aggregation of the penalties gives jurisdiction to a competent court, and makes the possible recovery commensurate with the expense and risk of the suit.
    The Ohio statute provides, that “ in no case shall the amount of the forfeiture be less than twenty-five dollars.” This language supplies the defect in the statute of New York, upon which the court mainly based its decision in the case cited by plaintiff in error, from the reports of that state.
    The penalty by the New York statute appears to be affixed to the practice of overcharging, while that of Ohio is affixed specifically to each offense. Though the ultimate object is the same in both.
    Every offense is a “ case ” within the meaning of the Ohio statute.
    The object of the law being to stop overcharging, such a construction thereof as will, in no case of its violation, allow an escape from the full penalty of twenty-five dollars, laid down thereby should prevail, and any other will defeat the purpose of the legislature in making it.
    The right to recover double the overcharge set forth, upon each cause of action, is admitted. And the law is, that in no case of recovery shall the amount be less than twenty-five dollars. Therefore the whole recovery must be twenty-five upon each paragraph.
    The answer does not set forth that the corporation defendant was operating the railway as bailiffs of the Columbus, Piqua and Indiana Railroad Company, nor under any authority whatever derived from that company, nor does the petition allege any thing of the kind.
    The argument based upon that supposed allegation is therefore unfounded, and the answer, on that account alone, insufficient on demurrer.
    No such allegation could be truthfully made, and, therefore, none such was attempted.
   Scott, J.

The first question arising upon the assignments of error in this case is: Did the court of common pleas err in sustaining the demurrer of plaintiff below to the third defense of defendant below, who is here plaintiff in error? A demurrer to a pleading admits the truth of the allegations therein made, only so far as they are well pleaded. Now,-this third defense, as we understand it, alleges that the railroad upon which the fare was charged was constructed by the Columbus, Piqua and Indiana Railroad Company, a corporation duly incorporated under the laws of the state, which by its charter had a right to charge for the transportation of passengers the rates stated in the petition of plaintiff below, and that the defendant below was operating said railroad as a bailiff, and had therefore a right inhering in said railroad to charge the rates for transportation of passengers stated in the petition of plaintiff' below.

The general law of the state, as embodied in the statute under which this action was brought, allows corporations operating a railroad within this state to charge three cents per mile, and no more; for the transportation of passengers for a distance exceeding eight miles. Of such public and general statutes courts are bound to take judicial notice. But if a right to charge a higher rate of fare be conferred by special statute on a particular corporation by the terms of its charter, such right being founded on a statute of a private character, must, in order to be available, be specially pleaded. Section 123 of the code of civil procedure provides that “in pleading a private statute, or a right del’ived therefrom, it shall be sufficient to refer to such statute by its title and the day of its passage, and the court shall thereupon take judicial notice thereof.”

Rut in the ease before us, the alleged statute conferring special franchises on the Columbus, Piqua and Indiana Railroad Company is, in the defense under consideration, referred to neither by its title, by the date of its passage, nor in any other way whatever. The court below could not, therefore, properly take judicial notice of any special franchises alleged to have been conferred by its charter on the Columbus, Piqua and Indiana Railroad Company. Besides, the defense under consideration does not allege that the defendant below was operating the road as bailiffs of the Columbus, Piqua and Iudiana Railroad Company, but seems to be based on the theory that the right to demand and receive special rates of fare was, by the charter of said company, made inherent in the road, and so passed with the road to any person or corporation lawfully authorized to operate it. The untenable character, of this theory is clearly shown by the cases of The State v. Sherman, 22 Ohio St. 411, and Shields v. The State, 26 Ohio St. 86. We think, therefore, that the facts stated in this defense do not justify the legal conclusion drawn therefrom by the pleader that the defendant had a lawful right, for the causes stated, to charge the rates of fare in the petition alleged, and the demurrer thereto was for this reason well taken and properly sustained.

Plaintiff below, in his petition, averred that defendant below had unlawfully demanded and received from him for transporting him as a passenger from Milford Center to Piqua, Ohio, a distance of forty-four miles, the sum of $1.55; and, in another paragraph, that the defendant below had demanded and received from him as fare for his transportation as a passenger from Milford Ceuter to Eletcher, Ohio, a distance of thirty-eight miles, the sum of $1.35. The defense under consideration avers that the distance from Milford Center to Piqua is a fraction of a mile over forty-four miles, and that the distance from Milford Center to Fletcher is a fraction of a mile greater than thirty-eight miles. But these allegations, which the demurrer admits to be true, are no defense to any of the causes of action, inasmuch as the fare demanded and received was iu each case more than three cents per mile for the alleged distance, as stated iu the answer. We think, therefore, that the court below properly sustained the demun’er to this defense.

The only remaining question is, whether the court below erred in rendering judgment for a forfeiture of twenty-five dollars in each case of overcharge.

We do not understand that the plaintiff in error denies that the several paragraphs in plaintiff’s petition each state a distinct cause of action. Plaintiff iu error demurred to eight of them as distinct causes of action, and we think this was properly done. Nor did plaintiff in error, by demurrer or otherwise, question the right of plaintiff below to unite in one petition several distinct canses of action arising under the same statute. But the claim, as we uuderstand it from the answer below, and from the argument of counsel for plaintiff iu error, is that the statute gives to the party aggrieved a right to recover double the amount of the overcharges by way of penalty or forfeiture, and that the sum of twenty-five dollars is awarded only as a conditional compensation in cases where the aggregate amount of double the overcharges complained of in any action shall be found to be less than twenty-five dollars, and can not, therefore, be recovered for each overcharge, inasmuch as the statute does not, in terms, provide that such sum shall be recovered for each and every overcharge.

In support of this position, we are referred to the case of Fisher v. N. Y. C. R. R. Co., decided by the Coart of Appeals of New York, and reported in 46 N. Y. 644. There the plaintiff sued for numerous overcharges, as in this case, and claimed to recover the penalty of fifty dollars on each overcharge, together with the amount of the overcharges. The law of New York provided “that any railroad company which, shall ask and receive a greater rate of fare than that allowed hy law, shall forfeit fifty dollars, which sum may be recovered, together with the excess so received, by the party paying the same.” The court held that “ the forfeiture of fifty dollai-s was not given as a satisfaction of the injury received — that is fully satisfied by a return of the sum extorted, with interest; but the fifty dollars is given to compensate the party injured for his expenses in the prosecution, and to compel the company to pay such a sum as would stop the practice.”

This New York statute, it will be perceived, gave the party aggrieved a right to recover two sums of money, to wit, fifty dollars, as a forfeiture, together with the excess received by the railroad company. The court held that the recovery of such excess was not intended by the statute as a satisfaction for the injury sustained, and that the penalty of fifty dollars was given to the party injured by way of compensation for expenses of prosecution, and to compel the company to desist from extortion. But the Ohio statute, under which this action was brought, allows a recovery of but one sum, and that by way of penalty or forfeiture for each case of its violation. It gives nothing but a forfeiture “ equal to double the 'amount of the overcharge, but in no case less than twenty-five dollars.” The cases referred to in the clause which provides that “ in no case shall the amount of the forfeiture be less than twenty-five dollars,” clearly appear, from the preceding context, to be cases of overcharges. The New York statute, to which reference has been made, contained no such clause. And a majority of the court are unable to perceive a substantial difference between the meaning of this language, and that of a provision declaring that in each and ecery case of overcharge the forfeiture should be not less than twenty-five dollars.

If the amount of the forfeiture can, in no cctse, be less than twenty-five dollars, then it must, in each and every ease, bo as great as twenty-five dollars.

We think the judgment of the court of common pleas must be affirmed.  