Miller v. Chi. & N. W. Ry. Co.

• Decision Date: 15 October 1907
• Citation: 113 N.W. 384,133 Wis. 183
• Court: Wisconsin Supreme Court
• Parties: MILLER v. CHICAGO & N. W. RY. CO.

133 Wis. 183

113 N.W. 384

MILLER

v.CHICAGO & N. W. RY. CO.

Supreme Court of Wisconsin.

Oct. 15, 1907.

Appeal from Circuit Court, Winnebago County; Geo. W. Burnell, Judge.

Action by Charles Miller against the Chicago & Northwestern Railway Company to recover a statutory penalty. From a judgment for defendant, plaintiff appeals. Affirmed.

Action to recover for alleged violations of plaintiff's rights under sections 1810 and 1813, St. 1898.

The statutes referred to at the time of the wrong complained of required every railroad corporation operating a railroad in this state to construct and maintain suitable and convenient farm crossings of the road for the use of the occupants of the adjoining lands, and provided that “whenever any railroad corporation shall operate a railroad over or through inclosed lands and shall fail to contruct the * * * farm crossings * * * required * * * proper for the use of such lands, the owner or occupant thereof may give notice in writing signed by him to such corporation, to be served as a summons in a court of record is required to be served on such corporation, to * * * construct the necessary farm crossings * * * and if such company, after being so notified, shall neglect for three months so to construct such * * * farm crossings * * * it shall be liable to pay to such owner or occupant ten dollars for each and every locomotive that may thereafter pass through such lands until so constructed * * *.”

Plaintiff alleged and proved ownership and occupancy by him of certain land specified, satisfying as to defendant the calls of the statute entitling him to a farm crossing and to the benefit of the penalty feature of the statute to vindicate such right in case of its having been violated, if such lands were inclosed, within the meaning of the statute. The complaint stated all facts requisite to a recovery for 2,102 violations of such right, upon the hypothesis that each time a locomotive passed over the land constituted a distinct violation giving rise to a cause of action to recover ten dollars. There was a controversy on the evidence as to whether the notice to set the time running within which the corporation was required to construct the crossing was properly served. It was not controverted but that after the alleged service the statutory period for building the crossing expired, and that thereafter between the 2d day of April, 1905, and the commencement of this action, if plaintiff's evidence was competent to prove the facts, there were 2,102 instances of the defendant operating a locomotive over and through the land. There was a further controversy on the evidence as to whether plaintiff's land was inclosed, within the meaning of the statute. The evidence on that subject was to this effect: The tract consisted of 80 acres; 40 rods wide north and south and 160 rods wide east and west. The right of way was a strip of land of the usual width, commencing about the center of the tract on the south side and running in a northwesterly direction through it. The west side of the east portion of the tract was bounded by the right of way fence. It was bounded on the north by Mr. Deacy's fence, there being a line fence running east from the right of way fence about one-half of the distance to the northeast corner of the tract. For the balance of the distance there was an old brush fence, down in places, or practically so, enabling cattle to readily pass from such land to Mr. Deacy's premises. There was no fence on the east boundary of the land. There was a fence substantially on the south side thereof running east from the right of way fence to a creek about ten or fifteen rods east of the southeast corner of the tract. The course of the creek was northwesterly to and beyond the northeasterly corner of such tract. The strip of land between the creek and the east boundary of plaintiff's premises belonged to Mr. Knaup. It was low and marshy, yet cattle could pass over the same from plaintiff's land to the creek, but that formed a substantial barrier to their going further. At the close of the evidence, the court directed a verdict in favor of the defendant upon the ground that it appeared conclusively that plaintiff's land was not inclosed, within the meaning of the statute. Judgment was rendered accordingly, from which this appeal was taken.

R. N. Van Doren (P. H. Martin, of counsel), for appellant.

Edward M. Hyzer, for respondent.

MARSHALL, J. (after stating the facts as above).

The preliminary question is presented of whether section 1813, St. 1898, under which the action was brought was not so substantially changed by chapter 623, Laws 1907, as to supersede the former law, and consequently appellant's right to recover. The new law amended such section by substituting the words “each day after the expiration of said three months” for “each and every locomotive that may thereafter pass through such land” thereby reducing the penalty for wrongfully failing to construct a farm crossing on inclosed land when duly requested to do so from ten dollars for each and every locomotive passing through such land during the period of default to ten dollars per day during such period.

We shall not spend much time on the subject of whether the law in question is a penal statute. It was clearly designed to afford the right to recover in case of a violation of a landowner's statutory privilege more than actual damages; to recover such sum as to not only satisfy such damages, if any, but to serve as a punishment for the violation. Any law giving a right to recover of a person by civil action either for the benefit of the public, or in its name for the benefit of a private person, or in the name of the latter for his own use a sum by way of punishment, or punitory damages, is a penal statute and rights under it do not survive a repeal thereof without a saving clause therein, both as regards the right and the pending cause of action to enforce it, if there be one, or other efficient saving law.

The rule on the subject mentioned is commonly stated in the books substantially thus:

“The repeal of a statute prescribing a penalty or forfeiture recoverable in a civil action, without a saving clause in the repealing act, takes away the right of recovery, even though an action has been begun, for there is no vested right in an unenforced penalty until its actual recovery by final judgment.” 26 Am. & Eng. Ency. of Law (2d Ed.) p. 753.

That rule is applicable to all offenses and rights created by statute, but the saving clause need not, necessarily as will be seen hereafter, be embodied in the amendatory or repealing act.

Nowhere is the general principle under discussion more definitely laid down than in the decisions of this court, as for instance in Dillon v. Linder, 36 Wis. 344-349, the court said:

“Whatever a statute gives, which has not ripened into a vested right, a repeal of the statute may take away. ‘The effect of a repealing statute I take to be, to obliterate the statute repealed as completely from the records of parliament, as if it had never been passed; and that it must be considered as a law that had never existed, except for the purpose of those actions or suits which were commenced, prosecuted and concluded while it was an existing law.’ ”

That case, Rood v. Chi., M. & St. P. Ry. Co., 43 Wis. 146, and Smith v. Chi. & Northwestern Ry. Co., 43 Wis. 686, are probably the most notable instances where such principle has been here applied.

Though there is no saving clause in the law of 1907, the question arises as to whether section 4974, St. 1898, does not apply. That provides as follows:

“The repeal of a statute hereafter shall not remit, defeat or impair any civil or criminal liability for offenses committed, penalties or forfeitures incurred or rights of action accrued under such statute before the repeal thereof, whether or not in course of prosecution or action at the time of such repeal; but all such offenses, penalties, forfeitures and rights of action created by or founded on such statute, liability wherefor shall have been incurred before the time of such repeal thereof, shall be preserved and remain in force notwithstanding such repeal, unless specially and expressly remitted, abrogated or done away with by the repealing statute. And criminal prosecutions and actions at law or in equity founded upon such repealed statute, whether instituted before or after the repeal thereof, shall not be defeated or impaired by such repeal but shall, notwithstanding such repeal, proceed to judgment in the same manner and to the like purpose and effect as if the repealed statute continued in full force to the time of final judgment thereon, unless the offenses, penalties, forfeitures or rights of action on which such prosecutions or actions shall be founded shall be specially and expressly remitted, abrogated or done away with by such repealing statute.”

It has been held elsewhere that the Legislature cannot legitimately declare, in advance, the effect of future legislation on existing rights. Mongeon v. People, 55 N. Y. 613;Mix v. Ill. Cent. R. Co., 116 Ill. 502, 6 N. E. 42. Other courts have taken a contrary position in harmony with the decision of this court in Dillon v. Linder, supra, where it was held that a saving clause in a repealing act or in a general law as regards future legislation expressly saving existing rights and pending action to enforce them, if any there be, will have that effect. In that case a right which existed under a repealed law at the time of such repeal, was involved. It was sought to enforce it nevertheless, under section 33, c. 119, Rev. St. 1858, which in terms saved pending actions but did not expressly save existing causes of action. By applying the rule of strict construction, perhaps to the limit of reasonableness, it was held that the right did not survive the repeal, and, therefore, that the general law saving pending actions was ineffective. That led,...