Cleveland, C., C. & St. L. Ry. Co. v. Wells

• Citation: 62 N.E. 332,65 Ohio St. 313
• Court: United States State Supreme Court of Ohio
• Decision Date: 03 December 1901
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. WELLS.

65 Ohio St. 313
62 N.E. 332

CLEVELAND, C., C. & ST. L. RY. CO.
v.
WELLS.

Supreme Court of Ohio.

Dec. 3, 1901

Error to circuit court, Seneca county.

Action by Winfield S. Wells against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

Minshall, C. J., and Williams, J., dissenting.

Syllabus by the Court

1. A plaintiff in a pending action for penalties allowed by a statute has no such vested right in such penalties before the recovery of a judgment in such action as will render unconstitutional as to him the repeal and amendment of the statute, when it is provided in the amended statute that it shall apply to all actions pending. Rev. St. § 3376, as amended April 14, 1900, is constitutional.

2. The unit of measurement provided in section 3374 of the Revised Statutes is one mile, and fractions of a mile are not to be considered. The words ‘more than eight miles' in said section are, therefore, equivalent to nine miles, proceeding by units of one mile; that is, the limit of three cents per mile applies, first, to nine miles, then to ten, then to eleven, and so on; and for any distance less than nine miles the said limit does not apply.

[Ohio St. 313]Macauley & Wheeler and John T. Dye, for plaintiff in error.

Wills Bacon, for defendant in error.

DAVIS, J.

This action was commenced in the court of common pleas on the 14th day of April, 1898, by Winfield S. Wells, against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company, on five distinct causes of action for alleged overcharges of fare for the transportation of the said Wells, three of which overcharges were between Tiffin and Carey, [Ohio St. 314]a distance alleged to be 15.60 miles, and two of the overcharges being for fare between Tiffin and Berwick, a distance of 8.62 miles, and praying for judgment upon each cause of action in the sum of $150. These penalties were claimed to have been incurred under the provisions of sections 3374 and 3376 of the Revised Statutes. While the case was pending in the court of common pleas, that is, on the 14th day of April, 1900, section 3376 was amended, and the original section 3376 repealed. So far as affects this case the only change in the statute was in the omission of a clause authorizing exemplary damages, and the substitution therefor of the following: ‘Provided that a separate cause of action shall be brought for each overcharge unless the party aggrieved give notice in writing at the time of such overcharge, except the first one, to the officer, agent or employé of such railway making or receiving such overcharge, of his intention to bring such action, and no judgment shall be rendered in any action for the penalties herein provided for more than one overcharge unless such written notice shall have

[62 N.E. 333]

been given by the party aggrieved.’ 94 Ohio Laws, p. 220. ‘Section 2. Section 3376 as amended by this act shall apply to all actions now pending excepting the provisions requiring notice of intention to commence such action to be given as therein required.’ Id. p. 221. The railroad company filed an answer, a portion of which was demurred to by the plaintiff, which demurrer was overruled, and the plaintiff replied. The case was tried in the common pleas court without a jury, some evidence being offered by the railroad company relating to matters alleged in the first and second grounds of defense which are not material to the present inquiry, and upon an agreed statement of facts relating to most of the testimony in issue in [Ohio St. 315]the case, and the common pleas gave judgment for one penalty, $150. The defendant prosecuted error in the circuit court, and the plaintiff filed a cross petition in error, alleging that the common pleas had erred in giving him a judgment for only $150, one penalty, when it should have been given for $750, that is, one penalty on each of the causes of action alleged. The circuit court reversed the judgment of the common pleas, and rendered judgment against the railroad company for the five penalties claimed in the petition, $750, holding that the act of April 14, 1900, was...