State v. Wis. Cent. Ry. Co.

• Decision Date: 26 November 1907
• Citation: 133 Wis. 478,113 N.W. 952
• Parties: STATE ET AL. v. WISCONSIN CENT. RY. CO.
• Court: Wisconsin Supreme Court

133 Wis. 478

113 N.W. 952

STATE ET AL.

v.WISCONSIN CENT. RY. CO.

Supreme Court of Wisconsin.

Nov. 26, 1907.

Appeal fom Circuit Court, Waupaca County; Charles M. Webb, Judge.

Action by the state and another against the Wisconsin Central Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

This action was brought by Wm. N. Martin, district attorney of Waupaca county, in the name of the state of Wisconsin and Charles F. Crane, against the defendant, under sections 1809, 1819, St. 1898, and particularly under that portion of section 1809 which relates to rate of speed of trains and locomotives within incorporated cities and villages before having passed all the traveled streets thereof. The case was here before on appeal from an order overruling a demurrer to the complaint, and the order of the court below was sustained. State et al. v. Wisconsin C. R. Co., 128 Wis. 79, 107 N. W. 295. The complaint charges several violations of the statute by defendant in running its trains at a speed exceeding six miles per hour through the village of Weyauwega between April 11th and 14th, inclusive, 1905, as follows: One violation on April 11th, three on April 12th, four on April 13th, and three on April 14th. The defendant denied the material allegations of the complaint. The jury found one violation on April 11th, two on April 12th, three on April 13th, two on April 14th, making eight violations in all between April 11th and 14th, inclusive, and for each violation assessed damages against the defendant at $75, aggregating $600, for which sum judgment was rendered in favor of the plaintiff and against the defendant, together with costs, from which judgment this appeal was taken.Thos. H. Gill and Walter D. Corrigan, for appellant.

F. L. Gilbert, Atty. Gen., and J. E. Messerschmidt, Third Asst. Atty. Gen., for respondents.

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

1. But two questions need be considered upon this appeal: First, the sufficiency of the complaint; second, the right to recover cumulative penalties. A very vigorous attack is made upon the constitutionality of the law by the appellant, and it is insisted that the decision upon the former appeal is not binding upon this appeal. The complaint alleges violations of the statute in running trains through the village of Weyauwega at the point in question, and the demurrer admits these facts, and upon the former appeal it was determined that the complaint stated a good cause of action, and that the law was constitutional. On the trial the facts alleged in the complaint were proved and judgment because of the violation of the law awarded. The constitutionality of the law as applied to the village of Weyauwega and the sufficiency of the complaint, therefore, were determined by this court on former appeal, and under the well-settled doctrine of this court such decision is binding, not only upon the court below, but upon this court on a subsequent trial in the same action. McCord v. Hill, 117 Wis. 306, 94 N. W. 65;Shaft v. Carey et al., 115 Wis. 155, 90 N. W. 427.

2. The only remaining question, to be considered is whether the plaintiff was entitled to judgment for cumulative breaches of section 1809, St. 1898, or whether he must be confined to recovery for but one forfeiture in the action. This is an interesting question, and is governed by the statute imposing the penalty. The jury found that between the 11th and 14th of April, 1905, there were eight violations of section 1809 by defendant, and awarded $75 damages for each. It is insisted by appellant that but one can be recovered, and by respondent that plaintiff is entitled to recover for each and every violation of this statute which occurred between April 11 and 14, 1905. Section 1809, c. 87, St. 1898, provides, among other things, that “in all cities and villages the engine bell shall be rung before and while crossing any street, and no train, or locomotive shall go faster, until after having passed all the traveled streets thereof, than at the rate of six miles per hour.” And section 1819 of the same chapter provides: “If any railroad corporation, its officers, agents or servants shall violate or fail to comply with any of the provisions of this chapter for which no forfeiture is otherwise specially provided such corporation shall, for each and every such violation or failure, forfeit not less than fifty nor more than five hundred dollars, one-half to the person prosecuting, and in addition be liable to the person injured for all damages sustained thereby.” It will be seen that section 1809 provides no penalty, hence the penalty for violation of this section is found in section 1819, which provides a penalty for each and every violation or failure. The jury found on sufficient evidence that the defendant had violated the statute eight times between April 11th and 14th by running its trains at a greater speed than six miles per hour over the territory covered by the statute and complaint. The statute in plain and unequivocal language prohibits the running of a train or locomotive faster than six miles per hour, and further provides that for each and every violation or failure to comply the railroad company shall forfeit not less than $50 nor more than $500. To hold that but one penalty can be recovered where the statute has been violated several times would be disregarding the plain language of the statute. We realize that the statute is penal, and should be strictly construed. But here there is no room for construction. The statute is as plain as language can make it in providing a forfeiture for each and every violation of the law. We quite agree with counsel for appellant that the statute should not be so construed as to give cumulative penalties in an action of the character of the one before us unless the legislative intent is clear. Our difficulty is in reading out of the statute an intent not to give cumulative penalties for repeated violations. Counsel says that the books are full of authorities holding that but a single penalty can be assessed where the act complained of is of a continuing nature and the legislative intent to the contrary is not clearly expressed, and several authorities are cited. A careful examination of these cases shows that they rest upon statutes quite different from our own.

Parks v. Nashville C. & St. L. Ry., 81 Tenn. 1, 49 Am. Rep. 655, was for the recovery of penalties under a statute making railroad companies liable to forfeit and pay a penalty of $100 upon failure of the company during any one trip of the passenger cars to announce the stopping place or station, and it was held that only one penalty could be recovered up to the...