Johnson v. Hudson River Railroad — 32 N.Y. Super. Ct. 298

Majority

p. 298

PHILO JOHNSON, Plaintiff and Respondent, v. THE HUDSON RIVER RAILROAD COMPANY, Defendants and Appellants.

[Decided April 30, 1870.]

Headnote

Corporations possess and can exercise such powers only as are expressly conferred upon them by law.

The power of a railroad corporation to demand fare of a passenger, is not an implied or incidental power, but is derived solely from the statute.

Where such a corporation (created before the passage of the general incorporating act of 1850) was limited as to fare by its charter, such limitation is not by any fair construction of the forty-ninth section of such general act removed.

Therefore, held, that the defendants, having demanded and received an amount of fare in excess of the amount limited by their charter, although not in excess of the amount authorized by the general act, had incurred the penalty provided in the act of 1857 for the prevention of extortion by railroad companies.

Held further, that as many penalties as had been incurred previous to the commencement of the suit might be recovered in one action.

Before Monell, McCunn, and Freedman, JJ.

Appeal from a judgment upon the report of a referee.

This action was brought under the “ act to prevent extortion by railroad companies,” passed in 1857, which provides that “ any railroad company which shall ask and receive a greater rate of fare than that allowed by law shall forfeit fifty dollars, which sum may be recovered, together with the excess so • received, by the party paying the same.”

The complaint alleged a separate cause of action against the defendants for asking and receiving a greater rate of fare than is allowed by law on five hundred and twenty-six different times, ■and the referee found the fact to be so, and gave judgment in favor of the plaintiff for the aggregate of fifty dollars for each of such five hundred and twenty-six times, together with the excess paid amounting to $15.01.

The whole judgment, exclusive of costs, was $26,315.01.

The defendants appealed.

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Mr. Charles A. Rapallo for appellants.

The acts of May 12,1846, and February 5, 1850. were improperly admitted in evidence.

Under the allegations in the complaint the plaintiff was bound to show that the defendants had violated some public law, of which this court would take judicial notice. He could not maintain his action by showing a violation of a private act in the absence of any allegations referring to such act, or setting up a special restriction.

The acts given in evidence are private acts (Bretz v. Mayor, etc., 3 Abb., N. S., 478, and authorities there cited).

In Nellis v. The N. Y. Central R. R. Co., 30 N. Y. R., 505, the question arose upon a demurrer, which admitted that the defendant had received a greater rate of fare than that allowed by law.

There is no averment or proof that the defendants were incorporated under the act of 1846, nor what rate of fare they were allowed to receive.

Notwithstanding the limitations of fare in the acts of May 12, 1846, and February 5,1850, the defendants were, by the general railroad law, passed April 2, 1850, authorized to collect fare up to three cents per mile (act of April 2,1850, sec. 28, sub. 9; ib., sec. 49).

The learned referee has entirely misapprehended the grounds upon which this claim was urged before him. They were:

That the effect of sec. 49 of the general railroad act of 1850 was to confer upon existing railroad companies all the powers and privileges of companies formed under that act, without any reservation or exception.

That among th% powers said, privileges enumerated and granted to companies formed under the act was that contained in sub. 9 of sec. 28, of regulating the rate of fare up to three cents a mile.

That, therefore, in so far as and in all cases where sub. 9 of sec. 28 conferred a power or privilege, it was applicable to existing railroad companies, and empowered them to charge up to three cents a mile.

That in all cases where said sub. 9 operated as a restriction},

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that is to say, in respect to those existing companies which were by their charters authorized to charge more than three cents a mile, the provisions of sub. 9 should not apply, but they should retain the privilege of charging greater rates contained in their special charters, and that the sole object of the exception in the second paragraph of sec. 49 was to preserve that chartered privilege.

This construction relieves sec. 49 of all incongruity, and gives effect both to the general provision contained in the first or granting paragraph, and to the exception contained in the second or subjecting paragraph of the section.

The citations, in the opinion of the referee, conclusively show the reason for the exception contained in sec. 49 to be as above stated, viz., that at the time of the passage of the general railroad law there were railroads in operation authorized by their charters to charge more than three cents per mile, and that the legislature did not intend to subject them to the provisions of subd. 9, which as to them would operate as a restriction instead of a grant of power.

The exception in sec. 49, having been inserted for the protection of companies authorized to charge more than three cents a mile, it would be a manifest perversion to construe it into a qualification or withdrawal of the preceding general grant of power to existing companies to charge up to three cents a mile. Such a construction is inconsistent not only with the language, but the evident intention of the act.

As before stated, the first or grcmting paragraph of sec. 49 confers upon existing companies all the powers and privileges contained in the act, without qualification. The succeeding or subjecting paragraph exempts existing companies not only from the operation of subd. 9, as a restriction, but also from various other sections of the railroad act, which are omitted in the enumeration of sections applied, and generally from all provisions inconsistent with their charters.

All these exceptions and exemptions are manifestly intended for the benefit of the existing companies—not for the purpose of abridging the powers granted to them in the first paragraph.

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The power of regulating the rate of fare is one of the most important powers and privileges of a railroad corporation, and must be deemed to have been embraced in the grant of powers and privileges to existing corporations contained in section 49.

The restriction of the fare of the Central Railroad below three cents was by special act passed subsequent to the general railroad law of 1850.

The omission of the words “ not inconsistent with their charters ” in the grcmting paragraph of sec. 49, and the insertion of them in the subjecting paragraph, show clearly that the intent was to confer the additional powers and privileges absolutely, even if they involved a modification of the existing charters.

That this peculiar frame of the section was not accidental but intentional is clearly shown by a comparison with the provisions of the general railroad law of 1848. The 46th section of that act (laws of 1848, page 237) declares that “ all existing railroad corporations within this State shall respectively have and possess all the powers and privileges, and be subject to all the duties, liabilities, and provisions contained in this act, so far as they shall be applicable to their present condition, and not inconsistent with thei/r several charters.”

There the qualification, “not inconsistent with their several charters,” was applied as well to the grafting part as to the subjecting part of the section. By the amendment in 1850 it is applied exclusively to the subjecting part, a clear manifestation of intention that the grant of power was intended to be absolute, even if inconsistent with the existing charters.

The argument that the act of February 5, 1850, recognizes the limitation of fare to less than three cents as then subsisting, and is, therefore, inconsistent with the claim now made, falls to the ground as soon as the difference between the language of the railroad act of 1848 and that of the act of April 2, 1850, is pointed out.

It is conceded that by the act of 1848 the power to charge three cents a mile was not conferred upon existing corporations whose charters fixed a lower limit, for the reason that the power

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was inconsistent with such charters, and therefore not granted by the act of 1848, which excepted from its grant such inconsistent powers.

But that concession is perfectly consistent with and fortifies the claim, that when in the subsequent act of April 2,1850, that exception or condition was purposely omitted, and all the powers and privileges of railroad companies formed under this act were unconditionally and without reservation conferred upon existing companies, they could claim that most important privilege.

The general intent of the railroad law of 1850 manifestly was to give to companies formed under that act no ad/oantage of any kind over existing corporations; to extend to existing corporations all the power’s and privileges of corporations formed under the act, whether inconsistent with their charters or not, and further, to preserve to such existing corporations all special privileges which they enjoyed under their respective charters.

Even if the plaintiff were entitled to recover, the act of 1857 limits his recovery to fifty dollars and the excessive fare (Laws of 1857, ch. 185).

The act prohibits the charging of illegal rates. It does not in terms point to separate offences or occasions of overcharge.

It does not provide a recovery for each., and every time an overcharge is made, or for “ each and every offence,” as in some statutes, but simply that any party subjected to the overcharge may recover fifty dollars.

This gives but one penalty to each passenger, and does not j ustify a recovery by one party in one action of twenty-six thous- and dollars.

The act says “ which sum ” (fifty dollars) may be recovered by the party overcharged.

The amount of the recovery is not regulated by the degree of excessive rate, or the length of time or number of times it has been exacted, but is arbitrarily fixed at fifty dollars.

It is a penal statute, and must be construed strictly.

In the People against the N. Y. Central R. R. Co. (13 N. Y. R., 78), the act provided that the company should pay a penalty of

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“ twenty dollars for' every neglect" of the duty required; to be sued for by the District Attorney. Act of 1850, sec. 39. (Repealed 1854.)

This language was relied upon by the Court of Appeals to justify a recovery of several penalties in one action.

In the Supreme Court the authorities are conflicting. In Washburn v. McInroy, 7 Johns., 134 ; Tiffany v. Driggs, 13 Johns., 253 ; and Bigelow v. Johnson, 13 Johns., 428 , it was held that but one penalty could be recovered when the act did not in terms give several penalties. In Deyo v. Rood, 3 Hill, 527 , the court held the other way; but this is the only case to be found to that effect. In the latter case it may be observed, however, that the statute contained a provision that the “penalties ” imposed by the title might be sued for, etc. (1 R. S., 681, sec. 19), and there was no limitation in terms of the sum, which might he recovered in any such action, as in the present case (see, also, People v. Koll, 3 Keyes, N. Y. R., 236; Ingersoll v. Skinner, 1 Denio, 540 ).

It is not conceded that various actions for various penalties could be brought, under the act of 1857, at one time, by the same party. Ho party can, at any one time, have a right of action for more than fifty dollars, for that is the limit imposed by the statute upon the recovery of the party complaining.

The concession was, that if, after an action had been brought, and the rights of the parties in that action fixed, a subsequent offence was committed, another action might be brought for the subsequent offence.

But however this may be, if a penal statute limits the recovery in an action to fifty dollars, a recovery in that action for a greater sum cannot be justified, on the ground that if the plaintiff had brought several actions he could have recovered in each of them.

He cannot be allowed in the action brought that which he might have recovered in actions which he did not bring.

p. 304

Mr. James R. Whiting for respondent.

The defendants were limited by their charter to the rate of fare therein prescribed, and neither the general railroad act of 1843, nor the general railroad act of 1850, authorized the defendants to ask or receive any greater fare than authorized by their charter (Chase v. N. Y. Central, 26 N. Y, 524 ; Nellis v. N. Y. Central, 30 N. Y., 518 ).

This is purely a question of construction, and the defendants endeavor to construe the act of 1850 so as to entirely nullify the important exception contained therein (Clarkson v. H. R. R. R., 12 N. Y., 30 ).

The defendants are liable, under the act of 1857, entitled “An act to prevent extortion by railroad companies,” to a forfeiture of fifty dollars for each offence against that law, together with excess (Laws of 1857, ch. 185, p. 432).

The act is not penal, but remedial. It was intended to introduce a new remedy for an offence known to the law and not sufficiently guarded against.

Before the statute the plaintiff could have recovered the excess by action, and damages such as he had sustained. But the rule of damages was uncertain. This act made certain what was before uncertain, giving the forfeiture to the party as liquidated damages—the first object of the act being to remedy the evil and prevent the extortion, and at the same time fix an exact rule of damages.

The defendants’ act of incorporation prohibits from charging more than a certain amount; any excess would be unlawful (Laws of 1846, ch. 216, § 17; Griffith v. Wells, 3 Denio, 226 ).

The intent of the legislature in enacting the statute was plainly the prevention of extortion by fixing a forfeiture of fifty dollars, which sum, etc., may be recovered by the party paying the same. There is no limitation in the act itself, and the offence under the statute fixes the liability or the right in the party paying the excess to recover the fixed sum of fifty dollars for his damages for that one extortionate charge.

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It would not otherwise he “ an act to prevent extortion,” for if the plaintiff can recover but one penalty, the corporation may soon make up the amount in extortionate rates, and be the gainers in the end.

Both points are treated exhaustively in the opinion of the referee in-this case.

These several distinct liabilities of the defendants to the plaintiff can be joined in one suit (City of Brooklyn v. Cleves, Lalor’s Supp. to Hill and Denio, p. 231; Deyo v. Rood, 3 Hill, 527 ; Cowan’s Treatise, 2d edit., p. 561; 1 Chitty Pl., 181; Langworthy v. Knapp, 4 Abb., 115 ; Clark v. Met. Bk., 5 Sanf., 655; People v. N. Y. C. R. R. Co., 13 N. Y., 78 ).

By the Court:

The charter of the defendants limited the fare for way travel to two and a half cents a mile during the winter months, and to two cents during the remainder of the year (Laws of 1846, p. 280, § 17).

By an amendment the word “ winter” was stricken out, and in lieu thereof the words December, January, February, and March, inserted (Laws of 1850, p. 14, § 3).

It is conceded that the fare demanded and received of the plaintiff, on each of the five hundred and twenty-six times, was in excess of the fare allowed by the charter of the Company.

But it is claimed that the limitation contained in the charter was removed by the general act for the formation of railroad corporations, passed in 1850, which extended the limitation to three cents a mile.

The forty-ninth section of that act is as follows : “All existing-railroad corporations within this State shall respectively have and possess all the powers and privileges contained in this act and they shall be subject to all the duties, liabilities, and provisions, not inconsistent with the provisions of their charters,, contained in sections nine, thirteen, fourteen, fifteen, sixteen,, seventeen, eighteen, nineteen, twenty, twenty-one, twenty-three, twenty-four, twenty-five, twenty-six, twenty-seven, twenty-eight

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(except subdivision nine), thirty, thirty-one, thirty-two, thirty-three, thirty-four, thirty-five, thirty-six, thirty-seven, thirty-eight, thirty-nine, forty, forty-one, forty-two, forty-three, forty-four, forty-five, forty-six, of this act.”

The excepted subdivision “nine” gives every corporation formed under the act power to regulate the time and manner in which passengers shall be transported, and the tolls and compensation to be paid therefor; but such compensation for any passenger and his ordinary baggage shall not exceed three cents a mile.

By another act, companies were authorized to take for any distance less than a mile the legal fare for one mile (Laws 1857, chap. 185).

Ho corporation possesses or can exercise any powers not expressly conferred by law, except such as are necessary to the exercise of the powers so conferred (1 Rev. Stat., 600, sec. 3).

The power to demand fare or compensation of a passenger on a railroad is not an implied or incidental power, but one derived from the statute, and can be exercised only under the authority of the statute, and is necessarily subjected to all such restrictions and limitations as are imposed by the statute (Head & Amory v. Providence Insurance Company, 2 Cranch, 127 ; Bentley v. Knowles, 4 Pet., 152 ; People v. Utica Insurance Company, 18 John. Rep., 358 ; Halstead v. The Mayor, 3 N. Y. Rep., 430 ; Perrine v. Chesapeake and Delaware Canal Company, 9 How., 172 ). In the last case the question was whether the Canal Company could demand toll from passengers passing through the canal, or from vessels on account of the passengers on board; and it was decided that, as no power was given to the corporation to demand toll from passengers, no such power could be exercised or such toll lawfully taken.

In every special charter for a railroad corporation granted in this State, as well as in all the general acts, the power to demand toll or fare from passengers is given in express terms.

Inasmuch, therefore, as no power to demand fare can be implied, and as the power given to the defendants by its charter

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was limited, it is necessary to examine the forty-ninth section of the general act before referred to, to see whether the construction of it, by the defendants, is correct.

If the section conld be separated so as to be read in detached parts, giving to each part a separate effect, it is possible it could be understood as a grant of all the powers contained in the general act; that is, if the section could be so separated as to make the granting part and the subjecting part each complete in itself.

The first part of the section provides that “ all existing railroad corporations shall have and possess all the powers and privileges contamed m this act.” Should we stop here, there could be no doubt that not only the power contained in the ninth subdivision of the twenty-eighth section, to regulate and fix the rate of fare at not exceeding three cents, was granted to all existing railroads, but that the legislature intended it should be so; and more than that, that the legislature intended to confer upon such existing companies all the powers and privileges contained in the general act, in addition to the powers and privileges expressly given to them by their charters, even although such additional powers and privileges were wholly inconsistent with the provisions of their charters.

But such a reading of the section would necessarily be to give to the existing companies two, in some respects, wholly inconsistent powers. Thus, all the provisions of the first eight sections, and of the tenth, eleventh, twelfth, twenty-second, twenty-ninth, forty-seventh, and forty-eighth sections, would apply to all railroads existing under special charters in 1850, when the general act was passed. A comparison of the defendants’ charter with the sections of the general act above mentioned will exhibit palpable differences—in the number of officers, manner of electing directors, of filling vacancies, acquiring land, and in other respects—which, if applied to existing companies, would be violations of their charters. It must, therefore, be presumed that the legislature could not have intended to give these incongruous and inconsistent powers to the defendants.

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But to follow the section, “ and they shall be subject to all the duties, liabilities, and provisions not inconsistent with the provisions of their charters, contained in sections—” etc. The several sections enumerated respectively confer powers, or impose duties or liabilities, either or both of which the legislature may do. But it would be a novelty in legislation to “ subject ” to a power, as it would be to “ grant ” a duty or liability.

It is not probable, therefore, that in enumerating the several sections which should be applicable to existing companies, it was intended to “ subject ” such companies to any powers or privileges contained in or granted by them, but to subject them only to the duties and liabilities specified; first giving them all the powers and privileges, and then subjecting them to all the duties and liabilities.

If it had been intended to grant more power to existing com-' parties, than it was to subject them to new duties and liabilities, the latter or subjecting part of the section would not have included sections nine, thirteen to twenty-one inclusive, twenty-four, twenty-five, twenty-six, twenty-eight, and thirty-five, all of which contain grants of important powers and privileges, but do not impose any duty or liability whatever, especially section twenty-eight, which is the general enabling section, and includes the power to regulate the fare of passengers.

It is quite evident, therefore, that the legislature intended merely to grant the powers and impose the duties contained' in the specified sections, so that the whole section should read together, as if it read, “ Existing railroad companies shall have and possess all the powers and privileges, and shall be subject to all the duties, etc., contained in sections nine",” etc.

Such a construction of the section will give an intelligible and altogether consistent effect to the exception of subdivision nine of the twenty-eighth section of the general act, by preventing its application to companies existing at that time under special charters, and excluding them from the privileges therein contained.

It may be further said, in aid of this construction, that the legislature probably had in view that prior to the passage of the

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general act a large number of railroad corporations had received special charters, in many of which the rate of fare was limited, but in some cases exceeding the limit put in the general act. Even the defendants, who by their charter are limited to two and two and a half cents a mile for way travel, are allowed to demand ten cents for any distance under five miles (Laws of 1848, p. 44, sec. 8), á privilege of which their construction of the law would necessarily deprive them.

It is, therefore, proper to assume that the legislature did not intend to disturb or interfere with any of the powers or rights which had before been specially conferred on existing corporations, or to grant any new powers or privileges inconsistent with their charters.

Although, perhaps, no reason can be assigned for the change in the forty-ninth section from the language and purport of the somewhat corresponding forty-sixth section of the act of 1848, which latter section granted the powers and subjected to the duties, only so far as they were applicable and were not inconsistent with their charters, had the forty-ninth section been a transcript of the forty-sixth section, all difficulty in its interpretation would have been removed; but I do not think a reason for a different • construction is to be found in the fact that the legislature which enacted the law of 1850 did not employ as clear language, or frame as connected and lucid sentences to express their intention, as a previous legislature had. Ho doubt the forty-ninth section is illy adapted to fairly express the intention of the lawmakers. It is faulty in construction, and capable of a literal interpretation quite at variance with its probable design. But construing it by the rules applicable to all written law, and getting at its meaning from what must be supposed to have been the intention of its framers, it is quite clear, I think, that it was not intended that any limitation as to fare contained in the charters of existing railroad companies should be removed, and that to effect this the ninth subdivision was excepted.

My conclusion on this branch of the case is, that the fare demanded of the plaintiff was unlawful.

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It is insisted, however, that no more than the excess of fare paid by the plaintiff and one snm of fifty dollars can be recovered in this action.

The section of the statute under which the action is brought is, that “ any railroad company which shall ask and receive a greater rate of fare than that allowed by law, shall forfeit fifty dollars, which sum may be recovered, together with the excess so received, by the party paying the same” (Laws 1857, chap. 185).

There cannot be a doubt that the sum which a railroad corporation shall “ forfeit,” for overcharging a passenger, is a penalty, or at least in the nature of a penalty, and is governed by all the rules applicable to penalties. It is not necessary that a statute, in the language imposing it, should denominate it a penalty. When a statute subjects a person, artificial or otherwise, to a liability to pay money, either for omitting to perform a duty enjoined or for doing an act prohibited, where no liability would arise at common law, he is subjected to a forfeiture of the sum, and it is a penalty for disobeying the statute (Corning v. McCullough, 1 N. Y. Rep., 47 ; Bird v. Hayden, 1 Robt., 383; Merchants’ Bank v. Bliss, id., 291). In these cases it was held that a personal liability for the debts of a corporation, imposed upon its trustees, was a penalty; yet neither of the words, penalty or forfeiture, are used in the statute. So these words, it has been said, meaning the same, might be used interchangeably (Commissioners of Excise v. Doherty, 16 How. Pr. R., 46).

Similar words are used in many penal statutes. Thus, a tenant for unlawfully removing his goods “ shall forfeit to the landlord ” (2 R. S., 503, sec. 17); and a supervisor, for certain neglect of duty, shall “ forfeit,” etc. (1 R. S., 368, sec. 16). In each of these cases they were held to be penalties (Morris v. The People, 3 Denio, 381 ; Palmer v. Conly, 4 id., 374 ; 2 N. Y. R., 182). In the last ease it is said that a statute giving the penalty to the aggrieved party is in the nature of a satisfaction for the wrong done.

It is entirely clear, therefore, that this is a penalty imposed by

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a statute upon railroad corporations for doing a prohibited act, and for doing which no common-law liability would attach.

The next inquiry then is, can more than one penalty of fifty dollars be recovered in the action % Unless there is something in the statute which expressly or by necessary inference limits a recovery, and therefore removes the case from the effect of numerous decisions, the question must be deemed settled by authority.

There is no doubt that, as a general rule, as many causes of action of the same nature as a party may have can be united in the same action. This was the rule before the Code as well as since (Graham’s Pr., 2d ed., 95); and where a separate action is brought for each cause of action, the court will require all to be consolidated into one.

If, therefore, the plaintiff in this case had several causes of action of the same nature, it was proper to unite them.

Although the statute of 1857 does not say there shall be a forfeiture of fifty dollars for each offence, or for each time a company shall demand unlawful fare, yet such result necessarily follows. Any other construction would defeat, or certainly very nearly defeat, the purpose of the statute, which is to “prevent extortion by railroad companies.” For if a single penalty only is incurred, corporations could practise extortion with little fear of consequences.

I cannot entertain a doubt that the legislature intended the statute should be a continuous one, and meant to provide a remedy for each and for every time unlawful fare was demanded ; and the defendants’ counsel was understood to admit that the plaintiff on each occasion, when the penalty was incurred, could have maintained an action for its recovery. But he claims that the penalties cannot be aggregated, as was done in this case, and that the plaintiff in one action can recover only a single sum of fifty dollars.

The Excise Law of 1813 declared that the offender “for each offence ” should forfeit twenty-five dollars; and the eighteenth section of the act provided that, if a recovery was had, such

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recovery should be a har to all prosecutions for like offences committed before such recovery. Under that statute the court held, in Washburn v. McInroy, (7 Johns. R., 134), that the legislature intended that there should be a recovery for a single penalty only. But in the Bevised Statutes the eighteenth section of the act of 1813 was omitted, and the court came to a different corn elusion in Deyo v. Reed ( 3 Hill, 527 ).

The Bevised Statutes provide (1 R. S., 680, § 15) that whoever shall sell, etc., without having a license therefor, “ shall forfeit twenty-five dollars? Under that statute the decision was made in Deyo v. Beed. It was an action by overseers of the poor, and it appeared that the defendant had been guilty of three several violations of the statute. On the trial the court charged the jury that the plaintiff was entitled to recover “ for as many penalties as the proof showed the defendant to have incurred.” The charge was sustained. The cases of Washburn v. McInroy, supra, and Tiffany v. Driggs ( 13 Johns. Rep., 252 ), were explained as resting wholly upon the eighteenth section of the act of 1813, which not having been incorporated with the Bevised Statutes left the question to be settled upon ordinary principles (see also Blatchly v. Moses, 15 Wend., 215 ). These decisions are supported by Young v. The King (3 T. R., 98), and Holland v. Bothmar (4 id., 228 ).

In my judgment, the case under consideration is not distinguishable from the cases cited which arose under th'e excise law. That law and the one under which this action was brought are in phraseology almost identical. Beither have the words for eaeh offence, and each declares that the offender shall “forfeit,” etc.

But the defendants claim that the amount which may be recovered is controlled by the words “ which sum mazy he recovered,” following the amount of the penalty fixed at fifty dollars. It is, perhaps, sufficient to say, that all statutes which impose penalties provide the manner of prosecuting for them.

The Excise Act in the Revised Statutes (sec. 19) provides that the penalties imposed by the act shall be sued for and recovered by the overseers of the poor.

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There is nothing nnusual in the statute, nor is there anything in the construction contended for, which prevents a separate action for each offence. The question, therefore, must be determined upon the ordinary rules governing and regulating the joinder of several causes of action. And I can see no reason why, if the defendants have incurred the penalty on several and different occasions, they may not all be recovered in one action.

The case of The People v. N. Y. Central R. R. Co. ( 13 N. Y. Rep., 78 ) was an action to recover numerous penalties, of twenty dollars each, incurred under section 39 of General Eailroad Act, which provides that a bell shall be rung on locomotives when crossing highways, under a penalty of twenty dollars for every neglect. It was objected in that case that the act provided for only a single ringing of the bell, and that if once rung there was no penalty for any other omission. But the court held that, by the fair construction of the act, the penalty was incurred every time the ringing was omitted, and a judgment for twenty-seven penalties in one action was affirmed.

I am unable to discover any difference between an act which affixes a specific penalty for each offence ox for each túrne a prohibited thing is done, and an act, like the one under examination, which omits those words. The latter, equally with the former, attaches to each violation, and affixes the penalty to each offence. Besides, no such distinction is taken in The People v. The N. Y. Central R. R. Co. (supra).

In City of Brooklyn v. Cleves, Hill & Denio (Lalor’s Sup., 231), the action was to recover several penalties for violation of a city ordinance. Kelson, C.J., says: “ It is well settled that several penalties may be included in and recovered on one suit at common law, and there is no statute restriction.” And in Long-worthy v. Knapp ( 4 Abb., 115 ), a complaint under an act imposing a penalty of three dollars for every day's neglect, setting forth violations of the statutes on one thousand and ninety-five days, and claiming to recover all the penalties in one action, was sustained.

The cases to which I have referred are sufficient to determine

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this case. They determine, heyond doubt; that the several causes of action arising or accruing to the plaintiff under the statute may be united in a single action.

After a careful examination and consideration of the two questions in the case, 1 am unable to discover any error in the judgment of the referee.

The action and the result of it are important, and its consequences to the defendants much greater than the trifling excess of fare received from the plaintiff; but they are conseqtiences which result from one statute, for an erroneous construction of another statute.

The judgment should be affirmed.

McCunn, J., dissented.