228 Pa. 566 | Pa. | 1910
Opinion by
The plaintiff brought this action against the defendant company to recover damages under the provisions of the Act of June 4, 1883, P. L. 72, for undue .discrimination in refusing to furnish to him, his fair proportion of cars for shipping coal, from his coal mine in Decatur township, Clearfield county, during the years 1902, 1903, 1904 and 1905. The case was submitted, upon the facts, to the jury and resulted in a verdict for $705.87, single damages, or $2,117.61, treble damages; and from the judgment entered thereon defendant has appealed. The assignments of error are all to answers to points submitted, as requests for charge to the jury. The first specification alleges error in affirming the fifth point presented by plaintiff which was as follows:
“5. That the measure of plaintiff’s damages is the difference between the cost of mining and delivering the coal on railroad cars, adding thereto the royalty paid, and the fair average selling price prevailing in the region where his mine was situated, during the period extending from March 26, 1902, and August 4, 1905, both inclusive, for all coal which the jury find from the evidence the plaintiff could have been reasonably able to mine and sell, except for the refusal of the defendant company to furnish his due proportion of all the cars available.”
The court further instructed the jury, that if they found that fact to be as contended for by the plaintiff, “he would be entitled to recover in some amount, and you can figure that actual amount on the basis of about 3,500 tons, and at such a rate of gain or profit to him as you may find the testimony on the subject of prices warranted, remembering, however, that this testimony pretty clearly shows that he got his quota of distribution during the high priced period, and your verdict should not be based on those high prices or on any extravagant profits.” In putting the matter this way, the court practically gave to the jury in binding form, his own estimate of the tonnage; but of this instruction the defendant surely has no reason to complain. The verdict shows that the jury did
In the fourth assignment of error counsel for appellant complain of the refusal of defendant’s third point, which requested binding instructions in its favor, on the ground that the uncontradicted evidence in the case showed that plaintiff, between June 1, 1902, and June 1, 1903, when the high prices for coal prevailed, received more than his pro rata share of cars, and that the profits made by the use of these surplus cars should be credited on the loss sustained by reason of the deficiency in cars furnished plaintiff after June 1, 1903. This point was properly refused by the court, for the reason that it was not based upon evidence which was uncontradicted. It was apparently based upon the testimony of defendant’s train mas- ' ter that between May 30, 1903, and January 5, 1905, plaintiff’s rating was two cars per day, and after the latter date, it was four cars per day. In opposition to this, plaintiff testifies that his mine was rated at five cars per day, and that he continually gave orders for cars upon that rating, and made up his claim on that basis. The trial judge did not, however, accept plaintiff’s contention in this respect, as a basis for the portion of his charge dealing with that feature of the case, but made up a calculation of his own, which he submitted to the jury. In refusing the third point he said to the jury: “It would be asking the court to give binding instructions to the effect that the verdict must be for the defendant, because during a period of high prices it would appear by pretty plain
In their second assignment, counsel for appellant allege error in the affirmance of plaintiff’s sixth point for charge by which the jury were instructed that if they found there was undue or unreasonable discrimination, they might treble the damages under the second section of the act of June 4, 1883. Counsel for appellant contend that this provision of the act of 1883 has been repealed, not directly, but impliedly, by the two Acts of assembly passed on May 31, 1907, P. L. 352, and P. L. 354. The Act of June 4, 1883, P. L. 72, is entitled, “An Act to enforce the provisions of the seventeenth article of the Constitution relative to railroads and canals.” The sections intended to be enforced are the third and the seventh, forbidding discrimination by railroads between shippers, in rates charged and facilities for transportation afforded, including the furnishing of cars. The first section of the act repeats the prohibition against discrimination which is forbidden in the constitution. The second section gives to any person, company or corporation discriminated against, a right of action to recover treble the amount of the injury suffered. The Act of May 31, 1907, P. L. 352, is entitled, “ An Act to carry into effect the provisions of section seven, article seventeen, of the Constitution of Pennsylvania, relating to discriminations and preferences in charges and facilities; and making the violation thereof a misdemeanor, and providing a penalty for the same.” The Act passed the same day, P. L. 354, is entitled, “An Act carrying into effect the provisions of section three, article seventeen, of the Constitution of .Pennsylvania, relating to the transportation of persons and property; and making the violation thereof a misdemeanor, and providing a penalty for
It is not contended that there is any express repeal of the second section of the act of 1883; but it is suggested that the acts of 1907 deal with the same subject-matter, and that therefore it is to be implied that the legislature intended that the later acts should supersede the former one. “Repeals by implication are not favored, and will not be indulged unless it is manifest that the legislature so intended: ” 26 Am. & Eng. Ency. of Law (2d ed.), 721. Chief Justice Sterrett said, in Com. v. De Camp, 177 Pa. 112, “It is well settled that the leaning of all courts is strongly against repealing the positive provisions of a former statute by construction. There must be such a manifest and total repugnance that the two enactments cannot both stand. It is not enough that there is a discrepancy between different parts of a system of legislation on the same general subject; there must be a conflict between different acts on the same specific subject. An earlier statute is repealed only in those particulars wherein it is clearly inconsistent and irreconcilable with the later enactment. Illustrations of these familiar principles may be found in many of our cases, among the more recent of which are, Hendrix’s Account, 146 Pa. 285; Com. v. Wilkes-Barre, etc., Railway Co., 162 Pa. 614; Danville State Hospital v. Overseers, 163 Pa. 175; West Chester Alley, 160 Pa. 89; Safe Deposit, etc., Co. v. Fricke, 152
We see no repugnance between the act of 1883 and the two acts of 1907 in question; nor is there any inconsistency between them. There is no reason why they may not all stand together. The purposes of the statutes are not the same. The former act provides a remedy for the party injured by the discrimination, and affords redress to the individual. The later acts provide for restraint of violation of the statutes at the instance of the commonwealth, through the attorney-general, and regard the violation of the statute and of the constitutional provision as a breach of public duty, and impose penalties, on public grounds. We think it a natural inference that the legislature intended the later acts to be ancillary to the other statute and in aid of its general purpose, as well as that of the constitutional provisions concerned.
The assignments of error are overruled, and the judgment is affirmed.