Smith v. Chicago & Northwestern Railway Co.

| Wis. | May 27, 1880

The following opinion was filed March 30, 1880:

ORTok, J.

The two counts of the complaint are not substantially dissimilar, and both charge the appellant company with having taken from the respondent rates and charges for transportation above the rates fixed by law, and in violation of express statute prohibiting the same, by compulsion, and against the protest of the respondent. The action was originally brought by similar averments for the penalties prescribed in section 9, ch. 273, Laws of 1874, which has been since repealed; and it was held by this court (43 Wis., 688) that the action could no longer be maintained for three times the excess so taken while said section was in force.

So far as we are informed by the record upon this appeal, the respondent thereupon amended his complaint, not materially in its statement of facts, but by asking'for entirely different relief, viz., instead of the penalties, merely the excess of the rates and charges allowed by the statute, so extorted and compelled, and so paid under protest. In this casé we must hold that this, of itself, was a very material amendment. The first complaint, although stating-substantially the same facts, was one exclusively for the penalties of the statute, and was so conceded to be by the learned counsel on both sides; and it was not claimed, upon the argument, that' it might be sustained and held sufficient for the recovery of the excess, merely, as in an action at common law; and although changing the prayer is not generally changing the complaint, yet, when the action was claimed to have been brought solely for the penalties, and so treated both by counsel and the court, for the purposes of the former appeal, the facts stated and the prayer for relief were very properly held inseparable; and it must now be held that changing the prayer for the statutqry penalties to one for the relief which is consequential from the facts stated at common law, is in effect an amendment of the complaint itself. It follows, therefore, that the decision of this court upon the former appeal is not conclusive of the question here presented.

The demurrer to the former complaint was sustained on the ground that it was intended to go only for the penalties which had been repealed. That the complaint, so amended, might be sustained for the excess over the lawful rates, so exacted and compelled, is strongly intimated by the chief justice in Rood v. The C., M. & St. Paul Railway Co., 43 Wis., 146" court="Wis." date_filed="1877-08-15" href="https://app.midpage.ai/document/rood-v-chicago-milwaukee--st-paul-railway-co-6602398?utm_source=webapp" opinion_id="6602398">43 Wis., 146, where a similar complaint was held insufficient for the recovery of the penalties in consequence of the repeal of the statute, in the following language: “It may be, however, that the complaint can be amended so as to go for the difference between the rates paid by the respondent and the legal rates at the time.”

The principle which is the foundation of the action, with the complaint so amended, has been recognized by this court in Noyes v. The State, 46 Wis., 250" court="Wis." date_filed="1879-01-15" href="https://app.midpage.ai/document/noyes-v-state-6602760?utm_source=webapp" opinion_id="6602760">46 Wis., 250, where the action was brought to recover license moneys which had been exacted by reason of the statute then-in forcé, but which had after-wards been held unconstitutional and void; and in Wood v. Lake, 13 Wis., 94, where the excess of interest above the rate fixed by law, and exacted and paid, was allowed to be recovered in a common-law action as for money had and received.

It is objected that the action, if it go merely for the illegal excess, is in assumpsit, and not in tort, and, the former action for the penalties being in tort, it cannot be changed into assumpsit by an amendment of the complaint. There appears to be no good reason in such a case why the action may not be in either tort or assumpsit, as in the case of Wood v. The Milwaukee & St. Paul Railway Co., 32 Wis., 398" court="Wis." date_filed="1873-01-15" href="https://app.midpage.ai/document/wood-v-milwaukee--st-paul-railway-co-6601223?utm_source=webapp" opinion_id="6601223">32 Wis., 398, where the act complained of was both a breach of contract and of duty, and the plaintiff had an election to bring his suit in assumpsit 91* tort. The excess in the present case is charged to have been exacted and compelled “wrongfully and fraudulently,” which language would seem to give character to the action as one in tort. The repeal of the statute as to the penalties, and a change in the rates of transportation, would certainly not affect this action, going merely for the excess exacted and paid while the law prohibiting it was in force; for the right of action had fully accrued and was complete when the unlawful payment was exacted and paid — a fully vested right at common law. The Steamship Co. v. Joliffe, 2 Wall., 450" court="SCOTUS" date_filed="1865-01-30" href="https://app.midpage.ai/document/steamship-co-v-joliffe-87662?utm_source=webapp" opinion_id="87662">2 Wall., 450.

It is also objected that the statute prescribing the penalties for such an act, while in force, suspended all other' remedies. There might be force in the objection if there had been no other remedy for such an unlawful exaction except a statutory one; then a new statutory remedy might have the effect to suspend or repeal the former one. But I know of no principle by which a civil common-law remedy is suspended by a statute prescribing penalties for the same act. In such a case the remedies would be cumulative, one civil, and the other quasi penal, which might be waived/ It would he equally pertinent and tenable to claim that the statute making malicious trespass criminal suspended or repealed the common-law action for trespass. Questions relating to common-law and statutory offenses have no application to this point, which appears to he too clear for further argument. The motion to strike off the amended complaint, on the ground that it is the same complaint that this court held insufficient on the former appeal, or for any reason given, was properly overruled.

By the Court.— The order of the circuit court is affirmed, with costs.

A motion for a rehearing was denied May 27, 1880.