133 Wis. 478 | Wis. | 1907
2. Tbe only remaining question to be considered is wbetber tbe plaintiff was entitled to judgment for cumulative breaches of sec. 1809, Stats. (1898), or wbetber be must be confined to recovery for but one forfeiture in tbe action. Tbis is an interesting question, and is governed by tbe statute imposing tbe penalty. Tbe jury found that between tbe 11th and 14th of April, 1905, there were eight violations of sec. 1809 by defendant, and awarded $75 damages for each. It is insisted by appellant that but one penalty can be recovered, and by respondent that plaintiff is entitled to recover for each and every violation of tbis statute which occurred between April 11 and 14, 1905. Sec. 1809, cb. 87, Stats. (1898), provides, among other things, that “in all cities and villages tbe engine bell shall be rung before and while crossing any street, and no train or locomotive shall go> faster, until after-having passed all tbe traveled streets thereof, than at tbe rate of six miles per hour.” And see. 1819 of tbe same chapter provides:
“If any railroad corporation, its officers, agents or servants-shall violate or fail to comply with any of tbe provisions of tbis chapter for which no forfeiture is otherwise specially provided, sucb corporation shall, for each and every sucb violation or failure, forfeit not less than fifty nor more than five hundred dollars, one half to tbe person prosecuting, and in addition be liable to tbe person injured for all damages-sustained thereby.”
Parks v. N., C. & St. L. R. Co. 81 Tenn. 1, 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
“Upon failure of the railroad company, during any trip of the passenger cars, to comply strictly with any of the provisions of the preceding sections of this act, then such railroad company shall forfeit and pay the sum of one hundred dollars recoverable before any court having jurisdiction thereof, one half to be paid to the person suing, and the other half to go to the conxmgn school fund of the state.”
In U. S. v. St. L. & S. F. R. Co. 107 Fed. 870, the act imposed a penalty upon a common carrier of live stock for confining the same in cars longer than twenty-eight consecutive hours without unloading for rest, water, etc., and it was held that the carrying for more than twenty-eight hours was but a single offense, and that separate penalties could not be recovered for each car. Morgan v. Hedstrom, 164 N. Y. 224, 58 N. E. 26, involved the liability of directors of a corporation for successive failures to file annual report, and it was held that, cumulative penalties not being favored, they could not be recovered unless expressly declared, and for other reasons stated in the opinion. George Dittman B. & 8. Co. v. Mixon, 120 Ala. 206, 24 South. 847, was an action for penalty on account of failure to satisfy a mortgage of record after having been requested to do so. It was held that but one penalty could be recovered, although several requests had been made to satisfy the mortgage. Friedeborn v. Comm. 113 Pa. St. 242, 6 Atl. 160, was a prosecution under the Sunday act for violation of the Sabbath day, and it was held that there could be but one violation by the same person on the same day. In Garrett v. Messenger, L. R. 2 C. P. 583, it was held that but one penalty could be recovered for keeping a house for public dancing and music without a license under 25 Geo. II. c. 36, § 2, and that a second action by another common informer to recover a like penalty was not maintainable. Pilcher v. Stafford, 4 B. & S. 775, involved the con
“It is the employment of an unlicensed pilot for which the penalty of $100 is incurred. It does not say for each employment, nor for each offense, nor for each ship unlawfully piloted.”
In Fisher v. N. Y. C. & H. R. R. Co. 46 N. Y. 644, it was held under the provisions of an act to prevent extortion
“For every refusal to comply with tbe requirements of this section tbe company so refusing, and having contracted as aforesaid, shall forfeit to tbe aggrieved party tbe sum of fifty dollars, which may be recovered in any court of competent jurisdiction.”
The court in effect held that, because of failure to use tbe words “for each offense,” cumulative penalties could not be recovered, citing Suydam v. Smith, 52 N. Y.z 383. But tbe court said (179 N. Y. 449, 72 N. E. 517) :
“It is quite obvious that tbe legislative intention to permit the recovery of cumulative penalties for refusals of tbe defendant to comply with tbe provisions of tbe railroad law in regard to the transfer of passengers is as clearly manifested as in any of tbe cases cited.”
The court, however, held in this ease, upon other grounds, that but one penalty could be recovered. Gox v. Paid, 175 N. Y. 328, 67 N. E. 586, is also relied upon by appellant. In this case there were two refusals by tbe secretary of a corporation to permit a stockholder to examine tbe stock book. Tbe following day tbe president refused on demand. Tbe point is also m'ade in tbe opinion that tbe statute imposed a penalty “not for each and every but for any refusal on tbe part of tbe officers.” Tbe decision went upon tbe ground that there was practically but one demand and refusal, although it will be noted that even in this case the chief justice and two other justices dissented.
We think the judgment of the court below is right and should be affirmed.
By the Court. — Judgment affirmed.