emplary damages were recoverable against a common carrier (there a steamboat company) in an action of tort for violation of duty in willfully refusing to land its vessel, and receive the plaintiff as a passenger, according to its advertisement. In New Orleans, etc., R. Co. v. Hurst, 36 Miss. 660, which was a case somewhat similar, where the train ran by the regular station without stopping to put off (instead of to receive) a passenger, the court affirm the case last cited, and sav it is the right of the jury in such cases to protect the public, by punitive damages, against the negligence, folly, or wickedness which might otherwise convert these great public blessings into the most dangerous nuisances." It is the duty of a common carrier, especially where it has a monopoly, to provide sufficient cars for the transportation of all passengers, as well as for the carriage of all freight which its invitation naturally brings to it, as was held in Branch v. Wilmington, etc., R. Co., 77 N. C. 347. Indeed, the identical facts of the present case are cited by Judge RODMAN as an hypothetical illustration in that opinion. Page 351. No regard for their own profits or convenience will justify the corporation in having only sufficient cars for the ordinary amount of freight and travel, leaving the public to bear the inconvenience and loss, when, on unusual occasions, the volume of business may swell beyond the average. Common carriers could not be held liable for an unforeseen and extraordinary rush of business not within reasonable calculation, but when the additional volume of travel or freight is such as, with reasonable foresight, could be expected, it is the duty of the company to have the extra cars furnished. With the modern facilities of telegraph and telephone, the occasion of an unusual number of passengers or quantity of freight can be promptly notified and provided for. If this is not done, it is gross and willful negligence, and the company should not be allowed to find its profit in a willful and reckless disregard of the rights of the public, and of its own duties. It may be that on the whole testimony the defendant could show sufficient matter of excuse, but the plaintiff was entitled to have the phase of the evidence set out in his prayer for instruction presented to the jury. Taking that evidence to be true, and nothing else appearing, he was entitled to recover punitive damages.

Error.

Failure to Stop Train at Station and Take on Passengers-Action for Tort -Sufficiency of Complaint.-In the case of Purcell v. Richmond & D. R. Co. (North Carolina, March 17, 1891,) 12 S. Rep. 956, the plaintiff sued to recover damages for the failure of the defendant company to stop its train at a regular station and allow him to take passage thereon. The complaint alleged that the plaintiff went to the station to take passage on an advertised train of the defendant company, but that such train passed

without stopping and allowed no passengers to get on, to plaintiff's great disappointment, annoyance and damage in the sum of $500. Held, that such complaint stated an action for a tort and not for a breach of a contract, and that it was necessary that it should state the price paid by the plaintiff for his ticket. CLARK, J. said: "A case exactly in point, however, is Heirn v. McCaughan, 32 Miss. 17, in which it is held, an action against a common carrier for a failure to stop at a regular station, and take on board a passenger, according to advertised schedule, is founded in tort, and not on a special contract; it being for a violation of a general duty to the public." Even had the plaintiff alleged the price paid for the ticket, (which was not necessary in the action for tort,) it would not have been conclusive that the action was in contract; for the facts alleged in the complaint, taken as a whole, show that the plaintiff was not seeking to recover in contract for the pittance paid for his ticket, but for the wrong done him by the breach of public duty, and the wilful disregard of his rights by the defendant in not allowing him to get on the train at its regular depot, but running its train by without stopping, and leaving him standing and remaining at said depot, to his great disappointment, annoyance, and damage in the sum of five hundred dollars.' It is clear that whatever merits the evidence might indicate, as a matter of pleading the plaintiff's action was in tort, that the superior court had jurisdiction, and that the complaint did not fail to state a cause of action, in that (as defendant demurred) the price of the ticket, special damages, and other matter which would have been proper in an action ex contractu were not alleged. Indeed, the whole subject has been so recently considered in Bowers v. Richmond & D. Ř. Co., 107 N. Car. 721, that we might have contented ourselves with a bare reference to that case, in which MERRIMON, C. J., says: Obviously these words were intended to allege more than a simple breach of the contract; a tort,-a tortious injury. Granting that more appropriate terms for such purpose might have been employed, still the court can see the purpose informally expressed, and, as it can, the pleading should be upheld, and the jurisdiction sustained.' Under the former system of practice, the pleadings were construed most strongly against the pleader, but now the statute (Code, § 260) requires them to be liberally construed, with a view to substantial justice between the parties.' The case of Hannah v. Richmond & D. R. Co., 87 N. Car. 351, 10 Am. & Eng. R. Cas. 737, relied on by the defendant's counsel, is really, it seems to us, an authority against him. There the plaintiff alleged that he had been wrongfully put off the cars after having bought and paid for his ticket. The court held that it was an action for tort, but that, the plaintiff having died before judgment, the action abated as to the punitory damages for the technical assault, (Code, § 1491, subd. 2;) and that, treating it as an action ex contractu to recover the price of the ticket, the amount stated was within the jurisdiction of a magistrate. The demurrer to the jurisdiction and for failure to state a cause of action in the present case is based entirely upon the alleged insufficiency of the complaint, treating this as an action on contract. The measure of damages, treating it as an action in tort, is considered in the plaintiff's appeal."

Passengers Left Owing to Failure of Train to Start From Platform of Station-Special Regulations.-In Connell v. Mobile & O. R. Co. (Mississippi, February 17, 1890,) 7 S. Rep. 344. the plaintiff brought suit to recover damages for the failure of defendant's train to stop at station platform for her when she had her regular tickets. The foliowing facts appeared: Plaintiff's husband bought for her a regular ticket, to be used on a freight train with passenger coach attached, which was run by defendant under special regulations posted at the stations along the road, to the effect that the train could not be required to stop at the platforms of stations to take on

or put off passengers. Special tickets, in accordance with such regulations, were sold for this train, but the agent at the time had none on hand and the husband was acquainted with the regulations. Plaintiff and her husband waited on the platform for the train to be pulled up, not because they expected it to do so as a custom, but because they had been informed by a bystander that he had requested the conductor to do so, and the train pulled out and left them. Plaintiff then bought another regular ticket for the passenger train, which did not pass till night, and brought an action against the company for damagas. Held, that, as the regulation prescribed by the company was a reasonable one, plaintiff was not entitled to recover.

ST. LOUIS & SAN FRANCISCO R. Co.

V.

GILL.

(Arkansas Supreme Court, January 3, 1891.)

Passenger-Overcharge-Voluntary Payment. A voluntary payment by a passenger of an illegal overcharge, does not preclude a recovery by him for the statutory penalty.

Same Speculation in Penalties-Public Policy.—The fact that a person takes passage upon a railroad train, not for ordinary purposes, but for the sole purpose of accumulating penalties against it on the ground of overcharges, does not preclude him from maintaining an action to recover the statutory penalties therefor.

Immunity from Regulation of Charges-United States Military Post Route. -The fact that the United States government has granted a railroad company a right of way, and has declared it to be a post and military route and a national highway for governmental service, does not give such railroad company immunity from state regulation in respect to rates.

Foreign Railroad Company Subject to Legislation Regulating Passenger Rates. Under Const. Ark., Art. 12, § 6, a foreign railroad company which has entered the state to operate a road after this provision was in force, is subject to legislation, reducing passenger rates, provided such regulation does no injustice to the corporators.

Justice of Regulation of Rates How Determined-Railroad as Entirety.— Under a constitutional provision that the regulation of railroad rates must do no injustice to the corporators of the railroad company, the question of the justice of the regulation of passenger rates must be determined by its effect upon the net earnings of the entire line operated by the railroad company, and not by its effect on the net earnings of any given subdivision; even though such subdivision was formerly owned and afterwards consolidated with the company in question.

APPEAL from Washington Circuit Court.

B. R. Davidson, John O'Day, and E. D. Kenna, for appellants. Dan. W. Jones, for appellee.

HEMINGWAY, J.-The questions presented by this appeal depend upon the sufficiency of ten several paragraphs of the answer of the defendant below, appellant here, to each of which a demurrer was sustained. There was a trial upon one paragraph, and verdict and judgment for the plaintiff.

Joint rules of assembly.

In the second paragraph it was alleged that the act of April 4, 1887, entitled "An act to regulate the rates to be charged by railroads for the carriage of passengers," was not passed by the several houses of the general assembly in accordance with their joint rules, and that the bill as passed did not contain any provision limiting the rates that could be charged for the transportation of passengers. The joint rules of the general assembly were creatures of its own, to be maintained and enforced, rescinded, suspended, or amended, as it might deem proper. Their observance was a matter entirely subject to legislative control and discretion, not subject to be reviewed by the courts. That the act as passed contained a clause limiting passenger rates, was settled by this court in Dow v. Beidelman, 49 Ark. 325.

Overcharge

The substance of the ninth paragraph is that the appellee voluntarily paid the alleged overcharge, and that he therefore could not recover. Whether the conclusion would follow, if he sought to recover the amount of the overcharge, we need not decide. A voluntary payment of the overcharge does not preclude a recovery for the statutory penalty.

Voluntary

payment.

ing on train.

The eighth paragraph sets up that the plaintiff went upon. the defendant's train, not for the purpose of ordinary business or pleasure, but for the sole purpose of accumulating penalties against it, and that it would be Plaintiff's against public policy to allow him to maintain this purpose in goaction and thereby speculate in penalties. The act was not intended to provide a compensation for the injured passenger, but to deter railroad companies from taking excessive fares by punishing every such act. Each overcharge is in violation of law, and every payment of it is a legal wrong to the party making it who is thereby aggrieved within the meaning of the act, and by its express terms entitled to sue. Fisher v. New York Cent. & H. R. R. Co., 46 N. Y. 644; Raht v. Union Consolidated Min. Co., 5 Lea (Tenn.), 1. In the sixth paragraph it is alleged that by virtue of various acts of congress the line of defendant's road is declared a post and military route and national highway for postal, military, and all other governmental services, Regulation of and is subject to be regulated only by act of con- charges-Nagress; that it became such by grants of land and right of way from the government, and is thereby, route. exempt from state regulation. We do not appreciate the force of this defense. We do not understand that a grant of lands or a right of way over lands by the government confers immunity from state regulation upon its grantee. The remaining paragraphs of the answer contain objections

tional post and military

answer.

by which, as it is claimed, the act in question was shown to be in conflict with the provisions of the state and Allegations of federal constitutions. As they contain many repetitions of the same allegations, varying only in the different paragraphs in respect of form, we will state and consider them together. They are substantially as follows: That the alleged overcharges were made for passages on that part of the defendant's road formerly owned by the St. Louis, Arkansas & Texas Railway Company in Arkansas. That said company was duly organized under the general laws of the state of Arkansas in 1880. That by the laws then in force, and which were a part of its contract with the state, it was provided that said corporation, its successors or assigns, might fix such rates of fare as to it should seem proper, but that the legislature might alter or reduce its rates: provided, that no such reduction should be made until the net proceeds of its road for one year had exceeded 15 per cent. of its capital actually paid in: and provided, further, that such rates should not be so changed as to produce a profit below 15 per cent. as aforesaid. That, in accordance with the general laws of the states of Arkansas and Missouri, said St. Louis, Arkansas & Texas Railway Company, on the 10th day of February, 1881, was consolidated with two other corporations, in the name of the St. Louis, Arkansas & Texas Railway Company, Consolidated, which latter company succeeded to all the property, power, privileges, rights, and immunities which belonged to either of the consolidating companies. That at the time of the consolidation the road of the original Arkansas corporation had not been completed, and that it and the consolidated corporation were without means to complete the road. That on the 2d day of February, 1882, the consolidated company, by the authority and in pursuance of the general laws of the states of Arkansas and Missouri, sold and conveyed to the appellant all its railroad in said state, together with all its rights, privileges, franchises, and immunities thereunto belonging or appertaining; the appellant assuming, in consideration thereof, all the debts and obligations of the consolidated company. That the appellant thereby succeeded to the rights of the consolidated company. under its contract with the state, to fix such reasonable rates of fares for the transportation of passengers as would enable it to realize a profit of not less than 15 per cent. per annum of its capital actually paid in. That the road of said consolidated company has been completed for five years, and has never earned during any year profits to exceed 3 per cent. on the capital actually paid in, and that neither of the consolidating roads had earned profits during any year in excess of