senger was not entiled thereto for failure to comply with the company's rule requiring demands for transfers to be made at the time of paying fare, if it appears that the company had established a system of transfers between the lines in question, and had furnished its conductors with transfer slips.- Schwartzman v. Brooklyn Heights R. Co., 50 Misc. (N. Y.) 116, 98 N. Y. Supp. 941.

It is not a defense to an action for the statutory penalty, that the giving of transfers at the point in question might cause undue crowding in the street and at the intersections.- Muskowitz v. Brooklyn Heights R. Co., 47 Misc. (N. Y.) 119, 93 N. Y. Supp. 385.

66

The mistake of a conductor in demanding an additional fare after a transfer to a car ahead," does not permit the recovery of a penalty.Stewart v. Metropolitan R. Co., 20 Misc. (N. Y.) 605, 46 N. Y. Supp. 414.

A mistake as to distance by carrier's agent is not a defense in an action for the statutory penalty for overcharge.- Missouri Pac. R. Co. v. Smith, 60 Ark. 221, 29 S. W. 752.

A champertous agreement between a passenger and his attorney is not a bar to recovery of a statutory penalty.- Missouri Pac. R. Co., V. Smith, 60 Ark. 221, 29 S. W. 752.

A voluntary payment of an overcharge does not preclude a recovery of the statutory penalty.-St. Louis & S. F. R. Co. v. Gill, 54 Ark. 101, 15 S. W. 18, 11 L. R. A. 452n; affd. on other points, 156 U. S. 649, 15 Sup. Ct. R. (U. S.) 484.

A railroad company is not liable for penalties for an overcharge, merely because of the act of a conductor, in nowise authorized or approved by the company.-Hall v. Norfolk & W. R. Co., 44 W. Va. 36, 26 S. E. 754, 41 L. R. A. 669.

[72] Actions for penalties.

Public action to recover penalties,- see post, § 59, note.

Actions to recover penalties are not to be enlarged beyond the express terms of the statute upon which they are founded.- Cox v. Paul, 175 N. Y. 328, 67 N. E. 586.

In statutes giving a penalty, if there be reasonable doubt of the case made upon the trial or in the pleadings coming within the statute, the party of whom the penalty is claimed is to have the benefit of such doubt.- Chase v. N. Y. C. R. Co., 26 N. Y. 523.

No penalty can be recovered under N. Y. R. R. L., § 39, which provides for the recovery of a penalty from carriers asking or receiving more than the lawful fare, for the refusal of a street railroad company to issue a transfer in violation of section 104 of that Act.- O'Connor v. Brooklyn H. R. Co., 123 App. Div. (N. Y.) 784, 108 N. Y. Supp. 471.

The statute of limitations on an action under N. Y. R. R. L., § 104, is three years, and is not that prescribed by § 39 of that Act.- Munro v. Brooklyn Heights R. Co., 120 App. Div. (N. Y.) 516, 125 N. Y. Supp. 325.

A suit by an infant passenger to recover the statutory penalties for refusal of a transfer should be brought in his own name, and not that of his father or guardian ad litem.- Fox v. Interurban St. R. Co., 42 Misc. (N. Y.) 538, 86 N. Y. Supp. 64.

The New York courts will not enforce the penalties prescribed in a Pennsylvania statute prohibiting unjust discriminations- Langdon v. N. Y., L. E. & W. R. Co., 58 Hun (N. Y.), 122, 11 N. Y. Supp. 514, affg. 9 N. Y. Supp. 245.

Verdict for plaintiff reversed in transfer penalty case, where it was not proved that plaintiff took the proper car.- Weinstein v. Interurban St. R. Co., 86 N. Y. Supp. 731.

"Forfeitures" under a transportation act are criminal rather than remedial, and hence actions to recover them are governed by the statute of limitations as to penalties.- Herriman v. Burl. C. R. & N. R. Co., 57 Iowa, 187, 9 N. W. 378, 10 N. W. 340.

A private relator cannot use the name of the state in an action to enforce the statutory penalties against a railroad for failing to file a report as required by law.-State ex rel. Hodge v. Marietta & N. G. R. Co., 108 N. C. 24, 12 S. E. 1041.

An action to recover a penalty under the Corporation Commission Act is an action ex contractu.- Katzenstein v. Raleigh & G. R. Co., 84 N. C. 688.

Where the amounts found as penalties and the amounts found as damages are separately stated, and each penalty is separately stated, if some of the penalties are improper, they will be stricken out by the appellate court without vitiating the entire verdict.- San Antonio & A. P. R. Co. v. Stribling, 14 Tex. Ct. R. 38, 89 S. W. 963, modfg. s. c. 12 Tex Ct. R. 200, 86 S. W. 374

[73] Effect of repeal of penal statute.

When the legislature repeals a penal statute, unless there is some saving clause, all penalties fall, even if given to individuals and suit has been brought and is pending for them.- Welch v. Wadsworth, 30 Conn. 149.

[74] Right to recover damages as affected by right to penalty.

A passenger on a Vanderbilt avenue car in Brooklyn received a transfer entitling him to transfer to the Seventh avenue line "at intersection of issuing line." Said lines intersect at the corner of 20th street and

9th avenue, but the rule of the street railway company made another intersecting point a considerable distance away the transfer point. It was much nearer for the passenger to transfer at the first-named point, but having done so the transfer was refused and he was ejected from the car.- Held, that the transfer, on its face, entitled the passenger to transfer at the first-named point and he was entitled to recover damages for the ejectment.- Charbonneau v. Nassau Elect. R. Co., 123 App. Div. (N. Y.) 531, 108 N. Y. Supp. 110.

Where a passenger received a transfer so punched that the time limit had already expired, and the conductor, when his attention was called to the fact, said that it was all right, the passenger is not entitled to recover damages for his ejection from the car upon which he presented the transfer although he might recover the excess fare exacted of him or the statutory penalty for refusal to give a transfer.- Nicholson v. Brooklyn Heights R. Co., 118 App. Div. (N. Y.) 13, 103 N. Y. Supp. 310.

A passenger expelled because his transfer-slip is improperly refused, is entitled to substantial damages.- Georgia R. & Elec. Co. v. Baker, 125 Ga. 562, 54 S. E. 639; Laird v. Pittsburg T. Co., 166 Pa. 4, 31 Atl. 51.

A statute making a carrier liable for penalties to the state for overcharges, etc., does not take away the right of a shipper to recover the excess paid by him, above the legal rates.- Fuller v. Ch. & N. W. R. Co., 31 Iowa, 187; affd. 17 Wall. (U. S.) 560.

§ 27. Switch and sidetrack connections; powers of commissions [to order their installation or discontinuance]. 1. A railroad corporation, upon the application of any shipper tendering traffic for transportation, shall construct, maintain and operate upon reasonable terms a switch connection or connections with a lateral line of railroad or private sidetrack owned, operated or controlled by such shipper, and shall, upon the application of any shipper, provide upon its own property a sidetrack and switch connection with its line of railroad, whenever such sidetrack and switch connection is reasonably practicable, can be put in with safety and the business therefor is sufficient to justify the same.

2. If any railroad corporation shall fail to install or operate any such switch connection with a lateral line of railroad or any such sidetrack and switch connection as aforesaid, after written applica

• Words in brackets are not a part of section heading as enacted.-Ed.

tion therefor has been made to it, any corporation or person interested may present the facts to the commission having jurisdiction by written petition, and the commission shall investigate the matters stated in such petition, and give such hearing thereon as it may deem necessary or proper. If the commission be of opinion that it is safe and practicable to have a connection, substantially as prayed for, established or maintained, and that the business tc be done thereon justifies the construction and maintenance thereof, it shall make an order directing the construction and establishment thereof, specifying the reasonable compensation to be paid for the construction, establishment and maintenance thereof, and may in like manner upon the application of the railroad corporation order the discontinuance of such switch connection.

Parallel provisions of Interstate Commerce Act,—see Interst. Com. Act, § 1.

Provisions as to places where freight and passengers shall be received and discharged,- see N. Y. Rap. Tr. Act, § 28, post, Appendix A. Publication of charges for switching service, etc.,- see post, § 28. Power of Commission to make regulations for the switching of freight cars, see post, § 37.

Preferences in furnishing cars to shippers on sidetracks,- see post, § 37.

Power of Commission to order repairs or changes in any switches or terminal facilities used by carrier,-- see post, § 50.

Forfeitures and penalties,— see post, § 56.

General rules of statutory construction,— see ante, § 1, notes [23][40].

Purpose of acts regulating railroads,—see ante, § 1, note [32].

What constitutes a railroad or street railroad,- see ante, § 2, note [8].

Effect, review and restraint of orders,- see ante, § 23, notes.

[1] Duty to furnish switch connections.

General duty of carrier to render switching services,-see ante, § 26, note [9].

General duty of carriers not to discriminate as to facilities and sersee post, § 32, note [1].

vice,

Discriminations in furnishing sidetrack connections generally,- see also post, § 32, note [28].

A carrier is under no legal obligation to construct a spur track from its line to a coal mine for the private benefit of the owner in shipping his product, although it has permitted to be built, and has contracted to build, similar tracks to other mines.- Harp v. Choctaw, O. & G. R. Co., 118 Fed. 169; affd. 125 Fed. 445.

A common carrier of interstate freight cannot lawfully deny switch connections and service to one person, place, locality or kind of traffic which it affords to others similarly situated.- Interstate Stock-yards Co. v. Indianapolis U. R. Co., 99 Fed. 472.

The fact that the expense to the defendant railroad company in connection with the transportation of the complainant's coal from sidetracks would be greater than the expense connected with the carriage of coal from the mines of other parties who now enjoy sidetrack connections, does not in any way excuse the withholding of such facilities from the complainant, but is merely a matter to be considered by the defendant in establishing the rates for the transportation of the commodities in question.- Red Rock F. Co. v. B. & O. R. Co., 11 Inters. Com. R. 438.

That a railroad has not sufficient equipment to supply the requirements of all its patrons does not excuse an otherwise unlawful discrimination as to switch connections.- Red Rock F. Co. v. B. & O. R. Co., 11 Inters. Com. R. 438.

A railroad company is liable in damages if it discriminates against a particular grain elevator in the matter of switching and terminal facilities. Kellogg v. Sowerby, 93 App. Div. (N. Y.) 124, 87 N. Y. Supp. 413.

[2] Right of shipper to demand sidetrack connections.

The owner of a coal mining property adjoining the right of way of a railroad is entitled as a matter of right to connect switch tracks built on his own land with the track of such road, to facilitate the loading and shipping of coal.- Olanta Coal M. Co. v. Beach Creek R. Co., 144 Fed. 150.

The establishment and maintenance of switch connections by a railroad does not, at common law, create any duty on the part of that company to forever maintain the same.-Jones v. Newport N. & M. V. Co., 65 Fed. 736.

Not every person or company desiring to develop a coal mine along or near a railroad is entitled to demand a sidetrack connection merely because connections have previously been made with other mines. There must be such similarity of situation and feasibility of connection as will permit practical adherence to reasonable operating conditions by the carrier.- Red Rock F. Co. v. B. & O. R. Co., 11 Inters. Com. R. 438.