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charge, and being under her charge and thus respon- held that a city is not liable for an injury resulting sible for her presence in the car, it was her duty to from the unsafe or dangerous condition of its lands see the fare was paid. The defendant was under adjacent to a street where the place of danger is so no obligation, of course, to carry the younger sister

far from the street that no iujury can result to perwithout being paid a reasonable compensation, and

sons in the ordinary and proper use of the street, if she was under the plaintiff's charge it is but fair

and the fact that a pavement was continuous from a and reasonable to hold her responsible for the fare.

sidewalk on a street, over the adjacent lands to the Under such circumstances the law would imply an

place of danger, was not, of itself, an implied inagreement on her part to pay the fare of the child,

vitation to a person on the sidewalk to go upon the and if she refused to pay it, the defendant had the adjacent lands. The court said: “If business is right to put off both, the plaintiff and the child

carried on upon the lot, or any curiosity kept there the plaintiff, because she had not complied with the

open to the public, or any inducement or allurements contract on her part implied by law, and the child, held out to the public beyond a mere permission to because the company was not required to carry it go there, the duty to keep the premises safe arises; unless its fare was paid according to the rules and

but if a lot is left infenced, a person who goes upon regulations of the company."

it by bare permission, because there is no obstruction

to keep him off, goes at his own risk. Railway Co. In Crocker v. McGregor, 76 Me. 282, an action for v. Bingham, 29 Ohio St. 364; S. C., 23 Am. Rep. an injury to the plaintiff by the fright of her horse, 751; Beck v. Carter, 68 N. Y. 283; S. C., 23 Am. by steam escaping from the defendant's mill, situ- Rep. 175. There is no proof in the case to show ated on the margin of the public highway, held, that

that there was any thing whatever on the city lot to evidence was admissible to show that other horses,

induce or invite any person to go upon or across it ordinarily safe, when driven by it on other occasions for any purpose unless for the purpose for which the a short time before and after, when the construc- plaintiff went there; ”i. ., to urinate; “nor is there tion and use of the mill were the same as when the any proof that the plaintiff went there upon any plaintiff was injured, were frightened by it. The

business with any person there, or for any purpose court said: “The issue was, whether the mill as whatever, except to get into the darkness in the constructed and used, with the steam escaping into shadow of the building. If there had been a busithe way, was a nuisance to the public travel. Evi ness room in the building, or upon another part of dence showing that it naturally frightened ordinary the lot, which would have been an implied invitahorses when being driven by it, was competent to

tion to the public to go there, it still would not help show its effect upon the public travel, its character the plaintiff when he aclmits that he did not go and ius capacity to do mischief. Its effect on horses upon the lot for any such purpose. The fact alone was not dependent upon the acts of men, which may

that the stone pavement extended from the street be the result of incapacity or negligence, but was

about twenty feet to the front wall of the first story caused by action of the inanimate thing upon an

and around the corner of the building about twelve animal acting from instinct. It was not to show feet, along the east side of it, cannot be treated as that other parties were injured at the same place by

an implied invitation to a person passing along the the same cause, and is therefore distinguishable street to turn aside and follow it in the darkness from cases against towns for injury from defects in across private property, without any purpose or oba highway, in which this court has held that evi-ject that could have been foreseen or anticipated by dence of accidents to others at the same place is in

the owner of the property. If the pavement beyond admissible, because it raised too many collateral

the limits of the street led to any place where perissues. Here the only issue is the effect of the sight

sons on the street might be expected to go for any and sound of the steam upon ordinary horses, as

legitimate purpose, the result would be different. tending to show that travel over the way was thereby The city should not be held to foresee or anticipate rendered dangerous. Hill v. P. & R. Railroad Co.,

that persons would leave the sidewalk and go along 55 Me. 439; Burbank v. Bethel Steam Mill Co., 75

the side of the building for the purpose for which id. 373; S. C., 46 Am. Rep. 400. We think the

the plaintiff went there. And if not, the fact that competency of the evidence rests upon the same

it extended the stone pavement to the open arca, or principle as evidence, in actions against railroad

if it had extended it much farther, would not have corporations for damage hy fire, alleged to have been been, of itself, an implied invitation to the plaintiff set by coals or sparks from a passing locomotive,

or to any passer on the street to use the pavement.” that the same locomotive, or others similarily con

See Lang v. Clercland, etc., R. Co., 78 Ind. 323; S. structed and used, have emitted sparks and coals, C., 41 Am. Rep. 572. and set fire at other places and on other occasions. It tends to show the capacity of the inanimate thing

In Socher's Appeal, Pennsylvania Supreme Court, to do the mischief complained of. Grand Trunk R. Jan. 1884, 41 Leg. Int. 501, a husband left all his Co. v. Richardson, 91 U. S. 454; Whitney v. Inh's of property to his wife on her promise to keep it for Leominster, Mass. Supreme Court, not yet reported." their children. After his death she married again,

and devised all her property to her second husband. In.Kelley v. City of Columbus, Ohio Supreme Court Held, that equity had jurisdiction to enforce the Commission, June, 1884, Cin. L. Bull, Supp., it was trust against the second husband, and the children

II.

IT

need not be confined to the remedy of ejectment. of the fugitive's guilt. It is sufficient if an authenThis is iu harmony with O'Hara v. Dudley, 95 N. | ticated copy of an information is produced. In re Y. 403; S. C., 47 Am. Rep. 53.

Hooper, 52 Wis. 702; State v. Hufford, 28 Iowa, 391.

In the first case the court speaking through Mr. INTER-STATE EXTRADITION.

Justice Cole say:

" While the act of Congress speaks of an indictment found or an affidavit made before

a magistrate, yet I do not think it was intended T is no objection to the granting of the warrant to exclude a case where the charge is in the form of

that the offense, made a crime or misdemeanor by a criminal information.It is no objection to the the laws of the demanding State, is not a crime or warrant that the indictment on which it is predmisdemeanor under the laws of the State to which the icated is technically insufficient. The court will fugitive has filed and from which he is demanded. not inquire into its sufficiency, provided it appears Work v. Corrington, 34 Ohio St. 64; S. C., 82 Am.

to charge an offense made a crime by the laws of Rep. 345; People v. Brady, 56 N. Y. 188; Kentucky the demanding State. Davis's case, 122 Mass. 324; v. Dennison, 24 IIow. 66; on this point also the dis- In re Voorhes, 32 N. J. L. 141; In re Greenough, 31 cussion of the United States Supreme Court is final. Vt. 279; In re Clark, 9 Wend. 212. In People v. In Kentucky v. Dennison, Chief Justice Taney on be- Brady 56 N. Y. 182, the court held that an affidavit half of the court disposes of this question in these which did not set forth facts sufficient to constitute words: “ The argument on behalf of the governor a crime at common law as that law had been interof Ohio which insists upon excluding from this preted by the courts of that State, was not sufficient clause new offenses created by a statute of the State to sustain an executive warrant for the apprehension and growing out of its local institutions and which and surrender of the fugative, the court saying: “It are not admitted to be offenses in the State where the is a reasonable rule supported by obvious considerfugitive is found nor so regarded by the general us ations of justice and policy that when a surrender age of civilized nations, would render the clause is sought upon proof by affilavit of a crime the useless for any practical purpose. For where can offense should be distinctly and plainly charged." the line of division be drawn with any thing like The affidavit or indictment should state that an ofcertainty? Who is to mark it? The governor offense was committed within the demanding State. the demanding State would probably draw one line Matter of Heyward, 1 Sandf. 701; Ex parte Douaghey, and the governor of the other State another, and if | 2 Pitts. 166; Ex parte Smith, 3 McLean, 121. It they differed who is to decide between them? Un- must also appear by affidavit that the alleged fugider such a vague and indefinite construction the tive has fled from the demanding State. Matter of article would not be a bond of peace and union but Heyward (supra); Ec parte Smith (supra); Hartman a constant source of controversy and irritating dis v. Aveline, 63 Incl. 314. The court on habeas corpus cussion.” It is also necessary to inquire what pre- has the right to determine whether the party deliminary steps must be taken to justify the executive manded is in fact a fugitive from justice, and the in complying with the requisition. The act of 1793 decision of the executive on this point is not binding requires the executive of the demanding State to on the judiciary. Jones v. Leonard, 50 Iowa, 106; produce to the governor of the State upon which the S. C., 32 Am. Rep. 116. In this case the court held deman:l is made “a copy of an indictment found or that is a citizen and resident of one State charged in an affidavit made before a magistrate of any State a requisition with constructive commission of crime or Territory” charging the fugitive with having in another State from which in fact he has never committed treason, felony or other crime and duly fled is not a fugitive from justice, and the determiauthenticated by the executive. In construing this nation of the governor as to the sufficiency of the provision of the statute the courts have uniformly facts alleged is not conclusive.” held that the requisition must be founded upon an Of course where on habeas corpus all the papers on authenticated copy of an indictment, information which the warrant is founded are produced, the or affidavit, and that the mere statement by the court has the right and is bound to pass upon their governor of the demanding State that the fugitive sufficiency to justify the granting of the warrant. stands charged with a crime in the State is insuffi- | People v. Donohue, 84 N. Y. 438; People v. Brady, cient. In re Doo Woon, 18 Fed. Rep. 898; Soloman's 56 N. Y. 182. But cases may arise in which the case, 1 Abb. Pr. (N. S.) 347; Matter of Rutter, 7 id. executive may refuse to submit such papers to the 67; Ex parte Pfitzer, 28 Ind. 451; Ex parte Thornton, court. That the production of such papers on the 9 Tex. 635.

hearing cannot be compelled appears to be well setThe affidavit, information or indictment should tled by the authorities. State v. Burgine, 4 Har. be duly authenticated by the executive. Solomon's (Del.) 572; Leary's case, 6 Abb. N. C. 43; In re case, 1 Abb. Pr. (N. S.) 347. It should also appear Leary, 10 Benedict 197. In the event of the papers that the fugitive is charged with a crime in the de- being withheld, must the warrant recite all the necmanding State. Ex parte Lorraine, 10 Nev. 63. essary facts? That it should cannot be seriously However it is not necessary that there should be an questioned. In re Jackson, 2 Flip. C. C. 183; In re authenticated copy of an indictment or affidavit, al-Doo Moon, 18 Fed. Rep. 898; Ex parte Thornton, 9 though the act does not in express terms authorize Tex. 635; People v. Donohue, 84 N. Y. 438. Where the granting of the warrant upon any other evidence the warrant does recite all the essential facts, can

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they be disputed, or is the statement in the warrant article as the authorities on that subject have been conclusive upon the court? That the recitals are at carefully collated and reviewed in the Central Laro least prima facie evidence that the facts are true is Journal of July 11, 1884, (see page 22 of vol. 19). conceded by all the authorities. People v. Pinker. The case of State v. Stewart in that article is incorton, 77 N. Y. 245; Davis's case, 122 Mass. 324; rectly cited. It is reported in 19 N. W. Rep, 429, Brown's case, 112 id. 409; Kingsbury's case, 106 and not in 11 N. W. Rep. 430. id. 223. The majority of the cases goes even fur It is not necessary that a warrant for the arrest of ther and hold that the recitals in the warrant are the fugitive should have been issued in the deconclusive upon the court and cannot be contro- manding State. Tullis v. Fleming, Adm'r., 69 Ind. verted. People v. Pinkerton, 17 Hun, 199; State v. 15. In this case the prisoner claimed that he should Burgine, 4 Har. (Del.) 572; In re Leary, 10 have been discharged because it did not appear that Ben. 197; People v. Donohue, 84 N. Y. 438. Where a warrant liad been issued in the demanding State the offense with which the fugitive is charged was upon the charge contained in the affidavit. This not at common law a crime, the courts of the State claim was adjudged by the court to be untenable, upon which the demand is made can have no evi the court saying: “ There is nothing either in the dence of its constituting a crime unless it is declared act of Congress or in the act of this State upon the to be a crime in the indictment or affidavit, or unless subject of fugitives from justice which requires that the statute law making it a crime is proved before a warrant shall be issued for the fugitive upon the the court as any other fact. In such a case, the court charge against him before his return can be dehaving no proof before it that the party had com manded from the State or Territory to which he mitted a crime, would of course be compelled to dis may have fled.” The District Commissioner for the charge the prisoner. State v. Swoop, 72 Mo. 399. western district of Michigan held, In re Jackson, 2 But if the offense is described in the papers as a Flip. C. C. 183, that the mere statement by the excrime this will be sufficient. In re IIooper, 52 Wis.

ecutive of the demanding State that the party is a 699; Tullis v. Fleming, Adm'r., 69 Ind. 15. It is fugitive from justice is not sufficient to authorize not necessary that the party should have left the the governor of the State on which the requisition demanding State for the purpose of escaping prose

is made to arrest and surrender the alleged fugitive. cution in order to constitute him a fugitive within The court very properly decided that the fact of the meaning of the Constitution. It is sufficient fleeing must be established by competent evidence. that he has actually left the State in which the Judge Withey, in his opinion, says: Now it is manoffense was committed. This renders him a fugitive ifest that before the executive of Michigan is authoreven though the State to which he goes is the State ized to issue bis warrant to cause to be arrested and in which he resides, and he returns to it for the sole secured a person charged in another State with a purpose of returning to his home. People v. Pinkerton, criine, it should be shown by evidence making a 17 Hun, 199; Adam's case, 7 Law Rep. 386; Kings- prima facie case that such person has fed from the bury's case, 106 Mass. 227. Until the most extraor- demanding State. This should be shorn by comdinary decision of the United States Circuit Court petent evidence, as the fact of fleeing lies at the for the district of California (In re Roblı

, 19 Fed. foundation of the right to issue a warrant of extraRep. 26) it had been supposed by both bench and dition. The certificate of the demanding gorernor is bar that the right of the State courts to pass upon

no eridence of the fact. Neither the act of Congress the legality of the arrest under an inter-State extra nor any rule of evidence makes his certificate evidition warrant was not open to discussion. The dence of such fact. The mere fact that a citizen of State courts had in many instances discharged par- Michigan has been charged with crime and indicted ties held under such warrants when brought before in another State is not legally sufficient to authorthem on habeas corpus. In not one of the reported ize the arrest and extradition of such citizen. He cases has the want of power to inquire into and de may be charged with crime and indicted in a State termine the lawfulness of the detention under such into which he has never entererl, or was never in a warrant ever been even remotely hinted at by coun

and from wbich therefore he never fled. It is as sel. And the doctrine is now authoritatively settled essential to the right of arrest and extradition to in accordance with the uniform practice and almost prove to the satisfaction of the governor of Michigan universal opinion on the subject. Robb v. Connolly, that the person charged with crime has fled from 4 Sup. Court Rep. 544. In referring to the case in justice as to prove that he is charged with crime in the Circuit Court, the court say; “ It is proper to

such other State.

No provision is made as say that we have not overlooked the recent elaborate to the method of proving that the person demanded opinion of the learned judge of the Circuit Court of as a fugitive has fled from justice. * The the United States for the district of California in evidence that the person has fled from justice must In re Robb, 19 Fed. Rep. 26. But we have not been be not only satisfactory to the governor but must be able to reach the conclusion announced by him.” legally sufficient before the erecutive authority can be exTo what extent the fugitive who has been extra

crcised. We cannot act upon rumor nor upon the dited under the provision of the Constitution can mere representation of a person, nor upon the debe held by the demanding State and tried for other manding governor's certificate. It should be sworn offenses it would be supererogatory to state in this evidence such as will authorize a warrant of arrest

*

in any other case.” To same effect Ilartman v. Ave islation to add to the provision of Congress upon that line, 63 Ind. 341. The court, in this case of Jackson's subject; for that the will of Congress upon the whole seems to have inclined to the opinion that the arrest subject is as clearly established by what it had not would have been legal even though the governor declared as by what it has expressed.” This queshad acted on the mere statment of the executive of tion however was not before the court and the dethe demanding State, provided the warrant had re- cided weight of authority is against Judge Story's cited that it had been satisfactorily shown that the dictum and it would seem to be indefensible on person arrested was a fugitive from justice from the principle. Commonwealth v. Tracy, 5 Metc. 536; demanding State. This opinion was of course based Er parte Cubreth, 49 Cal. 436; Robinson v. Flanders, on the cases which decide that where the governor 29 Ind. 10; Ex parte Smith, 3 McLean, 121; Ex parte sces fit to withhold the requisition papers, the re White, 49 Cal. 433; Ex parte Rosenblut, 51 id. 285. citals in his warrant are not open to contradiction See also Commonwealth v. IIall, 9 Gray, 262. It apon habeas corpus. On this point the court says: pears that all the justices who concurred with “Ilad the Governor of Michigan stated in his war Judge Story in reversing the judgment of the rant of arrest and removal that it has been satisfac Supreme Court of Pennsylvania did not agree with torily shown to him that Jackson had fled from him on this question. See opinion of Chief Justice justice, or was a fugitive from justice from Massa Taney at page 632; of Mr. Justice Thompson at page chusetts, such statement would be prima facie sussi 635; of Mr. Justice Wayne at page 637, and of Mr. cient and possibly conclusive. There are judgments,

Justice Daniels at page 672. which seem well considered, holding the warrant In Ex parte Morgan, 20 Fed. Rep. 298, the United woull, if prima fucie suflicient, be conclusive, and States District Court for the western District of that courts will not go behind it in such cases.” Arkansas decided that the governor of Arkansas

Neither the executive nor the judiciary will try had no authority to issue a warrant for the arrest the question of guilt if the fugitive is legally charged and extradition of a fugitive from justice from the with a crime in the demanding State, the requisition Territory of the Cherokee Nation, for the reason that will be granted and the courts will not on habeas the executive of a State derives all his authority to corpus pass upon the truth of the charge. IIartmann grant such a warrant from the Constitution and v. reline, 63 Ind. 344; Nichols v. ('ornelius, 7 id. laws of the United States, and that they did not 011; Robinson v. Flunilers, 29 id. 10; People v. Braily, authorize the issuivg of a warrant in such a case. 56 N. Y. 182.

Guy C. II. CORLISS. The constitutionality of the act of 1792 and the power of Congress to legislate generally on the sub

CARRIER-FREIGIIT ('IL:RGES-PAYUENT OF ject of inter-State extradition was settled in the

ILLEGAL RATES VOT VOLUNTARY. case of Prigy v. Commonwealth of Pennsylrania, 16 Pet. 539. The Constitution and laws of the United

OHIO SUPREME COURT, OCT. 21, 1884. States being the supreme law of the land, all State legislation repugnant to the Constitution or the act

PETERS V. MARIETTA & ('in. R, ('0.* of Congress on this subject will of course be void. A shipper has a right to have his goods transported at legal Indeed Judge Story, in the case above cited, asserts

rates over the usual line of a common carrier of such

goods; and if, to procure the services of such carrier, the the invalidity of all State legislation on the subject

shipper is compelled to pay illegal rates established by the whether repugnant to the Constitution and laws of

carrier, the payment is not such a voluntary payment as the United States, or not, provided Congress has will preclude recovering back the illegal charge; nor will in some manner regulated the matter.

it preclude such recovery if the payments, by arrangepage 017: “For if Congress have a constitutional

ment of parties, are made at the end of each month. power to regulate a particular subject, and they do ERROR to the District Court of Scioto County. actually regulate it in a given manner and in a cer

This case is one of twelve cases, each of which has tain form, it cannot be that the State Legislatures

similar facts and questions of law. have a right to interfere, and as it were by way of

The plaintiffs owned iron blast furnaces for the complement to the legislation of Congress to pre manufacture of pig iron, and the furnaces were located scribe additional regulations and what they may along the line of the Scioto and locking Valley raildeem auxiliary provisions for the same purpose. In

road between Portsmouth and llamden. All but five

were built after the construction of the road, and after such a case the legislation of Congress in what it

that time all the furnace companies exclusively relied does prescribe manifestly indicates that it does not

upon it for transportation. intend that there shall be any farther legislation to This part of the S. & H. V. R. was purchased about act upon the subject-matter. Its silence as to what December 1, 1863, by the defendant and possession it does not do is as expressive of what its intention

taken. By the act of February 11, 1848 (S. & (! 281), is as the direct provisions made by it. This doctrine

tbe (!. & II. V. R. ("o. was limited in its rate of charges

for the transportation of freight to fire cents per ton was fully recognized by the court in the case of

per mile, as a maximum charge for distances of thirty Houston v. Moore, 5 Wheat. Rep. 1, 21, 22; where it miles or more, and for distances of less than thirty was expressly held that where Congress had exer miles to “reasonable rates." This limitation was not cised a power over a particular sulject given them

on the defendant as to its original road, but it might by the Constitution it is not competent for State leg

*To appear in 42 Ohio State Reports.

Ile says at

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charge for the transportation of property “such rates plaintiffs rates in excess of legal rates allowed by the of toll as the corporation may determine."

charter of the S. & FI. V. R., and that from March 28, After this purchase the defendant claimed the right 1864, to February 1, 1867, the plaintiffs paid defendant to charge the same rates over the purchased road that excessive and illegal charges, and “that the payment of were charged over its own road, and advauced the such excess was compulsory in the sense tbat plaintiffs rates under dates of January 26, 1864, March 7, 1864, and defendant did not stand on a footing of equality, March 28, 1864, August 1, 1864, September 12, 1864, that said sums exacted were illegal and unauthorized, December 12, 1864, and March 16, 1865. This caused and that plaintiffs were required to pay the same to proobjection and repoustrance, and in 1867 the suits were cure the transportation of their property, without commenced.

which the plaintiffs in each of said cases, by reason of The petition further avers that plaintiffs were enti their manufacturing business, would have suffered tled to have their freight carried at rates limited to be

great loss." charged by the S. & H. V. R. Co., but that the defend. The Court of Common Pleas from the report and ant has disregarded plaintiffs' rights and has taken ad evidence, also found “that said payments in excess of vantage of plaintiffs' necessities, and has required uu rates authorized by law, and inclusive of interest to lawful and unjust rates, which plaintiffs have been the first day of the present term, amount to the sum compelled to pay by the necessities of their business, of $—, but that the payments were voluntarily made and that plaintiffs remonstrated against the unjust and under such circumstances that they cannot be reexactions and protested against the payment of the covered back," and rendered judgment for the desame, and that the defendant, although requested so fendant. Plaintiffs excepted, and the cases are hero on to do, has neglected and refused to account with the their bill of exceptions. plaintiffs as to the payments in excess of legal rates,

Edward F. Hunter, W. A. Hutchins and M. A. and that defendant has so received to and for the use

Daugherty, for plaintiff in error. of the plaintiffs the several sums of money set forth in the exhibit, and prays judgment.

McClintick & Smith and Harrison, Olds & Marsh, for The answer has three defenses : The first denies that

defendant in error. the defendant is restricted in charging freight and fare FOLLETT, J. The plaintiffs aver that the defendant to the charter of the S. & H. V. R. Co., and claims, as from time to time has received to and for the use of purchaser of that road, to be authorized to charge the plaintiffs several sums of money specified and set any "fair and reasonable rates;" the second alleges forth in tabular statements; and that the several sums that all sums paid were so paid voluntarily, after the 80 received were for freight charges in excess of legal services for which the same were demanded had been rates. It is admitted that the amounts charged were fully rendered, and when defendant's demand for the paid. same could not have been enforced without giving The matters set up in the first defense were disposed plaintiffs a day in court, with full knowledge, or the of by this court in Campbell v. 11. & C. R. Co., 23 Ohio means of kuowledge, of the change in the ownership St. 168, by holding: “Where the railroad of one comof said railroad, and of the charges demanded by the pany is purchased by another railroad company, in defeudant for the transportation of the property upon pursuance of a statuto authorizing the purchase, in the its said purchased road, and of all other facts con absence of any provision of law to the contrary the nected with said demand; and that said sums

road passes to the purchasing company subject to the not exacted as a conditiou of the performance of said same restrictions and limitations as to rates chargeservice, nor as an inducemeut of such performance; able for transportation as attached to it in the hands of and denies all allegations which charge that the same the vendor.” And section 12 of the act of February were paid involuntarily or by coercion; and the third 11, 1818, governs this case. denies that the sums cbarged were in excess of In that case this court also held that: “ Where a amounts authorized by the charter of the S. & F. V. railroad company is authorized to demand and receive R. Co., aud says the charges so made included com compensation for transportation of property 'not expensation for warehouses, grounds and facilities fur ceeding five cents per ton per mile, where the same is nished, storage, handling, etc.

transported a distance of thirty miles or more, and in The reply to the first defense denies, that as pur case the same is transported for a less distance than chaser of the said road, the defendant has any other thirty miles, such reasonable rato as may be from time right or power to charge fare or freight otherwise than to timo fixed by the company,' it is unreasonable as a as prescribed for the original owner, the S. & II. V. R. matter of law, that the company should fix a greater The reply to the second defense denies that the pay sum for a less distance than thirty miles than the ments were voluntary, and avers that they wero co maximum allowed for full thirty miles." eroed aud illegally exacted by defendauts. The reply In Smith v. P., Fl. W. & C. Ry. Co., 23 Ohio St. 10, to the third defense denies defendant's right to chargo this court also held : " Whether the rate of passenger for any thing but transportation.

fare fixed by a railroad company under section 12 of The defendant demurred to the first defense. The the act of February 11, 1818 (S. & C. 271), for distances demurrer was sustained in the Court of Common Pleas less than thirty miles, be reasonable or not, is a quenand in the District Court, and came to this court on tion of fact for the jury to be determined under such the question whether the M. & C. R. Co. is restricted instructions by the court as the circumstances of the on this purchased branch in charging for freight; and particular case may require.”' the judgment below was reversed for error in sustain In that case Mcllraine, J., said: “Whenever thereing the demurrer Campbell v. M. & C. R. Co., 23 fore the determination of the question whether the Ohio St. 168. This court held that section 12 of the rate be reasonable involves the necessity of hearing act of February 11, 1864, applied to the case, and sent testimony, it falls within the province of the jury.” it back to the court below for further proceed We think the reasonableness of the freight fare may ings.

be determined in the same manner. The cases were then sent to a special master to take In this case the special master heard the testimony testimony and report. The master took the evidence and found the facts, and also reported the evidence, and reported it, and found and reported certain rates and from the peculiar facts of the case the master "to be reasonable rates for the distances named dur. found a certain amount due for “the payments in exing the period covered by the report;” and that from cess of rates authorized by law;" and the court beand after March 28, 1864, the defendant had cbarged low, from the same evidence, found the same facts,

were

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