Cincinnati, Hamilton & Dayton Railroad v. Cole

Welch, C. J. The important question in the case, and that, doubtless, for the decision of which it was brought here, is whether either of these companies is bound by the provisions of the act of 1878, fixing their maximum rates of fare below what they are allowed by their charters to take.' If both companies are bound by that act, it is needless to consider one of the principal questions argued by counsel, namely, whether by virtue of the lease the lessee company acquired the franchise of the lessor company to demand and receive toll; or whether, on the other hand, the lessee company is to be regarded as- deriving that franchise directly from the state. We all unite in the opinion that both companies are bound by the provisions of the act. We .are of this opinion, not becausewm do not regard the charters of the companies as being in the nature of contracts between the companies and the state, but because by the execution of the lease both companies have virtually relinquished their right to charge the rates of fare specified in their charters, and submitted to be regulated in this respect as companies formed under the present constitution. The act of 1873 in terms applies to all railroad companies operating roads within the state, as well those organized before as those'organized since the date of the present constitution. In other words, if at the date of the act there was legislative power to change the rates of fare chargeable ■by these companies, the power has been exercised. We think there was such power. The general corporation act of 1852 (S. & C. 281, sec. 24) authorizes “ any railroad company organized in pursuance of law ” to “ lease or purchase any part or all of any railroad constructed by any other company,” in cases where the roads are connected or «continuous, as in the present case. And section 71, of the [134] same act provides: “ That all companies now incorporated within this state, and actually doing business, may accept any of the provisions of this act, and when so accepted, and' a certified copy of their acceptance filed with the secretary of state, that portion of their charters inconsistent with the provisions of this act is hereby repealed.” It can not be denied that by the execution of the lease-in question these companies did avail themselves of and thus in fact “ accept ” a material “ provision ” in the act. True, it does not appear that any “certificate” of this acceptance was filed with the secretary of state; but we think it is not for the companies, thus availing themselves of the benefit of the provision, to profit by their own omission to-file the certificate. If either party has a right to object on that account, it is the state and not the companies. It is-the fact of acceptance that binds the company, and the certificate is merely evidence of the fact. We, therefore, see-no error in the court’s charge touching the rate of fare. Rut we are of opinion the court erred in excluding the-publication offered in evidence. It tended to show the quo animo of the plaintiff, and that the case was not one in which he should recover damages for supposed injury to his “ feelings.” It tended to show that he entered the car expecting to be ejected, as he was ejected, and for the purpose of making mouey out of the transaction. So far as injury to “ feelings ” is concerned, it tended to show that it was a fair case for the application of the maxim that to the willing mind there is no injury. The expulsion was one which he sought and expected. The question of the lawfulness of the fare could have been raised and settled as well without the expulsion as with it. We think also that the verdict was grossly excessive, and that it can only be accounted for on the theory of prejudice, or of an entire misconception of the rule of damages in such cases. The verdict should have been set aside, and a new trial granted. Judgment reversed, and cause remanded for a new trial.