such places or points of intersection, and cause the same to be kept conspicuously posted at the several business stations on its road; no such company, its officers or agents, shall charge or receive, directly or indirectly, for transporting any property consigned as aforesaid, any less rate than is designated on such printed card, until such rate is changed by an order of the board of directors of such company, and at least ten days' notice of such change given by bill or card to be posted as aforesaid; and no such company, its officers, or agents, shall evade, or attempt to evade, by drawback, free ware-housing, or in any other manner, the payment of full freightage, according to the printed tariff of rates, as herein provided. [50 v. 205, 22; S. & C. 318.]

See note to Scofield v. Railway Co., 43 O. S. 571, under 3373.
See note to Railway Co. v. Scofield, 2 C. C. 305, under 3366.

SEC. 3368. [Certain contracts inhibited.] A company whose road forms part of any line of railway between points common to any other line, shall not contract or agree with any person, or with any other railroad company or companies, having a road or line of roads, or forming a part of any line of roads, between the same points, not to carry freight or passengers to or from such common points, nor shall it refuse to receive or carry any freight or passengers brought to it to be so carried. [58 v. 74, 2 1 ; S. & S. 117.] SEC. 3369. [When trunk roads must not discriminate between other roads.] When any railroad is a trunk road, or in the nature of a trunk road, and at or near the same place connects with or is intersected by two or more other railroads tributary to or competing lines for business to or from such trunk road, or to or from points on or beyond the same, any company or person operating or using such trunk road shall transport passengers and freight going to or coming from such tributary or competing roads without making any discrimination in the charges therefor, directly or indirectly, for or against either of such roads; and the company or person owning or controlling any such trunk road shall not, by lease or otherwise, permit the same to be used or operated in any manner contrary to the foregoing provision. [58 v. 74, ? 2; S. & S. 117.]

SEC. 3370. [Must forward freight by line named by shipper.] Every company shall ship all freight that comes within its control by the railroads over which it is ordered to be conveyed by the shipper; and any company whose agent knowingly diverts, or permits to be diverted, any freight that comes under his control from the railroad over which the same is ordered to be conveyed, shall forfeit and pay to the company from which such freight is diverted three times the amount received for transporting the same, and such agent shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not more than one hundred dollars, or imprisoned in the county jail not more than thirty days, or both. [58 v. 74, 2 3; S. & S. 117.]

SEC. 3371. [Preceding section may be enforced by injunction.] On complaint of the violation of any of the provisions of the three preceding sections, by petition as in ⚫ther actions, the observance of the same may be enforced by injunction, and the party violating the same, or any of them, shall be liable in damages to the person or company injured, for the injury sustained in consequence thereof. [58 v. 74, 4; S. & S. 117.]

SEC. 3372. [Not to discriminate between way and through freight.] Every company whose line of road, or any part thereof, is within this state, shall so employ its rolling stock used for the transportation of freight as to afford as ample facilities for the transportation of local and way freight, delivered to or discharged by it along its line of road, as it affords for the transportation of through freight, in proportion to the amount of its rolling stock, and shall not give facilities for transportation to either class of freight in preference to the other. [60 v. 93, 21; S. & S. 116.]

SEC. 3373. [Nor against points in the state.] No company or person owning, controlling, or operating a railroad, in whole or in part, within this state, shall charge or receive for transportation of freight for any distance within this state a larger sum than is charged by the same company or person for the transportation in the same direc

tion, of freight of the same class or kind, for an equal or greater distance over the same railroad and connecting lines of railroad; and every such company or person who violates, or permits to be violated, the provisions of this section, shall forfeit and pay to the party aggrieved a sum equal to double the amount of the over-charge, but in no case less than twenty-five dollars, and shall also for every such unlawful act, forfeit and pay to the state a penalty of not less than one hundred nor more than one thousand dollars, to be recovered in a civil action, brought in the name of the state, by the prosecuting attorney of the county wherein such offense was committed, as part of his official duties, whenever complaint is made to him, and he is satisfied that the provisions of this section have been violated. [69 v. 27, 1.]

Where a lower rate is given by a railroad corporation to a favored shipper, which is intended to give, and necessarily gives, an exclusive monopoly to the favored shipper, the railroad corporation may be required to give an equal rate for all under like circumstances. Such a contract of discrimination can not be upheld simply because the favored shipper may furnish for shipment during the year a larger freightage in the aggregate than any other shipper, or more than all others combined: Scofield . Railway Co., 43 O. 8, 571.

See note to Railway Co. v. Scofield, 2 C. C. 305, under 1⁄2 3366.

SEC. 3374. [Rates of passenger fare prescribed.] A company operating a railroad, in whole or in part, in this state, may demand and receive for the transportation of passengers on its road not exceeding three cents per mile, for a distance of more than eight miles; but the fare shall always be made that multiple of five nearest reached by multiplying the rate by the distance. [73 v. 102, ? 13; S. & C. 278.]

The provision in the twelfth section of the general railroad act of February 11, 1848, (46 v. 40), that no reduction shall be made in the rates of fare and charges for freight allowed to companies organized under that act, unless their net profits for the previous ten years amount to ten per cent. on their capital, is in the nature of a contract, and binding on the state: Railroad Co. v. Furnace Co., 29 O. S. 208; and companies organized under that act before the adoption of the present Constitution, and which have not relinquished their right to be governed thereby, and had not realized a net profit of ten per cent on their capital for the ten years next preceding the passage of the act of March 30, 1875 (72 v. 142), are not bound by the provisions of the latter act reducing their rates of fare and freight below those allowed by the twelfth section of the act of 1848: Ib.

When the railroad of one company is purchased by another company, in pursuance of a statute authorizing the purchase, in the absence of any provision of law to the contrary the road passes to the purchasing company, subject to the same restrictions and limitations as to rates chargeable for transportation as attached to it in the hands of the vendor: Campbell v. Railroad Co., 23 O. S. 168.

When a person purchases a ticket and takes a seat in a railroad train, and after the train starts gives up his ticket to the conductor, he can not, at any intermediate station, by virtue of his subsisting contract, leave such train while in the reasonable performance of such contract and claim a seat upon another train: Railroad Co. v. Bartram, 11 0.8. 457.

If a railroad company fix two rates of passenger fare for a distance less than thirty miles, to wit: a ticket rate and a car rate, the former within, and the latter beyond, the limits of its authority, and the conducter of the train, under the direction of the company, refuse to accept from the passenger less than the illegal and unauthorized rate, it is not necessary, to enable the passenger to remain on the train, to tender more than the ticket rate, although the company might have fixed such ticket rate at a higher sum: Smith v. Railroad Co., 23 O. S. 10.

A railroad company has the right to prescribe reasonable conditions for the admittance of way passengers upon its freight trains; and payment of fare to its office agents, or procuring a ticket prior to taking passage on such trains, is not an unreasonable condition; and an offer to pay fare to an employe on the train who has no authority to receive the same is not an offer to the company, and in such case does not entitle the person to a place on the freight train as a passenger: Railroad Co. v. Bartram, supra.

A railroad company has the right to prescribe reasonable rules for the government of its employes in the conduct of its business upon its trains, and passengers should conform to such rules; and a rule which requires a conductor to eject from the train a passenger who refuses to produce a ticket, or pay his fare, on demand, is a reasonable rule, and the purchaser of a non-transferable commutation ticket, who has lost it, and refuses, on account of such loss, to pay his fare upon a train, falls within the rule, and can not maintain an action of tort against the company to recover damages for being ejected by the conductor for non-compliance with it: Crawford v. Railroad Co., 26 O. S. 580.

A railroad company has the right to require passengers to pay fare, and a rule directing its conductors to remove from the cars those who refuse to comply with the requirement is reasonable; and the fact that a ticket has been purchased by a passenger, which was afterward wrongfully taken

up by a conductor of one of the defendant's trains, will not relieve the passenger from the duty of providing himself with a ticket, or paying fare on another train of the defendant in which he may be a passenger; and in such case the right of action of the passenger would be for the wrongful taking up of the ticket, and not for having been removed from a train by another conductor for refusing to pay fare: Shelton v. Railway Co., 29 O. S. 214.

A purchaser from a railroad company of a ticket which entitled the purchaser to a ride upon its cars a certain number of times within a given period, for a price below the usual rate of fare, and which specified on its face that it was good only during such period, having failed to ride the specified number of times within the period named, is not entitled to ride upon such ticket after the expiration of the period: Powell v. Railroad Co., 25 O. 8. 70.

A passenger upon a railroad train refused to pay the established rates, which were higher than those allowed by law, and tendered the legal rate, and, upon refusal to pay more, was ejected from the train by the conductor, but without rudeness or unnecessary violence, and brought his action for damages against the company; it appearing on the trial that the passenger knew the established rates, and took passage expecting to be ejected from the cars, intending to bring an action therefor, it was held that he was only entitled to compensatory damages, and the company, for the purpose of mitigating damages and preventing the recovery of exemplary damages, might give in evidence subsequent declarations of the plaintiff, tending to prove that his object in taking passage on the cars was to make money by bringing suits against the company for demanding or receiving their established rates of fare: Railroad Co. v. Cole, 29 O. S. 126.

This section applies to consolidated railroad companies organized in pursuance of the act of April 10, 1856 (4 Curwen 2791): Shields v. State, 26 O. S. 90.

The statute limits the fare which may be demanded when the distance is more than eight miles, but it imposes no limit when the distance is not more than that. In that case, the railroad company is allowed to exercise its own discretion in fixing the rate, subject only to the implied condition that it must not prescribe a rate which the law would pronounce unreaspnable: Railroad Co. v. Skillman, 39 O. S. 451.

A railroad company may charge a higher price for carrying passengers when the fare is paid on the train, than it does at its ticket office, provided the price thus charged is reasonable, and the fare charged on the train does not exceed the maximum allowed by law: Ib.

Right of company to expel a passenger for refusal to pay his fare: Ib.

A railroad ticket is not a negotiable instrument; and any person purchasing the same, takes it subject to the equities that exist between the original parties to it: Frank v. Ingalls, 41 O. S. 563. As to waiver of conditions on a thousand-mile ticket, see Kent v. Railroad Co., 45 O. S. 284.

SEC. 3375. [Rates of freight prescribed.] Such company may receive for transportation of property not exceeding five cents per ton per mile, when the same is transported a distance of thirty miles or more, and in case the quantity transported is less than one ton in weight, or any quantity is transported a less distance than thirty miles, such reasonable rate as may be from time to time fixed by the corporation or prescribed by law; but until a tariff of specific rates is established by law for the transportation of property of such bulk that a quantity equal to the tonnage capacity of the car can not be carried in it, the corporation may contract for space in the car sufficient to secure the safe transportation of such property, at a rate which shall not exceed five cents per ton per mile if such car were loaded to its tonnage capacity; and for the transportation of coal, pig-iron, limestone, iron ore, or undressed stone or lumber, not more than five cents per ton per mile shall be charged for any distance of ten miles or more, and in case the same be transported a less distance than ten miles, such reasonable rates as may from time to time be fixed by the corporation or prescribed by law; and the corporation may charge on such freight a reasonable rate for loading and unloading, when the same is in fact done by the corporation. [73 v. 102, ? 13.]

Where the charter of a railroad company authorized it to charge not to exceed a specified rate of fare or freight for a distance of thirty miles or more, and for a less distance than thirty miles such reasonable rate as may be from time to time fixed by the company, a rate for a distance less than thirty miles which exceeds the maximum allowed for full thirty miles is, as matter of law, unreasonable to the extent of the excess; but when the rate for the shorter distance does not exceed the maximum allowed for thirty miles. the question whether or not the rate is reasonable is for the jury, and to be determined in accordance with the evidence and such instructions of the court as are applicable: Smith v. Railroad Co., 23 O S. 10; Campbell v. Railroad Co.: Ib. 168.

The board of directors of a railroad company, provided it does not exceed the maximum rate, may make contracts for transportation for a fixed future period. Such a contract, if otherwise valid, is not ultra vires and void, for the reason that it binds the corporation for a fixed period of time: Railroad Co. v. Furnace Co., 37 O. S. 321.

Whether the rate is reasonable or not, is a question of fact, to be determined by the circumstances of each case: Peters v. Railroad Co., 42 O. S. 275.

If, to procure the services of the carrier, the shipper is compelled to pay illegal rates, the payment is not such a voluntary payment as will preclude recovering back the illegal charge, even though the payments, by arrangement of the parties are made at the end of each month: Ib.

SEC. 3376. [Penalties for violation of two preceding sections.] Any such company which violates, or permits to be violated any of the provisions of the two preceding sections, or which demands or receives a greater sum of money for the transportation of passengers or property on or over its road than the sum allowed by law, shall pay to the party aggrieved, for every such over-charge, a sum equal to double the amount of the over-charge; and any officer, employe, or agent of any such company, who violates, or permits to be violated any of such provisions, or demands, or receives such sum of money, shall be subject to the like penalty to the party aggrieved; bui in no case shall the amount to be paid be less than one hundred and fifty dollars to any bona fida claimant using the road of such company in due course of his business. [73 v. 102, ? 13.]

The provision of this section giving a penalty of one hundred and fifty dollars, is not in contravention of the Constitution: Railroad Co. v. Cook, 37 O. S. 265.

A petition under the act of April 20, 1874 (71. v. 146), was not demurable for want of an averment that the excessive fare was paid by the plaintiff in due course of business: Ib.

Nor for want of an averment that the purchaser of the ticket was in fact transported on the ticket: Ib. Okey, J., dissented.

Where such action stood for judgment on the petition, it was held not to be error to refuse to impanel a jury to assess damages: Ib.

Several causes of action for penalties under said act may be united in the same petition: Ib.

SEC. 3377. [When the three preceding sections do not apply.] The provisions of the three next preceding sections shall not apply to any railroad in course of construction, and the gross earnings of which are less than four thousand dollars per mile per annum, when such railroad is not owned or operated by companies operating another railroad; provided, that such exemption shall not continue longer than five years after cars are run for the transportation of freight and passengers on said road. [73 v. 102, 13.] SEC. 3378. [Rates of fare and freight on branch roads.] A company may demand and receive for the transportation of passengers on a branch road a fare not exceeding six cents per mile, and for transportation of property such reasonable rate as may be from time to time fixed by the company or prescribed by law; but if the length of such branch exceeds ten miles, the charge for passengers and freight upon the excess shall be the same as provided by law for main lines. [69 v. 203, ? 4; (S. & S. 111).]

See note to Railway Co. v. Scofield, 2 C. C. 305, under § 3366.

SEC. 3378a. [Certain contracts for sale of railroad property not valid against creditors or innocent purchasers unless recorded, or copy filed with secretary of state.] No contract of, or for the sale of railroad equipment, rolling stock, or other personal property (to be used in or about the operation of any railroad), by the terms of which the purchase money, in whole or in part, is to be paid in the future, and wherein it is stipulated or conditioned that the title to the property so sold shall not vest in the vendee, but shall remain in the vendor until the purchase money shall have been fully paid, shall be valid against creditors or innocent purchasers for value, unless recorded in the office of the secretary of state, or a copy thereof filed in the office of said secretary of state, and when said contract is so recorded, or a copy thereof so filed as aforesaid, the title to the property so sold, or contracted to be sold, shall not vest in the vendee, but shall remain in the vendor until the purchase money shall have been fully paid, and such stipulation or condition shall be and remain valid, notwithstanding the delivery of the property to, and its possession by such vendee. [1882, March 16; 79 v. 45.]

SEC. 3378b. [In written contracts for leasing such property, parties may provide for conditional sale of same; parties may provide that the property shall re

main in the lessor or vendor until purchase money paid.] In any written contract for the renting, leasing or hiring of such property (to be used as aforesaid), it shall be lawful to stipulate or provide for a conditional sale of such property at the termination of such renting, leasing or hiring, and to stipulate or provide that the rental reserved shall, as paid, or when paid in full, be applied to and treated as purchase money; and in such contract it shall be lawful to stipulate or provide that the title to such property shall remain in the lessor or vendor until the purchase money shall have been fully paid, notwithstanding delivery to and possession by the other party; subject, however, to the requirement as to recording or filing contained in the foregoing section of this act. [1882, March 16: 79 v. 46.]

SEC. 337Sc. [Secretary of state to file contracts: his fees, etc.] The secretary of state, when so requested, and upon being paid the proper fees, shall record any such contract, and shall file in his office a copy of any such contract, when the same shall be delivered to him for that purpose, and for every such copy so filed he shall be entitled to receive one dollar. [1882, March 16: 79 v. 46.]

SEC. 3378d. [Construing application of foregoing sections.] The provisions of the foregoing sections three thousand three hundred and seventy-eight (a), three thousand three hundred and seventy-eight (b), and three thousand three hundred and seventy-eight (c), shall extend and apply, not only to contracts made with a railroad company, as vendee or lessee, but also to all contracts which may be made with any corporation, company or person, as vendee or lessee, by which any such corporation, company or person shall undertake to purchase, rent, lease, or hire any railroad equipment, cars, rolling stock, or other personal property, designed for use on, or in connection with, a railroad or railroads, in this or other states. [1889, April 12: 86 v. 255.]

CONSOLIDATION.

As to curing defects in consolidation agreements (79 v. 126; 81 v. 3; 84 v. 29), see 2 8516-23,8516— 24, 8516-25).

For an act to provide for the improvement and development of railroads owned in common by two or more railroad companies within this state" (80 v. 111, see 8516-33 et seq).

SEC. 3379. [When companies whose roads are in the state may consolidate.] When the lines of road of any railroad companies in this state or any portion of such lines, have been or are being so constructed as to admit the passage of burthen or passenger cars over any two or more of such roads continuously, without break or interruption, such companies may consolidate themselves into a single company. [74 v. 71, 2 1; S. & C. 280.]

Consolidated railroad companies, organized in pursuance of the act of April 10, 1856 (53 v. 143) › are corporations formed under a general law, within the meaning of 2, Art. XIII of the Constitution of 1851, and as such are subject to the limitations and reservations contained in that section, and in 2 2, Art. 1, of that instrument; and the general assembly has power to alter and regulate rates of fare chargeable by such companies: Shields v. State, 26 O. S. 86.

Parties to an agreement to consolidate under the act of April 10, 1856, supra, continue in the full enjoyment of their powers and franchises, respectively, and may accept subscriptions to their capital stock at any time before consolidation is consummated, by filing the agreement of consolidation with the secretary of state: Railroad Co. v. Brown, 26 O. S. 223.

Subscriptions to the capital stock of such corporations are to be construed with reference to consolidation statutes in force, and subscribers are bound thereby as if the statutes were part of the contract of subscription; and a person who becomes a subscriber to such stock during the progress of consolidation, is to be regarded as a stockholder within the meaning of 10 of that act: Ib.

After consolidation is completed by filing a certificate with the secretary of state, the new corporation thereby created can succeed to the rights, powers and franchises of the original corpora tions only by operation of the statute, which provides for such succession only upon the election of the first board of directors of the new corporation, and such election is not authorized by the statute before consolidation has been consummated by filing the certificate with the secretary of state. Ib. The new consolidated company, in an action for money due on subscriptions to the capital stock of the original corporations, must show that is has succeeded to the rights of its predecessors upon an election of a board of its own directors: Ib.