GOODRIDGE 2:. UNION PAC. ni'. co.  
'(as is the fact) never attempted to revoke the charter of the town of Ka-
hoka because farming lands were embraced within its borders. This
proposition is supportedyby the decision in Kayser v; Brenwn, and ap-
pears to be the settled doctrine in this state. ‘ `. ° '
It was furthermore contended that the town of Kahoka contracted the
debt sued for as a corporation, and was a corporation de facto if not de jure,
and for that reason cannot defend against an innocent purchaser of the
bonds, even though the order of incorporation was a nullity. Allerv.
Townof Cameron,, 3 Dill. 198. I have not found it necessary to consider
the last proposition critically, and accordingly express no opinion as to _
1ts merit, preferring to rest my decision on the grounds before stated.
Judgment will be entered for the plaintiff. a `
Goonmnem et al. ·v. Union Pac. RY. C0. *
· (Oeroult Uowrt, .D. Colorado. May 12, 1888.)
1. Lmrrymon or Ac·r1ons—Fon PENALTY—RAILROAD Com·snms._
Laws Colo. 1885, c. 273, § 9, p. 310, authorizing the person injured by unjust
» discrimination in the matter of freight charges, etc., on the part of a railroad
company in that state, to recover a penalty in the amount of three times the
actual damages, is a penal statute; and an action underthat section to recover
V such penalty for an unreasonable exaction of freight is barred in one year,
·· under-Gen. t. Colo. 1883, iQ 2170, providing that "all actions for any penalty
*. * * brought by * a * any person to whom the penalty is given,
* * * shall e commenced within one year next after the offense is com-
· _ mitted." ° ` -
8. Bama. t ' `
A complaint against a railroad company under Laws Colo. 1885, c. 273, § 9,
V   310, to recover the penalty denounced thereby for an unjust exaction of
reight, alleged that the company posted its schedule, and that plaintiif, be·
lievmg that that schedule was uni orm for all persons, paid the rate charged
therein, but that, as a matter of fact, the conépany took freight from anot er
__ person 40 cents a ton lessthan what plainti paid. Held, on demurrer, that
no concealment by the company was shown, and that the action was barred
under Gen. Bt. Colo. § 2170, within one year from the time the offense was
commigted, and not within one year from the time the discrimination was dis·
covere .
8. Common Charities or Goons—D1sc1umnii·rron—PnnAnrno.
Acount in a complaint against a railroad company to recover for unju t dis- {
crimipation, irrespective of the penalty imposed by Laws Colo. 1885, c. 273, §
, 9, p. 10, averred that plaintiff paid one dollar per ton; that the company
charged a corporation, naming it, only 60 cents per ton, and that "such charge
to plaintiff for such transportation services were and are unjust, unreasonable,
and ext0rtionate." Held, on demurrer, that the complaint was good; it not
being incumbent on plaintiff to show what was a reasonable charge.
4 PLEADING—O0MPLAINT—RAILROAD Coiumnrns.
In Colorado the common—law count for money had and received is good on
demurrerto complaint in an action against a railroad company to recover for
unjust discrimination in' freight charges. _
M At Law. On demurrer to the complaint.
V v‘Sampec·rt &: Mdlett, for plaintiii'. V i
Teller &f Orahood, for defendant. V