36 mnnrmr. nizronrnn.
BREWER, J. This complaint is in three counts. The first seeks to
recover the triple damages given by section 9, c. 273, Acts 1885, p.
310; the second seeks to recover damages for an unreasonable exaction
of freight; and the third is the old common-law count for money had
and received. Two cases involving somewhat similar questions were pre-
sented to my brother HALLETT, and decided in April last.
One objection made to the first count is that it is ambiguous and un-
certain, in that it fails to state when these freight charges paid by the
plaintiffs were paid; that is, it alleges that they were paid between Octo-
ber, 1885, and August, 1887, not specifying any particular month or
` year in which they were paid; and it is insisted that section 8 of the
statute of limitations bars all actions of this nature unless brought within
one year from the time the cause of action accrued; and hence, as it is
uncertain how much of this bulk of freight charges was paid within the
year, the complaint is uncertain. That depends upon two questions,——
first, whether this is an action for a penalty, and, if so, whether section
8 applies to an action of this nature. My brother HALIJETT, in his opin-
ion, without deciding, intimated that he thought said section 9 was a
remedial, as contradistinguished from a penal, statute. I cannot agree
with that. It is plainly, under the decision of the supreme court as well
as the rules ofthe common law, at penal statute; and this is an action to
recover the penalty.; The statute forbids unjust discriminations, and
then section 9 gives triple damages in case of such unjust discrimination.
The section is headed "penalty," and the party injured is authorized to
recover three times the actual damage. Now, this excess above the act-
ual damage is something imposed asa penalty upon a railroad company
for doing that which by a former section of the statute is forbidden. A
l remedial statute is one which simply furnishes a new remedy, or makes
a more perfect remedy than existed before; so that the party injured un-
‘ der the new statute may more effectually secure full compensation for the
injury which he has suffered. A penal statute is one which, while it
may secure actual compensationfgoes beyond and punishes the wrong-
`doer for the wrong he has done; and it matters not that none of the pen-
alty goes to the state, and that all goes to the party injured. Statutes
are very frequent in all states—and it is in the exercise of the police power
of the state that they are passed—which, giving full compensation, say,
~ in addition, that the wrong-doer shall forfeit or pay double, triple dam-
ages, or a fixed sum or penalty·, for the wrong he has done. If I had any
doubt upon that proposition it would be settled by the case of Railroad
O0. v. Humes, 115 U. S. 512, 6 Sup. Ct. Rep. 110, in which was con-
sidered a statute of Missouri, which gave to a party double damages in
case its cattle were injured by arailroad whose track was not fenced.
That statute is like this. There the cattle of Humes were injured, and
he was entitled to recover double damages. Here the party who is
wronged by unjust discrimination is allowed to recover triple damages.
All goes in this case to the party injured; all went in that case to the
party injured. It was held that that action was brought under a penal
statute,-was an action for a penalty.-—that the additional damages were