GOODRIDGE v. UNION PAG. RY. co. 37
by way of punishment to the company for its negligence, and that it was
not avalid objection that·the sufferer, instead of the state, received them.
The mode in which fines and penalties shall be imposed, whether at the
suit of a private party or at the suit of the public, what disposition shall
be made of the amounts collected, are matters of legislative discretion.
The opinion discusses the matter at some length, clearly showing what,
I think, outside of and independent of that decision, would be plain,-—
thatan action of this kind is an action to recover a penalty.
The statute of limitations provides, (section 8:)*
"All actions and suits for any penalty or forfeiture of any penal statute
brought by this state, or any person to whom the penalty or forfeiture is given, _
in whole or in part, shall be commenced within one year next after the of-
fense is committed, and not after that time."
Here the whole penalty is given to the party, and comes within the
plain letter of that section.
It is further insisted that, where there is concealment of a wrong, that
the time during which such concealment runs is not to be included within
the statutes. The cause of action dates from the time the wrong is dis-
covered. Be that as it may, it will not avail in this case, for there is
no allegation of concealment. The complaint alleges that the defendant
posted its schedule, and that the plaintiff`, believing that that schedule
was uniform for all persons, paid a rate of one dollar per ton. Now,
that is very far from alleging that the railroad company concealed its
wrong. Non cemstat but everybody except the plaintiffs knew that the
MarshallCoal Company was receiving a rate of sixty cents. Perhaps the
published reports of the company disclosed it; perhaps the plaintiffs
never made any inquiry. So, whatever might be the rule, if there was
a distinct allegation in this count that the defendants had concealed_ the
fact of this unjust discrimination, the complaint, as it stands, fails to show
concealment, and therefore the demurrer to that count will be sustained.
The second count is to recover for an unjust discrimination, irrespeotr
ive of the statute. In that count it is averred that the plaintiffs paid
one dollar per ton; that the defendant charged the Marshall Coal Company
only sixty cents; and then the count goes on and avers in general language-
that "such charges to plaintiffs for such transportation service Were and
are unreasonable, unjust, and extortionate." Now, I think that is enough.
A simple allegation that the plaintiffs were charged a dollar a ton and
that they had paid that amount, and that those charges were unreason-
able and extortionate, states a good cause of action. It may not follow,
as a conclusion from that, that the difference between sixty cents and one
dollar is the measure of damages; that may depend upon other consid-
I erations; but if the charges which the defendant exacted from the plain-
tiffs were unreasonable and extortionate, the plaintiffs are entitled to at
least nominal damages. I do not understand in a complaint of this kind,
at least as against any objection raised by demurrer, that it can be said
that it was the duty of the plaintiff to show what was a reasonable charge,
*Gen. St. Colo. 1883, 52170. . ·