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charge, and being under her charge and thus responsible for her presence in the car, it was her duty to see the fare was paid. The defendant was under no obligation, of course, to carry the younger sister without being paid a reasonable compensation, and if she was under the plaintiff's charge it is but fair and reasonable to hold her responsible for the fare. Under such circumstances the law would imply an agreement on her part to pay the fare of the child, and if she refused to pay it, the defendant had the right to put off both, the plaintiff and the child the plaintiff, because she had not complied with the contract on her part implied by law, and the child, because the company was not required to carry it unless its fare was paid according to the rules and regulations of the company."

In Crocker v. McGregor, 76 Me. 282, an action for an injury to the plaintiff by the fright of her horse, by steam escaping from the defendant's mill, situated on the margin of the public highway, held, that evidence was admissible to show that other horses, ordinarily safe, when driven by it on other occasions a short time before and after, when the construction and use of the mill were the same as when the plaintiff was injured, were frightened by it. The court said: "The issue was, whether the mill as constructed and used, with the steam escaping into the way, was a nuisance to the public travel. Evidence showing that it naturally frightened ordinary horses when being driven by it, was competent to show its effect upon the public travel, its character and its capacity to do mischief. Its effect on horses was not dependent upon the acts of men, which may be the result of incapacity or negligence, but was caused by action of the inanimate thing upon an animal acting from instinct. It was not to show that other parties were injured at the same place by the same cause, and is therefore distinguishable from cases against towns for injury from defects in a highway, in which this court has held that evidence of accidents to others at the same place is inadmissible, because it raised too many collateral issues. Here the only issue is the effect of the sight and sound of the steam upon ordinary horses, as tending to show that travel over the way was thereby rendered dangerous. Hill v. P. & R. Railroad Co., 55 Me. 439; Burbank v. Bethel Steam Mill Co., 75 id. 373; S. C., 46 Am. Rep. 400. We think the competency of the evidence rests upon the same principle as evidence, in actions against railroad corporations for damage by fire, alleged to have been set by coals or sparks from a passing locomotive, that the same locomotive, or others similarily constructed and used, have emitted sparks and coals, and set fire at other places and on other occasions. It tends to show the capacity of the inanimate thing to do the mischief complained of. Grand Trunk R. Co. v. Richardson, 91 U. S. 454; Whitney v. Inh's of Leominster, Mass. Supreme Court, not yet reported."

In Kelley v. City of Columbus, Ohio Supreme Court Commission, June, 1884, Cin. L. Bull, Supp., it was

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held that a city is not liable for an injury resulting from the unsafe or dangerous condition of its lands adjacent to a street where the place of danger is so far from the street that no iujury can result to persons in the ordinary and proper use of the street, and the fact that a pavement was continuous from a sidewalk on a street, over the adjacent lands to the place of danger, was not, of itself, an implied invitation to a person on the sidewalk to go upon the The court said: "If business is adjacent lands. carried on upon the lot, or any curiosity kept there open to the public, or any inducement or allurements held out to the public beyond a mere permission to go there, the duty to keep the premises safe arises; but if a lot is left unfenced, a person who goes upon it by bare permission, because there is no obstruction to keep him off, goes at his own risk. Railway Co. v. Bingham, 29 Ohio St. 364; S. C., 23 Am. Rep. 751; Beck v. Carter, 68 N. Y. 283; S. C., 23 Am. Rep. 175. There is no proof in the case to show that there was any thing whatever on the city lot to induce or invite any person to go upon or across it for any purpose unless for the purpose for which the plaintiff went there; " i. e., to urinate; nor is there any proof that the plaintiff went there upon any business with any person there, or for any purpose whatever, except to get into the darkness in the shadow of the building. If there had been a business room in the building, or upon another part of the lot, which would have been an implied invitation to the public to go there, it still would not help the plaintiff when he admits that he did not go upon the lot for any such purpose. The fact alone that the stone pavement extended from the street about twenty feet to the front wall of the first story and around the corner of the building about twelve feet, along the east side of it, cannot be treated as an implied invitation to a person passing along the street to turn aside and follow it in the darkness across private property, without any purpose or object that could have been foreseen or anticipated by the owner of the property. If the pavement beyond the limits of the street led to any place where persons on the street might be expected to go for any legitimate purpose, the result would be different. The city should not be held to foresee or anticipate that persons would leave the sidewalk and go along the side of the building for the purpose for which the plaintiff went there. And if not, the fact that it extended the stone pavement to the open area, or if it had extended it much farther, would not have been, of itself, an implied invitation to the plaintiff or to any passer on the street to use the pavement." See Lang v. Cleveland, etc., R. Co., 78 Ind. 323; S. C., 41 Am. Rep. 572.

In Socher's Appeal, Pennsylvania Supreme Court, Jan. 1884, 41 Leg. Int. 501, a husband left all his property to his wife on her promise to keep it for their children. After his death she married again, and devised all her property to her second husband. Held, that equity had jurisdiction to enforce the trust against the second husband, and the children

need not be confined to the remedy of ejectment. This is in harmony with O'Hara v. Dudley, 95 N. Y. 403; S. C., 47 Am. Rep. 53.

INTER-STATE EXTRADITION.

II.

Tis no objection to the granting of the warrant that the offense, made a crime or misdemeanor by the laws of the demanding State, is not a crime or misdemeanor under the laws of the State to which the fugitive has filed and from which he is demanded. Work v. Corrington, 34 Ohio St. 64; S. C., 82 Am. Rep. 345; People v. Brady, 56 N. Y. 188; Kentucky v. Dennison, 24 How. 66; on this point also the discussion of the United States Supreme Court is final. In Kentucky v. Dennison, Chief Justice Taney on behalf of the court disposes of this question in these words: "The argument on behalf of the governor of Ohio which insists upon excluding from this clause new offenses created by a statute of the State and growing out of its local institutions and which are not admitted to be offenses in the State where the fugitive is found nor so regarded by the general usage of civilized nations, would render the clause useless for any practical purpose. For where can the line of division be drawn with any thing like certainty? Who is to mark it? The governor of the demanding State would probably draw one line and the governor of the other State another, and if they differed who is to decide between them? Under such a vague and indefinite construction the article would not be a bond of peace and union but a constant source of controversy and irritating discussion." It is also necessary to inquire what preliminary steps must be taken to justify the executive in complying with the requisition. The act of 1793 requires the executive of the demanding State to produce to the governor of the State upon which the demand is made "a copy of an indictment found or an affidavit made before a magistrate of any State or Territory" charging the fugitive with having committed treason, felony or other crime and duly authenticated by the executive. In construing this provision of the statute the courts have uniformly held that the requisition must be founded upon an authenticated copy of an indictment, information or affidavit, and that the mere statement by the governor of the demanding State that the fugitive stands charged with a crime in the State is insufficient. In re Doo Woon, 18 Fed. Rep. 898; Soloman's case, 1 Abb. Pr. (N. S.) 847; Matter of Rutter, 7 id. 67; Ex parte Pfitzer, 28 Ind. 451; Ex parte Thornton, 9 Tex. 635.

of the fugitive's guilt. It is sufficient if an authenticated copy of an information is produced. In re Hooper, 52 Wis. 702; State v. Hufford, 28 Iowa, 391. In the first case the court speaking through Mr. Justice Cole say: "While the act of Congress speaks

of an indictment found or an affidavit made before a magistrate, yet I do not think it was intended to exclude a case where the charge is in the form of a criminal information." It is no objection to the warrant that the indictment on which it is predicated is technically insufficient. The court will not inquire into its sufficiency, provided it appears to charge an offense made a crime by the laws of the demanding State. Davis's case, 122 Mass. 324; In re Voorhes, 32 N. J. L. 141; In re Greenough, 31 Vt. 279; In re Clark, 9 Wend. 212. In People v. Brady 56 N. Y. 182, the court held that an affidavit which did not set forth facts sufficient to constitute a crime at common law as that law had been inter. preted by the courts of that State, was not sufficient to sustain an executive warrant for the apprehension and surrender of the fugative, the court saying: "It is a reasonable rule supported by obvious considerations of justice and policy that when a surrender is sought upon proof by affidavit of a crime the offense should be distinctly and plainly charged." The affidavit or indictment should state that an offense was committed within the demanding State. Matter of Heyward, 1 Sandf. 701; Ex parte Douaghey, 2 Pitts. 166; Ex parte Smith, 3 McLean, 121. It must also appear by affidavit that the alleged fugitive has fled from the demanding State. Matter of Heyward (supra); Ex parte Smith (supra); Hartman v. Aveline, 63 Ind. 344. The court on habeas corpus has the right to determine whether the party demanded is in fact a fugitive from justice, and the decision of the executive on this point is not binding on the judiciary. Jones v. Leonard, 50 Iowa, 106; S. C., 32 Am. Rep. 116. In this case the court held that "a citizen and resident of one State charged in a requisition with constructive commission of crime in another State from which in fact he has never fled is not a fugitive from justice, and the determination of the governor as to the sufficiency of the facts alleged is not conclusive."

Of course where on habeas corpus all the papers on which the warrant is founded are produced, the court has the right and is bound to pass upon their sufficiency to justify the granting of the warrant. People v. Donohue, 84 N. Y. 438; People v. Brady, 56 N. Y. 182. But cases may arise in which the executive may refuse to submit such papers to the court. That the production of such papers on the hearing cannot be compelled appears to be well setThe affidavit, information or indictment should tled by the authorities. State v. Burgine, 4 Har. be duly authenticated by the executive. Solomon's (Del.) 572; Leary's case, 6 Abb. N. C. 43; In re case, 1 Abb. Pr. (N. S.) 347. It should also appear Leary, 10 Benedict 197. In the event of the papers that the fugitive is charged with a crime in the de- being withheld, must the warrant recite all the necmanding State. Ex parte Lorraine, 10 Nev. 63. essary facts? That it should cannot be seriously However it is not necessary that there should be an questioned. In re Jackson, 2 Flip. C. C. 183; In re authenticated copy of an indictment or affidavit, al-Doo Moon, 18 Fed. Rep. 898; Ex parte Thornton, 9 though the act does not in express terms authorize Tex. 635; People v. Donohue, 84 N. Y. 438. Where the granting of the warrant upon any other evidence the warrant does recite all the essential facts, can

they be disputed, or is the statement in the warrant conclusive upon the court? That the recitals are at least prima facie evidence that the facts are true is conceded by all the authorities. People v. Pinkerton, 77 N. Y. 245; Davis's case, 122 Mass. 324; Brown's case, 112 id. 409; Kingsbury's case, 106 id. 223. The majority of the cases goes even further and hold that the recitals in the warrant are conclusive upon the court and cannot be controverted. People v. Pinkerton, 17 Hun, 199; State v. Burgine, 4 Har. (Del.) 572; In re Leary, 10 Ben. 197; People v. Donohue, 84 N. Y. 438. Where the offense with which the fugitive is charged was not at common law a crime, the courts of the State upon which the demand is made can have no evidence of its constituting a crime unless it is declared to be a crime in the indictment or affidavit, or unless the statute law making it a crime is proved before the court as any other fact. In such a case, the court having no proof before it that the party had committed a crime, would of course be compelled to discharge the prisoner. State v. Swoop, 72 Mo. 399. But if the offense is described in the papers as a crime this will be sufficient. In re Hooper, 52 Wis. 699; Tullis v. Fleming, Adm'r., 69 Ind. 15. It is not necessary that the party should have left the demanding State for the purpose of escaping prosecution in order to constitute him a fugitive within the meaning of the Constitution. It is sufficient that he has actually left the State in which the offense was committed. This renders him a fugitive even though the State to which he goes is the State in which he resides, and he returns to it for the sole purpose of returning to his home. People v. Pinkerton, 17 Hun, 199; Adam's case, 7 Law Rep. 386; Kingsbury's case, 106 Mass. 227. Until the most extraordinary decision of the United States Circuit Court for the district of California (In re Robb, 19 Fed. Rep. 26) it had been supposed by both bench and bar that the right of the State courts to pass upon the legality of the arrest under an inter-State extradition warrant was not open to discussion. The State courts had in many instances discharged parties held under such warrants when brought before them on habeas corpus. In not one of the reported cases has the want of power to inquire into and determine the lawfulness of the detention under such a warrant ever been even remotely hinted at by counsel. And the doctrine is now authoritatively settled in accordance with the uniform practice and almost universal opinion on the subject. Robb v. Connolly, 4 Sup. Court Rep. 544. In referring to the case in the Circuit Court, the court say; "It is proper to say that we have not overlooked the recent elaborate opinion of the learned judge of the Circuit Court of the United States for the district of California in In re Robb, 19 Fed. Rep. 26. But we have not been able to reach the conclusion announced by him."

To what extent the fugitive who has been extradited under the provision of the Constitution can be held by the demanding State and tried for other offenses it would be supererogatory to state in this

article as the authorities on that subject have been carefully collated and reviewed in the Central Law Journal of July 11, 1884, (see page 22 of vol. 19). The case of State v. Stewart in that article is incorrectly cited. It is reported in 19 N. W. Rep, 429, and not in 11 N. W. Rep. 430.

It is not necessary that a warrant for the arrest of the fugitive should have been issued in the demanding State. Tullis v. Fleming, Adm'r., 69 Ind. 15. In this case the prisoner claimed that he should have been discharged because it did not appear that a warrant had been issued in the demanding State upon the charge contained in the affidavit. This claim was adjudged by the court to be untenable, the court saying: "There is nothing either in the act of Congress or in the act of this State upon the subject of fugitives from justice which requires that a warrant shall be issued for the fugitive upon the charge against him before his return can be demanded from the State or Territory to which he may have fled." The District Commissioner for the western district of Michigan held, In re Jackson, 2 Flip. C. C. 183, that the mere statement by the executive of the demanding State that the party is a fugitive from justice is not sufficient to authorize the governor of the State on which the requisition is made to arrest and surrender the alleged fugitive. The court very properly decided that the fact of fleeing must be established by competent evidence. Judge Withey, in his opinion, says: Now it is manifest that before the executive of Michigan is authorized to issue bis warrant to cause to be arrested and secured a person charged in another State with a crime, it should be shown by evidence making a prima facie case that such person has fled from the demanding State. This should be shown by competent evidence, as the fact of fleeing lies at the foundation of the right to issue a warrant of extradition. The certificate of the demanding governor is no evidence of the fact. Neither the act of Congress nor any rule of evidence makes his certificate evidence of such fact. The mere fact that a citizen of

Michigan has been charged with crime and indicted in another State is not legally sufficient to authorize the arrest and extradition of such citizen. He may be charged with crime and indicted in a State into which he has never entered, or was never in and from which therefore he never fled. It is as essential to the right of arrest and extradition to prove to the satisfaction of the governor of Michigan that the person charged with crime has fled from justice as to prove that he is charged with crime in such other State. * * * No provision is made as to the method of proving that the person demanded as a fugitive has fled from justice. * The evidence that the person has fled from justice must be not only satisfactory to the governor but must be legally sufficient before the executive authority can be exercised. We cannot act upon rumor nor upon the mere representation of a person, nor upon the demanding governor's certificate. It should be sworn evidence such as will authorize a warrant of arrest

* *

in any other case. "To same effect Hartman v. Aveline, 63 Ind. 344. The court, in this case of Jackson's seems to have inclined to the opinion that the arrest would have been legal even though the governor had acted on the mere statment of the executive of the demanding State, provided the warrant had recited that it had been satisfactorily shown that the person arrested was a fugitive from justice from the demanding State. This opinion was of course based on the cases which decide that where the governor sees fit to withhold the requisition papers, the recitals in his warrant are not open to contradiction on habeas corpus. On this point the court says: "Had the Governor of Michigan stated in his warrant of arrest and removal that it has been satisfactorily shown to him that Jackson had fled from justice, or was a fugitive from justice from Massachusetts, such statement would be prima facie sufficient and possibly conclusive. There are judgments, which seem well considered, holding the warrant would, if prima facie sufficient, be conclusive, and that courts will not go behind it in such cases.'

Neither the executive nor the judiciary will try the question of guilt if the fugitive is legally charged with a crime in the demanding State, the requisition will be granted and the courts will not on habeas corpus pass upon the truth of the charge. Hartmann v. Aveline, 63 Ind. 344; Nichols v. Cornelius, 7 id. 611; Robinson v. Flanders, 29 id. 10; People v. Brady, 56 N. Y. 182.

The constitutionality of the act of 1792 and the power of Congress to legislate generally on the subject of inter-State extradition was settled in the case of Prigg v. Commonwealth of Pennsylvania, 16 Pet. 539. The Constitution and laws of the United States being the supreme law of the land, all State legislation repugnant to the Constitution or the act of Congress on this subject will of course be void. Indeed Judge Story, in the case above cited, asserts the invalidity of all State legislation on the subject whether repugnant to the Constitution and laws of the United States, or not, provided Congress has in some manner regulated the matter. He says at page 617: "For if Congress have a constitutional

islation to add to the provision of Congress upon that subject; for that the will of Congress upon the whole subject is as clearly established by what it had not declared as by what it has expressed." This question however was not before the court and the decided weight of authority is against Judge Story's dictum and it would seem to be indefensible on principle. Commonwealth v. Tracy, 5 Metc. 536; Ex parte Cubreth, 49 Cal. 436; Robinson v. Flanders, 29 Ind. 10; Ex parte Smith, 3 McLean, 121; Ex parte White, 49 Cal. 433; Ex parte Rosenblat, 51 id. 285. See also Commonwealth v. Hall, 9 Gray, 262. It appears that all the justices who concurred with Judge Story in reversing the judgment of the Supreme Court of Pennsylvania did not agree with him on this question. See opinion of Chief Justice Taney at page 632; of Mr. Justice Thompson at page 635; of Mr. Justice Wayne at page 637, and of Mr. Justice Daniels at page 672.

In Ex parte Morgan, 20 Fed. Rep. 298, the United States District Court for the western District of Arkansas decided that the governor of Arkansas had no authority to issue a warrant for the arrest and extradition of a fugitive from justice from the Territory of the Cherokee Nation, for the reason that the executive of a State derives all his authority to grant such a warrant from the Constitution and laws of the United States, and that they did not authorize the issuing of a warrant in such a case. GUY C. H. CORLISS.

CARRIER-FREIGHT CHARGES-PAYMENT OF ILLEGAL RATES NOT VOLUNTARY.

OHIO SUPREME COURT, OCT. 21, 1884.

PETERS V. MARIETTA & CIN. R, Co.*

A shipper has a right to have his goods transported at legal rates over the usual line of a common carrier of such goods; and if, to procure the services of such carrier, the shipper is compelled to pay illegal rates established by the carrier, the payment is not such a voluntary payment as will preclude recovering back the illegal charge; nor will it preclude such recovery if the payments, by arrangement of parties, are made at the end of each month. RROR to the District Court of Scioto County.

This case is one of twelve cases, each of which has similar facts and questions of law.

The plaintiffs owned iron blast furnaces for the manufacture of pig iron, and the furnaces were located along the line of the Scioto and Hocking Valley railroad between Portsmouth and Hamden. All but five were built after the construction of the road, and after that time all the furnace companies exclusively relied upon it for transportation.

power to regulate a particular subject, and they do ERROR actually regulate it in a given manner and in a certain form, it cannot be that the State Legislatures have a right to interfere, and as it were by way of complement to the legislation of Congress to prescribe additional regulations and what they may deem auxiliary provisions for the same purpose. In such a case the legislation of Congress in what it does prescribe manifestly indicates that it does not intend that there shall be any farther legislation to act upon the subject-matter. Its silence as to what it does not do is as expressive of what its intention is as the direct provisions made by it. This doctrine was fully recognized by the court in the case of Houston v. Moore, 5 Wheat. Rep. 1, 21, 22; where it was expressly held that where Congress had exercised a power over a particular subject given them by the Constitution it is not competent for State leg

This part of the S. & H. V. R. was purchased about December 1, 1863, by the defendant and possession taken. By the act of February 11, 1848 (S. & C. 281), the C. & H. V. R. Co. was limited in its rate of charges for the transportation of freight to five cents per ton per mile, as a maximum charge for distances of thirty miles or more, and for distances of less than thirty miles to "reasonable rates." This limitation was not on the defendant as to its original road, but it might *To appear in 42 Ohio State Reports.

charge for the transportation of property "such rates of toll as the corporation may determine."

After this purchase the defendant claimed the right to charge the same rates over the purchased road that were charged over its own road, and advanced the rates under dates of January 26, 1864, March 7, 1864, March 28, 1864, August 1, 1864, September 12, 1864, December 12, 1864, and March 16, 1865. This caused objection and remonstrance, and in 1867 the suits were commenced.

The petition further avers that plaintiffs were entitled to have their freight carried at rates limited to be charged by the S. & H. V. R. Co., but that the defendant has disregarded plaintiffs' rights and has taken advantage of plaintiffs' necessities, and has required unlawful and unjust rates, which plaintiffs have been compelled to pay by the necessities of their business, and that plaintiffs remonstrated against the unjust exactions and protested against the payment of the same, and that the defendant, although requested so to do, has neglected and refused to account with the plaintiffs as to the payments in excess of legal rates, and that defendant has so received to and for the use of the plaintiffs the several sums of money set forth in the exhibit, and prays judgment.

The answer has three defenses: The first denies that the defendant is restricted in charging freight and fare to the charter of the S. & H. V. R. Co., and claims, as purchaser of that road, to be authorized to charge any "fair and reasonable rates;" the second alleges that all sums paid were so paid voluntarily, after the services for which the same were demanded had been fully rendered, and when defendant's demand for the same could not have been enforced without giving plaintiffs a day in court, with full knowledge, or the meaus of knowledge, of the change in the ownership of said railroad, and of the charges demanded by the defeudant for the transportation of the property upon its said purchased road, and of all other facts connected with said demand; and that said sums were not exacted as a condition of the performance of said service, nor as an inducement of such performance; and denies all allegations which charge that the same were paid involuntarily or by coercion; and the third denies that the sums charged were in excess of amounts authorized by the charter of the S. & H. V. R. Co., and says the charges so made included compensation for warehouses, grounds and facilities furnished, storage, handling, etc.

The reply to the first defense denies, that as purchaser of the said road, the defendant has any other right or power to charge fare or freight otherwise than as prescribed for the original owner, the S. & H. V. R. The reply to the second defense denies that the payments were voluntary, and avers that they were coerced and illegally exacted by defendants. The reply to the third defense denies defendant's right to charge for any thing but transportation.

The defendant demurred to the first defense. The demurrer was sustained in the Court of Common Pleas and in the District Court, and came to this court on the question whether the M. & C. R. Co. is restricted on this purchased branch in charging for freight; aud the judgment below was reversed for error in sustaining the demurrer. Campbell v. M. & C. R. Co., 23 Ohio St. 168. This court held that section 12 of the act of February 11, 1864, applied to the case, and sent it back to the court below for further proceedings.

The cases were then sent to a special master to take testimony and report. The master took the evidence and reported it, and found and reported certain rates ་་ to be reasonable rates for the distances named during the period covered by the report; " and that from and after March 28, 1864, the defendant had charged

plaintiffs rates in excess of legal rates allowed by the charter of the S. & H. V. R., and that from March 28, 1864, to February 1, 1867, the plaintiffs paid defendant excessive and illegal charges, and "that the payment of such excess was compulsory in the sense that plaintiffs and defendant did not stand on a footing of equality, that said sums exacted were illegal and unauthorized, and that plaintiffs were required to pay the same to procure the transportation of their property, without which the plaintiffs in each of said cases, by reason of their manufacturing business, would have suffered great loss."

The Court of Common Pleas from the report and evidence, also found "that said payments in excess of rates authorized by law, and inclusive of interest to the first day of the present term, amount to the sum of $, but that the payments were voluntarily made and under such circumstances that they cannot be recovered back," and rendered judgment for the defendant. Plaintiffs excepted, and the cases are here on their bill of exceptions.

Edward F. Hunter, W. A. Hutchins and M. A. Daugherty, for plaintiff in error.

McClintick & Smith and Harrison, Olds & Marsh, for defendant in error.

FOLLETT, J. The plaintiffs aver that the defendant from time to time has received to and for the use of the plaintiffs several sums of money specified and set forth in tabular statements; and that the several sums so received were for freight charges in excess of legal rates. It is admitted that the amounts charged were paid.

The matters set up in the first defense were disposed of by this court in Campbell v. M. & C. R. Co., 23 Ohio St. 168, by holding: "Where the railroad of one company is purchased by another railroad 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." And section 12 of the act of February 11, 1848, governs this case.

"Where a

In that case this court also held that: railroad company is authorized to demand and receive compensation for transportation of property 'not exceeding five cents per ton per mile, where the same is transported a distance of thirty miles or more, and in case the same is transported for a less distance than thirty miles, such reasonable rate as may be from time to time fixed by the company,' it is unreasonable as a matter of law, that the company should fix a greater sum for a less distance than thirty miles than the maximum allowed for full thirty miles."

In Smith v. P., Ft. W. & C. Ry. Co., 23 Ohio St. 10, this court also held: "Whether the rate of passenger fare fixed by a railroad company under section 12 of the act of February 11, 1848 (S. & C. 271), for distances less than thirty miles, be reasonable or not, is a question of fact for the jury to be determined under such instructions by the court as the circumstances of the particular case may require."

In that case McIlvaine, J., said: "Whenever therefore the determination of the question whether the rate be reasonable involves the necessity of hearing testimony, it falls within the province of the jury." We think the reasonableness of the freight fare may be determined in the same manner.

In this case the special master heard the testimony and found the facts, and also reported the evidence, and from the peculiar facts of the case the master found a certain amount due for "the payments in excess of rates authorized by law;" and the court below, from the same evidence, found the same facts,

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