Smith ex rel. State v. Omnibus Railroad

By the Court, Sanderson, J. : This ease is not distinguishable from Reed v. The Omnibus Railroad Company, 33 Cal. 212, and Taber v. The Omnibus Railroad Company, decided at the October Term, 1867, [not reported,] and upon the authority of those cases the judgment must be affirmed.

So ordered.

By the Court, Sprague, J., on rehearing: This case was decided at the April Term, 1868, upon the authority of Reed v. The Omnibus Railroad Company, 33 Cal. 212; and Taber v. The Omnibus Railroad Company, [not reported.] A rehearing having been granted upon petition of appellant, it is again submitted upon additional oral argument and briefs.

The questions involved are identically the same as those in the case of Reed v. The Omnibus Railroad Company, supra, and after a most careful reinvestigation of the same, we are entirely satisfied with the opinion of this Court as expressed by Mr. Justice Shatter in that case, and the former decision of this case upon that authority.

Had the statute of 1863, by virtue of which these one hundred and fifty-seven several penalties or forfeitures are claimed against defendant, provided that two or more causes of action arising under the Act should not be united in the same action, but that each forfeiture or separate cause of action should be prosecuted separately, it would hardly be claimed that such a provision transcended legislative [283]authority, although it might he an exception to the rules prescribed by the sixty-fourth section of the Civil Practice Act. By this statute of 1863, “ concerning street railroads in this State,” a new right and responsibility is created, and provision made for the enforcement of each separate cause of action arising under the statute before a tribunal having constitutional jurisdiction of the amount involved in each separate forfeiture, hut not jurisdiction of the amounts of two or more; hence in practical effect the statute provides that each cause of action or separate forfeiture shall be prosecuted or enforced separately; and this was manifestly the intention of the Legislature in the designation of the tribunal in which this special statutory right and liability should he enforced. The remedy provided is ample—clearly within legislative authority—and must be strictly pursued. If it he not adapted to operations of sufficient magnitude to cover the aggregate grievances of the plaintiff in this case, this Court, however much it might he disposed to aid his laudable efforts to save to the alleged delinquent defendant the costs and annoyance of a multiplicity of suits, has not the power to provide or substitute a different or more comprehensive remedy than that furnished by the statute.