unless the party was within the terms of the saving clause; yet if an action was pending at the time of the repeal and the petition stated a cause of action under the statute, its subsequent repeal, the case being in fact within the saving clause, did not render the petition insufficient. And we think the petition was sufficient under the Act of 1874. If the plaintiff's case was obnoxious to the charge of bad faith, the petition, however, stating a cause of action in the terms of the statute, the bad faith was, under the Act of 1874, a matter of defense-assuming that the payment of the excessive fare was not in the due course of business, but was for the purpose of obtaining the penalty-would have defeated the action. In the case before us, the testimony not being in the record, we must assume that it was shown that the plaintiff was within the saving clause of the repealing statute.

It is also claimed, that the first count in the petition is bad for want of an averment that the plaintiff was a passenger on the defendant's cars from Bellefontaine to New Richland, or that the ticket purchased was in fact used by a passenger. This objection is answered by the principle above stated. The allegation of the petition is as broad as the terms of the statute, namely that the defendant demanded and received excessive fare from the plaintiff for the transportation of a passenger. If the passenger was not transported, or in other words, if the payment of the fare was not in the due course of business, but was made for the purpose of obtaining the penalty, the plaintiff, under the Act of 1874, was not bound to aver to the contrary, until such fact was set up by way of defense.

A question of some difficulty is raised as to the joinder of causes of action. Our statute provides for the joinder of actions as follows: "The plaintiff may unite several causes of action in the same petition, whether they be such as have heretofore been denominated legal or equitable, or both, when they are included in either one of the following classes: * * * 3. Injuries, with or without force, to person or property, or either," Sec. 80 of the code of 1853. The joinder in this case, if justified at all, is under this clause.

There is no doubt that this section should be construed liberally for the purpose of preventing multiplicity of actions; and we are inclined under this rule of construction to hold that the causes of action in the petition are for injuries to property; and if this be so, the joinder was proper.

The wrongful taking of another's property is an injury to the property. Wrongfully demanding and receiving the plaintiff's money for fare in excess of the amount authorized by law, was an injury to her in her property. Although it was taken without protest, the company acquired no right to retain it. It being unlawful to demand or receive it, the railroad company unlawfully exacted and converted it; and for this wrong and injury, the statute gave the plaintiff a right of action; and our best judg

ment is, that several causes of action for such injuries may be united in the same petition.

There was no error in the court refusing a demand by the defendant for a jury to assess damages. There was no issue of fact for a jury to try. The statute, upon the facts admitted by the pleadings, fixed the amount of the recovery. If an issue had been joined for the trial of which either party might, of right, have demanded a jury, upon the finding of the jury upon the issue for the plaintiff below, the amount of their verdict would have been controlled by the stat

ute.

Judgment affirmed.

OKEY, C. J.

In my opinion the judgment should be reversed in part and affirmed in part. The second cause of action is sufficiently stated, and the judgment as to that should be affirmed. The first cause of action is as follows: "On the 10th day of June, 1874, the plaintiff was at Bellefontaine, in Logan county, and desired to go from there to the town of New Richland, in said county, the distance of nine and nine-tenths miles. At the office of said company, in Bellefontaine, the plaintiff purchased from the defendant's agent a ticket from Bellefontaine to New Richland, which ticket represented that the plaintiff had paid her fare or toll from Bellefontaine to New Richland, and was entitled to ride on defendant's cars on said road (of the defendant) from Bellefontaine to New Richland. For said ticket and fare as aforesaid, defendant, by its agent, charged, demanded and received of the plaintiff the sum and price of thirty-five cents, and the plaintiff paid said sum of thirtyfive cents for said ticket and fare, which was more than defendant was entitled by law to charge and receive for riding on said railroad. said distance of nine and nine-tenths miles, whereby an action has accrued to the plaintiff for the same, and the plaintiff is entitled to have and receive from the defendant, by reason of the premises, the sum of one hundred and fifty dollars."

The statement of this cause of action is not aided by any other matter in the record. I deny that such statement is as broad as the statute. It is not stated in terms, nor even in substance, that the plaintiff below was transported to New Richland. The statute, quoted in the opinion of the court, limited the sum which the company might "demand and receive, for the transportation of passengers on said road," to a sum "not exceeding three cents per mile," and made highly penal a violation of its provisions. Indeed, for receiving five cents-the amount alleged in this cause of action-in excess of the prescribed fare, the penalty must be at least one hundred and fifty dollars; and knowledge, on the part of the agent, that the sum is in excess of the lawful fare, is not made by the statute a material element in maintaining the action. Such a statute, according to well settled principles, must be construed strictly. So construed, the first cause of

action, above set forth, is insufficient, in failing to state that the defendant in error was transported on the road. The inhibition is not against the sale of tickets to a purchaser thereof, but receiving an unlawful rate of fare "for the transportation of passengers on said road." According to the construction of the majority, a right of action accrued to the defendant in error the moment she bought the ticket of an agent, and there was not left to the company even locus penitentiæ. But in my opinion no penalty is incurred under the statute, unless for the act of transportation actually performed by the company, a sum in excess of that prescribed in the statute has been exacted. Nothing of the sort is stated in the first cause of action, and hence it is insufficient. If one from whom illegal fare is exacted is not actually carried, he may recover the money so paid, but not the penalty prescribed in the statute. The section, of course, is susceptible of the meaning ascribed to it by the majority of the court; but where a statute highly penal in its provisions, admits of two probable but conflicting constructions, that is to be preferred which is most favorable to him against whom the penalty is asserted.

[This case will appear in 37 O. S.]

SUPREME COURT OF OHIO.

THE STATE EX REL.

V.

THE TRUSTEES OF THE OHIO SOLDIERS' AND SAILORS' ORPHANS' HOME.

November 15, 1881.

1. A statute declaratory of a former one has the same effect upon such former Act, in the absence of intervening rights, as if the declaratory Act had been embodied in the original Act at the time of its passage.

2. The legislative approval in the Act of April 19, 1881 (78 O. L. 309), of the construction given by the defendants, to the Act of April 13, 1880 (77 O. L. 187), requires the Ten Thousand dollars appropriated by the last named Act, to be distributed according to such construction, where no contracts had been previously entered into by the defendants for a different distribution of the fund.

Mandamus.

M. P. Nolan, for plaintiff.

C. H. Grosvenor, for defendant.

WHITE, J.

This proceeding was instituted on the relation of the Trustees of the Montgomery County Childrens' Home against the defendants, The Trustees of the Ohio Soldiers' and Sailors' Orphans' Home, to compel them to contract with the relators under the act of May 13th, 1880, (77 O. L. 187), for the support of certain orphans and destitute children of Ohio soldiers and sailors. The alternative writ was issued October 18th, 1881. The case was submitted on an agreed statement of facts in writing. From this statement it appears that the relators presented forty-seven such children in their charge, to the defendants for admission to Ohio Soldiers' and Sailors' Orphans' Home, in accord

ance with the rules and regulations established by the defendants, for the admission of children to such home, and asked the defendants to direct the superintendent of said Home to contract at a per capita with the relators for the support of said children, and to pay the relators therefor out of the $10,000, appropriated by the second section of said act. That the defendants admitted that said children thus presented were proper persons to be received into the Home under their charge, if there was room therein. That the defendants would not contract for the support of said children for the year ending February 15th, 1881, for want of room in the institution. The time of presenting these children for admission is said in the agreed statement to have been at a meeting of the defendants held "on the day of 1881." It appears

that during the year 1880, and thus far in 1881, Montgomery County has had three more orphan children in the last named home, than her quota under section 677 of the Revised Statutes.

The eleventh annual report of the defendants, as Trustees, for the year 1880, was also given in evidence. The following extract shows their action under, and construction of the Act of April 13th, 1880, above referred to:

(6 SUPPORT OF ORPHANS OUTSIDE THE HOME." "Preliminary steps have been taken to carry into operation the provisions of the act of April 13, 1880, (Laws, p. 187), but no contracts have as yet been made in that behalf. The statute is obscure, and the board have been in a state of uncertainty as to their powers and duties under it. It reads as follows, omitting formal parts and the second section, which appropriates $10,000 for the purposes of the act:"

"That the Trustees of the Soldiers' and Sailors' Orphans' Home, and under their direction the Superintendent is hereby authorized and directed to contract at a per capita not to exceed the current expense cost of keeping the children at the Xenia Home, with the proper officers of the different Children's Asylums or Homes in the State, for the support of such children as have been or may hereafter be transferred to said Homes, who are children of soldiers or sailors who served in the late war from the State of Ohio.”

"A number of questions have arisen in our minds in considering the act difficult of settlement. Who are to receive the benefit of its provisions? Are there other restrictions upon those who may, than that they are to be 'children of soldiers or sailors who served in the late war from Ohio?' or must they fall within some of the classes who may be admitted to the Home? Who shall make the 'transfers' contemplated? Whence shall they be made and how? Are children first to be admitted to the Home, or their applications for admissions accepted before they can be 'transferred;' or is it intended to 'transfer' those not inmates or applicants to become such? Are the board to have any supervision over them when ' transferred ?' What if those 'transferred' are not properly cared for? Are the ben

efits of the act to be apportioned among the counties of the State as contemplated by section 677 of the Revised Statutes? These are some of the questions that have arisen, the consideration of which has caused delay in taking action under the law.

"On full reflection and consultation with the Attorney General (who is in accord with the view taken as to its construction), we have concluded to treat the act as in pari matria with the general law governing the Home, and as a provision for the support and care of such classes of children named in section 676, Revised Statutes, as it, for want of room, cannot accommodate. All the counties of the State, as far as possible, are to have their proportional benefits of the law. We suppose the trustees of the Home are to make the 'transfers.' They cannot make transfers of children not under their authority. Such authority can be obtained only by acceptance into the Home, or, at least, by the acceptance and approval of applications for admission. But the board can only admit children agreeably to said section 677, which provides, that every county shall be entitled to its proportion, according to population, of the whole number that the Home will accommodate.' Any other construction in this particular would work unequally and unfairly. The counties wherein these homes or asylums are situated might be enabled to support their orphans from the State treasury, thus compelling other counties having no such homes to contribute to such support, and to maintain their own indigent orphans in addition. Such could not have been the intention of the Legislature. To effect such a result the terms of the statute should be explicit and imperative.

"While the act remains as it is, then it will be our purpose so to administer it in connection with the general law referred to, as that no county shall have more than its due share of their benefits. And we think the board should so far retain supervision over the children 'transferred' as to see that they are properly cared for and supported. Provision for this should be made in the contracts for support.

"We have stated our views and purposes thus fully upon this very important, but obscure statute, in order that legislative correction may be made, if wrong."

"The Appropriation Act which was passed and took effect April 19, 1881, contains the following clause :

"For the care and support of orphans outside the home, under the act of April 13, 1880, (O. L. p. 187), and in accordance with the interpretation thereof, as set forth in the recent report of the trustees of said home, the sum of ten thousand dollars ($10,000); provided, the appropriation of ten thousand dollars ($10,000) made in said act, or so much thereof as remains unexpended, may be used likewise in substantial accordance with the spirit of said act, as thus interpreted, in payment

for the support of orphans thereunder in the year ending February 15, 1881."

On the 20th of April, 1881, (78 O. L. 201) another act was passed on the subject. The first section is as follows:

"SECTION 1. Be it enacted by the General Assembly of the State of Ohio, That the trustees of the soldiers' and sailors' orphans' home are hereby authorized to contract, at a per capita not to exceed the current expense cost of supporting the children at the Xenia home, with the proper officers of any of the children's homes authorized by the laws of Ohio in the State, for the support of such children as are by exisiting law entitled to admission to the Xenia home, provided, that the total expenditure under this statute shall not exceed the sum of ten thousand dollars for any one year, from February 15th to February 15th of the succeeding year."

The following is the third section:

"Sec. 3. That the act entitled 'an act to provide for the support of the soldiers' and sailors' orphans outside of the soldiers' and sailors' orphans' home in Xenia,' passed April 13, 1880, (vol. 77, Ohio laws, 187), be and the same is hereby repealed; provided that nothing in this section shall operate to impair any rights to the appropriations made in said repealed act which have accrued heretofore; and this act shall take effect and be in force from and after its passage."

The question for decision is, whether the relators are entitled to a peremptory writ.

In the determination of this question the first inquiry is as to the effect of the clause above quoted of the Appropriation Act, upon the act of April 13, 1880.

Whatever may have been the original meaning of the act, the effect of the adoption of this clause was to incorporate it into the original act; and, in the absence of any intervening rights, to give to the act the same meaning and effect as if the clause had been embodied in it at the time of its passage.

The ten thousand dollars appropriated by the act of April 13, 1880, was a charitable provision made by the legislature for the objects named in the act. The provision was to be carried into effect by the defendants. The means prescribed for the distribution of the fund, were through contracts to be made by defendants, or under their direction, "with the proper officers of the different children's asylums or homes in the State." No such contracts having been made, it was competent for the General Assembly to repeal the provision, or to construe it according to its discretion; and, as already stated, such construction was given to the act by the clause in the Appropriation Act above quoted.

The proviso in Section 3 of the act of April 20, 1881, does not affect the case. The saving in the proviso of rights which had accrued under the act of April 13, 1880, embraced the legislative construction of the act as declared in the clause approving the construction given to it by defendants in their report. No contracts having

been previously entered into by the defendants for a different distribution, of the fund.

Peremptory writ refused.

[This case will appear in 37 O. S.]

SUPREME COURT OF OHIO.

MARY FANNING

v.

'HIBERNIA INSURANCE CO.

November 22, 1881.

1. To entitle a person to become a member of a corporation, which is being organized under " An act to regulate insurance companies" (S. & S. 205), his contract to take shares therein, must be in writing, and be mutually binding on both parties.

2. A verbal promise to take shares, while the stock is being subscribed which is necessary to authorize an anization, does not constitute the promisor a stocknolu or member of such corporation, and a promise to pay for such shares is without a sufficient consideration to support it. A recovery on such promise to pay cannot be had, in the absence of facts showing that the promisor is estopped from setting up such want of consideration.

Error-Reserved in the District Court of Cuyahoga County.

Such facts only are stated as relate to the points reserved for report.

The Hibernia Insurance Company for a cause of action in the court below, in which it was plaintiff and said Mary Fanning was defendant, alleged that it was a corporation under the laws of Ohio, that on November 1, 1870, the defendant executed and delivered her promissory note for $3,000, payable to plaintiff on demand, with interest at six per cent., together with a mortgage on certain real estate, to secure the same, and that said note is due and the condition of said mortgage is broken; wherefore judgment is asked for the amount due and for the sale of the mortgaged premises.

The defendant alleges that plaintiff was never lawfully organized as a corporation and has no legal capacity to sue, and that said note and mortgage are without consideration and void, by reason of certain fraudulent representations set out, and for the reason that she was not a subscriber for the stock in said company, for which said note and mortgage were given, nor was she ever a stockholder in said company.

The reply put the allegations of the answer in issue. The trial resulted in a verdict for plaintiff and a judgment for the amount of said note and mortgage. There was a motion for a new trial for error in admitting evidence and in charging the jury, as well as for other causes, which was overruled, a bill of exceptions was taken, and on error to the district court the case was reserved for decision in this court.

On the trial, the plaintiff offered in evidence the certificate of incorporation of the company, dated March 2, 1870; proved that this note and mortgage were given November 1, 1870, for a subscription to the capital stock thereof, which was then being made up preparatory to an or

ganization, and that it commenced business January 1, 1871, as a fire insurance company.

The defendant then offered evidence tending to show that after obtaining the charter, the incorporators did not open books for subscriptions to stock, but placed the stock through the agency of canvassers, who took in payment notes and mortgages, as well as cash, approved by an executive committee or temporary board of directors, selected by a meeting of those engaged in forming the company as stockholders. In the case of defendant, it was shown that she verbally agreed with one of these canvassers to take $3,000 in stock, and gave this note and mortgage in payment, but that she never subscribed for stock, in a subscription book for that purpose or by any contract in writing, and never received any certificates of stock from the company.

In rebuttal, for the purpose of creating an estoppel, plaintiff produced and offered in evidence, without first proving its execution, a proxy, purporting to be signed by defendant, authorizing one Lavan to vote her stock in 1875, on which he voted said stock. This paper was put in evidence over the defendant's objection.

Among other things the court charged the jury that, "if she (the defendant) subscribed for, or agreed to take capital stock, and she could agree verbally; it is not necessary she should sign any book or anything of that kind; if she agreed to take capital stock, she owed so much money."

The bill of exceptions and charge of the court contain other matters for review, but only so much is stated as raise the points passed upon. JOHNSON, J.

1st. It was clearly erroneous to allow the paper, purporting to be the proxy of Mrs. Fanning to vote her stock, to be read in evidence over her objection without first proving its execution. If its execution had been proven to the satisfaction of the court, it might have been competent as tending to show that she was estopped from taking advantage of any irreguobligation to take stock, but until such prelimlarity in the organization or informality in her inary proof was made, it was error to allow it to go to the jury.

2d. Did the court err in its charge that a verbal agreement to take stock created an indebtedness to the corporation?

It appeared that the certificate of incorporation was dated March 2, 1870. This charter was obtained under the Act of April 15, 1867, (S. & S. 205). Under this statute, any number of persons, as required by the act entitled, "An act to provide for the creation and regulation of incorporated companies in the State of Ohio,' passed May 1, 1852, may form an insurance company, other than life insurance, by giving notice of their intention so to do four weeks in a public newspaper in the county, and by making a certificate specifying the name of the company, its object, the amount of capital, and