Beck, J.
l. railroad: utepenafty í" act of 1863. • — ■ Section 2, chapter 169, acts of the ninth general assembly is in the following words: “ In the month of September, annually, each railroad company shall fix its rates of fare for passengers and freight, for transportation of timber, wood and coal, per ton, cord, or thousand feet, per mile; also its fa^e and freight per mile for transporting merchandise, and articles of the first, second, third and fourth grades of freight, and, on the first day of "October following, shall put up at all stations and depots on its road, a printed copy of such fare and freights, and cause a copy to remain posted during the year. For willfully neglecting so to do, or for receiving higher rates of fare or freight than those posted, the company shall forfeit not less than one hundred dollars nor more than two hundred dollars to any person injured thereby and suing therefor.”
The petition claims to recover the penalty provided by [202] this section for several cases of alleged overcharge upon merchandise transported upon defendant’s road; for the penalty imposed for willful neglect to post copies of rates of fare and freights, which, it is alleged, defendant omitted to do, and for certain sums overcharged by defendant for the transportation of the merchandise in the cases where the penalties are sought to be recovered. The defenses pleaded are a general denial of the causes of action, and that the statute authorizing the recovery of the penalties is in conflict with the constitution of the United States, and therefore void. To the defense last named a demurrer was sustained by the court, and the ruling thereon is made one of the grounds of the assignment of errors. Other questions are presented arising upon the admission of evidence, and instructions to the jury, given and refused. The questions thus raised will be determined in the order in which they are presented for our Consideration in the brief of defendant’s counsel.
I. It is insisted that if plaintiff may recover the penalties for which he has brought suit, he is entitled to them alone, and cannot recover the amount charged in excess of the rates fixed by the defendant. “An overcharge before the passage of the act was attended with no other consequences than liability to pay it back. * * * Now that the statute has provided a penalty for the act, the penalty only can be enforced.” Such is the language of defendant’s counsel used in stating their position. The act in question is not intended to deprive the owner of merchandise— the injured party — of any right; neither is the penalty imposed intended as a compensation to him for loss or damage sustained by the act of the railroad. It is intended, as all other penalties, to deter those who may come under the terms of the act from violating its provisions, and is in the nature of a forfeiture, for an illegal act done, to be recovered at the suit of the party injured. Before the act in question, as is admitted by defendants’ counsel, [203] in case of overcharge the railroad would have been liable for the amount wrongfully collected. If the act takes away no right of plaintiff, he may still recover it. The recovery of the penalty and overcharge will not be in the nature of a double punishment. The recovery of the overcharge is no punishment at all; it is for a sum justly due plaintiff, and therefore defendant is required to pay it. The penalty is the punishment for defendant’s wrongful act. If counsel’s views are correct, violations of the law, when more than $200 of overcharge are collected, would present cases where the law could not be enforced without gross injustice. If the penalty is recovered the offending party would be acquit of liability for the overcharge, and would thereby be a gainer by his violation of the law. If the overcharge is collected he could not be prosecuted for the penalty. In such cases the law would be practically defeated, and an inducement held out for- great offenses against it. The authorities cited by defendant’s counsel in support of his view apply to criminal cases.
a. estoppel. II. It is claimed that the alleged overcharges were voluntarily paid, and, therefore, cannot be recovered in this action. The principle of law here announced not ^ examined. The question of fact involved was for the jury to determine; we are unable to say that it was not correctly determined by them. Another principle of law is applicable to the case and must be noticed in this connection. If the payment was made by plaintiff in ignorance of the rates which defendant was permitted to charge, he could recover. There was evidence tending to prove such ignorance, and thereon that fact was determined, we cannot say improperly, by the jury. There were no instructions given or refused upon these points, and we can only consider them as we have, in connection with the objection made by defendant, that the verdict of the jury is contrary to the evidence.
[204] 3._character of intent. III. It is next insisted that the verdict of the jury is not supported by the evidence. The principal reliance of defendant’s counsel to support this position is ^ ^ ag ke c|ajmSj evidence does not establish that the overcharges were made, and the posting of the rates neglected by defendant, willfully. The peculiar language of the statute will be noticed. The word “willfully” occurs in declaring the forfeiture to be enforced. Willful neglect in posting the rates is a cause of forfeiture. Receiving higher rates of fare or freight than those posted is another cause of forfeiture, but it is not prescribed that this last act must be done willfully in order to incur the penalty.
It is said by defendant’s counsel that the word “ willfully ” implies the idea of malice of a mild kind, an evil intent without excuse. Such may be its meaning in indictments and criminal statutes. But it is not to be so understood here. The word means “obstinately, stubbornly; with design; with a set purpose,” and this definition must be applied to it where it occurs in the statute under consideration. If defendant “ with design or with a set purpose ” and not through mistake or inadvertence omitted to post the rates, liability thereupon attaches for the omission. This is the plain meaning of the law. There was evidence tending to prove the omission to post the rates “ by design ;” the fact was one for the jury and not for the court, for it is an ingredient in the transaction — a fact which goes to establish defendant’s liability. The verdict of the jury, in view of the evidence upon this point, as well as upon all of the facts of the case, is sufficiently supported.
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Beck, J.
l. railroad: utepenafty í" act of 1863. • — ■ Section 2, chapter 169, acts of the ninth general assembly is in the following words: “ In the month of September, annually, each railroad company shall fix its rates of fare for passengers and freight, for transportation of timber, wood and coal, per ton, cord, or thousand feet, per mile; also its fa^e and freight per mile for transporting merchandise, and articles of the first, second, third and fourth grades of freight, and, on the first day of "October following, shall put up at all stations and depots on its road, a printed copy of such fare and freights, and cause a copy to remain posted during the year. For willfully neglecting so to do, or for receiving higher rates of fare or freight than those posted, the company shall forfeit not less than one hundred dollars nor more than two hundred dollars to any person injured thereby and suing therefor.”
The petition claims to recover the penalty provided by [202] this section for several cases of alleged overcharge upon merchandise transported upon defendant’s road; for the penalty imposed for willful neglect to post copies of rates of fare and freights, which, it is alleged, defendant omitted to do, and for certain sums overcharged by defendant for the transportation of the merchandise in the cases where the penalties are sought to be recovered. The defenses pleaded are a general denial of the causes of action, and that the statute authorizing the recovery of the penalties is in conflict with the constitution of the United States, and therefore void. To the defense last named a demurrer was sustained by the court, and the ruling thereon is made one of the grounds of the assignment of errors. Other questions are presented arising upon the admission of evidence, and instructions to the jury, given and refused. The questions thus raised will be determined in the order in which they are presented for our Consideration in the brief of defendant’s counsel.
I. It is insisted that if plaintiff may recover the penalties for which he has brought suit, he is entitled to them alone, and cannot recover the amount charged in excess of the rates fixed by the defendant. “An overcharge before the passage of the act was attended with no other consequences than liability to pay it back. * * * Now that the statute has provided a penalty for the act, the penalty only can be enforced.” Such is the language of defendant’s counsel used in stating their position. The act in question is not intended to deprive the owner of merchandise— the injured party — of any right; neither is the penalty imposed intended as a compensation to him for loss or damage sustained by the act of the railroad. It is intended, as all other penalties, to deter those who may come under the terms of the act from violating its provisions, and is in the nature of a forfeiture, for an illegal act done, to be recovered at the suit of the party injured. Before the act in question, as is admitted by defendants’ counsel, [203] in case of overcharge the railroad would have been liable for the amount wrongfully collected. If the act takes away no right of plaintiff, he may still recover it. The recovery of the penalty and overcharge will not be in the nature of a double punishment. The recovery of the overcharge is no punishment at all; it is for a sum justly due plaintiff, and therefore defendant is required to pay it. The penalty is the punishment for defendant’s wrongful act. If counsel’s views are correct, violations of the law, when more than $200 of overcharge are collected, would present cases where the law could not be enforced without gross injustice. If the penalty is recovered the offending party would be acquit of liability for the overcharge, and would thereby be a gainer by his violation of the law. If the overcharge is collected he could not be prosecuted for the penalty. In such cases the law would be practically defeated, and an inducement held out for- great offenses against it. The authorities cited by defendant’s counsel in support of his view apply to criminal cases.
a. estoppel. II. It is claimed that the alleged overcharges were voluntarily paid, and, therefore, cannot be recovered in this action. The principle of law here announced not ^ examined. The question of fact involved was for the jury to determine; we are unable to say that it was not correctly determined by them. Another principle of law is applicable to the case and must be noticed in this connection. If the payment was made by plaintiff in ignorance of the rates which defendant was permitted to charge, he could recover. There was evidence tending to prove such ignorance, and thereon that fact was determined, we cannot say improperly, by the jury. There were no instructions given or refused upon these points, and we can only consider them as we have, in connection with the objection made by defendant, that the verdict of the jury is contrary to the evidence.
[204] 3._character of intent. III. It is next insisted that the verdict of the jury is not supported by the evidence. The principal reliance of defendant’s counsel to support this position is ^ ^ ag ke c|ajmSj evidence does not establish that the overcharges were made, and the posting of the rates neglected by defendant, willfully. The peculiar language of the statute will be noticed. The word “willfully” occurs in declaring the forfeiture to be enforced. Willful neglect in posting the rates is a cause of forfeiture. Receiving higher rates of fare or freight than those posted is another cause of forfeiture, but it is not prescribed that this last act must be done willfully in order to incur the penalty.
It is said by defendant’s counsel that the word “ willfully ” implies the idea of malice of a mild kind, an evil intent without excuse. Such may be its meaning in indictments and criminal statutes. But it is not to be so understood here. The word means “obstinately, stubbornly; with design; with a set purpose,” and this definition must be applied to it where it occurs in the statute under consideration. If defendant “ with design or with a set purpose ” and not through mistake or inadvertence omitted to post the rates, liability thereupon attaches for the omission. This is the plain meaning of the law. There was evidence tending to prove the omission to post the rates “ by design ;” the fact was one for the jury and not for the court, for it is an ingredient in the transaction — a fact which goes to establish defendant’s liability. The verdict of the jury, in view of the evidence upon this point, as well as upon all of the facts of the case, is sufficiently supported.
_evidence: declarations. IY. A drayman who delivered the goods carried by defendant to the plaintiff was authorized by defendant’s ageut to collect the charges thereon. When g00(js were delivered the plaintiff, as he states in his testimony, informed this drayman that he thought the freight was too high. The evidence as to [205] plaintiff’s declaration was objected to and is now assigned as a ground of error. It is claimed that, as the party to whom the declaration was made was not the agent of defendant, it could not be considered as a protest or objection to the amount demanded. If it was proper for plaintiff to object upon paying the charges the objection could be made to one authorized to recover them. The evidence, in our opinion, was competent as showing a fact connected with the payment, of the overcharges which may be more or less important.
Y. It is claimed by defendant that the court instructed the jury that plaintiff could recover a portion of charges upon the goods advanced by defendant to others. No such claim., is made in the petition, nor do we find in the record any evidence bearing upon it, and it is not made to appear that any such claim enters into the amount for which the verdict was rendered. The instruction, if given, was error without prejudice. Plaintiff’s counsel claim that this instruction appears in the. abstract by mistake. This seems a reasonable explanation, as it is utterly inapplicable to the case made by the pleadings and evidence.
5. — constitutional law: commerce between the states. YI. The last point made by defendant is, that the statute under which the penalties are recovered is in conflict with the constitution and laws of the United States, . . m that it seeks to regulate commerce among ° . ° the States, a power conferred, by the constitution, upon congress (art. 1, § 8), and exercised by that body, so far as commerce by the means of railroads is concerned, by the act of June 15, 1866. It is unnecessary to enter further into the question here presented than to inquire whether the act of the general assembly of this State, which is under consideration, does, in fact, attempt to regulate or interfere with commerce.
The statute will first receive our attention, in ?order to determine its operation and precise effect upon the railroads of the State. It provides: 1st. That, in the month of Sep[206] tember of each year, railroad companies shall fix rates of fare for passengers, and charges for the transportation of merchandise; and, on the first day of October, shall post, and cause to remain posted, a copy o'f such rates, at all its stations and depots. No attempt is here made to regulate the charges of the incorporations for the transportation of merchandise or passengers, nor is there any thing in the provision which can in any way operate to interfere with or prevent the free" exercise of the business of the company. It contains no prohibition of the transportation of passengers or the merchandise of the country, nor are any rights of the corporation, as public carriers, curtailed. It is a simple requirement that there shall be certain charges fixed by the company for services rendered by it. It is stated, as an objection, that the statute requires charges to be uniform, so that merchandise must be carried for short distances at proportionately the same rates as are charged for greater distances. Without intimating that this may not be done by the legislature, we are clearly of the opinion that it is not attempted in this act. A cursory glance at the statute will be sufficient to sustain our view. The provision is that the charge shall be fixed at a certain rate per mile. It appears to us that it is perfectly competent for the company, under this act, to fix a certain charge per mile for merchandise from Clinton to Council Bluffs, and a different rate from Clinton to Cedar Rapids. The objection, if at all tenable, has no foundation in the act itself.
We will consider for a moment the reason and object of this statute. Its design is to protect the citizens of the State from impositions in the way of overcharges by the agents and officers oí the railroads, acting under the authority of the corporations. In no business, fairly and honestly conducted, will one man or one class of men be charged for commodities received by, or services rendered to, them more than another man or class of men. Among [207] honest men this is not allowable, and no private citizen would long retain the patronage of the people who indulged in such discriminations. It is contrary to all right ' leas of fairness and honorable dealing in business affairs, i d is, in fact, a hind of oppression and injustice repulsive tj all men. In the case of railroad corporations, that monopolize the carrying business of vast regions of country, if indulged in, the practice would result in great oppression and loss to the people. To correct such abuse if it existed, or to prevent its introduction, the statute in question was enacted. After the rates are fixed by the corporation it is very plain that, in order that the people may receive the full benefit thereof, they must be published. If fixed and kept private no benefit could accrue to those doing business with the railroads. The provision requiring the posting of the rates is necessary to effectuate the purpose of the legislature in the enactment of the statute. Unless some sanction is provided for by the law, the duties imposed would not be observed, hence the penalty provided in the act for its violation.
Do the provisions of the statute attempt to regulate commerce? The word “commerce,” in its general sense, means “ an interchange or mutual change of goods, wares, productions or property of any kind, between nations or individuals, either by barter or by purchase and sale; trade; .traffic.” — "Webster’s dictionary. But, adopting the definition given it in its connection as used in the constitution of the United States, it also means intercourse and navigation. Story on Const., §§ 1061, 1062; Gibbons v. Ogden, 9 Wheat. 189; Passenger Cases, 7 How. 276; Brown v. Maryland, 12 Wheat. 419 ; Mayor of New York v. Miln, 11 Pet. 102. We may concede for the purpose of our argument a proposition, which we do not decide, namely, that the transportation of property and persons from State to State upon railroads, constructed and owned by private corporations, is, within the meaning of the term, “ commerce.”
[208] Admitting, then, that the transportation of property by railroads is commerce in the sense the word is used in the constitution of the United States, does the act in question attempt to regulate it ?
As we have seen, it in no sense interferes with the business of the roads, or places any restriction or impediment upon the free transportation hy railroads of either property or persons. They are forbidden to carry no kind or character of goods or persons; the time and place, and when and where they should receive and deliver whatever they transport, is not interfered with; the terms, conditions and circumstances under which they shall transact their business are in no manner provided for; in short, transportation upon these roads is just as free, just as untrameled, as it was before the act. The transportation itself by .these roads is, in no sense, regulated. The regulations of the act extend to the prevention of abuses, injustice and oppression toward the people resulting from the unfair and unlawful practices of the agents and officers of the corporation or of the corporations themselves. It is intended simply for the protection of the people of the State, and in its practical operation has no other effect; and in this view is a police regulation indisputably within the scope of the authority of the State government. If the State may rightfully permit, by fit legislation, railroad corporations from destroying the property of its citizens through the negligent acts of their servants, and provide penalties to be imposed for such acts, may it not interpose its authority to protect the people from greater losses by fraudulent and unfair dealings of such servants or of the corporations themselves ? If the most insignificant municipality within the State through which a railroad runs may prescribe the rate of speed to be run by the cars of the corporation engaged in the business of transportation — in commerce, as we consent it maybe called — for the purpose of protecting the property or persons of its citizens, may not [209] the State so legislate as to prevent fraud and impositions by the corporation or its servants? It would be strange, indeed, if the State, to whom the people look for the protection of their private rights and the security of property, is powerless, as against these corporations that owe their very being to charters derived from State legislation, to prevent loss and injury to its citizens by fraudulent and unfair dealing.
It appears to me a reasonable view, though I do not remember to have seen the thought elsewhere suggested, that no State legislative act will be considered obnoxious to the provision of the constitution of the United States, in that it in effect regulates commerce, unless it in some way interferes with the freedom of commerce, or abridges the rights of those engaged therein. In this view the statute under consideration is unobjectionable. As we have seen, it in no way interferes with commerce; it deprives those engaged therein of no rights. It cannot be said that railroad corporations have a right to deal unfairly, fraudulently and oppressively toward those who patronize them. And this is all they are prevented doing by the statute in question.
As we have before intimated, the law in question is founded upon the authority of the State to establish all proper police regulations necessary to preserve the peace, health, morals and property of its people,, and to protect them from imposition and injustice. Such laws, while they may even affect commerce and operate upon those engaged therein, are not obnoxious to the constitution of the United States. Quarantine and health laws, under which vessels engaged in commerce may be delayed for weeks in completing their voyages, or eargoes may be seized and destroyed, and sailors and soldiers of the United States imprisoned and punished for their ^.violation; municipal or State regulations for the landing, inspection and disposition of cargoes of vessels; laws prohibiting the [210] landing of paupers or diseased persons, and requiring reports to be made to municipal'or State authorities of passengers upon shipboard, and regulating the running of ferries largely engaged in transporting the merchandise and travel of the country — these, and many others of like character, all designed to promote public prosperity, and to protect the people in their health and morals, and to guard them from frauds, impositions and oppressions, are enacted and sustained under the police power of the ■ States. • The law of this State, brought in question in this case, is purely a law of this character, and of its validity we have no doubt. The views above stated, in our opinion, are in accord with doctrines recognized by the United States supreme court. The Mayor, etc., of New York v. Miln, 11 Pet. 102; Gibbons v. Ogden, 9 Wheat. 1; License Cases, 5 How. 504; Brown v. Marylamd, 12 Wheat. 419; Passenger Cases, 7 How. 276.
We need not inquire whether congress has exercised authority by enactment upon the subject of the statute in question, nor discuss other points made in support of the position of defendant’s counsel; that it is in conflict with the constitution of the United States, as the views we have above expressed are decisive of the case, and demand the affirmance of the judgment of the circuit court.
Affirmed.