#### The State and another, Respondents, vs. Wisconsin Central Railroad Company, Appellant.

*March 21*

April *17, 1906.*

*Railroads: Restriction of speed of trains: Forfeitures: Statutes construed: Joinder of parties: Reasonableness of regulation.*

1. Sec. 1809a, Stats. 1898, prohibits the running of trains or engines faster than, fifteen miles an hour in cities and villages in which gates are maintained as therein provided; but sec. 1809 still prohibits a greater speed than six miles an hour in all other cities and villages, and a violation of sec. 1809 subjects a railroad corporation to the forfeiture prescribed in sec. 1819.

2. In an action to recover a forfeiture under sec. 1819, Stats. 1898, the person prosecuting and alleged to be entitled to one half the forfeiture may join with the state as party plaintiff, under sec. 3297.

3. Legislative restriction of the speed of railroad trains to six miles an hour in cities and villages is not unreasonable.

Appeal from an order of the circuit court for Waupaca ■county; Chas. M. Webb, Circuit Judge.

*Affirmed.*

Appeal from order overruling demurrer to complaint by the state of *Wisconsin*and *Oharles F. Orane*as plaintiffs, which alleges that defendant operates its railroad through the village of Weyauwega and’across a traveled street at grade, and that no gates are maintained; that defendant is indebted to the plaintiffs in the sum of $5,500 according to the provisions of secs. 1809,1819, Stats. 1898, by reason of having on eleven specified occasions, by its officers, agents, and servants, r.un trains across said street at rates exceeding six miles per hour, such rates varying on the different occasions from nine and one-half miles on one to forty-five miles on another. Judgment for the $5,500 and costs is demanded. The demurrer asserts three grounds: (1) That the plaintiffs have not legal capacity to sue; (2) that several causes of action have been *80improperly united; and (3) that the complaint does not state facts sufficient to constitute a cause of action.

For the appellant there was a brief by *Howard Morris*and *Thos. H. Gill,*and oral argument by *Mr. Gill.*

The *Attorney*General, for the respondents.

Dodge, J.

Appellant’s principal contention seems to be that sec. *1809a,*Stats. 1898, must be considered as an amendment and, therefore, a part of sec. 1809, Stats. 1898, so that the only penalty ascribable to any disobedience of either is that denounced by sec. 1809a against any violation “of the provisions of this section.” This view is erroneous. As decided in *Schroeder v. Wis. Cent. R. Co.*117 Wis. 33, 93 N. W. 837, sec. 1809, prohibiting running of *trains*through any city or village faster than six miles per hour, stands as it always had prior to- the enactment of what is now sec. 1809a, except that, since the two statutes are generally *in pari ma-teria,*the latter and more specific must be deemed *to*have carved out of the broader field covered by sec. 1809 that particular situation with which sec. 1809a deals, namely, a city or village where gates are maintained by order of the city government, and to contain the whole law on that subject. *Nolan v. Milwaukee, L. S. & W. R. Co.*91 Wis. 16, 64 N. W. *819.*The result is that sec. 1809 still prohibits a rate exceeding six miles an hour in all cities and villages, except those where gates are so maintained. The offense of running trains at a rate exceeding fifteen miles per hour in gated municipalities is a wholly distinct and separate one, with which alone sec. 1809a deals, and upon which is imposed the penalty expressed in that section. It results, of course, that disobedience of the prohibition declared in sec. 1809 is subject to the penalty denounced by sec. 1819, namely :

> “If any railroad corporation, its officers, agents or servants shall violate or fail to comply with any of the provisions of this chapter for which no forfeiture is otherwise specially *81provided such corporation, shall, for each and every such violation or failure, forfeit not less than fifty nor more than five hundred dollars, one half to the person prosecuting, and in addition be liable to the person injured for all damages sustained thereby.”

Sec. 3297, Stats. 1898, expressly authorizes the joining with the state of the person entitled to any portion of the forfeiture, as the plaintiff *Crane*is alleged to be, under the provisions of sec. 1819. This view, of course, disposes of the further contention that the penalty denounced by sec. 1809a can be recovered only in an action in the name of the state alone, and that, since such penalty is only made “additional” to damages for a private injury, it cannot be recovered in absence o'f allegation and proof of such private injury.

A contention that a restriction by the legislature of the rate of railroad trains to six miles an hour in cities and villages is unreasonable cannot be sustained. That question is obviously within the field of legislative discretion in enacting police regulations. Nor can we discover absurdity in imposing a smaller penalty on running trains more than fifteen miles per hour over guarded street crossings than at six miles an hour where there are no such protections. If the precautions against access by the street to the railroad tracks were perfect, doubtless the legislature might forego all restraint of speed or penalty therefor.

*By the Court.*— Order affirmed.

Oassodáy, O. J., took no part.