#### W. H. WILLIAMS v. ATLANTIC COAST LINE RAILROAD COMPANY.

(Filed 10 November, 1910.)

1. Carriers of Passengers — Legislative Rates — Repealing Acts — Vested Rights.

In an action for damages arising from tbe alleged wrongful ejection of plaintiff from defendant’s train, for bis refusal to pay a greater rate of carriage than that provided by tbe Acts of 1907, cli. 216, sec. 1, it appeared that tbe plaintiff tendered the rate provided by tbe act and instituted bis action before tbe passage of cb. 144, sec. 6, Acts of 1908. Held, tbe plaintiff bad acquired *361a vested right under the former act in a cause of action growing out of the common law, though the rate of transportation was fixed by the statute.

2. Same — “Chose in Action” — Words and Phrases — Retroactive Acts — Constitutional Law.

The term “chose in action” though ordinarily considered as arising by contract, is much broader in its significance and includes the right to recover pecuniary damages for a wrong inflicted upon the person or property, and a suit by one wrongfully ejected from a passenger train after tendering the fare prescribed by the Acts of 1907, who has brought suit before the passage of the Acts of 1908, has acquired a vested right which the latter act cannot destroy.

Appeal from Adams, Jat tbe February Term, 1910, of Guilpobd.

Civil action beard on demurrer to tbe complaint. Tbe plaintiff alleged tbat on 3 August, 1907, be was a passenger on one of defendant’s trains, running from Warsaw, N. C., to Goldsboro, N. O., traveling from tbe former to tbe latter station; tbat be tendered tbe conductor tbe fare in casb for bis transportation, to-wit, 68 cents, tbe distance between 29 miles and tbe legal rate per mile being 2% cents; tbat tbe conductor declined to receive tbis, demanded 85 cents, being tbe fare at tbe rate of 3 cents per mile, and upon plaintiff’s refusal to pay tbe fare demanded, wrongfully ejected bim from tbe train, to bis damage. Tbe defendant demurred upon tbe following grounds:

1st. Because it appears upon tbe face of tbe complaint tbat tbe plaintiff did not tender to tbe defendant tbe legal rate or charge fixed for passenger fares between tbe points alleged in tbe complaint.

2nd. Because it further appears upon tbe face of tbe complaint tbat it does not state a cause of action in tbis, tbat tbe cause of action, as set out in tbe complaint, is contrary to tbe statute laws of North Carolina (see sec. 6, cb. 144 of tbe Acts of tbe General Assembly of North Carolina, extra session 1908), and tbat under said statute tbe plaintiff cannot maintain tbis suit against tbe defendant corporation.

Tbe defendant, tbe Atlantic Coast Line Eailroad Company, demurs to tbe second cause of action alleged in said- complaint *362for tbe reason that it appears upon tbe face thereof that tbe plaintiff does not state a cause of action against the defendant, in that it appears upon said complaint that tbe plaintiff failed to tender to tbe defendant tbe proper rate of passenger fare between tbe two stations alleged in tbe complaint, and was lawfully and properly ejected from tbe train for failure to tender same, and that be lost bis right, as a passenger upon said train, and also lost bis right to return to tbe same after be bad been properly ejected.

Tbis action was begun on 24 September, 1907. His Honor overruled tbe demurrer and defendant appealed to tbis Court.

Stedman & Ooolce for plaintiff.

Wilson & Ferguson and Rose & Rose for defendant.

Manning, J,.

Tbe General Assembly of tbis State, at its session in 1907, by sec. 1, eb. 216, provided that no railroad company doing business as a common carrier of passengers in tbe State of North Carolina should charge, demand or receive for transporting any passenger and bis or her baggage, not exceeding in weight two hundred pounds, a rate in excess of two and one-quarter cents per mile. Tbis act applied exclusively to intrastate travel, and excepted certain classes of roads which are not pertinent to tbe present ease. Tbe defendant’s counsel in their brief admit that, according to tbe rate prescribed by that act and for tbe distance plaintiff desired to travel, tbe proper fare was 65 cents; so tbe tender by plaintiff, by tbis admission, was slightly in excess of tbe exact amount. Tbe defendant insists, however, that tbe act of 1907, referred to, was repealed by tbe General Assembly at tbe Special Session of 1908, cb. 144, and that it was enacted by sec. 6 of tbe repealing act as follows: “That no railroad company or agent, servant or employee of any railroad company shall be held liable to any person or found guilty of any offense in any action, civil or criminal, whether heretofore or hereafter instituted or begun, by reason of anything done or attempted to be done in violation of said act mentioned in tbe preceding sections hereof, or of any provision thereof.” It is urged by tbe defendant that tbis sec. 6 is a bar upon tbe plaintiff to maintain tbis action and is a grant of *363amnesty to the defendant for the private wrong done plaintiff, to recover damages for which he had brought this action on 24 September, 1907, several months before the repealing act became effective, to-wit, 1 April, 1908. We do not think this contention can be sustained. The wrong- done plaintiff was the wrongful expulsion of him from defendant’s train. Can the Legislature, by an act passed subsequently to the wrong done and subsequently to the institution of an action in the proper court to redress the wrong, destroy plaintiff’s property in his cause of action? In Duckworth v. Mull, 143 N. C., 461, it was held by this Court that the word “property,” as used in constitutions and public statutes, unless restrictive words are used, includes the value of the injury involved in the litigation. “A vested right of action is property in the same sense in which tangible things are property, and is equally protected against interference. Where it springs from contract, or from the principles of the common law, it is not competent for the Legislature to take it away.” Cooley’s Constitutional Limitations, p. 517; Black’s Const. Law, p. 432. In Dunlap v. Tal. A. A. & G. T. Ry., 50 Mich., 470, the Court said: “There is no doubt a right in action, where it comes into existence under common law principles, and is not given by statute as a mere penalty or without equitable basis, is as much property as any tangible possession, and as much within the rules of constitutional protection.” C. B. & A. R. R. Co. v. Dunn, 52 Ill., 260; Cooney v. Lincoln, 20 R. I., 183; Cody v. Dempsey, 83 N. Y. Supp., 899; Seaman v. Clarke, 69 N. Y. Supp., 1002; Hein v. Davidson, 96 N. Y., 175; Collins v. East Tenn., Va. & Ga. R. Co., 9 Heisk, 841; Hubbard v. Brainard, 35 Conn., 563. In Wade on Retroactive Laws, sec. 172, the author says: “The right to recover for personal or other injuries resulting to one person by the torts of another, cannot be tortured into rights arising in contract. These, however, are so sacred as to be considered worthy of protection. Thus, where an act of negligence produced a personal injury, for which the person suffering .the same was entitled by the existing law to recover the full amount proved, it ivas held that a subsequent statute limiting the recovery to a less sum would not affect the rights of the injured party. He *364bad a vested right, not only to compensation for bis injuries, but to tbe measure of damages fixed by tbe law as it existed when tbe cause of action accrued.” Kay v. Pen. Ry. Co., 65 Pa. St., 269. Tbe theory or principle upon which a vested cause of action sounding in damages is property, and prevented from “a taking” or destruction without due process of law, rests upon its classification as a chose in action. As is said by Judge Sharswood, in a note to a passage in 2 Black Com., 396, “there is a very large class of cboses in action which arise ex delicto. My claim for compensation for any injury done to my person, reputation or property is as truly a chose in action, as where it is grounded on a breach of covenant or contract.” In City of Cincinnati v. Hafer, 49 Ohio St., 60, the Court said: “While by a ‘chose in action’ is ordinarily understood a right of1 action for money arising under contract, the term is undoubtedly of much broader significance, and includes the right to recover pecuniary damages for a wrong inflicted either upon the person or property. It embraces demands arising out of a tort, as well as causes of action originating in the breach of a contract. . . A thing in action, too, is to be regarded as a property right.” 2 Kent, 351; The People ex rel Stanton v. Tioga C. P., 19 Wend., 73.

There is a well-recognized and well-established distinction between cases where the cause of action is created by statute and cases where the cause of action rests upon or grows out of the principles of the common law. The former class of cases is considered by this Court in Grocery Co. v. R. R., 136 N. C., 396, where it is said: “The principle governing the application of statutes creating a cause of action where none existed before have been settled in this State. Of course where the statute has been repealed, and there has been no assertion or attempted assertion of any right thereunder prior to such repeal, all right of action is necessarily destroyed. This is too well-settled to require any citation of authority and is universally recognized. Where the right has been asserted during the life of the statute, as for instance an action instituted to recover a penalty, the plaintiff acquires an inchoate right subject to be defeated by express legislative action. Dyer v. Ellington, 126 N. C., 941. *365Where the statute is simply repealed and no allusion is made to pending actions, the inchoate rights therein acquired are not interfered with, but may be prosecuted to final recovery. Code, sec. 3764 (Revisal, 2830), Wilmington v. Cronly, 122 N. C., 388. Where suit is brought during the life of the statute and pending at its repeal, without having gone to judgment, the Legislature may, by express terms, take away the right of action. Dyer v. Ellington, supra. When the plaintiff has obtained a judgment for the penalty before the repeal of the statute, he has a vested right therein which cannot be taken away by the Legislature. Dunham v. Anders, 128 N. C., 207; 83 Am. St. Rep., 668.” In Dyer v. Ellington, supra, the power of the Legislature to destroy, by a repealing act, a penalty before it has become vested by a judgment, is placed upon the ground that it is a right created by statute — a favor conferred by legislative act which may be withdrawn by express provision before judgment recovered. The right resting in the plaintiff upon the alleged facts of the present case was not created by statute, though the rate of transportation was so fixed, nor was the wrong he seeks to redress, the creation of statute. Both are founded upon well-established principles of the common law, and we, therefore, hold upon the authorities cited and upon established principles that the section of the act of the Legislature of 1908 quoted above was ineffectual to destroy plaintiff’s cause of action. We find no error in the order of his Honor overruling the defendant’s demurrer.

Affirmed.