Opinion on Motion por Rehearing.
Riddick, J.We held in a former opinion in this case that a shipper at Altus, a station on appellant’s railway, could not recover a penalty against the railway company because it furnished to shippers at Van Burén, another station on its line, facilities superior to those furnished at Altus.
We did not hold, nor was it necessary to hold, that the laws of this state do not forbid railroad companies from making unjust discrimination between different localities along their line; but we did hold that, under the facts of this ease, appellees were not entitled to a penalty, and that their remedy for the wrongful failure of the company to furnish adequate facilities at Altus was an action for damages.
Learned counsel for appellees, in this and other cases in which the same questions are involved, have favored us with able and elaborate printed arguments in support of the motion to rehear, but, after giving such arguments careful consideration, our conclusions announced in the former opinion remain unchanged, and the motion must be overruled. As the question determined is important, and as there is division among the judges of the court, I will endeavor to give some further reasons for our judgment, in addition to those stated by Mr. Justice Battle in the former opinion. The facts are fully stated in that opinion, and I will only briefly refer to them again.
The crop of cotton raised along the line of appellant’s railway in 1892 was unusually large. The appellant company furnished sufficient cars at Van Burén and Little Rock, where there were competing lines and superior advantages for shipment, to carry all cotton offered, but at Altus and other intermediate points, where there were no competing lines, it failed, during the months of November and December of that year, to furnish cars sufficient to ship cotton as fast as it was offered, and there was delay in shipping cotton offered by appellees and other shippers at those stations. The contention is that it was an unjust discrimination, within the meaning of our penal statute, for the company to furnish a sufficient number of cars to carry all cotton offered at Van Burén, when not enough cars were furnished at Altus.
Now, we do not deny that if the appellant company wrongfully failed to furnish sufficient cars to carry cotton of appellees offered for shipment, it became liable to said shippers for all damages suffered in consequence of the failure to furnish cars. Not only our statute (Sand. & H. Dig., § 6193), but the common law, fully covers a case of that kind, and appellees have already, in another action, recovered a judgment against the appellant company for a large amount to compensate them for all damages suffered by reason of the delay in shipment complained of here, and that judgment has been affirmed by this court. But .the mere fact that the company has wrongfully failed to furnish cars to appellees does not necessarily entitle them to a penalty in addition to their damages. To justify the court in awarding them a penalty, they must bring their case within the strict letter of the law affixing the penalty. Hawkins v. Taylor, 56 Ark. 45; 2 Elliott, Railroads, § 710.
The statute under which the penalty is claimed in this 'case provides that “all individuals, associations and corporations shall have equal rights to have persons and property transported over railroads in this state, and no unjust or undue discrimination shall be made in charges for or in facilities for transportation of freight or passengers within the state.!’ (§ 1, Act March 24, 1887). And again in another section it provides that “no discrimination in charges or facilities for transportation shall be made between transportation companies and individuals, or in favor of either, by abatement, drawback or otherwise, and no railroad, or any lessee, manager, or employee thereof shall make any preferences in furnishing cars or motive power. (§4, ib.)
The punishment provided for violation of the above provisions is a penalty of not less than $50 nor more than $1,000 for each offense, to be recovered by the party aggrieved in a civil action.
Now, the rule at common law, as stated by a recent writer, is that a railroad carrier, so far as concerns the receipt and transportation of goods, must, where the conditions and circumstances are identical, treat all shippers alike, but there is no requirement to furnish the same facilities where conditions and circumstances are essentially different. 4 Elliott, Railroads, § 1468. There is nothing in the language of the statue above quoted that expressly says that railway companies shall furnish the same facilities to different localities, or that they shall furnish the same facilities to different individuals, unless they are demanded under similar circumstances. But another clause of the first section of the act above referred to does refer to localities by providing that “persons and property .transported over any railroad shall be delivered at any station at charges not exceeding the charges for transportation of persons and property of the same class in the same direction to any more distant station.” It will be noticed that the portion of the statute which mentions localities has reference to overcharges in the trans - portation of passengers and freight, and not to discriminations in the matter of facilities.
The fact that stations are mentioned in the clause referring to overcharges, and not mentioned in the clause in which discrimination in facilities for transportation is condemned, seems to indicate that the legislature 'recognized that it was impracticable to regulate the facilities furnished at one town by a comparison with those furnished at another, where the conditions and circumstances might be altogether different.
It is doubtless true that a railway company should so distribute its cars as to give adequate transportation facilities to the different stations along its line, and if, by reason of a neglect to properly distribute its cars, it wrongfully fails to furnish shippers at any station adequate transportation facilities, it must respond in damages to the party injured; but we deny that every such shipper, is entitled to a penalty, in addition to his damages. We do not believe that the legislature intended that this penal statute should apply in such a case, for it would be utterly impossible to distribute the ears of a large railway so as to give each station its exact proportion. But, if the construction contended for is correct, the railroad company would have to furnish not only a proportional number of cars, but cars of the same kind, drawn by engines of the same speed. A fast through train is a- great facility in the transportation of both passengers and freight. The railroads of the state have for years run fast trains, which stop only at certain stations selected by the company. If the contention of appellees is correct, that the intention of this act was to prohibit and punish discriminations as to facilities in transportation between different localities, it is not easy to see why this is not an unjust discrimination which subjects the company to a penalty in favor of every person who is prevented from riding upon a fast train, or from shipping his fruit or other products upon it, by reason of its failure to stop at his station. Certainly, under our view of this statute, which is that it forbids and punishes favoritism between passengers or shippers, if the company should permit certain persons to ride upon or ship property upon its fast train, and deny the use of such train to other persons who offered themselves as passengers at the same station, and under the same circumstances, it would become liable to a penalty. If this be true, and if it be also true, as counsel contend, that it makes no difference at what station the passenger offers himself for passage or his property for shipment, he is still, under this statute, entitled to like facilities, then it necessarily follows that the company must stop its fast trains at every station at which a passenger offers, or incur a heavy penalty, whether that station be a great city or a side track in the swamp. Of course, if such trains were compelled to stop at every station, they would cease to be fast trains, and the result would be not only a great inconvenience to the people of the state, but a heavy loss to the railroads of the state; for, under such a restrictive law, the railroads of this state would be utterly unable to compete for the through traffic, and the competing lines of railway which pass around the state would carry such traffic, both freight and passenger.
But cars and^ trains are not the only facilities within the meaning of this act. A depot, a house for freight, or a waiting room for passengers, is a facility for the transportation of passengers and freight, within the meaning of this statute. If a railway company should at one of its stations permit the use of its depot, yard, pen or other stational facility to one shipper, and refuse them to other shippers, under the same conditions and circumstances, I think there could be no doubt that it would become liable for a penalty; for the object of the statute was to prevent favoritism,—in other words, to prevent discrimination in facilities between passengers or shippers when demanded under like conditions and circumstances. Along the railways of this state are depots, both old and new, in different stages of repair, and there are flag stations without a depot or station house of any kind. If the construction contended for is correct, why is this not a discrimination? But under that construction it would be hazardous for a railway company to make any decided improvement in this respect at one of its stations that it did not at once repeat at every other station.
Again, it is necessary for the company to keep at certain stations along its line a telegraph operator on duty during the night to send dispatches in regard to the movement of its trains. At such stations it is usual to keep the depot open during the night for the convenience of the patrons of the road. Under our construction of this statute, the company must in this respect treat all alike, and cannot allow the use of its depot or station house to one passenger or shipper after night, and refuse it to others who apply for it under like circumstances. But, under the broad construction contended for here, that this statute was intended to prevent and punish discriminations in facilities between different stations, if the company kept its depot open at night for the reception of freight or passengers at one station, it would have to furnish like facilities to passengers and shippers at all other stations, or subject itself to an action for a penalty in favor of each passenger or shipper denied the use of a depot during such hours. The company would thus be compelled to close the depots at all stations to avoid incurring penalties for discrimination.
It would of course be absurd to suppose that the legislature intended that railway companies should furnish to way stations and small villages facilities the same or equal to those furnished to cities and larger towns, for this would deny to such towns and cities the legitimate advantages due to different circumstances and conditions.
But, if we' say that the intention was to compel the railroad company to furnish proportional facilities to each station, then it would follow that the legislature intended that the railway company in furnishing such facilities should exercise its judgment as to what were proportional facilities. It would be a difficult matter to determine the dimensions and size of depots, the quality and quantity of train service, and other facilities to be furnished to the different towns and villages of the state, differing, as they do, in size and commercial importance, so as to make their facilities proportional to those furnished other towns and cities of the state. But, under the construction contended for, if the company erred in this matter, however honestly, it would at once become liable, not only for one penalty, but probably for hundreds of them. As it is not usual to inflict penalties for mere errors of' judgment, this should incline the court to adopt a different construction from that contended for.
From these and other reasons, it can, I think, be seen that the construction contended for by appellees that the word “locality” should be read in the statute, so as to make it a penal offense for a railway company to furnish passengers or shippers at one locality facilities not furnished to all other stations along its line, would necessarily result in great embarrassment to railway companies. It would cast upon the courts for decision many difficult questions as to what were proportional facilities, and what were not; for the courts would, in effect, be discharging the duties of a board of railroad commissioners, without any discretion whatever to relieve against the "hardships of the statute.
The ingenious answer to these objections is in effect that the court need not consider such difficulties seriously, for they would be questions for the jury. And that is true. If the construction contended for by appellees is correct, then whether the failure to stop a fast train at a certain station, or whether the failure to furnish a depot as good as some other on the line, or to keep it open during the same hours,—whether these and other matters were unjust discriminations would, indeed, be a question for the jury. A passenger desiring to recover the penalty pronounced by the statute (fifty to one thousand dollars) would naturally ask himself whether the depot at which he was compelled to wait was as commodious as that at some other station, or whether the train upon which he rode was as superb and elegant in its appointments and as convenient in its time schedules as the fast passenger that stopped only at larger towns. As most people are not disposed to underestimate the importance of their own town or village, it would be easy for him to conclude that the company was unjustly discriminating against himself and his town. As the question might be answered differently tby different persons, it can be seen that such a construction would open up a rich field of litigation. If not satisfied with one law suit, the passenger could return the nest day, and suffer the same inconveniences, and obtain another cause of action. Every man could have his own law suit, and one for each member of his family.
Now, while the people of this country are not unduly prone to litigation, still the records show that they do not hesitate to appeal to the courts when they believe their rights to be invaded. But the remarkable fact in connection with this statute, if the construction contended for by appellees be correct, is that, although there are similar statutes in other states, learned counsel, as I shall presently attempt to show, have not been able to produce a single reported case of this kind,—a ease where, under a statute like this, a plaintiff has demanded a * penalty of a railroad company for failing to furnish him the facilities it furnished to shippers at another and different station. I do not say that this shows that the construction they contend for is incorrect, but I do say that when we consider the great diversity in the facilities furnished to different towns and stations and the frequent complaints made against railways on account of defective train service and facilities,—that, considering these things, the fact that, so far as we can ascertain from the reports, no one has heretofore brought such an action is conclusive proof that the construction contended for by appellees is not the construction usually placed upon this statute. It shows that the language of the statute does not plainly express what appellees say it means. But this is a penal statute, and cannot be extended by implication. “The rigid rules of the common law with reference to the liability of carriers should not,” says Judge Elliott, quoting the. language of the supreme court of North Carolina, “be applied in cases involving the violation of a penal statute.” (2 Elliott, Railroads, § 710.) The statute should not of course be,defeated by a forced or overstrict construction, but the intention of the legislature must be gathered from the words, and they “must be such as to leave no reasonable doubt upon the subject.” United States v. Hartwell, 6 Wall. 385; Whitehead v. Railroad Co., 87 N. C. 255; Dwyer v. Gulf, etc., R. Co., 23 Am. & Eng. R. Cases, 654; Hawkins v. Taylor, 56 Ark. 45.
Following this well settled rule, the supreme court of Iowa held that a statute of that state against railway discriminations did not include the failure to furnish cars, because, as stated by the court, the statute was penal, and could not be extended by implication. The court pointed out in that case, as we have in this, that the plaintiff had a clear remedy by an action for damages, but that did not include a penalty. Bond v. Wabash, etc., R. Co., 67 Iowa, 712; S. C. 23 Am. & Eng. R. Cases, 608.
And so the supreme court of Texas, declining to apply a penal statute in a case against a railway company not clearly within its meaning, said that it could not award a penalty in any case notexpressly denounced by'the act. “To do so,” said the court, “would be judicial legislation of the most reprehensible character.” Dwyer v. Gulf, etc., R. Co., 23 Am. & Eng. R. Cases, 654.
Let us now, for a moment, consider the character of the act of which the appellant company was guilty. On account of a rush of cotton to market, it was unable, during two months, to carry promptly all cotton delivered at stations between Little Rock and Van Burén. Now, admitting that the company, by the use of due care and foresight, might have foreseen this accumulation of freight, and have guarded against it by providing sufficient cars to carry it, still it must be admitted that there was no intention or desire to injure Altus or any other station. The company, taking the worst view against it possible under the evidence, had but negligently failed to supply itself with sufficient ears to handle the increased business, and when the rush came it endeavored to avoid injury to itself by carrying first the freight offered at points where there were competing lines, and after that the freight from the other stations. The wrong was not in furnishing sufficient cars to Van Burén and Little Rock, for this its duty required it to do, but in failing to furnish sufficient ears to Altus and other intermediate points. The failure to furnish cars brought the company squarely within the scope of another statute (Sand. & H. Dig., § 6193) under which it has been compelled to respond in damages. Appellees are not now asking for compensation, but for a penalty, and they must stand upon the strict letter of the law. Now, as was stated by Mr. Justice Battle in his opinion, if there was a discrimination against appellees, within the meaning of this statute, there was a discrimination against every shipper who offered cotton or other freight at any station between Van Burén and Little Rock during the months of November and December, 1892. More than that,—for every separate offer of cotton or other freight and failure tb carry was under the statute a separate offense. Under such construction, the aggregate amount of the penalties for which the company became liable during those two months would be simply stupendous.
When asked to adopt a construction that, in addition to compensatory damages, visits such severe punishment for an act of mere negligence, I recall to mind the words of a distinguished English Judge, who, speaking of an action brought against a railway company under the Railway and Canal Traffic Act of England, said, very extensive powers are conferred upon the court by this act,—“powers which may be exercised for the benefit of the public, but which may be also exercised to the wrong and detriment of persons carrying on a great trade; and we ought, therefore, to be very cautious to ascertain that there is reasonable ground for believing that the act has been infringed before we interfere.” Cresswell, J., in Caterham Ry. Co. v. London, B. & S. C. and S. E. R. Co., 1 Ry. & Canal Traffic Cases, 34. But if it was proper to exercise caution in the the application of a remedial statute, which inflicted no penalty, and was administered under a board of commissioners with large discretionary powers, how much more necessary is it to do so in construing an unbending penal act, against the punishment of which no tribunal has power to relieve. The construction of the act contended for here is far-reaching. To adopt it would be to change the statute from a simple and easily understood law to a very complex one, difficult either to understand or obey. ■ It would be certain to subject railway companies to heavy penalties in many cases in which they were guilty of no intentional wrong. It is not called for by the language of the act itself, nor included within the plain meaning of the legislature. We cannot, therefore, adopt it without violating what we conceive to be fundamental rules regarding the construction of penal acts.
I will now briefly notice some of the cases which counsel for appellees have cited in support of their views. First, they refer to certain decisions of the federal courts under the interstate commerce act, and to decisions of the English courts under the railway and canal act of England. It is sufficient to say of those cases that the acts which they construe are neither of them penal, but are remedial acts, and therefore to be construed liberally, to advance the remedy. The most hasty examination of those acts will show that they are altogether different from the one under consideration. Not only is the language of the acts different, but those acts are enforced under the supervision of a board of commissioners with discretionary powers to relieve special hardships imposed by the letter of the law. No railroad company under those acts becomes liable for a penalty unless for disobedience of an order of the court after the discrimination has been adjudged and pointed out. The shipper, under these acts, recovers only his actual damages, and the usual relief granted is not even a judgment for damages, but an order that the railway company in future refrain from such discrimination. It is evident, therefore, that a much broader construction can properly be given these statutes than the one we have under consideration. If, in construing a highly penal act, we undertake to follow the decisions under those statutes, we shall inevitably be led into the grossest and most inexcusable errors. This is sufficient to dispose of those cases, but, if it were necessary to go further, it could be shown that the reasoning of those cases, instead of opposing, tends strongly to support the conclusions at which wh have arrived.
I will next notice the cases of Chicago & A. R. Co. v. People, 67 Ill. 11, and the case of Ayers v. N. W. Ry. Co., 71 Wis. 372. I call special attention to these two cases, not only because they are cited by counsel for appellees, but because they are extensively quoted in the dissenting opinion delivered by my two learned associates. . The Illinois case, supra, was for discrimination in freights. The company made a greater charge for freight from Chicago to Lexington than it did from Chicago to Bloomington, a more distant station on the same line, the freight being of the same kind and being hauled in the same direction. The case came within the words of a statute similar to our own, to the effect that persons and property transported over any railroad shall be delivered at any station at charges not exceeding the charges for transportation of persons and property of the same class in the same direction to a more distant station. The judge who delivered the opinion said something about discrimination between localities, but he was speaking of discrimination in freights. He had no reference to discrimination in fácilities, and to suppose that he referred to a case of the kind we have here would be altogether misleading. It must also be noticed that, after discussing discriminations to a considerable extent, he concluded by giving judgment in favor of the company, for the reason that the statute upon which the prosecution was based was void. We are unable to understand how that decision can be considered as in conflict with our decision here.
The Wisconsin case (Ayers v. N. W. Ry. Co., 71 Wis. 372) was an action, not for a penalty, but for damages for wrongfully failing to furnish cars to carry freight. We fully agree with the judgment of the court in that case, but it was unnecessary for counsel to go so far to cite a decision on that point. Only a few months ago this court affirmed a judgment against appellant in favor of appellee for damages for failing to furnish cars, in which exactly the same question was involved as that determined by the Wisconsin court. We felt so little doubt about the law of the case that it was disposed of by an oral opinion. Appellees knew of the case, as it was in their’favor, and they might just as well have cited it as the case from Wisconsin, although we are not able to see that either case has any bearing upon the question here. In the Wisconsin opinion, as well as that from Illinois, there are expressions which might mislead if you disregard entirely the facts of the case, and suppose the judge to be discussing the law as applied to the facts of this ease; but, to get at the meaning of an opinion, you must, of course, consider the language of the judge as referring to the facts of the case before him, and not to an altogether different state of facts.
The next and last case that I shall notice will be a case from the supreme court of the United States, Union Pacific Railway v. Goodridge, 149 U. S. 680. The case arose under a Colorado statute, and was a prosecution for an overcharge in freights. Counsel say that both the statute and case are similar to those before us. There is some similarity in the two statutes, but little between the two cases. The Colorado statute is a much more comprehensive act than our act. It provided, among other things, that railway companies should keep posted schedules of their rates, and that, while such schedules were in force, no rebate or drawback therefrom should be allowed one shipper, unless the same was open and allowed to all persons alike, except in special cases, where the approval of the railroad commissioners was procured in writing. The evidence in the case showed that there were two rival coal companies, one owning a mine at Erie, and the other at Marshall, these places being stations upon lines of the defendant’s railway, and each place about the same distance from Denver, to which place the two companies shipped their coal. The railway company posted a schedule of rates showing that the charges on coal from both Erie and Marshall was one dollar per ton. In other words, the railway company’s schedule showed that the rate to Denver on coal was the same from both places, but it made a secret agreement with the Marshall company by which it allowed it a rebate of 40 cents on the ton, and this was done without the written consent of the commissioners. These facts brought the case clearly within the express language of the act, and the company was held guilty. The judge, in speaking in that case of discriminations between localities, had reference to discriminations in charges of the kind forbidden by the act, and not to discrimination as to facilities.
I have now noticed the cases upon which counsel for appellees seem to place most reliance, and in my opinion none of them furnish authority for holding the company liable for a penalty for a discrimination in facilities between different localities, much less between localities where the conditions and circumstances are widely' different, as we find them here. Van Burén has competing lines of railway. It is the end of a division of appellant’s railway. It is a much larger town than Altus, and has not only a much larger retail business, but has several wholesale houses. These and other advantages which Altus does not possess cause empty cars to accumulate at Van Burén, which arel used in the shipment of cotton from that point. Conceding that the statute was intended to punish discriminations between different localities, it could not apply to a case such as this, where the conditions and circumstances surrounding the two localities are altogether different; and this is the ground on which, as I understand it, rests the opinion of Mr. Justice- Battle ordering a dismissal in this ease. But it seems plain to me that the purpose of this act, so far as it forbids discrimination in facilities for transportation, was to require the railroad company to treat all shippers alike who ship from the same place and under the same conditions, and to forbid and punish favoritism on the part of the company under such circumstances. It has, in my opinion, no application to discrimination in facilities when furnished at-different localities; for that is covered by another statute, and the common law, which require railway companies to furnish reasonable and adequate facilities for transportation at every station, and provide a remedy for any failure in this respect by means of an action for damages. Sand. & H. Dig., § 6193; 4 Elliott, Railroads, § 1479.
For these reasons I adhere to the decision made in this case. The motion to rehear is overruled.
Bunn, C. J., and Battle, J., concurred in the conclusion that the motion to rehear should, under the facts of this case, be overruled.