It is conceded by the learned counsel for the respondents, that this case is governed by Rood v. Railway Co., 43 Wis., 146, and Smith v. Railway Co., id., 686; and that the judgment must be reversed.
But it is contended that the complaint may be treated as going upon the common-law right to recover against the carriers the excess of their charges over reasonable rates; that the statutory rates in force at the time are to be taken as the reasonable rates to govern the carriage; and that this court ought therefore to direct the court below to enter judgment for such excess, without amendment of the complaint.
In Rood v. Railway Co. and Smith v. Railway Co., this court has sufficiently expressed its dissent from this position, although the point was not expressly taken in those cases.
The action for three times the excess of the statutory rates is a statutory action, expressly given by the statute. It is not for an exaction of rates above what the carriage was reasonably worth. It is a penal action, for a violation of' a statute by exacting rates in excess of fixed statutory rates. It is essentially different from the common-law action, not only in the rule of recovery, but in the persons liable to it. It is given, indeed, as a private right, founded largely, however, on public policy.
"When this case was here before, 40 "Wis., 294, counsel on both sides, and court, dealt with it as a statutory action. The complaint in this case, as in Rood v. Railway Co. and Smith v. Railway Co., prays judgment for three times the excess of rates paid; and the circuit court in each case rendered judgment for the amount demanded. It is therefore idle to contend here that the actions should be considered below as common-law actions.
*386Whether the common-law action was suspended by the substitute given by the statute, while the statute was in force, and whether the repeal of the statute restored the common-law action in cases occurring under the statute, and whether this case can be changed by amendment from the statutory to the common-law action, and whether the fixed statutory rates would be then taken for reasonable rates, are questions not before the court, and not decided here or in Rood v. Railway Co. or Smith v. Railway Co.
The learned counsel is mistaken in his position that the rule of distribution of the statutory rates between several railroad companies joining in one carriage, given in Rood v. Railway Co., is judicial legislation, intruding a provision into the statute not to be found in it as written. The statute prescribes decreasing rates for each twenty-five miles of each carriage; but gives the varying rates for the entire carriage only. A company carrying, twenty-five miles only of a longer carriage would not have earned the rate of the first twenty-five miles. It would be earned only at the end of the entire carriage.. Where the carriage is for several times twenty-five miles, the aggregate of the rates given for each twenty-five miles is equally earned by the carriage for the whole distance. And the statute expressty provides that the same computation of rates shall apply to a carriage over more than one road. Such a carriage is, under the statute, a single carriage by several parties, each equally entitled to share 'pro fata in a common rate of compensation applying to the whole carriage. The rule of distribution in Rood v. Railway Co. comes of necessity from the provisions of the statute itself. It was fully considered, and the court intends to adhere to it.
By the Co%vrt. — The judgment is reversed, and the cause remanded to the court below for further proceedings according to law.