| Ark. | Mar 24, 1900
(after stating the facts.) We are of the opinion that the judgment against the railway company for a penalty cannot be sustained under the facts of this case. The statute imposing a penalty upon railway companies for refusing to deliver freight upon payment or tender of the freight charges due, as shown by the bill of lading, does not apply to a company not a party to the bill of lading, which has not carried the goods under the bill of lading, and has neither authorized nor accepted it. It applies only to railway companies “that are bound by the bill of lading, either as having made, authorized or accepted it ” Loewenberg v. Railway Co., 56 Ark. 439" date_filed="1892-07-01" court="Ark." case_name="Loewenberg v. Railway Co.">56 Ark. 439; Fordyce v. Johnson, 56 Ark. 430" date_filed="1892-07-01" court="Ark." case_name="Fordyce v. Johnson">56 Ark. 430.
The language of the statute elearly shows this to be its meaning ; for it makes it unlawful for any railroad in this state to collect from any owner or consignee of freight a greater sum for transporting the same “than is specified in the bill of lading.” Sand. & H. Dig., § 6254. And it is evident from this language that the act applies only to a company which carries the goods under the bill of lading, and afterwards endeavors to impose greater charges than are authorized by the contract. Some company carrying the goods under the bill of lading, and whose charges are regulated by it, must refuse to deliver the goods, before the statute applies. If the goods in reaching their destination pass beyond the point named in the bill of lading, and to which the charges are specified, into the possession of a carrier not acting-under the bill of lading, and whose charges are not governed by it, the statute does not apply; for the language of the act does not include such a carrier, and the act, being penal, must be strictly enforced, and cannot be extended by implication.
If the act applied to the defendant company in this case, and if it could collect only what was shown in the bill of lading, the result would be that it would get nothing for hauling the whiskey from Little Rock to Hope, for the bill of lading specifies the freight charges only to Little Rock. It is admitted that the defendant company had the right to charge its usual local freight rates for transporting the whiskey from Little Rock to Hope in addition to the charges specified in the bill of lading, and this, of itself, shows that this ease is not within the statute; for, to quote the language of the court in Fordyce v. Johnson, the penalty cannot be recovered “when the bill of lading does not represent the amount of charges that are legally demand-able by the carrier to whom the tender is made.”
If the defendant company, without right, paid excessive charges to another carrier, and then, in order to compel plaintiffs to pay such charges, withheld their goods, it may be that it thereby subjected itself to an action for damages, but that is a different matter. In order to recover a penalty, plaintiffs must bring their case within the statute by showing that the defendant carried the whiskey under a bill of lading specifying its charges for suph carriage, and then refused to deliver upon the payment or tender of the charges named. The complaint shows on its face that such was not the ease; for it states that the whiskey was shipped from Louisville to Little Rock under a bill of lading guarantying the rate to the latter point, and then shipped over defendant’s line.
There are other points raised which would probably be equally conclusive against the right of plaintiffs to recover, but we find it unnecessary to discuss them. For the reasons stated, the judgment will be reversed, and the case dismissed.