| Ark. | Mar 31, 1913
(after stating the facts). The act under which the prosecuting attorney proceeded is Act. No. 23 of the Public Acts of 1911, and is as follows:
“Section 1. Any company, corporation or officer of any court or any person or persons operating any line of railroad during the night time in this State shall be required to place and maintain sufficient lights during the night time on all its main line switches, of the line of railroad so operated, and of the color green indicating main line and red to indicate side tracks.
“Section 2. That any company, corporation or officer of court or any person or persons, operating any railroad in this State, who shall violate any of the provisions of this act, shall be liable on conviction to a penalty of a fine of not less than twenty-five dollars nor more than one hundred dollars for each separate offense, which penalty shall be recovered in a civil action in the name of the State.”
The prosecuting attorney has moved the court to transfer the cases numbered 2468 and 2469 from the civil docket to the criminal docket and dismiss the appeal because the defendant did not lodge a transcript in the cases in the clerk’s office of the Supreme Court within sixty days after the judgments were rendered in the lower court. The act creates no public offense and according to its terms subjects the railroad to a penalty to be recovered by a civil action in the name of the State. General Acts of 1911, page 11. See also Kansas City, Springfield & Memphis R. R. Co. v. The State, 63 Ark. 134" date_filed="1896-10-24" court="Ark." case_name="Kansas City, Springfield & Memphis Railroad v. State">63 Ark. 134, and cases cited; Choctaw, Okla. & Gulf R. R. Co. v. State, 75 Ark. 369" date_filed="1905-05-13" court="Ark." case_name="Choctaw, Oklahoma & Gulf Railroad v. State">75 Ark. 369.
Therefore, the motion to dismiss the appeal will be overruled.
It is contended by counsel for the defendant railway company that but one penalty was recoverable for its failure to place and maintain a light on its first main line switch east of the depot at Warren. On the other hand, it is contended by counsel for the State that accumulative penalties should be recovered. The' general rule governing the construction of acts of this kind is aptly stated in 33 Cyc., page 680, as follows: Since penal statutes are strictly construed, it is held that in cases of successive violations of the statute, only one penalty can be recovered for the violation prior to the institution of the suit unless the language of the statute clearly expresses a contrary intent; but where the statute clearly so provides, an accumulation of penalties may be recovered for each and every violation.
Many cases have been cited by counsel for both sides applying the rule, and inasmuch as the question whether a statute imposing a penalty is to be construed as authorizing a recovery of cumulative penalties, turns in a great measure upon the language of the particular act under consideration, we deem it useless to review these decisions. In many instances such statutes by express terms make the penalty accumulative upon each succeeding day of default. The object had in view by the Legislature in the act under consideration was to compel railroad companies to maintain switch lights during the night time on all its main line switches so that its servants engaged in operating trains over its line of, road could tell by tbe color of the switch lights whether the switch was open or closed. This is for the protection of the traveling public. To effectuate this intention the act in question was passed. The offense prohibited by the act is of a continuing nature and, under the general rule, a statute imposing a penalty in such cases does not authorize the recovery, of cumulative penalties. The law-makers intended to compel the railroads to obey the act at once. We think that but one penalty can be recovered upon the statute for all acts committed prior to the commencement of the action. If after this, the statute is again violated, another penalty may be recovered in another action commenced thereafter, and so on as long as violations'Continue. This construction tends to compel the railroad companies at once to comply with the provisions of the statute and each separate suit brought after failure to comply with the act will give the railroad company notice that the statute is being violated. We think that from a consideration of the entire act such was the intention of the lawmakers. This construction of the statute does not work any hardship against the railroad companies, and will be a prompt and effectual means of making them comply with the statute. See Chicago, R. I. & P. Ry. Co. v. Fitzhugh, 83 Ark. 481" date_filed="1907-07-15" court="Ark." case_name="Chicago, Rock Island & Pacific Railway Co. v. Fitzhugh">83 Ark. 481.
It follows that the judgment in No. 2468 will be affirmed, and the judgment in the consolidated cases numbered 2469 will be reversed and the cause of action dismissed.