Mr. Justice Hand
delivered the opinion of the court:
At the close of the plaintiffs’ evidence, and again at the close of all the evidence, the defendant moved the court to instruct the jury to return a verdict in its favor, which the court declined to do, to which action of the court the defendant excepted, which exception, together with the exceptions preserved to the action of the court in overruling the appellant’s motions for a new trial and in arrest of judgment, preserves for review in this court the questions whether the declaration stated a cause of action, and whether the evidence, together with all the legitimate inferences that might be drawn therefrom,' fairly tended to support a cause of action in favor of the plaintiff.
It will be observed that section 22 of the act above referred to, requires railroad corporations in this State (a) to furnish, start and run cars for the transportation of such passengers and property as shall, within a reasonable time previous thereto, be ready or be offered for transportation at the several stations on their respective railroads and at their junctions with other railroads, and at such stopping places as may be established for receiving and discharging way passengers and freights; (b) to take, receive, transport and discharge such passengers and property at, from and to such stations, junctions and places on and from all trains advertised to stop at the same for passengers and freight, respectively, upon the due payment or tender of payment of tolls, freight or fare legally authorized therefor, if payment shall be demanded; and (c) to cause their respective depots to be opened for the reception of passengers, and to keep well lighted and warmed, for a specified time prior to the arrival and departure of their trains, such depots. And section 23 provides, that in case of the refusal of such corporation or railroad company or its agents (1) to take, receive and transport any person or property or to deliver the same within a reasonable time at its regular or appointed time and place, or (2) to keep its said depots open, lighted and warmed according to the provisions of section 22, such corporation or railroad company shall pay to the party aggrieved treble the amount of damages sustained thereby, with costs of suit, and in addition thereto said corporation or railroad company shall forfeit a sum of not less than $25 nor more than $1000 for each offense, to be recovered in an action of debt in the name of the People of the State of Illinois,—the treble damages for the use of the party aggrieved and the forfeiture for the use of the school fund.
It is clear from a consideration of the two sections of the statute above set out, that section 23 is not as broad in its terms as section 22, and that a failure to perform all the acts specified in said section 22 by a railroad Corporation is not penalized by section 23. By the express terms of section 22, railroad corporations are required to “furnish, start and run cars for the transportation” of passengers and freight. Section 23, however, does not in express terms make such corporations or railroad companies liable to the party aggrieved in treble damages or subject them to the forfeiture specified therein for a failure to “furnish, start and run cars.” The declaration filed in this case counts upon the liability imposed upon the appellant, by reason of section 22, to furnish cars, and avers as a conclusion of law that the appellant is liable to appellees in treble damages in consequence of its neglect and refusal to run in cars on its tracks or furnish to Sauer & Son, within a reasonable time after demand, cars suitable in kind and sufficient in number for the transportation of their grain. We think, therefore, unless the provisions of section 23 can be extended, by implication or by construction, so- as to cover the first provision of section 22, which requires railroad corporations to furnish cars,—which provision clearly is not within the express terms of section 23,—that the declaration failed .to state or the proofs to establish a cause of action which would authorize a recovery of treble damages against the appellant for a failure to furnish, start and run cars for the transportation of the grain of Sauer & Son.
The general rule governing the construction of penal statutes is that they are to be strictly construed, and are not to be held, by construction or implication, to include matters which- are not clearly within their terms; and that view, as applied to this case, is thus stated on page 660 of volume 26 of the American and English Encyclopaedia of Law, (2d ed) : “Where the penal clause is less comprehensive than the body of the act, the court will not extend the penalties provided therein to classes of persons or things not embraced within the penal clause, even where there is a manifest omission or oversight on the part of the legislature.” The foregoing statement of the rule is fully sustained by the authorities, many of which are cited in the case of State v. Cleveland, Cincinnati, Chicago and St. Louis Railway Co. (Ind.) 61 N. E. Rep. 669. The question is therefore presented whether the provision of section 23 of the act in relation to fencing and operating railroads, which provides for the recovery of treble damages, is a penal statute.
In Diversey v. Smith, 103 Ill. 378, Mr. Justice Scholfield, on page 390 of the opinion, in discussing the question whether the statute then under consideration was a .penal statute or not, said: “It is the effect, not the form, of the statute that is to be considered, and when its object is clearly to inflict a punishment ón a party for violating it,—i. e., doing what is prohibited or failing to do what is commanded to be done,—it is penal in its character, and the circumstance that, in punishing, remedy is likewise afforded to those having an interest in the observance of the statute is unimportant.”
In Pace v. Vaughan, 1 Gilm. 30, which was an action of trespass to recover, under the statute, treble the value of exempt personal property seized upon execution, it was held a party claiming a penalty must clearly show a state of case which entitled him to recover it, and that the treble value of the property sued for was given by the statute by way of penalty, and that the party seeking to recover it must de-' clare as for a penalty.
In People v. Illinois and St. Louis Railroad and Coal Co. 122 Ill. 506, it was held that section 23 of the statute now under consideration could not be so extended as to permit a recovery of treble damages for a failure on the part of the railroad company to furnish, start and run cars to carry coal to be dug from the earth after the cars were furnished.
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Mr. Justice Hand
delivered the opinion of the court:
At the close of the plaintiffs’ evidence, and again at the close of all the evidence, the defendant moved the court to instruct the jury to return a verdict in its favor, which the court declined to do, to which action of the court the defendant excepted, which exception, together with the exceptions preserved to the action of the court in overruling the appellant’s motions for a new trial and in arrest of judgment, preserves for review in this court the questions whether the declaration stated a cause of action, and whether the evidence, together with all the legitimate inferences that might be drawn therefrom,' fairly tended to support a cause of action in favor of the plaintiff.
It will be observed that section 22 of the act above referred to, requires railroad corporations in this State (a) to furnish, start and run cars for the transportation of such passengers and property as shall, within a reasonable time previous thereto, be ready or be offered for transportation at the several stations on their respective railroads and at their junctions with other railroads, and at such stopping places as may be established for receiving and discharging way passengers and freights; (b) to take, receive, transport and discharge such passengers and property at, from and to such stations, junctions and places on and from all trains advertised to stop at the same for passengers and freight, respectively, upon the due payment or tender of payment of tolls, freight or fare legally authorized therefor, if payment shall be demanded; and (c) to cause their respective depots to be opened for the reception of passengers, and to keep well lighted and warmed, for a specified time prior to the arrival and departure of their trains, such depots. And section 23 provides, that in case of the refusal of such corporation or railroad company or its agents (1) to take, receive and transport any person or property or to deliver the same within a reasonable time at its regular or appointed time and place, or (2) to keep its said depots open, lighted and warmed according to the provisions of section 22, such corporation or railroad company shall pay to the party aggrieved treble the amount of damages sustained thereby, with costs of suit, and in addition thereto said corporation or railroad company shall forfeit a sum of not less than $25 nor more than $1000 for each offense, to be recovered in an action of debt in the name of the People of the State of Illinois,—the treble damages for the use of the party aggrieved and the forfeiture for the use of the school fund.
It is clear from a consideration of the two sections of the statute above set out, that section 23 is not as broad in its terms as section 22, and that a failure to perform all the acts specified in said section 22 by a railroad Corporation is not penalized by section 23. By the express terms of section 22, railroad corporations are required to “furnish, start and run cars for the transportation” of passengers and freight. Section 23, however, does not in express terms make such corporations or railroad companies liable to the party aggrieved in treble damages or subject them to the forfeiture specified therein for a failure to “furnish, start and run cars.” The declaration filed in this case counts upon the liability imposed upon the appellant, by reason of section 22, to furnish cars, and avers as a conclusion of law that the appellant is liable to appellees in treble damages in consequence of its neglect and refusal to run in cars on its tracks or furnish to Sauer & Son, within a reasonable time after demand, cars suitable in kind and sufficient in number for the transportation of their grain. We think, therefore, unless the provisions of section 23 can be extended, by implication or by construction, so- as to cover the first provision of section 22, which requires railroad corporations to furnish cars,—which provision clearly is not within the express terms of section 23,—that the declaration failed .to state or the proofs to establish a cause of action which would authorize a recovery of treble damages against the appellant for a failure to furnish, start and run cars for the transportation of the grain of Sauer & Son.
The general rule governing the construction of penal statutes is that they are to be strictly construed, and are not to be held, by construction or implication, to include matters which- are not clearly within their terms; and that view, as applied to this case, is thus stated on page 660 of volume 26 of the American and English Encyclopaedia of Law, (2d ed) : “Where the penal clause is less comprehensive than the body of the act, the court will not extend the penalties provided therein to classes of persons or things not embraced within the penal clause, even where there is a manifest omission or oversight on the part of the legislature.” The foregoing statement of the rule is fully sustained by the authorities, many of which are cited in the case of State v. Cleveland, Cincinnati, Chicago and St. Louis Railway Co. (Ind.) 61 N. E. Rep. 669. The question is therefore presented whether the provision of section 23 of the act in relation to fencing and operating railroads, which provides for the recovery of treble damages, is a penal statute.
In Diversey v. Smith, 103 Ill. 378, Mr. Justice Scholfield, on page 390 of the opinion, in discussing the question whether the statute then under consideration was a .penal statute or not, said: “It is the effect, not the form, of the statute that is to be considered, and when its object is clearly to inflict a punishment ón a party for violating it,—i. e., doing what is prohibited or failing to do what is commanded to be done,—it is penal in its character, and the circumstance that, in punishing, remedy is likewise afforded to those having an interest in the observance of the statute is unimportant.”
In Pace v. Vaughan, 1 Gilm. 30, which was an action of trespass to recover, under the statute, treble the value of exempt personal property seized upon execution, it was held a party claiming a penalty must clearly show a state of case which entitled him to recover it, and that the treble value of the property sued for was given by the statute by way of penalty, and that the party seeking to recover it must de-' clare as for a penalty.
In People v. Illinois and St. Louis Railroad and Coal Co. 122 Ill. 506, it was held that section 23 of the statute now under consideration could not be so extended as to permit a recovery of treble damages for a failure on the part of the railroad company to furnish, start and run cars to carry coal to be dug from the earth after the cars were furnished.
While the authorities as to when a statute will be held to be a penal statute are not in entire harmony, we think the rule is well settled in this State in accordance with that announced in the Pace and Diversey cases, supra, and that it is obvious that the treble damages which section 23 provides may be recovered in case of the violation of the provisions of that section were intended by the legislature as a punishment of a corporation or railroad company which failed to do what is commanded to be done by such corporation or railroad company by that section of the statute, and that said section 23 is a penal statute within the meaning of those cases, and that as the provision in section 22 providing that railroad corporations shall furnish, start and run cars for the transportation of passengers and property was omitted from section 23, the courts are powerless to enforce the penalty provided for in section 23 against a railroad corporation which fails -to furnish, start and run cars for the transportation of passengers and property, as provided by section 22 of the statute, by allowing the recovery of treble damages.
The court instructed the jury, on behalf of plaintiffs:
“If you further believe, from a preponderance of the evidence, that defendant refused to furnish to and for said Sauer & Son cars for the shipment of said grain within a reasonable time after said demands so made for said cars by said Sauer & Son of and upon said defendant, as explained in these instructions, and that, by reason of the said refusal of said defendant to so furnish said cars as aforesaid, said Sauer &■ Son suffered and sustained damages and financial loss because of a falling off in the market price of grain, * * * then your verdict should be for the plaintiffs, and in such ■ case your verdict will be for an amount equal to three times the actual damages which you believe, from a preponderance of the evidence, said Sauer & Son have suffered by reason of said refusal of the defendant to furnish cars, as aforesaid.”
The foregoing instruction was wrong in informing the jury that the plaintiffs were, under the circumstances stated in the instruction, entitled to recover “three times the actual damages” which the jury believed Sauer & Son had sustained, and by reason of the fact that the jury were informed the plaintiffs might recover if they had proved their case by a preponderance of the evidence, as in an action of debt for the recovery of a penalty more than a prepondérance of the evidence is necessary to authorize a recovery. Toledo, Peoria and Warsaw Railway Co. v. Foster, 43 Ill. 480; Ruth v. City of Abingdon, 80 id. 418.
The judgments of the Appellate and circuit courts will be reversed and the cause remanded to the circuit court.
Reversed and remanded.
Farmer and Vickers, JJ., took no part in the decision of this case.