Bonner and Eddy v. Franklin Co-Operative Assn. , 4 Tex. Civ. App. 166 ( 1893 )

It is stated in the briefs of both appellants and appellee that this is an action to recover of Bonner and Eddy, as receivers of the International Great Northern Railway Company, the $500 penalty prescribed for unjust discrimination in freight rates by article 4258b, section 7, Sayles' Civil Statutes. Judgment for the amount sued for was rendered against the appellants in the court below.

The penalty prescribed by the statute referred to is denounced against and limited to "railway companies." The doctrine announced in the case of Turner v. Cross and Eddy, 83 Tex. 218 [83 Tex. 218], is decisive of this case; and following that case, it must be held, that receivers operating a railway under judicial appointment are not "railway companies" within the purview of the statute under which it is sought to maintain this action. Furthermore, this being an action to recover a statutory penalty, a stricter rule of construction applies, and unless the language of the statute is broad enough to include railway receivers, they are not liable to its penalties. The statute can not be extended by implication. Schloss v. Railway, 85 Tex. 601.

Appellee may have a cause of action under the doctrine announced in Railway v. Rust Dinkins, 58 Tex. 98, but it is not entitled to recover the penalty prescribed by the statute under which this suit was brought.

This case is distinguishable from Clark v. Dyer, 81 Tex. 339 [81 Tex. 339]. In that case the receivers were appointed by a Federal court, and a Federal statute requires such receivers to operate the railway according to the requirements of the State in which the property may be situated. And besides, that was a damage suit, and not an action to recover a penalty.

The judgment of the court below is reversed and the cause remanded.

Reversed and remanded.