The provisions of the Pub. Sts. c. 112, § 192, are intended to secure to every person desiring to transport milk in small quantities by the can on a railroad the right to have it carried by the can “ under fairly proportionate advantages in every respect, including price, time, and reasonable care for the same, as the milk carried in large quantities, or under contract.” Section 193 authorizes the railroad commissioners, under certain circumstances, to revise the tariff, and § 194 imposes a penalty of ten dollars for each and every can of milk which the railroad company refuses to receive or neglects to forward or deliver at the rates established by the railroad commissioners.

The plaintiff in the present case seeks to recover $4,410, the amount of the penalties incurred by the defendant in eight days for refusing to transport for him four hundred and forty-one cans of milk, on which the freight at the tariff rate would have been about thirteen dollars. The statute is highly penal, and it calls for strictness and regularity in proceedings under it. Some of the questions arising in this case we do not deem it necessary to consider; for if we assume, without deciding, that the railroad commissioners were correct in their general view of the law, we are of opinion that the plaintiff is not entitled to the penalties which he seeks to recover. Under the Pub. Sts. c. 112, § 193, the railroad commissioners exercise a peculiar jurisdiction. They may make an order which will subject the railroad corporation to heavy penalties. This jurisdiction attaches only “ on the petition of a person desiring to forward milk over a railroad.” The proceeding is directed against a particular railroad on a petition of a person who claims a particular right against that railroad. The authority of the board is not to consider the general subject of rates, but to “ ascertain at what rates facilities for the carriage *7of milk under contract or in large quantities are furnished by the railroad corporation,” and to compare them with the tariff for the carriage of milk by the can, to fix rates by the can “ fairly proportionate with such contract or large quantity rates.” The order, when made, is to have the force and effect of a criminal statute. The inquiry relates to the dealings of a particular railroad; for the special contracts of one railroad with shippers presumably are not the same as those of another railroad.

In a hearing of this kind common justice requires that a railroad against whom the proceeding is directed should be notified of the petition, and have an opportunity of being heard. In the present record there is nothing to indicate that the defendant had notice of the petition, or an opportunity of being heard before the railroad commissioners. If it was notified, the failure of the order of the railroad commissioners to show it might be cured by an allegation in the declaration; but there is no such allegation. Perhaps the full record of the railroad commissioners may show notice and a hearing of the defendant; but if it does, it is not before us. From what occurred at the argument, we may suppose that the defendant was before the commissioners ; but on a demurrer we cannot go outside of the record before us. So far as appears, the order was invalid for want of a notice to the defendant.

The petition is not in a form to show that the commissioners had jurisdiction. There is nothing in it to show to what railroad it refers, or in what part of the State, or in what direction the petitioners desired to forward milk, or, except by inference, that they desired to forward it anywhere. The petitioners describe themselves as producers of and dealers in milk; but besides that there is nothing to show what interest they have in the subject to which the petition relates. The order recites that the petition was signed by residents of seven towns, which are mentioned. Apparently this fact was ascertained from evidence outside of anything contained in the papers before the commissioners. The order does not anywhere expressly state to what railroad it relates. In it there is a reference to a former proceeding of a similar character before the railroad commissioners in 1882 against this defendant, and there is language *8from which it may be inferred that this order is intended to apply to the defendant. It is not expressly stated in the order to what place the milk is to be carried at the rate fixed, although from the general discussion and statement of reasons in the order, we suppose that Boston is meant; and the only designation of the places from which the milk is to be carried is “ the stations covered by the present petitions,” which doubtless means the stations in the towns where, according to the recital in the order, the petitioners reside. From some of these towns another railroad runs to Boston, and it is not stated whether the order is to apply to transportation over that railroad or not. The whole proceedings are more appropriate to a case arising under the general jurisdiction of the railroad commissioners, where their action is advisory, than to this peculiar jurisdiction, where an order may be made which will have the effect of a highly penal statute.

So far as we can judge from the record before us, the proceedings were not sufficiently regular and formal, and the order was not sufficiently explicit to be made a foundation for a recovery of the penalties prescribed by the statute.

Judgment for the defendant.