(after stating the facts). The undisputed testimony shows that because of the extreme wet weather the pond could not have been drained during the twenty days after the notice was served upon the agent of the railroad company, unless at an unreasonable expense and that the work could have been begun sooner than it was if the company had been able to procure teams in the vicinity of the pond. The law makes it (section 6646, Kirby’s Digest, and Act 250 of the Acts of 1907) the duty of the railroad companies to drain their respective roadbeds, where water is caused to stand by reason of the construction of the road, within 200 yards of a farmhouse or residence or railroad station, by the construction of ditches or drains of sufficient capacity to carry off all the water rapidly.
Section 6647 provides: “Any railroad company, or corporation, or any officer or agent or employee of any such railroad company or corporation, who shall knowingly or wilfully violate the provisions of this act, shall be liable to pay a penalty of not less than fifty dollars *592for each and every offense, and costs of suit, including a reasonable attorney’s fee, to be taxed by the court where the same is heard on original action, by appeal, or otherwise, to be recovered by suit ,at law by the party aggrieved in any court of competent jurisdiction. ’ ’
Section 6648. “Twenty days’ notice shall be given to the officer, agent or employee, as the case may be, of any violation of this act, before a cause of action shall accrue. ’ ’
The written notice was served upon the station agent of the railway company nearest the location of the pond twenty days before the suit was brought and this was a sufficient compliance with the statute requiring notice to be given “before a cause of action shall accrue.” St. L. & S. F. Rd. Co. v. Hale, 82 Ark. 175. The statute only denounces a penalty against the railroad corporation, or its employees, “who shall knowingly and wilfully violate the provisions of this act, ’ ’ and provides that twenty days’ notice shall be given to the company of the violation of the statute “before a cause of action shall accrue.”
The words “wilfully and intentionally,” as used in another penalty statute (Kirby’s Digest, § 1899), making it a misdemeanor to destroy telephone lines and providing that persons guilty of such offenses shall pay to the owners double the amount of all damages sustained thereby, has been construed by this court. In Ry. v. Batesville & W. T. Co., 80 Ark. 504, the court said: “This is a criminal statute, and the words mean more than a mere doing voluntarily or knowingly the act in •question. The use of the term ‘wilful,’ and in this case almost its synonym ‘intentional,’ in a criminal or penal statute ‘implies knowledge and a preference to do wrong.’ They mean in such statutes, ‘not merely volunitarily, but with a bad purpose.’ ‘An evil intent without justifiable excuse.’ ‘Doing or omitting to do a thing knowingly and wilfully implies not only a knowledge of the thing, but a determination with a bad intent to do it or omit to do it.’ ” Citing Felton v. U. S., 96 U. S. 699; *593 Evans v. U. S., 153 U. S. 586; Potter v. U. S., 155 U. S. 438; Spurr v. U. S., 174 U. S. 728.
This statute does not say “wilfully and intentionally,” but “knowingly and wilfully,” meaning that the act must be done, not only with the knowledge of the company, but with the intention that it shall be done. There may be a different shade of meaning of the word “wilfully” when connected and used with “knowingly,” but these words have been construed together in statutes as quoted above by our court.
It was not the intention of the Legislature to denounce a penalty against the railroad company for mere failure to drain a pond caused by the construction of its roadbed, or it would not have used both words “knowingly and wilfully. ’ ’
If any other meaning whatever is to be given to the expression “knowingly and wilfully” it must mean not only that the provisions of the law are knowingly violated, but with the intention and purpose that the condition created shall remain as «it is.
It was the evident purpose of this act to protect the health of the citizens of the State, residing along and near the right-of-way of railroad companies, by requiring the draining of all pools and ponds resulting from the construction of the road bed, and it should receive a liberal construction on that account. It is true, it is a penal statute, but no penalty accrues, or can be recovered, until after twenty days’ notice is given of the violation of the act. The railroad company knows the constructions of its roadbed and the condition of its right-of-way. It knows when construction is finished whether water will be likely to accumulate and stand along the right-of-way in violation of this law, which it also knows, and if it permits it to do so and such condition exists it is necessarily knowingly done. If it then fails within the twenty days after the notice to remove the nuisance and provide the proper drainage it can be said it has done so wilfully and with the intention that the condition *594shall remain as it is and the water shall not be drained off and the nuisance abated.
The condition complained of by appellants had existed for two years before the notice was given, and was remedied in three days after the work was begun.
The testimony is in conflict as to whether or not the pond could have been drained any time before it was done after notice and also as to whether or not it could have been done during the running of the twenty days’ notice and under all the circumstances made a question for the jury to determine, whether the railroad company knowingly and wilfully violated the provisions of the statute, within the meaning of its terms. The court erred in directing a verdict.
The judgment is reversed and the cause remanded for a new trial.