16 Kan. 573 | Kan. | 1876
The opinion of the court was delivered by
In this case the constitutionality of the following act is challenged, and this is the only question presented for our consideration:
Ch. 94; Laws oe 1874. — An act relating to killing or wounding stock by railroads.
Be it enacted by the Legislature of the State of Kansas:
Section 1. Every railway company or corporation in this state, and every assignee or lessee of such company or corporation, shall be liable to pay the owner the full value of each and every animal killed, and all damages to each and every animal wounded, by the engine or cars on such railway, or in any other manner whatever in operating such railway, irrespective of the fact as to whether such killing or wounding was caused by the negligence of such railway company or corporation, or the assignee or lessee thereof, or not.
Sec. 2. In case such railway company or corporation, or the assignee or lessee thereof, shall fail for thirty days after demand made therefor by the owner of such animal, or his agent or attorney, to pay such owner, or his agent or attorney, the full value of such animal if killed, or damages thereto if wounded, such owner may sue and recover from such railway company or corporation, or the assignee or lessee thereof, the
Sec. 3. The demand mentioned in section two of this act may be made of any ticket-agent or station-agent of such railway company or corporation, or the assignee or lessee thereof.
Sec. 4. In all actions prosecuted under this act, it shall be the duty of the court, if tried by the court, or jury if tried by a jury, if the judgment or verdict be for the plaintiff, to find in addition to their general finding for plaintiff.the amount if anything allowed for an attorney-fee in the case. ■
Sec. 5. This act shall not apply to any railway company or corporation, or the assignee or lessee thereof, whose road is inclosed with a good and lawful fence to prevent such animals from being on such road. — Approved, February 27, 1874.
"We have been favored with several briefs upon this question, both from counsel for plaintiff in error, and counsel representing other railroads. There are quite a number of cases in this court in which various roads are interested, turning upon this question, and we are informed that there are many more in the several district courts waiting for the decision in this. While the amount in controversy in each of these cases is small, yet the number of cases already in suit, and the still greater number which in the ordinary experience of the management of railroad trains may be expected to arise in the future, render the question one of considerable moment. It is generally conceded by the counsel, and we think is both settled by the authorities and resting in sound reason, that the legislature has the power to require railroad corporations to fence their tracks, and to make them liable for the value of all stock killed by their trains in consequence of a failure to so fence. See as authorities: Fawcett v. The Y. & N. M. Rly. Co., 2 Eng. L. & E. 289, and the adjudications of eleven American states, as follows: Connecticut: Bulkley v. N. Y. & N. H. Rld. Co., 27 Conn. 479; New Hampshire: Dean v. Sullivan Rld., 2 Foster, 316; Cornwall v. Sullivan Rld., 8 Foster, 161; Smith v. Eastern
But say counsel, this law does not come within the scope of those decisions — is not the exercise of that power. That power may impose the duty of fencing the road upon the company, and punish a failure to perform this duty by liability for all injuries resulting therefrom. But here no duty of any kind is imposed. Fencing is not declared a duty; it is only held up as a means of escaping liability, and only the single liability for' animals killed. “As long,” say counsel, “as the railroad companies pay for the cattle they are guilty of no breach of their obligations. They can fence or not, just as they please, and the traveling public is in no way benefited.” And again, “A law that lays down no rule of conduct, that neither commands nor forbids, cannot be a police regulation.” While doubtless there is weight to the suggestion of counsel in this respect, we are disposed to think they overestimate its importance. We think they place too much stress on the form of the enactment, and regard it as unconstitutional legislation to do that by indirection which it is clearly constitutional to do directly. The difference between the concession of counsel, and the law, is about this: The concession is, that it is lawful to say to the railroads, you must fence, or pay for stock killed. The law is, you must pay for stock killed, unless you fence. In each case, payment for stock killed is the result; non-fencing, the condition. In each case the liability is the same, and the manner of avoiding liability the same. For, though where the command to fence is in terms expressed, a failure to fence may carry the liability of the company to a further reach, and a wider extent, yet it is almost the unvarying rule in such legislation to follow the command with but one expressed penalty, that of payment for stock killed. And conceding the larger
Some minor matters are also presented which require brief notice. It is insisted first that this act cannot apply to the plaintiff in error, because it holds under a charter granted by the territorial legislature, and therefore now incapable of change without its consent. But the chartered rights of a corporation are not more sacred than the individual’s rights of person and property, and all must give way to any legislative exercise of the police power of the state. In Nelson v. Vt. & C. Rld., 26 Vt. 717, it is said, “It is certain, we think, that the legislature cannot impose new burdens upon corporations under such circumstances, which are merely and exclusively of private interest and concern, and which have nothing to do with the general security, quiet and good order. But there can be no doubt they have the same right by gen
Again, it is said that that portion of § 2 giving to the stock-owner the right to recover attorney-fees is unconstitutional. The proposition is thus stated by the learned counsel for plaintiff in error:
“Our state constitution, (Bill of Rights, §§ 1, 18,) guarantees to all equity of rights, and remedies for injury by due course of law. We contend that a law which gives a successful plaintiff in a civil action his attorney’s fees, and denies them to defendant, is a most gross violation of these constitutional provisions.”
We do not think the contention of counsel can be sustained. While the law may be harsh and rigorous, (and yet its rigor may have seemed to the legislature as essential to its value, ' for, if a claimant for stock killed was compelled to pay his own attorney’s fees, it might well happen that in all cases the amount of his claim — such amounts being uniformly small — would be consumed by attorney’s fees, and so leave the claimant in no better condition than before,) we see no reason to hold it beyond the power of the legislature. It is no uncommon thing for legislatures to provide, in cases where a failure to pay seems to imply more than ordinary wrong, that such failure should carry with it something in the nature of a penalty. Sometimes double or treble damages are given. The Iowa stock-law gave double damages. Our trespass act provides for both double and treble damages; (Gen. Stat., p. 1095, §§ 1 and 2.) Ten per cent, may sometimes be added in the discretion of the court. Other illustrations might be suggested.
The judgment will therefore be affirmed.
It is understood that the cases of the same plaintiff in error against Israel M. Tolls, and same against E. J. Hopper, and the case of the L. L. & G. Rld. Co. v. H. M. Waters, involve only the same question, and the-judgments in those cases will be affirmed.