| Ill. | Nov 14, 1885
delivered the opinion of the Court:
This, action was brought by George Bussell, against the Ohio and Mississippi Baibvay Company, to recover double the value of a fence which it is alleged plaintiff built on the right of way of the defendant corporation. In the- declaration the facts are averred with sufficient fullness, on which plaintiff bases his right to recover, from which it appears defendant was possessed of, and was operating, a railroad through the county of Cass, and” that it was the duty of such defendant, under the statute, to build a fence on its right of way next adjoining plaintiff’s land; that on failing to build such fence as the law requires, plaintiff caused a notice to be served on defendant that unless it conformed to the statute and built such fence within thirty days, plaintiff would proceed, as he is authorized by statute in snch cases to do, to build the fence and hold defendant liable for double the value, and that on defendant’s failure to build such fence, plaintiff did build it, and now by his action seeks to recover double the actual cost of constructing the same. To the declaration alleging these and other facts, defendant pleaded, first, the general issue; and second, a special plea, in which it is averred that at and before the time of building the fence, as in the declaration stated, the railroad and all the property of defendant was in the hands of a receiver appointed by a District Court of the United States, in pursuance of an order of that court authorizing such receiver to take possession and operate such railroad, and enjoining and restraining the company, its officers and employes, from in any manner interfering with the possession of the receiver, or with the management or the operation of the railroad property. To this special plea the court sustained a demurrer, and defendant elected to stand by its plea. A trial was had before the court without the intervention of a jury, on the plea of the general issue, which resulted in a judgment against defendant for double the value of the fence built by plaintiff. That judgment was affirmed in the Appellate Court for the Third District, and defendant brings the case to this court on its further appeal.
The decision of the court in sustaining the demurrer to the special plea, raises the principal question in the case. Conceding the correctness of that decision, it would follow, the ruling of the court excluding as evidence the orders of the United States Court appointing the receiver was also correct. Both decisions will therefore be examined together as one question.
Section 1, of the act of 1874, makes it the duty of every railroad corporation, within a certain time after its line is open for use, to erect and thereafter maintain fences on both sides of its road, suitable and sufficient to keep stock from getting on the track. Section 3 of the same act declares, whenever any railroad corporation shall neglect or refuse to build such fence in accordance with the provisions of the act, the owner or occupant of the land adjoining the railroad may give notice to such corporation to build such fence within a time specified. The notice authorized to be given may be served on the corporation, or the lessee, or the persons operating such railroad. By the 4th section it is provided, if the parties so notified shall refuse to build such fence, the owner or occupant of the land required to be fenced may build the fence, and the person so building such fence shall be entitled to double the value thereof from such corporation or party actually occupying or using such railroad. It will be perceived, on a close reading of the statute, the person constructing the fence under its provision may bring his action either against the corporation, or the party actually occupying or using such railroad, at his election. Either one is liable to the penalty imposed by the statute. It is therefore no defence, so far as the corporation is concerned, that the property of the corporation is in the hands of the receiver, or that its road is occupied or used by another party. The statute has expressly given the remedy against either party, and the party aggrieved may bring his action against one or the other, as he deems most expedient. Under this construction of the statute, it is obvious the demurrer to the special plea was properly sustained.
Counsel have cited a line of authorities that hold, ■while a railroad is in the hands of a receiver, under appointment of a court of competent jurisdiction, with full power to operate such road, to the exclusion of its employes, the corporation will not be liable for injuries caused by the negligent conduct of the agents or servants of the receiver, over which it has and can have no control. Conceding the correctness, as is freely done, of the general doctrine on this subject, it has no application to the case being considered. The defendant in this case is not sued for an injury or damage done by the servants of the receiver operating the road. The action is against defendant for the non-performance of a duty imposed by statute, against which it is apprehended no order of a court can avail to relieve it. It is a police regulation, to which the corporation is subjected by the sovereignty of the State, and it is not within the rightful jurisdiction of the court, either State or Federal, to arrest its operation. Notwithstanding the appointment of the receiver, the corporation is clothed with its franchises, and such corporation still exists. The effect of the appointment of the receiver is simply to give him the temporary management of the railroad, under the direction of the court, instead of the manager appointed by the directors of the corporation. It is that, and nothing more. As the corporation still exists, it ma.y still exercise, as before, its franchises, so it does not interfere with the rightful management of the road by the receiver, so far as his duties are defined by the court appointing him. No doubt it may do many corporate acts, and certainly it can do all things necessary to preserve its legal existence, notwithstanding the appointment of the receiver to which1 the temporary management of the road is given,—otherwise the appointment of the receiver would be tantamount to a dissolution of the corporation. It is a principle well understood, that all railroad or other corporations transacting business in its nature public, are subject to all reasonable police regulations deemed necessary for the common welfare. The mere fact its property may be temporarily in the hands of a receiver- does not relieve a corporation from the operation of such regulations, any more than a private citizen is released from the duty to observe the law because his property may be sequestered by the order of a court for the benefit of his 'creditors. But the duty of the corporation in jihis regard need not be further discussed on principle. It is sufficient the statute has imposed the duty sought to be enforced against the corporation, and it must be obeyed.
It is objected the service of the notice to build the fence was not made upon defendant or any of its agents. It is a sufficient answer to the position taken, there was testimony to the effect the party on whom the, notice.was served was in fact an agent of defendant, and as it was a controverted question of fact, at the trial, whether he was such agent, the finding of the Appellate Court, as to it, is conclusive upon this court. That finding must have been in favor of plaintiff, as it was necessary to sustain his action,—otherwise the judgment might have been for defendant.
The suggestion that at the time the notice was served and the fence was built, the railroad company could not have entered upon the right of way to build the fence, without a violation of the injunction contained in the order of the court appointing the receiver, has so little foundation, either in reason, or fact, or law, that it is hardly necessary to remark upon it. It is idle to say the building of a fence on the line between the right of way and the land of an adjoining proprietor would be such an interference with the operation of the railroad by the receiver as would subject the party doing it to punishment as for contempt of court.
No error appearing in the record, the judgment of the Appellate Court is affirmed.
J udgment affirmed.
Mulkey, Ch. J., and Scholfield, J., dissenting.