These four cases. have been heard together. They present but one question — the constitutionality of the Act of 1891, Ch. 101, making unfenced railroads liable for all damages to owners of live-stock killed or injured by moving trains of cars or engines.
The title is as follows:
“An Act to require the section-masters of railroads to give notice of the killing or - injury of live-stock by the trains or locomotives of railroads in Tennessee; to provide for the appointment of appraisers to ascertain and fix the value of such stock, or the amount of injury thereto, and to provide for the collection of such appraisements; to make railroad companies liable for all damages by reason of the killing or injury of live-stock upon or near their unfenced tracks by their moving ■ trains, ears, or engines.”
The subject of this act is the liability of unfenced railroads for all damages resulting to livestock killed or injured by moving engines or cars. This subject is clearly indicated by the last clause in the title, which we have indicated by italics. The preceding clauses of the title were unnecessary. They are but statements as to the subdivisions of the act, and point out the measure of the damages, and the manner in which these damages are to be ascertained and enforced.
When the object of an act is to subject railroad companies operating unfenced tracks to absolute liability for all damages resulting from their unfenced condition, we can see no reasonable ^objection to embodying in the same act the means by which this liability may be ascertained and enforced, as well as provision for the increase of such dam
Second.- — -It is next objected that the Act is void as being class legislation, and obnoxious to Art. XI., Sec. 8, of the Constitution, which prohibits the passage of “ any law for the benefit of individuals inconsistent with the general laws of the land,” etc.; and as prohibited by Sec. 8 of Art. I. as jiot being “ due process of law,” or “the law of the land.”
Under this head it is urged: (1) That it is applicable only to a limited class of persons — un
Many of these objections are predicated upon the assumption that the statute is a mere piece of machinery for the more speedy collection of livestock claims against railroads. If this view of the Act be the true one, then it does present many very serious questions of constitutional law.
In our judgment the Act has a wider purpose and rests upon much higher and broader considerations.
The end sought by this legislation is the prevention of accidents on railways, by compelling the inclosure of the track in such manner as will prevent live-stock from going on the roads. Failure to fence is made conclusive evidence of negligence whenever live-stock is killed or injured upon such an unfenced road by moving engines or cars. The liability of the company for actual damages is made the consequence of the failure to fence; and if the offending company refuse to pay the prima facie value of such stock, as ascertained in the mode prescribed by the Act, then it is made liable for an increase in the damages to the extent of reasonable attorney’s fees in the event it
The duty of„ fencing, and the resulting liability for failure to perform such duty, is imposed, not so much in the interest of the owners of animals which may go upon an' unfenced road, as in the interest of the general public, who are concerned that accidents shall be avoided, and public travel be made as safe as the exigences of that manner of transportation will permit.
The authority for requiring railroads to fence in their tracks is found in the general police power of the State. The duty may be imposed by an affirmative statute, and enforced by fines, forfeitures, and penalties; or it may be indirectly imposed, as in the Act under consideration, by subjecting unfenced roads to liabilities and penalties from which roads recognizing the duty are exonerated. The enormous power and great momentum of railway engines render such protection a reasonable requirement against the unnecessary destruction of private property and accidents to persons traveling by such conveyance.
“ This police power of the State,” says an eminent Judge, “ e'xtends to the protection of the lives, limbs, health, comfort, and quiet of all persons, and the protection of all property within the State. According to the maxim, sic utere tuo ut alienum non laedas, which being of universal application, it must, of course, be within, the range of legislative action to define the mode and man
The constitutionality of such statutes has often been questioned, but they have been, it is believed, uniformly sustained as a valid exercise of the po-, lice power. Gorman v. Pacific R. R. Co., 26 Mo., 441; Wilder v. Maine, etc., R. R. Co., 65 Me., 333; Tharpe v. Rutland R. R. Co., 27 Vt., 140; Missouri Pacific R. R. Co. v. Humes, 115 U. S., 522; Blair v. Milwaukee, etc., R. R. Co., 20 Wis., 267; Chicago, etc., R. R. Co. v. Dremser, 109 Ill., 402; Pa. R. R. Co. v. Reblet, 66 Pa. St., 164; Spealmon v. Mo. Pacific R. R. Co., 71 Mo., 434; Small v. Chicago, Rock Island R. R. Co., 50 Iowa, 338; Am. and Eng. Ency. of L., Vol. 7, p. 910, and cases cited; and many other cases.
The objection that the Act creates a new judicial tribunal for the appraisement of values of stock killed upon an unfenced road is not well founded. If the valuation fixed by the board of appraisers was made conclusive evidence against the company, the act would be subject to severe criticism. But by the express terms of the statute this appraise
The fact that three sworn and disinterested appraisers, after examination of the ‘animals, have agreed upon and certified to a certain valuation, is made by the statute prima facie evidence of the value. There can be no serious doubt as to 'the power of the Legislature to make such an appraisement, although without notice, prima facie evidence of the truth of the appraisement. Concerning the power of the Legislature, an eminent authority says:
“As to what shall be evidence, and which party shall assume the burden of proof in civil cases, its authority is practically unrestricted, so long as its
With the limitations stated, such statutes as the one in question have been uniformly upheld. Code, § 1301, which provides that the birrden of proof shall be upon the railroad company, when sued for killing stock, to show that the accident was unavoidable, is' a striking instance of an Act shifting the burden of proof to the extent of requiring the defendant to prove a negative. So, by another statute, the ex parte certificate of a Notary Public that he had made a demand and given notice of the dishonor of negotiable paper, is made prima fade evidence of the fact of such notice. So, statutes .which make tax-deeds prima fade evidence that all the proceedings have been regular, have been upheld, although such deed would not otherwise have any such force or effect, and the party claiming under one would, at common law, have to establish the regularity of the successive steps leading to the deed. Statutes making defective records evidence of valid conveyances are of a similar nature.
Third. — Does the imposition of an attorney’s fee, in case the railroad company unsuccessfully litigates, violate any constitutional right?
In our view, plaintiff can only recover such fee
This principle finds illustration in the common law, which permits, in cases where the wrong is so gross as to demand punishment, a recovery of a sum in excess of mere compensation, as exemplary or punitive damages. In many cases where such damages are admissible, the interests of society and of the pei’son injured are united, and this additional damage inflicted is permitted to be taken by the individual injured, although it is imposed as a punishment in the interest of the public.
If at common law the damages inflicted upon a wrong-doer may be in excess of mere compensation, wheuever the interests of society are affected or are to be subserved, it must be obvious that the law-making power may prescribe the measure of such additional damage and determine its disposition.
Upon this ground, statutes imposing double damages against unfenced' railroads have been sustained as within the police power of the State. In the case of Railroad v. Humes the constitutionality of a statute of Missouri imposing double damages upon uufenced railroads for live-stock killed or injured, was involved. The statute had been sustained by the Court of Missouri. Upon writ of error to the United States Supreme Court, a similar conclusion was reached. The provisions of the Constitution of the United States in regard to “ due process of law,” etc., being substantially
“The power of the State/’ said that Court, “to impose fines and penalties for a violation of its statutory requirements is coeval with government, and the mode in which they shall be enforced, whether at the suit of a private person or at the suit of the public, and' what disposition shall be made of the amount collected, are merely matters of legislative discretion. The statutes of nearly every State in the Union provide for the increase of damages where the injury complained of results from the neglect of duties imposed for the better security of life and property, and make that increase in many cases double, in some cases treble, and even quadruple the actual damages. And experience favors this legislation as the most efficient mode of preventing, with the least inconvenience, the commission of injuries. The injury actually received is -often so small that in many cases no effort would be made by the sufferers to obtain redress, if the interest were not supported by the imposition of punitive damages.” 115 U. S., 523.
The State has not, by this Act, imposed double or triple damages, as it might have done, but it has subjected the offending company to actual damages, and to an increase of this damage to the extent of the reasonable attorney’s fees incurred-by the successful plaintiff ‘in the establishment of his claim. This additional penalty is not imposed except upon the contingency that the company shall
The view we have taken of this Act, its objects and scope, excludes the assumption that the statute is one merely imposing a burden upon one class of litigants not borne by all others. The subject of the legislation being within, the police power of the State, it is not objectionable that additional or increased damages are imposed upon such terms and subject to such contingencies as the public interest shall demand.
Our Code furnishes many illustrations of the imposition of penalties and forfeitures under the police power of the State. In some cases such penalties are turned over to the relator, though he have no special interest. In others, the recovery is divided between the State and the party
We have been cited to two cases which are supposed to support the contention of the learned counsel that the imposition of the reasonable fee of an attorney is invalid, as partial legislation. Railroad v. Williams, 31 Am. and Eng. R. R. Cases, 555; Wilder v. Railroad, 35 Am. and Eng. R. R. Cases, 162. The first is an Arkansas ease, and arose under a statute of that State entitled, “An Act to provide for the settlement of claims for stock killed or injured by railroads.” The statute provided for an arbitration, and imposed the fees of adversary counsel in case the award was not paid. «The case is to be distinguished from this in many particulars. The Act was not one intended to compel the fencing of railroads, and was purely an effort to compel submission to an award. The other arose under an Act in its general scope very much like our own. The Court treated it alone from the stand-point that it was' the imposition of a burden upon one class of litigants not imposed upon all others. The view we have taken, that’ such added liability was but the imposition of ad--ditional damages, and was a valid exercise of the police power, was never considered. Acts similar to our own in respect to this feature have been sustained by reasoning more satisfactory to us. Railroad v. Duggan, 109 Ill., 537 (S. C., 20 Am. and Eng. R. R. Cases, 489); Railroad v. Mower, 16 Kansas, 573; Railroad v. Shirley, 20 Kansas,
Fourth.- — -In the case of Railroad v. Crider, the learned Circuit Judge construed this Act as requiring the Judge trying the case to adjudge what should be reasonable attorney’s fees, and to add such fee to the amount of plaintiff’s recovery as determined by the jury. In the other' cases heard along with the Crider case, but coming from a different circuit, the question of the amount of the fee was submitted to the jury. The contention now made is, that the Act requires -the amount of such additional damage to be fixed by the Judge, and that the defendant is therefore denied the right of jury trial. The language of the Act concerning this matter is that this fee shall “be fixed by the Court trying the case.” The meaning of “Court” depends upon the connection in which it is used. It may refer to the place where justice is judicially administered. The term, as defined by Mr. Bouvier in his dictionary, is this: “ The presence of a sufficient number of the members of a body in the government, to which the public administration of justice is delegated, regularly convened in an authorized place, at an appointed time, engaged in the full and regular performance of its duties.”
To determine whether the term is used as signifying the Judge alone, or the tribunal, which may consist of Judge and jury, resort must be had — if the term be used with reference to the
Fifth. — It has been urged that this statute is invalid because it amends in part, and repeals in part,, Code (M. & Y.), §§ 1298, 1299, and 1300, without reciting or otherwise mentioning the amended or repealed laws, and that this is prohibited by Art. II., See. 17, of the Constitution.
The sections of the Code .referred to are those requiring all railroad companies to observe certain precautions against accidents, and making them responsible for all damages resulting from failure, and exonerating them from liability . for damage to persons or property when in the observance of the statute.
The effect of this legislation upon unfenced
The constitutional provision requiring laws repealing or amending former laws to recite in the caption or otherwise the law repealed or amended, does not apply to repeals or amendments which result from necessary implication. Home Insurance Co. v. Taxing District, 4 Lea, 644; Ballentine v. Mayor, 15 Lea, 633.
The judgment in the Crider case must be modified by excluding the attorney’s fee added to the verdict by action of the Circuit Judge.
The judgments in the other cases will be affirmed.