22 N.W. 519 (Wis. 1885), Quackenbush v. Wisconsin & Minnesota Railroad Co.

Citation:22 N.W. 519, 62 Wis. 411
Opinion Judge:COLE, C. J.
Attorney:For the appellant there was a brief by Edwin H. Abbot, attorney, and Howard Morris, of counsel, and the cause was argued orally by Mr. Morris H. H. Hayden, for the respondent.
Case Date:March 03, 1885
Court:Supreme Court of Wisconsin

Page 519

22 N.W. 519 (Wis. 1885)

62 Wis. 411

QUACKENBUSH, Administratrix, etc.



Supreme Court of Wisconsin

March 3, 1885

Argued February 4, 1885.

APPEAL from the Circuit Court for Chippewa County.

Action to recover damages for the death of the plaintiff's intestate, alleged to have been caused by the failure of the defendant to fence its line of railroad as required by law. The facts alleged in the complaint will sufficiently appear from the opinion. The defendant appealed from an order overruling its general demurrer to the complaint.

Order overruling demurrer affirmed.

For the appellant there was a brief by Edwin H. Abbot, attorney, and Howard Morris, of counsel, and the cause was argued orally by Mr. Morris. They contended, inter alia, that the statute (sec. 1810, R. S., as amended by ch. 193, Laws of 1881) imposing an absolute liability upon the railroad company and debarring it from interposing any defenses which at common law would defeat the action, is in violation of sec. 1, art. XIV, Const. of U.S. and of sec. 9, art. I, Const. of Wis. As to what is meant by the terms "law of the land" and "due process of law," see Hoke v. Henderson, 4 Dev. 1-15; Vanzant v. Waddel, 2 Yerg. 260, 269, 270; Saco v. Wentworth, 37 Me. 165-171; State v. Doherty, 60 id. 504-8; Zeigler v. South & N. Ala. R. R. Co. 58 Ala. 594; S. C. 20 Am. R'y Rep. 463; Wright v. Cradlebaugh, 3 Nev. 341-9; Taylor v. Porter, 4 Hill, 144-6; East Kingston v. Towle, 48 N.H. 57, 59-61; Jones v. Robbins, 8 Gray, 342-3; Greene v. Briggs,1 Curt. C. C. 311-325 et seq.; People ex rel. Witherbee v. Supervisors, 70 N.Y. 228-234; Kalloch v. Superior Court, 56 Cal. 229; Hincks v. Milwaukee, 46 Wis. 559; Murray v. Hoboken L. & I. Co. 18 How. 272; Lawson v. Jeffries, 47 Miss. 686; Westervelt v. Gregg, 12 N.Y. 202; Wynehamer v. People, 13 id. 390-418, 432-441; Durkee v. Janesville, 28 Wis. 464; Rowan v. State, 30 id. 129; Culbertson v. Coleman,

47 id. 198, 201. From these cases the following propositions of law are logically derived: (1) Sec. 9, art. I, Const. of Wis., guaranties to every citizen of the state, natural or artificial, every substantial right which, at the time the constitution was adopted, was recognized and protected by and formed part of the "law of the land," or was incident to "due process of law." (2) Substantial rights under the "law of the land," or incident to "due process of law," are those which existed at the common law as adopted and applied in this country prior to the formation of the several constitutions containing the guaranties relied upon. (3) Legislative enactments destructive of such substantial rights are neither "law of the land" nor "due process of law." The law in question is also void because it denies the "right of trial by jury" guarantied by sec. 5, art. I, Const. of Wis. That guaranty must be interpreted to mean that parties litigant are entitled to have...

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