Dacres v. Oregon Ry. & Nav. Co.

• Decision Date: 29 January 1889
• Citation: 20 P. 601,1 Wash. 525
• Court: Washington Supreme Court
• Parties: DACRES v. OREGON RY. & NAV. CO.

20 P. 601

1 Wash. 525

DACRES v. OREGON RY. & NAV. CO.

Supreme Court of Territory of Washington

January 29, 1889

Appeal from district court, Walla Walla county.

Action by George Dacres against the Oregon Railway & Navigation Company for damages for the killing of stock. Judgment for defendant, and plaintiff appeals.

B. L. & J. L. Sharpstein, for appellant.

Dolph, Bellinger, Mallory & Simon, for appellee.

BURKE C.J.

This was an action brought by the appellant against the appellee to recover damages for the killing of an animal by a train of cars on appellee's railway. It appeared upon the trial that the plaintiff was the owner of a farm in Walla Walla county; that the defendant had constructed and was operating its railway through this farm; that defendant's railway was not fenced on either side along its right of way; that the plaintiff was the owner of the animal in question; that the animal entered upon the railway track from the farm, and was killed by a passing train. It was in proof that the value of the animal was from $350 to $500. There was no proof of negligence on the part of the railway company, apart from the fact that the railway was not fenced. The defendant moved for a nonsuit, which the court granted, and, after overruling a motion for a new trial, which was made by the plaintiff, judgment was given for the defendant, from which plaintiff appeals to this court.

The principal question involved in this case is the constitutionality of what is known as the "Railway Fence Law" of 1883. The plaintiff's action must stand or fall with this law; for, if his rights are to be determined by the rules of the common law, he has not made out a case against the company, because he neither proved, nor attempted to prove, any negligence or want of ordinary care on the part of the company or its agents. At common law railway companies were under no obligation to fence their tracks; nor were they liable to an action for damages for the killing of stock except in cases where the stock, being rightfully on adjoining premises, entered upon the railway track, and while there were killed through the negligence of the railway company or its agents. 1 Rorer, R. R. 614, 615; Corwin v. Railroad Co., 13 N.Y 45; 3 Wood, Ry. Law, 1543. But in view of the great extension and multiplication of railways it was long since found necessary to change the common law in this respect, and it has accordingly been changed by statute in most, if not all, the states of the Union, and even in England. The statute on the subject passed in this territory, and the one now in question here, is as follows:

"An act to secure to the owners of live-stock payment of the full value of all animals killed or maimed by railroad trains.

"Be it enacted by the legislative assembly of Washington Territory:

"Section 1. That all railroad companies owning or operating lines of railway within the territory of Washington shall be liable to the owners of all live-stock for the full value of all such live-stock killed or maimed by their passing trains.

"Sec. 2. The value of all animals killed or maimed by railroad companies shall be ascertained and fixed by appraisement as follows, to-wit: The owners of the stock so killed or maimed shall be entitled to the appointment of one appraiser, and the railroad company to the appointment of one appraiser, and if the two so appointed shall not agree, they shall select the third appraiser, and the three appraisers shall fix the value: provided that, in ascertaining and fixing the value of such stock, the appraisers herein provided for shall consider the real market value of such stock, whether for breeding or other purposes.

"Sec. 3. Whenever any live-stock is killed or maimed by the passing locomotive or train of any railroad company, it shall be the duty of the owner of such stock to report the same to the company, and ask the appointment of an appraiser, which appraiser shall be appointed and required to act in making such appraisement within ten days after such notice is given; and if said company fail or refuse to appoint said appraiser, or said appraiser shall fail from any cause to act within ten days from said notice, then the owner of such stock shall appoint an appraiser on his own behalf, and shall report the same to the county auditor, who shall thereupon act as such second appraiser; and, in case the two cannot agree as to the value of the animal or animals killed or maimed, then they shall appoint a third appraiser, and the value assessed by a majority shall be the value of said animal or animals, or value of damage done thereto.

"Sec. 4. The notice required in the preceding section shall be given upon the superintendent of such company for the particular division in which the killing occurred, or to a local business manager, or agent thereof. Such notice shall be in writing, and shall contain the date as near as can be and the place at or near which said stock was killed or maimed, together with the number and kind of the same.

"Sec. 5. As soon as the value of such animals, or the amount of damage done thereto, shall be ascertained, as hereinbefore provided, the amount of such assessment shall thereupon become due and payable, with interest from

date of said assessment at the rate of one per cent. per month, and said amount, together with interests and costs, including attorney's fees, now allowed as costs in the district court, may be recovered by suit in any court having jurisdiction thereof.

"Sec. 6. The appraisers provided for in this act shall be entitled for their services to the sum of two dollars per day, and mileage at the rate of ten cents per mile, which said costs shall be borne equally by both parties.

"Sec. 7. All acts and parts of acts inconsistent with the provisions of this act are hereby repealed.

"Sec. 8. No railroad company shall be liable for stock killed upon their roads when the same is fenced by such company with a good, lawful fence.

"Sec. 9. This act shall take effect and be in force from and after its approval.

"Approved November 28, 1883."

It is conceded in the brief filed by appellant's counsel in this cause, and also by counsel in argument before this court, that sections 2, 3, 4, 5, 6, and 7 of this act are unconstitutional because they deny the right of trial by jury; and of this there can be no question. The territorial legislature has no power to deprive any person or corporation of the right of trial by jury in a common-law action, where the amount involved exceeds $20. 7th Amend. Const. U. S.; Parsons v. Bedford, 3 Pet. 433; Thomas v. Hilton, 3 Wash. T. ---, 17 P. 882. Nevertheless this is clearly what the legislature attempted to do by the system of procedure provided in sections 2, 3, 4, 5, 6, and 7 of this act. The question then arises: Is the whole act void by reason of the unconstitutionality of the sections named? Questions of this character have been much discussed by the courts of this country, and the proper rule of statutory construction in such cases seems now to be well settled. This rule is nowhere more clearly or more concisely expressed than in Judge Cooley's work on Constitutional Limitations, in which it is laid down as follows: "Where, therefore, a part of a statute is unconstitutional, that fact does not authorize courts to declare the remainder void also, unless all the provisions are connected in subject-matter, depending on each other, operating together for the same purpose, or otherwise so connected together in meaning that it cannot be presumed the legislature would have passed the one without the other. *** If, when the unconstitutional portion is stricken out, that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must be sustained." Cooley, Const. Lim. (5th Ed.) 212.

Turning now, to an examination of the statute under discussion, it is plain to be seen that the general object which the legislature had in view in its passage was to enlarge and extend the rights of owners of live-stock as against railway companies, in cases where such stock should be killed or maimed by passing railway trains. The means employed by the legislature in this act, to attain this object, were two-fold: First, by making railway companies liable for the killing or maiming of live-stock so long as the railways are not properly fenced; second, by providing a cheap, simple, and prompt remedy for the enforcement of the rights thus conferred. It is conceded upon all hands, as we have seen, that this second provision is unconstitutional, and, under the rule of construction above mentioned, if these two provisions are so connected in subject-matter or in meaning that it cannot be presumed that the legislature would have passed the one without the other, then both provisions must fall together. This is not, however, our view of the statute. It...