Jolliffe v. Brown

• Decision Date: 02 March 1896
• Citation: 44 P. 149,14 Wash. 155
• Parties: JOLLIFFE v. BROWN ET AL.
• Court: Washington Supreme Court

44 P. 149

14 Wash. 155

JOLLIFFE v. BROWN ET AL.

Supreme Court of Washington

March 2, 1896

Appeal from superior court, King county; R. Osborn, Judge.

Action by N. T. Jolliffe against Thomas Reeves Brown and another, as receivers of the Seattle, Lake Shore & Eastern Railway Company. From a judgment for defendants, plaintiff appeals. Reversed.

Wilshire & De Steiguer, for appellant.

Carr &amp Preston and W. R. Bell, for respondents.

SCOTT, J.

This was an action to recover for the value of a cow killed by the defendant's train, and is brought under the provisions of the act, approved March 15, 1893 (Laws 1893, p. 418), making railway companies operating unfenced lines of railroad liable for double the value of stock killed, and double damages are sought in this case, and also an attorney's fee. The first, third, and fourth sections of the act are involved in this controversy. The lower court held the act unconstitutional, and rendered a judgment against the plaintiff, whereupon this appeal was taken. A number of questions have been argued relating to the constitutionality of the sections specified, and as to whether, if one or more of them are unconstitutional, any part of the act can be considered sufficiently independent thereof to stand.

The respondents first attack section 3. This section is as follows: "When any stock shall be killed or injured by collision with a railroad train or with a railroad engine it shall be the duty of the engineer and fireman of the engine within forty-eight hours thereafter to report the accident to the division superintendent of the road, stating the manner of the accident, place of its occurrence and the name of the owner of the stock killed or injured, if known, and immediately upon the receipt of such report it shall be the duty of such division superintendent to transmit the same to the owner of the stock, if known, and if not known to cause the said report to be filed with the agent of the company nearest the place of the accident, to be by him kept at his office for the inspection of the public. Failure on the part of the officers or agents in this section mentioned to comply with the requirements of this section, shall subject the person or corporation owning or operating the railway to a penalty of double the market value of the stock injured or killed, to be recovered by the owner thereof in an action in the superior court of the county." It is first contended that this section is void, on the ground that it is not embraced within the title of the act, which is as follows: "An act to protect the owners of stock from injury thereto by moving railway trains, declaring the law of negligence and providing for a reasonable attorney's fee in all actions for such injury." It is practically conceded, however, that, if the act is considered as a whole the title is comprehensive enough to embrace all its provisions; but if, as contended by the respondent, the other sections should be stricken out as unconstitutional, it is argued that there would be no reference in the title of the act sufficiently broad to include the provisions of section 3. It is conceded that the principal purpose of the title is to advise legislators of the nature of the legislation contained in the bill, and it seems to us that, if the title was comprehensive enough to embrace the provisions of section 3, conceding the entire act constitutional, this purpose has been fully served, although certain sections should thereafter be held unconstitutional, and we are of the opinion that this objection is not tenable. Other objections urged against the constitutionality of this section are that it enables the plaintiff to recover double the market value of the stock killed, and fixes an absolute responsibility where the notice is not given, and it also assumes that the company would have knowledge of such killing in all cases. It will be observed that this section, standing alone, imposes an obligation upon the railroad company, in case notice is not given, to pay double the value of the stock injured or killed whether the right of way is fenced or unfenced, and it makes no exception of cases where the owner of the stock has knowledge of such killing at the time although the notice is not given. The sole duty imposed upon the company under this section is the giving of the notice specified, and, in case of a failure to do so, willfully or otherwise, it is mulcted in damages in double the value of the stock killed, regardless of whether the company was at fault or not in killing it, or how much at fault the owner of the stock may have been. We think the weight of authority is against the constitutionality of such legislation. A somewhat similar question was decided by this court in Navigation Co. v. Smalley, 1 Wash. 206, 23 P. 1008. See, also, Zeigler v. Railroad Co., 58 Ala. 594, and Railway Co. v. Outcalt (Colo. App.) 31 P. 177. Legislation requiring railroad companies to fence their tracks has been generally sustained as a legitimate exercise of the police power of the state, on the ground that it tends to promote the safe operation of trains and to the safety of the traveling public. It has been said that the police power of a state extends to the protection of the lives, limbs, health, comfort, and quiet of all persons, and the protection of all property within the state, and to that end persons and property are subjected to many restraints and burdens in order to secure the general comfort, health, and...