Pennsylvania Co. v. Dunlap

• Decision Date: 15 October 1887
• Citation: 13 N.E. 403,112 Ind. 93
• Parties: Pennsylvania Co. and others v. Dunlap.
• Court: Indiana Supreme Court

112 Ind. 93

13 N.E. 403

Pennsylvania Co. and others

v.Dunlap.

Supreme Court of Indiana.

October 15, 1887.

Appeal from circuit court, Johnson county.S. Stansifer, for appellants. Miller & Barnett and S. C. Brown, for appellee.

Zollars, C. J.

It is conceded by the pleadings that appellee's animal was killed upon appellant's track by a train of its cars, within the limits of an incorporated town “laid out and platted into lots and blocks.” Negligence is not charged; nor is it contended that the railway company might not have fenced its right of way at the place where the animal went upon the track and was killed. Appellee's claim is that appellants are liable under the statutes in relation to fencing railway tracks by railway companies. It is conceded by counsel for appellants that, unless the act of April 13, 1885, (Acts 1885, p. 224,) repealed prior laws, (Rev. St. 1881, § 4025 et seq.,) and thus changed the duties and liabilities of railway companies in relation to fencing their tracks within such portion of cities and incorporated towns and villages as are laid out and platted into lots and blocks, and through uninclosed and unimproved lands, the railroad companies are liable in this case. The case, therefore, turns upon the question as to whether or not the act of 1885 wrought such changes. The first section of the act provides that any railroad corporation, lessee, assignee, receiver, or other person or corporation running, controlling, or operating, or that may hereafter construct, build, run, control, or operate, any railroad into or through this state shall, within 12 months from the taking effect of the act, etc., build and thereafter maintain fences, etc., on both sides of such railroad throughout its entire length, except at the crossings of public roads and highways, and within such portions of cities and incorporated towns and villages as are laid out and platted into lots and blocks, and except where the road runs through unimproved and uninclosed lands. It is further provided that when such lands become improved and inclosed on three sides, the railroad company, etc., shall build and maintain a fence along its right of way. And still further it provides that such company, etc., shall construct and maintain barriers and cattle-guards at all public roads and highway crossings, and that, on failure to perform the requirements of the act, the railway corporation or person operating the road, shall be liable for all damages which may be done by the agents, employes, engines, or cars of such corporation or person operating the same to any cattle, horses, etc., thereon. The second section provides that, if the railroad company, etc., shall fail to fence its track as in the first section required, the owner of land abutting on the right of way of the railroad company may, after a prescribed notice to the railroad company, etc., construct the fences and cattle-guards, and collect from the railroad company, or person operating the road, the reasonable value of such fences and cattle-guards. The third section provides that, if the railroad company, etc., shall fail to keep the fences and cattle-guards in repair, the owner of land abutting on the right of way, after prescribed notice to the railroad company, etc., may repair the same, and collect from the company, etc., the value of such repairs. The fourth section is as follows: “Nothing in this act contained shall in any manner affect or change the liability of railroad corporations or of the assignees, lessees, or receivers of such corporations, for stock killed or injured upon their railroads; but such liability shall exist and be governed by laws now in force, the same as if this act had never been passed.” This section 4, we have concluded, was intended to continue the prior statute in force, (section 4025 et seq., Rev. St. 1881,) and was designed as a declaration of the legislative intention in that regard.

The important question, then, is, how far may it or does it do so? If, in any particular, it is impossible for both statutes to remain in force,-if, in other words, to continue any portion of the prior statute in force will destroy any portion of the act of 1885, it must be held that, to that extent, the prior statute is not in force, notwithstanding the declaration in section 4 that it shall remain in force. Deisner v. Simpson, 72 Ind. 435. On the other hand, repeals of statutes by implication are not favorites of the law, and will take place only to the extent that the new law is in irreconcilable conflict with the prior law.

It was held in the case of Blain v. Bailey, 25 Ind. 165, that “it is a maxim in the construction of statutes that the law does not favor a repeal by implication, and it has accordingly been held that where two acts are seemingly repugnant they must, if possible, be so construed that the latter may not operate as a repeal of the former.” And it was said that, in pursuance of that maxim, it has been held that an act is not repealed by implication when the legislature had no intention to repeal it; citing Tyson v. Postlethwaite, 13 Ill. 727.

In the case of Coghill v. State, 37 Ind. 111, this court quoted with approval the following from Mr. Sedgwick's work on Statutory and Constitutional Law: “So, in this country, on the same principle, it has been said that laws are presumed to be passed with deliberation, and with full knowledge of all existing ones on the same subject, and it is therefore but reasonable to conclude that the legislature, in passing a statute, did not intend to interfere with or abrogate any prior law relating to the same subject-matter, unless the repugnancy between the two is irreconcilable, and hence a repeal by implication is not favored. On the contrary, courts are bound to uphold the prior law, if the two acts may well subsist together.” See, also, City of Evansville v. Summers, 108 Ind. 189, 9 N. E. Rep. 81, and cases there cited. And so, as said in the case of Yost v. Conroy, 92 Ind. 472, it is competent for the legislature to declare that former acts shall not be deemed repealed, and when this declaration is made, courts will carry it into effect wherever it can possibly be done without disregarding the provisions of the latter act. The legislature has in several instances passed laws upon particular subjects, and at the same time declared by the same enactment that prior laws upon the same subject should not be repealed, but continued in force. In each instance this court has so far upheld the legislation as to hold both acts to be in force, where to continue the former act in force would not destroy the latter; and has also held the former act to be in force, so far as the continuing of it in force would not destroy the whole or any portion of the latter act. Such acts have been passed and upheld, in relation to drains and gravel roads. Yost v. Conroy, supra; Robison v. Rippey, 12 N. E. Rep. 141, and cases there cited; Deisner v. Simpson, supra.

It has been said that repeals by implication rest upon the principle that the enactment of a new law covering the whole subject-matter of a prior law is an expression of an intention on the part of the legislature to repeal the prior law; but that it cannot be said that the passage of such subsequent law is the expression of such intention, where it is positively declared that the latter act shall not repeal the prior act upon the same subject. Robison v. Rippey, supra. And hence, as we have stated, it is the duty of the courts to uphold both statutes, if possible, and thus give effect to the expressed intention of the legislature. May that be done here to any extent, and if so, how far?

The title of the act of 1863, (Acts 1863, p. 25, Rev. St. 1881, § 4025 et seq.,) is, “An act to provide compensation to the owners of animals killed or injured by the cars, locomotives, or other carriages of any railroad company, and to enforce the collection of judgments rendered on account of the same.” The act provides in detail for the commencement and prosecution of cases against railway companies for the injury and killing of animals, and provides a specialand somewhat summary method of collecting judgments obtained in such actions. Section 1, as amended in 1887, (Rev. St. 1881, § 4025,) provides that the company, lessee, assignee, receiver, or other person or corporation running, controlling, or operating the railroad, shall be liable, jointly and severally, etc. Another section provides that the act shall not apply to any railroad securely fenced in, and such fence properly maintained by such company, etc. As said in the recent case of Pennsylvania Co. v. Spaulding, ante, 268, that act did not, and, if still in force, does not, positively enjoin upon railway companies the duty of fencing their tracks, but made them liable, and, if in force, still makes...