The Cairo v. Warrington

• Decision Date: 30 June 1879
• Citation: 92 Ill. 157,1879 WL 8493
• Parties: THE CAIRO AND ST. LOUIS RAILROAD COMPANYv.FRANCES E. WARRINGTON.
• Court: Illinois Supreme Court

92 Ill. 157

1879 WL 8493 (Ill.)

THE CAIRO AND ST. LOUIS RAILROAD COMPANY

v.FRANCES E. WARRINGTON.

Supreme Court of Illinois.

June Term, 1879.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of St. Clair county; the Hon. WILLIAM H. SNYDER, Judge, presiding.

Messrs. JUDD & WHITEHOUSE, for the appellant.

Mr. W. WINKELMAN, for the appellee.

Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:

This action was brought before a justice of the peace, to recover double the value of a cow killed by the engine of the railroad company in 1875. Plaintiff recovered a judgment before the justice for $100, and the company appealed to the circuit court, where a trial was had with a like recovery. It appears that the judgment was for double the value of the property killed. The case is brought here on appeal, and a reversal is urged.

It is claimed that the law giving double the value of the property destroyed as the damages that plaintiff may recover, is unconstitutional. The law involved took effect on the 1st day of July, 1874. (See Rev. Stat. 1874, sec. 1, p. 807.) It, in substance, provides, that every railroad company shall, within six months after its road is open for use, erect and maintain fences on both sides of its road, as therein provided; and a failure to comply with the requirement renders such railroad company liable for double the amount of the damage inflicted by the agents, engines or cars of such corporation on cattle, horses, sheep, hogs, or other stock thereon. The act, however, contains an exception which exempts these companies from fencing in incorporated towns, villages, at road crossings, etc.

As far as railroad companies under this section of the law are concerned, the decision of this question is of but little consequence beyond the present case, as the General Assembly repealed it at the session of 1877. But it possesses importance in reference to many similar enactments found in our statute books. In our form of government its powers are distributed amongst different classes of magistracy. But the supreme power of enacting laws for the government of the people is conferred upon and confided to the General Assembly, and the power of that body in enacting laws is only limited by constitutional restriction. It is the generally received doctrine, that the General Assembly may enact any or all laws on any and every subject, unless restricted by the delegation of the power to the General Government, or its power has been limited by the Federal or State constitution; and in passing laws for the government of the people, that body has the same power to select the means for compelling their observance by sanctions they may impose. And unless the power to pass this law has been prohibited, or the sanction unauthorized, it must be upheld and enforced.

That the General Assembly may, as a police regulation, compel these companies to fence their tracks, is fully established by repeated decisions of this court. It is, however, urged, that the imposition of this penalty contravenes the second section of the “bill of rights” in our constitution, which provides that “no person shall be deprived of life, liberty or property without due process of law;” that this penalty takes the property of the company and gives it to the owner of the property destroyed; that when he receives the value of his property he is fully compensated for his loss, and that all over that amount is taken from the company and given to him without due process of law, and this being the case, the law, to that extent, is void.

The power to impose fines, penalties and forfeitures for a violation of or the non-observance of statutory requirements, is believed to be coeval with the common law itself. The power has been at all times exercised by the British parliament, and has been employed by the General and State governments since their foundation, as a means of enforcing obedience. The power was, it is believed, exercised by the colonies before they became States, and was then and is now considered as being in the due course of law. The exercise of this power is not new, but was in general practice at the time the first of our constitutions of government were adopted, and had been for centuries before; and the exercise of that power, so long and so generally recognized, has never been challenged, so far as our knowledge extends. We therefore regard the power of the General Assembly to impose fines, penalties and forfeitures as undeniable, especially as a police regulation. And this may be done as well on corporate bodies as on individuals.

The statute books of Great Britain and of the various States of the Union abound with such enactments. They give popular or qui tam actions to recover forfeitures for the omission or violation of duty. In some cases the penalty is given to the informer, in others one-half to the government and the other half to the informer, or one-half to the informer and the other half to some charity or specific fund. We are aware of no case since the organization of our government, State or Federal, which has questioned the power of the legislature to thus dispose of a penalty or forfeiture. All must concede...