The Indianapolis and Cincinnati Railroad Co. v. Kercheval

• Decision Date: 28 May 1861
• Parties: The Indianapolis and Cincinnati Railroad Company v. Kercheval
• Court: Indiana Supreme Court

16 Ind. 84

The Indianapolis and Cincinnati Railroad Company v. Kercheval

Supreme Court of Indiana

May 28, 1861

APPEAL from the Decatur Common Pleas.

The judgment is reversed, with costs. Cause remanded.

J. S Scobey, for the appellant.

Will. Cumback, for the appellee.

Worden J. Davison, J. was absent.

OPINION

Worden, J.

This was an action brought in the Court of Common Pleas by Kercheval, against the railroad company, to recover the value of three horses killed by the cars of the defendant upon her railroad track, the road not being fenced. The action was based upon the statute of 1853, making railroad companies liable, without negligence, for stock killed or injured by the locomotive, &c. of the company, unless the road is properly fenced, and the act amendatory thereof approved March 4, 1859. There is no charge, or proof, of negligence on the part of the company. It was alleged and proven that three horses were killed in November, 1858. Trial, finding and judgment for the plaintiff for $ 375. The company appeals.

Two questions are presented by the record, and elaborately discussed by counsel on both sides, which may be stated as follows: 1. Are the acts above alluded to constitutional and valid as against this company? 2. Should the amendatory act of 1859, if valid, be construed retrospectively, so as to authorize the present suit?

We will consider these questions in their order.

The appellant was chartered in 1848; but in the case of The N. A. & S. Railroad Co. v. Tilton, 12 Ind. 3, it was held by this Court that railroad companies chartered previously to the passage of the laws in question have no immunity from their operation; that the laws were police regulations which the Legislature had the right to impose upon existing corporations. Whatever doubt there may formerly have been on this subject, it seems now to be settled that such enactments may constitutionally bind companies chartered before the passage of the laws, because they are not considered as impairing the obligation of contracts, or interfering with vested rights. Red. on Railways, p. 549, and notes. In the case of Thorpe v. Rutland and Burlington Railway, 27 Vt. 140, cited by Judge Redfield, the subject is very fully considered, and the conclusion arrived at that the power to impose such laws was a police power, which resides in the law-making power in all free States, and of which the Legislature can not divest itself even by an express grant to any private or public corporation. "This police power of the State," say the Court, "extends to the protection of the lives, limbs, health, comfort, and quiet of all persons, and the protection of all property within the State. According to the maxim sic utere tuo ut alienum non laedas; which being of universal application, it must, of course, be within the range of legislative action to define the mode and manner in which every one may so use his own as not to injure others."

There is a provision in the appellants' charter, however, upon which she relies to exempt her from the operation of these statutes, which, perhaps, should be noticed. It is as follows: "When said corporation shall have procured a right of way as herein before provided, they shall be seized in fee simple of the right to said land, and shall have the sole use and occupation of the same; and no person, body corporate or politic, shall in any way interfere therewith, molest, disturb, or injure any of the rights and privileges hereby granted, or that would be calculated to detract from, or affect, the profits of said corporation."

We see little or nothing in the above section of the charter, after providing for the title and occupancy of the land, except a legislative assurance that the rights and privileges thereby granted should not be interfered with; that nothing should be done which would detract from or affect the profits of the corporation. All these would probably have been the rights of the corporation without any such express legislative declaration; on the principle that the charter is an inviolable contract, except so far as the power of amendment or alteration is reserved. The statutes under consideration do not interfere with, or violate, that provision of the charter which stipulates that nothing shall be done which would detract from or affect the profits of the corporation. How a requirement that the company shall fence her road or pay for stock killed upon it, can detract from, or affect the profits of the corporation, the counsel for the appellant has not informed us. We suppose, from the language of the charter, that the Legislature intended to provide that nothing should be done to interfere with the enjoyment by the company of her corporate franchises; nothing to prevent her from using her road and making the profits to be derived therefrom. It certainly was not intended by the provision in question to tie up the hands of a future Legislature, so that no provision could be made by law requiring the company, for the safety of the public, to furnish safe rolling machinery, or even to adopt such new improvements as experience may have shown to be necessary for, and conducive to, safety in traveling by railroad, although this could only be done at an expense to the company. Nor was it intended to prevent a future Legislature from imposing penalties upon the corporation for a breach of laws regulating the manner of running trains upon the road, although such penalties might "detract" from the profits.

Such construction would render nugatory, so far as this corporation is concerned, the statute authorizing an action to be brought against an individual or a corporation, for the death of a person caused by the wrongful act of another, as the damages would "detract" from the profits of the corporation. Vide 6 Ind. 146.

We find nothing peculiar in the charter of the appellant which prevents the Legislature from requiring her, in common with other railroad companies, to pay for the killing of animals upon the road, in default of keeping it fenced. The cost of making and keeping in repair the fence, or the amount paid in the way of damages for stock killed, does not, in our opinion, "detract from, or affect the profits," of the corporation in the sense meant by the terms of the charter. Hence, the law is with the appellee upon the first question. The Newcastle and Richmond Railroad Co. v. The Peru and Indianapolis Railroad Co., 3 Ind. 464.

We come now to the second question.

The act of 1853 (Acts, 1853, p. 113) authorized suit to be brought, under the provisions thereof, before a justice of the peace only. The Evansville and Crawfordsville Railroad Co. v. Ross, 12 Ind. 446. Hence, the right of recovery was limited to $ 100, the extent of the justice's jurisdiction. The Madison, &c. Railroad Co. v. Whiteneck, 8 Ind. 217. The amendment (Acts 1859, p. 105) provides, that where the value of the animal or animals killed shall exceed $ 50, the party may prosecute his claim before a justice, or in the Common Pleas, or Circuit Court, and recover the value of the animal or animals destroyed, or the injury inflicted. Now, this amendment does two things. It gives the party a different remedy from the one furnished by the old statute, when the property exceeds $ 50 in value; that is, it gives him a choice of courts. It also gives him an additional right, where the property exceeds $ 100 in value; for now he can recover the value of the property, by suing in the Common Pleas or Circuit Court, whereas, under the old law, he could only recover $ 100, whatever may have been the value of the property. The amendment then, in one sense, confers an additional right not given by the old statute; and we must determine whether it was intended as a new rule for future cases, or whether it was intended to be retroactive, and apply to animals killed before its passage.

The animals sued for were killed...