IN Birmingham Min. R. R. Co. v. Parsons, 13 So. Rep. 602 (Ala. July, 1893), the court (HARALSON, J.) said: "In Zeigler v. Railroad Co., 58 Ala. 594, we had occasion to pass upon the validity of an Act which provided: That from and after the passage of this Act, all corporations, person or persons, owning or controlling any railroad in this State, shall be liable for all damages to live stock, or cattle of any kind, caused by locomotive or railroad cars.' It was there said of that statute, that it dispenses with all proof of the wrong it seeks to redress. 'It declares that the railroad corporation shall make reparation for an injury inflicted in the authorized prosecution of its lawful business, without a semblance of fault, negligence, or want of skill in its employees, an injury which no human prudence or foresight could prevent and yet the statute will not allow the railroad to exculpate itself by proof of the highest qualifications and most watchful vigilance. This falls short of due process of law. . . . We can perceive of no reason, in law or morals, for holding them [railroad companies] to a stricter measure of accountability for inevitable misfortunes than would be exacted from natural persons for injuries which result from unavoidable accident, or accidents which no human prudence can foresee or avert.' This case, in these utterances, has been many times approved by us, and other courts. Wilburn v. Mc Calley, 63 Ala. 443; Mead v. Larkin, 66 Ala. 88; Davis v. State, 68 Ala. 63; Green v. State, 73 Ala. 32; Railroad Co. v. Hembree, 85 Ala. 485, 5 South. Rep. 173. Under the influence of these decisions, we are constrained to hold that the second section of said Act, in that it imposes an absolute liability on railroad companies, irrespective of compliance on their part with the duties prescribed in its first section, and without any fault on their part, is in violation of constitutional right. The first section, however, without reference to the second, and independently of it, prescribes the duty on these companies to put in cattle or stock guards upon their respective lines of roads, and keep the same in order,' and for a failure to do so they are liable to the party injured by their neglect. To prescribe the duties imposed by this section, we have seen, is a valid exercise of the power of the State. It may be maintained as such, separate from the second section. 3 Brick. Dig. p. 128, § 28; Ex parte Covert, 92 Ala. 97, 9 South. Rep. 225. And 'every person, while violating an express statute, is a wrongdoer, and as such is, ex necessitate, negligent in the eye of the law, and every innocent party injured thereby is entitled to a civil remedy therefor;' and when a duty is required, and no remedy provided for its breach, the remedy is by common-law procedure. Grey v. Trade Co., 55 Ala. 403; Lowndes Co. v. Hunter, 49 Ala. 507; Autauga Co. v. Davis, 32 Ala. 703."1

6

1 But see McCandless v. Richmond, &c. R. Co., 16 S. E. Rep. 429 (So. Ca. Dec., 1892). - ED.

STATE v. DIVINE.

SUPREME COURT OF NORTH CAROLINA. 1887.

[98 N. C. 778.]

THIS was a criminal action, tried before CLARK, JUDGE, at January Term, 1887, of Robeson Superior Court.

The prosecution of the defendant, commenced by warrant, issued by a justice of the peace of Columbus County, and tried by him, charges the defendant, as superintendent of the Wilmington, Columbia, and Augusta Railroad Company, with a personal criminal responsibility, for the running over and killing two cows, the property of J. C. Powell, the prosecutor, by a train moving over its track, on May 19th, 1886. The proceeding is instituted under the Act of 1880, ch. 13, which is brought forward, and constitutes the four last sections, 2327, 2328, 2329, 2330, of chapter 10 of vol. II. of The Code. [These sections are placed in a note.1]

1 The enactment is in these words:

"When any cattle, horses, mules, sheep or other live stock shall be killed or injured by any car or engine running on any railroad in the counties of Columbus, New Hanover, Brunswick, Bladen, Robeson, Richmond, Anson, Union, Gaston, Lincoln, Cleveland, and Burke, it shall be a misdemeanor; and the president, receiver, and superintendent of such road, and also the engineer and conductor in charge of the train or engine by which such killing or injury is done, may be indicted for such killing or injury: Provided, if the parties indictable under this section shall, within six months after the killing as aforesaid of any stock mentioned in this section, and before any indictment is preferred or warrant issued, pay the owner of such stock as may be killed his charges for said stock, or in the event the charges are too high, or thought to be so, such sum or sums as may be assessed by three commissioners, — one to be chosen by the party whose stock is killed or injured, a second by the party accused of killing the same, and the third by the two commissioners chosen as above indicated, who shall meet at some place in the county where the stock is killed or injured, to be selected by the parties interested, within thirty days after they are chosen and accepted, such payment shall be a bar to any prosecution under this section; and the decision of two of said commissioners shall be final for the purposes of this section: Provided further, if any person or persons liable to indictment under this section, shall within the time prescribed, propose to the party endamaged to refer the matter of damages in the manner hereinbefore indicated to three commissioners, and the party endamaged shall refuse or decline such proposition, such refusing or declining shall be a bar to any prosecution under this section: Provided also, if the party endamaged shall, at any time before the indictment is preferred, or warrant issued, directly or indirectly, receive any sum in full compensation of his damages, such compensation shall be a bar to any prosecution under this section; and if any compensation be so received after indictment is preferred or warrant issued, or if after said time the party accused shall pay or tender to the owner of the stock killed the value of the same, as decided by the commissioners, as above provided, — in either case the prosecution shall go no further, and the accused shall be charged only with accrued cost."

The second section prescribes the punishment by "fine not exceeding fifty dollars, or imprisonment not longer than thirty days."

The third provides that, "when stock is killed or injured by a running engine of

Upon an appeal to the Superior Court from the judgment rendered against the defendant by the justice of the peace, a special verdict was found by the jury in these words: "The cattle were killed by the cars of the Wilmington, Columbia, and Augusta Railroad Company as alleged, under the following circumstances, to wit: That at the time of the killing it was a bright moonlight night, about 10 P. M.; that the train was on schedule time, running at the rate of forty miles per hour; that the cattle could have been seen at least one hundred yards ahead of the train; that the cattle were not seen by the engineer until struck by the train; that the cattle were the property of J. C. Powell; that the corporation owning the road is the same which was chartered by the Act of March 1st, 1870, as the Wilmington and Carolina Railroad Company; that the defendant is the superintendent of the said Wilmington, Columbia, and Augusta Railroad Company; that the said company refused to refer the matter to arbitration; that the defendant, J. F. Devine, was not on the train that did the killing, and was in no way connected with said killing."

The court being of opinion that the defendant was not guilty, adjudged that he go without day, and the Solicitor appealed. The Attorney-General, for the State. Mr. Geo. Davis (by brief), for the defendant.

SMITH, C. J. . . . The objections to the validity of the legislation are pointed out and forcibly presented in the brief of defendant's counsel, with an array of numerous rulings in their support, as follows: —

1. In its whole structure and manifest purpose it creates out of a private civil injury a public prosecution, to subserve the interests of the injured party, and to be put in operation or arrested at his instance and election. 2. It assumes a criminal liability to have been incurred by an officer of a railroad corporation, without his concurrence in the act of the subordinate, and, assuming negligence and guilt, puts him on the defensive, and requires him to repel the presumption, when he in no manner participated in what was done. 3. It undertakes to drive the accused to an adjustment of the claim for damages by assenting to a reference to arbitration, and to deprive him of his constitutional right to be tried in the courts of the State-tribunals provided under the Constitution and by a properly constituted jury, acting under a judge. 4. It places at the election of the claimant the institution of the prosecution, which otherwise is suspended, by making a proposition for a reference. 5. It discriminates, without apparent difference, between counties and railroads, giving partial operation to a law, general in its provisions and equally applicable to all, by which the same act is rendered criminal in one locality which is not so in another, and raising

car in the counties enumerated, it shall be prima facie evidence of negligence on the trial of the indictment."

The fourth section declares that the indictment against the officers of railroad companies shall not lie "until a proposition to refer the matter has been proposed by the party claiming that he has been damaged."

out of an act done by one employee a presumption of guilt against another employee, who did not, in any way, participate in it.

We do not perceive any difficulty in the Act of 1856-57 (The Code, § 2326) raising a presumption of negligence on the part of the company from the fact of killing or injuring stock, in a civil suit for reparation, brought within six months thereafter, as is explained in the opinion in Doggett v. Railroad, 81 N. C. 459, and whose validity has not been questioned in the numerous cases which have been before the court. But the present case passes far beyond the limits of that enactment, in fastening a criminal responsibility, not upon the principal whose agent does the injury, but upon a co-employee in the same general service, and this not upon all, but specially upon railroads that run through or in particular counties.

We do not say that there may not be local legislation, for it is very common in our statute-books, but that an act divested of any peculiar circumstances, and per se made indictable, should be so throughout the State, as essential to that equality and uniformity which are fundamental conditions of all just and constitutional legislation.

Looking at the indictment, it will be seen that the only material allegations are, that the prosecutor's cattle were killed by a moving train on the road of the company of which the defendant is superintendent, without connecting him with the act; and scarcely more definite is the special verdict.

Do these words impute crime, and upon mere proof of these facts is the charge established, and must the defendant be convicted unless he repels the negligence which the statute presumes in the subordinate employed in managing the train? The very question involves an answer, unless all the safeguards thrown around one accused of crime are disregarded, and he left without their protection. The defendant was not on the train when the accident occurred, and has no personal relation to it, except such as results from his position as a higher officer of the road, making the offence one by construction. Judge Cooley, in his work on Constitutional Limitations, at page 309, referring to a trial for criminal offences of different grades, uses this impressive language: "The mode of investigating the facts, however, is the same in all, and this is through a trial by jury, surrounded by certain safeguards, which are a well-understood part of the system, and which the government cannot dispense with," meaning, as we understand, that the charge must go before the jury, and the guilt of the accused proved to them, with the presumption of innocence until this is done.

In Cummings v. Missouri, 4 Wall. 328, Mr. Justice Field, referring to certain enactments in that State, says: "The clauses in question subvert the presumption of innocence, and alter the rules of evidence which, heretofore, under the universally recognized principles of the common law, have been supposed to be fundamental and unchangeable." "But I have no hesitation in saying," remarks Selden, J., in Wynehamer v. The People, 13 N. Y. 446, "That they (the legislature)

cannot subvert that fundamental rule of justice which hoids that every one shall be presumed innocent until he is proved guilty."

The case is not analogous to that wherein for civil purposes negligence is inferred from the fact of killing stock, and requiring matters in excuse to be shown, which lie peculiarly within the knowledge of the agent who perpetrated the act, or controls the running of the engine when it is done; nor to the statute (The Code, § 1005) which makes the having about the person one of the deadly weapons forbidden to be carried, or worn, prima facie evidence of concealment; for this is the sole personal act of the party, of the consequences of which he is aware, and because a small weapon, if concealed, would be almost impossible of proof direct, while the possession of such is intimately and naturally connected with the secret carrying, and furnishes strong evidence of the fact.

I San Manteo v. Railroad, 8 Am. & Eng. R. R. Cases, 10, in construing the Fourteenth Amendment to the Constitution of the United States, it is said: "Whatever the State may do, it cannot deprive any one within its jurisdiction of the equal protection of the laws. And by equal protection of the laws is meant equal security under them, by every one on similar terms in his life, his liberty, his property, and in the pursuit of happiness."

Substantially the same doctrine is announced, and by the same eminent judge (Mr. Justice Field), in Barbier v. Connolly, 113 U. S. 31, in which he adds, "that no greater burdens should be laid upon one than are laid upon others in the same calling and condition."

From what has been said, it results that the legislation in question has not the sanction of the Constitution, and cannot be upheld as within the competency of the law-making power to enact.

We have gone into this inquiry in order to settle the question of the validity of the statute in the application to the case before us, and because it will practically put an end to the litigation. But for the defect in the special verdict we are compelled to direct that it be set aside for further proceedings in the court below.

Reversed and special verdict set aside.

OHIO AND MISSISSIPPI RAILWAY COMPANY v. LACKEY. SUPREME COURT OF ILLINOIS. 1875.

[78 Ill. 55.]

APPEAL from the Circuit Court of Marion County; the HoN. SILAS L. BRYAN, JUDGE, presiding. Mr. H. P. Buxton, for the appellant. MR. JUSTICE BREESE delivered the opinion of the court:

This is an appeal from the judgment of the Marion Circuit Court,