CHAPTER 71.-QUO WARRANTO AND MANDAMUS.

4007 SECTION 1. [Quo warranto by private person.] When any citizen of this state shall claim any office which is usurped, invaded, or unlawfully held and exercised by another, the person so claiming such office shall have the right to file in the district court an information in the nature of a quo warranto, upon his own relation, and with or without the consent of the prosecuting attorney, and such person shall have the right to prosecute said information to final judgment; Provided, He shall have first applied to the prosecuting attorney to file the information, and the prosecuting attorney shall have refused or neglected to file the same. [R. S., 279. G. S., 871.]

4008 SEC. 2. [Mandamus by private person.] Any private person may, on his own relation, sue out writs of mandamus without application to the prosecuting attorney.

4009 SEC. 3. [Costs.] Persons suing out either of the writs under the provisions of this chapter shall be liable to costs as in civil cases.

4010 SEC. 4. [Supreme court.] Proceedings in the supreme court in applications for mandamus shall be regulated by chapter 3 of title 18 of the code of civil procedure, in applications by quo warranto by title 23 of said code, and in applications for habeas corpus by chapter 25 of the criminal code; and all other provisions of law relating to those remedies shall be applicable to said proceedings when had in the said court exercising its original jurisdiction. [1867, § 1, 47.]

4011 SEC. 5. [District court.] The several district courts shall have and exercise concurrent jurisdiction with the supreme court in the several kinds of action enumerated in the first section of this act, and the mode of proceeding and the practice relating thereto shall be the same as that obtaining in the supreme court under the provisions of this act and as now provided by law. [Id., § 2.]

CHAP. 71. Chap. XLII, R. S., 279. Chap. 60, G. S., 871.

SEC. 1. The courts are not deprived of jurisdiction in cases of quo warranto or mandamus by the provisions of the election law on contested elections. 4 Neb., 514. 11 Id., 106. An information filed by consent of the district attorney, but not officially signed by him, held, no error. 4 Neb., 512. An officer required to give an additional bond would not be excluded from performance of his duties because he had neglected to do so, until a demand first made in that behalf. 1 Neb., 202. See note to sec. 645, civil code. Jurisdiction in quo warranto. 13 Neb., 529. Attorney general proper officer to commence proceedings in supreme court. 15 Neb., 444. In a proceeding against a corporation to forfeit its franchise and oust it from the same for misuser and non-user thereof, the corporation is the only necessary party defendant. 24 Neb., 156. Relator must show right to office. 29 Neb., 198. Provisions of election law cumulative. 28 Neb., 438. Quo warranto v. Governor. 31 Id., 682. Relator holding. over, abandons action when he does the office. 34 Id., 434.

SEC. 2. Mandamus v. Governor, 31 Id., 82; v. Speaker, Id., 169.

SEC. 4. See secs. 615-656, code. Proceedings in supreme court are regulated by rules, which see. Writ may be served in any county. 28 Neb., 438.

SECS. 4, 5. "An act to regulate the prosecution of cases of original jurisdiction in the supreme court." Laws, 1867, 47. G. S., 254. Took effect June 10, 1867. The reference to chap. 25, criminal code, refers to criminal code of 1866, since repealed. But see secs. 353-376 of criminal code now in force, post.

SEC. 5. See note to sec. 57, chap. 19. Issues should be tried as in civil action. Title to office cannot be tried by mandamus. Certificate of appointment may be inquired into. 36 Id., 401. Where private rights and liabilities only are involved, mandamus should be instituted in district court. 38 Id., 33, 238. Exception to rule. 38 Id.,

510

CHAPTER 72.-RAILROADS.

ARTICLE I.-DUTIES AND LIABILITIES.

4012 SECTION 1. [Fencing.] That every railroad corporation whose lines of road or any part thereof is open for use shall, within six months after the passage of this act, and every railroad company formed or to be formed, but whose lines are not now open for use, shall, within six months after the lines of such railroad or any part thereof are open, erect and thereafter maintain fences on the sides of their said railroad, or the part thereof so open for use, suitably and amply sufficient to prevent cattle, horses, sheep, and hogs from getting on the said railroad, except at the crossings of public roads and highways, and within the limits of towns, cities, and villages, with opens, or gates, or bars at all the farm crossings of such railroads, for the use of the proprietors of the lands adjoining such railroad, and shall also construct, where the same has not already been done, and hereafter maintain at all road-crossings, now existing or hereafter established, cattle guards suitable and sufficient to prevent cattle, horses, sheep, and hogs from getting on to such railroad, and so long as such fences and cattle guards shall be made after-the time herein before prescribed for making the same shall have elapsed, and when such fences and guards, or any part thereof, is not in sufficiently good repair to accomplish the objects for which the same is herein prescribed, is intended, such railroad corporation and its agents shall be liable for any and all damages which shall be done by the agents, engines, or trains of any such corporation, or by the locomotives, engines, or trains of any other corporations permitted and running over or upon their said railroad, to any cattle, horses, sheep, or hogs thereon; and when such fences and guards have been fully and duly made, and shall be kept in good and sufficient repair, such railroad corporation shall not be liable for any such damages, unless negligently or wilfully done; Provided, however, That any person, company, or corporation owning land adjoining the right of way of any railroad company in this state, and not within the limits of any town, village, or city, and intending to enclose his or their land, or any part thereof, that adjoins such right of way or railroad, with a fence, such person or the secretary of such company or corporation, by direction therof, may notify in writing such railroad company of such intention, and request such railroad company to build a lawful fence as described in this section on the line between their railroad and the land intended to be enclosed. Such notice shall definitely specify two points on such line between which points such fence is requested to be erected, and describe the field intended to be enclosed. The railroad company shall, within six months after receiving such notice, cause to be erected the fence required by such notice, and in case of a failure so to do, the party so giving notice as aforesaid may cause such fence to be erected at a reasonable cost, and collect the amount thereof from the railroad company so neglecting to erect the fence. [Amended 1883, chap. LXIII.]

4013 SEC. 2. [Liable for stock killed and injured.] Any railroad company hereafter running or operating its road in this state, and failing to fence on both sides thereof, against all live stock running at large at all points, shall be abso

CHAP. 72, ART. I. "An act to define the duties and liabilities of railroad companies." Laws, 1867, 88. G. S., 201. Took effect June 22, 1867. SEC. 1. Act of 1883 has no repealing clause. Former law did not contain the proviso. Sufficiency of fence. 26 Neb., 159. Cattle guards not required at private crossings. 30 Neb., 318. Depot grounds outside of city limits. Id., 686. 62 N. W. R., 203. One side of track in city. 27 Neb., 801. Statute in nature of police regulation. Failure to obey is negligence. 38 Id., 90.

SEC. 2. Act of 1877 has no repealing clause. Former law omitted last proviso. Had "engines" for "engineers" in line five; omitted "conductors" in line eleven. So much of this section as gives "double" damages for property destroyed, held, unconstitutional. 6 Neb., 37. Damages to animals on account of failure to fence

lutely liable to the owner of any live stock injured, killed, or destroyed by their agents, employes, or engineers, or by the agents, employes, or engines belonging to any other railroad company, running over and upon such road, or there being; Provided, That in case the railroad company liable under the provisions of this section, shall neglect or refuse to pay the value of any property so injured or destroyed, after thirty days notice in writing given, accompanied by an affidavit of the injury or destruction of said property, to any officer of the company, or any station agent, or ticket agent, employed in the management of its business, in the county where the injury complained of shall have been committed, such railroad company, their agents, and employes shall, in an action brought to recover damages therefor, be held and they are hereby declared to be liable to pay double the value of the property so injured, killed, or destroyed as aforesaid; Provided, further, That if the railroad company do not object to the value of the property so injured or destroyed, as set forth in the notice aforesaid, within ten days, it shall be considered and taken as the true value, but if the said railroad company are dissatisfied with the value as set forth is [in] said notice, they shall, within ten days, leave a written notice to that effect at the residence or place of business of the owner of the stock so injured or destroyed, and the value shall then be ascertained and determined in accordance with the provisions of section 5 of the general herd law. [Amended 1877, 59.]

4014 SEC. 3. [Damages to passengers.] Every railroad company, as aforesaid, shall be liable for all damages inflicted upon the person of passengers while being transported over its road, except in cases where the injury done arises from the criminal negligence of the person injured, or when the injury complained of shall be the violation of some express rule or regulation of said road actually brought to his or her notice.

4015 SEC. 4. [Service of summons.] Service upon railroad companies may be made as upon other corporations, or by leaving a copy of the summons by the proper officer, with any station agent, ticket agent, conductor, or other officer of said railroad formed within the limits of this state, or left at their usual place of business within said county.

4016 SEC. 5. [Liability as common carriers.] No notice, either express or implied, shall be held to limit the liabilities of any railroad company as common carriers, unless they shall make it appear that such limitation was actually brought to the knowledge of the opposite party and assented to by him or them, in express terms, before such limitation shall take effect.

ARTICLE II.-FOREIGN COMPANIES.

4017 SECTION 1. [May extend into Nebraska.] That any railroad company heretofore organized under the laws of the states of Kansas, Missouri, Iowa, Minnesota, or territory of Dakota, or any company so organized under the laws of another state whose road may extend across any one or part of any one of these states or said territory, is hereby authorized to extend and build its road into the state of Nebraska. And such railroad company shall have and possess all the powers, fran

along line of road. 11 Neb., 596. Fence broke down; owner of stock not guilty of contributory negligence. 13 Neb., 484. If there be no fence up, plaintiff only required to prove fact of killing, ownership, etc., and that road was not fenced. 14 Neb., 17. Same liability exists where stock is running at large in night time. Id., 24. Company liable when animals are killed through negligence of employes running train. Id. Negligence of owner no defense. 15 Neb., 366. Railroad not required to place guards or fence around cut within limits of city, away from public thoroughfare. 14 Neb., 234. See also 17 Id., 93. 18 Id., 219, 369. 28 Id., 112.

SEC. 3. Not relieved from liability by transfer of corporate power, or permitting others to operate road. 26 Neb., 159. Contract for continuous passage, accident on connecting line. Id. Proof required to presume negligence. 37 Id., 235. Constitutionality discussed. Proof necessary to sustain action. Presumption of negligence, how rebutted. 38 Id., 226. Quære, Who is a passenger? 39 Id., 798. Road is insurer of passenger's safety. 39 Id., 803. Husband may recover for wife's injury. 41 Id., 578.

SEC. 4. Cited 29 Neb., 492.

SEC. 5. See Const.. sec. 4, art. XI. 5 Neb., 117. Liability not limited by special contract. 30 Id., 241. 381d., 463. ART. II, SEC. 1. "An act to amend an act entitled an act to authorize non-resident railroad companies to build roads in Nebraska." Laws, 1879, 106. Took effect June 1, 1879.

chises, and privileges, and be subject to the same liabilities of railroad companies organized and incorporated under the laws of this state; Provided, Such non-resident company shall first file a true copy of its articles of incorporation with the secretary of this state, and shall comply with the laws of the state of Nebraska, as to filing and recording articles of incorporation, and in all things required by law relating to railroads, and otherwise in this state, and such non-resident railroad company shall keep an office in this state in some county in which its road is, or is proposed to be and shall be liable to civil process, to be sued and to sue, as provided by law. [1879, § 1, 106 ]

4018 SEC. 2. [May mortgage, lease, or sell property in Nebraska.] That it shall be competent and lawful for any railroad company heretofore incorporated or organized, or which may be hereafter incorporated or organized under the laws of an adjoining state, and which shall have extended its railroad into this state or have become a corporation of this state under the laws thereof, to mortgage, lease, or sell that part of its railroad, and the property, rights, privileges, and franchises connected therewith, situated in this state, to any railroad in this state, and the railroad company making such purchase shall thereupon become vested with all the property, rights, privileges, and franchises of the company making such sale, and pertaining to the said railroad so sold, and shall be authorized to locate, construct, and complete, maintain and operate the railroad thus purchased, and may receive, hold, and convey all municipal aid, endowments, and property of any kind whatsoever, upon complying with the terms and conditions upon which the same were to be had, as fully and to the same extent as the railroad company making such sale, could have done had no such sale been made. [1871, § 1, 72.]

4019 SEC. 3. [Rights of purchasers.] Any railroad company heretofore incorporated or organized, or which may be hereafter incorporated or organized under the laws of an adjoining state, and which shall have extended its railroad into this state, or under the laws of this state, shall have become incorporated and authorized to construct and maintain a railroad within this state, may mortgage or lease, sell, or convey the whole or any part of its railroad, situate within the state, and the rights, privileges, and franchises connected therewith, and other property pertaining thereto,. to any person or persons on such terms and conditions as may be agreed upon, and the person or persons making such purchase, and their associates, may become a body corporate under the laws of this state, in the manner prescribed for the creation and organization of railroad companies in this state; and on the organization of such corporation, it may take, receive, and hold the railroad and property so purchased by said corporators, and shall have, possess, and enjoy the same, and all the rights, privileges, franchises connected therewith, and held and possessed by the company making such sale, and shall also have all the rights, privileges, and franchises of railroad companies organized under the laws of this state, with full power and authority to construct, complete, maintain, and operate the railroad thus purchased, receive, hold, and dispose of all endowments, grants of land, municipal or individual aid granted to said company making such sale, or to which said company was or might have become entitled, upon compliance with the terms and conditions upon which such endowments, grants, donations, or aid were to be had; and the railroad company so organized may, under the laws of this state, consolidate its stock and property with any other railroad company upon such terms and conditions as may be agreed upon; Provided, however, That no sale, or purchase, shall be made of railroads situated within this state, of companies without this state, or consolidations effected as provided in this act, until the terms of such

SECS. 2-5. "An act to authorize railroad companies of adjoining states to mortgage or convey their property Situated in the state of Nebraska." Laws, 1571, 72. G. S., 201. Took effect Feb. 10, 1871. Cited 24 Neb., 160.

sale or consolidation shall have been approved by a majority of the stockhodlers in interest, in person, or by proxy, at the annual or special meeting, of which due notice shall be given by publication, or in writing to all the stockholders in interest, or the same be approved by the written consent of a majority of the stockholders in interest, filed in the office of said respective companies. [Id., § 2.]

4020 SEC. 4. [Contracts binding on assignees, etc.] That all contracts and agreements made by any railroad company prior to such transfer, lease, consolidation, or mortgage shall be binding on the assignees, lessees, or mortgages of such company, and that the rights of any stockholders, or parties entitled to stock therein, shall in no way be impaired by such transfer, lease, consolidation, or mortgage. [Id., § 3.1

4021 SEC. 5. [Purchasers to keep road in good running order.] When any company or persons shall have purchased any railroad, or two or more railroads are consolidated, as contemplated by the provisions of this act, such companies or persons so purchasing shall keep each and every railroad line that may come in their posession by such purchases in good running order, with sufficient rolling stock, to transport the freight and passengers. They shall not discriminate against the business with either or any of said railroad lines, either directly or indirectly, by the detention of freights or passengers, or charging more for freight or passage than is charged in proportion upon any other railroad line under the control of said company or persons. [Id., § 4.]

4022 SEC. 6. [Legalizing provision.] That any railroad company which has been organized under the laws of the states of Iowa, Kansas, or Missouri, and which has heretofore extended its line of railroad into this state, or built any portion of its line of road in this state, and has filed a true copy of its original articles of incorporation in the office of the secretary of state of this state, is, from the time of filing said copy of its original articles of incorporation as aforesaid, hereby declared to be a legal corporation of this state, and entitled to all the rights, privileges, and franchises of railroad companies, organized under and pursuant to the laws of the state of Nebraska. [G. S., 206.]

ARTICLE III.-BOGUS SURVEYS.

4023 SECTION 1. [Plat of survey.] No proposition shall be submitted to the electors of any county in this state for donations of bonds or any other valuables, to any railroad corporation, unless said railroad corporation, through its authorized and responsible agent, files for record in the county clerk's office, where such donations of bonds or any other valuables are to be voted upon, a plat of the survey showing their exact line of route through said county, within at least two weeks previous to such an election; and no bonds, and so forth, shall be valid in case they are voted, unless said railroad corporation build their line of road within forty rods of their survey as filed in the county clerk's office. [1879, § 1, 151.]

ARTICLE IV.-SALES IN CERTAIN CASES.

4024 SECTION 1. [Continuous lines.] Every railroad company organized under the laws of this state whose railroad or railroads constructed or to be constructed within this state shall be so situated with reference to any railroad constructed or to be constructed through any adjoining state or territory by any railroad company organized or existing under the laws of the United States, or any

SEC. 6. "An act to legalize the incorporation of certain railroad companies in the state of Nebraska." G. S.. 206. Took effect Feb. 14, 1873. ART. III. “An act to prevent railroad corporations to impose upon the people by bogus surveys, in counties or precincts where they are asked to vote bonds or other valuables, in aid of such railroad co-porations." Laws, 1879, 151. Took effect June 1, 1879.

ART. IV, SECS. 1-2. "An act authorizing the sale and purchase of railroads in certain cases." Approved March 1. Took effect June 1, 1881. Act construed. 16 Neb, 257.