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any case is a matter addressed to the discretion of the legislature; but whether a given regulation is a reasonable restriction upon personal rights is a juclicial question.'
A disposition is manifested in some of the cases to claim for the railroad company the application of the same rule of reasonableness, as would be applicable to regulations of the private property of individuals; that is, prohibiting all regulations of railroads and of their property, which would not be applicable generally to the private property of individuals. But the reasonableness or unreasonableness of a police regulation is subject to variation with a change of circumstances, and in the character of the subject of the regulation. A regulation may be reasonable when directed
1 “What are reasonable regulations, and what are the subjects of police powers must necessarily be judicial questions. The law-making power is the sole judge when the necessity exists, and when, if at all, it will exercise the right to enact such laws.
“Like other powers of government, there are constitutional limitations to the exercise of the police power. The legislature cannot, under the pretense of exercising this power, enact laws not necessary to the preservation of the health and safety of the community that will be oppressive and burdensome upon the citizen. If it should prohibit that which is harmless in itself, or command that to be done which does not tend to promote the health, safety or welfare of society, it would be an unauthorized exercise of power, and it would be the duty of the court to declare such legislation void."
“An ordinance of the city which required a railroad to keep flagman by day and red lantern by night at a certain street crossing, when the company had only a single track, over which only its usual trains passed, and where it did not appear that the crossing was unusually dangerous, or more so than ordinary crossings, was held not to be a reasonable requirement, and therefore within the constitutional limitation on the exercise of the police power.
“A regulation that would require a railroad to place a flagman at such places where danger to public safety, in judgment of prudent persons, might be apprehended at any time, would be a reasonable one.” Toledo, etc., R. R. v. Jacksonville, 67 III. 37. See, also, Chicago & Alton R. R. Co. v. People, 67 Ill. 11; State v. Ea-t Oraoge, 12 Vroom, 127; City of Erie v. Erie Canal Co., 59 Pa. St. 174; Phila. W. B. R. R. Co. v. Bowers, 4 Houst. 506; Ladd v. Southera C. P. & M. Co., 53 Tex. 172; Sloan r. Pac. R. R. Co., 61 Mo. 24.
against the use of certain kinds of property, while it would be unreasonable, if applied to other and different kinds of property, the enjoyment or use of which does not threaten the injury, against which the regulation was directed. But there can be no doubt that a corporation cannot be subjected to a regulation, which would not be applicable to a natural person under like circumstances. The police regulations resemble greatly the regulation of the use of the common highways, and a comparison of them, as set forth in the following language of a distinguished judge, will assist in reaching a clear understanding of the scope of police power in the regulation of railroads. In Chicago, B. & Q. R. R. Co. v. Attorney-General of Iowa, Dillon, J., says:
“ In all civilized countries the duty of providing and preserving safe and convenient highways to facilitate trade and communication between different parts of the State or community is considered a governmental duty. This may be done by the government directly, or through the agency of corporations created for that purpose. The right of public supervision and control over highways results from the power and duty of providing and preserving them. As to ordinary highways these propositions are unquestioned. But it is denied that they apply to railways built by private capital, and owned by private corporations created for the purpose of building them. Whoever studies the nature and purposes of railways constructed under the authority of the State by means of private capital will see that such railroads possess a twofold character. Such a railway is in part public and in part private. Because of its public character, relations, and uses, the judicial tribunals of this country, State and national, have at length settled the law to be that the State, to secure their construction, may exert in favor of the corporation authorized by it to build the road both its power of eminent domain and of taxation. This the State cannot do in respect of occupations or purpo-es private in their nature.
19 West. Jur. 347.
In its public character a railroad is an improved highway, or means of more rapid and commodious communication, and its public character is not divested by the fact that its ownership is private.
In its relations to its stockholders, a railroad, or the property in the road and its income is private property, and, subject to the lawful or reserved rights of the public, is invested with the sanctity of other private property. The distinction here indicated marks with general accuracy the extent of legislative control, except where this has been surrendered or abridged by a valid legislative contract. Over the railway as a highway, and in all its public relations, the State, by virtue of its general legislative power, has supervision and control; but over the rights of the shareholders, so far as these are private property, the State has the same power and no greater than over other private property.” I
1 “We apprehend there can be no manner of doubt that the legislature may, if they deem the public good requires it, of which they are to judge, and in all doubtful cases their judgment is final, require several railroads in the State to establish and maintain the same kind of police which is now observed upon some of the more important roads in the country for their own security or even such a police as is found upon the English railways and those upon the continent of Europe. No one ever ques. tioned the right of the Connecticut legislature to require trains upon all their roads to come to a stand before passing draws in bridges; or of the Massachusetts legislature to require the same thing before passing another railroad. And by parity of reason may all railways be required so to conduct themselves, as to other persons, natural or corporate, as "not unreasonably to injure them or their property. And since the business of railways is specially dangerous, they may be required to bear the expense of erecting such safeguards, as will render it ordinarily safe to others, as is often required of natural persons under such circumstances.
“There would be no end of illustrations upon this subject, which in detail are more familiar to others than to us. It may be extended to the supervision of the track, tending switches, running upon the time of other trains, running roads with a single track, using improper rails, not using proper precautions by way of safety beams in case of the breaking of axle trees, number of brakemen upon train with reference to number
As has already been intimated, the number of police regulations of railroads is very great, and the character of them is as varied. For the purpose of illustrating the scope of these regulations, it will only be necessary to refer to the more important ones, which have been passed upon by the courts.
For example, in the exercise of the ordinary police power of the State, it has been held to be reasonable to require all railroads to fence their tracks, not alone for the protection of the live stock of the abutting owners. Indeed, the chief object of the statute is probably to protect the traveling public against accidents occurring through collision of trains with cattle. One exercise of the power to require railroads to fence their tracks does not preclude a second regulation of the same kind, providing for other and different fences. And the railroad company can not relieve itself from the obligation to erect and maintain the fence by any contracts with the abutting owners. The railroad company is, of course, liable for whatever injury is done to persons or property in consequence of any neglect in maintaining the fence. In the absence of special legisla tion, the judgment will be confined to the recovery of the actual damages suffered in consequence of the neglect. But the statute may constitutionally make the company liable for double the value of the stock killed by reason of the neglect to properly maintain the fences. This requirement is justified on the same grounds as the authority to recover exemplary or punitory damages. And it may also be provided by statute that the railroad company my be held liable for all losses of property, occurring in consequence of the neglect of the railroad in the maintenance of the fences, although the owner may be guilty of contributory negligence. But there must be some violation of the law,
of cars, employing intemperate or incompetent engineers and servants, running beyond a given rate of speed and a thousand similar things, most of which have been made the subject of legislation or judicial determination, and all of which may be.” Thorpe v. Rutland, etc., R. R. 27 Wis. 140. See, also, Richmond, F. &P. R. R. Co.v. City of Richmond, 26 Gratt. 83; 8. c.96 U. S. 521; People v. Boston, etc., R. R. Co., 70 N. Y. 569; State v. East Orange, 12 Vroom, 127; Phila., W. & B. R. R. Co.o. Bowers, 5 Houst. 506; Cin. H. & D. R. R. Co. v. Sullivan, 32 Ohio St. 152; Pittsburg, C. & St. L. R. R. Co. v. Brown, 67 Ind. 45 (33 Am. Rep. 73); Toledo, W., etc., R. R. Co. v. Jacksonville, 67 Ill. 37; Galveston, etc., R. R. Co. v. Gierse, 51 Tex. 189.
1 Sawyer 0. Vt., etc., R. R. Co., 105 Mass. 196; Wilder v. Maine Cent. R. R. Co., 65 Me. 332; Smith v. Eastern R. R. Co., 35 N. H. 356; Bulkley 0. N. Y., etc., R. R. Co., 27 Conn. 497; Bradley v. Buffalo, etc., R. R. Co., 34 N. Y. 429; Penn. R. R. Co. v. Riblet, 66 Pa. St. 164 (5 Am. Rep. 360); Thorpe v. Rutland, etc., R. R. Co., 27 Vt. 140; Indianapolis, etc., R. R. Co. v. Marshall, 27 Ind. 300; New Albany, etc., R. R. Co. v. Tilton, 12 Ind. 10; Indianapolis, etc., R. R. Co. v. Kercheval, 16 Ind. 84; Toledo, etc., R. R. Co. v. Fowler, 22 Ind. 316; Indianapolis, etc., R. R. Co. v. Parker, 29 Ind. 471; Ohio & Miss. R. R. Co. v. McClelland, 25 Ill. 140; Gorman v. Pac. R. R. Co., 26 Mo. 441; Jones v. Galena, etc., R. R. Co., 16 Iowa, 6; Winona, etc., R. R. Co. v. Waldron, 11 Minn. 675; Blewett v Wyandotte, etc., R. R. Co., 72 Mo. 583; Kan. Pac. Ry. Co. v. Mower, 16 Kan. 573; Louisville & Nashville, R. R. Co. v. Burke, 6 Caldw. 45.
? Gillam 0. Sioux City, etc., R. R. Co., 26 Minn. 268.
| New Albany, etc., R. R. Co. o. Tilton, 12 Ind. 3; New Albany, etc., R. R. Co. v. Maiden, 12 Ind. 10. See Poler v. N. Y. Cent. R. R. Co., 16 N. Y. 476; Shepherd v. Buff., N. Y. & Erie R. R. Co., 35 N. Y. 641.
• As to what degree of care is required of railroads in this connection, sce Chicago, etc., R. R. Co. o. Barsie, 55 III. 226; Antisdel v. Chicago, etc., R. R. CO., 26 Wis. 145; Lemmon v. Chicago, etc., R. R. Co., 32 (owa, 161.
8 Cairo, etc., R. R. Co. v. People, 92 ni. 97 (34 Am. Rep. 112); Barnett v. Atlantic, etc., R. R. Co., 68 Mo. 56 (30 Am. Rep. 773); Spealman v. Railroad Co., 71 Mo. 434; Humes 0. Mo. Pac. R. R. Co., 82 Mo. 22 (52 Am Rep. 369); Tredway v. Railroad Co., 43 Iowa, 527; Welsh v. Chicago, B. & Q. R. R. Co., 53 Iowa, 632; Little Rock & Ft. Scott R. R. Co. v. Payne, 33 Ark. 816 (34 Am. Rep. 55). Contra, Madison, etc., R. R. Co. v. Whiteneck, 8 Ind. 217; Indiana Cent. R. W. Co. t. Gapen, 10 Ind. 292; Atchison & Neb. R. R. Co. o. Baty, 6 Neb. 37 (29 Am. Rep. 356). It is also competent to include attorney's fees as part of the damages that may be recovered. Peoria, etc., R. R. Co. v. Duggan, 109 bl. 537 (50 Am. Rep. 619.
• Corwin v. N. Y. & Erie R. R. Co., 13 N. Y. 42; Horn o. Atlantic, etc. R. R. Co., 35 N. H. 169; O'Bannon v. Louisville, etc., R. R. Co., 8 Bush, 348; Jeffersonville, etc., R. R. Co. v. Nichols, 30 Ind. 321; Jeffersonville, etc., R. Co. v. Parkhurst, 34 Ind. 501; Illinois Cent. R. R. Co. 0. Arnold, 47 m. 173; Hinman o. Chicago, etc., R. R. Co., 28 Iowa, 491.