Weekly Indiana State sentinel. [volume] (Indianapolis [Ind.]) 1853-1861, 1856-12-04
The Madison & Indianapolis
RAILROAD COMPANY
VS..
WHITENECk.
APPEAL FROM THE JOHNSON COURT COMMON
PLEAS.
r T. II X ~ 8, j

I
comotive on the Madison 4 indianapolis Rail
road. Recovery before the Justice, and appeal
| TO the Common Pleas. In that Court, the De-
PENDANT not appearing. judgment was rendered
/ for Plaintiff without the Intervention of Jury,
for double the amount Of the Judgment before
the Justice, &c
A point is made which may Re briefly dis
posed of before entering upon the main ques-
tons in the cause.
1t is said, jury should have been called to
assess the damages, notwithstanding the failure
Of the defendant to appear, as the case stood
upon the general issue.
| The Constitution of our State does not say
that trials shall be by jury. Itsays the Fright
Of trial by jury shall remains" DC. If party
voluntarily abstains from claiming the right in
given case, we think it may be iudicislly held
that il is waived Hence, the Statute enacting
that such act shall be regarded as a waiver is
valid. 2 R. s, lis.
The suit was instituted ander the act of
March lst, 1858, Laws of 1853, p. lib, relative
TO compensation for animals killed or injured by
railroad machinery and as the act is short and
gives rise to several somewhat neutrality-suspicious.
now to be considered, we insert it, except the re-
Pealing section. in this opinion. It follows
An Act to provide compensation to the owners
Of animals killed or injured by the cars, To-
coubtives or other carriages Of any railroad
company in this State Approved March 1.
/ 1858.
sEcrrox |. Be Il enacted by The General As
ssss6ty Of the State Of Indiana, That whenever
any animal or animals shall be killed or iDjur-
ed by the cars or locomotives or other carriages
used on any railroad in this State, the owner
thereof may go before some Justice Of the peace
of the county in which such injury occurred,
and file hiszeomplaint in writing, and such JUS
| tice shall fix day. to hear said complaint, and
shall cause at least ten days notice TO be serv-
ed on the railroad company defendant, by serv-
ice Of summons by copy. on any conductor of
any train passing through said county.
SEQ. 2 On the hearing of said cause, the
justice or jury trying the same shall give judg
ment for the plaintiff for the value Of the ami
NAL destroyed or injury inflicted without re-
gard to the question whether such injury or
destruction was the result Of willful miscon.
duct or negligence, or the result of unavoida-
bic accident
! Szu. g. If the defendant shall appeal from
such judgment, and shall not reduce the DANA
ges assessed twenty per cent, the appellate
court shall give Judgment for double the amount
Of damages assessed in such appellate court,
and docket fee Of FIVE dollars.
SIC. 4. This act shall not apply to any rail
road securely fenced in and such fence properly
maintained by such company.
1t is contended that this act is unconstitu-
tional
1. Because the object of it is not indicated in
its title. 1t is claimed TO be, in fact, an act
to compel railroads to fence in their tracks, and
to infiict penalties on the exercise of the right
Of appeal.
2. Because it is special act And
8. Because it violates private right.
| 1t is further insisted that its third section is
unconstitutional because it impairs the right of
appeal.
I W. l. 20 .l;,r- IL. II
consistency with its title Its immediate pur-
pose is there expressed The act contains an
exception as to railroads that are fenced but
we think the exception SO properly connected
with the subject matter Of the act designated
in the title, as rightly to appear in i; under
that title.
2. We do not think the act void simply be.
cause it is special. There is no provision of
the constitution prohibiting, in terms, special
Legislation on the subject of railroads and,
from the peculiar character of the subject. we
cannot say such Legislation may not be proper
Special subjects may require some special leg
islation and when it takes place it will be for
the court to judge, as in the Clay county case
and the Lafayette murder cases, under section
% Of article a. Of the constitution, whether
more general Legislation could reasonably have
been made applicable; 5 Ind, 4 and Ind $40:
and also whether such special legislation con
Ill.
3. The act is alleged to infringe private rights
and principles Of natural justice, because it
makes requirements Of railroad companies be-
yond those contained in the laws under which
they organized, and fundamentally interferes
with the prosecution Of business pursuits and
It As insisted that the Legislature cannot thus
act for want of authority.
This objection brings up to some extent. the
general question of the power of the legisla-
ture over the various pursuits of the people of
the State, IN other words, of legislative power
and We propose to avail ourself Of the occasion
to express somewhat at length our views upon
i. What, then, is the legislative power of this
State? The answer to this question must be
drawn from an examination Of the constitution
Turning to it we find article 3 to provide that
the powers Of government shall be divided be
tween three departments, and sec /, of art 4,
to declare that, 1.-The Legislative authority of
the State shall be vested in the General Assem-
bly,"
But so far, these sections, it will be observed
do not define that legislative authority they
simply ordain q division of powers and desie-
nate the department in which the Legislative.
whatever it may be, shall be lodged. The dis
tribution of the powers of government, as a
distinctive feature in their creation, among diff
lerent departments, is q comparatively modern
idea, suggested by the accidental development,
IN that form, to great extent, Of the British
government, and probably first. formally enun-
ciated tc the world as an invaluable precept in
the science of politics, by the celebrated Mon
tesquieu of Bordeaux, in France, in his Spirit of
Laws, published about the middle of the 18th
century. Such division, therefore, does not
necessarily follow upon the simple organization
of government. Hence it became i'm perative.
IN order to insure distribution of powers in
the government of this State to provide for II
IN the organization. Madison in No AZ of the
Federalst
The legislative power, then, being as vet
simply located, the inquiry still occurs, what.
how great. is that powerf Is it unlimited
This question has been much discussed of late.
in several cases, and deserves most careful con- |
sideration in its final determination. 1t has
been asserted by some that {" the Legitimacy of
all laws originates, not in the will of him or
them who make the laws, who ever they NAV
be, but in the uniformity of the laws them |
selves 10 truth, reason, and Justice which |
constitute the true aw."-Gu;zot on Rep Gov |
eminent, PIP. 2O4. 2l7. And if we add the fur
ther proposition of some religious, moral and /
political philosophers, that 1t is the right of ev
cry man to judge Of this conformity to Justice of
each law, and to obey or disobey it accordingly.
we have complete what is called in this day. the
higher law" doctrine doctrine consistent /
with the individual independence of man, but |
utterly inconsistent with, and impracticable in. |
OfutfiJ governments.
In such government the legitimacy of laws
must rest in the will of the law-makinp power. /
1t must be so, or government is nothing. Still, |
there are subjects and matters in relation to
which no government should assume to control /
the will or action of any individual This, we |
shall make appear in the course of this opinion. |
Hence. the law-making power should be limit |
ed. Yet, from its very nature, it would seem
that, practically limits could scarcely be set to
Its exercise except by written constitutions
nor by these, without the existence of a power
to annul laws enacted outside of the limits es. |
taolished; and, historically considered we
we do not find that it had been thus limited |
prior to the formation of the American States. |
True, Great Britain had, before that time, her
magma charta and petition of right, but they
were not ordained by the people in their sove- |
reign capacity, and were not, in fact, paramount
to acts of Parliament, however much Difference
might. under ordinary circumstances, he paid
to them. Parliament remained In reality, ON