Indiana American. [volume] (Brookville, Ind.) 1865-1872, 1868-05-15
lp For the American.
Reply to ~. o. NJ 3,

tons ASKS iea'e 10 correct n lew erroneous
statements made By your correspondents, 1"
Here is an admission that there are only
few errors in the communication, and that
tho restofit strue He then points outwhat
he calls erroneous statements. will take
them mp and examine them in the order
in which he presents them, and see who Is
Ignorant or dishonest"
The FIRST error complained Of, Is the
statement "that there il no law in the
State OF Indiana requiring Railroad
Companies 10 fence their roads, aud that
the only law there Ia in reference 10 the
fencing Of Railroads Is in the acts Of 1863"
&c. To prove this statement incorrect, he
refers to the acts Of 1853 As to the law
In said acts, Il will be found on page 113
Of said acts aud section A. This act was
an act 20 provide compensation 10 owners
Of animals killed, &c The Arb sec. Il this:
~ his act shall not apply TO any railroad
securely fenced 10, and such fence proper
ly maintained by such Company" This
act will be found M amended prior 10 the
revision by. Gavin a. Hord. IN vol. 1, D.
b22 Of the Revised Statutes Neither IN
the acts Of 1853, nor any subsequent act
or acts, IL there any law requiring Rail
road Companies 70 fence their roads. They
arc only exempted from liability by the
statute whom their roads are securely
fenced. HH
AZ TO the decision In 9Th Ind Report
bis quotation IL not from the decision, but
from the syllabus. But | will hrst ex
anime IL Ms he gives H. 1.-THE Legislature
did not transcend its powers or yiolato
private rights In enpoting that railroad
companies shall fence their roads, or pay
for the stock they Kill or injure This
statement II IN tho alternative and does
not require the fencing Of single Rail-
road, bnr leaves IL 20 be decided by each
Company whether II will pay for tho stock
killed or fence their road III the law re-
quired the fencing, the companies corid
NOT elect The following il the deci.ion
'In the light Of these considerations aud
established principles, we think the Legis-
lature had right 20 prescribe the condi-
ton or regulation, ~ enacted, that Rail.
roads shall tence or pay for the stock they
injure. We,cannot Say judiciaIly that il
is not reasonable regulation, necessary to
prevent their injuring others without such
others fault. This only decides that the
law making said companies liable for ami.
mails killed when their roads are not fenced,
is reasonable one, aud that il is consu-
tutional. 1t cannot be said that party
il required to do particular thing when
be has his choice 10 do something else in
stead Of IL. bl ffa
But the Supreme Court does not leave
usin doubt about this natter but decides
il directly in my favor. In the case Of
Evansville, Indianapolis Il Cleveland
Straight Line X. II. Co. rs Fitzpatrick, the
Court says: 1.-The law does not specially
require a Railroad Company to fence their
road, though il may be their interest to do
SO. Acts Of 1883, page ll3." See 10 lad.
r., p. Ia This settles the fret part Of
the question beyond controversy. As to
the second branch Of il, il is a we'll estab-
lished rule of law that whenever the
Legislature bya subsequent statute revises
the whole subject matter oil prior one. il
operates by implication as q repeal of the
prior statute. If Mr. O'Hair will take the
trouble to compare he act of 1883 with
the act OF 1858, he will find'that the Legis-
lature has revised by the act Of 1863 the
mhole subject matter Of said act of 1853.
ercept that part Of the same discoursging
appeals, which was declared unconstitu-
tional by the Supreme Court. But the
Legislature has not in this case left il to
Implication to repeal the act Of 1853, but
has done il by express enactment. See
sect Z. y. 81 acts Of 1868, which section
is in the following words: "All laws or
parts flaws in conflict with the provisions
of this act, are hereby repealed" IS
This settles the second branch Of the
question absolutely. In the light Of these
facts, tcho is ignorant OF dishonesty
Echo answers. James O'IIair.
AS 10 his charitable presumption about
''verdancy, swaddlng clothes &c, there
are only fico modes of raising a presump-
ton; one is an inference drawn from facts
proved or known TO exist; the ofher is from
"VnditeraJie experience" AS there we're
no facts proved or known TO exist from
which this charitable( CD presun ption could
bo raised, il necessarily follows that Mr..
O'Hair must have raised il from his own
unalieroJie experience. The fact then
must necessary follow, that be, in his
legal o. efforts, for fear Of accident, has
been compelled to wrap in swaddliug
clothes. Therefore IA fellow feeling makes
him kind" As 10 the matter of "getting
la,c and justice unless he employs a regular
member of the bar" | know most posi-
lively that Mr.. O'Hair got both Law and
Justice ,cifhom the assistance of member
Of the bar, and it has troubled him ever
since.
The second error Mr.. 0'IIair complains
Of. is my statement about his COM
plant, and the demurrer to the same.
Now let me examine this question, and
see where IGNORANCE or dishonesty" is.
Mr. O'Hair's complaint consisted of but
one paragraph, and but one cause Of action,
which paragraph or complaint did not
state facts sufficient TO constitute cause OF
action. The defendants attorney demur.
red thereto, setting up the insufficiency of
the complaint as cause Of demurrer. The
following is the authority cited by Mr..
O'Hair from Judge Bicknel's practice,
page l03 "In this demurrer.you may fol-
low the words Of the statute aud need not
point out ia what the insufiiciency con-
sists." But he (BicknelD further says;
"a demurrer for this cause TO an entire
complaint containing several paragraphs
will be oyerruled il any Of the paragraphs
be good" O'Hair had but one paragraph
=. Ir..t ani