Selders v. Kansas City, Fort Scott & Gulf Railroad

I. Hall, J. The defendant asks for a reversal of the judgment in this case, because the fifth clause of section 2839 of the Revised Statutes, which says that such-actions as the present “shall be brought before a justice of the peace of the township in which the injury happened or any adjoining township,” has never been enacted by the legislature; and that if it‘has been so enacted that the amendment contained in it has not been made in the manner required by the constitution. The section of the statutes with the clause above quoted appears for the first time, it is true, in the first volume of the Revised Statutes of 1879. That volume is duly certified to by the secretary of state. That certificate is prima facie evidence of such statute. The fact that the above section with that-clause is not found in the printed session acts for 1879 does not rebut the prima facie case made by the certificate of the secretary of state. The defendant has not pointed out the manner in which the amendment contained in the section fails to comply with the constitution. It is suflBL [338] cient, perhaps, to say that we have no jurisdiction to pass upon a question involving the construction of the constitution of this state. II. The defendant complains that there was no evidence of the fact that the heifer was killed in Central township. As to this the defendant is in error. The record in this case shows that the plaintiff testified to that fact. III. The defendant contends that there was a total failure of proof that the defendant did not erect a lawful fence at the point on its railroad track in question. The defendant claims that the evidence, if it showed anything showed a failure on the part of it to maintain such fence. At the time of the erection of the fence the “ old bed of the creek” was full of water, and such was the case for some time afterwards; but when the water, by absorption and evaporation, disappeared, the space between the bottom wire and the bed of the creek occurred. We think that the trial court properly held under these facts that there was a failure to erect rather than to maintain a lawful fence at that point. The judgment is affirmed. All concur.