Welch v. Hannibal & St. Joseph Railroad

Philips, P. J. This is an action for damages for ■the killing of plaintiff’s.cow, by defendant’s locomo [364] tive. The action is at common law for single damages. The imputed negligence is the carelessness of defendant’s servants in running and managing the train of cars. The accident occurred within the town of Breckenridge, Caldwell county. Plaintiff recovered judgment heretofore in the circuit court, and on appeal, taken by the defendant, to this court, the judgment was reversed, on account of an error in the instruction given on behalf of plaintiff. (20 Mo. App. 477). On the re-trial the instruction given for plaintiff is in accord with the ruling of this court, .and is unobjectionable. Plaintiff again recovered judgment, and defendant has appealed. I. The first’ contention of defendant is, that there was not sufficient evidence to entitle plaintiff to the opinion of the jury. We have carefully examined the evidence, as presented by the appellant; and whatever may be the opinion of this court as to the weight of the evidence, we are satisfied there was ample evidence to warrant the trial court in submitting the question of -negligence to the jury. They are the sole judges of the weight of evidence and the credibility of the witnesses. We discover nothing in their verdict or conduct to justify this court in disturbing their conclusion. II. On the trial of the cause, the plaintiff, against the objection of the defendant, was permitted to read in evidence an ordinance of the city of Breckinridge, prohibiting the running of railroad trains therein over a certain rate of speed. The ground of objection is, that the ordinance was not pleaded by the plaintiff. In Robertson v. Railroad (84 Mo. 119), it was held that the cause of action, being at common law for the negligent killing of plaintiff’s stock, it is not founded on such ordinance, and, therefore, it was not necessary to plead it; but if defendant was running its train in violation of it, it was competent to introduce the ordinance in evidence, in support of the charge of general negligence. To the same effect are the cases of Mapes v. Railroad (76 Mo. [365] 367), and Braxton v. Railroad (77 Mo. 455). Under these rulings, the evidence was properly admitted, as bearing on the issue of negligence.. III. The deféndant offered in evidence the records of the county court, for the purpose of showing that, at the time of this injury, the law was in force in that county, prohibiting stock from. running at large. This evidence was rejected by the court, and this is assigned for error. The undisputed evidence was, that the cow was injured on the first day of November, 1883. By the session acts of 1883 (Laws, 1883, p. 26), adopted March 27, 1883, provision was made for restraining animals from running at large. Although it appears, from a foot note, that this act was passed without the emergency clause, it went into force within ninety days after the legislative term, by operation of general law. The act was, therefore, in force at the time of the accident in question. By section 7, of this act, the provisions of this law were suspended in the several counties of the state until a majority of the legal voters of any county should decide, at a general or special election, to enforce the same in such county. The record offered in evidence by defendant shows-that the election, held for this purpose, in Caldwell county, was on the thirtieth day of October, 1883, just two days prior to the injury complained of. The contention of defendant is, that this law became operative-in this county from the moment the polls closed, on the day of election, and the requisite majority had voted therefor. In support of this proposition, we are referred to the text in 1 Kent’s Com. [13 Ed.] 458, which announces the settled rule of the common law, that a statute, when duly made, takes effect from its date, when no time is fixed by its terms otherwise. After adverting to the inconsistency of such a rule with the dictates of common justice, this author further observes : 11 It would be no more than reasonable and just that the [366] statute should not be deemed to operate upon the person and property of individuals, or impose pains and penalties for acts done in contravention of it, until the law was duly promulgated. The rule, however, is deemed to be fixed beyond the power of judicial control, and no time is allowed for the publication of the law before it operates, when the statute itself gives no ti'me.'n The only practical question, therefore, to be determined is, whether or not this statute has not made the exception. In recognition of the iniquity of a rule that would subject the citizen to pains, penalties and forfeitures, and other burdensome obligations, under a newly imposed law, before he had a reasonable opportunity, in common with others, by some means, supposed by the law-makers adequate for the impartation of the information, to know of its existence, our laws say that no act of the legislature shall go into operation until after the lapse of ninety days after the legislative term; unless, in the opinion of the legislature, the public necessities are such as to warrant its passage with an emergency clause. Designing, as we doubt not, to carry into the act under consideration, the principle of this rule of justice, while attempting to pass this act with an emergency clause, the legislature put in the following section: “If a majority of the legal voters, etc., shall vote, at such election, for enforcing the law restraining animals, etc., the clerk of the county shall enter upon the court records, the result of such election, and file the papers and returns thereof in his office, and shall immediately give notice of the result of said election, by publishing the same in a weekly newspaper, published in said county, if there be one, and by causing notice thereof to be posted up in at least three public places in each township in the county” ; but in case of the defeat of the measure at such election, no such publication is required. In the first place, we will observe that, as such a law [367] could only become operative by their being cast in its favor a, majority of the votes, some legally constituted body must first ascertain this fact. That fact must be promulgated. How promulgated ? We answer, by the clerk putting it to record, and at once making publication, and giving notice thereof, in the manner designated by section 10. What was the purpose of the legislature in thus particularly providing for the publication and notification of the result, if it were not the proclamation to the people of the existence, the adoption, of the law, for the first time, in that county? Why notify this fact to the people, if it were not that they might then have the opportunity to put '£ their fences in order,” to meet the changed condition of affairs ? It was impossible that this plaintiff could have known, on the. first day of November, that this had become the law of Caldwell county. The result was not announced, nor published. The evident object of such publication and notice was to give force to the law, and bring the people thereafter under subjection to it. This is the spirit of our laws. Town of Pacific v. Seifert, 79 Mo. 212. And this was the mind of the legislature in enacting section 10, and is as much within the letter of the act as if so declared in so many words. In re Bomino, 83 Mo. 441. The record offered in evidence by defendant shows that the action taken by the county clerk, pursuant to said section 10, was not until the fifth day of November, 1883. We must, therefore, hold that the circuit court did not err in rejecting this proof. Perceiving no error in this record, the judgment of the circuit court is affirmed. All concur.