Galena & Chicago Union Railroad v. Appleby

Walkeb, J. This was an action of debt instituted, in the court below, to recover a number of penalties, for a failure to sound a whistle, or ring a bell, at a public road-crossing. The defense relied upon was presented by two pleas. By the first of these, it is averred, that the company is exempt from the operation of the statute under which this proceeding is instituted, because the thirty-eighth section of the general railway act was repealed so far as it related to this corporation, by the act of the 24th of February, 1854. The second plea avers, that the action is founded upon a supposed amendment of the defendant’s charter, which was passed in February, 1855, repealing the act of 1854, and requiring the company to ring a bell or sound a whistle, and that this amendment was rejected by the company. To these pleas, a general demurrer was interposed, which the court sustained, and thereupon rendered a judgment for plaintiff for $600 and costs, to reverse which this writ of error is prosecuted. It is insisted that the court below should have sustained the demurrer to the plaintiff’s declaration. The objection taken to it is, that there are no damages laid in the conclusion. The rule is stated in Ohitty’s Pleadings, vol. 1, p. 451, to be, that “ In penal actions at the suit of a common informer, as the plaintiff’s right to the penalty did not accrue till the bringing of the action, and he cannot have sustained any damage by a previous detention of the penalty, it is not proper to conclude ad damnum, but the mistake may be amended even after error brought.” This conclusion, so far from being improper, was technically right. The main question in the case is, however, whether the legislature has the power, after releasing the company from the duties imposed by the thirty-eighth section of the general railway law, by special enactment, to again impose the same requirements upon the corporation. The second section of the act of 1855, requires the company to provide a bell of at least thirty pounds weight, or a steam whistle, to be placed on each of their locomotive engines, and to be rung or whistled, at the distance of at least eighty rods from the road-crossing, and to be kept ringing or whistling until it shall have crossed the road or. street, under a penalty of fifty dollars for each neglect. Priv. Laws 1855, p. 281. This provision is substantially the same as that contained in the thirty-eighth section of the general railroad law. The first section of the act of 1855 repealed the act of 1851, exempting the company from the requirements of the general law. It is urged that when the General Assembly released this company from the requirements of the general law, they became invested with such a right that they could not be deprived of except by their assent. That such exemption became a portion of their franchises, which the legislature could not resume. In the case of this company against Dill, 22 111. 261, it was held, that the act of 1851, exempting this company from this requirement, was constitutional. In that case, it was held, that this was a police regulation for the safety of the public, and that its exercise is entirely within the discretion of the General Assembly. That they have the power to impose such regulations, upon the various modes of travel, or upon any portion of them—upon all of a particular class, or upon a single individual of the class. Again, in the case of the Ohio and Mississippi R. R. Co. v. McClelland, 25 Ill. 110, the question was presented whether the General Assembly might require railroads already constructed and in operation, to fence their tracks, although there was no such requirement imposed by the charter. It was there held, that it was a police, regulation, and that the legislature might impose the duty. That the right to adopt such police regulalations, for the safety of the people, is a fundamental principle lying at the very foundation of government itself, and may be exercised by the legislature, upon individuals and corporations alike. That when these bodies accept their charters, it is upon the implied condition that they are to exercise their franchises subject to the power of the State to impose such regulations as the safety of the public may require. It was held, in these cases, that when the safety of persons or property may require it, the legislature may demand the exercise of their franchises in such a mode as to1 afford the necessary protection. It can never be inferred that the legislature have irrevocably granted the right to exercise a franchise in such a mode as to endanger the life of the citizen; Even if they possess such power, nothing short of its grant by language so clear and unmistakable that it could have no other reasonable construction, could be held to give the enactment such an operation. It is one of the highest duties for which government is organized, to afford protection to the life and property of the governed. To license persons or artificial bodies to pursue occupations highly hazardous to the life of the citizen, or an occupation not necessarily so, in such a mode as to render it hazardous, would contravene one of the great purposes of the social compact. It would be a perversion of its powers, and contrary to the end of its creation. All that can be inferred from the legislation in reference to this road is, that the General Assembly, when it exempted the company from the operation of the general law, believed that the safety of persons along its line did not at that time require it to be subject to the requirements of the general enactment. But when the act of 1855 was adopted, the change of circumstances was such as to demand their adoption. Whether they, in the exercise of their discretion, were properly informed of the public necessity for such protection, is not a question that can be investigated, as the General Assembly is the sole judge of its propriety and the extent to which it shall be imposed. It is true, that if the requirements imposed were so unanswerable as to render the franchises of the body useless, it would operate as a virtual repeal of the charter, and. would necessarily be in violation'of their vested rights, and be inoperative and void. But until the operation of the enactment reaches a point which impairs their chartered rights and privileges, the question is one for legislation, and not judicial determination; In this case, the duties imposed by the act are reasonable and just, and by no means operate to deprive the company of any vested right. They received their charter and were exempted from the operation of the general railroad law, subject to this power of police regulation, and as the safety of the public required the enactment, and the General Assembly have imposed the duty, the company must conform, or respond to the liability to the penalty for an omission of the duty. ISTor is it an objection to the binding force of the act, that the corporation rejected the law as an amendment to their charter. The subject-matter was fully within the scope of legislative power, and although the title of the act is an amendment of their charter, the title does not change the effect of the law. It is the legislative intention which governs, and from the scope of the act it is manifest, that it was the design to impose this duty without reference to the assent of the body. These pleas, therefore, presented no defense to a recovery, and the demurrer was properly sustained. The judgment of the court below is affirmed. Judgment affirmed.