Yazoo & Mississippi Valley Railroad v. Harrington

Whitfield, C. J., delivered the opinion of the court. The primary object of § 3561, Code 1892, is to protect the farmers of this state from the depredations of cattle entering over the railroad right of way, and this primary object must be the polestar of construction in determining its purpose. We have held, and again reaffirm the doctrine, that the object of the section was not only to protect farmers’ crops, but to secure the safety of the traveling public. Because, in this particular instance, the Ross cattle guard is perfect of its kind, this court is not to decree its use a perfect defense to suits for damages by trespassing stock. The kind may not be reasonably effective to keep out stock — not a perfect kind of cattle guard. The argument is that, though this surface cattle guard is ineffective to keep out stock, yet, because it is less dangerous to the traveling public than the pit cattle guard, this Ross cattle guard, if perfectly constructed, must be judicially declared a compliance with § 3561, Code 1892, whose fundamental purpose is the safety of crops. This is an easily demonstrable [374] fallacy. Pursue the contention, to its logical result, and what do we have as the conclusion ? Why, that since the Ross and other surface cattle guards, though ineffective to- shut out cattle, better conserve the safety of the traveling public than the pit guard, therefore no cattle guard at all is best, since none at all least interferes with the safety of the traveling public. Or, to put it in syllogistic form: Major premise: The safety of the traveling public is the supreme concern. Minor premise: The Ross surface cattle guard, if ineffective against cattle, best secures the safety of the traveling public. Conclusion: Therefore, a Ross cattle guard complies with sec. 3561. Or, ergo, a cattle guard which secures the safety of the traveling public in the highest degree is the proper one under sec. 3561, even though the least effective against cattle, or not- effective at all. Prom which it is an easy step to the conclusion that a plain traek, uninterfered with at all, is the best cattle guard of all. This no one can fail to see would be a direct nullification of the primary object of the section, and is, of course, wholly inadmissible. On the contrary, it would be equally absurd to- hold that a cattle guard which was perfect against cattle is a proper one, although it constantly resulted in loss of life by derailment of trains. Not here, more than anywhere else, is the solution of vexed questions to be found by running out opposite theories to extreme conclusions. We must administer the law as a practical science coming home to the “business and bosoms of men,” not as a set of speculative theories intended for the exercise of a discursive fancy. The proper cattle guard must consult the safety of the traveling public, certainly; and just as certainly must it keep out stock. The proper cattle guard requires that it be so constructed as best to combine these objects; so as, whilst being reasonably effective against stock, it shall also be reasonably preservative of the safety of the traveling public. As to the second branch of the argument, it is enough to say that sec. 3561 is a legitimate exercise of the police power of the state, and hence the fourteenth amendment to the constitution [375] of the United States is not involved. This is settled by many decisions of the United States supreme court admirably grouped by appellee’s counsel, among which we specially refer to Mugler v. Kansas, 123 U. S., 623 (8 Sup. Ct., 273; 31 L. ed., 205); N. Y. & N. E. R. R. Co. v. Bristol, 151 U. S., 571 (14 Sup. Ct., 437; 38 L. ed., 269); Davidson v. N. O., 96 U. S., 104 (24 L. ed., 616); R. R. Co. v. Humes, 115 U. S., 520 (6 Sup. Ct., 110; 29 L. ed., 463); Lake Shore & M. S. R. Co. 1. Ohio, 173 U. S., 285 (19 Sup. Ct., 465; 43 L. ed., 702). The public convenience, as well as the public safety, health, and morals, is within the sweep of the police power. That power is to organized government what the atmosphere is to man — “its vital breath, its native air.” It penetrates, permeates, pervades all, in its omnifically healing reach — “broad and general as the casing air.” It is the oil in which the machinery of government efficiently moves. Affirmed.