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22d section of the Judiciary Act had always | United States, "where the value of the prop-
been held to mean a property value; and he dis-erty or the amount in controversy exceeds one
tinguished the case of Holmes v. Jennison, 14 thousand dollars, except that a writ of error or
Pet. 540 [39 U. S. bk. 10, L. ed. 579] which was appeal shall be allowed" to this court from the
a writ of error to reverse a judgment of the Su- decisions of the courts or judges of the Terri-
preme Court of Vermont on habeas corpus, re-tory "upon writs of habeas corpus involving
manding to custody a prisoner under a warrant the question of personal freedom," clearly im-
of extradition from the Governor of that State, plies that writs of habeas corpus would not be
upon the ground that it was brought up from a included if not specially mentioned. See als
state court under the 25th section of the Ju- Potts v. Chumasero, 92 U. S. 358 [Bk. 23, L. ed.
diciary Act, in which case no value was 499]; Elgin v. Marshall, 106 U. S. 578, 580
required.
[Bk. 27, L. ed. 249]; Curtis, U. S. Courts, 65.

In DeKrafft v. Barney, 2 Black, 704 [67 U. S. bk. 17, L. ed. 350], decided in 1862, an appeal was taken from a decree of the Circuit Court for the District of Columbia, awarding the custody of a child to the father as against the divorced mother; and Lee v. Lee, above cited, was referred to as supporting the right of appeal. But this court dismissed the appeal for want of jurisdiction, Chief Justice Taney saying that the case was not distinguishable from Barry v. Mercein, above cited, and that in that case it was held "that in order to give this court jurisdiction under the 22d section of the Judiciary Act of 1789, the matter in dispute must be money, or some right, the value of which could be calculated and ascertained in money."

From this review of the statutes and decisions, the conclusion is inevitable that a jurisdiction, conferred by Congress upon any court of the United States, of suits at law or in equity in which the matter in dispute exceeds the sum or value of a certain number of dollars, includes no case in which the right of neither party is capable of being valued in money; and therefore that writs of habeas corpus are not removable from a state court into a Circuit Court of the United States under the Act of March 3, 1875, ch. 137, § 2; and this case was rightly remanded to the state court.

We are then brought to a consideration of the merits of the case, as presented by the writ of error sued out by the prisoner to reverse the judgment of the state court, remanding him to custody.

citizens of the State of California and of the United States, and held by them for the purpose of being delivered to the military authori ties of the United States to be tried according to the laws of the United States; and he claims immunity from being arrested for a military crime by persons not military officers of the United States, and having no express authority from the United States or from such officers to arrest him.

The Act of February 5, 1867, ch. 28, sec. 1, conferring power upon the judges of the national courts to issue writs of habeas corpus in The case, as shown by the record, is briefly cases of persons restrained of their liberty in this: Kurtz, a deserter from the Army of the violation of the Constitution, or of any treaty United States, was, without any warrant or exor law of the United States, expressly gave an press authority, arrested by Moffitt and Fields, appeal to this court from the judgment of a cir-police officers of the City of San Francisco, and cuit court in such cases. 14 Stat. at L. 385. Shortly after the passage of that Act, Mr. Justice Nelson refused to allow an appeal from a judgment of the Circuit Court for the Southern District of New York upon a writ of habeas corpus issued under the 14th section of the Judiciary Act of 1789, because no appeal was provided by law in the case of a habeas corpus issued under that Act, and the appeal given by the Act of 1867 was confined to cases begun under it. In re Heinrich, 5 Blatchf. C. C. 414, 427. And within two years afterwards it was determined by this court that, independently of the Act of 1867 (which was repealed by the Act of March 27, 1868, ch. 34, 15 Stat. at L. 44), this court (except in a small class of cases of commitments for acts done or omitted under alleged authority of a foreign government, as to which provision was made by the Act of August 29, 1842, ch. 257, 5 Stat. at L. 539) had no jurisdiction by direct appeal to revise the judgments of inferior courts in cases of habeas corpus, but could only do so by itself issuing writs of habeas corpus and certiorari under the general powers conferred by the Judiciary Act of 1789. Ex parte McCardle, 6 Wall. 318 [73 U. S. bk. 18, L. ed. 816], and 7 Wall. 506 [74 U. S. bk. 19, L. ed. 2611; Ex parte Yerger, 8 Wah. 85 [75 U. S. bk. 19, L. ed. 332]. See also, Er parte Royall, 112 U. S. 181 [Bk. 28, L. ed. 690]; Wales v. Whit ney, 114 U. 8. 564 [ante, 277].

If a police officer or a private citizen has the right, without warrant or express authority, to arrest a military deserter, the right must be derived either from some rule of the law of England which has become part of our law, or from the legislation of Congress.

By the common law of England, neither a civil officer nor a private citizen had the right without a warrant to make an arrest for a crime not committed in his presence, except in the case of felony, and then only for the purpose of bringing the offender before a civil magistrate. 1 Hale, P. C. 587-590; 2 Hale, P. C. 76-81; 4 Bl. Com. 292, 293, 296; Wright v. Court, 6 D. & R. 623; S. C. 4 B. & C. 596, No crime was considered a felony which did not occasion a total forfeiture of the offender's lands, or goods, or both. 4 Bl. Com. 94, 95 ; Ex parte Wilson, 114 U. S. 417, 423 [Bk. 29, L. ed. 89, 91]. And such a forfeiture did not follow upon conviction by a court-martial of a Section 1909 of the Revised Statutes, sub-crime not punishable by the courts of common stantially re-enacting provisions of earlier Acts, law. Co. Lit. 391 a; 1 Clode, Military Forces and providing that writs of error and appeals of the Crown, 176. from the final decisions of the Supreme Courts By some early English statutes, which appear of certain Territories shall be allowed to this to have been in force down to the Revolution court in the same manner and under the same of 1688, desertion was made felony, punishable regulations as from the Circuit Courts of the in the civil courts. 3 Inst. 86, 87; 1 Hale, P.

C1-40: The King v. Beal, 8 Mod. 124; S. The King v. Dale, 2 Shower, 511; 12 State Trials, 262, note; 4 Bl. Com. Iyer v. Pomeroy, 8 Allen, 480, 487-490. Bose statutes fell into disuse after Parliaby the Mutiny Acts, beginning with the 1 W. & M. ch. 5, and re-enacted alevery year since, for the first time authoray and desertion to be punished at ece of a court-martial in time of peace. wicke, in 14 Parl. Hist. 458; 1 Clode, Forces of the Crown, 19, 55, 56, 143,

F1708, the English Mutiny Acts have y, if not uniformly, contained prowhich persons reasonably suspected deserters might be apprehended by a and taken before a justice of the Tad the fact of their desertion established isfaction, before their surrender to the uthorities. Stat. 7 Anne, ch. 4, sec. • Anne, ch. 13, sec. 42; 9 Statutes of P, 56, 576; Clode, Military Law, 93, 3 Ter, Military Law, 3d ed. 200. By Acts, provision is made for their apby a military officer or soldier, if a 'cannot be immediately met with; and *aal east, an open question whether a man amitary officer causes to be appreas a deserter, and delivered to an offithe rard, without having him brought → the civil magistrate, may not maintain Linst the officer who causes his argh he cannot sue the officer of the the duty of the latter under the War to receive and hold all prisonered to him by a military officer. ▼ Garin, 16 Q. B. 48, 81; Wolton v. Q. B. 81, note.

commissioner of a circuit court, or by any
judge, mayor, justice of the peace or magis-
trate of any State where he may be found, "and
agreeably to the usual mode of process against
offenders in such State, and at the expense of
the United States, be arrested and imprisoned,
or bailed, as the case may be, for trial before
such court of the United States as by law has
cognizance of the offense," and that "copies of
the process shall be returned as speedily as may
be into the clerk's office of such court," man-
ifestly applies to proceedings before the civil
courts only.

From the very year of the Declaration of In-
dependence, Congress has dealt with desertion
as exclusively a military crime, triable and pun-
ishable, in time of peace, as well as in time of
war, by court-martial only, and not by the
civil tribunals; the only qualification being
that since 1830 the punishment of death cannot
be awarded in time of peace. Articles of War
of September 20, 1776, sec. 6, art. 1, 2 Journals
of Congress, 347, continued in force by the
Act of September 29, 1789, ch. 25, sec. 4, 1
Stat. at L. 96; Acts of March 16, 1802, ch. 9,
sec. 18; April 10, 1806, ch. 20, art. 20; Janu-
ary 11, 1812, ch. 14, sec. 16; January 29, 1813,
ch. 16, sec. 12; 2 Stat. at L. 136, 362, 673, 796;
May 29, 1830, ch. 183; 4 Stat. at L. 418; Rev.
Stat. sec. 1342, arts. 47, 48.

The provisions of the Revised Statutes concerning the trial and punishment of deserters are as follows: By section 1342," The Armies of the United States shall be governed by the following rules and articles; ""and the convictions mentioned therein shall be understood to be convictions by court-martial." By article 47, any officer or soldier who deserts the service of the United States "shall, in time of war, at appear to have ever been the law suffer death, or such other punishment as a and that a peace officer or a private cit-court-martial may direct; and in time of peace, d as such, and without any warrant any punishment, excepting death, which a ether from a civil magistrate or from court-martial may direct ;" and by article 48, **y odor, lawfully arrest a deserter for every soldier who deserts" shall be tried by a of delivering him to the military court-martial and punished, although the time for trial by court-martial. of his enlistment may have elapsed previous to Cited States, the line between civil his being apprehended and tried." The prorisdiction has always been main- visions of sections 1996 and 1998, which re-enact The Fifth Article of Amendment of the Act of March 3, 1865, ch. 79, sec. 21, 13 a, which declares that "no per- Stat. at L. 490, and subject every person dee beid to answer for a capital or oth-serting the military service of the United States as crime, unless on a present to additional penalties, namely: forfeiture of tment of a grand jury," expressly all rights of citizenship, and disqualification to Cases arising in the land or naval hold any office of trust or profit, can only take leaves such cases subject to the effect upon conviction by a court-martial, as the government and regulation of those was clearly shown by Mr. Justice Strong, when ***** by the eighth section of the First a judge of the Supreme Court of Pennsylvania, he Constitution, Congress is empow-in Huber v. Reily, 53 Pa. St. 112, and has been ake Courts martial form no part of uniformly held by the civil courts as well as by tem of the United States, and the military authorities. State v. Symonds, 57 , within the limits of their Maine, 148; Severance v. Healey, 50 N. H. 448; ***, cannot be controlled or revised by Goetcheus v. Matthewson, 61 N. Y. 420; WinDynes v. Hoover, 20 How. 65 throp's Digest of Judge Advocate General's 15. L. ed. 838]; Ex parte Mason, Opinions, 225. Bk. 26, L. ed, 12131; Wales The Articles of War have likewise always pro14 C. S. 564 [ante, 277). Con- vided that any officer or soldier who advises or er conferred upon civil officers persuades any other officer or soldier to desert or private citizens any power the service shall be punished by court-martial. er pan.shable only in a military Articles of War of September 20, 1776, sec. 6, a 1014 of the Revised Statutes, art. 4; Act of Apri! 10, 1806, ch. 20, art. 23; Rev. that," For any crime or offense Stat. at L., sec. 1342, art. 51. Section 5455 of the Caned States, the offender may, by Revised Statutes, which re-enacts the Act of adge of the United States," or March 3, 1863, ch. 75, sec. 24, 12 Stat. at L.

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[501]

[502]

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735, embracing the provisions of earlier statutes, | paid for the apprehension and delivery of a de
and by which every person who entices or pro- serter to an officer of the Army at the most con
cures a soldier to desert the military service of venient post or recruiting station." Army Re
the United States, or who aids a soldier in de- ulations of 1821, art. 69, sec. 104; 1841, art. 30
serting, or knowingly harbors a soldier who has sec. 123; 1857, art. 18, sec. 152, 1861, art. 18
deserted, "or who refuses to give up and deliver sec. 156; 1863, art. 18, sec. 156, and appx. sec
such soldier at the demand of any officer au- 48; 1881, art. 22, sec. 214.
thorized to receive him," is to be punished by
fine and imprisonment, merely provides for the
punishment of civilians, not subject to the Ar-
ticles of War, who are accessories to the crime
of desertion by a soldier, or who do any of the
acts specified tending to promote his commis-
sion of that crime. It has no application to the
crime of the soldier himself, and no tendency
to show that he may be arrested by a private
citizen without authority from a military officer.
Indeed, the last clause above quoted has rather
the opposite tendency.

The respondents contend that their authority to make this arrest is to be implied from the usage of offering rewards for the apprehension of deserters, which has existed from a very early date.

On May 31, 1786, the Congress of the Confederation passed the following resolve: “Resolved, That the commanding officer of any of the forces in the service of the United States shall, upon report made to him of any desertions in the troops under his orders, cause the most immediate and vigorous search to be made after the deserter or deserters, which may be conducted by a commissioned or non-commissioned officer, as the case shall require. That, if such search should prove ineffectual, the officer commanding the regiment or corps to which the deserter or deserters belonged shall insert in the nearest gazette or newspaper an advertisement, descriptive of the deserter or deserters, and offering a reward, not exceeding ten dollars, for each deserter who shall be apprehended and secured in any of the gaols of the neighboring States. That the charges of advertising deserters, the reasonable extra expenses incurred by the person conducting the pursuit, and the reward, shall be paid by the Secretary of War, on the certificate of the commanding officer of the troops." 11 Journals of Congress, 81.

Since the adoption of the Constitution, Congress has never passed any similar resolve or statute; and the only legislation upon the subject, that has come to our notice, is in the provision made in the annual Army Appropriation Acts from 1844 to 1876, "for the apprehension of deserters, and the expenses incidental to their pursuit," and from 1877 to the present time, "for the apprehension, securing and delivery of deserters, and the expense incident to their pursuit." Acts of June 17, 1844, ch. 106, 5 Stat. at L. 697; July 24, 1876, ch. 226, 19 Stat. at L. 98; November 21, 1877, ch. 1, 20 Stat. at L. 2; 1885, ch. 339, 23 Stat. at L. 359. These Acts clearly confer no authority upon anyone, not otherwise lawfully authorized, to arrest a de

serter.

For many years, the Army Regulations promulgated by the Secretary of War under authority of the President, have generally provided, as in those of 1821 and 1841, that a certain pecuniary reward "shall be paid to any person who may apprehend and deliver a deserter" to an officer of the Army; or, as in the later regulations, that a like reward "will be

The Army Regulations derive their force from the power of the President as Commander in Chief, and are binding upon all within the sphere of his legal and constitutional authority. Unite States v. Eliason, 16 Pet. 291 [41 U. Š. bk. 10 L. ed. 968]; United States v. Freeman, 3 How 556 [44 U. 8. bk. 11, L. ed. 724]. Whethe they could, in time of peace, and without the assent of Congress, confer authority upon civi officers or private citizens to enforce the mili tary law need not be considered, because th regulations in question cannot be construed a undertaking to confer such authority. They do not command or authorize any civilian t arrest or detain deserters, but merely direct the payment of a reward for every deserter actuall brought in, and justify the military officers in paying the reward and receiving and holding the deserter.

The President's Proclamation and order o March 10, 1863, 13 Stat. at L. 775, command ing all soldiers absent without leave to retur to their regiments, on pain of being arreste and punished as deserters, and calling upon al good citizens "to aid in restoring to their reg ments all soldiers absent without leave," is no now in force. It was issued in time of war, fo a temporary purpose, under section 26 of th Act of March 3, 1863, ch. 75, 12 Stat. at L. 731 which has been repealed by sections 5595 an 5596 of the Revised Statutes.

The rule of the common law, that a peac officer or a private citizen may arrest a felo without a warrant, has been generally held b the courts of the several States to be in force i cases of felony punishable by the civil tribu nals. Wakely v. Hart, 6 Binney, 316; Holle v. Mix, 3 Wend. 350; Rohan v. Sawin, 5 Cush 281; Brockway v. Crawford, 3 Jones (N. C. 433; Reuck v. McGregor, 3 Vroom, 70; Burns Erben, 40 N. Y. 463; State v. Holmes, 48 N. H 377. But that rule has never, so far as we a informed, been judicially extended to th case of an offender against the military lay punishable exclusively by court-martial. I Hutchings v. Van Bokkelen, 34 Maine, 126, i which it was held that an officer of the Arm might lawfully arrest a deserter and hold hi for trial by court-martial, without a warran and that proof of the person making the arre was de facto such an officer was sufficient, was not even suggested that the arrest could i supported without any evidence of his militar authority. And in Trask v. Payne, 43 Bar 569, it was decided that a civil officer or priva citizen could not lawfully arrest a deserter wit out express order or warrant.

Sections 836, 837, 849, of the Penal Code California of 1872, affirming the authority of peace officer, without a warrant, or a priva person, to make an arrest "for a public offen committed or attempted in his presence," well as in cases of felony, and requiring tl person arrested to be taken forthwith before magistrate, evidently have in view civil offens only, and if they could be construed to inclu

rds against the United States, certainly * 24 sclude offenses which are not triable shable except by court-martial. pon full consideration of the question, and Pan of the statutes, army regulations, rathorities, cited in the elaborate arfor the respondents, or otherwise known we are of opinion that by the existing law oficer or a private citizen has no au

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of Missouri.

as such, and without the order or direc-IN ERROR to the Supreme Court of the State are of a military officer, to arrest or detain a from the Army of the United States. Wether it is expedient for the public welfare good of the Army that such an authorbe conferred, is a matter for the deon of Congress.

Statement of the case by Mr. Justice Field: This case comes from the Supreme Court of Missouri. It is an action against the Missouri Pacific Railway Company, a corporation created under the laws of that State, to recover in double its value damages for killing a mule, the property of the plaintiff below, of the value of $135. It was brought in the Circuit Court of St. Louis under a statute of the State which provides that "Every railroad corporation formed or to be formed in this State, and every corporation formed or to be formed under this chapter, or H. McKenney, Clerk, Sup. Court, U. S. any railroad corporation running or operating - U.S. 173, 177; 117 U. S., 352,

therefore ordered that the judgment of the Omert, remanding the case to the Supe** Fart of the City and County of San Franformed; and that the final judgment of or Court be reversed, and the case ed to that court for further proceedings ity with this opinion.

Tempy. Test:

SOURI PACIFIC RAILWAY COM-
PANY, Plf. in Err.,

PETER HUMES.

See 8. C., Reporter's ed., 512-524.)

any railroad in this State, shall erect and maintain lawful fences on the sides of the road where the same passes through, along, or adjoining inclosed or cultivated fields or uninclosed lands, with openings and gates therein to be hung, and have latches or hooks, that they may be easily opened and shut at all necessary farm crossings of the road, for the use of the proprietors or owners of the lands adjoining such railroad, and also to construct and maintain cattle guards, where fences are required, sufficient to prevent horses, cattle, mules, and all "-st-intional law—“ due process of law"-other animals from getting on the railroad; and equal protection of the laws"-injury until fences, openings, gates, and farm crossBook by railroad company statute of ings, and cattle guards as aforesaid, shall be Her providing for additional damages by made and maintained, such corporation shall of penishment-mode of enforcing fines be liable in double the amount of all damages pensities, a matter of legislative discre- which shall be done by its agents, engines, or cars to horses, cattle, mules, or other animals on said road, or by reason of any horses, cattle, mules, or other animals escaping from or coming upon said lands, fields, or inclosures, occasioned in either case by the failure to construct or maintain such fences or cattle guards. After such fences, gates, farm crossings, and cattle guards shall be duly made and maintained, said corporation shall not be liable for any such damages, unless negligently or wilfully done." (Session Laws of 1875, p. 131.)

A ratute of Missouri provides that every railton in the State shall erect and mainfees on the sides of its road where it st, along or adjoining inclosed or culSe or uninclosed lands, with openings very farm crossings of the road,

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Costruct and maintain cattle guards,
are required, sufficient to prevent
les and all other animals from
red; and that, until fences, open-

antain such fences or cattle

that this statute does not, in cases
ed on its road, deprive the com-
ry without due process of law in al-
of the stock to recover damages
18. 20; nor does it deny to the com-

and farm crossings, and cattle guards
and maintained, such corporation
4 double the amount of all damages The petition avers the incorporation of the
Lys, engines, or cars, to horses, cat-defendant below, the plaintiff in error here; its
ther animals on the road, or by rea-
ws, cattle, mules, or other animals ownership of a railroad running into and
troming upon said lands, fields, or through the City of St. Louis; the ownership
masoned in either case by the failure of the mule by the plaintiff below on the first
of August, 1877, and its value; the failure of
the Company to construct and maintain the
fences, gates and cattle guards required by the
above statute, at the point on the line of the
road in the city where it passes through, along
and adjoining cultivated fields, and that the
mule was on that day run over and killed by
the agents, engines and cars of the Company on
the road; that the killing was occasioned
by the failure of the Company to construct and
maintain such fences, cattle guards and gates,
and that the plaintiff was damaged thereby in
the sum of $135. He therefore prays judgment
for $270 and costs.

a protection of the laws.

feature of a State may fix the amount
#bicompensation to be awarded to

by the gross negligence of a rail-
to provide suitable fences and
a mad, or prescribe the limit within
ng such damages, may ex-
The additional damages are
ent to the company for its neg-
* not a valid objection that the suf-

Laetate receives them.

Mr. Justice FIELD.

[513)

[514]

deny carried to the Supreme Court of the State and where the judgment of the lower court was af - firmed after full consideration and argument by the and thereupon this writ of error was brought Messrs. A. B. Browne, A. T. Britton and Thos. J. Portis, for plaintiff in error:

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- bord, and the
De plictif,

S. Thereupon,
wern ivulied, and
a is ner for $270

w nken by the dence on the - Ius stages Perla di the action, east the ComLe sacre upon which a a son of and in

e 74, of the Constitution thats depriving the so far as it exceeds sale or injured, withw.sm that it denies to protection of the laws. ice of the Constitution son that it is taking the 1 "he defendant against its cons and benefit of the plainseunt claimed by plaintiff i de stock killed or injured, wag and appropriating, without av de property of the defendNADER, which use is priJe meaning of said provision. Nice 2, of the Constitution Se a Esteri, in that, so far as plainWer in excess of the value of the SCOTd, it is depriving the deseperty without due process of

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Railroad corporations are "persons" within the meaning of the term as used in the Consti tution, who cannot "be deprived of life, liber ty, or property without due process of law, and who are entitled to "the equal protection o the laws."

R. R. Tax Case, 8 Saw. 263; Bank of U. S v. Dereaux, 5 Cranch, 86 (9 U. S. bk. 3, L. ed 44); Society, etc. v. New Haven, 8 Wheat. 40 (21 U. S. bk. 5, L. ed. 662); Marshall v. Balt. O. R. R. Co. 16 How. 314 (57 U. S. bk. 14, L. ed 953); Sinking Fund Cases, 99 U S. 718 (Bk. 25 L. ed. 501).

This "double damage" Act of the State o Missouri requires the railroad to make a dona tion to individuals.

It deprives this Corporation of its propert without due process of law, and denies to it th equal protection of the laws.

Cole v. La Grange, 113 U. S. 7 (Bk. 28, L. ed 898); St. Louis Co. Ct. v. Griswold, 58 Mo. 173

The statute is not a penal one. Statute which stand upon the police power of the Stat are not necessarily penal.

Cooley, Const. Lim. 596. See also Potter Dwarris, 74; Reed v. Northfield, 13 Pick, 94. Mr. T. K. Skinker, for defendant in error

The Fourteenth Amendment has no applica tion to this case, since no question of discrim nation against the negro race is involved.

Slaughter House Cases, 16 Wall. 36 (83 U. § bk. 21, L. ed. 394); Strauder v. West Virgini 100 U. S. 303 (Bk. 25, L. ed. 664); Neal v. Del ware, 103 U. S. 370, 386 (Bk. 26, L. ed. 567, 570

The statute in question does not deny to th plaintiff in error the equal protection of the law

Tredway v. R. R. Co. 43 Iowa, 527; Johnso v. R. R. Co. 29 Minn. 425; Farrell v. Unio Trust Co. 77 Mo. 475; State v. Matthews, 44 M * SUN sw of the land. 529; Soon Hing v. Crowley, 113 U. S. 703 (B) eica M article 4, of the Constitu-28, L. ed. 1145); Barbier v. Connolly, 113 U. De Sale of Missouri, in that it is grant- 27 (Bk. 28, L. ed. 923); R. R. Co. v. Richmon 5 ass of persons, of which plaintiff is 96 U. S. 521 (Bk. 24, L. ed. 734); New Orlean ses and exclusive right, privilege, v. Dubarry, 33 La. An. 481; S. C. 39 Am. Re 273; Cincinnati, etc. R. R. Co. v. Commonwealt 81 Ky. 492.

cace 7. article 11, of the Constitution A Sau 22 Missouri, in that it is giving the oceeds of the penalty, to wit: the nude one and above the value of the stock

ared, to the plaintiff, and not to the wak ss provided by said section, and Les'sture has provided no remedy, tit, for the recovery of such pen

er sual school fund.

It does not deprive the plaintiff in error his property without due process of law.

Walker v. Sauvinet, 92 U. S. 90 (Bk. 23, ed. 678); Davidson v. New Orleans, 96 U. S. (Bk. 24, L. ed. 616).

The statute in question is a police regulatio Its object is, by compelling railroad compani to fence their lines, to keep live stock out De court overruled the objections in the way of trains, and thus afford greater carce, as they were made, and the de-curity to the traveling public, to property ever, below excepted to the rulings. A mo- transit and to the stock itself. or a new trial, and also in arrest of judg c was made on similar grounds, and was posed of in the same way against the excepJoe of the defendant.

the case being taken to the Court of Appeals of St. Louis, the judgment was there affirmed without prejudice to either party in the appellate court, both parties waiving any error in such affirmance. The case was then

State v. Matthews, 44 Mo. 523, 529; Fletch v. R. R. Co. 73 Mo. 143; Revelle v. R. R. Co. Mo. 438, 441.

In the exercise of the police power, the L islature may impose upon a wrong doer a ì bility, recoverable in a civil action at the s of the party injured, beyond that of respondi merely to the amount of the damage be done."

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