
    The Baltimore and Ohio Railroad Co. v. McElroy.
    The provisions of the act of April 18, 1874 (71 Ohio L. 85), relating to the inclosing of railroads by fences and cattle-guards, apply to all railroads then in operation and unfenced, and extended the time within which such railroads were required to be fenced for the period of six months after the date of the passage of the act; and until the time thus extended had elapsed, no liability for an-injury to trespassing animals arose from the failure to construct such fence.
    Error to the District Court of Berry county.
    The original action was brought before a justice of the peace by the defendants in error, who were plaintiffs below,to recover the value of a horse killed by a train on the road of the plaintiff in error, on the 16th day of July, 1874. The case was there tried to a jury, and there was'a verdict and judgment for the plaintiffs below for the value of the horse.
    A bill of exceptions, which is made part of the record was taken by the defendant below, from which it appears that on the trial the' justice, at the request of the plaintiff: below, charged the jury:
    “ That if the jury should,find from the clear preponderance of the evidence that on or about the 16th day of July,' 1874, the said defendant had the control and 'management Of the said Newark, Somerset and Straitsville Railroad, and had controlled and managed the same for more than a year then last past; and if they further find that by one off the trains run on said road by the said defendant the horse of the plaintiffs was run on and injured, on or about the 16th day of July, 1874( whereby he died; and if they shall further find thaf said horse was turned out by the plaintiffs' on their own premises, and without any fault or neglect of the plaintiffs, but by reason of the want of a fence along the said railroad track, and was run upon and injured by one of the defendant’s trains aforesaid, then the jury would be authorized, under the law, to find in favor of the plaintiffs.”
    To this charge the defendant below excepted. On error duly prosecuted, the judgment of the justice was affirmed in the court of common pleas, and that of the latter court was affirmed in the district court.
    This proceeding is prosecuted to obtain a reversal of the several judgments in the courts below.
    One of the errors assigned and throughout insisted upon is, “that the justice ei’red in giving in charge to the jury the instructions asked for by said plaintiffs ” (defendants in error).
    
      Butler & Huffman, for plaintiff in error:
    At the time of this injury there was no law in the state requiring railway companies to fence their roads. It occurred before the expiration of the six months allowed in the act to companies in which to build their fences after its passage, and taking effect on the 18th day of April, 1874. Ohio Laws of 1874, p. 85.
    By this act railway companies were required to fence their roads within six months after its passage and taking effect, which repealed section 1 of the act passed April 26, 1871, amending section 1 of the act entitled “ an act providing for inclosing railroads by fences and cattle-guards,” passed March 25, 1859 (¡Swan & Critchfield, 331), repealing or superseding all law in the state requiring railway companies to fence their roads. The 1st, 2d and 3d sections of the act of March 25, 1859, wore repealed by the act of April 26, 1871, and the 1st section amended, or, rather, enacted into the last act, which contains only one section. It is true the 4th section of the act of 1859 remained unrepealed in words, but this section contained only the penalty for the failure to build the fence required to be built by the sections so repealed. But we think a court would hardly impose a penalty on a company for failing to build a fence when there was no law making it the dufy of the company so to fence.
    
      We claim that upon the passage of the law of 1871 there was no law requiring railroads to fence, except that act, which by its own limitation did not operate to require railroads to fence for one year after its passage; and by the act of April 18, 1874, the first section of the act of .1871 is repealed, which is the entire act, and sweeping away all law requiring such fencing.
    We claim that this act is to be construed as if it were the first one passed by the legislature on this subject. This being the true construction, railroad companies were not required by law to fence their roads after the passage of the act of April 18, 1874, until after the lapse of six months after that date, and during this interval of time the injury complained of occurred.
    On the construction of this statute, and similar statutes, see 27 Ill. 30; lb. 41; 13 Wis. 637; Redfield on Neg. 530-532, aud § 457.
    
      W. E. Finck, for defendant in error:
    It has been the well-settled policy of this state, since 1859, to require railroads to fence their tracks, so as to preserve life and property. 1 S. & C. 331, §§ 1, 5; 68 Ohio L. 78, 79, § 1. By this act last cited, sections 1, 2) 3, of the act of March 25,1859, are repealed; the act of April 18, 1874 (71 Ohio L. 85), repealing section 1 of the act of April 26, 1871.
    It is true the act required the fence to be built within six mouths after the passage of the act, or within six months after cars commence to run on the road. But this • did not release the company from liability for damages which might result from the want or insufficiency of such fence.
    What I claim is that the act does not postpone the lia-. bility of the railroad company, for such damages, for any time after the passage of the act, but that this liability, under the several acts aforesaid, has been continuing and constant ever since the 25th day of March, 1859, under the several acts already referred to.
   Gilmore, C. J.

On the 18th of April, 1874 (71 Ohio L. 85), the general assembly passed an act “to amend section 1 of an act entitled an act providing for inclosing railroads by fences and cattle-guards/ as amended April 26, 1871.” The amendatory act, as far as it is necessary here to recite it, provides : “ That any railroad company, or other party having control or management of a railroad, .the whole or part of which is now or shall be in this state, is hereby required, at their own expense, to construct good and sufficient fence to turn stock along the whole line, except as hereinafter provided, on both sides of said railroad, within six months after the passage of this act, which then have not been fenced as required by this act, and within six months from the time cars are commenced to be run for the transportation of passengers or freight, on all railroads that .have not commenced running regular trains at the date of the passage of this act, and at their own expense to keep said fences up in good repair thereafter, and also to make and maintain safe and sufficient crossings, of good width, at every point where a public road, street, lane, or highway, may cross said railroad, that is or may be used by the public, with the necessary cattle-guards, on each side of said .crossings, to prevent cattle or other domestic animals from endangering themselves and the lives of passengers by getting upon such railroads, and every such railroad company or party shall be liable for all damages sustained in person or property, in any manner, by reason of the want or insufficiency of any such fence,-crossing, or cattle-guard,” etc. This act took effect, and was in force, from and after its passage.

The horse, for the killing of which the action was brought before the justice, was killed on the 16th of July, 1874, being less than six months after the passage of the act. The remedy was sought, and the recovery had under the act above quoted from; the charge of the justice on this point being, that if the plaintiffs were without fault, and the horse was killed “ by reason of the want of fence along the said railroad track, by one of defendant’s trains, .then the jury would be authorized, under the law, to find in favor of plaintiffs.”

If the time within which the railroad company (defendant below) was required to feuce its road, was six months from the date of the act, then, inasmuch as that period had not expired at the time the injury complained of occurred, it follows that the charge of the justice was erroneous; for it authorized the jury to find for the plaintiffs if the horse was killed by reason of the want of fence along the railroad, whether the railroad company or its agents acted negligently in committing the injury or not.

The only question therefore is: Did the act of 1874 give the railroad six months in which to fence its road, as required by the act ? .

We think it did. Until required to do so by legislation, railroads, in this state, were not bound to'fence the line of their roads. The whole subject .is therefore within the control of the general assembly, and in seeking for the intent with which the act in question was passed, we must look to prior legislation on.the same subject. The rule is, that where it is manifestly the intention of the legislature that a subsequent act shall not control the provisions of a former act, the subsequent act shall not have such operation, even though the words, if taken strictly and grammatically, would repeal the former act.

The contention of counsel for defendants in error is, that it has been the well settled policy of this state, since 1859, to require railroads to fence their tracks, so as to preserve life and property. But it is not, and can not be, contended that a subsequent act of the legislature will not control the provisions of a prior statute, if it were intended to have that operation. The legislative intent, in this respect, must be sought, not only in the act of 1874, but also in the prior acts relating to the same subject. Two such acts preceded that of 1874. The first was passed and took effect March 25, 1859. S. & G. 331. It contained five sections. The first required every railroad company, or other party having control of a railroad then in operation, in this state, to construct good and sufficient fences on both sides of its road, within two years from the date of the passage of the act, or within two years after commencing to run regular passenger or freight cars thereon. By the second section, such fences, when built, as between the railroad company and the owners of improved lands through which the road passed, became partition fences, on the terms therein prescribed. The third section related to the repair of such fences. The fourth section provides that the act shall not affect contracts between railroad companies and the proprietors of adjoining lands, for the construction and maintenance of fences, cattle-guards, and crossings. The fifth section prescribes a penalty, not exceeding fifty dollars, for each and every day any railroad company refuses or neglects to comply with the provisions of the act.

This indicates the scope of the first act. The declared policy or purpose of the act was to “prevent cattle and other animals from endangering themselves and the lives of passengers by getting upon such railroads.” The sub- • sequent acts have not changed this declared purpose or policy.

The first section of the act of 1859 was amended by that of 1871. (68 Ohio L. 78.) The only material changes made by the amendment were, that by this act railroads were required to fence their roads within one, where by the former act they were required to do so in two years, and railroad fences were declared partition fences only when the railroad ran on the boundary of any inclosed farm or farms.

There is, however, a noticeable proviso in the first section of this act, which reads as follows : “ Nothing herein shall be construed to extend the time within which any existing railroad company, or other party, is required to fence its railroad, by the act hereby amended.” This proviso is a clear indication of the legislative intent as to existing railroads, and it continued the first act in force as to existing roads. In other words, there was only a partial repeal of the first section of the first act, although the second section of the amendatory act expressly repeals sections one, two, and three of the amended act.

The first section of the act of 1874 amends the first section of the act of 1871. The material changes made were that six months is fixed as the time within which existing railroads are required to fence their roads, instead of one year, as required by the first section of the act of 1871, and railroad fences do not become partition fences, but are to be built and kept in repair at the expense of the railroad company.

The second section of.the act of 1874 reads as follows: “ Section one of said act, passed April 26, 1871, amending section one of an act entitled an act providing for indos ing railroads by fences and cattle-guards,’ passed March 25, 1859, is hereby repealed.” But the second section of the act of 1871, which repeals sections one, two, and three of the act of 1859,,is not repealed. I do not mention this because it is of legal significance in this case, but because it reflects upon the intention of the legislature, and when taken in connection with the fact that the proviso of the act of 1871 is omitted in the act of 1874, it shows conclusively that it was the intention of the legislature to repeal, not only the first section of the act of 1871, but the first, second, and third sections of the act of 1859, which we find was done. This left the first section of the act of 1871, and the fourth and fifth sections of the act of 1859, only, in force.

Independent of legislation, there is no state policy in reference to the fencing of railroads, which we are authorized to recognize.

The act of 1874 clearly gives to l-ailroad companies then in operation, and whose roads were not fenced, as was the case with the defendant company (plaintiff in error), six months from the date of the passage of the act within which to fence their road. This period had not elapsed at the time the injury occurred for which the plaintiffs below brought their action, and the liability imposed by the statute could not attach to the company at the time of the injury, for it was not then in default in fencing its road.

This decision does not touch questions that may arise in reference to fences that were built by railroads in pursuance of the requirements of the acts of 1859 and 1871.

■ The charge of the justice was erroneous.

The judgments of the district court, court of common pleas, aud justice’s court respectively, are reversed, and cause remanded to the court of common pleas for such further proceedings as may be authorized by law.

Judgment accordingly.  