
    Illinois Central Railroad Co. v. The State.
    Railroads. Obstruction of streets. Oode 1892, ? 3551.
    Section 3551, code 1892, forbidding certain obstructions by railroad trains, applies only to highways in the country and to streets in a municipality where, by ordinance, obstruction' of the streets beyond a prescribed period is prohibited. If there is no local ordinance, there is no penalty for obstructing streets. Railway Co. v. French, 69 Miss., 121.
    From the circuit court of the second district of Panola county.
    IIon. Eu&ene Johnson, Judge.
    Criminal prosecution against the Illinois Central Railroad Company, begun before a justice of the peace, for obstructing a highway in the town of Batesville. There was a conviction in the justice court, followed by an appeal to the circuit court, where the case was tried on an agreed statement of facts, and the defendant was again convicted; hence this appeal. The agreed statement shows that a public street at a crossing of defendant’s railroad in the town of Batesville was obstructed by one of its trains for a longer period than five minutes; that Batesville is an incorporated town, but that it had adopted no ordinance prescribing a period beyond which the streets could not be obstructed.
    
      Section 3551, code 1892, is as follows: “Every railroad company, upon stopping any train at a place where such railroad shall cross a highway, shall so uncouple its cars as not to obstruct travel upon such highway for a longer period than five minutes; and it shall, upon stopping a train at a place where the railroad is crossed by a street, so uncouple the cars as not to obstruct travel thereon for a longer period than shall be prescribed by ordinance of the city, town or village. A failure to observe this and the four last preceding sections shall cause a railroad company to be liable to a fine of fifty dollars for each offense.”
    
      Mayes & Harris, for appellant.
    The word “ highway,” as used in § 1050, code 1880, relates alone to highways in the country. Railroad Co. v. State, 51 Miss., 137.
    In adopting the code of 1892, the legislature accepted the meaning of the word “highway” thus fixed. There was then inserted an additional clause, giving to municipalities the right to fix the limit of time beyond which street crossings should not be obstructed. This is reasonable, because in different towns there must be a difference in the urgency. Here it is admitted that the town had adopted no ordinance on the subject, and hence there could be no conviction.
    
      Frank Johnston, attorney-general, for the state.
    While it was held in Railroad Co. v. State, 51 Miss., 137, that the term highway, used in § 1050, code 1880, relating to sign-boards, embraced only the public roads, and not streets, non constat that the same rule would have been applied to § 1049 of that code, relative to crossings. The purposes of the two sections are very different. There was no reason for requiring sign-boards at all the street-crossings of a town, while, on the contrary, the obstruction of street-crossings by railroads would be attended with greater inconvenience to the public than the obstruction of a country road. So that it may be said that § 1049, code 1880, would apply to the obstruction of streets in a municipality, treating them, in this sense, as public highways. It is, therefore submitted that, under the code of 1880, it was unlawful for a railroad company to obstruct any highway, whether a street or a country road.
    The first clause of § 3551, code 1892, is identical with § 1049, code 1880, and embraces all highways. The second clause is an addition, and this calls for construction. If the construction suggested for the first clause is correct, then the second conferred upon the municipality the power of prescribing the duration of the obstruction of its streets, which might be for a shorter time than five minutes. Where it prescribes no time, then the statutory period of five minutes would govern.
   Cooper, J.,

delivered the opinion of the court.

Under the agreed facts, the defendant should have been discharged. By § 3551, code 1892, a railroad company is subjected to a fine of fifty dollars (1) for obstructing travel upon a “ highway ” for a longer period than five minutes, and (2) for obstructing a “ street ” for a longer period than shall be prescribed by ordinance of the city, town or village.

The word “highway,” as used in this section, relates alone to highways in the country. Railroad Co. v. State, 51 Miss., 137; Railway Co. v. French, 69 Ib., 121. It was admitted by the state that the town of Batesville, for the obstruction of .a street of which town the prosecution was made, had no ordinance governing the subject. The appellant, therefore, was not liable under the second clause of the section.

Judgment reversed, and defendant discharged.  