
    The Rio Grande Western Ry. Co., Appellant, v. Vaughn, Appellee.
    CONSTITÜTÍOMAL LAW.
    The railroad stock-killing act is unconstitutional.
    
      Appeal from the County Court of Mesa County.
    
    Mr. Charles F. Caswell, for appellant.
    No appearance for appellee.
   Thomson, J.,

delivered the opinion of the court.

This is an action to recover damages for the killing of a horse belonging to the appellee, plaintiff below. The case was commenced before a justice of the peace and there were no written pleadings. It was appealed to the county court, where judgment was rendered against the defendant for $200 damages for the killing of the horse, and $100 attorneys’ fees. None of the evidence is preserved in the record, so that we are unadvised as to whether a recovery by plaintiff would have been authorized by the rules of the common lawbut even if so, the judgment is erroneous, because the finding of the court is that the value of the horse was $100, and that sum, therefore, would be the limit of recovery.

The judgment, however, is in terms based upon the statutory, and not the common law, liability of the defendant. It is conceded that the plaintiff complied with the statutory requirements, and, unider the evidence, was entitled to the judgment which was rendered in his favor, provided the statute itself is valid. The sole question presented by the argument is as to the constitutionality of sections 13 and 14, chapter 93, of the General Statutes of Colorado, and the subsequent amendments to section 14. This section was amended by an act approved March 31, 1885 (Session Laws of 1885, page 304); and again, by an act approved April 6, 1891 (Session Laws 1891, page 281). Neither of the amendments made any substantial change in the original section, and they did not differ materially from each other.

The constitutional question presented has been settled in this state, both by the Supreme Court and by this court. Wadsworth v. Union Pac. Ry. Co., 18 Colo. 600; D. & R. G. Ry. Co. v. Outcalt, 2 Colo. App. 395.

In both of these cases the law was held unconstitutional. The judgment is reversed, with leave to the plaintiff, if he so desires, to proceed to a new trial in accordance with common law principles.

Reversed.  