Argument for Plaintiff in Error. court was affirmed after full consideration and argument; and thereupon this writ of error was brought. Mr. A. B. Browne [Mr. A. T. Britton and Mr. Thomas J. Portis were with him on the brief] for plaintiff in error.—The statute is repugnant: (1.) To Article 5 of the Amendments to the Constitution, which provides that no person shall "be deprived of life, liberty, or property, without due process of law;" and—(2.) To § 1, of Article 14, which provides that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Article 5 is a direct guaranty of a right. Article 14 is a direct prohibition against its invasion. To bring this plaintiff in error within the right guaranteed is to bring this statute within the prohibition declared. A railway company is a "citizen and a person," within the meaning of the terms as used in these articles. Railroad Tax Case, 8 Sawyer, 238, 265, by Mr. Justice Field; Bank of the United States v. Deveaux, 5 Cranch, 61, 86; Society for Propagating the Gospel v. New Haven, 8 Wheat. 464; Marshall v. Baltimore & Ohio Railroad Co., 16 How. 314. The act in question imposes upon the railroad companies (1) the duty of maintaining fences; (2) liabilities in double the amount of damage done in certain cases when the duty is not performed. The power of the State to impose the duties enjoined by this statute is not questioned. Its power to inflict double damage therefor, and hand over to the injured party that which represents double the amount of his injury, is directly challenged, because depriving the corporation of its property without "due process of law," and denying to it the equal protection of the laws." In Barnett v. Atlantic & Pacific Railroad, 68 Missouri, 56, the statute is declared a penal one upon the authority of Gorman v. Pacific Railroad, 26 Missouri, 441, 450; Trice v. Hannibal & St. Joseph Railroad, 49 Missouri, 438, 440; Seaton v. Chicago, Rock Island & Pacific Railroad, 55 Missouri, 416; Parish v. Missouri, 66 Argument for Plaintiff in Error. Kansas & Texas Railway, 63 Missouri, 284, 286. It by no means follows that, considered either as a penal statute or an exercise of police power, the penalty affixed thereto and the mode of its enforcement is a lawful exercise of legislative power. The police power of the State is defined by Chief Justice Shaw, in Commonwealth v. Alger, 7 Cush. 84, as "the power vested in the legislature by the Constitution to make, ordain, and establish all manner of wholesome and reasonable laws, statutes, and ordinances, either with penalties or without, not repugnant to the Constitution, as they shall judge to be for the good and welfare of the commonwealth, and of the subjects of the same." The limitation of such power, is thus defined by Cooley. "If the power only extends to a regulation of rights with a view to the due protection and enjoyment of all without depriving any one of that which is justly and properly his own, then its possession and exercise by the State, in respect to the persons and property of its citizens, cannot well afford a basis for an appeal to the protection of the national authorities." Constitutional Limitations, 575. Similar enactments, imposing similar duties, have been upheld, where the statute gives the injured party the actual amount of his damage. Thorpe v. Rutland & Burlington Railroad, 27 Vt. 140; Suydam v. Moore, 8 Barb. 358; Corwin v. Erie Railroad Co., 13 N. Y. 42. In Cole v. La Grange, 113 U. S. 1, the court says (at page 7) of the Constitution of Missouri: "The express provisions of the Constitution of Missouri tend to the same conclusion. It begins with a Declaration of Rights, the sixteenth article of which declares that 'no private property ought to be taken or applied to public use without just compensation.' This clearly presupposes that private property cannot be taken for private use. St. Louis County Court v. Griswold, 58 Missouri, 175, 193; 2 Kent Com. 339 note, 340. Otherwise, as it makes no provision for compensation except when the use is public, it would permit private property to be taken or appropriated for private use without any compensation whatever." The same provision in the Federal Constitution should have the same construction. We deny, however, that this statute is a penal one. The declara Opinion of the Court. tion of the court below is not binding on this court. The terms of the act are penal, but its effect is remedial and it is consequently a remedial statute. See Cooley on Constitutional Limitations, 596; Potter's Dwarris, 74. The liability created by it is to an individual. It is not contended that he has suffered a wrong for which, by natural rules of right or artifical rules of conduct, he is to be compensated. The law discharges its obligation to him and fully protects his rights of property by giving full damages for the injury. Beyond that limit he has suffered no injury, and has no right, natural or otherwise, to demand more. Hence a statute which attempts to give him more cannot be regarded as penal unless it be upon the ground that a public injury may be fully compensated by an individual benefit, and to give a gratuity to one operates as a common benefit to all. Reed v. Northfield, 13 Pick. 94, does not conflict with this doctrine. As against a municipality, and for personal injuries, such a statute could be upheld. The court below cite a large number of State laws providing double damages or other penalties as upholding the constitutionality of this statute. By examination thereof it will be found that they all relate to acts of wilful wrong, things forbidden by positive law, and equally obnoxious to good morals and natural right. Such is not this case. The decision and opinion in Atchison & Nebraska Railroad Co. v. Baty, 6 Neb. 37, is in point. It is there held that "the excess beyond the damage sustained, whatever it may be, is so much property taken from one person and given to another." The statute is further obnoxious on the ground that it applies only to railroad corporations, and not to individuals operating railroads. The court declined to hear argument for defendant in error. Mr. George P. Jackson, appeared for the defendant in error, and Mr. T. K. Skinner filed a brief for same. MR. JUSTICE FIELD delivered the opinion of the court. After stating the facts in the language reported above, he continued: The ruling below on the objections to the validity of the Opinion of the Court. statute of Missouri, so far as they are founded on its asserted conflict with the Constitution of that State, is not open to review here. As the case comes from a State court, our jurisdiction is limited to the objection that the statute violates the 1st section of the Fourteenth Amendment of the Constitution of the United States, in that it deprives the defendant of property without due process of law, so far as it allows a recovery of damages for stock killed or injured in excess of its value, and also in that it denies to the defendant the equal protection of the laws. That section, in declaring that no State shall "deprive any person of life, liberty or property without due process of law," differs from similar clauses in the Constitution of every State, only in that they apply merely to the State authorities. The same meaning, however, must be given to the words "due process of law," found in all of them. It would be difficult and perhaps impossible to give to those words a definition, at once accurate, and broad enough to cover every case. This difficulty, and perhaps impossibility, was referred to by Mr. Justice Miller, in Davidson v. New Orleans, 96 U. S. 97, where the opinion was expressed that it is wiser to ascertain their intent and application by the "gradual process of judicial inclusion and exclusion, as the cases presented for decision shall require, with the reasoning on which such decisions may be founded." p. 104. In England the requirement of due process of law, in cases where life, liberty and property were affected, was originally designed to secure the subject against the arbitrary action of the Crown, and to place him under the protection of the law. The words were held to be the equivalent of " law of the land." And a similar purpose must be ascribed to them when applied to a legislative body in this country; that is, that they are intended, in addition to other guaranties of private rights, to give increased security against the arbitrary deprivation of life or liberty, and the arbitrary spoliation of property. But, from the number of instances in which these words are invoked to set aside the legislation of the States, there is abundant evidence, as observed by Mr. Justice Miller in the case referred Opinion of the Court. 66 to, "that there exists some strange misconception of the scope of this provision, as found in the Fourteenth Amendment." It seems, as he states, to be looked upon as a means of bringing to the test of the decision of this court the abstract opinions of every unsuccessful litigant in a State court, of the justice of the decision against him, and of the merits of the legislation on which such a decision may be founded." This language was used in 1877, and now, after the lapse of eight years, it may be repeated with an expression of increased surprise at the continued misconception of the purpose of the pro vision. If the laws enacted by a State be within the legitimate sphere of legislative power, and their enforcement be attended with the observance of those general rules which our system of jurisprudence prescribes for the security of private rights, the harshness, injustice, and oppressive character of such laws will not invalidate them as affecting life, liberty or property without due process of law. Within the present century, the punishment of death or long imprisonment was inflicted in England for many offences which are not now visited with any severer penalty than a fine or a short confinement, yet no one has ever pretended that life or liberty was taken thereby without due process of law. And it often happens that heavy and oppressive burdens are imposed by statute upon residents of cities and counties, not merely to meet the necessary expenses of government, but for buildings and improvements of doubtful advantage, which sometimes, as in changing the grade of streets, seriously depreciate the value of property. Yet, if no rule of justice is violated in the provisions for the enforcement of such a statute, its operation, in lessening the value of the property affected, does not bring it under the objection of depriving a person of property without due process of law. It is hardly necessary to say, that the hardship, impolicy, or injustice of State laws is not necessarily an objection to their constitutional validity; and that the remedy for evils of that character is to be sought from State legislatures. Our jurisdiction cannot be invoked unless some right claimed under the Constitution, laws, or treaties of the United States is invaded. This |