Statement of Facts. double damages are recovered, of its property without due process of law, or deny it the equal protection of the laws, in violation of the Fourteenth Article of Amendment of the Constitution of the United States. The legislature of a State may fix the amount of damages beyond compensation to be awarded to a party injured by the gross negligence of a railroad company to provide suitable fences and guards of its road, or prescribe the limit within which the jury, in assessing such damages, may exercise their discretion. The additional damages are by way of punishment to the company for its negligence; and it is not a valid objection that the sufferer instead of the State receives them. The mode in which fines and penalties shall be enforced, whether at the suit of a private party, or at the suit of the public, and what disposition shall be made of the amounts collected, are matters of legislative discretion. This case came from the Supreme Court of Missouri. It was 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 provided that: "Every railroad corporation formed or to be formed in this State, and every corporation formed or to be formed under this chapter, or any railroad corporation running or operating 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, so 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 other animals from getting on the railroad; and until fences, openings, gates, and farm crossings, and cattle guards as aforesaid, shall be made and maintained, such corporation shall be liable in double the amount of all damages 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. VOL. CXV-83 Statement of Facts. 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. The petition averred the incorporation of the defendant below, the plaintiff in error here; its ownership of a railroad running into and through the city of St. Louis; the ownership of the mule by the plaintiff below on the 1st 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 passed 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 prayed judgment for $270 and costs. The defendant answered the petition, denying generally all its material allegations; and averring, as a further defence, that such injuries or damages as were sustained by the plaintiff were caused by his own careless, negligent, and unlawful acts directly contributing thereto. The plaintiff, in reply, traversed the averments of this second defence. The action was tried by the court without a jury by stipulation of the parties. The allegations of the petition were established, and the court found the issues in favor of the plaintiff, and assessed his damages at $135. Thereupon, on his motion, the damages were doubled, and judgment was rendered in his favor for $270 and costs. On the trial, objections were taken by the defendant to the admission of evidence on the part of the plaintiff, and, also, in various stages of its progress, to the prosecution of the action, and to the entry of judgment against the company, on the ground that the statute upon which the action is brought is in violation of and in conflict with: 1st. Section 1, Article 14, of the Constitution of the United Statement of Facts. States, in that it was depriving the defendant of its property, so far as it exceeded the value of the stock killed or injured, without due process of law, and in that it denied to the defendant the equal protection of the laws. 2d. Section 20, Article 2, of the Constitution of the State of Missouri, in that it was taking the private property of the defendant against its consent for the private use and benefit of the plaintiff, so far as the amount claimed by plaintiff exceeded the value of the stock killed or injured, and was so far taking and appropriating, without due process of law, the property of the defendant to the use of the plaintiff, which use was private within the meaning of said provision. 3d. Section 30, Article 2, of the Constitution of the State of Missouri, in that, so far as plaintiff sought to recover in excess of the value of the stock killed or injured, it was depriving the defendant of its property without due process of law, and against the law of the land. 4th. Section 53, Article 4, of the Constitution of the State of Missouri, in that it was granting to a class of persons, of which plaintiff was one, a special and exclusive right, privilege, and immunity. 5th. Section 7, Article 11, of the Constitution of the State Missouri, in that it was giving the clear proceeds of the penalty, to wit, the amount over and above the value of the stock killed or injured, to the plaintiff, and not to the school fund, as provided by said section, and that the legislature had provided no remedy, or party plaintiff, for the recovery of such penalty for said school fund. But the court overruled the objections in each instance, as they were made, and the defendant below excepted to the rulings.. A motion for a new trial, and also in arrest of judgment, was made on similar grounds, and was disposed of in the same way against the exception of the defendant. The case being taken to the Court of Appeals of St. Louis, the judgment was there affirmed pro forma without prejudice to either party in the appellate court, both parties waiving any error in such affirmance. The case was then carried to the Supreme Court of the State, where the judgment of the lower 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 Rail. road, 49 Missouri, 438, 440; Seaton v. Chicago, Rock Island & Pacific Railroad, 55 Missouri, 416; Parish v. Missouri, 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 |