Jones v. Central Railroad & Banking Co. , 21 Ga. 104 ( 1857 )

By the Court.

Benning, J.

delivering the opinion.

The question is, was the non-suit right ?

The non-suit was right if the fifth section of the Act of 1847, “to define the liabilities of the several Railroad Companies of this State, for injury to, or destruction of livestock,” &c.,. was repealed by the act of 1854, “to define the liabilities of the several Railroad Companies of this State, for injury to, or destruction of live stock,” &c.

The Act of 1847, prescribed a particular mode of redress for the injury or destruction of live stock, and other property, by the Railroad companies.

The fifth section of the act was merely in part prescription of that mode. That section was as follows: “Before entering on his duties, the engineer shall take and subscribe an oath to render a true account to the agent at the depot, as above required, of all property damaged as aforesaid; and any Railroad Company employing an engineer to whom such oath has not been administered, shall pay each and every land owner through whose land the'road runs, at the rate of five dollars per mile, for each and every trip through said land.” Cobb’s Dig. 399.

This section was merely a part of the means or mode taken, to accomplish the end in view, which was redress for the injuring of live stock.

The act of 1854, prescribed a different mode for accomplishing the same object. Its language is, “that from and after the passage of this act, the several Railroad Companies in this State shall be held liable, under the rules hereinafter prescribed,” &c. And then it proceeds to prescribe rules entirely inconsistent with those prescribed by the Act of 1847, that is to say, it prescribes a mode of redress that is inconsistent with the mode of redress prescribed by the Act of 1847. Acts of 1854, p. 93.

The consequence is, that it repeals that mode, and therefore repeals the fifth section of the act, as included in that mode.

And this conclusion derives support, if it needs any, from this, that the Legislature in passing these two acts, and the act of 1843, on the same subject, manifestly could not have intended to furnish these different new modes of redress, but must have intended by trying one mode after another, finally to perfect a mode and make that the only one.

This being so, the non-suit was right.

And if the non-suit was right for a reason so sufficient as this, it becomes unnecessary to enquire, whether it was not also right for the other reasons assigned in the bill of exceptions.

Judgment affirmed.