Horn v. Chicago & Northwestern Railway Co. , 38 Wis. 463 ( 1875 )

Ryan, C. J.

The advantages and dangers of transportation by railroad are inseparable, resting alike on power and rapidity of movement. The external danger is most apparent where these roads cross other highways, proportionally with density of population. Therefore, while the franchise of railroad corporations licenses generally unlimited speed, power is reserved to the legislature to regulate the exercise of the franchise for public security. Hence such provisions as secs. 23 aud 41, ch, 79, E. S., continued in secs. 37 and 43 of the general railroad act of 1872.

And we cannot agree with the learned counsel of the respondent that these are only expressions of legislative opinion, mere admonitions of proper care in the guidance of the vis armata of railroad trains. Undoubtedly, as well within these restraints as under the general franchise, railroad corporations are bound to due care in the exercise of their powers. But the restraints are as positive as the franchise, are positive limitations of the franchise; and violations of them are not unlawful only, but are criminal, so expressly made by both statutes. See McCall v. Chamberlain, 13 Wis., 637; Langhoff v. Railway Co., 19 id., 489; Ewen v. Railway Co., decided at tbis term, and other cases in this court. And railroad trains, violating any of these salutary provisions, take all the consequences of unlawful and criminal acts.

The franchise authorizes unlimited speed in general; the statute limits the rate of speed within incorporated cities to six miles an hour; and the franchise and the regulation, taken together, are positive authority for that rate in cities. .

And when an action is brought, like this, for injury by a railroad train within a city of the state, the statute regulating railroad movement within cities governs the case, without being pleaded, because it is public law applicable to the facts, of which the court takes judicial cognizance. If such an injury should be averred in some city of another state, the presumption might arise that the law of that state is the same as our own. But if the statute of that state should be different, and if it should be relied on to govern and could properly govern the action here, it would be necessary to plead and prove it. Rape v. Heaton, 9 Wis., 328; Walsh v. Dart, 12 id., 635; Kellam v. Toms, decided at this term. For courts cannot take judicial cognizance of foreign law; and not the facts only, but the law governing the facts, should be patent in every pleading. And if the law relied on to govern the facts be other than the public law of the land, it must be pleaded so as to appear to the court.

And so when a party relies on a private statute or a local custom or by-law to govern his case, it also miist be pleaded, for these are not part of the public law of which courts can take judicial cognizance. Stephen’s Pl., 346; 1 Chitty’s Pl., 216; Hewitt v. Grand Chute, 7 Wis., 282; Janesville v. R. R. Co., id., 484.

In the present case, on the face of the pleadings, the judicial presumption is that the case is exclusively governed by the public law of the state, and that all enactments regulating the movements of railroad trains within the city of Janesville are to be found in the public statutes of the state. But the respondent relied on an ordinance of that city modifying and enlarging the statutory regulations. If. this had been bjT private statute, the respondent should have pleaded it; a fortiori being by city ordinance, of lower authority and less obligation. As the ordinance is not pleaded, there is certainly a presumption against such local modification of the public law. And it would be anomalous and dangerous to suffer causes to go to issue and trial upon latent obligations of local authority, different from the general law of the state.

Therefore, the ordinance of the city, not pleaded in the complaint, was improperly admitted in evidence on the trial. It tended to vary the legal conditions of the appellant’s liability, and was therefore incompetent within the appellant’s objection. But, as the specific ground that the ordinance was not pleaded was not assigned in the court below to support the appellant’s objection, and as the objection might perhaps have been removed by amendment on the trial, we would hesitate to reverse the judgment on that ground alone. But there is another objection w^ieh is fatal to the admission of the ordinance, as it was admitted, in evidence.

The question was not argued at the bar, and we are not prepared to consider it, whether and how far the legislature e'an delegate to municipalities, and they can exercise, power to limit, by local regulations within their boundaries, the exercise of the franchise of railroad corporations; a question surely not determined in Janesville v. R. R. Co., supra. Neither was there any discussion at the bar of th.e various provisions of this ordinance in detail. But there is one which was considered on the argument, and which appears to us to be manifestly fatal to the validity of the ordinance, as a whole, as it was submitted to the jury. We do not pass upon the other provisions of the ordinance.

The first section limits the rate of railroad speed in certain parts of the city to five miles an hour. The right of the city to pass the ordinance is claimed under sec. 4, cb. 4 of its charter, which authorizes the city to enact ordinances “ not repugnant to the constitution and laws of the state,” inter alia, “ to regulate and restrain the speed of cars in passing through said city.” Ch. 474 of 1866.

The rate of speed under the ordinance is one mile an hour less than under the statute. And we have to say of this provision of the ordinance, as of those of the statute, that it cannot be regarded as simply admonitory. It'is in terms prohibitory, under a penalty for violation. It undertakes to prohibit the rate of speed licensed by the statute. It is therefore repugnant to the statute, ultra vires, and void.

For these reasons, the judgment of the court below must be reversed, and the cause remanded for trial.

By the Court. — It is so ordered.