ARGUMENT OP JOHN S. EWART. 1441 



language of the prohibition would otherwise include it.' And it was 

 therefore held that an act subsequent to the charter of a plank-road 

 company, and not assented to by the corporators, which subjected 

 them to a total forfeiture of their franchises for that which by the 

 charter was cause for partial forfeiture only, was void as violating 

 the obligation of contracts." 



Passing some further illustrations which the author gives, I pro- 

 ceed to a subsequent paragraph : 



" On the other hand, the right to require existing railroad corpora- 

 tions to fence their track, and to make them liable for all beasts killed 

 by going upon it, has been sustained on two grounds : first, as re- 

 garding the division fence between adjoining proprietors, and in that 

 view being but a reasonable provision for the protection of domestic 

 animals; and second, and chiefly, as essential to the protection of 

 persons being transported in the railway carriages. Having this 

 double purpose in view, the owner of beasts killed or injured may 

 maintain an action for the damage suffered, notwithstanding he may 

 not himself be free from negligence. But it would, perhaps, require 

 an express legislative declaration that the corporation should be 

 liable for the beasts thus destroyed to create so great an innovation 

 in the common law. The general rule, where a corporation has failed 

 to obey the police regulations established for its government, would 

 not make the corporation liable to the party injured, if his own negli- 

 gence contributed with that of the corporation in producing the 

 injury. 



" The State may also regulate the grade of railways, and prescribe 

 how, and upon what grade, railway tracks shall cross each other; 

 and it may apportion the expense of making the necessary crossings 

 between the corporations owning the roads. And it may establish 

 regulations requiring existing railways to ring the bell " 



And so on. Then, a little further on : 



"And it cannot be doubted that there is ample power in the legis- 

 lative department of the State to adopt all necessary legislation for 

 the purpose of enforcing the obligations of railway companies as car- 

 riers of persons and goods to accommodate the public impartially, 

 and to make every reasonable provision for carrying with safety and 

 expedition." 



I submit, Sirs, that we have here a very sufficient reply to the 

 various arguments of the United States : 



To the argument that, because there is no reservation of sovereignty, 



and no limitation or qualification of the granted liberty, there- 



871 fore the State is powerless to exercise the sovereign power 



with a view to the public welfare ; to the preservation of the 



subject-matter of the contract : 



Secondly, to the argument that a right to exercise the- sovereign 

 Power to make regulations for such a purpose is not, as alleged in 

 the present case (United States Argument, p. 62) :- 



" in its practical effect different from the power to make regulations 

 at will and without limitation as to character, when the state which 



