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and fifty pounds: Provided, That the total minimum charge for such excess, when the same does not exceed two hundred pounds, shall not be less than twenty-five cents.

5190b. Penalty, recovery.-2. Any such railroad company violating the provisions of this act shall be deemed guilty of a misdemeanor, and, upon conviction by any court of competent jurisdiction in any county of the state through which such railroad runs, shall be fined in any sum not less than twenty-five dollars ($25.00) nor more than one hundred dollars ($100.00): Provided, No fine shall be assessed hereinunder if such railroad company shows clearly that such overcharge for baggage was caused by clerical error.

ARTICLE 2.--AFTER SALE.

SEC.

5209.

Sale of roads, incorporation, lease.

5209. Sale of roads, incorporation, lease.

The act of March, 1865, sections 5209-5215, Burns’ R. S. 1901, concerning the reincorporation of railroad companies after a sale, does not authorize a railroad company organized under the laws of this state to execute a perpetual lease of its road to a rival company for the purpose of preventing competition. Eel River R. R. Co. v. State, 155 Ind. 433.

CHAPTER 41.

CORPORATIONS_RAILROADS-AFTER ORGANIZATION.

Section numbers to notes refer to Revised Statutes of 1901.

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5312. Animals injured, liability.

Railroad companies are not liable for injuries to animals by the cars of the company when such cars are operated by mere trespassers. Cleveland Ry. Co. v. Wasson, 33 App. 316.

5313. Action before justice for injury to animals.

Under the act of 1901, an appeal would not lie to the supreme or appellate courts from judgments against railroad companies for injuries to animals when the action was within the jurisdiction of a justice of the peace. Lake Erie Ry. Co. v. Watkins, 157 Ind. 600.

Actions against railroad companies for injuries to animals, commenced before justices of the peace, must be brought in the county where the injury occurred. Chicago Ry. Co. v. Browers, 27 App. 628.

If a cattle-guard is not so constructed as to prevent animals from passing over the same, the railroad is not securely fenced within the meaning of the statute. Chicago Ry. Co. v. Brown, 33 App. 603.

5317. Proceedings to collect justices' judgment.

An application to enforce a judgment rendered by a justice of the peace against a railroad company for injuries to animals, when a transcript has been filed in the cir. cuit court, is a civil action, and the application must show jurisdiction in the justice or allege that the judgment was duly rendered. Chicago Ry. Co. v. Adams, 26 App. 443.

If a transcript of a judgment rendered before a justice of the peace for animals killed on a railroad is filed in the circuit court, and an application is made to require an agent of the company to pay the judgment, the application must show the filing of the transcript, and that the animals were killed in the county where the judgment was rendered Chicago Ry. Co. v. Browers, 27 App. 628.

5324. Fence, land owner building, cost.

The statute providing for the recovery of attorney's fees, when a land owner builds a fence along the right of way of a railroad company, is constitutional. Terre Haute Ry. Co. v. Salmon, 161 Ind. 131.

Complaints by land owners to recover for the building of fences along the right of way of railroad companies, because such companies fail to construct such fences, must show that such fences were built at places which the companies were required by law to build fences. Evansville R. R. Co. v. Butts, 26 App. 418.

Complaints by land owners to recover for building fences along the rights of way of railroad companies must aver that the fences were built along the edge or side of the right of way. Evansville R. R. Co. v. Huffman, 32 App. 425.

Notice given by a land owner to a railroad company to build a fence along its right of way can not be made an exhibit to a complaint. Evansville R. R. Co. v. Huffman, 32 App. 425.

A complaint by a land owner against a railroad company to recover for building a fence along a right of way must show that an itemized statement of the cost of building the fence was presented to the agent of the company as required by statute. Evansville K. R. Co. v. Huffman, 32 App. 425.

If a railroad company fails to build a fence along its right of way, and the land owner builds the same, such fence should be built as nearly as practicable on the line between the right of way and the adjoining land. Chicago Ry. Co. v. Wood, 30 App. 650.

If a railroad company builds a fence along the line of its right of way, but fails to keep the same in proper repair, the land owner may build a new fence and collect the cost thereof from the company. Terre Haute Ry. Co. v. Erdel, 163 Ind. 348; Chicago Ry. Co. v. Croy, 33 App. 461.

ARTICLE 5.- PUBLIC AID.

SEC.
5340. Petition for appropriation.
5340a. Aid to railroads, application to

street railroads.

SEC.
5341. Order for election.
5351. Tax, levy, collection.
5369. Tax, suspending collection.

5340. Petition for appropriation.

When a board of commissioners orders an election to vote on the question of levy. ing a tax to aid in building a railroad, such board determines that the company to receive the aid is of such a character as by law is entitled to such aid and such decision is not subject to a collateral attack. Demaree v. Bridges, 30 App. 131.

(Acts 1903, p. 233. In force March 9, 1903.) 5340a. Aid to railroads, application to street railroads.-1. That wherever the word “railroad” occurs in either section of the act entitled “An act to authorize aid to the construction of railroads by counties and townships taking stock in, and making donations to, railroad companies," approved May 12, 1869. And, an act entitled “An act supplemental to ‘An act to authorize aid to the construction of railroads by counties and townships taking stock in, and making donations to, railroad companies,' approved May 12, 1869," approved December 24, 1872. And, an act entitled “An act supplemental to An act to authorize aid to the construction of railroads by counties and townships taking stock in, and making donations to, railroad companies,' approved May 12 1869," approved January 30, 1873. And, an act entitled "An act to amend the first, second, third, fourth, eighth, thirteenth and seventeenth sections of an act entitled 'An act to authorize aid to the construction of railroads by counties and townships taking stock in, and making donations to, railroad companies,' approved May 12, 1869," approved March 17, 1875. And, an act entitled "An act extending the time for the completion of all railroads in all cases where townships have made, or may hereafter make, an appropriation of money to aid any railroad company in constructing its road," approved March 7, 1877. And, an act entitled “An act to amend the first and fourteenth sections of an act entitled 'An act to authorize aid to the construction of railroads by counties and townships taking stock in, and making donations to, railroad companies,' approved May 12, 1869," and amended by an act entitled "An act to amend the first, second, third, fourth, eighth, thirteenth and seventeenth sections of an act entitled 'An act to authorize aid to the construction of railroads by counties and townships taking stock in, and making donations to, railroad companies,' approved March 17, 1875, and declaring an emergency," approved March 8, 1879. And, an act entitled “An act to amend section one (being section 4045 of the revised statutes of Indiana of 1881) of an act entitled 'An act to amend the first and fourteenth sections of an act entitled “An act to authorize aid to the construction of railroads by counties and townships taking stock in, and making donations to, railroad companies,” approved May 12, 1869,' and amended by an act entitled 'An act to amend the first, second, third, fourth, eighth, thirteenth and seventeenth sections of an act entitled “An act to authorize aid to the construction of railroads by counties and townships taking stock in, and making donations to, railroad companies," approved March 17, 1875, and declaring an emergency,' approved March 8, 1879, and declaring an emergency," approved March 2, 1889. And, an act entitled “An act providing for the forfeiture and repayment of moneys raised by taxation for the purpose of donation to railroad companies, and for paying for stock subscribed for in railroad companies by counties and townships, pursuant to the provisions of an act entitled 'An act to authorize aid to the construction of railroads by counties and townships taking stock in, and making donations to, railroad companies,' approved May 12, 1869, and acts amendatory thereof and supplemental thereto (see section 4062, R. S. 1881)," approved February 16, 1893. And, an act entitled “An act to enable counties bordering on the state lines, or rivers, forming state boundaries, and townships and cities therein, to aid in the construction of railroads opposite such counties in other states to run to such counties, or the state line or river forming the state boundary, bordering such counties, or to form connections with other railroads in such counties, and prescribing the duties of the officers of such counties for that purpose, and authorizing such cities to issue bonds for such aid, and declaring an emergency, approved December 14, 1872. And, an act entitled "An act to require railroad companies to issue stock paid for by taxes voted in aid of the construction of their railroads, to the taxpayers or their assignors, and to issue unclaimed stock for the benefit of the common school fund, and declaring an emergency," approved December 17, 1872. And, an act entitled "An act to amend an act entitled 'An act supplemental to an act to authorize aid to the construction of railroads by counties and townships taking stock in, and making donations to, railroad companies, approved May 12, 1869,' approved January 30, 1873," approved March 11, 1875, it shall be extended to and held to include every kind of street railroad, suburban street railroad, or interurban street railroad, whether its lines of railroad are to be maintained either at the surface, or above or below the surface of the earth, and by whatever power its vehicles are to be and are transported.

5341. Order for election.

Whenever a board of commissioners orders an election to vote on the question of levying a tax to aid in constructing a railroad, such board decides that the company to receive the aid is of such a character as the law authorizes the granting of aid to, and such decision is not subject to collateral attack. Demaree v. Bridges, 30 App. 131.

5351. Tax, levy, collection.

Consideration and construction of statutes regulating the levy of taxes to aid in building railroads, and right of persons to enforce or enjoin the collection of such taxes. State v. Board, 162 Ind. 580.

The collection of a tax levied to aid in the building of a railroad can not be en: joined because the railroad company has not equipped its road for the carrying of freight. Demaree v. Bridges, 30 App. 131.

5369. Tax, suspending collection.

Construction of statutes providing for suspending the collection taxes voted to aid in constructing a railroad, and rights of persons to such tax and to enforce the collection thereof. State v. Board, 162 Ind. 580; Demaree v. Bridges, 30 App. 131.

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