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These propositions are abundantly supported by the authorities: French v. Gifford, 30 Iowa, 148; Bisson v. Curry, 35 Iowa, 72; Railway Co. v. Jewett, 37 Ohio St. 649; Rogers v. Dougherty, 20 Ga. 271; Arnold v. Bright, 41 Mich. 207; Salling v. Johnson, 25 Mich. 489. In the case last cited the court say: "It is not necessary to explain that such a proceeding [the appointment of a receiver without notice is not within the judicial power of anyone, and is a pure usurpation. The order cannot be lawfully enforced, and should be expunged, as soon as possible, as made without proper consideration.” In Arnold v. Bright, 41 Mich. 207, it is said: “The court of chancery has no more power than any other to condemn a man unheard, and to dispossess him of property prima facie his, and hand over its enjoyment to another on an ex parte claim to it. . ... A similar prejudgment of controversies by the appointment of receivers has been held in several cases to be wholly unwarranted by law.”

Subdivision 5 of section 1 of the act of March 8, 1893 (Laws, p. 119), relating to appeals, provides that an appeal may be taken to this court from an order appointing a receiver. It is not to be presumed that the legislature intended such an absurdity as chat a party might appeal from an order against the making of 113 which he had no right to be heard in the lower court upon either the law or the facts.

In Brundage v. Home Sav, etc. Assn., 11 Wash. 278, this court held that, upon an application for the appointment of a receiver, the moving party had no right to read affidavits which had not been served upon the adverse party. We are not required in this case to go so far as to hold that where it is made to appear by the circumstances in a given case that an imperative necessity exists for the appointment of a temporary receiver, the court might not afford relief pending a hearing upon proper notice. But in such case “the particular facts and circumstances which render such a proceeding proper should be set forth in the bill”: French v. Gifford, 30 Iowa, 148.

The court, in the absence of any notice to the appellant, could not assume that he would be unable to show any sufficient reason why a receiver should not be appointed. The complaint herein shows that the business was being conducted in the name of the appellant, and, ostensibly, the respondent was not interested in it. All of the allegations set out in the respondent's complaint and relied upon for the appointment of the receiver were issuable merely, and the appellant would in nowise be concluded by them. At all events, the appellant was entitled to an opportunity to be heard as to the propriety of appointing a receiver, and the fitness of the person so nominated.

In Roberts v. Washington Nat. Bank, 9 Wash. 12, this court has said: “The right to appoint receivers vested in the courts should only be exercised when it is clearly shown to be necessary to prevent the defeat of justice. There has been a tendency in recent years among courts to appoint receivers almost as a matter of course, if the 114

case as made by the plaintiff's complaint seems to warrant such action. This tendency has advanced at least as far as the proper administration of justice will allow, and, in our opinion, it is the duty of the courts rather to restrict than extend this growing tendency."

The orders appealed from will be reversed.
Hoyt, C. J., and Anders, Dunbar, and Scott, JJ., concur.

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INJUNCTION-NOTICE.-No notice to the defendants of an application for a special injunction ought to be required in cases where the injury may be immediate and destructive, and thus irreparable, or where the giving of the notice might precipitate the act sought to be enjoined: Ex parte Martin, 13 Ark. 198; 58 Am. Dec. 821.

RECEIVERS-NOTICE.-The opposite party is, as a rule, entitled to notice of application for a receiver and to a hearing thereon: Extended note to Cortleyeu v. Hathaway, 64 Am. Dec. 483.


(14 WASHINGTON, 155.) CONSTITUTIONAL LAW-TITLE OF STATUTE.-If the title of a statute is sufficiently comprehensive to embrace all its provisions, it cannot be rendered insufficient by the striking out or disregarding of certain sections as unconstitutional, though, had those sections not been incorporated in the act as passed, the title would have been insufficient.

CONSTITUTIONAL LAW-DAMAGES.-A statute imposing on a railway corporation for all stock injured by collision with a train or engine the penalty of double its value, if within forty-eight hours the engineer and brakeman do not report the accident to the division superintendent, with the name of the owner of the stock, if known, and the superintendent does not immediately thereafter transmit such report to the owner, when known, and when not known, then to the agent of the corporation nearest the place of the accident, to be by him kept in a conspicuous place in his office for the inspection of the public, is unconstitutioual, because the penalty is imposed whether the failure to give notice is willful or not, and although the corporation may not have been in fault in kill. ing the stock, and such killing may have been due to the fault of Its owner, and he may have had full knowledge thereof at the time of the occurrence.

RAILWAY CORPORATION-DUTY TO FENCE RIGHT OF WAY.-A statute imposing on railway corporations a penalty for stock killed by collision with an engine or train does not impose on such corporations the duty of fencing their rights of way.

CONSTITUTIONAL LAW-ATTORNEYS FEES, STATUTE GRANTING.-A statute granting to a certain class of litigants the right to recover attorneys' fees as part of their costs of suit is unconstitutional, as class legislation, unless the right to recover such fees is restricted to cases in which the unsuccessful litigant has been wrongfully acting, and the attorneys' fees may be regarded as a penalty imposed upon him therefor.

CONSTITUTIONAL LAW – EVIDENCE – BURDEN OF PROOF.-A statute declaring that, in all actions against railway corporations for injuries to stock by collision with moving trains, it should be prima facie evidence on the part of the defendant to show that the track was not fenced so as to turn stock therefroni, is not unconstitutional, though such corporations are not required to fence their tracks. It merely establishes a prima facie rule of evidence.

Wilshire & De Steiguer, for the appellant.
Carr & Preston and W. R. Bell, for the respondents.

186 SCOTT, J. This was an action to recover for the value of a cow killed by the defendant's train, and is brought under the provisions of the act approved March 15, 1893 (Laws 1893, p. 418), making railway companies operating unfenced lines of railroad liable for double the value of stock killed, and double damages are sought in this case and also an attorney's fee. The first, third, and fourth sections of the act are involved in this controversy. The lower court held the act unconstitutional and rendered a judgment against the plaintiff, whereupon this appeal was taken. A number of questions have been argued relating to the constitutionality of the sections specified, and as to whether, if one or more of them are unconstitutional, any part of the act can be considered sufficiently independent thereof to stand. The respondents first attack section 3. This section is as follows:

"Sec. 3. When any stock shall be killed or injured by collision with a railroad train or with a railroad engine, it shall be the duty of the engineer and fireman of the engine, within fortyeight hours thereafter, to report the accident to the division superintendent of the road, stating the manner of the accident, place of its occurrence, and the name of the owner of the stock, killed or injured, if known, and, immediately upon the receipt of such report, it shall be the duty of such division superintendent to transmit the same to the owner of the stock, if known, and if not known to cause the said report to be filed with the agent of the company nearest the place of the accident, to be by him kept at his office for the inspection of the public. Failure on the part of the officers or agents in this section mentioned to comply with the requirements of this section shall subject the person or corporation owning or operating the railway to a penalty of double the market value of the stock injured or killed, to be recovered 167 by the owner thereof in an action in the superior court of the county."

It is first contended that this section is void on the ground that it is not embraced within the title of the act, which is as follows: "An act to protect the owners of stock from injury thereto by moving railway trains, declaring the law of negligence and providing for a reasonable attorney's fee in all actions for such in


It is practically conceded, however, that if the act is considered as a whole, the title is comprehensive enough to embrace all its provisions, but if, as contended by the respondents, the other sections should be stricken out as unconstitutional, it is argued that there would be no reference in the title of the act sufficiently broad to include the provisions of section 3. It is conceded that the principal purpose of the title is to advise legislators of the nature of the legişlation contained in the bill, and it seems to us that if the title was comprehensive enough to embrace the provisions of section 3, conceding the entire act constitutional, this purpose has been fully served, although certain sections should thereafter be held unconstitutional, and we are of the opinion that this objection is not tenable.

Other objections urged against the constitutionality of this section are, that it enables the plaintiff to recover double the market value of the stock killed, and fixes an absolute responsibility where the notice is not given, and it also assumes that the company would have knowledge of such killing in all cases.

It will be observed that this section, standing alone, imposes an obligation upon the railroad company, in case notice is not given, to pay double the value of the stock injured or killed, whether the right of way is fenced 158 or unfenced, and it makes no exception of cases where the owner of the stock has knowledge of such killing at the time, although the notice is not given. The sole duty imposed upon the company under this section is the giving of the notice specified, and, in case of a failure to do so, willfully or otherwise, it is mulcted in damages in double the value of the stock killed, regardless of whether the company was at fault or not in killing it, or how much at fault the owner of the stock may have been. We think the weight of authority is against the constitutionality of such legislation. A somewhat similar question was decided by this court in Oregon Ry. & Nav. Co. v. Smalley, 1 Wash. 206; 22 Am. St. Rep. 143. See, also, Zeigler v. South & North Ala. R. R. Co., 58 Ala. 594, and Denver etc. Ry. Co. v. Outcalt, 2 Colo. App. 395.

Legislation requiring railroad companies to fence their tracks has been generally sustained as a legitimate exercise of the police power of the state, on the ground that it tends to promote the safe operation of trains and to the safety of the traveling public. It has been said that the police power of a state extends to the protection of the lives, limbs, health, comfort, and quiet of all persons and the protection of all property within the state, and to that end persons and property are subjected to many restraints and burdens in order to secure general comfort, health, and prosperity. But it is difficult to see how the giving of the notice specified would legitimately fulfill any of these purposes. If it does, the penalty should be limited to cases where the company has knowledge of the killing. It cannot be assumed that the company would have such knowledge in all instances, and it would seem, also, that it should be limited to cases where the owner of the stock killed or injured did not have 159 knowledge of the fact, and was not himself at fault in the premises.

It is further contended that section 3 cannot be construed with reference to section 1 so as to limit its operation to cases where the railroad company has failed to fence its track, and the specified notice is not given, for the reason that there is no law in this state requiring railroad companies to fence, and consequently there is no basis for the imposition of a penalty for a failure to do so. A question very like this was also decided by this court in Oregon Ry. & Nav. Co. v. Smalley, 1 Wash. 206, 22 Am. St. Rep. 143, where a majority of the court held that the act which fixed a liability for killing stock where the right of way was not fenced imposed no duty upon the company to fence. The authorities are not uniform upon this proposition, and it has been held that legislation subjecting unfenced roads to liabilities and penalties from which roads which were fenced were exonerated, was indirectly intended to compel railroad companies to fence their right of way. The decision rendered in Oregon Ry. & Nav. Co. v. Smalley, 1 Wash. 206, 22 Am. St. Rep. 143, was by a divided court, and the writer hereof was one of the dissenting judges, but sufficient grounds have not been presented in this case to warrant overruling it, and, construing this act in the light of that decision, it must be conceded that no obligation is imposed upon railway companies to fence their rights of way, and section 3 cannot be sustained upon that ground.

It is next contended that section 4 of the act, which is as follows: "In all actions for injury to stock by collision with moving railway trains where the plaintiff shall recover, and in actions to recover a penalty under this act in which the plaintiff

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