animals are properly fed and watered on the cars in which they are transported. The expense of the rest and feed, if borne by the railroad company, shall constitute a lien on the freight. The penalty for violating this law is fixed at one hundred dollars for each offense, to be recovered in the name of the people before any justice of the peace in the proper county. It is made the duty of any county officer to prosecute all violations of this humane law brought to his notice, under penalty of one hundred dollars for refusal or neglect so to do.

$349. No person, railroad company, or association of persons is allowed to bring Texas and Cherokee cattle into the state, except between the first day of October and the first day of March. The law goes so far as to forbid "any person or persons, railroad company, or other corporation, or any association of persons," owning Texas or Cherokee cattle brought into the state except during the period between October first and March first. This law was passed in 1869, when there was great and just fear of the rinderpest.

$350. The penalty provided for violating that statute is a fine of not less than five hundred dollars nor more than ten thousand dollars, and imprisonment in the county jail at the discretion of the court for a period not exceeding six months. The accused may be held to bail on the charge. "Any railroad conductor, agent, or officer of any railroad company who shall haul or ship any such cattle in violation on any railroad in this state shall be deemed to have possession of the same within the meaning of this section." The fines shall be distributed pro rata among the sufferers by the importation by the county supervisors,

or commissioners, upon proof of loss, as the board may direct. If such proof is not furnished within a year the money goes to the common school fund of the county, to be used in payment of teachers. Besides, if a cattle owner can prove to the satisfaction of the court that he has suffered loss by reason of such Texas or Cherokee cattle he is entitled to recover specific compensatory damages from the person or persons, individual or corporate, responsible for the same. The disease may not have been communicated while the cattle were in possession of the railroad company, but the statute holds the liability to be the same. Even if the cattle were brought into the state within the allowable period the liability for damage would be the same as just specified. The law contains this clause: "And it shall be competent for the jury to render a verdict and the court to render a judgment, in any such case, upon the opinion of the witness as to whether or not any such Texas or Cherokee cattle caused the injury complained of in any such suit."

§ 351. The definition of "Texas and Cherokee cattle" is elaborate. The term "shall be taken to mean a class or kind of cattle, without reference to where they may have come from, provided it shall not apply when such cattle shall have been introduced into either the states of Kansas, Missouri, Nebraska, Iowa, or Wisconsin, prior to the first of January, before being brought into this state; but the burden of alleging and proving that such cattle were introduced into either of the states above mentioned prior to January first, and wintered there the remainder of the winter, shall be upon the defendant; provided, further, that the official certificate of the county clerk of the county

where such cattle have been wintered shall be prima facie evidence thereof."

§ 352. A railroad company is obliged to keep its cattle pens clean and prevent the generation of noxious gases. It is not responsible for noise and shouting, however, over which it has no control. Nothing which it can do to render its cattle pens less offensive should be omitted 1

353. By the railway law of 1869 every railway company doing business in Illinois is obliged to cut down all weeds, Canada thistles especially, that may grow upon the lands belonging or appertaining to the railroad. This cutting down must be done in time to prevent the seed from ripening and spreading. The penalty for neglect is one hundred dollars, recoverable before the circuit judge of the county in which the offense occurred, or before any justice of the peace in the county. One-half of the fine goes to the prosecutor, the other half to the school fund of the county."

1 Illinois Central R. R. Co. v. Grabill, 50 Ill. 241

2 Gross' Statutes, vol. ii, chap. 18.

CHAPTER VII.

RAILROAD AND WAREHOUSE COMMISSIONERS.

I. LAW CREATING THE COMMISSION.

II.

WAREHOUSE LAW.

III. RAILROAD CLAUSE CONSTITUTION, AND LEGISLATION OF 1873 BASED THEREON.

I. LAW CREATING THE COMMISSION.

§ 354. Similar commissions common.

355. Date of the creation of the board.

356. Commissioners appointed by the Governor.

357. Qualifications of the members of the board.

358. Oath; Bond.

359. Compensation allowed by law.

360. Travel without expense by rail.

361. Annual report of railroad companies; Forty-one questions.

362. Other Interrogatories.

363. What corporations must respond.

364. Report from warehousemen.

365. Annual report by the board.

366. General statement of duties 367. Warehouse licenses.

368. Investigation powers.

369. Summoning witnesses.

370. Penalty for contempt of subpœna.

371. Disregarding authority of the commissioners; Railroad companies.

372. Attorney General and State's Attorneys. 373. Mode of prosecution.

374. Private damages recoverable.

$354. Previous to the present constitution the office of Railroad and Warehouse Commissioner was unknown in Illinois. The constitution does not

directly contemplate its creation. The authority therefor is precisely the same as that for forming the Penitentiary Commission and similar adjuncts of the state government. The practice of delegating special powers to special commissions is common, and its legality has so often been recognized by the courts as to admit of no controversy.

§ 355. The law creating this board and prescribing its powers and duties was passed April 13, 1871, going into effect July 1 of the same year. No other state has such a board with any real authority. In Massachusetts their functions are simply advisory. The full text of the statute is herewith given:

§ 356. A commission, which shall be styled "Railroad and Warehouse Commission," shall be appointed as follows: "Within 20 days after this act shall take effect, the governor shall appoint three persons as such commissioners, who shall hold their office until the next meeting of the general assembly, and until their successors are appointed and qualified. At the next meeting of the general assembly, and every two years thereafter, the governor, by and with the advice and consent of the senate, shall appoint three persons as such commissioners, who shall hold their offices for the term of two years from the 1st day of January, in the year of their appointment, and until their successors are appointed and qualified.1

§ 357. No person shall be appointed as such commissioner who is, at the time of his appointment, in

1 The first board consisted of Gustavus Koerner, Richard P. Morgan and David Hammond, with J. H. Raymond for secretary. They held office until the appointment and confirmation of their successors, in the winter of 1873. There was a long and bitter