APPEAL from the County Court of Richland county; the Hon. JOHN A. MACNEIL, Judge, presiding. R. S. ROWLAND, and KRAMER, KRAMER & CAMPBELL, (EDWARD BARTON, of counsel,) for appellant. JOHN LYNCH, for himself. Mr. JUSTICE DUNN delivered the opinion of the court: Appellee sued appellant in the county court of Richland county for damages caused by the negligent killing of certain stock. The negligence charged was appellant's failure to fence its railroad as required by the statute. The plea set out in hæc verba a written contract dated June 27, 1870, between John Lynch, the father of appellee, who was then the owner of the land adjoining the railroad at the place where the stock got upon the track, and the Ohio and Mississippi Railway Company, which was then the owner of the railroad, whereby Lynch, in consideration of $273, for himself, his heirs, executors, administrators and assigns, covenanted and agreed, within two months, to erect and forever thereafter maintain on the line between the right of way and the adjoining land, which the contract specifically described, a fence suitable and sufficient to prevent horses, cattle, sheep and hogs from getting on said railroad, and that such covenant and agreement should run with and bind the land and all subsequent owners thereof. The plea then alleged that appellant had succeeded to the title of the Ohio and Mississippi Railway Company; that appellee became the owner of the land, as grantee of John Lynch, with full knowledge of the contract, which was duly recorded, and that the animals killed got upon the railroad from said land at places where the appellee was required by said contract to maintain the fence. The court sustained a demurrer to the plea, and appellant abiding by its plea, judgment was rendered against it. An appeal was taken directly to this court on the ground that a constitutional question is involved as to the application of the statute requiring railroad companies to fence their rights of way to this contract. At the time the contract set out in the plea was entered into, there was in force an act approved February 14, 1855, entitled "An act to regulate the duties and liabilities of railroad companies." (Laws of 1855, p. 173.) Section I required railroad companies to fence their roads within a certain time and at certain places, and in default thereof prescribed that they should be liable for all damages done by their agents or engines to cattle, horses, sheep or hogs on such railroads. Section 2 provided that it should be the duty of every owner of land adjoining any railroad who had received a specific sum as compensation for fencing along the line of land taken for the purpose of said railroad and had agreed to build and maintain a lawful fence on the line of said road, or who had received compensation for building and maintaining such fence in the condemnation of land taken for the purposes of said road, to build and maintain such fence, and if said owner, his heirs or assigns, should not build said fence within six months after he had been notified to do so by said railroad corporation, or should neglect to maintain said fence if built, said corporation should build and thereafter maintain such fence. and might maintain a civil action against the person neglecting to build or maintain such fence to recover the expense thereof, and such railroad corporation should not be liable to such owner or owners, their heirs and assigns, for any damage which should be done by the agents or engines, locomotives or cars of any such corporation to any cattle, horses, sheep or hogs of said owner or owners, their heirs, assigns or lessees, coming upon said road by reason of or on account of the failure of such owner or owners, their heirs or assigns, to construct or maintain said fence. sibility of deciding, when the question is properly presented, that a law is in force even if it is not observed by all citizens or enforced by all public authorities. In discussing the subject of naturalization in In re Clark, 18 Barb. 444, the Supreme Court of New York said, on page 448: "The intention was to permit those who came here from abroad seeking a permanent home, who by five years of continuous residence manifested that intention, and by good behavior during all that time and an attachment to republican principles,-a good behavior and an attachment to republican principles which could be proved to the satisfaction of a court,-had shown themselves worthy recipients of the benefits to be derived from citizenship and safe depositories of the powers it confers, to be admitted to these rights and the exercise of these powers by an order entered in open court after an examination into the facts of each case and a judicial decision upon the application,an examination which should be conducted with the same. care and a decision which should be made with the same deliberation and solemnity as that which should accompany every other judicial act.” Applying these principles of law, it is our duty to hold that a person has not behaved as a man of good moral character and one well disposed to the good order of this country if he has habitually, knowingly and willfully violated the Sunday Closing law. The petitioner in this case had not only done this for the three years immediately preceding his application, but he stated that he intended, if he were naturalized, to continue to violate that law. His application to be naturalized should have been denied. The judgment of the city court of East St. Louis admitting appellee to be a citizen of the United States of America will be reversed and set aside and the case remanded to that court, with directions to refuse appellee a certificate of naturalization. Reversed and remanded, with directions. JOHN LYNCH, Appellee, vs. THE BALTIMORE AND OHIO SOUTHWESTERN RAILROAD COMPANY, Appellant. Opinion filed June 16, 1909. I. CONTRACTS-when contract between land owner and railroad is binding. A contract between a land owner and a railroad company requiring the land owner to construct and maintain fences between his land and the right of way of the railroad is binding upon the land owner, even though the contract may not have been executed by the proper official of the railroad company, if it was executed by the land owner for valuable consideration. 2. SAME when fact that covenant may be only a personal one is without effect. The fact that a covenant by a land owner to construct and maintain a fence between his land and a railroad right of way may be only a personal one has no effect to give his grantee a right to recover damages for injury to live stock getting on the track on account of his failure to maintain the fence, where the statute in force when the contract was made expressly provided that in case such agreement was made the company would not be liable to the owner of the land, or his heirs and assigns, for damages of such character. 3. RAILROADS—the duty to fence right of way is statutory. The duty of a railroad company to fence its track is imposed by the State, in the exercise of its police power, for the protection of property and is subject to such conditions and limitations as the legislature may impose; but it is not an absolute one at all times and under all circumstances. 4. SAME-effect of a fencing contract made under act of 1855. The effect of a contract made in accordance with the provisions of the act of 1855, (Laws of 1855, p. 173,) relating to agreements by land owners to build and maintain right of way fences, is to perpetually relieve the railroad company from any liability to the owner either to build the fence or respond in damages for injury to live stock of such owner coming upon the track on account of his failure to construct or maintain the fence. 5. SAME act of 1874 does not abrogate fencing contracts made under act of 1855. The right of a railroad company to operate its trains free from liability for damages to live stock of a land owner on account of his failure to maintain a fence he has contracted to build and maintain under the act of 1855 is a right which cannot be held to be abrogated by the act of 1874, relating to fencing and operating railroads, without violating the provision of section 14 of article 2 of the constitution. APPEAL from the County Court of Richland county; the Hon. JOHN A. MACNEIL, Judge, presiding. R. S. ROWLAND, and KRAMER, KRAMER & CAMPBELL, (EDWARD BARTON, of counsel,) for appellant. JOHN LYNCH, for himself. Mr. JUSTICE DUNN delivered the opinion of the court: Appellee sued appellant in the county court of Richland county for damages caused by the negligent killing of certain stock. The negligence charged was appellant's failure to fence its railroad as required by the statute. The plea set out in hæc verba a written contract dated June 27, 1870, between John Lynch, the father of appellee, who was then the owner of the land adjoining the railroad at the place where the stock got upon the track, and the Ohio and Mississippi Railway Company, which was then the owner of the railroad, whereby Lynch, in consideration of $273, for himself, his heirs, executors, administrators and assigns, covenanted and agreed, within two months, to erect and forever thereafter maintain on the line between the right of way and the adjoining land, which the contract specifically described, a fence suitable and sufficient to prevent horses, cattle, sheep and hogs from getting on said railroad, and that such covenant and agreement should run with and bind the land and all subsequent owners thereof. The plea then alleged that appellant had succeeded to the title of the Ohio and Mississippi Railway Company; that appellee became the owner of the land, as grantee of John Lynch, with full knowledge of the contract, which was duly recorded, and that the animals killed got upon the railroad from said land at places where the appellee was required by said contract to maintain the fence. The court sustained a demurrer to the plea, and appellant abiding by its plea, judgment was rendered against it. An appeal was taken |