The Jeffersonville, Madison and Indianapolis Railroad Co. et al. v. Dunlap. it into effect wherever it can possibly be done without disregarding the provisions of the later act. The Legislature has in several instances passed laws upon particular subjects, and at the same time declared by the same enactment that prior laws upon the same subject should not be repealed, but continued in force. In each instance this court has so far upheld the legislation as to hold both acts to be in force, where to continue the former act in force would not destroy the later; and has also held the former act to be in force so far as the continuing of it in force would not destroy the whole or any portion of the later act. Such acts have been passed and upheld in relation to drains and gravel roads. Yost v. Conroy, supra; Robinson v. Rippey, 111 Ind. 112, and cases there cited; Deisner v. Simpson, supra. It has been said that repeals by implication rest upon the principle that the enactment of a new law covering the whole subject-matter of a prior law is an expression of an intention on the part of the Legislature to repeal the prior law, but that it can not be said that the passage of such subsequent law is the expression of such intention where it is positively declared that the later act shall not repeal the prior act upon the same subject. Robinson v. Rippey, supra. And hence, as we have stated, it is the duty of the courts to uphold both statutes if possible, and thus give effect to the expressed intention of the Legislature. May that be done here to any extent, and if so, how far? The title of the act of 1863 (Acts 1863, p. 25; R. S. 1881, section 4025, et seq.) is an act to provide compensation to the owners of animals killed or injured by the cars, locomotives, or other carriages of any railroad company, and to enforce the collection of judgments rendered on account of the same. The act provides in detail for the commencement and prosecution of cases against railway companies for the injury and killing of animals, and prescribes a special and somewhat VOL. 112.-7 The Jeffersonville, Madison and Indianapolis Railroad Co. et al. v. Dunlap. summary method of collecting judgments obtained in such actions. Section one as amended in 1877, R. S. 1881, section 4025, provides that the company, lessee, assignee, receiver, or other person or corporation running, controlling or operating the railroad, shall be liable jointly and severally, etc. Another section provides that the act shall not apply to any railroad securely fenced in and such fence properly maintained by such company, etc. As said in the recent case of Pennsylvania Co. v. Spaulding, ante, p. 47, that act did not, and, if still in force, does not, positively enjoin upon railway companies the duty of fencing their tracks, but made them liable, and, if in force, still makes them liable, for the injury and killing of animals upon the railroad track, where the road is not, but might and ought to be, fenced. Whatever duty, then, there was or is in that regard on the part of the railway company under that act resulted, and still results, from the liability imposed. By judicial interpretation, and in meeting constitutional objections urged against the act, it has been declared that one purpose of the act was to protect the public travelling in cars over the railroad. New Albany, etc., R. R. Co. v. Tilton, 12 Ind. 3; New Albany, etc., R. R. Co. v. Maiden, 12 Ind. 10; Indianapolis, etc., R. R. Co. v. Guard, 24 Ind. 222 (87 Am. Dec. 327); Baltimore, etc., R. W. Co. v. Johnson, 59 Ind. 188; Cincinnati, etc., R. R. Co. v. Hildreth, 77 Ind. 504. Under similar statutes in other States it has been declared that the penalty was designed as an inducement for railway companies to fence their tracks. The purpose of the act, as declared by the title, was to provide compensation to the owners of animals injured or killed by the cars, locomotives, etc., and to enforce the collection of judgments rendered on account of the same. The act, then, was not designed wholly to provide compensation to the owners of animals killed by The Jeffersonville, Madison and Indianapolis Railroad Co. et al. v. Dunlap. cars, etc., nor wholly for the protection of the travelling public. That it was not designed wholly for, the latter purpose is settled by the title, and by our cases holding that the owner of animals for whose convenience farm crossings and gates are maintained can not recover, if by his neglect the gates are left open and his animals go through them to the track and are there injured or killed. Hunt v. Lake Shore, etc., R. W. Co., ante, p. 69, and cases there cited. If the act was designed wholly for the protection of the public, the railway company would be liable, although animals might pass to the track through such farm gates. To repeat, then, the act of 1863 (section 4025, et seq., R. S. 1881), was designed to protect the public travelling in cars over the railroad, and to provide compensation to the owners of animals injured or killed by cars, etc., upon railroads. It seems clear that the act of April 13th, 1885, was not designed simply for those purposes. The leading purpose of that act, as manifested by the title and the whole act, was to enjoin a positive duty upon railway companies to fence their tracks at the places therein specified; in other words, to give to the owner of adjoining enclosed and improved lands the right to demand and have a fence built and maintained between his land and the railway. Under the former act, as the duty on the part of the railway company to fence its track resulted simply from the liability imposed for the injury or killing of animals, the adjoining land-owner had no means of enforcing the performance of the duty except by suits for the injury or killing of his animals by cars, etc., upon the track. He might recover for such injury or killing, but he had no means of compelling the railway company to build fences, nor of compelling it to pay for fences built by him. The railway company might, as has been the case, neglect and refuse to build fences, and take its chances as to the amount that might be recovered from it for the injury or killing of animals. And thus the farmer's field might re The Jeffersonville, Madison and Indianapolis Railroad Co. et al. v. Dunlap. main uninclosed on the side adjoining the railway, leaving his growing crops liable to devastation by the animals of others at large, unless he built fences himself. His animals might constantly escape and stray away, and yet he could have no recompense for the annoyance and loss. To enable him to have fences built, either by or at the expense of the railway company, between his enclosed and improved lands and the railway, and thus escape the annoyances and losses above suggested, the act of April 13th, 1885, was, in the main, passed. And because the act was intended, principally, for the benefit and protection of owners using and farming adjacent enclosed and improved lands, it does not require the railway company to build and maintain fences along uninclosed and unimproved lands and in platted portions of cities, towns and villages which are not supposed to be used for farming purposes. If that act absolutely repealed the prior act, there is no law which directly or indirectly imposes upon railway companies the duty of fencing their tracks within any portions of cities, towns or villages which may be platted into lots, nor through uninclosed and unimproved lands. There must be a considerable portion of each of the railroads in the State which pass through uninclosed and unimproved lands. And as in many places animals are allowed to run at large by order of the county boards, the result will be that the idea of compensation for animals killed upon railroads, and the idea of protecting the public travelling on railway cars, by requiring railway companies to fence their tracks, have been largely abandoned by the Legislature. We do not think that such was the intention of the Legislature in the enactment of 1885. Nor do we think that there is anything in that act that requires a holding that the prior act, in all its parts, is repealed, or that it can not remain in force without destroying the later act. In the State of Missouri there was an act very similar to the act of 1885. The act there required railway companies The Jeffersonville, Madison and Indianapolis Railroad Co. et al. v. Dunlap. to erect and maintain fences on the sides of their tracks where the same passed through, along or adjoining enclosed or cultivated fields, or uninclosed prairie lands, and provided that until such fences should be built and maintained by the railway companies they should be liable in double the amount for all damages which might be done by their agents, engines or cars to animals going upon the track at places where such fences were required. It also provided that, in case the railway company should fail to build the fences as required, the adjoining land-owner might build them and collect the expense of the building from the railway company. Wagner's Missouri Statutes, published in 1872, vol. 1, p. 310. It will be observed that the act did not require fences through or along uninclosed lands, except prairie lands; so the Supreme Court of that State held. There was another statute (same volume of statutes, page 520), which, like our act of 1863, did not positively impose upon railway companies the duty of fencing their tracks, but, like that act, imposed a liability for the injury or killing of animals going upon the track, and provided that the act should not apply to any railway enclosed by a lawful fence. Those acts were both held to be in force, the one not conflicting with the other. In the case of Tiarks v. St. Louis, etc., R. R. Co., 58 Mo. 45, it was said that the first act above made it obligatory upon all railroads in the State to erect and maintain fences on the sides of the road, where the same passed through, along, or adjoining enclosed or cultivated fields, or uninclosed prairie land; and that until such fences should be built the corporation was made liable in double the amount for all damages by its agents, engines or cars to all animals on the road. Of the act last above mentioned, it was said that it was designed to furnish an inducement for the roads to fence their tracks where it was not deemed absolutely necessary to compel them to do so; that by that act, if the road was not fenced, and |