-1. In pronouncing on the constitutionality of an act of the legislature, the court necessarily passes judgment on the legality of an act which has received the sanction of a co-ordinate department of the government. Hence, the courts approach such inquiry with a due sense of its magnitute and solemnity, and indulge the presumption that the enactment in question is constitutional, until clearly convinced to the contrary. — See Sadler v. Langham, 36 Ala. 311.
2. The only question of importance presented by this record, arises on the constitutionality vel non of the first section of the act “ To define and regulate the responsibility of railroads for damage to live stock or cattle of any kind,”'approved February 3, 1877. — Pamph. Acts, 54. That section enacts, “ That from and after the passage of this act, all corporations, person or persons, owning or controlling any railroad in this State, shall be liable for all damages to live stock, or cattle of any kind, caused by locomotives or railroad cars.” This statute declares that railroad corporations shall be liable, and make compensation to the owner, for all damages to live stock caused by their locomotives or trains, without any reference to the skill or diligence with which the train is operated. It results that no matter what care, prudence, watchfulness and skilled knowledge those having charge of a train may employ, still, if damage to live stock be caused by the train, the railroad corporation is responsible, unless the person owning such live stock contribute to the injury; but permitting live stock to run at large, shall not be considered as contributing to such injury. — Section 3 of the act. It is obvious that under this statute, the highest diligence could not avoid frequent injuries to live stock, *597for which the corporation would be held accountable, if the act be constitutional. Two facts, and two only, are required to be shown, to authorize a recovery: ownership of the property, and injury by the locomotive or ears of the railroad. The graver inquiry of capacity and diligence in the conduct of the train, the law assumes to determine or dispense with. Is this “due process of law,” under section 7 of the declaration of rights ?
3. The act “ To define and regulate the liability of railroad companies,” approved February 10,1852 — Pamph. Acts, 45 — is not distinguishable, on the question we are considering, from the act of 1877, supra. In Nashville & Chat. R. R. Co. v. Peacock, 25 Ala. 229, that statute came up for consideration, but the constitutionality of the act was not questioned in argument, or considered by the court. Our predecessor, however, did not interpret the statute as fixing inevitable liability on the railroad, whether the officers did their duty or not. The court said, “ If there are any circumstances which tend to show that the killing was the result of accident, which could not have been controlled by the company by the exercise of the greatest degree of diligence and care on the part of their agents, this may be shown in defense; and if this is not satisfactorily done, the plaintiff is entitled to recover.” The result of this ruling was to hold that the fact of injury to live stock by a railroad train, created only a prima facia liability. We do not think this was a fair and natural interpretation of the language employed bj"- the legislature. They intended to declare an absolute liability.
4. In Memphis & Charleston Railroad Co. v. Bibb, 37 Ala. 699, we considered the act of February 10, 1852, supra, in connection with the later statute, February 6,1858, and held that the latter enactment repealed the former so far, as to leave it for the jury to determine whether damage to stock, caused by the train, was chargeable to negligence or failure to conform to statutory requirements on the part of the railroad employees. Still, the first section of the act of 1852 was carried into, and constitutes section 1406 of the Bevised Code, and is made section 1704 of the Code of 1876. ,'And the first section of the act of February 3,1877, copied above, is also carried into the Code of 1876, and constitutes section 1710 of said Code. It would seem that the act of 1877, sections 1710-11-12-13-14-15 of the Code of 1876, necessarily superceded and repealed sections 1704-5-6-7-8-9 of the same Code.
5. Judge Cooley, in his work on Constitutional Limitations, quotes with commendation the powerful and lucid definition *598of tbe phrase, ‘ due process of law,’ as given by Mr. Webster in the great case of Dartmouth College v. Woodward, 4 Wheat. 518, 581, as follows : “ By the law of the land is most clearly intended the general law ; a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is, that every citizen shall hold his life, liberty, property, and immunities under the protection of the general rules which govern society. Everything which may pass under the form of an enactment is not, therefore, to be considered the law of the land. If this were so, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man’s estate to another, legislative judgments, decrees, and forfeitures, in all possible forms, would be the law of the land. Such a strange construction would render constitutional provisions of the highest importance completely inoperative and void. . . Judges would sit to execute legislative judgments and decrees ; not to declare the law, or to administer the justice of the country.” In another place, during the same argument, speaking of the powers of the legislature, and their separation from the judicial functions of the government, he said, “ It [the legislature] shall not judge by act; it shall not decide by act; it shall not deprive by act; but it shall leave all these things to be tried and adjudged by the law-of the land.”
In the case of Hoke v. Henderson, 4 Dev. Law, 1,15, Chief Justice Ruffin said, “The terms, ‘law of the land,’ do not mean merelyjjan act of the general assembly. If they did, every restriction upon the legislative authority would be at once abrogated. Eor what more can the citizen suffer, than to be taken, imprisoned, disseized of his freehold, liberties and privileges ; be outlawed, exiled and destroyed ; and be deprived of his property, his liberty and his life, without crime ? Tet all this he may suffer, if an act of assembly simply denouncing those penalties on particular persons, or a particular class of persons, be, in itself, a law of the land within the sense of the constitution; for what is, in that sense, the law of the land, must be duly observed by all, and enforced by the courts. . . . The clause itself means that such legislative acts, as profess in themselves directly to punish persons, or to deprive the citizen of his property, without trial before the judicial tribunals, and a decision upon the matter of right, as determined by the laws under which it rested, according to the course, mode and usages of the common law as derived from our forefathers, are not effectually ‘laws of the land,’ for those purposes.”
“ Due process of law undoubtedly means, in the due course *599of legal proceedings, according to those rules and forms which have been established for the protection of private rights. . . They were intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice.” — Cooley Cons. Lim. 355.
Due process of law implies the right of the person affected thereby to be present before the tribunal which pronounces judgment upon the question of life, liberty, or property, in its most comprehensive sense; to be heard, by testimony or otherwise, and to have the right of controverting, by proof, every material fact which bears on the question of right in the matter involved, If any question of fact or liability be conclusively presumed against him, this is not due process of law.
We have held that it is within the power of legislation to declare that certain proofs shall be prima facie evidence of specified facts. But, at the same time, we decided that the legislature could not constitutionally ordain that such proofs should be conclusive evidence of material facts in controversy. The first is a mere rule of evidence. The last has been characterized as ‘ a confiscation of property.’ — See Stoudenmire v. Brown, 48 Ala. 699; Davis v. Minge, 56 Ala. 121; Oliver v. Robinson, at present term.
We have said above that the statute under discussion dispenses with all proof of the most material element of the wrong it seeks to redress. It declares that the railroad corporation shall make reparation for an injury inflicted in the authorized prosecution of its lawful business, without a semblance of fault, negligence, or want of skill in its employes ; an injury, which no human prudence or foresight could prevent ; and yet, the statute will not allow the railroad to exculpate itself, by proof of the highest qualifications and most watchful vigilance. This falls short of due process of law. We have heretofore declared a rule which exacts from railroad corporations a high degree of skill and diligence, to prevent injury to persons and property. — See Tanner v. Louisville & Nashville R. R. Co.; Sav. & Memph. R. R. Co. v. Shearer, and S. & N. R. R. Co. v. Sullivan, at the present term. We have no wish to modify that rule. But when these very useful corporations conform to this strict rule of diligence, we can perceive no reason, in law or morals, for holding them to a stricter measure of accountability for inevitable misfortunes, than would be exacted from natural persons for injuries which result from unavoidable accident; or accidents which no human prudence can foresee or avert.
It results, from what we haye said above, that the Circuit *600Court did not err in sustaining the demurrer to the complaint as first filed, and did not err in the charges given.
Affirmed.