delivered the opinion of the court.
The pleadings show that defendant’s railroad passes through the cultivated fields of the plaintiff; that defendant failed to fence its road, and, in consequence, cattle strayed from the road upon said cultivated fields and destroyed, the plaintiff’’s crops. *440The cause was submitted to a jury, who returned a verdict for the damages suffered, and the court rendered judgment double their amount. A motion in arrest was filed and overruled, and the defendant claims that the court committed error in not sustaining the motion. It is not disputed that the case comes within the letter of the statute, but counsel claim that the Legislature have no power to compel the defendant to fence the plaintiff’s crops ; that to subject it to expense for the private benefit merely of an adjoining proprietor would contravene various provisions of the constitution.
We will not entertain a proposition to set aside or disregard a legislative enactment unless in a clear case, and we do not find such a case made by defendant’s counsel. It may be conceded that the Legislature has -no right to subject one person to expense for the sole benefit of another, and there is plausibility in the claim that the requirement and liability under consideration, so far as they operated to protect the crops growing upon the land through which the railroad runs, is for the sole benefit of the owner of such crops. With the same plausibility it might be claimed that the liability to the owner of stock killed by cars or engines — a liability created, by the same section of the statute — • is for the exclusive benefit of the owners of such stock. But such is not the theory upon which this statute has been uniformly sustained. While the protection, of> the property of adjacent proprietors is an incidental object of the statute, its main and leading one is the protection of the traveling, public. To insure such protection railroads are imperatively required to fence their track, and the penal liability deemed necessary to enforce this requirement is a matter of legislative discretion. A fine might be imposed or -a liability might be created for stock killed or for crops destroyed, either for their value - or for more than their value, if the destruction should be caused by a non-compliance with the requirement.
Counsel also claim that because of the leading object of the statute, no liability can be created unless the injury suffered arose under circumstances, as by a collision, where the traveling public would be endangered. The. .claim is mor-e specious than sound. *441The nature of the penalty has nothing to do with the power to impose the obligation. If it may be lawfully imposed, those who disregard it may not say that this or that special liability is an improper one, for the power to create the obligation carries with it the power to create liabilities other than those that might arise at common law; and even if we considered such liabilities to be inexpedient or illogical, we could not say that the Legislature- had transcended its power.
Judge Wagner concurring, the judgment will be affirmed.
Judge Adams absent.