Opinion of the Court. responsible for the loss. This, then, imposed upon appellant the duty of exercising ordinary care, by himself and his servants. If he has failed in this, he is liable, but if not, then the loss must fall upon appellee. And this was a question for the jury to determine in view of all the testimony before them. The same author says, section 402, that the master is not universally liable for the misdeeds of his servants; that we must, therefore, distinguish between the acts of the servant done in his service, or in obedience, and those which are not; for in the former cases, only, is the master responsible. That the master is not responsible for any willful or malicious injury done by his servant, without his knowledge or consent; but only for injuries done by the servant in the master's service, in the course of his employment. The master is bound to employ skillful, careful and trustworthy servants, as he must be held liable for their careless and negligent acts. It was, therefore, a question for the jury to determine, whether the persons performing the act were appellant's servants, engaged in the prosecution of his business; and whether the act was negligently or carelessly performed by them, or whether it was willful or malicious. And, having determined these questions, they were then required to find their verdict according to these rules. Were the jury, then, properly instructed as to the law of the case? An agistor for hire is clearly bound to exercise ordinary care for the safety of stock committed to his care; and, when he undertakes to pasture such stock, unless it is otherwise understood by the parties, he should furnish reasonably good pasture. Failing to either exercise ordinary care in maintaining reasonably good fences to keep the stock in, or to furnish such pasturage as is necessary to keep stock, would be negligence, and would render him liable for the immediate damages occasioned by stock escaping by reason of such negligence. This is what is announced by appellee's first instruction. Nor is any objection perceived to the second instruction. Nor do we see that the third and fourth instructions contravene the principles which we have seen should govern the case. Syllabus. A careful examination of the instructions asked by appellant does not disclose the fact that they were improperly modified before they were given. When modified, they harmonized with those given for appellee. The fifth instruction asked by appellant and refused by the court asserted, that, if appellant undertook to pasture the colt for him, and promised appellee that he would put the fence around the pasture in proper repair to keep the colt within; and appellee relied upon such promise, and was induced by such promise to put his colt in the pasture; and that the want of such a repaired fence was the immediate, and not the remote, cause of the accident to the colt, then appellant would be liable. We are unable to see, that this instruction announces any rule or principle not contained in the instructions already given. And this court has repeatedly held, that the court below is not required to repeat instructions to the jury,—that, having announced a rule to them, it need not be repeated, although stated in different language. Although this instruction may contain correct legal propositions, still they had already been announced in instructions given, and it was not error to refuse it. The judgment of the court below must be affirmed. THE CHICAGO, BURLINGTON & QUINCY R. R. COMPANY. 167 459 1. APPEALS-lie from decisions made by the board of supervisors of county. The act of 1861, allowing an appeal to be taken by a railroad company from the determinations of the board of supervisors of a county to the Circuit Court, is constitutional and valid. 2. STATUTES-will not be held unconstitutional except in the clearest cases. This court has repeatedly declared, that it will not pronounce a statute unconstitutional, except in a case where the violation is plain and palpable. 3. TAXATION—must be uniform. The rule of uniformity of taxation prescribed in the Constitution requires that one person shall not be compelled to 44 229 e189 3376 Opinion of the Court. pay a greater proportion of the taxes, according to the value of his property, than another. 4. So, where the property belonging to individuals in a county has been assessed at less than its actual value, the constitutional rule of uniformity forbids that the property of a railroad company in such county should be assessed upon any greater per cent of its value than that of individuals. APPEAL from the Circuit Court of La Salle county; the Hon. MADISON E. HOLLISTER, Judge, presiding. The facts in this case are fully presented in the opinion. Messrs. LELAND, BLANCHARD & HERON, for the appellant. Mr. JUSTICE BREESE delivered the opinion of the Court: This cause was argued and submitted at April Term, 1866, and carefully considered with a desire to reach a conclusion which should be entirely satisfactory. After much reflection, it was thought advisable to direct a reargument of the cause, as the questions presented were of great magnitude and of great public importance. Accordingly, the case has been reargued at this term, with consummate ability, affording us much aid in coming to the conclusions which we now an nounce. The power of the legislature to impose taxes is expressly granted by the Constitution, and is found in the following provisions of that instrument. They are just, wise and simple. Section 2, article 9, requires the general assembly to provide for levying a tax by valuation, so that every person and corporation shall pay a tax in proportion to the value of his or her property; such value to be ascertained by some person or persons to be elected or appointed in such manner as the general assembly shall direct, and not otherwise. Section 5 of the same article provides, that the corporate authorities of counties, townships, school districts, cities, towns and villages Opinion of the Court. may be vested with power to assess and collect taxes for corporate purposes; such taxes to be uniform in respect to persons and property within the jurisdiction of the body imposing the same. In the exercise of this grant of powers, several laws have been passed by the general assembly, and among them the act of February 12, 1853, relating to the assessment of property for taxation in counties adopting township organization. The 10th section of this act provides, that "each separate parcel of property shall be valued at its true value in money, excluding the value of crops growing thereon; but the price for which such real property would sell at a forced sale, shall not be taken as a criterion of such value; and personal property of every description shall be valued at the usual selling price of similar property at the time of listing and in the county where the same may then be; and if there be no usual selling price known to the person whose duty it shall be to fix a value thereon, then at such price as it is believed could be obtained therefor in money at such time and place." Scates' Comp. 1046, 1050. The fourth section provides, that every owner of real property shall list it in the town or district in which the property belongs, and personal property shall be listed in the town or district wherein the owner resides. Section 6 provides the mode by which this listing is effected. It is apparent these provisions have special reference to the ordinary kinds of property which the people generally have in possession and own; therefore, by the act of February 14, 1855, a discrimination is made in regard to the property of railroad companies. They are required, by section 4, of that act, to set forth in their schedules, or lists of taxable property, a description of all the real property owned or occupied by the company in each county, town and city through which their railroad may run, and the actual value of each lot or parcel of land, including the improvements thereon (except the track or superstructure of the road), must be annexed to the description of each lot or parcel of land. This list must set forth the number Opinion of the Court. of acres taken for right of way, stations, or other purposes, from each tract of land through which the road may run, describing the land as near as practicable in accordance with the United States surveys, giving the width of the strip or parcel of land, and its length through each tract; also, the whole number of acres and the aggregate value thereof in such county, town and city. All this is denominated real property, and such list. must set forth the length of the main track and the length of all side tracks and turn-outs in each county, etc., through which the road runs, with the actual value of the same, and the value of the improvements at each of the several stations, where such stations are not a part of the city or town lots. This track and these stations are denominated "fixed and stationary personal property." This list must also contain an inventory of the rolling stock belonging to the company, with the value thereof. This rolling stock is denominated personal property. This list must also contain a statement of the value of all other personal property owned by the company, and also must state the length of the whole of the main track within the State and the total value of the rolling stock, which rolling stock is taxed in the several counties, towns and cities pro rata, in the proportion the length of the main track in such county, town or city bears to the whole length of the road; all other property must be listed and taxed in the county, town or city where the same is located or used. This section then proceeds to define the description of all lands owned by any railroad company for right of way or station purposes other than those which are a part of a laid off town, city or village, under which it shall be entered by the assessor in his books. Scates' Comp. 1166. The second section provides, that this list or schedule of taxable property belonging to a railroad company shall be made. to the county clerk, instead of the assessor, and the clerk is required to lay the same before the board of supervisors when they meet to equalize the assessment of property. If a majority of this board are satisfied that the schedule is correct, they are required to assess the property according to |