IN TIE L -E iN (I [S. THE RELATIONS OF R1AILROADS TO TI1E PEOPLE, AS SET FOIRTIH IN THE CONSTITUTION, TIHE STATUTES AND THE DECISIONS OF ILLINOIS; TOGETItER WITIt THE DECISIONS OF OTIHER STATES AND THE FEDERAL COURTS UPON TIIE CONSTITUTIONALT QUESTIONS INVOLVEI). VITIH AN INTRODUCTION 13BY HoN. JOHN M. I'ALMER, AND AN APPENDIX SHIOWING TIHE CONDITION OF ALL TILE RA1ILWAYS IN THE STATE, AND THE TARIFF SCIIEDULE PREPARED IN ACCORDANCE WITII -LA.W. 1.)1Y F1IANK (4ILBERT. "A Corporation holds its Rights and Franchises Subordinate to the General Welfare of Socicty."'-Supreme Court of Illinois. CHII CAGO: CALLAG HAN AND COMPANY 1873. Entered according to Act of Congress, in the year 1873, by FRANK GILBERT, In the Office of the Librarian of Congress, at Washington. PREFACE, All who give special attention to the subject of railroads in their relations to the public, are intently watching Illinois. This is alike true, whether railways are considered from a legal, an economic or a political point of view. The present constitution and recent railway legislation of the State, together with the decision of the Supreme Court based thereon, explain and abundantly justify this prominence. It is obvious that while, in its leading features, the common carrier law is substantially the same as administered in the different States, yet there are many points of diversity, as the result both of legislation and judicial decision. Those special features in this State are of such a nature as to make Illinois the patrfinder in the present effort to readjust the carrying trade of the country. This treatise is largely the result of investigations prosecuted with no thought of book-making. The writer has constant occasion, in the performance of his daily work, to state some phase of railway law, and has often found it necessary to consult many authorities in ascertaining positively the correct answer to what might seem to be a very simple question. Throughout these pages scrupulous care has been taken to avoid blending mere personal opinions with the authoritative utterances of the judiciary, and the exact limitations of the written law. Great caution i V I'REFACE. has been observed to prevent errors. The author's object will have been attained and his labors abunlantly rewarded if the result shall prove of service in lessening the work of determining with exactitude what is railway law in Illinois, and contribute in some degree to a better understanding and adjustinent of tile relations which the railroads of the country sustain in law, an(l should sustain in fact, to the people. F. G. CICAG(o, Oct. 15, 1873. TABLE OF CASES. TIHE FIGURES REFER TO TIHE PAGES. A. Adams Express Co. v. Haynes............................ 175 Albany, etc., v. Brownell 70 Alton, etc., C. R. Co. v. Northcote ------------------------ 152 Alton and Sangamon v. Baugh -........ — - 196 American Central R. R. Co. v. Miles -... 59 American Express Co. v. Lesem ----------- 176 American Merchants' Union Express Co. v. Schier -------- 174 Attorney General v. Birmingham and Derby Junc. R. R. Co_ 256 Attorney General v. Great, etc., -................ 65 Aurora, Chicago, etc., v. Thompson —- ----- --- 155 Aurora Co. v. Holthouse -............ 300 B. Bacon v. Robertson ------------------- ------- 299 Bagshaw v. Eastern. —--------------------. —--- 65 Baker v. Michigan Southern and Northern Indiana R. R.Co. 175 Baldwin v. Buffalo -68 v. American Express Co. —---------------------- 76 Bank of Augusta v. Earle ---------------- 44, 118, 300 Chenango v. Brown ------ ---- -8 301 Marietta v. Randall -- -.. — ------------ 300 Republic v. Co. of Hamilton -------- ------------ 257 U. S. v. Dandridgce ---------—.. —---------—.. 44 Washtenaw v. Montgomery - - 118 Bartholomew v. St. Louis, Jacksonville and Chicago R.R.Co. 167 Barney v. Steamboat D. R. Martin- 166 Bateman v. Ashton-under-Ly.. —------------------------ 54 Baxendale v. London and S. W. R. R. Co.................. 256 Beach v. Fulton ----------------------------------- -- 54 Beaty v. Knowler.-.. —-------- ---------------------—. 121 Vi TABLE OF CASES. Bcekman v. Saratoga, etc.,.-. —------ ----- -...- -—... 93 Belleville R. R. Co. v. Gregory. —----- ---- ------------ 50 Bell v. Ohio, etc........... - 71 Beman v. Rufford ------------------------------------- 64 Billings v. Providence Bank - -___ 255 Binghamton Bridge Case - - 255 Lissel v. Ryan -------------------------------------- 181 v. The M. S. and N. I. R. R. Co..................... 55 Blanchamp v. State -------------------------------------- 257 Blatchford v. Ross -------------------------------------- 64 Bloodgood v. Mohlawk and Hudson R. R. Co. ---------— 93, 301 Boston and Lowell R. R. Co. v. Salem and Lowell R. R. Co. 255 etc., v. Boston --------------------------------- 73 v. Salem ------------------------------------------ 73 Braddee v. Brownfieldcl -------------- ------------------- 257 i3radshaw.v. Newman --------------- --------------------- 151 Bradley v. N. Y. and N. H. R. R. Co......... —------------- 258 Brewster v. HIough ------------------------------------ 257 Bristol v. Chicago and Aurora R. R. Co............... — ---- 183 British Co. v. Ames -------------------------------------- 300 Brock v. Connecticut ------------------------------------ 70 Brown v. Maryland. —------------—. —------------- 287 Butler v. Dunham --------------------------------------- 96 Butler v. Palmer ------------------------------------- 301 Byrne v. Byrne ------------------------------------------ 181 C. Calder v. Bull. —--------- ------------------------ - 25 Caldwell v. City of Alton. —-----------—. —-------------- 48 Carpenter v. Pennsylvania -------------- ------------------ 64 Cathcart v. Fire Department of N. Y......... —------------ 301 Caterham Railway Co.................................... 256 Central Military Tract R. R. Co. v. Rockafellow -- ---------- 189 Central v. Collins.... —--------- ---------— 64, 65 Champlin v. Morgan ----------------------------------- 65 Chase v. Sycamore and Courtland R. R. Co................ 44 Charles River Bridge v. Warren Bridge ----- ---------— 255, 257 Cheete v. Winnegar.............- -....................... 79 Chicago and Alton Case ----------- -----------------— 253-277 Chicago and Alton R. R. Co. v. Flagg g.. — ----—.... 161, 162 v. Howard ------ --- -------- 188 v. Murphy. —-- ---- - 192 TABIXE, OF CASES. Vii Clhicago and Alton R. BR. Co. v. Randolph -----------— 161, 168 v. Roberts.-..... 158 v. Scott ------------------- 176 v. Shannon. —---------- 158, 303 v. Utley --------------------- 195 Chicago and Aurora R. B1. Co. v. Thompson-...........155, 164 Chlicago, Burlingrton & Quincy R. R. Co. v. Dewey -------- 190 v. Hazzard, 156,158,182 v. Parks -------- 158, 160, 161, 167, 244 v. Stumps-.. 177 v. Wilson ------- 124 (:Chicago, Danville and Vincennes R. R. Co. v. Smith ll.. 88, 258 Chicago and Mississippi R. R. Co. v. Dunbar ----- -------- 172 v. Patchin ---— 125, 178, 198 Chllicago and Nortlhwestern R. BI. Co. v. Ames ------------- 177 v. Barrie ----- ------ 198 v. 1MIcCahill ---- ----- 194 v. Merrill. —---- 176 v. People ---— 95, 169, 266 v. Peacock ----------- 159 v. Swett.-1 —--- 59 v. Williams -----— 163, 178 Chlicago, Rock Island and Pacific IR. R. Co. v. Otto -. 159 v. Reid. —---- 191 v. Warren _..167, 171 v. Whipple ---- 51 Chicago and Milwaukee R. B. Co. v. Bull ---------------- 128 Cincinnati, Wilmington and Janesville R. R. Co. v. Com.-__ 93 (ity of Chllicago v. Evans. —----------------------------- 50 v. Laflin 12'9 v. Larned.. —-. —- --------------------- 12'9 v. McGunn ---------- ------------------- 139 Clark v. Miller.. —------ -301 Clarke v. New Jersey 300 Clearwater v. Meredith..... —----------------- 8 6r Cochrane v. Van Surley..- -----— 257, 307 Coggs v. Bernarcl. 263 Cole v. Goodwin- ----------------- 24.6 Coleman v. Eastern..-5.. v. Hudson - -74 ----------— ^ —--------- 74 vrii TABLE OF CASES. Collier v. Powell.. —-- ----------- ------- 152 Cooley v. Board of Wardens -- -— 294, 297 Commissioners v. Durham _ 66 Commonwealth v. Alger 256, 258 v. Commercial Bank-. —----------- 300 v. Duane --------------------------------- 257 v. Proprietors of N. Y. Bridge Co... ——. 256 v. Tewksbury —----- 258 v. U. S. Bank 300 Cooper v. Williams ------------------ 64 Covington Bridge Co. v. Shepherd ----------------- -- 43 Cox, et al. v. United States -------------------------- 152 Crandall v. Nevada ---------- ------------------ 294 Crawford v. Clark ----------------------------------- 182 Crear v. Crossly ------------------------------------ 32, 117 Curran v. Arkansas -- ------ -------------------- -------- 299 Currier v. West. —---------------------------—. ---- 71, 72 D. Danville v. Montpelier., —------- -----------------------.73 Dartmouth College v. Woodward -------------- -33, 255, 283 Davis v. Mayor -----------------— 72 Davis v. Michigan Southern and Northern Indiana R. R. Co. 164 Day v. Essex Bank- ----------------------- 300 Deere v. Lewis ------------- ------------------------------ 178 Delaware v. Camden. ---------- ---------------- 73 Deshler v. Beers ------------------------------ --------- 182 Dingman v. People -------------------------------------- 258 Dixon v. Dunham -------------------------------------- 182 Doe v. Beebe ---------------------------------------- 133 v. Douglas ------------------------------------------ 257 Drake v. Hudson ------------------- -------- ------- 72 Dyer v. Tuskaloosa Bridge Co. —------------------------- 258 E. Earl v. Doe. —------------ ----------------------------- 121 East Hartford v. Hartford Bridge Co.. —------------- 257 Edwards v. Great Western R. R. Co. --------- -------- -- 248 Enfield Toll Bridge Co. v. Hart --------------------------- 93 F. Farmers, etc., v. Reno ------------ --------------------- 069 TABLE OF CASES. iX Fay v. Strawn --------------------------- ------------ 182 Field v. People -------------------------- 302, 304 Fitchburg R. R. Co. v. Grand Junction -------------------- 288 Fletcher v. Peck 90, 255, 257 Forsyth, et al. v. Baxter. —----------. —--------------—. 152 Frink v. Porter. —-------------------------------------- 156 v. Scroyer ----------------------------—.. 178 G. Galena and Chicago Union R. R. Co. v. Appleby - -- 195, 258, 288 v. Crawfordcl --------- 48 v. Dill -------— 189, 258 v. Jacobs ------------ 189 v. Loomis_189, 191, 258, 288,v. Pound. —--------- 125 v. Rae 168, 171, 172, 174, 178 v. Yarwoodl ----— 156, 177'Galena Insurance Co. v. Kupfer --------------------------- 181 Gibbon v. Ogdlen__ 287, 293 Gillinwater v. Mississippi and Atlantic R. R. Co.......... 128 Gilman v. Philadelphia.. —--------------- -----— 294, 297 Goodlittle v. Kibbe -.................... — ----------- 133 Goodrich v. Reynolds, Wilder & Co.... 37 Goszler v. Corporation of Georgetown ----------------—. 257 Grant v. Green. —------- ------------ - -—. --—.42, 151 Great Western R. R. Co. v. City of Decatur 190 v. Geddis. —--------------- 192 v. Haworth -....... 194 v. McComas ----------------— 169, 173 v. McDonald..-................... 172 Green v. Sarmiento.-...... 152 Green v. Pulsford -___ — - ---- --------------- 74 Greenhalgh v. Manchester ---- ----------------- 65 Guaga Iron Co. v. Dawson..-.............................. 300 Gulliver v. Adams Express Co. -------------------- 170 H. Harper v. Lexington and Ohio R. R. Co................... 125 Harris and the Cockermouth R. R. Co. 256 Harris v. Packwood - ----------------------------- 246 Harvey v. Thomas —---------------------- 257 Ilarwood v. St. Clair Draw Co.- -- ----- - 129 X TABLE OF CASES. Hayes v. Moynihan. —------------------------------—. —- 178 Headen v. Rush — 195 Heldeman v. Beckwith --------—. 297 Hentz v. Long Island, etc.,- 71 Hessler v. Drainage Commissioners- 129 Higbee v. Camden, etc.,- 67 Home of the Friendless v. Rouse 255 Home Insurance Co. v. Favorite 182 Honner v. Cox ---------------------- 192 v. Illinois Central R. R. Co. 192 Horton v. Hoyt —---- 70 Hozier v. Caledonia R. R. Co.-.... —-- 256 Humphrey v. Collier and Powell ------------------ 152 I. Illinois Central R. R. Co. v. Abell. —------------------- 162 v. Adams ----------------— 175 v. Alexander —---- 167 v. Baches, admrx.- 177, 198 v. Copelandcl —-- 164 v. Frankenberger - ----- 169, 175 v. Finnegan —-------- 178 v. Grabill 203'v. Johnson ------- ------— 169, 175 v. Kanouse- 195 v. Kercheval --------------— 258 v. McClellan ------------------ 178 v. Morrison —------------------ 174 v. Nunn 177, 195 v. Owens- ------------------ 178 v. Phillips —-------- 192 v. Read —--------- ---------- 165 v. Rucker —---------- 128 v. Sutton —----- ----------- 161 v. Symser.. —------------------- 15 v. Swearnigen --------------- 195 v. United States ---------------- 133 v. Whalen- 195 v. Waters 178 v. Welch ------- ------------- 192 v. Weldon.- 159 TABLE OF CASES. Xi Illinois Central R. R. Co. v. Whittemore -------------— 161, 169 v. Williams ---------------- 190 Illinois River R. R. Co. v. Zimmer......................... 42 Illinois and Wisconsin R. R. Co. v. Van Horn ------------ 128 J. Jacksonville and Savanna R. R. Co. v. Kidder ------------ 128 Johnson v. Joliet and Chicago R. R. Co.. —------—.... 36, 128 v. Stark County -— 93, 96 Jones and Eastern Counties R. R. Co. 256 K. Kean v. Johnson -----------------------------------— 63, 64, 65 Knowles v. Dow --------- 183 L. Lamar v. New York and Savannah Steamship Co.......246, 248 Lane v. Donovan 89 Lesher v. Wabash Navigation Co.......................... 152 Leggett v. Hunter —-- 301, 307 Lewis v. Galena and Chicago Union R. R. Co. -173 Lexington, etc., v. Applegate -71 Libby v. Hodges- 300 Live Stock, etc., Association v. Crescent City 256 Louk v. Wood.-...................................... 59 Louisville R. R. Co. v. Letson- 43 Low v. Martin- 176 v. Galena, etc. 128 Lowe v. Moss ------------------- 172 Lucas v. Bank of Georgia 300 Luke v. City of Brooklyn -------------------------------- 301 M. Macombre v. Parker.-................. 183 Manderson v. Commercial, etc............ 65 Marine Bank of Chicago v. Ogden 152 Marshall v. Baltimore and Ohio R. R. Co. 43 Marine Bank v. Birney — 181. v. Chandler -181 Marsh v. Fulton County- 86 MIason?. Waite -302, 307 v. Dousey.,. —--—...... 151 Xi1 TABLE OF CASES. Mayor of Baltimore v. State ----- ------------—. — 258 Mayor, etc., v. Georgia --------------------- 72 McAvoy v. Long.. 152 McFarland v. Orange ---------------- 71 Mich. South. and North. Ind. R. I. Co. v. Day --- 169, 174, 178 v. Meyers.- -...16-1, 182 Miller v. Pennsylvania ---------------------------------- 283 Milwaukee v. Milwaukee, etc., 72 Minor v. Mechanic's Bank, etc., 43 Mississippi R. R. Co. v. McClelland ----------------------- 258 Mohawk Bridge Co. v. U. S. R. R. Co.. —------------------ 258 Mohawk, etc., v. Artcher ------------ ----- -- 70 Morris v. Cheney- 45 Moss v. Johnson -------------------------— 192 Moses v. Pittsburgh, Ft. Wayne and Chicago R. R. Co. 127 Mott v. Pennsylvania R. R. Co. 257 Mozely v. Alston ----- -------- ------------------ 63 Munn v. Burch..-.- - --------—. —----- ---------- 182 N. Naylor v. Semmes -------------------------------------- 183 Nelson v. People —----------- 303 Nesbitt v. Trumbo ---------------------------------— 32, 117 New England Fire Insurance Co. v. Schatler - 39 Newbury-Turnpike Co. v. Eastern R. R. Co. 93 New Albany v. Connelly. —------ --------------------—. 66 New Jersey v. Wilson 257 New York Fire Insurance Co. v. Ely- 54 Newhall v. Galena and Chicago Union R. R. Co. - -.....48, 128 Newland v. Marsh -.......... —- 299 Nicholson and G. W. R. R. Co.- 256 Nichols v. Salem -66 —--------------------------------- 6. 6 v. Sutton -------------------- ----- --- 69 v. Mayor, etc.,. 96 0. Ohio L. Insurance and T. Co. v. Debalt -257 Ohio R. R. Co. v. Wheeler --------------— 43 Ohio and Mississippi R. R. Co. v. Brubaker 195 v. Dunbar. —------- - 51, 181 v. McClernand --. —--- 48 v. Muhling -156, 162 TABLE OF CASES, iii Oxlade's Case - - 256 Oxlade and N. E. R. R. Co._ - - 256 P. Pacific, etc., v. Leavenworth -....... 68 Palmer v. Forbes 151 Parker v. Bristol -246, 247 v. Overnmann 121 v. Great Western Ry. Co. -.246, 248 Passiac Bridges -......... 297 Peake v. Wabash R. R. Co.- 45 Pennsylvania v. Wheeling, etc. 288 People v. Chicago and Alton R. R. Co.- 169, 171, 266 v. Draper. —---------------- 258 v. Hatch -90 v. Law —-------- 67 v. Mayor of New York_ 258 v. Marshall.. — -- 90, 303 v. Mississippi and Atlantic R. R. Co. 36, 299 v. Morrell — _301, 307 v. New York. —----------- ---------------------- 72 r. ieynolds -303 —----------------------- v. Ridgley -............. 299 v. Salem -...... 2555, 258 v. Solomon ----------- 303 v. Supervisors of Orange-c -------------- --...... 307 v. Third Avenue, etc................ -69 v. Williams -...................129 Peoria and Rock Island R. R. Co. v. Coal Valley Miining Co. 55 Perkins v. Lewis-.. --—. — --—. —-------—.. 96 Pctt'hone r. LaCrosse, etc. —------ - --------—.. —--- 67 I'hielps v. Foster ----—..........- ------------- ------- 74 Philadelphia and Reading ZR. R. Co. v. Pennsylvania ------- 293 Pittsburgh, Cincinnati and St. Louis R. R. Co. v. Thompson, 156 1Piscataqua Bridge Co. v. N. 11. Bridge —---------- 257 Pollard v. Hagan —----------- -------- 133 Presbyterian Church v. City of New York - --- 257 P'rettyman v. Supervisors.. —- -------------- ------- 96 P'resident and Trustees v. Frick ----------- ------- 96 Priestly v. Northern Indiana and Chicago R. R. Co. ------- 178 Providence Bank v. Billings -.... —----- - ------—. 257 xiv TABLE OF CASES. R. Railroad Co. v. McClurc ------------- ------------------- 255 Ransome's Case ---------------------------------------- 256 Reading R. R. Co. v. Pennsylvania - - 292 Rees v. City of Chicago -------------- ---------------- 129 Reddall v. Bryan. —................ —-------------------- 255 Regina v. Anaud ----------------------------------------- 413 Riclards v. Michigan Southern and Northern Ind. t. R. Co.__ 167 1RPichmond, etc., R. R. Co. v. Louisa R1. R. Co. - -.......255, 257 Riley v. Horne.................. —....... 246 Roberts v. Anderson.-. —-- ----------------- -.. —------- 6 7 Robertson v. City of Rockford. —---------- ---------- - 49) Rock River Bank v. Sherwood ---------- ---------------- 54 Rock Island and Alton R. R. Co. v. Lynchll. —--—. —---- 128 Ross v. Elizabeth -----------------— 66 —--------------—.. 6(; Rule v. Parker. —------- ---------—. -------- 121 S. Sangamon and Morgan R. 1R. Co. v. Henry ----- ----------- 178 Sanford v.R.R. Co. —------------—.. 258 v. Catawissa R. R. Co. -...246, 250 Satterlee v. Matthewson --------------- ------------------ 64 Sauerhering v. Iron Ridge, etc.................... - -74 Savage Manufacturing Co. v. Armstrong --- 300 Schall v. Bowmar. —---------------— S —----------------- 81 Schurmeier v. St. Paul, etc............................ -- 69 Sears v. Hotclhkiss -. —----------------------------------- 65 Sears v. Cottrell. —..-............. —----------- 307 Sharpless v. Mayor, etc.................... 93 Shipper v. Pennsylvania R. R. Co.- -------------- 2 —46, 251 Shute v. Chicago and Milwaukee R. R. Co.......- - -- - 128 Sigsworth v. McIntyre -. —---------- --------------------- 15' Silver Lake Bank v. North ------------ ------------------- 300 Simpson v. Westminster.. —------------—... —-------- 613 S. I. R. R. Co. v. Davis --------------- — 2 —-------------- -ts58 Skelley v. Kahn. —------------------------------------- 177 Sleuter v. Wallbaumll. —----- --------------------- 178 Smith v. Bangs. —-- --------- ------------------ 64 South Carolina v. Columbia ~ —--------------------------- ~ Spear v. Crawford ---------------------------------—. 4'3 Stacy a. Baker. —------------------- -------------------- 152 State v. Evans. —----- ---------—..- - - 1245 TABLE OF CASES. XV State v. Noyes ---------------------------------- 256 v. Newark a —-------------- 64 v. Bailey - - 299,. Overton 163 Stewart and Foltz's Appeal-7. ------------------ 873 St. Louis, Alton and Chicago R. R. Co. v. Dalby ------ t) —- 16( St. Louis, Alton and Terra Haute R. R. Co. v. Linder ------- 178) v. Montgomery, 167, 176( v. Todd -195 St. Louis, Jacksonville and Chicago RI. R. Co. v. Trustees _126, 30:3 Strick v. Swansea Canal Co. ---------------------------- 25;6 Strong v. King.. —-------------------------------------- 18:2 Sturtevant v. -Milwaukee, etc.-........................ 74 v. Mayor ------------------------—.-........ 257 Stuyvessant v. Mayor, etc., of New York ------------------ 257 Suydan v. Moore ----—. —------------------- 288,Sweatt v. Boston, Hartford and Eric R1. 1. Co..-............ 255 8. Y. nd C. Co. v. G. N. R. Co............................ 54 T. Talbot v. Hudson.......... -............................. 255 T1aylor V. Porter —..... —----- ---—. - 307 v. Thompson ~ —---------------------------------- 9~; Vc. Be k ---------------------------------------- 152'I'rra HIaute, Alton and St. Louis R. R. Co. v. Vanatta ----- 161 T'Ierret v. Taylor. —-------------------------------------- 8300 Thorpe v. Rutland and Burlington R. R. Co. -..257, 258, 28S, 306 Thrasher v. Pike Co. R. R. Co. ---------------------— 42, 44, 45'Ioledo Bank v. Bond --------------------------------------- 257'I'oledo, Peoria and Warsaw Ry. Co. v. Arnold ------------- 178 v. Foster --------— 177, 188 v. Merriman ----- 175. M31iller ----- - 195)'. Rumbold ---------- 195 v. Sweeney ---------- 195 Toledo, Wabash and Western R. R. Co. v. Apperson -------- 192 v. Baddeley- ------- 157,. Cole. —--------- 195. v. Rodrigtucs..192, 1983 Tomlinson v. Branchll -------------------------- 49 Tonica and Petersburg R. R. R. Co. v. Unsicker ------------ 128 v. Roberts. —--- 128 Xvi TABLE OF CASES. Trustees et al. v. Chicago and Rock Island R. R. Co. 128, 133 Tuller v. Talbot -------------------------------------- 156 Turner v. Dawson —----- ---------------- -- 182 Turney v. Wilton ----------------------------- -- 303 Twitchell v. Blodgett ---------------------------------- 91 U. United States v. Arredondo. —--- - ------------- ---- 183 v. Duval 183 v. Railroad Bridge Co. —------------------ 297 V. iVeazie v. Mayo ------ ------------------------------ 258 v. Moore —----------------.287, 297 Vedder v. Fellows ----------------------— 258 Vermont v. Turnpike Co._- ----------------------- 300 Vincent v. Chi., Alton and St. Louis R. R. Co._70, 95, 169,170, 266 W. Walker v. Mad, River, etc. — ---------------- 64 WAashington Bridge Co. v. Dix ----------- ------- 257 v. State. —--------- - - 256 Washington University v. Rouse —-------- 257 Watson v. Mercer —----------------- 64 Webster v. Massey 152 Westchester and Philadelphia R. R. Co. v. Miles ------- --- 1b63 West River Bridge Co. v. Dix —--------- 94 Western Transportation Co. v. Newhall — 174 Whiting v. Sheboygan and Fond du Lac R. R. Co. -....225, 258 Williams v. Powell ------------------ 121 Wilmans v. Bank of Illinois ---------— 299 W'right v. People ---- -------- 299 Woodbury v. Frink _ - ----------— 171, 174 Woodman v. Kilbourn Manufacturing Co... -------- ------ - 297'Woods v. Devin ----------------------------------- 164 Y. Ya tes v. ]Milwaukee- ------------------------------------. 256 briskie v. Clcbus and Cincinnati.. Co., 44 Zabriskie v. Cleaveland, Columbus and Cincinnati R. R. Co., 44 CONTENTS. THE REFElRENCES ARE TO THE SECTIONS. CHIAPTER I. THE ~RAILW'AY SITUATION. Illinois and the Railroad Question - - - 1 — Date, Extent and Cost of Railroads 4 — Private Enterprise and Public Aid; Bonds ----------- 7-8 The Land Subsidy Policy; Breese, Douglas 9-1 3 Popular Anticipation of the Effect of Transportation by Rail 14-15 MIethods of Railway Operation; Regulation by Combination, by Competition- 16-23 Agitation; Antagonism; Reconciliation --------- 24 C HAPTER II. RAILROAD CORPORATIONS. I. CORPORATE ORGANIZATION: Railways Highways; Corporations_ 25-29 Organization under the Old Constitution 30-36 Present Mode of Corporate Creation -37-4G Stock Transfers; Corporate Secrets; Complete Organization -............................... 47-49 II. CORPORATE RIGHTS AND LIABILITIES: Citizenship; Subscriptions; Fictitious Increase of Stock 50-57 3Mortgages; Transfers; Consolidation 58-67 Rights and Liabilities of Shareholders 68-73 Corporate Limitations 74 6 CONTENTS. III. SECTION. THE DUTIES OF DIRECTORS: General Policy of the Law; Residence; Election; Qualifications -------------------------- - 7T5-7 8 Powers, Compensation, Report and Liabilities of Directors - ------ ----------------------------- 79-86 IV. RAILWAY INJUNCTIONS: High on Injunctions; Breach of Trust; Laches. 87-90 Right of Way and Injunctions -..................- 91-99' Common Carriers and Injunctions. —-------- 100- 107 V. TRANSPORTATION COMPANIES: Transportation Companies "Railroad Corporations "___ 108-111 Existing Companies and Legislation ------------------ 112-115 C IAPTER III. ~MUNICIPAL AID TO RAIIAOADI)S. I. ISSUE OF BONDS: Public Improvement Policy, Illinois................... 116-120 Mode of Procedure under the Old Constitution -------- 121-129 Municipal Aid and the Courts --—.- ---------- 130-131 II. LATEST ILLINOIS DECISION: Facts in the Case; Limitations; Authorities -------- 132,-139 Railroads Public Roads; Eminent Domain; Taxation; Conclusion.. —------- --------------------- 140-146 III. FUNDING AND RELIEF LEGISLATION: Statutes of 1865 and 1869 ----------------------------- 147-160 Statute of 1871. —----------------------------------- 161-163 Statute of 1872 -.......... —----------—............. 164-167 CHAPTER IV. EMINENT DOMAIN.'The Doctrine, Its Antiquity and Early Exercise. —--- 168-175 Present Eminent Domain Law of Illinois 176-199 Latest Decision; Additional Authorities -------------- 200-206 CONTENTS. 7 CHAPTER V. RAILWVAY CONSTRUCTION. SECT'ION. CONSTRUCTION OF THIE ROAD: Preliminary Steps ----------------------------------- 207-211 Crossings; Comity; Conveniences for Business ------- 212-217 II. BRIDGES: Bridge Company Statutes. —------------------------- 218-222 Congress; Old Bridge Charters -........2... 223-224 III. UlNION DEPOTS: Union Depot Companies ----------------------------- 225-230 Powers and Control of such Corporations -- --- - 231-232 IV. CONTRACTS AND LIENS: Legislation, old and new 233-235 Contractors: Sub-Contractors; Laborers and Materialmen -...... 236-243 Construction Contracts ----------- --- ---------------- 244-251 CH APTER VI. RAILWAY LIABILITIES. PASSENGER LIABILITY: Injuries and Death; Right of Action; Criminal Carelessness. —--------------------- ------ 252-260 Uniformity of Charges; Baggage; Tickets; Trains ---- 261-276 II. FREIGHT LIABILITIES: Carrier and Warehouseman; Without Favor or Prejudice 277-288 Bills of Lading; Damages; Act of God-_ 289-301 III. CAR SERVICE: Statutes of Illinois -........... 302-305 Common Law and Usage -........... 306-309 8 CONTE1qTS. IV. SECTIOK. CROSSINGS; SIGNALS; FLAGS: Act of 1869 —----- ----------------- 310-320 Qui Tam Action; Common Law; Municipal Regulations 321-323 Bells; Railway Junctions -------------- - 324-326 V. SERVANTS; FIRES: Servants' Agents; Conductors, Engineers and 3Manslaughter. —-------------------------- 327-330 Fires; Statute and Common Law -....... —-.. —-- 331-333 VI. FENCES; OBSTRUCTIONS: Need of Legislation, and Its Nature ----------------- 334-342 Casualties from Malice; Conspiracy -..... 3434-46 VII. LIVE STOCK; THISTLES: Humane and Sanitary Regulations ---------------- 347-351 Cattle Pens; Canada Thistles. —---------------------- 352-353 CHAPTER VII. RAILROAD AND WAREHOUISE COIMMISSIONERS. I. LAW CREATING THE COMMISSION: Authority for its Creation; Qualification; Oath; Bond; Expense -............................ 354-360 Information, how Secured and Made Public ---------- 361-365 General Powers of the Board ------------------------ 366-371 Prosecuting Railroad Companies -------------------- 372-374 II. WAREHOUSE LAW: Constitutional Provisions -.......... 375-382 Chicago Board of Trade Charter; Legislative Functions 383-385 Receiving; Billing and Weighing Grain ------------- 386-390 Delivering Per Consignment ------------------------ 391-397 III. RAILROAD CLAUSE OF THE CONSTITUTION, AND LEGISLATION OF 1873 BASED THEREON: Full Text Railway Clause of Constitution. —--------- 398-405 COTENTS. 9 SECTION. Extortion and Discrimination.-...................... 406-408 Penalties; Their Enforcement 409-412 Railroad and Warehouse Commissioners and their duties 413-414 Judicial Proceedings; Term Railroad Corporation; Repeal Clause -. —-- 415-417 CHAPTER VIII. DOCTRINE OF UNIFORMITY. Illinois Law, Common Law 418-426 Charters Declaratory_ 427-431 CHAPTER IX. IIICAGO AND ALTON CASE. I. PRELIMINARY REIMARKS; ARGUMENT OF COUNSEL: Importance and General Facts of the Case 432-434 Argument for the Railroad Company -..... 435-440 Argument for the People.-................ 441-447 II. OPINION OF TIIE COURT: The Issue Raised and Arguments Submitted ------ 448-454 Legislative Jurisdiction; Discrimination-.. 455-467 Reform Demand; Forfeiture Franchise and Property - 468-472 CHAPTER X. CONSTITUTIONAL LAW: I. CONTRACTS AND CHARTERS: Government by Contract -------- ----------- 473-4.77 D)artmouth College Case- 478-484 New Hampshire and Illinois Legislation not Analogous; Supposable Analogies- ------------------ 485-486 II. COMMIERCE BETWEEN STATES BY RAIL: Constitution United States; Police Power ------------- 487-491 Circular of Railroad and Warehouse Commissioners - -_ 492-499 Judicial Utterances -------------------------------- 500-505 10 CY)'NTEN'1. III. SECTION. LEGISLATIVE AND JUDICIAL AUTHORITY: The Question Stated; Forfeiture; Common Carrier. 500-511 N'ew York and Illinois Decisions; Constitutions ------- 512-515 Importance of Judicial Limitations, Further Authorities therefor. —------------.. —---------- 516-518 Exact Judicial Statement of the Doctrine 519 APPENDIX. INTRODUCTION,* BY lION. JOIhN M. PALMER. THE COMMON LAW OF RAILWAYS. So nuch has beeu said about vested rights, and such unwarrantable claims have been based upon them, that we have become the victims of delusions created by ourselves. Bult the railroads exist. They are part of our social and business system, and if they inflicted double the wrongs upon us that they do now, they themselves are fixed, and will never be disturbed. It is not necessary for me to engage in the discussion of any of the controverted theories which have been advanced in respect to the nature or extent of the powers of railroad corporations under what are called their charters. I admit the law to be as decided by the Supreme Court of the UInited States in the case of "The Trustees of Dartmouth College against Woodward." I have no doubt that the Supreme Court held correctly, that the charter granted by the British Crown to the Trustees of Dartmouth College, in the year 1769, is a contract, within the meaning of that clause of the * This subject was elaborately discussed by Ex-Governor Palmer, in an address, delivered and published when this treatise was nearly ready for the press. The author at once requested the Governor to furnish a preliminary paper, for use in this con. nection, which he kindly consented to do. 12 RAILWAY LAW N I ILLINOIS. Constitution of the United States which declares that no State shall make any law impairing the obligation of contracts, and I am quite as clear, upon principles that are well understood and eminently just, that the acts of the General Assembly of New Hampshire by which it was proposed to change the name and essentially modify the powers of that corporation, and also to seize the property and usurp the government of the institution, were in violation of the Constitution, and I am prepared also to assent to the doctrine of the Supreme Court of Illinois, that the charters of private corporations are contracts which are inviolable, and as decided by the same court in the cases of " Neustadt and others against the Illinois Central Railroad Company," and of the " Illinois Central Railroad Company against the County of McLean," that the act incorporating the Illinois Central Railroad Company, which declares certain exemptions of the property of the Company from taxation is a contract between the State and the Company, which cannot be changed or amended without the consent of both parties. Indeed, I concede it to be too well established to be shaken or questioned that the State cannot, by the action of any of the departments of its government, impair the charters of private corporations in any material respect. Having made these concessions, no one will expect me either to attack the claim of corporations to vested rights, or to complain of those decisions of the courts that recognize such rights and vindicate them against every attempt to impair them. Many persons who are under the influence of the delusions for which the representatives of corporate pretensions are responsible, observing that I admit all that has been decided INTRODUCTION. 13 by the Courts in respect to the nature and inviolability of the rights of corporations will be ready to conclude that I have, by my concessions, already defined the rights and obligations of railway carriers, and that I have abandoned the only grounds upon which the correction of the abuses which are known to exist in the railway carrying system can be demanded; but I hope to demonstrate that the principles which recognize the inviolability of contracts between the State and the railway corporations, so far from justifying the pretensions of railway carriers to be " a law unto themselves," afford support to theories I will hereafter present and maintain in regard to the legal extent of their duties and obligations. Carriers are among the earliest agencies of the intercourse of mankind. One of the earliest records of the human race preserves the fact that " Jonah went down to Joppa, and found a ship going to Tarshish, and paid the fare thereof, and went down into it to 1go with them to Tarshish." Accounts equally ancient refer tothe freighting of ships with the products of the industry and skill of the oldest of the nations. In all ages the office or employment of carrier has borne an important relation to the commerce and business of the world, and their obligations and liabilities, as well as their duties and powers are defined in the commercial codes of all civilized nations. All over the world their business is treated as a public office or employment, and their rights and luties are held to result fiom the relation they voluntarily assume to the public. Wherever the English language is spoken they are called " common carriers," a term which indicates the general nature of their busi 14 RAILWAY LAW IN ILLINOIS. ness, and at the same time describe the extent of their legal obligations. The distinguishing feature of the office or employment implied in the term "Common Carrier' is, that its obligations and liabilities are not dependent upon the contract, but are imposed by law. I will only enumerate, in this connection, a few of the duties and obligations which the law has imposed upon common carriers, and I will confine myself to those which are least disputed, and interest the public most. "They must furnish reasonable and ordinary facilities for transportation, such as will meet the ordinary demands of the public." They are obliged by law to undertake the charge of transportation indifferently for all, without partiality or improper discrimination, and for a reasonable compensation. These obligations are implied in the very Ilature of the office, for a common carrier, in the language of the courts of highest authority, is one who holds himself out to the world as ready to undertake to carry all persons, or for all persons, indifferently for hire, as a business. Ile engages to receive at: all reasonable times, according to the nature of the business, all passengers, if a carrier of passengers, or, if a carrier of freights, all property which is of a character suited to his means of transportation, in the order in which it is offered, and to transport Fwith safety and reasonable dispatch, and to discharge or deliver, at the place or to the persons expressed or implied in his undertaking, and by the very nature of his employment he undertakes to discharge all the ordinary duties lho assumes for a reasonable reward, and as these are duties and obligations imposed upon common carriers by law, they cannot release themselves from them except by INTRODUCTION. 1.5 the consent of every person whlo may call upon thenm to perform them. Railway corporations, and all natural persons who undertake the duties which I have described as pertaining to tlhat office or employment, are collmmon carriers. The Supreme Court of our own State, in one of the cases blefore it, speaking through Justice Breese, a venerable naime in jurisprudence, uses the following lanluage: I "We suppose that it is not necessary that the charters should provide, in so many words, that the railroad companies created by them shall be coimi0on1 carriers. The authorities are numerous to the point, that such companies using cars for the purpose of conveying goods for all persons indifferently for hire, and whose cu.stomn and uniform practice is to do so, are common carriers, and are liable as such. Tllere needs no legislative declaration to make them suchll; they are so in virtue of their uniform businiess, and are subject to the plrovisions of the comlnon law wh]ichl are applicable to carriers." And(l thle same Court sai(l in another case: " It is admitted by respondent's counsel that railway companies are common carriers. RIegarded -merely as common carriers at common law, and independently of any obligations imposed by tile acceptance of its charter, it would owe ilnportant duties to the public, from which it could not release itself except with the consent of' every person wlho inight call upon it to perform them. These obligations grow out of tile relation voluntarily assumed by the carrier to tile public. But railway conlpanies may wvell be regarded as under higher obligations, if that were possible, than those imposed by tile common law, to discharge their duties to the public as common car 16 RAILWAY LAW IN ILLINOIS. riers fairly and impartially. As has been said by other courts, the State has endowed them with a portion of its sovereignty in giving them the right of eminent domain. By virtue of this power they take the lands of the citizen against his will, and can, if need be, demolish his house. Is it supposed these great powers were granted merely for the private gain of the corporations? On the contrary, we all know the companies were created for the public good. The object of the Legislature was to add to the means of travel anld commerce." And the Supreme Court maintains that railway corporations are common carriers, and subject to all the obligations imposed upon common carriers at common law, both upon the ground that the'Iegislature so intended in creating the corporations, and ihat the corporators contracted to be conzmon carriers when they accepted the charters. The Court, in the cases from which I quote, concede that the charters of railway corporations are contracts b1etw-een the corporators and the State, which neither Iarty can annul or change without the consent of the oether, and that such contracts impose reciprocal obligations. In one case the Court say: "We hold simply that it [meaning a railway corporation] must perf'orm all those duties of a common carrier to which it knew it would be liable when it sought and obtained its charter." "The company can make such rules and contracts as it pleases, not inconsistent with its duties as common carrier, but it can go no farther; and any general language its charter may contain must necessarily be construed with that limitation" "But the charter was granted to promote the convenience of commerce, and it is the constant duty of the respondent INTsIfODUCTIO). 17 to adopt its agencies to that end. It can be permitted to establish no ctstom inconsistent with its charter." And, in a late case, the Court said: " Can any one suppose it was merely to enrich and aggrandize the stockholders and the officers of these companies that the people through their representatives, have granted such liberal charters. On the contrary, we all know that the grant of such powers were conferred to advance the public interest as the first and great object. But to accomplish this great purpose, it was found necessary to enlist private enterprise and capital. And to call it forth for the accomnplishment of the end, rights, privileges, and immunities had to be conferred and secured to those who would embark in the construction and operation of these roads. Hence in these charters the rights and duties of the companies are expressed or implied. When created bodies corporate, they became invested with the right to construct and use their roads to transport both persons and property over their lines and to receive compensation for the same. And when these bodies accept their charters, it is with the implied understanding that they will fairly perform the duties of public common carriers of both persons and property. These are duties they owe to the public and it was in consideration that they would be performed that this charter was granted." These decisions cover the whole ground of the controvrsy between the people and the railway carriers, and they define "tihe legal rights and legal duties of persons whose business and employment it is to receive, transport, and discharge passengers and freight on and by railways," to be the rights and duties of comlnon carriers at common law, and they maintain tle vested 2 18 RAILWAY LAW IN ILLINOIS. rights of the public under the charter contracts between the railroad companies and the State, to insist that such companies shall be held to a complete performance of all the obligations which the law has attached to that relation. I have referred to some of the rules of the common law relating to the duties of common carriers, and will add that the common law is but "the body of principles and usages and rules the product of wisdom, counsel, experience and observation of many ages ot wise and observing men." i And it materially adds to the value of these principles, usages and rules, that they rest for their support upon reason and justice, that they are not limited in their operation to any one or more of the States, but are in force wherever reason rules and jftstice are regarded. They defy power and spurn corruption. They may be disregarded, but cannot be destroyed or changed. They regulate the carrying trade of the ocean and the great lakes and rivers, and in their application will be found the solution of what is aptly called the " railway problem." RAILWAY LAW IN ILLINOIS. CHAPTE R I. TIlE RAILWAY SITUATION. ~ 1. Illinois in relation to the railroad question. 2. Facts and law intertwined. 3. Railroads and the code of civilization. 4. Railroads a modern improvement. 5. The pioneer lines. 6. Extent, cost and earnings of railroads in general. 7. Private enterprise; public donations. 8. Congressional bond subsidy policy. 9. The first land grant; BREESE, DOUGLAS. 10. Mode of procedure. 11. Amount of railway land grants. 12. The States benefitted. 13. Corruption and subsidy. 14. Railway anticipations. 15. The science of railroading. 16. Methods of railway operation. 17. Primitive idea; toll-roads. 18. Governmental control. 19. Railway interdependence and comity. 20. Regulation by combination. 21. Regulation by competition. 22. Mutual benefits of competition. 23. Illinois railway legislation of 1873. 24. Agitation; Antagonism; Adjustment. ~ 1. Illinois has something over six thousand miles of railroad, which is more than any other state in the Union has. Their cost, with equlipments, was about 20 RAILWAY LAW IN ILLINOIS. two hundred and forty million dollars. The collection into one volume of the laws relating to an interest so vast is a matter of great convenience and greater importance. Those laws are scattered through the legislation of a quarter century, and the decisions, not only of this state, but of other states and the United States, covering a wide range of legal literature. ~ 2. Before entering upon a detailed analysis of the subject in hand it will be of interest to take a general survey of the field. Facts and law are so intertwined that such a survey is indispensible. ~ 3. Although tile railroads themselves are novel, and all legislation in regard to them essentially experimental, the great body of laws applicable to them are as old as well regulated commerce. The equitable principles which govern the relations of ta common carrier to the public form a cardinal feature of what might fitly be termed the code of civilization. A clear understanding of the whole subject would require thorough study of the history and laws of commerce in all times and lands. Our historical inquiry must necessarily be cursory, and strictly confined to the one method of carrying on traffic between different places, which has come into existence within the memory of many, and has already attained overshadowing proportions. ~ 4. Delving among the rubbish of the past could unearth no railway relic half a century old. If some of the ancients had tramways with groved vehicles they had no knowledge of steam as a motive power. The Appian way of Rome was doubtless the best road of any considerable length ever built prior to the railroad constructed in England in the year 1829. That TIE RAILWAY SITUATION. 21 date marks an era second in importance only to the discovery of movable types. 5. The railway system of the United States dates from 1830. The honor of seniority is claimed by the Boston and Lowell railroad, also by the Baltimore and Ohio. The whistle of the locomotive was first heard in Illinois eight years later, at the insignificant town of Meredosia. The state was then in the twentieth year of its age. The track-laying on that pioneer line began May 9, 1838. The first locomotive arrived in September, and on the eighth of November eight miles of that long since abandoned and almost forgotten Northern Cross railroad was in operation. That was the first railroad of the Mississippi Valley. ~ 6. At the time Illinois entered the field of railway construction there was in the entire country 1,913 niles of railway in operation. At the beginning of 187:3 there were 67,104 miles of road in actual use. The increase for the latter year was 6,427 miles, or about the same as the total mileage of road in Illinois. It was not until ten years after the pioneer railroad of the state had been built that railway operations fairly began here. Until 1848 the total extent of railroads in the state was only twenty-two miles. Since then the growth has been steady, and reasonably proportioned to the needs of the people. The total cost of the railroads of the country is estimated at $3,159,423,057, and the net earnings at 5.20 per cent. of the cost. The cost of the British railroads was $2,763,400,535, and the earnings are 4.65 per cent. The per cent. of net earnings to cost in Illinois is 6.2. ~ 7. Railway construction has been in part the result of private enterprise and in part of public gifts 22 RAILWAY LAW IN ILLINOIS. of tite rand or another. In the list of public donations should ble included individual aid afforded without any expectation of direct return. The amount of aid afforded by personal contributions cannot be stated, even approximately. Neither can the aid afforded by states, counties, cities and towns be given. We only know that quite a large per centage of the actual cost of building railroads was borne by the public. It is equally true that as a rule the original builders did not realized upon their investments, and through mortgage foreclosures, or sales at a great reduction, the property has generally passed into other hands. The Chicago and Alton railroad, for example, now one of the most profitable lines in the country, was p)rojected by a New York banker, who sunk over a million dollars in the enterprise, and finally event into bankruptcy. The experience of Mr. Dwight was that of ca great many others, although usually on a smaller scale. The actual cost of the railroads of the country to their present owners was vastly less than the actual cost of construction. Consequently the average net earnings of the roads are very considerably greater then appears upon the surface. ~ 8. Congress has issued bonds in aid of six railroad enterprises, viz.: the Union Pacific; the Central Pacific; the Kansas Pacific; the Central Branch Union Pacific; the Western Pacific, and the Sioux City and Pacific. The principal on these bonds foots up $64,623,512, all bearing interest at six per cent., payable semi-annually. The acts authorizing these bonds were passed in July, 1862, and July, 1864. The principal will fall due thirty years from the date of issue. In t1heory these TIIE RAILWAY SITUATION. 23 bonds are a loan of the national credit to the companies named, but in reality they are a donation. ~ 9. The chief aid extended to railway projects by the General Government was in the nature of gifts from the public domain. The past tense is used because while many land grant bills were introduced in the forty-second congress, and will doubtless be revived in the forty-third, popular sentiment is so strongly and unitedly against railway subsidies of every kind that it is safe to predict that no such measure will hereafter become a law. The land grant policy, so far as concerns railroads, dates back to 1850, and in this respect, also, Illinois was the pioneer state. As the honor of projecting a railroad across the continent to the Pacific fairly belongs to Hon. SIDNEY BREESE, Chief Justice of Illinois, and formerly member of the United States senate from this state, so lion. STEPHEN A. DOUGLAS might justly be called the Father of Subsidy. On the twentieth of September, 1850, congress granted 2,595,053.00 acres to the Illinois Central, and the Mobile and Chicago railroads, practically one enterprise. The method adopted and ever since adhered to was to grant the odd sections. The appreciation of the even sections in consequence of the facilities for communication afforded by the roads was such that the price was raised from $1.25 to $2.50 per acre.' No other railway enterprise in Illinois has ever been aided by congress. ~ 10. The legal mode of operation has been always to vest the title to the land in the state. Usually, the state legislature has unconditionally turned the'See Poor's Railroad Manual, 1873-74, 696. 24 RAILWAY LAW IN ILLINOIS. grant over to the railroad, or railroads. Illinois exacted of the Illinois Central payment into the state treasury of seven per cent. of its gross earnings, at the same time exempting the property of the road from ordinary taxation. This contract has since been hedged about by special constitutional enactment, and from it there could be no deviation through legislative action. The annual revenue of the state from this source is about half a million, and steadily increasing. ~ 11. In estimating the grants of public land in faid of railroad projects, a distinction must be made between the amount granted and the amount certified. In Illinois, the whole grant has been certified; but this is not true in any other state. The total number Of acres granted to aid works of improvement, is 198,165,794070, or about 300,000 square miles.1 This area is greater than that of the six New England states, with New York, Pennsylvania, Illinois, Inliana, Ohio, and:New Jersey combined. It includes 4,405,986 acres granted in aid of canals, also, 3,857,-'2137- acres recently donated in aid of wagon roads. Deducting the grants made but not certified, and the qullantity is still enormous. " The amount," says PooR, "yet to be made in the several states will probably reach 35,000,000 or 40,000,000 of acres. In Iowa, for example, the grants made call for 7,207,837f 8I00 acres. Of these, 3,511,149-~%- acres have been certified, there not having been an amount of government lands of odd sections within the limits of the grants at the time they were made equalling the nominal' Poor's MNanual, 700. 'TilE RAIJLWAY SITUATION. 25 animounts of te sallle." The same authority estimates the total extent of railroads constructed and to be constructed onl the strengtlh of these land'grants at 15,000 miles of line. 12. The states which have thus been made the agents of the General Government in carrying out the subsidy policy are Iowa, Mlichigan, Illinois. Minnesota, Alabama, Missouri, Arkansas, Florida, Wisconsin, Mississippi, California, Oregon and Louisiana. Froml the standpoint of aggregate grants, certified and uncertified, Minnesota is the first in the list, and. K(ansas second. 13. There has been an appalling amount of corruption in connection iwith the subsidy policy, and it is a matter of rejoicing that both political parties are agreed in its abolition. It is none the less true that tlme rapidity with whichl1 the development of thle remote XWest has been pushed must be attributed, very largely, if not mainly, to the land grant policy. In justice to the Illinois Central company and its mranagement it should ble added, that its land departmnent has fiom first to last been conducted honestly, and in a way calculated to increase the productive wealth of the state. ~ 14. If we were to go back a generation or so we should find society divided into two classes on the railroad question. The more conservative looked upon the locomotive as a desolating Vandal. Others, again, were completely carried away. The speed would soon be quickened to at least one hundred miles an hour, and tranlsportation rates would be so very low that everybody would get rich. Experience has taught botli 26 RAILWAY LAW IN ILLINOIS. extremes some wisdom. No one could have foreseen how completely the carrying trade by land would be revolutionized, nor how readily all things would adapt themselves to the change. 15. The science of railroading (for a science it certainly is), no one has more than fairly begun to master, although a very large per cent. of the best talent of the country is engaged in the conduct of the business, in one form or another. Especially is this true of the legal profession. So long as the more knotty railway problems remain partially unsolved there will be more or less clashing between production and consumption, on the one hand, and transportation on the other. But, be it remembered, each is equally indispensable to the other, and a basis of good fellowship is mutually desirable. It is quite conceivable that the interests of all concerned will yet be essentially unified by the adoption of a better method of operating railroads, dictated by railway self-interest, no less than by considerations of public policy. g 16. Five distinct ways of operating railroads hlave thus far been recognized. Each deserves special mention. 17. The primitive idea of railway management was borrowed friom turnpikes. Examination of an English railroad charter would lead one to suppose that the Blritish railroads were toll-roads. It was originally thoughllt that large aggregations of capital would construct paths for the locomotive, provide station accommodations, etc., then throw the line open to the public, depending for returns on the investmnent solely upon the tolls received. That crude idea was early abandoned as utterly impracticable. There TrlE RALWAY SITUA'rION. 27 must be unity in the management of all the trains that run over a line. This is absolutely essential to safety. Then, too, the expense of fitting out one train. however small and poorly equipped, would be too great to admit of its being done miscellaneously. Any haphazard system would surely work disastrously, and be abandoned. ~ 18. Another method is to have the railroads form a part of the government, state or national. This plan has been tried with success in the management of canals. It proved a failure when the general governmnent adopted it in the case of the Cumberland wagon road. The state of Pennsylvania tried it with the Pennsylvania Central railroad; but after incurring a heavy debt gave it up, either at the dictates of sound policy or at the connivance of a corrupt ring. Illinois hlas never taken a single step toward that method of railwray management. It is being urged in Great Britain, and works well on the continent of Europe, where the governments are conducted by and for the few. Its feasibility for this country is being discussed somewhat, but the subject is now confined to the region of abstract speculation. If adopted at all it would be upon a national scale, yet through the co-ordinate action of the several states and of the United States. ~ 19. A third method is for each railroad company to own or lease all the rolling stock in use on its line. That was the system adopted when the primitive method was abandoned. If it were necessary to the proper suppl.y of facilities for transportation by rail that the owners of the road should furnish all the equipments, then self-interest and duty to the public ;t 1 AILWAhtY LAW IN ILLINOIS. would require it; but it was early found impracticable, fnrd was long ago abandoned. The Philadelphia and Reading railroad company alone adheres to it. That corporation, with its numerous branch roads, is complete in itself, while the other railroads of the country, whether long or short. form links in a vast continental chain. The greater part of the business of our railroads begins with one road and ends with another, often passing over many roads. To transfer the consignment from one car to another every time a change of roads was necessary, would be an intolerable delay and expense, besides greatly increasing the danger of damage from handling. This led to a system of railway comity which was some years ago recognized and made binding by legislation. That legislation has been unchallenged in its validity. ~ 20. This necessity of railway comity led, not necessarily, but still naturally, to the formation of fast freight lines and palace car lines. By means of this fourth system all unnecessary delays and transfers are avoided. The expense of palace cars are such that only one, the Pullmnan line, has attained any considerable proportions. The expense of freight cars is so light that there are many transportation companies, and the greater part of through freight business is carried on in the cars of such companies. There is professedly no discrimination of any kind, and the railroad comnpanies claim to be entirely ready to haul at impartial rates all cars offered them, whether by other railroad companies, by transportation companies, or by individuals. ~ 21. The fifth and final method is in theory the same as the fourth, and rests upon precisely the same T'IIE RAILWAY SITUATION. 2 9 legal basis; but practically it is altogether different. The fourth has proved a monopoly system, while the fifth, when once fairly in operation, would prove a competitive system. Thus far car owners have allowed the railroad companies to dictate the terms on which consignments should be taken. This servitude has been submitted to because the evils of it fell entirely uplon the producer and shipper, while its benefits were shared between servant and master. Usage has now established the right to car-service as an integral part of common law, and one person, or any number of i)ersons, interested in cheap freight, can put into operation the competitive system. This feature of common law exists throughout the country; Illinois alone has distinctly recognized it by statutory provision. The conmpetitive system,'once generally established, would unify the railway and the popular interest. It would be alike fbr the interest of the owners of the highways and of the patrons thereof to have an increase of facilities. Competition would secure more cars and lower freight charges, while the railroad company would derive revenue in proportion to that increase of facilities. The work of legislation and adjudication in preventing extortion would be vastly simplified. It would be necessarily only to establish by law a fair scale of compensation for car-hauling, and competition would take care of the rest as surely as it now does of mercantile charges. Theodore IBacon justly remarks that " to give scope to competition there must not only be large and fiee demand, but the possibility of supplying by many persons, from many sources, the very commodity demanded." Such possibility would be rendered a certainty by this fifth system. Mr. Adams 30 RAILWAY LAW IN ILLINOIS. was entirely correct in his comment upon competition between railroad corporations when he said: " While the result of ordinary competition is to reduce and equalize prices, the result of railroad competition is to produce local inequalities and arbitrary raise and depress prices." Competition must be of such a nature as to reach every station on the line, else a few points of intersection will enjoy its benefits at the expense of the many. ~ 23. The fourth system is, Regulation by Combination; the true and inevitable system is, Regulation by Competition. This fifth method was first distinctly recognized and rendered attainable by the Illinois railway legislation of 1873. It would be easy to increase the profits of the railroads and lessen the cost of transportation by an equitable division, in accordance with the laws of trade, of the enormous profits now divided between transportation companies belonging to the monopoly ring. ~ 24. The entire nation is becoming profoundly agitated and perplexed over the railway question. There is imminent danger that production and transportation, interests which in their permanent thrift are mutually dependent, will be drawn into disastrous conflict. Statesmen, jurists and economists have seldom been confronted by a graver or more exacting problem. Unless it is rightly adjusted, and that with reasonable dispatch, the antagonism will be fraught with exasperation and peril. To dispel ignorance is the first step towards reconciliation. The aim of this treatise is to set forth those legal principles and rules which admit of no intelligent controversy, and which must guide and condition all successful attempts to effect an equitable and lasting adjustment. CHAPTER II. RAILROAD CORPORArIONS. I. CORPORATE ORGANIZATION. II. CORPORATE RIGHTS AND LIABILITIES. III. TIHE DUTIES OF DIRECTORS. IV. RAILWAY INJUNCTIONS. V. TRANSPORTATION COMIPANIES. I. CORPORATE ORGANIZATION. ~ 25. Railways, highways. 26. Once a highway, always a highway. 27. A corporation defined. 28. Authority for creating corporations. 29. Variety in the exercise of this authority 30. Theory and practice under the old constitutic 31. Old charters and the new constitution. 32. Railway companies classified. 33. Uniformity of rights and liabilities. 34. General railway corporation act, 1849. 35. Supplemental charters; test railway case of 1854. 36. Its present pertinence. 37. Reorganization under present law. 38. General railway corporation law in force. 39. Dates of such legislation. 40. Number of corporators. 41. Articles of incorporation. 42. Filing and recording the same. 43. Powers of the corporation. 44. P'rinmafacie evidence of existence. 45. Corporate life limited; conditions of renewal. 46. Recording by-laws. 47. Transfers of stock; corporate secrets. 48. Amendatory statute, 1873. 49 Complete organization. (31) 32 RAILWAY LAW IN ILLINOIS. g 25. A railroad is defined as "a road on which iron rails are laid for wheels to run on for the conveyance of heavy loads in vehicles." This definition has reference to the practical working of railway business. The legal definition of the term, as given by the con-;titution of Illinois, is simply: "a railway is a highway," and," a highway is a road open to the public." No railroad is a strictly private enterprise. The right to construct the same is not obtained in the usual mnethods of property transfers. The right of private way is secured only by the consent of the original owner or owners of the ground;1 while the right of way for a railroad must be secured, to a greater or less extent, by condemnation, or the exercise of the sovereign power of eminent domain. g 26. The enterprise having started as a public project, and been given special privileges on that account, the contract thus entered into cannot be set (aside at the option of one of the parties thereto. The perversion of a highway into a private road would justly folfeit the original franchise. VWe have herein the explanation of the fact that railroads which are highllways are always corporate property. ~ 27. A corporation has been defined as an artificial being created by law, and composed of individuals subsisting as a body politic under a special (lenomination, with capacity to succeed each other in perpetual succession, and to act in many respects as a natural person. The privilege of being a corporation is conferred on individuals by grant from the sovereign power, and is a franchise. A private corporation is one founded by private individuals, the stock Nesbit v. Trumbo, 39 II1. 110; Crear v. Crossly, 40 Ill. 175. RAILROAD CORPORATIONS. 33 of which is owned, at least in part, by private persons; and is distinguished from a public corporation, which is created by the government for political purposes, or whose stock is owned exclusively by the government.1 ~ 28. The right of a government to vest in a corporation certain functions of its own authority, for the public interest and with certain restrictions, expressed or implied, has never been in dispute. This right rests upon a foundation essential to the very existence of the state, and in its exercise dates back to the earliest conception of political economy. HIowever it may be perverted, it is absolutely essential to the well-being of society. Under the code of Solon Athens granted corporate charters, and the Eighth of the Twelve Tables of Rolie was in effect a recognition of the corporate system as an economic necessity. ~ 29. While the corporate principle is common to all civilized governments, there is wide range and great variety in the methods of its application. Until a relatively recent date, in England the granting of charters was a royal prerogative. All corporations formed in that country at the present time must organize under a general incorporation act. In this country not only has each state its own mode of procedure, but the same state often has nmore than one way. Such was the case in Illinois from its existence as a state until the adoption of its present constitution. Since then, all railway organizations have been formed on one general plan. ~ 30. It has always been competent for the general assembly of Illinois to require corporations to organize I Chief Justice Marshall, in Dartmouth College v. Woodward, 4 Wheaton, 543. 3 34 RAILWAY LAW INm LUNOIS. under general law. The organic law has always, in theory, contemplated the issuance of special charters only in special cases. Practically, the charter system was in use to the almost entire exclusion of the general system, until absolutely forbidden. ~ 31. The present constitution provided that "all existing charters or grants of special or exclusive privileges, under which organization shall not have taken place, or which shall not have been in organization within ten days from the time this constitution takes effect, shall thereafter have no validity or effect whatever."' The evident intention was to forbid the entering upon new corporate enterprises on the strength of old charters; or at least to prevent " sleeping" upon vested rights.2 Such has not been its effect. Organization deemed sufficient to comply with the constitution was easy and inexpensive. The mere election of officers, adoption of by-laws, and the like preliminary work, has been deemed compliance with the constitution. The greater part of the railway schemes put in operation in Illinois during the current decade rest upon old charters-, rather than upon the general law. It would be quite impossible to estimate how long it will take to exhaust this " reerve fund" of special charters. The validity of some of these charters will doubtless be called in question, eventually, on a writ of quo warranto, based' Illinois Constitution, art. xi, sec. 2. 2A great many charters were procured under the old constitution without any expectation on the part of the corporators of making any legitimate use of the same. Franchises were se. cured with a view to selling them. This hawking about of charters is not wholly at an end in this state even yet. RUILROAD CORPORATIONS. 35 on the constitutional limitation quoted; but no such case has yet reached the docket of the Supreme Court. ~ 32. Classified from the standpoint of organization the railroads of Illinois are: First, those organized and existing urnder specific charters; and, second, those organized and existing under the general incorporation act.' It should be borne in mind that the organization of a company is a vital part of its continuous existence. It is liable at any time to be obliged to show the title to its franchises, and its right to acquire and hold property. ~ 33. The railway charters granted in Illinois differ in some of their details, but agree in their general characteristics. They quite uniformly lay special stress upon the rights of the corporation, while passing lightly over its liabilities. This is not, however, a matter of real importance, a charter being leclatory of rights, rather than creative of them. Subjected to the actual test of law, railway corporations existing under the general act of the state have essentially the same rights as those existing under special charters, and, conversely, those existing under special charters are subject to the same control, judicial and legislative, as those existing under general law." ~ 34. A general law for the organization of railroad companies was passed in 1849. In a subsequent railway case it was claimed that a charter granted after tile passage of that act would not be valid unless it was expressly declared that special reasons existed for 1 For a complete list of the railway companies of the state, arranged according to this classification, see Appendix. 2 For a discussion of this subject and authorities for this statement, see chapter on the Doctrine of Uniformity. 36 RAILWAY LAW IN ILLINOIS. not organizing under the general law. The court held that such declaration was not necessary.' As a matter of fact very few organizations were affected under the law of 1849, and it is believed that no railroad company in the state now holds its franchises under that act, or any general statute ante-dating the present constitution. Those originally organized thereunder either secured special charters afterwards, or reorganized under the statute of 1872. ~ 35. The most notable instance of beginning under the general law, and then securing a charter, occurred under the administration of Gov. M/Iatteson, in 1854. As it was ultimately made a test case in the courts it desdrves notice.2 The Mississippi and Atlantic railroad company found it difficult to raise money and preferred a special charter. The governor called an extra session of the general assembly, specifying, among other things, this object, " to pass laws recognizing the existence of, and conferring additional powers upon, corporations formed, or which may be formed prior to the action of the legislature thereon under the act to provide for a general system of railroad incorporations." It was claimed that organization having been effected under the general law there could be no transference of the company to a charter basis. The court did not take this view of the case. It held, on the contrary, that such legislation was valid.3 Johnson v. Joliet & Chicago R. R. Co. 23 Ill. 203. People v. Mississippi and Atlantic R. R. Co. 14 Ill. 440. 3 There was an eminent array of counsel in the case. C. Beckwith, conspicuous in the latest test railway case, was associated with Messrs. Constable, Gillespie and Blackwell as RAILROAD CORPORATIONS. 37 ~ 36. The right of the legislature to cure defects of organization was the principle of chief importance set forth, in the opinion of the court, in that case. The doctrine of the validity of retroactive corporate legislation has been reaffirmed in several cases, and alluded to always as a settled point.' If the legislature had the right to cure organic defects by special legislation it has the right to do so by general legislation. This is a vital point in view of a law passed in 1873 for the purpose of curing defects in railway organization.2 ~ 37. Some railroad companies organized under the general railway law of 1849, amended in 1869, have since organized under the law approved March 1, 1872. A few companies possessing special charters have seen fit to organize under that law, in accordance with a provision therein contained. The mode of procedure in such cases is the same as in effecting an entirely new organization. We need only add of the law of 1849 that it was amended in 1857, and again in 1869, and the whole repealed, except certain specified sections, by the law of 1872.3 ~ 38. In addition to positively forbidding the creation of corporations by special enactment, except those counsel for the people; Lyman Trumbull, B. C. Cook, J. A. Glover, V. Worthington and Gen. McClernand, appeared for the corporation. l Goodrich v. Reynolds, Wilder & Co., 31 Ill. 490. Laws of Illinois, Twenty-Eighth General Assembly, First Session, page 140. 3 The sections not repealed are 34, 35, 36, 37, 38, 39, 40, 41, 42 and 45. All except the latter apply entirely to the operating of the road. That defines the companies to which the law is applicable. 38 RAILWAY LAW IN ILLINOIS. for charitable, educational, penal, or reformatory purposes, and which are to be and remain under the patronage and control of fihe state, the constitution provides that the general assembly shall [not may] by general law make provision for the incorporations thereafter to be created.' It would have been competent for the legislature to have passed a statute analogous to the British law called " The Companies Act of 1872," which applies to all corporations; but as a matter of fact the general incorporation acts of Illinois do not apply to railroads.2 ~ 39. The main statute for the formation of railway companies was approved March 1, 1872. It contained an emergency clause, and consequently became at once operative. The supplemental act was approved April 26, 1873, and went into effect July 1, 1873.3 ~ 40. Any number of persons, not less than five, may form a railway company. In organizing an ordinary corporation the number must not be less than three, nor more than seven. ~ 41. The articles of incorporation must set forth the facts on each of the eight following points, viz.: 1. The name of the proposed corporation. 2. The 1 Illinois Constitution, art. xi, sec. 1. 2 There is an act authorizing the formation of union depots, the details of which will be explained hereafter. Besides railNway laws there are three general incorporation acts non-applicable to railroads. The first gives the details of procedure in creating and operating stock companies; the second is purely supplemental to the first, and the third is designed to enable associations of persons to raise funds to loan only to their members. See Gross Statutes, vol. 2, pp. 124, 556 and 571. 3 The first is given in Gross Statutes, vol. 2, p. 64; the second in the statutes of the state of Illinois, 1S73, p. 117. RAILROAD CORPORATIO.NS. 39 places from and to which it is intended to construct the proposed railroad. 3. The place at which shall be established and maintained the principal business office of such corporation. 4. The time of the commencement and the period of continuance of such corporation, the same not to exceed fifty years. 5. The amount of capital stock. 6. The names and places of residence of the several persons forming the association. 7. The names of the members of the first board of directors, and in what officers or persons the government of the proposed corporation and the management of its affairs shall be vested. 8. The number and amount of shares in the capital stock of the corporation. ~ 42. These articles of incorporation must be signed by the corporators and recorded in the office of the recorder of deeds ifi each county through or into which the railroad is proposed to be run, also in the oflice of the secretary of state. ~43. The filing and recording having been effected, the persons named as corporators thereupon become a body corporate, clothed with the usual powers of a corporation, and duly authorized to proceed with the business in hand. The statute defines this authority to be the power to have succession; sue and be sued; plead and be imnpleaded; have and use a common seal, which it may alter at pleasure; declare the interest of its stockholders transferable;' establish by-laws, and make all rules and regulations for the management of its affairs in accordance with law. 1 The old idea that a corporation can only act under its corporate seal is obsolete. See New England Fire and Marine Ins. Co. v. Schatler, 38 Ill., 166. 40 RAILWAY LAW IN ILLINOIS. ~ 44. A copy of any articles of incorporation, filed and recorded as the law directs, certified as correct by the secretary of state or his deputy, must be accepted as prima faecie evidence of the incorporation of the company and of the facts therein set forth. ~ 45. Under the obsolete law of railway incorporation there had to be at least twenty-five original incorporators. The life of the company was limited to fifty years, with no provision f'or renewal.' IUnder the present law the corporation may renew from time to time, for a period of not longer than fifty years, provided that three-fourths of the votes cast at any regular election held for that purpose shall be in favor of continuance; and provided, further, that those desiring to renew shall purchase, at its current value, the stock of those opposed to continuance, in case any of the stockholders are opposed thereto. ~ 46. The original by- laws and all subsequent amendments must be recorded in the office of the secretary of state, and of the county recorder, or recorders, the same as the articles of incorporation. The copy must be certified. This record must be made always within ninety days after the adoption of the same. ~47. As transfers of stQQk geuatlly precedeQ to greater or less extent, any actual operation, it should be mentioned in this connection that all such transfers must be made at the headquarters of the company in the state. In the case of ordinary stock companies incorporated in Illinois, all transfers of shares not fully'The mode of procedure in reorganizing an old company under the existing general law is precisely the same as in organizing a company de novo. RAILROAD CORPORATIONS. 41 paid up must be made a matter of corporate and public record; but fully paid up shares can be transferred in blank without any record whatever. Common companies may have secrets; the law attempts to make all the operations of a railway company so far a matter of record that in case of need every step and phase of the company could be brought to light. ~48. A statute amendatory to the general railway incorporation act went into force July 1, 1873. It was designed and had the effect to extend the privilege of reorganization under the general law passed by the previous general assembly to associations or corporations that had attempted to be formed, giving to such inchoate companies the same rights and privileges as were previously enjoyed by perfected organizations, "notwithstanding any defects or omissions in their articles of association." The same idea is contained in the clause, "all such corporations that have adopted or that will adopt this act are hereby declared legal and valid corporations, within the provisions of this act, from the date of the filing of their respective articles of association. And the fixing of the termini by any such corporation shall have the same effect as if fixed by the general assembly." 1 Two provisos are added to the law; but they will come under the head of construction and municipal aid bonds. ~49. The association is not binding upon the corporators until the organization has been completed. At the same time, if one actually becomes a subscriber 1 These quotations contain the only really new and vital parts of that statute and was evidently designed to remedy a defect in a particular railway organization which had recently been pointed out by the supreme court. 42 RAILWAY LAW IN ILLINOIS. lie is bound by the terms of his subscription, and must bear his share of the preliminary expenses, unless the subscription provide the contrary, although several decisions favor the opinion that merely taking shares in a railroad project does not obligate the subscriber to pay any preliminary expenses, unless there is a contract to that effect. If the scheme should prove abortive, the terms of the subscription, whatever they may be, must be observed in good faith. When fully organized the company may and generally does assume the liabilities incurred by the provisional association in securing a completed organization.1 II. CORPORATE RIGHITS AN-D LIABILITIEs.2 ~ 50. Conditions precedent. 51. Corporate citizenship. 52. Importance thereof; constitution of the United States. 53. Agreement to take stock. 54. Subscription by installment. 55. Unpaid subscriptions and promissory notes. 56. No fictitious stock issues allowed. 57. Increase of capital stock. 58. Books of the corporation. 59. Corporate mortgages. 60. Late legislation authorizing it. 61. Why authorization necessary. 62. Stock personal property.'For a full discussion of the points stated in this paragraph see Spear v. Crawford, 14 Wend. 20; Thrasher v. Pike Co. R. R. Co. 25 Ill. 393; Illinois River R. R. Co. v. Zimmer, 20 Ill. 654; Ill. Grant v. Green, 46 Ill. 469. 2 It is proposed in this connection to consider only the rights and labilities of railway companies as corporations. Their ob. ligations and privileges as common carriers, and their general operative relations to the public will be set forth elsewhere. RAILROAD CORPORATIONS. 43 63. Transfers of stock abroad; act of Congress. 64. Consolidation under common law. 65. Consolidation under the constitution. 66. Railway leases. 67. Cheap transportation contracts. 68. Railway liability to execution and sale. 69. Cumulative system of voting for directors. 70. Individual liability of shareholders. 71. Special meetings of the corporation. 72. Rights of majorities; minorities. 73. Single stockholders. 74. Corporate limitations. ~ 50. It is the doctrine of the supreme court of the United States that if the law requires a certain amount of capital stock to be paid in before the cor-'poration is fully formed, this condition precedent must be fairly complied with. But unless the charter or general law, as the case may be, specifically require it, such prepayment is not necessary.l The general law of Illinois does not make any such requirement. ~ 51. A corporate person, as well as a private individual, has a citizenship. Many cases at law have turned upon this point: what determines the local habitation of a joint stock company? It has been claimed that the residence of a majority of the stockholders is decisive of the question. But the doctrine of the courts is that the residence of the stockholders in no wise affects the citizenship of a corporation.2 All the stock of all Illinois railroads might be owned outside of' the state, and still each and every company I Minor v. Mechanics' Bank of Alexandria, 1 Peters, 46. 2 Louisville R. R. Co. v. Letson, 2 Howard, 497; Ohio R. R. Co. v. Wheeler, 1 Black, 286; Covington Bridge Co. v. Shepherd, 20 How. 227; Marshall v. Baltimore and Ohio R. R. Co, 16 How. 314; Regina v. Arnaud, 9 Q. B. 806. 44 RAILILROAD LAW IN ILLINOIS. would be a citizen of this commonwealth. A private person may change his citizenship at pleasure. A corporation has no such power. ~ 52. This is liable to be a matter of great practical importance. In litigation, the general policy of railway companies is to delay a final judgment. Under the constitution of the United States, the federal judiciary has appellate jurisdiction in all suits between citizens of different states; but not in cases between citizens of the same state, unless arising under the national constitution or acts of congress.' The right of appeal often involves immensely important practical results.2 ~ 53. An undertaking to subscribe a certain amount of stock does not make one a stockholder. Such a promise is like the promise to purchase any other specific piece of property. If there is no delivery nor any offer to deliver, the company in a suit against such a promisor could not recover, as damages, the value of the stock, because they still hold it in their own name. The true measure of damage in such a case would be the actual damage resulting from the loss of the bargain; that is, the difference between the par and market value of such stock.3 ~ 54. In common law, subscription may be made to a capital stock by installments. When this is done 1 U. S. Constitution, art. iii. sec. 2, 2 For elaborate discussion of this subject see Bank of Augusta v. Earl, 13 Peters, 519; Zabriskie v. Cleveland, Columbus and Cincinnati R. R. Co. 23 How. 381; Bank of U. S. v. Dandridge et al. 12 Wheaton, 64. 3 Thrasher v. Pike County R. R. Co. 25 Ill. 393; Chase v. Sycamore and Courtland R. R. Co. 38 Ill, 215. RAILROAD CORPORALIONS. 45 without condition or reservation and certificate of stock issued, the person becomes a member of the corporation and as such is liable for the calls of the company. Nothing remains to be done concerning the contract except payment of the money. This may be recovered by a suit indebitatus assunrpsit for the money due on the installments.' But one corporation can notrecover upon subscriptions made to another, however identical the objects sought by the organization or the parties composing them.2 Under the statutory law of Illinois the directors of a railroad company have almost unlimited power in regard to the payment of railway stock subscriptions.3 ~ 55. The supreme court of Illinois holds that a railroad company has the same claim upon an unpaid subscription to its stock that it has upon a promissory note. The corporation may sell the subscription, or make a contract to dispose of it, as a part of its assets. The sale must be for the purposes of the road, as must be the expenditure of all the funds of the company.4 No stock or bonds can be issued or money disbursed for an object foreign to the designs of the company. Whatever the railway facts might show, railway law is very plain on this point. ~ 56. No stock or bonds mlay be issued except for money, labor or property actually received and applied to the purposes for which the company was organized. This is the constitutional law.5 No stock dividends or Peake v. Wabash R. R. Co. 18 Ill. 88. a" Thrasher v. Pike R. R. Co. 25 Ill. 393. 3 See Duties of Directors. 4 Morris v. Cheney, 51 Ill. 451. 6 Ill. Constitution, art. xi, sec. xiii. 46 RAILWAY LAW IN ILLTNOIS. other fictitious increase of stock or indebtedness would )be legal, though every stockholder concurred therein. In the contemplation of the organic law of Illinois such " watering," as it is called, is against the public policy. The common law recognizes the right of the government to make such restrictions. ~ 57. Under certain conditions, for legitimate p-urposes and in a manner prescribed by law, a railway company may increase its capital stock. The condition requires that sixty days notice shall be given "in such manner as may be provided by law:" The statute provides' that in case the original capital shall prove insufficient for the construction and operation of thle road, the same may be increased to any amount required for the purpose. This increase must be sanctioned and authorized liy two-thirds in value of all the stock. The question of increase must be decided at a meeting called for that especial purpose.2 ~ 58. Every railway company organized or doing business in Illinois, "under the laws and authority thereof," is compelled to maintain a public office in this state for the transaction of its business. It is there that its transfers of stock must be made. The company is required by the constitution to keep at that office, or place, books in which shall be recorded: 1. The amount of capital stock subscribed..2. By whom subscribed. 3. The names of the present owners of the stock. 4. How much each shareholder holds. 5. The amount of stock paid in. 6. By whom paid in. 7. The amount of its assets. 8. The amount of its'Gross, vol. ii, R. R. chap. sec. 174. 2 For the method of its call, which is by the directors, see Duties of Directors. RAILROAD CORPl'ORATIONS. 47 liabilities. 9. The name and residence of the officers of the company. The statute reaffirnls these requiremnents, adding one more, viz.: hlow the shares held by each is designated.1 This law is olly partially respected, especially by the older companies.2 ~ 59. Tlie corporation may not only increase its capital stock, but inortgage its property, if necessary, to collplete or operate its road. In the nincteenth section of the statute of 1872, wherein lnumerous rights are specified, it is declared that the col)pany shlall ]av-e power3 "from time to time to borrow sulch sumls of money as may be necessary for completing, finishing, improving or operating any such railway, and to issue and dispose of its bonds for any amnount so borrowed, and to mortgage its corporate property and franchises to secure payment'of any debt so contracted." Tile concurrence of a two-thirds majority of the stock must be secured as first defined in the preceding section, and the increase, or mnortgaoge, must be made a matter of public record, as provided in the case of the articles of incorporation. 0 60. This statutory permission to borrow money onI a mortgage of franchises and property formed a part of the present general railway incorporation act, and did not apply originally to railroads existing under charters. A statute was passed in 1873 extending its' Gross, vol. ii, R. ER. chap., sec. 166.'A very large proportion of the stock is bandied about on'Change in New York, or held by persons living remote, and the actually ownership is often unknown. See second annual report Railroad and Warehouse Commissioners, Illinois, for abundant evidence of the partial inoperativeness of this feature of organic law. a Gross, vol. ii, R. R. chap. sec. 186. 48 RAILWAY LAW IN ILLINOIS. provisions to all other railroad companies. It went into force July 1, 1873.1 Besides extending this power to other or charter railroads in the state, the law contained this safeguard: "This act shall not in any manner legalize the subscription of any township, county or city to the capital stock of any railroad company, nor authorize the issuing of any bonds by any township, city or county in payment of any subscription or donation." ~ 61. The need of this special authorization to mortgage its franchise and property rests upon the fact that a corporation, whether public or private, possesses and is empowered to exercise no other functions than those specifically conferred by the act creating it, or such as are necessary to carry into effect the purposes for which it was created.2 The courts are strict in limiting and preventing the abuse of corporate authority. ~ 62. The stock is defined by statute3 to be personal estate, transferable in the manner prescribed by the by-laws. In the case of companies organized under the new law,'no shares shall be transferable until all previous calls thereon shall have been paid." The statute further provides that " it shall not be lawful for such corporation to use any of the funds thereof in the purchase of its own stock, or that of any other corporation, or to loan any of its funds to any director'Laws of Illinois, 1873, page 141. 2 Caldwell v. City of Alton, 33 Ill. 416; Newhali v. Galena and Chicago Union R. R. Co. 14 Ill. 273; Ohio and Mississippi R. R. Co. v. McClelland, 25 Ill. 140; Galena and Chicago Union R. R. Co. v. Crawford, Ibid, 529. 3Gross, vol. ii, Ibid, sec. 172. RAILROAD CORP'ORATIONS. 49 or other officer thereof, or to permit them or any of them to use the same for other than the legitimate pllurposes of such corporation." ~ 63. It is worthy of note in this connection that all act of congress passed in 1848 contains a clause pertinent to such of our railroad companies as have foreign stocliholders.' It provides that " all powers -of attorney executed in a foreign land for the transfer of any stock of the United States, or for the receipt of interest thereon, shall be verified by the certificate and seal of a consul, vice-consul, or commercial agent, or vice-commercial agent, at the place of execution, if any such there be."2: i64. Some Illinois railway charters expressly permlit any and all consolidation, and only a very few of them explicitly restiict it. The United States supreme court, in a recent case, held that where railroad cornlpa ies are consolidated by act of legislation, the presumption of law is that each of the united lines of road will be held with the privileges and burdens originally attached thereto, unless the contrary is expressed.3 The Illinois supreme court holds that in case of consolidation the powers vested in the colmpanies consolidated will be conferred upon and center in the company taking the name of the consolidated company.4 The grant of a right to a railroad coniThe term foreign is often applied to a state; but in this connection it is used in its more familiar sense, as applying to persons living outside of the United States. 2 The careless wording of this law is noticeable. As a rule state statutes are drawn with greater precision than national statutes. I Tomlinson v. Branch, 15 Wall. 460. 4 Robertson v. City of Rockford, 21 Ill. 458. 4 50 RAILWAY LAW I ILLINOIS. pany to extend and unite with any other railroad in the state gives a general authority to extend to ally other railroad within the prescribed limits.' ~ 65. The present constitution declares that "'no railroad corporation shall consolidate its stock, property, or fianchises with another railroad corporation owning a parallel or competing line."2 It may be questioned whether such a prohibition is valid in the case ot some corporations; but no decision on that point has yet been rendered, and it is believed that no issue thereon has been joined. The same clause of the constitution adds that " in no case shall any consolidation take place, except upon public notice given sixty days to all stockholders, in such manner as may be provided by law." Tile statute makes the same provision for notice in this case as in the case of a proposed increase of stockl.3 ~ 66. The more frequent method of unifying two or more railway interests is by leasing, without the formal consolidation of stock. It will be observed that the constitution and the statute regards leasing and stock consolidation as so nearly the same as to place precisely the same restrictions upon both, using the term " consolidating its stock, property, or franchises." In a case which was adjudicated long prior to the present constitution the court held that, if a railroad company use the road of another company it must conform to the charter of the other corporation while doing the business.4 A railroad company may lease' Belleville R. R. Co. v. Gregory, 15 Ill. 20 2 Illinois Constitution, art. xi, sec. 11. 3 Gross, vol. ii, R. R. chap. sec. 189. 4 City of Chicago v. Evans, 24 Ill. 52. RAILROAD CORPORATIONS. 5 1 its road, but cannot thereby avoid liability. Whether the road be run by agents, servants, or lessor, they will all be considered agents of the corporation owing the road.l As corporations outside of the state have leased several Illinois railroads, and are likely to lease still more, this doctrine is of more than ordinary importance. ~ 67. The statute of 1872 contemplates that a railroad company may desire to offer inducements to secure donations of larnd or private subscriptions to the stock from persons along the proposed route. It therefore provides that if the company shall wish to fix the rates for any period of time for the transportation of passengers or freight, "such corporation may adopt a resolution fixing such rates and the time for which the same is to be fixed, and have the same recorded in the office of the recorder of deeds in the several counties through which said road is proposed to be run.2 These rates shall be binding upon the company and its successors, forming a vested popular right. It is added, however, "Provided that said rates shall not exceed the rates provided by law."3 ~ GS. There has been considerable controversy at different times in regard to the personal property of a railroad corporation, and the corporate liabilities thereto attached. The constitution declares, and it is the common law doctrine as held by the courts, that'Ohio and Mississippi R. R. Co. v. Dunbar, 20 Ill. 623; Chicago and Rock Island R. R. Co. v. Whipple, 22 Ill. 106. Gross, vol. ii, R. R. chap.-sec. 193. 3 Diligent inquiry fails to bring to light a single instance in which this cheap transportation privilege has been exercised by any railroad corporation in Illinois. 2 AILWAY LAW IN ILLINOIS. " the rolling stock, and all other movable property belonging to any railroad company or corporation in this state, shall be considered personal property, and shall be liable to execution and sale in the same manner as the personal property of individuals, and the general assembly shall pass no law exempting any such property from execution and sale." This clause is substantially embodied in the twentieth section of the railway incorporation act.' The court would interfere, hlowever to prevent the diversion of railway property from its original use to satisfy a creditor, when such satisfaction would have been a hardship upon the public. The people have a certain right in railway property, and it is conceivable that a case might arise of such a naiture that the court would be compelled by regard to the general welfare and the necessities of travel to prevent the execution and sale of the personal property of a railroad company. No such case has occurred since the adoption of the existing constitution. ~ 69. " In all elections for directors or managers of a corporation of Illinois, of whatever nature, andll under whatever legislation created, special or general, every stockholder has the right to vote, in person or by proxy, for the number of shares owned by him. for as many persons as there are directors or managers to be elected, or to cumulate said shares, and give one candidate as many votes as the number of directors multiplied by the number of his shares of stock shall equal; or to distribute them, on the same principle, amlong as many candidates as lie shall think fit; antl'Gross, vol. ii. R. R. chap. sec. 187. RAILROAD C()RPORATIONS. 53 such directors or managers shall not be elected any other way."' ~ 70. Each stockholder is individually liable to the creditors of the company to an amount not exceeding the alnount unpaid on the stock held by him, for any and all debts and liabilities of the company, until the whole amount of the capital stock so held by him shall hlave been paid. But if a person holds stock as an executor, administrator, guardian or trustee, or if he holds it as collateral security, he is subject to no personal liability as a stockholder. The person pledging the stock is considered as holding it, and is subject to the liability of a stockholder accordingly. This provision is statutory, rather than constitutional, and applies in some of its features only to railway companies. In corporations organized under the general incorporation act of the state, the stockholder incurs no liability except that whatever he has agreed to pay into the treasury of the company he must pay, or forfeit his stock. ~ 71. It is contemplated by common and statutory law that the main business of a corporation will be transacted at stated and regular meetings. It is further contemplated that special meetings will usually be called by the directors. But this is a rule with exceptions. The statute of 1872 provides (sec. 9), that a meeting may be called at any time by the stockholders owning not less than one-fourth of the stock, as well as by the directors. The method in both cases is the same.'This bunglingly stated provision forms section 3 of article xi, of the constitution of Illinois, and is put into railway act, section 25. 54 RAILWAY LAW IN ILLINOIS. ~ 72. A two-thirds majority, in value, of all the stockholders, may at any special meeting remove any president, director, or other officer of the corporation, and elect others in their stead. A majority of those present may at any meeting require the officers to make a full statement of the affairs of the. company. It is competent for the majority, in value, of the stockholders to fix the rate of interest to be paid by the company for the money borrowed to build or equip the road; also to fix the amount of the loan. ~ 73. Each stockholder shall at all reasonable hours have access to and may examine all the books, records, and papers of the company.' t ~ 74. Corporations are held to a strict construction of their corporate rights. A contract is utltra vire.9 when it reasonably appears that the legislature intended that such a contract should not be made.2 "Where a corporation exceeds its powers in making a contract the contract is absolutely void."3 Corporate limitations are well defined in the following authoritative utterances: "That contracts which do in reality contravene any principle of public policy are illegal and void, is not and cannot be denied. The doctrine is universal. There is no exception. Although the unanutorized act may be neither malun, in se nor maclttu p)roehiitumn, but, on the contrary, may be for some worthy or benevolent object, yet, if it is a vioGross, vol. ii, R. R. chap. sec. 169. 2 S. Y. and C. Co. v. G. N. R. Co. 9 Exch. 55, 84; 30 Eng. Law and Eq. 120; 24 Law J. N. S. Q. B. 105 3 Rock River Bank v. Sherwood, 10'Wis. 230; Beach v. Fulton Bank, 3 Wend. 573; N. Y. F. Ins. Co. v. Ely, 2 Cow., 678; Bate. man v. Ashton-under-Ly. - 3 H. and N. 323; 4 Ellis and B. 397; 2 Exch. 711tl; id. 718; Angrell and Ames, Corp. 9th Ed. 240. RAILROAD CORPORATIONS. 55 lation of public policy for corporations to exercise powers which have never been granted to them, such contracts, notwithstanding their praiseworthy nature. are illegal and void."e1' Bissell v. The M1. S.and N. I. R'y, 22; N. Y. Ct. Ap. Repts. 258; 13 Eng. Law and Eq. 506; 7 id. 505; 12 id. 224; 6 id. 106; 16 id. 180; 3 id. t44. The following summary of the law on this point is from the argument submitted by HIon. Robert G. Ingersoll in the case of the Peoria and Rock Island R. R. Co. v Coal Valley Mining Company, not yet officially reported: 1. That railroad corporations are the mere creatures of the statutesthat their powers are all derived from the legislature, and that they have no right to construct, operate and manage their property except for the accomplishment of the purposes for which they were created. 2. That they are created for the public benefit, and have no right to do any act inconsistent with their charters. 3. That a corporation itself cannot add to its powers in any manner whatever. 4. That the corporation cannot delegate some of its powers to another corporation, for the reason that corporations cannot get powers from each other, but must get them from the law making power. 5. That a corporation has no right or power to agree that it will not exercise all its powers and franchises for the purpose of carrying out the object of its creation, and that it cannot incapacitate itself. 6. That the corporation can cease to exist under certain circumstances, and render back to the state its powers and franchises; but it cannot confer some of its powers upon some other corporation. 7. All agreements to do certain acts unauthorized by the charter and inconsistent with it, and inconsistent with the obligations of the corporation to the public, and inconsistent with the accomplishment of the objects for which the same was created, are ultra vsres, contrary to public policy, and void. 56i; RRAIL+N',WAY LAW IN ILLINOIS. III. TI:E DUTIE:S OF DImECTORS. 83 75. The policy of limitation. 76. Residence in the state. 77. Place and time of election. 78. Qualification and election. 79. Powers of the majority. 80. President and other officers. 81. No compensation as a director, 82. Directors and stock subscriptions. 83. Directors and mortgage bonds. 84. Annual public report. 85. Report to the shareholders. 86. Perry on Directors. ~ 75. We have seen that a railway corporation has a board of directors as a part of its organization; that the board must classify themselves; that the elections of directors must be upon the cumulative plan, sometimes erroneously called the " minority representation " plan. It can hardly have escaped notice that the policy of the state is not only to restrict the powers of c.orporations, but to vest, as far as practicable, in individual stockholders the power to prevent and arrest abuse of authority by the officers of the company. The importance of this was much greater than the public is accustomed to suppose, or rather, than it was accustomed to suppose at the time the existing constitution of Illinois was adopted. ~ 76. By virtue of a clause of the constitution of Illinois, incorporated also into the statute of 1872, a majority of the directors of a railroad company must be residents of the state. This provision is expressly extended to all railway corporations created by this state, in whatever way or at whatever time.' It does I Illinois Constitution, art. xi, sec. 11. RAILROAD CORPORATIONS. 5 not, as a matter of course, apply to companies existing by virtue of charters derived from other states anll doing business in Illinois. The greater part of the constitutional provisions made in regard to railroads admit of no distinctions between those merely doing business in the state and those created by the laws of' this state. ~ 77. The directors must be elected at the annual meetings of the shareholders, held at the public office of the company in Illinois. This provision in regard to the place of election not being found in the constitution, nor by its express terms made applicable to railroad companies existing under special charters, may be held obligatory only upon those corporations created under the general statute. While the law requires these elections to occur at the regular meeting, at a given time, it is provided that " in, case it shall happen, at any time, that an election of directors shall not be made on the day designated by the by-laws of such corporation for that purpose, the corporation, for such cause, shall not be dissolved, if within ninety days thereafter the stockholders shall meet and hold a:n election for directors in such manner as shall be provided by the by-lawvs of the corporation."' ~ TS78. The statute declares that all corporate powers of a railroad company shall be vested in, and be exercised by a board of directors, adding that the same shall be stockholders of the corporation, to be elected at the annual meetings of the corporation. At special meetings a two-thirds majority in value of the stock may depose an officer for cause; but the mode of filling Gross, vol. ii, R. R. chap. sec. 170. 58 RAILWAY LAW IN ILLINOIS. vacancies prescribed in the by-laws shall not be changed except at a regular annual meeting.l ~ 79. The law, as we have seen, specifies what may be done by a two-thirds majority of the stockholders; what by a plurality; what by one-fourth; and what by a single shareholder, making, in a sense, a four-fold division. Directors must act as a whole. N'o provision is made for the individual or the minority action of the directors. The board is in itself a unit. There are no property rights involved; but simply official or finctional authority. This does not preclude the delegation of certain powers to an executive committee, selected from and by the board. Such selection, although not specifically provided for, is not infrequent, and may be said to exist, if at all, in contemnplation of law. The by-laws generally determine that matter. At common law the general duties of the board are regarded as ministerial. In case the action in a given instance is judicial in its nature, the concurrence of all the directors is required, at least the whole must assemble and take action thereon. In fine, if the matter is of public concern, the decision of the majority will bind; but in private concerns, as arbitration, all must concur.2 ~ 80. The directors must chose, and that from their own membership, a president and "such other subordinate officers as such corporation, by its by-laws, may designate, who may be elected or appointed, and shall perform such duties and be required to give such security for the faithful performance thereof as such corporation, by its by-laws, shall require; provided I For county railroad directors, see sec. 156. 2 See Riedfield on the Law of Railways, vol. 1, p. 91. RAILROAD CORPORATIONS. 59 that it shall require a majority of the directors to elect or appoint any officer."' This clause brings up again the powers of majorities. An early Illinois decision declares that if a number of persons are entrusted with powers in matters of public or corporate concern, and all of them are regularly assembled and consulting, the majority may act and determine, provided the authority be not otherwise limited and restricted.2 ~ 81. It is a well-established principle of law that a director is not entitled to compensation for services performed as a director.3 The law looks with jealousy upon the delegation of special labors by the board to its own members, and the making of contracts with themselves, for constructing the road, equipping it, etc., would be regarded as a breach of fiduciary trust, unless the contract were made with the knowledge and consent of all the stockholders. It sometimes happens that all the shareholders are members of the board. The directors cannot indirectly pay themselves by borrowing money of the company, or using the corporate funds for any purpose, except for the legitimate objects of the corporation.4 ~ 82. The directors may require the subscribers to the stock of the corporation to pay the amount by them respectively subscribed in such manner and in such installments as they may deem proper. If a stockholder fails to meet the assessment the directors may declare his stock, and all previous payments upon it, forfeited for the use of the corporation. Abuse of'Gross, vol. ii, R. R. chap. sec. 173. 2 Louk v. Woods, 15 Ill. 256. 3 Americen Central R. R. Co. v. Miles, 52 Ill. 174. 4 Gross, vol. ii, R. R. chap. sec. 173. (30 RAILWAY LAW IN ILLINO)IS. this power is guarded against with special care. The directors cannot declare such forfeiture without having first caused a notice in writing to be first served upoin the stockholder, personally, or by mail. The letter, in the latter case, must be directed properly. At least sixty days must be given in which to make payment. If the person in whose name the stock stands be dead, then his legal representative must be notified. The notification must state the resolution or order in accordance with which payment is requested, with full particulars as to time and place. Also the penalty of non-compliance. In case of any such forfeiture to the company of stock, the same may be sold and new certificates of shares issued therefor.' ~ 83. A meeting of the stockholders for the purpose of increasing the capital stock of a company may be called by the directors. The meeting called, the directors as such have no authority until the question of increase has been decided.2 If agreed upon, the res-lution to that effect must be recorded by the directors, as provided in the case of the articles of incorporation. If the stockholders, by a two-thirds majority, as previously defined in this treatise, decide to mortgage the property and franchises of the company, issuing bonds to that effect, the directors shall carry out the details of the business. The company as such adopts an order or resolution authorizing the mortgaging or bonding of the road, and the same having been duly recorded, the directors may confer upon any holder of any money so borrowed the right to convert the principal into stock at any time not exceeding ten years after the date' Gross, vol. ii, R. R. chap. sec. 172. s Gross, vol. ii, R. R. chap. sec. 174. IZAILROAD CO()1'OR XTI)ONS. G1 of sucll bond, "under such regulations as may be provided in the by-laws of suhel corporation." There has been a vast amount of litigation, especially in the New York courts, over mortgage bonds. The explicitliess of our statute will be of great use in preventing misapprehlension. ~ 84. The constitution makes only two distinct references to railway directors. We have given the first. The second is the requirement that they shall annually mrake a report, under oath, to the auditor of p)nblic accounts or "some officer to be designated by law," of all their acts and doings. The quoted words.-re an intimation and a foreshadowing of the Railroad and Warehouse Board. This report must include " suclt inatters relating to railroads as may be prescribed by law." To this is added, in conclusion, the direction to the general assembly to " pass laws enforcing by suitable penalty the provisions of this section." 2 ~ 85. At the regular annual meeting of the colnpany the president and directors are required to exhibit a full, distinct and accurate statement of the affairs of the corporation. Similar exhibits may be required at Lnmy mneeting, of the stockholders ly a majority of those present. ~ 86. Such are the provisions in regard to directors of railroad companies, as found in the constitutionl, statutes and decisions of tile state. This chapter cannot better be closed than by adopting the language of Mr. Perry in his recent and exhaustive work on trusts, that "the directors of a corporation are trustees and Ilbid. sec. 186; also, statutes of Illinois, 1873, page 141. 2 See chap. on Railroad and Warehouse Commissioners. 62 RAILAWzAY LAW IN ILLINOIS. agents of the shareholders and of the corporation, and the same rules are applied to the contracts of directors with the corporation as are applied to the dealings of other parties holding a fiduciary, relation to each other. The directors are intrusted with the management of the property of the corporation for the best interest of all the members, and the directors are bound to execute their trust; nor must they allow their private interests to interfere with the duties of the trust they have assumed." 1 This states the uniform doctrine of the common law on the subject. IV. RAILWAY IN.JUNCTIONS. ~ 87. High on Injunctions. 88. Breach of trust. 89. In'junctions at instance of shareholders. 90. Laches and injunctions. 91. Eminent domain and injunctions. 92. Donations of right of way. 93. Adjoining proprietors. 94. Compliance with the terms of the grant. 95. Preliminary injunctions and possession. 96. Public streets and railroads. 97. Railway extention without authority. 98. Railroad land for special uses. 99. Tree planting by railroad companies. 100. Injunctions against railroads as common carriers. 101. Railroad not in itself a nuisance. 102. Nuisance indictments triable by jury. 103. City authorities and railroad companies. 104. Private railroad construction. 105. Exclusive franchises. 106. Municipal aid and injunctions. 107. Dismissal of an injunction bill.'For a discussion of this subject see Perry on Trust, chap. 16. RAII,ROAD CORPORATIONS. 63 ~ 87. This whole subject is exhaustively treated in IIIGII ON INJUNCTIONS.1 It would be irrelevant to the purpose of this treatise to do more than to give the law of injunction as it relates to railroads. The work just named has been received by the legal profession with such general and cordial endorsement for accuracy and thoroughness as to justify its use in this connection as a substitute for original investigation. It should be remarked at the outset, that while the English and American administration of the law of injunction differ somewhat, injunction law, as administered in Illinois, has no marked peculiarity, either as found in the statutes or the decisions. The only statutory provision for receivers is in connection with the transportation of grain by rail.2 ~ S8. It is the fundamental and inalienable right of any member of a corporation to invoke the aid of equity, if his interests are in danger from a breach of trust on the part of the company or its officers. The courts would interfere, if equity demanded it, for the protection of any shareholder, however small his interest.3 At the same time, the courts are cautious about interfering with public enterprises in the h-lands of corporations. It is only as a last resort and to prevent irreparable injury that the jurisdiction of equity is invoked. The granting of an injunction and appointing of a receiver is usually called into action, either to prevent fraud, save the subject from material 1 A Treatise on the Law of Injunctions, as administered in the courts of the United States and England. By James L. I-igh, counselor at law. Chicago: Callaghan and Company, 1873. 2 See chapter on Railroad and Warehouse Commissioners. 3 Kean v. Johnson, 1 Stocton, 403; Simpson v. Westminister, 8 H. L. 717; Mozely v. Alston, 1 Ph. 798. 4 or t WAo rescue LAW IN 11om probable destructionS. injury, orto rescue it from probabledestruiction. This specification was given by that eminent jurist, Chief Justice BREESE, of Illinois. If a railroad company or its officers should attempt to violate the law of corporate existence and action laid down in the foregoing cllhapters, ground would thus be furnished for granting an injunction and appointing a receiver. But this is by no means an exhaustive statement. At common law a corporation can only do what its charter specifically contemplates. If it should attempt to go beyond its vested rights, equity would enjoin the proceeding, and, if necessary, appoint a disinterested party to take charge of the affairs of the company.l' For example, if an attempt were being made to make the company a stockholder in any other company, or to consolidate its stock wi th that of another company, without express warrant firom the charter or general law." 89. Courts of equity rarely interfere with the exercise of discretionary powers by corporate bodies or their officers, to whom such powers are confided.3 And it is a well-established principle of equity, that vwhere acts requiring the exercise of judgment, science and professional skill are confided to the discretion of the officers of a corporation, the exercise of that discretion will not be lightly disturbed, nor will suclh officers be enjoined, except when abusing their power State v. Newark, 3 Dutch, 197; Foster v. Essex Bank, 16 Mass. 245; Satterlee v. Matthewson, 2 Peters, 380; Watson v. MIercer, 8 Peters, 88; Carpenter v. Pennsylvania, 7 How. 456. 2 Smith v. Bangs, 15 Ill. 399; Beman v. Rufford, 6 Enr. Lawv and Equity R. 106; I Central v. Collins, 40 Georgia, 582;:3 Blatchford v. Ross, 54 Barb. 42.' Walker v. Mad River, etc. 8 Ohio, 38; Cooper v. Williams, 4 Ohio, 253. RAILROAD CORPORATIONS. 65 to the injury of others. The protection of the rights of shareholders in incorporated companies against the improper or illegal action of other shareholders, or of the officers of the company, is a favorite branch of the jurisdiction of equity by injunction. And it may be asserted, as a general rule, that courts of equity will enjoin, on behalf of the stockholders of an incorporated company, any improper alienation or disposition of the corporate property for other than corporate purposes, and will restrain the commission of acts which are contrary to law and tend to the destruction of the franchise, as well as the improper management of the business of the company, or a wrongful diversion of its funds.1 ~ 90. Railroad companies are often confronted with injunction proceedings at the very outset of their enterprise. In its reluctance to interfere with public improvements, equity will refuse an injunction in favor of a person who has been guilty of great laches in the assertion of his rights, that laches being an ilnplied.assent to the construction of the work which he afterwards seeks to restrain.2 Where, however, all action at law is pending to test the legal right of way of the company, an injunction may be allowed to restrain operations pending the trial.3 If the exercise of the rights to enter upon land for the construction of a railroad is under color of law, but without com1 Kean v. Johnson, 1 Stockt. 401, a leading American case; Manderson v. Commercial, etc. 28 Pa. St. 379; Sears v. Hotchkiss, 25 Conn. 171; Bagshaw v. Eastern, etc. 7 Hare, 114; Colman v. Eastern, etc. 10 Beav. 1; Attorney General v. Great, etc. 1 Dr. & Sm. 154; Central, etc. v. Collins, 40 Geo. 582. 2 Greenhalgh v. Manchester, etc. 3 Myl. & C. 784. 3 Champlin v. Morgan, 18 Ill. 293. 4 66 RAILWAY LAW IN ILLINOIS. pliance with the requirements of the statute, an injunction will be granted to estop further construction.' 91. In Illinois, the exercise of the rights of eminent domain is minutely regulated by statute, and in addition to the general rule that compensation must be made for real estate taken for railway purposes, and that the proceedings must be according to law, the rule is that where a statute provides a mode of obtaining damages for property taken for the use and construction of a railway, but the owner of the land has neglected to avail himself of the mode of relief thus pointed out, he will not be allowed to enjoin the construction of the road because of the non-payment of damages.2 And the owner of land through which a city has laid out a street, and who is dissatisfied with the assessment of damages, but has failed to avail himself of a legal remedy provided by statute, is not entitled to an injunction against the city authorities to prevent their entering upon his land.3 An injunction granted against a railway company to restrain it from taking possession of private property without first making payment, or tender of damages for the occupancy, will not usually be dissolved on motion, but will be retained until a hearing upon the merits.4 And where the bill on which an injunction is granted against the prosecution of an action of ejectment, charges that the conveyances on which defendant's 1 Commissioners v. Durham, 43 Ill. 86; Ledener v. Norristown, 23 Ind. 623. 2 New Albany, etc. v. Connelly, 7 Ind. 32. 3 Nichols v. Salem, 14 Gray, 490. 4 Ross v. Elizabeth, etc. 1 Green Ch. 422. RAILROAD CORPORATIONS. 67 title rests are fraudulent, the injunction will not necessarily be dissolved on the coming in of the answer, unless it fully and satisfactorily negatives the fraud, and a- mere general denial is not sufficient for this purpose.' ~ 92. But where the owner of real estate has invited a railway company to enter upon his land and has promised a right of way, though his promise, being verbal, is not binding, yet if he allows the company to go on with the construction of its road, he cannot afterward restrain the use of the track over his land until compensation is made.2 And where a company has been permitted under claim of right for twenty -years to occupy the street of a city fronting complainant's premises, without objection or remonstrance, and by such long acquiescence has been induced to enter into a contract with the city binding itself to build a depot and platform in such manner as will cause but little inconvenience to complainant in addition to that arising from defendant's track, an injunction will not be granted to restrain the erection.3 ~ 93. Where adjoining proprietors of real estate are entitled to compensation for their interest or property in a street appropriated by a railway company, an injunction will be granted to prevent such appropriation until due compensation is made.4 But the people, being the aggregate body politic, and having no property traversed by the line of the proposed road, and therefore no property rights to be protected, are not 1 Roberts v. Anderson, 2 Johns. Ch. 202. 2 Pettibone v. LaCrosse, etc., 14 Wis. 443. 8 Higbee v. Camden, etc., 5 C. E. Green, 435. 4 People v. Law, 34 Barb. 494. 6S RAILWAY LAW IN ILLINOIS. entitled to such relief:' Arid where a municipal corporation, under claim and color of right, enters upon and takes private property for public uses, giving the owner a grossly inadequate compensation for the damages incurred, if the steps taken are regular in form so that the illegality does not appear on the face of the proceedings themselves, an injunction will be granted, the common law remedy by certiorari being insufficient.2 ~ 94. Courts of equity are inclined to hold railway companies to a strict compliance with the terms and conditions upon which they have been permitted to enter upon land necessary for the construction of their lines, and in default of compliance with such conditions they are not entitled to the protection of equity. Thus, where a railway company is forbidden by statute from constructing its road upon the streets of an incorporated city without the assent of the corporate authorities, and where the city has granted a right of way to the company upon certain express conditions, whichl have not been fulfilled, the authorities will not be enjoined from re-entering and taking possession of the grounds granted the railway company, the privilege of re-entering in case of default on the part of the company having been reserved in the contract.3 ~ 95. The sole object of a preliminary injunction being to protect the property or rights in controversy until a final hearing upon the merits, a court of equity will not interfere to take property out of the possession of one party and put it into the possession of another. Id. 2 Baldwin v. Buffalo, 29 Barb. 396. 8 Pacific, etc. v. Leavenworth, 1 Dillon's C. C. 393. RAILROAD CORPORATIONS. 69 And where complainants allege that they are entitled to the possession of a railway, but that defendants are in actual possession under claim of right, it is iniproper to restrain defendants from using the road until the right can be determined.' ~ 96. Any use of public streets for purposes unauthorized by the dedication of the land to the public, or by the law under which the dedication was made, may be enjoined where special injury is shown to result to the party complaining. Thus, the laying of the track of a railway company over land which has been dedicated to the public use for streets, being unauthorized by the dedication to the public use, will be enjoined.2 And in such case the injunction will be granted at the suit of the owner of the fee on the ground that the use of the streets for such unauthorized purpose is a special injury to him.3 97. The unauthorized extension by a railway company of its track is the attempted exercise of a valuable franchise, and is of itself sufficient ground for a perpetual injunction.4 But where a road has been properly discontinued, the forcible reopening thereof and removal of fences necessary in reopening it will not authorize a court of equity in interfering. Such acts are regarded as mere trespasses for which the law affords ample relief and they will not be enjoined in equity. 5 ~ 98. Equity will sometimes interfere with the construction of public works for the purpose of protect-'Farmers, etc. v. Reno, etc. 53 Pa. St. 224. 2 Schurmeier v. St. Paul, etc. 10 Minn. 82. 3 Id. 4People v. Third Avenue, etc. 45 Barb. 63. Nichols v. Sutton, 22 Geo. 369. 70 RAILWAY LAW IN ILLINOIS. ing parties in the enjoyment of their premises for the particular purposes for which they were acquired. Thus, commissioners of highways will be enjoined from laying out a road across complainant's railway track and grounds acquired for engine houses and other like uses of the railway. The land having been acquired for specific purposes, an injunction is regarded as the proper remedy to secure its quiet enjoyment.1 ~ 99. Under the authority of equity to interfere for the prevention of irreparable mischief, a railway company may be enjoined from planting trees so close to one's land as to overshadow it and to cause the roots to spring up to the damage of the soil.2 And where a statute provides that in the construction of levees over private property a just compensation shall be paid to the owners for damages thereby incurred, an injunction may properly issue to stay proceedings until the damages have been ascertained and paid according to law.3 ~ 100. Where a railway company in its capacity as a common carrier refuses to make a personal delivery of goods to a consignee, the fact that a statutory remedy has been provided will not prevent a court of equity from entertaining jurisdiction of the matter if the statutory remedy is inadequate.4 And where the course pursued by the carrier is such as to greatly injure if not destroy the business of complainants, and damages at law would afford no just compensation for IAlbany, etc. v. Brownell, 24 N. Y. 345; Mohawk, etc. v. Artcher, 6 Paige, 87. 2 Brock v. Connecticut, etc. 35 Vt. 373. 3 Horton v. Hoyt, 11 Iowa, 496. 4 Vincent v. Chicago, etc. 49 Ill. 33. RAILROAD CORPORATIONS. 71 the injury, an injunction is the proper relnedy.l ]Nor will such carrier be allowed to impose upon certain warehousemen additional charges beyond W'hat are imposed upon others, and it mnay be enjoined from attempting to levy such cllarges.2 ~ 101. With regard to the interference of equity in restraint of public nuisances, resulting from railroads, it is to be noticed in the first place that the erection of a railway and the running of cars through the streets of a city or village do not, per se, constitute such a nuisance as will be enjoined in the absence of proof that the railroad is a nuisance in fact.3 Nor will a general averment that the road is a flagrant nuisance suffice in the absence of facts proving it to be such.4 And the fact that the change in the mode of travel thus induced in the street or thoroughfare may have had an injurious effect upon business or rents in such thoroughfare, affords no ground for relief.5 And where a railroad is authorized by the terms of its charter to construct its road in a particular manner, or through a particular street, such construction. being authorized by law, is not a nuisance and will not be enjoined. 6 Even where the road is being built withlout authority of law, it will not be enjoined at the suit of one who owns no real estate over or adjoining which Id. 2 Id. Lexington, etc. v. Applegate, 8 Dana, 289; Hentz v. Long Island, etc. 13 Barb. 646; Bell v. Ohio, etc. 25 Pa. St. 161. 4 Hentz v. Long Island, etc. 13 Barb. 646. 5 Lexington, etc. v. Applegate, 8 Dana, 289. 6 Currier v. West, etc. 6 Blatch. 487; McFarland v. Orange, etc. 2 Peas. 17. 72 RAILWAY LAW IN ILLINOIS. it is to pass, and who will not be specially injured by its construction. ~ 102. Where the corporate authorities of a city are proceeding to open a street through the embankmnent of a railway, upon the ground that it constitutes a nuisance by obstructing the street, and the railway company, relying upon twenty years possession, enjoins the municipal authorities from proceeding, the right of the city being doubtful, it is not error to continue the injunction until a hearing upon the merits. The question being properly triable by a jury, a court of equity will not assume its functions and decide the issue in advance of a trial at law.2 ~ 103. The interest in and use of public streets being publici juris, their appropriation to private or corporate use in the construction of a railway, without authority of law, and the obstruction thus caused to travel, constitute a public nuisance which may be enjoined on behalf of the people.3 A city, however, in its corporate capacity, has not such an interest or property in the streets and public squares over which a railway is built as to entitle it to an injunction restraining the erection of a road.4 And the construction of a railroad through a city, by authority of the common council, will not be enjoined as a nuisance to adjacent property owners, the right of passage not being obstructed to the public for other purposes.5 Currier v. West, etc. 6 Blatch. 487; Davis v. Mayor, etc. 4 Kern. 506. 2 Mayor, etc. v. Georgia, etc. 40 Geo. 471. 3 The People v. New York, etc. 45 Barb. 73. 4 Milwaukee v. Milwaukee, etc. 7 Wis. 85. 5Drake v. Hudson, etc. 7 Barb. 508. RAILROAD CORPORATIONS. 73 ~ 104. Where one under contract with a railroad company which has failed to construct its road, has gone on with the construction of a portion of the route for his own benefit, he may be restrained on the application of owners of land through which the road passes. And the fact that complainants in the bill in equity are plaintiffs in an action at law then pending against other parties, to recover damages for past trespasses thus incurred, affords no defense to the bill.2 ~ 105. Frequent instances of the interference of equity to prevent the violation of a franchise occur in the case of roads, turnpikes and railways. Actual injury to the fianchise must exist before an injunction wgill be awarded. In Illinois no franchise of an exclusive nature exists, such as the exclusive right to transport passengers ahd freight between two cities. Inl some states such charters have been granted, and protected by proceedings in equity, and the granting of injunctions. ~ 106. Where town officers are about to deliver to a railway company the bonds of the town, issued in aid of the railway, and are proceeding in violation of the conditions of subscription, they may be perpetually enjoined, on the ground that if the bonds should be negotiated the town might be embarrassed in defending against them at law.4 But a tax-payer of a town which has issued bonds in aid of a railway, can not I Stewart and Foltz's Appeal, 56 Pa. St. 413. 2 Id. 3 Delaware, etc. v. Camden, etc. 2 McCart. 1; Ibid. 1, C. E. Green, 321; South Carolina, etc. v. Columbia, etc. 13 Rich. Eq. 339; Boston, etc. v. Salem, etc. 29 Gray 1; Boston, etc. v. Boston, etc. 16 Pick, 512. 4 Danville v. Montpelier, etc. 43 Vt. 144. 74 RAILWAY LAW IN ILLINOIS. enjoin the transfer or delivery of the bonds to the officers of the company on the ground that they were not legally elected, they being officers de facto of the company. ~ 107. Where, as is frequently if not generally the case with interlocutory injunctions, the injunction is merely auxiliary to the principal relief sought by the bill, the dismissal of the bill of necessity works a dissolution of the injunction, ipso facto.2 Upon the bill being dismissed, therefore, the injunction falls as of course, and without further proceedings.3 So where the bill for injunction is auxiliary to an action at law, on the dismissal of the proceedings at law, the injunction usually shares the same fate.4 But where a railway company is enjoined from using complainant's land until satisfaction of a judgment obtained against the company for the appropriation of his land, the order for the injunction will not be reversed because of the reversal of the judgment for want of jurisdiction. 5 Sauerhering v. Iron Ridge, etc. 25 Wis. 447. 2 Green v. Pulsford, 2 Beav. 72; Coleman v. Hudson, etc. 5 Blatch. 56. 3 Green v. Pulsford, 2 Beav. 72. 4 Phelps v. Foster, 18 Ill. 309. 6 Sturtevant v. Milwaukee, etc. 11 Wis. 63. RAILROAD CORPORATIONS. 75 V. TRANSPORTATION COMPANIES. ~ 108. First statutory definition of "railroad corporation." 109. Present definition of the term. It applies to all common carriers by rail. 110. Importance of this classification. 111. Justice of and authority for the same. 112. Obsolete transportation company statutes. 113. No domestic companies now operating in the state. 114. The pioneer transportation company of Illinois. 115. Organization under the general corporation act. ~ 108. The first statute of Illinois designed to prevent railway extortion and discrimination defined the term " railroad corporation," as contained in that act, to mean "all corporations, companies or indivicluals now owning or operating, or which may hereafter own or operate any railroad, in whole or in part, in this state."' That definition left out of consideration express companies, the Pullman Palace Car company, and the many fast freight lines through which, as a matter of fact, the major part of railway business is conducted. ~ 109. The statute of 1873 remedies this defect. It incorporates in its definition of tile term, "railroad corporation," the foregoing, without a change, and in addition thereto declares, "and the provisions of this act shall apply to all persons, firms and companies, and to all associations of persons, whether incorporated or otherwise, that shall do business as common carriers upon any of the lines of railways in this state (street railways excepted), the same as to railroad corporations hereinbefore mentioned."2'Gross, vol. ii, R. R. chap. sec. 147. 2 For full text of this statute see chapter vii. 76 ]RAILWAY LAW IN ILLINOIS. ~ 110. The policy of holding all companies and individuals engaged in the business of transportation by rail to the same restrictions is founded on clearly established principles of common law. To forbid unjust discrimination and charges on the part of the owners of road beds and locomotives, which may or may not have cars of their own, and exempt the very persons, individual or corporate, with whom the public has most to do, would be subversive of the end sought. There has grown up a system intermediate between the companies owning the railroads and the shippers patronizing them, and of the two, it is more important to regulate this intermediate system than to control the owners of the roads and engines. ~ 111. While no suit at law has arisen under the foregoing'statutory definitions of a railroad corporation, the principle on which it rests has been established by frequent precedents. The supreme court of Illinois has pronounced that " companies who receive goods for transportation to remote points, without any, special undertaking, except what is implied from the manner of accepting the charge, are responsible as common carriers."' That eminent jurist and legist, Chief Justice REDFIELD, states that " it was decided at an early day that persons assuming to carry goods upon railways for all who applied, were responsible as common carriers, and indeed it is now regarded as an elementary principle in the law that all who carry goods, in any mode, for all who apply, are common carriers." It is entirely safe to conclude that if the propriety and justice of classing transportation companies and individuals as railroad corporations, in the' Baldwin v. Am. Express Co. 23 Ill. 197; S. C. 26, ibid. 504. RAILROAD CORPORATIONS.'7 sense of being amenable to the statutes designed tc declare and enforce the common law liabilities of common carriers by rail, should be called in question. the courts would sustain the classification.l ~ 112. Careful research has failed to disclose that any charter was ever granted to a railway transportation company by the general assembly of Illinois two public statutes are to be found in which trans. portation companies are mentioned; but neither is really applicable to such companies as those non; under consideration. One refers to companies organized to do business by water, in part or in whole; the other is a general incorporation act for such comp)anies only as are engaged in coal mining. Those statutes have in effect, if not in terms, been re pealed. ~ 113. All the express companies and fast freight lines doing business in Illinois at the present time, o0 that hlave ever done business here, were created by other states. They are, however, as much subject tc the laws of Illinois in their operations within the limits of this state as if they were domestic companies. This proposition is so far axiomatic that no authorities to the contrary could be given, and none in its support are necessary. ~ 114. While no domestic transportation company is doing business in the state at this date, one has I Aurora R. R. Co. v. Thompson, 19 Ill. 578; Ponnelee v. Mc. Nulty, 19 Ill. 556; Mercantile MIut. Ins. Co. v. Chase, 1 E. D. Smith, 115; Sherman v. Welles, 28 Barber, 403; Lowell Wire Fence Co. v. Sargent, 8 Allen, 189; Langworthy v. N. Y. & Har. leml Ry. Co. 2 E. D. Smith, 195; Farmers' & Mechanics' Bank v. Champlain Transportation Co. 23 Vermont, 186; N. Y. Steam Nay. Co. v. Merchants' Bank, 6 Howard, 344. 78 RAILWAY LAW IN ILLINOIS. been authorized aud others may follow.l Such companies must organize under " an act concerning corporations," and in their management be consistent with the rules laid down in that law, and the supplemental act, in os far as those statutes apply to companies formed for profit.2 ~ 115. The organization of a transportation company must be effected under, and conducted in accordance with, the general corporation law of the state, which for simplicity and thoroughness of safeguard against corporate dishonesty is a model. 1 Reference is had to the Mutual Transportaiton Company, Hon W. C. Flagg, President of the Illinois State Farmers' Association and Ex-Gov. John M. Palmer are among the prime movers. The success of one corporation of this kind will inevitably result in the formation of other companies of a similar nature, and be of incalculable benefit in bringing about the system of railway control discussed in the first chapter, and designated " Management by Competition." 2 Gross, vol ii, page 102. CHAPTER III. MUNICIPAL AID TO RAILROADS.1 I. ISSUE OF BONDS. II. LATEST ILLINOIS DECISION. III. FUNDING AND RELIEF LEGISLATION. I. ISSUE OF BONDS. g 116. The term "municipal." 117. State aid to private enterprises forbidden. 118. Liberal general laws. 119. Constitution of 1870 and railway aid. 120. Probable total issue. 121. Statute of 1849. 122. Its limitations. 123. Submission to the people. 124. Details of the notice required. 125. The necessary majority. 126. The investment fiction. 127. Raising money to meet the aid obligation. 128. Par value of the bonds. 129. Statute of 1854. 130. Consolidation and municipal aid. 131. Municipal aid in other States. ~ 116. The term " municipal " in its more frequent use applies only to cities. When used in connection with subscriptions to the stock of a railroad company, or donations made to stimulate the enterprise, it has come to include also counties, towns and townships. The latest U. S. Supreme Court decision on this subject, agreeing with all kindred decisions of that tribunal previously rendered, is Cheete v. Winnegar, 15 Wallace. 80 RATLWAY LAW IN ILLINOIS. In that wider significance it will be employed in this chapter ~ 117. It has ever been unconstitutional in Illinois for the state as such to aid private enterprises of any kind, however needful they might be to the public.' The constitution of 1848 provides that "the credit of the state shall not in any manner be given to or in aid of any individual, association or corporation." The same organic law forbid the aiding of private persons or enterprises by exemption from taxation. Many questions, then, which arise in some states touching railway aid have no place in a treatise on railway law in Illinois. The only aid the general assembly could extend to such enterprises, in obedience to the constitution of the state, was to encourage internal improvements by passing liberal general laws of incorporation for that purpose.2 Even special liberality in charters las no warrant in the constitution under which every railway charter in Illinois was granted. 118. The constitution of 1870 went still further, 1In the period just prior to railroads, when canals were the hope of the people for cheap and rapid transit, all sorts of wild and disastrous schemes were devised in aid of "internal improvements," resulting finally in failure and disaster, with few exceptions. The Michigan & Illinois Canal, a wholly public enterprise, yet not wholly so in fact, has alone justified the hopes of' its projectors. See Ford's Illinois and Lamon's Lincoln. 2 Constitution of Illinois, 1848, art. x, sec. 6. A case was quite recently decided in the Supreme Court of the United States, wherein the Commonwealth of North Carolina was the defend. ant. The State government had promised a railroad company perpetual exemption from all taxation. It was on the strength of that promise that the road was built. The court held that the State could not repudiate the contract, or in any way evade its provisions. MUNICIPAL AID TO RAILROADS. 81 and absolutely forbid the further issuance of municipal aid bonds, except that the city of Quincy might complete a contract then partially made with a railroad company in MIissouri.' The municipal subscription section was submitted to the people separately, and was ratified by a majority of nearly four to one. It reads as follows: "No county, city, town, township, or other municipality shall ever become subscriber to the capital stock of any railroad or private corporation, or make donation to, or loan its credit in aid of such corporation: provided, however, that the adoption of this article shall not be construed as affecting the right of any such municipality to make such subscriptions where the same have been authorized, under existing laws, by a vote of the people of such municipalities prior to sucli adoption." ~ 119. The supreme court held in the case of Schall v. _Bow1mar, not yet officially reported, that this section went into effect July 2, 1870. Althounh no more railroad aid can be afforded by municipal gifts, or subscriptions to, or purchases of railway bonds, the legal blasis on which such aid rests is of vital concern. That ground has been critically surveyed by the courts since the prohibition, and it had been frequently surveyed before, and is liable at any time to be the main issue in important litigation. ~ 120. It is worthy of remark in this connection that while no new railway aid bonds have been issued since July, 1870, it is quite possible at this time to determine the amount of the municipal indebtedness'See sec. 24 schedule of the constitution for the Quincy provision. The corporation benefited by that exception was the Quincy, Missouri and Pacific R. R. Co. 6 S 2BRAILWAY LAWV IN ILLINOIS. of the state in furtherance of railroad projects. In somnle cases the conditions precedent, on which the final issue will be legal, may or may not hereafter be complied with. The aggregate will probably foot up not ictr fro ln $15,000,000. ~' 121. The main statute authorizing municipalities to- take stock by subscription or purchase in a railroad company, dates back to 1849. Subsequent legislation nodified some of its details, but in its general features that law stood intact until repealed by organic lawv. The changes made were at the instigation and inl thle interest of the railroad companies being benefited.' } 122.:No city or county could invest inore thlla $100,000 in any one railway project. This maximumt wvas not often reached. The rate of interest that could i)e paid on' bonds so subscribed or purchased, or on noney borrowed to make such investments, was limited to ten per cent. per year. The second annual report of the railroad and warehouse commissioners shows that this maximum of interest has been the rule, but has had many exceptions. ~ 123. The question of aiding a railload project by subscribing to its stock, or by purchase of the same, could only be decided by a direct vote of the people of the municipality. The submission of the proposition could occur in connection with a general election, or a special election for that purpose could be called. In either case notice of the proposed submission had to be given at least thirty days in advance. In the case of counties, the county judiciary issued the notice; il the case of cities that duty devolved upon the cornI All the legislation of Illinois on this subject may be found in Gross Statutes, vol. i, chap. lxxxvi, div. xiii, first part. MUNICIPAL AID TO RAILROADS. S'3 Illon0 council. This notice had to be given in the s.ame manner as notices for elections of state or county officers. ~ 124. This notice was not legal unless it contained thle following specifications: 1. The company in which it was proposed to take stock. 2. The amount proIposed to be taken. 3. The length of time the proposed bonds would run. 4. The interest they were to bear. In case it was proposed to borrow the money to pay the subscription, then the notice had to state: 5. T1le terms on -which the loan could be negotiated. Thle l)allots were: " Ior Subscription;" " Against SuLbscription." The counting and returning had to be the sallie as in ordinary elections., 125. It was iot enough that a mlajority of the votes cast should be in favor of the proposition. The law required a majority of all the voters. If the subinission was at a regular election, then tile number of votes cast for county officers shoukl be taken as decisive of tle number of qualified voters in the municipality. I-f the submission were at a special election, then the standard should be the vote at the general election inmediately preceding. It has never been claimed tllat in any event bonds would be good, or could be made good, if a majority of the votes cast were against the issuance, however "innocent" the party holding them at some subsequent period might be. ~126. It will be seen that it was contemplated that the county or city should, in effect, go into partnership with the railroad company. At that early day the subscription was not probably looked upon as a gratuity. The stock subscribed was placed under the control of the county court or comlmonll council, as the 84 RAILWAY LAW IN ILLINOIS. case might be, "in all respects as stock owned by individuals." It was not necessary that the municipality should take the stock as an original shareholder, or by subscription, strictly speaking, but it might be taken by purchase as well. ~ 127. In order to raise the money to subscribe for or purchase the stock, the custodian thereof, as just defined, was authorized to borrow money at a rate not exceeding ten per cent. per annum, and to "pledge the faith of the county or city for the annual payment of the interest and the ultimate redemption of the principal, or if the said judges or common council should deem it most advisable, they are hereby authorized to pay for such subscriptions or purchase in bonds of the city or county, making such subscription to be drawn for that purchase, in sums not less than $50, bearing interest not exceeding ten per cent. per annum." f 128. There seemed to be considerable solicitude about the par value of the bonds. A proviso to the clause quoted in the foregoing section forbid the paying out of any bond at a rate less than par, and in authorizing the railroad company to accept the bonds, it is specified that it shall be at par "' and in lieu of cash." To still further guard against discount it is declared that'"no bonds shall be issued under the provisions of this act by any county or city except for the amounts required to be paid at the time of subscription." Lest other subscribers or purchasers should evade payment, while the municipality was held to its agreement, it is in the same connection asserted that the bonds shall be issued only "for the amounts of and at the time when assessments upon all the stockholders of said company shall be regularly assessed IMUNICIPAL AID TO RZAILROADS. 85 and made payable." HIaving accepted the bonds at par the company was authorized to dispose of them the same as of other assets, except that the money realized had to be used in defraying construction expenses, or for the purchase of engines or cars. The exact language of this feature of the statute is, "the company is hereby authorized to issue their bonds, bearing interest not exceeding ten per cent. per annum for any money by them borrowed for the construction of their railroad and fixtures, or for the purchase of engines and cars, and for such purpose may dispose of any bonds by them received as aforesaid." 129. No change in the statutes occurred until 1854, when a supplemental law was passed. That statute removed one of the restrictions of the original act. It authorized and enipowered the custodian of the bonds (the court or common council, as the case might be,) to issue and deliver to the railroad company " the whole or any portion of the bonds of such city or county, payable on such subscription at any time hereafter, when in their opinion the interest of the city or county will be promoted thereby, whether the asessments upon the stockholders of said company have been regularly assessed and made payable or not." This law dates from Mlarch 1, 1854. ~130. In a case recently decided by the United States district court of Northern Illinois, the court, Mlr. Justice BLODGETT, held that where a county had voted to subscribe to the stock of a railroad company, and after such vote, and before the issuing of the bonds, such company consolidated with another with a different capital stock, termini, and board of directors, and changed its name, and the bonds were SG riAxmWAY LAW IN ILLINOIS. issued to such consolidated company, that they were illegal and void.' Tle court largely relied for authority upon.lcar'slb v. Fuicltom, County.2 ~ 131. Such is constitutional law and such is, or was, statutory law on the subject of municipal aid bonds. It should be remarked that the especial agitation of this subject in its constitutional aspects has arisen in other states, notably in Michigan, Iowa and Wisconsin. Such eminent jurists as COOLLY, DILLON, Sand DIXON, lave denied the legality of municipal subFor the full text of the decision see Chicago Legal Neews, vol. v', no. 48. The facts in the case are stated as follows by the same journal: A vote of the people of the county was had on the 10th of July, 1869, and on the 8th of February, 1870, upon the proposition to subscribe to the capital stock of the Kankakee and Illinois River Railroad company, a corporation possessing the power to construct and maintain a line of road between certain termini in the state of Illinois, with a capital limited to the cost of construction. Tile bonds in question were issued after the Kankakee and Ill. River R. R. Co. had merged itself by articles of consolidation into another corporation, now known as the Plymouth, Kankakee and Pacific R. It. Co., a road having control of a different enterprise from that of the original corporation, possessing a different capital stock, and governed by a different board of directors, elected upon a different basis, with different termini of the road: held, that these bonds were illegal and void; that they were issued by the board of supervisors Mwithout the power being granted to them for that purpose; that the vote of the people authorized the county authorities to issue its bonds to the Kankakee and Illinois River Railroad company, and they were in fact issued to another company without a vote. The fact that the bonds bear upon their face the statement that they were issued in pursuance of law and for the stock of the Kankakee and Illinois River Railroad company, can not be held to clothe the county authorities with power to make the issue, as the assertion is untrue. 2 10 Wallace, 676; also Clearwater v. Meredith, 1 Wall. 25 MUNICIPAL AID TO IRAILROADS. 87 scriptions, giving cogent reasons therefor; but they have been overruled by the supreme court of the United States, the tribunal before which every court in the nation must bow in obedience, however reluctantly. The authorities in support of the position taken by the court of last resort are stated quite fully in the decision herewith given in full. II. LATEST DECISIONS IN ILLINOIS. ~ 132. Preliminary statement. 133. The facts of the case given. 134. General view of the issue raised. 135. Judicial limitations. 136. Legislative limitations; Illinois authorities. 137. MARSHALL and COOLEY on the subject. 138. The doctrine stated by the court. 139. Application to this case. 140. Railroads public benefactions. 141. Railways highways; authorities. 142. Consequent rights and liabilities 143. Eminent domain and taxation. 144. The constitution and taxation. 145. Corporate purpose defined. 146. The conclusion reached. ~ 132. This whole subject was thoroughly discussed by the supreme court of Illinois in an opinion filed January 22, 1872. It was rendered by [Mr. Justice THORNTON, the entire bench concurring. As the decision is of great importance, and will not be officially reported for some time, we give it entire, only prernisin(r that several of the positions therein taken are peculiarly significant in their support of the constitutionality of the statute to regulate railway charges and prevent extortion. Their application will be spe 8S RAILWAY LAW IN ILLINOIS. cifically noted in the discussion of that subject. The title of the ease is, Chicago, )Danville and Vincennes i2. P. C(o. v. Frederick Smith. The original trial was in the circuit court of Will county, before Judge TIvroN. The decision of the inferior court was adverse to the constitutionality of the bonds. The full basis of the decision is as follows: ~ 133. Defendant in error filed his bill in the circuit court to enjoin the collection of taxes levied under an act of the legislature, and in pursuance of a vote of the people, to aid in the construction of a railroad. The act authorized all towns, acting under the township organization law, to appropriate such sums of money as they should deem proper to aid in the construction of the road, to be paid as soon as the track should' have been located and constructed through the towns. The road was completed before the appropriation was made; and it was a donation to the company, and not a subscription to its capital stock. Upon the hearing, the circuit court made the injunction perpetual, and pronounced the act unconstitutional. The officers of the town, who made the appropriation, and levied the tax, were the "corporate authorities" of a municipal corporation; and they acted in the premises after a majority of the legal voters of the municipality had authorized the appropriation upon the condition of the construction of the road. ~ 134. The only question is as to the power of the legislature to authorize municipalities to subscribe to the capital stock of railroad companies, and to appropriate money as a donation, to aid in the construction MUNICIPAL AID TO RAIIROADS. 89 of the roads. The only difference between this case and numerous cases decided by this court, is that the money appropriated by virtue of the statute in question is a donation instead of a subscription. But for this difference we might stand securely upon the maxim, Stere decisis et non qtuieta movere. Frequent fluctuations in the opinions of courts of last resort involve the court in absurdities; render the law uncertain; destroy that feeling of reliance so essential to the strength and stability of all authority; and produce mischiefs innumerable. The decision of the courts had better be involved in some error, than subject to change upon every change of the judiciary. g 135. In the discussion of legislative power, we have nothing to do with questions of policy or expediency. The constitution has created the legislative and judicial departments; the one to make the law, the other to construe and administer it. It may be mischievous in its effects; burdensome upon the people; conflict with our conceptions of natural right, abstract justice, or pure morality, and of doubtful propriety in numerous respects; and yet we would not be justified to hold that it was not within the scope of legislative authority for such reason. The question, as to the repugnancy of a law to the constitution, is always one of much delicacy; and courts will never indulge the supposition unless the repugnancy is manifest to the understanding. ~ 136. In Lane v. Donovan, 3 Scam. p. 238, this court said: " The determining of a question involving the inquiry whether an exercise of power, by the legislative department of the state, is constitutional, is readily conceded to be not only a matter of delicacy, ,04 RAILWAY LAW IN ILLINOIS. but of grave import, and demands the most deliberate 1land mature consideration. It should not, moreover, b)e decided but in cases of clear necessity, and where the character of the act done is in plain and obvious conflict with the constitution." The law should not be pronounced void in a doubtful case or upon slight implication.'; The opposition between it and the constitution must be clear and strong." People v. l~farshall, 1 Gil. 672. The infringement of the constitution must be evident before the courts will interfere and hold the act nugatory. P'eople v. fiatch, 3 Ill. 130. In ex parte lcColltm, 1 Conn. 504, SAVAGE, C. J., said that a court ought not to declare a law unconstitutional without a -case is presented in which there can be no rational doubt. ~137. Ili delivering the opinion in the case of Fletcher v..Peek, 6 Cranch, 87, Chief Justice MARsIALL said: "The question whether a law be void for its repugnancy to the constitution is at all times a question of much delicacy, which ought seldom or ever be decided in the affirmative in a doubtful case. The court, when impelled by duty to render such a judgment, would be unworthy of its station could it be unmindful of the solemn obligation which that station imposes. BIut it is not on slight implication and v\ague conjecture that the legislature is to be pronouncedl to have transcended its powers, and its acts to be considered as void. The opposition between the constitution and the law should be such that the jucldge feels a clear and strong conviction of their incompatibility with each other." In the same court, whose decision is chiefly relied on to induce a reversal of the former opinions of this court, equally explicit language MUNICIPAL AID TO RIAILROADS. 91 in regard to the duty of courts has been used. In Twvitchell v. Bloodgett, 13 MIich. 152, COOLEr, C. J., said: "It is conceded to be the settled doctrine of this state that every enactment of the state legislature is presumed to be constitutional and valid; that before we can pronounce it otherwise, we must be able to point out the precise clause in the constitution whi(lch it violates, and that the conflict between the two must be clear, or free from reasonable doubt, since it is only fi'om constitutional provisions, limiting the legislative power and controlling the legislative will, that we derive authority to declare void any legislative enactenot." S 138. We imight multiply extracts from the opinions of the ablest courts to the same effect. Enough Ihas been cited to show the firm position of the judiciarv, that the courts onght not, and in justice to the ri.ghts of a co-ordinate department of the state government, cannot declare (a law to be void without a strong and earnest conviction, divested of all reasona)le doubt, of its invalidity. ~ 139. An objection to this law is urged, which has been made since the origin of the claracter of legislation now under consideration. It is assumed that the taxes levied are to be appropriated to a private, and not a public, purpose; that the benefits resulting to the public, - the people at large, — from the construction of railroads, are merely incidental; that the profits arising from their operation enrich the individuals who form the private corporation; and, therefore, all laws imposing taxes to aid in the building of railroads, to be owned and operated by private corporations, are unconstitutional. If the premises are 92 RAILWAY LAW IN ILLINOIS. correct that the corporations are strictly private, and the benefits to the public purely incidental, the conclusion might logically follow. The argument assumes as unquestionable the point to be determined, as true the fact to be ascertained. In the enactment of laws the legislature must exercise its judgment and discretion. As to questions of pure policy and expediency, no express or necessarily implied constitutional provisions intervening, it is the sole judge. It has also the undoubted right to take a comprehensive view in determining the necessity of a law, and the character of the purpose to be accomplished by it. A court, with any propriety, cannot arrogate to itself all power and wisdom in such matters; and if there be grave doubt as to the nature of the purpose, the doubt must always be'solved in favor of the action of the legislature. Concede that taxation for a mere private enterprise is wrong and invalid, is the construction of the road, to which the aid is proposed to be given, of that character? It is a road from Lake Michigan to a point opposite Vincennes, in the state of Indiana, traversing nearly the entire length of the state. The road was completed before the payment of any money was asked, though it was built upon the faith of it. ~ 140. Are the advantages which accrue to the public from the construction and operation of railroads merely incidental, in the sense of the term as commonly used? We are inclined to think that they rather resemble the incident in law, and appertain to and follow the principal thing. The benefits resulting to the people of the state from our system of railroads are untold and incalculable. The mind can scarcely grasp them. Railroads have almost superseded all MUNICIPAL AID TO RAILRPOADS. 93 other modes of intercommunication between the several parts of our extensive and growing states. They have become an absolute necessity, -indispensable to our increased growth and to the removal of our immense surplus. They have added millions to our taxable property; given augmented facilities to every department of trade; enriched the mass of the people; largely enhanced the value of our lands; built up manufactories, and brought us into close proximity with the best markets of the country. All share in the blessings flowing from them. 141. Railroads are, in truth, the people's highways for pleasure, and business, and commerce. Without them our internal trade would languish and die, and our corn and wheat rot in our granaries. For more than a quarter of a century the courts have recognized and referred to them as public improveinents, made for the public good, and to subserve the public interests. Johnson v. The County of Stark, 24 Ill. 75; Cin., Wil. and Janesville i. Pt. Co. v. The Commnissioners, 21 Ohio (1 M[cCook), 77; SharTcless v. The ilfayor, etc., 21 Penn. (9 Harris), 149; Nichol v. Jilacyor and Aldermen, 9 Humph. 252; GCZddZin v. Crumy, 8 Leigh, 120; Enyf eld Toll Bridge Co. v. hIart. and Ni. fI. R. P. Co., 17 Conn. 40; Beecmacz v. Saratoga and Sc/henectady P. P. Co., 3 Paigc, 45; Bloodgood v. iJlohawkc and If. RI. P. Co., 10 Wend. 9; Newbury Turnr)pice Co. v. Eastern I. R-. Co., 23 Peck, 326. ~142. The courts, while ready and willing to protect these corporations in all their rights, have uniformly asserted, and seem determined to maintain, their obligations to the public. The principles of 94 ZRAILWAY TAW IN ILLINOIS. common law and their charters, accepted by them, and which clothe them with a portion of the sovereignty of the state, impose duties on them to the public which they must discharge. They can be compelled, by the mandates of the courts, to a full performance of them, and parties seeking redress need not resort to the imperfect action at common law, but may apply for tile more effectual remedy by mancclccamqts. Railways are improved public highways, and the courts have uniformly held that they are of such public use as to justify the exercise of the right of eminent domain, in takinog all real estate that may be necessary for the construction and maintenance of the road, its depots, side tracks, stations, machine shops, and other necessary appendages; disfiguring and rendering unfit for cultivation farims, and even in destroying dwellings. The necessity and expediency for the exercise of this right, in making public improvements, either for the benefit of all the people of the state, or of a particular municipality, mnust be determined by the legislature. Mere convenience is not sufficient to justify the exercise of the right. The public use must be necessary and pressing. In referring to the urgency of the public use, WoonuUDIY, J., in the case of WTest River 1Bridge Co. v. Dix, 6 HIow. 546, said: "So, as to -a road, if really demanded in particular forms and places, to accommodate a growino, and changing comm unity, and to keep up with the wants and improvements of the age, - such as its pressing demands for easier and social intercourse, quicker political communication, or better internal trade, and advancing with the public necessities from blazed trees to bridle paths, and thence to wheel roads, turnpikes, and railroads." MAUNICIPAL AID TO RAILROADS. 95 ~ 143. ThoLugh the distinction between the rigllt of eminent domain and the power of taxation may be manifest, yet when the public use, necessary for the exercise of the former, has been settled by both the legislative and judicial departments, and a particular enterprise has thus been fixed as of public importance, the position is very much strenghtened that taxation for such an enterprise is for a public purpose. This court has decided that such corporations are create(l for the public good; to increase the facilities and coliveniences, and promote the great ends of commerce; and that they cannot organize monopolies and malke contracts injurious to the public interests. Vincent ve. C(. aald A. I t. _I. Co., 49 Ill. 33; C. and VI.'T1 I. I?. Co. v. Th7e P'eople, ex rel. Ile p8rsted. In view of the past history of railroads; the impossibility of dispensing with them; the necessity of an increase of the number, to open more outlets for the products of our fertile and inexhaustible soil, - all of which were wellknown to the legislature, and sustained by numerous authorities, — we must hold that, even if the appropriation in this case was not for a public purpose, in the broadest sense, the character of the purpose is involved in such doubt that we cannot declare void the action of the legislature., 144. Is the law, under consideration, in violation of the fifth section of the ninth article of the constitution of 1S48? That section provides that " the corporate authorities of counties, townships, school districts, cities, towns and. villages, may be vested with power to assess and collect taxes f'or corporate purposes; such taxes to be uniform in respect to person and property within the jurisdiction of the body imposingr 96 RAILWAY LAW IN ILLINOIS. the same." It is contended that the appropriation was not for a " corporate purpose." If it was for a public purpose-for the benefit of the inhabitants of the mnunicipality-then it would be for a corporate purpose. The latter cannot be distinguished from the former; and all that we have said in relation to the public purpose of the tax will apply with equal force to a corporate purpose. We refer to the following cases in which the questions discussed have been settled by this court: Prettyman v. lTie Supervisors of Tlazeswell Cournty, 19 Ill. 406; Johnson v. iThe County (f Starnk, supra; Perkins v. I-ewis, 24 Ill. 208; 2Butlei v. Dunhcam, 27 Ill. 474; Tlie President ancd Trustees v. Frick, 34 Ill. 405. In the case of Niceol v. Tlie Mil(yor ancd Aldermen, supra, a subscription by the city of Nashville to a railroad was held to be for a corporate purpose. The constitution of Tennessee provides that "i the general assembly shall have power to authorize the several counties and incorporated towns in this state to impose taxes for county and corporation purposes respectively." The language is substantially the same as in our own constitution. The city of Nashville having subscribed, a bill was filed to restrain the issue of bonds; and the court decided that the legislature had power to authorize the subscription; that the construction of the road was a corporate purpose, and that the city might either levy the tax or issue bonds to obtain the money. ~ 145. In Tacylor v. T'htompson, 42 Ill. 9, this court defined a corporate purpose to mean "a tax to be expended in a manner which shall promote the general prosperity and welfare of the municipality which levies it." We adopt this definition; and are of the opinion MUNICIPAL AID TO RAILROADS. 97 that no person can doubt but that taxes expended to aid in the construction of a railroad must promote the general prosperity. ~ 146. The,remaining question is whether a distinction exists between a donation in aid of the road and a subscription to the capital stock of the corporation. The distinction is more apparent than real; indeed, to our view, is entirely shadowy. No principle would justify the authority to a municipal corporation to become a stockholder in a railroad company, merely to acquire equitable rights and to prevent the misapplication of the funds. The power is granted in consideration of the public benefits; and these are as great in the one case as in the other. The decree of the court below is reversed and the cause remlanded, Decree reversed. III. FUNDING AND RELIEF. 147. The statute of 1865. 148. The statute of 1869. 149. Refunding State taxes: Ten years. 150. Registration of municipal aid bonds. 151. Certificate of the County Clerk. 152. Payment of interest on the bonds. 153. The State the custodian of the bonds. 154. Surplus taxes: Eight years. 155. Conditions of registration. 156. County railway directors. 157. Auditor of Public Accounts. 158. Entry of payment ordered. 159. When the statute will expire by its own limitation. 160. Bonds of collectors: Fees. 161. Act of 1871. 162. Allotment of surplus taxes. 163. Railway taxation and surplus. 164. Act of 1872. 7 98 RAILWAY LAW IN ILLINOIS. 165. Bonds after payment: Vouchers. 166. Fees allowed in certain cases. 167. Repeal clause. ~ 147. In 1865 the general assembly passed a statute to allow counties and cities to fund their railway aid bonds, with a view to their general extinction. The state was made custodian of the tax necessary to meet the annual liabilities incident to those bonds, and the auditor of public accounts was required to do a portion of the work of making out the assessment rolls of the several counties or cities, as the case might be. It was expressly declared that the state assumed no obligations thereby. The entire scope. and effect of that statute was to make the state, through its auditor of public accounts, fiscal agent for the several municipalities. ~ 148. In:1869 a seemingly similar but radically different law was passed. By the provisions of the latter statute the whole state was made to bear some portion of the burden of the municipal aid bonds, although less than half the counties had incurred any such obligations. The constitutionality of the measure was called in question when the bill was pending before the general assembly. The supreme court has not had occasion to pass upon it. The law was so difficult of construction in some of its details that two supplemental acts have been passed. All are herewith given just as found on the statute books of the state. ~ 149. Whenever any county, township, incorporated city or town, shall have created a debt which still remains unpaid;, or shall create a debt under the provisions of any law of this state, to aid in the construction of any railway or railways, that shall be comple MUNICIPAL AID TO RAILROADS. 99 ted within ten years after the passage of this act, whose line shall run near to, into or through said county, township, city or town, it shall be lawful for the state treasurer, and lie is hereby required, immediately upon receivilng the revenue for each year, to place to the credit of such county, township, city or town so having incurred such indebtedness, in the state treasury, annually, for and during the term of ten years, all the state taxes collected and paid into the state treasury on the increased valuation of the taxable property of said county, township, city or town, as shown by the annual assessment rolls over and above the amount of the assessment roll of the year 1868, excepting the state school tax and the two mill tax provided for by the constitution of this state for the payment of the state debt. And whenever any county, township, city or town shall have created a debt as aforesaid, it shall also be lawful for the collector of taxes, and he is hereby required, annually, for and during a term of ten years, to pay into the state treasury all the taxes collected for any purpose whatever, on the assessment of the railroad or railroads for whose aid the said debt was incurred, including the road-bed and superstructure, and all fixtures and appurtenances thereof, the locomotives, cars, machinery and machine shops, depots and all other property, real and personal, of said railway company within such county, township, city or town; and immediately upon receiving the same the state treasurer shall place to the credit of such county, township, city or town in the state treasury the whole amount so received, except the state school tax and the two mill tax provided by the constitution of this state for the payment of the state debt; and it shall be the 100 RAILWAY LAW IN ILLINOIS. duty of the said collector of taxes to furnish the state auditor a separate and detailed account of the amount of taxes collected from said railway or railways, at the time of his annual settlement with the state auditor. And the state treasurer shall give to said collector separate receipts for the respective amounts paid into the state treasury to the credit of said county, and said receipts shall be taken and received by the county court, or other legal authorities, as vouchers for the amount collected on account of the county and local assessments on said railroad property in the annual settlement with such collector, and the several amounts of money in this section provided and ordered to be placed to the credit of such county, township, city or town, shall be applied by the state treasurer to the payment of the bonded railroad debt of such county, township, city or town, as hereinafter provided. ~ 150. And the county clerk or other proper officer, upon the issuing of the bonds in payment of said railroad debt, shall make a registration thereof in a book to be kept for that purpose in his office, showing the date, amount, number, maturity, and rate of interest of such bonds, and upon the subscription or donation to what railroad the same was given. And the said bonds, and bonds heretofore issued and still unpaid, in order to receive the benefits of this act shall be registered by the holder thereof at the office of the auditor of public accounts, who shall cause the same to be registered in a book kept for that purpose. Such registration shall show the date, amount, number, maturity and rate of interest of such bond, under what act and by what county, township, city or town issued; and the auditor shall, under his seal of office, certify upon MUcNIarAL AID TO RAILROADS. 101 such bond the fact of such registration, for which registration and certificate the auditor shall be entitled to a fee of $1 from the holder of each bond. ~ 151. In all cases when any county, township, incorporated city or town shall issue bonds under the provisions of law, and be entitled to the benefits of this act, it shall be the duty of the county clerk of such county or of the officer to whom or to whose office the assessment rolls for state taxation are or shall be returnable, within five days after such return, to make out and transmit to the state auditor, to be filed in his office, a certificate stating the total value of all property, real and personal, within such county, township, city or town, as exhibited by such assessment.! 152. When the bonds of any county, township, city or town shall'be so registered, the state auditor shall annually ascertain the amount of interest for the current year due, and accrued, and to accrue upon such bonds, and from the amount so ascertained he shall deduct the amount in the state treasury placed to the credit of such county, township, city or town, as herein provided and directed, and from the basis of the certificate of valuation of property heretofore provided to be transmitted to him, or in case no such certificate shall be filed in his office, then upon the basis of the total assessment of such county, township, city or town, for the year next preceding, he shall estimate and determine the rate per centum on the valuation of property within such county, township, city or town, requisite to meet and satisfy the amount of interest unprovided for, together with the ordinary cost to the state of collection and disbursement of the same, to be estimated by the auditor and treasurer, and shall 102 RAILWAY LAW IN ILLINOIS. make and transmit to the county clerk of such county, or the proper officer or authority whose duty it is or shall be to prepare the estimates and books for the collection of state taxes in such county, township, city or town, a certificate stating such estimated requisite per centum for such purpose, to be filed in his office, and the same per centum shall thereupon be deemed added to and a part of the per centum which is or may be levied or provided by law for purposes of state revenue, and shall be so treated by such clerk, officer or authority in making such estimates and books for the collection of taxes, and the said tax shall be collected with the state revenue, and all laws relating to the state revenue shall apply thereto, except as herein otherwise provided. ~ 153. The state shall be deemed the custodian only of the several taxes so collected and credited to such county, township, city or town, and shall not be deemed in any manner liable on account of any such bonds, but the tax and funds so collected shall be deemed pledged and appropriated to the payment of the interest and principal of the registered bonds herein provided for until fully satisfied. The state shall annually collect and apply all the said taxes and funds placed to the credit of such county, township, city or town for and during the term of eight years, to the payment of the annual interest on such registered bonds of such county, township, city or town, in the same manner as interest on the bonds of the state is or may be collected and paid, but in like moneys as shall be receivable in payment of state taxes; and for and during the remainder of the term of years during which said registered bonds shall remain unpaid, the MUNICIPAL ID TO RAILROADS. 103 funds provided in ~ 1 of this act accruing from taxes collected on the property of said railroad and railroads, and the surplus, if any, of the other funds in this act provided, remaining after the payment of the interest on the bonds, shall be applied to the payment of the principal of said registered bonds on presentation at the state treasury; or the treasurer shall purchase the same in open market at not more than par; and upon such payment or purchase of the said bonds, the amount paid upon the principal of said bonds shall be indorsed thereon and receipts tlerefor shall be taken and filed in the office of the state treasurer; and the interest-coupons or bonds, when fully paid, shall be'returned to the office of the state treasurer, and shall be canceled and destroyed in the same manner as those appertaining to the state debt; and the fund derived from the taxes collected on the increased assessment over the year 1868, and the tax levied to meet the interest on said registered bonds, shall continue to be annually applied to the interest of said bonds; and the said taxes and funds required in this act to be placed to the credit of counties, townships, cities and towns, shall be applied by the state treasurer to the payment of the registered railroad bonds of such county, township, cities or towns, equally and without discrimination. ~ 154. The state may, out of such funds, first retain or satisfy the ordinary costs of the state of the collection and disbursement thereof; and in case of nonpresentment of any such bonds or interest-coupons for payment at the time and place, when and where the interest on the state debt is or may be paid, then, on the beginning of the next year, the money by reason 104 RAILWAY LAW IN ILLINOIS. thereof undisbursed, together with any surplus for any cause remaining, shall be carried to the fund of such county, township, city or town of the current or ensuing year, and be considered by the auditor in making his next estimate for taxation therein for such year under this act, and shall be applied accordingly during the first eight years of the operation of this act. All laws relating to the payment of interest on the state debt, or the cancellation of evidences thereof, not inconsistent with this act, shall apply to the receipt, custody, and disbursement of the taxes and funds provided by this act. ~ 155. And it shall not be lawfill to register any bonds under the provisions of this act, or to receive any of the benefits or advantages to be derived from this act, until after the railroad in aid of the construc-'ion of which the debt was incurred, shall have been completed near to, or in such county, township, city or town, and cars shall have run thereon; and none of the benefits, advantages, or provisions of this act shall apply to any debt unless the subscription or donation creating such debt was first submitted to an election of the legal voters of said county, township, city or town, under the provisions of the laws of this state, and a majority of the legal voters living in said county, township, city or town, were in favor of such aid, subscription or donation, and any county, township, city or town, shall have the right upon making any subsekription or donation to ally, railroad company to prescribe the conditions upon which such bonds, subscriptions, or donations shall be made, and such bonds, subscriptions, or donations, shall not be valid and binding, until such conditions precedent shall have MUNICIPAL AID TO RAILROADS. 105 been complied with, and the presiding judge of the county court, or the supervisor of the township, or the chief executive officer of the city or town that shall have issued bonds to any railway or railways, immediately upon the completion of the same near to, into, or through such county, township, city or town, as may have been agreed upon, and the running of the cars thereon, shall certify, under oath, that all the prelimninary conditions in this act required to be done to authorize the registration of such bonds, and to entitle them to the benefits of this act, have been complied with, and shall transmit the same to the state auditor with a statement of the date, amount, number, maturity and rate of interest of such bonds, and to what company, and under what law issued, and thereupon the said bonds shall be subject to registration by the state auditor, as hereinbefore provided. ~ 156. And each railway company in aid of which any bonds shall hereafter be issued by any county, township, incorporated city or town, to pay for any subscription to the capital stock of such company or for any donation made to such company, shall give to such counties, townships, cities and towns, collectively, a representation in the board of directors of such company of one-fourth of the number of such board of directors, until after the said railway shall have been completed, and the cars shall have run thereon, and until all the conditions of the subscriptions and donations to such railway company by such counties, townships, cities and towns, shall have been fully settled and complied with by said railway company; and thereafter the said counties, townships, cities and towns, shall be represented in said boards of directors 106 RAILWAY LAW IN ILLINOIS. only in the manner and proportion that other stockholders are represented; and the governor of the state is hereby authorized and empowered to appoint the directors herein provided to represent the interests of said counties, townships, cities and towns, in the boards of directors of such railways as shall receive bonds to be entitled to the benefits of this act. ~ 157. And the state auditor from the total value of all the property in the state, after the same shall have been equalized in accordance with the provisions of "An act to amend the revenue laws, and to establish a state board of equalization of assessments," approved March 8, 1867, shall deduct the amount of the said increased valuation of the taxable property above the valuation of the year 1868, in such counties, townships, incorporated cities and towns as may be entitled to the benefits of this act, and the taxes upon which are herein directed to be credited to counties, townships, cities and towns, and upon the amount remaining, he shall cause to be collected such a per cent. as shall be sufficient to pay the appropriations and other demands upon the treasury due to the end of each fiscal year, and the same per cent. shall also be collected on the said increased valuation above the valuation of the year 1868, and applied as herein provided. ~ 158. TJpon the payment of any such registered bond or interest-coupons by the county, township, city or town issuing the same, and presentation thereof to the state auditor, he shall cause due entry thereof to be made in his office. ~ 159. And if the principal and interest of the bonds registered under the provisions of this act shall MIUNICIPAL AID TO RAILROADS. 107 be fully paid and canceled at any time before the expiration of the full term of 10 years, during which the funds provided in ~ 1 of this act, are to be applied to the credit of such county, township, city or town, then the provisions of this act in respect thereto, shall cease and determine, and no further money derived from said taxes shall be so applied. ~' 160. The collector's bonds in counties, townships, cities and towns where collections shall be made under the provisions of this act, shall be increased 50 per centum, and collectors in counties not under township organization, shall pay into the state treasury a sufficient amount of the taxes collected in such county to mleet the interest to be annually paid on such registered bonds, on or before the 20th day of June in each year; and there shall be allowed and paid to county, township, city and town collectors, for collecting and paying over the taxes levied by virtue of this act, the following rates of commissions, to be ascertained and computed in the same manner that commissions for collecting and paying over the state taxes are ascertained and computed, and paid fromn the taxes so collected, to-wit: To township, city or town collectors, at the rate of two per centum on all sums collected, and to county collectors at the rate of one per cent. on all sums received by them from township, city and town collectors, which shall be in full for reciving the same and paying it into the state treasury, and for adjusting the accounts of and settling with the township, city and town collectors for their collections of said tax, and a commission of three per cent. on all sums by themselves collected and paid over into the state treasury. 108 RAILWAY IAW IN ILLTNOIS. ~ 161. In 1871, the general assembly, at the solicitation of the auditor of public accounts, passed an act defining the foregoing, and virtually superseding the first section of that circuitous statute.' This supplemental act became a law April 28, 1871, going into effect July 1 of the same year. It is as follows: ~ 162. Whenever the valuations of property, as shown by the assessment returns of two or more corporations, embrace the same surplus valuation, the auditor of public accounts, in determining the amount due by virtue of said act of 16th April, 1869, to the county, the township, the city or town, shall distribute the tax on such surplus valuation in equal proportions, between such corporations; that is to say, should the valuation of the county show a surplus of $3,000, the'township a surplus of $3,000, the town or city a surplus of $3,000, each shall be entitled to the proportion of $1,000. Any excess of such surplus valuation, in either of said corporations, and not embraced in the surplus valuation of either of the other, shall be apportioned to such corporation; or if in either two of such corporations, and none in the third, such amount shall be equally divided betwen such two corporations. ~ 163. The tax on the property of railroads aided, appropriated in section 1 of said act of 16th April, 1869, shall be apportioned by the auditor, between counties, townships, cities and towns, in similar cases, in the same manner as the surplus tax is required to be apportioned by section 1 of this act: ]'rovided, that the amount of surplus tax shall be deducted from the amount of state tax on the railroads aided,'See section 149. MUNICIPAL AID TO RAILROADS. 109 in each corporation, so that no county, township, city or town, shall receive both the surplus and railroad tax; or when the amount of surplus tax exceeds the amount of state tax on railroads aided, in any corporation, then, in such case, no state tax on railroads aided, shall be placed to the credit of such county, township, city or town. ~ 164. The latest legislation on this subject dates from March 7, 1872, going into force July 1 of the same year. It reads as follows: ~ 165. The treasurer of state, and all county treasurers in the state, at whose office any county, town or city bonds or coupons are made payable by law, which have been issued in aid of any railroad or other corporation or in payment of the stock of any such railroad or other corpdration in this state, shall, at least once in each year, after this act shall be in force, if so requested by the proper authorities of any such county, town or city, account to and with any person designated by any such county, town or city, for any and all money that may have come to his or their hands for the payment of any bonds or coupons, so issued as aforesaid, and shall, upon such accounting, deliver up to such person so designated by any of the counties, towns or cities aforesaid, any and all bonds or coupons that he or they may have fully paid off and discharged out of the money coming into their hands for such purpose, and to take a voucher for all such bonds or coupons so delivered. ~ 166. There shall be allowed and paid out to the county treasurers, and to the county, town and city collectors for collecting, receiving and paying out any and all taxes levied for the payment of any such 110 RAILWAY LAW LN ILLINOIS. bonds or coupons or interest on the same, the amount of one-half per centum, as fees for such service, and o10 more for such amount so paid out:.Provided, if -Ily of the above officers are now or may be hereafter paid a salary for the performance of these duties, then they shall not be paid any other compensation -whatsoever. 0 167. All laws in conflict with this act are hereby repealed. NOTE.-The full text of this legislation is given without note or comment, on account of the danger of misstatement, and there has been no authoritative interpretations of the same. CHAPTER IV. EMINENT DOMAIN. ~ 168. Definition of the term. 169. Antiquity of the eminent domain doctrine. 170. The objects of the exercise of this right. 171. Indispensable to railroads. 172. Consequent liability. 173. The common law minute. 174. Early Illinois legislation on the subject. 175. Roads; bridges; the United States. 176. The statute of 1872. 177. The general principle stated. 178. The state may make compensation. 179. Rights of trial by jury. 180. Rights of the state and trial by jury. 181. Property controlled by guardians. 182. Petition to the court. 183. Rule in special cases. 184. If the owner is unknown. 185. Proceedings in vacation. 186. Service and publication. 187. Several cases in one. 188. Amendments and new parties. 189. Venire. 190. The right of challenge. 191. Oath administered to the jury. 192. Examination and award. 193. No deduction for benefits. 194. Order of the court; payment record 195. Right of appeal. 196. Scope of this right in the case of railroad company 197. Constitutional limitation. 198. School lands; state lands. 199. Right to enter a city. 200. Syllabus; recent decisions by supreme court of Illinois. (111) 112 RAILWAY LAW IN ILLINOIS. 201. The case stated. 202. Reasonable notice. 203. The act of 1845. 204. Later modifications of that statute. 205. Routes and termini. 206. Additional authorities cited. ~ 168. "Eminent domain is the power to take private property for public use."' In this perfectly plain statement Chief Justice MnARSHALL condensed one of the most intricate and important features of law. By whatever name called, the subject has challenged discussion by all the great legists, from Bracton down. Indeed, the subject was old when introduced into English law. The Roman jurisprudence had nearly mastered its every detail of principle. The term domi nsium eminens, betrays its Latin origin. Blackstone's Commentaries, Napoleon's Code, Vattel, Kent, and all the great embodiments of law, are largely taken up with it, under various heads and designations. The judicial reports show that a vast amount of litigation grows out of some phase of this subject. ~ 169. It would be quite foreign to the object of this treatise to enter upon any extended discussion of this subject. It would be presumption, or a sheer waste of time, for any one to do so at this late day. Every point has been fully considered and clearly stated by jurists and authors of the highest eminence. Abstract philosophy may never determine precisely how this right of eminent domain was included in the original contract between the people and the government (a mystic if not a mythical contract); but no 1 6 Howard, 536. EIM.INENT DOMAIN. 113 practical doubt of its existence and validity can be entertained. Without such an attribute of sovereignty no government could accomplish the object of its existence, or deserve the loyalty of its citizens. Civilization itself would be at an absolute stand-still. It would be impossible to overestimate the importance and necessity of this right to take private property for public uses. ~ 170. The uses and occasions for this law of eminent domain are almost infinite, and apply to personal property no less than to real estate, and may apply to a temporary use of the same.' The term generally suggests to the mind the appropriation of land belonging to a private person for some public use. During the present generation it has come to mean, chiefly, the acquirement of the right of way to construct a railroad. It is to this phase of the subject that our attention will naturally be restricted. ~ 171. It has been remarked that in the organization of a railway company there is no need, intrinsically, of a different method from that pursued in fbrming an ordinary corporation. As soon, however, as actual operations begin a fundamental difference is developed. A corporation created to carry on any private business may have a vast capital, and be in every way a most important concern, and still have no need of invoking the government to exercise its sovereignty over private property. The corporation can acquire by ordinary purchase the necessary ground and material. The state will not concern itself with the matter, any more than with the sale of a farm or building lot. The railway company, on the contrary,'See chapter on railway construction. 8 114 RAILWAY LAW IN ILLINOIS. can do nothing without the intervention of the state. However short its proposed line it is sure to need a little real estate belonging to a great many owners. It is certain that the necessary right of way could not all be secured except at a ruinous price. Practically, then, the right to take private property for public uses must be exercised, or the enterprise die before it be born. The government must in some way help the company to get the necessary right of way for a Ihir price. 1 C 172. On some accounts the company would prefer to acquire the right by ordinary purchase, if it could. It would thus escape a degree of dependence upon the government which results from an appeal to the state for aid in securing its real estate. By every principle of justice'the state is entitled to a consideration of one kind or another for the exercise of this right in behalf of the company, and clearly has certain claims upon the company which it would not have had otherwise. But necessity knows no option, and eminent domain is by an inevitable laxv the corner-stone of railway construction. ~ 173. In the absence of statutory provision it would be relatively easy to point out every step necessary to the acquisition of the right of way. I The only exception would be in the ease of a road extending over the public domain. An act of congress passed in 1852 threw the government lands open to railway construction, under certain restrictions. That was not the exercise of the right of eminent domain, for a fee simple of the land vested in the government. That exception in no way impairs the force of the rule. The law itself has never been of any utility. All rail roads since built through the public domain have had special charters anl special privileges. EMINENT DOMAIN. 115 The provisions of the common law are copious and minute. But the written law, unless unconstitutional, is absolute in its authority, and the validity of the Illinois statute on eminent domain has never been called in question.' ~ 174. Prior to the present constitution the termn eminent domain was not in use, but elaborate details had been laid down by statute for its exercise in the case of railroads2. All that was swept away by a law passed April, 1872. The latter was distinctly based on this constitutional provision: "The right of trial by jury shall be held inviolate in all trials of claims for compensation, when in the exercise of the said right of eminent domain, any incorporated company shall be interested either for or against the exercise of the said right." 3' ~ 175. This provision is recognized and acted upon in the bungling road and bridge statute passed at the second session of the twenty-seventh general assembly,4 which was repealed by an act approved April 11, 1873, containing an emergency clause.5 That application was only to ordinary roads. Several other laws are in part based on the provision, notably the act for the formation of bridge companies, and the statute allowing the United States to acquire real estate property by purchase or condemnation.6 The right of trial A statute expressly declares that the common law is in force in Illinois. See Gross' Statutes, vol. i, chap. 62, sec. 1. 2 Gross Statutes, vol. i, chap. 92. 3 Constitution of Illinois, art. xi, sec. 14, last clause. Gross' Statutes, vol. ii, chap. 93. 5 Gross' Statutes, vol. ii, chap. 25, div. 19, sec. 5. 6 Gross' Statutes, vol. ii, chap. 105, div. ii, sec. 1. 116 RAILWAY LAW IN ILLINOIS. by jury enjoined in the clause of the constitution quoted, is specifically recognized in the legislation on special assessments, a kindred subject, although foreign to our consideration.' ~ 176. A statute entitled "An act to provide for the exercise of the right of eminent domain" was approved April 10, 1872, and went into effect the July following.2 By its provisions all laws and parts of laws in conflict with it were repealed, but it was expressly provided in that connection that the same should not be construed to repeal any law, or part of law, upon the subject, passed by that general assembly, but rather be construed to provide cumulative remedy. So far as such laws are concerned the eminent domain act simply furnishes further details, some of which are applicable,'for whatever purpose the private property is appropriated to public uses. Whatever legislation under the previous constitution of the state was pertinent to this subject was repealed, leaving only so much of the legislation under the old constitution on the right of way as refers to public lands, school sections, and state land, which, although not strictly a part of eminent domain, will be disposed of in this chapter. ~ 177. Private property cannot be taken or damaged for public use without just compensation.3 This common law doctrine has been held immemorially. A private right over property belonging to another can in no case be acquired except b)y gift, purchase, or i Gross' Statutes, vol. ii, chap. 5, art. ix. 2 Gross' Statutes, vol. ii, chap. 38. 3 The details and principles of law laid down in this chapter for which no authority is given, are based on the eminent domain statute, Gross, vol. ii, chap. 38. EInUENT DOMAIN. 117 exchange. This doctrine and its correlative one that private property may be taken for public uses on making just compensation of necessity, take railways out of the list of private property and justifies the constitutional classification of them as public highIwVays. ~ 178. The state, in its own corporate capacity, may make the compensation. In the state is the right of eminent domain vested originally, and the statute does not attempt to prescribe the method of its direct exercise. Should the commonwealth, in its sovereignty, attempt its exercise in a manner and to an extent clearly unjust, the courts would interpose, the judiciary being charged with the authority to set aside unconstitutional laws. It will be observed that the right of trial by jury in determining the measure of damages prescribed by the constitution does not require that mode of procedure when the state acts directly in the matter. The usual, if not the uniform, mode of procedure for the state is to acquire possession by purchase or donation, except in extreme emergencies. The government is always, and justly, cautious about an assertion of its sovereignty over private property. ~ 179. The first section of the statute closes with the general assertion of the right of trial by jury, leaving the manner thereof to subsequent sections. The old method was to leave the appraisement to a commission appointed by the circuit judge, and in some cases to a justice of the peace.2 This commisL Constitution of Illinois, art. xi, sec. 12. For a discussion of private rights in this connection, see Nesbitt v. Trumbo, 39 Ill. 110; Crear v. Crosby, 40 Ill. 175. 2 Gross' Statutes, vol. i, chap. 92. 118 RAILWAY LAW IN ILLINOIS. sion consisted of three householders. Although the act of 1852 provided for a somewhat different mode, the supreme court held that this way was not repealed and was, consequently, in force until the adoption of the present constitution. ~ 180. By the first section, the statute is extended to " all cases in which compensation is not made by the state in its corporate capacity." The last sentence of the second section (in which the foregoing provisions for jury trial are found) reads: " In cases where the property is sought to be taken or damaged by the state for the purpose of establishing, operating, or imaintaining any state house, or state charitable or other institution or improvements, the petition shall bIe signed by the governor, or such other person as he shall direct, or as shall be provided by law.' ~ 181. An inability to agree on the terms may not be the only obstacle to securing the right of way by purchase. The owner may be incapable of consenting; his name and residence may be unknown; he may reside in another state. In either of these three cases resort may be had to condemnation, as well as in case of nonagreement of the parties in regard to the amount of compensation. It is not to be inferred that a nonresident could not convey the desired property in the ordinary way, that being an inherent right of property; but simply that both parties may be spared the trouble and expense of foreign negotiation.2'This inconsistency, or at least appearance of inconsistency, has not been passed upon by the supreme court, nor is there any immediate prospect of an issue being joined thereupon. 2 In a certain sense the several states are " foreign" to each other. See Bank of Washtenaw v. Montgomery, 3 111. 422; Bank of Augusta v. Earle, 13 Peters, 519. EMINENT DOMAINr. 119 ~ 182. The first step is taken by the party desiring to acquire the property for public use. This step consists of an application to the judge of the circuit or county court. The application or petition may be presented either in vacation or term time. It must be made in the county where the property, or any part of it, may be situate. This is done by filing a docmnent with the clerk, wherein is set forth, in detail: 1. His or their authority in the premises. 2. The purpose for which the property is sought to be taken or damaged. 3. A description of the property. 4. The names of all the persons interested therein as owners, or in any other way, as appearing of record, if known. 5. If the ownership of and interest in the property is not known, that fact must appear. 6. To this statement is appended as a part of the application a petition to the judge to cause the compensation to be paid to the owner to be assessed. ~ 183. If the proceedings seek to affect the property of persons under guardianship, the guardians of or conservators of persons having conservators shall be made parties defendant.1 If the owner is a married woman her husband shall be made a party defendant also. The common law doctrine of the limited powers of a wife has been modified in this state very materially; but this provision, although evidently based on the oldfemrnme covert idea, is none the less vital. ~ 1S4. If the persons interested are unknown by name, they may be made parties defendant by a description setting forth all that is known of them. This 1 In the statute the custodian of a person under age is usually designated a guardian, and of a lunatic, an imbecile, or a confirmed drunkard, a conservator. 120 _RAWLWAY LAW IN ILLINOIS. description must be accompanied by an affidavit by or on behalf of the petitioner, setting forth the fact that the names of such persons are unknown. This affidavit must be filed. The doctrine of "due diligence" would here be recognized. The court would hold such an affidavit perjury if the person making it either knew or might have known the name by proper investigation. ~ 185. In case the petition be presented to the judge in vacation, he shall note thereon the day of presentation; also the day when he will hear the same. He shall order an issuance of summons to each resident defendant, and the publication of notice as to each non-resident defendant. This summons must be immediately issued by the elerlk and the notices given accordingly. The manner of serving such summons and publishing such notice shall be the same as prescribed in chancery.1 ~ 186. The judge may hear such causes in vacation as well as in term time. The period of ten days must elapse in the case of personal service between the service and the hearing. In the case of non-residents the time is not specified, the law simply requiring "due publication." What would be reasonable and just might not be the same in any two cases. This discretion must be exercised in the spirit and on the principles of justice. ~ 187. As a matter of convenience, and without injustice to any person, it is provided that any number of separate parcels of property, if only they are situate in the same county, may be included in one 1 On this point see Gross' Statutes, vol. ii, chap. 21; also ibid., vol. i, same chapter. EMINENT DOMAINS. 121 petition. The compensation, however, for each must ble assessed separately. The assessment may be by one jury or by different juries. This is left to the discretion and direction of the court or judge. ~ 188. Another provision to simplify proceedings and insure equity is that amendments to the petition, or to any paper or record in the cause, may be permeitted, whenever necessary, to a fair trial and final determination of the questions involved. That no.just restriction should be put upon this provision, or ally opportunity for unreasonable delay be afforded, it is added: "Should it become necessary at any stage of the proceedings to bring a new party before the court or judge, the court or judge shall have the power to make such rule or order in relation thereto as may be deemed reasonable and proper; and shall also have power to make all necessary rules and orders for notice to parties of the pendency of the proceedings, and to issue all process necessary to the execution of orders and judgments as they may be entered." Although the courts are held to a specially strict construction of law in cases of eminent domain,' the proceedings are largely in the nature of equity. The right to bring a, new party into the case is provided for specifically. " Any person," says the eleventh section of the statute, "not made a party may become such by filing his cross petition, setting forth that he is the owner or has an interest in property, and which will be taken or damaged by the proposed work, l Williams v. Powell, 6 Wheat. 119; Beaty v. Knowler, 4 Peters, 168; Early v. Doe, 16 How. 610; Rule v. Parker, 1 Cooke, 365; Parker v. Overmann, 18 How. 137. 122 RAILWAY LAV 1N IL,INOGtT. and the rights of such last named petitioner shall thereupon be fully considered and determined." ~ 1S9. No specific jury provision is made for eases inl which the hearing of petition occurs in term time; but if fixed for hearing in vacation it is the duty of the clerk of the court in whose office the petition is filed, to write the names of each of sixty-four disinterested fieeholders of the county on as many distinct slips of paper, and, in the presence of two disinterested freeholders, cause to be selected from the same the names of twelve persons to serve as jurors. This selection must be made by lot, "without choice or discrimination." The preparation of the list and the drawing of the lot must occur at the time of issuing summons, or making publication. The selection made, the clerk shall issue venire, directed to the sheriff of his county, commanding him to summon the twelve persons so selected as jurors to appear at the court house, in the county, at a time to be named in the venire. ~ 190. The petitioner and every party interested in the ascertainment of compensation have the same right of challenge of jurors as in other civil cases in the circuit court.3 If the panel be not full by reason of non-attendance, or be exhausted by challenge, the judge hearing the petition shall designate by name the necessary number of persons of proper qualification, and the clerk or justice shall issue another venire, returnable instanter and until the jury be full. ~ 191. The jury selected, the following oath must be administered to them: " You, and each of you, do 9 For the right of challenge as defined by statute, see Gross, vol. ii, chap. 58. EMINENT DOMAIN. 123 solemnly swear that you will well and truly ascertain and report just compensation to the owner (and each owner) of the property which is sought to take or damage in this case, and to each person therein interested, according to the facts in the case, as the same may be made to appear by the evidence, and that you will truly report such compensation so ascertained. So help you God." ~ 192. In ascertaining the real facts in the case the jury shall, at the request of either party, go upon the land sought to be taken or damaged, in person, and examine the same. After hearing and seeing all the evidence in the case the jury must make report in:writing so as to clearly set forth and show the compensation ascertained, to each person thereto entitled. If the report is not sufficiently explicit the jury shall amend it under the direction of the court or the judge. The verdict shall thereupon be recorded. It is expressly provided, in this connection, that no benefits or advantages which may accrue to lands or property affected shall be set off tgainst, or deducted firom, such compensation in any case.' ~ 193. The next step is for the judge, or court, to "adjust and make such order as to right and justice shall pertain." This order shall issue to the petitioner, directing entry upon such property and the use of the same, upon payment of full compensation, as ascertained. This order, if coupled with evidence of such payment, shall constitute complete justification of the taking of such property. Payment of'The original doctrine of set-off in Illinois was just the reverse of this, and gave rise to much litigation, ill feeling and injustice. 124 RAILWAY LAW IN ILLINOIS compensation adjudged may, in all cases, be made to the county treasurer, who shall, on demand, pay the same to the party thereto entitled, taking receipt for the payment. Or, if preferred, payment may be made to the party entitled, his or her or their conservator or guardian. The court or judge must cause the verdict of the jury and the judgment of the court to be entered upon the court records. ~ 194. In the event that both parties are satisfied with the verdict of the jury, the transaction is complete, and the right sought has been fully secured. But the right of appeal to the supreme court is guaranteed in all cases. If the party whose property is to be taken or damaged appeals, the petitioner shall, notwithstanding, have the right to enter upon the use of the property upon entering into bond, with sufficient surety, payable to the party interested in such compensation, conditioned for the payment of such compensation as may be finally adjudged in the case. If the appeal is taken by the petitioner the same bond shall be exacted. The bond shall be submitted to the judge or justice before whomn such proceeding shall be had and be approved by him. The execution and filing shall be within such time as the judge may designate. 1~ 195. The right to acquire a roadway includes the right to acquire as much land as may be needed for the work-shops and other appendages. This right may lay dormant for an indefinite length of time, provided its final exercise is in itself legitimate.' In case the regularity of the proceedings under which the 1Chicago, Burlington and Quincy R. R. v. Wilson, 17 Ill. 123. EMINENT DOMAIN. 125 right of way was acquired should be called in question, the presumption of the law would be in favor of its regularity,' although the requirement of regularity is strict,2 as previously stated. ~ 196. There are a few additional points established by the decisions that remain to be-noted before calling attention to the method of acquiring the right of way to enter a city or pass over school and state lands. Authorities could be given for the doctrine that the title to land acquired by a railroad company is absolute.3 An early case held that the land taken from private persons and vested in a corporation, under the exercise of this right of eminent domain becomes really vested in the state.4 197. The constitution is explicit on this point (article xi, section- 14): "The exercise of the power and the right of eminent domain shall never be so construed or abridged as to prevent the taking by the general assembly of the property and franchises of incorporated companies already organized, and subjecting them to the public necessity, the same as of individuals." The bill of rights is more sweeping. Besides forbidding the making of any irrevocable grant of special privileges or immunities, it declares (section 13): " Private property shall not be taken or damaged for public use without just compensation. Such compensation, when not made by the state, shall be ascertained by a jury as shall be prescribed by law. The fee of land taken for railroad tracks, without con-'Galena and Chicago Union R. R. Co. v. Pound, 22 Ill. 399. 2 Harper v. Lexington and Ohio R. R. Co. 2 Dana, 227. 3 Chicago and Mississippi R. R. Co. v. Patchin, 16 Ill. 198. 4 The State v. Evans, 2 Scam. 208. 126 lRAILWAY LAW IN ILLINOIS. sent of the owners thereof, shall remain in such owners, subject to the use for which it is taken." ~ 198. When the route of a railroad lies partly in an unorganized township the notice for application to acquire the right of way through the school section (section 16) must be served upon the school commissioners of the county. The damage assessed shall be paid into the school fund of the county for the use of the inhabitants of the township in which the section may be situate. As soon as the township has been organized the money shall be paid over to the treasurer thereof.1 The special consent of the general assembly must be secured in order to acquire the right of way through land belonging to the state for the use of any benevolent institution of the state. The courts have no jurisdiction over such cases.2 The twenty-eiglhth general assembly exercised this function of legislation in granting to the Chicago and Pacific railroad company a conditional right of way over lands of the Northern Illinois Hospital and Asylum for the Insane. In a case involving the construction of a charter embodying the right of way through state lands the court held3 that the language of a statute incorporating a railroad company might be sufficiently comprehensive to embrace any property owned by the state, still it will not be construed to include property used by the state for a specific purpose. This could not be, the intention of the legislature, and all statutes are to be construed according to it.'Gross' Statutes, vol. i, chap. 92, sec. 27. 2 Ibid. sec. 28. 3 St. Louis, Jacksonville and Chicago R. R. Co. v. Trustees, 43 Ill. 303. EMINENT DOMAIN. 127 ~199. The fee simple to the streets of a city is generally vested in the municipal corporation.1 The right of way to enter a city must be secured from the municipal government. This sometimes occasions vexatious delay, but has proved no serious obstacle to railway enterprise. ~ 200. Such is the present mode of procedure ill acquiring the right of way in Illinois for a railroad. The intricacies of the old system and some light upon the general subject may be derived from the decision in the case of the Peo'ia and Rock Island B. R. Co. v. lVarzer. The opinion of the supreme court, delivered by Justice ThIORNTON, was filed June 28, 1872. The following syllabus is mainly from the Chicagjo -legal News, of July 13, 1872: ~ 201. " This was an action of trespass against the railroad company. The defendant justified ulnder its charter, and the act of 1845, entitled' Righlt of Way.' The only averment in the plea as to notice to the party whose land was condemned was this:'The defendant avers that said plaintiff was present with said corumissoners before their report was signed, and had an opportunity of being heard upon his claim for daimages,' and the court held that there was no sufficient averment as to notice. ~ 202. That the party whose land is to be taken has the right to reasonable notice of the time and place where and when application will be made for the appointment of the persons who are to assess the damages. ~ 203. That it was the intention of the legislature i Moses v. Pittsburg, Ft. Wayne and Chicago R. R. Co. 21 111. 522. 128 RAILWAY LAW IN ILLINOIS. that notice should be given under the act of 1845. The court cites authorities to show that in appeals and similar cases, where the statute giving the right was silent as to notice, that notice was required to be given. ~ 204. That the legislature has repeatedly recognized the validity of the act of 1845; that the act of 1852 contains no express repeal of it, and is amendatory of it. That it was enacted in 1869 that the provisions of both acts should apply to all proceedings for the condemnation of lands; that notice must be given in accordance with the act of 1852. ~ 20(5. As the sole object of section nineteen was to continue the reservation of power in the legislature to fix the routes and termini of all roads, before the corporations should exercise the right of eminent domain. It has no application to a company whose termini are fixed by its charter." ~ 206. For the convenience of those who may wish to make thorough and original investigation on this subject, the following list of Illinois authorities is appended. The subject has been extensively discussed by many able legists and jurists.1 l Gillinwater v. Mississippi and Atlantic R. R. Co. 13 Ill. 1; Newhall v. Galena and Chicago Union R. R. Co. 14 Ill. 273; Illinois Central ItR. R. Co. v. Rucker, 14 Ill. 353; Illinois and Wisconsin R. R. Co. v. VanHorn, 18 Ill. 257; Low v. Galena and Chicago Union R. R. Co. 18 Ill. 324; Chicago and Milwaukee R. R. Co. v. Bull, 20 Ill. 218; Jacksonville and Savannah R. R. Co. Co. v. Kidder 21 Ill. 131; Tonica and Petersburg R. R. Co. v. Unsicker, 22 Ill. 221; same v. Roberts, Ibid. 224; Johnson v. Joliet and Chicago R. R. Co. 23 Ill. 203; Rock Island and Alton R. R. Co. v. Lynch, 23 Ill. 645; Shute v. Chicago and Milwaukee R. R. Co. 26 Ill. 436; Trustees et al. v. Chicago and Rock Island EMINEN'r DOtMAIN. 129 R. R. Co. 14 Ill. 314; Johnson v. Joliet and Chicago R. R. Co. 23 Ill. 202; City of Chicago v. Larned, 34 Ill. 203; Rees v. City of Chicago, 38 Ill. 322; City of Chicago v. Laflin, 49 Ill. 172; People v. Williams, 51 Ill. 63; Harwood v. St. Clair Draw Co. 51 Ill. 130; Hessler v. Drainage Commissioners, 53 Ill. 105; Cooley on Constitutional Limitations, chap. 15; Potter's Dwarris on Statutes, chap. 11; Redfield on Railway Law, 239. 9 CHAPTER V. RAILWAY CONSTRUC rION. I. CONSTRUCTION OF THE ROAD. II. BRIDGES. III. UNION DEPOTS. IV. CONTRACT AND LIENS. I. CONSTRUCTION OF THE ROAD. ~ 207. Preliminary survey. 208. Map and profile: Record of the same. 209. Donations and purchases. 210. Width of road-bed: Trees. 211. Gravel, etc. for grading-how acquired. 212. Crossing streams and streets: Canals. 213. Consequent duties of the railroad company. 214. Railway construction and municipal authorities. 215. Intersection with existing railroads. 216. Railway comity: State and national law. 217. Providing general conveniences for business. ~ 207. The first step in the way of railway construction is to make a critical survey, and determine the exact route of the road. In ordinary cases such surveying would be trespass. The law provides that a railway company, if duly organized, may cause such examinations and survey for its proposed railway to be made as may be necessary to the selection of the most advantageous route.' The officers, agents or servants of the company are authorized to enter upon the lands of any person or corporation, subject, however, to l Gross, vol. ii, page 309, sec. 180. (130) RAILWAY CONSTRUCTION. 131 responsibility for all damages which may be occasioned thereby. This right to hold in abeyance the law of trespass is based on the doctrine of eminent domain. ~ 208. The surveys made, and an exact route agreed upon, the company must, before proceeding to build their line through any county named in their certificate of association, nmake a map and profile of the route intended to be adopted. The correctness of this map and profile shall be certified by a majority of the board of directors. The same shall then be filed in the office of the county clerk of the county, or with the clerk of the county commissioners court of such county. The whole route need not be profiled and recorded in each county, but only so much as lies in that particular county. All parties interested in the matter can inspect and examine the map and profile, the same as the ordinary public records of a county.2 ~ 209. The company is empowered to purchase, hold and use all such real estate and other property as shall be necessary for the construction and use of, its railway and the stations and other accommodations necessary to accomplish the object of its incorporation. This general power includes the whole subject of eminent domain. It also contemplates purchase in the ordinary way, and donations. No provision peculiar to railroads is made in regard to purchase, and as for donations, the law reads: " The corporation may take and hold such voluntary grants of real estate and other 2 Gross, vol. i, chap. 81, sec. 58. The survey clause of the law, as found in Gross, vol. ii, makes no mention of filing for public record, but as that provision of the old law is not inconsistent with the new law, it is in force. See repeal clause, Gross, vol. ii, railroads, sec. 196. :132 RAILWAY LAW IN ILLINOIS. property as shall be made to it in aid ot the construction and use of its railway, and to convey the same when no longer required for the uses of such railway, not incompatible with the terms of the original grant."' The right to convey is the samne in the case of purchase. Real estate acquired by the exercise of the right of eminent domain cannot be used for any other than its original purpose. ~ 210. In laying out its road the company must not claim more than 100 feet in width; but for the purposes of cuttings and embankments it may take as much more land as may be necessary for the proper construction and security of the road. If any trees standing hard by would be in danger of falling upon the track, or in any way obstructing the railway, the company may cause them to be cut down. Compensation therefor must be made in the same method and on the same principle as compensation for land." This tree clause is virtually a police regulation, being designed as a safeguard against railway accidents.' 211. In the building of a railway it is often necessary to use more earth, stone and gravel in making the road bed, than the land the company has a right to acquire by condemnation furnishes. To facilitate and cheapen construction, the law provides for the taking of the same by the exercise of eminent domain, in case the parties cannot agree on terms. The provision is that "if such owner and corporation cannot agree, then the value of such material taken and the damage occasioned to such real estate may be ascertained, determined and paid in the manner that Gross, vol. ii, page 309, sec. 181. 2 Ibid. sec. 182. RAILWAY CON'STRUCTION. 1 3, mltay now or hereafter be provided by any law of eminent domain; but the value of such materials and the damnages to such real estate shall be ascertained, determined and paid for before such corporation can enter upon and take the same." 1 This latter clause is superfluous, as the law of eminent domain requires pre-payment, or, in case of appeal, a bond equivalent thereto in its certainty of compensation. It should be added that this right to acquire material by condemnation does not extend to fuel and wood. 5 212. Another construction right specified is the right to "construct its line across, along, or upon any stream of water, water course, street, highway, plankroad, turnpike, or canal, which the route shall intersect or touch."2 The trustees of the M3/ichigan and Illinois canal once tried to arrest railway construction; but the court held that all grants made by the state, whether to canal trustees or others, although irrevocable, are subject to the right of eminent domain, unless that right is expressly relinquished.3 We may add that it is an established principle that the right of eminent domain cannot be relinquished.4 213. This right is coupled with a duty. The same section adds: " But such corporation shall restore the stream, water course, street, highway, plankroad and turnpike thus intersected or touched to its former state, or to such state as not unnecessarily to have impaired its usefillness, and keep such crossing in'Ibid. sec. 179. Ibid. sec. 182. Trustees v. Chicago and Rock Island R. R. Co. 14 Ill. 314. 4 Pollard v. Hagan, 3 How. 212; Goodtitle v. Kibbe, 9 How. 471; Doe v. Beebe, 13 How. 25; Illinois Central R. R. Co. v United States, 20 Law Rep. 630. 134 RAILWAY LAW IN ILLINOIS. repair; provided, that in no case shall any railroad company construct a road bed without first constructing the necessary culverts or sluices, as the natural lay of the land requires for the necessary drainage thereof." It will be observed that in this restoration clause no mention is made of canals. From the language of the court in the case of the Chicago and Rock Island railroad company, just referred to, it would seem evident that the railroad company may not, in any way or for any length of time, interfere with the actual operations or stability of a canal. ~ 214. A further limitation is placed upon the foregoing right.' The construction of a bridge or of any other obstruction over any stream navigated by steamboats is not authorized. Legislation on that subject is provided in a separate statute.2 iNor is authority given to construct any railroad upon or across any street in any city or incorporated town or village without the assent of the corporation of such city, town, or village. This qualifying section ends by adding: "Plrovided, that in case of the constructing of said railway along highways, plankroads, turnpikes, or canals, such railway shall either first obtain the consent of the lawful authorities having control or jurisdiction of the same, or condemn the same under the provisions of any eminent domain law now or hereafter in force in this state." ~ 215. It is not enough to have the right to acquire the land of private persons and cross hioghways, streams, etc. It often happens that in the construction of a railroad the new line intersects with existing lines. Gross, vol. ii, chap. 86. 2 Gross, vol. ii, p. 100. RAILWAY COXSIRUCTION. 135 The Chicago, Burlington and Quincy, for instance, is crossed in this state by other lines twenty-one times. As these routes, in many cases, are natural rivals, the general assembly has expressly authorized any railroad corporation, in building its line, to cross as often as may be necessary existing railroads; also, upon the grounds of existing railroads, to construct all necessary turnouts, sidings, switches, and other conveniences. ~ 216. The old road is required to unite with the new in constructing the facilities for a mutual interchange of business and convenient transfer of cars. Nothing is allowed on the part of one railroad toward another which would retard its construction and impede its operation. If the two corporations cannot agree upon the amount of compensation to be allowed for the property used, or upon the points at which the crossings shall occur, and the manner thereof, the matter shall be arbitrated on the plan laid down in the law of eminent domain. It should be mentioned in this connection that an act of congress passed July 15, 1862, authorizes and requires railroads to carry passengers and freight from one state to another, and connect with other roads for such purposes. This law is, by its express provisions, repealable at the discretion of congress, but it is still in force. The earliest mention of railways in the legislation of this state is a resolution for the extension of Illinois railroads into Indiana. 1 ~ 217. A road bed is by no means all of a railroad. Besides the rolling stock and the bridges over naviga1Laws of Illinois, 1839, p. 308. 136 RAILWAY LASW TN IINOIS. ble streams, there are side-tracks or switches, station houses for the suitable accommodation of passengers, and warehouses for the fit storage of freight; water tanks and machine shops. Whatever, in fine, a railway company needs for the transaction of its business with expedition, safety, comfort and economy, it is not only allowed but compelled to provide. Lest the provisions previously given should not be ample in their authority, the statute specifies that the company shall llave power "to erect and maintain all necessary and convenient buildings and stations, fixtures and machinery for the convenient accommodation and use of passengers, freights and business interests, or which may be necessary for the construction or operation of said railway."l II. BRIDGES. g 218. Bridge statutes of 1872. 219. Bridge companies; articles of incorporation. 220. Filing the same. 221. Board of directors. 222. Powers of the corporation. 223. Navigable rivers; congressional and state legislation. 224. Old bridge charters; time for completion. ~ 218. Three bridge laws were passed in the year 1872, all going into force July 1 of that year. One relates to the time of completing bridges; another to the authority for constructing them, and the last to the formation of bridge companies. We have observed in this enumeration the order of the passage of these statutes, which is the reverse of the proper order of their consideration.2 Ibid. see. 185, clause 2.'Gross, vol. ii, chap. 25, div. xix. RAILWAY CONSTRUCTION. 137 ~ 219. Any n;umber of persons, not less than ten, mlay associate together for the formation of a company for the purpose of constructing and maintaining a bridge over any of the streams of water which are situate, in whole or in part, in the state, or upon the b)oundary of the state. The bridge must be for public use, including the transference df persons and property. The first thing to do is to make, sign and acknowledge, before some officer authorized to take acknowledgments, articles of association. These articles of association must set forth: 1. The name of the proposed corporation. 2. The number of years tile same is to continue.1 3. The place at which the bridge is to be constructed. 4. The name of the county or counties in which it is intended to be constructed. 5. The purpose for' which it is to be used, whether for railroad or ordinary travel, or both. 6. The amount of the capital stock. 7. INumber of shares of the stock. 8. The names and places of residence of the directors of the company. 9. The residence of each subscriber, and the number of shares he has agreed to subscribe f'or.2 ~ 220. These articles of association must be filed in the office of the secretary of state, who shall thereon endorse the date when the same was filed, and record the articles in a book to be provided by him for that I The statute places no time limitation, as in the case of ordinary corporations and railroad companies. 2 It will be observed that the articles of incorporation contemplate a greater degree of completeness in organization prior to public action than is the case in the organization of an ordinary stock company or of a railroad company under Illinois statutory law, although the general principle of organization is the same in all. 138 RAIILWAY LAW IN ILLINOIS. purpose, "and," continues the statute, "thereupon, the persons who have so subscribed such articles of association and all persons who shall become stockholders in such company shall be a corporation by the name specified in such articles of association, and shall possess the powers and privileges incident to such corporations. ~ 221. The board of directors named in the articles of incorporation must consist of not less than five nor more than'thirteen persons. They shall manage the affairs of the corporation for the first year and until others are chosen in their places. This much the first section of the law provides. The fourth and last adds: " The trustees, managers or directors of such corporation shall be elected and classified in the manner provided by law for the election and classification of the trustees, managers or directors of other incorporated companies, and at least one-third of such directors shall be citizens of this state." The allusion is doubtless to the cumulative method of voting, which under the constitution applies to all corporations in the state, andl which is expressly recognized in the statute referred to in the quotation just given. ~ 222. In case of need, the law of eminent domain may be invoked to acquire possession of the private property necessary for the carrying out of the object of the association. The company may issue bonds or other evidences of indebtedness; negotiate loans for the prosecution of its work; secure such indebtedness by deed of trust, or mortgage on the property of the'No provision is made for filing the articles of incorporation in the office of the county clerk. RAILWAY CONSTRUCTION. 139 company. It may, further, consolidate its franchise and property, in the manner provided by general law, with that of any bridge company in the state, or a bridge company organized under the laws of an adjoining state. In fine, it may exercise " any other rights and powers incident to such corporations which may be necessary to carry out the objects contemplated in such organization." ~ 223. The assent of the state is given to any corporation or association. organized under the laws of Illinois, and subject thereto, to construct bridges across navigable rivers in this state, and upon boundaries thereof, whenever authorized by congress, " under such restrictions as the congress may impose." This is a plain recognition of the paramount authority of the national government in regulation of inter- state commerce. The doctrine laid down by the supreme court of Illinois is that the power of the state over navigable rivers exclusively within the state to render them useful for domestic purposes was never surrendered.' ~ 224. Previous to the adoption of the present constitution some bridge company charters had been granted. One of the three statutes under consideration provides that if any such company had not finished its work within the time specified in its charter it is allowed to go on and complete the enterprise, anything in its charter to the contrary notwithstanding. This extension privilege is qualified by the proviso that "the same shall be constructed and completed within ten years from and after the passage of this act; and, provided ferther, that such corporation shall have been City of Chicago v. McGunn, 51 Ill. 266. 140 RAILWAY LAW IN ILLINOIS. organized and been in operation within ten days from the time the new constitution took effect." It is evident that a railroad company is not obliged to depend upon a bridge company for the means of crossing navigable streams, but simply that the bridge part of railway construction may be under the legislation which has just been stated. III. UNION DEPOTS. g 225. The Union Depot act. 226. Who may form the association: For what objects. 227. No discrimination allowed. 228. Articles of incorporation. 229. Their presentation to the circuit court as a petition: By whom signed. 230. Certificate of the court. 231. Powers of the company. 232. Tile directors: Their election. ~ 225. No special provision is made for the construction of ordinary depots; but by an act, approved April 3, 1872, and which went into force July 1 of the same year, provision is made for building union depots. The object of this law is, as stated, " to facilitate the public convenience and safety in the transmission of goods and passengers from one railroad to another and to prevent the unnecessary expense, inconvenience and loss attending the accumulation of a number of stations." ~ 226. Any number of persons not less than five may organize themselves into a union depot company. So may three or more railway companies or "joint individuals." The object of this association is defined by statute to be "for the purpose of constructing, establishing and maintaining a union station for pas RAILWAY CONSTRUCEON. 141 senger or freight depots, or for both, in any city, town or place in this state, with the necessary offices and rooms convenient for the same and appurtenances thereto." ~ 227. The object of the company is further explained in the last section, wherein it is expressly provided that "' there shall be no discrimination against or in favor of any railroad company using or desiring to use the said union depot, but the terms, conditions and regulations adopted for the use of the same shall, so far as practicable, be uniform and apply alike to all railroads using or desiring to use said union depot." It may be remarked that all the railway legislation during the present decade is true to the anti-monopoly principle of the constitution. ~ 228. The articles of incorporation must set forth: 1. The number of years the company is to continue. 2. The city, town, or place in which the depot is to be located. 3. The amount of capital stock of the company, which must not exceed $3,000,000. 4. The amnount of each share. 5. The names and places of residence of the directors, not less than five nor more than fifteen. 6. The amount of stock taken by each subscriber. * 229. These articles of association must be presented first to the circuit court of the county in which tile depot is to be located, or to the judge of the same, in vacation. This presentation must be in the form of a petition from the signers for a certificate of incorporation under the provisions of this act. To the petition must be appended a certificate from at least three railroad companies who have tracks leading into the city or place where the depot is to be built, stating 142 RAILWAY LAW IN ILLINOIS. *its public utility, and that they expect to make arrangements for its use when it shall have been constructed. These certificates must be signed by the presidents of the respective railway companies. ~ 230. The court or judge, if satisfied that these certificates have been actually signed by the companies, shall, upon filing the petition, articles and certificate with the clerk of the court, grant to the association a certificate in the following form: Whereas, A, B, and C, etc., (stating the names,) have filed in the office of the clerk of the circuit court their articles of association, in compliance with the provisions of an act entitled, "An act authorizing the formation of union depots and stations for railroads in this state," approved April 3, 1872, with their petition of incorporation under the name and style of......, tliey are, therefore, hereby declared a body politic and corporate by the name and style aforesaid, with all the powers, privileges and immunities granted in the act above named. By order of the circuit court (or judge thereof.) Attest....... This, or a certified copy of it, must be filed in the office of the secretary of state when the organization of the company will be complete. ~ 231. In addition to the general powers possessed by joint stock companies existing under the incorporation act of the state, and subject to the limitations specified already, the company has five powers, viz.: 1. To take and hold such real estate as they may acquire either by conveyance or by condemnation. 2. It may acquire by an exercise of the powers of eminent domain as much land as may be necessary to the carrying out of its depot purpose, and hold the same for that purpose, and no other. The necessary approaches to the depot are included, as well as the RAILWAY CONSTRUCTION. 143 ground on which the building may stand. 3. It may, with the consent of the local or municipal authorities, lay the track or tracks necessary to connect therewith the railroads proposing to use the depot. If the authorities mentioned give their consent, the company may also construct its building "m under, over. or upon any such streets or roads," the track laying being, if necessary, under, over, or upon the streets or roads of " such city, town, or place," the authorities consenting thereto. 4. The company is authorized to borrow money, mortgage its property and franchises, or issue bonds to the extent necessary to complete and maintain its depot. 5. To open, from time to time, books of subscription to the remainder of the capital stock not taken by the subscribers to the articles of association. ~ 232. The first board of directors manage the affairs of the company for the first year, and until others are chosen in their places. After the directors named in the articles of association shall have served for one year, there shall be an annual election of directors, to be conducted on the cumulation plan laid down in the constitution of the state. The directors so elected shall serve one year. Each board shall give notice of the time and place of the election of their successors. The notice shall be given in some newspaper published in the English language at the place where the depot is located. This publication must be at least twenty days prior to the election. In an ordinary corporation all the stock must be subscribed prior to the completion of the organization of the same. 2144 RAILWAY LAW IN ILLINOIS. IV. CONTRACTS AND LIENS. g 233. The three-fold law of 1872. 234. Old laws. 235. Action under obsolete statutes. 236. Contractor's lien. 237. Sub-contractor's lien. 238. Laborer's notice to railroad company. 239. Copy ot the same. 240. Filing notice in court. 241. Period allowed for payment. 242. Cost and attorney's fees'. 243. Clerk of the circuit court. 244. Law of 1873. 245. Construction contracts. 246. Completeness of the statutory remedy. 247. Grant v. Green. 248. Lex loci. 249. ~Contractors are agents of the railroad corporation. 250. Construction of contracts. 251. Interest in construction contracts. ~ 233. In theory each railway company builds its own road. In practice the work is usually, if not'always, done by contract. Often the bonds of the company are turned over to the construction company, tand the contractor becomes the owner. There is one act on the statute books of Illinois specially designed to protect contractors in their claims against railroad companies; sub-contractors in their claims against contractors; and laborers in their claims against their employers, whether the same are railroad companies, contractors, or sub-contractors. This three-fold law was approved April, 1872, and went into effect July 1 of the same year.1 ~ 234. A law on the same sulbject, passed in 1861, Gross' Statutes, vol. ii, p. 313. RAILWAY CONSTRUCTION. 145 was thereby repealed, except that all rights and causes of action existing under it were left undisturbed.1 A still older statute, passed in 1853, is now in force, but has in eflbet been superseded and annuled. ~ 235. The old legislation provid for actions at law and in chancery, to be brought in any circuit court in any county in the state through which any railroad of the company may be located.2 The action might ble commenced by filing in the clerk's office of the circuit court a declaration or bill in chancery, as the case may be, and by giving notice to the company sued, of such filing, by at least four successive publications of the notice in a weekly newspaper published in the county (or if no newspaper be published in the county, then in the newspaper published in the nearest county.) The first publication had to be at least sixty days previous to the first day of the next succeeding term of the court. The court was obliged to hold such notice sufficient, and treat and determine the case the same as other cases at law or in chancery. The judgment recovered had the same force and effect as other judgments at law or decrees in chancery. The first provision was restricted by the last, which declares that " all actions instituted under the provisions of this act shall be commenced and prosecuted in the counties where the cause of action accrued, and not otherwise.T 2396. As reogards contractors, the statute of 1872 For that dead law, see Gross, vol. ii, chap. 86, div. i. It differed from the new only in being less explicit. 2 See Ibid. sec. 1 to 5, inclusive. 3 It is hardly necessary to add that this statute really extended no protection not previously enjoyed under common law. 10 146 IRAILWVAY LAW IN ILLINOIS. is so far retroactive as to apply to material supplied or labor performed prior to its passage. It applies to all persons or any person furnishing by contract to railroad companies "fuel, ties, nmaterial supplies or any other article or thing necessary for the construction, mnaintenance, operation or repair " of its road, or who i' shall have done and performned, or shall hereafter do or perform any work or labor for such construction, maintenance, operation or repair by like contract." The contractor is entitled to be paid as part of the culrrent expenses of the road. If not so paid lie has ta lien upon all the property, real, personal and mixed, of the company. This lien shall be not only against the company itself, but against all mortgages or other liens which shall accrue after the commencement of the delivering of the material or the performance of the labor. As a preventive of laches that might work hardship and injustice to innocent parties, it is provided that suit shall be commenced within six mnonths after the maturity of the contract or the peiformnance of the labor or the filrishing of the material. ~ 237. In case the contractor fails to pay his sul)contractor, "material-manl or laborer" for work done or material supplied on any contract, express or implied, the same shall have a lien upon all the property of the railroad company; "provided such sub - contractor, material- man or laborer shall have complied with the provisions of this act. But the aggregate of all liens hereby authorized shall not in any case exceed the price agreed upon in the original contract by such corlporation to the original contractor; and, provided farther, that no such lien shall take priority over any existing lien." The eighth section of the act declares IXrAILWAYk CONTsrUCTION. 147 th.a:t the lien shall continue three months fiom the tinie,,f thle performance of the sub-contract, except that the entry of a decree in the case shall bar all liens. [ 23S. The person seeking redress as sub-contractor, material-man or workman must cause notice in writing to be served on the president or secretary of the railroad company substantially as follows: Jo......, 1_President (or Secretary, as the eaSe maq-cy,c) of the........ You are hereby notified that I am (orl have beell) employed by........as, a laborer (or have fiurnished supplies, as the case niy be) on or for the.........;and that I shall hold all the property of said railroad (or railway, as the case may be) company to secunre my pay. 2 239. If a written contract had been made,' a copy of it, if obtainable, shall be attached to the notice and forlm a part of it. This notice must be served within twenty days after tle completion of the sub-contract or labor. Tihe same section contains the proviso, no lien shall attach in favor of any person performing' such labor or fuirnishin' material until such notice shall have been served as above, or filed for record, as ltereinafter provided. ~ 240. If neither the president or the secretary of the railroad company resides in the county in which the sub-contract was made, or the lien accrued, in fact, nor can be found in it, the notice may be filed in the oflice of the clerk of the circuit court. The clerk shall file the same and keep a record of it; also cause a copy of it to be mailed to the person addressed in the notice. Tihe fee for the same is 25 cents. The clerk must keep a list of the names of the persons so claiming liens 148 RAILWAY LAW IN ILLINOIS. and the names of the companies against which such liens are claimed. ~ 241. Ten days are allowed in which to liquidate the claim. If it is not paid within that time the claimant may commence suit therefor, in any court hlavinl jurisdiction of the amount claimed, the corporation with which the original contract was made being made defendant in the case. If, however, the claimant prefers, lie can bring suit against the railroad company and the contractor jointly, "execution to issue as in other cases." If execution, issued on judgment obtained before a justice of the peace, shall be returned, "not satisfied," a transcript of such judgment may be taken to the circuit court and "spread upon the records thereof, and shall have all the force and effect of judgmnents obtained in the circuit court, and execution issued thereon as in other cases.".~ 242. In case the claim is established the plaintiff shall be allowed an attorney's fee, $5, if before a justice, and $20 if before a court of record, the same to be taxed as cost.' ~ 243. It will be observed that the foregoing applies to completed contracts. Section seven of the law relates to cases in which the original contractor failed to finish his contract. In that event any person entitled to a lien may file his petition in any court of record, in any county through which the road may be constructed, against the railroad corporation and the contractors, setting forth the nature of his claim and the amount due as near as may be, the fact that the'In the railway legislation in regard to extortion, provision is made for attorney's fees. Instead of specific amounts the law says "reasonable attorney's fees." RAILWAY CONSTRUCTION. 149 contractor has failed to complete his contract. The further mode of procedure in such cases is thus: " The clerk of said court shall thereupon cause a notice to be published for four successive weeks in a newspaper printed in the county, setting forth that said petition has been filed, and the time when the writ issued on the saume shall have been made returnable, and all persons entitled to liens under this act may enter their appearance and interplead in said cause, and have their claims adjudicated; and it shall be the duty of the court, in case the petitioner or claimant, or either of them, established their claims, to enter a decree against the said corporation and original contractor for the amount to which the persons so establishing their clainms are respectively entitled, and such decrees shall have the same force and effect as decrees in other cases."' ~ 244. One more statute remains to be noted. It was approved April 26, 1873. It is entitled, "An act to amend -an act entitlel('An act to provide for the incorporation of associations that may be organized obr the purpose of constructing railways, maintaining and operating the same, for prescribing and defining the duties and limiting the powers of such corporations, when so organized,' approved MIarch 1, 1872." It contains one section and three provisions. The first!provision is designed to enable railway companies which had attempted to organize but failed to comply with the terms of the law, to reorganize, or cure the defects in the original organization. The last relates to mrulnicipal aid bonds. The intermediate provision is designed to prevent the evasion of contracts. It reads thus; 245. Provided, that all corporations to which this 1 50 I'RAILWATTVY LAW IN ILLINOIS. act shall apply shall be held liable for, and shall carry out and fulfill all contracts made bly them., or for, or on their behalf, or of which they have received the benefit, whether such corporation, at the time of the mnaking, of such contract or contracts, was organized, or had attempted to organize, under the general laws of the state of Illinois, or not; whether said contract was for right of way, workI and labor done, or materials furnished, or for the running of trains, or carrying passengers or freight upon such road, or upon any other road in connection therewith. And if such corporation has or does take possession of or use such right of way, labor or material so furnished by other persons or corporations, it shall be evidence of its acceptance of such contract so entered into by such person or corporation with said persons or corporations for its benefit. And upon said corporation failing to pay said sum as it ought equitably to pay for such right of way, labor or materials, or fail to carry out suell contracts as aforesaid, so nmade with persons or corporations, it shall be held liable in an action at law or in chancery for the recovery of the value of said right of way, labor or materials, and for damages for non-futlfillment of such contract, in any court of competent jurisdiction in any county through which the road of such corporation may be located. ~ 246. The subject in hand is now exhausted, so far as concerns statutory law. Only a very few decisions in cases arising out of railway construction contracts present any peculiar phase of the general law of contract. Rarely will a claim arise for which the remedy provided by statute will not be ample. ~ 247. One of the notable railway construction nAILWAY CONSThRUCTION. 151 cases is Grant ~v. Green.' A party contracted to construct and equip a railroad, and received on the hypothecated bonds of the road as much money as he had expended in and about the contract. He afterward abandoned the enterprise. The court held that the contract should be decreed rescinded as to such contractor, and that the stock and franchise should revert to the original shareholders, so far as the same had been yielded to the defaulting contractor, except so far as the sameoJ cld not 1c done without impairing the rights of innocent holders of the bonds. ~ 248. The general principle, applicable to all contracts, is that the law of the place of performance governs them. It is presumed that both parties to the agreement knew the law of the place.2 Consequently it matters not where the contract to constrnct an Illinois railroad, or furnish material for the road, may hlave been executed, the law as given applies thereto. The general law in regard to the personal property of a railroad company in the possession of the mortgagee is that it is no longer subject to be taken in execution for the debts of the company.3 But this general law is somewhat modified in the case of construction contracts, as has been shown.4 1 Grant v. Green, 46 Ill. 469. 2 Mason v. Dousey, 35) Ill. 424. 3 Palmer v. Forbes, 23 Ill. 301. 4 In a note to Bradshaw v. Newman, Breese 133, occurs the following statement: "The general principle adopted by civilized nations is that the nature, validity and interpretations of contracts are to be governed by the laws of the country where the contracts are made, or are to be performed; but the remedies are to be governed by the laws of the country where the suit is brought." The authorities cited by the editor are Humphrey v. 152 RAILWAY LAW IN ILLINOIS. ~ 249. Contractors are held to be servants of the company. Whatever they or their subordinates do in the natural course of business the law holds to have been done in the capacity of agent for the corporation. 1 It follows that the latter is subject to the general liability of principal as truly during the construction of its road as afterwards when it is in operation, although the operating of a road is more frequently conducted directly by the company than is its construnti-o,. ~ 250. J -er -> — statutory provision witnesses nay in some railway cases give their opinion, as well as state facts. In an early case an inferior court allowed the witness to give his opinion upon the proper interpretation to put upon a construction contract, although he was not brought on the stand as an expert. The supreme court held that the court, and not the witness, must be the judge of such a point. Several decisions confirm that doctrine.2 ~ 251. In a case involving the corporate rights of an institution then existing under a state charter the court held that a corporation cannot enter into partnership.3 It was held, however, that two or more corporations may become jointly bound by the same contract. According to this doctrine, a railroad coimpany cannot form a partnership, in form, at least, with Collier & Powell, Breese, 297; Stacy v. Baker, 1 Scam. 417; Forsyth et al. v. Baxter et al. 2 Seam. 12; Webster v. Massey, 2 Wash. C. C. R. 157; Cox et al. v. The United States, 6 Peters, 172; Green v. Sarmiento, Peters C. R. R. 74.'Lesher v. Wabash Navigation Co. 14 Ill. 85. 2 Alton, etc. R. R. Co. v. Northcote, 15 Ill. 49; Sigsworth e. McIntyre, 18 Ill. 128; Taylor v. Beck, 13 Ill. 376; McAvoy v. Long, 13 Ill. 147. 3 Marine Bank of Chicago v. Ogden, 29 Ill. 248. RAILWAY CONSTRUCTION. 153 a contractor, or a construction company. For an officer of a railroad company to be interested in a construction contract would be a breach of a fiduciary trust, unless he were so with the knowledge and consent of all the stockholders. CHAPTER VI. RAILWAY LIABILITIES. I. PASSENGER LIABILITIES. rI. FREIGHT LIABILITIES. III. CAR SERVICE. IV. CROSSINGS; SIGNALS; FLA AGS. V. SERVANTS; FIRES. VI. FENCES; OBSTRUCTIONS. VII. LIVE STOCK; THISTLES. I. PASSE;'G EI LIABILITIES. 2352. Importance of the responsibility. 253. Private liability; common carrier liability. 254. Relative duties of carrier and passenger. 255. Liability for injuries. 256. General homicidal liabilities. 257. Right of action. 258. MIeasure of damages; paupers. 259. Admission of testimony. 260. Criminal Carelessness. 261. Miscellaneous liabilities. 262. Uniformity of charges. 263. Procuring tickets in advance. 264. Refusal to pay fare. 265. Through trains and way passengers. 266. Carrying past the point of destination 267. Passenger cars and freight trains. 268. Freight cars and passenger trains. 269. Reasonable rules. 270. What are reasonable rules. 271. Baggage liability. 272. Checks; baggage in store. 273. Free passes. 274. Lay-over tickets. 275. Larceny of tickets. 276. Traffic on passenger trains. (154' RAILmWAY LIABILITIES. 155 ~ 252. The railway liability fraught with the gravest responsibility is that resulting from the carriage of passengers. This is true whether we consider the importance of personal safety, or the pecuniary risks of the carrier. Illinois has been happily exempt fioln railway disasters. During the year ending June 30, 1TS2, only eight passengers in the entire state were ]killed. A prairie country is less liable to rail accidents than a hilly country, where there are deep cuts, short curves and high embankments. Legislation in this state has done allnost nothing to protect the lives of p'assengers. The common law, although minute, is not sufficient. At the beginning of the final session of the twenty-eighth general assembly a measure designed to lessen the peril of travel by rail was introduced in the senate by Gen. Fuller, chairman of the railroad committee. It passed the senate, but never reached a vote in the house. 253. If railroads were private roads, and the companies enot common carriers, they could be held liable only for carelessness so gross as to have in it an element of criminality.' The theory is, however, that the carrier is not an insurer of personal safety against every accident or injury, save those arising from the act of God or the public enemy, as is the case with freight carriage. An injury may occur by mere nmischance, without any fault or negligence on the part of the railroad company or its servants. For such misfortunes the carrier is not deemed responsible. IHe is liable only for a want of reasonable skill, diligence and care. This difference between freight and passenger, Chicago and Aurora R. R. Co. v. Thompson, 19 Ill. 578. 156 RAILWAY LAW IN ILLINOIS. liability is based on the nature of the case. Gooas are entirely in the control of the carrier. The passenger cannot be completely controlled.' ~ 254. Passenger and carrier have reciprocal duties. The former is bound to avoid any unnecessary risks, and the latter to take all possible precautions against accident in the provision of suitable coaches and the observance of the most approved methods of conducting his business. The highest degree of caution consistent with proper speed is required. Failure to use the latest appliance, such for example as the "airbrake," would be considered a mark of negligence. Comfort and safety must be considered.2 PGut while a carrier is thus obliged to do all that human foresight, care and vigilance can reasonably do, consistent with the mode of conveyance and practical operation of the road, yet he will not be held to a degree of care which would be so expensive as to render it impracticable to continue the business.3 ~ 255. In case of injury the railroad company is liable for the loss of time; the expense of doctors, nurses, etc. Issue is joined in case of litigation either upon the measure of the responsibility or the amount due on those accounts. In the event of permanent injury the claims allowed are somewhat in the nature of consequential damages. The jury is allowed to estimate the probable pecuniary loss to the person in'Frink v. Potter, 17 Ill. 406. 2 Ohio and Mississippi R. R. Co. v. Muhling, 30 Ill. 9; Frink v. Potter, I7 Ill. 406; Tuiler v. Talbot, 23 Ill. 357; Galena and Chicago Union R. R. Co. v. Yarwood, 15 Ill. 468; C. B. and Q. R. R. Co. v. Hazzard, 26 Ill. 373. 3 Pittsburgh, Cincinnati and St. Louis R. R Co. v. Thompson, 56 Ill. 138. RAILWAY LIABILITIES. 15 7 the course of a lifetime of average length. Awards be in reference to two persons living in the same locality, and shipping at the same station, unless, as I)efore stated, a satisfactory reason can be given for liscriluination between the points of shipment, and such a reason, in the case supposed, it is not very easy to conceive. ~ 462. So, too, in the case before us. Thle resident of iBloomington, who sends to Chicago for a car of lumber, is charged by the company at the rate of five dlollars per thousand feet for transportation. The resi(lent of Lexington, who orders the same lumber at the same time, is charged five dollars and sixty-five cents per thousand feet for a transportation sixteen miles less in distance. Is there not here, unless an explanation can be furnished by the company, an unjust discrimination between individuals, quite as much within the prohibition of the principles of the common law, as would be an unjust discrimination between individuals of the same town? We have endeavored to show on what a firm foundation rests the constitutional power of the legislature to prohibit unjust discrimination in railway freights, even conceding what is claimed for their charters as contracts. ~ 463. We should, however, be doing the counsel 268 RAILWAY LAW IN ILLINOIS. for appellant an injustice, if it were to be inferred, from what we have said, that they distinctly assert a right, on the part of the company, to make unjust discriminations. We understand them to concede, in tile conclusion of their argument, the power of the legislature to prohibit such discriminations, but they insist that no discrimination is unjust, if the person against whom it is made is not himself charged an unreasonable rate.' They therefore averred, in their plea to the information, that the charges for freight to Lexington were, in fact, reasonable, and those to Bloomington were unreasonably low. But in our opinion, if the act of the legislature had directed its penalties, as it should have done, not against all discriminations, but only against unjust discriminations, and had made tkat the issue to be -tried, it would have been no answer to aver, in the plea, that the larger rates for the less distance were reasonable rates. That would have had only an argumentative bearing upon the issue to be tried, to-wit: the existence of an unjust discrimination I In other words, the right to provide a general remedy is denied. Practically, the difference is all important. If each case had to be acted upon separately, then no feasible remedy for extortion would be possible, and statutory aid would be inoperative and void. It is exceedingly difficult to allow any discrimination without shutting the door against any effective means of reaching the evil, and it is by no means certain that discrimination under any circumstance is allowable. If it would not directly lead to injustice, it might indirectly, and while the law of tort allows no compensation for " consequental damages," it is entirely competent for law to guard the approaches to wrong and danger. For example, quarantine laws are based on the assumption that all vessels must be treated alike, and that any discrimination would be unjust. This subject will be furtthediscussed in the next chapter. CIIICAGO AND ALTON CASE. 269 between neighboring towns. What is a reasonable rate of freight over a railroad is at best a mere matter of opinion, depending on a great variety of comnplicated facts, which but few persons could intelligently investigate, and which it would be wholly in the power of the company to furnish or withhold. RIailroad experts might be produced, who would testify that, in their opinion, the rate to Lexington, in the present case, was a reasonable rate, but the fact that a less rate was charged for the greater distance to Bloomingtonl, it the difference was a permanently established, and not a casual difference, and if it could be explained only by the fact that there was a competing line at one place and not at the other, mnight be well accepted as conclusive proof that tile rate to Lexington was not a reasonable rate. The only issue to be made, under a law properly framed, would be, whether there was an unjust discrimination or not. If on the trial of such an issue the prosecutor proves a permanently established discrimination like that disclosed by the present record, and the company can show no other reason for it than the existence of a competing line at the favored point, the defense must be held unsatisfactory, notwithstanding witnesses nay testify that they believe. as a matter of theoretical opinion, that the rates to Lexington are reasonable. They cannot be reasonable, and the discrimination must be unjust, if the lesser rates for the greater distance have been established mrerely because tile company has ceased to exercise at that point a plractical monopoly. It cannot be supposed that either of the competing lines would establish a permanent rate of charges upon a scale that would not furnish a remunerative profit. The rates to 270 RAILtWAY LAW IN ILLINOIS. Bloomington wotald be established under the influence of a fair competition, which, by the ordinary laws that govern commerce, might be relied upon as establishing, a rate not unreasonably low. At Lexington, the rates would be established by the uncontrolled discretion of tile company, and it should not cause surprise if they were fixed unreasonably high. If the rates are not unreasonably low at Bloomin gton, they are unreasonally high at Lexington. It they are unreasonably low at Bloomington and at all other points touched by competing lines, is it not certain that the company will indemnify itself by charcgin( at the stations where there is n. colupetition, a rate unreasonably high! And will not a discrimination arising solely from suith cause be necessarily an unjust and injurious discriluination, as to all persons shipping or receiving freigllts at the non-competing stations? ~ 464. If Lexington is a town where a considerable business is done, it is evident that this discrirnination of rates, if permanently established, will diminisl its business and check its growth. It was never intended or expected that these corporations shouldl use their power to benefit particular individuals, or build up particular localities, by arbitrary discriminations in their favor that must cause injury to otllel persons or places engaged in. rival pursuits or occupying rival positions. It is in vainl to say, in defense of such discriminations, made without just cause, tilmt the rate of charges against the injured person or locality, is a reasonable rate, and therefore no injury is done. An injury, as a matter of fact, is committedl in the manner just suggestecl, and the legislature i1ai" the right to require the corporation to show a sufficient CIICAGO AND ALTON CASE. 2 1 cause for the discrlimination whlichl produces the injury, and it cannot be permitted to evade the issue by raising the speculative inquiry as to whether the rates cllarcfe(l against the inrjured plarties or localities are lnot, after.all, reasonable rates. Even if reasonable, whlen regarded in reference to the profit upon the capital invested in the road, they are not reasonable in the true sense of the term, if no satisftctory reason can 1be( given for chlarging less rates for the same or for greater services reiidered to persons doing lbusiness with tllc comlpany at neighllboring stations. From what we have said, it will be seen that the olbject of the law under wvhich these proceedings were instituted, was, in our opinion, clearly within the power of the legislature. Tlhe law was intended to p)rescribe the methods by wvlich to enforce a common law duty that the railways of the state voluntarily assume whenever they eexrcise the functions of a comn-lon carrier, and it is in no1 Irespect a violation of their charters. It remains to be considered, whether there are defects in the details of the lanw which need to be amelncded, before it can be( executed. We are of opinion that there are snoel lefects, but they are susceptible of easy amendment. ~ 465. The discrimination forbidden by the comnlolt law to common carriers, is an unjust or unreasonable discrimination. The provision in our new constitution, is also against unjust discrimlination. It is in tlie following Pwords: "The general assembly shllall pass laws to correct abuses and prevent nlujust discrimintation and extortion in the rates of freight and passenger tariffs on the different roads in the state, and enforce such laws by adequate penalties, to the extent, if necessary for that purpose, of forfeiture of their property 2 2 RAILWAY LAW LN ILLINOIS. and franchises."l This provision, expressly directing the legislature to pass laws to prevent'unjust discrimination, is a recognition of the palpable fact that there may be discriminations which are not unjust, and, by implication, it restrains the power of the legislature to a prohibition of those which are unjust. That was, undoubtedly, the object of the legislature in passing the existing law. This is clearly shown by its title. But the act itself goes further.2 It forbids any discrimination whatever, under any circunmstances, and whether just or unjust, in the charges for transporting the same classes of fieight over equal distances, even tlough moving in opposite directions, and does not permit the companies to show that the discrimination is not unjust. The mere proof of the discrimination makes out a case against the railway companies, whichl they are not allowed to meet by evidence showing the reason or propriety of the discrimination; and then, upon this sort of ex parte trial, imposes as a penalty fbr the offense a fobrfeiture of the fianchise, which would often be equivalent to a fine of millions of dollars. The object of the law is commendable, but such a: proceeding, to be followed by such a penalty for the first offense, cannot be sustained. It could only have beein authorized through the inadvertence of tile legislature. The law, as it now stands, makes an offense out of an act wvlhich might be shown not to be an'Art. xi, sec. 15. o The constitution makes the legislature judge of what constitutes unjust discrimination. Should the final verdict of statutory law be that any discrimination is indirectly, if not immediately, unjust, that finding would be final on the principle of the constitution and of this very decision. CIHICAGO AND ALTON CASE. 273 offense, but an exercise of a wise discretion, really beneficial to the people of the state, and while debarring( the companies froln all right of explanation, confiscates their frianchises upon the first conviction. ~ 466. The legislature cannot raise a conclusive presumrnption of guilt against a natural person from an Iact that may be innocent in itself, taking from him thle privilege of showing the actual innocence or propriety of the act, and confiscating his property as a penalty for the supposed offense. Those provisions of our constitution which forbid tile deprivation of life, liberty or property, except by due process of law, and which guaranty the right of trial by jury " as heretofore enjoyed," and the right in all criminal prosecutions to appear and defend in person and by counsel, would all be violatdd by such a law. These provisions, it is true, are designed to apply only to natural persons; but artificial persons must be permitted to invoke the spirit of justice which prompted them, so far as m.ay be necessary to protect their property and franchises against the operation of a law that substantially condemrns without a trial. ~ 467. That the naked fact that a railway company charges a larger sum for transporting fieight of the stnrle class over a given distance than it is charging i)r the samle distance over another part of its road, or ii~ the opposite direction., is not, of itself, conclusive evidence of an unjust discrimination, will be manifest ol a moment's consideration. Take for instance the road of the appellant, with one terminus at Chicago arnd the other at East St. Louis. At one season of the year more fieights are moving from Chicago towards.East St. Louis than in the opposite direction. The 18 274 RAmILwAY LAW IN ILLINOIS. consequence, of course, is, that the supply of empty cars at the latter point will be in excess of the demand. There is a water route between these points which also touches several intermediate stations upon the road. Now, unless the railway company is permitted, under such circumstances, to induce shipments over its line by lowering its freights, it is evident that a portion of its cars will return empty. This would, of course, necessitate a higher charge for freight running towards St. Louis than it would be necessary to impose if return freights could be secured by lowering the rates on the return trip. To forbid the company to lower the rates of return freight would thus benefit no one, and would work an injury both to the company and to the people along the line. At other seasons of the year, the larger amount of freights is moving in the opposite direction, and then the operation must be reversed. We give this illustration for the purpose of showing that a difference of price for the same distance of transportation is not necessarily an unjust discrimination, and that any law must be fatally defective which infers guilt as a conclusive presumption from the mere fact of difference of rates without permitting the companies to show why the different rates were adopted. ~ 468. We may so far take judicial notice of the course of public affairs in this state, as to say, that the real abuse which the legislature was endeavoring, by this act, to prevent, was not such proper discriinination as those we have just been supposing; but the practice, which had become general among the railways, of charging a higher compensation for carrying the agricultural products of the state to market when shipped at a station where there was no competing CHICAGO AND ALTON CASE. 275 line, than when shipped where there was such competition, although the distance over which the freight was carried in the latter case might greatly exceed the distance in the former. The same system also prevailed in regard to the freight from Chicago to points in the interior, although probably not felt to be so great an evil. For discriminations of this character, when adopted as a system, we can certainly perceive neither justification or excuse, but, nevertheless, it is the right of a company, when prosecuted on the ground of unjust discrimination, to offer what evidence it can by way of explanation. It might, for ex:anple, show in the present case, that the lumber shipped to Lexington had caused a greater expense in loading or unloading than that shipped to Bloomington. This muay not be a very probable defense, but defenses may, nevertheless, exist, and if they do, the companies should not be deprived of the right to make them. ~ 469. Befire this act can be enforced. it should be so amended as to correspond with the requirements of the constitution, by directing its prohibitions against Tunhjust discriminations. It should make the charging of a greater compensation for a less distance or for the same distance, merely prima fccie evidence of unjust discrimination, instead of conclusive evidence, as it now is; and it should give to the railway companies the right of trial by jury, not only on the fact of discrimination, but upon the issue whether such discrinlination is just or not. ~ 470. There is another feature in this law to which we deem it our duty to advert. As the act now stands, a forfeiture of all franchises is the only penalty that can be imposed upon a company in a prosecution 276 RAILWAY LAW IN II.N'OIS. instituted on behalf of the people, and it is imposed for the first offense. This, as already remarked, in some cases would amount to a fine of millions of dollars. Is not this a violation of the spirit of that constitutional provision which says, in terms, that "all penalties shall be proportioned to the nature of the offense? " Is it not also a violation of the spirit of the very clause of the constitution under which this act was framed, and which requires the legislature to pass laws to prevent unjust discrimination and extortion by railroad corporations, "and enforce such laws by adequate penalties, to the extent, if necessary for that purpose, of forfeiture of their property and franchises? " Would it not be better to enforce the law bIy a series of considerable and increasing fines, before inposing the final penalty of forfeiture? A, law admitting of but one penalty, and that of the hardest possible character, twill necessarily be subjected by the courts to close criticism and a strict construction.' ~ 471. The English parliament passed a law in 1S54 prohibiting the giving of undue or unreasonable preferences or advantages by railway companies in the The justice of this stricture is conceded. The law of 187'3 wcent to the other extreme of omitting any reference to for. feiturc, an evident oversight, and one which will probably be remedied at an early day. Indirectly it fixes the limit. Twentylive thousand dollars is the extreme limit of damages. In the event that even this penalty should fail to have the desired restraining effect, the court would be in duty bound to inflict the final punishment contemplated by the constitution. An omission on the part of the general assembly to exercise its full authority would not relieve the court from obligation to consider whether the circumstances of the case demanded the extreme punishment or not. That penalty would be just in case the gffender had shown that milder treatment was ineffective. CIICAGO AND ALTON CASE. 277 management of their business. Under this act various cases have arisen in the English courts, which have lbeen citedl by counsel. It is unnecessary to comment upon them. They hold, as we do, that a discrimination is not necessarily an unjust discrimination; that is to be determined upon the evidence. ~ 472. The opinion of the court is, that while the legislature has an unquestionable power to prohibit unjust discrimination in railway freights, no prosecution can be maintained under the existing act until amended, because it does not prohibit unjust discriimination merely, but discrimination of any character,:and because it does not allow the companies to explain the reason of the discrimination, but forfeits their franchise upon an arbitrary and conclusive presumption of guilt to be drawn from the proof of an act that might be shown to be perfectly innocent. In these particulars, the existing act violates the spirit of the constitution. 1 The judgment of the circuit court ousting the appellant of its franchises, must therefore ble reversed.'It is a settled principle of jurisprudence that a decision setting aside certain features of a law as unconstitutional leaves the other features of the statute in force. In this case there was nothing of any consequence left of the act after this decision. CHAPTER X. CONSTITUTIONAL LAW. I. CONTRACTS AND CHARTERS. II. COMMERCE BETWEEN STATES BY BAIL. III. LEGISLATIVE AND JUDICIAL AUTHORITY. I. CONTRACTS AND CHARTERS. % 473. Constitutional limitations. 474. Language of the constitution. 475. England and the United States. 476. Judicial authority in this country. 477. Definitions of "contract." 478. The Dartmouth College case. 479. Origin of the college. 480. New Hampshire legislation. 481. The issue joined. 482. Counsel and court. 483. Latest authoritative statement of the law declared in that case. 484. A legal axiom. 485. Illinois and New Hampshire legislation not analogous. 486. Supposable analogies. ~ 473. In no government that exists, or that has existed, is the opinion of the hour more effectively curbed than in the United States. Our constitutional system is a constant restraint. The past guides and checks the impulses of the present. The people do indeed rule. but popular sovereignty is a limited monarchy. In England whatever legislation parliament ordains the crown sanctions, and the courts enforce, unquestioningly. With all the British deference to the (278) CONSTITUTIONAL LAW. 279 past there is only one legal way to escape the enforcenent of an act of parliament, and that is to repeal it. Under our system of constitutional government it is always competent for the courts to question the validity of a statute. For this reason the present treatise demands an inquiry into the constitutionality of the railway policy of Illinois. ~ 474. The main reliance of the enemies of this policy for its judicial overthrow is the clause of the national constitution, which reads: "iNo state shall pass any law impairing the obligations of contracts." 1 In this brief sentence is contained the most characteristic feature of our government. ~ 475. In the republics after which our form of government was modeled, and under the common law, which is the foundation of all jurisprudence, both in this country and in England, we find suggestions of the need of such a prohibition, rather than proofs of its utility. The history of English rule in America is, in its general legal outlines, the history of contracts made only to be broken. Among the many charters granted and then violated was one ceding a vast area, including the entire state of Illinois, to a company composed of Francis Bacon, Oliver Cromwell and about fifty other British subjects. A few years later the contract was not only "impaired," but wholly abrogated. IIad every commercial and real estate contract made by the English government been observed in good faith not an element of England's prosperity wxould have survived in freedom. It is equally true that had it not been for the bad charter faith of the English government the thirteen American'U. S. Constitution, art. i, sec. 9. 280 RAILW, AY LAWV IN ILLINOIS. colonies would have remained loyal. Fresh friom a war provoked by impairment of the obligations of contracts, the founders of this republic were impressed with the importance of governmental good faith. Never having had experience of the peril of allowing men in power to bind their successors and the country forever, they had no very lively sense of the danger of collusion between public officers and corrupt cabals. ~ 476. It would be difficult to balance the good and evil of the two systems-the British and the American. Absolute popular sovereignty, restrained only by habitual reverence for the past, is liable to gross abuse; and so are constitutional limitations. The interpretation of the constitution is left, in its ultimate and binding form, to the courts, and there is more or less danger that personal opinion will usurp the place of organic law, consciously or unconsciously. ~ 477. The term "contract" has been frequently defined by the courts. Chief Justice MAsISILALL's definition in the Dartmouth College case is, " an agreement in which a party undertakes to do or not to do a particular thing." 1 His successor, Chief Justice TANEY, explained a contract to be "an agreeml:ent between two or more parties to do or not to do a particular thin." 2 Parsons, in his work on contract, calls it, "an agreement between two or more parties for the doing or not doing of some specifiea thing." 3 These definitions are identical. Blackstone, and after him Kent, are more complete. They say, "a contract is an agreement upon sufficient consideration to do or 4 Wheaton, 197. 2 11 Peters, 420, 572. 91 Parsons on Contracts, 5. CO:NSTIUTIONAL LAW. 281 not to do a particular thing." 1 ltlr. i STORY is still more explicit: "A contract is a deliberate agreemnent between competent parties upon a legal consideration to do to abstain from doing some act." 2 4 478. The question involved in the clause of the constitution already quoted, namely, whether a charter is or is not a contract, was discussed, and decided in the affirmative, in the Dartmouth College case. The discussion was so thorough and the decision so able, and accordant with the letter and purpose of the constitution, that the correctness of its deductions have not been authoritatively disputed. The only. controversy admissible pertains to the application of the doctrine therein laid down. No decision more eminently just was ever rendered; no decision was ever so persistently misrepresented and pervented. 57 479. In the year 1769 Dartmouth College was created by charter. It grew out of an attempt to educate the Indians John Eliot, the great apostle of mioderni urssions, the illustrious founder of a family preeminently honorable in the annals of the country, had undertaken the civilization of the Indians, and Eleazor Wheelock supplemented Eliot by establishing a school for their training. It was first started at Lebanon, Connecticut. It was afterwards thought best to remove it to what is now Hanover, New Hlampshire, where it received a land grant subsidy of 44,000 acres. A liberal fund was raised in England for the institution. Lord Dartmouth gave more than any one else, and after him the college, as it now became, was named. A board of trustees was organized in accord-'2 Blackstone, 446; 2 Kent, 449. Story Contr. sec. 1. 28 RAILWAY LAW IN ILLINOIS. ance with the provisions of the charter, with Lord Dartmouth president of the board. ~ 480. Nothing worthy of note in this connection occurred in the history of the college until 1815. At that time the institution was presided over by John Wheelock, son and immediate successor of the first president. His administration gave some dissatisfaction, and the trustees removed him. The year following the legislature of New Hampshire took part in the controversy by passing statutes legislating the old board of trustees out of office, and creating a new corporation. Among other things this legislation made the governors of:New IHampshire and of Vermont exofficio members of the board of management. In addition to this entire change in the control of the institution its name was changed from Dartmouth College to Dartmouth University. Some other alterations hardly less fundamental were made. ~ 481. The immediate occasion of litigation was the demand by the new board of trustees upon the old board for the records of the college. There was no issue of fact raised. The controversy was over the validity of the state legislation. The old board of trustees denied the right of the state government to enact such legislation, basing the denial upon the clause of the constitution of the United States which has been quoted. The state courts sustained the validity of the legislation. The case reached its final adjudication in the supreme court of the United States, to which tribunal it was appealed on the strength of another clause of the constitution, which gives the federal judiciary jurisdiction over all cases in law and CONSTITUTIONAL LAW. 283 equity arising under the constitution of the United States.' ~ 482. Daniel Webster, for the old board, made the great argument of the case. With him were associated as counsel Jeremiah Smith and Jeremiah Mason. Opposed to them were William Wirt, William Pinkney and John Holmes. Messrs. Wirt and Pinkney were eminent lawyers. The names of both of them appear in the list of the attorney generals of the United States. Chief Justice MIAnSHAI.L was then on the bench, and ~Mr. Justice STORY one of the associate justices at the time. ~ 483. The legal points of the Dartmouth college case hlave been fiequently restated by the courts. The latest statement thereof by the supreme court of the United States was in the case of lXiller v. Tlie State of Pennsylvania. The decision in this case has been rendered, but not officially published. That summary of the law as established in this important case is as follows, viz.: "Much consideration was given to the question under consideration in the case of Dartmnouth College v. IVoodward, 4 Wheat. 175, in which the right of the state was denied to amend the charter granted to the college by the crown before the revolution, and to modify and restrict the same without the consent of the trustees under the charter. Four propositions were decided by the court in that case, the opinion being given by the chief justice: 1. That the charter was a contract within the meaning of that clause of the constitution which ordains that no state shall pass any law impairing the obligation of contracts. 2. That the charter was not dissolved by the United States Constitution, art. iii, sec. 2. 284 RAILWAY LAW IN ILLINOIS. revolution. 3. That the acts of the state legislature altering the charter in a material respect, without the consent of the corporation, was an act impairing the obligation of the charter, and was unconstitutional and void. 4. That the college, under its charter, was a private and not a public corporation." ~ 484. This latest statement has the merit of brevity, without the omission of a single point, and the principle- therein laid down are now axianmi and need no argumentation. The reasoning of the court in that case is regarded as one of the masterpieces of judicial literature. ~ 485. No legislation, in Illinois, at least none relating to railroads, is at all analogous to the New Hampshire legislation in regard to Dartmouth college. It is easy to suppose an analogous case. ~ 486. There is one railroad in the state - the Illinois Central-which was built in part by a land subsidy and largely by English capital, thus resembling Darmouth college. Supposing the general assembly should abolish the existing board of directors; create a new one, of which the governors of Illinois and of Iowa should be enx offtcio members; change the name to Prairie Central railroad company; compel the construction of a double track from Chicago and Dunleith to Cairo. ~Tfat would be "impairing the obligations of contracts," within the contemplation of the constitution of the United States as defined and applied by the court in the Dartmouthcollege case. Again: had the legislature of New Hampshire passed a general law for the regulation of colleges, to prevent thie abuse of rights and privileges enjoyed under their charters, said legislation being simply declaratory of CONSrITUIIONAL LAW. 285 common law principles as applied to public institutions of learning, that would have been legislation analogous to Illinois railway law, as found in the constitution and statute books of the state. II. COMM3ERCE BETWEEN STATES BY IRAI,. ~ 487. Language of the constitution. 488. Post roads; congress. 489. Immediate origin of the federal constitution. 490. Local commerce; bridges. 491. Police power of the state. 492. The question raised by Illinois legislation. 493. Railway and warehouse board; circular to the public. 494. The subject stated. 495. The questions arising therefrom. 496. Statute applies to through freight 497. Reasonable reduction allowable. 498. Different railroads on line. 499. One thousand mile tickets. 500. Reading Co. v. Pennsylvania. 501. Latest applicable United States Supreme court decision. 502. National sovereignty asserted. 503. Its limitations herein defined. 50-1. The question still open. 505. REDFIELD on the subject. ~ 487. One other feature of the national constitution demands consideration, namely, that relating to the means of commercial intercourse. It is contained in two clauses. The first reads:'"The congress shall lhave power to regulate commerce with foreign nations, and among the several states and with the Indian tribes."l The other clause referred to reads: Thle congress shall have power to establish post offices and post roads."2 United States Constitution, arlt. i, sec. 8, clause 3.' Ibid. clause 7. 286 RAILWAY iAW IN ILLINOIS. ~ 488. The clause last quoted gave rise to a great deal of discussion in congress before the days of railroads. The contest was over the construction of the term "establish." It was contended by Benton and others that it meant simply the designation of routes by which the mails should be conveyed. STORY, in his great work on the constitution, shows conclusively that the right to construct post roads is vested in congress. Its exercise has never been attempted in the case of railways, although the mail service is mainly conducted by rail. The objection to its exercise rests on a question of expediency, rather than an interpretation of the constitution. The nearest approach to an exercise of this reserved right, since the construction and final abandonment to the states of the Cumberland turnpike, was in the passage by congress of a general railway incorporation act. That statute applies, however, only to territories. It has never been called into operation, nor is it likely to be.1 489. The first clause in the foregoing quotation from the constitution of the United States is suggestive of the origin of the present organic law of the nation, in distinction from the articles of confederation. The evils of a Union in which each part was greater than the whole, in point of actual authority, was first felt by the commerce of the country. Intercourse with foreign nations and between citizens of different states was seriously hampered by the sovereignty of the state, and the necessarily diverse exercise of that sovereignty. At the suggestion of the legislatures of 1 For a discussion of this subject of post roads, see 2 Story on the Constitution, chap. 17; Benton's Thirty Years in the Senate, vol. ii, 167. CONSTITUTIONAL LAW. 28 7 the states of New York, Pennsylvania, Virginia, New Jersey and Delaware, a commercial convention was held at Annapolis, Maryland, commencing Sept. 11, 1786. Tile states named were represented, and no others. That convention, after a session of three days, embodied its conclusions in a report unanimously adopted, in which they said: "Deeply impressed, however, with the magnitude and importance of the o)bject confided to them on this occasion, your cornmissioners cannot forbear to indulge an expression of their earnest and unanimous wish, that speedy measures Inay be taken to effect a general meeting of the states in a future convention, for the same and such other purposes as the situation of public affairs may be found to require." The report concluded with the reconmmnendation that all the states appoint commissioners, "to meet at Philadelphia on the second Monday in May next, to take into consideration the situation of the United States." ~ 490. No little discussion was had in the convention over the phrasing of the commercial clause of the constitution. It does not include any commerce which is entirely within the limits of one state. Every railroad forms a link in a national chain, and a shipment from one point in a state to another point in the same state may, ultimately, go through several states; but it is none the less true that the strictly internal cornlnerce of a state is under state, rather than national control.' This rule has one generic exception: The bridging of a navigable river is not allowable without' Gibbons v. Ogden, 9 Wheat. 194; Brown v. Maryland, 12 Wheat.. 446; Veazie v. Moor, 14 Howard, S. C. iR. 568. 2S;S RAILWAY LAW LN' ILIffNOIS. permission from congress.1 In some states this feature of national sovereignty is denied; but it is distinctly recognized in Illinois. ~ 491. The completeness of congressional authority in some cases does not forbid the exercise of state control over all roads in numerous respects, provided state legislation does not conflict with the authority vested in and exercised by congress. Cooley on Constitutional Limitations cites a large array of cases to show that the state may exercise police authority. Yerv imany of these citations are from the Illinois reports. Jeremy Bentham's definition of police power restricts it to a " system of precautions, either for the prevention of crime or calamities." In applying the doctrine to state control of railroads, Chief Justice RE:DFIELD adds: " there is also the general police power of the state, by which persons and property are subject to all kinds of restraints and burdens, in order to secure the general comfort, health and prosperity of the state." 2 IIaving given this enlarged definition of police power, the salne learned jurist immediately added: " of the periect right in the legislature to do which no question ever was, or upon acknowledged general principles, ever can be madcle, so far as natural persons are concerned. And it is certainly calculated to excite surprise and alarm that the right to do the same in regard to railways should lbe made a serious question." 3 The Tlhe Daniel Ball, 10 Wallace, 558; Pennsylvania v. Wheeling and Belmont Bridgce Co. 13 How. 518. 2 Thorpe v. Rutland and Burlington R. R. Co. 27 Vt. 140.;: In support of this doctrine of state control Cooley quotes, among others, Galena and Chicago U. R. R. Co. v. Loomis, 13 Ill. 548; Ib. v. Appleby, 28 Ill. 283; Suydan v. Moore, 8 Barber, 358; Fitchburg R. v. v. G'd Junction R. R. and Depot Co. 1 Allen, 552. CONSTITUTIoNAL LAW 289 reports of the different states and of the United States show that the police authority of the state has irequently been challenged, l:ut alwayrs maintained, the only difference being in the range of meaning, given to the term "police power." ~ 492. The Redfield definition: of tile term includes measures to prevent extortionate charges and unjust discrimination. The question on this subject remaining to be considered is this: Does the righllt extend to through freight, or is it limited to freight starting from a point within the state, and destined to a point without the same state? This issue of law has never been directly raised in the supremne court of. Illinois. Its. immediate pertinence is due to inquiry growing out of the distinctive railvay legislation of Illinois, as witnesses the following official circular. ~ 493. The Illinois railway law of 1873 went into effect July 1, and on the same day the Railroad and Warehouse Commissioners issued a circular setting forth their understanding of the statute in several relations, but more especially in its relations to interstate commerce. It reads as follows,? iz.: ~ 494. State of Illinois, Office of Railroad and Warehouse Commissioners, July 1, 1873. —To the Public: Some important questions having arisen under the act of MIay 9, 1873, to prevent extortion and unjust discrimination, we deem it proper to make known to the public our construction of certain portions of the act. W7e would first (lirect attention to the first section, which declares that if any railroad corporation doingl business in this state shall charge or receive more than a fair or reasonable rate of toll or compensation for the transportation of passengers or 19 290 RAILWAY LAW IN ILLINOIS. freight, the same shall be deemed guilty of extortion, and upon conviction be punished by specific penalties. The avowed object of the statute is to prevent extortion as well as unjust discrimination. In making their rates of charges conform to the requirements of the third section, defining what would be prizma faccie evidence of unjust discriminations, the railroad conmpanies must not ignore the fir3t section forbidding extortion. In our judgment the rates of charges prior to this date have been ill the main unreasonably higllh, and any increase thereof would be a clear violation of the law. ~ 495. The following are the questions above referred to: 1. Does the act apply to through freights as well as local freights? 2. Does the act admit of ally tliscrimination in freight tariffs based upon the quantity shipped; or must the railroad companies, to comply with the act, adopt one uniform rate per hundred pounds, per ton, or per car load, regardless of the quantity or the amount of the shipment? 3. Where two or more railroads operated by different companies -are so connected as to form in fact one continuous line, and shipments are made from a point on one line to a point on the other, may the charge be at the rate applicable to the distance over both roads, or at the aggregate of the local rates on each road? 4. Can railroad corporations hereafter issue excursion tickets? After due consideration of the questions we have arrived at the following conclusion: ~ 496. 1. The provisions of the act are applicable as well to through as to local freights, so far, at least, ias to require that less should be charged for the transportation of domestic or local freights firom one point CONSTITUTIONAL LATW. 291 to another within this state, than the sum charged ior the transportation of through or foreign freights the same distance within the state, and for its transportation from or to a point without the state. Thus, tile charges from a point west of the state to a point within the state must not be the same as, or less than, the charges from the west line of the state over the same road to the same point of destination. So the clarges from a point within the state to a point east of the state must not be the same as, or less than, the charges from the same point of departure over the same road to the east line of the state. So, also, the charges from a point west of the state to a point east of the state must not be the same as, or less than, the charges over the. same road from the west line to the east line of the state. The general principle is that the charges for any distance within this state must not be the same or greater than the charges for a greater distance. ~ 497. 2. A reasonably less rate may be charged per one hundred pounds, per ton, or per car, where large amounts of freight are shipped by the same person, than where small shipments are made, without violating the act. Discriminations of this character, as upon fair business principles, were just and reasonable before the passage of the act; are not prohibited tllereby, but seem to be recognized therein by the words "like quantity" frequently occurring in the third section of the act. ~ 498. 3. Where two or more railroads are owned and operated by different companies, and are connected so as to form in fact one continuous line, and either of such companies receives freight upon its road to be 92 RAILWAxY LAW IN ILLINOIS. shipped to some point upon the other road, the same may be treated for purposes of such shipment as one entire line, and the same rate may be charged as if one company owned the road upon which the fieight was shipped for the entire distance, instead of charging the aggregate of the local rate on each road for the distance shipped thereon. ~ 499. 4. The act expressly provides that nothing therein contained shall be so construed as to prevent railroad corporations from issuing commutation, excursion, or one thousand mile tickets, as the same hitherto have been issued by such corporation. IT. D. CoOKn, I). A. BROWN, JoHN IM. PEARSON, C(ommnissioners. ~ 500. The limitation of state control over railway commerce was discussed in some of its phases by the supreme court of the United States in the case of lReading 1?. I]. Co. v.. ennsylvania. The right of a state to tax gross receipts of railroad companies was affirmed. The receipts may be made up in part of )business belonging under the designation of commerce between the statesi but the tax would not, on that account, be a regulation of inter-state commerce.1 In the same decision the court held that a statute of a state illllpoing a tax upon freiglt, taken up within the state and carried out of it, or taken up without the state and brought within it, is repugnant to that provision of the constitution of the United States whiclh ordains2 that "congress shall have power to regulate'15 Wall. 248.' Ibid. 232. CONSTITUTIONAL LAW. 293 commerce with foreign nations and among the several states, and with the Indian tribes." ~ $501. This subject was passed upon again by the same court in another, yet substantially the identical case,'Philladelphia andl eading W. W. C(o. v. Penn-.sylvania. The validity of the tax mentioned in the foregoing section was in issue. Omitting so much of the opinion as is irrelevant in this connection, we have the following as the latest utterance upon the subject of commerce between states by the only court which is competent to make an authoritative declaration thereupon: ~ 502. If, then, this is a tax upon freight carried between states, and a tax because of its transportation, and if such a tax is in effect a regulation of interstate commerce, the'conclusion seems to be inevitable, that it is in conflict with the constitution of the United States. It is not necessary to the present case to go at large into the much debated question whether the power given to congress by the constitution to regulate commerce among the states is exclusive. In the earlier decisions of this court, it was said to have been so entirely vested in congress, that no part of it can be exercised by a state. Gibbons v,. Ogden, 9 Wheaton, 1; Passenger Cases, 7 HIow. 283. It has, indeed, often been argued, and sometimes intimated by the court, that so far as congress has not legislated on the subject, the states may legislate respecting inter-state commerce. Yet, if they can, why may they not add regulations to commerce with foreign nations beyond those made by congress, if not inconsistent with them, for the power over both foreign and interstate commerce is conferred upon the federal legisla. 291 RAILfWAY LAW IN ILLINOIS. ture by the same words. And certainly it has never yet been decided by this court, that the power to regulate inter-state, as well as foreign commerce, is not exclusively in congress. Cases that have sustained state laws alleged to be regulations of commerce among the states, have been such as related to bridges or dams across streams wholly within a state, police or health laws, or subjects of a kindred nature, not strictly commercial regulations. The subjects were such as in Gilma~n v. Philadelphia, 3 Wall. 713, it was said, "can be best regulated by rules and provisions suggested by the varying circumstances of different localities, and limited in their operation to such localities respectively." However this may be, the rIule has been asserted with great clearness, that whenever the s'ubjects over which a power to regulate commnerce is asserted, are in their nature national, or admit of one uniform system or plan of regulation, they may justly be said to be of such a nature as to require exclusive legislation by congress. Cooley v. Port Wardcens, 12 IHow. 299; Gilmaan v. Pthiladelphia, supra; Crandall v. ]The State oj N/evada, 6 Wall. 42. Surely transportation of passengers or merchandise through a state, or from one state to another, is of this nature. It is of national importance that over that subject there should be but one regulating power, for if one state can directly tax persons or property passing through it, or tax them indirectly by levying'a tax upon their transportation, every other may, and thus commercial intercourse between states remote from each other may be destroyed. The produce of western states may thus be effectually excluded from eastern markets, for though it might bear the imposi CONSTITUTIONAL LAW. 295 tion of a single tax, it would be crushed under the load of many. It was to guard against the possibility of such commercial embarrassments, no doubt, that the power of regulating commerce among the states was conferred upon the federal government. A.,'* - -- ~ 503. A state cannot tax persons for passing through or out of it. Inter-state transportation of passengers is beyond the reach of a state legislature. And if state taxation of persons passing from one state to another, or a state tax upon inter-state transportation of passengers is unconstitutional, a fortiori, if possible, is a state tax upon the carriage of merchandise from state to state, in conflict with the federal constitution. Merchandise is the subject of commerce. Transportation is essential to commerce; and every burden laid upon it is pro tamto a restriction. Whatever, therefore, may be the true doctrine respecting the exclusiveness of the power vested in congress to regulate commerce among the states, we regard it as established that no state can impose a tax upon freight transported from state to state, or upon the transporter, because of such transportation. But while holding this, we recognize fully the power of each state to tax at its discretion its own internal commerce, and the franchises, property, or business of its own corporations, so that inter-state intercourse, trade or comnmerce, be not embarrassed or restricted. That must remain free. t ~ 504. This opinion comes the nearest to being This opinion was delivered by Mr. Justice STRONG'. The court was divided. For the full text, see Chicago Legal News, vol. v, No. 45. 296 RAILWAY LAW IN ILLINOIS. apposite to the question of through freight, and the regulation by a state of the charges for its transportation, of any decision yet rendered. The exact limitation of state control over inter-state commerce will not have been authoritatively defined until the tribunal of last resort has rendered a decision in a case arising under the peculiar legislation of Illinois, or simflar legislation in other states, should there be such leegislati.on elsewhere.; 505. The lion. IsAAc REDFIELD is so far an authority on railway law that his opinion on this subject is given. It is as follows, viz.:I "The fact that the entire subject of regulating all commerce among the different states, including all the means and appliiances by which it was carried on, was committed to congress, and that, thereafter, the states were to have no concurrent action in the regulation of the same, would seem to reduce the question of congress having the power of regulating inter-state railway traffic to the single inquiry, whether it forms any portion of the commerce of the country, which requires to be regulated at all. Those who assume to argue that congress has no power to regulate the traffic upon these extended lines of railway reaching from one end of the Unionl to the other, must, if they would meet the question fairly, either say, the traffic on these extended lines of' railway, amounting to many millions annually, probably ten times as mnuch as the entire commerce of the country at the time of the adoption of the constitultion, is not commerce at all, or, if it be, is not subject to any regulation or control whatever. For it is certain the states have neither the power or capacity to regu-'IRedfield, vol. 1, p. 723, fifth edition. CoNSTITU'IONA.L LAW. 297 late, to any purpose, or with any efficiency, this interstate railway traffic. It must then come nnder the control of congress or be left to its own devices and imnpulses, an experiment never yet tried in any other country. * * It will not be important here to enumerate the exceptions to the regulation of comInerce by congress. It does not, of course, extend to that commerce which is exclusively within the limits of a single state; which begins and ends within the same state.' Ience, a state law conferring.an exclusive right to the navigation of the upper waters of a river wholly within the limits of such state, and separated fiom tide water by falls, which are impassable for purposes of navigation, and not forming a continuous line of commerce between two or more states, or with a'foreign country, is not Iunconstitutional.2 And it seems to have been considered, by the later decisions, that so long as congress wholly abstains from all attempts to regulate any particular department of commerce, either foreign or inter-state, state laws in regard to the same will not be declared void.3 There are some subjects of state cognizance which in their operation and enforcement produce an effect, incidentally, upon commerce beyond the limits of a single state, such as pilotage, ferries, health regulations, the support of paupers, police, and crime, which,'Passaic Bridges, 3 Wall. 782; Hteldeman v. Beckwith, 4 McLean (C. C.) 286. 2 Veazie v. Moore, 14 IIow. 568. 3 United States v. Railroad Bridge Co. 6 McLean (C. C.) 517; Woodman v. Kilbourne Man. Co. 6 Am. Law. Reg. (N. S.) 238; Cooley v. Board of Wardens, 12 How. (U. S.) 299; Gilman v. Philadelphia, 3 Wall. 713. 29jS:KZRAILWAY LAW IN ILLINOIS nevertheless, must be left to tile control of the states, lIand whose legislation, if fairly kept within necessary limnits, must be upheld." III. LEGISLATIrVE AND JUDICIAL AUTHORITY. % 506. The question stated. 507. Cllicago and Alton case. 508. Forfeiture of franchise and property. 509. For what cause lawful. 510. In what way that penalty may be enforced. 511. Regulating common carrier business. 512. Legislative jurisdiction; New York authorities. 513. Constitutional provisions. 514. The doctrine in Illinois. 515. Jurisdiction of the legislature sustained. 516. Importance of judicial limitations. 517. Potter's Dwarris, on Statutes. 518. Cooley on Limitations. 519. Exact and authoritative statement of the doctrine. ~ 506. The object aimed at in the railway section of the constitution of Illinois, and the legislation thereunder is to prevent unjust charges and discrimination. The power of the state to exercise that lauthority has been shown to rest alike on the written and unwritten law. The final question is: Ilow far is the exercise of that right vested in the legislature? ~ 507. The Chicago and Alton case gave to the supreme court its first and thus far its only opportunity to define its position herein. That opportunity was not improved, except indirectly. The only allusion to it was in connection with the forfeiture of franchise. No authorities were quoted by the learned Chief Justice. It is, however, a well established principle that even when the forfeiture of a franchise is the inevita CONSTITUTIONAL LAW. 299 ble sequence of legislation, a judicial verdict on a writ of quo warranto or scire facias is necessary. ~ 508. In an early Illinois case the court held that "the legislative power cannot directly reach the property or vested rights of the citizen by providing for their forfeiture or transfer to another without trial and judgment in the court; for to do so would be the exercise of a power which belongs to another branch of the government, and is forbidden to the legislature." 1 This sentence fairly states the law as held by Illinois in common with the other states of the Union. ~ 509. A corporation may, by willful malfeasance or nonfeasance, forfeit its franchises, whichl may be seized by the state on a judgment upon and information filed and prosecuted by the state, or its proper agent. At comrmon law, at the dissolution of a corporation its property reverts to the grantor, except that in this country the creditors have, in effect, a first mortgage upon the same. Many charters in this country have been declared forfeited. ~ 510. The question as to the forfeiture of a charter, anld the property acquired thereunder, may be tried by a writ of qno qwarraunto or scire facias. The former is the more usual method. The supreme court holds that a proceeding by quo warranto is a " prosecution," within the intent of statute, and must therefore be carried on "in the manner and by the authority of the people of the state of Illinois." 2 t Newland v. Marsh, 19 Ill. 382. For a thorough discussion of this subject see Wilmans v. Bank of Illinois, 1 Gilm. 667; People v. Mississippi and Atlantic R. R. Co. 13 Ill. 66; Wright v. People, 15 Ill. 417; People v. Ridgely, 21 Ill. 65; Curran v. Arkansas, 15 How. 312; Bacon v. Robertson, 18 How. 480; State v. Bailey, 16 Ind. 46; Silver Lake 300 RAILWAY LAW IN ILLINOIS. ~ 511. While it is too plain for doubt that the for feiture of the franchises and property of a corporate body cannot be effected without judicial proceedings, it by no means follows that the legislature has not the power to lay down general rules for the conduct of cor porate business. On the contrary, the authorities are Bank v. North, 4 Johns' ch. N. Y. 370; Bank of Marietta v. Pin dall, 2 Rand. Va. 465; Clarke v. New Jersey Co. 1 Stor. C. C. 531. British Co. v. Ames, 6 Met. Mass. 391; Savagre Malnuf. Co. v. Armstrongr, 24 Mie. 34; Day v. Essex Bank, 13 Vt. 97; Terret v. Taylor, 9 Crauich. 43; Commonwealth v. Commercial Bank, 28 Penn. St. 383; Aurora Co. v. Holthouse, 7 Ind. 59; Guaga Iron Co. v. Dawson, 4 Blackf. 202; Libby v. Hodges, 9 N. H. 394. Bank of Augusta v. Earle, 13 Peters, 519; Lucas v. Bank of Georgia, 2 Stew. 147; Vermont v. Turnpike Co. 11 Vt. 431; Commonwealth v. U. S. Bank, 2 Ashmead, 349. No legislation making detail provision for the enforcement of the right to exact this extreme corporate penalty exists. A bill was before the twenty-eighth general assembly in the winter of 1873, entitled, "An act to prevent unjust discrimination in the rates charged by railroads in this state for the tranportation of freight cars, and to encourage competition in fieighting," containing the following provision: Any railroad corporation which shall be five times consecutively convicted of a violation of this act shall be deemed and held to have forfeited its franchises and property; and such corporation, so offending, may be proceeded against by the state's attorney in any circuit or county through or into which its road may run, either by scire facias, or upon an information in the nature of a quo warranto, to judgment of ouster. And in case of forfeiture of property and franchise, and judgment of ouster, the court shall fix the time, place and conditions for the sale of the same, at which time and place said corporate property and franchise shall be sold to the highest bidder giving security satisfactory to the court for the proper management of said road and the lawful conduct of all the business pertaining to said corporation. The proceeds of such sale, after defraying the costs and expenses of the suit or suits for forfeiture, shall be paid into the treasury of the state. CONSTITUTIONAL LAW, 301 a unit in asserting that power. It is conceded that the courts, in the absence of specific legislation, have the power to prevent extortion and unjust discrimination on the part of common carriers. It was'claimed by the counsel for the company in the Chicago and Alton case that this power is exclusively enjoyed by the judiciary. The court did not distinctly admit or deny the claim, nor give any authorities bearing upon it. This issue of law has often been raised, but never before in a connection of such transcendent importance. { 512. The most prominent state in adjudication on the question under consideration is New York.'This issue has been often presented in the courts of that state, and learnedly discussed. The now well established doctrine of that commonwealth is correctly stated in these words: "The legislature possesses the whole legislative power of the people, except so far as limited by the constitution. In a judicial sense, and so far as the courts are concerned with its application and construction, their authority is absolute and unlimited, except by the express restrictions of the fundamental law. The state legislature is not restricted in power, any more than the British parliament, except tbv the state and federal constitution." ~ 513. There is nothing whatever in the constitu-'For authorities see Abbott's Digest, every volume of which contains some citations in support of this doctrine. The following are among the more important cases: Appeals, 1863-Bank of Chenango v. Brown, 26 N. Y. 467; S. P. Cathcart v. Fire Department of N. Y. Id. 529. Supreme court, 1864-Clark r. Miller, 42 Barber, 255; Luke v. City of Brooklyn, 43 Id. 54; People v. Morrell, 21 Wend. 563; Butler v. Palmer, 1 Hill, 324; Bloodgood v. Mohawk and Hudson R. R. Co. 18 Wend. 9; Leg. gett v. Hunter, 19 N. Y. 445. 302 RAILWAY LAWV IN ILLINOIS. tion of the UInited States, nor in the organic law of Illinois, which by any possible construction could be made to support the assumption of paramount judicial authority. The national constitution makes no attempt to define the relative functions of different branches of a state government, and the constitution of Illinois not only affords no ground for asserting that the judiciary has exclusive jurisdiction in the premises, b)ut on the contrary, it expressly confers that jurisdiction upon the legislature. Its language is: "The general assembly shall, from time to time, pass laws establishing reasonable maximum rates of charges for the transportation of passengers and fieight on the lifferent railroads in this state." 1:Not content with this, the same organic law adds in another section: "The general assembly shall pass laws to correct abuses and prevent unjust discrimination and extortion in the rates of freight and passenger tariffs on the different railroads in this state, and enforce such laws, by adequate penalties, to the extent, if necessary for that purpose, of forfeiture of their property and franchises."2 ~ 514. The decisions of Illinois on legislative and judicial jurisdiction are explicit and harmonious. They entirely agree in every essential feature with the doctrine of New York. So very plain were the early decisions that of late years there has been no roomn BLri doubt, and it is only the supreme importance of the subject in its bearing upon practical results that has induced a reopening of the question.3 The only Ill. Constitution, art. xi, sec. 12. 2 Ibid. sec. 15. 3 Thc following are the more important Illinois decisions on this issue: Field v. People, 2 Scam. 7'J; Mason v. Wait, 4 Scam. 127; COXSTITU'rIONAL LAW\. 303 inquiry fobr the courts is, "IDoes the will of the representatives, as expressed inl the law, conflict with the will of the people, as expressed in the constitution?" Of tihe cases cited it is only necessary to particularize onlle. The first is selected for this purpose, because that llas been uniformly referred to as a just and binding precedent. ~ 515. At the D)eceinber terml, 1839, the supreme court was called upon to decide whether A. P. Field or J. A. McClernand was entitled to the office of Sec(retary of State. The former had been elected to tile (flice. The Governor cf the state, Thomas Carliln, attempted his removal, and the appointment in ]his place of ~Mr. -McClernand. The case resolved itself into the single question: Does the Governor possess the constitutional power of removing friom office'tlhe Secretary of State, and appointing a successor at will? The decision was in the negative, and that becalnse lno specific grant of such power to the executive could be adduced from the constitution of the state. In its very elaborate and learned decision the court saidl: "The constitution is a limitation upon the powers of the legislative department of the government; but it is to be regarded as a grant of powers to the other departments. Neither the executive or the judiciary, therefore, can exercise any authority or power, except such as is clearly granted by the constitution." It will be observed that the judiciary and executive are People v. Marshall, 1 Gilm. 672; People et al. v. Reynolds, 5 Gilm. 1; Nelson v. People, 33 111. 390; Turney v. Wilton, 36 Ill. 385; St. Louis, Jacksonville and Chicago R. R. Co. v. Trustees, 43 Ill. 303; Chicago and Alton R. R. Co. v. Shannon, Ibid. 338; People v. Solomon, 51 Ill. 38. 304 RAILWAY LAW IN ILLINOIS. classed together, and broadly distinguished from the legislature. The court continued: "Upon the principle of our government, that the sovereign power of the state resides in the people, and that only such powers as they have delegated to their functionaries can ble exercised, where a claim of power is advanced by the executive (judiciary), the question is, not whether the power in question has been granted to the people, but whether it has been granted to the executive, (judiciary); and if the grant cannot be shown, lie has no title to the exercise of the power." 1. 516. In his essay on Crimes and Punishment, a,treatise which bore a conspicuous part in the reform *of the judicial system of France, Voltaire insists that "there is nothing more dangerous than the comrnon axioln: the spirit of the laws is to be coznsidered. To adopt it is to give way to the torrent of opinion. When the code of laws is once fixed it should be olbserved in the literal sense, and nothing more is left to the judge than to determine whether an action be or be not conformable to the written law." 2 This statement is simply the opinion of the author as to what ought to be the law. 5~ 517. In Potter's Dwarris occurs the following quotation credited to Cushing on Jurisprudence, seetion 40: "Legislation, though general, may, nevertheless, descend to mrinute details and particulars. When this is the case, it so far occupies the place which would otherwise be filled with jurisprudence." In the ninth chapter of Potter's Dwarris the relative'Field v. People, 2 Scam. 7'9. 2Beccoria on Crime, commentary by Voltaire, chap. 5. CONSTITUTIONAL LAW. 30 5 finctions of legislation and jurisprudence are discussed and succinctly stated as follows: "The great and essential difference between legislation and jurisprudence, that which separates one from the otherl distinctly, is the manner in which they respectively become established. The former takes the place where the law-making power discovers occasion for it, and its provisions are framed prospectively for sucll classes of cases as the legislation thinks most likely to occur. The latter is only called into being when an actual case arises for its exercise, and is then adapted to the particular circumstances of the case.' Legislation, when once established, becomes fixed and unalterable, and it receives no additions but by subsequent legislation. Jurisprudence is constantly progressive, and continually enlarging and extending itself, as cases occur for its exercise, and adapting its principles to the social and political changes which are perpetually going on in society." To this' the American editor adds: "Under the American theory, the powers of the legislature are limited by written constitutions, beyond the bounds of which they may not pass; and it is conferred upon the courts of justice to declare all legislation void which is in excess of the fundamental' This fact explains the practical importance of the question of jurisdiction under discussion. 2 As the authority to regulate railway charges and prevent extortion and discrimination is expressly conferred by the fundamental law of Illinois upon the legislature, its exercise is not only admissible, but imperatively binding upon that body. It could not, if it would, leave its exercise to the exclusive jurisdiction of the courts. To do so would be unconstitutional. 20 306 RAILWAY LAW IN ILLINOIS. 518. This subject is discussed still more thorougly by Chief Justice COOLEY in his work on Constitutional Limitations, and summed up in the statement, " the law is applied by the judiciary and made by the legislature."' Speaking of the danger from the abuse of judicial power, the same writer remarks: "No rule can be laid down in terms which may not contain the germ of great mischief to society by giving to private opinion and speculation a license to oppose themselves to the just and legitimate powers of government." In this connection he refers to IVyneacmer v. P'eople. ~ 519. From his seat on the supreme bench of Vermont Chief Justice REDFIELD asserted and maintained as follows: " It has never been questioned, so far as I know, that the American legislatures have the same unlimhited power in regard to legislation which resides in the British parliament, except where they are restrained by written constitution. That must be conceded, I think, to be a fundamental principle in the political organization of the American states. WVe cannot well comprehend how, upon principle, it should be otherwise. The people must, of course, possess all legislative power, originally. They have committed this in the most general and unlimited manner to the several state legislatures, saving only such restrictions as are imposed by the constitution of the United States, or of the particular states."3 If the learned judge had been aiming to meet the question in dis1Cooley, on Constitutional Limitations, 91. 213 N. Y. 391. Thorpe v. Rutland and Burlington R. R. Co. 27 Vt. 142. CONSTITUT'IONAL LAW. 307 cussion, as presented by Illinois law, he could not have been more apposite.''The following are the citations made in the opinion to support the foregoing doctrine: Leggett v. Hunter, 19 N. Y. 445; Cochran v. Van Surlay, 20 Wend. 365; People v. Morrill, 21 Wend. 563; Sears v. Cottrell, 5 Mich. 251; Mason v. Wait, 4 Scam. 134; People v. Supervisors of Orange, 27 Barb. 593; Taylor v. Porter, 4 Hill, 144. APPENDIX. TIHE RAILWAYS OF ILLINOIS. ~ 520. The facts herein given are almost whllolly condensed from the second annual report of the Railroad and Warehouse Commissioners, for the year ending December 1, 1872, a volume of 450 pages. For thc sources of their information see sections 361-365. The usual gauge of Illinois railroads is 4 feet 8i inchles. The gauge will be mentioned only when it varies frolnt that rule. Of the general policy of the roads as regards deference to the statute intended to prevent extortion aind discrimination, it may be remarkedl that while a new schedule of rates was adopted on the first of July, 1873, the policy was to equalize, somewhat, the rates, mIaking an aggregate increase, and that, not Ilnfrequently of 20 per cent. The increase then made was a dopted for the purpose of making the law odious. Since then the rates have been somewhat modified.''The answers given to the questions touching car serv-ices or transportation companies will be given in finll, except where the reply is simply that no dliscrillination is shown. g 521. CIInCAGO AND ALTON.-Capital stock, 1 1,3505,300.00; all paid in. Total funded debt, $3,698,000.00. No floating debt. Total length of track, 624. mniles. Intersects with other railroads at 19 different points. Gives no exclusive privileges or preference to (309) 310 RAILWAY LAW IN MLLINOIS. any transportation company, person or corporation. HI-auls 12 sleeping cars and 5 dining cars for the Pullman Palace Company. No stock dividends ever issued. During 1872 no passengers were killed; but August 16, 1873, a collision occurred near Lemont, in which 20 persons were killed. It was the most appalling casualty that ever occurred on an Illinois railroad. The coihpany promises to lay a double track. Its business warrants the outlay, and the police power of the state could compel the construction, if necessary. It is estimated that the catastrophe will cost the company $500,000. X 522. CHICAGo, BURLINGTON AND QuINcY.-Capital stock, $18,652,910; all paid in. Total funded debt, $12,996,956.95. Floating debt, none. Length of track, 9t27 miles.' Intersects with other roads at 15 points. Average charge per mile per 100 pounds through freight, 0.071-1 cts.; for local freight, 0.0159-1 cts. Annual amount through freight, 584,432 tons; of local freight, 1,144,130 tons. As regards transportation companies, the answer is: "The Merchants' Dispatch and Empire Line do business on the road at rates of commission agreed upon friom time to time, and the usual mileage for use of cars. A cent and a half per mile, loaded or empty. Transportation companies repair their own cars. IBusiness of no line is given a preference as to speed or order of transportation. This comlpany is also owner in the Blue Line and Continental Line, each of which lines has a central management, maintained by each company comprising the lines, contributing proportionately to business done. Each road comprising the line seeks to place in the line its own proper proportion of cars, and in case of APPENDIX. 311 their actually doing so, the nmileage of cars is practically paid for in kind. In case any road is over or short, the difference is made up at the usual rate of mileage." ~ 523. CHICAGO, DANVILLE AN0D VINCENNEs.-Funded debt, $2,500,000. Value of road and equipments, $2,311,000. Length of track, 102 miles. Gauge, 4 feet 9 inches. Average rate per mile per 100 pounds for through freight, d mills; for local freight, 2 3-. ~ 524. CHICAGo AND IowA.-Total funded and floating debt, $1,850,000. Value of road and equipments, $2,283,000. Length of track, 88 miles. Amount of nmunicipal aid, $380,000. All cars are treated alike. The company owns no freight cars nor interest in any.;~ 525. CHICAGO AND NORTHWESTERN. - Refused to give present ownership of the stock, alleging the illegality of the statutory and constitutional requirelnent of information on that point; also, the impracticability of doing so, if the company were so inclined. Funded debt, $20,474,000. Total paid up stock and debt, $35,878,643.82. Cost of construction and equipInent, $56,646,922.34. Length of track, 485 miles. Crossed at five different points in the state by other railroads. The company is made up of numerous companies. The report furnishes the following information on this point: Illinois and Wisconsin Railroad Company, organized December 30, 1SSi, under act of the legislature of Illinois, of February 12, 1857; extends from Chicago north to Wisconsin state line; consolidated March 30, 1S55, with the Roek River Valley Union Railroad Company (of Wi.sconsin), formnerly the Chicago, St. Paul and Fond du Lac R.Iail road Company. This coinpany, du iing its exiistenice (retai ii nig its corporate name), 3129 -ZAmLwAY LAW IN ILLINOIS. received by consolidations the following named comlpanies, to-wit: 1. Wisconsin Superior Railroad Company (of Wisconsin), consolidated March 5, 1857. 2. Marquette State Line Railroad Company (of Mlichigan), consolidated March 21, 1857. 3. Ontonogan and State Line Railroad Company (of Michigan), consolidated March 27, 1857. The Chicago, St. Paul and Fond du Lac Railroad Company was reorganized under the act of the leislature of Illinois, February 19, 1859, and the act of thle legislature of Wisconsin, of March 14:, 1859, and was incorporated June 6, 1859, by the name of the Chicago and Northwestern Railway Company, under whlliclt name it still exists, and has, since its incorporation, received by consolidations the following named cornpanies, to-wit: Dixon, Rockford and Kenosha Railroad Company (of Illinois and WVisconsin), organized January 16, 1864; consolidated January 19, 1864. The last named company was formed by consolidations of the " IKenosha and State Line Railroad Comlpany," and the "Dixon, Rockford and State Linel Railroad Company." Galena and Chicago Union Railroad Company (of Illinois), incorporated January 16, 1836; amended MarclO4, 1837; amended February 24, 11847; consolidated June 2, 1864. The ]Mississippi and Rock River Junction Railroad Company, incorporated February 13, 1851; amende(l February 28, 1854; was consolidated with the Galena and Chicago Union Railroad Company January 9, 1855, and confirmed by act of February 15, 1855. The Elgin and State Line Railroad Company, incorporated February 12, 1859, (originally called the "Fox APPEI)IX. 313 River Valley Railroad Company," incorporated June 1S, 1852,) was leased to the Galena and Chicago Union Railroad Company November 11, 1858. The Chicago, St. Charles and Mississippi Air Line Railroad Company, incorporated January 31, 1849, as the St. Charles Branch Railroad Company; charter amended and name changed January 3, 1853, was also leased to the Galena and Chicago Union Railroad Conlpany before the consolidation. Peninsular Railroad Company (of MIichigan), incorporated February 12, 1855; consolidated October 21, 1864. Beloit and Madison Railroad Company (of Wisconsin), organized September, 1862, consolidated Marchll, 1871. Baraboo Air Line Railroad Company (of Wisconsin), incorporated March 8, 1870; amended Febriuary 2, S 71; consolidated Mtarch 10, 1871. ~ 526. CHICAGO, RocK ISLAND AND1X PACIFIC.-This comnpany now consists of the consolidation of the Clhicago and Rock Island, organized February 17, 1847, iand the Chicago, Rock Island and Pacific, of Iowa, organized Aay 28, 1866. Capital stockl, $18,999,200. Funded debt, $8,702,000. Floating debt, $70,672.92. VValue of road and equipment, $28,761,315.65. -Track in Illinois, 301: miles. Points at which other roads cross it, 6. Passenger earnings for the year in Illinois, $765,944.93; freight, $3,008,026.60; earnings froml other sources, $189,206.29. Company hauls cars of all transportation companies who desire that service, and receives the going or tariff rates. The company owns and runs its own sleeping cars. ~ 527. CHICAGO AND RocK RIvEr. —Capital stock 314 RAILWAY LAW IN ILLINOIS. subscribed, $916,660; the amount paid in, $579,850. -Nearly one-half made up from municipal aid bonds. Funded debt, $900,000. Cost of construction per nile, $36,000. Length of line to be 108 miles. Crosses Illinois Central once. Chartered March 4, 1869. Principal stockholders and contractors, Wicker, MIechling & Co., Chicago. ~ 528. COLUaBUS, CIIncAGO AND INDIANA.-Capital stock, $13,328,568.96, all paid in. Funded debt, $24,221,374. Floating debt, $130,974. Value, $36,919,288.13. Length of track in Illinois, 32-9 miles. (Jauge, 4 feet 9 inchtes. Intersects other roads at four points. Hauls cars for National Transportation Colmp)any, which uses its own cars, bears all expense of fiorwarding, receiving and billing freighlt, except haulingT trains, "j aying therefor rates which are regulated by current trathic." Thlese cars are given no preference in any particular. ~ 529. GILSMAN, CLINTON A:ND SPRINGrFILD.-Stock, $2,000,000, All paid in. Funded debt the same as stock. Total trackage, 1-16- miles. Railroad intersections, 5. MIunicipal aid, $635,500. A note adds:'" Stock subscriptions were tendered for these subscriptions. Town officers refused to issue bonds. Said stock is entered as paid, for the reason that the subscribed stock was to be turned over to the construction comnpany in bonds or stock." Amount of stock outstandingI, $2S,000,)000. Company chartered April, 1869. HEANTNIBAL AN)D INALES.-Paid up stock and funcle(l debt, $1,357,000. Value, the same. Trackage, 5 ~miles. Gauge, 4 feet 8- inches. Has no equipments. Total earnings for the year, $95,397.47. Aided by APPEDIX. 315 Pike county, $150,000. The road leased by the Toledo, Wabash and Western. ~ 530. ILLIN-OIS CrENTR1L. —Stock subscribed, $25,448,900. Amount paid in, $25,447,140. IFunded debt, $8,390,500. Cost of construction and equipment, $33,902,9S7.55. Tiac1kage, SS135,5- miles. Intersects with 19 different railroads in Illinois. Any freight and transportation com-pany can have its cars hauled over the road at an imlllpartial rate; no preference or favoritism shown. Comnpany owns t1he sleeping cars, and charges less tllhan tle usual rate for berths. Charter granted }Februarly 10, 1851. Charter amended three years later, and again in the year following. No consolidation in this state. Ten per celnt. cash dividends declared on the stock of the original colmpany for the past seven years. Road comlpleted 1856. ~ 031. ILLINOIS AND ST. Louis. —Gives full list stock subscribers. Total subscribed and paid in, $618S,000. Funded debt, $660,000. Floating debt, $260,260. Debts equal value. Length of line, 15 miles. Aided by city of Belleville, $25,000. The original charter was granted February 28, 1841, under anotler name. Present name dates from February 16, 18(;5. Mainly a coal road. ~ 539. INDIANAPOLIS,.IOO3TINGTON ANI) ADjWESTERN.Stock subscribed, $5,003,T00. Proportion for Illinois, $3,052,331. All paid in. Debt proportioned to Illinois, $4,095,000. Cost of road and equipments in Illinois, $7,341,502.54. Trackage in Illinois, 147-46nliles. Gauge, 4 feet 8S- inches. Intersects at six points. Municipal aid, $842,000. Road put in operation in 1870. The company is pushing several branches. 316 RAILWAY LAW IN ILLINOIS. ~ 533. IhNDINArPOLIS AND ST. LOUIS. —-Value, $2,945,000. Length of track, 212 miles. Intersections with other lines, 5. IIauls cars for several transportation companies, to none of whom is any preference given in terms or facilities. This company is lessee of the ~ 534. ST. Louis, ALTON AND TERRE I-HAUTE.-The latter has a stock of $4,768,400. Funded debt, $7,000,000. Cost and value of road, $3,057,390. Trackage, 264 miles. Original charter granted January 28, 1851. Several lines consolidated 1856. Property foreclosed and sold under mortgage 1862, by order of the U. S. Circuit Court, Southern District, Illinois. ~ 535. ST. LouIS AND SOUTHEASTErNT.-Capital stock subscribed and paid in, $758,300. Cost of construction, $1,325,614.51. Considerable right of way donated. Organization effected:March, 1869. Construction began in M{ay following. MIunicipal aid, $825,000. Length of road, 197 miles, including side tracks. Gauge, 4 feet 9 inches. Cost of construction and equipment, per mile, $21,176. Railway intersection at five points. ~ 536. TOLEDO, PEORI. Ann WAnRSAw.-CCapital stock paid up, $5,700,000. Fundcled debt, $6,450,000. Floating, debt, $204,793.96. Cost petn mile, $45,500, making a total of $12,150,000. Railway crossings, 7. Cars hauled for National Transportation Company. They furnish their own cars and receive 1a cents per mile mileage. Company organized February 14, 1863, and is successor to the Mississippi and'Wabash, chartered ten years before. In operation since Octol)er, 1868. M 537. TOLEDO, WABAS1 AND WESTERN.M-Stock paid in, $16,000,000. Funded debt, $10,404,000. Cost. APPENDIX. 317 $19,879,779.60, or $55,685.66 per mile. Competes with other roads at 14 points. Has 10 miles of effective Osage orange hedge fencing. It has no special conditions as to use of track for hauling the cars of transportation companies. The Red Line, Globe Line, South Shore Line and Great WVestern Dispatch patronize the road, the cars being furnished by the railroad. ~ 538. CIIICAGO AND CANADA SOUTIIEN. —Chartered March 31, 1869. The company has charters fiom Indiana, ]Michigan, Ohio and Illinois. [None of the Illinois part of the line constructed. Capital stock, $10,000,000. CIICAGO AND ILLINOIS SOUTIIERN. —This corporation is a consolidation of the Chicago and Illinois Southern Railroad Company with the Decatur, Sullivan and Mattoon Railroad Company. The former company transacted no business prior to the consolidation, and the latter transferred to the present company no books or accounts upon which to base a full report. The road was reported as so far completed that mixed trains have been run from Mattoon to Dalton, 29 miles; it intersects the Indianapolis and St. Louis Railway one mile west of MIattoon, runs in upon that track and uses the depot of that road at Mattoon. The intention is to build a road from Mattoon to Decatur, 40 miles. ~ 539. CHICAGO, MILWAUKEE AND ST. PAUL.-Articles of association under the general railroad law of the state were made and filed April 2, 1872. By agreement the Chicago and Milwaukee Railway Construction Company took all the stock, $2,000,000. Russell Sage, New York, President. At the time the report was made four only of the nine directors resided in Chicago. 318 RAILWAY LAW IN ILLINOIS. ~ 540. CHIcAGo AND MUSCATINE.-Organized in tile fall of 1871. Total subscription to date, $200,000; 10 per cent. paid in. No work begun. ~ 541. CInICAGO AND PACIFIC.-Exists by the provisions of a charter granted by the state to the Atlantic and Pacific Railroad Company, dated February 16, 1865, the name of which was changed to that of the Chicago and Pacific Railroad Company. Its eastern terminus was fixed at a point, to be selected by the company, on a line between the states of Indiana and Illinois, in Cook county; and its western terminus at any point on the Mississippi river, to be hereafter selected, at or north of Savanna, Ill. The company has commenced the construction of the railroad at Chicago, and is progressing westward. Definite construction arrangements extend only to Elgin. ~ 542. ChIcAGo ANDPADUCAIT.-Is a consolidation of the Fairbury, Pontiac and Northwestern Railway Coin-.;any, and the Bloomington and Ohio River Railroad Company. The consolidation was effected on the 22d day of March, 1872. The proposed line of road wilh extend from Streator, in LaSalle county, to Flora, in (Clay county, a distance of about 200 miles. On the 30th of June, 1872, there was completed from Streator to Fairbury 32 miles, and from Berment to Windsor 35 mniles; total, 67 miles. The capital stock is $5,000,000; paid in, $13350,000. ]Municipal aid, $540,000. Cash man, Plumb & Co., Chicago, contractors. ~ 543. CIIICAGo, PEKIN AND SOUTHWESTERN. - IS designed to run from Chicago to Pekin, 160 miles. Expended to date for construction, $345,474.49. Stock subscribed, $519,500. Actually paid, $240,000. Muni APPEmNDIX. 319 cipal aid subscribed, $290,000. Principal office* at Streator. a 544. GRAND ToWilr MANUFACTURING AND TRANSrORTATION Co.-The total length of track of this road road is 30-4 A-. IJnder the hlead of "miscellaneous exhibits" is found only this item: "Coal, 13,305,460 tons." This road comes the nearest to not being a highway of any railroad in Illinois. ~ 545. INDIANAm AND ILLINOIS CENTRAL.-This road is in process of construction from Indianapolis, Indiana, to) Decatur, Illinois. It is 152 miles in length, and connects at termini with the extensive network of railways which converge to these points. The expenditure to date were about $1,400,000. Capital stock subscribed and paid in, $4,500,000. Municipal aid in Illinois, $330,000. a 546. JACKSONVILLE, NORTII\WESTERN AND SOUTHEASTERN. -Debt secured by nmortgage, $100,00DO. Municipal aid, $8000.00. Length, 17- miles. - 547. KANKAKEE AND INDIANA. —Chartered April 19, 1869. Construction began August 20, 1871. Capital stock subscribed, $92,400; paid in, $67,300. Funded debt, $220,000. Length of road, 11 miles. Guage, 4 feet 82 inches. Cost of road per mile, $6,000. Municipal aid, $66,500. Designed to intersect the Chicago Branch of Illinois Central Railroad at Kankakee, 56 miles south of Chicago, and the Cincinnati, Lafayette and Chicago Railroad at St. Ann, making in connection with these lines a through route from Chicago, via Kankakee, to Cincinnati. ~ 548. LAFAYETTE, BLOOMINGTON AND MISSISSII'PI. — Chartered February 28, 1867. Municipal aid, $467,000. Length, 82-ka- miles. Capital stock, $1,000,000, all 320 RAILWAY LAW IN ILLINOIS. paid in. Funded debt, $1,300,000. Has four railway intersections. ~ 549. LOUISVmILE, NE-W ALBrANT ANIr) ST. Louis AIIm LiNE. —Capital stock depends upon completion of the road. The intention is to build a line fiom 5New Albany, Ind., to East St. Louis, Ill., 250 miles, this company in connection with other railroad companies forming the line. Their cars or freight give no special preference of any kind. The railroad companies forming the T. W. W. Co. were consolidated July 1, 1865. Original construction began 1850. ~ 550. WESTERN UNIoN.-The report of this coinpany is for the entire line in Illinois and Wisconsin. Paid up stock and debt, $7,723,654.32, nearly all expended in building and equipping the line, whielc is 207 miles long. Crossing the Chicago and N orthwestern twice and the Chicago, Burlington and Quincy once. Company formed by the consolidation of eight different companies, the oldest dating back to January 21, 1851. The road is now held under mortgage foreclosures. ~ 551. CAIRO AND ST. LouIS.-Capital stock subscribed, $950,000, all by municipal subscriptions. Road chartered February 16, 1865; charter amended April 16, 1869. 1Iortgagred October 2, 1S71, to thle amount of $2,500,000. Its only peculiarity is its gauge, 3 feet. ~ 552. CARBONDALE AND SHAwNExrmowN. —Original charter granted March 7, 1867; present name taken March 10, 1869. Capital stock outstanding, $355,500. Municipal aid, $100,000. Funded debt, $200,000. Length of road in Illinois, 18 miles. ~ 553. CnIsmiER AND TAMAOROA.-Organized June 15, APPENDIX. 321 1S69. Began construction a year later. Stock, $1,000,000; paid in. AMunicipal aid, $315,000. Intersects other railroads at two points. Trackage, 441 miles. Finished March, 1872. ~ 554. MUSCATINE, KEWANEE AND EASTERN. — Capital stock, $110,000, all municipal aid. This road conmmences on the east bank of the Mississippi river, opposite the city of Muscatine, Iowa; is to run eastward through Kewanee, Henry county, to a point on the east line of the state of Illinois not yet designated. The entire length of the main track will be about 200 miles. No right of way had been obtained, nor any grading done at the time the report was made. ~ 555. PARIS AND DEcATuR..-Chartered February 18, 1861. Stock paid in, $1,600,000. Robt. G. Hervey &; Co. contracted to build the road for this amount. Municipal aid, $463,000. Construction began August, 1870. ~ 556. PLrYMOUTH, KIANAKE:E AND PACIFIc. — Has 101 miles in Illinois, terminating in this state at Bureau. Is a branch, virtually, of the Pennsylvania Central. Municipal aid in Illinois, $543,000. Average cost of construction, $4,531.60. ~ 557. SPRINGFIELD AND SOUTIIERN ILLINOIs.-Capital stock, $3,776,500. Funded debt, $4,400,000. Floating debt, $140,000. Length of main track, 228 miles. ~ 558. ST. Louis, JERSEYVILLE AND SPRINGFIELD.Organized March 20, 1872. No subscriptions or expenditures, except for surveys. General offices at Jerseyville. ~ 559. ROCKFORD, ROCK ISLAND AND ST. LOUIS.Total stock paid in, $6,490,579.41, including municipal aid to the amount of $1,043,000. Total funded 21 322 RAILWAY LAW IN ILLINOIS. debt, $9,000,000. Length of the road, 344 mniles. Only about three-fourths of the road is fenced. It has seventeen railway intersections., 560. PEKIN, LINCOLN AND DECATUR. —Amount of stock $1,500,000, all paid in. Of this stock county and township aid covers $625,000, and individual aid $75,000. Total funded debt, $1,076,000. The roacd cost $38,333.33 per mile, and is 67 miles long. Thle road is leased to the Toledo, Wabash and Western. 61. PE:oRI AND IROC ISLAND.-Total stock paid in, 81,857,950. Debt of the company, $81,665,277. The road is 91 miles long, and reports four hundred bridges. General offices at Peoria. The total estimlated valule of the road, with its equipments, is $3,623,55S. 562. PEoRIA, PIKIN AN'D JACKsoNILLE.-Presidlent resides'in Connecticut, and draws $10,000 salary. The funded debt is $2,000,000. The stock is $1,000,(000. The total estimated value of road and equipmnent is $427.136. It is S3 miles long. The munici )Cll aid was i 0,000. 563. ()IIIo AN) iMISSISsIrssI.-Total stock, $24,030). )o00. )elbt. $1(0,440,75i. Lengthll of the road, 393 miles. of lwhicll 14.1 lniles are in Illinois. Gauge, 57 c 56'4. AIIC1IIIGAN CENITRJAL.-This is tile only raill'oad company. doing business in Illinois which has no )orporate existelce in thle state. On a capital stock oft'.$17,987,04S its net earnings for the last fiscal. year Twere $1,80S,957. Its main line extends froln Clicagt, to Detroit, 285 miles. The company operates, ulnder lease, 430 miles more. ~ 565. LAKEr S1T0uoE AND MICIIGAN SOUTI1EERN.-C(a-p1) APPENDIX. 323 ital stock, $35,000,000, all paid in. Tile total cost of construction and equipment was $62,053,600, and the total length of the road is 1,023 miles, only 14 miles being in this state. Tile gauge of the road is 4 feet,9I inchles. Six transportation companies do a tllrougll freight business on that line. They are paid the usual mnileage on cars, 1V- cents per mile, whether loaded or elnpty, and receive a commission on freight, but the nature of that commission arrangement is kept secret. ~ 566. PrrTsnuuUir, FOurT WAYNE AND CITICAGO.Total stock subscribed, $21,614,285, of which only $81,614,285 )ai(l in. The funded debt amounts to $13,623,000. Ga;uge of' thle roa(l, 4 feet 9 — inches. Tle road is 468S uliles long, and cost, with equipments, $26,288,122. ()Oly 14-'L mniles of thle road are in Illinois. Tle ft'llest replort in regard to transportation companies is giv\-l lby this comlpany. It is as follows: "'The transportationll c-Ill-panies are to establish and maintain, at thei, own expense, independent and effi(ient agencies in thle principal cities of the east and iwest, and, genlerally, to co-operate with the officers of tihe colnpaly il establisphing the line in public favor; Iflrnisll their own1 cars, and keep theml in repair, slub.jeet to the alpproval of the car inspector of the railway comIpany; pay all expenses, including loss and dainage f' fiei ohlt, onllnected with the ship)ment and delivery o(' frei tt antd pviay to railway company certain specilied rates, whichl rates are based upon an average of I)revailing rates chacrged by the railway company tflr simillar frieihllt. The railway comipalny pay to the transportation company1 three imills per ton per mile 1,r the use of their cars, and have a gelnlerll supervision of the rates and business." 324 RAIMWAY LAW IN IrtLUNoM. We have thus been at the labor of sifting from the mass of facts given by the railroad companies such items as give the best idea of each road in Illinois. GENERAL SUMMARY. ~ 567. ACREAGE.-The report makes the following exhibit of the area of the state with reference to railroads: The number of acres within five miles, 25,621,778; between five and ten miles, 6,603,007; between ten and fifteen miles, 1,629,931; between fifteen and twenty miles and over, 708,800. Total area in acres, 34,563,516. This summary is based on details furnished by Mr. T. J. Nicholl. ~ 568. CAPITAL STocx.-The paid in capital of all the railroad companies of Illinois foots up $140,126,064.28; their funded debt, $111,456,325.97; floating debt, $3,330,173.20. Amount of paid in stock and debts, $254,912,563.45. These last figures represent the actual capital invested up to July, 1872, in railroads existing under Illinois legislation, although the official statement of the cost of road and equipment up to that date, and for those railways, foots up $238,584,541.24. We have here an excess of paid up stock and debts over cost of building and equipping of $20,328,022.21. ~ 569. CosT.-The average cost per mile of constructing and equipping the roads completed July, 1872, was $42,264.48. Total miles of road at that date were 6,360-60%-; main line, 4,709 2,; branches, 1,549 8s,. APPENDIX. 325 ~ 570. ROLLING STocK. —The total equipments reported: Locomotives of twenty to thirty tons weight, 1,305; of ten to twenty, 822; of less weight, 76. Total, 2,203. Passenger cars, 984; other cars, 48,114. Total, 49,098. ~ 571. MILEAGE.-The mileage of trains during the year ending July, 1872: Passenger, 9,109,549; freight, 18,290,187; other trains, 4,777,438. Total, 32,301,174. TONNAGE OF COMPLETED ROADS.-Through freight, 1,789,046-2; local freight, 3,513,589t. AccIDENTs.-Passengers killed, 8; injured, 21; employes killed, 65; injured, 126. Accidents to others: Killed, 75; injured, 93. ~ 572. EARNINGS.-The gross earnings for all railroads operated in Illinois were $43,227,128.04; the gross expenses were $45,249,968.55. Excess of expenses over earnings, $2,022,840.51. These figures are based upon the sworn statements of the railway managers, which statements are summarized by the railroad and warehouse commissioners in their annual report, dated December 1, 1872, as follows: EARNINGS- IN DETAIL.: NAMES OF COM.PANIES. Psse er. Freiht. Miscellaneoius. TOTAL. 1. Chicago and Alton -------— $ —---------- $1,325,723 07 $3,609.525 68 $232,863 40 $5,168,112 15 2. Chicago, Burlington and Quincy --------- - 1,742,181 47 5,14.831 97 726,664 74 7,593,678 18 3. ~ Chicago, IDanville and Vincennes. —-------- 38,307 97 234,360 39 14,801 98 287,470 34 4. t Chicago and Iowa ----------------- 15,192,.63 56,830 30 1,239 42 73,262 35 5 * Chicago and Northwestern ------- ---- - 1,056,873 41 2,426,222 43 203,615 04 3,686,310 88 6. Chicago, Rock Island and Pacific. —------- - 765,944 93 3,008,026 60 189,206 29 3,963,177 82 7. Chicago and Rock River ----------- ---- - 840 85 6,5Q1 38 300 00 7,722 23 8. * Col mbus, Chicago and Indiana Central --- -- 45,167 64 121,802 75 6,278 85 173,249 24 9. Grand Tower and Carbondale ----------- - 10,722 65 28,861 29 1,000 00 40,583 94 10. t Gilman, Clinton and Springfield.... —--- -- - 30,656 40 122,118 50 3,975 19 156,750 09 11. Hannibal and Naples --------------- - 34,159 26 55,533 25 5,704 96 95,897 47 12. Illinois Central-..... 1,341,667 13 4,728,247 18 383,670 86 6,4.53,585 17 z 13. Illinois and St. Louis 1'' —----- ----- - 12,808 50 57.126 60 6,420 72 76,355 82 14. Indianapolis, Bloomington and Western. —- --- 243,273 00 500,529 78 33,325 22 777,128 00 15. Indianapolis and St. Louis... —------ - -- - 344,283 05 953,252 83 125,361 12 1,422,897 00 16. Lake Shore and Michigan Southern....... —-- 7,000 00 126,000 00 28,000 00 224,000 00 ) 17. Ohio and Mississippi. —------------- - 382,208 85 809,273 25 59,080 91 1,250,563 01 - 18. Peoria, Pekin andJacksonville.... 75,367 16 195,801 60 49,907 60 321,076 36 2 19. ~ Peoria and Rock Island.. —------- ---- - 33,110 56 84,23)7 62 20,376 07 437,477 92 20. Pekin, Lincoln and Decatur... 20,499 56 45,871 30 4.945 60 71,316 46 t 2. Pittsburgh, Ft. Wayne and Chicago.. —--- --- 117,713 64 302.621 00 17.143 28 437,744 25 22. * Rockford, Rock Island and St. Louis.............. 2 52,635 32 760,236 22 54,877 15 1,067,748 69 23. St. Louis, Alton and Terra Haute ----- ----- 136,470 64 157,452 32 214,384 09 508,306 96 0 24. St. Louis and Southeastern ------- ----- - 123,004 87 218,881 88 15,965 85 357,852 60 25. St. Louis, Vandalia and Terra Haute, by T. H.. & I.Co. 358,641 63 730,502 57 21,305 86 1.110,450 06 26. Toledo, Peoria and Warsaw -------- ------ 250,698 26 961,899 87 64,712 33 1,277,310 46 27. Toledo, Wabash and Western ------- - ---- 1.209.334 38 4,304.493 38 492,900 67 6,006,728 43 28. * Western Union. —-------- ------- - 118,077 22'343,452 48 19,642 46 481,172 16 Totals...-................................ $10,155,164 05 $30,074,594 42 $2,997,669 57 $43,227,428 04 ~ Being for six months from 1st of January, 1872.: Being for ten months from November, 1871. t Being for nine months from 9th October, 1871. * See page 27, Sccrctary's Report. GROSS EARNINGS ('COMPAIRED WITIH EXPENSES. Amount of Ope~NAMES (~ COMPANIES Gross atnt e- Excess of Excess of NA. zs OF CoMPxaeas. Earnings, Earnings. ExpensesGe..ral Expenses. 1. Chicago and Alton.....-.........-........... — $5,168,112 15 $3,171,725 98 $1,996,386 17.. 2. Chicago, Burlinaton and Quincy. —--- ----- 7,593,678 18 5.550,586 17 2,043,102 01 D3. Chicago, anville and Vincennes.. —--- ---. - 287,470 34 163,544 40 123,925 94.-. 4. Chicago and Iowa --—.. —------ 73,262 35 155,000 00$81,737 65 5. Chicago and NorthWestern.. —----- -3 ——. 3,686,310 88 2,168,810 20 1,517,500 68.. 6. Chicago, Rock Island and Pacific -..... —-—.. 3,963,177 82 1.753,746 78 2,209,431 04. 7. Chicago and Rock River. —------- ---- - 7,422 22' 5,085 43 2,336 80 8. Columbus, Chicago and Indiana Central.. 173,249 24 139,144 32 34,104 92. 9. Grand Tower and Carbondale ---------- - 40,583 94.... 10. Gilman, Clinton and —Springfield -.-...... —-- 156,750 09 123,224 53 33,525 56.. 11. Hannibal and Naples --------- ------ - 95,397 47 118,613 00 - -23,21553 12. Illinois Central ------------------- 6,453,585 17 4,439,203 86 2,014,381 31 -. 13. Illinois and St. Loi T- 76,355 82 72,551 24.04 58 --------- 14. Indianapolis, Bloomington and Western —------ 77,128 00 494,740 68 282,3874 32 —-------- 15. Indianapolis and St. Lons- 1422,897 00 962,680 46 469,216.54 - 16. Lake Shore and Michigan Southern ----- ----- 224.000 00 148,319 78 75,680 22 ----- ----- 17. Ohio and Mississippi ----------------- 1,250,563 01 872,270 21 378,292 80 - 18. Peoria, Pekin and Jacksonville ------------ 321,076 36 218,777 91 102,298 45 --------- 19. Peoria and Rock Island —---------------- 137,744 25 80,590 10 57,154 15. —------- 20. Pekin, Lincoln anrd'Decatur —------------- 71,316 46 64,385 23 6.731 23. 21. Pittsburgh, Ft. Wayne and Chicago ----- ------ 437,477 92 229,685 64 207,7492 28 22. Rockford, Rock IsI and and St. Louis 1,067,748 69 823,214 35 244,5' 34 34 —-------- 2:3. St. Louis, Alton sard Terra Hauate —---------- 508,306 96 294,289 66 214,017 30. —------- 24. St. Louis and Southeastern —------ -------- 357,852, 60 270,105 12 87,747 48 —-------- 25. St. Louis, Vandalia and Terra Haute, by T. II. & I.Co. 1,110,450 06 796,149 06 314,301 00 26. Toledo, Peoria and Warsaw —----- -------- 1,277,310 46 921,594 59 355,1715 87 —-------- 27. Toledo, Wabash and Western ------------- 6,006,7128 43 3,991,077 53 2,015,650 90. —------- 28. Western Uno-481,172 16 379,018 08 102,154 0S —-------- TotalIs, —- -------------— I $b43,227,128 04 $2,8.408.324 31 $14,883,172 97 $104,153 18 328 xRAILWAY LAW IN ILLINOIS. LEGAL TRANSPORTATION RATES IN ILLINOS. The relations of the Railroad and Warehouse Comissioners to railway charges ave been explained. In accordance with law they have set forth a scale of charges for passengers and freight. They have classilied the railroads of the state, making a five-fold classification. The schedule given on page 330, and taken from the Railroad Gazette, of Sept13t, 183, furnishes a key to the freight schedules prepared for the roads of the first class. The rates for roads of the second class are fixed at 10 per cent. below the first or standard rates. The rates for the third class are fixed at 5 per cent. above the standard. The rates for the fourth class at 10 per cent. above. The rates for the fifth class at 15 per cent. above. The passenger rates for these classes are 3 cents per mile for the first class; 21 for the second; 3t for the third; 31 for the fourth; 4 for the fifth. These variations are based onl tthe amount of patronage the several roads enjoy, and the relations of grosis to net receipts, as shown by the sworn reports to the Board, made by the officers of each company. The classification is as follows: If irt Class-Colulnbus, Chicago and Indiana Central; Indianapoiis, Bloom01ington and Western; Chicago, Alton and St. Louis; Illinois Central; Chicago, Burlington and Quincy; Chicago and Northwestern; Indianapolis and St. Louis; Chicago, Rock Island and Pacific; Toledo, Wabash and Western; Ohio and Missis-sippi. Second Class-Michigau Central; Lake Shore and iMichigan Southern; Pittsburgh, Ft. Wayne and Chicagro. fIdrd Class-Western Union; Chi .PENDI:VX. 329 cago, Danville and Vincennes; Toledo, Peoria and Warsaw; St.Louis, Alton and Terre Haute; Illinois and St. Lois. Fourth Class-Peoria, Pekin and Jacksonville; Peoria and Rock Island; Rockford. Rock Island and St. Louis. Fifth Class-Gilman, Clinton and Springfield; Chicago and Iowa; Hannibal and Naples; Peoria, Lincoln and Decatur; St, Louis and Southeastern; Cairo and Vincennes; and all other organized roads in the State. The standard rates for one mile and less than two, are 12 cents per hundred for first-class merchandise, 10.67 for second-class, 9.23 for third class, 8 for fourthlass; 10.67 per barrel r flour and meal in car loads; 12.73 for salt, plaster, etc., in lots of 2 barrels, 4.26 cents per hnndred for all grains except wheat in carloads; 4.68 for wheat; $8.27 per car-load for lumber; $9 for horses and mules; $8 for cattle and pigs; $7 for sheep in single deck cars; for classes "1A," "6B,' "C," and "I D" respectively, $11.20, $9.60, $8.69 and $7.63 per car-load; and for coal 30 cents per ton in carloads ($3 per car-load). The method of graduation may be so3en by inspecting the rate for first-class goods. An addition of 0.5 cent for each additional mile is made up to 5 miles.; then an addition of 0.4 cent per mile up to 20 miles; then of 0.3 cent per mile -up to 30 miles; then of 0.2 cent per mile up to 14:0 miles; then of 0.15 cent up to 241 miles. SCHEDULE OF RATES FOR FREIGHT. CLASS OF FREIGHlT. Rate for ADDITION FOR EACH ADDITIONAL MILI UP TO First Mile. 5 miles. 20 miles. 30 miles. 140 iles. 247 miles. First class, 100 lbs. -......12.00 cts. 0.5 cts. 0.4 cts. 0.3 cts. 0.2 cts. 0.15 t. Second class, 1 100 lbs. —. —------- ) 10.67 0.4, 03 0.23 0.3165 0.13 Third class, 19.100... —..........9.33 0.3 0.21 0.167 0.33 0.10 Fourthcla 0 clbs. ---------------------------- 8.00 0.2 0.12 0.10 0.10 0075 UIp to 100 ms. Up to 155 ns. Flour and meal, 19 bbl., in car loads, 1 bbl. -10..67 0.22 cts. 0.11 cts. 0.088 Salt, cement, plaster and stucco, in 25 brl. lots, 19 brl. 12.73.0.26 0.13 0.105 Grain (ex. wheat) and millstuffs, in car loads, q 100 lbs. 4.26 -.. —-. 0.087 0.044 0.035 IWheat, in car loads, 1 100 lbs. --- 4.68 -... —-. 0.097 0.05 0.04 Lumber, d car --— load —- - ------- $8.27 -... —- 17.00 8.60 6.80 Up to 50 ms. Up to 100 s. Horses and mules, 1 car load 9.00 35.0 28.0 20.0 cts 13.0 cts. 10.00 Up to 55 mas. Up to 200 mas. Cattle and hogs, 19car load... —----------- 8.00.. 24.0 12.00 cts. 10.0 cts. 9.00 ~ Up) to0 30 Ma. Sheep, in single-deck cars,, 19 car load...7 —----- 4.00 20.0 15.0 10.0 6.00 Up) to 25 insa Up~ to 50 mas. Up) to 100 ass. Class "A," car load... —------------— 11.20 31.0 eta.. 26.0 eta. 17.6 cts. 11.00 Class "B" 19 carload... —-------------- 9.60.. —---- 28.0 20.0 16.5 10.130 Up to 20 insa. Class "C." car load. —---------------- 8.68 27.0.11.6 10.50 Class I'D," car load.7 —-------------- 4.63.16.0.10.50 Up to 5 ana. UpTI to 10 ma. Up to 200 mas. Coal, in car loads, "on. —-------------- 0.30 7.5 cta. 2.0 —----- 1.0 cts. 0.50 RAILWAY LAW M ILLINOIS. 33 t No rate has been, as yet, established for car service; but the law is lain. It requires that all ears shall be hauled at a reasonable and impartial rate. The present uniform arranement is to allow the ear owner 1* cents per mile for the use of his car, whether loaded or empty. This arrangement gives, on an average, thirty per cent. of the gross receipts on through freight transported in transportation company cars to the transportation companies. Thus the railroads have themselves, without legislation, fixed the thirty per cent. as a fair allowance for car service. it is a more liberal arraneent for the car owner than the Commissioners would probably have fixed had there been n precedent to follow; but since that schedule for ear service has been fixed for through freight, by the railroads, they could not complain of its application to way freight. It is worth more both to furnish cars and to do the hauling' for a short distance than for a long, and by allowingr thirty per cent. to one and seventy per cent. to the other, an equitable division would be made, which would be equally applicable to short and long hauls, to way and through freight, and to all stations. The Railway Law of Illinois, by thus requiring the railroads to allow the competitive system already iii vogrue, as regards through freight, to be applied universally, has struck the key note of time practical solution of the transportation problem. Where competition is possible monopoly is impossible. INDEX. THE FIGURES REFER TO THE SECTIONS. A. Bonds of Officers -.-.-. —------ 8'S Assessments on Stock.......... 61 By-Laws and Bond Conversion. 83 Administrator. liability of- -..... 70 Boston and Lowell Railroad —... 5 Annual Meeting Stockholders_ 79 Baltimore and Ohio Railroad —. 5 Arbitration by Railroad Directors 79 British Railroads; Cost anud Annual Report to the Stockhold- Earnings ---------------------- 6 ers ---- ----------- 84 Bacon, Theodore, on CompetiAnnual Report to the State —- 84 tion --------------------------- 21 Appian Way of Rome ---------- 4 Blodgett, Judge -13: Area of Domain given in aid of British Parliament and the Railroads —------- ------------ 11 Courts ------------------------ 512 Adams on Competition-....'. 21 Breese, Chief Justice -.. —— 9, 88 Agitation, Antagonism and Ad- Bracton ------------------------- 168 justment -----------------.'24 Blackstone Commentaries ----- 168 Authorities on Eminent Domain 206 Bouvier. —---------------------- 301 Actions against Railroad Com- Billing and Weighing Grain.379, 380 pany -.........309, 372, 373, 374 Bentham on Police Power ----- 491 Attorney General.-..... 372, 413 British Crown, its Subjection -_ 473 Attorney Fees ---—. —--------- 392 British Charters ------------ 475, 476 American Doctrine of Uniform- British Courts ------------------ 473 ity -..................... —. 418-431 Bacon and the Virginia Charter. 475 Attorneys in the Dartmouth Col- Blackstone on Contracts — —. 477 lege Case.. —---------------- 482 Bridges and Congress --------- 490 Act of God. —------------- 35, 253 1 Bridge Building --------— 214, 218-224 Arguments in the Chicago and Bridge Law of 1872 218-224 Alton Case ---------- 436-447 Bagage.. 1 American Theory of Legislation and Judicial Jurisdiction- 473, 517 C. Assault and Battery by a Corpo- Classification of Railroads and ration ------------------------ 260 Freight ------------------— 365, 420 Auditor of Public Accounts and Caton on Extortion ------------- 415 Funding -------------— 84, 147, Charter Rights --—. —------- 88, 419 149, 152, 155, 157, 158, 161, 162, 163 See Dartmouth College, ChicaAir Brake.... —---------- 254 go and Alton Case, Unjust Discrimination. B. Car Service -.....21, 30(2-309, 407, 417 By-Laws of a Railroad Corpora- Also Appendix. tion -........-........... 46, 78-83 Commutation Tickets -.... —-. 409 (333) 334 1NDEY. Contracts, their Force and Con- D. struction. —---—...... 248, 477-486 Dred Scott Case ---------------- 432 Construction Contracts an d Doctrine of Uniformity 409, 418-431 Liens -------------— 103, 207-251 Donations, see Municipal. C(anal Subsidies and Rights, Directors of Railroad Companies 11, 212, 213 69-86, 366, 379, 159 Crossing-s ---------— 212, 213, 310-32; Dartmouth College...........476-4F6 Cost Railroads of U. S........... 6 Depot, Union- 26 —3 1 Consolidation ---------— 64, 65, 401 Death, see Common Carrier and Constitution of Illinois 65, 68, 398-405 Conductors. Color Prejudice - 270 Delay, Unnecessary- 286, 28 7, 299 Conductors and Manslaughter - 268 le facto 106 Congress --...8-13, 63, 223, 248 Discrimination_100, 438, 467, 468, 4, 472 See Subsidy. See Constitution. Cromwell and the Vir-inia Char- Douglas and Subsidy 9 tcr ---------------------------- 475 Dixon and Dillon. —----------- 13l C('op I3ovin g —---------------- 279 Directors, School ---------------- 319 Common Carrier 100, 252-309, 418, 472 Cattle -...............- 248, 347-352 E. Civil Enlgineer ---------- - 312 Eminent Domain ------------- C'onsI)iracy- ---- 346 91, 107, 168-209, 212, 22~, 401 Cumulative Votin ------ 69, 402, Execution and Sale --------— 68, 400'. 0. D..-............. —....296, 297 Excursion Tickets -------------- 409 County Surveyor ---------- -312-317 Extortion -----— 100, 410, 411, 511-519 Chicago and Alton Case __.7, 432-472 See Unjust Discrimination. ('ontempt of Subpoena -----— 369, 370 English Doctrine of Uniformity C:i)mity between Railroads, -..- 424-431, 471 20, 283, 284. 303,,309, 397 Executive Authority-..... 515 Consuls and Stock Transfers,,.. 63 Ex officio -.................... 480 City and County Aid to Rail- Elevators. —----........280-285 toads, see Municipal. LEx parte ---. —--------- 465 ('Chicago Board of Trade -...... 383 English Public Opinion. —----- 473 ('n signor and Consignee...... -En incers and Manslaughter.-.- 268 100, 291-297, 379, 396'llmbcerland Wagon Road -...... 18 F. C!ooley, Judge.- 131, 137, 518 Franchises and their Forfeiture, Corporate Existence and Rights, 70, 82, 105, 405, 410, 465-472, 507-510'25-32, 74, 115-145, 41.5 Freight Liability —......277-301 Code of Ctivilization ---------- 3 Fuller, Gen..................... 25' (Color of Law. —--—. —---- 91) Free Passes. —-. —------------- 2;73 Ceritorar; i. —----—. —---- 9I: Fuel for Railroad Purposes ----- 211 Commissioners of 9Ii8ghwa-y.!)8 Fraud in Shipments-____ 289 (Chicagso and Pacific Railronlad_ 198 Flagg, W. C. 11i Creditors and Stockholders __-68, 70 Flags at Crossings ---------— 318, 319 (C'hicago, Danv-ille and Vincennes F],errtzoe Covert-. —---—.. -- 183 Ralilroad F.. —--------- 13'2 Fires.-......................331, 312' County Clerks and Judees._ 1-1l55 Fences —.........-3..336-'MlI Cumnulative Iemedie. 415 Field, A. P.-.................., 515 Carlin, Gou. 1.5 Force of Precedents ----------- 1.31 INDEX. 3 35 Legislative and Judicial LimitaG. tions. — 135-138, 384, 415, 506-519 Guardians.-....70, 183, 194 Liens and Laborers, see ConGrain Grading,_____285, 377, 383, 384 struction. God, act of. —------------------- 301 Lay-over Tickets. —------------- 274 G-rass and Fires ----------------- 332 Ladies Cars --------— 2 —...... 269 Grading a RailroLad Track ----- 211 Land Subsidy Policy ------ ---- 9-13 Lewis, J, --— _ —, ---- ----- 4.8 II. High on Injunctions-........ 87 3. HIomicide. —---------------- 236, 210 Municipal Aid________ 60, 106, 116-1t7 Hlighways, Railways ------------ Material-Men and Liens -.2137-2-48 1. 17, 141, 142, 17,, 402, 447 Mortgage of Railroad Property 59-61, 83, 2:32 I. aJIhalz iz, se ----------------- 74 Injunctions and Railroads --- 87-107 Malum prohibiturn - 74 Illinois Central' —----— 9 —- ), 10, 13 Municipal Rights and InjuncSee Appendix. tions ------------------------ 91 Illinois Railroads --------------- 1-6 iMonopoly Franchises ------- ---- 105 See Appendix. MIutual Transportation Company 114 Illinois Constitution and Ware- AMississippi Valley, first Railroad houses -------------------— 376 —:3: of --------- ------------- 5 Illinois Constitution and Rail- Meredosia, Town of ------------- 5 rdads -----— 403-M..... ----------- 9-40 ichigan and Railway Aid ---- 131 J/ transit ---------------------- 2S7 Marshall, C. J.. —-- - 137, 168 Ipso facto....' 107 MIandamus, Remedy by -------- 142 I ndirect Railway Aid --------- 7 Map and Profile of Route - 208 Ingersoll, R. G. - - - 71 MIansfield, C. J. —----------- 4423 Iowa and Railway Aid ------— 1-31 Inter-State Commerce 2__23, 18-5,)5 N. Intoxication of Engineers and Notice to Stockholders. —.... — C5 Conductors. —- -------------:-330 New York Courts --------------- 8: Northern Cross Railroad ----- 5 J. Napoleon, Code ---------------. 6S lJudicial Jurisdiction, s: l'(.is- Nutllification ------------------- 47,2 lntive. Ninety Days.s imitation -....... 97 Nuisance ------— 101, 103, 5:' K. Kansas Pacific Railroad. —---- O. Kankaklee and Illinois River Obstructions. —---—. —---------. 34:~ Railroad --------------------- 1:) Oriin Fderal Constitution __ 489!:nrt Obed........... ——. ------- -li;s Obe(dience to Law-_ —------------ 3136 L. P. l.a:irence, C. J., see Cliica:o antl l'Personal Proplerty, Shares o0 Alto n Case. Stock Ij-] —--— 1 —-- ----— il, 68 lawl-rence, J. ------------ 4-21 Previous Assessments on Stock, 61 Leasing Railroads. —------. t;t; l'ower of Attorne -— y.. 63 levee Construction.-99 Parallel or Competing Lines -- C(;5,La ches -.. —---------------- -- 88. t9 t Previous Cheap Transportation Contracts. —-.. —------ 6; 336 INDEX. Proxy, Voting by.-.......... 69 R. Public Policy, Contracts contrary Railroad and Warehouse CornThereto Void ---------------- 74 mission 84, 354-397, 413, 414, 492-499 Palmer, J. M. (Introduction) also 114 Also Appendix. Public Office in the State....... 77 Rolling Stock ---------------— 68, 400 Perry on Directors ------------- 86 Recording Articles of CorporaPreliminary Injunction ----- 95 tion --------------------— 67, 73, 83 Possession of Railroad and In- Regular Stations --------— 264, 265 junctions. —------------------ 95 Regular and Special Meetings -- 71 Publici juris.-. 103 Removal from Office, —------- 72 Public Streets ----------— 98, 102, 103 Reasonable Access to Company Public Squares -. —---------—. 103 Books ------------------------- 73 Pullman Palace Car Company 20, 108 Rate of Interest paid by Railroad Private Enterprize —------------ 7 Company -------------------- 7'2 Pacific Railroad and Breese ---- 8,9 Receivers, Appointment of -___87, 88 Public Domain, odd and even Railroad Corporation, Term Desections -- --- -------- 9 fined ----------------— 108, 109, 416 Poor's Railroad Manuanl.. —— 9, 11 Redfield ----------— 491, 505, 519 Pennsylvania Central Railroad__ 18 Roman Law and Eminent DoPeoria and Rock Island Railroad main ------------------ 168 and Eminent Domain --— 200-205 Retroactive Legislation -------- 321 Profile and Map of Route ------ 208 Right of Way on Railroad Track 322 Peaches, Transportation of -....288 Receipts for Grain -------- - 381 Pre-payment Freight Charges -- 288 Reform by Statute ------------ — 386 Primafacie Evidence ---------- Railroad Employes in Illinois - 330 289, 332, 409, 413, 469, 494 Parsono, Dn Contracts. —----- 477 S. Prosecutions under the Railroad Subscriptions in Aid of RailLegislation.-.... 372, 373, 374, 415 ways ------------------------ 60 Private Damages and Specific Stock Transfers -. —----------- 61 Legislation ------------ 374 Stock Purchases by the CorporaProducers, their P-otection En- tion a —--------—......61, 88 joined -------------------— 381, 382 Sixty Days'Notice ------------ Penalty for Violating Warehouse 65, 82, 316, 341, 401, 403 Law -------— 392, 393, 394, 397, 410 Stockholders, Liability of-_....,70 Penalty for Violating Railway Streets, their Improper Use —--- 96 Law -------- 405, 410, 411, 415, 417 Street Railway Companies. 415, 416 Precedence given to Extortion Sioux City and Pacific Railroad- 8 Cases ------------------------- 415 State Rights and the Subsidy Passenger Rights..- 252-301 Policy --- ------------------ 10 Police Power 491, 492 States Aided in Railroad ConPotter's Dwarris —--------------- 517 struction by Congress - 12 Paupers and Railroads 258 Science of Railroading ---------- 15 Sign-boards at Crossings —--- 324 O. Servants. —-------------- 327-330 Quincy, Missouri and Pacific School Fund and the Rinderpest 350 Railroad Aid Bonds —-- 118 Subpoena -----------------— 369, 370 Qai Tam -------------— 320, 373, 412 Statutory Law and Reform ----- 386 Qo rnto -arrnto.....448, 510, 511 Shortage in Grain Shipments. 388. Storage and Side Track Charges 3f6 INDEX. 337 Stock Transfers in Railroad Corn- Use of a Public Street ----- 96 panies ------ -------------- 399-403 Unauthorized Railway ConstrucStrong, Justice. —- 42 tion 103, 104 Scirefacias ---------------— 510, 511 Union Pacific Railroad ----- 8 Secretary of State -------------- 515 United States Judiciary and RailStrict Construction of Law —---- 516 way Aid ------ 116, 117, 130, 131 Second Class Cars and Tickets_`269 Usage, law of___21, 307, 308, 285, 397 Smoking Cars —' —-------------- 269 Freight Carriage and Comity,285, 397 Side Tracks -— 2 —-------- 284, 285 Unjust Charges and DiscriminaStory on Contracts ------------- 477 tion — 402, 405, 407-417, 445, 494-499 Uniform Charges 409, 456, 456 T. Any Discrimination Unjust ---- 463 Transportation Contracts.. —- 67 U. S. Supreme Court, on InterTrustees, Liability of 70 State Commerce.-..........501-503 Ten Year Limitation --— 63, 149, 159 United States and Public Opinion 473 Twenty Year Occupancy of a Uniformity in Railway Charges, Street by a Railroad Company, 409-431 92, 102 Utility of Supplemental StatTrees and Injunctions_..-.... 99 utes.-386, 391 Trials by Jury and Injunctions.. 103 Taxpayers Rights at Equity ---— 106 V. Tramways ----------------------- 4 Vested Popular Right ---------- 67 Town and Township Aid, see See Doctrine of Uniformity. Municipal. Voltaire on Judicial Limitations 516 Termini, Change, and Municipal Vendors on Railway Trains 27,6 Aid --------------------------- 130 Vattel and Eminent Domain --- 168 Thornton, Judge ----------- 132 Tipton, Judge —----------------- 132 W. Taxation and Public Highways, Watered Stock ------------------ 56 139, 163 See Illinois Constitution. Two Mill Tax ---------------- 149 Wagon Road across Railroad Treasurer, State and Funding -- 153 Track ---------------- 9 ——.98, 102 Thornton, Justice -— 2 —------- 200 Western Pacific Railroad - S- 8 Trespass and Eminent Domain. 207 Wagon Road, Cumberland ----- 18 Trees and Police Regulation 210 Wagon Roads and the Subsidy County Treasurer --------------- 319 Policy --------------------- 11 Texas Cattle, see Live Stock. Wisconsin and Municipal Aid Thistles and Weeds -------- 353 Bonds ----------------------- 131 Thousand-Mile Tickets --------- 409 Warnings at Crossing. —---- 324 Trial by Jury and Extortion __- 410 Weeds and Fires ---------------- 332 Trial by Jury and Forfeiture ---- 410 War Measure ------------------- 346 Taxing Gross Receipts ----— 500-503 Witnesses and the Cattle Disease 350 Transportation Companies -—. - Weeds and Thistles ------------ 353 109, 115, 415, 416 Warehouse Law —--------------- Testimony -----------— 258, 259, 289 100, 277, 278, 367, 37fi-389 Ticket Frauds and Robbery ---- 275 Weighing and Billing __. — 389 Walker, Justice ----------------- 2,74 U. Ward, Judge -------------------- 276 Ultra Vires —------—.. —------ 74 Webster, Daniel -------------- 482 Use of a Railroad Car..... —. 95 Wheelock, Prest. ----------— 479, 480