UNIVERSITY OF ILLINOIS LIBRARY Class Book Volume MrlO-20M Return this book on or before the Latest Date stamped below. Theft, mutilation, and underlining of books .t e - "^ '" ""'I'"""* 32 and may lt in dismissal from th University JJniversity of Illinois Library L161 O-1096 LAW OF EMINENT DOMAIN, RAILROADS AND WAREHOUSES, COMPRISING TIIK CONSTITUTIONAL AND STATUTORY PROVISIONS, STATE OF ILLINOIS, TOGETHER WITH THE DECISIONS RELATING THERETO, OF THE SUPREME COURT AND APPELLATE COURT OF THE STATE OF ILLINOIS, AND THE COURTS OF LAST RESORT IN OTHER STATES, AND OF THE SUPREME COURT OF THE UNITED STATES. COMPILED AND ANNOTATED BY W. H. MANIER. P. irti. UUSK, PUBLISHER, , ILLINOIS. COPYRIGHT, 1888, BY D. W. LUBK. ILLINOIS STATE REGISTER Co. PRINTERS AND BINDERS, , ILL. in o PUBLISHER'S ANNOUNCEMENT. In presenting this volume to the legal profession, the publisher confidently believes that it will be accepted as a valuable contribution to the library of Law, as it forms a convenient and reliable compilation of the statutes of Illinois bearing on the questions of Eminent Domain, Railroads and Warehouses. The well known ability of Mr. MANIER, the compiler, as a lawyer, warrants the assertion that the work will be found both reliable and authentic. The statutes have been taken from publications authorized by the State, and the decisions of the respective courts from official reports, and not from any of the many digests. The revised proof sheets have been read by Mr. MANIER, and carefully compared with his manuscript, which insures accuracy in the printing. Scrupulous care has been observed with regard to the "9 index. In it is cited every section of the statutes and subject con- ^, tained therein, and every annotation, and it is therefore confidently believed that the publication will meet with the universal approval of _u. the legal fraternity. D. W. LUSK. SPRINGFIELD, ILL., April 11, 1888. PREFACE. Illinois has been one of the flrst states which has attempted to regulate and control railway and other corporations by general laws, and many questions have arisen both as to the constitutional power of the legislature to regulate the same, and as to the proper construc- tion of laws enacted for that purpose. These questions have been ably discussed by eminent counsel on both sides, and it would seem that almost every question has been presented and passed upon by our courts. This has resulted in many decisions, which lie scattered through nearly all our State reports, thus making them difficult of access. This fact induced the author to present this compilation of the statutes and decisions in a single volume, hoping thereby to serve the profession and the courts. He has presented all the statute laws on the subject of Eminent Domain, Railways and Public Warehouses, together with the decisions of the Appellate Court and Supreme Court of the State and those of the Federal Courts, and some of the more important decisions of the courts of last resorts in other states. That part of the work relating to Eminent Domain will be found useful in many if not all the states. The decisions collected include all made since the admission of Illinois into the Union. They embrace much relating to the right to condemn land for public use, and by what bodies or agencies, and the mode of the exercise of the right, both under the Constitution of 1848 and that of 1870. This is especially true as to the proper measure of the compensation and damages to be paid by the bodies seeking to condemn. The cases given relate to condemnation by cities and villages of land for parks and other public uses, and for railway purposes. The cases denning the right of one railway company to condemn a right of way over or along another railway, or to condemn property already devoted to a public use, will be found useful, not only to the profession in this State, but through- out the whole country. The statutes and decisions relating to the formation of railway corporations, their various powers, rights, duties and liabilities, among which are the right to enter cities and villages and construct their road and tracks in public streets and highways, and the limitations on that right, and the powers of municipal corporations over the location vi PREFACE. and grade of their tracks, and .to compel such companies to make street crossings and approaches thereto, to fence their tracks and keep flagmen at street crossings, are presented in detail. The statutes and decisions are given relating to the capital stock of corporations, its increase, the forfeiture of stock, its mode of trans- fer, its sale on execution, and the individual liability of stockholders generally; also those relating to the liability of railway companies for injury to domestic animals from negligence at common law, and from a neglect to fence their tracks, and for injury by the escape of fire from passing locomotive engines, as well as for injury from a neglect to put up warning boards at highway crossings, or to give warning by bell or whistle at such crossings. The statutes and cases are given which relate to the expulsion of passengers from cars, for what causes and where, and liability for carrying them beyond their stations, the right of the State to regulate and control railways by proper police regulations, to regulate and fix the rates of charges by railways and public warehouses, and to prevent and punish extortion and unjust discrimination, and the right of car- riers to limit their liability. The work is not designed to present all the cases relating to the common law liability of railways for negligence, but rather those of liability for neglect of statutory duties; but as the doctrine of con- tributory and comparative negligence applies to cases of injury from neglect under the statute, the cases on that subject are presented generally. The statutes and cases relating to the inspection of grain, and to public warehouses and warehouse receipts are also given, besides many other matters of general importance. While the work is devoted to the laws of this State alone, yet from the high standing and great learning of our courts of last resort, and the variety and importance of the questions settled by them, it is thought their various rulings will be of service to the profession and courts of other States, especially those having similar statutes. W. H. MANIER CARTHAGE, ILL., April 11, 1888. RAILWAY AND EMINENT DOMAIN LAWS. CONSTITUTIONAL PROVISIONS. 1. CONSTITUTION 1848 governs in all cases arising under it. Although the constitution of 1848 has been suspended by the present one, still all rights acquired under -it, or under laws passed while it was in force, must be tried by and enforced as though it was in full vigor. People v. Trustees of Schools, 78 111. 136. See post 44, 45. 2. CONSTITUTION 1870 acts prospectively. The constitution of 1870, acts only prospectively, leaving all past transactions unaf- fected by its provisions. It expressly preserves and continues all prior rights, &c., as they were before its adoption. Chicago v. Rum- sey, 87 111. 348; GarricTt v. Chamberlain, 97 111. 620. See post 44, 45. CONSTITUTION OF 1870. 3. SPECIAL LEGISLATION in respect to what prohibited. ART. 4, 22. The general assembly shall not pass local or special laws in any of the following enumerated cases, that is to say: for * (a.) Granting to any corporation, association or individual the right to lay down railroad tracks, or amending existing charters for such purpose. (6.) Granting to any corporation, association or individual any special or exclusive privilege, immunity or franchise whatever. (c. ) In all other cases where a general law can be made applicable, no special law shall be enacted. E. S. 1887, p. 58; S. & C., p. 119, 120; Cothran, p. 9. DECISIONS. 4. GENERAL LEGISLATION what is. General laws are such as relate to or bind all within the jurisdiction of the law-making power, limited as that power may be in its territorial operation, or by consti- tutional restraint. People v. Cooper, 83 111. 585. 5. A general law operates alike upon all persons or things of the same class. Its generality is not affected by the number of those within the scope of its operation. People v. Wright, 70 111. 388. 6. Whether a law is general does not depend upon the number of those within the scope of its operation. It is not necessary that it shall operate upon every person in the state; but it is sufficient if every person who is brought within the relations and circumstances provided for, is affected thereby. Nor is it Accessary that it shall be o - RAILROADS, WAREHOUSES, made equally applicable to all parts of the state. It will be sufficient if it extends to all persons doing, or omitting to do an act within the territorial limits described in the statute. People v. Hoffman, 116 111. 587. 7. A law is general and uniform, and not subject to the objection of being local or special, where it is general and uniform in its opera- tion upon all in the like situation. People v. Hazlewood, 116 111. 319; Hawthorn v. People, 109 111. 302, 312. 8. Law is general, not because it operates on many or few persons in the state, but because every one who is brought within its provis- ions is affected by it. Potwin v. Johnson, 108 111. 70. 9. LOCAL OR SPECIAL, LAWS command to enact, general. This provision against local and special laws is equivalent to a command that general laws alone be enacted. People v. Cooper, 83 111. 585. 10. SAME depending on local option. A law is "local or special," which by reason of local option, is repealed, or has its vitality as a law suspended in one locality, where exists a proper subject matter on which to operate, but remains in full force and vigor in another locality of precisely the same kind, or in the same locality, is law or not law, as shall suit the changing fancies of the local authority. Ib. 11. SAME not affected by being temporary. A local or special statute is limited in .the object to which it applies. A temporary statute is limited merely in its duration. A local or special law may be perpetual, or a general law may be temporary. The "mayor's bill" is neither local nor special, but is a temporary general law. People v. Wright, 70 111. 388. 12. LAWS HELD LOCAL OR SPECIAL act of 1865 sheriff fees. The act of 1865, as amended, relating to sheriff fees in certain coun- ties, being a special law, is of doubtful constitutionality. Alexander County v. Myers, 64 111. 37. 13. JURY SERVICE. Xot competent for the legislature to make an exception in favor of Chicago as to service on juries. In Re Scran- ton, 74 111. 161. 14:. AMENDING CHARTER. An amendment of a prior special char- ter can not be made by a local or special law. Andrews v. People, 75 111. 605; People v. Cooper, 83 111. 585. 15. FERRY FRANCHISE. An act to establish a ferry held to be special legislation and void. Frye v. Partridge, 82 111. 267. 16. FOR ONE COUNTY ONLY. A law classifying counties accord- ing to population, when only one county can be affected, is special legislation. Demne v. Cook County, 84 111. 590. 17. Act creating each county in the state a justice of the peace dis- trict, except Cook county, and making two in it, is in violation of this clause of the constitution. People v. Meech, 101 111. 200. 18. ACTS NOT SPECIAL LEGISLATION incorporation of cities. Art. 9, 54, of the "act to provide for the incorporation of cities and villages," approved April 10, 1872, held not special legislation. Guild v. Chicago, 82 111. 472. 19. ROAD LAW. The road and bridge law for counties under town- ship organization, is not a local or special law. Reynolds v. Foster, 89 111. 257. 20. WAREHOUSE ACT. Acts in Chap. 114, R. S., classifying ware- houses and providing rules for each class, not within the prohibition. Munn v. People, 69 111. 80; People v. Harper, 91 111. 357. 21. PENALTY ON TAXES. The one per cent, per month penalty provided for in the revenue law, Chap. 120, 177, as amended in 1879, AND EMINENT DOMAIN. is not a special law regulating the interest on money. People v. Pea- cock, 98 111. 172. 22. INTEREST ON SPECIAL ASSESSMENT. Fixing the rate of inter- est installments of special assessments shall bear, is not special legis- lation regulating interest on money. McChesney v. People, 99 111. 216. 23. LOAN ASSOCIATIONS. The act of April 4, 1872, entitled "An act to enable associations of persons to become a body corporate to raise funds to be loaned only among its members," is not special legis- lation. Holmes v. Smythe, 100 111. 413; Freeman v. Ottawa Building H. & S. Association, 114 111. 182. 24. DISSOLUTION OF INSOLVENT INSURANCE COMPANIES. The statul e for the dissolution of insurance companies for insolvency, is not a special law. Ch. Life Ins. Co. v. Auditor, 101 111. 82. 25. LIMITATION AS TO MUNICIPAL SUBSCRIPTION. Acts limiting the time for the enforcement of corporate liability on municipal sub- scription in aid of improvement, held not special legislation. People v. Granville, 104 111. 285. 26. AFFIDAVIT OF MERITS IN ATTACHMENT. The requirement in the act for the attachment of boats or water craft, that the defend- ant shall file an affidavit of merits, is not special legislation. Johnson v. Elevator Co., 105 111. 462. 27. JUDGMENT AGAINST SURETY. The statutory provision that judgment shall pass against surety without service or appearance, is not special legislation, as it applies to all bonds of that kind. John- son v. Elevator Co., 105 111. 462. 28. CITY TAXES. A statute for the assessment and collection of taxes which applies to all incorporated cities and towns in the state, is a general, and not a special law. People v. Wallace, 70 I1J. 680. 29. CONSTITUTION OF 1818. Under the constitution of 1818, the legislature had the power to' pass laws for particular cases. Edwards v. Pope, 3 Scam. 465; Lane v. Dor man, 3 Scam. 238. 30. SPECIAL ASSESSMENTS. The provision in the general muni- cipal incorporation act for making and enforcing special assessments by corporations formed under the act, is not special legislation. Pot- win v. Johnson, 108 111. 70; Kilian v. Clark, 9 Bradw. 426. 31. ELECTIONS IN CITIES. The act of 1885, relating to elections in cities, &c., is not a local or special law. The fact that such law has no operation in a city until adopted by the voters thereof, does not render it local or special. A general law may depend on some contin- gency as to when it takes effect in a particular locality. People v. Hoffman, 116 111. 587. 32. SPECIAL LEGISLATION NOT PROHIBITED inspection of grain. The statute for the inspection Of grain in Chicago, is in a certain sense a local and special law, but is not within the constitutional inhi- bition. The inspection of grain is not enumerated in the clause. People v. Harper, 91 111. 357. 33. SCHOOLS providing for system. This clause prohibits special laws for the management of schools, but not special laws providing for funds for the support of schools; nor does it limit the legislature in the means of providing for a system of schools. Fuller v. Heath, 89 111. 296. 34. N"or does it limit the power of forming districts and providing who shall levy and collect taxes. Speight v. People, 87 111. 595. 35. SALE OR MORTGAGE. The provision forbidding special legis- lation regulating the sale or mortgage of lands of minors or others RAILROADS, WAREHOUSES, under disability, does not apply to a sale or mortgage of land of asso- ciations of any kind. Haps v. Hewitt, 97 111. 498. 36. TOWNSHIP ORGANIZATION. The legislature may provide some- what different means for the government and management of towns lying wholly in the country, and those in an incorporated city, without making the law local or special. People v. Hazelwood, 116 111. 319. 37. SAME constitution of 1848 construed. 6, Art. 7 of the con- stitution of 1848, that "the general assembly shall provide by a gen- eral law for township organization," &c., relates to the management of the affairs of the several towns of the counties adopting the sys- tem, and not to the management of the fiscal affairs of the counties. Leach v. People, 111. ; filed June, 1887. 38. Acts held not local or special legislation or otherwise uncon- stitutional. Covington v. East St. Louis, 78 111. 548; Guild v. Chicago, 82 111. 472; People v. Cooper, 83 111. 585; People v. Harper, 91 111. 357; Haps v. Hewitt, 97 111. 498; Ch. Life Ins. Co. v. Auditor, 101 111. 82; Klokke v. Dodge, 103 111. 125; People v. Meech, 101 111. 200; Knicker- bocker v. People, 102 111. 218; Hinckley v. Dean, 104 111. 630; People v. Granmlle, 104 111. 285; Johnson v. Ch. & Pac. Elevator Co., 105 111. 462; Hawthorn v. People, 109 111. 302; Williams v. People, 121 111. 84. 39. SPECIAL OR EXCLUSIVE PRIVILEGE, &c. The prohibition against granting any special or exclusive privilege, &c., extends only to the passing of local or special laws for that purpose. Munn v. People, 69 111. 80. 40. SAME applies only to legislature. The prohibition of the grant of any special or exclusive privilege, &c., is a limitation upon the power of the legislature, and not upon the powers of a city to give leave to build a railroad upon its streets. Ch. City R. R. v. People, 73 111. 541. 41. SAME dram shop act. The dram shop act of 1872, is not unconstitutional as granting special or exclusive privileges. Streetor v. People, 69 111. 595. 42. APPLICABILITY OF GENERAL LAW who may decide. The constitution of 1848 provided that private corporations should not be created by special acts, except where the objects of the corporation could not be attained under general laws. (Art. 10, 1.) Under this, when a corporation was created by special act, the court held that it would presume, without any recital or preamble, that the general assembly considered the object sought could not be attained by a general law. Johnson v. /. & C. R. R., 23 111. 202. 43. This clause prohibiting special legislation "where a general law can be made applicable," addresses itself to the legislature alone. When that body has concluded that a special law is necessary, except in the cases prohibited, its conclusion is not the subject of judicial review. Owners of Land v. People, 113 111. 296, 315. 44. Xo APPLICATION TO PAST LEGISLATION. This clause of the constitution has no reference to past legislation, but simply prescribes the limits of future legislation in the respects named. Covington v. East /St. Louis, 78 111. 548; Guild v. Chicago, 82 111. 475; People v. Cooper, 83 111. 585. 45 . It does not invalidate special city charters previously granted. Covington v. East St. Louis, 78 111. 548. See ante 1, 2. AND EMINENT DOMAIN. CONSTITUTION Or 1870. 46. SPECIAL LEGISLATION prohibited. ART. 11, 1. No corporation shall be created by special laws, or its charter ex- tended, changed or amended, except those for charitable, edu- cational, penal or reformatory purposes, which are to be and remain under the patronage and control of the state, but the general assembly shall provide, by general laws, for the organ- ization of all corporations hereafter to be created. B. 8. 1887, p. 71; S. & C., p. 160; Cothran, p. 28. 47. CURATIVE LEGISLATION. The legislature has the same power to validate irregularly organized corporations as it has to create a new one. Mitchell v. Deeds, 49 111. 416. 48. No REPEAL OF GENERAL LAW corporations under. This clause of the constitution does not repeal the general law on the sub- ject of private corporations in force prior to its adoption, and all corporations formed under such laws, after the adoption of the con- stitution, are valid. Meeker v. Cast Steel Co., 84 111. 276. 49. Under the constitution of 1848 (Art. 10, 2), the word " corpo- rators " is used in the sense of shareholders and not that of commis- sioners or promoters. Gulliver v. Roelle, 100 111. 141. 50. PRIVATE CORPORATIONS subject to police power. Private corporations are subject to the police power of the state, and the legislature may direct and control them in the use of their franchises the same as natural persons. G. & C. U. R. R. v. Loomis, 13 111. 548; Bank v. Hamilton Co., 21 111. 53, 59; Reapers Bank v. Willard, 24 111. 433; N. W. Fertilizing Co. v. Hyde Park, 70 111. 634; Rugyles v. People, 91 111. 256; &. & Ch. Union R. R. v. Dill, 22 111, 269; Ward v. Farwell, 97 111. 593; C. & A. R. R., v. People, 105 111. 657; 0. &. M. R. R. v. Mc- Clellan, 25 111. 140. 51. Corporation formed to do " rendering," may under the police power be prohibited from carrying on such business. N. W. Fertili- zing Co. v. Hyde Park, 70 111. 634. 52. POLICE POWER not unlimited. The police power is subject to constitutional limitations. Police regulations must have reference to the comfort, safety and welfare of society ; and when applied to corporations, they must not be in conflict with any of the rights se- cured by their charters. Lake View v. Rose Hill Cem. Co., 70 111. 191. 53. STOPPAGE OF R. R. TRAINS. The statute requiring all regular passenger trains to stop at county seats, is a proper police regulation. C. & A. R. R. v. People, 105 111. 657. 54. Reservation in charter that the legislature may alter or repeal the same, gives the power to change it. Butler v. Walker, 80 111. 345. 55. CHARTER, A CONTRACT mwoZa&iZiy of. The charter of a private corporation is a contract with which the legislature may not interfere, Bruffett v. Great Western R. R., 25 111. 353; Rugyles v. People, 91 111. 256. 56. REPEAL OF CHARTER. An act which attempts to repeal a railroad charter and confer the powers and property of the corpora- tion upon another body, with a view to declare a forfeiture, or create a dissolution, is unconstitutional. Bruffett v. Great Western R. R., 25 111. 353. 57. MUNICIPAL CORPORATIONS. Their powers, rights, funds and revenues subject to legislative control. Pike Co. v. State, 11 111. 208; KAILBOADS, WAREHOUSES, Richland Co. v. Lawrence Co., 12 111. 1, 8; Trustees of School v. Tai- man, 13 111. 27, 30; Dennis v. Maynard, 15, 111. 477, 480; People v. Power, 25 111., 187, 191; Qreenleaf v. Trustees, 22 111. 236; Mt. Carmel v. Wabash Co., 50 111. 69, 72; Logan Co. v. C% o/ P Lincoln, 81 111. 156; Owners of Land v. PeopZe, 113 111. 296; Marion Co. v. Lear, 108 111. 343. 58. CORPORATIONS limitation as to organizing. ART. II, 2. All existing charters or grants of special or exclu- sive privileges, under which organization shall not have taken place, or which shall not have been in operation within ten days from the time this constitution takes effect, shall thereafter have no validity or effect whatever. R. S. 1887, p. 71; S. & C., p. 161; Cothran, p. 28. See People v. Lowenthal, 93 111. 191; Anthony v. International Bank, 93 III. 225; Peoria & Pekin Union Ry. v. Peoria & Farming- ton By., 105 111. 110, 116; McCartney v. C. & E. Ry., 112 111. 611. 59. CORPORATIONS election of directors minority rep- resentation. ART. 11, 3. The general assembly shall pro- vide by law, that in all elections for directors or managers of incorporated companies, every stockholder shall have the right to vote in person, or by proxy, for the number of shares of stock 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 direc- tors multiplied by the number of his shares of stock shall equal, or to distribute them on the same principle among as many candidates as he shall think fit; and such directors or managers shall not be elected in any other manner. R. S. 1887, p. 71; S. & C. p. 161; Cothran, p. 28. See post 1459. 60. STREET RAILROADS consent of public authorities. ART. 11, 4. No law shall be passed by the general assem- bly granting the right to construct and operate a street rail- road within any city, town or incorporated village, without requiring the consent of the local authorities having the con- trol of the street or highway proposed to be occupied by such street railroad. E. S. 1887, p. 71; S. & C. p. 161; Cothran, p. 28.' See post 117-171. 61. RAILROADS place of office- books reports. ART. 11, 9. Every railroad corporation organized or doing busi- ness in this state, under the laws or authority thereof, shall have and maintain a public office or place in this state for the transaction of its business, where transfers of stock shall be made, and in which shall be kept, for public inspection, books, in which shall be recorded the amount of capital stock subscribed, and by whom; the names of the owners of its stock, and the amounts owned by them respectively; the amount of stock paid in, and by whom ; the transfer of said AND EMINENT DOMAIN. stock; the amount of its assets and liabilities, and the names and place of residence of its officers. The directors of every railroad corporation shall, annually, make a report, under oath, to the auditor of public accounts, or some officer to be designated by law, of all their acts and doings, which report shall include such matters relating to railroads as may be prescribed by law. And the general assembly shall pass laws enforcing by suitable penalties the provisions of this section. E. S. 1887, p. 71; S. & C., p. 162; Cothran, p. 29. See post 1174, 1471; see Eminent Domain, Ch. 47, 1; Infra 179-1071. 62. EAILROADS rolling stock, &c., personal property. ART. 11, 10. 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 per- sonal property of individuals, and the general assembly shall pass no law exempting any such property from execution and sale. R S. 1887, p. 72; S. & C., p. 162; Cothran, p. 29. See post 1369. 63 . EOLLING STOCK changed from realty to personal property. Prior to the adoption of the constitution, the rolling stock of railway companies was real estate. Palmer v. Forbes, 23 111. 301,312; Hunt v. Bullock, 23 111. 320; Titus v. Mabec, 25 111. 257; Titus v. (Jinheimer, 27. 111. 462; Mich. Cent. R. R. v. Chi. &c., R. R. 1 Bradw. 399. See C. & A. R. R. v. Goodwin, 111 111. 273; Johnson v. Roberts, 102 111. 655; C. & A. R. R. v. People, 98 111. 350; Maus v. L. P. & JB. R. R., 27 111. 77. See post 1369-1375. 64 . The doctrine that realty, franchises, &c., of a railway, mort- gaged as an entirety, may be sold as an entirety under a decree in equity, without any right of redemption, is not in conflict with this constitutional provision. Hammock v. Loan & Trust Co., 105 U.S. 77. 65. Nor does such provision change the rule, that a mortgage made by a railway company, covering after-acquired property, holds such property as against creditors obtaining judgments and execu- tions after the company has received possession of such property. Scott v. Clinton, &c., R. R., 6 Biss. 529. 66 . The rolling stock of a railroad is a part of the realty so as to pass by a mortgage or conveyance of the road. M. C. R. R. v. C. & M. L. tf. R. R., 1 Brariw. 399. 67. KAILROAD COMPANIES limitation as to consolida- tion directors residence. ART. 11, 11. No railroad cor- poration shall consolidate its stock, property or franchises with any other railroad corporation owning a parallel or competing line; and in no case shall any consolidation take place, except upon public notice given, of at least sixty days, to all stockholders, in such manner as may be provided by law. A majority of the directors of any railroad corporation, now incorporated or hereafter to be incorporated by the laws of this state, shall be citizens and residents of this state. E. S. 1887, p. 72; S. & C., p. 163; Cothran, p. 29. EAILEOADS, WAREHOUSES, This section cited in Chicago & Western Indiana R. R. v. Dunbar, 95 I1L 578. See post 1187, 1386-1421, 1425. 68. RAILWAYS declared public highways fixing maxi- mum rates of charges. ART. 11, 12. Railways heretofore constructed, or that may hereafter be constructed in this state, are hereby declared public highways, and shall be free to all persons for the transportation of their persons and property thereon, under such regulations as may be prescribed by law. And the general assembly shall, from time to time, pass laws establishing reasonable maximum rates of charges for the transportation of passengers and freight on the different rail- roads in this state. R. S. 1887, p. 72; S. & C., p. 163; Goth- ran, p. 29. See post 1428-1458. 69 . HIGHWAYS in what sense. Railroads are highways, not in the sense of public wagon roads, upon which every one may transact his own business with his own means of conveyance, but only in the sense of being compelled to accept of each and all, and take and carry to the full extent of their ability. T. P. & W. Ry. v. Pence, 68 111. 524; Central Military Tract R. R. v. Rockafellow, 17 111. 541, 557. 70. This clause of the constitution does not affect the liability of a railway company for a neglect to fence its road. T. P. & W. Ry. v. Pence, 68 111. 524. 71. A private switch from a railroad to coal lands, which is not owned by the railway company, but by individuals for their own pri- vate use, is not a public highway within the meaning of this provis- ion of the constitution. That section applies only to public railroads. Koelle v. Knecht, 99 111. 396. 72. When a railroad track is laid down in a street by authority of the city council, to connect a private manufacturing establishment with other railroad tracks, it becomes a public highway, and the city council nave a right to devote a portion of the street to that use. Parlin v. Mills, 11 Bradw. 396; Truesdale et al v. Grape Sugar Co. 101 111. 567. 73. Held applicable to track laid to connect factory with railway, Parlin v. Mills, 1 1 Bradw. 396. 74. Railways are public highways only so far as owners and oper- ators are subject to duties of common carriers. T. P. & W. Ry. v. Pence, 68 ill. 524. 75 . RIGHT or STATE TO FIX OK LIMIT KATES CHARGED. In an action under the act April 13, 1871, to recover of a railway company for an overcharge of passenger fare made before the railroad commission- ers had assigned the defendant's road to any class as required by that act, there was no proof that the charge made was unreasonable* or to what class the road belonged. Held that plaintiff could not recover. Moore v. III. Central R. R., 68 111. 385. 76. To hold a railroad company liable to the penalties provided in the act of May 2, 1873, on the ground of extortion, it must be shown that it charged more than the maximum rates fixed by the board of railroad and warehouse commissioners; and until these rates are fixed, no liability can be incurred under the statute, for unreasonable or extortionate charges, and when made, the taking of the rates named, or less rates will not incur the penalty, even though the proof shows them to be more than fair and reasonable rates. C. B. & Q. R. R. v. People, 77 111. 443. AND EMINENT DOMAIN. 77. An express grant of power to a railway company to fix the rates of tolls to be charged, and to alter and change the same, does not confer unlimited power, but only the right to charge reasonable rates, and what is a reasonable maximum rate may be fixed by statute. Ruggles v. People, 91 111. 256. 78 . The legislature has the power to fix a maximum rate of charges by individuals as common carriers, warehousemen, or others exer- cising a calling or business public in its character, or in which the public have an interest to be protected against extortion or oppression, and it has the same rightful power in respect to corporations exercis- ing the same business, and such regulation does not impair the obliga- tion of the contract in their charters. Ib. 79. The act of April 17, 1871, entitled "An act to establish a rea- sonable maximum rate of charges for the transportation of passengers on railroads in this state," is not unconstitutional, but is a valid law. Ib. 80. The act of April 25, 1871, entitled "An act to regulate public warehouses and the warehousing and inspection of grain, and to give effect to article 13 of the constitution," and which provides a maxi- mum rate of charges, is not in violation of that clause of the bill of rights which declares that no person shall be deprived of life, liberty or property without due process of law, nor of that clause which pro- vides that "private property shall not be taken or damaged for public use without just compensation." Munn v. People, 69 111. 80. 81 . The act of May 2, 1873, to prevent extortion and unjust dis- crimination in railroads, is a constitutional enactment, and is not in violation of the contract between the state and the railroad compa- nies, growing out of the granting and accepting their charters, con- taining power to establish such rates of toll for the conveyance of persons and property as they shall from time to time, direct and deter- mine in the by-laws. /. C. R. R. v. People, 95 111. 313. 82. The right of a state to reasonably limit the amount of charges by a railroad company for the transportation of persons and property within its jurisdiction, cannot be granted away by its legislature, unless by words of positive grant, or words equivalent in law. Rail- road commission cases, 116 U. S. 307. 83 . A statute which grants to a railroad company the right "from time to time to fix, regulate and receive the tolls and charges by them to be received for transportation," does not deprive the state of its power, within the limits of its authority as controlled by the constitu- tion of the United States, to act upon the reasonableness of the tolls and charges so fixed and regulated. Ib.; Stone v. III. Central R. R., 116 U. S. 347: Stone v. N. O. & N. E. R. R., 116 U. S. 352. 84 . It is the settled doctrine in the Supreme Court of the United States that a state has the power to limit the amount of charges by railroad companies for the transportation of persons and property within its own jurisdiction, unless restrained by some contract in the charter, or unless what is done amounts to a regulation of foreign, or inter-state commerce. Railroad commission cases, 116 U. S. 307: R. R. v. Maryland, 21 Wall. 456; C. B. & Q. R. R. v. Iowa, 94 U. S. 155; Peik v. Ch. & N. W. Ry., 94 U. S. 164; Winona & St. Paul R. R. v. make, 94 U. S. 180; Ruggles v. Illinois, 108 U. S. 526. 85. The act entitled "An act to regulate public warehouses and the warehousing and inspection of grain, and to give effect to article 13 of the constitution of this state," approved April 25, 1871, is not repugnant to the constitution of the United States. Munn v. Illinois, 94 U. S. 113. 86. For other cases asserting the power of the states to regulate the rates of railroad charges on business not inter-state in its nature, 10 EAILEOADS, WAREHOUSES, see Ch., M. & St. P. R. R. v. Ackley, 4 Otto, 179: Winona & St. Peter R. R. v. Slake, 4 Otto, 180; Peik v. Ch. & N. W. Ry., 4 Otto, 164; Stone v. Wisconsin, 94 U. S. 181; Union Pacific R. R. v. U. 8., 99 U. 13. 700; Hinckley v. Ch., M. & St. P. Ry., 38 Wis. 194; State v. Wi- nona & St. Peter R. R.,W Minn. 434; C. H. & D. R. R. v. Cole, 29 Ohio St. 126; Iron R. R. v. Lawrence Furnace Co.; Id. 208; Mobile & M. Ry. v. Steiner, 61 Ala. 559; Parker v. Metropolitan R.R., i09 Mass. 506; Shields v. Ohio, 95 U. S. 319; American Coal Co. v. Consolidation Coal Co., 46 Md. 15; Attorney General v. Railroad Companies, 35 Wis. 435; L. S. & M. S. Ry. v. C. S. & C.Ry., 30 Ohio St. 604. 87. RAILWAY COMPANY limitation on issue of bonds or stock, or increase of capital stock. ART. 11, 13. No rail- road corporation shall issue any stock or bonds, except for money, labor or property actually received, and applied to the purposes for which such corporation was created; and all stock dividends, and other fictitious increase of the capital stock or indebtedness of any such corporation, shall be void. The capital stock of no railroad corporation shall be increased for any purpose, except upon giving sixty days' public notice, in such manner as may be provided by law. it. S. 1887, p. 72; S. & C., p. 163; Cothran, p. 30. Post 1376-1385. 88. This clause is intended to prevent reckless and unscrupulous speculators from fraudulently issuing and putting upon the market bonds or stocks that do not, and are not intended to represent money or property of any kind, either in possession or expectancy, the stock or bonds in such case being entirely fictitious. Peoria & Springfield R. R. v. Thompson, 103 111. 187. 89 . It was not intended by that provision to interfere with the usual and customary methods of raising funds by railroad companies, by the issue of its stocks, or bonds for the purpose of building their roads or accomplishing other legitimate corporate purposes. 76. 90. Under this provision railroad companies have no right to lend, give away, or sell on credit their bonds or stock, nor have they the right to dispose of either, except for a present consideration and for a corporate purpose. Ib. 91. CORPORATIONS franchises and property of, subject to right of eminent domain jury trial. ART. 11, 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 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 said right. R S. 1887, p. 72; 8. & C., p. 163; Cothran, p. 30. Post 242-277. 92 . Tliis, together with Art. 2, 13, took effect immediately upon the adoption of the constitution, without the aid of any legislation, and operated as a repeal of so much of the act of 1852, as related to giving of bond on appeal before entry. Mitchell v. /. & St. L. R. R., 68 111. 286. AND EMINENT DOMAIN. 11 93. As to the right of one corporation to condemn the property or franchise of another already devoted to a public use, see Mills et al v. St. Glair County, 2 Gilm. 147; III. & Mich. Canal \. Ch. & Rock Island R. R., 14 111. 314; P. P. & J. R. R. v. P. & S. R. R., 66 111. 174; C. R. I. & P. R. R. v. Town of Lake. 71 111. 333; Metropolitan City Ry. v. Ch. West Division Ry., 87 111. 317; Central City Horse Ry. v. Ft. Clark Horse Ry., 81 111. 523; L. 8. & M. S. Ry. v. Ch. & W. Ind. R. R., 97 111. 506; St. L. J. & C. R. R. v. S. & N. W. R. R., 96 111. 274; E. St. L. Connecting Ry. v. E. St. L. Union Ry., 108 111. 265; Ch. tfr N. W. Ry. v. Ch. & Evanston R. R., 112 111. 589; Ch. & W. Ind. R. R. y.Ill. Central R. R., 113 111. 156; Ch. & N. W. Ry. v. Village of Jefferson, 14 Bradw. 615; Ch. & W. Ind. R. R. v. Ch. St. L. Pittsburg R. R., 15 Bradw. 587. See Eminent Domain. Post 179- 1070. 94. RAILROADS duty of passing laws to prevent unjust discriminations and extortions by. ART. 11, 15. The gen- eral 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. R S. 1887, p. 72; S. & C., p. 164; Cothran, p. 30. Post 2645-2725. 95 . This provision restricts the power of the legislature to the pro- hibition of such discriminations only as are unjust. C. & A. R. R. v. People, 67 111. 11. 96. An act prohibiting any discrimination under any circumstan- ces, whether just or unjust, and making a difference in charges for the same distance, conclusive evidence of unjust discrimination, and in- flicting a forfeiture of franchises, &c., on conviction, is unconsti- tutional. Ib. 97. LIMITATION OF ACTION FOR. The liability imposed by the statute upon railroad corporations for extortion and unjust discrimi- nation, giving triple damages, is a statutory penalty, and actions there- for must be brought within two years after the cause of action accrued. St. Louis, Alton & Terre Haute R. R. v. Hill, 11 Bradw. 248. 98. DISCRIMINATION MUST BE UNJUST. In an action under the statute prohibiting extortion and unjust discrimination by railroad companies, it must appear not only that the corporation made a dis- crimination in its rates of toll, but also that such discrimination is unjust, and these facts must be alleged in the declaration. 76. For laws and decisions as to unjust discriminations and extortion, see post 2645-2725. 99. WAREHOUSES what are public warehouses. ART. 13, 1. All elevators or storehouses where grain or other property is stored for a compensation, whether the property stored be kept separate or not, are declared to be public warehouses. R. S. 1887, p. 73; S. & C., p. 164; Cothran, p. 31. 100 See Ch. 114, 126-144, passed in pursuance of this article of the constitution. Butcher v. People, 11 Bradw. 312. 101. This article cited in Munn v. Illinois, 94 U. S. 133, which holds the act passed in pursuance thereof is not in violation of the constitution of the United States. 12 BAILBOADS, WAREHOUSES, 102. The act of April 25, 1871, providing a maximum rate of charges for warehouses, does not contravene Art. 2, 2, nor Art. 4, 22, of the state constitution, but is a constitutional regulation of trade and a valid law. Munn v. People, 69 111. 80; Munn v. Illinois, 94 U. 8. 113. 103 . The legislature may commit to a board of warehouse com- missioners power to control the inspection of grain. People v. Harper, 91 111. 357. As to laws on this subject and decisions of the courts, see post 2732-2801. 1 04. POSTING REPORTS mixing grain of different grades. ART. 13, 2. The owner, lessee or manager of each and every public warehouse situated in any town or city of not less than 100,000 inhabitants, shall make weekly statements under oath, before some officer to be designated by law, and keep the same posted in some conspicuous place in the office of such warehouse, and shall also file a copy for public exami- nation in such place as shall be designated by law, which statement shall correctly set forth the amount and grade of each and every kind of grain in such warehouse, together with such other property as may be stored therein, and what warehouse receipts have been issued, and are, at the time of making such statement, outstanding therefor; and shall, on the copy posted in the warehouse, note daily such changes as may be made in the quantity and grade of grain in such ware- house; and the different grades of grain shipped in separate lots shall not be mixed with inferior or superior grades with- out the consent of the owner or consignee thereof. K. S. 1887, p. 73; S. & C.. p. 165; Cothran, p. 31. 105. EIGHT TO INSPECT PROPERTY AND BOOKS. ART. 13, 3. The owners of property stored in any warehouse, or holder of a receipt for the same, shall always be at liberty to examine such property stored, and all the books and records of the warehouse in regard to such property. E. S. 1887, p. 73; S. & C., p. 165; Cothran, p. 31. 106. WEIGHING GRAIN receipt and liability for delivery of grain. ART. 13, 4. All railroad companies and other common carriers on railroads shall weigh or measure grain at points where it is shipped, and receipt for the full amount, and shall be responsible for the delivery of such amount to the owner or consignee thereof, at the place of destination. E. S. 1887, p. 73; S. & C., p. 165; Cothran, p. 31. Post 2728 2731; 2802-2811. 107. DELIVERY OF GRAIN AT PLACE DIRECTED connec- tions with other roads. ART. 13, 5. All railroad companies receiving and transporting grain in bulk or otherwise, shall deliver the same to any consignee thereof, or any elevator or public warehouse to which it may be consigned, provided AND EMINENT DOMAIN. 13 such consignee or the elevator or public warehouse can be reached by any track owned, leased or used, or which can be used, by such railroad companies; and all railroad companies shall permit connections to be made with their track, so that any such consignee, and any public warehouse, coal bank or coal yard, may be reached by the cars on said railroad. E. S. 1887, p. 73; S. & C., p. 165; Cothran, p. 31. 108. The words " can be reached " do not. mean reached by physi- cal possibility, but by a track which the company has a right to use. If the place of consignment can be reached by any track of which the railway company is owner or lessee, or which can be lawfully used by it, the company is bound to deliver at that place. C. B. & Q. R. R. v. Hoyt, 1 Bradw. 374, 386. 109. This section does not require a railway company to do any act it has no right to do: e. g., to use another company's track without license. Hoyt v. C. B. & Q. R. R., 93 111. 601. 110. It seems that the last clause of the above section, requiring all railroad companies to permit connections to be made with their track, so that any public warehouse may be reached by the cars on such railroad, changes the rule announced in People ex rel. v. C & A. R. R., 55 111. 95; Vincent v. C. & A. R. R., 49 111. 33; People ex rel. v. C. & N. W. Ry., 57 111. 436; C. B. & Q. R. R. v. Hoyt, 1 Bradw. 387; Hoyt v. C. B. & Q. R. R., 93 111. 611. 111. FRAUDULENT WAREHOUSE RECEIPTS passage of laws to enforce provisions of Art. 13 rule of construction. ART. 13, 6. It shall be the duty of the general assembly to pass all necessary laws to prevent the issue of false and fraudulent warehouse receipts, and to give full effect to this article of the constitution, which shall be liberally CQnstrued so as to protect producers and shippers. And the enumera- tion of the remedies herein named shall not be construed to deny to the general assembly the power to prescribe by law such other and further remedies as may be found expedient, or to deprive any person of existing common law remedies. B. S. 1887, p. 73; S. & 0., p. 166; Cothran, p. 31. 112. INSPECTION OF GRAIN laws to regulate. ART. 13, 7. The general assembly shall pass laws for the inspection of grain, for the protection of producers, shippers and receiv- ers of grain and produce. R S. 1887, p. 73; S. & C., p. 166; Cothran, p. 31. 113. It was competent to delegate to the railroad and warehouse commission the power to control the subject of the inspection of grain, and the law of this state on that subject is a valid law. People v. Harper, 91 111. 357. See post 2756-2763, 2770-2774, 2796-2801. 14 KAILROADS, WAREHOUSES. CHAPTER 22. CHANCERY. 114. PRIVATE CORPORATIONS discovery by. 22. When a corporation, other than a municipal corporation, is defendant to a bill or petition praying discovery of any paper or matter alleged to be in the custody or within the knowledge of any officer or agent of the defendant, it shall not be necessary, for the purpose of procuring such discovery, to make such officer or agent a defendant, but the answer touching the paper or matter concerning which discovery is sought, shall be under the oath of such officer or agent the same as if he had been made defendant; provided, no corporation shall be required to procure such answer under the oath of any person not under its control at the time when the bill is filed. R. S. 1887, p. 216, 22; S. & C., p. 404, 22; Cothran, p. 188, 22. In force July 1, 1872. Laws 1871-2, p. 333. This is a new section, not in the prior laws. 115. ANSWER OF CORPORATION before this statute. The answer of a corporation aggregate should be under seal, but not under oath. Before this enactment, if a sworn answer was desired, some managing officer who could answer under oath was required to be made a party. Fulton Co. v. M. & W. R. R., 21 111. 338, 364. 116. BILL charge on information and belief. Where the matter essential to relief is charged to rest in the knowledge of the defendant, or must of necessity be within the knowledge of the defendant, and is a part of the discovery sought, it may be stated upon the information and belief of the complainant. Campbell v. P. & D. R. R., 71 111. 611. CHAPTER 24. CITIES VILLAGES AND TOWNS. An act to provide for the incorporation of cities and villages, approved April 10, 1872; in force July 1, 1872; laws 1871-2, p. 218. 117. POWERS OF CITY COUNCIL location, grade and cross- ing of railroads. ART. 5. 1. The city council in cities, and president and the board of trustees in villages, shall have the following powers: * * * * Twenty-fifth To provide for and change the location, grade and crossings of any railroad. R. S. 1887, p. 247; S. & C., p. 465; Cothran, p. 227. See post 1235-1303, 2089-2097. 118. RAILWAY TRACK IN CITY consent of council i> !<>. ^i />>/. The power conferred upon a railway company to select its own route and fix its terminal points, is subject to a proviso affecting its right to construct its road upon or across any street in any incorporated city without the assent of such city. This proviso is a limitation of power, and is an exclusion of such railroad from incorporated cities, except upon compliance with its conditions. Before such railroad can con- AND EMINENT DOMAIN. 15 struct its track in or through an incorporated city it must first obtain the consent of the common council acting in a legal manner. Hlckey v. Ch. & W. Ind. R. R., 6 Bradw. 172. 119. SAME consent, how obtained. Inasmuch as the railroad act contains no provision as to how such consent may be obtained, the action of the city council must be governed by the provisions of the general statute relating to the incorporation of cities and villages. Ib. 120. POWER OF CITY to regulate railroads. Cities have full power to regulate the location and use of railroad tracks within their corporate limits. This is a public power or trust and can be exercised by the corporation when and in such manner as it shall judge best, but such power cannot be delegated to others. Ib. 121 . ORDINANCE GIVING RIGHT certainty infixing location, &c. In giving consent to a railway company to locate its track upon or over the streets, the council must prescribe the location of such road with reasonably definite lines; and if it fails to do so, but delegates to the railway company itself a discretion in that respect, the ordinance will be void. Ib. 122 . An ordinance granting permission to "construct, &c., one or more tracks * * * commencing at the southern boundary line of the city of Chicago, at some point within 100 feet of the west line of Stewart Avenue, and thence northwardly * * * parallel to said avenue to its intersection with Grove street, thence * * * to such terminus as it may establish between the east bank of the south branch of the Chicago river, and the west side of State street, and between Sixteenth street and the south line of Van Buren street," is void for indefiniteness. Ib. 123 . DELEGATION OF AUTHORITY. The ordinance further pro- vided that the company might permit other railroad companies to use the said railroad track "upon such terms as may be agreed upon by said companies." This delegation of power rendered the ordinance void, because its exercise would result in a deprivation of the city of the control and regulation of a portion of its streets. Ib. 124. INJUNCTION. A railroad company having no power to con- struct its track in a city except by consent of the city council, if such consent is void, a court of equity will have jurisdiction to restrain, by injunction, the company from exercising such power. Ib. 125 POWER OF CITY to grant right for railroad in a street. A city has the power to authorize the laying of railroad tracks in its streets; and where a city under a resolution adopted, conveys a street absolutely to a railway company, the resolution and deed will give the company the right to construct, maintain and operate its tracks upon the street, and when such right is exercised, the city cannot resume the grant to the exclusion of the company. Ouincy v. C. B. & Q.R. R., W 111. 21. 126. The recognition by a city for over twenty years of a resolu- tion granting a right to lay railroad tracks in certain streets as being in force, and its acquiescence thereunder, affords presumptive evi- dence of its due publication. Ib. 127. MODE OF GRANTING RIGHT. Although a city charter may provide that the city council shall have power to make all ordinances necessary and proper for carrying into execution the powers specified in the charter, the action of the city council, though in the form of a resolution, in connection with its deed granting the use of streets for railroad tracks, will be a sufficient grant of permission to so vise the streets. Ib. 128. EIGHT TO FIX ROUTE consent as to streets. Under the general law a railway company has authority to select its own route. 16 KAILEOADS, WAREHOUSES, to lay out its road and to construct the same; and this power, by necessary implication, carries with it the power of fixing the terminal points of the road, subject only to the limitation that the construction of its road upon or across any street in any city, must be with the assent of the city couacil. Ch. & W. Ind. R. R. v. Dunbar, 100 111. 110. 129. The lines selected may, without the assent of the city, cross streets, and the company may, without such assent, acquire the right of way, and construct its road on every part of such line, except the parts upon or across the streets. Ib. 130. Under the present legislation, it is not necessary as a condi- tion precedent to the location of a railroad within a city, or to its con- struction within the city, or such parts of its lines as are not within any street, or to the power to condemn private property within the city, that any ordinance should be passed by the city council, either giving assent for the construction of the road upon or across streets, or providing for the location of the road. Ib. 131 . ORDINANCE aujfftciencg of certainty. An ordinance grant- ing permission to construct and operate a railroad within the city limits, is not void because it fails to designate the precise point at which the road may be constructed upon and across the streets to be intersected by it. Ib. 132 . DELEGATION OF POWER. Permission granted by a city coun- cil to a railway company to construct its road across streets at any point to be selected by the company within a given district, is not a delegation to the company of powers which can only be exercised by the council, as the power to locate the line of the road is given by statute to the company alone, and not to the city authorities. The city of , Chicago has power to make provision for the location of a railroad within its limits, but no power to locate. That power is in the railway company, subject to such provisions for the location as the city council may make. 76. 133 . The mere existence of a power in a city council "to provide for the location, grade and crossings" of railroads within the city, and "to change the location, grade and crossings" of railroads, until exer- cised, is no limitation upon the power of the railroad company to select its route and locate its road within the city. Ib. 134. USE BY OTHER COMPANIES. A provision in an ordinance that the permission to construct a railroad within the city, is upon the condition that the railway company shall permit any other railroad companies, not exceeding two in number, which have not then the right of entrance into the city, to use the main track of the road, therein authorized to be laid, jointly with such road so authorized, does not render the ordinance invalid, as it confers upon the railroad company no power not given it by law, nor does it deprive the city of any power whatever. Ib. 135. An ordinance giving a railroad company license to construct its track along or across the streets and alleys of a city, upon the con- dition that it shall permit any other companies, not exceeding two in number, to use its main track upon such fair and equitable terms as may be agreed upon, will not be construed as prohibiting the company from leasing the use of its track within the city to more than two other companies. Such provision is a limitation, not upon the right of the company to admit other companies to a joint use of its track, but upon the exclusive enjoyment of the estate granted by the city. Chicago v. Ch. & W. Ind. It. R., 105 111. 73. 136. Under the 9th and 25th clauses of 1, Art. 5, of the general incorporation law, the common council of cities incorporated under that law, is vested with the exclusive control and regulation of the AND EMINENT DOMAIN. 17 streets of their cities, and with the power to direct and control the location of railroad tracks within the limits of their cities; and being inconsistent with the 9th clause of 1, Art. 5, of the amended charter of the city of Chicago, adopted in 1867, must prevail over the latter. Chicago Dock & Canal Co. v. Garrity, 115 111. 155. 187. A city council may grant to private individuals or to a private corporation, the right to lay railroad tracks in the streets connecting with public railway tracks previously laid, and extending to the man- ufacturing establishments or warehouses of those laying the tracks. They then oecome part of the railway with which they connect, and are subject to public use and control, as other railway tracks. 76. 138. The only authority that can call in question the right of a railway company to construct its track along or across a street or highway in an incorporated city or village, is such city or village. The county authorities cannot even question the validity of an ordinance of a city or village for the construction of a railroad within such city or village. Cook Co. v. Great Western R. R., 119, 111. 218. 139. GRANT OF USE OF STREET CONSTRUED. An ordinance or resolution of a city appropriated certain streets to a railway company, " so far as said company may require to appropriate them in crossing them in the construction of their railroad tracks, switches, turnouts, &c., and other machinery and fixtures to be used or employed by them in operating their said road, subject, however, to this proviso: that the same shall be occupied with as little detriment and inconvenience as possible," and requiring the crossings to be so graded as to make the embankments no obstruction: Held that this was but a provision for a joint use with the public having occasion to use the streets by other modes of travel. St. L. A. & T. H. R. R. v. Belleville, 111. . Filed June, 1887. 140. VACATION of the vote required, &c. A public street or alley can be vacated or closed only by the city council, and by it only upon a three-fourths majority vote of all the aldermen authorized by law to be elected, to be taken by ayes and noes and entered upon the record of the proceedings of the council or board. Ib. 141. PUBLIC BOUND BY LAWFUL GRANT. A city has the power to allow the construction of a railroad upon or over its streets, and the public will be bound by whatever may be lawfully done in regard to the streets by the city. Ch. & N. W. JR. R. v. People, 91 111. 251. 142. NUISANCE. A railroad track laid upon a street of a city by authority of law, properly constructed and operated in a careful and skillful manner, is not in law a nuisance. Ch. & E. III. R. R., v. Loeb, 118111.203. 143 CONDITIONS binding as a contract. When leave is given to lay a railroad track in a street on conditions which are accepted, this will constitute a contract binding upon the city which it may not dis- regard, by imposing further conditions and burdens. People v. W Div.Ry., 118111. 113. 144. POWER OF CITY to compel fencing of railroad track. Twenty-sixth. To require railroad companies to fence their respective railroads, or any portion of the same, and to construct cattle guards, crossings of streets and public roads, and keep the same in repair, within the limits of the corpo- ration. In case any railroad company shall fail to comply with any such ordinance, it shall be liable for all damages the owner of any cattle or horses or other domestic animal, 3 18 KAILROADS, WAREHOUSES, may sustain, by reason of injuries thereto while on the track of such railroad, in like manner and extent as under the gen- eral laws of this state, relative to the fencing of railroads; and actions to recover such damages may be instituted before any justice of the peace or other court of competent jurisdic- tion. [R. S. 1887, p. 247; S. & C. 465; Cothran, 227. See post 1518-1799.] 1 4: 5. POWERS OF CITY railway flagmen grade of track ditches. Twenty-seventh. To require railroad companies to keep flagmen at railroad crossings of streets, and provide protection against injury to person's and property in the use of such railroads. To compel such railroads to raise or lower their railroad tracks to conform to any grade which may at any time be established by such city, and where such tracks run lengthwise of any such street, alley or highway, to keep their railroad tracks on a level with the street surface, and so that such tracks may be crossed at any place on such street, alley or highway. To compel and require railroad compa- nies to make and keep open and to keep in repair, ditches, drains, sewers and culverts along and under their railroad tracks, so that filthy or stagnant pools of water cannot stand on their grounds or right of way, and so that the natu- ral drainage of adjacent property shall not be impeded. [R. S. 1887, p. 247; 8. & C., p. 465; Cothran, p. 228. See post 2450-2455.] 146. DUTY TO KEEP FLAGMAN liability for neglect to do so. See /M. L. V. & T. H. R. R., v. Dunn, 78 111. 197; /. C. R. R. v. Ebert, 74 111. 399; P. & P. U. Ry. v. Claybera, 107 111. 644; L. S. &M. 8. R. R. v. Sunderland, 2 Bradw. 307; L. tf. & M. S. R, R. v Kaste, 11 Bradw. 536. 147. KEGULATION OF USE OF STREETS. The act of 1872, relating to cities and villages, confers upon them full authority to regulate the use of streets, to provide for and change the location, grade and cross- ings of railroads, to require railway companies to fence their roads, to construct cattle-guards and crossings of streets, to keep the same in repair, to maintain flagmen at such crossings, to compel the roads to raise or lower their tracks, &c. This invests incorporated cities and villages with exclusive authority over the matter of railroad crossings of streets and highways within their limits, and excludes the jurisdic- tion of the county or town authorities. Cook Co. v. Great Western R. R. t 119 111. 218. 148. ALLOWING ICE ALONG TRACKS. A railway company not being required by law to keep the excavations along the sides of its track free from water and ice, it will not be liable for stock killed in consequence of ice therein, so as to prevent escape from the track, over the same. P. & R. Q. Ry. v. McClenalian, 74 111. 435. 149. LIABILITY OF RAILWAY to make safe crossing for new street. Long after the construction of a railroad, a street was extended so as to cross the same, and the city passed an ordinance requiring the company to make a safe and proper crossing by grading the approaches of the street at the crossing, there being nothing in the charter of the company imposing such duty, or any such duty imposed by any gen- AND EMINENT DOMAIN. 19 eral law in force at the time the company was created: Held, that the ordinance was void, and that the legislature itself could not impose this new burden without making compensation. /. C. R. R. v. Bloom- ington, 76 111. 447. 150. POWEES OF CITY extending streets across rail- road. Eighty-ninth. The city council shall have power by condemnation or otherwise, to extend any street, alley or highway over or across, or to construct any sewer under or through any railroad track, right of way, or land of any rail- road company (within the corporate limits); but where no compensation is made to such railroad company, the city shall restore such railroad track, right of way or land to its former state, or in a sufficient manner not to have impaired its use- fulness. [E. S. 1887, p. 250; S. & C., p. 472; Cothran, p. 232. J 151. USE OF STREET BY RAILWAY petition of lot owners necessary. Ninetieth. The city council or board of trustees shall have no power to grant the use of, or the right to lay down, any railroad track, in any street of the city, to any steam or horse railroad company, except upon a petition of the owners of the land representing more than one-half of the frontage of the street, or so much thereof as is sought to be used for railroad purposes. [K. S. 1887, p. 250; S. & C., p. 472; Cothran, p. 232. See Horse & Dummy Eailroads, Chap. 66, 3, and Bailroads & Warehouses, Chap. 114. See post 1235-1303.] 152. A compliance with this condition is an essential prerequisite to a valid execution of the power. Hickey v. Ch. & W. Ind. R. R., 6 Bradw. 172. 153. PETITION. A petition to the common council for the right to construct a railroad track along a public street, is sufficient, if pre- sented by owners representing more than one-half of the frontage of so much of the street as is sought to be used for railroad purposes. Schuchert v. W. C. & W. R. R., 10 Bradw. 397. 154. COMPANY TAKES subject to damages. When an incorpo- rated city, by proper ordinance, authorizes a railroad company to con- struct and operate a railroad in a street, the company acquires the right to build and operate such road without interference by the public or individuals, subject however to the liability to respond to the owners of land abutting on the street, for such injuries sustained by them in consequence thereof as are to be deemed legal elements of damages. Ch. & W. Ind. R. R. v. Berg, 10 Bradw. 607. 155. HORSE AND DUMMY RAILROAD. The provisions of subdivis- ion 90, 1, Art. 5, of the act relating to cities and villages, so far as they apply to horse and dummy railroads incorporated under the gen- eral law, are repealed by the act of 1874 in relation to horse and dummy railroads, and under that act, no petition of the adjoining property owners is necessary. Hunt v. Ch. & Dummy Ry., 20 Bradw. 282. 156. The provision requiring a petition of property holders, has reference only to cases where the city may propose to grant the priv- ilege to a railroad company to run along a street for a given distance, and not to a case where the road merely crosses the street. Ch. & W. Ind. R. R. v. Dunbar, 100 111. 110. 20 RAILROADS, WAREHOUSES, 157. USE OF TRACK FOR FREIGHT CARS. When a railway com- pany lays its track in a street of a city, having the right to construct a track for passenger cars only, the city, under 62, clause 90, of arti- cle 5 of the general law, has no power afterwards to grant the use of the track for the operation of freight cars upon it, except upon a peti- tion of property owners upon the street, as required by the statute, and a grant of the use of such track for freight purposes without any petition, being void, such use is unlawful and a public nuisance, which the state may cause to be abated. McCartney v. C. & E. R. R., 112 111. 611. 158. Clause 90 of 1, Art. 5, of the general incorporation law, is to be construed as inchiding both corporations and individuals. The word " company," in the clause must be held to embrace natural per- sons as well as corporations. Ch. Dock & Canal Co. v. Garrity, 115 111. 155. 159. CONDITIONS TO PETITION binding on city. The property owners in their petition for license to a railway company to construct its road in a street, may insert such conditions in their assent as they may see fit, and in such case the city council may not grant the right except upon those conditions. People v. West Div. Ry., 118 111. 113. 160. WHEN ASSENT OF PROPERTY HOLDERS NECESSARY. Under the general railroad law, it is only necessary to procure the assent of the municipal authorities, to authorize the laying of a railroad track over or along a street. The act as revised in 1874, does not require the assent of the abutting lot owners, and in the absence of any special statutory provisions requiring such assent, it will not be necessary. Wiggins Ferry Co. v. E. St. L. U. Ry., 107 111. 450. 161. In cities and villages organized under the general incorpora- tion act, or under special charters, requiring the assent of lot owners, this rule does not apply, and the assent of the requisite number of abutting lot owners, will be required, as well as that of the munici- pality. Not so, however, in a city under a special charter containing no such provision. Ib. CHAPTER 27. An act to fix the liability of common carriers receiving property for transportation, approved March 27, 1874 ; in force July 1, 1874. 162. COMMON CARRIERS limitation of common law lia- bility. 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly: That when- ever any property is received by a common carrier, to be transported from one place to another, within or without this state, it shall not be lawful for such carrier to limit his com- mon law liability safely to deliver such property at the place to which the same is to be transported, by any stipulation or limitation expressed in the receipt given for such property. [R. S. 1887, p. 316; S. & C., p. 562; Cothran, p. 301. This act is substantially re-enacted as to railroad corporations in the railroad and warehouse act. See 33 of the act entitled "An act in relation to the fencing and operating railroads," approved March 31, 1874; in force July 1, 1874, and notes thereto. See post 2339-2442. ] AND EMINENT DOMAIN. 21 CRIMINAL CODE, CHAPTER 38, DIVISION 1. 163. CANADA THISTLES bringing into state allowing to seed. 40. Whoever shall bring into this state, whether in the packing of goods, or in grain or grass seed, or otherwise, any seed of the Canada thistle, and permit the same to be disseminated so as to vegetate on any land in this state, and whoever shall permit any Canada thistle to mature its seed on any land owned or occupied by him, so that the same is or may be disseminated, shall be fined not less than $10 nor more than $100; the fine to be paid to the commissioners of Canada thistles, if any is appointed in the town, precinct, city or village, or otherwise as directed by law. [Laws of 1867, p. 79, 1, 2, re-written with penalties altered. E. S. 1887, p. 435; S. & 0. p. 765; Cothran, p. 448.] 164. Quere whether this is not an attempt to regulate inter-state commerce. See Animals, R. S. 1887, Chap. 8, p. 140; 8. & C., p. 279; Cothran, p. 104. 165. CANADA THISTLES railroads to destroy. 41. If any company, association or person owning, controlling or operating a railroad shall refuse or neglect to dig up and dis- troy, or take other certain means of exterminating Canada thistles and other noxious weeds that may at any time be growing upon the right of way or other lands of such roads, or appertaining thereto, they shall be fined for each offense not less than $50 nor more than $200; the fine to be paid as in the preceding section. [In lieu of L. 1869, p. 326, 1, 2; E. S. 1887, p. 436; S. & C., p. 765; Cothran, p. 448.] " 166. COMMON CAEEIERS liability for gross negligence. 49. Whoever, having personal management or control of or over any steamboat, or other public conveyance used for the common carriage of persons, is guilty of gross careless- ness or neglect in, or in relation to, the conduct, management or control of such steamboat, or other public conveyance, while being so used, for the common carriage of persons, whereby the safety of any person shall be endangered, shall be imprisoned in the penitentiary not exceeding three years, or fined not exceeding $5,000. [E. S. 1887, p. 440; S. & C., p. 768; Cothran, p. 451.] 167. As to criminal liability for negligence, see C. B. & Q. R. R. v. Triplett, 38 111. 487. 168. CRUELTY by railroads to animals. 51. No rail- road company or other common carrier in the carrying or transportation of any cattle, sheep, swine or other animals, shall allow the same to be confined in any car more than twenty-eight consecutive hours (including the time they shall have been upon any other road), without unloading for 22 KAILBOADS, WAREHOUSES, rest, water and feeding, for at least five consecutive hours, unless delayed by storm or accident, when they shall be so fed and watered as soon after the expiration of such time as may reasonably be done. When so unloaded they shall be properly fed, watered and sheltered during such rest by the owner, consignee or person in custody thereof, and in case of their default, then by the railroad company transporting them, at the expense of said owner, consignee or person in custody of the same; and such company shall have a lien upon the animals until the same is paid. A violation of this section shall subject the offender to a fine of not less than $3 nor more than $200. [Laws of 1869, p. 115, 116, 5, 6, 7, re-written; E. S. 1887, p. 440; S. & C., p. 769; Cothran, p. 451. ] 169. EMBEZZLEMENT by officers and agents of corpo- rations. 75. If any officer, agent, clerk, or servant of any incorporated company; or if a clerk, agent, servant or apprentice of any person or copartnership, or society, embez- zles or fraudulently converts to his own use, or takes and secretes with intent so to do, without the consent of his com- pany, employer or master, any property of such company, employer, master, or another, which has come to his posses- sion, or is under his care by virtue of such office or employ- ment, he shall be deemed guilty of larceny. [In place of 70, E. S. 1845, p. 162; E. S. 1887, p. 446; S. & C., p. 776; Cothran, p. 457. ] 170. EMBEZZLEMENT of railroad ticket. 77. When- ever any person in the employ of any railroad company, whether such company is incorporated by this or any other state, shall fraudulently neglect to cancel or return to the proper officer, company or agent, any coupon or other rail- road ticket or pass, with the intent to permit the same to be used in fraud or injury of any such company, or if any person shall steal or embezzle any such coupon or other railroad ticket or pass, or shall fraudulently stamp, or print, or sign any such ticket, coupon or pass, or shall fraudulently sell or put in circulation any such ticket, coupon or pass, the person so offending shall be punished by imprisonment in the peni- tentiary for the term of one year. [Law sof 1859, p. 154, 2; E. S. 1887, p. 447; S. & C., p. 777; Cothran, p. 457.] 171. MALICIOUS MISCHIEF TO RAILROAD murder for caus- ing death by. 186. Whoever willfully, and maliciously, dis- places or removes, any switch, signal, or rail of any railroad, or displaces, or removes, any signal or signal-light, from any bridge that is built across any navigable stream in this state, or breaks down, rips up, injures or destroys any track, bridge or other portion of any railroad, or places obstructions thereon, or places any false signal upon or along the line of any rail- AND EMINENT DOMAIN. 23 road track, or upon any bridge built across any navigable stream in this state, or does any act to any engine, machine or car of such railroad, with intent that any person or prop- erty being or passing on or over such railroad, or over or through, or under such bridge built across any navigable stream of this state, should be injured thereby, shall be impris- oned in the penitentiary not less than one year nor more than five years. Or if in consequence of any such act done with such intent, any person being or passing on or over such rail- road, or over, through or under such biidge, built across any navigable stream of this state, suffers any bodily harm, or any property is injured, the person so offending, shall be impris- oned in the penitentiary not less than three nor more than ten years, and if in consequence of any such act, done with such intent, any person is killed, the person so offending, shall be deemed guilty of murder and punished accordingly. [Laws of 1853, p. 217, 1, 2, 3; Laws of 1877, p. 86, 1, as amended Laws of 1879, p. 118; B. S. 1887, p. 464; S. & C., p. 805; Coth- ran, p. 482. ] 172. CONSPIRACY combination to injure railroad. 187. If any two or more persons shall conspire or combine to break down, take up, injure or destroy any railroad track, or rail- road bridge, or to burn or destroy any engine, engine house, car house, machine shop, or any other building or machinery necessary to the free use of any railroad, every such person shall be punished by imprisonment in the penitentiary not less than two nor more than five years. [2d Laws of 1861, p. 8, 1, re-written; B. S. 1887, p. 465; S. & C., p. 806; Goth- ran, p. 483.] 173. MALICIOUS MISCHIEF attempt to commit as to rail- road. 189. Whoever shall maliciously make any attempt, although the same may not succeed, to place obstructions on any railroad track, to burn, blow up or destroy any railroad bridge, or in any other way prevent the free and safe passage of trains on any railroad, shall be imprisoned in the peniten- tiary not less than one, nor more than ten years. [ 2d Laws 1861, p. 8, 3, re- written; B. S. 1887, p. 465; S. & C., p. 806, 241; Cothran, p. 483, 189.] 174. MALICIOUS MISCHIEF influencing others to injure railroad. 190. Whoever shall maliciously hire, persuade or induce, attempt to hire, induce or persuade any person to burn, or in any way injure or destroy any railroad bridge, to take up, injure or destroy any railroad track, or any machine shop, engine house, car house, engine or car, or other machin- ery or property necessary for the operation of any railroad, shall be imprisoned in the penitentiary not less than one nor more than ten years. [2d Laws of 1861, p. 9, 4, re-written, 24 EAILROADS, WAREHOUSES, and punishment increased; E. S. 1887, p. 465, 190; S. & C., p. 806, 242; Cothran, p. 483, 190.] 175. EAILROAD ENGINEERS, &c. willful injury to stock. 191. Any engineer or person having charge of and run- ning any railroad engine or locomotive, who shall willfully or unnecssarily kill, wound or disfigure any horse, cow, mule, hog, or other useful animal, shall, upon conviction, be fined in a sum not less than the value of the property so killed, wounded or disfigured, and confined in the county jail for a period of not less than ten days; and any such engineer who shall wantonly or unnecessarily blow the engine whistle so as to frighten any team shall be liable to a fine of not less than $10 nor more than $50. [ See act of 1874 in relation to fencing and operating railroads. E. S. 1887, p. 1014, 6^; also 203 of Criminal Code; Laws 1845, p. 179, 156; and 2d Laws of 1861, p. 9, 4; E. S. 1887, p. 465, 191; 8. & C., p. 807, 243; Cothran, p. 484, 191. Post 2084-2086.] 176. MALICIOUS MISCHIEF injury to baggage. 193. If any baggage master, express agent, stage driver, hackman or any other person, whose duty it is to handle, remove or take care of trunks, valises, boxes, packages or parcels, while loading, transporting, unloading, delivering or storing the same, whether or not in the employ of a railroad, steamboat or stage company, shall wantonly or recklessly injure or destroy the same, he shall be fined not exceeding $200. [E. S. 1887, p. 465, 193; S. &. C., p. 807, 245; Cothran, p. 484, 193. See act in relation to fencing and operating railroads, E. S. 1887, p. 1007, 68; 8. & C., p. 1944, 93; Cothran, p. 1115, 79.] 177. EAILWAY PROPERTY taking without consent. 242. If any person shall purchase or receive for sale from any other person any link, pin, bearing, journal, or other article of iron, brass or other metal which has been manufactured and is used exclusively for railroad purposes, and which shall have stamped thereon the name of some railroad company, or the initial letter thereof, without the consent in writing of the president, general manager or general superintendent of such railroad company, such person shall be fined in a sum not less than $100 nor more than $500, and be imprisoned not less than ten days nor more than ninety. [E. S. 1887, p. 474, 242; S. & C., p. 820, 298; Cothran, p. 499, 242. J 178. JURISDICTION offense on railroad car or water- craft. 11. When any offense is committed in or upon any railroad car passing over any railroad in this state, or any water-craft navigating any of the waters within this state, and it cannot readily be determined in what county the offense was committed, the offense may be charged to have AND EMINENT DOMAIN. 25 been committed and the offender tried in any of the. counties through or along or into which such railroad car or water- craft may pass or come, or can reasonably be determined to have been on or near the day when the offense was commit- ted. [E. S. 1887, p. 494, sec. 402; 8. & C., p. 856,* 462; Coth- ran, p. 525, 402.] EMINENT DOMAIN. 179. CONSTITUTION OF 1848. AET. 13, 11. No person shall, for the same offense, be twice put in jeopardy of his life or limb; nor shall any man's property be taken or applied to public use without the consent of his representatives in the general assembly, nor without just compensation being made to him. fE. S. 1887, p. 50, 11; S. & C., p. 90, 11] DECISIONS UNDER. 180. LIMITATION on legislature. The constitution is a limita- tion upon the powers of the legislative department of the govern- ment. Field v. People, 2 Scam. 79; Sawyer v. Alton, 3 Scam. 127: Prettyman v. Supervisors, etc.. 19 111. 406; Mason v. Wait, 4 Scam. 127; Edwards v. Pope, 3 Scam. 465; People v. Marshall, I Gilm. 672; People v. Reynolds, 5 Gilm. 1; People v. Wilson, 15 111. 388; Fireman's Benevolent Assoc.v. Lounsbury, 21 111. 511. 181. RAILWAY COMPANY right to condemn. Under the general law of 1849, a railway company had no right to condemn land for right of way without a law approving of the route and termini of its road. Gillinwater v. M. & A. R. R., 13 111. 1. 182. COMPENSATION /or property taken by contractors. A cor- poration having the right to take materials for the construction of a public work by making compensation, will be liable to the owners for property taken by its contractors, although they were to furnish all materials. Lesher v. Wabash Nav. Co., 14 111. 85; Hinde v. Wabash Nav. Co., 15 111. 72. 183. NATURE or POWER limitation, public use and compensa- tion. The right of eminent domain is an inherent sovereign power of the state. The exercise of the power is unlimited, except that it must be invoked for a public use, and only when required by public neces- sity, and that just compensation be made. Johnson v. J. & C. R. R., 23 111. 202. 184. COMPENSATION by jury not necessary. Not necessary that the compensation be assessed by a jury. The clause in the constitu- tion of 1848, securing the right of trial by jury, has no application to a proceeding to condemn. 2b. 185 SAME when to be paid. When the statute does not other- wise direct, if the condemnation price is paid when demanded by suit or otherwise, the parties entering upon the right of way will not be trespassers ab initio. Ib. 186. NOTICE. Unless the act authorizing the condemnation so directs, a notice of the intention to condemn need not be given. 76. 187 EMINENT DOMAIN not applicable to municipal subscrip- tions. This clause of the constitution of 1848 was designed to regu- late the exercise of the right of eminent domain, and in no wise relates to or affects the taxing power of the state. It does not prevent 26 KAILBOADS, WAREHOUSES. the legislature from authorizing counties and cities to take stock in railway corporations. Johnson v. Stark Co., 24 111. 75. 188. APPORTIONMENT OF TAXES between county and city. This constitutional provision is not violated by an amendment to a city charter requiring an apportionment of county taxes between the county and a city. People v. Power, 25 111. 187. 189. COMPENSATION when to be paid. The constitution of 1848 does not require that compensation shall be made before the land is taken and used. It is sufficient if provision is made for its payment. Shute v. Ch. & M. R. R., 26 111. 436. 190. INJUNCTION till compensation is paid. If the compensa- tion awarded is not paid, the company condemning may be restrained by injunction from using the right of way until it is paid. But non- payment will not make the condemnation invalid. Ib. 191. POWER necessity of compensation. The power of eminent domain can only be exercised by making just compensation; and the compensation required is a matter of substance and not of form. Chicago v. Lamed, 34 111. 203. 192. DIVESTITURE OF TITLE. When a condemnation is effected, and the damages are assessed and accepted by the owners, who declare their assent to the proceedings, the title thereby becomes divested. Rees v. Chicago, 38 111. 322. 193. SPECIAL ASSESSMENTS. The power to levy and collect special assessments is derived under the right of eminent domain, and not under the taxing power. Chicago v. Lamed, 34 ill. 203. 194. SAME compensation in beneflts. The just compensation for special assessments may be either in money or in benefits. Ib. See also Chicago v. Boer, 41 111. 306. 195. PUBLIC USE -private road. The legislature cannot provide for the laying of a private road over the land of another without his consent. His right is supreme, except when such laud is needed for the public use, and then he must be compensated. Nesbit v. Trumbo, 39 111. 110; Crear v. Crossly, 40 111. 175. 196. PARTIAL TAKING property damaged. This clause of the constitution of 1848 applies as well to secure the payment for property partially taken for the use of a street as when wholly taken and con- verted into a street. Nemns v. Peoria, 41 111. 502, 511. 197. INJUNCTION use before payment. An attempt to open a road over improved land before the owner's damages are adjusted and paid may be restrained by a court of equity. Corns. Highways v. Durham, 43 111. 86. 198. PUBLIC USE. To authorize the taking of private property under the constitution (1848), the use must be such as is public in its character, and not public merely because called such. E. St. Louis v. St. John, 47 111. 463. 199. LIMITATIONS. The constitution of 1848 recognized the power of the state to take and apply private property to public use upon two indispensable conditions: First, that it must be by the consent of the general assembly, manifested by a law regularly adopted, and secondly, that just compensation shall be paid for the property taken. Ib. 200. DELEGATION OF POWER. This power is lodged alone in the general assembly, and its exercise is dependent upon the action of that body exercised in a proper case, or in such a case delegated to a body capable of its exercise. Without legislative authority it cannot be exercised. Ib. 201. PAYMENT must precede occupation park. Until the dam- AND EMINENT DOMAIN. 27 ages assessed for land condemned for a public park are paid, it cannot be occupied for the purposes intended. People v. Williams, 51 111. 63. 202. SAME provision for. The act of February 24, 1869, in refer- ence to South Park in Chicago, provides the means of making com- pensation for land condemned by adopting the mode provided in the act of 1852, in which ample provision is made for payment of the con- demnation money. Ib. 203. EMINENT DOMAIN not applicable to taxing power. The doctrine of eminent domain is strictly applicable only to the condem- nation of property, and not to the levy and collection of a tax. Har- ward y. St. Glair & Monroe Levee & Drainage Co., 51 111. 130; Hessler v. Drainage Commissioners, 53 111. 105. 204. SAME no application to special assessments. An attempt to give a private corporation power to levy and collect a tax upon lands for supposed benefits by a drainage system, cannot be sustained under the doctrine of eminent domain, because the just compensation required under that right, must be determined by some impartial agency. Harward v. St. C. & M. L. & D. Co., 51 111. 130; Hessler v. Drainage Commissioners, 53 111. 105. 205. JUDGMENT divesting of title. The final judgment of the circuit court approving of the report of the commissioners appointed under petition under the general law of 1859, relating to plank, gravel and McAdainized roads, passes the title to the lands condemned, to the corporation. Skinner v. Lake View Avenue Co., 57 111. 151. 206 . COMPENSATION fixing, a judicial act. The determination of what is a "just compensation" for private property taken for public use, is a judicial act, which can properly be performed only by the judicial department, and former decisions holding the award of per- sons not of the judicial department conclusive, is overruled. Rich v. Chicago, 59 111. 286; Cook v. S. Park Commissioners, 61 111. 115. 207 . TRIAL BY JURY. An act giving a city council and board of public works power to assess the damages on the condemnation of land for the widening of a street, is not unconstitutional ' under the constitution of 1848. Rich v. Chicago, 59 111. 286. 208. COMPENSATION pa?/mm necessary to complete condemna- tion. Park commissioners can not take and occupy land condemned for a public park until the damages assessed are paid the owner. Cook v. South Park Commissioners, 61 111. 115; Ch. & Milwaukee R. R. v. Hull, 20 111. 218; Johnson v. Joliet & Ch. R. R., 23 111. 202; Shute v. Ch. & Milwaukee R. R., 26 111. 436. 209. JUDICIAL PROCEEDING NECESSARY. The right of the state to take private property for public use cannot be asserted by mere enactment. The constitution providing that the citizen shall not be deprived of property except by due process of law, or in conformity to the law of the land, requires a trial, or judicial proceeding and a judg- ment. Cook v.. South Park Commissioners, 61 111. 115. 210. COMPENSATION pecuniary. The compensation required must be pecuniary in its character. Weckler v. Chicago, 61 111. 142. 211. JURY TRIAL on appeal. On an appeal to the circuit court from an assessment of damages for a right of way for a railroad, the statute act of 1852, gives a trial by jury. T. P. & W. R. R. v. Darst, 61 111. 231. 212 . CONDEMNATION before assessment and payment of damages. Under constitution of 1848, charter power authorizing the taking of lands by condemnation before the ascertainment or payment of dam- ages, was not unconstitutional. Townsend v. C. & A. R. JS.,91 111. 545. 213. STATE ALONE CAN CONFER THE POWER. The right of a 28 RAILROADS, WAEEHOUSES, corporation to condemn is derived solely from the state law, not from the consent of city authorities. Metro. City Ry. v. Ch. W. Div. By., 87 111. 317. CONSTITUTION O.F 1870. 214. EMINENT DOMAIN limitations on the right. ART. 2, 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 consent of the owners thereof, shall remain in such owners, subject to the use for which it is taken. [R. S. 1887, p. 55; S. & 0., p. 105, 1037; Cothran, p. 3.J 215. EMINENT DOMAIN property and franchises of cor- porations -jury trial. ART. 11, 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 gen- eral assembly, of the property and franchises of incorporated companies already organized, and subjecting them to the public necessity the same as of individuals. 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 emi- nent domain, any incorporated company shall be interested either for or against the exercise of said right. [R. S. 1887, p. 72; S. & C., p. 163, 1037; Cothran, p. 30.] DECISIONS. 216. EMINENT DOMAIN when clause took effect. These provis- ions were not merely prospective in their effect, but operated inpre- senti without legislative action. People v. McRoberts, 62 111. 38; Mit- chell v. III. St. L. R. R. & Coal Co., 68 111. 286. 217. SAME repeal of former laws. The provision abrogated all existing laws for the assessment of damages by commissioners, apprais- ers or supervisors, so that the assessment of damages in such old ways, after it took effect, was void. Kine v. Defenbaugh, 64 111. 291; People v. McRoberts, 62 111. 38. It repealed so much of the act of 1852 as authorized the land to be entered upon before an assessment of dam- ages by a jury. Mitchell v. III. & St. L. R. R. & Coal Co., 68 111. 286. 218. SAME effect on prior rights and unfinished proceedings. A constitution operates only prospectively unless clearly expressed other- wise, leaving all past transactions unaffected. Hence, when work was commenced on a street and it was mostly completed when the constitu- tion took effect, it was held that a lot owner whose lot was not taken, could not recover compensation for damages to it. Chicago v. Rum- sey, 87 111. 348. 219. SAME not conferred by the constitution. The right of emi- nent domain is not conferred by the constitution, but only recognized and limited. But the power to declare under what circumstances it may be exercised, and to provide for the mode of its exercise, is con- ferred upon the general assembly by that clause vesting in it the legis- lative power. L. S. & M. S. R. R. v. Ch. & W. Ind. R. R., 97 111. 506. 220. SAME limitation. This constitutional provision is a limit- ation upon the exercise of the power, which, but for such limitations, AND EMINENT DOMAIN. 29 is plenary, and might be exercised ad libitum. Chicago v. Larned, 34 111. 203; Johnson v. Joliet & Ch. R. R., 23 111. 202; E. St. L. v. St. John, 47 111. 463. 221. SAME tows repealed by. The first six sections of the act of 1852, which provide for the tiling of a petition, due notice to the per- sons interested, the appointment of commissioners, their inspection of the premises, and a report of the compensation assessed by them to be filed with the clerk of the circuit court, are in no sense in conflict with the constitution of 1870, and are not abrogated by it. People v. McRoberts, 62 111. 38. 222. But the seventh section making the decision of the commis- sioners conclusive upon the parties before they can have a trial by jury, is inconsistent with the constitution of 1870. Their decision does not conclude the owner or confer any right upon the corporation, unless he assents by an acceptance of the compensation, or in some other manner. Ib. 223. EMINENT DOMAIN effect on taxing power. The limitation in the constitution of 1870 (Art. 2, 13), relates entirely to the subject of eminent domain, and has no reference to the taxing power. ' White v. People, 94 111. 604; Johnson v. /. & Ch.R.R., 23 111. 202; Johnson v. Stark Co., 24 111. 75; Harward v. St. Glair Drain. Co., 51 111. 130; Hessler v. Drainage Commissioners, 53 111. 105. 224 . SAME special assessments not affected by. The levy of spe- cial assessments for building sidewalks, &c., is not a taking of private property under the right of eminent domain, but is the exercise of the right of taxation. White v. People, 94 111. 604. 225. CONSTITUTION application to completed proceedings. The constitutional provision that the fee to lands taken for right of way shall not pass, but remain in the land-owner, has no application to pro- ceedings completed before the adoption of the constitution. T. P. & W. Ry. v. Pence, 68 111. 524. 226. SAME not applicable to proceeding commenced under old one. A proceeding to condemn land by a railway company for a right of way was commenced prior to the adoption of the constitution of 1870, under a charter which gave the land taken in fee simple to the company, but the assessment of damages was had after its adoption: If eld, that the proceeding was governed by the charter under which it was commenced. P. & R. I. R. R. v. BirUett, 62 111. 332. 227. NATURE or POWER. The right of eminent domain being an inherent attribute of sovereignty, exists independently of written constitutions or statutory laws, though its exercise is usually regula- ted by appropriate legislation. Sholl v. German Coal Co., 111. . Filed Jan. 25, 1887. 228. The right of eminent domain is founded upon public utility and necessity, and its exercise is a strictly legislative function, but subject to the right of the courts to determine whether the use for which property is sought to be taken, is a public one, and whether the proceedings have been conducted according to the law made on the subject. But the legislature is the exclusive judge of the necessity or emergency justifying the exercise of the power. Ib. 229. GRANT IN RESTRAINT OF THE RIGHT. The right of eminent domain is an element of sovereignty, and a legislative grant or con- tract in restraint of a free exercise of this right, is not binding on the state, and does not fall within the inhibition of the federal constitu- tion relating to laws impairing the obligation of contracts. Hyde Park v. Oakwoods Cem. Assoc., 119 111. 141. 30 KAILBOADS, WAREHOUSES, WHAT CONSTITUTES A TAKING OR DAMAGING. 230. PARTIAL. The constitutional provision (1848) applies as well to secure the payment for property partially taken for the use of a street, as when wholly taken and converted into a street. The degree to which property is taken makes no difference in the application of the principle. Nemns v. Peoria, 41 111. 502. See O. & M. Ry. v. Wac;h- ter, 111. . Filed Jan. 20, 1888. 231. BY CROSSING RAILROAD TRACK. The construction of a rail- road track across a street upon which another railroad has its track, though built on the same grade, is a taking of the latter's property within the constitution. Ch. & W. Ind. R. R. v. Ch. St. L. & P. R. R., 15 Bradw. 587. 232. NEW BURDEN highway for telegraph. The use of a high- way for a telegraph is a new and additional burden on the fee not con- templated on the assessment of damages, for which the owner of the fee is entitled to compensation. Board of Trade Tel. Co. v. Barnett, 107 111. 507. 233. WHAT is A TAKING. The right of the state to take private property for public use cannot be asserted by mere enactment. This is not a taking. Cook v. South Park Comrs., 61 111. 115. 234. BY DAMAGING. Until the adoption of the constitution of 1870, it was the settled doctrine of this court that any actual physical injury to private property by reason of the erection, construction or operation of a public improvement in or along a public street or high- way, whereby the appropriate use or enjoyment of property on the street, was materially interrupted or its value substantially impaired, was regarded as a taking of private property to the extent of the damages thereby sustained. But the remedy was restricted to cases of direct physical injury. Rigney v. Chicago, 102 111. 64. 235. NEW REMEDY damage to property not touched. The con- stitution of 1870, providing that private property shall not be " dam- aged for public use," gives redress in cases not provided for in the constitution of 1848, and embraces every case where there is a direct physical obstruction or injury to the right of user, or enjoyment of private property, by which the owner sustains some special damage in excess of that sustained by the public generally. 76. 236. PROPERTY DEFINED. Property, in its appropriate sense, means that dominion or indefinite right of user and disposition which one may lawfully exercise over particular things or objects, and gener- ally to the exclusion of all others, and doubtless this is substantially the sense in which the word is used in the constitution as to the taking or damaging of private property for public use. But the word is often used to indicate the subject of the property or the thing owned. Rigney v. Chicago, 102 111. 64. 237. VACATION OF STREET. The vacating of a public street not adjoining or contiguous to a particular lot, which does not deprive the owner of access to or egress from such lot, can in no sense be con- strued as either taking or damaging private property for public use. E. St. Louis v'O'Flynn, 119 111. 200. 238. The law will not regard the land as taken or acquired until the last act in the proceeding that is, payment is performed. Cook v. S. Park Comrs., 61 111. 115. 239. TAKING PROHIBITED requiring new duty. A municipal corporation cannot by ordinance require a railway company to make proper crossings of its road over a new street laid out and opened Jong after the completion of the railroad, where no such duty is imposed AND EMINENT DOMAIN. 31 by its charter or the general law in force when the company was created. Even the legislature cannot impose such burden without making compensation. /. O. R. R. v. Bloomington, 76 111. 447. 240. Under proceedings to condemn for public use the filing of the petition is not a taking of the property, and it would be a trespass to take possession before the damages are ascertained. South Park Comrs v. Duulevy, 91 111. 49. 241. NEW AND ADDITIONAL BURDEN protection against. The use of a street or highway for a telegraph is a new and additional burden upon the fee not contemplated on the assessment of damages in case the easement was obtained by condemnation, or had in view by the land owner in case of a dedication for ordinary highway pur- poses, and for such additional burden the owner of the fee is entitled to compensation, and if entry be made without an agreement with the owner or a condemnation, the owner may have his action. Board of Trade Tel. Co. v. Barnett, 107 111. 507. WHAT MAY BE TAKEN. 242. FERRY PRIVILEGE. A grant of a franchise or privilege by the state to a person or corporation, such as a ferry, is subject to an implied reservation in favor of the sovereign power that, when the public good requires it, all the rights and privileges conferred may be resumed upon adequate compensation being made therefor in the manner required by law. Mills v. St. Clair Co.. 2 Gilm. 197, 227. 248. STATE GRANTS. All grants made by the state, whether to the canal trustees or others, although irrevocable, are subject to the right of eminent domain, unless that right is expressly relinquished. III. & Mich. Canal v. Ch. & R. I. R. R., 14 111. 314. 244. A railway charter giving the power to condemn the right of way over lands granted by the state to the canal trustees for a rail- road, and the effect of the contemplated road in diminishing the reve- nues and business of the canal, is not in violation of the contract of the state with the trustees. Ib. 245. RAILROAD PROPERTY subject to. The lands of a railway corporation, not absolutely necessary for the enjoyment of its fran- chise, are subject to the right of eminent domain, under legislative authority, the same as those of individuals, though they may be taken from the actual and profitable use of the corporation. P. P. & J. R. R. v. P. & 8. R. R., 66 HI. 174. 246. Property of a railway or other corporation, though acquired by condemnation, is subject to be taken for the public use the same as that of private persons. C. R. I. & P. R. R. v. Town of Lake, 71 111. 333; to same effect, Richmond R. R. v. Louisa. R. R. f 13 How. 74; West River Bridge Co. v. Disc, 6 How. 529; Boston Water Power Co. v. Boston & Worcester R. R., 23 Pick. 360. 247. PROPERTY IN PUBLIC STREET injunction. A horse rail- way company has no right to condemn and take for its joint use a part of a previously constructed railway of another company in suc- cessful operation, and thus render the fragments not so taken unpro- ductive, and make the franchise of such other company of but little value: and if such an attempt is made, a court of equity will enjoin the same. Central City Horse Ry. v. Ft. Clark Horse Ry., 81 111. 523. 248. The statute authorizing the condemnation by horse and dummy roads (R. S. 1887, ch. 66,) contemplates private property alone, and not property occupied and used by the public. Ib. 249. By a very liberal construction of the statute, and of the emi- nent domain act, it may be that a newly organized horse railway com- 32 BAILROADS, WAREHOUSES, pany may condemn the entire road of a similar company previously incorporated, and appropriate it to its own use. Ib. 250. The right of a horse railway company, under a contract with a city providing against having a similar railway on certain streets running parallel with its road, is property within the sense of the eminent domain act, and may be condemned for the use of a new company when the public necessity so requires. Metropolitan City Ry. v. Ch. W. Div. Ry.. 87 111. 317. 251. Under the constitution the property and franchises of incor- porated companies may be appropriated to the public use as well as the property of individuals, and the exercise of the right of eminent domain can never be so construed or abridged as to prevent the general assembly from appropriating such property when the public exigency demands it. Whatever exists in any form, tangible or intangible, is subject to the exercise of this power. Ib. 252. PROPERTY IN PUBLIC USE taking for same use. When property has already been appropriated to public use, and is in fact in such use in the hands of one railway corporation, it cannot right- fully be taken from such corporation, even by authority of a statute, for the purpose of subjecting it to the same public use in the hands of another corporation. L. S. & M. 8. R. It. v. Ch. & W. Ind. R. R., 97 111. 506. 253. SAME of the new use. To warrant the taking of property of one party already appropriated to public use. and placing it wholly or in part in the hands of another p^rty, it is essential that the new use shall be for the benefit of the public. Whether the new use be differ- ent from the present one is a judicial question for the court to decide, but whether a public benefit, and the change will be for the benefit of the public, are political questions to be decided by the law-making power. Ib. 254. In a proceeding to condemn a part of the property of one rail- way company for the use of another leading from other and different points and regions of country, the use is not the same as that of the prior road, but is rather a joint or co-operative use, to be exercised and enjoyed by both companies, so as to furnish the public an additional line of travel and transportation, and may be properly granted by the legislative action. Ib. 255. CORPORATE PROPERTY how far private. The property of corporations as to the ownership thereof and the profit and gain to be made from its use, is to all intents private property, although applied to a use in which the public have an interest, and 14, Art. 11, of the constitution, simply places such property, like that of natural persons, within the power of eminenc domain, as it was before any such decla- ration, and protects it the same as any other private property. Ib. 256. The power of eminent domain is not conferred by the consti- tution, but is an inherent attribute of sovereignty. 13, Art. 2, recog- nizes the power, and its purpose is to limit and regulate its exercise. 14, Art. 11, recognizes the same power, but does not profess to grant or add to it. It is only an authoritative explanation of the nature and extent of this power, and it is but declaratory of the power the state would have had without it. Ib. 256a . POWER TO CONDEMN ONE RAILWAY FOR USE or ANOTHER taking part of another road. The legislature, subject to the consti- tutional limitations, has the power by a general law, to authorize one railway company to condemn a part of the right of way of another longitudinally, several miles, when necessary for the construction and use of a new road; but without such legislative authority this cannot AND EMINENT DOMAIN. 33 be done. III. C. R. R. v. '. Ry v. Hall, 67 111. 99. 317 A proceeding to condemn land for a right of way under the act of 1852 was brought, but before a trial was had the act of 1872 had taken effect, and the damages were assessed according to the latter act, which expressly repealed all conflicting laws: Held, that the assess- ment was properly made under the latter act, as the proceedings were in fieri when it took effect. Ib. 318 . Where land was taken for a right of way for a railroad, and a proceeding to fix the compensation commenced before the act of 1872 011 that subject went into effect: Held, that the compensation should 40 KAILROADS, WAREHOUSES, be ascertained under the law in force at the time the proceeding was begun. Emerson v. Western Union R. JR., 75 111. 176. 319. CONDEMNATION strict compliance. A proceeding to con- demn land for a right of way being an extraordinary and summary remedy, the party exercising the power must strictly observe all the requirements of the statute under which he acts. C. & A. R. R. v. Smith, 78 111, 96. 320. WHAT LAW G9VERNS. The laws in force at the time a city enters upon a public improvement of a street by changing its grade will fix and determine the rights of a property holder to damages, and it cannot be altered by subsequent legislation. City of Elgin v. Eaton, 83 111. 535. 321. CONDEMNATION strict compliance. To divest a person of his property by proceedings against his will, there must be a strict compliance with all of the provisions of the law which are made for his protection and benefit. Those provisions must be regarded as in the nature of conditions precedent, which must not only be complied with before the right of the property owner is disturbed, but the party claiming under the adverse proceedings must affirmatively show such compliance. Hyslop v. Finch, 99 111. 171. 322. The rule which requires great strictness in a statutory pro- ceeding has application only in summary and exparte cases where the person whose right is to be affected is not a party. It is not enough to require the rigid rules of strictness, merely that the proceeding is a statutory one. The rule does not apply to a proceeding to condemn land for a right of way under the statute. Bowman v. V. & C. Ry. 102 111. 472. 323. The taking of private property under the eminent domain- act being in derogation of common right, the grant of power to cor- porations for its exercise will be strictly construed. Ch. & E. III. R. R. v. Wiltse, 116 111. 449. 324. ACT OF 1852 parts repealed. % 9 of the act of 1852, which requires the execution of an appeal bond on taking an appeal from the award of the commissioners to the circuit court, and 12, which permits the land to be entered upon pending the appeal, being incon- sistent with the bill of rights, are repealed by the constitution. Peo- ple v. McRoberts, 62 111. 38. 325. JURISDICTION PETITION PARTIES. 2. That in all cases where the right to take private property for public use, without the owner's consent, or the right to construct or maintain any public road, railroad, plaukroad, turnpike road, canal or other public work or improvement, or which may damage property not actually taken, has been heretofore or shall hereafter be conferred by general law or special charter upon any corporate or municipal authority, public body, offi- cer or agent, person, commissioner or corporation, and the compensation to be paid for or- in respect of the property sought to be appropriated or damaged for the purposes above mentioned cannot be agreed upon by the parties interested, or in case the owner of the property is incapable of consent- ing, or his name or residence is unknown, or he is a non- resident of the state, it shall be lawful for the party authorized to take or damage the property so required, or to construct, operate and maintain any public road, railroad, plankroad, AND EMINENT DOMAIN. 41 turnpike road, canal or other public work or improvement, to apply to the judge of the circuit or county court, either in vacation or term time, where the said property or any part thereof is situate, by filing with the clerk a petition, setting forth, by reference, his or their authority in the premises, the purpose for which said property is sought to be taken or damaged, a description of the property, the names of all per- sons interested therein as owners or otherwise, as appearing of record, if known, or if not known stating that fact, and praying such judge to cause the compensation to be paid to the owner to be assessed. If the proceedings seek to affect the property of persons under guardianship, the guardians, or conservators of persons having conservators, shall be made parties defendant, and if of married women their husbands shall also be made parties. Persons interested, whose names are unknown, may be made parties defendant by the descrip- tion of the unknown owners ; but in all such cases an affidavit shall be filed by or on behalf of the petitioner, setting forth that the names of such persons are unknown. In cases where the property is sought to be taken or damaged by the state for the purpose of establishing, operating or maintaining any state house or state charitable or other state institutions or improvements, the petition shall be signed by the governor or such other person as he shall direct, or as shall be provi- ded by law. [B. S. 1887, p. 646, 2; S. & 0., p. 1042, 2; Cothran, p. 646, 2.] 326 . JUDICIAL PROCEEDING. The right of the state to take pri- vate property for public use, cannot be asserted by a mere enactment. A condemnation by a judicial proceeding and judgment is necessary. Cook v. South Park Corns., 61 111. 115. 327. WHO MAY CONDEMN AND FOK WHAT PURPOSES incorporated town, for a street. The town of Mt. Sterling has the power to lay out and open streets and to condemn land therefor. Curry v. Mt. Sterling, 15 111. 320; Dunlap v. Mt. Sterling, 14 111. 251. 328 . SAME strict construction. The rule of strict construction is applied only in cases of ambiguil y, or where a power is claimed by implication. Newhall v. Galena & Ch. Union R. R., 14 111. 273. 329 . SAME length of lateral railroad. Where the legislature has given a railway company power to build lateral roads without fixing any limits to the length of such roads, the courts will not, as a general rule, fix any limits. Ib. 330. POWER TO CONDEMN /or branch or lateral road. Where a right is conferred to build lateral roads, the presumption follows that the company has the same authority to obtain the right of way of such roads as is conferred for the main line. Ib. 331. SAME extension, applies to lateral roads. An extension of time to a railway company which has the right to build lateral routes, for completing its road, will embrace the lateral branches as well as the main line. Ib. 332 . RIGHT TO CONDEMN forfeiture of power. The failure of the Illinois Central Railroad company to locate its road within the 42 KAILKOADS, WAREHOUSES, limits of the city of Chicago by the first day of January, 1852, as required by its charter, did not work a forfeiture of its right to con- demn lands to its use where the assent of the city to such location was not given until after that day had expired. III. C. R. R. v. Rucker 14 111. 353. 333. WHO MAY ENFORCE EMINENT DOMAIN. The right of emi- nent domain may be exercised either directly by the agents of the government or through the medium of corporate bodies. Seek/nan v. $. & 8. R. R., 3 Paige 45. It may be exercised by the United States, even within states, within its constitutional powers and purposes. Kohl v. United Mates, 91 U. S. 367; Darlington v. U. 8., 82 Pa. St. 382. But the general government cannot control the states in the exercise of this power. Boone Co. v. Patterson, 98 U. S. 403. 334. SAME under law of 1849. Eailway companies organized under the general railroad law of 1849 cannot condemn lands for right of way until they have obtained an act of the legislature approving of the route and termini of their roads. (tillinwater v. Miss. & Atlantic R. R., 13 111. 1. 335. SAME under act of 1852. % 19 of the general railway act of 1852 was intended to reserve power in the legislature to fix the route and termini of all roads organized under its provisions, and not to repeal the law of 1845 relating to right of way. The sole object of that section was to continue the reservation of power in the legisla- ture to fix the route and termini of all roads before the corporations should exercise the right of eminent domain. P. & R. I. R. R. v . Warner, 61 111. 52, 55. 336. SAME power not exhausted by its exercise. The power to condemn land for railroad purposes is not exhausted by an apparent completion of the road, if an increase of business shall demand other appendages or more room for tracks. C. B. & Q. R. R. v. Wilson, 17 111. 123, 127. 337. SAME /or workshops, &c. A grant of power to a railway company to construct a road with such appendages as may be deemed necessary for the convenient use of the same will authorize it to acquire land by condemnation for workshops, &c., these being neces- sary appendages. Ib. 338. POWER TO CONDEMN for paint shops, &c. The Galena & Chicago Union Railroad Company, under its charter, has the power to condemn lands for depot grounds or on which to erect a paint shop and lumber sheds for its use. Low v. . 705. DAMAGE BEFORE ASSESSMENT lawful acts remedy. Where a railway company in exercising the right of eminent domain, com- mits an injury to the land of another, by entry upon it to make pre- liminary surveys, or by taking materials /therefrom, or the like, in pursuance of he powers vested in it, and the law under which it acts, prescribes a mode of assessing damages for such injuries, an action of tort will not lie therefor, but the statutory remedy must be pursued. But this is only where the authority conferred has been followed. Smith v. Ch., A. & St. L. R. R., 67 111. 191. 706. DISTINCTION BETWEEN COMPENSATION AND BENEFITS. The act of 1877, concerning roads and bridges in counties under township organization, as respects the matter of awarding compensation and assessing benefits, makes no discrimination between the value of the land actually taken and damages otherwise resulting to the land owner in consequence of laying a highway. But the eminent domain act of 1874 does make such discrimination and is to be construed in pari mater ia with the former act, supplementing the same. Hyslop v. Finvh, 99 111. 171. 707. FARM LAND fencing. In a proceeding by a railway com- pany to condemn a right of way through farm land, it is proper for the court to instruct the jury that the company is not required to fence its road for six month? after the same is open for use, and that the damages attending the keeping open of the right of way for that length of time, may properly be considered as an element of damages. Cen- tralin & Chester R. R. v. Rixman, 12 1 111. 214. 708. BENEFITS. It is competent to consider special benefits to property claimed to be damaged, but not taken, for the purpose of reducing, or rather to the extent of the special benefits, of showing there are no damages. Concordia Gem. Asso'c. v. Minn. N. W. R. R., 121 111. 199. 709. SAME instruction. Where the court instructed the jury that the defendant was entitled as compensation to the cash market value of his land sought to be taken as of the date of the petition, and dam- ages to the remainder of his land described in his cross petition,, and then instructed that the total compensation and damages to which the defendant was entitled, must be equal to, but must not exceed the difference between the fair market value of the whole land described in the petition and cross petition as it was on the date of the petition, and the fair market value of what remained after the taking of part by the petitioner and the appropriation thereof to its use. The jury awarded $2,880 for the land taken and $6,450 for damages to land not taken: Held, that it must be presumed that the $6,450 was in excess of any and all special benefits to the lands damaged and not taken, and consequently no benefits were allowed against the value of the land taken. Ib. 710. MARKET VALUE. The proper measure of damages in the case of the location of a railroad over a farm, is the actual fair cash value of the land taken and the decrease in the actual fair cash value of that not taken. Kiernan v. Ch., Santa Fe & Cal. Ry., 111. . Filed Nov. 11, 1887. 711. BASIS OF ASSESSMENT. In assessing the value of land taken, and the damage to the remaining part, the jury should not assess the same on the basis of what the owner would take for the same or any part thereof, or what the jury would take if they were the owner. Ib. 712. DAMAGES TO PART NOT TAKEN speculative. In assessing 84 EAILEOADS, WAREHOUSES, the damages to the land not taken, the jury should not take into con- sideration anything as an element of damages which is remote, imag- inary or speculative, even though testified to by witnesses. The only elements they should consider are those which are appreciable and substantial, and which will actxially lessen the market value of the land, and the jury may be so instructed. Ib. 713. MARKET VALUE. The fair market value of land proposed to be taken, having proper regard to the location and advantages as to situation and the purposes for which it was designed and used, is the proper measure of compensation. 6"., B. & Q. R. R, v. Bowman, 111. . Filed Nov. 11, 1887. 714. PART TAKEN HAVING A VALUE AS A WHOLE. Where a part is taken, and that part has a greater value in connection with the whole than as a separate parcel, the measure of damages will be the fair cash value of the part taken, as a part of the whole. Ib. 715. DAMAGES TO THE PART NOT TAKEN. On cross petition. Where a cross petition is filed for damages to land not sought to be taken, the jury should award to the owner such damages in cash as his lands not taken will sustain, if any, by the construction of the proposed railroad and its continued use and operation through his farm. In such case it is proper for the jury to give damages for all actual and appreciable injuries resulting from the construction and operation of the road. C., B. & Q. R. R. v. Bowman, 111. . Filed Nov. 11, 1887. _ 716. SAME difference in market value. If the land not taken will be depreciated in value, the measure of damages will be the dif- ference in their market value before and after the construction of the road. In determining this, the jury may consider the injury to the land arising from inconveniences actually brought about by the con- struction of the proposed road, or incidentally produced by dividing the land as to water, pastures and improvements, although such injury may not be susceptible of definite ascertainment, and also for such incidental injury as will result from the perpetual use of the track for moving trains, or from danger of killing stock, or escape of fire, and generally for such damages as are reasonably probable to ensue from the construction and operation of the road. Ib. 717. EVIDENCES or DAMAGE. The physical condition of land over which a right of way is sought for a railroad, whether effected by another railroad, a water course, or other natural or artificial object, must be considered, not in respect to the damage or depreciation caused by such other railroad, water course, . O. & Fox River Valley R. R., 54 111. 373. 733. OPINIONS OF WITNKSSES as to benefits. Upon the question of damages and benefits arising from the constructicn of a railroad over a tract of land, the opinions of witnesses are admissible as to the benefits that will, probably result to the land by the location of a depot within a certain distance of it. Ib. 734. CHANGE OF PLANS additional damages. The company must construct its road as indicated by its maps and plans introduced on the trial. A subsequent alteration will give the land-owner the right to recover for damages resulting therefrom. P. & R. I. R. R. v. Bir- kett, 62 111. 332. 735. CROSS-EXAMINATION as to other matters. A witness having testified to the damages to a particular tract of land touched by the track of a railroad company, cannot on cross-examination be required to testify to the effect upon other tracts owned by the same party. P., P. & J. R. R. v. Laurie, 63 111. 264. 736. OF TRESPASS AND VIOLENCE. On the assessment of damages for the right of way, it is error to admit evidence of the violent entry upon the premises by the agents and servants of the company, show- ing a willfull trespass, and the error is not cured by instructing the jury to disregard it. L. B. d-r M. R. R. v. Winslow, 66 111. 219. 737. OPINIONS AS TO v A LUIS. In a proceeding to condemn land and city lots for railway purposes, it is necessary and proper to take the opinions of witnesses, and to have the facts upon which such opin- ions are founded, to enable the jury to fix the compensation. Ib. 738. Where witnesses are allowed without objection to give their opinions as to the extent of the damages in a proceeding to condemn, as well as to testify to the facts, the jury may rightfully consider such evidence. R., R. t. & St. L. R. R. v. Coppinyer, 66 111/510. 739. DEEDS as evidence of value. Where the land-owner gave in evidence the deeds for his land, it was held no ground for reversal to instruct the jury for the petitioner that they could take into account the consideration recited in the deeds in determining the value of the land taken. If the land had been recently purchased, the price paid might tend to enlighten the jury upon that issue. Jones v. C. & I. R. R., 68 111. 380. 740. VIEW OF LAND treated as evidence instruction. In a pro- ceeding to condemn land for a right of way, under a law allowing the jury to view the premises, it is not improper to instruct the jury to fix the compensation from the evidence, as the facts learned by the examination is part of the evidence upon which the jury may act. P. A. & D. R. R. v. Sawyer, 71 111. 361. 741. OPINIONS OF WITNESSES as to damages. Witnesses may give their opinion as to the amount of damages occasioned to the owner of land by the construction of a railroad; and where they possess pecu- liar knowledge of the facts, such evidence is often valuable, tr. & S. Wis. R. R. v. Haslam, 73 111. 494. 742. On an assessment of damages under a proceeding by a rail- AND EMINENT DOMAIN. 87 way to condemn the right of way through a farm, it is competent for witnesses who are acquainted with the farm and familiar with the use and production of such property, and its value, to give their opin- ion as to the extent of the damages which the construction of the road over the same will occasion. K. & E. R. R. v. Henry, 79 111. 290. 743. EVIDENCE AS TO VALUE. If the land has a market value for the purpose of sub division into lots and blocks, it may be properly proved. The jury may take into consideration each and every element that may enter into the true market value of the property. South Park Corns, v. Dunlevy, 91 111. 49. 744. The amount of compensation for land taken is a question of fact to be found by the jury from an actual survey of the premises, where that is practicable, their own knowledge of values and the opin- ions of witnesses who are familiar with the subject of inquiry, and whose business in life has afforded them opportunities of acquiring information and judging accurately upon the question. Green v. Chicago, 97 111. 370. 745. JURY NOT CONFINED TO OPINION. While it is proper on the examination of witnesses as to the value of property sought to be con- demned for public use, to call out the various theories and processes upon which their conclusions are based, to ascertain their correctness, yet the jury after all must determine the question of value according to their own judgment of what seems to be just and proper from all the evidence before them. Ib. 746. OPINIONS; jury not bound by. The opinions of witnesses upon the question of damages in a proceeding to condemn, are not to be passively received and blindly followed, but they are to be weighed by the jury and judged in view of all the testimony in the case, and the jury's own general knowledge of affairs, and have only such con- sideration given to them as the jury may believe them entitled to receive. McReynolds v. Burlington & Ohio River Ry., 106 111. 152. 747. EXPERTS weight of their evidence. In the assessment of damages the jury will be warranted in giving but slight, if any weight, to the evidence of mere experts, based simply on theory and conjecture as to the damages the construction of a railroad between an elevator and a river, would be to the owner of the elevator P. & P. U. Ry. v. P. &. F. Ry., 105 111. 110. 748 . OPINIONS weight competency. Persons familiar with land sought to be condemned who have opinions of its value, though not shown to be experts, are competent witnesses to express their opin- ions. But the weight of such evidence presents a different question. On that point where there is, equal credibility, superior opportunity and intelligence are entitled to the greater weight. Johnson v. Free- port & Miss. River Ry., Ill 111. 413. 749. Such opinions as to the value of the land are not however to be passively received and blindly followed, but should be weighed by the jury and judged of in view of all the evidence in the case and the jury's own general knowledge of affairs and have only such considera- tion given to them as the jury may believe them entitled to receive. Ib. 750. FLANS AND PROFILES production compelled. Where land is sought to be condemned for a right of way over a river upon which the land abuts, and upon which to build an abutment for a railroad bridge across the river, and the owner (another railway corporation) has other lands adjoining that sought to be taken that may be injured more or less, depending upon the character and nature of the structure to be erected on the land sought to be condemned, it is error to refuse the defendant's motion to require the petitioner, before the trial is be- gun, to exhibit its plans and profiles of its proposed railroad across the 88 EAILEOADS, WAREHOUSES, land, and to file such plans as will show to what use the petitioner designs devoting the land it seeks to condemn, and what it proposes to put upon said land, as tracks, bridges, abutments or otherwise. Ch. & Jf. W. Ry. v. Ch. & Evanston R. R., 112 111. 589. 751. EVIDENCE as showing value for special use. Evidence showing that the lands are valuable as located, bordering on or near a river, for saw-mill, planing-rmll or factory, or for any other purpose, is proper on the question of their market value. Dupuis v. Ch. & N. Wis. Ry., 115 111. 97. 752. SAME of state of the improvements. Where the value of a mill on property sought to be condemned for railroad purposes, is in- volved, evidence that the mill is of an old pattern that has gone out of use, and therefore less valuable, is proper on the assessment of the compensation to be awarded. Ib. 753. OPINION competency of witness. Preliminary proof of per- sonal knowledge of the witness as to the value of land, based on actual sales, is not indispensable. The lack of such acquaintance or proof thereof, goes to the weight rather than to the admissibility of the evi- dence. C. & E. R. R. v. Blake, 116 111. 163. 754. EVIDENCE plan of proposed building. The plan of a pro- posed building rendered impossible by the taking, is inadmissible to prove future probable prohts, and so enhance the damages, but it is proper to show the uses to which the property might be put. It should be so limited by the court. Ib. 755. EVIDENCE plan of proposed improvement by owner. On the assessment of compensation and damages in a proceeding to con- demn a railroad right of way across lots abutting upon a river, the court allowed the lot owners to give in evidence a plat of a proposed improvement on the property, showing water fronts of proposed docks along the river. The court in admitting the plat and in an instruc- tion limited this evidence to the question of what uses the lots might be adapted: Held, no error. Cal. Riv. Ry, v. Moore. 111. . Filed March 26, 1888. 756 . OPINION competency to give. Real estate brokers acquainted with the value of real estate in the neigh oorhood, are competent to give their opinion of the value of property sought to be condemned, although their knowledge is not shown to be based on actual sales. Ch. & Evanston R, R. v. Blake, 116 111. 163. * 757. PLANS OF THE ROAD preserving in record. In a proceed- ing to condemn land for a right of way, it is competent on the ques- tion of damages for the company to show the plan of construction of its road over the premises sought to be taken. But where such plan will materially affect the question of damages, the plan should be presented and preserved in the records of the court; so that if there should be a departure from the plan to the defendant's injury he may have his remedy for any increased damages resulting from such departure. III. & St. L. R. R. Coal Co. v. tiwitzer, 117 111. 399. 758. CHANGE or PLANS liability for. While a purchaser of land cannot recover for an injury by the construction of a railroad over the same, yet if the company, after his purchase, adopts a new feature in the construction and operation of its road in the future by making an opening in an embankment for the passage of water, and constructing a bridge over the opening, such purchaser will, in a proceeding to con- demn, be entitled to compensation for any damages growing out of the change or alteration in the nature of the work. W., kit. L. & P. Ry. v. McDougall, 118 111. 229. 759. STIPULATION OF PETITIONER evidence on question of dam- ages. In a proceeding by one railway company to condemn a right AND EMINENT DOMAIN. 89 of way across the track of another company, a stipulation or cove- nant of the petitioner, properly executed, that it will, at its own expense, put in and maintain in proper repair the frogs and crossings over two main tracks of the defendant company, expressed to be bind- ing on its successors and assigns, is proper evidence for the petioner on the question of damages. C. & A. R. R. v. Joliet, Lockport & Aurora Ry., 105 111. 388. 760. PROFILE OF GRADE OF STREET as evidence on question of damages. In a suit by the owner of a house and lot to recover dam- ages growing out of a change in the grade of a street, after the work is commenced and before its completion, the profile of the proposed improvement is proper evidence against the city. City of Elgin v. Eaton, 83 111. 535. As to plans, profiles, specifications, &c., being proper evidence, see also Hyde Park v. Andrews, 87 111. 229; Peoria & R. I. R. R. v. Sirkett, 62 111. 332; St. L., J. & Ch. R. R. v. Mitchell, 47 111. 165; Hayes v. O. 0. & F. R. V. R. R., 54 111. 373; Mix v. L. B. & M. Ry., 67 111. 319; Wilkin v. 8t. Paul R. R., 16 Minn. 271; Rippfi v. Ch. R. R., 23 Minn. 18. 761. AVERAGING THE EVIDENCE. The jury may take an average of the testimony on the question of compensation or damages, if properly done by a consideration of all the elements and circumstances referred to in the law as proper, to aid in determining the weight of evidence, and they should not be told that they have no right to average the testimony without explanation. Peoria & Rock Island R. R. v. Sirkett, 62 111. 332. 762. AVERAGING EVIDENCE. The jury have not the right to take the gross amount as sworn to and divide it by the number of the wit- nesses to obtain their verdict, unless there is afterwards full and free consultation and the judgment assents to the sum uninfluenced by any previous agreement. P. & R. I. R. R. v. Sirkett, 62 111. 332. 763. DAMAGES when nominal. The amount of the damages must be shown, not necessarily with precision, but approximately. If dam- age is shown but the amount is not approximately made to appear, no more than nominal damages can be allowed. P., P. & U. Ry. v. P. & F. Ry., 105 111. 110. 764. OF THE USE OF THE LAND. If property sought to be con- demned by a railway company for a right of way is claimed by a cem- etery company, it may be shown on the question of the compensation and damages that the land is not used for burial purposes and is not susceptible of being used for cemetery purposes. The owner of the land is entitled to have the highest price for which the same can be sold for any purpose. Concordia Cem. Assoc. v. Minn. & N. W. R. R., 121 111. 199. 765. OF OTHER SALES. Evidence in regard to sales of prairie land one mile distant from the land sought to be condemned, may be received as tending in some measure to show the value of the land involved, where there is no evidence of any actual present market value, nor of sales of like property nearer. Where the land sought is not laid out into lots and improved as cemetery property, proof of sales of other cemeteries is not competent evidence on the assessment. Ib. 766. OF OTHER SALES OF LAND. On the question of the damage of a railway to a farm, the defendant gave in evidence the opinions of witnesses as to the amount of the depreciation of its market value, and thereupon evidence was admitted in rebuttal to show how the selling values of other farms in the county crossed by railroads were affected: Held, that the latter evidence was improper. Kiernan v. Ch., 8. F. & Cal. Ry.lll. . Filed Nov. 11, 1887. 767. DAMAGE BY DIVERSION OF STREAM. If damages are claimed 90 EAILBOADS, WAREHOUSES, for the division of a stream, evidence tending to show it was a recep- tacle of all the sewerage of a city near by, and had become so foul as to be worthless for stock water, is proper as bearing on the question of damages. Ib. 768. PERSONAL VIEW its weight. The result of the jury's per- sonal view of the land over which a railroad is sought to be laid, is proper evidence upon which they may act, and give it greater weight than the opinion of witnesses. Ib. DAMAGES TO OTHERLANDS NOT DESCRIBED IN PETITION. 769. CROSS PETITION NECESSARY. On an assessment of damages to certain lots abutting upon a street caused by the location of a side track of a railroad in a public street, the owner will not have the right to prove damages to his entire land, consisting of many lots lying together, and with those named constituting an entire tract, unless he flies a cross petition setting up that the other lots will be damaged. Mix. v. L. B. & Miss. Ry., 67 111. 319. 770. The inquiry as to damages should be confined to the tract of land described in the petition in the absence of a cross bill by the defendant showing that he owns contiguous lands which will be dam- aged. Jones v. Ch. & Iowa R. R., 68 111. 380. 771. Where the petition describes only one tract of the defendant's land, a portion of which the right of way cuts off from the entire farm, also consisting of another tract, the correct practice, in order to recover damages as to the whole, is to file a cross petition; but when this is not done, and the damages are assessed without objection to the whole farm, and the court protects the petitioner from further proceedings for the recovery of damages to the balance of the farm, by requiring the owner to execute a release as to it, the judgment will not be reversed for the error. Galena & S. Wis. R. R. v. JBirkbeck, 70 111. 208. 772. Where the petition describes only one tract of the defendant's farm which is cut off from the rest, and damages are assessed in respect to that tract, the owner may afterwards cause the damages to be assessed as to the balance of the land. Ib. 773. Where a petition is filed to condemn land for right of way and there is no cross petition to include other land within it, it is improper to permit evidence to be introduced in regard to land adjoin- ing that described in the petition and belonging to the same owner. P. A. & D. R. R. v. Sawyer, 71 111. 361. 774. The owner may by cross petition have the damages to his other contiguous land assessed in addition to the compensation for the land taken. Stetson v. Ch. & E. R. R., 75 111. 74. 7 75. Where a part of a lot is sought to be condemned by a city for a street, damages as to the part not sought to be taken may be allowed without any cross petition by the owner. Bloominyton v. Miller, 84 111. 621. 776. The ascertainment of the just compensation to the owner for taking away a part of his lot of necessity involves the consideration of the value of the whole property intact, and the value of that part not taken after the proposed part shall have been taken. Ib. 777. The petition need not describe the property not sought to be taken or damaged, and if other property is brought in by cross peti- tion, it is incumbent on the defendant to show, in the first instance, that it was taken or damaged, and the petitioner is entitled to give evidence in rebuttal. Hyde Park v. Dunham, 85 111. 569. AND EMINENT DOMAIN. 91 778 . Where the defendant filed a pleading, stating that " he is the owner of the lands mentioned in the petition and other lands contigu- ous thereto, making a farm of 730 acres in a compact body; that the railroad company takes about 12 acres out of his farm, dividing wood, water and timber from the balance of the farm; that the land thus taken is of the value of $150 per acre, and the damage by reason of the cutting the farm is $10,000; and he respectfully asks that this, his compensation, may be awarded to him as shall be just and proper:" Held, sufficient to answer the purpose of a cross petition for damages to contiguous lands, and gave the court jurisdiction as to the claim of such damages. Ch. & Iowa R. R. v. Hopkins, 90 111. 316. 779. Where the petition for right of way shows that the defendant is the owner of an entire tract of land, and that petitioner proposes to take a strip through the same, a cross petition is not necessary to enable the defendant to have damages assessed for land not taken. 111. Western Extension R. R. v. May rand, 93 111. 591. 780. The evidence will be confined to the particular lands described in the petition, unless the defendant files a cross petition, setting up that he is the owner of other land not described in the original peti- tion which will be damaged, and makes claim to have the damages thereto likewise assessed . Ch. & Iowa R. R. v. Hopkins, 90 111. 316. 781. Where the owner by cross petition claims damages to other parts of the same tract, an instruction confining the assessment of the jury to the strip of land actually taken, and excluding consideration of damages to the remainder of the farm, is properly refused. Ib. 782. CROSS PETITION right to file defects, how reached. On a petition to condemn land by a railway compapy, the defendant has a right to file a cross petition where his interests are not accurately or fully stated in the petition, and thereby recover compensation for damages to the adjacent property not sought to be taken, and it is error to strike such a petition from the files. If it be defective, or the property damaged is insufficiently described, or the cross petition does not show how the property will be damaged, the proper course is to demur to it, so as to afford an opportunity to amend. Johnson v. Freeport & Miss. River Ry., Ill 111. 413. DAMAGES AS OF WHAT DATE. 788. ACT OF 1852 facts at date of trial govern. Under the act of 1852, in assessing the damages above the benefits, the jury is not confined to a consideration of the facts as they existed at the time the land was taken, but may consider the subject in the light of the facts as they exist at the time of the trial. Hayes v.O.,O.& Fox River Valley R. R., 54 111. 373. 784. LAND FOR PARK value at date of condemnation. In assess- in , damages for land taken for a public park, its value at the time of the condemnation should be considered, the owner being entitled to the benefit of an advance caused by the prospective establishment of a public park. Cook v. /South Park Comrs., 61 111. 115. 785. SAME suit against owner. Where the public authorities in a proceeding to condemn land for a public park, have not acquired either the title or the possession of the land, it is error to award rent against the owner for the use of the premises from the date of the law, or time it took effect. Ib. 78(>. Where, the witnesses on bolh sides in a proceeding to don- demn property testified as to its value at the date of the institution of the proceeding, except three, and from their testimony it did not appear that the property was worth more at the time of the trial, it 92 EAILROADS, WAREHOUSES. was held, that a modification of an instruction confining the jury to its value at the first date, was not of sufficient importance to affect the right of the land-owner. McAuley v. Col., Ch. & Ind. Cent. Ry., 83 111. 348. 787. TAKEN BEFORE CONDEMNATION advance in value. Where land has been taken and occupied for railroad purposes prior to the institution of proceedings^ condemn, the value of the land taken, at the time of the condemnation, is the value to be ascertained, the owner being entitled to any advance between that time and the actual taking of the land; and when the land is sold after its occupation for a right of way and before proceedings to condemn, the purchaser will be enti- tled to the advance in value. Ch. & Iowa R. R. v Hopkins, 90 111. 316. 788. DATE OF FILING PETITION. On petition to condemn land for public use, the compensation to be paid must be fixed by the valuation of the property at the date of the filing of the petition and not at the time of the trial. South Park Corns, v. Dunlevy, 91 111. 49. 789. Where compensation is paid, the rights of the petitioner relate to the time of filing the petition, and the amount of compensation is determined by the valuation at that time. Schreiber v. Ch. & E. R. R., 115 111. 340. 790. The compensation to be paid is fixed by the value of the prop- erty taken at the time of the filing ot the petition. Ib. WHO ENTITLED TO DAMAGES. 791. SUBSEQUENT PURCHASER. Where a railway company with- out any authority locates and operates its road over a tract of land belonging to an estate, on a judicial sale, the whole land with the right of way will pass to the purchaser, and he will be entitled to compensa- tion for the land taken and damages for any injury to the residue. Ch. & Iowa R. R. v. Hopkins, 90 111. 316. ASSESSMENT COVERS ALL FUTURE DAMAGES. 792. BAR TO FURTHER ACTION. All damages, present and pro- spective, resulting, or to result to the land owner from the proper con- struction, maintenance and operation of a railroad over or upon his land, constitute one single, indivisible cause of action, whether enforced under the eminent domain act, or by action. After the recov- ery of damages for right of way the land-owner and his subsequent grantee are barred as to any subsequent damages that might have been reasonably anticipated. O. & M. Ry. v. Wachter, 111. . Filed Jan. 20, 1888. 793. Where a right of way is condemned for public use over a tract of land, the owner will be entitled to compensation, not only for the value of the land taken, but also for all damages to the residue of the tract, past, present and future, which the public use may there- after reasonably produce. C., R. I. & P. Ry. v. Smith, 111 111. 363. 794. GRANT OF RIGHT OF WAY increased use. The grant of a right of way to a railway company "for all uses and purpose, or in any way connected with the construction, preservation, occupation and enjoyment of said railroad," is broad enough to embrace all uses for railroad purposes, however much increased and by other compa- nies authorized by law. Ib. 795. RECOVERY when a bar to future damages. In an action for deterioration in the value of real estate from a nuisance of a perma- nent character, all damages for past and future injury may be recov- ered, and one recovery is a bar to all future actions for the same AND EMINENT DOMAIN. 93 cause. Ottawa Gas Co. v. Graham, 28 111. 73; /. C. R. R. v. GhraUll, 50 111. 244; Cooper v. Randall, 59 111. 321; Decatur Gas Co. v. Howell, 92 111. 19; C. & A. R. R. v. Maker, 91 111. 312; C. & E. III. R. R. v. McAuley, 121 111. 165: Troy v. Cheshire R. R., 3 Fost. N. H. 83; Stodghill v. C., B. & Q. R. R., 53 Iowa 343; Powers v. Council Bluffs, 45 Iowa 652; C. & E. 111. R. R. v. Loeb, 118 111. 209; Fowle v. N. H. & N. R. R., 112 Mass. 334; Kansas R. R. v. Mihlman, 17 Kan. 224; Fowle v. N. H. & N. R. R., 107 Mass. 352; Warner v. Bacon, 8 Gray 397; /. C. R. R. v. Allen, 39 111. 205; C., B. & Q. R. R. v. Schaffer, 111. . Filed March 28, 1888. EELEASE, AS A BAE. 796. CONTRACT FOB. Where a party executes a contract with a railway company, agreeing to release and convey a right of way for its road over any land owned by him, as soon as the road is located, he will not be entitled to any damages by the construction of the road over any of his lands. Conwell v. Spr. & N. W. R. R., 81 111. 232. 797. CONSTRUCTION OF. Where a deed is given a railway company for a right of way 100 feet wide through the grantor's land, releasing all claim for damages by reason of the location and completion of the road over the same or any part thereof, it will confer the same right on the grantee as it might have acquired by condemnation, and an immunity from all damages that the grantee might have claimed. St. L., V. & T. H. R. R. v. Hurst 14 Bradw., 419. 798. Unless the acts complained of were a departure from or were not embraced in the purposes for which the deed was given there can be no recovery, and it is error to refuse to admit such deed in evidence. 76. DAMAGES TO PEOPEETY WHEEE NONE OF IT IS TAKEN. 799. CONSTITUTION OF 1848. Under the constitution of 1848 and the statutes in force in Ma'rch, 1870, a party is not entitled to damages by reason of the construction of a highway adjoining and abutting against his land, when no part thereof has been taken. Hoag v. Switzer, 61 111. 294. 800. At that date the commissioners of highways had no power to assess or award consequential or remote damages to a party by reason of the construction of a highway, when no part of his land was taken. The road law of 1861,. 55, 56 and 68 does not conflict with this view. Ib. 801. DAMAGES CONTEMPLATED. The word "damaged" in this clause of the constitution is used in its ordinary and popular sense, which is " hurt," "injury "or "loss." The damage contemplated is an actual diminution of present value, or of price, caused by the con- struction of the road, or a physical injury to the property that renders it less valuable in the market. Ch. & P. R. R. v. Francis, 70 111. 238. 802. SAME depreciation of value. Where the property is not taken, the damages must be real and not speculative. If the property is not worth less in consequence of the construction of the railroad in its vicinity, or upon a street upon which the lots abut than if no road were constructed, the owner will not be entitled to damages. Ib. 803 . The words in the act of 1872 " which may damage property not actually taken," relate to contiguous lands of the same owner, a part of which only is taken. The damages to land not taken must be direct and physical and result from the taking of a portion of his land. Stetson v. Ch. & E. R. R., 75 111. 74. 804. The constitution of 1870 was intended to afford redress in 94 EAILBOADS, WAEEHOUSES, cases not provided for before, and embraces every case where there is a direct physical injury to the right of use or enjoyment of private property, by which the owner sustains some special damage in excess of that sustained by the public generally. Riyney v. Chicago, 102 111. ill. 805. While the present constitution was intended to afford redress in a class of cases for which there was no remedy under the old con- stitution, still it was not intended to reach every possible injury occa- sioned by a public improvement. The building of a jail, police station, or the like, will generally cause a direct depreciation in the value of neighboring property, but that is a case of damnum absque wjuria. Ib. 806. Any expressions used in Stetson v. Chicago & Evanston R. R., 75 111. 74; and C. M. & St. P. R. R. v. Hall, 90 111. 42, which may seem to restrict the remedy of owners of private property as given by the present constitution to cases where there has been a direct physical injury, are not to- be accepted as embodying the views of the court on that subject. Ib. 807. The right to recover damages for injury to private property occasioned by the taking of other property for public use, if not con- ferred, is secured by 13 Art. 2 of the constitution of 1870. Ch. & W. Ind. R. R. v. Ayres, 106 111. 511. 808. PROPERTY NOT TAKEN. Prior to the constitution of 1870, no compensation was required to be paid for property not taken for pub- lic use, but which was damaged by the construction and maintenance of public improvements. Under that constitution an action by a lot owner for a physical injury to his property by constructing and oper- ating a railway in a public street near his lot, may be regarded as a proceeding to recover just compensation for private property damaged for the public good, and one recovery will bar any subsequent action for the same cause. Ch. & E. III. R. R. v. Loeb, 118 111. 208. i DAMAGE TO CONTIGUOUS PROPERTY. LIABILITY OF MUNICIPAL CORPORATION. 809. CHANGE OF STREET GRADE. Municipal authorities have the undoubted power to alter the grade of streets at their discretion and compel property owners to conform thereto; and if the work is done with reasonable care and diligence, the town or city will not be liable to such owners for damages growing out of obstructing the streets, but if they act wrongfully, or with bad intent, damages may be re- covered. Roberts v. Chicago, 26 111. 249. 810. SAME creating nuisance. If a city in fixing the grade to a street turns a stream of water and mud upon the grounds or cellar of a citizen, or creates in his neighborhood a stagnant pond that generates disease, it will become liable to him in damages. Nemns v. Peoria, 41 111. 502; Aurora v. Qillett,&> 111, 132; Aurora v. Reed, 57 111. 29; Shawneetown v. Mason, 82 111. 337. 811. DEFECTIVE SEWER surface water. The liability of a city for an injury to private property resulting from drains and sewers constructed by the city, being defective or having become obstructed, by reason whereof surface water from the streets is thrown upon the premises of another, is correctly stated in Nevins v. Peoria, 41 111. 502; Aurora v. GKllett, 56 111. 132. 812. DRAINING STREETS. If it becomes necessary for the public interest in the process of grading or draining the streets that the lot of an individual shall be rendered unfit for occupancy, either wholly or in part, the public should pay for it to the extent it deprives the owner of its legitimate use. Nemns v. Peoria, 41 111. 502. AND EMINENT DOMAIN. 95 813. ^GRADE or STREET. A city has full control over the grade of its streets, and may lower or elevate it at pleasure, and for the Inconvenience and expense of adjusting their lots with the streets the owners thereof will have no right of action. Aurora v. Reed, 57 111. 29. 814. A city, under the plea of public convenience, cannot be allowed to exercise its powers over the public streets to the injury of private property in such a mode as would render a private owner liable. Ib. 815. GRADE throwing water on lot. Where a city fixes the grade of a public street, and has the same so improved that water from rains and melting snows runs to and discharges itself upon a private lot, the city will be liable to the owner in damages, although the street may have been improved before the lot was. It is no defense that the owner might have protected his lot by digging ditches. Ib. 816. DEPRIVING OF SIDEWALK. City authorities have no power to appropriate such part of land dedicated for a public street as will deprive the owners on one side of the street of a sidewalk, and if they attempt to do so they may be enjoined. Carter v. Chicago, 57 111. 283. 817. INJURY TO SEWERAGE. If, in abating or removing a nuis- ance, by a system of sewerage or drainage, a city unavoidably inflicts an injury upon private property, it should, by condemnation or other- wise, make compensation for the injury. Jacksonville v. Lambert, 62111.519. 818. CHANGE OF GRADE. Municipal corporations may regulate and establish the grade of their streets, but this must be so done as to do no serious injury to the owners of abutting lots. They have no right to change, the natural flow of water and throw it upon the lands of another. Dixon v. Baker, 65 111. 518. 810. Where a city, by elevating the grade of a street, caused the surface water to flow upon the plaintiff's lot and into the basement of his cellar, whereby the building thereon was injured, and the walls were cracked, and it appeared that the injury might have been avoided by proper sewerage: Held, that the city became liable. Ib. 820. While the corporate authorities are vested with power to grade their streets, yet the manner of its exercise is limited in the same way and to the same extent as the power of a private person in the use of his property, unless such authorities call to their aid the right of eminent domain, in which case compensation must be made. Pefcin v. Brereton, 67 111. 477. 821. GUTTER OUT OF REPAIR. If a city suffers a gutter in a street it has constructed, to get out of repair, so that the water which it should have carried off, is thrown upon the lot of an individual near by, and his buildings are damaged thereby, the city will be liable for the injury. Alton v. Hope, 68 111. 167. 822. CHANGE OF GRADE. A city may elevate or lower the grade of its streets, when done in good faith with a view to fit them for use, and cannot be held responsible for errors of judgment in that respect, or made liable for the inconvenience and expense of adjust- ing the adjacent property to the grade as changed. Shawneetown v. Mason, 82 111. 337. 823. STREET FOR LEVEE. But if the street is appropriated to another use than that contemplated when it was laid out, as ror a levee to prevent a river from overflowing the town, and the grade is raised for fifi>-h a purpose only, then under the constitution of 1870, the own- ers of property damaged thereby, are entitled to just compensation. 76. 824. Under the constitution of 1870, if injury to private property is sustained by changing the grade of a street, the municipal corpora- 96 KAILKOADS, WAREHOUSES, tion causing the same, will be liable to the owner in damages. Elgin v. Eaton, 83 111. 535. 825. EXCAVATION IN STREET. The distinction between an exca- vation made in a street and one made by an individual upon his own adjoining land, as respects the right of recovery by the owner of abut- ting premises, is that such owner has the legal right to use the street. If his right of ingress and egress is disturbed, he may have damages therefor, while if the adjoining proprietor excavates upon his own land, no harm is done, unless his neighbor's lot has been disturbed thereby. Elgin v. Eaton, 2 Bradw. 90. 826. BRIDGE IN STREET. In an action by an adjacent lot-owner for damages caused by the construction of approaches to a bridge, evidence of damages caused by the bridge employes throwing dust and dirt from the bridge in baskets, is not admissible; nor is evidence of damage arising from the diversion of travel and trade. E. St. Louis v. Wig- gins Ferry Co., 11 Bradw. 254. 827. KAILROAD IN STREET. A city is not liable for damages resulting from the proper exercise of authority in permitting railroad tracks to be laid in the streets, or in raising the grade of streets. Unless the authorities exceed their power there is no liability. Mur- phy v. Chicago, 29 111. 279. 828. DEPRIVING OF SIDEWALK injunction. Where city authori- ties undertake by ordinance from fraudulent and malicious motives to appropriate so much of one side of a street to the purposes of a road- way, as will deprive the adjacent property owners of any sidewalk, a court of equity has jurisdiction to restrain the execution of the ordi- nance. Carter v. Chicago, 57 111. 283. 829. EXCAVATIONS IN STREETS. A municipal corporation while acting within the scope of its authority in making excavations in a street for the purpose of opening and improving it, using proper care and skill, is not liable to the lot-owner for an injury to his buildings caused by removing the lateral support of the soil in the streets. Quincy v. Jones, 76 111. 231. 830. ALLOWING RAILROAD EXCAVATIONS. If a railway company under a right conferred by a city, constructs its track along a public street, and makes excavations along such street, so that a lot owner is thereby deprived of convenient access to and from the street and to his lot, and the lot and building thereon are subject to injury by the caving and falling in of the lots, the city will be liable to the owner in an ac- tion on the case for the injury caused by such excavations. Pekin v. Brereton, 67 111. 477. 831. OBSTRUCTING ACCESS TO LOTS. Where a city had established no grade of a street upon which the plaintiff had a house and lot, and a railway company by permission of the city, filled up the space between an original embankment and the plaintiff's lot, so as to prevent access to his lot by wagons and carriages from the street, as had been his custom: Held, that as this was a special injury to the plaintiff and peculiar to him, he was entitled to damages from the city. Pekin v. Winkel, 77 111. 56. 832. RAILROAD IN STREETS. A city or village may authorize the laying of railroad tracks in its streets, and such use is not inconsistent with the trust for which they are held, but in so doing the city has no right to so obstruct the streets as to deprive the public and adjacent property holders from their use as a highway. Stack v. East St. Louis, 85 111. 377 833. If the authorities of a town or city authorize a structure upon a public street, or other obstruction that causes injury to adjacent lot holders, it will be liable for the damages. Ib. AND EMINENT DOMAIN. 97 834. A city has no right to so obstruct its streets, or to authorize the same to be done, as to deprive property holders from free access to and from their lots abutting on the same. If it permits the use of a street for an approach to a bridge, it must see that the approach is so constructed as not to produce injury to adjacent property hold- ers. Ib. 835. BRIDGE APPROACHES IN STREET. If a city authorizes a bridge company to construct an approach to a bridge in a public street, whereby the street is obstructed in front of and along a party's lot abutting on the same, rendering the use of the street in front of the lot impassable and useless, and whereby ingress and egress to the lot from the street is prevented, and water is caused to drain and flow upon the lot and fill the cellar thereon, and by reason of the noise, confusion, shaking and the falling of dirt and dust caused by teams and wagons passing over the approach, the plaintiff's tenants occupy- ing the houses on the lot are driven out, the city will be liable to such lot owner for all the damages thus caused to his premises. Ib. 836. TUNNEL IN STREET. Where a city, under legislative author- ity, constructs a tunnel in a street in a proper manner and without unreasonable delay, no action lies against it in favor of an adjoining lot owner whose property has received no physical injury. Chicago v. Rumsey, 87 111. 348. 837. Where the city owns the fee in its streets, it is not liable under the constitution of 1848 to the owner of a lot abutting on a street for damages claimed on account of constructing a tunnel in the street in front of his property, when the work is properly planned and executed under the sanction -of law, and no physical injury is done to his property, and there is enough of the street left for ordi- nary travel. Ib. 838 . WATER TANK IN STREET. The erection of a water tank in the center of a street, occupying one-half of the width thereof, and the erection and operation of a steam engine in connection therewith, even for the purpose of supplying the city and its residents with water, is not an use to which the street can appropriately be put, and the owner of an adjoining lot does not take subject to such easement, and may maintain an action against the city for any damage to his property. City of. Morrison v. Hinkson, 87 111. 587. 839. VIADUCT OR BRIDGE IN STREET physical injury. To authorize a recovery by an individual for an injury to his property by the construction of a public improvement under the authority of a statute, it must appear that there has been some direct physical dis- turbance of a right, either public or private, which the plaintiff enjoys in connection with his property, and which gives to it an additional value, and that by reason of such disturbance he has sustained a special damage with respect to his property in excess of that sustained by the public generally, and which by the common law in the absence of any constitutional or statutory provision, would have given a right of action. Rlgney v. Chicago, 102 111. 64. 840. Where a city constructed a viaduct or bridge on a public street near its intersection with another street, thereby cutting off access to the first named street from the plaintiff's house and lot over or along the street intersected, except by means of a pair of stairs, whereby the plaintiff's premises fronting on the latter street and near the obstruction, were permanently damaged and depreciated in value by reason of being deprived of such access, it was held that the city was liable to the plaintiff in damages. Ib. 841. The owners of property bordering upon streets, have as an in- cident to their ownership, a right of access by way of the streets, 8 98 RAILROADS, WAREHOUSES, which cannot be taken away, or materially impaired by the city with- out incurring legal liability to the extent of the damage thereby occa- sioned; and to this extent it maybe said there is a special trust in favor of adjoining property holders. Chicago v. Union Building Assoc., 102 111. 379. 842. USE OF STREET FOB RAILROAD. The grant of the use of a street to a railway company, whereby access to and egress from a lot is not prevented, will not render a city liable for damages to the owner. East St. Louis v. O'Flynn, 119 111. 200. 843. For an injury to, or an obstruction of a public and common right, no private action will lie for damages of the same kind as those sustained by the general public, although the private property may be injured much greater in degree. Ib. 844. So, a lot owner in a city cannot maintain an action against the city for the vacation of a portion of a public street, not bordering on his lot and not necessary to afford him access thereto. Ib. 845. Where a railway company is authorized by ordinance to build its road within a part 'of the street, which is thereby legally vacated, the city cannot be held liable to a lot-owner whose property is not ad- jacent to the vacated street for any act done by the company not authorized by such ordinance. Ib. LIABILITY FOB INJURY BY USE OF STEEETS. 846. .PRIOR TO CONSTITUTION OF IS1Q injunction damages. Municipal authorities having the exclusive control over the streets may give permission to a railway company to locate its. tracks along a street, and the owner of lots along such street cannot enjoin the lay- ing of the track or receive any damages or compensation for such use of the street. Moses v. P., Ft. W. & Ch. It. R., 21 111. 516. 847. NEW BURDEN damages for. Where the public has acquired an easement over a person's land for an ordinary street or highway, the location of the track of a railroad on the same, is an additional burden and servitude upon the land, which will entitle the owner to additional compensation. /., B. & W. R. R. v. Hartley, 67 111. 439. 848 . But where the fee of the street is in the municipality granting the right of way in the same to a railway company, the owners of lots fronting on such streets, cannot enjoin the laying of the track in the street, nor receive compensation for the use of the street so appro- priated. 77). 849. FOR WHAT INJURY LIABLE. Where the fee of a street is in the adjacent land-owner, the town or city may grant the right to a railway company to lay its track along or across the same, but the company avails of its privilege at its peril. If in laying its track, it causes a private injury to him who owns the fee in the adjoining premises, it will be liable to him for the damages. Ib. 850. The clause of the constitution that " private property shall not be taken or damaged for public use without just compensation " must receive a reasonable and practicable interpretation. Where the property is not taken, the damages must be real and not speculative. If the property is not worth less in consequence of the construction of a railroad in its vicinity, or upon a street upon which the lot abuts, than if no road were constructed, the owner will not be entitled to damages, and cannot enjoin the construction of the road. Ch. & Pac. R. R. v. Francis, 70 111. 238. 851. While a town or city may rightfully permit a railway com- pany to occupy and use a public street for right of way, yet under the AND EMINENT DOMAIN. 99 organic law of the state the company must be held responsible to property owners upon the street for such direct and physical damage as shall result from the construction of the road, or its operation after completion. Stone v. F., P. & N. W. R. R., 68 111. 394. 852. THROWING SURFACE WATER ON LAND. If a railway com- pany, in constructing its road along a public street, under license from the corporate authorities, turns waste and surface water and mud upon the adjacent premises of another, it will be liable to the owner in damages for the injury thereby done. St. L., V. & T. H. R. R. v. Capps, 72 111. 188. 853. RIGHT TO HAVE DAMAGES ASSESSED. Where no part of a person's land is taken or sought to be condemned by a railway com- pany, he will not be entitled to have proceedings instituted to ascer- tain what damages his property will sustain by the construction and operation of a railway upon adjacent lands, but will be left to his action at law. Stetson v. Ch. & E. R. R., 75 111. 74. 854. INJUNCTION. A court of equity will not enjoin the construc- tion and operation of a railroad upon a public street or other lands not belonging to the complainant until the damages to lots owned by him abutting upon the street are ascertained and paid, but will leave him to his action at law. Ib. 855. Where the fee of the street is in the adjacent lot-owner, sub- ject to public easement, the rule is different, for the reason that the railroad is an additional burden on his land. Ib. 856. INJUNCTION. In case of a claim of consequential damages to land on account of the operating of a railroad where no part of the land claimed to be affected is taken for the use of the road, a court of equity will not enjoin the use of the railroad until such damages are assessed and paid, nor will it, at the suit of an individual, enjoin a railway company from operating its road laid in a public street with- out leave of the city, but will leave the redress to the public authori- ties. Patterson v. Ch., Dan. & Vin. R. R., 75 111. 588. 857. Where, after the construction of a railroad over a portion of a lot, the owner erected a dwelling house upon the lot in close prox- imity to the road, and occupied the same as a residence, it was held that the owner having built the house with full knowledge that it would be affected by the road, could not in an action against the rail- road company recover for the loss he thus knowingly and voluntarily incurred by building the house near the road, but that so far as the house sustained a direct physical injury by the company, which it was its duty to avoid, as against all adjacent property, the owner was enti- tled to recover. /., B. & W. Ry. v. McLaughlin, 77 111. 275. 858 . INJUNCTION. Where city authorities grant permission to a railway company to lay its track along a street, the owners of prop- erty fronting on such street cannot enjoin the laying of such tracks, nor be allowed any damage or compensation for such use of the street. C., B. & Q. R. R. v. Mc&innis, 79 111. 269. 859. PHYSICAL, INJURY. The liability of a railway company to a lot-owner in consequence of its use of a public street in front of the lot under license from the city, is confined to the direct physical injury done to the property by the operation of the road. Ib. 860. RIGHT TO USE OF STREET. The grant in a charter to a rail- road company to run its road through a town, cannot by any reason- able or fair intendment operate as a grant of the use of the streets, or either of them, to the company. St. L., V. & T. H. R. R. v. Holler. 82 111. 208. 861. RIGHT TO HAVE CONDEMNATION. Under the eminent domain 100 KAILROADS, WAREHOUSES, act of 1872, an adjoining land-owner, where no part of his land is actually taken, or sought to be condemned for public use, is not enti- tled to have proceedings instituted to ascertain what damages his property may sustain in consequence of the construction and opera- tion of a railway upon contiguous or adjacent lands in which he has no interest. P. & R. I. Ry. v. Schertz, 84 111. 135. 862. INJUNCTION. A court of equity will not enjoin the use of a railroad track upon a public street until the adjoining land-owner's damages have been assessed and paid, even though the company may be insolvent. Ib. 863 . The rule is well settled that for any obstruction to streets not resulting in special injury to the individual, the public only can com- plain. If a special injury results to a person, he may have his action against the wrong-doer. McDonald v. English, 85 111. 232. 864. POWER OF CITY OVER STREETS. A city has the power to allow the construction of a railroad upon or over its streets, and the public will be bound by whatever may be lawfully done in regard to the streets by the city. C. & N. W. Ry. v. People, 91 111. 251. 865. ADDITIONAL TRACKS. A lot owner has a right of action to recover damages to his lot from the unauthorized laying of additional railroad tracks in the street fronting his lot, whereby the use of the street for all ordinary purposes of a highway is destroyed, and access to his lot is cut off, and for the creating a nuisance by allowing stock cars to stand in the street adjoining the lot. P., Ft. W. & Ch. R. R. v. Reich, 101 111. 157. 866. ACTION cutting off access to lot. Where railway tracks are constructed in a public hig"hway on ground thrown up considerably above the common level, under proper license, in front of a person's land, whereby he is cut off from access and egress from the same, he cannot recover of the company for any injury or damage he thereby sustains in common with the public generally, but may recover for any damages he may have sustained individually in respect to his pri vate property separate and distinct from the disturbance of the public easement. Ch. & W. Ind. R. R. v. Ayres, 106 111. 511. LIABILITY FOE OTHER ACTS THAN USE OF STREETS. 867. OBSTRUCTING FLOW OF WATER bridges and culverts. An individual or corporation constructing a road under legislative author- ity over water-courses on private land, is bound to make suitable bridges, culverts or other provisions for carrying off the water effec- tually, and to keep them in suitable repair. /. C. R. R. v. Bethel, 11 Bradw. 17. 868. If the construction over a water-course is not properly done, and it is washed out by an extraordinary flood leaving the debris upon the land of an adjacent owner beyond the line of the company's right of way, the company will not be bound to remove the same. If by reason of its being so lodged, the waters of the stream are diverted in a subsequent freshet, whether extraordinary or only ordinary, it will give no cause of action to the adjacent owner for damages resulting from the last flood. Ib. 869. FLOODS CHOKING UP CHANNEL damage to adjacent owner. Where a corporation has exercised ordinary care in the construction or repair of bridges and culverts over water-courses on private land, and is not otherwise guilty of negligence, it cannot be made liable for damages occasioned to an adjacent proprietor by extraordinary floods choking up or washing out the channel of the stream. Ib. AND EMINENT DOMAIN. 101 870. OBSTRUCTING FLOW OF WATER. If a railway company makes an embankment near the land of another whereby the water is thrown back on such other's land, leaving no opening for the water to escape, it will be liable in an action on the case to the owner of such land for all the injury caused thereby. Gillham v. Madison Co. R. R., 49 111. 484. 871. Where a horse railway company constructs its road as required by ita charter and the license of the city, whereby the water is obstruc- ted and the premises of another overflowed, it will be liable to the owner of the land so overflowed, the same as if the roaa had been con- structed under the directions of its own engineer. A. & U. A. Horse Ry.v.Dietz, 50111. 210. 872. Where a corporation accepts its charter and constructs a rail- way as therein authorized, it will be implied that it will not injure others by its construction and maintenance, and if injury results there- from, it must be held responsible for the damages. Ib. 873. FLOODING PRIVATE LAND. A railroad company has no right by an embankment or other artificial means to obstruct 'the natural flow of the surface water, and thereby force it in an increased quan- tity upon the lands of another, and if it does so, it will be liable for the damages thereby caused to the owner. T., W. & W. Ry. v. Morri- son, 71 111. 616. 874. SAME /rora manner of use. The fact that a railway com- pany owns a right of way over the plaintiff's land, does not authorize it to make such a change thereon by structures or otherwise as to flow water back upon the land of the plaintiff, or others, and thereby inflict an injury. C., R. I. & P. R. R. v. Carey, 90 111. 514. 875. Where a railway company in constructing a second track on its right of way across land, obstructs a prior drainage, so as to dam up and throw the water back on the plaintiff's land, the depreciation in the value of the land caused solely by the structure may be consid- ered as the measure of damages as to the real estate injured thereby. Ib. 876. SAME right to remove obstruction. If the obstruction caus- ing the injury is upon the company's right of way, the owner of the land injured has no right to enter thereon to remove the same, and the law will not require nim to commit a trespass to remove the same, even if it would cost but a trifle; nor can the company require such owner to enter its right of way for such purpose. In such case, the party injured by the obstruction has the right to claim it as a perma- nent injury, and the jury to allow damages as such. But if the obstruc- tion is on plaintiff's land, he may remove the same, and the cost to remove the same will constitute the depreciation to his land. Ib. 877. A railway company has no right to stop, by its embankment, the natural and customary flow of the surface water from higher grounds, and by its ditch along its track, convey the same upon the premises of another over whose land the road is constructed, without providing some sufficient outlet for it to pass off; and where such per- son's land is injured in consequence of the accumulation of such surface water on his land, the company will be liable to him for all the damages occasioned thereby. /., N. W. & S. E. R. R. v. Cox, 91 111. 500. 878. A land-owner, by giving a deed for a right of way over his land to a railway company, will not be estopped from recovering damages occasioned by the wrongful construction of its road. Such a deed gives no right to flood his remaining land with water brought from other land, the natural flow of which would have carried it another way, where the consideration is only for the land conveyed. Ib. 879. Commissioners of highways are individually liable in an 102 EAILBOADS, WAEEHOUSES, action on the case for making a drain or a ditch or an embankment so near the laud of a party, and in so unskillful and careless a manner as to cause the rain and surface water running from such drain, to flow upon the plaintiff's premises to his injury. Tearney v. Smith, 86 111. 391. 880. NEGLIGENCE IN CONSTRUCTING DRAINS. The acquisition of land for a highway, gives the public the right to construct a highway over it in the mode and manner deemed most expedient, and the owner cannot afterwards recover for injuries then shown that he must unquestionably suffer. But such condemnation is no bar to a suit by the land-owner for a subsequent injury growing out of negligence and unskiilfulness in the public authorities in constructing drains in the highway, resulting in serious injury to the land-owner. Ib. 881. The maxim that no one has the right to use his own so as to injure another, applies as well to townships as to incorporated cities and natural persons. They must exercise their right in such a man- ner as to inflict no avoidable injury upon an individual. Ib. 882. NEW BURDEN injunction. Where a railway company ac- quiring its easement in a highway, takes it subject to such rights as the puulic have therein, that is, subject to the right of the public to subject the street to the ordinary and proper u es of a highway, the occupation of a considerable portion of the street for the construction of a ditch, not for the improvement of the street, but for the purpose of draining adjacent lands, is a new use of the street, for which com- pensation must be made in case property is damaged thereby. If the city has made no provision to pay damages, the railway company may have the construction of the ditch enjoined until provision for its payment is made. Ch. & N. W. Ry. v. Village of Jefferson, 14 Bradw. 615. , MEASURE OF DAMAGES. TO CONTIGUOUS PROPERTY NONE OF WHICH IS TAKEN. 883. WHEN TOO REMOTE. The injury resulting to lots not taken for the purpose of widening a street, by making lots on the enlarged street more attractive anu desirable, either for residence or business purposes, and thus diminishing the value of the former, is too remote to form the basis of a recovery. Hyde Park v. Dunham, 85 111. 569. 884. Municipal authorities of cities and villages are vested with complete control over streets, and they may contract or widen them when, in their opinion, the public good so requires; and any damage sustained in consequence or the exercise of such power where prop- erty is neither taken nor directly damaged thereby, is too remote and contingent to be allowed. 1 b. 885. NUISANCE. Although it is true that a municipal corporation cannot authorize that which is deemed a legal injury to the property of another without making compensation, yet the individual cannot recover for every technical nuisance to the streets of a city without regard to whether he has sustained special injury. McDonald v. English, 85 111. 2232. 886. CHANGE OF GRADE pecuniary loss. If private property is damaged by a change in the grade of a street, the recovery must be measured by the extent of the pecuniary loss. If it is benefited as much as it is damaged, there can be no recovery, and it is error to refuse testimony to show that fact. City of Elgin v. Eaton, 83 111. 535. 887. EVIDENCE profile of grade. In a suit by the owner of a house' and lot to recover damages growing out of a change in the AND EMINENT DOMAIN. 103 grade of a street, after the work is commenced and before its comple- tion, the profile of the proposed improvement is proper. Ib. 888. EVIDENCE depreciation of value. In an action against a railway company for damages arising from a direct physical injury to the plaintiff's dwelling, by reason of running its trains along a public street in front of his premises, evidence of the general depreciation of the value of his property is not admissible, where the witness is unable to distinguish between damages, such as were the result of the injury complained of, and such as arose^from other general causes. Ch. & E. III. R. R. v. Hall, 8 Bradw. 621. 889. EVIDENCE what required. In an action against a railroad company for injuries to adjacent property caused by the running of trains, where the declaration alleges an injury to the possession of the plaintiff, he must prove possession of the premises, the injurious act alleged to have been done, and the damages resulting therefrom . Cfi. & E. III. R. R. v, Loeb, 8 Bradw. 627. 890. ONLY DAMAGES PECULIAR TO PROPERTY. Where a railroad is built and operated through a street, the owner of land abutting 011 such street is not entitled to recover of the railway company all the damages sustained by him by the location and operation of the road, including the loss by depreciation in the market value of his prop- erty, ana which are common to other owners or the public, but his right to recover must be limited to such damages as are peculiar to his property, and which are of a physical nature, such as tne cutting off of access to his premises, jarring of his buildings, casting cinders and smoke upon his dwelling, &c. Oh. & W. Ind. 2i. 2i. v. Berg, 10 Bradw. 607. 891. ELEMENTS obstructing street. On an assessment of dam- ages to an adjoining lot owner oy the location and building of a side track of a railroad in a public street, it is error, by an instruction, to exclude from the estimate of damages, the obstruction of the street by the running of trains. Mix v. L. B. & M. Ry., 67 IJ1. 319. 892. An ordinance prohibiting the obstruction of streets by rail- way trains for more than fifteen minutes will not legalize such obstruction for that length of time so as to exclude it from the esti- mate of damages to contiguous property that may be injuriously affected thereby. Ib. 893. EVIDENCE as to uses of property. On the assessment of damages to lots abutting upon a street sought to be taken for a side track of a railroad, the owner gave evidence that the proposed loca- tion we uld render his lots useless for business purposes: Held, compe- tent for the railway company in rebuttal, to show that the property could be beneficially used for warehouse purposes, or lor any other purpose. Mix v. L. B. & M. Ry., 67 111. 3iy. 894. INSTRUCTION as to measure. In such a case, the court instructed the jury that the damages to be allowed the lot-owner could only be such, in kind, as lots not lying or abutting on the same street, but in the vicinity, did not sustain in any degree: Held, erroneous, as virtually cutting off all claim for damages. Ib. 895. In the same case, the court instructed that the law did not give indemnity for all losses or damages occasioned by the building of a railroad, such as inconvenience arising from the crossing of railroad tracks by the public or by individuals, or from noise and confusion of passing trains, smoke from the same, or frightening horses, &c.: Held, as applicable to the case where the track was along a street within ten to eighteen feet of the front line^of the lots abutting on the street, that the instruction was improper, and calculated to mislead the jury. Ib. 104 EAILEOADS, WAREHOUSES, 896. EVIDENCE ordinance. On the assessment of damages to lots by the location of a side track in an adjoining street, where the petition states that such track is to be constructed and maintained according to an ordinance, the ordinance is proper evidence on the question of damages, as tending to show the nature of the work and the probable use of the street. Ib. 897. DECLARATION statement of the injury. In a suit against a railway company for damages caused to plaintiff's lots and property, the declaration averred in substance, that the plaintiff owned and occupied as a residence certain property fronting on a certain public street; that the defendant constructed along, upon and over such street its railroad, and run daily its locomotives and trains thereon, and that smoke and cinders were cast and thrown from the engines and locomotives in and upon the property of the plaintiff, thereby greatly damaging the same: Held, that the declaration showed a good cause of action. Stone v. F. P. & N, W. R. R., 68 111. 394. 898. DAMAGE BY BRIDGE. To property on river. The state can not take or damage a party's land fronting upon or in the bed of a river without first making compensation therefor, nor can it author- ize a railway company to do the same. If such a company, under its charter, erects a bridge across a river, and the property of another bounded by the stream is taken or damaged thereby, a right of action exists in his favor; but he can only recover for damages which are special to his property, and not for such as are incidental to and are shared by the public at large. Ch. & Pac. R. R. v. Stein, 75 111. 41. 899. MEASURE injury to market value. Where the erection of a railroad bridge across a river causes a permanent injury or deprecia- tion in the value of a lot in the immediate vicinity, which is used for dock purposes, such injury is a proper element of damages in a suit by the owner against the company, and it is proper to allow the lot- owner to show such damage by proving the value of his property before the erection of the bridge and its value after; or, in other words, to prove how much less the property would sell for in consequence of the building of the bridge. Ib. 900. DAMAGE BY APPROACH TO BRIDGE. In an action by an adjacent lot-owner for damages occasioned by the construction of approaches to a bridge, evidence of damage caused by the bridge employes throwing dust and dirt from the bridge in baskets, is not admissible; nor is evidence of damage arising from the diversion of travel and trade. It is competent in such action to show that the diminution in value of the property arises from the general depression in trade. E. St. L. v. Wiggins Ferry Co., 11 Bradw. 254. 901. SAME evidence. Where the plaintiff claims damage by reason of the jar caused by the passage of trains over the bridge, it is competent upon cross-examination to show how the opposite approach is constructed, and that there is more vibration there, and that build- ings at the opposite approach are not injured by the vibrations. 76. 902. RAILWAY IN STREET element of damage. In an action to recover damages caused to a house and lot by the construction of railroad tracks in a street in close proximity to the plaintiff's property, the true measure of damages is the loss sustained by the nuisance, the injury from jarring the building and the throwing of cinders and smoke upon the plaintiff's premises, and the depreciation of the value of the property by these causes may be considered; but not general depreciation in value from other causes, such as mere inconvenience in approaching or leaving the property, or the noise and confusion in the vicinity. The injury must be physical. C., M. & [St. P. R. R. v. Hall, 90 111. 42. AND EMINENT DOMAIN. 105 903. DEPRECIATION IN VALUE benefits. Damage^ to property not taken for public use, to be recoverable, must be physical and real, and not speculative, and it must depreciate the value of the property or its use. The depreciation is to be determined by comparing its value before and after the structure which produced the injury, and any benefits thus conferred should be considered as well as injury in- flicted by the structure, in estimating the damages. Ib. 904. ELEMENTS or depreciation in value. Under sec. 13, Art. 2, of the constitution, a recovery may be had in all cases, where private property has sustained a substantial damage by the making and using of an improvement that is public in its character, as a railway, and it is not required that the damage shall be caused by trespass or an actual physical invasion of the owner's real estate; but if the construc- tion and operation of a railroad or other public improvement is the cause of the damage, though merely consequential, the party damaged may recover. Depreciation in the value of the land fronting on a highway caused by obstructing access to it, is a proper element of damage. Ch. & W. Ind. R. R. v. Ayres, 106 111. 511. 905. Where the usual outlet of water is obstructed so as to overflow the plaintiff's lands, he may recover for the loss of or injury to the crop of hay, &c., or the expense of securing them, in addition to the loss by the depreciation of the land. C., R. I. & P. R. R. v. Casey, 90 111. 514. The depreciation in the value of the land caused solely by the structure, may be considered as the measure of damages as to the real estate injured. Ib. 906. SAME instruction too broad. In an action for obstructing water, so as to overflow the plaintiff's land, if the court instructs the jury that the depreciation in the value of the land may be considered, it will be error to further instruct that they may consider the inconven- ience and damage in separating the farm, the damage caused to the land overflowed and to that not overflowed, and the expense of mak- ing roads and bridges, as these are included in the depreciation to the land. C., R. I. & P. R. R. v. Carey, 90 111. 514. 907. ELEMENTS evidence. In an action by a lot-owner against a railway company to recover damages to his lot caused by the construc- tion and operation of a railroad along a public street in front of the lot, it is error to allow the plaintiff to prove the difference in value of the lot and its rental value with or without the road, as such difference in part may be the result of inconveniences for which the law affords no remedy. C., B. & Q. R. R. v.McGinnis, 79 111. 269. 908. EXCAVATION IN STREET evidence as to depreciation in value. If a railway company, in constructing its track along a public street, makes a deep excavation therein in front of the plaintiff's lots and business house, he will be entitled to recover as damages what- ever diminution in value his real estate may undergo; and to show this, it is proper to prove the market value of the property before and since the injury, leaving out of view any inflated value arising from any cause. Proof of the rental value, before and since the construc- tion of the road, will furnish some criterion by which to determine the extent of the injury. St. L., V. & T. H. R. R. v. Capps, 67 111. 607. 909 . N ON- ACTIONABLE INCONVENIENCES. The difficulty of cross- ing a railroad track in a public street, the detention of trains, the frightening of horses, the danger to persons crossing the track, and the like, are inconveniences which property owners on the street have to suffer, and for which they cannot recover in a suit for damages. Stone v. F. P. & N. W. R. R., 68 111. 394. 910. BENEFITS. In estimating the damages done to property by the appropriation of a public street adjacent thereto, to public use 106 RAILROADS, WAEEHOUSES, other than as a street, where no part of the private property is taken, the effect on the whole property should be considered and not merely a part of it. If one part of the same property is damaged, and another part specially benefited, so that the value of the whole is not dimin- ished, then there is no damage done; but any general benefit common to all other property affected by the work should not be considered in determining wnether the property is benefited as much as injured. Shawneetown v. Mason, 82 111. 337. MEASURE. LIABILITY UNDER ORDINANCE FOR RAILROAD IN STREET. 911. INJURY TO ADJACENT PROPERTY AND BUSINESS. Where a railway company constructs its track along a public street under an ordinance requiring it to pay all damages thereby occasioned, and in so doing, makes a deep excavation in front of a person's lots and place of business, which diminishes the value of his lots and injures his business, Dy making his place difficult of access and dangerous for teams to approach, the company, by acting under such ordinance, will become liable to pay the lot-owner all damages caused to his property, and also to his business, tit. L., V. & T. H. R. R. v. Capps, 67 111. 607. 912. INJURY TO BUSINESS. Where a party's place of business is so seriously affected by the construction of a railroad in the street in front of the same, as to make it necessary to remove to another place, he will be entitled to damages for interruption to his business during such time as would have been necessarily employed in accommodating himself to another place of business equally eligible, and his removal thereto. During such time the damage to his business should be ascer- tained by proof of the probable and" reasonable profits which might have been made, had there been no interruption. The necessary and reasonable expenses of removal is also a proper element of damage. Ib. See same case, 72 111. 188. 913. SAME evidence of decline in business. In a suit by a mer- chant against a railway company to recover damages to his business caused by making deep excavations in the street in front of his place of business, the plaintiff proved the extent of his business in the pre- ceding year and the decrease in the year after. The company then offered to prove the fact of a general decline in the business in which the plaintiff was engaged, which the court refused : Held, error to refuse the evidence. Ib. 914. ORDINANCE extent of damages under. Where a railway company constructs its road in a public street under an ordinance of the town granting the privilege on condition that it shall pay all dam- ages that may accrue to property owners by reason thereof, it will be held liable to such owners for all damages done to them during the progress of the work, as well as for such as are caused by the road when completed. St. L., V. & T. H. R. R. v. Capps, 72 111. 188. 915. INJURY TO BUSINESS evidence. Where a railway company accepts a grant of the right of way over a public street upon condition that it shall pay all damages caused to property owners upon the street, a lot-owner in a suit against the company for damages, may show that his store was situated 011 the corner of the street along which the road ran and another street; that dirt was thrown up at the corner, so that for a time travel was entirely interrupted; that by reason of the occupation of the street, there was but a narrow passage left for travel, and there was not room enough for teams to turn in the street; that teams could not approach the store on account of the running of the cars; that there was no place to hitch teams or unload AND EMINENT DOMAIN. 107 conveniently; and on account of the frequent passage of trains, it was dangerous for teams to be left standing, or to pass along the street in front of the store, as tending to show in what manner the property was injuriously affected. Ib. 916. Where a railway company builds its road along the street of a town under an ordinance granting the privilege upon condition that it shall pay all damages accruing to property holders on such street, by reason of the construction of the road, it will be liable to a lot- owner for the deterioration in the value of his lot in consequence of the laying of the track, and for damages for interruption to his busi- ness during a reasonable time in which to provide another equally eligible place, and remove thereto; and the damage to his business during such time should be ascertained by proof of the probable rea- sonable profits which might have been made. The property owner, if he chooses to remain and submit to the interruption in his business and loss of profits, may nevertheless recover from the company as damages, the necessary cost of avoiding such loss by a removal. Ib. 917. ORDINANCE liability of company under for what injuries, "Where an ordinance of a town authorizing a railway company to build its road on a street provides that the company shall pay all dam- ages that may accrue to property owners on such street by the con- struction of the road, an action will lie on the ordinance against the company in favor of any property owner who is injured by the con- struction of the road, either by depreciation in value of his property or loss of business sustained during the building of the road, and after its completion, tit. L., V. & T. H. R. R. v. Halter, 82 111. 208. 918. In an action against a railway company upon an ordinance of a town permitting it to lay its track on a street, and providing for the payment of damages by the company to property owners, the parties will be governed and their rignts measured by the ordinance without reference to the constitutional provision in regard to com- pensation for property taken or damaged for corporate purposes, or to the common law on the subject as announced m Moses v. P., J?t. W. & Ch. R. R., 21 111. 516, and Murphy v. Chicago, 29 111. 279. St. L., V. & T. H. R. R. v. Nailer, 82 111. 2u8. 919. MEASURE OF DAMAGE. In a suit under a town ordinance providing for the payment of damages to property owners occasioned by constructing a railroad track in the street, tne difference in the value of property caused by the construction of the road, is the meas- ure of damages, and this may be shown by a comparison of the sales of other property similarly situated before and after the construction of the road, or by the difference in its rental value, if held for the pur- pose of renting; but if not held for that purpose, then the difference in rental value would not be a criterion. Ib. 920. In such case, if there have been no sales of property of a character similar to that claimed to be injured, either before or after the construction of the road, from which tiie depreciation in value can be ascertained, it is proper to resort to evidence of the noise and jar- ring of the earth, and smoke and dust caused by passing trains, render- ing the house, if a dwelling, uncomfortable, and injuring the furniture and walls of the house, as an aid to the jury in estimating the depre- ciation in value of the property. Ib. 921. PAST, PRESENT AND FUTURE DAMAGES. In an action brought for a deterioration in the value of real estate occasioned by a nuisance of a permanent character, or which is treated as permanent by the parties, all damages for the past and the future inj ury of the property may be recovered, and one recovery in such a case is a barto all future actions for the same cause. Ch. & E. III. R. R. v. Loeb, 118 111. 203. 108 EAILEOADS, WAEEHOUSES, 922. Where private lots in a city are physically damaged or injured ia value by the construction and operation of a railroad in close proximity thereto along a public street, the right of action, if any exists, is vested in the owner of the lots immediately upon the construction of the road, to recover for all damages, past, present and future, and a subsequent grantee of the lots cannot maintain an action at all for the proper use and operation of the road after his purchase. Ib. 923. The just compensation to be made for damage to land is intended as an indemnity, not for successive constantly accruing damages as they may afterwards be suffered, but for all the land- owner may suffer from all the future consequences of the careful and prudent operation of the proposed public improvement. Ib. 924. JUDGMENT ON REPORT effect of order and pay- ment. 10. The judge or court shall, upon such report, proceed to adjudge and make such order as to right and jus- tice shall pertain, ordering that petitioner enter upon such property, and the use of the same, upon payment of full com- pensation, as ascertained as aforesaid: and such order, with evidence of payment, shall constitute complete justification of the taking of such property. [E. S. 1887, p. 647, 10; S. & 0., p. 1050, 10; Cothran, p. 649, 10.] 925. EXECUTION. Unless the statute so provides, it is error to award an execution for the damages assessed or the costs of the pro- ceeding. Ch. & Mil. R. R. v. Bull, 20 111. 218. 926. FORM OF, UNDER ACT OF 1852. The form of the judgment in a proceeding to condemn land under the act of 1852 should conform to that prescribed by 15 of the act. Wilson v. R., R. I. & St. L. R. R., 59 111. 273. 927. CONDITIONAL execution. No execution can issue upon a judgment of condemnation for the damages awarded. The judgment should not be absolute for the payment of the sum found. The only mode to coerce payment is by mandamus. Cook v. South Park Comrs., 61 111. 115. 928. EXECUTION. It is error, in a proceeding under the act of 1852, to award execution against the company for the damages assessed. St. L. & S. E. Ry. v. Lux, 63 111. 523. 929. The judgment must be an order authorizing the petitioner to enter upon the land and use the same upon payment of the compen- sation found by the jury, but there should be no award of execution therefor. P., P. & J. R. R. v. P. & S. R. R., 66 111. 174. 930. Where the petitioner has not already entered upon the land, the judgment should be that it enter upon and use the property upon payment of the compensation found. But where it has given the requisite bond and has entered, such an order is unnecessary. R., R. I. & St. L. R. R. v. Coppinger, 66 111. 510. 931. REPORT AND JUDGMENT a part of the record. The report of the damages assessed, and the judgment of the court thereon being a matter ot record, will be taken notice of by the supreme court with- out a bill of exceptions. Ch. Mil. & St. P. Ry. v. Melville, 66 111. 329. 932. EFFECT COLLATERALLY. The judgment cannot be impeached collaterally, and it will be presumed conclusively that the party whose land was taken has received by the judgment and award, not only just compensation for the land taken, but for all such incidental loss, inconvenience and damages as might reasonably be expected to result AND EMINENT DOMAIN. 109 from the construction and use of the way or crossing in a legal and proper manner, and the judgment will afford a complete justification to the party exercising the right so acquired. C. & A . R. R. v. $. & N. W. R. R., 67 111. 142. 933. Final judgment of condemnation and payment of the award, vest in the company exercising the right of eminent domain, the abso- lute right to use the land embraced in the judgment for all legitimate purposes. Ib. 934. AWARD OF EXECUTION. Where the corporation has not taken possession and used the land when the assessment of the com- pensation and damages is had, it is error to render judgment award- ing an execution for its collection; but if the company has taken possession, and is in the occupancy of the land, such a judgment is proper. St. L. & S. E. Ry. v. Teeters, 68 111. 144. 935. PAYMENT that confers the right. It is the payment of the money found by the jury, and not the order of the court, that confers the right of way. Such order, with evidence of payment, constitutes a justification for taking the property. Ib. 936. AWARD OF EXECUTION. It is error for the circuit court, on the trial of an appeal, to award execution on the judgment for the amount of the compensation and damages assessed in a proceeding to condemn land for a right of way. S. & III. S. IS. Ry. v. Turner, 68 111. 187. 937. MUST BE CONDITIONAL. No order or judgment, of binding force, can be entered in a proceeding to condemn, so as to confer a present right to take or damage real estate before payment of compen- sation found. All that can be done, is to enter an order vesting the right to take or damage the propt rty upon payment of such compen- sation. Chicago v. Barbian, 80 111. 482. 938. No VESTED BIGHTS UNDER. The party seeking condemna- tion acquires no vested right until the sum found is paid or deposited, and the property owner has no vested right in the damages found until the same is paid or deposited. But if the property is taken or damaged by the owner's consent before compensation is made, the owner will then have a vested right in the compensation when ascer- tained. Ib. 939. In a proceeding by a city to condemn land for a street, it is error to render an unconditional judgment for the payment of the compensation and damages found by the jury. The order should sim- ply fix the sum to be paid before taking the property, leaving the city free to abandon the improvement, if it so chooses. Bloomington v. Miller, 84 111. 621. 940. COLLATERALLY conclusive, if jurisdiction. Where commis- sioners have been duly appointed according to law to condemn land for a right of way and assess damages, and have jurisdiction of the matters acted on by them, their action will be conclusive in all collat- eral proceedings. Townsend v. C. & A. R. R., 91 111. 545. 941. An order affirming an assessment of damages for property taken for public use is a judgment and a final determination of the disputed facts and law of the case. Until reversed or otherwise im- peached, it is conclusive on the parties as to the questions involved Beveridge v. West Ch. Park Coras., 100 111. 75. 942. COSTS limiting witnesses fees to be taxed. The general cost act applies to proceedings to condemn, and under it the court may, after the conclusion of the evidence, limit the number of the witnesses whose fees are to be taxed against any party, not less than two, as may appear to have been necessary. C., B. & Q. R.R.v. Bowman, 111. . Filed Nov. 11, 1887. 110 KAILROADS, WAREHOUSES, 943. INTEREST ON. Interest is allowable on the sum awarded for land taken by a city to- open or extend a street, if payment is neg- lected or refused for an unreasonable time. Chicago v. Wheeler, 25 111. 478. 944. No interest accrues upon an award before judgment, nor can a party causing or contributing to delay, have interest until the entry of the final judgment. But the judgment upon the award will bear interest. Cook v. South Park Comrs., 61 111. 115. 945. The judgment of the circuit court on an appeal from the assessment of damages under the act of 1852 will draw six per cent, interest, where possession of the property is taken and retained by the applicant for condemnation. III. & St. L. R. R. v. McClintock, 68 111. 296. 946. INTEREST execution. Where the property has not been taken or damaged, the order or judgment on the assessment of the jury will not bear interest, and no execution can be awarded for the collection of the sum assessed. Chicago v. Sarbian, 80 111. 482. 947. INTEREST. Until possession is taken the compensation found should not 'bear interest, and it is error to order that it shall bear interest. South Park Comrs. v. Dunlevy, 91 111. 49. 948. Under proceedings to condemn for public use, the filing of the petition is not a taking of the property, and it would be a trespass to take possession before the damages are ascertained and paid. The owner, having the right to the use of the land until the damages are paid, is not entitled to interest on the value of the land from the com- mencement of the suit to the trial. 76. 949. A judgment for the condemnation of property taken by a city to widen a street, and awarding the amount of the compensation to be paid the owner, will bear interest at six per cent, from the time possession is taken by the public. Chicago v. Palmer, 93 111. 125. 950. It being the duty of the park commissioners to pay for lands condemned by them for a boulevard within a reasonable time after confirmation of the proceedings and the title to the property is settled, they will be held liable to pay interest on the compensation awarded for the property condemned after demand made by the owner and the establishment of his title to the property, although the land is vacant and unoccupied, and possession has not been taken. Severidge v. West Ch. Park Comrs., 100 111. 75. 951 . VESTED RIGHT. The rights of' the land-owner and the party seeking condemnation, being correlative, and the change of title being dependent upon payment of the condemnation, money, it fol- lows that no interest can be collected for failure to pay the condem- nation money, for until payment the land-owner has no vested right therein, and can maintain no action therefor. Beveridge v. W. Ch. Park Comrs., 7 Bradw. 460. 952. INTEREST. Where possession is acquired of land for a park or other public purpose, and payment of the compensation is with- held, it is proper to require the payment of interest thereon from the time possession is taken. Phillips v. South Park Comrs., 111. . Filed Jan. 25, 1887. WHEN CONDEMNATION IS COMPLETE. 953. ACTION FOR CONDEMNATION MONEY. The party seeking condemnation acquires no title in the land until possession is taken and the land appropriated to the use for which it was condemned and payment of the damages, and the land-owner acquires no vested right to the condemnation money until possession is taken by the other, and AND EMINENT DOMAIN. Ill hence can maintain no action therefor before that time. Beveridge v. W. Ch. Park Comrs., 7 Bradw. 460. 954. MANDAMUS to compel payment. Where a street has been laid out or extended and the damages for the land taken assessed, and the report thereof accepted and confirmed, and a warrant issued for the collection of the assessment to pay for the property taken, and such street ordered to be opened, the parties entitled to the damages may by mandamus compel the city to collect and pay over the same. Higgins v. Chicago, 18 111. 276. 955. REMEDY TO COLLECT estopped. In an action of assumpsit against a city to recover the damages awarded to the plaintiff by com- missioners for lots taken for the extension of a street, the city will be estopped from denying the validity of the proceeding. Chicago v. Wheeler, 25 111. 478. 956. SAME-^cose. The owner of land taken by a city for a public street may maintain an action on the case against the city for a breach of duty in neglecting to collect the assessments of benefits out of which to pay him the damages assessed in his favor for the land so taken. He is not confined to the remedy afforded by mandamus. Clayburg v. Chicago, 25 111. 535. 957. RIGHT TO ABANDON PROCEEDING public road. The only way to avoid the payment of the damages assessed for a county road is to vacate the order directing the road to be opened. Sangamon Co. v. Brown, 13 111. 207. 958. SAME park. The park commissioners, in condemning land for park purposes, may abandon the proceeding at any time before taking possession of the land. The assessment of damages and con- firmation by the court does not invest them with the title to the land. Beveridge v. W. Ch. Park Comrs., 1 Bradw. 460. 959. The proceedings may be abandoned at anytime after the damages are assessed, and before payment thereof or its deposit for the owner, where the property has remained unmolested; and the court will not, in such case, compel the payment of the compensation by mandamus. Chicago v. Barbian, 80 111. 482. 960. SAME injunction. Where the condition of the order is not complied with in a reasonable time, by the payment of the damages and taking possession of the property, a court of equity will enjoin any attempt to proceed under it. Ib. 961. SAME street. There is no error in refusing a village permis- sion to discontinue a proceeding to condemn for a street, as this may be done by ordinance at any time after the assessment. Hyde Park v. Dunham, 85 111. 569. 962. PAYMENT NECESSARY TO COMPLETE CONDEMNATION. The damages assessed for right of way, on appeal from an order laying out a public road, must be paid before the road can be constructed. Sangamon Co. v. Brown, 13 111. 207. 963. SAME right to possession. The damages or compensation awarded, with he costs of the condemnation, must be paid before the petitioner can take possession of the land condemned, or acquire any right to it whatever. C. & M. R. R. v. Butt, 20 111. 218. 964. The constitution (1848) does not require that the compensa- tion allowed for land taken for right of way shall precede the entry upon the land. If the compensation is held until called for, and then paid or tendered, the prior entry will not be a trespass. Johnson v. Joliet & Ch. R. R., 23 111. 202. 965. The constitution of 1848 does not require that compensation shall be made before the land is taken and used. It is sufficient if 112 BAILROADS, WAREHOUSES, provision is made for its payment. Shute v. C. & M. R. R., 26 111. 436. 966. SAME park. Until the damages assessed for land con- demned for a public park are paid, it cannot be occupied for the pur- poses intended. People v. Williams, 51 111. 63. 067. A judgment of condemnation of land for a public park, with- out payment of the damages assessed, confers no right to the land condemned. It is only by payment of the damages that the owner can be deprived of the title, or the use or possession of his land. Cook v. South Park Comrs., 61 111* 115. 968. Under the "act to incorporate the Mississippi Kailroad com- pany," approved Feb. 15, 1865, the entry of judgment on the report of the commissioners, and payment thereof, was essential to the passing of the title. P. & R. I. Ry. v. Rice, 75 111. 329. 969. Until the compensation awarded is paid the petitioner has no right to enter upon the premises. Schreib&r v. C. & E. R. R., 115 111. 340; 8t. L. & 8. E. Ry. v. Teeters, 68 111. 144; Ch. & Iowa R. R. v. Hopkins, 90 111. 316. 980. A condemnation of land for a right of way upon due proceed- ings, will not deprive the owner of his title, or right of possession, or of alienation, without payment of the compensation and damages awarded. Ch. & lowaR. R. v. Hopkins, 90 111. 316. 981. No fixed rights acquired by condemnation before payment of the sum awarded. Until this is done the petitioner may abandon the location and the owner may use the property. Schreiber v. Ch. & E. R. R., 115 111. 340. 982. INJUNCTION of use 'before payment. The jurisdiction of a court of equity to afford preventive relief by injunction to restrain commissioners of highways from appropriating private lands for a highway, is undoubted. Willett v. Woodhams, 1 Bradw. 411. 983. If the compensation awarded is not paid, the company con- demning may be restrained by injunction from using the right of way until it is paid. But non-payment will not render the condemnation invalid. Shute v. Ch. & Mil. R. R., 26 111. 436. 984. Injunction to prevent the opening of part of a highway where the entire road cannot be opened. Green v. Green, 34 111. 320. 985. An attempt to open a road over improved land before the land owner's damages are adjusted and paid, may be restrained by a court of equity. Corns. Highways v. Durham, 43 111. 86. 986. WHEN COMPENSATION TO BE PAID possession. The eminent domain act requires the payment of the compensation for land taken for a public use, or a tender or a deposit of the same with the county treasurer, before possession shall be taken. This is a condition prece- dent to the taking of possession. Phillips v. South Park Coins., HI. . Filed Jan. 25, 1887. OF THE RIGHT TO POSSESSION. 987. EJECTMENT BY OWNER demand. Where a railroad com- pany had land condemned for right of way, but failed to pay the dam- ages assessed, and the owner sued and recovered judgment for the damages upon which an execution was issued and returned no prop- erty found, the company having entered into possession by the owner's consent and built its road, and having leased the same to another com- pany, against whom the owner brought ejectment: Held, that the action would not lie without notice to quit. C. B. & Q. R. R. v. Knox College, 34 111. 195. AND EMINENT DOMAIN. 113 988. Where possession is lawfully taken of property condemned for a right of way, the mere reversal of the judgment of condemnation without taking any further steps, will not render the possession unlaw- ful and authorize a recovery by the land-owner in ejectment. St. L., A. & T. H. R. R. v. Karnes, 101 111. 402. 989. Where the condemnation is void for want of proper notice, and the company has notice that the owner claims the land and informs him that he will have to sue if he gets anything, this will obviate the necessity of any formal demand before bringing ejectment by the owner. C. & A. R. R. v. Smith, 78 111. 96. 990. Ejectment will lie against a railway corporation by the owner for land used by it for the purposes of its road where the land has not been legally condemned. 8mith v. Ch., A. & St. L. R. R., 67 111. 191. 991. Under the act of 1852, where an appeal is taken to the circuit court, to entitle the petitioner to possession pending the appeal, it must give a bond to the defendant to secure the payment of the final award and judgment. If possession is forcibly taken pending the appeal without giving such bond, it will be illegal, and may be recov- ered back in an action of forcible entry and detainer. Mitchell v. III. & St. L. R. R. & Coal Co., 68 111. 286. 992. EFFECT OF GIVING POSSESSION. The general railroad law authorizing the acquisition of lands for right of way, arid giving the right to take possession and use such lands, does not mean that if an owner permits a railroad company to enter pending litigation to ascer- tain the damages, or without litigation, he will lose not only his dam- ages, but also the land. The owner will lose none of his rights by per- mitting the company to take possession without grant or condemna- tion. J. C. R. R. v. Ind. & III. Central Ry., 85 111. 211. 993. LICENSE TO ENTER evidence of. The mere fact that a rail- road company has long been in possession of land occupied as a right of way, in the absence of all other proof, does not raise a presumption that the owner had given a license to enter and construct the road. T., P. & W. Ry. v. Darst, 61 111. 231. 994. SALE OF RIGHT OF WAY possession as evidence of. The mere . fact that a railway company has entered upon land and constructed its road over the same and occupied it about thirteen years, does not raise a presumption that the owner had sold the right of way to the com- pany. Ib. 995. Where a railway corporation has taken possession of land without the owner's consent and without condemnation^ and wrong- fully holds the same, the law affords the owner two remedies an action of ejectment and an action to recover the value of the land. Smith v. Ch., Alton & St. L. R. R., 67 111. 191. 996. MANDAMUS to compel condemnation. After a railway com- pany has obtained the possession of land for its right of way, and is in the use of it, mandamus will not lie to compel it to institute pro- ceedings to condemn the land. Ib. 997. EJECTMENT breach of condition. Where the owner of land gave a railway company a written agreement for a conveyance of a right of way over the same, which contained an irrevocable license to enter and occupy a part thereof as a right of way; held, that the fail- ure of the company to perform conditions subsequent, such as fencing, afforded no grounds for revoking the license under which the com- pany entered and made its road, and hence the owner could not recover possession of the right of way in ejectment for a breach of such con- ditions. Morris v. /., B. & W. Ry., 76 111. 522. 998. GRANT OF RIGHT OF WAY only by deed. Where a railway 9 114 EAILEOADS, WAEEHOUSES, company, in conveying a tract of land, reserved a strip on each side of its track, and another strip crossing the first, for railroad purposes, upon which another company, some sixteen years afterwards, laid the track of its road by permission: Held, that the reservation in the deed passed no title, legal or equitable, to the latter company as to any of the strip not actually occupied by it /. C. R. R. v. Ind. & III. Central Ry., 85 111. 211. 999. POSSESSION extent of. Where a railway company constructs its track over the land of another, and erects buildings thereon without any written evidence of title, and does not inclose the same, its pos session will be limited to the ground actually occupied. Ib. 1000. EIGHT OF WAY by dedication. The statute providing that streets, &c., designated on a town plat, when properly certified, &c., shall operate as a conveyance in fee to the public, does not apply in favor of individuals or private corporations. So, the reservation in a deed of a strip of land for railroad purposes, according to a diagram which shows the name of the railway company, will not operate as a conveyance of the strip to the company, or as a dedication. Ib. 1001. EJECTMENT by subsequent grantee. The purchaser of land over which a railroad is constructed and operated without having acquired the right of way, may, upon receiving a conveyance of the legal title, maintain ejectment against the company for the land so tortiously taken and occupied. Ch. & Iowa R. R. v. Hopkins. 90 111. 316. 1002. TELEGRAPH COMPANY of the rights acquired. A tele- graph company, by the condemnation of land for its use, does not acquire the fee to the land or the right to use it for any other purpose than to erect poles and suspend wires on them, and maintain and repair the same, and use the structure for telegraph purposes. This includes the right at all times to enter upon the strip when necessary to construct or repair the line, doing as little damage as possible, but not the right to cultivate the ground. The only exclusive right of occupancy is the ground occupied by the poles. Lockie v. Mut. Union Tel. Co., 103 111. 401. 1003. TRESPASS against telegraph company. Trespass quare clausum freyit lies against a telegraph company by the owner of land for entering upon a highway over his land and erecting poles thereon without his assent. Board of Trade Tel. Co. v. Barnett, 107 111. 507. 1004. EIGHT TO TAKE POSSESSION. A railway company has no right to the possession of land for its right of way until the damages for the taking of the same have been assessed and paid, and if it takes possession before that is done, without the owner's consent, it is a tres- passer, and the owner may bring ejectment or trespass, or both, and recover his property, and such damages as he may have sustained by the unlawful act. Ch., St. L. & Western It. R. T. Gates, 111. . Filed March 23, 1887. 1005. EFFECT OF JUDGMENT passing title. A judgment of con- demnation of land for the widening of a street under the act of 1887 relating to the city of Chicago, as effectually concludes the former land owner from asserting title to the land taken, as a sale on execution or a recovery in ejectment. Morris v. Chicago, 11 111. 650. 1006. EEVERSION street. Where a deed of land for a street pro- vides that where the same shall cease to be used as a street, or the street shall be abandoned or vacated, the land shall revert to the grantor, or his heirs or assigns, on vacation of the street, the land by virtue of such clause will revert, and also upon general principles, without such reservation. Helm v. Webster, 85 111. 116. 1007. PASSING TITLE. The final judgment of the circuit court AND EMINENT DOMAIN. 115 approving the report of the commissioners appointed under the gen- eral law of 1859, relating to plank roads, etc., passes the title to the land condemned to the corporation. Skinner v. Lake View Avenue Co., 57 111. 151. 1008. DIVESTITURE OF TITLE street. Where condemnation of land is effected for a street, the damages assessed and accepted by the owners, who thereby give their assent to the proceedings, and possession is taken, the title is thereby divested from such owners, notwithstand- ing errors in the proceedings. Rees v. Chicago, 38 111, 322. 1009. The proprietor of land over which a railroad passes, after condemnation, has no right to build a fence on the right of way, or make cattle guards along the road. A. & 8. R. R. v. Baugh, 14 111. 211. 1010. COMPENSATION to whom paidpersons entitled attach- ing creditor. Where a creditor of the land-owner has attached the land and obtained a judgment, payment of the money awarded in a proceeding to condemn, to such creditor, not exceeding his judgment, will be a payment to the party interested, in accordance with the stat- ute. C., B. & Q. R. R. v. Chamberlain, 84 111. 333. 1011. KES ADJUDICATA judgment. An adjudication upon an appeal from an award of commissioners, that the condemnation money belonged to the party appealing, is conclusive upon all the parties to the original proceeding, although they had no notice of the appeal. /&. 1012. NAMING THE PARTIES TO BE PAID subsequent adjudica- tion. In a proceeding to condemn land under the act of 1852, owned by several persons as tenants in common, where there are adverse and conflicting claims by tax titles, attachment and judgment liens, it is sufficient for the commissioners, under 6, to state in their report separately, the compensation to be paid for each lot of land, leaving it for the court to determine in regard to the rights of the respective claimants to the money awarded. Ib. 1013. FORECLOSURE. Where mortgaged property is condemned and appropriated to public use, and the compensation awarded to the owner or mortgagor exceeds the sum due on the mortgage and is not paid, it is not proper on bill to foreclose, to order a sale of the prem- ises. The sum found due should be ordered paid out of the condem- nation money. Colehour v. State Savings Institution, 90 111. 152. 1014. A railway company seeking the condemnation of a part of a lot for the purposes of its road, has no cause to complain of an order of court fixing the compensation to be paid, and directing the money to be paid to the treasurer of the county for the benefit of the owners of the property affected or those interested in it. Such an order does not determine who is entitled to the compensation awarded. Ch. & W. Ind. R. R. v. Prussing, 96 111. 203. 1015. MORTGAGED PROPERTY. Where the property of a mort- gagor is condemned for public use and the compensation to be paid is assessed, the holder of the mortgaged debt will be entitled to be first paid out of it the amount due him, and the mortgagor the balance. South Park Corns, v. Todd, 112 111. 379. 1016. OWNER UNKNOWN OR NON-RESIDENT. If the owner is not known or is a non-resident, the money should be paid into the county treasury for his use. If paid to one not entitled to it, the court will compel its payment again to the rightful claimant. The commission- ers awarding the compensation have no authority to determine to whom the money shall be paid. Ib. 1017. LANDLORD AND TENANT. A lessee is entitled to compensa- tion for his unexpired term before he can be deprived of the use of his property. But if his term expires before the final hearing, he will 116 EAILEOADS, WAREHOUSES, have no interest to be taken, and cannot have compensation for improvements. Schreiber v. Ch. & E. R. R,, 115 111. 340. 1018. After service, a tenant, cannot by taking a new lease, not before secured by contract, acquire any new rights to compensa- tion. Ib. 1019. Under the statute, the compensation awarded, is required to be paid, either to the person entitled to it, or to the county treasurer. It is error to direct its payment into court to await further proceed- ings to determine who is entitled to it. McCormick v. W. Ch. Park Corns., 118 111. 655. 1020. The compensation, for which the public is liable in condemn- ing; land, must go to those who are entitled to the property itself, in proportion to their several interests. Chicago v. Garrity, 1 Bradw. 474. 1021. LANDLORD AND TENANT. As between landlord and tenant, the condemnation of land does not operate as an extinguishment in whole or in part of the lease, but the tenant remains liable to his land- lord for the entire rent. Ib. 1022. APPORTIONMENT. A tenant is entitled to receive from the public full compensation for so much of his leasehold estate as is appropriated to the public use. The landlord's compensation should be diminished by reason of the existence of the lease-hold estate only by such an amount as the evidence shows that the actual rental value of the premises exqeeds the rent reserved. Ib. 1023. The damages awarded the landlord and tenant respectively are the results of independent assessments; and because the aggregate assessment may exceed the entire value of the property taken, the public power seeking the condemnation, has such an interest therein, that it may insist upon a proper apportionment of damages between landlord and tenant. Ib. 1024. RIGHTS UNDER JUDGMENT. 'Until compensation is paid, there is no right of entry, and the company may abandon the location and adopt another. Until the selection by the company becomes binding, the owner may exercise all the rights of ownership not materially interfering with the condemnation proceeding, and so may remove machinery and buildings from the premises. Schrieber v. Ch. &E.R.R., 115111.340. 1025. POSSESSION BEFORE CONDEMNATION trespass. Where a railroad is located and operated over land of an estate without con- demnation or otherwise acquiring the right of way, the taking and retaining of the land is a continuing trespass, and on judicial sale the whole land, including the so-called right of way, passes to the pur- chaser, and he will be entitled to compensation for the land taken and damages for any injury to the part not taken, on a proceeding to con- demn. Ch. & Iowa R. R. v. Hopkins, 90 111. 316. JUDGMENT. 1026. AWARD; CONSTRUED. In a condemnation proceeding, the commissioners, after assessing the value of the estate and the improve- ments thereon, further awarded that if the improvement should be retained by the owner for three months, there was no damage from the interruption of his business, and if he should retain the possession for two months, then the damages to the business were fixed at 1,600, and if he should retain the possession one month, at $3,200: Held, that it rested with the railway company when to take possession, and that if it took possession within three months, it would have to pay the damages named, but that the owner could not force it to take possession at any time he might select, and then recover the damages AND EMINENT DOMAIN. 117 provided by the award to be paid upon his having to give possession at that time, and if the company did not take possession within the three months it was not liable for anv damages. Glennon v. Ch M. & St. P. Ry., 79 111. 501. 1027. ARBITRATION enforcement of award. A submission of all matters in dispute with regard to a right of way claimed by a railway company over a party's land is sufficiently broad to embrace an award as to the building of fences and crossings as well as the payment of a sum of money. No judgment for a sum of money can be rendered on such an award, but it may be enforced under 8 of the statute re- lating to arbitration and award. Kankakee & S. W. R. R. v. Alfred, 8 Bradw, 511. 1028. BINDING FORCE collaterally. The record of a condemnation proceeding where the jurisdiction appears, is competent evidence and cannot be impeached collaterally for errors or irregularities. Q. & Ch. Union R. R. v. Pound, 22 111. 399. 1029. In trespass for removing a fence to open a road, the proceed- ings to establish the road cannot be attacked collaterally for mere errors not going to the jurisdiction, and parol evidence to show the jury adopted an improper basis in the assessment of damages, is inad- missible. Hankins v. Calloway, 88 111. 155. 1030. PRESUMPTION IN FAVOR OF. Where the court acquires jurisdiction under the act of 1852, by the proper notice, and the filing of the petition, its subsequent action in appointing commissioners will be presumed to be correct, and that they had the requisite quali- fications. C.,B.&Q. R. R. v. Chamberlain, 84 111. 333. 1031. COLLATERALLY. The report of the commissioners of the damages assessed, under the act of 1852, became final and conclusive upon the parties in all collateral proceedings without it appearing that notice had been given of the filing of the same with the clerk. It will be presumed notice was given. Ib. 1032. ACQUIESCENCE IN. Where the parties acquiesce in and ratify the award, it will be conclusive in respect to the interest claimed without regard to the giving of a notice. Ib. 1033. FRAUDULENT void injunction. Where a railway com- pany proceeds to condemn for its own use, the road and track of another de facto railroad company, concealing the object and purpose, and giving no notice, and the whole proceeding shows it to be the carrying out of a scheme for the fraudulent and inequitable purpose of getting possession of the latter company's right of way and road, without making compensation, a court of equity will restrain the taking of possession under such fraudulent proceeding. Cin., La+'. & Ch. R. R. v. Danville & 7 in. Ry., 75 111. 113. 1034. COLLATERALLY error on face of proceedings. Where the verdict of a jury, in a proceeding to condemn land for a public road, shows on its face that benefits were allowed against the value of the land taken, it will render the order establishing the road absolutely void. Such defect goes to the jurisdiction of the commissioners. Hys- lop v. Finch, 99 111. 171. 1035. COSTS. Expenses attending an assessment of damages for right of way include costs, and they stand the same as the damages, and must be paid before possession can be taken of the land. Ch. & Mil. R. R. v. Bull, 20 111. 218. 1036. CROSS PETITION new parties by what it may show. 11. Any person not made a party may become such by filing his cross petition, setting forth that he is the owner 118 BAILROADS, WAREHOUSES, or has an interest in property, and which will be taken or damaged by the proposed work; and the rights of such last named petitioner shall thereupon be fully considered and de- termined. [B. S. 1887, p. 647, 11; S. & C., p. 1051, 11; Cothran, p. 649. See notes to 9, anti, 760-765.] 1037. APPEALS when lies and practice on. 12. In all cases, in either the circuit or county court, or before a circuit or county judge, an appeal shall lie to the supreme court. [B. S. 1887, p. 647, 12; S. & C., p. 1051, 12; Cothran, p. 650, 12.] 1038. AS-TO PUBLIC ROAD on question of damages. A person whose land has been taken for a road has the right to be heard upon the question of damages upon an appeal to the supervisors, and it is error to dismiss his appeal, and the mode of appeal is not changed by the fact that the proposed road is upon a couoty line. Deitrick v. Highway Comrs., 6 Bradw. 70. 1039. SAME joinder in by tenants in common. Tenants in com- mon may join in an appeal, but parties having different interests can- not. They must prosecute separate appeals. Sangamon Co. v. Brown. 13 111. 207. 1040. SAME where right exists. No appeal is given to the owner of land from an order of the county court laying out a public road until the court orders the road to be opened, nor can land be appro- priated for a road until such order has been made. Ib. 1041. SAME who has the affirmative. The land-owner on the trial of an appeal, takes the affirmative and must prove the title to the land and show that he will sustain damage by the construction of the road. The county is defendant. Ib. 1042. SAME question involved. If the county court had juris- diction and proceeded regularly, the only question for review is the amount of the damages. The propriety of the road is not involved. Ib. 1043. SAME error in proceeding. The circuit court may inquire into the regularity and validity of the proceedings, and if the county court has proceeded illegally or without lawful authority, the circuit court should reverse the order and leave the county court to proceed anew. Ib. 1044. SAME costs. The county is liable for costs where an appeal is successfully prosecuted, and a material increase in the damages as- sessed is a successful prosecution. Ib. 1045. SAME refusal to lay road. An appeal does not lie from a decision of the county court refusing to open and construct a road. Ib. 1046. As TO PLANK ROAD, &c. The order of approval of the report of the commissioners appointed under the general law of 1859, relating to plank, gravel and macadami/ed roads, is a final judgment from which an appeal lies to this court, notwithstanding the act providing for the condemnation is silent as to an appeal or writ of error. Skin- ner v. Lake View Avenue Co., 57 111. 151. 1047. SAME; -freehold involved. Where, under the statute, the pe- tition was presented to the court, commissioners were appointed who made their report, and the clerk recorded the orders and the court con- firmed the report. Held, that this constituted a condemnation of the land by which the title passed to the corporation, and it relating to a free hold, an appeal laid to the supreme court. 76. AND EMINENT DOMAIN. 119 1048. RIGHT OF WAY law of 1845. Where the charter of a rail- way company provides for the condemnation for right of way under the act of March 3, 1845, an appeal will lie from the assessment of the commissioners. Austin v. Belleville & Illinoistown R. R., 19 111. 310. 1049. SAME right to dismiss proceeding on. On the removal of a proceeding to condemn land for right of way, by appeal or certiorari to the circuit court, the company seeking to condemn has the right to dismiss the proceeding, and it is error to refuse leave to do so. Joliet & Ch. R. R. v. Barrows, 24 111. 562. 1050. SAME by certiorari under statute. Where an appeal is given from an assessment for a right of way, and the land-owner has not had notice of the proceeding in time to take an appeal, he may have a trial de novo by certiorari under the statute. lb. 1051. SAME width of road fixed by report. Upon an appeal from the assessment of the commissioners under the charter of the Peoria & Rock Island Railway company, to the circuit court, the report of the commissioners is the foundation of the appeal, and the width of land therein described, must control. P. & R. I. Ry. v. Bry- ant, 57 111. 473. 1052. COSTS omlaw of 1852. On appeal from the assessment of damages under the act of 1852, since the adoption of the new constitu- tion, the land-owner should not be compelled to pay costs, if the assess- ment is confirmed or not increased. People v. McRoberts, 62 111. 38. 1053. QUESTIONS INVOLVED title to land. The circuit court on appeal from the award of the commissioners can consider only the questions decided and reported by them. The question of title is not involved. P., P.&J.R.R v. Laurie, 63 111. 264. 1054. CONSTITUTIONAL RIGHT. An appeal lies from the judg- ment of the circuit court condemning land for right of way under the act of 1852. This is a constitutional right conferred by that clause of the constitution defining the jurisdiction of the supreme court. St. L. & S. E. Ry. v. Lux, 63 111. 523. 1055. SERVICE OF NOTICE OF. In a proceeding to condemn land under the act of 1852, for the right of way of a railroad, notice of an appeal by the land-owner from the award of the commissioners to the circuit court, served upon the attorney of the railway company, is a nullity. Hartman v. Belleville & O'Fallon R. R., 64 111. 24. 1056. WIDENING STREET. An appeal or writ of error lies to the final judgment of the circuit court in a proceeding to condemn prop- erty by a municipal corporation for the purpose of widening a street. Hyde Park v. Dunham, 85 111. 569. 1057. QUESTIONS INVOLVED IN. An order of the county court made in a proceeding to condemn land for a right of way after the allowance and perfecting of an appeal from the final judgment to the supreme court, authorizing the petitioner to enter on the premises pending the appeal, will not be involved in the appeal. L. S. & M. 8. R. R.y. Ch. & W. Ind. R. R., 100 111. 21. 1058. An ' appeal will lie directly from the county court to the supreme court in a proceeding to condemn land for right of way for a railroad under the eminent domain act. Kankakee & Seneca R. R. v. Straut, 101 111. 653. 1059. 12 of the eminent domain act expressly gives an appeal directly to the supreme court from the judgment of condemnation, and there is nothing in the practice act that takes away this right. P. & P. U. Ry. v. P. & F. Ry., 105 111. 110. 1060. SEPARATE APPEALS. Each separate owner is entitled to a separate appeal. Johnson v. F. & M. R. Ry., 116 111. 521. 120 BAILKOADS, WAREHOUSES, 1061. FINAL ORDER dismissal of cross claim. Where a cross petition filed in a proceeding to condemn under the eminent domain act, which brings before the court and states a claim of ownership or interest not stated in the original petition, is dismissed, the order of dis- missal is final as to the rights claimed under it, and an appeal lies from the order of dismissal. Johnson v. F. & M. R. Ry., 116 111. 521. 1062. SAME disposition of the compensation. After judgment of condemnation awarding the payment of the compensation assessed to a party as the owner of the property, a subsequent order directing the payment of the condemnation money into court to await its further order as to whom to be paid, is such a final order as may be reviewed by appeal or writ of error. McCormick v. W. Ch. Park Comrs., 118 111. 655. 1063. EXECUTOR HEIRS. Where the land-owner dies pending a proceeding to condemn his executor cannot appeal from the judgment, unless he has some interest in the land by the will of the deceased owner. If he has no such interest the heirs alone can appeal. Bower V. Q. & M. R. R., 92 111. 223. 1064. RE-TAXATION OF COSTS. Under a former statute, review of taxation of costs by county court in condemnation case could be ob- tained in circuit court by appeal thereto, and motion for re-taxation. Peoria & B. V. R. R. v. Bryant, 15 111. 438. 1065. 9 of act of 1852, requiring the execution of an appeal bond on taking an appeal from the award to the circuit court, and 12, which permits the land to be entered upon pending the appeal, are repealed by the new constitution. People v. McRoberts, 62 111. 38. 1066. ABANDONMENT OF CLAIM failure to prosecute after re- versal. After reversal of a judgment of condemnation, if the land- owner deems the compensation awarded him insufficient, he should, within two years after the reversal, have the cause remanded and re- docketed, giving the proper notice, and have another trial. If he fails to do so and retains the sum paid him he will be regarded as having abandoned any claim for further compensation. St. L., A. & T. H. R. R. v. Karnes, 101 111. 402. 1067. BOND TO GIVE POSSESSION PENDING APPEAL Con- ditions and approval. 13. In cases in which compensa- tion shall be ascertained as aforesaid, if the party in whose favor the same is ascertained shall appeal such proceeding, 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 com- pensation, conditioned for the payment of such compensation ..as may be finally adjudged in the case, and in case of appeal by petitioner, petitioner shall enter into like bond with ap- proved surety. Said bonds shall be approved by the judge before whom such proceeding shall be had, and executed and filed within such time as shall be fixed by said judge. [ R. S. 1887, p. 647, 13 ; 8. & 0., p. 1052, 13 ; Cothran, p. 650, 13. ] 1068. RIGHT TO POSSESSION pending appeal. Under the act of 1852, when an appeal is taken from the award, if the party seeking the condemnation desires to enter upon and occupy the property pending the appeal, bond must be given to the person whose land is sought, to secure the payment of the judgment that may be rendered. Posses- sion taken forcibly pending an appeal without giving such bond, is AND EMINENT DOMAIN. 121 illegal, and may be recovered back by forcible entry and detainer. Mitchell y.Ill. & St. L. K. R. & Coal Co., 68 111. 286. 1069. COMPENSATION payment to county treasurer, &c. 14. Payment of 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 there- for, or payment may be made to the party entitled, his, her or their conservator or guardian. [E. S. 1887, p. 648, 14; S. & C., p. 1052, 14, Cothran, p. 650, 14. 1070. EECOBD of verdict and judgment. 15. The court or judge shall cause the verdict of the jury and the judgment of the court to be entered upon the records of said court. [R- S. 1887, p. 648, 15; S. & C-, p. 1052, 15; Cothran, p. 650, 15.] 1071. REPEAL. 16. All laws and parts of laws in con- flict with the provisions of this act are hereby repealed: Provided, that this act shall not be construed to repeal any law or part of law upon the same subject passed by this general assembly; but in all such cases this act shall be construed as providing a cumulative remedy. [E. S. 1887, p. 648, 16; S. & 0., p. 1053, 16; Cothran, p. 650, 16.] BENEVOLENT INSTITUTIONS. An act for the further protection of the state institutions. Approved and in'force March 9, 1867. 1072. LANDS OF STATE INSTITUTIONS NOT TAKEN. 1. Be it enacted by the People of the State of Illinois, repre- sented in the general assembly, That no part of any land heretofore or hereafter conveyed to the state of Illinois, for the use of any benevolent institutions of the state (or to any such institutions), shall be entered upon, appropriated or used by any railroad or other company for railroad or other purposes, without the previous consent of the general assembly ; and no court or other tribunal shall have or enter- tain jurisdiction of any proceeding instituted or to be insti- tuted for the purpose of appropriating any such land for any of the purposes aforesaid, without such previous consent. [Laws 1867, p. 165; E. S. 1887, p. 648, 17; S. & C., p. 1053, 17; Cothran, p. 650, 17. 122 EAILROADS, WABEHOUSES, CHAPTEE 82. LIENS UPON RAILROADS, An act to protect contractors, sub-contractors and laborers in their claims against railroad companies, or corporations, contractors or sub-contractors. Approved April 3, 1872. In force July 1, 1872. 1073. LIEN ON PROPERTY for material, supplies, labor, &c. 1. Be it enacted by the people of the state of Illinois, represented in the general assembly, That all persons who may have furnished, or who shall hereafter furnish to any railroad corporation now existing, or hereafter to be organ- ized under the laws of this state, any fuel, ties, material, supplies, or any other article or thing necessary for the con- struction, maintenance, operation or repair of such roads, by contract with said corporation, or who shall have done and performed, or shall hereafter do and perform any work or labor for such construction, maintenance, operation or repair by like contract, shall be entitled to be paid for the same as part of the current expenses of said road; and in order to secure the same, shall have a lien upon all the property, real, personal and mixed, of said railroad corporation as against such railroad, and as against all mortgages or other liens which shall accrue after the commencement of the delivery of said articles, or the commencement of said work or labor: Provided, suit shall be commenced within six months after such contractor or laborer shall have completed his contract with said railroad corporation, or after such labor shall have been performed or material furnished. [Laws 1871-2, p. 279 : E. S. 1887, p. 852, 55; S. & C., p. 1533, 52; Cothran, p. 936, 51.] 1074. LIEN /or what it is given-^not money loaned. This lien is given only for materials used, supplies furnished and for labor per- formed, in constructing, repairing, operating or maintaining the road. The loan of money or the payment of its creditors, is not embraced in the statute giving the lien. C. & V. R. R. v. Fackney, 78 111. 116. 1075. A party, who at the request of a railway company, takes up its certificates of indebtedness given to its laborers and others for the boarding of hands, is not entitled to any lien. Ib. 1076. ASSIGNMENT. The lien of a laborer upon the road for the sum due him is not assignable at law. The lien is enforceable only in equity. 76. 1077. UNDER ACT OF 1861. Under the act of 1861, no one is enti- tled to a lien, unless his contract was directly with the railroad com- pany, and suit is brought within three months after the action accrues. Arbuckle v. III. Midland Ry., 81 111. 429. 1078. ACT OF 1872. This act relates only to labor and materials furnished after its passage, and gives no lien for labor, &c., furnished before its passage. Ib. 1079. Lien of material-man, who begins proceedings to enforce his lien within six months after last delivery of materials, is superior AND EMINENT DOMAIN. 123 to lien of mortgage made after date of such last delivery and before bringing suit to enforce lien. C. & A. R. R. v. Union Rolling Mill Co., 109 U. S. 702. 1080. Statutory lien held not waive^ by special contract, that the contractor shall have a lien on the rails till payment ; nor to give credit beyond the time within which the statutory lien shall be en- forced, when the purchaser fails to perform the conditions upon which that credit was agreed to be given. J6. 1081. SUB-CONTRACTOE LABORER LIEN. 2. Every person who shall hereafter, as sub-contractor, material-man, or laborer, furnish to any contractor with any such railroad corporation, any fuel, ties, materials, supplies, or any other article or thing, or who shall do and perform any work or labor for such contractor in conformity with any terms of any contract, express or implied, which such contractor may have made with any such railroad corporation, shall have a lien upon all the property, real, personal and mixed, of said rail- road corporation: 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 to be paid by such corporation to the origi- nal contractor: And, provided, further, that no such lien shall take priority over any existing lien. [R. 8- 1887, p. 852, 56; S. & C., p. 1533, 53; Cothran, p. 936, 52.] 1082. LIEN DOES NOT EXTEND BEYOND SUB-CONTRACTOR. The statute giving liens on railroads does not extend beyond sub-contrac- tors. One furnishing materials to a sub-contractor has no lien against the railroad company or its property. Cairo & St. L. R. R. v. Watson, 85 111. 531. 1083. PETITION must show the necessary steps taken. In a pro- ceeding by a sub-contractor to obtain a lien against a railway company for work and materials furnished according to an agreement with the original contractor, it must appear that all the steps required by the statute have been taken. Cairo & St. Louis R. R. v. Cauble, 4 Bradw. 133. 1084. RELEASE OF, BY CONTRACTOR. A release of all claims to a lieu by the contractor to the owner, is a waiver of his right to a lien, and the sub-contractors taking their contracts subject to the fulfill- ment of the original contract, are equally bound, and not entitled to a lien. Whitcomb v. Eustace, 6 Bradw. 574. 1085. OF LABORER relation of sub-contractor to general con- tractor. The work in a general contractor's contract was required to be performed in such manner as not to relieve him from the immediate charge and responsibility of the work, and were such that the company might forfeit the same for the neglect to put on a sufficient force to complete the work in the time stipulated, or to require him to make up balances due to the laborers or persons furnishing mater- ials or supplies monthly. Held, that the relations of the sub-contractor to the general contractor were such that the work done and materials, furnished under sub-contracts could be regarded as materials furnished or labor done under his contract, so as to enable those furnishing the same to enforce a lien against the road. Solomon v. Nicholson, 113 111. 351. 124 BAILROADS, WAREHOUSES, 1086, Where a general contractor for building a road is held liable to the company to protect it against liens of laborers and material- men, in a contract sub-letting a part of the work, reserved the option to retain in his own hands the amount of estimates, or such part thereof as he might deem necessary, and pay the laborers and other creditors of the sub-contractor, and charge the amount thereof as so much money paid to him, the general contractor may keep back esti- mates due the sub-contractor, and pay it out on debts incurred by him in attempting to perform his sub-contract; and in so doing the general contractor cannot be charged with meddling in his affairs, and such general contractor may make such payment through the sub- contractor as his agent, or by any other agent. 76. 1087. NOTICE OF LIEN copy of contract, when to be served. 3. The person performing such labor, or furnish- ing such material, shall cause a notice, in writing, to be served on the president or secretary of such railroad corpo- ration, substantially as follows, viz: To president, (or secretary, as the case may be) of the : You are hereby notified that I am (or have been) employed by aa a laborer (or have furnished sup- plies, as the case may 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 secure my pay. If there shall be a contract in writing between the original contractor and sub-contractor, material-man or laborer, a copy of such contract, if the same can be obtained, shall be served with such notice and attached thereto, which notice shall be served at any time within twenty days after the com- pletion of such sub-contract, or such labor : Provided, that no lien shall attach in favor of any person performing such labor or furnishing material until such notice shall have been served as above, or filed for record as hereinafter provided. [K. S. 1887, p. 852, 57; S. & C., p. 1534, 54; Cothran, p. 937, 53.J 1088. NOTICE TO COMPANY ESSENTIAL sufficiency of petition as to notice. A sub-contractor is not entitled to a lien, unless he com- plies with the statute in giving notice to the company. A petition showing the filing of a notice with the circuit clerk, without averring that the president and secretary of the company did not reside in the county, or could not be found in the county, is fatally defective as failing to show a right to the lien. Cairo & St. Louis R. R. v. Cauble, 85 111. 555. 1089. SAME copy of contract. Copy of sub-contractor's contract must accompany the notice, but a copy of the contract between the original contractor and the company need not be attached thereto. Cairo & St. Louis R. R. v. Cauble, 4 Bradw. 133. 1090. WHEN NOTICE TO BE FILED WITH CLERK RECORD OF SAME mailing copy to president, &c. 4. If neither the president or the secretary of such railroad corporation shall reside or can be found in the county in which the sub- contract was made, or labor performed, the laborer, or person furnishing labor or material, shall file said notice in the office of the clerk of the circuit court; and the clerk of the circuit court shall file and keep a record of said notice, and cause a AND EMINENT DOMAIN. 125 copy of the same to be mailed to the president or secretary of said company, for which he shall receive the sum of twenty- five cents, and said clerk shall keep a list of the names of the persons so claiming lien, and the names of the corporation against which such liens are claimed. [E. S. 1887, p. 853, 58; S. & C., p. 1534, 55; Cothran, p. 937, 54. J 1091. ACTION FOR SUM DUE JOINDER OF PARTIES; filing transcript of justice in circuit court. 5. If the money due the person having given notice as aforesaid, shall not be paid within ten days after the money shall become due and paya- ble, then such person may commence suit therefor, in any court having jurisdiction of the amount claimed to be due, against the corporation with which the original contract was made; or he may commence suit, as aforesaid, against such railroad corporation and original contractor jointly, and exe- cution to issue as in other cases. If execution, issued on judgment obtained before a justice of the peace, shall be re- turned 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 judgments obtained in the circuit court, and execution issued thereon as in other cases. [ E. S. 1887, p. 853, 59; S. & C., p. 1534, 56; Coth- ran, p. 937, 55.J 1092. ATTORNEY'S FEE to be taxed as costs. 6. Whenever any suit, so brought, shall be determined in favor of the plaintiff, the court shall allow, if before a justice, $5, if in a court of record, $20, attorney's fees to be taxed as costs, [E. S. 1887, p. 853, 60; S. & C., p. 1535; 57; Coth- ran, p. 938, 56 ] 1093. FAILURE OF ORIGINAL CONTRACTOR TO COMPLETE CONTRACT; PETITION notice and decree. 7. Should the original contractor in any case fail to complete his contract, any person entitled to a lien, as aforesaid, may file his peti- tion 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, [and] the fact that the contractor has failed to complete his contract. 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 same 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 claimants, or either of them, establish their claims, to enter a decree against said corpor- 126 KAILEOADS, WAREHOUSES, ation aiid original contractor, for the amount to which the persons so establishing their claims are respectively entitled, and such decree shall have the same force and effect as decrees in other cases. [E. S. 1887, p. 853, 61; S. & C., p. 1535, 58; Cothran, p. 938, 57.] 1094. LIMITATION suit in three months. 8. The lien hereby created shall continue for three months from the time of the performance of the sub-contract, or doing of the work or furnishing the material as aforesaid, except when suit shall be commenced by petition as aforesaid, and in such cases all liens shall be barred by decree entered in such cause. [E. S. 1887, p. 853, 62; S. & C., p. 1535, 59; Coth- ran, p. 938, 58.] 1095. TIME OF FILING PETITION. The statute provides that the lien shall continue for three months from the time of the performance of the work or furnishing the material; and suit to enforce such lien must be begun within the time limited. C. & St. L. R. R., v. Cauble, 4 Bradw. 133. 1096. DECREE. Should be against the railroad and the original contractor, and the lien should only be enforced and the property of the company sold in default of payment, within a clay to be fixed by the court. Ib. % 9, repealed. See R. S. chap. 131, 5, and therefore omitted. CHAPTEE 110. PRACTICE. 1097. ACTION AGAINST RAILWAY COMPANY in what county brought. | 2. ***** Actions against a railroad or bridge company, may be brought in the county where its principal office is located, or in the county where the cause of action accrued or in any county into or through which its road or bridge may run. [Laws of 1877, p. 146; Laws of 1871-2, p. 338, 2; E. S; 1887, p. 970, 2; S. & C., p. 1773, 2; Cothran, p. 1090, 2. See Laws 1861, p. 180, L] 1098. See Bristol v. Ch,. & Aurora R. R., 15 111. 436; Peoria Ins. Co. v. Warner, 28 111. 429; III. Cen. R. R. v. Swearingen, 33 111. 289; Mineral Point R. R. v. Keep, 22 111. 9. 1099. SERVICE ON CORPORATION return of publication. 4. An incorporated company may be served with process by leaving a copy thereof with its president, if he can be found in the county, in which the suit is brought, if he shall not be found in the county, then by leaving a copy of the pro- cess with any clerk, secretary, superintendent, general agent, cashier, principal, director, engineer, conductor, station agent or any agent of said company found in the county, * and in case the proper officer shall make return upon such process AND EMINENT DOMAIN. 127 that he cannot in his county find any clerk, secretary, super- intendent, general agent, cashier, principal, director, engineer, conductor, station agent or other agent of said company, then such company may be notified by publication and mail in like manner and with like effect, as is provided in sections twelve and thirteen of an act entitled, "An act to regulate the prac- tice in courts of chancery," approved March 15, 1872. [B. S. 1887, p. 970, 5, as amended by Laws of 1877, p. 146, which added the portion after asterisk * ; S. & C., p. 1777, 5; Cothran, p. 1091, 5. For service from justice of the peace, see K. S. 1887, p. 822, 21; S. & C., p. 1440, 21; Cothran, p. 888, 21.] 1100. SHOWING PARTY SERVED is PRESIDENT amending. On bill to foreclose mortgage, the summons against a bank was returned served by delivering a copy to F. M. The sheriff was allowed to amend his return out of court by adding that F. M. was president of the bank. Held, that the amendment was properly allowed. Montgomery v. Brown, 2 Gilm. 581. 1101. AN AGENT of foreign railway company. If railroad com- panies having their officers and offices, do business, and have agents and property in this state, service of process may be made upon such agents in this state in the same manner as upon agents of local cor- porations. Mineral Point R. R. v. Keep, 22 111. 9. 1102. AGENCY MAY BE DENIED. If the fact of the agency is de- nied, the return of the officer as to that, is not conclusive. This should be put in issue by plea in abatement. Ib. 1103. WHAT KIND OF AGENT. The service of process iipon any agent other than the law agent of a corporation, is sufficient, if properly made and returned. Ch. & R. I. R. R. v. Fell, 22 111. 333. 1104. ON PRESIDENT. Where a corporation is sued, the service should be on its president, if he resides iu the county in which the suit is brought. III. & Miss. Tel. Co. v. Kennedy, 24 111. 319. 1105. RETURN. The return must be positive as to the service on the president, and the sheriff must take the responsibility of determ- ining the fact. To serve the writ on A. B.,as president, is not in com- pliance with the statute. 2 b. 1106. WHEN ON AGENT. Process may be served upon an agent of a corporation in any county, provided the president of the company does not reside in the county where the process is issued. Peoria Ins. Co.\. Warner, 28111.429. 1107. A court has jurisdiction over a corporation of this state by service upon an agent, although its principal place of business may be in a different county from that where the agent was served. 76. 1108. ON COUNTY. In suits against a county the process must be served upon the clerk of the county court, and the service must be at his otlice. Kane Co. v. Young, 31 111. 194. 1109. OUT OF COUNTY. Where the action was brought in the plaintiff 's county where the cause of action accrued, against a corpo- ration of the state, having its principal office in another county, and service of process was made upon the president in such foreign county: Held, that the service was insufficient to give jurisdiction. Steplicn- son Ins. Co. v. Dunn, 45 111. 211; Ins. Co. v. Holzgrafe, 46 III. 422. 1110. In such case the process should be sued out to the county of the plaintiff 's residence, and if the president does not reside, or can- 128 KAILEOADS, WAREHOUSES, not be found therein, it may be served upon any other agent of the company found in the county, and a return of sucli facts will give the court jurisdiction. Ib. 1112. ON AGENT. In order that a return of service on an agent may be held good, it must show that the president of the company did not reside in, or was absent from the county. St. L., A. cfe T. H. R. R. v. Dorsey, 47 111. 288. 1113. MUNICIPAL COKPOKATIONS. In an action against a munici- pal corporation, service upon the mayor and city clerk was held suffi- cient. The general statute has no application to such corporations. People v. Cairo, 50 111. 154. 1114. ABSENCE OF PRESIDENT. A return of service upon the cash- ier of an incorporated company showed, " the president not found in my county, he being a non-resident." Held, sufficient. Reed v. Tyler, 56 111. 288. 1115. JUSTICES' SUMMONS. A justice's garnishee summons was returned, " served the within by reading to the within named company therein Jan. 15, 1870." Held, that the service was a nullity and gave the court no jurisdiction. Grand Tower M. & M. & Transp. Co. v. Schirmer, 64 111. 106. 1116. The act of 1853 requires the service of process upon an in- corporated company to be made on its president, if he is a resident of the county, and if he is absent from the county, or does not reside therein, that service shall be made by leaving a copy with any one of the several officers therein named. The service must be by copy, and the return should state the name of the person so served. Ib. 1117. ON AGENT. Where the president of an insurance company does not reside in the county where suit is brought against the com- pany, the statute authorizes service to be made upon an agent of the company resident in the county. Sills v. Stanton, 6U 111. 51. 1118. BY COPY ONLY. Service of process on a railroad company under the practice act in force July 1, 1872, can only be by leaving a copy with the proper person, and cannot be by reading the same. C. & V. R. R. v. Joiner, 72 111. 520. 1119. ON AGENT. Where tne re turn of the officer states that he read the process to a station agent, (naming him) of the defendant, the president and secretary not being residents of the county, it is defec- tive, both, because it shows an attempted service by reading instead of by copy, and because it does not show that the president could not be found in the county. The fact that he was not a resident of the county does not exclude the idea that he might have been found therein at the time of service. Ib. 1120. EAILW AY COMPANY. The return on a summons was: "Served the within named railroad company by reading the same and deliver- ing a copy thereof to C. D., cashier of said railroad company this, &c., the president of said company could not be found in my county this," &c.: Held, that the last date was evidently the date of the return of the writ and that the return shows that on the first named day. when the writ, was served, the president could not be found, and that the service ' and return was in strict conformity to the statute. Ch. & Pac. R. R. v. K. PASSENGERS on what trains. A railway company has the right to devote a portion of its trains exclusively to the carrying of freight, and to entirely exclude passengers from the same. It is not required to carry passengers on its freight trains, or freight on its passenger trains. C. & A. R. R. v. Randolph, 53 111. 510. 1157#. Where a passenger purchases a ticket, he only acquires the right to be carried according to the custom of the road. He has a right to go to the place for which his ticket calls, on any train that usually carries passengers to that place. Ib. AND EMINENT DOMAIN. 137 1157r. TRAINS NOT STOPPING AT ALL STATIONS. Railway com- panies furnishing reasonable means for carrying passengers to all their stations, have the right to run trains that only stop at designated, or the principal stations on their road, and it is the duty of a pas- senger to learn before getting on a train whether it will stop'at all stations, or the principal ones. Ib. 1157s. KULES AND REGULATIONS in respect to passengers. Whatever rules tend to the comfort, order and safety of the passen- gers on a railroad, the company is authorized to make and enforce. But such rules must always be reasonable and uniform in respect to persons. They must not discriminate on account of color. Ch. & N.W. Ry. v. Williams, 55 111. 185. 1157. SAME ladies' car. A rule setting apart a car for the exclusive use of ladies, and gentlemen with ladies, is a reasonable one and may be enforced. Ch. & N. W. Ry. v. Williams, 55 111. 185; Bass v. Ch. & N. W. Ry., 36 Wis. 450. 115 lu. SAME colored passengers. Under some circumstances it might not be an unreasonable rule to require colored persons to occupy separate seats in a car furnished by the company, equally as com- fortable and safe as those furnished for other passengers. But in the absence of any reasonable rule on the subject, the company cannot lawfully, from caprice, wantonness or prejudice, exclude a colored woman from the ladies' car, merely on account of her color. Ch. & N. W. Ry. v. Williams, 55 111. 185. 1157?\ SAME as to passengers. A railway company has the right to require of its passengers the observance of all reasonable rules, cal- culated to insure comfort, convenience, good order and behavior, and to secure the safety of its trains and the proper conduct of its business. /. C. R. R. v. Whittemore, 43 111. 420. 1157w;. SAME surrender of ticket. A rule requiring passengers to surrender their tickets to the conductor when called for, is a reason- able one and may be enforced. Ib. 1157*-. SAME reasonableness of. The reasonableness of a rule adopted by a company for the government of its business, is purely a question of law. /. C. R. R. v. Whittemore, 43 111. 420, 423. 1157?/. SAME as to passengers on freight trains. It is not an unreasonable rule to require that all persons desiring to ride on freight trains, shall procure tickets sold expressly for such trains. /. C. R. R. v. Nelson, 59 111. 110. 1158. A railway company has the clear right to make a rule that no one shall be carried as a passenger on its freight trains. But if it is accustomed to carry passengers on such trains, it will not be justi- fied in refusing to carry a passenger, or in putting him off. /. C. R. R. v. Johnson, 67 111. 312. 1158a. It may require that passengers procure tickets before riding on freight trains, and conductors may expel from the cars, at regular stations, such as neglect to comply with the regulation. T., P. & W. Ry. v. Patterson, 63 111. 304. 11586. SAME ladies' waiting room at depot. Where separate waiting rooms are provided at a depot for ladies and gentlemen, a regulation that no gentleman without a lady shall be admitted in the ladies' room, is not only reasonable, but necessary to enable the com- pany to discharge its duty to protect females at the depot from vio- lence and insult. T., W. & W. Ry. v. Williams, 11 111. 354. 1158c. RULES AND REGULATIONS family ticket. A family ticket will authorize a son residing with the holder as a member of the family to ride upon the road, although he may be over twenty-one 138 EAILROADS, WAREHOUSES, years .of age. But if the purchaser was informed when he bought the ticket that a son over that age would not be allowed to ride" on it, such regulation of the company would be binding on the holder of the ticket, or any person attempting to ride on it. Ch. & N. W. Ry. v. Chisholm, Jr., 79 111. 584. 1158cZ. SAME evidence of. The published schedule T of regula- tions respecting family tickets are not evidence, unless notice thereof is brought home to the party to be affected. Ib. 1158e. SAME passengers on freight train. The law imposes no obligation on railway companies to carry passengers on freight trains, nor freight on passenger trains. It only requires them to carry both, leaving them to regulate the manner in which it shall be done. Arnold v. /. C. R. R., 83 111. 273. 1158/. SAME As to servants and passengers. A railway corpo- ration has the right to make reasonable rules for the conduct of its employes and also for the conduct of its passengers. C., B. & Q. R. R. v. McLallen, 84 111. 109. 1158#. SAME reasonableness. Whether a rule be reasonable or unreasonable, and therefore ultra vives, is a question of law for the court; but whether such rules are adequate for the safety of others, and the management of the train, is a question of fact for the jury. C., B. & Q. R. R. v. McLallen, 84 111. 109. 1158ft. The reasonableness of regulations of a railway company affecting third persons, is a mixed question of law and fact. Bass v. Ch. & N. W. Ry., 36 Wis. 450. 11581 SAME witness may not construe. A question asking a witness whether under a certain rule there would be any objection to doing a thing a certain way, is improper, as calling on the witness to construe the rule. Penn. Co. v. Stcelke, 104 111. 201. 1158 j. SAME preventing a person from travelling on cars. A railway company has no power to adopt rules and regulations prohib- iting decently behaved persons from travelling on its road, who will pay their fare and conform to all reasonable requirements for the safety and comfort of passengers. C., B. & Q. R. R. v. Bryan, 90 111. 126. 1158ft. SAME manner of entering car. Company has the right to make all reasonable rules respecting the time, manner and place of entering cars; and these rules when known to the passenger, he is bound to conform to, or he cannot recover for an injury sustained thereby. 26 Iowa, 124. 1159. In an action for an injury from a collision, it is not sufficient for the company to show that the plaintiff was at the time acting in disobedience of a proper order to secure his safety. It should further appear that the injury was caused by such disobedience. JL. & Upper Miss. R. R. v. Montgomery, 1 Ind. 474. 1160. TICKET rule requiring passengers to show, and also to surrender ticket. See jB. & O. R. R. v.Blocher, 27 Md. 277; Davis v. K. C., St. J. & C. B. R. R., 53 Mo. 317; Northern R. R. v. Page, 22 Barb. 130. 1161. A regulation requiring passengers either to present evidence to a conductor of a right to a seat, when reasonably required so to do, or to pay fare, is reasonable; and for non-compliance therewith, a pas- senger may be lawfully put off the train. Townsend v. N. Y. Cent. & H. River R. R., 56 N. Y. 295. 1162. To TAKE AND NEGOTIATE NOTES. A railway company has the inherent power to take and negotiate promisory notes in the ordinary course of business. Frye v. Tucker, 24 111. 180; Goodrich v. Reynolds, 31 111. 490; Foy v. Blackstone, 31 111. 538. AND EMINENT DOMAIN. 139 1163. POWER TO LEASE, OR TAKE LEASE. Power to a railway company to lease its road to another corporation, or to receive from another corporation a lease of the road of the latter, is conferred only by special authorization in charter or other legislative action. Such power is not among the ordinary powers of railway companies. Penn. R. R. v. St. L. &c. R. R., 118 U. S. 290. 1164. A railway company cannot transfer or lease its lines, unless authorized by statute. Troy & Boston R. R. v. Boston & Hoosac Tunnel & Western Ry., 86 N. Y. 107; Atty. Genl v. Niagara Falls Bridge Co., 20 U. Canada, 34; Abbott v. J. G. & K. R. R., 80 N. Y. 27. See III. Mid. Ry. v. People, 84 111. 426. . 1165. Without enabling legislation, a railroad company possesses no power to lease its road to a foreign corporation, and surrender its road and franchises into its control. Archer v. T. H. & Ind. R. R., 102 111. 493. (O EVIDENCE OF INCORPORATION. 1166. BOOKS to show exercise of corporate acts. Where certain steps are required to be taken before a corporation has existence, such as the opening of books, subscription of the capital stock and the choice of directors, the corporation books showing the election of officers, is prima facie evidence 1 o show that the prerequisites of the statute have been complied with, and that the corporation has an existence. Ryder v. A. & S. R. R., 13 111. 516, 523. 1167. The books of a railway company showing its organization are competent evidence for that purpose. Peake v. Wabash R. R., 18 111. 88. 1168. JUDICIAL NOTICE. This court cannot take judicial notice of the existence of a railroad in a county. Log., Peo. & B. R. R. v. Caldwell, 38 111. 280. See Danv. & White Lick PL R. Co. v. State, 16 Ind. 456. 1169. USER TINDER GENERAL LAW. To show an incorporation under a general law, except as against the state, it is sufficient to show a twer.by a professed organization under the law. Mitchell v. Deeds, 49 111. 416; Abbot's Trial Evid., 30. 1170. ADMISSION OF CORPORATE EXISTENCE by dealing with the body as a corporation. Mitchell v. Deeds, 49 111., 416; Miami Powder Co. v. Hotchkiss, 17 Bradw. 622; Brown v. Scottish A. M. Co., 110 111. 235; Hudson v. Green Hill Seminary, 113 111. 618. 1171. THE ARTICLES OF ASSOCIATION of a corporation certified by the secretary of state, are prima facie evidence of the fact that the full amount of the capital stock required by the articles has been sub- scribed. Jewell v. Rock River Paper Co., 101 111. 57. 1171a. PROOF OF INCORPORATION organization under general law. The existence or the formation of the corporation under the general law, may be proved, unless the law otherwise provides, by producing the certificate of organization which the law requires to be filed, with proof of its filing. Chamberlain v. Huguenot Manf. Co., 118 Mass. 532; Leonardsville Bank v. Willard, 25 N. Y. 574; Augur, &c. v. Whittier, 117 Mass. 451; Hawes v. Anglo Saxon Petroleum Co., 101 Mass. 385; Priest v. Essex Hat Co., 115 Mass. 380; see also Moke- lumne v. Woodbury, 14 Cal. 424; New Eel River Drain Assoc. v. DurUn, 30 Ind. 173. 11716. The statute makes a certified copy of the articles evidence equally with the original. In the absence of such a provision the orig- inal would be the best evidence. Jackson v. Leggett, 7 Wend. 377; Evans v. Southern Turnpike, 18 Ind. 101. 140 BAILROADS, WAREHOUSES, 1171c. Wh ere the corporate existence of the plaintiff is denied, the original articles of association, properly recorded, may be read in evidence, without a certificate of the clerk that it is a true copy. For- tin v. U. 8. Wind Engine & Pump Co., 48 111. 451. 1172. LIMIT OF CHARTER RENEWAL. 5. No such cor- corporation shall be formed to continue more than fifty years in the first instance, but such corporation may be renewed from time to time, in such manner as may be provided by law, for periods not longer than fifty years: Provided, that three-fourths of the votes cast at any regular election for that purpose shall be in favor of such renewal, and those de- siring a renewal shall purchase the stock of those opposed thereto at its current value. [B. S. 1887, p. 1001, 5; S. & C., p. 1908, 5; Cothran, p. 1137, 5.] 1173. BY-LAWS RECORDED. 6. A copy of the by-laws of the corporation, duly certified, shall be recorded as pro- vided for the recording of the articles of association in section 2 of this act; and all amendments and additions thereto, duly certified, shall also be recorded as herein provided, within ninety days after the adoption thereof. [B. S. 1887, p. 1001, 6; S. & C., p. 1909, 6; Cothran, p. 1137, 6. Cited in Allman v. Havan. <&c. R. R., 88 111. 521.] 1174. PUBLIC OFFICE IN THIS STATE books of stock inspection of. 7. Every such corporation organized under the provisions of this act shall have and maintain a public office or place in this state for the transaction of its business, where transfers of all its stock shall be made, and in which shall be kept for public inspection, books, wherein shall be recorded the amount of capital stock subscribed and by whom, the names of the owners of its stock, the number of shares held by each person, and the number by which each of said shares is respectively designated, and the amounts owned by them respectively, the amount of stock paid in, and by whom, the transfers of said stock, the amount of its assets and lia- bilities, and the names and places of residence of all its offi- cers. [B. S. 1887, p. 1001, 7; S. & C., p. 1909, 7; Cothran, P- 1137, 7.] 1175. DIRECTORS THEIR ELECTION AND CLASSIFICATION- VACANCY. 8. All the corporate powers of every such cor- poration shall be vested in and be exercised by a board of directors, who shall be stockholders of the corporation, and shall be elected at the annual meetings of stockholders at the public office of such corporation within this state. The num- ber of such directors, the manner of their election, and the mode of filling vacancies, shall be specified in the by-laws, and shall not be changed except at the annual meetings of the stockholders. The first board of directors shall classify them- selves by lot in such manner that there shall be, as nearly as AND EMINENT DOMAIN. 141 practicable, three directors in each class. Those belonging to the first class shall go out of office at the end of one year, those of the second class at the end of two years, and in like manner those of each class shall go out of office at the expi- ration of a number of years corresponding to the number of his class ; and all vacancies occurring by reason of expiration of term shall be filled by election for a terni of years equal to the number of classes. [E. S. 1887, p. 1001, 8; S. & C., p. 1909, 8; Cothran, p. 1138, 8. Post 1187, 1425.] 1176. DIRECTORS trustees. Directors of a railway corporation are trustees of the funds and other property of the corporation for the stockholders. Cheeney v. L., B. & M. Ry., 68 111. 570; Holder v. L., B. & M. Ry., 71 111. 106; Gil, Clinton & Spring/. R. R. v. Kelley, 77 111. 426; Peterson v. III. Land & Loan Co., 6 Bradw. 257; Blake v. Buf- falo Creek R. R., 56 N. Y. 485. 1176a. SAME interest in contracts with company. It is illegal for directors of a railway company to become members of a company contracting to build the road, so as to share in the profits. &., C. & Sp. R. R v. Kelley, 77 111. 426. See European & N. Am. R. R. v. Poor, 59 Me. 277. 1177. COMPENSATION. The president and directors of a railway company are not entitled to any compensation for their ordinary ser- vices as such officers, unless the amount is fixed in the by-laws, or by resolution spread upon the record, before the services are rendered. Cheeney v. L,, B. & M. Ry., 68 111. 570; Am. Cent. R. R. v. Miles, 52 111. 174; Merrick v. Peru Coal Co., 61 111. 472; R., R. L & St. L. R. R. v. Sage, 65 111. 328; Holder v. L., B. & M. Ry., 71 111. 106; Gridley v. ., B. & M. Ry., 71 111. 200; Hall v. Vt. & Mass. R. R., 28 Yt. 401; Bar- stow v. City R. R., 42 Cal. 465. 1177a. It is not sufficient to prove that the matter of allowing compensation was talked over by the board, where the record of their proceedings fails to show any allowance. R., R. I. & St. L. R. R. v. Sage, 65 111. 328. 11776. Where the by-laws of a private corporation provide that the officers shall receive such compensation for their services as shall be determined at the annual meeting of the stockholders, or at any special meeting called for that purpose, and none are ever so fixed, an officer performing the ordinary duties and services pertaining to his office, will not be entitled to recover for such services, in the absence of any agreement to pay him for the same. III. Linen Co. v. Hough, 91 111. 63. 1178. COMPENSATION for services not incident to office. Direct- ors employed to perform duties or services disconnected with their office, may recover or receive compensation for such services. Holder v. L., B. & M. Ry., 71 111. 106; Gridley v. L., B. & M. Ry.,11 111. 200; III. Linen Co. v. Hough, 91 111. 63. . A director appointed to perform duties not pertaining to his office, such as to solicit the subscription of stock, or to procure the right of way, may recover for such services when rendered; but he cannot,recover for services performed as a member of the executive committee, nor in making efforts to contract for the construction of the road, including time and travel, as these are a part of his duties as director. Cheeney v. L., B. & M. Ry., 68 111. 570. 11786. If the finance committee of a railway company audits an account of the president for ordinary services, and draws an order for 142 EAILROADS, WAREHOUSES, its payment, where no compensation has been provided before the services were rendered, it will be illegal, and no recovery can be had. Gridley v. L., B. & M. Ry., 71 111. 200. 1179. POWERS OF DIRECTORS. Charter directors can do such acts only as are necessary to set the association in motion as a corpora- tion; they cannot make contracts, or incur liabilities for the construc- tion of the road. Allman v. Hav., R. & E. R. R., 88 111. 521. 1179a. SAME increase of capital. A special charter which in terms vested all corporate powers in the directors, held, not to author- ize them to increase the capital stock without assent of the stockhold- ers. Ry. Co. v. Allerton, 85 U. S. 233. 1180. ELECTION OF DIRECTORS by-laws. A railway company may make such by-laws regulating stock and the manner of voting upon it as are consistent with its charter. Chandler v. N. Cross R. R., 18 111. 190. 1180a. SAME freedom in voting. One stockholder has no right to direct how the votes of another shall be cast, nor for whom. Ryder v. A. & S. R. R., 13 111. 516. 1181. SAME proxy by city. The city of Alton and non-residents had a right to become stockholders in this company; and the city might give its proxy to any one it chose. Ib. 1182. STOCKHOLDERS MEETINGS how called between annual meetings. 9. A meeting may be called at any time during the interval between such annual meetings, by the directors, or by the stockholders owning not less than one- fourth of the stock, by giving thirty days' public notice of the time and place of such meeting in some newspaper published in each county through or into which the said railway shall run, or be intended to run, provided there be a newspaper published in each of the counties aforesaid; and if, at any such special meeting so called, a majority in value of the stockholders equal to two-thirds of the stock of such corpora- tion, shall not be represented in person or by proxy, such meeting shall be adjourned from day to day, not exceeding three days, without transacting any business; and if, within said three days, two-thirds in value of such stock shall not be represented at such meeting, then the meeting shall be adjourned, and a new call may be given and notified as here- inbefore provided. [E. S. 1887, p. 1002, 9; S. & C., p. 1909, 9; Cothran, p. 1138, 9. Post 1206.] 1183. ANNUAL STOCKHOLDERS' MEETING report or state- ment of corporate affairs. 10. At the regular annual meeting of the stockholders of any corporation organized under the provisions of this act, it shall be the duty of the president and directors to exhibit a full, distinct and accu- rate statement of the affairs of the said corporation; and at any meeting of the stockholders, or a majority of those pres- ent (in person or by proxy), may require similar statements from the president and directors, whose duty it shall be to furnish such statements when required in manner aforesaid. AND EMINENT DOMAIN. 143 1184. POWERS OF STOCKHOLDERS to fix amount of loans and interest. And at all general meetings of the stockhold- ers, a majority in value of the stockholders of any such cor- poration may fix the rates of interest which shall be paid by the corporation for loans for the construction of such railway and its appendages, and the amount of such loans. 1185. SAME removal of officers. At any special meet- ing, by a two-thirds vote in value of all the stock, such stock- holders may remove any president, director or other officer of such corporation, and elect others instead of those so removed. 1186. STOCKHOLDERS right to examine books, &c. All stockholders shall, at all reasonable hours, have access to and may examine all the books, records and papers of such cor- poration. [E. S. 1887, p. 1002, 10; S. & C., p. 1910, 10; Cothran, p. 1138, 10.] 1187. ELECTION OF DIRECTORS on failure to elect at proper time. 11. 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 pur- pose, the corporation, for such cause, shall not be dissolved, if within ninety days thereafter the stockholders shall meet and hold an election for directors in such manner as shall be provided by the by-laws of such corporation: Provided, that it shall require a majority in value of the stock of such corporation to elect any member of such board of directors, and a majority of such board of directors shall be citizens and residents of this state. [Const., art. 11, H; R- S. 1887, p. 1002, 11; S. & C., p. 1910, 11: Cothran, p. 1139, 11.] 1187a. DIRECTORS constitutional provision as to residence of, construed. The constitutional provision (art 11, 11) that "a majority of the directors of any railroad corporation, now incorporated, or* hereafter to be incorporated by the laws of this state, shall be citi- zens and residents of this state," has no application to a railway corporation formed prior to the adoption of the constitution by the consolidation of a railway company of this state with one of another state, by the consent of each of such states. Such a cor- poration exists under the laws of the two states and cannot be said to be incorporated solely under the laws of this state. 0. & M. Ry. v. People, 111. . Filed Jan. 18, 1888. 1188. OFFICERS their duties. 12. There shall be a president of such corporation, who shall be chosen by and from the board of directors, 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 faith- ful performance thereof as such corporation, by its by-laws, shall require: Provided, that it shall require a majority of the directors to elect or appoint any officer. [B. S. 1887, p. 1002, 12; S. & C., p. 1910, 12; Cothran, p. 1139, 12.] 144 EAILEOADS, WAEEHOUSES, 1189. PRESIDENT. The president of a corporation may perform all acts which are incident to the execution of the trust reposed in him, such as custom or necessity has imposed upon the office, and this without express authority. Mitchell v. Deeds, 49 111. 416. 1190. POWER OF OFFICERS AND AGENT. A corporation, unless otherwise provided by its charter, may by resolution, or by-law, appoint any person agent to dispose of its property or negotiable securities. No officer of the corporation has such exclusive power, unless given by the charter. J6. 1191. POWER OF PRESIDENT to employ counsel. Where the by- laws of a corporation make it the duty of the president to exercise a general supervision over its entire business, and provide that its property shall be under his control, and as such president for several years before he had acted as its attorney, this will be evidence of his authority to employ an attorney. Wetherbee v. Fitch, 117 111. 67. 1191a. SUPERINTENDENT. The general superintendent may, in the exercise of his power as such, bind the company for the dis- charge of liabilities assumed by a station agent towards an injured employe. T. W. & W. Ry. v. Rodrigues, 47 111. 188. 11916. STATION AGENT. Where a railroad station agent engages a surgeon to attend an employe injured in the service of the company, although the act is unauthorized, yet the company will be liable, if, upon due notice given to the general superintendent, the act is not repudiated. T. W. & W. Ry. v. Prince, 50 111. 26; T. W. & W. Ry. v. Rodrigues, 47 111. 188. See also Ind. & St. L. R. R. v. Morris, 67 111. 295. Admissions of agent when binding on company. C. B. & Q. R. R. v. Coleman, 18 111. 297. 1192. PAYMENT OF SUBSCRIPTIONS TO CAPITAL STOCK forfeiture of payment. 13. The directors of such corpor- ation may require the subscribers to the capital stock of such corporation to pay the amount by them respectively sub- scribed, in such manner and in such installments as they may deem proper. If any stockholder shall neglect to pay any installment as required by a resolution or order of such board of directors, the said board shall be authorized to declare such stock and all previous payments thereon forfeited for the use of the corporation; but the said board of directors shall not declare such stock so forfeited until they shall have caused a notice in writing to be served on such stockholder personally, or by depositing the same in a postoffice, properly directed to the postoffice address of such stockholder, or if he .be dead, to his legal representatives, with necessary postage for its transmittal properly prepaid, stating therein that in accord- ance with such resolution, or order, he is requested to make such payment, at a time and place and in the manner to be specified in such notice, and that if he fails to make the same in the manner requested, his stock and all previous payments thereon will be forfeited for the use of such corporation; and thereafter such corporation, should default in payment be made, may sell the same and issue new certificates of stock therefor: Provided, that the notice as aforesaid shall be personally served or duly deposited, as above required, at AND EMINENT DOMAIN. 145 least sixty days previous to the day on which such payment is required to be made. [R. S. 1887, p. 1002, 13; S. & 0., p. 1910, 13; Cothran, p. 1139, 13.] RELEASE OF SUBSCRIPTION. 1192a. ALTERATION OF CHARTER authorizing consolidation. An amendment of the charter authorizing the consolidation of the road to be built, with any other intersecting road and there terminat- ing the same, is not such an alteration of the original project as to excuse the payment of a subscription for stock. Sprague v. HI. River R. R., 19 111. 174. 11926. AD act of incorporation may be amended, and if the amend- ment is accepted by the directors, the stockholders under the original act, unless otherwise stated, will be held liable. III. River R. R. v. Zimmer, 20 111. 654. 1192c. It is no defense to an action to collect an installment of a subscription, that the company has accepted an amendment to its charter after the defendant had subscribed, authorizing it to extend its road, and otherwise to assume new and increased responsibilities. Rice v. R. I. & Alton R. R., 21 111. 93; Hays v. 0. O. & F. R. V.R. R., 61 111. 424. 1192<2. It is no defense that the charter has been so changed as to authorize the company to purchase stock in other railroad companies, even though the terminus of the road is thereby changed. T. H. & Alton R. R. v. Earp, 21 111. 291. 1192e. MATERIAL CHANGE IN ENTERPRISE releases subscribers. Where a charter to build a railroad across the state as a continuous project under one management, with a common interest, is, after sub- scription, so amended as to divide the project into three parts, to be under separate control, and no proper acceptance of the change of the charter is manifested, subscribers to the stock will thereby be released. Fulton Co. v. Miss. & Wab. R. R., 21 111. 338, 370. See Ross v. C., B. &Q. R.R.,11I\1. 127. 1192/. A subscriber who agrees to be subject to the rules and regulations of the directors which they may adopt, cannot avoid payment, because the charter has been amended, reducing the number of days' notice to be given of calls, if the amendment of the charter has been accepted. III. River R. R. v. Seers. 27 111. 185. 1192^. A subscriber will be liable on his subscription, although the legislature may have authorized, and the directors may have adopted a change of route from that originally fixed, provided the change does not make an improvement of a different character, and his interest is not materially affected by the alteration. Banet v. Alton & Sang. R. R., 13 111. 504, 511. 11927i. A subscription to stock may be collected, although amend- atory acts have been subsequently passed, affecting the original char- ter, by extending its powers. P. & 0. R. R. v. Siting, 17 111. 429. 1192t. INJUNCTION of collection of subscription. If a railway company ceases to prosecute work, attempts to misapply its means, or attempts any radical change in the character of the enterprise, it may be enjoined from collecting the obligations given to support the origi- nal undertaking. 111. Grand Trunk R. R. v. Cook, 29 111. 237. 1192 j. When subscriber who is also a director is estopped by his acts from alleging that the corporation has ceased to be what it was when he subscribed. Ross v. C., B. & Q. R. R., 77 111. 127. 11 146 KAILROADS, WAREHOUSES, 1192&. Fraud as a defense to a suit on a subscription. Hays \. Ot., Os. & Fox River Valley R. R., 61 111. 422. Failure of consideration. 0. O. & F. R. V.R.R. v. Slack, 79 111. 262. Mismanagement of cor- porate affairs. CTietlain v. Repub. Life Ins. Co., 86 111. 220. 1193. STOCKHOLDER who is one. An agreement to subscribe a certain amount of stock when books shall be opened, does not make the party a stockholder and as such liable for calls. Thrasher v. Pike Co. R. R., 25 111. 393, 405. 1194. SUBSCRIPTION must be to corporation seeking to enforce. One corporation cannot recover on subscriptions made to another, however identical the object sought by the two companies, or the par- ties composing them. 76. 1195. EELEASE or void as to creditors. As against creditors, the release or surrender of the obligation of a subscriber of stock, by the directors, is void . Union Mutual Life Ins. Co. v. Frear Stone Manfg. Co., 97 111. 537, 549; Upton v. Tribilcock, 1 Otto, 45; Sawyer v. Hoag, 17 Wall. 610: Burke v. Smith, 16 Wall. 390; New Albany v. Burke, 11 Wall. 96; Zirkel v. Joliet Opera House, 79 111. 334; Melvin v. Lamar Ins. Co., 80 111. 446. Release as against other stockholders. See Chandler v. Brown, 77 111. 333. 1196. Any device by which members of a corporation seek to avoid liability which the law imposes on them, is void as to creditors. Union Mut. L. Ins. Co. v. Frear Stone Manfg. Co., 97 111. 537. 1197. CAPITAL STOCK trust fund for creditors release of sub- scriber. The capital stock subscribed is a trust fund for creditors which the directors cannot give away to their prejudice. Any agree- ment releasing stockholders from payment of their subscriptions, is void. 76. Putnam v. New Albany, 4 Biss. 365. 1198. CAPITAL STOCK must be all subscribed before any sub- scription is collectable. Until the whole amount of the capital stock fixed has been subscribed, the corporation has no existence, and the directors cannot, make any calls, or assessments on the shares of those who have subscribed. Allman v. Hav., Rantoul & Eastern R. R., 88 111. 521; Temple v. Lemon, 112 111.51. See cases ante 1156^. 1199. WHEN STRICT COMPLIANCE REQUIRED rights depending on. In actions on contracts, like subscriptions for stock, where the very consideration is the legal organization of a corporation having a right to existence, the inquiry may extend to the due compliance with all of the requirements of the law. Abbott's Trial Evid. 19; Railway Co. v. Allerton, 18 Wall. 233; 1 Morawetz on Corporations, 29, 137, 408; Bray v. Farwell, 81 N. Y. 607; Peoria, &c., R. R. v. Preston, 35 Iowa 118, 121; Hoagland v. Cinn. &c., R. R., 18 Ind. 452; Selma, cfcc,. R. R. v. Anderson, 51 Miss. 829; Swartwout v. Mich. Air Line R. R., 24 Mich. 390; Santa Cruz R. R. v. Schwartz, 53 Cal. 106. 1200. STOCK personalty transfers of purchase of prohibited use of corporate funds. 14. The stock of such corporation shall be deemed personal estate, and shall be transferable in the manner prescribed by the by-laws of such corporation. But no shares shall be transferable until all previous calls thereon shall have been paid; and 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 or other officer thereof, or to permit them or any of them to use the same for other than the legitimate purposes of such cor- AND EMINENT DOMAIN. 147 poration. [E. S. 1887, p. 1003, 14; S. & C., p. 1911, 14: Cothran, p. 1139, 14.] 1200a. PERSONAL ESTATE. Statute making stock personal prop- erty is but declaratory of the common law. Mohawk, &e. R. R. v. Clute, 4 Paige, 384, 393; Hutchins v. State Sank, 12 Met. 426; Johns v. Johns, 1 Ohio St., 350. 12006. TRANSFERS OF STOCK by-laws of company. Certificates of stock in a railway company, unlike negotiable paper, can only be assigned by an act of the company, or in pursuance of a by-law. Hall y. Rose Hill & Evanston Road Co., 70 111. 673. 1200e. SAME by issue of new certificate. If the purchaser of stock of a railway company applies to procure a transfer of the same to him, and the directors order the transfer to him, and new certifi- cates to be issued to him, he will become an innocent holder, if he acts in good faith, and the company will be estopped to deny that the stock thus issued is valid. Ib. 1200(Z. If the secretary issues new certificates of stock to one claim- ing to have purchased shares therein, without taking up or cancelling the original, the new certificates will be invalid. Ib. 1200e. CERTIFICATE OF STOCK presump tion of its proper issue. The certificate of stock in a railway company, issued by its secretary, is prima facie evidence that it was regularly issued; but this pre- sumption may be overcome by other evidence, as by showing no order was passed for its issue. If the order was passed and not entered of record, that may be shown by the holder. Ib. 1200/. ASSIGNMENT relief against equitable assignee by assignor. A court of equity will not give the assignor of stock relief against a bona fide purchaser, merely because the latter may have failed to have the stock transferred to him upon the books of the corporation, as required by law. It is no concern of the assignor whether the assignee ever becomes invested with the legal title, or the right to membership in the corporation. Such stock may be regarded as a chose in action, the equitable title of which, as between the parties, may be transferred without observing the requirements of the charter or by-laws of the company as to the mode of transfer so as to pass the legal title. Otis v. Gardner, 105 111. 436. 1201. ASSIGNMENT OF STOCK neglect to enter on books. Where a charter requires all sales and transfers of stock to be made upon the books of the corporation in order to be valid, this provision will be regarded as designed for the protection of the company, and perhaps a purchaser without notice; but as between the assignor and pur- chaser, a sale and transfer will be good without being entered upon the books, and will be enforced in equity. Kellogg v. Stockwell, 75 111. 68. 1201a. EQUITABLE ASSIGNMENT rights and liabilities of as- signee. The equitable assignee or owner of stock im an incorporated company can use it as his own property, control it and receive divi- dends thereon, the same as though he had the legal title; and there- fore as between himself and his assignor, he is bound to assume the burdens imposed upon the owner of the legal title arising out of as- sessments made upon the stock. /&. 12016. SAME profecWcm of assignor in equity. Where shares in the capital stock of an incorporated company have been sold and transferred, but not in accordance with the charter or by-laws of the company, so as to pass the legal title, and the assignor is compelled to make payment of assessments, or is liable to be called upon for pay- ment, a court of equity at the suit of the. assignor, will require the assignee to pay or indemnify him, as the case may require. JT6. 148 EAILBOADS, WAEEHOUSES, 1201c. TRANSFER OF CERTIFICATES assignee not protected . Cer- tificates of stock are not securities for money, nor do they possess the qualities of commercial obligations, so as to protect a bona fide purchaser or holder from equities of the corporation against them; and when stock of a corporation is fraudulently issued by one of its officers and transferred to a third person as collateral security for a debt, it is not error upon a bill filed for that purpose, to order the cer- tificates of such stock returned and cancelled. Campbell v. Morgan. 4 Bradw. 100. 1201d. TRANSFER OF SHAKES as against creditors of assignor. Where the board of directors of a corporation are expressly empow- ered by the charter to provide for the mode of transfer of shares of stock, and the board does, by a by-law, provide that such transfer shall only be made upon the books of the secretary on the presentation of the stock certificates properly indorsed, a transfer by indorsement and delivery only, will not be valid as against a creditor of the as- signor who levies his execution upon such shares without notice of the transfer. People's Sank v. Oridley, 91 111. 457. 1201e. SAME as between the parties. As between the vendor and vendee of shares of stock in a corporation whose charter or by-laws require transfers of stock upon its books, a sale and transfer will be good without being entered upon the company's books, and will be enforced in equity, and the vendee required to pay subsequent assess- ments, or indemnify the vendor against their payment . Ib . 1201/. TRANSFER OF STOCK as against execution creditors. The provision of the statute making shares of stock in a private cor- poration subject to levy and sale on execution, contemplates that, as against a judgment creditor, the title to stock in such corporation can only pass by transfer on the books of the company. Ib. 1202. CORPORATION liability for refusing to transfer stock . A corporation will be liable in case for refusing to transfer on its books shares of its capital stock which it has issued, to a purchaser of the same, unless such stock is absolutely void for fraud or want of con- sideration, in which latter event no action will lie against the corpor- ation for such refusal. Protection Life Ins. Co. v. Osgood, 93 111. 69. 1202a. EQUITABLE TRANSFER passes only equitable title. The charter of a private corporation provided that the stock should be transferred in such manner as the directors might determine, and the by-laws of the company provided that the secretary should keep a book upon which all transfers of stock should be made by the holder or holders, or by his or their attorney, duly constituted in writing. A holder of certificates of stock delivered the same with a blank assign- ment and power of attorney indorsed thereon, to a borrower of the same, which power authorized the assignee to have the stock transferred on the books of the company, but no such transfer was ever made upon the books, and such holder, being the borrower, transferred the certifi- cates as collateral security for a loan. Held, that the legal title never passed by the transfer for want of an assignment on the books of the company, but that the pledgee took an equitable title as security for his money, of which he could not be divested by the real original owner. Otis v. Gardner, 105 111. 436. 12026. Where certificates of stock are assigned in blank with a power of attorney for a transfer on the books of the company, with no limitation as to their use by the assignee, he will, as to persons dealing with him without notice of any defect of power in him, be authorized to make any legitimate use of them, and he may transfer them as security for a loan. Ib. 1202c. ASSIGNMENT in the absence of any by-law, &c., on subject. AND EMINENT DOMAIN. 149 In the absence of any by-law or other regulation to the contrary, an assignment of the certificate of stock by indorsement and delivery, will be sufficient to authorize the assignee to vote. People v. Devin. 17 111. 84. 1202c. TRANSFER new certificate not necessary. A transfer of shares upon the books makes the transferee a shareholder, although no new certificate is issued. The certificate is merely the evidence of the holder's rights. First Nat. Bank v. Biff or d, 47 Iowa, 575, 583; Hawley v. Upton, 102 U. S. 314. 1203. EAILWAY COMPANY of the right to purchase its own or other stock. The weight of authority in this country is in favor of the power of a corporation to purchase its own capital stock, except where the circumstances are such as to show that the purchase was fraudu- lent in fact, or that the corporation was insolvent at the time of such purchase. Fraser v. Ritchie, 8 Bradw. 554. 1203a. PURCHASE OF ITS OWN STOCK as against creditors of company. A corporation has not the power as against creditors to extinguish its capital stock. So, where a corporation conveyed to one of its shareholders a large amount of real estate and other property, and in return received the surrender of the shares of stock held by him, which were then cancelled: Held, that a judgment creditor of the corporation could maintain a bill to subject the property so con- veyed, to the payment of his judgment; and that it made no difference that there might be enough property remaining with the corporation to satisfy his judgment. The lien attached to the whole stock, and the creditor could not be remitted to his remedy against the remaining shares. Peterson v. III. L. & L. Co., 6 Bradw. 257. 12036. Although a corporation has the power to purchase its own stock, yet in equity the transaction may be impeached, if it operates to the injury of creditors. Clapp v. Peterson, 104 111. 26. 1203e. The shareholders of a corporation are conclusively charged with notice of the trust character which attaches to its capital stock. Ib. 1203<2. Private corporations may purchase their own stock in exchange for money or other property, arid hold, re-issue or retire the same, if it is done in entire good faith, and the exchange is of equal value, and is free from all fraud, actual or constructive, and if the cor- poration is not insolvent or in process of dissolution, and the rights of creditors are not affected thereby. Ib. 1203e. The purchase of its own stock by a corporation by the exchange of its property of equal value, though made in good faith without any element of fraud about it, there not being anything in the apparent condition of the company to interfere with the making of the exchange, will not be allowed where it injuriously aft'ects a creditor of the company, even though the fact of indebtedness was not at the time established or known to the stockholder. Ib. 1204. EQUITABLE LIEN or CREDITORS ON CAPITAL STOCK. The capital stock of a private corporation is a fund set apart for the pay- ment of its debts, and its creditors have a lien in equity . If diverted they may follow it as far as it can be traced, and subject it to their claims, except as against holders who have taken it bona jide for a valuable consideration and without notice . Ib . 1204a. CAPITAL STOCK, A TRUST FUND notice thereof to stock- holders. The shareholders of a corporation are conclusively charged with notice of the trust character which attaches to the capital stock. As to it, they cannot occupy the status of innocent purchasers, but they are to all intents and purposes privies to the trust. When, there- fore, they have in their hands any of this trust fund, they hold it cum onere, subject to all the equities which attach to it. Ib. 150 EAILEOADS, WABEHOUSES, 1205. PURCHASE or ITS OWN STOCK. The directors of a railway company, when not prohibited by the charter, have the lawful power to purchase shares of its own stock issued to others. C. P. &8. W.R. R. v. Marseilles, 84 111. 145, 643; Fraser v. Ritchie, 8 Bradw. 554. See also Peterson v. III. Land & Loan Co., 6 Bradw. 257; Chetlain v. Re- public L. Ins. Co., 86 111. 220; Dupee v. Boston Water Power Co., 114 Mass. 37; State v. Building Assoc., 35 Ohio St. 258. INCKEASE OF CAPITAL STOCK. CALL OF SPECIAL MEETINGS FOB OTHER BUSINESS. 1206. OF THE NOTICE OF SUCH MEETING record of pro- ceedings. 15. In case the capital stock of any such corporation shall be found insufficient for constructing and operating its road, such corporation may, with the concur- rence of two-thirds in value of all its stock, increase its cap- ital stock, from time to time, to any amount required for the purpose aforesaid. Such increase shall be sanctioned by a vote, in person or by proxy, of two-thirds in amount of all the stock of such corporation, at a meeting of such stock- holders called by the directors of the corporation for such purpose, by giving notice in writing to each stockholder, to be served personally or by depositing the same in a post- office, directed to the postoffice address of each of said stock- holders severally, with necessary postage for the transmittal of the same, prepaid, at least sixty days prior to the day ap- pointed for such meeting, and by advertising the same in some newspaper published in each county through or into which the said road shall run or be intended to run (if any newspaper shall be published therein), at least sixty days prior to the day appointed for such meeting. Such notice shall state the time and place of the meeting, the object thereof, and the amount to which it is proposed to increase such capital stock; and at such meeting the corporate stock of such corporation may be so increased, by a vote of two- thirds in amount of the corporate stock of such corporation, to an amount not exceeding the amount mentioned in the no- tices so given. Should the directors of any such corporation desire at any time to call a special meeting of the stockhold- ers, for any other necessary purpose, the saine may be done in the manner in this section provided, and if such meeting be attended by the owners of two-thirds in amount of the stock, in person or by proxy, any other necessary business of such corporation may be then transacted, except the altering, amending or adding to the by-laws of such corporation : Provided, such business shall have been specified in the no- tices given. And the proceedings of any such meeting shall be entered on the journal of the proceedings of such corpo- ration. Every order or resolution increasing the capital stock of any such corporation shall be duly recorded as re- AND EMINENT DOMAIN. 151 quired in section 2 of this act. [ B. S. 1887, p. 1003, 15; S. & C., p. 1911, 15; Cothran, p. 1140, 15.] 1207. SPECIAL CHA.KTER power under, to increase capital stock. A special charter which in terms vested all corporate powers in the directors, held, not to authorize them to increase the capital stock without the assent of stockholders. Ry. Co. v. Allerton, 85 U. S. 233. 1207a. INCREASE or CAPITAL power of directory. "A charter authorized an increase of the capital . stock, but failed to provide by whom the power might be exercised : Held, that the directors did not merely by virtue of their position as such, have authority to increase the capital stock without the assent of the shareholders. Eidman v. Bowman, 58 111. 444. 12076. It seems the management and transaction of all business for which a corporation is created, and its general affairs, are within the usual powers of the board of directors, but a power given to a corporation to increase its capital stock, cannot be exercised by the directors, except they be specially authorized so to do, either by the charter or by the shareholders. Eidman v. Bowman, 58 111. 444. 1207c INCREASE OF STOCK who entitled to shares. If the capi- tal stock of a corporation be increased by proper authority, the right to such additional stock vests in the original stockholders, each one to take in proportion to the amount held by him of the original stock, if he will pay for it. This right may be waived, but if it is not, the party entitled cannot be deprived of it by the board of directors of the corporation or otherwise. Eidman v. Bowman, 58 111. 444. 1208. STOCKHOLDERS' LIABILITY holder in representa- tive capacity exempted. 15^. No person holding stock in any such corporation as executor, administrator, guardian or trustee, and no person holding such stock as collateral se- curity, shall be personally subject to any liability as stock- holders of such corporation; but the person pledging the stock shall be considered as holding the same,, and shall be liable as a stockholder accordingly. [B. S. 1887, p. 1003, 16; S. & 0. p. 1912, 16; Cothran, p. 1140, 16.] 1209. STOCKHOLDERS' INDIVIDUAL LIABILITY for debts to extent of unpaid subscriptions. 16. Each stockholder of any corporation formed under the provisions of this act, shall be held individually liable to the creditors of such corpora- tion to an amount not exceeding the amount unpaid on the stock held by him, for any and all debts and liabilities of such corporatiori, until the whole amount of the capital stock of such corporation so held by him shall have been paid. [B. S. 1887, p. 1003, 17; S. & C., p. 1912, 17; Cothran, p. 1140, 17.] 1210. POWER OF LEGISLATURE to impose liability on sharehold- ers in existing corporations. Although no power of amendment may be reserved in a charter, the legislature may, after its grant, impose an individual liability on stockholders and officers of a corporation by subsequent legislation, without infringing upon any constitutional rights of the stockholder. Shufeldt v. Carver, 8 Bradw. 545; Fogg v. Sidwell, Id., 551. 1210a. RESERVATION OF POWER to regulate by general laws. A 152 RAILROADS, WAREHOUSES, reservation in a charter, or an amendment thereto, of the right of the legislature to bring the corporation under general laws, does not bind the legislature to enact any specific law, and does not operate as a contract with the stockholders that they shall be subjected to any specific additional primary liability on their contracts of subscription. But the legislature may enact such general laws as it thinks best and such laws may be even penal in their character . Diversy \.Smith, 103 111. 378. 12106. CONSTITUTION or 1848 as providing for reservation of power over corporations. 2, art. 10, of the constitution of 1848 was aesigned to express the reservation of power in the legislature, in granting charters, to provide from time to time by proper laws for securing dues and debts from corporations by individual liability of the corporators, or otherwise. Weidenger v. Spruance, 101 111. 278; Diversy v. Smith, 103 111. 378. 1210c. Where a special charter of an insurance company contains a provision that it may be altered, amended or repealed at any time, there can be no doubt of the power of the legislature to amend such charter in such manner as it may see proper, in reference to the rights, duties and liabilities of 'the company and its stockholders. Sutler v. Walker, 80 111. 345; Diversy v. Smith, 103 111. 378. 1210cZ. A general law, making trustees and corporators of insur- ance companies, including those already acting under special charters, severally liable for all debts of their companies, to the amount by them subscribed, until the whole amount of the capital shall be paid in, is not a law impairing the obligation of any contract. Weidenger v. Spruance, 101 111. 278. 1211. The real obligation of the contract of such subscriber to the capital stock of a corporation, is that he will pay for his stock. A mere expectation on his part that the law will not be enforced, requir- ing all the capital stock to be paid in, is not a vested right. If the stockholders and the corporation fail to have the stock paid in, it is competent for the legislature to impose a reasonable penalty, such as that prescribed by the insurance law of 1869. Ib. 121 la. The legislature had the right to repeal so much of the act of 1857, relating to private corporations, as made the stockholders personally liable to creditors, to the amount of their stock, there being no vested right in such provision. A law changing the remedy for the collection of a debt is not liable to any constitutional objection. Richardson v. Akin, 87 111. 138. 1212. As to the individual liability of stockholders under similar laws and special acts, as to the evidence of being stockholders, and remedies to enforce such liability. See post 2812. 1213. EMINENT DOMAIN acquisition of land by condem- nation. 17. If any such corporation shall be unable to agree with the owner for the purchase of any real estate re- quired for the purposes of its incorporation, or the transac- tion of its business, or for its depots, station buildings, machine and repair shops, or for right of way or any other lawful purpose connected with or necessary to the building, operating or running of said road, such corporation may ac- quire such title in the manner that may be now or hereafter provided for by any law of eminent domain. [R. S. 1887, p. 1003, 18; S. & C.,p. 1912, 18; Cothran, p. 1141, 18; ante 303etseq.] AND EMINENT DOMAIN. 153 1214. EMINENT DOMAIN material for road by condem- nation. 18. Any such corporation may, by their agents and employes, enter upon and take from any land adjacent to its road, earth, gravel, stone, or other materials, except fuel and wood, necessary for the construction of such railway, paying, if the owner of such land and the said corporation can agree thereto, the value of such material taken and the amount of damage occasioned thereby to any such land or its appurtenances; and if such owner and corporation cannot agree, then the value of such material, and the damage occa- sioned to such real estate, may be ascertained, determined and paid in the manner that may now or hereafter be provi- ded by any law of eminent domain, but the value of such materials, and the damages to such real estate, shall be ascer- tained, determined and paid for before such corporation can enter upon or take the same. [K. S. 1887, p. 1004, 19; S. & C., p. 1912, 19; Cothran, p. 1141, 19; 179 ante. 1215. If the contractors who are bound to furnish all materials by their contract take materials for the construction of their road, the corporation will be liable to make compensation therefor. Lesher v. Wabash Nav. Co., 14 111. 85; Hinde v. Wabash Nav. Co., 15 111. 72: cited and distinguished in Scammon v. Chicago, 25 111. 424. 1216. A railway corporation is liable to third persons for the tor- tious acts of its contractors while constructing the road. Ch., St. Paul & Fond Du Lac R. JR. v. McCarthy, 20 111. 385 ; West v. St. L., V. & T. H. R. R., 63 111. 545. 1217. So, it is liable for the acts of its lessees, or contractors in operating and using the road under its authority. O. & M. R. R. v. Dunbar, 20 111. 623; Ch. & R.I. R. R. v. Whipple, 22 111. 105; III. Cen- tral R. R. v. Read, 37 111. 484; /. C. R. R. v. Finnigan, 21 111. 646; P. & R. I. R. R. v. Lane, 83 111. 448; P., C. & St. L. Ry. v. Campbell, 86 111. 443; Balsley v. St. L., A. & T. H. R. R., 119 111. 68. 1218. A railway company allowing another to operate its unfenced road will be liable for stock killed through neglect to fence. III. Cen- tral R. R. v. Kanouse, 39 111. 272; T., P. & W. Ry. v. Rumbold, 40 111. 143; Wab., St. L. & P. Ry. v. Peyton, 106 111. 534. 1219. Consolidated company liable for the acts of the companies consolidated. C., R. I. & P. R. R. v. Moffitt, 75 111. 524. 1219a. The liability of a railway company for injuries by the wrongful acts of any lessee, contractor or other person, done in the exer- cise of any of its franchises, is limited to "wrongs done by them while in the performance of acts which they would have had no right to per- form, except under the charter of the company" sought to be made liable. St. L., A. & T. H. R. R. v. Balsley, 18 Bradw. 79. 1219&. As to liability of a railway company for acts or torts of a receiver operating the road. See Wyatt v. 0. & M. .R R., 10 Bradw. 289; Brown v. Wabash Ry.,QQ 111. 297; Metz v. B., C.&P. R. R., 58 N. Y. 61; 0. & M. R. R. v. Davis, 23 Ind. 553; Bell v. /. C. & L. R. R., 53 Ind. 57; Turner v. H. & St. Jo. R. R., 74 Mo. 602; 0. & M. R. R. v. Anderson, 10 Bradw. 313; High on Receivers, 396, 397: contra, Cent. Trust Co. v. Wab., St. L. & P. R. R., 26 Fed. Rep. 12. 121 9c. If the trustees of a railway company do business in the name of the company, they are liable to suit in that name, and their 154 KAILEOADS, WAREHOUSES, property is responsible for liabilities incurred while transacting busi- ness in that name. Wilkinson v. Fleming, 30 111. 353. 1219eZ. COMPANY LIABLE for acts of trustees. Trustees selected by the corporation as well as the bondholders, while in possession op- erating the road to earn money to pay debts of the corporation, will be regarded as the agents pi' the corporation so far as relates to the transaction of business with third persons, and such persons may sue the corporation and recover damages in respect to transactions with such trustees, and will not be compelled to sue the trustees. Gr. T. Manf. & Transp. Co. v. Ullman, 89 111. 244. 1220. ADDITIONAL POWERS. 19. Every corporation formed under this act shall, in addition to the powers herein- before conferred, have power : ENTRY UPON LANDS to examine, survey and lay its road. First To cause such examination and survey for its pro- posed railway to be made as may be necessary to the selection of the most advantageous route ; and for such purpose, by its officers, agents or servants, may enter upon the lands or waters of any person or corporation, but subject to responsi- bility for all damages which shall be occasioned thereby. [E. S. 1887, p. 1004, 20; S. & 0., p. 1912, 20; Cothran, p. 1141, 20.] 1221. Where a railway in the exercise of the powers conferred upon it, commits an injury to the land of another by entering upon it in order to make preliminary surveys, or by taking materials there- from, or the like, and the law under which such acts are done, pre- scribes a mode for assessing damages for such injuries, an action of tort will not lie theref r, but the statutory remedy must be pursued it being in general, exclusive. Smith v. C., A. & St. L. R. R. 67 111. 191. 1222. On an assessment of damages for right of way, it is error to admit evidence of a violent entry upon the land going to show a will- ful trespass. L. B. & M. R. R. v. Winslow, 66 111. 219. 1223. LOCATION. The Illinois Central Railroad company had the right under its charter, to locate its road in the waters of Lake Mich- igan. I. C. R. R. v. Rucker, 14 111. 353. 1224. The grant of a right to extend to and unite with any other railroad in this state gives the right to extend to any other railroad within the prescribed limits. Bellmlle & III. R. R. v. Gregory, 15 111. 20. 1225. Railroad crossing another has the right to select the point and manner of intersection. L., S.& M./3. Ry v. Ch. & W. Ind. R. R., 97 111. 506. 1225a. CHANGE OF LOCATION. After haying once fixed the termi- nal points of its road, and located its depot in a town or city, a rail- way company has no power afterwards to change the same without legislative authority, but it will be held to its election. People v. L. &N. R.R., 120111. 48. 1226. ACQUISITION OF PROPERTY BY VOLUNTARY GRANT. Second. To take and hold such voluntary grants of real estate and other property as shall be made to it, in aid of the construction and use of its railway, and to convey the same when no longer required for the uses of such railway, not in- compatible with the terms of the original grant. [E. S. 1887, AND EMINENT DOMAIN. 155 p. 1004, 20; S. &. C., p. 1913, 20; Cothran, p. 1141, 20.] 1227. A deed to a railway company "of the right of way" of the railroad, with nothing to define its extent in width, when the charter does not define the extent of the right of way, is too indefinite to con- stitute color of title. Wray v. C., B. & Q. R. R., 86 111. 424. 1228. EFFECT OF RELEASE. A contract of a party by which he agrees to release and convey a right of way to a railway company over any lands he may own, as soon as the road is located, will preclude him from claiming damages from the construction of the road over his lands. Conwell v. S. & N. W. R. R., 81 111 232. 1229. ACQUISITON OF PROPERTY by purchase disposi- tion of same. Third To purchase, hold and use all such real estate and other property as may be necessary for the con- struction and use of its railway, and the stations and other accommodations necessary to accomplish the object of its incorporation, and to convey the same when no longer re- quired for the use of such railway. [ E. S. 1887, p. 1004, 20; S. & C., p. 1913, 20; Cothran, p. 1142, 20.] 1230. CONVEYANCE estate granted. A deed to a railway company conveying no land, but only -the right to construct, maintain and use in, through, upon and over certain lands, all such railroad tracks, depots, warehouses, &c., as the company should find necessary or con- venient for transacting its business, and to keep thereon without dis- turbance, all property belonging to or in the possession of the com- pany, to have and to hold the said rights and easements so long as the same should be used for such purposes, and for no other, even forever, passes only an easement which is a freehold of inheritance, though only a base or qualified fee, which may be defeated. Wiggins Ferry Co. v & M. Ry., 94 111. 83. 1231. POWERS to lay out and construct road 100 feet wide when may take more. Fourth To lay out its road, not exceeding one hundred feet in width, and to construct the same ; and for the purpose of cuttings and embankments, to take as much more land as may be necessary for the proper construction and security of the railway; and to cut down any standing trees that may be in danger of falling upon or obstructing the railway, making compensation therefor in manner provided by law. [E. S. 1887, p. 1004, 20; S. & C., p. 1913, 20; Cothran, p. 1142, 20.] 1232. WIDTH OF RIGHT OF WAY. Company not bound to take and pay for all the lands described in the petition, if less will answer its purposes. Peoria & R. I. Ry. v. Bryant, 57 111. 473. 1233. Width of the land as described in thje report of the commis- sioners was held, to control, and where acquiesced in by the company, with knowledge, it is concluded. 76. 1234. Alteration of the route subsequent to the assessment of damages gives the land-owner a right to recover for damages result- ing therefrom. Peoria & R. I. R. R. v. Birkett, 62 111. 332. 1235. POWERS to build road across or upon streams, highways, streets, &c. consent to, or condemnation. Fifth 156 EAILEOADS, WAREHOUSES, To construct its railway across, along or upon any stream of water, watercourse, street, highway, plank road, turnpike or canal, which the route of such railway shall intersect or touch; but such corporation shall restore the stream, water- course, street, highway, plank road and turnpike thus inter- sected or touched, to its former state, or to such state as not unnecessarily to have impaired its usefulness, and keep such crossing in repair: Provided, that in no case shall any rail- road 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. Nothing in this act contained shall be construed to authorize the erec- tion of any bridge, or any other obstruction, across or over any stream navigated by steamboats, at the place where any bridge or other obstructions may be proposed to be placed, so as to prevent the navigation of such stream; nor to au- thorize the construction of 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: Provided, that in case of the constructing of said railway along highways, plank roads, turnpikes or canals, such rail- way shall either first obtain the consent of the lawful author- ities 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. [R. S. 1887, p. 1004, 20; S. & a, p. 1913, 20; Cothran, p. 1142, 20. See ante 60.] 1236. RAILWAY OVER STREAMS duty as to culverts. Duty of railway company in constructing its road under legislative authority over water courses on private land, to make suitable bridges, culverts, or other provisions for carrying oft' the water effectually, and to keep them in suitable repair. 1. C. R. R. v. Bethel, 11 Bradw. 17. 1236a. In constructing culverts for the passage of water the com- pany must exercise ordinary care and skill, and bring to bear on the ' work such engineering knowledge, care and skill ordinarily applied to works of that kind, as may bs reasonably deemed sufficient to avoid damages from the stream, in connection with the work, in all ordinary floods or freshets. Ib. 12366. If the construction of a railroad over a water course was not improperly done, and is washed out by an extraordinary flood, leaving debris upon the land of an adjacent owner, beyond the com- pany's right of way, the company is not bound to remove such mater- ial; and if by reason of it being so lodged, the waters of the stream are diverted in a subsequent freshet, it will not give to such adjacent owner any right of action. Ib. 1236c. BRIDGES AND WATER COURSES obstruction of flow of water. A railway company is only required to construct its bridges across water courses with such care and skill as to make them suf- ficient to pass the water in all ordinary floods and freshets. P., Ft. W. & C. R.R. v. Gtilleland, 56 Pa. St 445; Town of China v. Southwick, 12 Me. 238: Lawler v. Baring Boom Co., 56 Me. 443; Norris v. Vt. Cent. K.R.,2S Vt. 99; Henry v. Vt. Cent. R. R., 30 Vt. 638; Sprague AND EMINENT DOMAIN. 157 v. Worcester. 13 Gray. 193; Smith v. Agawam Canal Co., 2 Allen, 355. 1237 OBSTRUCTION OF NATURAL FLOW OF WATER liability for. A railway company is liable for any injury that may result to the owner of lands from an obstruction created by it in the natural flow of surface water. K. & 8. R. R. v.Horan, 22 Bradw. 145. 1288. The fact that a railway owns a right of way over the plain- tiff's land, does not authorize it to make such a change thereon, by structures or otherwise, as to flow water back upon the land of the plaintiff, or others, and thereby inflict an injury. C., R. I.& P. R. R. v. Carey, 90 111. 514. See also, /. N. W. & 8. W. R.R.v. Cox,Ql 111. 500. 1239. As to measure of damages in case of obstructing the free passage and flow of water. See K. & S. R. R. v. Horan, 22 Bradw. 145; ., A. & T. H. R. R. v. South, 43 111. 176. 2295. Company bound to furnish a convenient and accessible place for the sale of tickets and afford a reasonable opportunity to purchase them, and parties who will not avail themselves of it, must pay the extra fare, or, on refusal, be ejected from the train. Ib. 2296. While the right of a railway company to discriminate in its fare, between those purchasing tickets and those who do, not, is just and reasonable, still such right depends on the fact that a reasonable opportunity has been given to obtain tickets at the lowest rate. St. L., A. & T. H. R. R. v. Soutli, 43 111. 176. 2297. EXPULSION FROM FREIGHT TRAIN. Eailway company hold- ing itself out as a carrier of passengers by a freight train, has no more right to expel a passenger therefrom without cause, than from a regular passenger train. C. & A. R. R. v. Flagg, 43 111. 364. 2298. They may as to certain classes of trains (as freight trains) require tickets to be purchased before entering the same. A passenger who knowingly disregards such a rule, is placed on the same footing with one who refuses to pay fare, and may be expelled at any regular station. Ib. 2299. If the passenger willfully neglects to purchase a ticket before entering the train, he cannot be expelled at a place other than a regular station. A water tank, even if a usual stopping place, is not a regular station. Ib. 2300. A failure to furnish reasonable facilities for procuring a ticket by keeping the office open a reasonable time prior to that fixed for the departure of the train, gives a person desiring to take pas- sage, the right to enter the train and to be carried to his place of des- tination, by the payment of the regular fare to the conductor. Under such circumstances his expulsion would be unlawlul. Ib. 2301. The refusal of a passenger to surrender his ticket to the con- ductor when demanded, does not constitute the same offense as the non-payment of fare, and the statutory prohibition against the expul- sion of passengers for the latter offense, except at a regular station, does not apply to the former case. /. C. R. R. v. Whittemore, 43 111. 420. 2302. A railway company may expel a passenger at a place other than a regular station, for the violation of any reasonable rule, other than that of non-payment of fare. /. C. R. R. v. Whittemore, 43 111. 420. 2303. Where a passenger wantonly disregards any reasonable rule, the obligation to transport him ceases, and the company may expel him from the train, using no unnecessary force and not at a dangerous or inconvenient place. This is a common law right and has been AND EMINENT DOMAIN. 275 restricted by statute only in cases of non-payment of fare. /. C.R.R. v. Whittemore, 43 111. 420. 2304. A rule requiring passengers to surrender their tickets when called for, is a reasonable one and may be enforced. Ib. 2305. It is unlawful to forcibly expel a passenger from a train between the usual stopping places for refusal to pay his fare, and trespass will lie for the injury, even though he agreed to get off if the train was stopped. C. & N. W. Ry. v. Peacock, 48 111. 253. 2306. In a suit to recover for being put off a freight train on which the plaintiff had taken passage without first procuring a ticket, it was objected that he had not proved such train was employed in carrying passengers: Held, it was sufficient that the evidence showed the de- fendants at the time of the occurrence were accustomed to carry passengers on freight trains; that notices were posted up around the window of the ticket office, that passengers on freight trains must first obtain tickets, and that there were persons on the train who had pro- cured tickets. /. C. R. R. v. Sutton, 53 111. 397. 2307. Kailway companies are liable for injuries caused to a person by reason of their servants putting him off, or compelling him to leave their train at any other than a regular station. Ib. 2308. A rule setting apart a car for the exclusive use of ladies, and gentlemen accompanied by ladies, is a reasonable rule and may be enforced. C. & N. W. Ry. v. Williams, 55 111. 185. 2309. In the absence of any other reasonable rule upon the subject the company cannot lawfully, from caprice, wantonness or prejudice, exclude a colored woman from the ladies' car on account of her color. Ib. 2310. If a passenger offers the conductor a worthless piece of paper, claiming it to be a pass, and on being informed it is not, refuses to pay fare or leave the train, the servants of the company will have the right to put him off at a regular station, and they may use the neces- sary force for that purpose. C., R. I. & P. R. R. v. Herring, 57 111. 59. 2311. It is not an unreasonable rule for a railroad company to require that persons desiring to ride on freight trains shall procure tickets sold expressly for such trains. /. C. R. R. v. Nelson, 59 111. 110. 2312. Where a person took passage on a freight train without first procuring the kind of ticket required by the rules of the company to entitle him to ride on that character of a train, it was held that the conductor had the right to require him to leave it at the usual place of getting on and off such trains, at a station. Ib. 2313. A railway company may require that passengers procure tickets before riding on freight trains, and conductors may expel from the cars at regular stations, such as neglect to comply with the regu- lation. T., P. & W. Ry. v. Patterson, 63 111. 304. 2314. If a passenger who neglects to procure a ticket to enable him to ride on freight train, is put off the train at a place other than a regular station, the company will be liable to him in compensatory damages. Ib. 2315. A railway company has the right to make a rule that no one shall be carried as a passenger on its freight trains. But when it is in the habit of carrying passengers on such a train, and has its regu- lar hour for departure posted in its office at the station, it will not be justified in refusing to carry a passenger from such station, or in put- ting him off such train. /. C. R. R. v. Johnson, 67 111. 312. 2316. Company requiring tickets to ride on freight train, must keep ticket office open a reasonable time in advance of the hour of its 276 BAILROADS, WAREHOUSES, departure. Failing in this, a person desirinar passage, may enter the car to be carried to his destination on payment of the regular fare to the conductor. Ib. See /. C. R. R. v. Cunningham, 67 111. 316. 2317. If the holder of a ticket deports himself properly, the com- pany have no right to refuse the ticket, or to admit him to the class of car his ticket designates, and when thus admitted, the company has no right, so long as he deports himself properly, to eject him from the train, before reaching his station. Churchill v. C. & A. R. R., 67 111. 390. 2318. A railway company, not being obliged to give a lay over ticket, when it does so, it is upon the terms agreed upon by the par- ties, neither having the right to disregard them, when given and ac- cepted. And when a passenger accepts a lay over ticket, marked good for thirty days only, he is bound by the terms imposed, and to make the same available, must use it within the time prescribed. Ib. 2319. The law does not require that the conductor in taking up a ticket shall give the holder a check, or punch the ticket and allow the passenger to hold it until all intermediate stations are passed. C., B. & Q. R. R. v. Griffin, 68 111. 499. 2320. If a passenger pays his fare to a certain station and the ticket agent by mistake gives him a ticket to an intermediate station, the demand of fare a second time by the conductor will be a breach of the implied contract on the part of the company to carry him to the proper station. By paying such demand his right of action will be as complete as if he resists the demand and suffers himself to be ejected. Ib. 2321. DISORDERLY CONDUCT. A passenger must observe proper decorum and observe all reasonable rules adopted by company. He is is not authorized to interpose resistance to every trivial imposition to which he may feel himself exposed, that must be ovt rcome by coun- terforce, to preserve subordination. Ib. 2322. Where a passenger's ticket, by mistake, did not take him to the proper station, and 20 cents fare was demanded of him, which he refused to pay, and suffered himself to be forcibly ejected, and aft- erwards entered another car, and while the conductor was making change, used profane and obscene language in the presence of ladies, &c., for which he was again expelled, no unnecessary force being used : Held, that he was not entitled to recover anything. Ib. 2323. The use of grossly profane and obscene language by a pas- senger in a railway coach, where there are ladies, is such a breach of decorum, no matter if provoked to it, as will work a forfeiture of his right to be carried as a passenger, and the conductor will have the right to expel him from the cars, using no more force that is neces- sary. C., S. & Q. R. R. v. Griffin, 68 111. 499. 2324. Carriers of passengers may lawfully require those seeking to be carried to purchase tickets where convenient facilities to that end are afforded, to exhibit them to the persons designated by the carrier for that purpose, and surrender them after securing their seats. These are but reasonable rules. Pullman Palace Car Co. v. Reed, 75 111. 125. 2325. Case stated where passenger lost his berth ticket in a sleep- ing car, and was put out of the car. Pullman Palace Car Co. v. Reed, 75 111. 125. 2326. Expulsion of a man intruding himself into "ladies' private room" at a depot. T., W. & W. Ry. v. Williams, 77 111. 354. 2327. FAMILY TICKET. A railroad ticket, which on its face, pur- AND EMINENT DOMAIN. 277 ports to be for the exclusive use of a man and family, authorizes a son who is residing with him as a member of his family, to ride upon the road, although he may be over twenty years of age. C. & N.W . Ry. v. Chisholm, Jr., 79 111. 584. 2328. If the purchaser of such ticket is at his purchase, informed that a son over twenty-one, would not under the regulations be per- mitted to ride on it, such regulation will form a part of the contract, and be binding on the purchaser or any one attempting to ride on it. Ib. 2329. To prove that a son of the holder of a family ticket had notice of a regulation that a son over age could not ride on the same, evidence that certain schedules were printed and furnished to the pub- lic by the company, is not admissable. It is proper, however, to show that such schedule was furnished to the purchaser of the ticket. Ib. 2330. DAMAGES. Where a person who is rightfully on a railway car and has paid his fare, is unlawfully expelled therefrom, he will be entitled to recover more than nominal damages, even though he sus- tains no pecuniary loss or actual injury to his person. C. & N. W, Ry. v. Chisholm, Jr., 79 111. 584. 2331. Where a passenger conducts himself in an orderly and decent manner and offers to pay the fare fixed by the company, his expulsion by the conductor in a forcible manner, is unjustifiable, and the com- pany will be liable civilly in an action for an assault and battery. C., B. & Q. R. R. v. Bryan, 90 111. 126. 2332. Where a passenger tenders the conductor a certain amount of fare to be carried to a certain station, which is less than the rate fixed by the company, saying he will pay no more, and the conductor retains a sum sufficient to take the passenger to an intermediate sta- tion, and returns the balance, the passenger will have the right on reaching such intermediate station, to pay the fare demanded from that point to the place of his destination, and upon his offering to pay the same, he cannot rightfully be put off the train. Ib. 2333. A railway company has no power to adopt rules and regula- tions prohibiting decently behaved persons from traveling on its road, who will pay their fare and conform to all reasonable requirements for the safety and comfort of passengers. Ib . 2334. When exemplary damages are recoverable for wrongful expulsion. C., B. & Q. R. R. v. Bryan, 90 111. 126. 2335. A carrier must not only protect his passengers against the violence and insults of strangers and co-passengers, but also against the violence and assaults of his own servants. If this protection is not afforded and the passenger is assaulted and beaten through the negligence of the carrier's servants, he will be responsible for the injury, especially for the assaults of his servants. Ch. & E. R. R. v. Flexman, 103 111. 546. 2336. Where a conductor of a railway company acting under in- structions, refuses to accept a ticket issued by another company as agent of the former, and demands full fare, the passenger, if his ticket was issued by authority, may pay the fare again, and recover of the company to whom paid the amount so paid, as for a breach of the con- tract, or he may refuse to pay, and leave the train when so ordered and sue and recover of the company all damages sustained in conse- quence of his expulsion. But if he refuses to leave, he cannot recover for the force used to put him off, if no more is used than necessary. Penn. R. R. v. Connell, 112 111. 295. 2337. The responsibility of company for injury to passenger does not depend on his payment of fare. If he refuses to pay, the company 278 RAILBOADS, WAREHOUSES, may eject him. 0. & M. R. R. v. Muhling, 30 111. 9. See also C. & A. R. ~R. v. Randolph, 53 111. 510; Arnold v. I. C. R. R., 83 111. 273; C., B. & Q. R. R. v. McLallen, 84 111. 109; Shelton v. L. X. & M. 8. Ry., 29 Ohio St. 214; Crawford v. C., H. & D. R. R., 26 Ohio St. 580; Towiia- hend v. N. Y. C. & H. R. R., 56 N. Y. 296. 2338. BADGE. 32. Every conductor, baggage-master, brakeman, or other servant of any railroad corporation in this state, employed on a passenger train, or about the pas- senger depots, shall wear upon his hat or cap a badge which shall indicate his office. No conductor without such badge shall demand, or be entitled to receive from any passenger, any fare, toll or ticket, or exercise any of the powers of his office; and neither shall any other of said officers or servants, without such badge, be authorized to meddle or interfere with any passenger, his baggage or property. [B. S. 1887, p. 1019, 95; S. & C., p. 1944, 95; Cothran, p. 1159, 81.] 2339. COMMON LAW LIABILITY NOT TO BE LIMITED. 33. That whenever any property is received by any railroad corporation to be transported from one place to another, within or without this state, it shall not be lawful for such corporation to limit its common law liability safely to deliver such property at the place to which the same is to be trans- ported, by any stipulation or limitation expressed in the receipt given for the safe delivery of such property. [R. S. 1887, p. 1019, 9&; S. & C., p. 1945, 96; Cothran, p. 1159, 82. See ante, 162.] 2340. Railway companies as common carriers may restrict their common law liability by such contracts as may be specially agreed upon, except their liability for gross negligence or willful misfeas- ance. /. C. R. R. v. Morrison, 19 111. 136. 2341. WHEN AUTHORITY TO SIGN PRESUMED. Where a shipper of cattle made such a contract and delivered part of the cattle, it will be presumed that other persons, delivering the remainder acted as agents, and had authority to sign similar contracts. Ib. 2341a. RESTRICTION BY NOTICE. This liability cannot be re- stricted by notice, even when it is brought home to the knowledge of the owner. Western Transp. Co. v. Newhall, 24 111. 466. 2342. No distinction can be made in a notice in the newspapers or by hand bills, or one printed on the back of a receipt given. Ib. 2343. Notice printed on the back of carrier's receipt, forms no part of the contract, and need riot be noticed in the declaration. The express assent of the shipper to such restriction must be proved, in order to give effect, to it. Ib. 2344. PRESUMPTION AS TO SHIPPER'S ASSENT. As the carrier is bound to receive and carry all goods offered him subject to all the in- cidents of his employment, there can be no presumption that the owner intended to abandon any of his rights. Ib . 2345. BURDEN OF PROOF. The onus of proving the contract re- stricting the carrier's liability is upon him. Ib. 2345a. SPECIAL CARRIER. The rule is different with persons who AND EMINENT DOMAIN. 279 are not common carriers and who are not bound to render the service required. They may make their own terms, and the owner of goods is presumed to assent to them by the delivery of the goods. Ib. 2846. WHAT MAY BE DONE BY NOTICE. The carrier may qualify his liability by a general notice to all who may employ him, of any reasonable requisition to be observed in regard to the manner of de- livery and entry of parcels and various other matters, but he cannot avoid his liability as insurer by any such notice. Ib. 2347. RESTRICTION IN FREE PASS. The acceptance of a free pass with an indorsement printed thereon exempting the company from all liability for injury caused by negligence to the person or property of the holder, will protect the company for any injury not the result of gross or reckless negligence. /. C. R. R. v. Read, 37 111. 484. 2348. Kailway companies have the right to restrict their common law liability as common carriers, by such contracts as may be agreed upon specially, they still remaining liable for gross negligence or will- ful misfeasance against which good morals and public policy forbid they should be permitted to stipulate. Ib. 2349. A railway company may restrict its liability for loss or injury to property placed in its charge for transportation, by special agree- ment, the carrier being still held responsible for gross negligence or willful misfeasance. /. C. R. R. v. Smyser & Co., 38 111. 354. 2350. The rule is limited to cases where there is a special contract. It is not competent to limit the liability of the carrier by merely prov- ing a usage on his part in giving bills of lading exempting him from certain classes of losses. Ib . 2351. Where goods are shipped under a verbal contract, and a day or two after their delivery, the subsequent making out and signing a freight bill with conditions and limitations, will not alter the carrier's liability under the verbal agreement, unless it was accepted as the contract of the parties, and this is a question of fact. Baker v. M. 8. &N.Ind.R. .R., 42 111. 73. 2352. Where receipt is given for the goods containing a provision limiting the common law liability of the company, and the shipper accepts the same with a knowledge of its terms, and intending to assent to the restrictions contained in it, it becomes his contract as fully as if he had signed it. Adams Express Co. v. Haynes, 42 111. 89. 2353. The simple delivery of such a receipt to the shipper is not conclusive upon the latter. Whether he had knowledge of its terms and assented to its restrictions, is for the jury to determine as a ques- tion of fact upon evidence aliunde, and all the circumstances attend- ing the giving of the receipt are admissible in evidence on that question. Ib . 2354. While a railway company may protect itself against certain risks assumed by .common carriers, and belonging to their vocation, it is contrary to good morals and public policy that it should be allowed to stipulate against its own gross negligence or willful defaults. /. C. R.R.v. Adams, 42 111. 474. 2355. A contract for the shipment of hogs provided that the com- pany should not be liable for loss "by delay of trains, or any damage said property might sustain, except such as might result from a collis- ion of a train, or where cars were thrown from the track in course of transportation." During the trip, one car was thrown from the track by reason of a broken rail, while all the cars containing the hogs re- mained on the track: Held, that the company was liable for whatever hogs were lost or whatever shrinkage occurred by reason of the delay 280 EAILEOADS, WAKEHOUSES, caused by the accident, but not for delay caused by cold weather. I.C.R. R. v. Owens, 53 111 . 391. 2356. The carrier cannot claim exemption from liability for an in- jury to corn shipped caused by delay in transportation, under a clause in the bill of lading which relieves him from loss on perishable prop- erty. /. C. R. R. v. McClellan, 54 111. 58. 2357. While the carrier who first receives the goods to be carried over his and other lines may not by general notice, yet he may, by special contract with the shipper, limit his liability to such damage or loss as may occur on his own line of carriage. A carrier may by special contract relieve himself of his common law liability. I. C. R. R. v. Frankenberg, 54 111. 88. 2358. If a shipper takes a receipt from the carrier to whom the goods are delivered in the first instance, containing a clause that the carrier so receiving assumes no other liability for their safety or safe carriage, than may be incurred on its own road, with knowledge of its terms, and intending to assent to the restrictions contained in it, the carrier will be free from his common law liability for loss occurring beyond his own line. Whether he assented to it is a question of fact. Ib. 2359. A box of goods was delivered to a railway company marked to a point beyond its line of road. The bill of lading was called by the company its "through freight contract," and it contained this clause: "Which we promise to transport over the line of this railway, to the company's freight station at its terminus, and deliver to the consignee or owner, or to such company (if the same are to be for- warded beyond the limits of this railway) whose line may be consid- ered a part of the route to the place of destination of said goods, it being distinctly understood that the responsibility of this company shall .cease at the station where such goods are delivered to such per- son or carrier." Among the conditions printed in the bill of lading was this: "The responsibility of this company as a common carrier under this bill of lading to commence on the removal of the goods from the depot on the cars of the company and to terminate where unloaded from the cars at the place of delivery." This freight was never unloaded or delivered at this terminus, but proceeded to its destination in the cars in which it was received: Held, that this was a through freight contract, and the company liable beyond the termi- nus of their road. T., P. & W. Ry v. Merriman, 52 111. 123. 2360. RECEIPT AS A CONTRACT. The delivery of a receipt for the goods to the shipper is not conclusive upon him that the conditions therein set forth constitute a contract. Whether the shipper had knowledge of its terms and assented to its restrictions, is a question of fact for the jury to determine upon evidence aliunde, and all the circumstances attending the giving of the receipt are admissible in evidence on the question. A.M. U. Express Co. v. Schier, 55 111. 140. 2361. Railway company receiving goods to be shipped to a point beyond the terminus of its line, may by express agreement limit its liability te its own route and to its terminus. C. & N. W. Ry. v. Mont- fort, 60 111. 175. 2362. Where the shipper takes a receipt f com the company restrict- ing its liability to its own line of road, if he accepts it with a full knowledge of such conditions and intending to assent to them, it be- comes his contract as fully as if he had signed it. Ib. 2363. Whether the shipper accepted a receipt with a knowledge of such restriction and with the intention to assent to it, is a question of fact for the jury. C. & ZV. W. Ry. v. Montfort, 60 111. 175. 2364. The insertion by the carrier in the shipping receipt that the AND EMINENT DOMAIN. 281 company will not be liable for loss beyond a certain sum, being much less than the value of the goods shipped, will not release the carrier, unless it appears that the shipper knew of and assented to the limita- tion. Adams Express Co. v. titettaners, 61 111. 184. 2365. Where the shipper has assented to the clause in the receipt that the carrier shall not be liable beyond a given sum, and as to that, only for gross negligence, the burden of proof of due care will rest on the carrier. It cannot by any contract excuse itself from reasonable care and diligence. Ib. 2366. Where no question is made as to the knowledge of the ship- per of a provision in the bill of lading, that the carrier should not be liable for loss or damage to the property by fire or other casualty, while in transit, or at depots or landing, at the point of delivery, it will be inferred that the shipper received the bill with knowledge of its con- tents and agreed to its terms. Anchor Line v. Knowles, 66 111. 150. 2367. If the consignor of a package of money assents to a clause in the receipt stating that the carrier company undertook to forward the package "to the nearest point of destination reached by" such com- pany, it becomes his contract as fully as if he had signed it, and he will be bound by its terms, and cannot hold the company liable for delays of another company taking the package. United States Express Co. v. Haines, 67 111. 137. 2368. If a shipper takes a receipt for his goods from a common carrier which contains conditions limiting the liability of the carrier, with a full understanding of such conditions, and intending to assent to them, it becomes his contract as fully as if he had signed it and he will be bound by the conditions. Anchor Line v. Dater, 68 111. 369. 2369. It does not follow because the carrier delivers to the shipper a receipt containing limitations of his liability, that the shipper assents thereto, as he has no alternative but to accept such a receipt as the carrier may give. Whether the shipper has assented to such. condi- tions, is a question of fact for the jury. Anchor Line v. Dater, 68 111. 369. 2370. A limitation of the liability of an express company not to exceed $50, unless the value of the goods is truly stated, if brought to the knowledge of the consignor, is reasonable and consistent with pub- lic policy. Openheimer & Co. v. United States Express Co., 69 111. 62. 2371. The established legal construction of conditions in the con- tract of carriers exempting them from liability is, not to treat them as providing against losses or injuries occasioned by actual negligence on their part. Ib. 2372. The fact that an express company has settled for other losses without insisting on the restrictions of its liability in the contract, will not preclude it from raising the question of its liability in a sim- ilar case subsequently arising. Ib. 2373. A distinction exists between the effect of those notices by a carrier by which it is sought to discharge him from duties which the law has annexed to his employment, and those designed simply to insure good faith and fair dealing on the part of his employer. In the former, notice without assent to the attempted restriction^ is ineffect- ual, while in the latter, actual notice alone will be sufficient. Ib. 2374. W T here a carrier delivers goods to a forwarder, who is its agent and the agent of the company to whom the same is delivered, and he gives a bill of lading limiting the duty of the latter to deliver the goods to another company, this will make the bill of lading a con- tract binding upon the first and second carriers, and the second will not be responsible for the delivery of the goods to the consignee by the last carrier. C. & N. W. Ry. v. N. L. Packet Co., 70 111. 217. 282 BAILROADS, WAKEHOUSES, 2375. Common carriers may limit their common law liability. Field v. C. & R. I. R. R., 71 111. 458. 2376. Where a railway company receives goods marked for a par- ticular place, it is bound by the common law to deliver at that place; but it may restrict this liability by a contract fairly and understand- ingly made; and where so made, it' in the form of a bill of lading, or otherwise, and the terms are understood and accepted by the shipper, it becomes the contract of the parties. Field v. C. & R. I. R. R., 71 111. 458. 2377. The receipt or bill of lading of goods marked to New York, recited that the goods were to be transported over defendant's road to a certain station, and there delivered in good order to another com- pany, whose line was a part of the route to the place of destination, and that the liability of the defendant should cease when the goods were so delivered at that station to the other company. The shipper accepted this receipt with the knowledge of its contents: Held, that it became a binding contract and that the liability of defendant ended with the delivery of the goods to the next carrier. Field v. C. &. R. I. R. R., 71 111. 458. 2378. Whether the shipper has knowledge of and assents to a clause in a bill of lading or receipt for goods delivered to a common carrier, whereby the common law liability is limited, is a question of fact to be determined by the evidence in each case. Field v. C. & R. I. R. R., 71 111. 458. 2379. Where goods are delivered to a carrier in Wisconsin, the con- tract to be performed there, the laws of that state will govern as to the construction of the contract, and determine the extent of the car- rier's undertaking. M. & St. P. Ry. v. Smith, 74 111. 197. 2380. Where a carrier receives live stock for transportation, and a loss is sustained by the owner in consequence of their not being sup- plied with water, the burden of proof to show an exemption from lia- bility rests upon the carrier. T., W. & W. Ry. v. Hamilton, 76 111. 393. 2381. It is only where the contract is for through transportation) that each connecting carrier will be entitled to the benefits and exemptions of the contract between the shipper and first carrier. M. D. Transp. Co. v. Bolles, 80 111. 473. 2382. Where a carrier receives goods for transportation marked to a place beyond the terminus of its line, without any special contract its liability as an insurer will continue until it delivers them to a con- necting carrier. M. Des. Transp. Co. v. Bolles, 80 111. 473. 2384. Where goods are delivered to a carrier to be carried to a place and the charges for transporting to that place are paid in full, and there is no contract limiting its liability, such carrier will be responsible for the delivery of the goods at the place named, notwith- standing its line ends before reaching such place and the goods are delivered to another carrier in good order at the termination of its line. Adams Express Co. v. Wilson, 81 111. 339. 2385. The doctrine is settled in this state that railroad companies, may,^ by contract, exempt themselves from liability on account of the negligence of their servants, other than that which is gross and will- ful. Arnold v. /. C. R. R., 83 111. 273. 2386. The undertaking of a railway company to carry a passenger on a freight train, and the extra care and expense required in such case, form a sufficient consideration for a contract made with a pas- senger restricting and limiting its liability; but the same terms must be extended to and applied to all persons desiring to ride on such trains. Ib. AND EMINENT DOMAIN. 283 2387. The carrier may limit its obligation to carry safely over its own lines or only to points reached by its own carriages, and for safe storage and delivery to the next carrier in the route beyond, although the goods are marked to a point beyond its line. Erie Ry. v. Wilcox, 84 111. 239. 2388. A clause in the receipt given the owner for goods so restrict- ing the carrier's obligation, if understandingly assented to by the shipper, will as effectually bind him as if he had signed it. Ib. 2389. Where the exemption is once established, the carrier will only be responsible on account of actual negligence or willful misconduct. The rule is the same if the goods are shipped to a point beyond the carrier's own line. Ib. 2390. LIMITING LIABILITY BY NOTICE. A carrier cannot dis- charge itself from duties which the law has annexed to the employ- ment, by notice alone to the shipper. The shipper must assent to it, to make it effectual; but it is otherwise in respect to those duties designed simply to insure good faith and fair dealing. There a notice is sufficient. Erie Ry. v. Wilcox, 84 111. 239. 2391. The law on grounds of public policy, will not permit a com- mon carrier of passengers or freight to contract against liability for its own actual negligence or that of its servants or employes. Erie Ry. v. Wilcox, 84 111. 239. 2392. If a passenger on a railway train while riding under a free ticket containing the usual restrictions, is injured by an accident he cannot hold the company liable, except for gross negligence, or a degree of negligence having the character of recklessness. T., W. & W. Ry. v. Beggs, 85 111. 80. 2393. A clause in a receipt or bill of lading exempting the carrier from a common law liability is not binding on the shipper unless it appears that he knew of and assented to the exemption, and this is a question of fact. M. D. Transp. Co. v. Theilbar, 86 111. 71. 2394. A common carrier is bound to accept and safely carry goods when properly tendered for shipment, unless destroyed by the act of God or the public enemy, and has no right to exempt itself from loss by fire, except by virtue of a special contract to that effect. It cannot limit its liability by its own act alone. M. D. T. Co. v. Theilbar, 86 111. 71. 2395. Where the bill of lading given shows the goods are to be for- warded to a particular place only, which is short of their destination, and the consignor has been a frequent shipper by the same line and was in the habit of receiving like bills of lading, it will be presumed he was familiar with its contents and assented to the same. M. D. & Tr. Co. v. Moore, 88 111. 136. 2396. The right of a carrier to limit its common law liability by contract, if made fairly and advisedly on behalf of the shipper, cannot be denied; but the mere fact that the bill of lading given contains a clause exempting the carrier from loss of the goods by fire, cannot be held conclusive of such contract. M. D. Trans. Co. v. Leysor, 89 111.43. 2397. If a shipper with full knowledge of the terms and conditions of a bill of lading, assents to and accepts the same as the contract under which the goods are shipped, then the bill of lading will constitute a binding contract which will control the rights and liabilities of the parties. Whether the shipper knows the terms and conditions of a bill of lading and assents to the same, is a question ot fact. Ib . 2398. Where the shipper has no knowledge that the bill of lading given contains a provision releasing the carrier from liability for loss by fire, and the goods are destroyed by tire before reaching their desti- 284 EAILEOADS, WAREHOUSES, nation, and while in the custody of the carrier, the latter will be liable to the owner for their value. /&. 2899. A common carrier can only limit or restrict his liability by agreement, and where the carrier gives a receipt for goods to be shipped, containing a restriction of his liability, it must appear that the ship- per was aware of such restrictions, otherwise there is no presumption of his assent thereto. M. D. Trans. Co. v. Jcesting, 89 111. 152. 2400. To make such a restriction binding on the shipper, he must expressly agree to it, or he must accept the receipt under such circum- stances as clearly show his assent to the restriction. The receiving of the receipt does not prove assent, but if the party reads the receipt and makes no objection, his assent may be inferred. Ib. 2401. In the absence of evidence, it will be presumed that the ship- per being the merchant who sold the goods, had only authority to ship them with all the liabilities of the carrier attaching, without excep- tions of any description. Ib. 2402. Where no receipt is given at the time a package is delivered to an express company tor transportation, the company cannot limit its liability by a receipt afterwards given, where the proof negatives all presumption of any knowledge on the part of the shipper that the receipt contained a clause limiting the carrier's liability, or that the carrier claimed any such limitation. Am. Express Co. \ . Spellman, 90 111. 455. 2403. A shipper of goods is not bound by a clause in a carrier's receipt or bill of lading given on the receipt of goods for transporta- tion, limiting the common law liability of the carrier, unless the shipper assents to the same. Erie & Western Transp. Co. v. Dater. 91 111. 195. 2404. The assent of a shipper to the conditions in a receipt'or bill of lading limiting the carrier's liability will not be inferred from the mere fact of acceptance of the bill or receipt without objection. Nor will it be conclusively inferred from the fact of the previous accept- ance of a large number of similar bills not filled up by the shipper or held in his possession to be filled up. Ib. 2405. The acceptance of a bill of lading containing a restriction of the carrier's liability and the previous practice of giving and receiv- ing similar bills of lading, are evidence tending to show that the limitation of liability therein, was assented to by the shipper; but neither one, nor both such facts will be conclusive evidence thereof. 76. 2406. The law of the state in which the contract is made for the transportation of goods, must control as to its nature, interpretation and effect. M. C. R. R. v. Boyd, 91 111. 268. 2407. An agent shipping goods a few days after the delivery of the goods, and while they are in transit, cannot by taking a receipt limiting the carrier's liability, bind the consignee. M. C. R. R. v. Boyd, 91 111. 268. 2408. A common carrier can claim no exemption from liability for the loss of goods entrusted to him, except such as is given by express contract. Boscowitz v. Adams Express Co., 93 111. 523. 2409. The contract must be assented to by the shipper with a view to release the duties imposed by the law, and when this is once estab- lished the carrier, in case of loss, will only be responsible on account of negligence or willful misconduct. He cannot contract against his own actual negligence. Boscowitz v. Adams Express Co., 93 111. 523. 2410. A clause in a receipt given to a shipper of goods limiting and restricting the carrier's liability incident to its general employ- AND EMINENT DOMAIN. 285 ment, if understandingly assented to by the owner, will as effectually bind him as though he had signed it, but whether such restrictions have been assented to in a given case, is always a matter of evidence. Ib. 2411. The fact that the owner of goods, by himself or clerk, filled up a receipt taken for goods shipped, is evidence tending to show that the shipper had notice of the conditions and restrictions in the print- ed part thereof and assented to them, but it is not conclusive . It is still a question of fact. Ib. 2412. Where carrier gave a receipt for three separate distinct bales of furs, containing a printed clause that the company should not be liable for any loss or damage "of any box, package or thing," for over $50, unless the true value thereof was therein inserted: Held, that the limitation was not to be applied to the three bales, but as to each one separately. Ib. 2413. While it is true that a railroad carrier may by contract re- strict its liability to its own line, there is no doubt that it may also extend its liability beyond its own line. St. L. & I. M. R. R. v. Lamed, 103 111. 293. 2414. A railway company by accepting and acting under its char- ter, becomes a carrier of persons and property, and the law imposes all the duties and liabilities of a common carrier upon it, and such company cannot exonerate itself from such duty and responsibility by contract with others, nor in anywise escape or free itself from liability, unless released by the general assembly. W., St. L. & P. Ry. v. Peyton, 106 111. 534. 2415. A provision in a shipping contract voluntarily and under- standingly entered into, that in consideration of reduced rates, no claim for damages should be made, unless made in writing verified by the affidavit of the shipper and delivered to the general freight agent of the carrier at his office within five days from the time the stock is removed from the cars, will be binding on the shipper, and is not void as being contrary to any law or public policy. Black v. W., St. L. & P. Ry., Ill 111. 351. 2416. A carrier may by special contract with the shipper, limit his liability to such damage or loss as may arise on his own line of car- riage. W., St. L. & P. Ry, v. Jaggerman, 115 111. 407. 2417. Notwithstanding a provision in a bill of lading that the car- rier should not be responsible for "damage to perishable property of any kind occasioned by delays from any cause," he may and will be- come liable for delay as the result of actual negligence. But proof of delay merely, is not sufficient to show negligence in transporting the goods. Ib . 2418. In an action by the shipper of apples under a bill of lading exempting the carrier from liability for damage to perishable property from delay, it is competent for the defendant to prove that prior to such shipment the plaintiff had filled up similar blank bills of lading for shipments which contained the same stipulation in regard to per- ishable property, as going to show the plaintiff's knowledge of and assent to such provision. Ib. 2419. The common law liability of a carrier may be limited by a special contract signed by both the contracting parties, except that public policy requires that the carrier should not be allowed to stipu- late against the consequence of its own actual negligence or willful default. C., B. & Q.R.R. v. Hale, 2 Bradw. 150. 2420. Where the consignor merely takes a receipt containing a limitation of liability, it will not bind him, unless he knowingly as- 286 EAILEOADS, WAREHOUSES, sented to such restriction, but it is error to so instruct, where the consignee signs the contract. Ib . 2421. A condition in a contract for the transportation of goods forms no part of the contract, where it was not known or assented to by the shipper. Adams Express Co. v. King, 3 Bradw. 316. 2422. The statute prohibits a common carrier from limiting by contract, its liability to deliver the goods safely at their destination ; but in this case, if the carrier was guilty of no negligence, it was not liable at common law, and the contract in that regard, is not within the statute and prohibited thereby. /. & St. L. Ry. v. Jurey, 8 B. 160. 2423. A carrier cannot by contract relieve himself from responsi- bility for his own negligence or that of his servants. Neither can he limit his common law liability to safely deliver property received for transportation. W., St. L. & P. Ry. \. Black, 11 Bradw. 465. 2424. A carrier is not restricted from providing in a shipping con- tract that in case any claim for damages is made, notice of the same shall be given within a prescribed time. Such a provision is reason- able and is not a limitation upon the common law duty of a carrier to safely deliver property received for shipment. Ib. 2425. Where goods are received by a common carrier, marked for transportation to a place beyond its line, and the bill of lading lim- ited the common law liability of the carrier to safe carriage over its own line: Held, that the inhibition contained in Ch. 114, 82, E. S. 1874, does not apply to a case where the carrier is under no obligation at common law to "undertake to carry goods beyond its own line. C. & N. W. Ry. v. Church, 12 Bradw. 17. 2426. A custom that a carrier shall not be liable for injury to, or loss or destruction of live stock beyond the value of f 100, is against public policy, and a custom which will excuse a carrier from acts of negligence, is invalid. C., R. I. & P. R. R. v. Harmon, 12 Bradw. 54. 2427. Notice to shipper of a rule that the carrier will not transport live stock unless the shipper signs a special contract limiting the car- rier's liability to $100, does not create a contract, making the rule bind- ing. The assent of the shipper must appear before be can be bound. Ib. 2428. A railway company has a right to exempt itself by contract from liability for loss or damage to goods delivered to it for carriage, except where the same is caused by negligence of its own servants. /. C. R. R. v. Jonte, 13 Bradw. 424. 2429. The contract in this case does not violate the statute which prohibits common carriers from limiting their common law liability to safely deliver, by a stipulation in the receipt, for the limitation to the liability of the carrier is not expressed in the receipt given by the carrier. Statute does not prohibit contracts limiting liability made independent of receipt. I. C. R. R. v. Jonte, 13 Bradw. 424. 2429a. Whether a shipper knew of the terms and conditions of a bill of lading and assented thereto, are questions of fact to be deter- mined by the jury from the evidence. L. S. & M. S. Ry. v. Davis, 16 Bradw. 425. 2430. In attempting to prove the shipper's knowledge of or assent to the terms of the bill of lading, the carrier is not limited to evi- dence of any one particular fact, but may prove all the circumstances surrounding the transaction which have any legitimate tendency to establish the shipper's knowledge or assent. Ib. 2431. A common carrier cannot by contract stipulate for com- plete indemnity against his gross negligence: as to the right to stipu- late for a partial exemption from his full liability authorities pro and con cited. C., R. I. & P. R. R. v. Harmon, 17 Bradw. 640. AND EMINENT DOMAIN. 287 2432. A special contract providing that no claim for loss by delay in transportation shall be payable or recoverable, but shall be absolutely barred, unless a written statement of it shall be made out and sent by the shipper to the general freight agent of the company within five days after such loss occurs, is valid and binding. C. & A. R. R. v. Simms, 18 Bradw. 68. 2433. A clause in a receipt restricting the carrier's liability to his own lines and for safe delivery to next carrier, is binding on the shipper the same as if signed by him, if knowingly assented to by him. Fortier v. Penn. Co., 18 Bradw. 260. 2434. The limitation must be an affirmative one and the burden is on the company to show it. Fortier v. Penn Co., 18 Bradw. 260. 2435. A common carrier can limit his ordinary liability only by a special contract, and the acceptance of a receipt or bill of lading with printed conditions, or notice limiting the carrier's liability by the owner or shipper of goods without dissent, will not establish such a contract. Western Transit Co. v. HosTting, 19 Bradw. 607. 2436. In such case, it is necessary to show that the shipper knew of and assented to the exemption, and such assent must be shown by other and additional evidence, and is not the subject of presumption from the terms of the receipt alone. Ib . 2437. The lex loce governs as to the validity and construction of the contract of shipment, but in the absence of proof, it will be pre- sumed that the common law of another state is the same as in this state. Fortier v. Penn. Co., 18 Bradw. 264; Western Transit Co. v. Hosking, 19 Bradw. 607. 2438. Carrier may only by special contract with the owner or ship- per, limit his common law liability. York Co. v. III. C. R. R., 3 Wall. 107; 70 U. S. 107; same case, 1 Biss. 877. 2439. May by special contract limit his liability in case of fire. Van Sohaack v. Northern Transp. Co., 3 Biss. 394. 2440. Statute prohibiting carriers from limiting their liability does not apply to limitation of amount of liability, where shipper fails to state the value. Mather v. Am. Express Co., 9 Biss. 293. 2441. Statute does not prohibit carrier from contracting in bill of lading for benefit of insurance in case of loss. Phoenix Ins. Co. v. Erie & Western Transp. Co., 10 Biss. 18. 2442. Railway company is liable as a common carrier for loss of a car of another carrier while such car is being hauled by railway com- pany over its line. P. & P. U. Ry. v. C., R. I. & P. Ry., 109 111. 135. 2443. TO FUENISH AX, SAW, SLEDGE, ETC., EOE EACH CAE. 34. That every railroad corporation shall furnish each car used for the transportation of passengers with one woodman's ax, one hand-saw, one sledge hammer and two leather buck- ets; said articles to be kept in good repair, ready for instant use, and in some convenient place in such car, easy of access in case of collision or other accident. [K. S., p. 1019, 97; S. & C., p. 1948, 97; Cothran, p. 1160, 83.] 2444. FUENISH COUPLINGS PENALTY. 34|. It shall be the duty of all railroad corporations operating any railroad in this state, to provide such of their passenger cars as are used in trains with some suitable automatic coupling, or other coupling which will secure personal safety, within one 288 EAILBOADS, WAKEHOUSES, year from the time this law goes into effect, and any company refusing or neglecting to provide such automatic coupling, or other couplings which will secure personal safety, for each passenger car so used in trains, shall be liable to a fine of not less than 25 nor more than $50. [R S., p. 1019, 98; S. & C., p. 1948, 98; Cothran, p. 1160, 84] 2445. Company liable to brakeman for an injury to his hand caused by defective coupling on cars. T., W. & W. Ry. v. Fredericks, 71 111. 294. 2446. Company will not be liable for an injury to freight conduc- tor received in consequence of the coupling 1 of freight car suddenly getting out of repair, unless its attention has been called to it, or it could by great care have discovered the defect, and had opportunity to make the needed repairs. /., B. & W. R. R. v. Flanigan, 11 111. 365. 2447. Company will not be liable to an employe for personal injury received while coupling cars having double buffers, simply because a higher degree of care is required in using them than in those differ- ently constructed. Ib. 2448. Where a brakeman in uncoupling a combination car to be left on a switch, which has a railing, instead of remaining on such car as it was his duty, gets upon a flat car next to it, and is injured in con- sequence of a jerk in starting, his own negligence will bar a recovery by him. C. & A. R. R. v. Rush, 84 111. 570. 2449. Injury to brakeman while coupling, from other defects. C. & E. III. R. R. v. Rung, 104 111. 641. 2450. FLAGMEN SHELTEE. 35. In all cases where the public authorities having charge of any street over which there shall be a railroad crossing, shall notify any agent of the corporation owning, using or operating such railroad, that a flagman is necessary at such crossing, it shall be the duty of such railroad company, within sixty days thereafter, to place and retain a flagman at such crossing, who shall per- form the duties usually required of flagmen; and such flag- man is hereby empowered to stop any and all persons from crossing a railroad track when, in his opinion, there is danger from approaching trains or locomotive engines ; and any rail- road company refusing or neglecting to place flagmen, as required by this section, shall be liable to a fine of $100 per day for every day they shall neglect or refuse to do so; and it is hereby made the duty of such public authorities having charge of such street, to enforce the payment of such fine, by suit, in the name of the town or municipal corporation wherein such crossing shall be situate, before any court of competent jurisdiction in the county, and the prosecuting attorney shall attend to the prosecution of all suits as directed by said public authorities. All the moneys collected under the provisions of this act shall be paid into the treasury of the town or mu- nicipal corporation in whose name such suits shall have been brought: Provided, that when any railroad company is required to keep a flagman at a crossing, it shall have the AND EMINENT DOMAIN. 289 right to erect and maintain in the highway or street crossed a suitable house for the shelter of such flagman, the same to be so located as to create the least obstruction to the use of such street or highway, and afford the best view of the rail- road track in each direction from such crossing. [L. 1869, p. 314, 8; E. S. 1887, p. 1019, 99; S. & C., p. 1948, 99; Cothran, p. 1160, 85. See ante, 145, 146.] 2451. Company liable to one injured by neglect to have a person stationed on rear end of cars pushed through a city, or on ground to give warning. /. C.R.R. v. Ebert, 74 111. 399. 2452. Company not liable for an injury to a switchman for not providing rules whereby a watchman should have been kept on rear end of train that produced the injury, a watch or look-out being kept from the engine. C, & N. W. Ry. v. Donahue, 75 111. 106. 2453. Absence of watchman at a much frequented street crossing whose duty it was to warn persons crossing the tracks of danger, makes the company liable for an injury caused thereby. St. L., F. & T. H. R. R. v. Dunn, 78 111. 197. 2454. Duty of railway companies to give warning at street cross- ing. P. &. P. U. Ry. v. Clayberg, 107 111. 644; C.. R. /. & P. R. R. v. Eininger, 114 111. 79; C.& A.R.R. v. Qretzner, 46 111. 74; C. & A. R. R. v. McLaughUn, 47 111. 265. 2455. PENALTIES. 36. If any railroad corporation, or any of its agents, servants or employes shall violate any of the provisions of this act, such corporation, agent, servant or employe shall, severally, unless otherwise herein provided, be liable to a fine of not less than $10 nor more than $200, to be recovered in an action of debt, in the name of the people of the state of Illinois, for the use of any person aggrieved, before any court of competent jurisdiction. [E. S., p. 1019, 100; 8. & C., p. 1948, 100; Cothran, p. 1160, 86.] 2456. Under prior statute giving a special remedy for failure to ring a bell or whistle before reaching a public road crossing, and also a general remedy for any failure to comply with act, it was held that the action for the penalty might be prosecuted in either form of action. T., P. & W. Ry. r. Foster, 43 111. 480. 2457. CORPORATION DEFINED. 37. The word "cor- poration," as used in this act, shall be construed to include all companies, lessees, contractors, persons, or association of persons, owning operating or using any railroads in this state. [E. S. 1887, p. 1019, 101; S. & C., p. 1949, 101; Cothran, p. 1161, 87.] 2458. CONTRACTORS. Corporation liable for the acts of its con- tractors exercising its corporate powers . Lesher v. Wab. Nav. Co., 14 111. 85; Hinde v. Wab. Nav. Co., 15 111. 72; C., St. P. & F. D. L.R. R. v. McCarthy, 20 111. 385. 2459. Railway company cannot release itself from liability by leas- ing its road. O. & M. R. R. v. Dunbar, 20 111. 623. 2460. Liable for the torts and trespasses of its lessees, and for the torts and acts of its contractors. C. & R. I. R. R. v. Whipvle,.22 111. 105. -20 290 RAILROADS, WAREHOUSES, 2461. Where a railway company allows another company to use its unfenced road, and the latter kills stock upon the track each will be liable. /. C. R. R. v. Kanouse, 39 111. 272. 2462. Where two companies are using the same line of road, one company being the owner and the other using the road by its permis- sion, the company owning the track is liable i'or damages done by reason of an unfenced track, by the trains of the other company, the same as if done by its own trains, and the other also will be liable. T., P. & W. Ry. v'. Rumbold, 40 111. 143. 2463. As to liability of private owner for negligence of his con- tractor see Schwartz v. GUlmore, 45 111. 455; Scammon v. Chicago, 25 111. 424, 438; Pfau v. Williamson, 63 111. 16; P.S. Loan and Trust Co. v.Doig, 70111. 52; Hale v. Johnson, 80 111. 185; Kipperly v. Ramsden, 83 111. 354. 2464. Lessor company liable for injuries to its passengers caused by the negligence of another company which it allows to use its road. /. C.R. R. v. Barron, 5 Wall. 90; 1 Biss. 412. 2465. The owner of posts taken and used by railway contractors in fencing the company's track, may maintain trover against the company for the value of the posts. St. L., F. & T. H. R. R. v. Kaul- brumer, 59 111. 152. 2466. Where the wrongful act is done by contractors or lessees of a chartered company in pursuance of the special powers and privi- leges conferred upon the company by its charter, and but for such charter they would have no right to prosecute the particular business, such contractors or lessees, as to third parties who may be injured by their acts will be regarded as the servants of the company acting under its direction, and the company will be held liable for any abuse of such of its privileges by its contractors or lessees. West v. 8t. L., V.& T. H. R. R., 63 111. 545. 2467. Company not liable to a servant of contractors employed to build a freight house, who was poisoned by breathing a noxious exhalation from an ingredient in the paint. J6. 2468. Where the contractors of a railway company are guilty of trespasses upon the land of another in constructing the road, the com- pany will be liable for their acts; and if the injury is wanton or will- ful the company mav be required to respond in exemplary damages. R., R. L & St. L. R. R. v. Wells, 66 111. 321. 2469. Where lease is unauthorized by law, the lessees will only be regarded as the servants of the company owning the road, and the latter will not be released from any of its contracts and obligations. 0., 0. & F. R. V. R. R. v. Slack, 79 111. 262. 2470. A railway company which fails to fence its track is liable for any damage resulting from such failure, whether caused by its own trains, or those of another company using its track. Either com- pany is liable. E. St. L. & C. Ry. v. Gerber, 82 111, 632. 2471. A railway company holding the franchise and exclusive right to operate a railroad, must so use it as not to endanger passen- gers or property, whether the use be by themselves, or others they may permit to use the road. The company owning the road and franchise is liable for an injury to a passenger through the negligence of its lessees, or of another company using the road by its permis- sion. P. & R. I. R. R. v. Lane, 83 111. 448. 2472. If a switch on a railroad is not properly locked, or otherwise secured, whether by the neglect of the employes of the company own- ing the same, or its lessees, or if the switch is not properly constructed and maintained, and injury is thereby occasioned to a passenger on a AND EMINENT DOMAIN. 291 train operated by the lessees, the company owning the road and fran- chise will be liable. Ib. 2473. Company is liable for the trespass of hands employed by its contractors while engaged in the construction of its road, and where the fact appears that the trespass consists in entering upon the plain- tiff's land and digging up the soil, and making embankments, it is not error to refuse evidence that the company had nothing to do in employing the hands doing the work, but that they were employed and paid by the contractors. C. & St. L . JR. R. v. Woosley, 85 111. 370. 2474. The lessee of a railroad, who by contract, permits another company to use the road, is liable for the negligent acts of the latter company. P., C. & St. L. Ry. v. Campbell, 86 111, 443. 2475. By accepting and acting under its charter, the company be- comes a common carrier and con not exonerate itself from its duty and liability by contract with others, or otherwise, unless released by the legislature. W., St. L. & P. Ry. v. Peyton, 106 111. 534. 2476. Where one company acquires the right to run its trains over a portion of another company's road by contract, in which it is agreed that the leased road shall be under the control and direction of the yard-master or other servant of the lessor, the yard-master of the lessor will at such place and for the time being, be the servant of the lessee, which will be liable for any injury caused by his negligence. Ib. 2477. Railway company is held to the same care for the safety of all persons while exercising its franchises, whether on its own road or that of another company. If it operates its trains over the road of another by contract or lease, it must see and know that the track is in a good and safe condition, not only for the safety of its passen- gers, but also for the safety of persons rightfully near to the track and liable to injury by its being used when in an unsafe condi- tion. Ib. 2478. Where a railway company procures, by contract with an- other company, the right of running its trains into and out of a depot over the track of the latter, it thereby makes that portion of the track so used, its own, in so far that it will be responsible for all injuries resulting from negligence in keeping or permitting it to be in an un- safe condition. Ib. 2479. Where the trains of a railway corporation are made up by the employes of another company and on the track of the latter, and cars used to make up the same, belong to other companies, if the use of the cars and tracks and labor in making up such trains, is to enable such first named corporation to exercise its franchise, &c., such cars, tracks and servants, so far as the rights of its passengers who may receive an injury are concerned, must be regarded as the cars, tracks and servants of the company so using the same. H. & St. J. R.R.\. Martin, 111 111. 219. See, also, Union Ry. & Transit Co. v. Kattaher, 114 111. 325. 2480. Where a railway company operating its road in its own name, contracts with another company to make up its train in the depot of the latter, the former company is liable for an injury to a passenger occurring on its train while being made up by the servants of the latter, and it makes no difference that the servants were em- ployed and paid by the latter road. H. & St. J. R. R. v. Martin, 11 Bradw. 386. 2481. Liable for defect in cars of foreign corporation which jt uses. C. & A. R. R. v. Sragonier, 11 Bradw. 516. 2482. Railway corporations are liable for injuries by the wrongful 292 EAILBOADS, WAREHOUSES, acts of any lessee, contractor or other person, done in the exercise, by its permission, of any of its franchises; but this. liability is limited to "wrongs done by them while in the performance of acts which they would have had no right to perform except under the charter of the company" sought to be made liable. St. L . , A. & T. H. R. R. v. Balsley. 18 Bradw. 79. 2483. STREET RAILROADS. 38. This act shall not apply to horse cars or street railroads. [ 39, repeal, omitted. See "Statutes," ch. 131, 5. E. S. 1887, p. 1019, 102; S. & C., p. 1949, 102 and 103; Cothran, p. 1161, 88.] An act relating to fires caused by locomotives. Approved and in force March 29, 1869. 2484. FIRES BY LOCOMOTIVES. 1. Be it enacted by the people of the state of Illinois, represented in the general assembly, That in all actions against any person or incorpo- rated company for the recovery of damages on account of any injury to any property, whether real or personal, occa- sioned by fire communicated by any locomotive engine while upon or passing along any railroad in this state, the fact that such fire was so communicated shall be taken as full prima facie evidence to charge with negligence the corporation, or person or persons who shall, at the time of such injury by fire, be in the use and occupation of such railroad, either as owners, lessees or mortgagees, and also those who shall at such time have the care and management of such engine; and it shall not, in any case, be considered as negligence on the part of the owner or occupant of the property injured, that he has used the same in the manner, or permitted the same to be used or remain in the condition it would have been used or remained had no railroad passed through or near the property so injured, except in cases of injury to personal property which shall bo at the time upon the prop- erty occupied by such railroad. This act shall not apply to injuries already committed. 2484a. ACT TAKES EFFECT. 2. This act shall take effect and be in force from and after its passage. [ L. 1869, p. 312. K. S. 1887, p. 1020, 103, 104; S. & C., p. 1949, 104, 105; Cothran, p. 1161, 89, 90. See ante, 1800-1806. ] 2485. Negligence will be implied from the escape of fire from a locomotive, and the burden of proof lies on railway company to show that all the most approved mechanical appliances were used on the engine to prevent the escape of fire. Bass v. C., B. & Q. R. R., 28 111. 9. 248ft. In an action against a railroad company for an injury to property by fire escaping from one of its passing locomotives, the bur- den of proving that the engine was properly guarded to prevent the escape of sparks, is upon the company. It is bound to use all possible diligence to prevent such escape. St. L., A. & T. H. R. R. v. Mont- gomery, 39 111. 335. 2487. In an action against a railway company to recover for the burning of a warehouse and goods therein by the escape of sparks AND EMINENT DOMAIN. 293 from a locomotive, the employment of an unnecessary amount of steam by which an undue quantity of sparks are emitted, constitutes negli- gence. Great Western R. R. v. Haworth, 39 111. 346. 2488. If it is true that sparks are emitted from a locomotive in proportion to the amount of steam applied, it will be negligence while passing near buildings, to apply to the engine an unnecessary amount of steam. Ib. 2489. CONTRIBUTORY. It is for the jury to determine from the evidence whether the injury resulted from an unnecessary exposure of the building by the owner, or by an undue amount of sparks emitted from the locomotive. Id. 2490. Where the owner of a building exposes it to such a degree of danger that it will most probably be destroyed, he cannot recover, unless the party causing the injury is shown to have been guilty of greater negligence; and such owner, when he permits the windows to remain open and unglazed, and other openings in the building to go unrepaired, so that fire emitted from a passing engine is liable to be blown into it, is guilty of negligence, and cannot recover for loss, unless greater negligence on the part of the company is shown. Ib. 2491. Railway companies should use all the appliances of science, and the highest degree of diligence to prevent the destruction of prop- erty contiguous to their Tines by means of lire escaping from their passing trains. St. L., A . & T. H. R . R . v. Qilham, 39 111. 455. 2492. By failing to provide the most approved appliances for arresting sparks from their engines, by running poor engines, or those out of order, a railroad company becomes liable for all casualties occa- sioned thereby. J. C. R. R. v. McClelland, 42 111. 355. - 2493. And an engine which throws sparks into a meadow 100 feet from the track of the road, is not provided with proper appliances for arresting its own sparks; and evidence of such fact is properly ad- mitted to show the character of the engines in use on a road at a particular time. Ib. 2494. It is sufficient if the proof sustains substantially any one of the counts, and the plaintiff is not confined to the proof of the precise place where the fire originated. It is immaterial whether it com- menced on the right of way of defendant or not. 76. 2495. Where it appears that fire has escaped from a railroad loco- motive, it will be presumed that the company were not employing the best known contrivances to retain the fire, and it will, to rebut the presumption, devolve upon the company to show that such machinery was thus employed and in repair. The design of the statute is that railway companies shall use all reasonable precautions to prevent the escape of fire, and they will be held to the discharge of that duty. /. C. R. R. v. Mills, 42 111. 407. 2496. It is not a conclusion of law that a railway company is guilty of negligence by permitting grass and weeds to remain on its right of way, and become dry and combustible, which ignite and communicate to adjoining lands. It is a question of fact to be determined by the jury in view of the extent to which grass and weeds have been allowed to accumulate in the particular locality, the season of the year and all other circumstances affecting the liability of fire to communicate. Ib. 2497. Same care to keep right of way clear of combustible matter as of an individual under same danger. Ib. 2498. The fact that fire has escaped from a locomotive by which plaintiff's property is burned, is not conclusive evidence of. the com- pany's liability. It is not an insurer against the escape of fire from its engines. I. C. R. R. v. Mills, 42 111. 407. 294 RAILROADS, WAREHOUSES, 2409. It is not negligence per se for a railroad to suffer grass and weeds to accumulate on its right of way; the fact, however, is proper evidence for the jury, who may find negligence from it. O. & M. R. R. v. Shanefelt, 47 111. 497. 2500. If owner of contiguous lands suffer weeds and grass to ac- cumalate thereon, so that a fire commencing on the right of way is communicated to his premises, his negligence will be held as con- tributing to his loss, and he cannot recover unless the negligence of the company is greater than his. Ib. 2501. A railway company is held to the same, but no higher duty to keep its right of way free from grass or weeds, than are the adjoin- ing land-owners and proprietors, to keep the adjoining lands free from grass and weeds. Rule in Bass v. C., B. & Q. R. R., 28 111. 9, was not concurred in by a majority of the court. /. C. R. R. v. Frazier, 47 111. 605. 2502. The question of comparative negligence on the part of a plaintiff and the railway company in respect to the accumulation of combustible material, are questions of fact and properly left to a jury. /. C. R. R. v. Nunn, 51 111. 78. 2503. Railway companies are required to provide and keep con- stantly in use, and in proper repair the most approved machinery to prevent the escape of fire from their engines, to the injury of property along their lines. If notwithstanding the use of such machinery, sparks escape and a fire is thereby communicated to buildings, the company will not be deemed guilty of negligence, unless the damage results from the neglect of some other duty. T., P. & W. Ry. v. Pin- dar, 53 111. 447. 2504. But even with the use of the best appliances to prevent the escape of fire, if through the overloading of the engine, the escape of fire and sparks is produced to a dangerous extent, the company will be deemed guilty of gross negligence. Ib. 2505. Where fire is communicated to a building through the negli- gence of a railway company, the owner cannot recover for the loss of such portion of the property as he could, easily and without danger, have saved from destruction. T., P. & W. Ry. v. Pindar, 53 111. 447. 2506. In this case it was claimed that a large sum of money was burned in a house to which fire had been communicated by the alleged negligence of a railway company. The money could have been se- cured with but slight effort and without danger to the owner: Held, that the company was not liable for the loss of the money by reason of the neglect of the owner to save the same. 76. 2507. Whether or not the injury is not too remote is a question of fact for the jury under instructions. Ib. Fent v. T., P. & W. Ry., 59 111. 349. 2508. Where fire is ignited on the right of way of a railroad com- pany by reason of the accumulation of dry grass and weeds thereon, and communicated to the adjoining fields by the negligence of the owner in not keeping them free from combustible material, the owner cannot recover for the injury, unless the negligence of the company is greater than his own. C. & N.W. Ry. v. Simonson, 54 111. 504. 2509. It is erroneous in the instructions to base the plaintiff's right of recovery wholly on the question of the negligence of the com- pany, ignoring the doctrine of contributory negligence on the part of the plaintiff. Where the adjoining land is wood laud, that fact should be considered by the court in the instructions, as abating the degree of diligence required of the land-owner. Ib. 2510. Under the act of 1869 the mere proof of the fact that the fire AND EMINENT DOMAIN. 295 was caused by sparks from the engine, constitutes prima fade evi- dence of negligence on the part of the company, and the burden of proof rests upon it to rebut this presumption. C. & N. W, By. v. Mo- Cahill, 56 111. 28. 2511. Proof of the fact that the engine threw out an unusual quan- tity of fire was held sufficient to overcome any direct evidence given that it was in good order, or if in good order, that it was skillfully managed by the engineer. Ib. 2512. If fire is communicated from a railway locomotive to the house of A. and from that to the house of B., it is not a conclusion of law that the fire from the locomotive is the remote and not the proxi- mate cause of the injury to B., but that is a question of fact for the jury. Pent v. T., P. & W. Ry., 59 111. 349. 2518. Where loss has been caused by an act, and it was under the circumstances a natural consequence which any reasonable person could have anticipated, then the act is the proximate cause. Ib. 2514. Experience having shown that railway companies by the use of certain mechanical contrivances can prevent the emission of fire sparks from locomotive engines, in such quantities at least, as not to be at all dangerous to property in the immediate vicinity, they must in every instance, be held to a strict performance of their duties in that regard. C, & A. R.R. v. Quaintance, 58 111. 389. 2515. If such companies use all proper and reasonable precaution to prevent the escape of fire from their engines by the application of the best and most approved mechanical appliances for that purpose, and keep the same constantly in good repair while in use, and care- fully and skillfully managed by competent and prudent engineers, and nevertheless fire results, they will not be liable for the damage . Ib. 2516. The act of 1869 makes the fact of injury from the escape of fire from the engine full prima facie evidence of negligence on the part of the company, and throws the burden of proof on the company to show by affirmative evidence, that the engine at the time was equipped with the necessary and most effective appliances to prevent the escape of fire, and that the engine was in good repair, and was properly, carefully and skillfully handled by a competent engineer. Ib. 2517. It is not enough to rebut this prima facie case to show that the engine was originally constructed with the best and most approved inventions to prevent the escape of fire . The law requires a constant and vigilant watch to see that the engines are kept in proper repair, so as not to be dangerous, &c. Ib. 2518. It is negligence to use wood in a coal burning engine while running, for the reason that the meshes of the iron netting used to pre- vent the escape of fire sparks are made much larger when coal only is used for fuel, and the fine sparks from wood are much more dan- gerous, because they retain the fire for a much greater length of time. To use wood in such an engine in a dry time with a high wind pre- vailing is great carelessness and recklessness. C. & A. R. R. v. Quain- tance, 58 111. 389. 2519. Evidence tending to prove the safe condition of the engine admissible. Ib. 2520. Where a railway company suffers a heavy growth of dry grass to remain on its right of way through plaintiff's premises, and fire is communicated from the locomotive of a freight train, while laboring to ascend a heavy grade, to the grass and weeds in the right of way, and from thence to the fence and grass of the plaintiff, which are destroyed, the company will be liable for the loss. R., R. I. & St. L. R. R. v. Rogers, 62 111. 346. 296 KAILROADS, WAREHOUSES, 2521. Where fire is communicated from a locomotive engine of a railway company and thereby destroys the property of another, the presumption of negligence on the part of those having the care and management of the engine, created by statute, will not be sufficiently rebutted by proof, that the engine was at the time of the injury, pro- vided with the best mechanical contrivances to prevent the escape of sparks, and that they were in good order. It should be further shown that the engine was properly managed. C. & A. R. R, v. Clampit, 63 111. 95. 2522. Permitting dry grass and weeds to accumulate on right of way whereby fire is communicated to plaintiff's premises, is negli- gence. /. C. R. R. v. Frazier, 64 111. 28. 2523. The law holds railway companies in the use of steam as a motive power, to a very high degree of care and skill in the use of the most effective appliances to prevent the emission of fire sparks and in the employment and retention of servants in charge of them, so as to prevent loss to property. T., W. & W. Ry. v. Larmon, 67 111. 68. 2524. Railway companies are not insurers against loss by fire from their engines. If they use the highest degree of care and skill to pre- vent such injury, any loss occurring must fall upon the owner. ^., W. & W. Ry. v. Larmon, 67 111. 68. 2525. It is error to instruct that the destruction of property by the escape of fire from an engine is of itself, evidence of negligence on the part of the defendant. The statute makes such fact, only primafatie evidence of negligence. Ib. 2526. PLEADING declaration. An averment in a declaration that it was the duty of the defendant to keep its right of way free from dry grass and weeds, and to so construct and operate its locomotives, as to prevent the escape of fire to the adjoining property, &c., is substanti- ally an averment, that it was the duty of the company to provide its locomotives with the best appliances to prevent the escape of fire, and to so use them that it would not be liable to escape; and the perform- ance of this duty is sufficiently negatived by an averment that the engine was so negligently used, that the fire did, by reason of such neg- ligence, escape and produce the injury complained of. T., W. & W. Ry. v. Corn, 71 111. 493. 2527. Company not required to provide and use the best known appliances that mechanical skill and ingenuity have been able to devise and construct to prevent the escape of sparks from its locomo- tives, without reference to whether the company could by any degree of effort, know of such inventions or not, or whether they have been tested and proved to be the best. Ib. 2528. It is not bound to purchase the patent for every invention claimed to be an improvement on such machinery and test it; but when such an invention has been tested and approved as superior to that it is using, it is required to adopt and use the better machinery. Ib. 2529. Where property is destroyed by fire caused by sparks thrown from a passing engine, through the negligence of the servants of the company, and the destruction of the property is, under the circum- stances of the case, a natural consequence, which any reasonable per- son could have anticipated, then the act of throwing the sparks which originated the fire, is a proximate cause, whether the property des- troyed is the first or tenth, the latter being so situated that its destruc- tion is a consequence reasonably to be anticipated from setting the first on fire, and the company will be liable. But if the destruction of the property is not the natural and proximate consequence of the escaping of the sparks, and consequent firing of the first building, AND EMINENT DOMAIN. 297 then the company will not be liable. T., W. & W. Ry. v. Muthers- baugh, 71 111. 572. 2530. A warehouse standing near the railroad track was set on fire by sparks escaping from an engine of the company, there being at the time a strong wind blowing in the direction of the plaintiff's stable, which was situated 101 rods from the warehouse, and there was no combustible matter intervening. The high wind carried the brands from the warehouse to the stable which caused it to take fire and burn up: Held, that the burning of the stable was not the natural and prox- imate consequence of the burning of the warehouse, and that the company was not liable for the burning of the stable. T., W. & W. Ry. v. Muthersbaugh, 71 111. 572. 2531. Where a party erects his building at a reasonably safe dis- tance from the railroad track, he cannot be held guilty of negligence because his building is so situated as to be liable to be set on fire by another subsequently erected in a dangerous proximity to the track. T., W. & W. Ry. v. Maxfield, 72 111. 95 . 2532. VARIANCE. Where the declaration alleges. that plaintiff's stacks were set on fire by sparks from the defendant's locomotive, evidence that they were destroyed by a fire which originated in another field, even though such fire was occasioned by sparks from the defend- ant's engine, will not sustain the averment and plaintiff cannot recover. T., W. & W. Ry. v. Morgan, 72 111. 155. 2533. It is not sufficient to overcome the statutory presumption of negligence from the escape of fire, to show that the engine was equipped with the proper appliances to prevent the escape of fire, and that the same was in good order, but it is also necessary to show that the engine was properly handled and managed by a competent and skillful engineer. St. L., V. & T. H. R. R. v. Funk, 85 111. 460. 2534. Under the statute a railway company in the use of a railroad as lessee or otherwise, is guilty of negligence if it fails to keep the right of way clear from all dead grass, weeds, &c., and for such neglect is made liable for injuries to others from the escape and transmission of fire from its engines. P., C. & St. L. Ry. v. Campbell, 86 111. 443. 2535. The communication of fire by any locomotive while on or passing over any railroad, affords full prima facie evidence to charge the corporation or persons in the use of such road as owner, lessee or mortgagee, under the statute with negligence in not keeping the right of way free from combustible matter, and in the use of the engines and for not having them in all respects in a good and safe condition. Proof of the communication of fire makes a case entitling the plain- tiff to recover against any company using or occupying the road. P., C. & St. L. Ry. v. Campbell, 86 111. 443. 2536. If the servants of a railway company, to free its right of way from dry grass and combustible matter, put out a fire on the same on a day when the wind is high, and the fire escapes from them upon the lands of plaintiff without his negligence or fault, and in- jures his apple trees, the company will be liable. O. & M. Ry. v. Por- ter, 92 111. 437- 2537. The law requires a railroad company, in operating its trains, to use every possible precaution, by the use of all the best and most approved mechanical inventions to prevent loss from the escape of fire or sparks along the line of its road, and such company will be liable for a loss by fire caused by a neglect of such duty where the owner of the property is free from negligence. C. & A. R. R. v. Pen- nell, 94 111. 448. 2538. A party who erects a building on or near a railroad track knows the dangers incident to the use of steam as a motive power, 298 RAILROADS, WAREHOUSES, and must be held to assume some of the hazards connected with its use on such thoroughfares. While he has the right to build near the track, yet if he does so, he is bound to a higher degree of care in pro- viding proper means to protect his property, than if otherwise situ- ated. He must also use all reasonable means to save his property in case of fire. Ib. 2539. Where a building near a railroad track is set on fire through the negligence of the railway company, the owner cannot recover for the loss of such property as he could easily and without danger have saved from destruction. C. & A. R. JR. v. Pennell, 94 111. 448. 2540. The statute which declares that in actions for damages for injury to property "occasioned by fire communicated by any locomo- tive engine while passing along any railroad" shall be prima fatie evidence "to charge with negligence," the owner or operator of the road at the time, was intended to charge upon the company using the locomotive all injuries which are shown to have resulted from fire from a passing train, unless the company can rebut such presumption by proof showing that the loss was not occasioned by its negligence. C. & A. R. R. v; Pennell, 110 111. 435. 2541. PROXIMATE CAUSE. Where a railway company through negligence, by the escape of fire from an engine, sets fire to a depot, from which a hotel in the vicinity is destroyed, to make the company liable to the owner of the hotel, it is not necessary that the burning of the hotel should be so certain to result from the burning of the depot that a reasonable person could have foreseen that the hotel would burn, or that it probably would. It is enough if it be a consequence so natural and direct that a reasonable person might and naturally would see that it was liable to result from the burning of the depot. Ib. 2542. In an action to recover the value of a stack of hay alleged to have been burned by fire communicated from a locomotive, an instruction that if the jury believe the hay was destroyed by fire com municated from one of defendant's engines, and that defendant's right of way was not free from dry grass and other combustible mat- ter at the place where the fire started, &c., is erroneous, in assuming that the fire originated on defendant's right of way. C. & A. R. R. v. Bloomfield, 1 Bradw. 211. 2543. Error to instruct that defendant must show not only that the engine was supplied with the best and most approved appliances to prevent the escape of sparks at the time of the fire, but also that the engine was originally so constructed. Sufficient if it was properly constructed at time of fire. C. & N. W. Ry. v. Boiler, 1 Bradw. 625. 2544. In an action for damages caused by tire escaping from an en- gine, an instruction for the plaintiff which fails to include the ques- tion whether the engine was supplied with proper appliances for arresting sparks, is erroneous, where there is testimony tending to prove that fact. C. & A. R. R. v. Smith, 10 Bradw. 359. 2545. Where the evidence shows that the engines causing the fire were equipped with the best and most approved appliances for pre- venting the escape of fire or sparks, and were properly and prudently managed, and no negligence on the part of the company is shown, no recovery can be had for the setting on fire an adjoining building. C. & A. R. R. v. Smith, 11 Bradw. 348. 2546. Where damage is caused by a fire communicated to prop- erty from sparks of an engine, the prima fac-ie case made out under the statute (section 89) is rebutted by the company showing that at the time of the accident, the engine, smoke stack and spark arrester were all safe and in good order, and the engineer in charge of the loco- AND EMINENT DOMAIN. 299 motive was experienced and competent and properly performed his duty. /., B. & W. Ry. v. Craig, 14 Bradw. 407. 2547. In an action for damages resulting from a fire set by de- fendant's locomotive in January, evidence that defendant cut and burned the grass and weeds upon its right of way in September or October previous, is not sufficient to show a compliance with the law. Ind., B. & W. Ry. v. Nicewander, 21 App. Rep. 305. 2548. Whether corporation is guilty of negligence under this statute is a question of fact. Ib. PROTECTION OF PASSENGERS. An act for the protection of passengers on railroads and steamboats. Approved May 14, 1877. In force July 1, 1877. [Laws of 1877, p. 166. As amended by an act ap- proved May 29, 1879. In force July 1, 1879. Laws of 187, p. 23. R. S. 1887, p. 1020, 105-107; 8. & C., p. 1950, 106-108; Cothran, p. 1161, 1162, 91-93.] 2549. 1. -Be it enacted by the people of the state of Illinois, represented in the general assembly, That an act entitled "An act for the protection of passengers on rail- roads," approved May 14, 1877, in force July 1, 1877, be amended so as to read as follows : "An act for the protection of passengers on railroads and steamboats." 2549. CONDUCTOES INVESTED WITH POLICE POWERS. 2. That the conductors of all railroad trains, and captain or master of any steamboat carrying passengers within the juris- diction of this state, shall be invested with police powers while on duty on' their respective trains and boats. 2550. EJECTION OF PASSENGER FROM TRAIN. 3. When any passenger shall be guilty of disorderly conduct, or use any obscene language, to the annoyance and vexation of pas- sengers, or play any games of cards, or other games of chance for money or other valuable thing, upon any railroad train or steamboat, the conductor of such train, and captain or master of such steamboat, is hereby authorized to stop his train or steamboat, at any place where such offense has been commit- ted and eject such passenger from the train or boat, using only such force as may be necessary to accomplish such re- moval, and may command the assistance of the employes of the railroad company or steamboat, or any of the passengers, to assist in such removal; but before doing so he shall tender to such passenger such proportion of the fare he has paid as the distance he then is from the place to which he has paid his fare, bears to the whole distance for which he has paid his fare. 2551. WHEN PASSENGER MAY BE ARRESTED. 4. When any passenger shall be guilty of any crime or misdemeanor upon any train, or steamboat, the conductor, captain or mas- ter, or employes of such train, or boat, may arrest such pas- senger and take him before any justice of the peace, in any county through which such boat or train may pass, or in 300 EAILROADS, WAREHOUSES, which its trip may begin or terminate, and file an affidavit before such justice of the peace, charging him with such crime or misdemeanor. STRIKES AND OBSTRUCTIONS OF RAILROADS. An act to prohibit any person from obstructing the regular operation and conduct of the business of railroad companies or other corporations, firms or individuals. Appro- ved June 2, 1877. In force July 1, 1877. [L. 1877, p. 167; R. t*. 1887, p. 1030, 108-111 ; S. & C., p. 1951, 109-112; Cothran, p. 1162, 94-97.] 2552. ENGINEER NOT TO ABANDON ENGINE. 1. Be it enacted by the people of the state of Illinois, represented in the general assembly, If any locomotive engineer in further- ance of any combination or agreement, shall willfully and maliciously abandon his locomotive upon any railroad at any other point than the regular schedule destination of such locomotive, he shall be fined not less than twenty dollars, nor more than one hundred dollars, and confined in the county jail, not less than twenty days, nor more than ninety days. 2553. PERSONS OBSTRUCTING BUSINESS OF RAILROAD- FINE. 2. If any person or persons shall willfully and mali- ciously, by any act or by means of intimidation, impede or obstruct, except by due process of law, the regular operation and conduct of the business of any railroad company or other corporation, firm or individual in this state, or of the regular running of any locomotive engine, freight or passenger train of any such company, or the labor and business of any such corporation, firm or individual he or they shall, on conviction thereof, be punished by a fine not less than twenty dollars, ($20.00) nor more than two hundred dollars ($200.00), and confined in the county jail not less than twenty nor more than ninety days. 2554. CONSPIRACY TO IMPEDE BUSINESS. 3. If two or more persons shall willfully and maliciously combine or conspire together to obstruct or impede by any act, or by means of intimidation, the regular operation and conduct of the business of any railroad company or any other corpora- tion, firm or individual in this state, or to impede, hinder or obstruct, except by due process of law, the regular running of any locomotive engine, freight or passenger train on any railroad, or the labor or business of any such corporation, firm, or individual, such persons shall, on conviction thereof, be punished by fine not less than twenty dollars ($20.00), nor more than two hundred dollars ($200.00), and confined in the county jail not less than twenty days, nor more than ninety days. 2555. CONSTRUCTION OF ACT. 4. This act, shall not be construed to apply to cases of persons voluntarily quitting the employment of any railroad company or such other cor- AND EMINENT DOMAIN. 301 poration, firm or individual, whether by concert of action or otherwise, e[x]cept as is provided in section one (1) of this act. FKAUD IN RELATION TO TICKET. 2556. OWNER TO FURNISH AGENT CERTIFICATE OF AUTHOR- ITY TO SELL TICKETS. 1. Be it enacted by the people of the state of Illinois, represented in the general assembly, That it shall be the duty of owner or owners of any railroad or steamboat for the transportation of passengers, to provide each agent, who may be authorized to sell tickets, or other certificates entitling the holder to travel upon any railroad or steamboat, with a certificate setting forth the authority of such agent to make such sales; which certificate shall be duly attested by the corporate seal of the owner of such railroad or steamboat. 2557. NOT LAWFUL FOR PERSON NOT HAVING SUCH AUTHOR- ITY TO SELL TICKETS. 2. That it shall not be lawful for any person not possessed of such authority, so evidenced, to sell, barter or transfer, for any consideration whatever, the whole or any part of any ticket or tickets, passes, or other evidences of the holder's title to travel on any railroad or steamboat, whether the same be situated, operated or owned within or without the limits of this state. 2558. PENALTY FOR VIOLATING ACT. 3. That any per- son or persons violating the provisions of the second section of this act shall be deemed guilty of a misdemeanor, and shall be liable to be punished by a fine not exceeding five hundred dollars, and by imprisonment not exceeding one year, or either, or both, in the discretion of the court in which such person or persons shall be convicted. 2559. AGENT TO EXHIBIT CERTIFICATE ON REQUEST. 4. That it shall be the duty of every agent who shall be author- ized to sell tickets, or parts of tickets, or other evidences of the holder's title to travel, to exhibit to any person desiring to purchase a ticket, or to any officer of the law who may request him, the certificate of his authority thus to sell, and to keep said certificate posted in a conspicuous place in his office for the information of travelers. 2560. DUTY OF OWNER TO PROVIDE FOR REDEMPTION OF TICKETS. 5. That it shall be the duty of the owner or owners of railroad or steamboat, by their agents or managers, to provide for the redemption of the whole, or any parts or coupons of any ticket or tickets, as they may have sold, as the purchaser, for any reason, has not used, and does not 302 RAILROADS, WAREHOUSES, desire to use, at a rate which shall be equal to the difference between the price paid for the whole ticket and the cost of a ticket between the points for which the proportion of said ticket was actually used; and the sale by any person of the unused portion of any ticket otherwise than by the presenta- tion of the same for redemption, as provided for in this section, shall be deemed to be a violation of the provisions of this act, and shall be punished as is hereinbefore provided: Provided, that this act shall not prohibit any person who has purchased a ticket from any agent authorized by this act, with the bonafide intention of traveling upon the same, from sell- ing any part of the same to any other person. 2561. PENALTY FOR FAILURE TO REDEEM TICKETS. 6. Any railroad or steamboat company that shall, by any of its ticket agents in this state, refuse to redeem any of its tickets or parts of tickets as prescribed in section five of this act, shall pay a fine of five hundred dollars for each offense, to the people of the state of Illinois, and it shall be unlawful for said company, subsequent to such refusal, to sell any ticket or tickets in this state until such fine is paid. RECEIVING, CARRYING AND DELIVERING GRAIN. An act regulating the receiving, transportation and delivery of grain by railroad cor- porations, and defining the duties of such corporations with respect thereto. Approved April 25, 1871. In force July 1, 1871. [L. 1871. p. 636; E. S. 1887, p. 1022, 118; S. & C., p. 1952, 119; Cothran, p. 1164, 104.] 2562. RECEIVE AND CARRY GRAIN WITHOUT DISTINCTION. 1. Be it enacted by the people of the state of Illinois, rep- resented in the general assembly, That every railroad corpo- ration, chartered by or organized under the laws of this state or doing business within the limits of the same, when desired by any person wishing to ship any grain over its road, shall receive and transport such grain in bulk, within a reasonable time, and load the same either upon its track, at its depot, or in any warehouse adjoining its track or side track, without distinction, discrimination or favor between one shipper and another, and without distinction or discrimination as to the manner in which such grain is offered to it for transportation, or as to the person, warehouse or place to whom or to which it may be consigned. WEIGHING IN RECEIPT. And at the time such grain is received by it for transportation, such corporation shall care- fully and correctly weigh the same, and issue to the shipper thereof a receipt or bill of lading for such grain, in which shall be stated the true and correct weight. WEIGHING OUT SHRINKAGE. And such corporation shall weigh out and deliver to such shipper, his consignee or other person entitled to receive the same, at the place of AND EMINENT DOMAIN. 303 delivery, the full amount of such grain, without any deduc- tion for leakage, shrinkage or other loss in the quantity of the same. DAMAGES. In default of such delivery, the corporation so failing to deliver the full amount of such grain shall pay to the person entitled thereto the full market value of any such grain not delivered at the time and place when and where the same should have been delivered. EVIDENCE SHORTAGE. If any such corporation shall, upon the receipt by it of any grain for transportation, neglect or refuse to weigh and receipt for the same, as aforesaid, the sworn statement of the shipper, or his agent having personal knowledge of the amount of grain so shipped, shall be taken as true, as to the amount so shipped; and in case of the neg- lect or refusal of any such corporation, upon the delivery by them of any grain, to weigh the same, as aforesaid, the sworn statement of the person to whom the same was delivered, or his agent having personal knowledge of the weight thereof, shall be taken as true, as to the amount delivered. And if, by such statements, it shall appear that such corporation has failed to deliver the amount so shown to be shipped, such corporation shall be liable for the shortage, and shall pay to the person entitled thereto the full market value of such shortage, at the time and place when and where the same should have been delivered. 2563. DISCRIMINATION as to person. Where the company from a pressing cause, takes grain from wagons or boats, while grain re- mains for shipment in private warehouses, acting in good faith, and without partiality or oppression, it will not thereby incur liability. &. & C. U. R. R. v. Rae, 18 111. 488. 2564. If its servants, by reason of bribes or other improper motives, give preference to one person over another, the company may be held liable for damages thereby caused. Ib. 2565. DELAY. Must use proper diligence to transport freight offered, without delay, and unless it can excuse itself for the delay it will be liable in an action on the case. Ib. 2566. Must receive freights according to its usage and custom. If in the habit of running its cars upon side tracks to a private ware- house to receive freights, a readiness to deliver freights at such ware- house will impose on the company the duty to take the freight there- from. Ib. 2567. TENDER or CHARGES. A tender or readiness to pay the freight must be proved in an action to recover for non-transporta- tion or delay in same. Ib. 2568. WAIVER. By omitting to demand prepayment of freight, the company will be bound to transmit freight according to its custom. Where not demanded slight evidence of willingness to pay will be sufficient, and readiness to pay may be presumed from the circumstances. Ib. 2569. DELAY. Where a box shipped at Adrian for Chicago on October 29th, arriving at Chicago on November 3d, the usual time 304 RAILROADS, WAREHOUSES, for transportation being three days, and was not delivered by the freight agent until November 15th, this was held such an unreason- able delay as to entitle the owner to damage. M . 8. & N. I. R. R. v. Day, 20 111. 375. 2570. Company bound to use every reasonable effort without de- lay to deliver at its destination in proper time, cattle loaded by the shipper, and for a failure to do so, will be liable for all proximate damages. 0. & M. R. R. v. Dunbar, 20 111. 623. 2571. Where the goods are placed in a car of the company with its assent for shipment, it becomes liable for them the same as if deliv- ered in its warehouse. I. C. R. R. v. Smyser & Co., 38 111. 354. 2572. Where cattle are loaded in the cars by the owner, with the knowledge of the company, it should take them by the most regular cattle train, and failing to do so, will become liable for any damage thereby caused to the cattle. /. C. R.R.v. Waters, 41 111.73. 2573. Measure of damage for delay in carrying cattle. /. C. R. R. v. Waters, 41 111. 73: or for not delivering in a reasonable time. /. C. R R. v. McClellan, 54 111. 58; /. C.R.R. v. Cobb, 64 111. 128. 2574. Where the usual time for the transportation of corn was two and a half to three days, a delay of eleven days, and as to a part, of forty-five days, in its reaching its destination, is unreasonable, and renders the company liable for damages. /. C. R. R. v. McClellan, 54 111. 58. 2575. A railway company having received a large quantity of wool for transportation to Boston, carried it within fifty miles of the termi- nus of its road, where, owing to the obstruction of the road with which it connected, from snow, the wool was stored for two months, within which time the price declined in the Boston market: Held, that the company was liable, if for no other reason, because its agents knew that the road was so blocked with freight that the wool could not go through within a reasonable time, and failed to inform the shipper of this fact that he might have either sold at the point whence shipped, or have selected another route. Great Western Ry. v. Burns, 60 111. 284. 2576. A railway company having received goods for transportation without giving notice of facts that would cause delay, are required to carry the same through in a reasonable time, or respond in damages caused by the delay. Ib. 2577. A common carrier has no right to store a part of the freight received for transportation, and leave it there, while it receives new freight, and sends it through, and when it does so it must make com- pensation to the parties injured thereby. Gh: West. Ry. v. Burns, 60 111. 284. 2578. The fact that the latter shipments were of perishable prop- erty and live stock, will not furnish any excuse. Freight should not be received until it can be sent through without delaying other freight having the precedence. Ib . 2579. A delay of over thirty days in the transportation of grain, when the ordinary time required is only two or three days, is unrea- sonable, and not excusable on account of causes known at the time of accepting the same. /. C. R. R. v. Cobb, 64 111. 128. 2580. Where a limited military control was being exercised over a railroad during the war, and its shipments were immense, so that the side tracks of the road for a considerable distance were filled with loaded cars waiting to be unloaded by the military authorities: Held, that it was the right and duty of the company to refuse to accept per- ishable freights for shipment to its terminus, until its line was clear. Ib. AND EMINENT DOMAIN. 305 2581. The right conferred upon railroad corporations to carry pas- sengers and property for a compensation, is coupled with a corres- ponding duty, that they shall receive and carry passengers and freights over their roads as they may be offered. P. & R. 1. Ry. v. C. V. M. Co., 68 111. 489. 2582. The duties railroad corporations owe to the public and which are the considerations upon which their privileges are conferred, can- , not be avoided by neglect, refusal or by agreement with other persons or corporations. Therefore any contract to prevent the faithful dis- charge of any such duties will be against public policy and void. Ib . 2583. It is the duty of a common carrier to forward and deliver goods at the point it contracts to convey them to, within a reasonable time, and if it fails to do so, it will be liable, whether it knew that its connecting line could not without unreasonable delay, forward the goods or not. Crowded condition of connecting road, no excuse. T., W. & W. Ry. v. Lockhart, 71 111. 627. 2584. MEASURE OF DAMAGES. The owner of grain shipped for market is entitled to recover the difference between the market price at the point of destination, when it should have arrived, and the time it does arrive. If in consequence of the delay there ceases to be a market for the grain at such place, the owner may without unreason- able delay, ship the same to some other point, and sell and hold the company liable for the loss. /. C. R. R. v. Cobb, 72 111. 148. 2585. DELAY IN FURNISHING TRANSPORTATION. Where a person desirous of shipping a large quantity of corn over a railroad to Cairo, stored the same in a warehouse on the premises of the company to be transported as soon as cars could be procured, but the company never received or receipted for the same, and was unable to forward the same for want of cars and because the road was controlled by military authorities of the United States who refused to give permits to ship the same, and in consequence of which the grain was injured by expo- sure, &c: Held, that the company was not liable to the owner of the grain for the delay in furnishing transportation. /. C. R. R. v. Horn- berger, 77 111 457. 2586. EXCUSE FOR DELAY. Company may show in defense that the delay was caused solely by the lawless, irresistible violence of men who were not in its employ. P., Ft. W. & C. R. R. v. Hazen, 84 111. 36. 2587. Liable for delay caused by a strike among its servants, &c. P., Ft. W. & C. R. R. v. Hazen, 84 111. 36. 2588. As to negligence in not forwarding by connecting line. Erie Ry. v. Wilcox, 84 111. 239. 2589. Where a railway company refused to furnish cars for the transportation of grain to Cairo during the war, on account of the large accumulation of cars on its track at that point waiting to be unloaded, and finally furnished cars on the promise of the shipper to unload the same, which was not done, either by him or the consignee, but refused, it was held in a suit against the company to recover damages for delay in transporting the grain, that the jury were justi- fied in finding for the defendant. Cobb v. I. C. R. R., 88 111. 394. 2590. Company is bound to receive and transport cattle when they are first offered for shipment, unless it has a reasonable excuse for its refusal, and when its refusal to take and ship catl le is without such . excuse, it will be liable in damages to the owner for the deterioration in the value of the cattle. C. & A. R. R. v. Erickson, 91 111. 613. 2591. An unconstitutional law prohibiting the shipping or carry- ing of Texas or Cherokee cattle into or through the state, being void, -21 306 KAILROADS, WAREHOUSES, will afford no excuse for a refusal or delay in receiving and shipping such cattle when offered. C. & A. R. R. v. Erickson, 91 111. 613. 2592. A railway company under military control and operated by the military in the transportation of troops, munitions of war, &c., so as not to be in the free exercise of its franchise, is not liable for refusing to receive freights for transportation, it not being safe to undertake their carriage. But if it accepts and undertakes to carry freights such military interference will not excuse its delay to transport. Phelps v. /. C. R. R., 94 111. 548. 2593. Where a railroad is under the military control of the United States and operated by its officers, the company is not in the free use of its franchise, and its duty to the public to receive and transport freight is for the time suspended, and it is not liable for not receiving freight so long as it is not in the control of its road. I. C. R. R. v. Phelps, 4 Bradw. 238. 2594. For a delay occasioned by the refusal of the company's ser- vants to do their duty, the company is responsible; but for a delay resulting solely from the lawless violence of men not in its employ, it is not responsible. /. & St. L. R. R. v. Juntgen, 10 Bradw. 295. 2595. For a failure of carrier to transport cattle to their destina- tion within a reasonable time, an action lies. W., St. L. & P. Ry. v. McCasland, 11 Bradw. 491. 2596. Nothing but the act of God or the public enemy will excuse a carrier from the ultimate delivery of goods entrusted to its care; but it is not to the same extent liable for every delay in reaching the place of destination. Ib. 2597. Custom or usage in the shipment of certain classes of freight may : fix the liability of a carrier for a refusal to transport that kind of freight in conformity to the custom ; but custom and usage cannot be held to extend the terms of a penal statute. /. & St. L. Coal Co. v. People, 19 Bradw. 141. 2598. The fact that a railway is under military control in time of war, is a sufficient excuse for delay in making shipment of goods. 1. G. R. R. v. Ashmead, 58 111. 487. As to discrimination see post, 2653, 2725. 2599. SCALES WEIGHING PENALTIES. 2. At all sta- tions or places from which the shipments of grain by the road of such corporation shall have amounted during the previous year to fifty thousand (50,000) bushels or more, such corporation shall, when required so to do by the per- sons who are the shippers of the major part of said fifty thousand bushels of grain, erect and keep in good condition for use, and use in weighing grain to be shipped over its road, true and correct scales, of proper structure and capac- ity for the weighing of grain by car load in their cars after the same shall have been loaded. Such corporation shall care- fully and correctly weigh each car upon which grain shall be shipped from such place or station, both before and after the same is loaded, and ascertain and receipt for the true amount of grain so shipped. If any such corporation shall neglect or refuse to erect and keep in use such scales when required to do so as aforesaid, or shall neglect or refuse to weigh in the manner aforesaid any grain shipped in bulk from any AND EMINENT DOMAIN. 307 station or place, the sworn statement of the shipper, or his agent, having personal knowledge of the amount of grain shipped, shall be taken as true as to the amount so shipped. In case any railroad corporation shall neglect or refuse to comply with any of the requirements of section first, second and fifth of this act, it shall, in addition to the penalties therein provided, forfeit and pay for every such offense and for each and every day such refusal or neglect is continued the sum of one hundred dollars ($100), to be recovered in an action of debt before any justice of the peace, in the name of the people of the state of Illinois, such penalty or forfeiture to be paid to the county in which the suit is brought, and shall also be required to pay all costs of prosecution, includ- ing such reasonable attorney's fees as may be assessed by the justice before whom the case may be tried. [As amended by act approved May 18, 1877. In force July 1, 1877. L. 1877, p. 168. ( The act amending this section contains the following: 2. All parts of said section in conflict with sec- tion one of this act are hereby repealed. ) R. S. 1887, p. 1022, 119; S. & C., p. 1953, 120; Cothran, p. 1165, 105.] 2600. DELIVEEY PENALTY. 3. Every railroad cor- poration which shall receive any grain in bulk for transpor- tation to any place within the state, shall transport and deliver the same to any consignee, elevator, warehouse, or place to whom or to which it may be consigned or directed: Provided, such person, warehouse or place can be reached by any track owned, leased or used, or which can be used by such corporation; and every such corporation shall permit connections to be made and maintained with its track to and from any and all public warehouses where grain is or may be stored. Any such corporation neglecting or refusing to comply with the requirements of this section, shall be liable to all persons injured thereby for all damages which they may sustain on that account, whether such damages result from any depreciation in the value of such property by such neglect or refusal to deliver such grain as directed, or in loss to the proprietor or manager of any public warehouse to which it is directed to be delivered, and costs of suit, includ- ing such reasonable attorney's fees as shall be taxed by the court. And in case of any second or later refusal of such railroad corporation to comply with the requirements of this section, such corporation shall be by the court, in the action on which such failure dr refusal shall be found, adjudged to pay, for the use of the people of this state, a sum of not less than $1,000, nor more than $5,000, for each and every such failure or refusal, and this may be a part of the judgment of the court in any second or later proceeding against such cor- poration. In case any railroad corporation shall be found 308 BAILROADS, WAREHOUSES, guilty of having violated, failed, or omitted to observe and comply with the requirements of this section, or any part thereof, three or more times, it shall be lawful for any person interested to apply to a court of chancery, and obtain the appointment of a receiver to take charge of and manage such railroad corporation until all damages, penalties, costs and expenses adjudged against such corporation for any and every violation shall, together with interest, be fully satis- fied. [E. S. 1887, p. 1023, 120; S. & C., p. 1954, 121; Cothran, p. 1166, 106.] PLACE OF DELIVERY. 2601. A railway company must receive grain according to its cus- tom and usage. If that usage is to run its cars upon a side track to private warehouses, and there receive grain in the cars, a tender ac- cordingly, or notice and readiness to so deliver, will impose an obliga- tion on the company to take and carry the grain. Having adopted this mode it cannot capriciously require that the grain be delivered in a different manner, or at a different place. Q-. & Ch. U. R. R. v. Rae, 18 111. 488, 490. 2602. Under 22 of act of 1867 entitled "warehousemen," railroad companies were positively inhibited from making delivery of any grain which they had received for transportation, into any warehouse, other than that to which it is consigned, without the consent of the owner or consignee thereof. Vincent v. C. & A. R.R., 49 111. 33. 2603. Where a shipment of grain is made to a party having his warehouse on the line of the road by which the grain is transported, and such consignee is ready to receive it, it is the duty of the carrier to make a personal delivery to him, at the warehouse to which it is consigned. Ib . 2604. Where the owner of adjacent property, had with the consent of the company, for a valid consideration, been permitted to lay down a side track, connecting with the track of the company for the purpose of transporting to such property articles of freight, and such owner has erected thereon a warehouse, which is in readiness for the receipt of such freight, such side track is to be considered as a part of the line of the company for the purpose of delivery under this statute. Ib. 2605. In order to compel a railway company to deliver grain shipped on its road in bulk, at a particular elevator to which it may be con- signed, such elevator must be connected by some track with the rail- road line of the company, and be in fact, a portion thereof, or such as would be regarded as a portion thereof, for the purposes of such deliv- ery under the act of 1867. People ex rel. v. C. & A. R. R., 55 111. 95. 2606. Railway companies cannot disregard the custom which has obtained of conveying grain in bulk over the lines of their own roads, and delivering it at any elevator thereon to which it may be con- signed. Ib. 2607. If consigned to an elevator or warehouse not on their road and beyond its terminus, or if there be no elevator on the road, then they may rightfully refuse to receive it in bulk. People ex rel. v. C. & A. R. R., 55 111. 95. 2608. In a proceeding by .'mandamus to compel a railroad company to deliver at the elevator or grain warehouse of the relator, in the city of Chicago, whatever grain in bulk might be consigned to it, upon the line of their road, it appeared that the company entered the city from AND EMINENT DOMAIN. 309 different points upon separate tracks or lines of road, being called divisions. The elevator was situate upon a track used by the com- pany in connection with the business of one of these divisions exclu- sively, but could be reached from the other divisions, though by a very indirect route, and subjecting the company to great loss of time and pecuniary damage, in the delay that would be caused to their reg- ular trains and business on the latter division: Held, that the roads constituting these divisions, though belonging to the same corpora- tion and having a common name, were for the purposes of transport- ation, substantially different roads, constructed under different chart- ers, and the track upon which the elevator was situated, having been laid for the convenience especially of one of those divisions, and only approachable from the other under the difficulties mentioned, it could not be regarded that the elevator was upon the line of the latter divi- sion in any such sense as to make it obligatory upon the company to deliver thereat freight coming over that division. C. & N. W. Ry. v. People, 56 111. 365. 2609. But the track upon which the elevator was situated was owned and used by the respondent company and another company in common, and was a direct continuation of the line of one of the res- pondent company's divisions, and of easy and convenient access from that division, and was used by the respondent, not only to deliver grain to other elevators thereon, some of which were of more difficult access than that of the relatpr, but also to deliver lumber and other freight coming over such division, thus making it not only legally, but actually, by positive occupation, a part of their road. So it was held, that in reference, to grain coming over that division, the track upon which the relator's elevator was situated, was to be regarded as a part of the respondent's line of road, and it was their duty to deliver such grain to the elevator, if consigned to it. Ib. 2610. Where grain in bulk is consigned to a particular elevator on the line of a railroad, it is no sufficient excuse for the c.ompany to refuse to so deliver, that it cannot do so without a large additional expense caused by the loss of the use of motive power, labor of ser- vants, and loss of use of cars, while the same is being delivered and unloaded at such elevator, and brought back, for it is precisely that expense for which the company is paid its freight. C. & N. W. Ry. v. People, 56 111. 365. 2611. By the rules of the common law, railway companies cannot be compelled to permit individuals to connect side tracks of their own with the tracks of the companies, in order to enable the latter to carry grain to warehouses or elevators which have been erected off their lines of roads. People v. C. & N. W. Ry., 57 111. 436. 2612. And where it is sought to compel a railroad company to per- mit such connection upon the ground of an alleged custom among the companies whose lines concentrate at the place indicated, the custom must be clearly made to appear, and to have existed so long as to have the force of law. Ib. 2613. A contract by the owner of an elevator to connect the same with a railroad, personal in its nature, confers no rights upon a lessee of such owner. People v. C. & N. W. Ry., 57 111. 436. 2614. To make a railway company liable under this section for not delivering grain to the consignee or place of consignment, the freight must be in bulk, and must be consigned to the warehouse or place in question at the time of shipment. A demand at the place of destina- tion is not of itself sufficient. C. & N. W. Ry. v. Stanbro, 87 111. 195. 2615. DAMAGES. In a simple action on the case, without reference to the statute, against a railway company for not delivering grain 310 EAILEOADS, WAREHOUSES, shipped in bulk to a particular warehouse, the true measure of dam- ages is the necessary cost of moving the cars to the place required. If the suit is under the statute, the depreciation in the price of the grain may be considered. C. & N. W. Ry. v. Stanbro, 87 111. 195. 2616. Statute being penal will not be extended by construction. C. & N. W. Ry. v. Stanbro, 87 111. 195. 2617. A railroad corporation will only be compelled to deliver grain in the particular warehouse or elevator to which it is consigned, when such warehouse or elevator is upon the line of its road. But the line of the road is not necessarily confined to such tracks, side tracks and switches by it owned or leased. Hoyt v. C., B. & Q. R. R., 93 111. 601. 2618. If a railway corporation has already purchased or secured by contract or otherwise, the legal right to use the track of another road necessary to reach a particular warehouse or elevator, then such ware- house or elevator may be considered as being upon the line. But when it has to run over the track of another company for the use of which it has no license or contract, to reach such warehouse or eleva- tor, it cannot be compelled to run over such track in order to deliver grain. Ib. 2619. The mandate of the constitution in respect to the delivery of grain shipped in bulk, at the warehouse or elevator to which it is con- signed, must be understood to be confined to a delivery by the com- mon carrier at the warehouse or elevator where consigned when such delivery can be made by availing itself of tracks it has the legal right to employ or use. Hoyt v. C., B. & Q. R. R., 93 111. 601. 2620. Eight to enjoin removal of a connecting side 'track. Hoyt v. <7., B. & Q. R. R., 93 111. 601. 2621. Where a company takes grain consigned to Chicago, its duty is to deliver it in Chicago at any warehouse upon its lines or side tracks, to which it has been consigned. Vincent v. C. & A. R. R. 49 111. 33. 2622. EIGHT TO CHANGE CONSIGNMENT. 4 All consign- ments of grain to any elevator or public warehouse shall be held to be temporary, and subject to change by the consignee or consignor at any time previous to the actual unloading of such property from the cars in which it is transported. Notice of any change in consignment may be served by the consignee on any agent of the railroad corporation having the property in possession who may be in charge of the busi- ness of such corporation at the point where such property is to be delivered ; and if, after such notice, and while the same remains uncanceled, such property is delivered in any way different from such altered or changed consignment, such railroad corporation shall, at the election of the consignee or person entitled to control such property, be deemed to have illegally appropriated such property to its own use, and shall be liable to pay the owner or consignee of such property double the value of the property so appropriated; and no extra charge shall be permitted by the corporation having the custody of such property, in consequence of such change of consignment. [B. 8. 1887, p 1023, 121; S. &. C., p 1955, 121; Cothran, p. 1166, 107.] AND EMINENT DOMAIN. 311 2623. KECEIVING ON TRACK RIGHTS OF OWNERS SAVED. 5. Any consignee or person entitled to receive the delivery of grain transported in bulk by any railroad, shall have twenty-four hours, free of expense, after actual notice of arrival by the corporation to the consignee, in which to re-^ move the same from the cars of such railroad corporation, if he shall desire to receive it from the cars on the track; which twenty-four hours shall be held to embrace such time as the car containing such property is placed and kept by such cor- poration in a convenient and proper place for unloading. And it shall not be held to have been placed in a proper place for unloading, unless it can be reached by the consignee, or person entitled to receive it, with teams or other suitable means for removing the property from the car, and reasona- bly convenient to the depot of such railroad corporation at which it is accustomed to receive and unload merchandise consigned to that stktion or place. Nothing herein contained, however, shall be held to authorize the changing of any con- signment of grain, except as to the place at which it is to be delivered or unloaded, nor shall such change of consignment, in any degree, affect the ownership or control of property in any other way. [K S. 1887, p. 1023, 122; S. & C., p. 1955, 123; Cothran, p. 1167, 108. J 2624. KECEIPT AND DELIVERY AT CROSSINGS, ETC. 6. Every railroad corporation organized or doing business under the laws of this state, or authority thereof, shall receive and deliver all grain consigned to its care for transportion at the crossings and junctions of all other railroads, canals, and nav- igable rivers. Any violation of this section shall render any such railroad corporation subject to the same penalty as con- tained in section 3 of this act. [ 7, repeal, omitted. See "Statutes," ch. 131, 5. E. S. 1887, p. 1023, 123; S. & C., p. 1955, 124; Cothran, p. 1167, 109.] RAILROAD AND WAREHOUSE COMMISSIONERS. 171.] 2625. APPOINTMENT TERM. 1. Be it enacted by the people of the state of Illinois, represented in the general as- sembly, That a commission which shall be styled "Railroad and Warehouse Commission," shall be appointed as follows: Within twenty days after this act shall take effect, the gov- ernor shall appoint three persons as such commissioners, who shall hold their office until the next meeting of the gen- eral assembly, and until their successors are appointed and qualified. At the next meeting of the general assembly, and every two years thereafter, the governor, by and with the 312 KAILBOADS, WAREHOUSES, advice and consent of the senate, shall appoint three persons as such commissioners, who shall hold their offices for the term of two years from the first day of January in the year of their appointment, and until their successors are appointed and qualified. 2626. QUALIFICATIONS. 2. No person shall be ap- pointed as such commissioner who is at the time of his appointment in any way connected with any railroad com- pany or warehouse, or who is directly or indirectly interested in any stock, bond, or other property of, or is in the employ- ment of any railroad company or warehouseman ; and no per- son appointed as such commissioner shall, during the term of his office, become interested in any stock, bond or other property of any railroad company or warehouse, or in any manner be employed by or connected with any railroad com- pany or warehouse. The governor shall have power to re- move any such commissioner at any time, in his discretion. 2627. OATH BOND. 3. Before entering upon the duties of his office, each of the said commissioners shall make and subscribe, and file with the secretary of state, an affidavit, in the following form : I do solemnly swear (or affirm, as the case may be,) that I will support the constitu- tion of the United States, and the constitution of the state of Illinois, and that I will faithfully discharge the duties of the office of commissioner of railroads and warehouses, according to the best of my ability. And shall enter into bonds, with security to be approved by the governor, in the sum of $20,000, conditioned for the faithful performance of his duty as such commissioner. 2628. COMPENSATION SECRETARY OFFICE EXPENSES. 4. Each of said commissioners shall receive for his serv- ices a sum not exceeding $3,500 per annum, payable quar- terly. They shall be furnished with an office, office furni- ture and stationery, at the expense of the state, and shall have power to appoint a secretary to perform such duties as they shall assign to him. Said secretary shall receive for his services a sum not exceeding $1,500 per annum. The office of the said commissioners shall be kept at Springfield, and all sums authorized to be paid by this act shall be paid out of the state treasury and only on the order of the governor: Provided, that the total sum to be expended by said commis- sioners for office rent and furniture and stationery shall, in no case, exceed the total sum of $800 per annum. 2629. EIGHT TO PASS ON TRAINS, ETC. 5. The said commissioners shall have the right of passing, in the per- formance of their duties concerning railroads, on all rail- roads and railroad trains in this state. 2630. EEPORT OF RAILROADS. 6. Every railroad com- pany incorporated or doing business in this state, or which AND EMINENT DOMAIN. 313 shall hereafter become incorporated, or do business under any general or special law of this state, shall, on or before the first day of September, in the year of our Lord 1871, and on or before the same day in each year thereafter, make and transmit to the commissioners appointed by virtue of this act, at their office in Springfield, a full and true statement, under oath of the proper officers of said corporation, of the affairs of their said corporation, as the same existed on the first day of the preceding July, specifying First The amount of capital stock subscribed, and by whom. Second The names of the owners of its stock, and the amounts owned by them respectively, and the residence of each stockholder as far as known. Third The amount of stock paid in, and by whom. Fourth The amount of its assets and liabilities. Fifth The names and place of residence of its officers. Sixth The amount of cash paid to the company on account of the original capital stock. Seventh The amount of funded debt. Eighth The amount of floating debt. Ninth The estimated value of the roadbed, including iron and bridges. Tenth The estimated value of rolling stock. Eleventh The estimated value of stations, buildings and fixtures. Twelfth The estimated value of other property. Thirteenth The length of single main track. Fourteenth The length of double main track. Fifteenth The length of branches, stating whether they have single or double track. Sixteenth The aggregate length of siding and other tracks not above enumerated. Seventeenth The number of miles run by passenger trains during the year preceding the making of the report. Eighteenth The number of miles run by freight trains during the same period. Nineteenth The number of tons of through freight carried during the same time. Twentieth The number of tons of local freight carried during the same time. Twenty-first Its monthly earnings for the transportation of passengers during the same time. Twenty -second Its monthly earnings for the transporta- tion of freight during the same time. Twenty-third Its monthly earnings from all other sources respectively. Twenty-fourth The amount of expense incurred in the 314 RAILROADS, WAREHOUSES, running and management of passenger trains during the same time. Twenty-fifth The amount of expense incurred in the run- ning and management of freight trains during the same time ; also, the amount of expense incurred in the running and management of mixed trains during the same time. Twenty-sixth All other expenses incurred in the running and management of the road during the same time, includ- ing the salaries of officers, which shall be reported separately. Twenty-seventh The amount expended for repairs of road and maintenance of way, including repairs and renewal of bridges and renewal of iron. Twenty-eighth The amount expended for improvement, and whether the same are estimated as a part of the expenses of operating or repairing the road, and, if either, which. Twenty-ninth The amount expended for motive power and cars. Thirtieth The amount expended for station houses, build- ings and fixtures. Thirty-jirst All other expenses for the maintenance of way. Thirty -second All other expenditures, either for manage- ment of the road, maintenance of way, motive power and cars, or for other purposes. Thirty-third The rate of fare for passengers for each month during the same time, through and way passengers separately. Thirty-fourth The tariff of freights, showing each change of tariff during the same time. Thirty-fifth A copy of each published rate of fare for passengers and tariff of freight, in force or issued for the government of its agents during the same time. Thirty-sixth Whether the rate of fare and tariff of freight in such published lists are the same as those actually re- ceived by the company during the same time ; if not, what were received. Thirty-seventh What express companies run on its roads and on what terms and on what conditions; the kind of busi- ness done by them, and whether they take their freights at the depots or at the office of such express companies. Thirty- eighth What freight and transportation companies run on its road, and on what terms. Thirty-ninth Whether such freight and transportation companies use the cars of the railroad or the cars furnished by themselves. Fortieth Whether the freight or cars of such companies are given any preference in speed or order of transporation, and if so, in what particular. AND EMINENT DOMAIN. 315 Forty-first What running arrangements it has with other railroad companies, setting forth the contracts for the same. 2631. ADDITIONAL INQUIRIES. 7. The said commission- ers may make and propound to such railroad companies any additional interrogatories, which shall be answered by such companies in the same manner as those specified in the fore- going section. 2632. APPLIES TO OFFICERS OF ROAD. 8. Sections 6 and 7 of this act shall apply to the president, directors and officers of every railroad company now existing or which shall be incorporated or organized in this state, and to every lessee, manager and operator of any railroad within this state. 2633. STATEMENT BY WAREHOUSEMAN. 9. It shall be the duty of every owner, lessee and manager of every public warehouse in this state to furnish in writing under oath, at such times as such railroad and warehouse commissioners shall require and prescribe, a statement concerning the con- dition and management of his business as such warehouse- man. 2634. REPORT BY COMMISSIONERS EXAMINATION. 10. Such commissioners shall, on or before the first day of December, in each year, and oftener if required by the gov- ernor to do so, make a report to the governor of their doings for the preceding year, containing such facts, statements and explanations as will disclose the actual workings of the sys- tem of railroad transportation and warehouse business in their bearings upon the business and prosperity of the peo- ple of this state, and such suggestions in relation thereto as to them may seem appropriate, and particularly, first, whether in their judgment the railroads can be classified in regard to the rate of fare and freight to be charged upon them, and if so, in what manner; second, whether a classifica- tion of freight can also be made, and if so, in what manner. They shall also, at such times as the governor shall direct, examine any particular subject connected with the condition and management of such railroads and warehouses, and re- port to him in writing their opinion thereon with their rea- sons therefor. 2635. EXAMINATIONS OF RAILROADS AND WAREHOUSES- SUITS. 11. Said commissioners shall examine into the con- dition and management, and all other matters concerning the business of railroads and warehouses in this state, so far as the same pertain to the relation of such roads and warehouses to the public, and to the accommodation and security of per- sons doing business therewith; and whether such railroad companies and warehouses, their officers, directors, managers, 316 RAILROADS, WAREHOUSES, lessees, agents and employes, comply with the laws of this state now in force, or which shall hereafter be in force con- cerning them. And whenever it shall come to their knowledge, either upon complaint or otherwise, or they shall have reason to believe that any such law or laws have been or are being violated, they shall prosecute or cause to be prosecuted all corporations or persons guilty of such violation. 'In order to enable said commissioners efficiently to perform their duties under this act, it is hereby made their duty to cause one of their number, at least once in six months, to visit each county in the state, in which is or shall be located a railroad station, and personally inquire into the management of such railroad and warehouse business. 2636i WHEN BOARD TO INVESTIGATE CAUSE or ACCIDENT ON RAILROAD BRIDGE, ETC., OUT OF REPAIR MANDAMUS PROCEEDINGS BY ATTORNEY GENERAL. 11^. It shall be the duty of said board of commissioners to investigate the cause of any accident on any railroad resulting in the loss of life or injury to person or persons, which in their judgment shall require investigation, and the result of such investigation shall be reported upon in a special report to the governor as soon after said accident as may be practicable, and also in the annual report of said commissioners. And it is hereby made the duty of the general superintendent or manager of each railroad in this state, to inform said board of any such accident immediately after its occurrence. Whenever it shall come to the knowledge of said board, by complaint or other- wise, that any railroad bridge or trestle, or any portion of the track of any railroad in this state is out of repair, or is in an unsafe condition, it shall be the duty of such board to investigate, or cause an investigation to be made, of the con- dition of such railroad bridge, trestle or track and may employ such person or persons who may be civil engineer or engineers, as they shall deem necessary for the purpose of making such investigation, and whenever in the judgment of said board, after such investigation, it shall become neces- sary to rebuild such bridge, track or trestle, or repair the same, the said board shall give notice and information in writing to the corporation of the improvements and changes which they deem to be proper. And shall recommend to the corporation or person or persons owning or operating such railroad that it, or he, or they, make such repairs, changes or improvements, or rebuild -such bridge or bridges on such railroad as the board shall deem necessary, to the safety of persons being transported thereon. And said board shall give such corporation or person or persons owning or operat- ing said railroad an opportunity for a full and fair hearing on the subject of such investigation and recommendation. AND EMINENT DOMAIN. 317 And said board shall, after having given said corporation or person or persons operating such railroad an opportunity for a full hearing thereon, if such corporation or person shall not satisfy said board that no action is required to be taken by it or them, fix a time within which such changes or repairs shall be made, or such bridges, tracks or culverts shall be rebuilt, which time the board may extend. It shall be the duty of the corporation, person or persons owning or operat- ing said railroad to comply with such recommendations of said board, as are just and reasonable. And the supreme court or the circuit court in any circuit, in which such rail- road may be in part situated, shall have power in all cases of such recommendations by said board, to compel compli- ance therewith by mandamus. If any such corporation or person or persons owning or operating any such railroad, shall, after such hearing, neglect or refuse to comply with the recommendation or recommendations of said board as to making any repairs, changes or improvements, on any bridge, track or trestle, or to rebuild any bridge within the time which shall be fixed by said board therefor, said board shall report such neglect or refusal, together with the facts in such case as said board shall find the facts to be, touching the necessity for such repairs, changes or rebuilding to the attor- ney general of the state of Illinois, who shall thereupon take such action as may be necessary to secure compliance with such recommendations of said board. In all actions or pro- ceedings brought by the attorney general to compel compli- ance with the recommendations of the board, the findings of the board shall be prima facie evidence of the facts therein stated, and the recommendations of the board shall be deemed prima facie, just and reasonable. Nothing herein contained shall impair the legal liability of any railroad company for the consequence of its acts. And all existing remedies there- for are hereby saved to the people and ,to individuals. [Added by act approved June 16, 1887. In force July 1, 1887. L. 1887, p. 255.] 2637. CANCELLATION OP WAREHOUSE LICENSES. 12. Said commissioners are hereby authorized to hear and determine all applications for the cancellation of warehouse licenses in this state which may be issued in pursuance of any laws of this state, and for that purpose to make and adopt such rules and regulations concerning such hearing and determi- nation as may, from time to time, by them be deemed proper. And if, upon such hearing, it shall appear that any public warehouseman has been guilty of violating any law of this state concerning the business of public warehousemen, said commissioners may cancel and revoke the license of said public warehouseman, and immediately notify the officer who 318 BAILROADS, WAREHOUSES, issued such license of such revocation and cancellation; and no person whose license as a public warehouseman shall be cancelled or revoked, shall be entitled to another license or to carry on the business in this state of such public ware- houseman, until the expiration of six months from the date of such revocation and cancellation, and until he shall have again been licensed: Provided, that this section shall not be so construed as to prevent any such warehouseman from delivering any grain on hand at the time of such revocation or cancellation of his said license. And all licenses issued in violation of the provisions of this section shall be deemed null and void. 2638. POWER TO EXAMINE BOOKS, ETC. 13. The prop- erty, books, records, accounts, papers and proceedings of all such railroad companies, and all public warehousemen, shall at all times, during business hours, be subject to the exami- nation and inspection of such commissioners, and they shall have power to examine, under oath or affirmation, any and all directors, officers, managers, agents and employes of any such railroad corporation, and any and all owners, managers, lessees, agents and employes of such public warehouses and other persons, concerning any matter relating to the condi- tion and mangement of such business. 2639. MAY EXAMINE WITNESSES, ETC. 14. In making any examination as contemplated in this act, or for the pur- pose of obtaining information, pursuant to this act, said commissioners shall have the power to issue subpoenas for the attendance of witnesses, and may administer oaths. In case any person shall willfully fail or refuse to obey such subpoena, it shall be the duty of the circuit court of any county, upon application of said commissioners, to issue an attachment for such witness, and compel such witness to attend before the commissioners, and give his testimony upon such matters as shall be lawfully required by such commissioners; and the said court shall have power to pun- ish for contempt, as in other cases of refusal to obey the process and order of such court. 2640. PENALTY AGAINST WITNESSES. 15. Any person who shall willfully neglect or refuse to obey the process of subpoena issued by said commissioners, and appear and tes- tify as therein required, shall be deemed guilty of a misde- meanor, and shall be liable to an indictment in any court of competent jurisdiction, and on conviction thereof shall be punished for each offense, by a fine of not less than 25 nor more than $500, or by imprisonment of not more thirty days, or both, in the discretion of the court before which such con- viction shall be had. AND EMINENT DOMAIN. 319 2641. PENALTY AGAINST RAILROAD COMPANIES, WARE- HOUSEMEN, ETC. 16. Every railroad company, and every officer, agent or employe of any railroad company, and every owner, lessee, manager or employe of any warehouse, who shall willfully neglect to make and furnish any report required in this act, at the time herein required, or who shall willfully and unlawfully hinder, delay, or obstruct said commissioners in the discharge of the duties hereby imposed upon them, shall forfeit and pay a sum of not less than 100 nor more than $5,000 for each offense, to be recovered in an action of debt in the name and for the use of the people of the state of Illinois; and every railroad company, and every officer, agent or employe of any such railroad company, and every owner, lessee, manager, or agent or employe of any public warehouse, shall be liable to a like penalty for every period of ten days it or he shall willfully neglect or refuse to make such report. 2642. ATTORNEY GENERAL AND STATE'S ATTORNEY TO PROSECUTE SUITS. 17. It 'shall be the duty of the attorney general, and the state's attorney in every circuit or county, on the request of said commissioners, to institute and prose- cute any and all suits and proceedings which they, or either of them, shall be directed by said commissioners to institute and prosecute for a violation of this act, or any law of this state concerning railroad companies or warehouses, or the officers, employes, owners, operators or agents of any such companies or warehouses. 2643. IN NAME OF PEOPLE PAY QUI TAM ACTIONS. 18. All such prosecution shall be in the name of the people of the state of Illinois, and all moneys arising therefrom shall be paid into the state treasury by the sheriff or other officer collecting the same; and the state's attorney shall be entitled to receive for his compensation, from the state treasury, on bills to be approved by the governor, a sum not exceeding ten per cent, of the amount received and paid into the state treasury as aforesaid: Provided, this act shall not be con- strued so as to prevent any person from prosecuting any qui tarn action as authorized by law, and of receiving such part of the amount recovered in such action as is or may be pro- vided under any law of this state. 2644. EIGHTS OF INDIVIDUALS SAVED. 19. This act shall not be so construed as to waive or affect the right of any person, injured by the violation of any law in regard to railroad companies or warehouses, from prosecuting for his private damages in any manner allowed by law. 320 EAILROADS, WAREHOUSES, EXTORTION AND UNJUST DISCRIMINATION. An act to prevent extortion and unjust discrimination in the rates charged for the transportation of passengers and freights on railroads in this state and to punish the same, and prescribe a mode of procedure and rules of evidence in relation thereto, and to repeal an act entitled "An act to prevent unjust discriminations and extortions in the rates to be charged by the different railroads in this state for the transportation of freights on said roads," approved April 7, A. D. 1871. Approved May 2, 1873. In force July 1, 1873. [R. S. 1887, p. 1024, 124-133; S. & C., p. 1961, 145-155: Cothran, p. 1167, 110,-119. See ante, 94-97.] 2645. EXTORTION. 1. Be it enacted by the people of the state of Illinois, represented in the general assembly: If any railroad corporation, organized or doing business in this state under any act of incorporation, or general law of this state, now in force or which may hereafter be enacted, or any railroad corporation organized or which may here- after be organized under the laws of any other state, and do- ing business in this state, shall charge, collect, demand or receive more than a fair and reasonable rate of toll or com- pensation, for the transportation of passengers or freight, of any description, or for the use and transportation of any railroad car upon its track, or any of the branches thereof or upon any railroad within this state which it has the right, license or permission to use, operate or control, the same shall be deemed guilty of extortion, and upon conviction thereof shall be dealt with as hereinafter provided. See Const., art. 11, 15; ante, 94-98. 2646. CONSTITUTIONAL POWER or STATE TO REGULATE CHARGES- FEDERAL CONSTITUTION. The act against extortion and unjust dis- crimination is not in violation of the federal constitution. Railroad Co. v. Fuller, 17 Wall. 560; C., B. & Q. R. R. v. Iowa, 4 Otto, 155; Peik v. Ch. & N. W. Ry., 4 Otto, 164; Munn v. Illinois, 4 Otto, 114; Oh., &c., R. R. v. Ackley, 4 Otto, 179; W., St. L. & P. Ry. v. Blake, 4 Otto, 180; Stone v. Wisconsin, 4 Otto, 181. 2647. POWER of state to regulate and fix charges for freight and passage. B. & O. R. R. v. Maryland, 21 Wall. 456; Peik v. Ch. & N. W. Ry., 94 U. S. 164; 6 Biss. 177; Ruggles v. People, 91 111. 256; 108 U. S. 256; C. & A. R. R. v. People, 67 111. 11; Parker v. Metropolitan R. R., 109 Mass. 506; Ackley v. C., M. & St. P. Ry.,3Q Wis. 252; 4 Otto, 179. 2648. RIGHTS IN CHARTER. A provision in a railway charter that the company may fix its rates of tolls, &c., does not prevent the regu- lation of rates by the state. Ruggles v. Illinois, 108 U. S. 526; 1. C. R. R. v. People, 108 U. S. 541. 2649. The act of 1871 to establish a reasonable maximum rate of charges is not unconstitutional, but is a valid law. Ruggles v. Peo- ple, 91 111. 256. 2650. The act of May 2, 1873, to prevent extortion arid unjust dis- crimination in railroads, is a constitutional enactment, and is not violative of the contract between the state and the railway corpora- tions growing out of the grant and acceptance of their charters, giving them power to establish such rates of toll as they might from time to time determine in their by-laws. /. C. R. R. v People, 95 111. 313. 2651. COMMON LAW POWER not affected by charter. The rule forbidding unreasonable charges by common carriers exists at the AND EMINENT DOMAIN. 321 common law, and charters giving railroad companies the right to establish rates of freight, &c., in general terms, are subject to the implied condition that those rates shall not be unreasonable. C. & A . R. R. v. People, 67 111. 18. 2652. CHARTERS SUBJECT TO IMPLIED LIMITATION. The "right to fix rates of tariff," &c., granted by a charter, must be construed as being with an implied limitation or restriction that in fixing rates of tariff, the company shall make them reasonable and not extortionate, and that in making discriminations, they shall be reasonably just. St. L., A. &T.H.R.R. v. Hill, 14 Bradw. 579. 2653. UNJUST DISCRIMINATION. 2. If any such railroad corporation aforesaid shall make any unjust discrimination in its rates or charges of toll, or compensation, for the trans- portation of passengers or freight of any description, or for the use and transportation of any railroad car upon its said road, or upon any of the branches thereof, or upon any rail- roads connected therewith, which it has the right, license or permission to operate, control or use, within this state, the same shall be deemed guilty of having violated the provisions of this act, and upon conviction thereof shall be dealt with as hereinafter provided. CONSTITUTIONALITY. 2654. Legislation to prevent unjust discrimination in freights is in no respect a violation of the charters of railway companies, and is constitutional. C. & A. R. R. v. People, 67 111. 11. 2655. UNJUST DISCRIMINATION. 15, art. 11 of the constitution authorizing the passage of laws to correct abuses and to iprevent un- just discrimination and extortion, by implication, restrains the power of the legislature to the prohibition of such discrimination only as is unjust. Ib. 2656. An act of the legislature prohibiting any and all discrimina- tion, whether just or unjust, and which does not permit the companies to show that the same is not unjust, but infers guilt conclusively from the mere fact of a difference in rates, is unconstitutional and void. Ib . 2657. An act prohibiting unjust discrimination in charges, making the charging of a greater compensation for a less distance, or for the same distance, prima facie evidence of unjust discrimination, and giving a trial by jury as to the facts, is within the constitutional power of the legislature. Ib. 2658. This section is not obnoxious to any constitutional objection, and a railway company will be liable to the penalty imposed for its violation in discriminating in the rates of charges as to different con- tracts for through transportation of freight from points in this state to a point in another state for different distances, charging a greater sum for the less distance of the entire carriage than for the greater dis- tance. Wabash, St. L. & P. Ry. v. People, 105 111. 236; People v. W., St. L. & P. Ry., 104 111. 476. 265J). There is nothing in the section or act which confines the unjust discrimination for charges for the transportation o.f property within the limits of the state. The language "within this state," in the last part of the section, has reference to the roads which a railway company may operate in this state. Ib. 104 111. 476. 22 322 EAILBOADS, WAKEHOUSES, 2660. INTER-STATE COMMERCE. A state law to prevent the unjust discrimination in rates for the transportation of passengers or freight from a point within to a point without the state, though it may inci- dentally affect commerce between states cannot be said to be a law regulating commerce between states within the meaning of the fed- eral constitution, especially when it does not purport to exercise control over any railroad corporation except those that run or operate in the state. People v. W., St. L. & P. Ry., 104 111. 476; W., St. L. & P. Ry. v. People, 105 111. 236. 2661. Statute must be construed to include a transportation of goods under one contract and by one voyage from the interior of the state of Illinois to New York. Wabash, St. L. & P. Ry. v. Illinois, 118 U. S. 557. 2662. INTER-STATE COMMERCE. Such a transportation is "com- merce among the states," even as to that part of the voyage which lies within the state of Illinois. There may be a transportation of goods which is begun and ended within its limits and disconnected with any carriage outside of the state, which is not commerce among the states. Ib. 2663. The latter is subject to regulation by the state and this stat- ute is void as applied to it; but the former is national in its character, and its regulation is confided to congress exclusively by that clause or the federal constitution which empowers it to regulate commerce among the states. Ib. 2664. This statute is void as to that part of the transmission of the freight which may be within the state where the contract is for its carriage beyond the limits of the state. Reversing the judgment of the state court. Ib. 2664a. Regulation of inter-state commerce. See State v. Ch. & N. W. Ry., 70 Iowa 162; Carton & Co. v. I. C. R. R., 59 Iowa 148; Hart v. Ch. & N. W. Ry., 69 Iowa 485. 2665. POWER OF STATE OVER. The legislature has the undoubted power under the constitution, to prohibit unjust discrimination in charges for the transportation of persons and freights by railroads, whether between individuals, or localities or communities. /. C. R. R. v. People, 121 111. 304. CONSTRUCTION. 2666. EFFECT ON EXISTING CONTRACTS. This act was not design- ed to reach a case where a contract existed prior to its passage, to carry on certain terms. It does not interfere with or abrogate pre- existing contracts. C. & A. R. R. v. C. V. & W. Coal Co., 79 111. 121. 2667. This section is not limited to railroads organized under the laws of this state, but includes all railroad companies whieh operate railroads in this state. People v. W., St. L. & P. Ry., 104 111. 476. 2668. AT COMMON LAW. Charges for freights and passengers must be uniform without favor or prejudice of the several classes established by the company. Extra charges may be made in case of neglect to procure tickets when an opportunity to do so is afforded. C., B. & Q. R. R. v. Parks, 18 111. 460. 2669. At common law all discriminations by common carriers are not forbidden, but only those which are unreasonable and unjust. They are required to serve all who properly apply for transportation in the order of their application. The authorities differ as to whether the common law rule requires an equality of charge. The weight of American authority requires that the charges shall be equal to all for the same service under like circumstances. St. L., A. & T. H. R. R. v. Hill. 14 Bradw. 579. AND EMINENT DOMAIN. 323 2670. The common law does not require, where there is a differ- ence of distances in the services performed, that the charge shall be proportioned equally to the respective distances; or that where the greater charge is made for the greater distance, it shall bear any given proportion to that made for the shorter distance. Ib. 2671. No SHIPMENT. The statute against unjust discrimination does not apply to a case where no shipment is made, but simply a demand for illegal freight on the one side and a refusal on the other to ship. Kankakee Coal Co. v. 1. C. R. R., 17 Bradw. 614. 2672. GIVING PREFERENCES. Action lies for damages caused by giving improper preferences to other shippers of grain. Q. & C, U. R. R. v. Rae, 18 111. 488. 2678. DISCRIMINATING CHARGES. A railway company, although permitted to establish its rates of transportation, must do so without injurious discrimination as to individuals. Vincent v. C. & A. R. R., 49 111. 33. 2674. And where it has fixed its rates for the transportation of grain from any given station on the line of its road to Chicago, it will not be permitted, on the grain being taken there, to charge one rate for delivery at the warehouse of one person, and a different rate for delivery at that of another, both warehouses being upon its line or side tracks. 76. 2675. Among the duties of railway companies is the obligation to receive and carry for all persons alike, without injurious discrimina- tion as to terms, and to deliver them in safety to the consignee. C. & N. W. Ry. v. People, 56 111. 365. 2676. A railway conapany can establish no custom inconsistent with the spirit and object of its charter. It can make such rules and contracts as it pleases, not inconsistent with its duties as a common carrier, and any general language used in its charter in respect to its powers, must be considered with that limitation. Ib. 2677. A railway company can make no such injurious or arbitrary discriminations between individuals in dealing with the public, by any custom or usage of its own, in not receiving shipments of grain in bulk, except on the condition that it may choose the consignee. It may not unjustly and arbitrarily discriminate in favor of any par- ticular warehouse or consignee. Ch. & N. W. Ry. v. People, 56 111 365. 2678. WHAT is UNJUST DISCRIMINATION. The establishment per- manently of less rates of freight at points of competition with other roads than is fixed at other places for the same distance, is an unjust discrimination between places, even though the higher rates are rea- sonably low. Railway companies cannot use their power to benefit particular individuals or to build up particular localities by arbitrary discriminations in their favor to the injury of other persons or rival places. C. & A. R. R. v . People, 67 111. 1 1 . 2679. The offense provided in this section consists in an unjust discrimination in the rates charged: first, for the transportation of passengers or freight of any description; second, for the use and trans- portation of any railroad car upon the road; third, for the use of any railroad car upon any of the branches of the road; fourth, upon any railroads connected with the road or its branches which it is author- ized to use in this state. People v. W., St. L. & P. Ry., 104 111. 476, 2680. A contract between a railroad company and a shipper that the latter shall pay the regular and established rates of freight, the same as all other shippers, and that the company shall pay back to him, by way of rebate, a certain portion of the freight so charged and paid, whereby such shipper will pay a less rate for transportation than 324 RAILROADS, WAREHOUSES, that paid by others and the public generally for like services under similar circumstances and for like distances, is void, as being against public policy at the common law and in violation of the statute against unjust discriminations. /., D. & 8. R. B. v. Ervin, 118 111. 250. 2682. The case of T., W. & W. Ry. v. Elliott, 76 111. 67, holding that a contract for a rebate of freight paid to a railway company was not in violation of the statute against unjust discriminations, was made under a different statute. That case was under the act of 1871 which provided only against unjust discriminations between places and not between individuals, as does the act of 1873. That case and Erie & Pacif.Disp. v. Cecil, 112 111. 180-185, are not authority. Ib. 2683. The seven specified acts of discrimination, in 3 of the statute, defined the offense of unjust discrimination, "such" as is to "be deemed and taken" as "the unlawful discriminations prohibited by the provisions of the act," and the clause: "This section shall not be construed so as to exclude other evidence tending to show any unjust discrimination in freight and passage rates," the court regards as treating of the matter only in its evidential aspect, and not as in- tended to expand the definition of the offense so as to include any discrimination in freight or passenger rates that the court or jury may deem unjust. It is the intent of the clause not to confine the plaintiffs, to the simple fact which makes the prima fade case, but allow them to introduce "other evidence tending to show" the dis- crimination involved in the prima facie case was unjust. St. L., A. & T. H. R. R. v. Hill, 14 Bradw. 579. 2684. Where the distance from A. to B. was 14 miles and from C. to B. was 28 miles, and the schedule of reasonable maximum freight rates established by the commissioners for appellant's railroad was 114.22 per car load from A. to B. and $17.58 from C. to B., and the com- pany charged $17.40 per car load for the latter distance and $5 for the former: Held, that this was no unjust discrimination within the meaning of the act of 1873. Ib. 2685. Where a railway company charged a shipper 2 cents more per 100 pounds per car load for carrying certain wheat from C. to B. than it charged others for wheat shipped from C. and consigned to and delivered in the B. elevator in B.: Held, that the case fell directly within the statute. The right of the company to compel the shipper under the penalty of a higher rate of toll, to ship his freights to a particular consignee, cannot be admitted. 76. 2686. The law imposes a duty on a common carrier to make no un- just, injurious or arbitrary discriminations between individuals in its dealings with the public. The right to the transportation services of the common carrier, is a common right, belonging to every one alike. 76. 2687. SAME distinctive purposes of sections 1 and 6 of the stat- ute. 1 of the act against unjust discriminations by railway corpora- tions, is directed against discriminations between localities through unequal charges for the same transportation, in the same direction, over equal parts of their roads; and it is violated when all are com- pelled to pay for transportation for the shorter distance a rate equal to or greater than that charged for the same transportation in the same direction for the longer distance, as well as when one or a few individuals are compelled to do so. III. C. R. R. v. People, 121 111. 304. 2688. 6 of the act simply gives a right of action against a railway company to any person or corporation which has paid the company extortionate charges, or charges for receiving or handling freight in violation of the provisions of the act, and which has therefore been unjustly discriminated against by such railway company in its charges, AND EMINENT DOMAIN. 325 for three times the amount of the damages sustained by the party aggrieved. That section has nothing to do with suits by the state, and its purpose is to afford a personal indemnity in cases of personal injury occasioned by the unjust discrimination. 76. 2689. SAME discriminations as between localities, not involving the element of competition in trade. On a prosecution by the people, against a railway company, to recover the penalty imposed by 4 of the act of 1873, for an unjust discrimination in charges between locali- ties, it is not incumbent on the people to prove a personal discrimina- tion and a personal injury as between individuals, but it is sufficient merely to prove a discrimination as between localities, omitting speci- fic evidence of its effect upon different individuals. Ib. 2690. So the fact that there may be no competition in a particular trade between two points upon a railroad, does not show that a dis- crimination in charges for transportation, as between such points, is not unjust. Ib. 2691. In this case it appeared that a railway company charged ten cents per hundred pounds for carrying green coffee in the sack from Chicago to Mattoon, a distance of one hundred and twenty-two miles, and on the same day charged another person sixteen cents per hundred for carrying coffee in the sack from Chicago to Kankakee, a distance of only fifty-six miles, the transportation in both instances being in the same direction and over the same road. In a suit by the state to recover the penalty for unjust discrimination, the defendant showed that there was no competition between Kankakee and Mattoon in the grocery trade, and claimed that the discrimination between these points was not unjust, and therefore allowable: Held, that the fact so shown constituted no defense to the action. Ib. 2692. SAME discrimination at competitive points . The fact that at a given point there is competition among railroads for the trans- portation of freights, and some of them are charging reduced or "cut" rates, will not justify another railway company in discriminating in favor of such point as against other points on the line of its road. Ib. 2693. A reduced or "cut" rate by a railway company to meet a "cut" rate of a rival road, which reduced or "cut" rate discriminates against a non-competitive point, is not, of itself, within the meaning of the statute, a just discrimination. Ib. 2694. The rivalry at competing points, which the statute declares shall not justify a discrimination in charges, has not reference solely to such as competes for a common business to a common market. It may apply to the same or different markets, and to roads having dif- ferent termini. Ib. 2695. SAME instances where there may be a just discrimination. There may be some greater expense to a railway company in carrying goods a given short distance than for a longer distance per mile, owing to the stopping and starting of trains, loading and unloading, the wear of machinery, &c.; and when it has full loads for its cars in each direction, it may carry more cheaply than when it is obliged to run its cars empty, or only partially loaded, in one direction, or only partially loaded in both directions. For these and other reasons affecting the cost of carriage, a company may often afford to carry the longer distance to or from competitive points more cheaply, pro rata, than for the shorter distance. Discriminations made in good faith because of such circumstances, are just, and not within the statute. Ib. 2696. RIGHT OF ACTION. Before the railroad commissioners had assigned a railway company to any class as required by the act of 1871, a passenger sued the company for charging him fare exceeding 326 EAILEOADS, WAREHOUSES, three cents a mile, and there was no proof that the charge was unrea- sonable or as to what class the road did belong: Held, that the plain- tiff could not recover. Moore v. /. C. R. R., 68 111. 385. 2697. SAME BEFORE KATES FIXED. Until the railroad commis- sioners have fixed the maximum rates of charges, a railway company cannot incur any liability under the act of 1873 for unreasonable charges. After such rates are made, the taking of the rates named, or less rates will not subject the company to the penalty, even though trie proof shows them to be more than fair and reasonable rates. C., B. & Q. R. R. v. People, 77 111. 443. 2698. To maintain the action it must be shown that the com- pany has not only made a discrimination in its rates of tolls, but also that such discrimination is unjust. St. L., A. & T. H. R. R. v. Hill, 11 Bradw. 248. 2699. The schedule of rates required by the statute to be fixed by the railroad and warehouse commissioners, is only prima fa,000), nor more than ten thousand dollars ($10,000), and 'or the third offense not less than ten thousend dollars ($10,- 000), nor more than twenty thousand dollars ($20,000); and for every subsequent offense and conviction thereof, shall be liable to a fine of twenty-five thousand dollars ($25,000): Provided, that in all cases under this act either party shall have the right of trial by jury. [See "Quo Warranto," ch. 112, 1-6.] 2711. APPEAL to what court. In an action of debt by the state's AND EMINENT DOMAIN. 329 attorney for extortion or unjust discrimination no appeal lies from an order dismissing the suit, to the supreme court. It should be taken to the appellate court. People v. St. Louis & Cairo R. R., 106 111. 412. 2112. PROCEEDINGS TO EECOVEE PINES. 5. The fines hereinbefore provided for may be recovered in an actio*n of debt, in the name of the people of the state of Illinois, and there may be several counts joined in the same declaration as to extortion and unjust discrimination, and as to passenger and freight rates, and rates for the use and transportation of railroad cars, and for receiving, handling or delivering freights. If, upon the trial of any cause instituted under this act, the jury shall find for the people, they shall assess and return with their verdict the amount of the fine to be imposed upon the defendant, at any sum not less than one thousand dollars ($1,000) nor more than five thousand dollars ($5,000), and the court shall render judgment accordingly; and if the jury shall find for the people, and that the defendant has been once before convicted of a violation of the provisions of this act, they shall return such finding with their verdict, and shall assess and return with their verdict the amount of the fine to be imposed . A upon the defendant, at any sum not less than five thousand dollars ($5,000) nor more than ten thous- and dollars ($10,000), and the court shall render judgment accordingly; and if the jury shall find for the people, and that th.Q defendant has been twice before convicted of a vio- lation of the provisions of this act, with respect to extortion or unjust discrimination, they shall return such finding with their verdict, and shall assess and return with their verdict the amount oH the fine to be imposed upon the defendant, at any sum not less than ten thousand dollars ($10,000) nor more than twenty thousand dollars ($20,000); and in like manner, for every subsequent offense and conviction, such defendant shall be liable to a fine of twenty-five thousand dollars ($25,000) : Provided, that in all cases under the pro- visions of this act, a preponderance of evidence in favor of the people shall be sufficient to authorize a verdict and judg- ment for the people. 2718. ACTION. Before an action lies for the penalty, a schedule of rates must be established as provided in 8 of the act classifying the freights, and the same published for the requisite period. Form of declaration. C., B. & Q. R. R. v. People, 77 111. 443; St. L. & C. R. R. v. Blackwood, 14 Bradw. 503. 2714. DAMAGES TREBLE AND ATTORNEY'S FEE. 6. If any such railroad corporation shall, in violation of any of the provisions of this act, ask, demand, charge or receive of any person or corporation any extortionate charge or charges for the transportation of any passengers, goods, merchandise or property, or for receiving, handling or delivering freights, 330 KAILROADS, WAREHOUSES, or shall make any unjust discrimination against any person or corporation in its charges therefor, the person or corpora- tion so offended against may, for each offense, recover of such railroad corporation, in any form of action, three times the amount of the damages sustained by the party aggrieved, together "with cost of suit and a reasonable attorney's fee, to be fixed by the court where the same is heard, on appeal or otherwise, and taxed as a part of the costs of the case. 2715. The action given being penal in its nature, is barred in two years by the limitation law. St. L., A. & T. H. R. R. v. Hill, 11 Bradw. 248. 2716. The declaration must show a discrimination which was un- just to the plaintiff. Corporation may traverse charge of extortion. Ib. 2717. Action being highly penal the statute will be strictly con- strued and the case clearly brought within its provisions. Ib. 2718. Counts concluding "contrary to the form of the statute,'' shows the action is founded on the statute. Ib. 2719. DUTIES OF RAILROAD AND WAREHOUSE COMMISSION- ERS. 7. It shall be the duty of the railroad and warehouse commissioners to personally investigate and ascertain whether the provisions of this act are violated by any railroad corpo- ration in this state, and to visit the various stations upon the line of each railroad for that purpose, as often as practicable; and whenever the facts, in any manner ascertained by said commissioners, shall in their judgment warrant such pros- ecution, it shall be the duty of said commissioners to im- mediately cause suits to be commenced and prosecuted against any railroad corporation which may violate the pro- visions of this act. Such suits and prosecutions may be instituted in any county in this state through or into which the line of the railroad corporation sued for violating this act may extend. And such railroad and warehouse commis- sioners are hereby authorized, when the facts of the case presented to them shall, in their judgment, warrant the com- mencement of such action, to employ counsel to assist the attorney general in conducting such suit on behalf of the state. No such suits commenced by said commissioners shall be dismissed, except said railroad and warehouse commis- sioners and the attorney general shall consent thereto. 2720. SCHEDULE OF RATES TO BE MADE EVIDENCE 8. The railroad and warehouse commissioners are hereby direc- ted to make, for each of the railroad corporations doing busi- ness in this state, as soon as practicable, a schedule of rea- sonable maximum rates of charges for the transportation of passengers and freights, and cars of each of said railroads; and said schedule shall in all suits brought against such rail- road corporations wherein is, in any way involved the charges of any such railroad corporation for the transportation of any AND EMINENT DOMAIN. 331 passenger or freight, or cars, or unjust discrimination in relation thereto, be deemed and taken in all courts of this state as prima facie evidence that the rates therein fixed, are reasonable maximum rates of charges for the transportation of passengers and freights, and cars upon the railroads for which said schedules may have been respectively prepared. Said commissioners shall, from time to time, as often as cir- cumstances may require, change and revise said schedules. When any schedule shall have been made or revised, as afore- said, it shall be the duty of said commissioners to have the same printed by the state printer under the contract govern- ing the state printing, and said commissioners shall furnish two copies of such printed schedule to the president, general superintendent or receiver of each railroad company or cor- poration doing business in this state. All such schedules heretofore or hereafter made shall be received and held in all such suits as prima facie the schedules of said commis- sioners, without further proof than the production of the schedule desired to be used as evidence, with a certificate of the railroad and warehouse commissioners that the same is a true copy of a schedule prepared by them for the railroad company or corporation therein named. [As amended by act approved June 30, 1885. In force July 1, 1885. L. 1885, p. 232. 2721. Until the rates of charges are fixed by the commissioners no liability can be incurred under the statute for extortionate charges. C., B. & Q. R. R. v. People, 11 111. 443. 2722. Classification of the freights is a part of the schedule, and should be published as such to give validity to the schedule of maxi- mum charges. St. L., &c., R. R. v. Blackioood, 14 Bradw. 503. 2723. Special charters giving the right to fix charges held not to prevent the state from fixing rates by general laws. Ruggles v. Illi- nois, 108 U. 8. 526; /. C. R. R. v. Illinois, Id 541. 2724. EVIDENCE FINES PRACTICE. 10. In all cases under the provisions of this act, the rules of evidence shall be the same as in other civil actions, except as hereinbefore otherwise provided. All fines recovered under the provisions of this act shall be paid into the county treasury of the county in which the suit is tried, by the person collecting the same, in the manner now provided by law, to be used for county purposes. The remedies hereby given shall be regarded as cumulative to the remedies now given by law against rail- road corporations, and this act shall not be construed as repealing any statute giving such remedies. Suits com- menced under the provisions of this act shall have pre- cedence over all other business, except criminal business. 2725. "BAILROAD CORPORATION" DEFINED. 11. The term "railroad corporation," contained in this act, shall be 332 EAILKOADS, WAREHOUSES, deemed and taken to mean all corporations, companies or in- dividuals now owning or operating, or which may hereafter own or operate any railroad, in whole or in part, in this state; and the provisions of this act shall apply to all per- sons, 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 cor- porations hereinbefore mentioned. [ 12, repeal, omitted. See "Statutes," ch. 131, 5. See ante, 2457-2482.] 2725a. As to the ruling of the courts in some of the other states in respect to extortion and unjust discriminations see State v. Concord R. R., 59 N". H. 85; Commonwealth v. Housatonic R. R., 143 Mass. 264; State v. C. & N. W. Ry., 70 Iowa, 162; Scojield v. Ry. Co.', 43 Ohio St. 571; W. & St. P. R. R. v. Blake, 94 U. S. 180; Commonwealth v. East- ern R. R., 103 Mass. 258; Sanford v. R. R., 24 Pa. St. 378; Messenger v.Perm. R. R., 36 N. J. Law, 407, 412; McDuffee v. R. R. Co., 52 N. H. 447; Shipper v.R. R. Co., 47 Pa. St. 338; Audenried \. P. R. R. Co., 68 Pa. St. 370; New England Express Co. v. M. C. R., 57 Me. 188: G. W. Ry. v. Sutton, 4 Eng. & Ir. App. 226; State v. D., L. & W. R.R.,48 N. J. (Law) 55; Woodhouse v. R. &. Ry., 67 Tex. 416. RAILROAD CROSSINGS. An act in regard to the dangers incident to railroad crossings on the same level. Approved June 3, 1887. In force July 1, 1887. [Laws of 1887, p. 252. R. S. 1887, p 1015, 76o, 76b; 3 S. & C., 1887, p. 449. 2726. TWO OB MORE RAILROADS CROSSING EACH OTHER ON SAME LEVEL REQUIREMENTS. 1. Be it enacted by the peo- ple of the state of Illinois, represented in the general assem- bly, That when, and in case two or more railroads crossing each other at a common grade, shall by a system of interlock- ing and automatic signals, or by other works, fixtures and machinery to be erected by them, or either of them, render it safe for engines and trains to pass over such crossing with- out stopping, and such system of interlocking and signals, works or fixtures, shall first be approved by the railroad and warehouse commissioners, or any two of them, and a plan of such interlocking and signals, works or fixtures, for such crossing designating the plan of crossing, shall have been filed with such railroad and warehouse commissioners, then, and in that case, it is hereby lawful for the engines and trains of any such railroad or railroads to pass over said crossing without stopping, any law, or the provisions of any law now in force, to the contrary notwithstanding; and all such other provisions of laws, contrary hereto, are hereby declared not to be applicable in such case: Provided, that the said railroad and warehouse commissioners shall have power in case such interlocking system, in their judgment, shall by experience prove to be unsafe or impracticable, to order the same to be discontinued. AND EMINENT DOMAIN. 333 2727. CIVIL ENGINEER TO EXAMINE SYSTEM, ETC COM- PENSATION. 2. The said railroad and warehouse commis- sioners may appoint a competent civil engineer to examine such proposed system and plans, and report the result of such examination for th* information of such railroad and warehouse commissioners; and said railroad and warehouse commissioners are hereby authorized to allow and reward five dollars per day as a compensation for the services of such civil engineer, or such reasonable sum as such commissioners shall deem fit, and to allow and reward such other and further sums, as they shall deem fit to pay all other fees, costs and expenses to arise under said application, to be paid by the railroad company or companies in interest, to be taxed and paid or collected as in other cases. And the said railroad and warehouse commissioners are also empowered, on appli- cation for their approval of any such system of interlocking and signals, works or fixtures, to require of the applicant security for such fees, costs and expenses, or the deposit, in lieu thereof, of a sufficient amount in money for that purpose to be fixed by them. WEIGHING GRAIN IN BULK BY BAILED AD COMPANY. An act relating to the receipt, shipment, transportation and weighing of grain in bulk by railroad companies. Approved June 15, 1887- In force July 1, 1887. [L. 1887, p. 253; R. 8. 1887, p. 1040; 3 S. & 0., p. 448.J 2728. EOAD RECEIVING FOR TRANSPORTATION SHALL FUR- NISH SUITABLE APPLIANCES FOR WEIGHING, ETC. 1. Be it 6H- acted by the people of the state of Illinois, represented in the general assembly, That in all counties of the third class, and in all cities having not less than 50,000 inhabitants, where bulk grain, millstuffs or seeds are delivered by any railroad trans- porting the same from initial, points to another road for trans- portation to other points, such road or roads receiving the same for transportation to said points, or other connections leading thereto, shall provide suitable appliances for unloading, weighing and transferring such property from one car to another without mixing or in any way changing the identity of the property so transferred, and such property shall be accurately weighed in suitably covered hopper scales, which will determine the actual net weight of the entire contents of any carload of grain, millstuffs or seeds at a single draft, without gross or tare, and which weights shall always be given in the receipts or bills of lading and used as the basis of any freight contracts affecting such shipments between such railroad companies and the owners, agents or shippers of such grain, millstuffs or seeds so transported and trans- ferred. 2729. WHERE ORIGINAL CAR RUNS THROUGH WITHOUT 334 RAILROADS, WAREHOUSES, TRANSFER. 2. The practice of loading grain, millstuffs or seeds into foreign or connecting line cars at the initial point from which the grain, millstuffs or seeds are originally shipped, or the running of the original car through without transfer, shall not relieve the railroad making the contract to transport the same to its destination or connection leading thereto, from weighing and transferring such property in the manner aforesaid, unless the shipper, owner or agent of such grain, millstuffs or seeds shall otherwise order or direct. 2730. LIABILITY OF RAILROAD COMPANY FOR NEGLECT OR FAILURE PROCEEDINGS. 3. Any railroad company neg- lecting or refusing to comply promptly with any and all of the requirements of either sections one or two of this act, shall be liable in damages to the party interested, to be recovered by the party damaged in an action of assumpsit, and such party may proceed by mandamus against any railroad company so refusing or neglecting to comply with the requirements of this act; and if the ship- per, owner or agent of any such grain, millstuffs or seeds shall fail or neglect to proceed by mandamus, it shall then be the duty of the railroad and warehouse commissioners of this state, upon complaint of the party or parties interested, to proceed against the railroad failing or refusing to comply with the provisions of this act; and all the powers heretofore conferred by law upon the board of railroad and warehouse commissioners of this state, shall be applicable in the con- duct of any legal proceeding commenced by such commis- sioners under this act. 2731. PENALTY, HOW RECOVERED. 4. Any railroad com- pany so refusing or neglecting as aforesaid, shall be liable to a penalty of not less than $100 nor more than $500 for each neglect or refusal as aforesaid, to be recovered in an action of assumpsit in the name of the people of the state of Illinois for the use of the county in which such act or acts of neglect or refusal shall occur, and it shall be the duty of the railroad and warehouse commissioners to cause prosecutions for such penalties to be instituted and prosecuted. WAREHOUSES. An act to regulate public warehouses, and the warehousing and inspection of grain, and to give effect to article thirteen of the constitution of this state. Approved April >, 1871. In force July 1, 1871. [L. 1871-2, p. 762; R. S. 188~, p. 1027; S. & C., p. 1906; Coth- ran p. 1172.] 2732. This act does not violate either the state or federal consti- tution. Munn v. People, 69 111. 80; People v. Harper, 91 111. 357; Munn v. Illinois, 94 U. S. 113. 2733. There is no constitutional provision which prohibits the legislature from committing the inspection of grain to a board created for that purpose. People v. Harper, 91 111. 357. AND EMINENT DOMAIN. 335 2734. CLASSIFIED. 1. Be it enacted by the poeple of the State of Illinois, represented in the general assembly, That public warehouses, as defined in article 13 of the constitu- tion of this state, shall be divided into three classes, to be designated as classes A., B. and C., respectively. 2735. CLASSES DEFINED. 2. Public warehouses of class A. shall embrace all warehouses, elevators and granaries in which grain is stored in bulk, and in which the grain of dif- ferent owners is mixed together, or in which grain is stored in such a manner that the identity of different lots or parcels cannot be accurately preserved, such warehouses, elevators or granaries being located in cities having not less than 100,000 inhabitants. Public warehouses of class B shall embrace all other warehouses, elevators or granaries in which grain is stored in bulk, and in which the grain of dif- ferent owners is mixed together. Public warehouses of class C shall embrace all other warehouses or places where prop- erty of any kind is stored for a consideration. 2736. Statute relating to inspection of grain in Chicago, although in a certain sense local and special, is not within the constitutional prohibition against such legislation. People v. Harper, 91 111. 357. 2737. LICENSE. 3. The proprietor, lessee or manager of any public warehouse of class A shall be required, before transacting any business in such warehouse, to procure from the circuit court of the county in which such warehouse is situated, a license, permitting such proprietor, lessee or mana- ger to transact business as a public warehouseman under the laws of this 'state, which license shall be issued by the clerk of said court upon a written application, which shall set forth the location and name of such warehouse, and the individual name of each person interested as owner or principal in the management of the same; or, if the warehouse be owned or managed by a corporation, the names of the president, sec- retary and treasurer of such corporation shall be stated; and the said license shall give authority to carry on and conduct the business of a public warehouse of class A in accordance with the laws of this state, and shall be revocable by the said court upon a summary proceeding before the court, upon complaint of any person in writing, setting forth the particu- lar violation of law, and upon satisfactory proof, to be taken in such manner as may be directed by the court. 2738. BOND. 4. The person receiving a license as herein provided, shall file with the clerk of the court grant- ing the same, a bond to the people of the state of Illinois, with good and sufficient surety, to be approved by said court, in the penal sum of $10,000, conditioned for the faithful per- formance of his duty as public warehouseman of class A, 336 RAILROADS, WAREHOUSES, and his full and unreserved compliance with all laws of this state in relation thereto. 2739. PENALTY FOR DOING BUSINESS WITHOUT LICENSE. 5. Any person who shall transact the business of a public warehouse of class A without first procuring a license as herein provided, or who shall continue to transact any such business after such license has been revoked (save only that he may be permitted to deliver property previously stored in such warehouse), shall, on conviction, be fined in a sum not less than $100 nor more than $500 for each and every day such business is so carried on; and the court may refuse to renew any license, or grant a new one, to any of the persons whose license has been revoked, within one year from the time the same was revoked. 2740. NOT TO DISCRIMINATE NOT TO MIX GRADE RE- CEIPTS. 6. It shall be the duty of every warehouseman of class A to receive for storage any grain that may be ten- dered to him, in the usual manner in which warehouses are accustomed to receive the same in the ordinary and usual course of business, not making any discrimination between persons desiring to avail themselves of warehouse facilities such grain, in all cases, to be inspected and graded by a duly authorized inspector, and to be stored with grain of a similar grade, received at the same time, as near as may be. In no case shall grain of different grades be mixed together while in store; but, if the owner or consignee so requests, and the warehouseman consent thereto, his grain of the same grade may be kept in a bin by itself, apart from that of the owners; which bin shall, thereupon, be marked and known as a "sep- arate bin." If a warehouse receipt be issued for grain so kept separate, it shall state, on its face, that it is in a sepa- rate bin, and shall state the number of such bin; and no grain shall be delivered from such warehouses unless it be inspected on the delivery thereof by a duly authorized inspector of grain. Nothing in this section shall be so con- strued as to require the receipt of grain into any warehouse in which there is not sufficient room to accommodate or store it properly, or in cases where such warehouse is necessarily closed. 274-1. MANNER OF ISSUING RECEIPTS. 7. Upon applica- tion of the owner or consignee of grain stored in a public warehouse of class A, the same being accompanied with evi- dence that all transportation or other charges which may be a lien upon such grain, including charges for inspection, have been paid, the warehouseman shall issue to the person entitled thereto, a warehouse receipt therefor, subject to the order of the owner or consignee, which receipt shall bear AND EMINENT DOMAIN. 337 date corresponding with the receipt of grain into store, and shall state upon its face the quantity and inspected grade of the grain, and that the grain mentioned in it has been re- ceived into store, to be stored with grain of the same grade by inspection, received at about the date of the receipt, and that it is deliverable upon the return of the receipt, properly indorsed by the person to whose order it was issued, and the payment of proper charges for storage. All warehouse re- ceipts for grain, issued from the same warehouse, shall be consecutively numbered; and no two receipts, bearing the same number, shall be issued from the same warehouse dur- ing any one year, except in the case of a lost or destroyed receipt, in which case the new receipt shall bear the same date and number as the original, and shall be plainly marked on its face "duplicate." If the grain was received from rail- road cars, the number of each car shall be stated upon the receipt, with the amount it contained; if from canal boat or other vessel, the name of such craft; if from teams or by other means, the manner of its receipt shall be stated on its face. 2742. CANCELING RECEIPTS. 8. Upon the delivery of grain from store, upon any receipt, such receipt shall be plainly marked across its face with the word "canceled," with the name of the person canceling the same, and shall there- after be void, and shall not again be put in circulation, nor shall grain be delivered twice upon the same receipt. 2743. FURTHER or ISSUING AND CANCELING RECEIPTS. 9. No warehouse receipt shall be issued, except upon the actual delivery of grain into store, in the warehouse from which it purports to be issued, and which is to be represented by the receipt; nor shall any receipt be issued for a greater quantity of grain than was contained in the lot or parcel stated to have been received; nor shall more than one receipt be issued for the same lot of grain, except in cases where receipts for a part of a lot are desired, and then the aggregate receipts for a particular lot shall cover that lot and no more. In cases where a part of the grain represented by the receipt is delivered out of store and the remainder is left, a new receipt may be issued for such remainder; but such new receipt shall bear the same date as the original, and shall state on its face that it is balance of receipt of the original number; and the receipt upon which a part has been deliv- ered shall be canceled in the same manner as if it had all been delivered. In case it be desirable to divide one receipt into two or more, or in case it be desirable to consolidate two or more receipts into one, and the warehouseman consent thereto, the original receipt shall be canceled the same as if -23 338 KAILEOADS, WAREHOUSES, the grain had been delivered from store; and the new receipts shall express on their face that they are parts of other re- ceipts, or a consolidation of other receipts, as the case may be; and the numbers of the original receipts shall also appear upon the new ones issued, as explanatory of the change, but no consolidation of receipts of dates differing more than ten days shall be permitted, and all new receipts issued for old ones canceled, as herein provided, shall bear the same dates as those originally issued, as near as may be. 2744. NOT TO LIMIT LIABILITY. 10. No warehouseman in this state shall insert in any receipt issued by him, any language in anywise limiting or modifying his liabilities or responsibility, as imposed by the laws of this state. 2745. As to the liability of a warehouseman, see Myers v. Walker, 31 111. 353; 8t. L., A. & T. H. R. R. v. Montgomery, 39 111. 335; C.&A. It. R. v. Scott, 42 111. 132; Buckingham v. Fisher, 70 111. 121; Broad- well v. Howard, 77 111. 305; Bailey v.Bensley, 87 111. 556; German Nat. Bank v. Meadowcroft, 95 111. 124. 2746. Sampler's ticket held not a warehouse receipt. P.&P.U. R. R. v. Buckley, 114 111. 337. 2747. DELIVERY OF PROPERTY. 11. On the return of any warehouse receipt issued by him, properly indorsed, and the tender of all proper charges upon the property repre- sented by it, such property shall be immediately deliverable to the holder of such receipt, and it shall not be subject to any further charges for storage, after demand for such deliv- .ery shall have been made. Unless the property represented by such receipt shall be delivered within two business hours after such demand shall have been made, the warehouseman in default shall be liable to the owner of such receipt for damages for such default, in the sum of one cent per bushel, and in addition thereto, one cent per bushel for each and every day of such neglect or refusal to deliver: Provided, no warehouseman shall be held to be in default in delivering if the property is delivered in the order demanded, and as rap- idly as due diligence, care and prudence will justify. 2748. Warehouseman has a lien for storage. Low v. Martin, 18 111. 286. 2748. Issue of receipts for grain not in store, does not deprive him of his lien for that actually stored. Ib. If he permits the grain to be removed before charges are paid, he does not lose his right to recover of the holder of the receipt. Purchaser takes subject to lien. Cole v. Tyng, 24 111. 99. 2749. Purchaser of receipt with notice that it is chargeable for storage becomes liable for charges. Ib. 2750. Such lien is lost by a delivery of the goods, and will not revive in case the goods accidentally be returned to warehouseman's possession. Hale v. Barrett, 26 111. 195. 2751. Where goods of different owners are shipped together the AND EMINENT DOMAIN. 339 consignee will have no lien on the goods of one for the charges due on those of the other. 76. 2752. Lien lost by agreement. Board of Trade v. Buckingham, 65 111. 72. 2753. Remedy against warehouseman for non-delivery. - Leonard v. Dunton, 51 111. 482. 2754. Warehouse receipts as evidence of ownership. Cool v. Phil- lips, 66 111. 216; Broadwell v. Howard, 77 111. 305. 2755. POSTING GRAIN IN STOKE STATEMENT TO REGIS- TRAR DAILY PUBLICATIONS CANCELED RECEIPTS. 12. The warehousemen of every public warehouse of class A shall, on or before Tuesday morning of each week, cause to be made out, and shall keep posted up in the business office of his warehouse, in a conspicuous place, a statement of the amount of each kind and grade of grain in store in his warehouse at the close of business on the previous Saturday; and shall, also, on each Tuesday morning, render a similar statement, made under oath before some officer authorized by law to administer oaths, by one of the principal owners or operators thereof, or by the bookkeeper thereof, having personal knowledge of the facts, to the warehouse registrar appointed as hereinafter provided. They shall also be required to furnish daily, to the same registrar, a' correct statement of the amount of each kind and grade of grain received in store in such warehouse on the previous day; also the amount of each kind and grade of grain delivered or shipped by such warehouseman during the previous day, and what warehouse receipts have been canceled, upon which the grain has been delivered on such day, giving the number of each receipt, and amount, kind and grade of grain received and shipped upon each; also, how much grain, if any, was so delivered or shipped, and the kind and grade of it, for which warehouse receipts had not been issued, and when and how such unreceipted grain was re- ceived by them ; the aggregate of such reported cancellations and delivery of unreceipted grain, corresponding in amount, kind and grade with the amount so reported, delivered or shipped. They shall also, at the same time, report what receipts, if any, have been canceled and new ones issued in their stead, as herein provided for. And the warehouseman making such statements, shall, in addition, furnish the said registrar any further information, regarding receipts issued or canceled, that may be necessary to enable him to keep a full and correct record of all receipts issued and canceled, and of grain received and delivered. [ 13, repealed.] 2756. CHIEF INSPECTOR. 14. 1. It shall be the duty of the governor to appoint by, and with the advice and con- sent of the senate, a suitable person, who shall not be a mem- ber of the board of trade, and who shall not be interested 340 EAILROADS, WAREHOUSES, either directly or indirectly, in any warehouse in this state, a chief inspector of grain, who shall hold his office for the term of two years, unless sooner removed as hereinafter pro- vided, for in every city or county in which is located a ware- house of class A, or class B: Provided, that no such grain inspector for cities or counties in which are located ware- houses of class B, shall be appointed, except upon the appli- cation and petition of two or more warehousemen doing a separate and distinct business, residing and doing business in such city or county, and when there shall be a legally organ- ized board of trade in such cities or counties; such applica- tion and petition shall be officially endorsed by such board of trade, before such application and petition shall be granted. 2. His DUTIES. It shall be the duty of such chief inspec- tor of grain to have a general supervision of the inspection of grain as required by this act or laws of this state, under the advice and immediate direction of the board of commis- sioners of railroads and warehouses. 3. ASSISTANT INSPECTORS. The said chief inspector shall be authorized to nominate to the commissioners of railroads and warehouses, such suitable persons, in sufficient number, as may be deemed qualified for assistant inspectors, who shall not be members of the board of trade, nor interested in any warehouse, and also such other employes as may be necessary to properly conduct the business of his office; and the said commissioners are authorized to make such appointments. 4 CHIEF INSPECTOR'S OATH AND BOND. The chief inspec- tor shall upon entering upon the duties of his office, be re- quired to take an oath, as in cases of other officers, and he shall execute a bond to the people of the state of Illinois, in the penal sum of fifty thousand dollars when appointed for any city in which is located a warehouse of class A, and ten thousand dollars, when appointed for any other city or county with sureties to be approved by the board of commissioners of railroads and warehouses, with a condition therein that he will faithfully and strictly discharge the duties of his said office of inspector according to law, and the rules and regula- tions prescribing his duties; and that he will pay all damages to any person or persons who may be injured by reason of his neglect, refusal or failure to comply with law, and the rules and regulations aforesaid. 5. ASSISTANT INSPECTOR'S OATH AND BOND. And each assistant inspector shall take a like oath; execute a bond in the penal sum of five thousand dollars, with like conditions, and to be approved in like [manner as is provided in case of the chief inspector, which said several bonds shall be filed in the office of said commissioner; and suit may be brought AND EMINENT DOMAIN. 341 upon said bond or bonds in any court having jurisdiction thereof, in the county where the plaintiff or defendant re- sides, for the use of the person or persons injured. 6. KULES or INSPECTION CHARGES. The chief inspector of grain, and all assistant inspectors of grain, and other em- ployes in connection therewith, shall be governed in their respective duties by such rules and regulations as may be prescribed by the board of commissioners of railroads and warehouses; and tlje said board of commissioners shall have full power to make all proper rules and regulations for the inspection of grain; and shall, also, have power to fix the rate of charges for the inspection of grain, and the manner in which the same shall be collected; which charges shall be regulated in such a manner as will in the judgment of the commissioners, produce sufficient revenue to meet the neces- sary expenses of the service of inspection, and no more. 7. PAY OF INSPECTOR AND ASSISTANTS, ETC. It shall be the duty of the said board of commissioners to fix the amount of compensation to be paid to the chief inspector, assistant in- spectors, and all other persons employed in the inspection service, and prescribe the time and manner of their pay- ment. 8. APPOINTMENT OF REGISTRAR AND ASSISTANTS. The said board of commissioners of railroads and warehouses are hereby authorized to appoint a suitable person as warehouse registrar, and such assistants as may be deemed necessary to perform the duties imposed upon such registrar by the pro- visions of this act. 9. GENERAL SUPERVISION PAY, ETC. The said board of commissioners shall have and exercise a general supervision and control of such appointees; shall prescribe their respec- tive duties; shall fix the amount of their compensation, and the time and manner of its payment. 10. REMOVAL FROM OFFICE. Upon the complaint, in writ- ing, of any person, to the said board of commissioners, sup- ported by reasonable and satisfactory proof, that any person appointed or employed under the provisions of this section has violated any of the rules prescribed for his government, has been guilty of any improper official act, or has been found insufficient or incompetent for the duties of his posi- tion, such person shall be immediately removed from his office or employment by the same authority that appointed him; and his place shall be filled, if necessary, by a new ap- pointment; or, in case it shall be deemed necessary to reduce the number of persons so appointed or employed, their term of service shall cease under the orders of the same authority by which they were appointed or employed. 342 KAILROADS, WAREHOUSES, 11. EXPENSES, HOW PAID. All necessary expenses incident to the inspection of grain, and to the office of registrar eco- nomically administered, including the rent of suitable offices, shall be deemed expenses of the inspection service, and shall be included in the estimate of expenses of such inspection service, and shall be paid from the funds collected for the same. [As amended by act approved and in force May 28, 1879. L. 1879, p. 226.] 2757. It is competent for the legislature to delegate to railroad and warehouse commissioners the power to control the subject of the in- spection of grain. People v. Harper, 91 111. 357. 2758. The expenses of the inspection of grain may be required to be paid by those presumably benefited by it. Ib. 2759. Although the board of commissioners are only authorized to fix the fees for inspection at such rates as may be necessary to meet the expenses, yet if more is collected than necessary, the chief inspec- tor cannot retain the same. Ib. 2760. INSPECTOR, APPOINTMENT OF. There can be no legally appointed inspectors of grain except they are appointed by the gov- ernor in the manner pointed out in the amendatory act of 1879, 14. 2761. Sureties on chief inspector's bond are not responsible for moneys collected by him for inspection, where the duty of collecting and taking care of the same, is not imposed on him before the execu- tion of his bond. People v. Tomphins, 74 111. 482. 2762. The people of the state of Illinois are proper parties plaintiff in an action upon such bond, although the sum when recovered must be paid into the inspection fund. People v. Harper, 91 111. 357. 2763. The allegation of the expiration of the principal's term of office and the appointment of his successor, is sufficient in a declara- tion upon inspector's bond, without showing the qualification of the successor. Ib. 2764. KATES OF STORAGE. 15. Every warehouseman of public warehouses of class A shall be required, during the the first week in January of each year, to publish in one or more of the newspapers (daily, if there be such,) published in the city in which such warehouse is situated, a table or schedule of rates for the storage of grain in his warehouse during the ensuing year, which rates shall not be increased (except as provided for in section (1C) of this act) during the year; and such published rates, or any published reduc- tion of them, shall apply to all grain received into such ware- house from any person or source, and no discrimination shall be made directly or indirectly, for or against any charges made by such warehouseman for the storage of grain. The maximum charge for storage and handling of grain, including the cost of receiving and delivering, shall be, for the first ten days or part thereof, one and one-quarter (1^) cents per bushel, and for each ten days, or part thereof after the first ten days one-half of one cent per bushel : Provided, however, that grain damp, or liable to early damage, as indicated by its inspection when received, may be subject to two cents per AND EMINENT DOMAIN. 343 bushel storage, for the first ten days, and for each additional five days, or part thereof not exceeding one-half of one cent per bushel: Provided, further, that where grain has been received in any such warehouse prior to the first day of March, 1877, under any express or implied contract to pay and receive rates of storage different from those prescribed by law, or where it has been received under any custom or usage prior to said day to pay or receive rates of storage different from the rates fixed by law, it shall be lawful for any owner or manager of such warehouse to receive and col- lect such agreed or customary rates. [As amended by act approved May 21, 1877. In force July 1, 1877. L. 1877, p. 169.] 2705. As to the constitutional power of the legislature to fix and regulate charges. Munn v. People, 69 111. 80; Munn v. Illinois, 94 U. S. 113; People v. Harper, 91 111. 357. 2766. LOSS BY FIRE HEATING ORDER OF DELIVERY- GRAIN OUT OF CONDITION. 16. No public warehouseman shall be held responsible for any loss or damage to property by fire, while in his custody, provided reasonable care and vigilance be exercised to protect and preserve the same; nor shall he be held liable for damage to grain by heating, if it can be shown that he has exercised proper care in handling and storing the same, and that such heating or damage was the result of causes beyond his control; and, in order that no injustice may result to the holder of grain in any public warehouse of classes A or B, it shall be deemed the duty of such warehouseman to dispose of, by delivery or shipping, in the ordinary and legal manner of so deliv- ering, that grain of any particular grade which was first received by them, or which has been for the longest time in store in his warehouse; and, unless public notice has been given that some portion of the grain in his warehouse is is out of condition, or becoming so, such warehouseman shall deliver grain of quality equal to that received by him, on all receipts as presented. In case, however, any warehouseman of classes A or B shall discover that any portion of the grain in his warehouse is out of condition, or becoming so, and it is not in his power to preserve the same, he shall immediately give public notice, by advertisement in a daily newspaper in the city in which such warehouse is situated, and by posting a notice in the most public place (for such a purpose ) in such city, of its actual condition, as near as he can ascertain it; shall state in such notice the kind and grade of the grain, and the bins in which it is stored ; and shall also state in such notice the receipts outstanding upon which such grain will be delivered, giving the numbers, amounts and dates of each which receipts shall be those of 344 KAILROADS, WAREHOUSES, the oldest dates then in circulation or uncanceled, the grain represented by which has not previously been declared or receipted for as out of condition, or if the grain longest in store has not been receipted for, he shall so state, and shall give the name of the party for whom such grain was stored, the date it was received, and the amount of it; and the enumeration of receipts and identification of grain so dis- credited shall embrace, as near as may be, as great a quan- tity of grain as is contained in such bins; and such grain shall be delivered upon the return and cancellation of the receipts, and the unreceipted grain upon the request of the owner or person in charge thereof. Nothing herein con- tained shall he held to relieve the said warehouseman from exercising proper care and vigilance in preserving such grain after such publication of its condition; but such grain shall be kept separate and apart from all direct contact with other grain, and shall not be mixed with other grain while in store in such warehouse. Any warehouseman guilty of any act or neglect, the effect of which is to depreciate prop- erty stored in the warehouse under his control, shall he held re- sponsible as at common law, or upon the bond of such ware- houseman, and in addition thereto, the license of such warehouseman, if his warehouse be of class A, shall be re- voked. Nothing in this section shall be so construed as to permit any warehouseman to deliver any grain stored in a special bin, or by itself, as provided in this act, to any but the owner of the lot, whether the same be represented by a warehouse receipt or otherwise. In case the grain declared out of condition, as herein provided for, shall [not] be removed from store by the owner thereof within two months from the date of the notice of its being out of condition, it shall be lawful for the warehouseman where the grain is stored to sell the same at public auction, for account of said owner, by giving ten days' public notice, by advertisement in a newspaper ( daily, if there he such ), published in the city or town where such warehouse is located. 2767. TAMPERING WITH GRAIN STORED PRIVATE BINS- DRYING, CLEANING, MOVING. 17. It shall not be lawful for any public warehouseman to mix any grain of different grades together, or to select different qualities of the same grade for the purpose of storing or delivering the same, nor shall he attempt to deliver grain of one grade for another, or in any way tamper with grain while in his possession or custody, with a view of securing any profit to himself or any other person; and in no case, even of grain stored in a separate bin, shall he be permitted to mix grain of different grades together while in store. He may, however, on request of the owner of any grain stored in a private bin, be permitted to dry, AND EMINENT DOMAIN. 345 clean, or otherwise improve the condition or value of any such lot of grain; but in such case it shall only be delivered as such separate lot, or as the grade it was originally when received by him, without reference to the grade it may be as improved by such process of drying or cleaning. Nothing in this section, however, shall prevent any warehouseman from moving grain while within his warehouse for its preser- vation or safe keeping. 2768. EXAMINATION OF GRAIN AND SCALES INCORRECT SCALES. 18. All persons owning property, or who may be interested in the same, in any public warehouse, and all duly authorized inspectors of such property, shall at all times, during ordinary business hours, be at full liberty to examine any and all property stored in any public warehouse in this state, and all proper facilities shall be extended to such per- son by the warehouseman, his agents and servants, for an examination ; and all parts of public warehouses shall be free for the inspection and examination of any person interested in property stored therein, or of any authorized inspector of such property. And all scales used for the weighing of prop- erty in public warehouses shall be subject to examination and test by any duly authorized inspector or sealer of weights and measures, at any time when required by any person or persons, agent or agents, whose property has been or is to be weighed on such scales -the expense of such test by an in- spector or sealer to be paid by the warehouse proprietor if the scales are found incorrect, but not otherwise. Any ware- houseman who may be guilty of continuing to use scales found to be in an imperfect or incorrect condition by such examination and test, until the same shall have been pro- nounced correct and properly sealed, shall be liable to be proceeded against as hereinafter provided. 2769. GRAIN MUST BE INSPECTED. 19. In all places where there are legally appointed inspectors of grain, no proprietor or manager of a public warehouse of class B shall be permitted to receive any grain and mix the same with the grain of other owners, in the storage thereof, until the same shall have been inspected and graded by said inspector. 2770. This section applies only to places where there are inspectors of grain appointed under this act. Inspectors appointed by the board of trade are not legally appointed under this section. E. St. L. Board of Trade v. People, 105 111. 382. 2771. ASSUMING TO ACT AS INSPECTOR. 20. Any person who shall assume to act as an inspector of grain, who has not first been so appointed and sworn, shall be held to be an im- poster, and shall be punished by a fine of not less than $50 nor more than $100 for each and every attempt to so inspect grain, to be recovered before a justice of the peace. 346 KAILBOADS, WAREHOUSES, 2772. The offense created can only occur in a place where there are legally appointed inspectors under this law. In the absence of such appointment, any person may lawfully act as inspector. Dutcher v. People, 11 Bradw. 312; E. St. L. Board of Trade v. People, 105 111. 382. 2773. MISCONDUCT OF INSPECTOR INFLUENCING. Any duly authorized inspector of grain who shall be guilty of neglect of duty, or who shall knowingly or carelessly inspect or grade any grain improperly, or who shall accept any money or other consideration, directly or indirectly, for any neglect of duty, or the improper performance of any duty as such inspector of grain; and any person who shall improperly in- fluence any inspector of grain in the performance of his duties as such inspector, shall be deemed guilty of a misde- meanor, and, on conviction, shall be fined in a sum not less than 100 nor more than $1,000, in the discretion of the court, or shall be imprisoned in the county jail not less than three nor more than twelve months, or both, in the discretion of the court. 2774. OWNER, ETC., DISSATISFIED WITH INSPECTION HIS RIGHTS. 21. In case any owner or consignee of grain shall be dissatisfied with the inspection of any lot of grain, or shall, from any cause, desire to receive his property without its passing into store, he shall be at liberty to have the same withheld from going into any public warehouse (whether the property may have previously been consigned to such ware- house or not), by giving notice to the person or corporation in whose possession it may be at the time of giving such notice; and such grain shall be withheld from going into store, and be delivered to him, subject only to such proper charges as may be a lien upon it prior to such notice. The grain, if in railroad cars, to be removed therefrom by such owner or consignee within twenty-four hours after such notice has been given to the railroad company having it in posses- sion: Provided, such railroad company place the same in a proper and convenient place for unloading; and any person or corporation refusing to allow such owner or consignee to so receive his grain shall be deemed guilty of conversion, and shall be liable to pay such owner or consignee double the value of the property so converted. Notice that such grain is not to be delivered into store may also be given to the pro- prietor or manager of any warehouse into which it would otherwise have been delivered, and if, after such notice, it be taken into store in such warehouse, the proprietor or mana- ger of such warehouse shall be liable to the owner of such grain for double its market value. 2775. COMBINATION. 22. It shall be unlawful for any proprietor, lessee or manager of any public warehouse, to enter into any contract, agreement, understanding, or combi- AND EMINENT DOMAIN. 347 nation, with any railroad company or other corporation, or with any individual or individuals, by which the property of any person is to be delivered to any public warehouse for storage or for any other purpose, contrary to the direction of the owner, his agent, or consignee. Any violation of this sec- tion shall subject the offender to be proceeded against as pro- vided in section 23 of this act. 2776. SUITS. 23. If any warehouseman of class A shall be guilty of a violation of any of the provisions of this act, it shall be lawful for any person injured by such viola- tion to bring suit in any court of competent jurisdiction, upon the bond of such warehouseman, in the name of the people of the state of Illinois, to the use of such person. In all crimi- nal prosecutions against a warehouseman, for the violation of any of the provisions of this act, it shall be the duty of the prosecuting attorney of the county in which such prosecution is brought, to prosecute the same to a final issue, in the name of and on behalf of the people of the state of Illinois. 2777. WAKEHOUSE RECEIPT NEGOTIABLE. 24. Ware- house receipts for property stored in any class of public ware- houses, as herein described, shall be transferable by the indorsement of the party to whose order such receipt may be issued, and such indorsement shall be deemed a valid trans- fer of the property represented by such receipt, and may be made either in blank or to the order of another. All ware- house receipts for property stored in public warehouses of class C shall distinctly state on their face the brand or dis- tinguishing marks upon such property. 2778. Delivery of receipt has the same effect in transferring the title to the grain as the delivery of the property itself, and no more nor less. Burton v. Curyea, 40 111. 320. 2779. Tender of warehouse receipt by the vendor of grain, is a sufficient tender of the grain, unless vendee insists on seeing the grain. McPherson v. Gale, 40 111. 368. 2780. By the act incorporating the Chicago Dock company, a warehouse receipt issued by that company, is made negotiable, and as such it absolutely vests in the holder the title to the property specified in it. Ch. Dock Co. v. Foster, 48 111. 507. 2781. Receipt being the contract of the parties cannot be varied by parol evidence. Leonard v. Dunton, 51 111. 482. 2782. Remedy against warehouseman refusing to deliver grain. Leonard v. Dunton, 51 111. 482; Bailey v. Bensley, 87 111. 556; German Nat. Bank v. Meadowcroft, 95 111. 124; Canadian Bank v. McCrea. 106 111. 281. 2783. Measure of damages for failure to deliver grain. Leonard v. Dunton, 51 111. 482. 2784. The addition of these words at end of the receipt: "Subject to their order, for all advances of money on the same," will not con- vert it into a mere pledge and render the grain liable to an execution against the party giving it, issued after the date of the receipt. Cool v. Carmichael, 66 111. 216. 348 KAILKOADS, WAREHOUSES, 2785. Where warehouseman purchases grain stored with him of the owner for another, and takes up his receipt and gives another to the person for whom he bought and whose money he used: Held, that the grain was not liable to be taken on execution against the ware- houseman. Broadwell v. Howard, 77 111. 305. 2786. Commission merchant in Chicago may, by a custom of trade obtaining there, dispose of warehouse receipts for grain consigned to him, provided he keeps on hand other like receipts for the same quan- tity and quality of grain. The receipts do not represent the consignor's property. They are merely evidences of a debt to the consignee. Bailey v. Bensley, 87 111. 556. 2787. Person succeeding to the possession of warehouse and the grain stored therein, becomes liable to the holders of warehouse re- ceipts, and subject to the same remedies as the former proprietor. German Nat. Bank v. Meadowcroft, 95 111. 124 . 2788. Statute relating to negotiable instruments does not embrace warehouse receipts. The title vested in the assignee is not the same as that passed to the assignee of a note. Canadian Bank v. McCrea, 106 111. 281. 2789. By this section the indorsement of a warehouse receipt is made evidence of a transfer of the grain it represents, the same as the actual delivery of the property itself. It passes the assignee's' actual title and no more. Ib. 2790. The indorsement and delivery of a warehouse receipt for flour not only transfers the title to the flour to the assignee, but also gives him a right of action for any breach of duty by the warehouse- man at any time during the bailment. Sargent v. Central Warehouse Co., 15 Bradw. 553. 2791. An indorsement in blank of a warehouse receipt by the seller authorizes the purchaser to write over the indorsement only a contract of mere assignment of the legal title, unlike the case of a negotiable note. Mida v. Qeissmann, 17 Bradw. 207. 2792. As to liability of assignor to assignee, where the warehouse- man fails. Mida v. (teissmann, 17 Bradw. 207. See also Hide & Leather Nat. Bank v. West, 20 Bradw. 61. 2793. FALSE RECEIPTS FRAUDULENT REMOVAL. 25. Any warehouseman of any public warehouse who shall be guilty of issuing any warehouse receipt for any property not actually in store at the time of issuing such receipt, or who shall be guilty of issuing any warehouse receipt in any res- pect fraudulent in its character, either as to its date or the quantity, quality, or inspected grade of such property, or who shall remove any property from store (except to preserve it from fire or other sudden danger), without the return and cancellation of any and all outstanding receipts that may have been issued to represent such property, shall, when convicted thereof, be deemed guilty of a crime, and shall suffer, in addition to any other penalties prescribed by this act, imprisonment in the penitentiary for not less than one, and not more than ten years. [Restricted as to receipts issued before Oct. 8, 1871. L. 1871-2, p. 774.] 2794. COMMON LAW REMEDY SAVED. 26. Nothing in AND EMINENT DOMAIN. 349 this act shall deprive any person of any common law remedy now existing. 2794a. PRINTED COPY OF ACT POSTED. 27. All propri- etors or managers of public warehouses shall keep posted up at all times, in a conspicuous place in their business offices, and in each of their warehouses, a printed copy of this act. 2795. BEPEAL. 28. All acts or parts of acts inconsist- ent with this act are hereby repealed. Au act to amend an act entitled "An act to regulate public warehouses and tiie ware" housing and inspection of grain, and to give effect to article thirteen (13) of the constitu" tion of the state," approved April 25, 1871, in force July 1 ; 1871, and to establish a commit" tee of appeal, and prescribe their duties. Approved April 15. 1873. In force July 1, 1873- [Laws of 1873, p. 189; R. S. 1887, p. 1034; S. & C. p. 1H75; Cothran, p. 1182. j 2796. COMMISSIONERS TO ESTABLISH GRADES. 1. Be it enacted by the people of the state of Illinois, represented in the general assembly, That the board of railroad and ware- house commissioners shall establish a proper number and standard of grades for the inspection of grain, and may alter or change the same from time to time: Provided, no modifi- cation or change of grades shall be made, or any new ones established, without public notice being given of such con- templated change, for at least twenty days prior thereto, by publication in three daily newspapers printed in each city containing warehouses of class A: And, provided further, that no mixture of old and new grades, even though desig- nated by the same name or distinction, shall be permitted while in store. 2797. COMMITTEE or APPEALS. 2. Within twenty days after this act takes effect, the board of railroad and warehouse commissioners shall appoint three discreet and competent persons to act as a committee of appeals, in every city wherein is located a warehouse of class A, who shall hold their office for one year and until their successors are appointed. And every year thereafter a like committee of appeals shall be appointed by said commissioners, who shall hold their office for one year and until their successors are appointed: Provided, said commissioners shall have power, in their discretion, to remove from office any member of said committee at any time, and fill vacancies thus created by the appointment of other discreet persons. 2798. APPEALS NOTICES. 3. In all matters involv- ing doubt on the part of the chief inspector, or any assistant inspector, as to the proper inspection of any lot of grain, or in case any owner, consignee or shipper of grain, or any warehouse manager, shall be dissatisfied with the decision of the chief inspector or any assistant inspector, an appeal may be made to said committee of appeal, and the decision of a majority of said committee shall be final. Said board of 350 RAILROADS, WAREHOUSES, commissioners are authorized to make all necessary rules governing the manner of appeals as herein provided. And all complaints in regard to the inspection of grain, and all notices requiring the services of the committee of appeal, may be served on said committee, or may be filed with the warehouse registrar of said city, who shall immediately notify said committee of the fact, and who shall furnish said com- mittee with such clerical assistance as may be necessary for the proper discharge of their duties. It shall be the duty of said committee, on receiving such notice, to immediately act on and render a decision in each case. 2799. COMMITTEE ON APPEALS OATH BOND WHO MAY SERVE ON. 4. The said committee of appeals shall, before entering upon the duties of their office, take an oath, as in case of other inspectors of grain, and shall execute a bond in the penal sum of five thousand dollars; with like conditions as is provided in the case of other inspectors of grain, which said bonds shall be subject to the approval of the board of railroad and warehouse commissioners. It is further pro- vided, that the salaries of said committee of appeals shall be fixed by the board of railroad and warehouse commissioners, and be paid from the inspection fund, or by the party taking the appeal, under such rules as the commission shall pre- scribe; and all necessary expenses incurred in carrying out the provisions of this act, except as herein otherwise pro- vided, shall be paid out of the funds collected for the inspec- tion service upon the order of the commissioners: Provided, that no person shall be appointed to serve on the committee of appeals who is a purchaser of, or a receiver of grain, or other articles to be passed upon by said committee. [As amended by act approved June 26, 1885. In force July 1, 1885. L. 1885, p. 253.] 2800. "REGISTERED FOR COLLECTION" INSPECTION FEES. 5. No grain shall be delivered from store from any ware- house of class A, for which or representing which warehouse receipts shall have been issued, except upon the return of such receipts stamped or otherwise plainly marked by the warehouse register with the words "registered for collection" and the date thereof; and said board of commissioners shall have power to fix the rates of charges for the inspection of grain, both into and out of warehouse; which charges shall be a lien upon all grain so inspected, and may be collected of the owners, receivers or shippers of such grain, in such man- ner as the said commissioners may prescribe. 2801. REPEAL. 6. Section 13 of the act to which this is an amendment, is hereby repealed: Provided, the provi- sions contained in said section shall remain in force until the AND EMINENT DOMAIN. 351 grades for the inspection of grain shall have been established by the commissioners, as provided in section 1 of this act. [ Grades fixed by commissioners, July 1, 1873. ] STATE WE1GH-MASTERS. An act to provide for the appointment of state weigh-masters. Approved June 23, 1883. In force July 1, 1883. [Laws of 1883, p. 172; K. S. 1887, p 1039; 8. & C., p. 1976.] 2802. WEIGH-MASTER APPOINTMENT OF. I. Be it enact- ed by the people of the state of Illinois, represented in the gen- eral assembly, That there shall be appointed by the railroad and warehouse commissioners in all cities where there is state inspection of grain, a state weigh-master and such assistance as shall be necessary. 2803. DUTIES OF. 2. Said state weigh-master and assistants shall, at the places aforesaid supervise and have exclusive control of the weighing of grain and other property which may be subject to inspection, and the inspection of scales and the action and certificate of such weigh-master and assistants in the discharge of their aforesaid duties shall be conclusive upon all parties in interest. 2804. Fix FEES. 3. The board of railroad and ware- house commissioners shall fix the fees to be paid for the weighing of grain or other property, which fees shall be paid equally by all parties interested in the purchase and sale of the property weighed, or scales inspected and tested. 2809. WEIGH-MASTER QUALIFICATIONS BOND COMPEN- SATION. 4. Said state weigh-master and assistants shall not be a member of any board of trade or association of like character; they shall give bonds in the sum of five thousand dollars ($5,000), conditioned for the faithful discharge of their duties, and shall receive such compensation as the board of railroad and warehouse commissioners shall determine. 2810. MAY ADOPT RULES. 5. The railroad and ware- house commissioners shall adopt such rules and regulations for the weighing of grain and other property as they shall deem proper. 2811. NEGLECT OF DUTY PENALTY. 6. In case any person, warehouseman or railroad corporation, or any of their agents or employes, shall refuse or prevent the aforesaid state weigh-master or either of his assistants from having access to their scales, in the regular performance of their duties in supervising the weighing of any grain or other prop- erty in accordance with the tenor and meaning of this act they shall forfeit the sum of one hundred dollars ($100) for each offense, to be recovered in an action of debt, before any justice of the peace, in the name of the people of the state of Illinois; such penalty or forfeiture to be paid to the county 352 KAILROADS, WAREHOUSES, in which the suit is brought, and shall also be required to pay all costs of prosecution. STOCKHOLDERS-IN DI VIDU AL LI ABILIT Y . (a.) FOB UNPAID SUBSC1UFTIONS. 2812. POWER OF SHAREHOLDER to make stock not liable to assess- ment. It is not in the power of the shareholders by agreement with the corporation to make the shares of stock issued to them non-assess- able, so as to excuse payment for such stock at its par value as against creditors. Union Mut. L. Ins. Co. v. Frear Stone Manf. Co.. 97 111. 537. 2813. REMEDY GIVEN wo application to stockholders under spe- cial charters. 25 of the act of 1872, providing for proceedings in equity against the corporation and stockholders, whereby to make the latter pay their share of the debts to the extent of their unpaid stock, after exhausting the assets of the corporation, applies only to corpora- tions organized under that law, and does not embrace bodies created by special charters. Woodcock v. Turpin, 96 111. 135. 2814. NATURE or LIABILITY several limitation. The stockhold- er's liability is limited by the amount of his subscription unpaid at the time of the service of the garnishee process, and it is several not joint. Pease v. Underwriters' Union, 1 Bradw. 287. 2815. SAME when secondary. Under 25 of the general incorpo- ration act of 1872, where the proceeding must be by suit in equity, the stockholder's liability to pay anything on his unpaid stock is deferred until the assets of the corporation are exhausted. Robertson v. Noen- inger, 20 Bradw. 227. 2816. RECOVERY LIMITED TO DEBT OF CORPORATION. A stock- holder is not bound to pay more of his subscription, or notes given therefor than is necessary to pay outstanding debts, where the corpo- ration is insolvent, and in the hands ol a receiver. Lamar Ins. Co. v. Moore, 84 111. 575. 2817. OF THE DECREE award of execution before apportionment. A creditor having exhausted his remedies against an insolvent corpo- ration is, in equity, entitled to be subrogated to its rights against its debtors for stock; and in such case, a decree finding the sum due from a subscriber to the company and awarding an execution therefor, is not erroneous. It is not necessary to apportion the pro rata share of each stockholder necessary to discharge the debt of the company to the creditor. Hickling v. Wilson, 104 111. 54. 2818. WHO MAY ENFORCE LIABILITY receiver of corporation. If a stockholder in an insurance company is a party to a decree appoint- ing a receiver of the company, it will be conclusive on him, and the receiver may maintain a suit against him in his own name. Rowell v. Chandler, 83 111. 288. But to recover, the receiver must show an appointment by a decree which is conclusive on the defendant stock- holder by his being a party to the suit against the corporation. Chan- dler v. Brown, 77 111. 333. 2819. SAME creditor with notice of defense. Where the party seeking to enforce a stockholder's individual liability, was not a cred- itor of the corporation at the time when the latter paid lor his stock in land, he will be considered as having given credit to the corpora- tion in the condition it then was, and if an examination of the books would have shown that the stock was fully paid, he cannot recover. Peckv. Coalfield Coal Co., 11 Bradw. 88. 2820. PAYMENT FOR STOCK in property binding. Where a sub- AND EMINENT DOMAIN. 353 scriber has paid for his stock in a corporation, he will not be liable under the statute for the debts of the company; and it is immaterial whether such stock is paid for in money or by the transfer of lands in good faith to the corporation. The directors cannot create a liability by declaring that the stock is not paid for. 76. 2821. REMEDY TO ENFORCE garnishment. It seems that a stock- holder who owes the company for unpaid stock upon which a call has been made and notice given, is liable to be garnisheed on a judgment against the company. Meints v. E. St. L. Co-operative Rail Mill Co., 89 111. 48. 2822. At the time of taking out summons against the corporation, the creditor may take process against any stockholder whose subscrip- tion is wholly or in part unpaid; and by service on the latter prevent further payment to the corporation for the stock, and hold the same in abeyance to abide the result of the trial in the original case; and where a recovery is had, the garnishee may be compelled to respond to such judgment creditor instead of paying his indebtedness to the corporation. Pease v. Underwriters' Union, 1 Bradw. 287. 2823. If the cause is commenced and conducted according to the statute, the whole proceeding will constitute but one case, and upon the trial of the issues formed upon the answers of the garnishee, the court will take judicial notice of the judgment against the corpora- tion. But where the garnishment is by an independent proceeding there must be proof of the creditor's judgment, and where the garni- shees deny being stockholders, the burden of proof is on the plaintiff to show their liability as such. Ib. 2824. Under 8 of the chapter on corporations, by the proceeding in garnishment, stockholders may be compelled to pay to the gar- nisheeing creditor any balance unpaid upon stock owned by them respectively, whether such stock is called in or not. Robertson v. Noeninger, 20 Bradw. 227. 2825. BEMEDY TO ENFORCE LIABILITY garnishee must be sued with corporation. To render a stockholder liable under the statute, to the extent of his unpaid stock, for the debts of the corporation, proceedings must be instituted against him at the same time that the action is brought against the corporation, The remedy given by the statute is exclusive. Peek v. Coalfield Coal Co., 3 Bradw. 619; Robert- son v. Noeninger, 20 Bradw. 227. 2826. It is not essential that the stockholder shall be proceeded against at the same time the suit is brought against the corporation, as in garnishee proceedings under the attachment act. The intention is to give the remedy as ample and complete as in cases of garnish- ment, including process after judgment. Coalfield Co. v. Peck, 98 111. 139. 2827. DECLARATION in suit by receiver. In a suit for the use of the receiver of an insolvent corporation against a stockholder to col- lect his subscription, or a note given therefor, no recovery can be had without an averment of the debts of the corporation. The declaration should also show that the capital stock paid in has been exhausted. Lamar Ins. Co. v. Moore, 84 111. 575. 2828. CREDITORS' BILL exhausting legal remedy equitable at- tachment. Under proper circumstances, creditors are not compelled to wait for the winding up of insolvent corporations, but may subject their unpaid subscriptions to the payment of their claims. They must first obtain judgment at law and have execution returned unsatisfied in whole or in part. In such case, the creditor is subrogated to the rights of the debtor corporation, and the proceeding is in the nature of an equitable attachment under which the debts due the corpora- -24 354 BAILROADS, WAREHOUSES, tion may be applied in the payment of its own liabilities. Patterson v. Lynde, 112 111. 196. 2829. COLLECTION or SUBSCRIPTION compelled by mandamus or bill in equity. A foreign insolvent corporation owing debts, if still in existence, may be compelled, by mandamus or by bill in equity, to collect its unpaid subscriptions wherever the stockholders may re- side; and if it has ceased to exist, a receiver should be appointed, and the courts of other states, as a matter of comity, would recognize the right of the receiver, the same as they would the corporation itself, if still in existence, to prosecute actions at law for the recocovery of unpaid subscriptions. Ib. 2830. CREDITOR'S BILL; -joinder of plaintiff". Two or more cred- itors of an insolvent corporation may unite in filing a creditor's bill against the corporation and its stockholders to reach unpaid subscrip- tions to the capital stock, and such bill is not multifarious. Hickling v. Wilson, 104 111. 54. 2831. SAME parties to. To enforce the liability of a stock- holder for his unpaid stock, it is indispensable that the corporation, (or, if it ceased to exist, that all of its stockholders and creditors) shall be before the court, so as to be bound by its orders and decrees, and so that complete justice may be meted out to all, and all conflicting rights and equities finally adjusted. Patterson v. Lynde, 112 111. 196. 2832. KEMEDY WHERE CORPORATION is DEFUNCT apportion- ment of burdens. Where a corporation ceases to exist, its assets in excess of what is necessary to pay its debts belong to its stockholders, and the duty of the stockholder in such case, is only to pay his pro rata share of the amount needed to pay the debts. This duty is upon all owing for stock, and it is the duty of the court to adjust the equities between the different stockholders. J6. 2833. DEFENSES judgment against corporation, fraudulent. Under the act of 1872 making stockholders liable to creditors for un- paid stock, a stockholder when sued on his subscription, can not attack the judgment against the corporation on the ground that it is collu- sive and unjust. If he can attack the judgment on that ground, he must do so in a court of equity. Coalfield Co. v. Peck, 98 111. 139. 2834. BANKRUPTCY or CORPORATION who to collect unpaid stock. Unpaid subscriptions to the capital stock of a corporation are a part of the assets of the company, and as such passes to its assignee in bankruptcy, who alone can sue for the same. Lane v. Nickerson, 99 111. 284. (6.) TO AMOUNT OF STOCK, UNTIL WHOLE CAPITAL STOCK PAID IN, &C. 2835. CONSTRUCTION insurance law of 1861. The words "trus- tees and corporators" in 16 of the insurance act of 1861, making them severally liable for all debts and responsibilities of their companies, to the amount by him or them subscribed, includes stockholders. Shu- feldt v. Carver, 8 Bradw. 545; Gulliver v. Roelle, 100 111. 141. 2836. The shareholders in all insurance companies subject to the insurance law of 1869, are liable for the debts of their companies to the full amount of their respective shares of stock, where the full amount subscribed has not been paid in. Sutler v. Walker, 80 111. 345; Tibballs v. Libby, 87 111. 142. 2837. LIABILITY NOT RELEASED by payment of his stock. A stockholder will not be relieved from this liability by the payment of his stock in full. Until the full capital stock is paid in, and a certifi- cate of that fact made and recorded, he will be liable to the extent of his stock for the debts of the company. Sutler v. Walker, 80 111. 345; Tibballs v. Libby, 87 111. 142; Gulliver v. Roelle, 100 111. 141. AND EMINENT DOMAIN. 355 2838. Until the entire capital stock shall be paid in and a certifi- cate thereof filed with, and recorded by the county clerk, the stock- holders are severally individually liable to the creditors to an amount equal to the stook held by them respectively for all debts of the com- pany. Baker v. Backus, 32 111. 79. 2839. LIABILITY -for debts of corporation not for its torts. The mere fact that a person is a stockholder or director, does not render him liable for the torts of the corporation, or its agents or servants. Peck v. Cooper, 8 Bradw. 403. 2840. SAME when under general law. If an insurance company created by special charter increases its capital stock under the general law, this in effect is an incorporation under such law, and by subscrib- ing to such stock, a party will incur the liability incurred by the gen- eral law. Tibballs v. Libby, 87 111. 142. 2841. INSURANCE LA.W OF 1869 its application to- prior compa- nies. The provision of the insurance law of 1869 making stockholders of insurance companies liable for the debts of their companies, applies to companies organized before its passage, under general laws. Arenz v. Weir, 89 111. 25. 2842. 16 of the insurance law of 1869 makes stockholders and directors of insurance companies organized under that law, severally liable for all debts of their respective companies, to the amount sub- scribed by them until the whole amount of the capital stock shall be paid in and a certified copy thereof recorded; and 19 imposes the same liability on shareholders in companies organized under special charters and brought under the provisions of the general law. Gulli- ver v. Eoelle, 100 111. 141. 2843. Under 16 of the act of 1869 as well as 2, art. 10, of the con- stitution of 1848, the word "corporators" is used in the sense of share- holders, and not in that of commissioners or promoters of the organi- zation of the companies. /&. 2844. The individual liability of a trustee or corporator of an insur- ance company to its creditors where it has not complied with the law, does not depend upon the fact that the creditor has sustained any actual loss or injury. The creditor is only bound to show that the company owes him, and that the whole amount of the capital stock of the company has not been paid in and a certificate thereof recorded. Dwersy v. Smith, 103 111. 378. 2845. WHEN LIABILITY ATTACHES not until all the capital stock is taken. A subscriber to the capital stock of a proposed corporation, until the full amount of stock fixed by law, or by the action of those connected therewith is subscribed, cannot be held individually liable for a debt of such corporation, unless for some cause he has estopped himself from alleging that the whole of the fixed capital stock was never subscribed. Temple v. Lemon, 112 111. 51. 2846. OF THE NATURE OF LIABILITY partnership. As to claims against the corporation the stockholders stand in the relation of co- partners, and one cannot sue the other at law. Meisser v. Thompson, 9 Bradw. 368. 2847. A stockholder occupies the status of a partner to the extent of his individual liability, and as a partner he must answer to the amount of his stock for the debts of the corporation. Oauch v. Har- rison, 12 Bradw. 457; Fleischer v. RentcMer, 17 Bradw. 402. 2848. The effect of a provision in the charter of a bank, making its stockholders liable to creditors of the bank on its default, to an amount equal to their stock, is to withdraw from the stockholders to the extent of their stock, the protection of the corporation, and leave 356 BAILROADS, WAREHOUSES, them to that extent liable as partners. Buchanan v. Meisser, 105 111. 638; Thompson v. Meisser, 108 111. 359. 2849. Under a bank charter providing that, "whenever default shall be made in the payment of any debt or liability contracted by said corporation, the stockholders shall be held individually responsi- ble for an amount equal to the amount of stock held by them respect- ively," &c., the liability of a stockholder for the debts of the bank is coeval with that of the bank, they both becoming bound at the same time and by the same contract. Fleischer v. lientchler, 17 Brad. 402. 2850. WHETHER PRIMARY OR SECONDARY. Under the act of 1857 relating to private corporations, the liability of stockholders to creditors of the company, is not dependent upon a suit against the company and inability to collect, but such stockholders are prima- rily liable. Culver v. Third Nat. Bank, 64 111. 528. 2851. A bank charter provided that the stockholders should "be responsible, in their individual property, in an amount equal to the amount of stock held by them respectively, to make good losses to depositors or others": Held, that the individual liability was not in the nature of a penalty, and therefore enforceable only in a court of law, but was primary, and subject to the demands of depositors and other creditors equally with the assets of the bank. Queenan v. Palmer, 117 111. 619. 2852. How MADE LIABLE. The stockholders of a corporation can be held responsible only in the mode prescribed by the act under which they became a corporation. They are not individually lia- ble, except under the circumstances and for the time specified in the act of incorporation. Baker v. Backus, 32 111. 79, 97, 99. 2853. WHEN SECONDARILY LIABLE law of 1849. Under the act of 1849 relating to railway corporations, if a claim is owing by a railway company for services performed for it, a stockholder is not liable in an action therefor, until an execution shall be returned un- satisfied, in whole or in part, against the corporation, and then the amount due on such execution is the amount recoverable with costs, against the stockholder. Outright v. Stanford, 81 111. 240. 2854. Stockholders in a corporation organized under a law making them liable individually "to the creditors" of the corporation, will not be required to pay any portion of the debts until the assets of the cor- poration are lirst exhausted. Harper v. Union Manf. Co., 100 111. 225. 2855. LIABILITY restricted to debts of a certain class. A bank charter provided, "the stockholders of this corporation shall, as to all funds deposited as savings, and in trust with said corporation, while they are stockholders, be individually liable to the extent of their stock," &c.: Held, as restricting the stockholders' liability to the particular class of deposits designated those "as savings and in trust with said corporation," and not as embracing every deposit of money. The lia- bility of the stockholder is the creature of the statute, and cannot be increased or enlarged beyond the express terms of the statute. Bromley v. Goodwin, 95 111. 118. 2856. LIABILITY TO MAKE LOANS GOOD what is a loss. A char- ter or statute making the stockholders of a corporation individually responsible in an amount equal to their stock, to "make good losses to depositors or others," will be construed to make the stockholders' lia- ble to all creditors who may suffer from the default or failure of the corporation to pay its indebtedness. The total or partial insolvency of the corporation and its neglect to pay, is a loss to the creditors in the sense of that word as used in the statute. Queenan v. Palmer, 117 111. 619. AND EMINENT DOMAIN. 357 2857. The charter of a bank contained this proviso: "Provided, also, that the stockholders in this corporation shall be individually liable, to the amount of their stock for all the debts of the corporation ; and such liability shall continue for three months after the transfer of any stock on the books of the corporation": Held, that the stockhold- ers were each individually liable to pay to the creditors of the bank, not merely the balance unpaid upon subscriptions for stock, but to the extent of the nominal or face value of the stock held by them, for debts of the bank. Root v. Hinnock, 120 111. 350. 2858. STOCKHOLDERS LIABILITY depending on time he acquired or parted witli his stock. The act of 1851 amendatory of the act of 1849, providing for the construction of plank roads, makes no distinc- tion between original subscribers to the stock and subsequent pur- chasers, in regard to their individual liability for the debts of their companies, to the extent of the amount of their stock. Gay v. Keys, 30 111. 413. 2859. SAME hypothecation or pledge. Primarily a creditor of a national bank may proceed against the party in whom the legal title to the stock is vested. Where shares of stock in a banking corpora- tion have been hypothecated and placed in the hands of the transferee, he will be subjected to all the liabilities of ordinary owners, for the rea- son the property is in his name and the legal ownership appears to be in him. Wheelock v. East, 77 111. 296. 2860. Thus where a party made a loan to a national bank, and made his promissory note, partly as an act of accommodation to the bank, to be held among their other assets, and fifty shares of its stock, equal in value to $5,000 were issued to him as security for his loans and as indemnity against liability on his note, it was held, that he was liable to the creditors of the bank as a stockholder, whatever might be his relation to the corporators of the bank. Ib. 2861. ASSIGNEE OF STOCK liability on informal transfer. If a national bank issues certificates of shares to a purchaser in lieu of the certificates of the vendor, without observing its by-laws, so far as creditors of the bank are concerned, a party taking and holding them, will be subject to the liabilities imposed by 5151 of the national bank- ing law. Laing v. Hurley, 101 111. 591. 2862. LIABILITY AS BETWEEN ASSIGNOR AND ASSIGNEE. There can be but one amount for which there is liability on account of the same share of stock, where that liability equals or exceeds the amount of such share, and for that amount both the assignor and assignee may be liable, the former in case the debt was incurred by the corporation within three months alter the assignment, where that is the limit of time during which the liability of the assignor shall continue, and the assignee, in case it was incurred after he became the holder of the stock; but there can be but one satisfaction. If the assignor is com- pelled to pay on account of debts of the corporation made within three months after his transfer of stock, he may have his action against the person owning such stock when the debt was created, and recover the sum so paid by him. Thebus v. Smiley, 110 111. 316, 2863. LIABILITY DEPENDING ON TIME OF BECOMING A STOCK HOLDER. Under a statutory provision making the stockholders liable for the debts of the corporation to the extent of their stock, for three months after the transfer of their stock on the books of the corpora- tion, it is not essential to the stockholder's liability that he be such at the time the creditor's cause of action shall have accrued. It is sulli- cient if he is a stockholder when the suit is brought against him. Rootv. Sinnock, 120 111. 350. 2864 ; The expression, "all stockholders," in the absence of any legis- 358 EAILEOADS, WAREHOUSES, lative indication to the contrary, must be regarded as including not only those who were such at the time the indebtedness was incurred, but also all those who successively stand in their shoes in respect to the same stock. 76. 2865. LIABILITY, HOW DISCHARGED payment. Stockholders cannot evade the liability imposed on them by law by confessing judg- ments in favor of each other and paying the same. The liability is created for the protection of the creditors of the bank, and not for the stockholders. Meisser v. Thompson, 9 Bradw. 368. 2866. A stockholder may extinguish his individual liability by the payment of debts of the corporation, but he will be allowed only the sum actually paid for such claims, and not their face value. Gauch v. Harrison, 12 Bradw. 457; Kunkelman v. Rentcliler, 15 Bradw. 271. 2867. WHAT WILL DISCHARGE. Payment in full of the stock sub- scribed by a stockholder in a private corporation organized under the act of 1857, will not discharge him from liability to creditors of the corporation. To make it have that effect it must be shown that all other shareholders have done the same thing, and a certificate of the fact has been filed in the clerk's office as required in the 10th section of the act. Kipp v. Bell, 86 111. 577. 2868. Where a stockholder has paid the corporation in full for his stock, and has also paid a like sum to the creditors of the company, he will be discharged from all liability for debts of the corporation contracted thereafter. Ib. 2869. EXTINGUISHMENT OF THE LIABILITY. Tvhe recovery of a judgment by a creditor of a corporation against a stockholder for a sum equal to the amount of his stock, that being the limit of his lia- bility for the corporation, will extinguish his liability. So, it is not doubted, will a voluntary payment by him to such a creditor of the corporation who has the right to sue him and recover a judgment. Buchanan v. Meisser, 105 111. 638. 2870. But a payment of a sum equal to his stock to the firm of which he is a member, in satisfaction of a debt due from the corpora- tion to his firm, will not release Mm from his liability as a stockholder of such corporation, or bar a suit by another creditor, as the firm could not maintain an action at law against him. Ib. 2871. EXTINGUISHMENT. A stockholder individually liable for the debts of his corporation, may discharge such liability by the pay- ment, in good faith, of the amount of the same to any creditor who is not also a stockholder. But he cannot discharge himself by buying up debts of the corporation equal in amount to his liability, at a dis- count. In such case if he retains such indebtedness so purchased by him, he can only claim a discharge for the actual sum paid by him for the same. Thompson v. Meisser, 108 111. 359. 2872. STOCK WHEN DISCHARGED FROM LIABILITY. Where a judgment is recovered against a stockholder by a creditor of the cor- poration, under a statute making the former liable personally to creditors for an amount equal to the stock held by him, which he pays, his stock thereafter will be free from liability, and he may sell and transfer the same, and his assignee will take such stock without any liability on his part in consequence of his ownership of the same. Thebus v. Smiley, 110 111, 316. 2873. SET OFF. In an action by a creditor of a corporation against a stockholder to enforce his individual liability to creditors for an amount equal to his stock, the stockholder will not be allowed to set off against his liability an indebtedness of the corporation to him. Thebus v. Smiley, 110 111. 316. AND EMINENT DOMAIN. 359 2874. In an action by a creditor of a corporation who is not also a stockholder to enforce the individual liability of a stockholder, the lat- ter cannot set off a debt due from the corporation to himself. Thomp- son v. Meisser, 108 111. 359. 2875. In an action by a creditor of a corporation against a stock- holder to enforce his individual liability, the latter cannot plead as a set off an indebtedness of the corporation to himself, as such debt is not that of the party suing. Buchanan v. Meisser, 105 111. 638. 2876. STOCKHOLDERS INDIVIDUAL LIABILITY effect of dissolu- tion of corporation. The dissolution of a corporation by decree of court does not affect the liability of the stockholder, or change it from that imposed by the statute. Tarbett v. Page, 24 111. 46. 2877. SAME effect of bankruptcy. The right of a creditor of a corporation to recover against a stockholder is not taken away by the bankruptcy of the corporation. That fact fixes his liability. Tibballs v. Libby, 87 111. 142. 2878. The placing the assets of an insurance company into the hands of a receiver does not lessen the stockholder's individual liability to its creditors', but fixes the same. He is not under the control of the receiver, but holds a fund for the benefit of creditors. Arenz v. Weir, 89 111. 25. 2879. KEMEDY whether at law or in equity. The charter of a bank made the stockholders individually liable to depositors for the default of the corporation in making payment of any debt: Held, that the liability was purely legal, and the remedy against the stockholders was at law. The word "individually" as used in the charter, means separately, and an action will lie against a single stockholder. Meis- ser v. Thompson, 9 Bradw. 368. 2880. As the statute creates a legal liability upon stockholders to a certain extent for the debts incurred by their company, such liability is cognizable in a court of law, an implied promise being inferred from a legal liability. Culver v. Third Nat. Bank, 64 111. 528. 2881. Since the act of 1872 concerning corporations for pecuniary profit took effect, a court of law has no jurisdiction of a suit by a creditor of such a corporation against a stockholder, unless his debt accrued before the act of 1872 took effect. The remedy is in equity. Richardson v. Akin, 87 111. 138. 2882. The ruling of this court that an action at law by a single creditor will lie against any stockholder of an insolvent corporation to enforce his individual liability, is not to be taken as a denial of the right to seek relief in equity, where there are equitable grounds. Where the corporation is insolvent a court of equity may take juris- diction for the purpose of marshaling the fund and making a ratable distribution. Eames v. Doris, 102 111. 350. 2883. The liability of stockholders under 9 of the act of 1857, relating to corporations, is to the creditors of the corporation as a class, and not to each individual creditor. Therefore, the remedy of a creditor seeking to enforce the personal liability created by that sec- tion, is in a court of equity, and not at law. Rounds v. McCormick, 114 111. 252; Harper v. Union Manf. Co., 100 111. 225; Lowv. Buchanan, 94 111. 76; Queenan v. Palmer, 117 111. 619. 2884. This liability constitutes a common fund for the security of creditors, and a court of equity, aside from the ground of discovery, will have jurisdiction of a bill by a creditor, for himself and others, to enforce such penalty, and control the fund thus raised for their bene- fit, and distribute the same ratably among them, the remedy at law in 360 KAILROADS, WAREHOUSES, such case being inadequate without bringing a multiplicity of suits. Queenan v. Palmer, 111 111. 619. 2885. REMEDY IN EQUITY parties plaintiff". Under sec. 9 of the act of 1857, relating to manufacturing corporations, the stockholders are made severally and individually liable to the "creditors" of the company to the amount of stock held by them, for all debts, &c., made by such company prior to the time when the whole capital stock shall have been paid in. This liability cannot be enforced by a single creditor, suing in his own behalf alone. It can be enforced only upon a bill brought by, or at least, in behalf of all the creditors of the cor- poration. Harper v. Union Manf. Co., 100 111. 225. 2886. SAME party defendant assignee for creditors. Where the stockholders are individually liable secondarily, and the assets of the corporation are in the hands of an assignee for the benefit of creditors, he will be a necessary party, to a bill to enforce the stockholder's lia- bility. 76. 2887. SAME sufficiency of bill. A bill by creditors of an insolvent banking company for and in behalf of complainants and all other cred- itors against the several stockholders of the company, alleged the insol- vency of the bank, a deficiency of assets to pay its creditors, the per- sonal liability of the stockholders under the charter to the depositors and creditors, the existence of some nine hundred unpaid depositors, some of whom were seeking by separate suits at law, to get an ad- vantage over the others, and that such separate litigation would waste and exhaust the proceeds of this liability of stockholders, the only fund to which depositors could look for payment, and asking to have an account taken of all the liabilities of the bank and establish the amount for which the various stockholders were liable personally, and to have the amounts of the debts proven apportioned among the stockholders: Held, that the bill clearly showed a case for equitable relief and gave the court jurisdiction of the subject matter. Tunesma v. Schuttler, 114 111. 156. 2888. INSURANCE COMPANY party who may sue for penalty. Although an action by a creditor against a stockholder to enforce a statutory liability is penal in character, yet the action may be brought in the name of the creditor. The provisions of 24 of the insurance law do not apply in such case. Gulliver v. Baird, 9 Bradw. 421; Felix v. Denton, Id. 478. 2889. DECLARATION must show amount of stock held. In an ac- tion under a law making the stockholders individually liable to cred- itors of the corporation, to a sum equal to the amount of stock held by them, the declaration should aver the amount of the defendant's stock. Sherman v. Smith, 20 111. 350. 2890. SAME sufficiency to admit proof of defendant being a stock- holder. In an action against a stockholder of a corporation to recover for debts of the company contracted in the summer of 1867, the declar- tion averred that he became a stockholder at some time anterior to December 1, 1868: Held, that proof was admissible to show that the defendant was a stockholder when the debt was contracted. Culver v. Third Nat. Sank, 64 111. 528. 2891. SAME owe held sufficient. In an action by a creditor of an insurance company against a stockholder to enforce his individual lia- bility, the declaration averred that the defendant had subscribed for fifty shares of the capital stock of the company, and that the whole amount of the capital stock had not been paid in, and that no certifi- cate of such payment had been given or recorded as required by the statute, but on the contrary, not more than one-half of said capital AND EMINENT DOMAIN. 361 stock had ever been paid in to said company: Held, that the declara- tion showed a right of recovery. Gulliver v. Roelle, 100 111. 141. 2892. EVIDENCE proof of defendant being a stockholder. To make one liable for the debts of a corporation, it must be clearly shown that he was a stockholder and within the purview of the law. The meaning of the statute cannot be so enlarged as to include cases not ex- pressly within its provisions. Being a director is not sullicient to make him liable. Steele v. Dunne, 65 111. 298; But see facts held suffi- cient to show a party to be a stockholder. Corwith v. Culver, 69 111. 502. 2893. EVIDENCE to show ownership of stock. The plaintiff is not required to prove the ownership of stock by record evidence, but such fact may be shown by the defendant's admissions, and the testi- mony of the officers of the corporation. Dows v. Naper, 91 111. 44. 2894. EVIDENCE proof of such a debt as stockholder is liable for In a suit against a stockholder of an insurance company based upon a decree against the company, no recovery can be had without proof of the execution of such a policy as is described in the declaration, and of a loss by fire. The recital in the decree of these facts is not evidence against the stockholder, if he was no party to that suit. Chesnut v. Pennell, 92 111. 55. 2895. In such a suit the admission of the loss by fire of the property insured, renders proof that notice of that fact was given to the com- pany, wholly unnecessary, especially where j udgment has been rendered against the company for the same loss. Black v. Womer, 100 111. 328. 2896. In such a suit it was admitted that the plaintiff had recov- ered judgment against the company for a loss on the policy issued by the company, and that the property insured was afterwards destroyed by tire, the plaintiff still owning the same: Held, that the admission was sufficient proof of the execution of the policy and of the loss. Ib. 2897. ESTOPPEL to deny liability. Where a party acted as presi- dent of a private corporation, and held it out to the world as legally organized and acting, when in fact the whole of its capital was never subscribed: Held, in a suit by a creditor to enforce his individual lia- bility as a stockholder, that he was estopped from showing such fact in avoidance of his obligation. Corwith v. Culver, 69 111. 502, 508. 2898. After acting under a charter or deriving a benefit therefrom, a stockholder will be estopped from setting up the unconstitutionality of the charter, or an amendment thereto, in avoidance of his individual liability for the debts of the corporation. Dows v. Naper, 91 111. 44. 2899. In a proceeding by a receiver to collect a note given by a stockholder for stock in an insurance company, the defendant cannot insist that an organization of the corporation must be shown in strict compliance with the statute. Organization de facto and user are suf- ficient. Washburn v. Roesch, 13 Bradw. 268. 2900. A suit and judgment against an imperfectly organized cor- poration, as between the plaintiff and defendant corporation, will operate as an estoppel to bar the same plaintiff from recovering from the members on their individual liability as partners in the same cause of action. Cresswell v. Oberly, 17 Bradw. 281. 2901. ABATEMENT OF ACTION death of stockholder. An action under the statute to enforce a personal liability against a stockholder of an insurance company, is in the nature of a penal action, and dies with him. Diversy v. Smith, 9 Bradw. 437; same case, 103 111. 378 2902. EXTENT OF LIABILITY decree. Where a decree on cred- itor's bill is taken against a stockholder of a national bank, on the basis his shares of stock bear to the whole stock of the bank, there will be no error. Wheelock v. Kost, 77 111. 296. 362 EAILEOADS, WABEHOUSES, 2903. LIEN OF CREDITOR equitable attachment. The creditor first suing to enforce the individual liability of a stockholder, thereby acquires a preference over other creditors of the corporation, which neither they nor the stockholder can defeat, unless, possibly, by bring- ing a bill for a general closing up of the affairs of the corporation. Such action is in the nature of an equitable attachment of the stock- holder's liability to the extent of the plaintiff's claim. After notice of such suit, the stockholder cannot defeat the action by paying other creditors to the extent of his liability. Thebus v. Smiley, 110 111. 316. But see Chicago v. Hall, 103 111. 342. (C.) LIABILITY FOB DOUBLE THE STOCK. 2904. PRIMARY LIABILITY not lost by failure to sue in three months after transfer. Under the charter of a bank which provided, "each stockholder shall be liable to double the amount of stock held or owned by him, and for three months after giving notice of trans- fer," &c., it was held that a stockholder assumed a primary liability to creditors of the bank to an amount double his stock, and not a secon- dary one; and having incurred such liability he was not released there- from by his not being sued within three months after a transfer of his stock. Fuller v. Leaden, 87 111. 310. 2905. CONSTRUCTION OF CHARTER. The fair and reasonable con- struction of such clause in the charter is, that a stockholder is liable for debts incurred while a member, and also for such debts as the bank should contract for and during the three months after giving notice of a transfer of his stock. The clause does not relate to the time in which suit must be brought to enforce his liability. Ib. 2906. LIABILITY UNDER UNCONSTITUTIONAL CHARTER. Where persons become stockholders of a corporation, even under a charter repugnant to the organic law, which makes them liable for double the amount of their stock, it will operate as an agreement by each to become liable to creditors of the corporation according to the terms of the charter, and they cannot escape individual liability because of the unconstitutionally of the charter. McCarthy v. Lavasche, 89 111. 270. 2907. REMEDY at law several liability. Under a charter that "each stockholder shall be liable to double the amount of stock held or owned by him," a creditor of the corporation, will have an action in his own name and at law against any stockholder, for the sum due him, and each stockholder will be severally and individually liable. McCarthy v. Lavasche, 89 111. 270. 2908. Under the charter of a bank providing that "each stockholder shall be liable to double the amount of st ock held or owned by him and for three months after giving notice of transfers," &c., a creditor of the corporation, to enforce the individual liability of a stockholder, is not compelled to sue in the name of the corporation for his use, or by bill in chancery, but may bring his action against the stockholder in his own name at law. Null v. Burtis, 90 111. 213. 2909. The intention and effect of a clause in a charter making each stockholder thereof liable to double the amount of stock held or owned by him and for three months after notice of its transfer, is to charge the stockholders with every debt made by the corporation while they hold stock, and also such indebtedness as may be contracted during three months after notice that they have transferred their stock. The creditor whose debt was contracted within that time may maintain suit against a stockholder after the expiration of the three months after notice of a transfer. Ib. 2910. INTEREST. Interest is not recoverable in an action against AND EMINENT DOMAIN. 363 a stockholder to enforce his liability to creditors of the corporation for double the amount of his stock. Hunger v. Jacobson, 99 111. 349. 2911. DECREE before order of distribution. Where the debts of the corporation exceed the total of its assets and all stock liabilities, so that the whole of the defendant's liabilities will be needed, there is no reason for deferring a decree against them until the final decree of distribution in the case. Hunger v. Jacobson, 99 111. 349. OF CONTRIBUTION BETWEEN STOCKHOLDERS. 2912. If one stockholder has been sued by a creditor of the corpo- ration and paid the recovery he may have contribution from the other stockholders by proceeding in equity. Heisser v. Thompson, 9 Brad. 368. 2913. Where a stockholder in a corporation, the charter of which imposes an individual liability upon him for the debts of the corpora- tion, has been sued and paid the recovery to a creditor, he will be enti- tled to contribution from all the other stockholders, and in enforcing that right it may be that a court of equity is the proper forum, as in it he can compel each shareholder to contribute pro rata according to the number of shares he may hold. Wincock v. Turpin, 96 111. 135. 2914. A stockholder of a bank who pays the amount of his indi- vidual liability to a firm in which he is a partner for a debt due such firm from the bank, thereby acquires an equitable right against his co-stockholders, cognizable and enforceable only in equity. Buchanan v. Heisser, 105 111. 638. . LIMITATION OF ACTION. 2915. In debt by a creditor of a corporation against a stockholder to enforce the individual liability of the latter created by 16 of the insurance law of 1869, the liability sought to be enforced is in the nature of a penalty, and an action thereon is barred in two years. Junker v. Kuhnen, 18 Bradw. 478. 2916. A stockholder in a corporation formed under the act of 1849 is not liable as such to creditors of the corporation, unless suit is brought against the corporation within one year from the time the debt became due. Tarbell v. Page, 24 111. 46. 2917. It is apprehended that a plea by a stockholder, who has ceased to be such, that the cause of action did not accrue within two years after he had ceased to be a stockholder, that being the time pre- scribed in the act for the continuance of his liability, would be a good plea. Baker v. Backus, 32 111. 79, 100. 2918. The liability of the trustees and corporators of insurance companies arising under 16 of the insurance act of 1869, is imposed, not as upon a contract, but by way of a satutory penalty only. So, a cause of action arising under that section will be barred within two years from the time it accrued. Gridley v. Barnes, 103 111. 211. LIABILITY OF MANAGING OFFICERS. FOB EXCESS OF DEBT ABOVE CAPITAL, STOCK. 2919. The officers and directors assenting to debts above capital stock are made personally liable to the creditors of the corporation as a whole, and not to any individual creditor, and this liability is en- forceable only in equity. Buchanan v. Bartow Iron Co., 3 Bradw. 191 ; Buchanan v. Low, 3 Bradw. 202. 364 EAILBOADS, WAREHOUSES, 2920. DECLARATION. In an action to enforce this statutory lia- bility the declaration must show that the indebtedness of the corpor- ation exceeds the amount of the capital stock, and that the trustees as- sented thereto. Sherman v. Smith, 20 111. 350, 353. 2921. LIABILITY TO CREDITORS GENERALLY. Under the provis- ions of 16, of chap. 32, K. S. 1874, the directors ami officers of a stock corporation who assent to an indebtedness in excess of its capital stock, are made personally and individually liable for such excess to the creditors generally of such corporation, and not to any particular creditor. Low v. Buchanan, 94 111. 76. 2922. The object and purpose of this section is, that all claims arising under its provisions shall be regarded in the nature of a trust fund to be collected and divided pro rata among all the creditors, and this distribution can only be made in a court of equity. Ib. 2923. REMEDY in equity. Where a stock corporation has in- curred indebtedness in excess of its capital stock to various parties, the individual liability of its directors and officers assenting thereto cannot be enforced by action at law at the suit of a single creditor, but the remedy is in a court of equity, where the rights and liabilities of all may be determined and properly adjusted. Ib. 2924. If such an action can be maintained at law by a single cred- itor on the ground there are no other creditors, he must set forth by proper averments in his declaration, and prove on- the trial, the special circumstances warranting such an action. Ib. 2925. In order to enforce penalties imposed upon stockholders of a corporation by its charter, which are not part of the assets of the company, the suit must be at law, in the name of the individual cred- itors, each for himself. Lane v. Nickerson, 99 111. 284; Wincock v. Turpin, 96 111. 135. SALE OF STOCK ON EXECUTION. CHAPTER 77. TILL JUDGMENTS AND EXECUTIONS. 2926. SHARES OF STOCK IN CORPORATION LIABLE TO SALE ON EXECUTION. 52. The share or interest of a stockholder in any corporation may be taken on execution, and sold as here- inafter provided; but in all cases, where such share or inter- est has been sold or pledged in good faith for a valuable con- sideration, and the certificate thereof has been delivered upon such sale or pledge, such shares or interest shall not be liable to be taken on execution against the vendor, or pledger, except for the excess of the value thereof over and above the sum for which the same may have been pledged and the certificate thereof delivered. [Laws of 1871-2, p. 505, 52, as amended by the L. 1883, p. 110. See Laws 1861, p. 132, on subject. E. S. 1887, p. 809, 52; S. & C., p. 1410, 52; Cothran, p. 872, 52.] 2927. STATUTORY REMEDY must be strictly pursued. There being no authority at common law for the levy of an execution upon the defendant's interest in the capital stock of a corporation, and the proceeding being wholly statutory, the course pointed out in the stat- ute must be strictly pursued. Goss, &c. v. People, 4 Bradw. 510. 2928. STEPS TO PEEFECT LEVY SALE SAME AS OF CHAT- AND EMINENT DOMAIN. 365 TELS. 53. If the property has not been attached in the same suit, the officer shall leave an attested copy of the exe- cution with the clerk, treasurer or cashier of the company, if there is any such 'officer, otherwise with any officer or person having the custody [of] the books and papers of the corpo- ration; and the property shall be considered as seized on execution when the copy is BO left, and shall be sold in like manner as goods and chatties. [B, S. 1887, p. 809, 53; S. & C., p. 1410, 53; Cothran, p. 872, 53.] 2029. ' ATTESTED COPY OF EXECUTION. The attested copy of exe- cution mentioned in the statute need not be verified by the clerk and attested by the seal of the court. The sheriff holding the writ may certify to the correctness of the copy. People v. Gons, &c., 99 111. 355. 2930. An attested copy of the execution, regular on its face, must be left with officers of the company, or the person having custody of the books; and the sheriff's returns must show that this was done. Goss, &c. v. People, 4 Bradw. 510. 2931. WHO MAY ATTEST COPY sheriff. The statute does not re- quire the clerk of the court to verify such copy, and attest it by the seal of the court. The sheriff holding the execution may properly certify to the correctness of the copy. People v. Goss, <&c.,*99 111. 355. 2932. VERIFICATION OF COPY. A copy of an execution directed to the sheriff, delivered by him to the clerk of a corporation having indorsed upon it the words: "the within is a true copy of the execution and fee bill in my hands, under which / have seized the shares of stock of the within named defendant," &c., but not signed by the sheriff, is officially verified or attested within the requirement of the stat ute. The language identifies the maker of the indorsement. Ib. 2933. LEVY ON STOCK when actual and complete. An actual levy upon shares of stock held by a debtor in a corporation is accomp- lished by the sheriff, where he has exhibited to the keeper of the stock books of the corporation his execution, and on demand for the pur- pose of levy, has procured and received from the corporation "a certifi- cate of the number of shares or amount of interest held by the judg- ment debtor," and has indorsed upon his execution a statement that the shares named in the certificate are taken in execution, or levied upon. When the sheriff delivers to the proper officer of the corpora- tion an attested copy of the execution, the stock of the debtor shall be considered as seized on execution. This is only a constructive levy. Ib. As to the usual mode of levy, see Powell v. Parker, 38 Ga. H44; Baily v. Strohecker, Id. 259; Mechanic's & T. Bank v. Dakin, 33 How. Pr. 316: S. C. 50 Barb. 587; Kultlman v. Orstn, 5 Duer. 242; Clarke v. Goodridye, 41 N. Y. 210; Drake v. Goodridffe, 54 Barb. 78. LEVY AND SALE IN CASE OF ATTACHMENT. 54. If the share is already attached in the same suit, the officer shall proceed in seizing and selling it on the execution, in the same manner as in selling goods and chattels. [E. S. 1887, p. 810, 54; S. & C., p. 1411, 54; Cothran, p. 872, 54.] 2935. OFFICEB OF CORPORATION TO GIVE CERTIFICATE OF DEBTOR'S SHARES, &c. LIABILITY FOR REFUSAL, &c. 55. The officer of the company who keeps a record or account of the shares or interest of the stockholders therein, shall, upon the exhibiting to him of the execution, be bound to give a 366 EAILROADS, WAKEHOUSES, certificate of the number of shares or amount of the interest held by the judgment debtor. If he refuses to do so, or if he willfully gives a false certificate thereof, he shall be liable for double the amount of all damages occasioned by such refusal or false certificate, to be recovered in any proper action, unless the judgment is satisfied by the original defend- ant. [E. S. 1887, p. 810, 55; S. & C., p. 1411, 55; Goth- ran, p. 872, 55. ] 2936. LIABILITY OF OFFICER conditions to his liability, waiver of his rights. The officer of the corporation before giving such certi- ficate has the right to have not only an exhibition of the execution, but also an attested copy thereof as a voucher for his giving a certifi- cate of the defendant's stock. But the right to such voucher may be waived by the corporation, and this is done by giving the certificate of the debtor's shares to the sheriff. The giving such certificate is a waiver of any defect in the attestation of the copy of the execution delivered. People v. Gross Mfy. -Co., 99 111. 355. 2937. CERTIFICATE OF SALE issue of certificate of stock. 56. An attested copy of the execution and of the return thereon shall, within fifteen days after the sale, be left with the officer of the company whose duty it is to record transfers of shares; and the purchaser shall thereupon be entitled to a certificate or certificates of the shares bought by him upon paying the fees therefor and for recording the transfer. [E. S. 1887, p. 810, 56; S. & C., p. 1411, 56; Cothran, p. 872, 56.] 2938. DUTY TO TRANSFER ON BOOKS of shares sold on execution. The purchaser of stock in a corporation at a sheriff's sale, has a right, under the statute, on leaving with the officer of the corporation whose duty it is to record transfers of shares, within fifteen days after the sale, an attested copy of the execution and of the return thereon, to have the corporation consent to hold. possession of the stock for him, and to have his title made manifest by the necessary transfer upon the books, and by the issue of new stock certificates directly to him, for the shares sold to him. People v. Gross, &c. Manuf. Co., 99 111. 355. 2939. EIGHTS OF PURCHASER DIVIDENDS. 57. If the shares or interest of the judgment debtor had been attached in the suit in which the execution issued, the purchaser shall be entitled to all of the dividends which have accrued after the attachment. [ E. S. 1887, p. 810, 57; S. & C., p. 1411, 57; Cothran, p. 872, 57. CONSOLIDATION. An act for an act to increase the powers of railroad corporations. Approved June 30, 1885. In force July 1, 1885. [L. 1885, p. 229; R. 8. 1887, p. 1041 ; 3 S. & 0., p. 447.] 2940. CONSOLIDATION OF RAILROAD CORPORATIONS. 1. Be it enacted by the people of the state of Illinois, repre- sented in the general assembly, That all railroad companies now organized, or hereafter to be organized, under the laws of this state, which now are, or hereafter may be in posses- AND EMINENT DOMAIN. 367 sion of, and operating in connection with, or extension of their own railway lines, any other railroad or railroads, in this state or in any other state or states, or owning and oper- ating a railroad which connects at the boundary line of this state with a railroad in another state, are hereby authorized and empowered k> purchase and hold in fee simple or other- wise, and to use and enjoy the railway property, corporate rights and franchises of the company or companies owning such other road or roads, upon such terms and conditions as may be agreed upon between the directors, and approved by the stockholders, owning not less than two-thirds in amount of the capital stock of the respective corporations becoming par- ties to such purchase and sale; such approval may be given at any annual or special meeting, upon sixty days', notice being given to all shareholders, of the question to be acted on, by publication in some newspaper published in the county where the principal business office of the corporation is situ- ated: Provided, that notice of any special meeting called to act upon such question, shall be given to each shareholder whose postoffice address is known, by depositing in the post- office, at least thirty days before the time appointed for such meeting, a notice properly addressed and stamped, signed by the secretary of the company, stating the time, place and object of such meeting: And, provided further, that no rail- road corporation shall be permitted to purchase any railroad which is a parallel or competing line with any line owned or operated by such corporation. 2941. CONSOLIDATED COMPANY BODY CORPORATE POWER OF ILLINOIS CENTRAL. 2. Any railroad company now or- ganized or hereafter to be organized under the laws of this state, shall have power from time to time to borrow such sums of money as may be necessary for the funding of its in- debtedness paying for constructing, completing, improving or maintaining its lines of railroad, and to issue bonds therefor, and to mortgage its corporate property, rights, powers, priv- ileges and franchises, including the right to be a corporation, to secure the payment of any debt contracted for such pur- poses; and to increase its capital stock to any amount re- quired for the purposes aforesaid, not exceeding the cost of the roads and works owned or constructed and equipped by it; such increase of capital stock to be made in such manner and in accordance with and subject to such regulations, pref- erences, privileges and conditions as the company at any general or special meeting of its shareholders, held at the time such creation of new shares may be authorized, shall think fit: Provided, that no stock or bonds shall be issued, except for money, labor or property actually received and ap- plied to the purposes for which such corporation was created ; 368 nor shall the capital stock be increased for any purpose ex- cept upon giving sixty days' public notice in the manner pro- vided in the first section of this act: And, provided further, that nothing contained in this act shall be held or construed to alter, modify, release or impair the rights of this state as now reserved to it in any railroad charter hertofore granted, or to affect in any way the rights or obligations of any rail- road company derived from, or imposed by such charter: And, provided further, that nothing herein contained shall be so construed as to authorize or permit the Illinois Central Hailroad company to sell the railway constructed under its charter, approved February 10, 1851, or to mortgage the same, except subject to the rights of the state under its contract with said company, contained in its said charter, or to dis- solve its corporate existence, or to relieve itself or its corpor- ate property from its obligations to this state, under the pro- visions of said charter; nor shall anything herein contained be so construed, as to in any manner, relieve or discharge any railroad company, organized under the laws of this state, from the duties or obligations imposed by virtue of any stat- ute now in force or hereafter enacted : And, provided further, that nothing in this act shall be so construed as to authorize any corporation, other than those organized in and under the laws of this state, to purchase or otherwise become the owner, owners, lessee or lessees of any railroad within this state. ELEVATED WAYS AND CONVEYORS. An act in regard to elevated ways and conveyors . Approved April 7, 1875. In force July 1, 1875. [Laws 1875, p. 77- R. S. 1887, p. 342; S. & C., p. 1977; Cothran, p. 347. 2942. ORGANIZATION ARTICLES OF INCOEPOEATION. 1. Be it enacted by the people of the State of Illinois, repre- sented in the general assembly: Any company which has been or shall be incorporated under the general laws of this state, for the purpose of constructing, maintaining and oper- ating any elevated way or conveyor, shall state in its articles of incorporation the places from and to which it is intended to construct the proposed elevated way or conveyor. And any such company may organize and become incorporated under the provisions of chapter (32) thirty-two of the re- vised statutes of 1874, concerning corporations for pecuniary profit, and shall be subject to the provisions of the laws of this state applicable to such corporations. 2943. EIGHT OF WAY HOW OBTAINED. 2.. If any such corporation shall be unable to agree with the owner for the purchase of any real estate required for the purposes of its incorporation or the transaction of its business, or for its depots, station buildings, engine houses, or for right of way, or any other lawful purpose connected with or necessary to AND EMINENT DOMAIN. 369 the construction, maintenance and operation of said elevated way or conveyor, such corporation may acquire such title in the manner that may be now or hereafter provided for by any law of eminent domain. 2944. MAY TAKE MATERIAL COMPENSATION. 3. Any such corporation may, by their agents and employes, enter upon and take from any land adjacent to its way, or road, or conveyor, earth, gravel, stone or other material, except fuel and wood, necessary for the construction of such elevated way, paying, if the owner of such land and the said corpora- tion can agree thereto, the value of such material taken, and the amount of damage occasioned to any such land or its appurtenances; and if such owner and corporation cannot agree, then the value of such material and the damage occa- sioned to such real estate shall be ascertained, determined and paid in the manner that may now or hereafter be provi- ded by any law of eminent domain; but the value of such material, and the damages to such real estate, shall be ascer- tained, determined and paid for before such corporation can enter upon and take the same. 2945. CAPITAL STOCK INCREASE OF. 4. In case the capital stock of any. such corporation shall be found insuffi- cient for constructing and operating its elevated way or con- veyor, such corporation may, with the concurrence of two- thirds, in value, of all its stock, increase its capital stock, from time to time, to any amount required for the purpose aforesaid. 2946. POWERS or RESTRICTION. 5. Every corporation formed under this act shall, in addition to the powers herein- before conferred, have power First To cause such examination and survey for its pro- posed elevated way to be made as may be necessary to the selection of the most advantageous route; and for this pur- pose, by its officers, agents or servants, may enter upon the lands or waters of any person or corporation, but subject to responsibility for all damages which shall be occasioned thereby. Second To lay out a strip of land, not exceeding sixty-six feet in width, on which to construct, maintain and operate said elevated way or conveyor; and for the purpose of cut- tings and embankments, to take as much more land as may be necessary for the proper construction and security of the elevated way; to cut down any standing trees that may be in danger of falling upon and injuring such way, making com- pensation therefor in manner provided by law. Third To construct its way across, along or upon any stream of water, water-course, street, highway, plank-road, 25 370 BAILROADS, WAREHOUSES, turnpike, canal or railroad, which the route of such elevated way shall intersect or touch; but such corporation shall re- store the stream, water-course, street, highway, plank-road, turnpike and railroad thus intersected or touched, to its for- mer state, or to such state as not unnecessarily to have im- paired its usefulness, and keep such crossing in repair: Pro- vided, that in no case shall any company construct its way without first constructing the necessary culverts and sluices, as the natural lay of the land requires for the necessary drainage thereof. Nothing in this act contained shall be construed to author- ize the erection of any bridge, or any other obstruction, across or over any stream navigated by steamboats, at the place where any bridge or other obstruction may be proposed to be placed, so as to prevent the navigation of such stream; nor to authorize the construction of any elevated way or conveyor 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: Provided, that in case of the construction of said elevated way or conveyor along highways, plank- roads, turnpikes, canals or railroads, such company shall either first obtain the consent of the lawful authorities hav- ing control or jurisdiction of the same, or condemn the same under the provisions of any eminent domain law, now or hereafter in force in the state. USE OF STREETS, ETC., BY ELEVATED RAILROADS. An act in regard to the nee of streets and alleys in incorporated cities and villages by elevated railroads and elevated ways and conveyors. Approved June 18, 1883. In force July 1, 1883. [L 1883, p. 126; R. S. 1887, p. 343; 8. &. C., p. 1979; Cothran, p. 287J.] 2947. PETITION OF LAND-OWNERS. 1. Be it enacted by the people of the state of Illinois, represented in the general assembly, That no person or persons, corporation or corpo- rations, shall construct or maintain any elevated railroad or any elevated way or conveyor to be operated by steam power, or animal power or any other motive power, along any street or alley in any incorporated city or village, except by the per- mission of the city council or board of trustees of such city or village, granted upon a petition of the owners of the lands representing more than one-half of the frontage of the street or alley, or of so much thereof as is sought to be used for such elevated railroad or elevated way or conveyor; and the city council, or board of trustees, shall have no power to grant permission to use any street or alley, or part thereof, for any of the purposes aforesaid, except upon such petition of land-owners as is herein provided for. 2948. WHEN STREET MORE THAN ONE MILE. 2. When the street or alley, or part thereof, sought to be used for any AND EMINENT DOMAIN. 371 of the purposes aforesaid, shall be more than one mile in extent, no petition of land-owners shall be valid for the pur- poses of this act, unless the same shall be signed by the own- ers of the land representing more than one-half of the front- age of each mile and fractional part of a mile, of such street or alley or of the part thereof sought to be used for any of the purposes aforesaid. 2949. KEPEAL. 3. All acts and parts of acts incon- sistent herewith are hereby repealed. CHAPTER 31 CORONERS. 2950. LIABILITY OF RAILWAY, ETC. FOE EXPENSES OF IN- QUEST AND BURIAL. 22. When any railroad company, stage or any steamboat, propeller or other vessel engaged in whole or in part in carrying passengers for hire, brings the dead body of any person into this state, or any person dies upon any railroad car or any such stage, steamboat, propeller or other vessel in this state, or any person is killed by cars or ma- chinery of any railroad company, or by accident thereto, or by accident to or upon any such stage, steamboat, propeller, or other vessel, or by accident to, in or about any mine, mill or manufactory, the company or person owning or operating such cars, machinery, stage, steamboat, propeller or other vessel, mine, mill or manufactory shall be liable to pay the ex- penses of the coroner's inquest upon and burial of the de- ceased, and the same may be recovered in the name of the county in any court of competent jurisdiction. [Laws of 1855, p. 170, 1, 2, 3; K S. 1887, p. 329, 22; S. & C. p. 606, 25; Cothran, p. 323, 22. Held unconstitutional; see O. & M. Ey. v. Luckey, 78 111. 55.] WAREHOUSES AND WAREHOUSE RECEIPTS. 2951. When the amount of grain of the different owners in a ware- house falls short, each owner is entitled to his proportion of what is left. Sexton v. Graham. 53 Iowa, 200. , 2952. INTERMIXTURE. If there is a confusion of goods by reason of intermixture so that each party cannot distinguish his own, each will have a proportionate property in the whole. Low v. Martin, 18 111. 286. 2953. A party who consents that grain left with a warehouseman may be put in bulk with other grain, with the understanding that he shall receive a like quantity and quality, cannot maintain replevin for the grain.If the intermixture was without consent, or was the wrong- ful act of the warehouseman, it would be otherwise. Ib. 2954. LIEN. Warehousemen have a lien on grain stored with them for proper charges and may retain possession to secure their payment. Low v. Martin, 18 111. 280. 2955. The fraudulent issue of warehouse receipts for grain not in store, does not deprive the warehouseman of his lien for that which he has actually stored. Ib. 372 EAILEOADS, WAREHOUSES, 2956. LIABILITY IN CASE on fraudulent receipts. An action on the case may be maintained upon fraudulent warehouse receipts pur- porting to have been given for produce in store, by a party who has advanced money upon the faith of them, and this whether the party has been deprived of the produce or his money. Low v. Martin, 18 111. 290. 2957. SALE or GOODS right to surplus above charges. Where goods erroneously shipped to a fictitious person are sold by the ware- houseman, the surplus after paying charges belong to the shipper. Boilvin v. Moore, 22 111. 318. 2958. PURCHASER OF WAREHOUSE RECEIPT when takes subject to charges. Where a party purchases a warehouse receipt for grain, with notice that it is subject to charges for storage, he will be liable, for such charges, and the warehouseman will have a lien therefor Cole v. Tyng, 24 111. 99. 2959. CHARGES NOT LOST BY DELIVERY OF GRAIN. If a ware- houseman permits grain to be removed before his charges are paid, he will not thereby lose his recourse against the holder of the receipt. Ib. 2960. LIEN lost by delivery. If a warehouseman or consignee delivers goods upon the receipt of the promissory note of the owner for charges, he will lose his lien, which will not revive should the goods accidentally be returned to his possession. Hale v. Barrett. 26 111. 195. 2961. LIEN /or charges not on another's goods. If goods belong- ing to different owners are shipped by one bill of lading, the consignee cannot hold the goods of one for the charges upon the goods of the other. Each owner is entitled to his goods on the payment of the appropriate charges thereon. Ib. 2962. STORAGE OF GRAIN decree of care required. A warehouse- man who receives the grain of another for storage, is only bound to ordinary care for its preservation. But where he purchases grain for another and has it in store, he takes the risk of any loss that may occur, until such delivery as will pass the title to the party for whom the grain was bought. Myers v. Walker, 31 111. 353. 2963. SAME compensation for. A warehouse receipt was as fol- lows: "Received in store for W. & K., and subject to their order, and free of all charges on board their boats, or any boats they may send for the same, thirty thousand bushels corn:" Held, that the ware- houseman was bound to store the corn free of charge, only for a rea- sonable time; and if boats were not sent for the corn within such time, he would be entitled to compensation for storage and for any extra labor in delivery occasioned by the delay. But the right to charge for storage it seems would accrue only after notice to the owner to remove the grain. Myers v. Walker, 31 111. 353. Same case, 24 111. 133, 137. 2964. WAREHOUSE RECEIPTS rights of holder. The holder of a warehouse receipt for grain has only the personal obligation of the warehouseman for the proper storage and delivery of his grain accord- ing to the terms of the receipt, or on default, to recover the damages growing out of a breach of the contract. Dole v. Olmstead, 36 111. 150. 2965. WAREHOUSE RECEIPT gives no lien in favor of holder. The giving of a warehouse receipt creates no specific or general lien on the property of the warehouseman, although that should consist of grain put in the common bulk with that of the holder of the receipt. Dole v. Olmstead, 36 111. 150. 2966. CONFUSION OF PROPERTY rights of the several owners. Where the grain of different owners has been intermingled in one AND EMINENT DOMAIN. 373 common mass according to the usage of warehousemen, and without objection by the owners, it will become common property, owned by the several parties in the proportion in which each had contributed to the common stock. The several owners must sustain any loss pro rata which may occur by diminution, decay or otherwise. Dole v. Olmstead, 36 111. 150. 2967. SAME remedy in chancery. Where the warehouseman as- signs all the grain in store, including grain of his own, to a creditor, to secure a debt, to be held subject to the rights of others, the creditor will become a trustee for the benefit of all parties in interest, and where there is a deficiency of grain to satisfy all and the grain is inter- mixed, a court of equity will have jurisdiction. Dole v. Olmstead, 36 111. 150. 2968. CAKE REQUIRED OF. A warehouseman must exercise rea- sonable care, but he is not an insurer against all losses except those arising from the act of God and the public enemy. He is only liable for losses which might have been guarded against by the exercise on his part of ordinary care and diligence. St. L., A. & T. H. R. R. v. Montgomery, 39 111. 335. 2969. WAREHOUSE RECEIPTS stand in place of property nego- tiability. Keceipts given by a warehouseman for chattels stored with him, are not in a technical sense, negotiable instruments, but they merely stand in the place of the property itself, and a delivery of the receipts has the same effect in transferring the title as the delivery of the property, neither more nor less. Burton v. Curyea, 40 111. 320. 2970. SAME transfer by one having no title. A purchaser of pork in warehouse, who takes warehouse receipts therefor, and then, to enable his vendor to withdraw the pork from the warehouse for the purpose of overhauling and re-packing it, delivers the receipts back to the vendor, who transfers them to a bonafide purchaser, still remains the owner of the pork and may maintain replevin for it against the warehouseman in whose possession it still remains. Burton v. Curyea, 40 111. -320. 2971. SAME negligence of rightful owner. If the purchaser of warehouse receipts indorsed in blank should place them in the hands of his vendor .for improper purposes, or be fairly chargeable with any negligence whereby the person having the receipts, was enabled to impose on an innocent purchaser, it may be a different rule might prevail. Ib. 2972. WAREHOUSE RECEIPTS negligence in respect to notice of purchase. The failure of a purchaser of pork in warehouse by the transfer in blank of the receipts therefor, to take new receipts in his own name, and putting them in the hands of his vendor instead of the original receipts, and his neglect to notify the warehouseman of his purchase, is not negligence on the part of the purchaser. Burton v. Curyea, 40 111. 320. , 2978. WAREHOUSE RECEIPTS a good tender of grain. An actual tender of warehouse receipts for grain stored by the vendor of grain in Chicago, is a good tender of the grain, unless the purchaser should insist on seeing it. McPherson v. Gale, 40 111. 368. 2974. LIABILITY conversion of grain. Where the assignees of a warehouseman convert grain in store with them which they received from their assignor, and appropriate the money to their own use, they will at least be liable to account to the owners for the amount received, with interest from the date of sale. Dole v. Olmstead, 41 111. 344. 2975. ASSIGNEE OF WAREHOUSEMAN take no interest in grain of others in store. Where a commission merchant having large amounts of grain on storage for others, makes a general assignment for the 374 EAILROADS, WAREHOUSES, benefit of creditors, his assignees will take only the interest of the assignor, and cannot claim the grain of others so stored. Ib. 2976. INTERMIXTURE average of loss. Where the grain of vari- ous parties in a warehouse is stored in a common mass by the consent of the owners, and the warehouseman makes an assignment for credit- ors, and there proves to be a loss in the quantity of the grain, the court should average the loss among all the owners; and if the grain has been sold by the assignees, each owner should be compensated in money in proportion to the grain he placed in store. Ib. 2977. DEGREE OF CARE. Where the carrier assumes the duties of warehouseman, he will be bound to ordinary care and diligence in the preservation of the property. The building in which the goods are stored must be a safe one, though it need not be fire proof. It should be under the charge of careful and competent servants, and in case of threatened danger from tire, ordinary diligence must be used to remove the property. C. &A. R. R. v. Scott, 42 111. 132. 2978. WAREHOUSE RECEIPT tender of grain sold by. In an action by the vendor of grain to recover the price agreed to be paid, proof of the attendance of the plaintiff at the time and place agreed upon for its delivery, but in the absence of the purchaser, for the purpose of tendering warehouse receipts, is not a sufficient tender, without the further proof that such receipts were genuine and that the grain was not subject to charges. McPherson v. Hall, 44 111. 264. 2979. But a tender of the receipts to the defendant in person would have been good, if without objection, as the failure to object would impliedly admit that the receipts honestly represented the prop- erty. Ib. 2980. CONTRACT FOR STORAGE construction. The plaintiff stored corn in the defendant's warehouse, taking from them the following agreement: "Feb. 9, 1860. We hereby agree to store ear eorn for H. H. until the first of June next, for three cents per bushel; two cents for shelling, and receiving 75 pounds and deliver 58 pounds. If sold before the first of June, we are not to charge for shelling; if not sold by the first of June we are to charge one-half per cent per month till it is sold. The corn to be good and merchantable. C. & V.": Held, that the contract contemplated a storage beyond June, 1860. Cushman v. Hayes, 46 111. 145. 2981. Such a contract would not continue for an indefinite time wholly on the will of the owner of the corn. Although the contract provides the corn may remain in store by paying one-half per cent per month, until the corn is sold, there is nothing in the terms to prevent a termination of the contract by the defendants, on notice, where a necessity for so doing arises. Ib. 2982. WAREHOUSE RECEIPT negotiable. Under the act incorpo- rating the Chicago Dock company, a warehouse receipt issued by that company is made negotiable, and as such, absolutely vests in the holder the title to the property specified in it. Ch. Dock Co. v. Foster, 48 111. 507. 2983. WAREHOUSE RECEIPTS parol evidence to vary. A ware- house receipt given for grain received in store, is the contract of the parties, and parol evidence is not admissible to vary its terms. Leon- ard v. Dunton, 51 111. 482. 2984. REMEDY against warehouseman refusing to deliver. Where a warehouseman receives grain in store, and gives his receipt therefor, providing for a delivery of the grain on the order of the owner, while an action of trover might lie against the warehouseman on his refusal to deliver the grain on demand, yet assumpsit will also lie for the breach of the contract. Leonard v. Dunton, 51 111. 482. AND EMINENT DOMAIN. 375 2985. MEASURE OF DAMAGES. In assumpsit against a warehouse- man for a refusal to deliver grain placed in store, on demand, accord- ing to his contract, the measure of damages is the value of the grain at the time it should have been delivered. Leonard v. Dunton, 51 111. 482. 2986. ACTION FOR NON-DELIVERY non-payment of storage no defense. Where grain is stored in a warehouse to be kept a short time without charge, and to be delivered to the owner when demanded, the neglect of the owner to pay storage after such time, or to offer to do so, will not defeat his action against the warehouseman for the breach of the contract to deliver the grain on demand. The most the warehouseman could claim would be a reasonable deduction for stor- age after having given notice that storage would be charged. Leon- ard v. Dunton, 51 111. 482. 2987. PRIVATE WAREHOUSEMAN intermixture. In case of a storage of grain by a private warehouseman, in the absence of any agreement on the subject, the inference would be that he was to keep it in the condition in which he received it, and if mixed with his own grain by consent of the owner, that it shall remain with the ware houseman, until demanded. Ives v. Hartley, 51 111. 520. 2988. REMEDY. Where a person puts grain in a warehouse for the purpose of storage, and the warehouseman converts the same to his own use, the owner may waive the tort and recover from the ware- houseman in assumpsit for money had and received, for the value of the grain. Ives v. Hartley, 51 111. 520. 2989. RECEIPT whether a deposit or a sale. The owner of wheat delivered the same to a miller, taking a receipt therefor as follows: "Received of A. B. to be stored 150 bushels wheat, to take market price when he sees lit to sell:" Held, that the form of the receipt implied a sale of the wheat and not merely a deposit for storage. Ives v. Hart- ley, 51 111. 520. 2990. WHETHER A SALE OR BAILMENT. Where grain was depos- ited in a warehouse on the understanding between the parties, not that the identical grain, or grain of like quality was to be returned, but the money value thereof to be ascertained by the market price on the day the depositor should choose to fix, the transaction was held to be a sale and not a bailment. Lonergan v. Stewart, 55 111. 44. 2991. LIEN how lost. After the great fire in Chicago in 1871, the board of trade, acting in behalf of unknown owners and parties inter- ested, and with the assent of the several warehousemen, took posses- sion of the grain unconsumed and sold the same for the benefit of the owners. Previous to the sale, the warehousemen agreed in writing with the board of trade, that the latter might sell, the former to re- ceive two cents per bushel as accrued storage thereon. After the sale they claimed a lien on the fund for charges over and above the sum stipulated: Held, that they had lost their lien for storage, except for two cents a bushel; and that the expense incurred in preserving the grain was a proper charge to be deducted from the fund. Board of Trade v. Buckingham, 65 111. 72. 2992. WAREHOUSE RECEIPT transfer of title by. The transfer of a warehouse receipt, or bill of lading accompanied by a sale or pledge of the property specified in the receipt or bill, will have the same effect as the delivery of the property itself to the transferree. W. U. R. R. v. Wagner, 65 111. 197. 2993. SAME evidence of ownership. Where one having an eleva- tor and in the habit of purchasing grain for others, gave a warehouse receipt stating that he had received a lot of corn on storage for the holders of the receipt, in well covered cribs, and agreeing to hold the 376 RAILROADS, WAREHOUSES, same for such holders, subject to their order, at the end of which were these words: "subject to their order, for all advances of money on the same:" Held, that the latter words did not convert the receipt into a mere pledge and render the corn liable to an execution against the party giving it, issued subsequently to the date of the receipt. Cool v. Phillips, 66 111. 216. 2994. ACT REGULATING constitution. The act of April 25, 1871, to regulate public warehouses and the warehousing and inspection of grain, is not in contravention of 22, art. 4, of the constitution of 1870. Munn v. People, 69 111. 80. 2995. The act of 1871 regulating public warehouses and the inspec- tion of grain and to give effect to art. 13 of the constitution, and which provides a maximum rate of charges, is not unconstitutional. Munn v. People, 69 111. 80. 2996. CONTRACT TO INSURE. A warehouseman agreed to insure the property stored with him, which he did to their full value, and on a loss prosecuted the company in good faith on the policy, but was defeated on the ground he had given a receipt to the owner at his re- quest: Held, that the warehouseman having complied .with his con- tract, was not liable to the owner on the ground he failed to recover. Cole v. Favorite, 69 111. 457. 2997. WAREHOUSE RECEIPTS; possession of, is possession of grain. Usage has made the possession of warehouse receipts equivalent to the possession of the property they represent. Broadwell v. Howard, 77 111. 305. 2998. SAME given by the seller. The law makes no distinction in respect to grain purchased or acquired by the holder of such receipts from others, and those acquired from the warehouseman himself. The law does not prohibit him from selling his property, and if he does so in good faith, he may become its future custodian; and the fact that he keeps a public warehouse, is sufficient to put parties on inquiry as to the ownership of grain stored. Broadwell v. Howard,-ll 111. 305. 2999. CREDITORS OF WAREHOUSEMAN. Where a warehouseman purchased grain stored by him, for another person and with such other person's money, and took up his outstanding receipt, held by the ven- dor and issued a new receipt to the person for whom he bought, it was held that the grain was not liable thereafter to be taken in exe- cution against the warehouseman. Broadwell v. Howard, 77 111. 305. 3000. INTERMIXTURE title in holder of receipt. Where a con- signee of grain stores the same in a warehouse, and the same is inter- mixed with other grain of like grade, and a receipt is taken for the amount, the grain being no longer capable of identification, the owner parts with his property in the same, and the consignee to whom the receipt is given, instead of being a bailee, becomes a debtor to the owner. Bailey v. Bensley, 87 111. 556. 3001. LIABILITY OF WAREHOUSEMAN trover grain intermixed. Where the grain is mingled with other grain of like character and grade belonging to different persons, so that its identity is lost, upon the refusal of the warehouseman to deliver upon presentation of the proper warehouse receipts, the quantity of the grain of the grade called for, the holder of the receipts may, in trover, recover damages according to the extent of his interest. German Nat. Bank v. Mead- owcroft, 95 111. 124. 3002. LIABILITY transfer of warehouse. If the warehouseman transfers the ownership and possession of the warehouse or elevator, the person succeeding to the possession of the warehouse and the grain stored therein, will be held to the same liability to the holders of ware- AND EMINENT DOMAIN. 377 house receipts and subject to the same remedies as the original pro- prietor. German Nat. Bank v. Meadowcroft, 95 111. 124. 3003. FORWARDING. The business of warehousemen, when they forward goods, &c., ordinarily consists of storing produce for the own- ers thereof, and of shipping or forwarding the same for the owner. The legitimate income from such business is a compensation for stor- age and also the same for shipping or forwarding the produce. North- rup v. Phillips, 99 111. 449. 3004. What will bar charges for storage and insurance. Bailey v. Bensley, 87 111. 556. 3005. WAREHOUSE RECEIPTS negotiability. The statute relating to negotiable instruments does not embrace warehouse receipts or bills of lading. They are not placed on the same footing as respects the title vested in the assignee of bills of exchange and notes. Burton v. Curyea, adhered to; Canadian Sank v. McCrea, 106 111.281. 3006. A warehouse receipt is strictly speaking but the written evi- dence of a contract between the depositor of grain and the warehouse- man. The law implies certain duties from such receipt as devolving upon the warehouseman which becomes a part of the contract. 76. 3007. SAME transfer of as passing title to grain. The statute ( 24, act 1871) makes the endorsement of a warehouse receipt evi- dence of the transfer of the grain it represents, the same as the actual delivery of the grain itself. But neither of these acts will pass the title to the grain which the seller or assignor does not possess. Cana- dian Bank v. McCrea, 106 111. 281. 3008. SAME. The receipt stands in the place of the grain it repre- sents, and the possession of the receipt is regarded as the possession in law of the grain itself; and as the warehouseman is not required to surrender the grain until the return of the receipt and the payment of charges, one who obtains it under such circumstances as to .charge him with notice of a want of title in his assignor, the real owner may recover of him in trover the value of the grain on his refusal to sur- render the receipt to him. Canadian Bank v. McCrea, 106 111. 282. 3009. DELIVERY TO WRONG PERSON. A warehouseman will be liable to the party storing grain, if he delivers the same to any other person without authority from the owner, unless the latter has done some act or acts to estop him from denying permission to make a delivery. P. & P. U. Ry. v. Buckley, 114 111. 337. 3010. A sampler's ticket is not a warehouse receipt in the sense that term is used in the statute. /&. 3011. NEGOTIABILITY. A warehouse receipt for a certain num- ber of bushels of corn, to be delivered to the order of the person to whom the receipt is given, at a certain place, in sacks, in good order, free of charges, risk of fire excepted, is not a negotiable instrument under the law of Iowa. M. & M. Bank v. Hewitt, 3 Iowa 93. 3012. 949 of Iowa Code, authorizes the assignee of receipt to sue in his own name, subject however to any defense or set off, legal or equitable which the maker had against the assignor, before notice of the assignment. M. & M. Bank v. Hewitt, 3 Iowa 93. 3013. SAME assignee takes subject to attachment. A warehouse- man who has given a receipt which entitles the holder to the goods stored upon presentation thereof, is liable to an attaching creditor of the bailor, if he surrenders the goods to a holder of such receipt, who purchased the same after the date of the attachment. Smith v. Picket, 1 Ga. 104. 3014. Under a statute making such receipts negotiable, a ware- house order for "corn to be loaded into sacks and when loaded to be -26 378 KAILROADS, WAREHOUSES, sent down" was held not a receipt for storage, but merely an agreement for transportation. Union Sav. Assoc. v. St. L. G. E. Co., 81 Mo. 341. 3015. Under such a statute a receipt by the overseer of a ware- houseman is not a warehouse receipt so as to be negotiable. Peoples' Bank v. Gagley, 12 Phila. 183: Troutman v. Peoples' Sank, 12 Id. 276. 3016. In the absence of statutory provisions such receipts are not negotiable, but are assignable by transfer and indorsement, and such assignment will pass such title as the assignor had at the time thereof. Solomon v. Bushnell, 11 Or. 277; Gibson v. Stevens, 8 How. 384. 3017. Such a receipt cannot make the warehouseman a guarantor of the title of the property stored. Mechanics & L. T. Co. v. Kiger, 103 U. S. 352. 3018. The holder or assignee of such receipt takes no better title than if the goods were held by himself; their negotiability such as it is serving only to cut off any defenses the warehouseman may have. Louisville Bank v. Boyce,lS Ky. 42. 3019. The transfer by indorsement and delivery of a warehouse receipt transfers the legal title and constructive possession of the property, and the warehouseman from the time of the transfer be- comes the bailee of the transferree. Gibson v. Stevens, 8 How. 384; Harris v. Bradley, 2 Dill., 285; McNeal v. Hill, 1 Woolw. 96; First Nat. Bank, v Bates, 5 Gin. Law Bull. . 3020. It is only after notice to the warehouseman who agrees to hold the property for the assignee that the title will vest absolutely in the latter. Spangler v. Butterfleld, 6 Col. 356. 3021. Unless the warehouseman by his receipt agrees to deliver to the order of the bailor, the receipt will not pass title as against an attaching creditor before notice of the transfer to the warehouseman. Hallgarten v. Oldham, 135 Mass. 1. 3022. The transfer of the receipt clothes the transferree with con- structive possession although the warehousman has no notice, and does not agree to hold for the transferree. Durr v. Hervey, 44 Ark. 301. 3023. In Davis v. Russell, 52 Cal. 611, it is said there is no reason why the same rule that is applied to bills of lading, making them transferable without notice, should not be followed as to warehouse receipts. In support of this see Puckett v. Reed, 31 Ark. 131 ; Gibson v. Stevens, 8 How. 384; Burton v. Curyea, 40 111. 320; Second Nat. Bank v. Walbridge, 11 Ohio St. 311; Cool v. Phillips, 66 111. 217; Broadwell v. Howard, 77 111. 305; Cothran v. Ripy, 13 Bush. 495; Robson v. Swart, 14 Minn. 370; Hale v. Milwaukee Dock Co., 29 Wis. 482. 3024. PLEDGE OF RECEIPT. Warehouse receipts may be pledged, and an innocent pledgee will acquire title superior to the lien of the vendor of the goods represented by the receipt, where the latter per- mits his vendor to have possession of the receipt in such a manner as to enable him to pledge it. Fourth Bank v. St. L. C. C. Co., 11 Mo. App. 333. 3025. A warehouseman having in store his own property may effectually pledge it to secure his own debt by transfer of his ware- house receipt. Merchant's & M. Bank v. Hibbard, 48 Mich. 118, By statute such a pledge in Iowa is made invalid. 3026. A pledge by delivery of a warehouse receipt will not give to the pledgee any general lien for debts not arising from the relation of pledgee. /. M. AtJierton Co. v. Ives, 20 Fed. Eep. 894. 3027. A warehouse receipt may be transferred without indorse- ment so as to pass title to the property, if the owner makes the trans- AND EMINENT DOMAIN. 379 f er with that intent, in cases where the receipt recites that the property therein mentioned is "deliverable to bearer." Rice v. Cutler, 17 Wis. 351. 3028. The Wisconsin statute providing that warehouse receipts may be transferred by indorsement, and what effect they shall have when so transferred, does not operate to prevent in all cases, a passing of title without indorsement, the language being permissive and not imperative, and the right existing independently of statute. The ob- ject of the statute is not to prevent the owner of property from pass- ing the title in any manner previously effectual for that purpose, but to protect those dealing with persons who are intrusted with such evi- dence of title only as factors or agents. Rice v. Cutler, 17 Wis. 351. 3029. PURCHASER PROTECTED against fraud of 'vendor. The fact that warehouse receipts are taken in discharge of prior indebted- ness will not deprive the transferree of the protection to which he would otherwise be entitled as an innocent purchaser without notice that his vendor acquired title by fraud. Rice v. Cutler, 17 Wis. 351. 3030. TRANSFER OF TITLE BY. Where the evidence showed that grain had been delivered from the warehouse, and the warehouse receipts surrendered, an instruction to the jury to the effect, that if they believed from the evidence that the receipts in evidence were not held by the plaintiffs at the time of the levy of the execution offered in evidence, but had been surrendered to the warehouseman prior to that time, then the plaintiffs were not entitled to any of the property replevied by reason of their once having held such receipts: Held that the instruction was erroneous. If the reason of the surrender was the delivery to the plaintiffs of the grain mentioned in them, then they were most certainly entitled to the delivered grain, because they had once held the receipts and had surrendered them for grain delivered in exchange therefor. Nelson v. Mclntyre, 1 Bradw. 603. 3031. EIGHTS OF HOLDER. The grain represented by the receipt need not be the identical grain stored, but as the mass of grain on hand is changed by successive storage and shipments, the title of the holder of the receipt passes by operation of law to that which remains in store, and he is entitled at any moment to assert his title by requir- ing a delivery to himself of the grain. German Nat. Bank v. Meadow- croft, 4 Bradw. 630. 3032. EFFECT OF THE TRANSFER. Upon the sale of property stored in a warehouse, the indorsement and delivery of the warehouse receipt has the effect, not only to transfer the title to the property to the indorsee, but also to give him a right of action for any breach of duty of which the warehouse company was guilty in respect thereto at any time during the bailment. Sargent v. Central Warehouse Co., 15 Bradw. 553. 3033. RIGHT OF THE INDORSEE. An indorsement in blank of a warehouse receipt by the seller, authorizes the purchaser to write over such blank indorsement only a contract of mere assignment of the legal title, unlike the case of a negotiable promissory note. Mida v. Geissman, 17 Bradw. 207. NOTE. The figures in the Index cite paragraphs of hook instead of pages. ABANDONMENT. of proceedings to condemn. proposed highway, 497, 498, 957. proposed park, 958. 959. proposed street, 939, 961. location of railroad, 1024. after assessment of damages, 961. after judgment, 939, 957-959. ABATEMENT. death of land-owner, 425. death of stockholder, of action against, 2901 . plea in, denying service on corporation, 1102, 1122, 1136, 1133, 1134. of a nuisance, 817. ABUSE. in charges by corporation, laws to prevent, 94, 1428, 1515. of discretion of court, 463. of power to condemn, 387, 389-391,393. ACCEPTANCE. of dedication for streets, neces6_ary, 1249. evidence of contract of prior railway, 1463. ACCESS. to lots, obstructing by railway in streets action, 237, 646, 677, 825, 830, 831, 834, 835 840, 842, 865, 866, 904. obstructing to place of business, 908, 911, 912, 915, 916, 1500a. obstructing to depots and trains, 1503, 1505. to books and papers of corporation, 1186. ACCIDENT railroad commissioners to investigate, 2636. ACCOMMODATION. of passengers, 1499. at stations and depots, 1319, 2130. ACKNOWLEDGMENT. of railroad mortgage, 1366. of conditional sale of rolling stock, 1493, 1494. ACQUISITION OP PROPERTY BY RAILWAY. by voluntary grant, 1226. by purchase, 1229. by condemnation. 1213, 1512. See CONDEMNATION. for what uses and purposes, 1213, 1511. for union depot, 1511. for landing, 1488. 1489. for right of way in city, 339. ACTIONS. for injuries to stock, 144 for track in street, 154, 237, 832, 833, 846-866. when it accrues, 423. entry before compensation, 240, 241. on stipulation to make and maintain crossing. 573. for deviation from plans, . limitation on issue of, 1376. fictitious increase, 1376. constitutional restriction, 1383. who may increase, I385b. increase of, 3941, 3945. who entitled to new stock, 1385c, 1307c a trust fund, 1197, 1304a. all to be taken to enforce subscription, 1198. stockholder's liability, 3845. creditors lien on, 1204. shareholder's notice of trust character, 1203e. liable to taxation, 1400. See CORPORATION, INCORPORATION, STOCK AND STOCKHOLDERS, INCREASE OP CAPITAL. CAPTAIN OP STEAMBOAT police powers of arrest, 3549a, 2951. CAR HOUSE malicious mischief or injury to, 171, 174. CABS. injury to malicious mischief, 171, 174. offenses on, jurisdiction, 178. injury by, to stock, 1518. leaving on crossings, 2111. minors climbing on, 3122-3126. duty to furnish enough, 2140, 2141. liability for defects in foreign, 3481. CASE. by land-owner for deviation from plans, 738. against corporation for not transferring stock on books, 1202. railway not delivering grain as directed, 2S15. for issues of fraudulent warehouse receipts, 2956. CASHIER service of process on, 1099, 1114. CATTLE. injury to. See ANIMALS, FENCING. delay in transporting. See COMMON CARRIER. CATTLE-GUAEDS. power of cities to require, 144, 1280. land-owner has no right to make ; 1009. duty of railroad to make and maintain, 1518. not an element of damage ? 602. power of the state to require, 1442. In cities, 144, 1280, 1575, 1582, 1596. allowing to till up, 1591a. evidence of sufficiency, 1600, 1601. where required, 1625. liability for, same as for fencing, 1611. injury to, 1807. See FENCING. CAUSE OF INJURY. want of fence as, 1591, 1592, 1606, 1672, 1673, 1681. neglect to give warning on approaching crossingj 1836-1839, 1929. instruction ignoring the question whether omission was the cause, 2201. See NEGLIGENCE, CONNECTION OP NEGLECT WITH INJURY. CEMETERY evidence as to damages to, 764, 765. CERTAINTY. in verdict as to compensation and damages, 536. in judgment as to land condemned, 403, 538. CERTIFICATE. of indebtedness of railway, 1075. of organization and filing of proof, 1171a. of publication of notice, 448. of laying road by commissioners, 450-452. of ticket agent's authority, 2556, 2559. of petition for incorporation, 1508. of incorporation of union depot, 1508, 1509, filing copy with secretary of state, 1509. of weighmaster conclusive, 3803. of full payment of capital stock, 3837, 2838. INDEX. 391 CERTIFICATE Conttned. of sale of stock on execution, 2937. transfer of stock on books from, 2937, 2938. of stock, new on forfeiture, 1192. issue of new on transfer, 1200c. presumption in favor of new issue, 1200e. commercial qualities, 1201e. as collateral security rights of holder, 1201c. transfer as against eqyities of corporation, 1201e. new not necessary to transfer, 1203d. new, to purchaser on execution, ! 2937, 2938. CERTIFIED COPY. of articles of incorporation, 1155, 1171a, 1171b. of certificate of incorporation, 1509. of articles of consolidation, 1394. See EVIDENCE. CERTIORARI. appeal by, from condemnation, 1050. right of petitioner to dismiss on, 1049. CHALLENGE. of array of jury, 457. number of, on condemnation, 482, 483. CHANCERY. bill of discovery and answer, 114. county court, has no chancery jurisdiction, 400. jurisdiction, as to condemnatton of railway crossings, 1307. over change of street crossings, 2090. appointment of receiver. 2600. enforcement of stockholder's liability, 2815, 2817, 2879-2887, 2907, 2908. by creditor's bill, 2828, 2830-2832. compelling corporation to < ollect subscriptions, 2829." attacking judgment for fraud by stockholder, 2833. sufficiency of Dill by creditor against stockholders, 2887. contribution between stockholders, 2914. enforcing liability of managing officers, 2919. assignment by warehouseman for creditors, 2967. See REMEDY. CHANGE. of charter effect on subscription, 1192a, 1192h. of consignment before delivery, 2622-2624. of grade of streets, 809, 813-815, 818-820, 822, 824, 886, 1250, 1280. of law, which governs, 309, 315-318. effect on pending proceedings, 316-320. of location of railroad, 1422, 1225a, 1192h. of plans additional damages, 702, 734, 757, 758. of possession under chattel mortgage. 1340. of owners of road duty to fence, 1540, 1541. of venue, on condemnation, 490. of use of property, 277. CHARGES. power of railway to fix, 77-83. regulation of, 68, 1320. fixing rates of by railroad commissioners, 75, 76. power of state to regulate, 77, 78, 81, 83, 84, 86, 2646-2652. to fix rates, 77, 81, 83, 1320, 1428. to regulate, of warehouses, 2765. acts regulating, held valid, 78-81, 85, 86. when extra may be demanded, 1323, 2668 action for overcharge, 75. penalty for, 76. when extortion, 2645. laws to prevent, 94. evidence of unreasonableness, 2699, 2700. rates must be fixed before action, 76, 2697, 2721 . rates fixed, prima facie just, 2699. schedule of, made evidence, 2720. must be without unjust discrimination, 2673. evidence must show discrimination is unjust, 2698. regulation of, for inspection of grain, 2756. of public warehouses, 2764,85. publication of schedule of, 2764. maximum rates of, 80, 102, 2764. maximum of railway, 76-81, 1428. right of corporation to fix, limited, 77. right and power of state to limit, 08. contracts reducing to induce aid, 1460, 1461. 392 INDEX. CHARITABLE, corporations, 46. institutions, 335, 1072. CHARTER. amending by special laws, 3. 14. amendment of, 3, 14, 46, 1192a. extension of, 46, 1172. effect of constitution on, 45, 58. of private corporations, 52-55. repeal of, 56. time limited for organization, 58, 1150. construed as to taking land in public use, 202. powers in, construed, 860, 1267. reservations in, construed. 1210b-1211a. of East St. Louis, construed, 1265. construed as to stockholder's liability, 2904. 2905, 29011 . contract by, 55. 78. 81, 82, 1210a-1211a. subject to implied conditions, 1434. limitations as to charges, 2648, 2652. subject to law as to unjust discrimination, 2654. does not prevent state from fixing rates, 2723. stockholder's liability under, unconstitutional, 2906. limitation as. to duration, 1172. renewal of, 1172. CHECKS See BAGGAGE. EVIDENCE. CHIEF INSPECTOR OF GRAIN. appointment and qualification, 2756. duties of, 2756. appointment of assistants, 2756. oath and bond of, 2756. removal vacancy, 2756. right to retain fees, 2759. liability on bond, 2761-2763. See INSPECTION OF GRAIN. INSPECTOR OP GRAIN. CHILD. injuries to, 1970, 1952, 2039, 2062, 2088. negligence, 1952, 1970, 1606, 2124. CIRCUIT COURT. condemnation in, 325. petition to for incorporation, 1508. issue of warehouse licenses, /J737. filing justice's transcript in, 1091. CITIES AND VILLAGES. subject to legislative control, 57. act for incorporation of, 18. charters not abrogated by new constitution, 45. city election law, valid, 31. apportioning taxes between it and county, 188. of the powers of. to condemn for street, 325, 327, 340, 358, 364, 365, 525, 505, 526, 392. limitation on power, 342. not for a city prison, 343. to condemn for a sewer. 361. to condemn a street-crossing over railroad, 150. to condemn for a boulevard, 348. cannot confer power of eminent domain, 213, 346. as to streets. 117, 136. may grant right to use of street, 40. connecting tracks and switches in, 72, 73. railroad tracks in street, 118. location, grade and crossing of, 117, 1258, 1280. control over tracks in, 118-13(1, 1270, 1280. mode of assenting to track in, 119. delegation of power over, void, 121, 123, 132, 1258, 1258a, 1262, 1262u. ordinance granting right, 135, 144. grant of privilege in street, 137, 1273. construed, 139, 140. alone may question right, 138. may bind public by grant, 141, 1253, 1254, 1260. grant of use, a contract, 143. estoppel to dispute right to street, 291 . consent to track in street, necessary, 60, 1148, 1276. to depot and track in, 1513. not necessary except as to etreets, 359. cannot grant exclusive use of, 1287, 1274: vacation of street, 140. powers in respect to railroads, 117-143, 145, 147, 150, 151, 1250. INDEX. 393 CITIES AND VILLAGES Continued. compel fencing, 144, 1280. compel the making street crossings, 150, 1280. regulate speed of tiains, 2152, 2185-2191. requiring flagmen at crossings, 2450. to allow tracks in, 1253. control of railway in, 1270, 1273. limitation on city, 1271, 1272. regulate use of, 1280. change of location and crossings, 1280. laying out streets. extending across railway, 150. who may assess damages on widening, 207. track in may be condemned. 231 . power to open, extent of, 358. special assessment f or ; 365 . chancery will not enjoin, 392. judge of propriety of, 393. sufficiency of petition. 402. provision for paying damages, 301 . sole judge of necessity of, 375, 3a3. special assessment for, 360, 365. ordinance notice enough, 437. powers over streets, 846-848. when fee is in city, 847-849. liability of. for acts done in street by its consent, 1300. change of grade, 809, 810, 813-815, 818-820, 822, 824, 886, 1250. nuisance in street, 810, 885. defective sewer, 811, 812, 817. drainage, 812. gutter out of repair, 821 . throwing water on lot, 810, 815. depriving of sidewalk, 816, 828. structures in street, 1300a, 826, 833-866. tunnel in, 836, 837. water tank in, 838. viaduct in, 839, 840. obstructing access to lots, 237, 646, 677, 825, 830, 831, 834. 841, 842, 865, 866. excavation in street, 825, 829, 830, 908. railway in street, 827, 832-834, 846-W66. damages to adjacent owners, 234, 235, 646. making levee of street, 823. approach to bridge, 834, 835. for defective street crossings, 2097a. for injury by use of streets, 849-866. no action for mere public injury, 843-845, 885. may be a stockholder and vote by proxy, llSOc. riyht of railway to enter. right to enter and acquire right of way, 339, 1267-1269. . power to condemn not derived from city, 213, 346. may condemn without assent of city, 339, 346, 359. laws giving right to enter city, 357. railway exclusively in, 1 146. legislative recognition of the right, 1259. location, grade and crossing, 117. subject to assent of city, 118. may select route without its assent, 118, 128-130, 1257, 1261, 1261a. power of city to regulate location, 118, 120, 1258. no limitation till used, 133. power to condemn in city, 339, 346. right to lay road in city, 1259. power to locate, power of city no_ limitation, 1288. right to condemn side tracks besides those in streets, 355. riyht of railroad to lay track in streets. power to build through city, no power to use street, 344. right to lay in streets, 118-136, 344. ordinance giving assent, 121-123, 127, 131. enjoined until city assents, 124. power of city to permit, 125, 137, 141, 864, 865, 1253. grant by resolution and deed, 126, 127. grant of use with others, 134, 135. city alone can question right, 138. grant of joint use with public, 139. public bound by grant, 141. conditions of grant, a binding contract, 143 . -29 394 INDEX. CITIES AND VILLAGES Continued. when may be enjoined, 846, 848, 850. 854-856, 858, 861, 882. grant binds the public, 1354, 1255, 141. power of city to regulate, 1258. delegation of power, 1258, 1258a, 1262. may cross street without leave, 1261, 1261a. sufficiency of ordinance for leave, 1261b. limitation of right to use street, 1262a. grant of use construed, 139. ordinance not necessary, 359. when the fee is not in city, 1299. chancery jurisdiction to control 1291. tracks in a new use or burden, 1289, 847, 848, 882. ejectment by city for, 1260. power to use streets by charter, 860. grant passes to successor, 1256. location and construct in street of unincorporated town, 290. limitatfon of power to grant of street to railway. petition of lot-owners necessary, 151-156, 1286, 1263. railway takes, subject to action by lot-owner, 154, 846-866. liability for use of, 867-882. limitation of right to grant use, 1262a. conditions in lot-owner's petition binding, 1263a. grant limited by petition, 151-161. liability for killing stock in, 1683, 1717. care required of railroads in, 1891. See MUNICIPAL CORPORATION, RAILWAYS AND STREETS. CITY CLERK service of process on, 1113. CLASSIFICATION. of directors, 1175. of freights, part of schedule, 2722. CLERK OF CIRCUIT COURT. notice of lien with, 1088, 1090. to give notice of suit for lien, 1093. CLERK OF COUNTY COURT. selection of jury, 468. issue of summons and publication, 432. CLERK OF RAILWAY. embezzlement by, 169. service of process on, 1099. COLLATERAL PROCEEDING, errors not important in, 362, 479. corporate existence, 513, 1151. judgment, in, 932, 940, 941, 1028-1032, 1034. COLLECTION of subscription, how enforced by creditors, 2829. COLLISION. necessary to liability under law requiring fencing, 1586-15P8. when action lies without any, 2153, 2154. from not observing rules, 1321. COLORED PERSON discrimination against, 1157ti, 1157s, 1331, 1332. COMBINATION. unlawful, injury to railway, 172. for a strike ; 2552. to have grain delivered contrary to order, 2775. COMBUSTIBLE MATTER. on right of way, negligence, 1800-1806. See GRASS AND WEEDS. FIRE. RIGIIT OF WAY. COMMISSIONERS, selection of, 473-481. lixing time of meeting, 479. order appointing, 480. competency and qualification, 470, 484, 485. must adjust damages, 501-504. can consider no other issue, 507. qualification presumption, 1030. no power to find who entitled to money, 1016. COMMISSIONERS OF HIGHWAYS. may grant the use of highway, 1235, 1245, 1246, 1247. assessment of damages oy, 284. condemnation by jury of six, 287. when individually liable, 879-881. INDEX. 395 COMMITTEE OF APPEAL. appointment and removal, 2797. decision final, 2798. oath, bond and qualification, 2799. salary, by whom fixed. 2799. paid from inspection fund, 2799 COMMON CAERIER. limiting the liability of, 2339-2442. how far may be by contract, 2340, 2347-2349, 2352, 2419. by contract if assented to, 2368. construed as not exempting from gross negligence, 2371. contracts for, construed, 2412, 2440, 2441. limitation goes to each line of road, 2381. contracts f5r, not prohibited, 2422-2424, 2428, 2429, 2431, 2432. may not as to gross negligence or willful misfeasance, 2340, 2347-2349, 2354, 2389, 2391, 2392, 2409, 2417, 2419, 2426, 2428. nor as an insurer, 2346. must be by special contract, 2350, 2433, 2435, 2438, 2439. presumption of agent's authority to make, 2341. burden of proving contract, 2345. what risks may stipulate against, 2346, 2354. limitation of LiahttUy. contract limiting from certain risks, 2356. as to what, it may be limited, 162, 2431. to its own line, 2357-2362, 2374, 2376, 2377, 2384, 2387, 2389, 2475, 2433, 2435, 2413, 2416 amount of liability. 2364, 2370, 2440. to prevent fraud disclosure of value, 2373. as to time and mode of making claim, 2415. as to amount of damages, 2424, 2432, 2440. as to loss by fire, 2439, 2441. statute construed, 2425. does not prohibit contracts for, 2429. restriction by notice, 2341a, 2344, 2346, 2357, 2390. by custom, 2426. notice,, as to what good, 2373, 2390, 2427. presumption as to shipper's assent, 2344, 2345a. receipt with restrictions must be assented to, 2351-2353. when a contract, 2360, 2362-2364, 2396, 2398-2400. assent to, a question of fact, 2358, 2360, 2363, 2364, 2367, 2369, 2378, 2393, 2397. by receipt, 2358, 2369, 2388, 2399-2405, 2410, 2435. restriction must be agreed to, 2399-2405, 2408, 2409, 2420, 2421, 2427, 2429a, 2430, 2434, 2435. burden of proof to show limitation, 2380, 2434. presumption as to assent, 2399. settling other losses as evidence of no exemption 2372. limiting by receipt afterward, given, 2402, 2407. may limit common law liability, 2375, 2385, 2423, 2431, 2428. by conditions in free pass, 2347. lex loci governs, 2379, 2406, 2437. liability extends to place of delivery, 2382, 2384. liable for loss of car, 2442. from liability for passenger on freight train, 2386. cannot relieve itself, except by legislation, 2414, 2479. special carrier may restrict, 2345a. cannot relieve itself by contracts with others, 2479. who are common carriers. a railway company, 68. railway transferring only in cities, 1146. sleeping car not liable for baggage, 2261. regulation of charges of, 78. duty to weigh and measure grain, 106, 2599. criminal liability for gross negligence, 166. cruelty to animals, 168. lien of, 168. liability for injury from defective approaches, 2097a. liability for baggage, 2239-2241. when liable as warehouseman, 2257, 2258. duty as to receiving and carrying grain, 2562-2580. must carry in order of application, 2581. discrimination as to passengers or freight, 2581. cannot excuse itself by any act of its own, 2582. crowded condition of connecting line, no excuse for delay, 2583. military control, as an excuse for delay, 2580, 2585, 2592, ^598. but may be for refusing goods, 2580, 2589, 2592, 2593. mobs and strikes as an excuse for delay, 2586, 2587, 2594. action lies for delay, 2595. 396 INDEX. COMMON CARRIER Continued. measure of damages for delay, 2584. negligence in forwarding, 2588. case excusing delay, 2589. liability for refusing to receive and transport, 2590. unconstitutional law, no excuse, 2591. what will excuse a loss. 2596. custom as bearing on liability, 2597. place it must receive grain, 2600. place of delivery by, 2602-2608, 107, 2600. side track to warehouse, part of its line, 2604, 2609. when may refuse grain in bulk, 2607. when elevator is not on its line, 2608. when to deliver in bulk, 2608-2621. conversion of grain by, 2774. neglect of shipper to unload, 2589. scales and weighing grain penalty, 2599, 2730, 2731, 2728. to receipt for grain weighed, 2599, 2758. transportation in bulk, 2600. penalty and action for damages, 2600. to give weight in receipt, 2728 duty to take grain at warehouse, 2601. when, compelled to allow connections, 2611-2613. grain must be in bulk to give action, 2614. delivery on notice of change of place, 2622 . liability for not delivering as directed, 2622. time for unloading after notice, 2623. facilities for unloading, 2623, 2728. change of consignment and its effect, 2623. receiving and delivery at junctions, etc., 2624. liability for not weighing, etc., 2730, 2731 . for storing contrary to notice, 2774. preventing access to scales penalty, 281 not bound to use the track of another, 108' 109. use of track without license, 109. COMMON LAW. liability for injury to stock, 1595, 1714, 1716. remedy against warehouseman, 2794. prohibits extortion, 2651. unjust discrimination, 2668-2670. COMMUTATION TICKETS not prohibited, 2706. COMPANY when word includes natural persons, 158, 1272. COMPARATIVE NEGLIGENCE. See NEGUQENCB . COMPENSATION. necessary to be made, 191, 208, 179, 182-185, 214. for % new use of land, 232. for a new duty on burden, 149, 239, 269, 351, 847, 882, 848, 1296. for crossing right of way, 257, 264-267, 271, 273, 274, 277, 654-580. for leasehold property, 272, 275. for easement taken, 276. for telegraph in highway, 351. for land for highway, 501-504. for that which injures, 885. state must compensate, 898. for property taken on river, 898. materials for road, 1214. taken by contractors, 1215. for trees cut near road. 1231. ground for a crossing, 1304. taking or damaging private property, 303. to be found by a jury, 91, 204, 214, 215, 278-288. finding, a judicial act, 206. by board, 207. by impartial agency, 204. in benefits, 194. See BENEFITS. making provision for, 202. when to be paid, 185, 189, 190, 197. 201. 963-986. payment necessary to justify taking, 924, 933, 935, 962-965. under constitution of 1848, 212. must be in money, 210, 592, 613, 631, 645, 715. recovery of, by action at law, 808. to whom paid, 1019, 1020. attaching creditor, 1010, 1012. mortgagee, 1015. tenant, 1017, 1018, 1020. INDEX. 397 COMPEN SATION Continued. party in interest, 1020. materials for elevated ways, 2944. necessary to depriving of corporate rights, 1431 . inability to agree on, 325, 403, 404, 1213, 1214. when to be paid, 185, 189, 190, 197. COMPENSATION OF OFFICERS, of directors, &c., 1177-11781). none, unless fixed before services, 1177. for services not incident to office I178-1178b. of railroad commissioners, 2628. of secretary of, 2628. of state's attorney, 2643. of inspector of grain, 2756. of committee on appeals, 2799. of weighmaster, 2809. COMPETING LINES. grant, does not prevent grant to another road, 259. rifht to enjoin building of, 260, 261. consolidation of, 67, 1411. points, 2706. discrimination between, 2689-2695, 2706. COMPETENCY. of juror, 470, 484,485. of witness, 753, 756. CONDEMNATION. bu cities and villages. for a street over a railroad, 150. for a street, 327, 340, 358, 364, 365, 392, 505, 525, 526. for city prison, 343. for boulevard, 348. for sewer, 361. what bodies may, 325, 327. who may and for what uses, 327. ft.V railway corporations. not until its route approved, 181. under law of 1849, 334. under law of 1852, 335. consolidated company, 345. power, and for what purposes, 1213, 1512. for connections and crossings. 256d, 256e. for crossing over another road, 264, 276, 520. of additional crossings, 265-267, 273. of crossing right to select place, 277. for crossing of another road in street, 701. for materials for road, 1214. for landing on river, 1489. for union depots, 1511, 1512. by 3. of several tracts separately, 460, 461. covers past and future damages, 921-923. non-payment does not invalidate, 983. city estopped to deny validity of, 955. binding force, collaterally, 1028. value to be first found and paid, 1214. when it passes title, 1047. abandonment before payment, 1024. condemnation money. to whom paid judgment creditor, 1010, 1013-1020. judgment, as to party entitled to, 1011, 1012, 1016, 1019. payment to county treasurer, 1014, 1016, 1069. disposition of on appeal, 1062. payment, how enforced, 954, 959. paying mortgage out of, 1013. payment before right to possession, 1035, 282. when tracts to be assessed separately, 454, 460, 461, 533, 535, 540. finding separately as to damages, 533, 535, 539, 540. CONDITION. in grant of use of street, binding, 143, 1263, 359. in petition of lot-owners, bind city, 159. INDEX. 399 CONDITION Continued. steps to condemn, are precedent, 321. when consent of city is not a condition precedent, 346. evidence of, of land sought, 717. in sale of rolling stock, 1493. CONDITIONAL SALE. reserving a lien, 1493. contract, how executed, 1494. acknowledgment and recording, 1494, 1495. title not to pass before payment, 1493. limited to sale of rolling stock, 1497. notice to creditors, 1498. CONDITIONAL JUDGMENT. See JUDGMENT. CONDUCTOR. service of process on, 1099, station agent's certificate, evidence to, 1157k. subject to same fine as corporation, 2117a, 2120. giving lay-over ticket, 2318. giving passenger a check, 2319. to wear badge, 2338. right to demand fare or ticket, 2338. police powers of, 2549a. expulsion of passengers, for,, what, 2550. See PASSENGERS. arrest of passengers, 2551. CONFLICT OF LAWS. what governs, change pending proceeding, 309. which of two laws govern, 315-318. CONFUSION OF GRAIN. rights of several owners, 2952, 2966, 2967. average of loss, 2951, 2966, 2967, 2976. right to replevy after, 2953. CONNECTING ROADS AND LINES, incorporation of, 1146. lines, 1315. liability for delivery over, 1480. crowded condition of, no excuse for delay, 2583. negligence in forwarding by, 2588. what are, in law, 2604, 2608-2610. removal of side tracks, enjoined, 2620. CONNECTIONS BETWEEN RAILROADS, of tracks in city, are public, 72. 73, 1275, 1314. with elevators, warehouses, 107, 110, 569, 1273. by tracks in streets, 137. city control over, 137. at crossings right to, 256e-257. duty to give facilities for, 1304. compelled, 1275. power to unite with other roads, 1224, 1304. removing connecting tracks enjoined, 1308, 2620 . duty of roads to permit, 1304, 1808, 2611-2613. right at common law, to form, 1309. contract of, 1313, 1404. with warehouseman rights of his lessee, 1310, 1311. physical or for business, 1315. 'charter power to make contracts for, 1403. right of with another road, 1485. with bridge tracks, 1487. power to contract for, 1484. what are, under the law, 3604, 2608-2610. when compelled to allow, 2611-2613. CONNECTION OF NEGLECT WITH INJURY, neglect to fence. 1591, 1592, lt>06, 1672, 1673, 1681. neglect to sound bell, 1830-1839, 1850-1856, 1858-1862, 186-1, 1866-1871, 1!)29, 1956. burden of proof, 1838. 1839. prima facie case, 1849, 1857, 1860-1864. See CAUSE OF INJURY. NEGLIGENCE. CONSENT. of city to railway in city. See CITIES AND VILLAGES. to railway in street, 60, 118-136, 157, 159-161, 359, 346, 1235. when not necessary, 129, 160, 359. to use of streets, 1270. to depot and tracks in, 1513. of lot-owners to railway in street, 151-156, 1263, 1265a, 1266, 1271, 1272, 1286. of bondholders to consolidation, 1407. 400 INDEX. CONSENT Continued. of stockholders to consolidation, 1411. of owner, to mixing grain, 104. to occupation of land before condemnation, 350. to structure on land, 630. to railway in highway. 1278. to dismissal of suits. 2719. of shipper to limitation. See ASSENT. CARRIER. CONSERVATOR a party to condemnation, 325. CONSIGNMENT OF GRAIN, right to change. 2622, 2623. notice of penalty, 2622. effect of change, 2623. notice to consignee of arrival of grain, 2623. time for unloading, 2623, 2774. right to receive in cars, before delivery to warehouse, 2774. CONSOLIDATION OF RAILROADS, limitation on right, 67, 1386. of parallel and competing lines, 67. 1412, 1422. publication of notice before, 67, 1386. between domestic and foreign, 1388, 1417, 1422, 1413. approval of stockholders, 1422. notice of meeting, 1422. majority of directors to be citizens, 1422. of roads of several states, 1418. domicile in each state, 1419. effect on constituents, 1420, 1421. new company succeeds to oowers, rights and duties of constituents, 1417, 1387, 1421a. power to condemn, 345. right to municipal subscription, 1387, 1416. in what name sued, 1395, 1397. succeeds to all rights of constiuents, 1397, 1405, 1405a. rights of. 1397, 1399, 1405, 1405a. liability tor taxation on capital stock, 1400. remedy for debts of constituents, 1401. limitation on right to change location, 1422. when to take effect, 1424. filing and recording articles of, 1424. evidence of, 1394, 1424. effect of, on powers and duties, 1389, 1395-1397. defects in, cured by subsequent legislation, 1390. legislative ratification of, 1402. contract, whether for, or for connections, 1404. purchaser of bonds, takes subject to, 1407. when directors estopped from denying, 1408. contracts for, liberally construed, 1410. consent of stockholders to, 1411, 1422. powers as to, construed, 1403. when enjoined, 1411. new company to keep office in state, 1425. mortgage of effect on property of old, 1350. right to dispute mortgage, 1349. liable for debts of constituents, 1391, 1406. liable to perform duties of constituents, 1393. subject to same state control, 1413. effect on constituents, 1389. debts of, not impaired, 1425. on prior duties and liabilities, 1395-1397. whether a dissolution of, 1409. with a foreign company. state control 1413. rights of state protected, 1491 . when a domestic one, 1400. CONSOLIDATION of warehouse receipts, 2743. CONSPIRACY to obstruct business of railway, 172, 2554. CONSTITUTIONALITY., of fencing law, 1519-1525. not ex post facto, 1519. as to existing corporations, 1520. act of 1874 valid, 1521. no deprivation of rights, 1522. imposition of fines and penalties, 1522. matter of legislative discretion, 1523. a proper police regulation, 1524. attorneys fee, in nature of a penalty, 1525. INDEX. 401 CONSTITUTIONALITY-ContiJiued. exempting road from giving signals, 1839. Texas cattle law, 2149-2151. ordinance regulating speed in city, 2155, 2156. stopping at county seats, 3224. See also, 78, 79, 80, 81, 85, 86, 12, 15, 17, 36, 38, 41, 18, 19-31, 96, 100-102. CONSTITUTION OP 1848. governs as to rights acquired under it, 1. special and local laws allowed, 29. as to township organization, construed, 37. corporators means shareholders, 49. special charters, 1149c. trial by jury in condemnation not necessary, 278, 279. gave no damages for laying railroad in street, 799, 800. imposition of liability on stockholders, I)i:l0b-1211a. CONSTITUTION OF 1870. acts prospectively, 2. preserves existing rights, 2. special legislation prohibited, 3, 46. no repeal of general laws of corporations, 48. repeal of charters, for neglect to organize, 58. mode of electing directors, 59. street railways assent of cities, 60. railways to keep office in state, 61. inspection of books reports, 61. when eminent domain article took effect, 92- how far a repeal of act of 1852, 92. makes rolling stock, personal property, 62-66. limitation on consolidation of railroads, 67. making railways public highways, 68-74. fixing maximum rates of charges, 68, 75-86. regulations of use of railroads, 68. limitation on issue of bonds, &c., 87. eminent domain applied to railways, 91. laws to prevent extortion, 94. confers legislative power, 304. does not confer power of eminent domain, 219, 256. repeal of former laws, 217, 283, 314, 324. effect on prior rights and proceedings, 218. limitation on power of the state, 220. constitutional right to appeal, 1054. effect on law 'of, 1849, 1147. CONSTRUCTION. of constitutidn of 1870, 111, 801, 804, 807. of charters, as to power to condemn, 262. of statutes, 305, 306. 319, 321, 323, 46V. when strict, prevails 321-323, 328, 2146, 2147, 3115, 2116. of penal statute, 2616, 2715, 2716. law against unjust discrimination, 2666-2705, 2707-2709. of deed for right of way, 797, 798. of road plans, specifications, etc., 728, 730. of culverts, so as not to injure, 872. of cattle guards, not allowed by owner, 602. CONTEMPT punishment of witnesses for, 2639. CONTIGUOUS PROPERTY injury to. See DAMAUEB. CONTINGENCY law depending on, not special, 31. CONTINUANCE. when service is not in time, 449. of condemnation by justice, 451. CONTRACT a charter is, 55, 78, 81, 82, 1210a-1211a. grant of use of street is, 143. impairing obligation. 23U, 243, 244, 1310, 1210a-1211a, 1441, 1519-1531. kind that gives a lien, 1077. special -waiver of lien, 1080. directors adverse interest in, 1176a. power of charter directors to make, 1179. to release damages, a bar, 1238. for connection of roads, when personal, 1310. as to crossings, 265. 266, 373. for connection not consolidation, 1404. authority of railway to make, 1403. to consolidate, liberally construed, 1410. for reduced rates, binding, 1460, 1461 . of informal corporations, made good, 1463. ultra virw estoppel, when, 1385. 29 402 INDEX. CONTRACT Continued. evidence 0} acceptance by new corporation, 1463. law applies only to railways, adopting, 1464. to carry coal at reduced rates, 1464. for leasing roads of other states, 1476. for operating other roads, 1476. for lands for depot, 1476. for purchase of lands needed, 1476. of horse railways, 1477. sale of tickets over other lines, 1479, 1480. joint for operating roads, 1484, 1484a. power to make, 1484b. to stop trains at places, 1484c. conditional for rolling stock, 1493. for connections, 1485. like those of natural persons, 1484b. of owner to fence track, 1721, 1724, 1725 1727. limiting carrier's liability. See COMMON CAUKIEUS. of carrier, no release of duty. 2582. for rebate on fare, void, 2680. for delivery of grain, contrary to orders, 2775. CONTRACTORS. corporation liable for their acts, 121<>-1219a, 1481, 2458-2460, 2465, 2466, 2468. road in hands of no excuse for not fencing, 1545. included in the word corporation, 2457. liability of private owner, for acts of, 3463. takintr posts for road, 2465. railway not liable to servant of, 2467. taking materials, 182, 1215. reserving money to protect against lien, 1086. CONTRIBUTION. between stockholders, 2912-2914. in equity only, 2914. CONTRIBUTORY NEGLIGENCE. See NEGLIGENCE. CONVENIENCE not enough for condemnation, 297, 376, 384. CONVERSION. of grain by carrier, 2774. of grain by warehouseman, 2988. COPY. of contract to be served in lien case, 1087, 1089, 1090. service of process by, 1099, 1116, 1118, 1119. of articles of incorporation, evidence, 1155. of by-laws, recording, 1173. CORONER railway to pay expenses of inquest, 2950. CORPORATE EXISTENCE. when brought into existence, 1155. when complete, 1156, 1156f . who may question, 11561. when a de facto, 1147. uses under general law, 1169. evidence and proof of, 512-516. 528, 529. evidence of, as to consolidated company, 1394, 1424 . proof of by admission, 1170. not until all the stock is taken, 1198. estoppel to deny, 2897-2900. de facto and wser, when sufficient, 3899. when it ceases, 1462. See CORPORATION. INCORPORATION . CORPORATE PROPERTY how far private, 255, 256. CORPORATIONS. special legislation, 3, 46. general laws for, 42, 46. curing defects in organization, 47. subject to police power, 50-53. reservation in charters, 54. charter, a contract, 55, 78. 81, 82, 1210a-1211a. repeal of, 54, 56. limitation as to lime for organizing, 58. election of directors, 59, 1187. regulation of charges, 78. property. &c., of, subject to eminent domain, 91, 215, 242-256e. discovery by, 114. answer by, "115. delegation of power to. 300, 379, 380. powers granted a judicial question, 300. INDEX. 403 CORPORATIONS Continued. to enforce eminent domain. 333. de jure and de facto, 528, 529, 1147, 1151. must not injure another. 872. notice of lien to, 1087-1089. service of process on, 1099-1122. corporate acts, 362. evidence of, 1166. in what county sued, 1097. municipal legislative control, 57. suits in corporate name. 402. formation under general law, differs from, under charter, 115(if . substantial compliance necessary, ll.Mili. under laws of two states, 1187a. what constitutes. 1156-11561. when incorporation complete, 1156. recording articles necessary, 1156-ll"if>a. must comply with the Iaw,"ll56a-115i>e. fire insurance, 1156d, 1156e. when subscription of capital stock necessary, 115*;;;. loan or use of corporate funds, 1200. subject to legislative control, 1428-144"). legislation held as creating one, 1466. union depots, 1507-1517. defined in statute, 2457, 49, 2725. defunct, remedy of creditors, 2832. liability of managing officers, 2919-29'?5 liability for refusing to transfer stock, 1-202. right to purchase its stock. 1203. liability of stockholders, 2812-2903. See IncoRPOKATioNs . COSTS. of bridge made necessary, 555. of removal of place of business, fi92. expenses of assessing damages, 1035. when county liable for, 1044. limiting witnesses, 942. attorney's fees as, 1092, 1794-1799, 1'iiK. irns. 2599, 2600 2714 retaxing, 1004. on appeal against county, 1044, 105-3. in favor of trie people, 2110. COUNTY. under township system, 19, 36, 37. no control over streets, 138, 147, 12^0. apportioning taxes between and city, IKS. consent to telegraph in roads, 351. " judge of expediency of road, 374. mnj abandon laying of road, 497, 4!). liable for costs, 1044. service of process on, 1108. suit by for fines, 2724, 2811. 1475. in what, action lies against railway, 1007-1143.1). in what, offender on train may be 'tried, 178. COUNTY COURT. condemnation in, 325. no equity jurisdiction, 400. COUNTY CLERK service on, llOtv COUNTY JUDGE when to appoint commissioners, 397, 473. COUNTY SEAT. duty of passenger trains to stop at, 2204, 2224, 2225, 2228, 1150. See RAILWAYS. COUNTY TREASURY. payment of fines to, 2724, 1475, 2811 . paying condemnation money into, 1014, 1016, 1019, 1069. COUPLINGS FOR CARS -injury to brakemen from dnfoctive, 3441-2449. COUPONS cancellation, embezzlement, 170. COURT. must decide whether use is public, 299, 301 . necessity or propriety of condemnation not for the court, 385, 388, 37.">, 394. may correct abuse of power, 387, 390. alvyays open for condemnation, 433, 435. evidence of corporate existence, is to, 515. payment of condemnation money into, 1019. 404 INDEX. CREDITORS OF CORPORATIONS. remedies of, 2812-2820. release of subscription as against, 1195, 1196, 2812. may act through a receiver, 2818. having notice of stockholder's defense, 2819, 2820. bill against stockholders, 12o3a, 2828. bill to enforce payment of stock, 2830. of parties to, 2831. sufficiency of, 2887. equitable lien on stock, 1204. of assignor of stock, 1201 d. CRIME. on train or boat arrest, 2551. false and fraudulent warehouse receipts, 2793. CRIMINAL LIABILITY, of engineer, 2102. of negligence, 166, 167. of warehouseman, 2776. CROPS injury to, from neglect to fence, 1589. CROSSINGS OF HIGHWAYS AND STREETS, no fencing required at, 1518. duty to maintain, 1518. death at comparative negligence, 2097. bridge over highway, 2097a. of streets, duty as to, 2089, 2097a. duty on successor, 2092. change of injunction, 2090, 2093. notice of perils at, 2095. new street, 2096, 149. city liable for defects, 2097a. power over grade, &c., 117. power of city to compel making, 144. flagmen at, 145, 1280. no leave necessary, 1261, 1261a. city may change, 1280. selection of the place, 1225. points and manner, how fixed, 1307. CROSSINGS OF RAILROAD OVER RAILWAY, right to condemn, 264, 257, 259, 260, 261, 1304. right to additional, 265-267, 273. crossing is a taking, 271, 231 . for what uses, 256e. damages for, 261, 273, 554-580. inability to agree as to the place of, 264. who may select place of, 277. cost of keeping road crossed in repair, 555. through embankment bridge necessary, 55." evidence affecting damages, 556-559. stopping train no element of damage, 565 on grade, 570.571, 575, 578, 579. keeping frogs in order, 571-574. stipulation as to, binding, 571-575, 579, 580. under grade, 575. covenant to make and keep in repair, 759. receiving and delivering grain at, 2624. of stream, duty to restore to former usefulness, 2094. CROSSING-FARM. See FARM CROSSING. CROSS PETITION. demurrer to reach defects in, 523, 782. right to dismiss after filing, 459. order of evidence, 525, 777. when necessary, 769-782, 777. when not necessary, 775, 776, 779. evidence under, 780. sufficiency to give jurisdiction, 778. new parties by, 1036. CROSS- WAY, 264, 271, 277. CRUELTY TO ANIMALS by carrier, 168. CULVERTS. power of cities to require railroads to make, 145. duty of railway to make. 867, 1235. must use ordinary skill in construction, 1236a-1236c. whose duty to repair, 2636. INDEX. 405 COMULATIVE REMEDt. as to fraudulent and false warehouse receipts, 111. eminent domain law, 1071 . for killing stock for want of fence, 1612. in respect to warehouses, 2724. CUMULATIVE VOTING election of directors by, 59, 1459. CURATIVE LEGISLATION; 47. CURING DEFECTS. in incorporating, 1463-1466. errors, 736. errors by verdict, 1569, 1701. CUSTOM. limiting carrier's liability, 2426, 2597. as to place receiving grain, 2601. to deliver grain at elevator, 2606. to permit connections proof of, 2612. DAMAGES. to contiguous property, none of which is taken, 799-808. under old constitution, 846. new burdens, 847, 848. for what injuries, 849. construction of new constitution, 235, 850, 804-808. laying a highway, 799, 800. must be real-not speculative, 802, 850, 90S, 626. depreciation in value, 802. must be in excess of that to public, 804, 843-845. for change of street grade, 809, 810, 813-815, 818-820, 822, 824, 886. defective sewer, 811. 817. injury from street drainage, 812, 817. depriving of sidewalk, 816, 828. gutter out of repair, 821. making levee of street, 823. excavation in street, 825, 829, 830, 911, 917, 918. bridge in street, 826. bridge approach in. 835, 901. viaduct or bridge, 839. 840. structure in street, 833, 834. tunnel in street, 836, 837. water tank in, 838. railroad in street, 827, 832, 842, 845, 846-866, 883-910. grantee of city, takes subject to action, 851, 857. obstructing access to lots, 831, 866, 237, 646, 677, 825, 830, 834, 835, 840-842, 865, 904. obstructing access to place of business, 911, 915. additional tracks in street, 865. overflowing land, 852, 875, 905, 906. turning water and mud on lot, 852. bridge on river, 898. right to have condemnation, 853, 861. injunction, as a remedy, 846, 854, 856, 858, 862, 863. obstructing street, as an element, 234, 891, 892. elements of, 902. direct and physical, 851, 859, 903, 803. when too remote, 883, 884. depreciation in value, 626, 899, 903, 907. special not in common, 890, 894, 895, 898. right to have assessed, 853, 861. trespass not necessary, 904. matters not actionable, 909. under ordinance requiring payment, 911-920. moving place of business, 912, 916. loss of business and profits, 912, 913, 916. vacation of street, 237. embraces past, present and future, 407, 921-923. to railway from crossing its track. property adapted to a special use, 561. when it has no market value, 561. loss and damage from proper construction, 554. cost of bridge and keeping in repair, 555. evidence expectations of contractors, 556. opinions of witness on matter of law, 557. opinions of experts as to damages, 558. when new road is through an embankment, 560. use of road as an entirety, 562. to part not taken, 563. to business and operation of road, 564. elements of, 554-580. direct and remote, 565, 567, 568. 406 INDEX. DAMAGES Continued. speculative, 567. delay in operation of trains, 261. depreciation of value of residence, 565. part left less useful. 565. lessening capacity for business, 565, 508, 578, 580. increase of expenses, 565. stopping of trains at crossing, 566, 576. increased dangers from, 567, 568. severing connection with elevator, 569. none, for a service required by law, 577. injury to railway structures. 578, 580. evidence plans of proposed road, 570. stipulation to maintain frogs, &c., 571-575, 57!). when track crossed is in street, 701 . obstruction of track, 701. interf erance with business, 701 . inconveniences, 560. to farm lands, on condemnation, 599-607. market value of land taken, 583, 588, 004, 610, 633, 644, 693, 678, 710, 712, 716, 719 when there is no market value, 561, 642, 643, 678, 681-6S4. elements of, 606, 609, 615, 614, 653, 640. amount taken, 609, 617, 640, 707. fencing an element of, 583, 588, 590, -613, 618. fencing necessary, 618, 707. fencing for six months, 649, 707. loss of spring on farm, 595. cost of ditching made necessary, 601. cattle guards as an element, 602. farm crossing as an element, 619. farm thrown open, 650. dividing farm, 606, 609, 614, 621, 623, 623, 628, 636, 653, 677, 699, 583, 640, 71 dangers in passing over track, 606, 614, (128, 636, 654. danger from fire, 560. 614, 620, 636, 716. inconveniences, 560, 617, 609, 640, 650, 699, 716. physical injury to, 617, 629. incidental, 677, 680, 707. direct and remote, 565. building destroyed, 611. easement as bearing on, 612. conjectural, 657. cost of improvements, 658. difficult access to highway, 677. must be appreciable, 712. speculative, 567, 718. cutting off small part, 621-624, 628, 636. difference in part left, 624, 685, 709, 716. value of strip cut off, 606 to part left, 629, 636, 715. must be direct and physical, 629. depreciation of value, 710, 565, 626. 720, 578, 795, 802, 805, 875, 888, 899, 1)02-906. difference in value, 626, 716, 659, 685, 691, 709, 710, 716, 720. evidence as to, 717. its uses and capabilities, 721 . structure put on land by railway, 630, 665, 667. blocks when treated as distinct tracts, 635. as whole tract or separate parts, 637. as part of an entirety, 642, 643. when only nominal, 534, 655. to a rival ferry whose land is taken, 553. to lessee future profits, 647. for telegraph, not excessive, 648. must be probable, 654. for depot, 656. what owner would take, not proper, 711. based on cash value, 719. prospective value, 722-724. value to the owner, 667, 673, 678, 711. when treated as part of entire property, 635, 637, 642, 643. of strip cut off, of value only as a part of whole, 686, 687, 714. when part taken is of greater value as a whole, 714. to lessee of a flower-garden, 660, 661. loss of business and profits, 660, 661. profits no element of, 682. destruction of pond for a mill, 690. of pond for ice, 691. injury to business, whole property taken, 692. to property as an entirety, 691 . to tenant, when excessive, 697, 703, 704. INDEX. 407 DAMAGES Continued. from change of plans, 702, 728, 734, 758, 757. before assessment, 705. must be proved, 1041. of the evidence. of trespass not proper, 736. stipulation as, 759. profile of grade, 760. opinions of witnesses, 726, 741, 742, 744. right to contest, proof of title, 506. of adaptibility to a use, 764, 724, 671. of other sales, 765, 766. evidence bearing on. 657. of location of land, 641. estoppel to claim, 497-500. as of what date. date of filing petition, 719, 786, 788-790. when of date of condemnation, 719. when of date of trial, 787, 783, 784. only issue for the jury, 507, 524. corporate existence not for jury, 528. separate assessment as to fruit trees, 600. to be found separately from compensation, 533, 535, 539, 540. to lands not described in petition, 769-782. when cross-petition necessary, 769-782. several lots constituting one tract. 769. evidence confined to lots described, 769, 770, 773. may be assessed to balance afterwards, 772. on "all named in cross-petition, 774. to be found by jury, 282. who entitled grantor or grantee, 758, 791. additional use or burden, 232, 239, 241. rif'ht of city to have assessed. 340. by what law fixed, 309, 316-318, 320. includes past, present and future, 407, 921-923, 792-795. recovery a bar to future action, 795. diversion of stream, 767. for a park, 784. entry and preliminary survey, 1220, 1221. agreement to release, a bar, 1228. obstructing flow of water, 1239. to lot-owner use of street, 1285. diversion of trade and travel, 826. to lot-owners by depot and track in street, 1513. from neglect to fence. 1518, 1586-1588, 1817. to crops for want of fence, 1589. exemplary, 1792. leaving gate open, 1807. treble for neglect of duty, 2145-2l47a. neglect as to brakes, 2235. iujnr.y to baggage, 2274. expulsion from cars, 2288-2290, 3307, 2i30, 2334. shortage in weight of grain, 2562. neglect to transport grain in bulk, 2600. non-delivery of grain at proper place, 2615. treble for extortion, 271*. against warehouseman, 2747, 2783, 2985. See ASSESSMENT OP COMPENSATION AND VALUE. DANGER. elemen' of damage. by fire, 560, 614, 620, 636, 640. in passing over railway, 606, 654, 716, 628, 636. DEATH. from injury to cars, 171 . of land-owner in condemnation, 425, 1063. comparative negligence, 2070, 2097. from leaping from cars, 2209. of stockholder, abates suit against, 2901. DEBT. line recovered in, 1473. for penalties, 1506, 1807, 2087, 2103, 2126, 2128, 2145, 2152, 2i:i5, 2236, 2455, 2-156, 2.">99 2641, 2712, 2811. of corporation stockholder's liability, 120i. liability of consolidated company for, of old corporation, 1391, 1406. purchaser of road, not liable for its, 1392. 408 INDEX. DECLARATION. killing stock, for want of fence, 1534-1536, 1542, 1548, 1549, 1560, 1501, 1563, 1505-1567, 1569, 1572, 1595, 1598. 1083, 1690. negativing exceptions, 1548, 1549, 1500, 1561, 1503-1567, 1090, 1093, 1694-1090, 1097, 1099, 1700. need not aver gross negligence, 1091. fencing when surplusage, 1(592. when necessary to show want of fence, 1093. negligence- -killing at farm crossing, 1094. time road open for use, 1698, 1710. defects cured by verdict, 1701 . neglect to fence and leaving gate open, 1702. facts of case, 1703, 1713. as to the injury, 1704. no fence where animal got on track, 1705. place where road was opened, 1700. sufficiency, 1707. location or road, 1708, 1710. duplicity, 1710. time and place of injury, 1712. at common law, 1711, 1714, 1710. degree of negligence, 1091, 1715. surplusage, 1710. injury in city, 1717. value of stock, 1718. for penalty, 2140. for lost baggage, 2248. injury from lire, 2526. extortion, 2702, 2704, 2716-2718. injury from railway in street, 897. on chief inspector's bond. 2703. receiver against stockholder, 2827. creditor against stockholder, 2889, 2891. sufficiency to admit evidence, 2890. creditor against officers of corporation, 2920, 2924. DECREE. of foreclosure, 1013, 1354. in lien case, 1093, 1094, 1096. against stockholders apportionment, 2817, 2911. when not evidence against stockholder, 2894. DEDICATION TO PUBLIC. action for a new burden, 241 . right of way not by reservation, 1000. of streets by plat, 1249. DEED. for right of way construed, 796-798. no bar to action for flooding, 878. right of way only by, 998. reservation in, passes no title, 998. clause in for reversion, 1000. indeflniteness of description, 1227. of city for right of way in street, 1254, 1255. DE FACTO corporation, 512, 513, 510, 528, 529, 1151, 1147, 2t>!)!l. DEFECTS. in pleadings, 417, 782. curing, in incorporating,;! 463-1466. curing by verdict, 1701. DELEGATION. of power to inspect grain, 113, 2V.">7. of power of eminent domain, 200, 300. of power, 379, 382, 383, 391 . by city of its power, 120-123. 132. to locate road, 112. deed held as giving only, 1230. in city -grant for railway, 1299. EATING HOUSE obstructing passage to, I500a. EJECTING PASSENGER. See PASSENGER. EJECTMENT when it lies, 987-990, 995, 997, 1001, 1004, 1005, 1252, 1260. ELECTION. law in cities, not local, 31 . to renew charter, 1172. under what law to proceed, 312, 315. of remedy, 1612. of consignee, to treat grain as converted, 2622. as to company to sue, 1602. held to in location of road and depot. 1225a. ELECTI9N OF DIRECTORS. constitution as to, 59. election and classification vacancy, 1175. cumulative voting, 59_, 1459. minority representation, 59, 1459. right and mode of voting, 59. vote in person or by proxy, 59, 1180a, 1459. when and where, 1175. regulated by by-laws, 1175, 1180. city may vote by proxy, 1181. time of fixed in by-laws, 1187. effect of neglect to elect at time fixed, 1187. ELEVATED WAYS. incorporation, 2942. obtaining right, of way, 2943. materials compensation, 2944. increase of capital stock, 2945. powers and restrictions, 2946. uae of streets by how obtained, 2947, 2948. ELEVATORS. severing connection with, 569. delivering grain at, 107, 2*500, 2602-2608. connections with, 1309-1311. track to, when part of road, 2604. when railway not bound to deliver at, 2605-2608. EMBANKMENT. intersection of railway through, 555, 560. on land, value in condemnation, 665-667. 412 INDEX. EMBANKMENT Continued. obstruction of water by, 870, 871, 1240. condemnation of extra ground for, 1331 . duty to fence road at 1570. EMBEZZLEMENT by agent, &c., of railway, 169, 170. EMINENT DOMAIN. under old constitution, 179. constitution limits power, 180, 183, 222. not conferred by constitution, 219, 256. nature of power, 183, 227, 228, 199. not applicable to municipal subscription, 187. to taxing power, 187, 203. to special assessments, 204, 360, 365, 193. effect on taxing power, 223. on special assessments, 224. grant in restraint of, void. 229. no application to fixing of charges, 80. limitations and restrictions, 390, 199, 214, 183. legislative power over, 304. statute is remedial, 305. is mandatory, 306, 328. legislative authority to exercise, 200. delegation of the power, 200, 379, 382, 383. repeal of laws by constitution, 308, 310, 311, 313, 314, 324. construction of law strict. 305, 306, 328. what subject 'o the right, 242-256a, 256-276. franchises and property of corporations, 215, 91. ferry privilege. 243. state grants, 243, 244. horse railway for another, 247-251 . property in street, 247. corporate property, how far private, 255 . easement in highway, 268, 270-272. leasehold estate, 275. trees near road, 1231. property in public use, 252-256e, 262, 93. for new use, 263, 254. of railway property, 245-249. one railway for another, 256-256e . crossing another railroad, 257. presumption against monopoly, 258. grant, not exclusive, 258-260. rival ana competing roads, 260, 261. when use is different, 263. for crossing over another road, 264, 1235. right to additional crossings, 265-267, 273. effect of prior contract, 266. ground of necessity, Immaterial, 267. what is a taking, 230-241 . partial by damaging, 196, 230, 234, 235, 642, 687. new remedy for damaging, 235, 241 . what is property, 236. imposition of new duties, 232, 239, 1296, 241, 269, 1431*. vacation of street, 237. deprivation of property, 307. of t he necessity or expediency. a legislative or political question. 391, 394, 392. expediency of exercise by city, 393. court to decide as to, 385-389. of the use and purpose. must be a public, 195, 198. private road, 195. limited to a public use, 289-302. of the compensation. under old constitution, 184. necessity of 191,214,234,235. when in benefits, 194. making provision for, 202. fixing a judicial act, 206, 09, 326. must be pecuniary, 210. good before payment, 212. for railway crossing, 1304. trial by jury, 207, 214, 215, 278-288, 303, 91, 209, 211. on appeal, 211. laying highway, 284, 285. tiltcnto be paid. before entry, 201. INDEX. 413 EMINENT DOMAIN payment necessary to complete, 208. when to be made, 185, 189, 190, 197, ail. taking before, 212, 1214. entry enjoined, till paid, 1110, 197. of the divestiture of title, 192, 205. judgment passes, 205. strict compliance necessary, 319, 321-323. who man exercise right. state alone can give the power, 213. right, how exercised, 325. who may condemn and for what purposes, 327. who may enforce, 333. by act of, 1849, 334. by act of 1852, 335. power of cities and villager. for streets, 337, 340, 358, 364, 365. Eurposes not specifically named, 342. ar city prison, 343. for boulevard, 348. for a sewer, 361. when enjoined, 392. grade of street, 820. powers of railways. to condemn, 181. . materials by contractors, 182. for lateral or branch road, 329-331, 353, 354. forfeiture of right, 332. limitation as to time to locate, 332. not exhausted by exercise, 336, 349. for work and paint shops, 337, 338. for depot grounds, 338. for lumber sheds, 338. to take public property, 341. to use streets, 344, 345. of ground used by consent, 350. by 90, 1693, 1697, 1699, 1700, 1705, 1707, 1761, 1763, 1764, 1T67. EXCUUSION TICKET may be issued, 2706. EXECUTION. rolling stock liable to, 62, 1498. on judgment of condemnation, 925-932, 946 . on justice's transcript, 1091. when grain liable to, against warehouseman, 2784, 2785, 2799, sale of stock on, 2926-2939.; rights of purchaser, 2937-2939. INDEX. 417 EXECUTOR. liability for stock, 1208. appeal from condemnation, 1063. EXPEDIENCY. of the exercise of eminent domain, 373-394. of road not involved in appeal, 374, 375, 1042. of laying street, 375. EXPERTS. See 557, 747. EX POST FACTO LAW, See 1519. EXPULSION OP PASSENGER. See PASSENGERS. EXTORTION. in railways, 75, 76. 81. penalties for, 76, 80, 94, 3712. limitation of action, 97. laws to prevent, 94, 1428, 1515. when railway guilty of, 2645. evidence necessary to show, 2696-2699. declaration in suit for, 2702, 2704. evidence of 2706, 2724. preponderance enough, 2712. attorney's fees in action for, 2714. no action until schedule of rates, 2721. fines to county, 2724. suits for to have precedence, 2724. when guilty of, 2645. See UNJUST DISCRIMINATION. EXT.RA CHARGES neglect to procure ticket, 1157i, 1157k, 2668. FACILITIES. for marketing by railway, 587. for connections and crossings, 1304. for transportation, 2140, 2141 FACT questions of, 1855, 1856, 1858, 1859, 1925, 2175, 2177, 2180, 2358, 2363, 2369, 2378, 2397, 2429a, 2496, 2502, 2507, 2548. FALSE SIGNAL placing punishment, 171. FARE. includes baggage, 2236. payment not necessary to passsenger's protection, 2337. officer taking, to wear badge, 2338. return prnrata on expulsion, 2550. extra for want of ticket, 2668. See EXTORTION. CHARGES. FARM CROSSINGS. an element of damages, 619, 680, 1529. not when it will injure road, 680. duty of railway to make, 1518, 1528, 1529. what is, 1583. duty to keep bars or gates at, 1626. leaving down or open. 1807. when owner may make, 1817. signals not required at, 1831 . , See FENCING TRACK. FEDERAL COURT removal of case to, 430. FENCING TRACK. powers of cities to compel, 144, 1280. verdict should show amount allowed for, 531, 532. whose duty to keep up, how shown, 532. an element of damages, 534, 583, 590, 707. instructions as to, 618, 649, 707. right of owner to make, 1009. keeping up for six months, 707. legislature may require, 1442. duty and liability, 1518. ' within what time, 1518. constitutionality of statute, 1519-1525. construction of the law. 1526-1529a. effect of other laws on, 1530-1546. applies to all railways, 1526. law remedial - not penal, 1527. construction excepted places, 1518, 1547-1549, 1563, 1574-1581, 1625, 1690, 1693, 1697, 1699, 1700, 1705, 1707, 1761-1764, 1767. gates and bars at farm crossings, 1518, 1626. construction of farm crossings, 1518. construction of cattle-guards, 1518, 1625. -31 418 INDEX. FENCING TKACK-Conttnued. meaning of "necessary farm crossings." 1528, 1529. must be at all crossings not public highways, 1529a, 1625. act preventing animals at large, no repeal, 1580, 1532. time in which to fence, burden of proof, 153:M546. declaration as to time to fence, 1534-1536, 1542, 1544. when road in use six months, 1534-1589. proof road being open six months, 1536, 1543, 1546. no duty to repair before six months, 1539. change of ownership, does not extend time, 1540, 1541 . of depot grounds, 1574, 1580, 1581. in cities and villages, 144, 1580, 1575-1577. cattle-guards in streets, 1582. cattle-guards, except at highway crossings, 1625. meaning of words "on both sides of its road," 1629a. mandamus to compel, 1629b, 1824. notice to build, 1816. how served, 1816. right of owner to build and recover, 1817-1824, 1531. double value of cost and damages, 1817, 1820. recovery for a part built, 1818. allowing owner to fence, no release, 1819. release of railway to fence, 1724. by allowing for in damages, 1719-1723. by contract with owner to, 1725-1727 road in hands of receiver, no excuse, 1821, 1822. must be on line, 1822, 1823. evidence of contract to fence, 731. duty as to maintaining, 1518. liability for injury to stock tor want of, 1518. of lessee of road, 1628, 1629, 2461, 2462. of lessor and lessee, 1602, 1604, 1628, 1629, 2462. extent of liability, 1584-1591b. injury to an employe, 1584, 1585. injury by agents and cars only, 1586-1588. to crops, 1589. liable for what animals, 1590. liabttttu for injury to stock from neglect to fence. allowing cattle-guard to fill with snow, &c, 1591*. must be out of repair at place cattle get in, 1591. neglect must be the cause of the injury, 1591, 1672, 1673. plaintiff's negligence the cause, 1593. who may recover for neglect, 1584. cattle-guards out of repair. 1596. neglect to repair, 1608, 1609. leaving bars of farm crossing down, 1608. sufficiency of gates, 1610. insufficiency of fence, 1618. neglect to keep gates in repair, 1623. fence out of repair-notice, 1816, 1637, 1640. 1641, 1644, 1730-1732. neglect to keep gates closed, 1630-1634. neglect to discover breaches, 1627. 1635, 1636-1643. notice of breaches in, 1640-1644. time in which to repair, 1637. estoppel to deny duty to repair, 1645, 1646 . as to common field. 1624. proof of place of killing, 1573. injury at place required to be fenced, 1607, 1705. place animals got on, 1617, 1618, 1621, 1622. killing at place not required to be fenced, 17;%, 1739, 1740, 1743, 1754, 1756-1758 evidence as to sufficiency of fence, 1600, 1601, 1776. its sufficiency, 1594, 1600 of neglect of duty, 1599, 1614. of duty to fence, 1760-1762. declaration for killing, 1598, 1690-1718. when liable for stock injured. 1615-1625. attorney's fees, 1591b, 1794-1799. animal lawfully at large, 1606. animal at large, no release, 1748, 1749, 17852-1754, 1756-1758. \v hon no proof of negligence required, 1603, 1613, 1617, 1619-1623. wlit'ii negligence inferred, 1605, 1616. election of remedy, 1612. wln'ti DO recovery for neglect, 1595. duty to make cattle guards, 1611, 1625. duty to make suites, &e., at farm crossing, 162i. common law liability for negligence, otherwise, 1518, 1647, 1648. burden of proof, 1647, 1648. at place fenced, 1742, 1743. INDEX. 419 FENCING TRACK Continued. contributory negligence of plaintiff, 1728-1759. tearing down penalty, 1807. trespass for removing for road, 1029. frightened animal, 1601. PERRY FRANCHISE, by special act, void, 15. condemnation for, 373. subject to eminent domain, 242. railway grant subject to, 1490. FICTITIOUS increase of capital stock, 87, 1376, 1383. FINES for what, 163, 165, 168, 175-177, 1522, 2084, 2087, 2100, 2126, 2274. 2444, 2450, 2455, 2561, 2710, 2712, 2724, 2739, 1472, 1473, 1475, 2118, 2117a, 2771, 2773. FIRE. element of damages, 560, 614, 620, 636, 716, from grass on right of way, 1800-1806, 2496, 24!)7, 2499-2503, 2508, 2509, 2520, 2522, 2534-2536, 2542, 2547. escape of, prima facie negligence, 2484, 2510, 2516, 2525, 2535, 2540, 2546. but not conclusive, 2498, 2525. negligence implied from, 5M85, 2495. burden of proof as to negligence. 2485, 2486, 2510. unnecessary amount of steam, 2487. throwing sparks a great distance, 2493, 2511. evidence retmtting, presumption, 2516, 2521, 2533, 2540, -2546. use of wood in coal burner. 2518. care required of railway, 2491, 2492, 2495. duty as to appliances, 2503, 2504, 2514-2517, 2523, 2527, 2528, 2537, 2541, 2545. railway not an insurer against, 2498, 2525. loss that owner could have avoided, 2505, 2506. when injury too remote, 2507. remote and proximate cause, 2512, 2529-2531. declaration, 2526. variance, 2532. setting to grass, 2536. limiting carrier's liability as to loss by, 2489, 2441 . liability of lessee for negligence, 2534. liability of warehouseman lor loss by, 2766. care to prevent loss by, 2766. See NEOLIOKNCK. GRASS AND WEEDS. FIRE INSURANCE COMPANY. when incoporation complete, 1156d, Ilo6e. liability of stockholders, 2835, 2836, 2341-2844, 2878, 2888. FLAGMEN. city may require railway to keep, 145-147, 1280, at street crossings, 1455, 1888, 2450. right to stop persons crossing, 2450. liability for neglect to keep, 2454. penalty for neglect of duty, 2450. FLOWER GARDEN condemnation of damages, 59-661. FORCIBLE ENTRY lies for entry illegally on condemnation, 991, 1068. FORECLOSURE. decree sale payment, 1013. effect on use of road, 1343. sale of fragment of road, 1354. distribution of proceeds, 1354. FOREIGN CORPORATION service of process on, 1101, 1125, 1135, 1136, 1140, 1142. FOREIGN RAILWAY. See DOMESTIC CORPORATION. FORFEITURES. to prevent extortion, etc., 1428. for neglect to fence, 1522. starting train without signal, 2087. neglect to post minor law, 2128. obstructing highway, 2119-2121. of charters, 55, 56, 94. of stock, 1192. obstructing vveighmaster, 2811. FORMER RECOVERY a bar, 792, 795, 808. FORMER USEFULNESS restoring highway, etc., to, 1235, 124-3, 12-W, 1;M5, 1297, 1298. FRANCHISE. grant by special law, 3. subject to eminent domain, 91, 93, 242. right of way is not a, 274. power of state to regulate its exercise, 1429, 1441, 1442. may be mortgaged, 1467, 1514. 420 INDEX. FRAUD. in issue of stock, 1378-1380, 1382. in ordinance to take sidewalk, 828. in proceeding to condemn, 1033. defense to subscription, 1192k. release of, subscription, as to creditors, 1195, 11%. Eurchase of stock by corporation, 1203, 1203c-1203e. n warehouse receipts, ill. in relation to tickets, 2556-2561 . as to contents of baggage, 2243, 2256, 2259, 2260. in judgment against'corporation, 2833. as to warehouse receipts, 2793. effect on lien, 2955. action for issue of, 2956. FREEHOLD. when involved, 1047. when base, 1230. FREEHOLDER see 468, 470, 485. FREIGHT. right to transport, 1316. rules and regulations as to, 1320. charges, tender, when, 2567. waiver of pre-payment, 2568. classification of, 2722. FREIGHT CARS behind passenger, 2129. FREIGHT TRAINS. new use of street, 157. tickets to ride on, 1322, 2298, 2311, 2312. carrying passengers on, 1157p-1157y, 1158, 1158e. evidence to show it carries passengers, 2306. excluding passengers from, 2206. need not stop at all stations, 2205. expulsien of passengers from, 2297, 2311-2316. duty as to brakes and brakemen, 2234. penalty for neglect, 2235. See RAILWAYS. FREIGHT YARDS-*condem nation for, 416. FRIGHTENING. animals liability, 1586, 1588, 1601 . team, by whistle, 175, 2084-2086a. by great speed, 2153. See ANIMALS. GAMING expulsion of passenger for, 2550. GARNISHMENT. money set apart to pay debts, 1346. mortgaged revenues, 1347. mortgaged earnings, before transfer of possession, 1353. unpaid stock by creditors, 2814, 2821-2826. GARDENING damage to business, 659-661. GATES AND BARS AT FARM CROSSINGS, duty of railway to make, 1518, 1529a, 1630-1634. on part of fence, 1609. notice to make, 1816. keeping in repair, 1609, 1623. leaving open, 1608. 1634, 1702, 1728, 1729, 1807. fastenings to, 1610. right of owner to make, 1817. estoppel to deny duty to repair, 1645, 1646. See FARM CROSSINGS . FENCING TRACKS . GENERAL ISSUE traverses all grounds of recovery, 1711. GENERAL LAWS. constitutional provision, 3, 8, 9, 39, 42. applicability of, 42. GOOD WILL damage to condemnation, 700. GOVERNOR. signing petition to condemn by state, 325 . appointment of railroad commissioners, 2625. may remove them, 2626. to approve their bond, 2627. may require reports of, 2634. approval of state's attorney's compensation, 2643. appointment of chief inspector of grain, 2756. reports of cause of railway accidents to, 2636. INDEX. 421 GRADE. of grain, mixing, 104, 2740. for inspection to ho fixed.2796. notice before change of, 2796. of streets. profile, evidence, 760, 887. liability for changing, 809, 810, 813-815, 818-830, 822, 886, 1250. by condemnation, 820. of railways in cities, 117, 145. See CITIES AND VILLAGES. DAMAGES. GRANTEE. action by, for injury to land, 422, 423, 1025. damages to, 758, 792. ejectment by, 1001. GRASS AND WEEDS on right of way, negligence, 1687, 1800-1806, 2496, 2497, 2499, 2502, 2508, 2509, 2520, 2522, 2531-25136, 2542. GUARD. as to fences and gates, 1630, 1631, 16,35, 1636, 1638, 1639. See PATROL. FENCING. RAILWAYS. GUARDIAN. party to condemn, 325. liability for stock, 1208. HACKMEN injury to baggage, 176. HEARING. of condemnation, 497-529. setting of time, 432. in vacation, 453. in term, 457, 458. assessment laying road, 451-453. HEATING OF GRAIN liability of warehouseman, 2766. HEIR. appeal by, 1063. necessary party to condemn, 424, 425, HIGHWAY. how far a railway is. 68-74. condemnation for, 284. expediency of, 374. notice to land-owner, 450. fixing time of hearing, 451. continuance by justice, 451 . petition, description, 452. claim of damages, 497, 498. damages must be adjusted, 501-504. compensation not in benefits, 631, 632. measure of damages, 645, 698, 706. right to abandon proceeding, 957. order for, necessary before taking, 1040. appeals, 1038-1047. act construed with eminent domain act. 706. powers of commissioners over, 1247. telegraph in, 232, 241, 351, 1003. obstructing access to, 677. right of way, is property, 268. grant of use, joint--not exclusive, 1245. by state construed, 1246. power of railway to build road over, 1235, 1278. railway in damage to contiguous property, 234. private switch, not a highway, 1312. HIGHWAY CROSSINGS. change of by railway, 1294, 1294a. equitable interference with change, 1294, 1294a. change of place of intersection, 1295a. duty to make and maintain, 1295, 1297, 1518. as to new street, 1296. restoring to former usefulness, 1297, 1298. what is, a crossing, 1583. proof that road is a public one, 1903. cattle guards at, 1625. no fencing at, 1518. duty as to approaches, 2089-2097a. notice to make or repair, 2098. neglect to make or repair, 2099. penalty for, 2100. obstructing witli cars. 2111. liability under ordinance, 2113-2117a penalty for, 2119-2121. 422 INDEX. HIGHWAY CROSSINGS Confirmed, flagmen at. 1455, 2450, 3453, 3454, duty of railway at. 1831-1835. warning boards, 1835, 1836. warning of danger at. 3454. speed of trains at, 2185, 2188-2191. signal on approaching, 1827-1 MW. for whose benefit. 1831-ia35. exempting from duty, 1829. mutual rights at, 1898-191)2. See SIGNALS. STIIEKT CROSSING. HOGS injury to, 175, 1518. HORSES. injury to, 144, 175. injury to from neglect to fence. See FENCING TRACK, AND ANIMALS leading or leaving on track, 1807. HORSE AND DUMMY HAILWAYS. See 155, 247-249, 1145, 1265, 1286. condemnation, 250, 251. HUSBAND party to condemnation of wife's land, 325. HYPOTHECATION OP STOCK who liable for stock, 2859. ICE. along track, 148 . and water in ditches, 1689. ILLINOIS CENTRAL rights of state protected, 2941 . IMAGINARY DAMAGES. not allowed, 617, 620, 712. 718. See DAMAGES. IMPAIK1NG OBLIGATION OF CONTRACTS -laws held not, 229, 1210, 1210a-1211a, 1441, 1519-1521, 243, 244. IMPEDING. business of railway, 2553. conspiracy to, 2554. IMPLICATION. powers by, 328. to lay track in city, 1259, 1361. agreement by, 1157b. repeal by, 1530, 1532. IMPLIED. condition in charters, 1435. power, of railway as to by-laws, 1157. of president, 1189. promise of stockholders to pay debts, 2880. IMPRISONMENT. in county jail, 2274, 175, 2118, 2126, 3552-2554, 2773. in penitentiary, 2793. IMPROVEMENTS. dividing on farm, 609, 716. as affecting value of land, 655, 665, 671, 672, 716, 752. evidence snowing value of, 672. by tenant, 1017. INABILITY. to acquire title, 404. to agree as to compensation, 277, 403, 404, 1213, 1214. as to damages by highway, 503. INCIDENTAL DAMAGES. See DAMAGES. INCONVENIENCES. See DAMAGES. INCORPOKATION. act for cities not local, 18 . of railway, 1144. of horse and dummy road, 1145. as a connecting line, 1146. under former laws, 1149-1151. articles of and recording, 1152. when complete, 1156-1156a. different under charter and general law, 115f>f . taking all stock, necessary, I156g. substantial compliance necessary to, 1156a-1156d, 1156h. who may question, 11561. shown by user, 1169. under laws of several states, 1422, 1423. filing articles of, 1424. certified copies evidence, 1434. INDEX. 423 INCORPORATION dmtinued. of union depots. 1507-1517. articles of, 1507, 1508. certificate of, 1509. what makes, 1509. curing defects in.1 463-1466. of elevated way,, 2942. See CORPORATIONS. EVIDENCE. INCREASE OP CAPITAL STOCK. power and restrictions, 87, H79a, 1306, 3941. who may increase, 1307-13071), 13851). who entitled to new stock, 1307c, 1385c. of elevated way, 3945. See CAPITAL STOCK. INCREASE. of expenses of a railway by a crossing, 565. of damages deviation from plans, 757. of business of road, 336, 349, 363. of indebtedness of road, 87. of market value, 640, 641, 656. fictitious of debts of railway, 1376. INDICTMENT. of witness refusing to testify, 2640. of warehouseman. 2776. INDIVIDUAL LIABILITY of stockholders. See STOCKHOLDERS. INDORSEMENT of warehouse receipt. See WAREHOUSE RECEIPT. INFORMATION-bill on, 116. INJUNCTION. of building rival road, 260, 26t. taking property without compensation, 269-372. condemnation for other tracks, 373. condemnation for a street, 393. change of plans after condemnation, 738. depriving of sidewalk. 816, 838. laying track in street by leave of city, 846, 848, 854, 855, 850, 858, 863. without leave, 856. damaging of property, 850. till compensation paid, 190. 197. condemnation by horse railway, 247. imposition of new burdens, 883. of proceeding, for delay in paying condemnation, 960. fraudulent condemnation, 1033. collection of subscription, 11921. improper use of street, 1290-1393, 1394a. removal of connecting track, 1308, 2620. of consolidation, 1411. making farm crossing, 1529. INSPECTION OP GRAIN, special legislation, 32. delegation of power, 103, 113, 2757. laws' to regulate, 113. Chicago act, valid, 2736. required in class A warehouses, 2740. before delivery from, 2740. rights of owner dissatisfied with, 2774. grades to be established, 3796. notice of change in, 2796 . who to fix fees of, 3800. charges of -a lien on grain, 2800. rules and regulations for, 3756, 3810. salaries and expenses, how paid, 3799. no mixing of grades in store, 2796. committee of appeals, 2797. appeals from decision of inspector, 2798. expenses of, how paid, 2756, 2158. before receipt in warehouse, 3769. INSPECTOR OP GRAIN. appointment and qualification, 2756, 2760. rules and regulations for, 3756. rates of charges regulated, 3756. compensation of and fissistants, 275'J. registrar and assistants, 2756. powers of railroad commissioners over, 2756 removal from office, 2756. expenses of, how paid, 2756, 2758. suit on bond of, 2761-2763. 424 INDEX. INSPECTOR OF GEAIN Cojitinued. right to inspect grain in warehouses, 2768. scales in warehouse, 2768. right to examine and test scales. 2766, 2768. penalty for assuming to act as, 8771, 2772. appointed by board of trade, 2770. where any one may act as, 2772. penalty for misconduct of, 2773. improperly influencing, 2773. See CHIEF INSPECTOR. INSTRUCTIONS TO JURY. orally as to form of report, 467. in condemnation, 4%, 552, 612, 664, 736, 755, 894, 895. as to fencing road, 1537. 1543. as to comparative negligence, 2040, 2(>41, 2045, 2046, 2051, 2057, 2058, 20M), 20(il, 206=5, 2065, 2068, 2072-2075, 2080. ignoring comparative negligence, 2202. whether speed caused the injury, 2201 . INSURANCE COMPANIES. liability of stockholders, 1210c, 1210d, 1211. 2818. to amount of stock, 2835 2836, 2840, 2844. to what companies, law applies, 2841. law construed, 2841-2844. who may sue to enforce, 2888. sufficiency of declaration, 2890. service of process on, 1117. INTEREST. penalty on taxes is not, 21. on special assessment, 22. on judgment of condemnation, !'43-952. on railway loan, who may fix, 1184. on cost of fencing, 1817. on stockholder's double liability, 2910. on amount received on grain improperly sold, 2974. of juror, 470. of director in contract, 1131, 1176a. in land, to make a necessary party, 431 . INTER-STATE COMMERCE. laws, whether interfering with, 164, 2658-2664a. limiting charges, 84. Texas cattle, 2149-2151 . stopping at county seats, 2224. INTERLOCUTORY automatic signals, 2726, 2727. INTERSECTION. of between railways, 256c-256e. facilities to be afforded for, 256c. of two railways, 554-580. selection of place of, 1225. of streets and highways, 1235, 1295b. no leave necessary, 126], 1261 a. JARRING of building by railroad trains, 902. JEWELRY as baggage, 2252,2259. JOINDER. in appeal, 1039. of actions, 2105, 2148. of parties defendant, 1091. creditor's bill, 2830, 2831. JOINT USE. of street by railway and public, 139, 1283. of highway by, 1245. condemnation for, 247, 250. of railway tracks, 1264. JUDGE . petition to condemn, to in vacation, 325, 1508. when presented in vacation, 432. direct summons and publication, 432. has same power as in term time, 435. naming jurors to fill panel, 482. JUDGMENT. necessary to a condemnation, 209. divests the title, 205, 1005, 1007, 1008. description of the land, 395. binds parties only, 425-429. must show notice, 440. INDEX. 425 JUDGMENT-CtrnMnwed. in vacation, 456. on award of compensation, 1027. on report -form and effect, 924, 936, 930, 941. bar to second suit, 772, 793-795. effect collaterally, 932, 933, 940, 941, 1023, 1029, 1031, 1034. a part of the record, 931, award of execution, 925, 927-929. 934, 936, 946. should be conditional, 937, 937, 939. when right under, vests, 933-938. interest on, when, 943-952. right to abandon after, 939. reversal effect on possession, 988. as to party entitled to money, 1011, 1014. directing payment to county treasurer, 1014. no right of entry before payment, 1024. with payment, a justification, 924, 937. acquiescence in, 1032. when final, 1061. record of, 1070. for penalty bar to second suit, 2109. attacking for fraud, by stockholder, 2833 . JUDICIAL. act fixing compensation is, 206. proceeding, necessary to condemn, 209. condemnation is, 326, 433, 435. questions 299, 300, 383, 391, 393, 1444. notice, 1168. JUNCTION OF RAIL WAYS, duty to unite in forming, 1304. accommodation at, 2130. receipt and delivery of grain at, 2634. See RAILWAYS. JURISDICTION. of streets and roads, 136, 147, 1380. of supreme court, 1057. chancery, 1291, 1307. of county court, no equitable in condemnation, 400. of officers on trains, &c., 178. to condemn land, 395-401. what courts have, 399. how conferred and shown, 396-398, 325. what petition to show, 395, 401. of the person, 434, 442, 458. depe_nds on notice, 442, 458. service less than ten days, 449. of tenants in common, 428, 429. appearance gives of person, 398, 480. prerequisites to, 488, 411. of cross-petition, 778. involved on appeal, 1042, 1043. of justice of the peace. 451 . error does not affect, 488. JURY. act relating to Chicago, 13. not necessary to condemn under the old constitution, 184. right to trial by under old constitution, 207, 187, 278, 279. under new, 91, 214. 215, 278-288, 303. on appeal under prior laws, 211, 280, 383. parties may waive, 388. condemnation for state house ground, 286. of less than twelve, 287. selection, by justice of the peace, 450. in vacation, 468. oen ire names on slips, 468. statute construed, 469. of second, 472. aclec ion of. filling panel, 482. challenge of array, 457. array, when not fair, 470. challenge of, 482. competency of juror, 484. must appear in record, 485. evidence of selection by justice, 471. where several owners, 454, 460. 463 oath of, 486. -32 426 INDEX. JURY Confirmed. swearing waiver of objection, 487, 488. questions before, 371. 885, 517-519, 534, 720. evidence not proper for. 528 . view of premises, 489-496. not bound by opinions of witnesses, 745-749. may act on their own view, 744. averaging the evidence, 761, 762. adding and dividing, 762. parol evidence to show basis adopted, 1029. amending verdict, 467. necessary in condemning for highway, 284, 285, trial by, in prosecutions, 1472, 2710. JUSTICE OF THE PEACE. jurisdiction in actions for injury to animals, 144. in suits for penalties, 2106, 2126, 2599. uniting causes to defeat, 2105. filing transcript of, 1091 . district of, 17. condemnation for highway, 450, 452, 471. selection of jury by, 482. error in swearing jury, 488. summons and service, 1115. JUSTIFICATION- -when condemnation is, 924, 932, 935. LABOR AND LABORER. lien for labor, 1073, 1076. when under contract, 1085. LADIES. car, 1157t. waiting-room, 1158b, 1504, 1336. LANDING. for water craft no condemnation, 1489. connecting with railway, 1275. LANDLORD AND TENANT. apportionment of compensation between, 1022, 1023. condemnation does not release tenant, 1021. LARCENY of railway punishable, 169, 170. LATERAL ROAD. as to length of, 329. condemnation for, 330. not for private use, 353. 354. charter must authorize, 363. LATERAL SUPPORT of the soil, 829, &30. LAW. questions of, 1158g, 1158h, 1568, 1857, 1860-1864. when remedy is at, 1401 . what governs, 309, 312, 315-318, 320. LAY-OVER TICKET holder bound by conditions, 2318. LEAKAGE -service to make good, 2562. LEAPING from moving train, 2211, 2215-2223. LEASE. power of railway to, 1172, 1403. condemnation does not extinguish, 1021. unauthorized no relese of subscription, 1482. remedy of stockholder for an unlawful, 1483. of roads of other states, 1476. power to contract for, 1484. of rolling stock, till paid for, 1493, 1494. of tracks in street, 1264. contract held not a, 1313, 1404. legislation necessary for lease to foreign company, 1414, 1415. LEASEHOLD. subject to condemnation, 275. protected, 272. damage to entirety, 659. apportionment of compensation, 1022. LEGAL TITLE-when passes as to stock, 1200f, 1201-1201b. LEGISLATION. validating incorporation, 1413-1466. as to railway, applies to prior companies, 1434. LEGISLATIVE. control over union depots, 1515. discretion, 1523. INDEX. 427 LEGISLATIVE Continued. grant, in restraint of eminent domain, 229. function, 229. powers, 304. embraces eminent domain, 304, 219. when conferred, 219. questions, 373, 376-378, 381, 391, 394. recognition of corporate rights, 345. of consolidation, 1402. of power to build road in city, 1269, 1269. LEGISLATURE. power to fix individual liability of stockholders, 1210. reservation of power over corporation, 1210a, 1210c. control over railways, 1429-1458 . power to fix rates of charges, 1428 . approval of route, etc.. of railway, 335. constitution a limitation on, 180, 219, 220, 40, 46. may delegate powers, 200. L K SS K K . condemnation, damage to future profits, 647, 660, 661. payment to before taking, 1017, 1018. compensation for improvements, 1017-1018. when a necessary party, 272, 431. LESSEE OF RAILWAY. must conform to charter of lessor, 1478. lessor liable for acts of, 1481, 1217-1219a, 2459, 2464. liable for injury to stock, for want of fence, 1602, 1604, 1028, 1629. notice to as to fencing, 1816. duty as to flagmen, 1888. treated same as the corporation, 2457. liable for acts of those using road, 2474. liable for defects in road, 2477, 2478. for escape of fire, 2484. for grass on right of way, 2534. examination of by railroad commissioners, 2638. penalty for neglect to report, 2641 may purchase foreign roads, 1426. may condemn in lessor's name, 267. penalty as to, of warehouse, 2775, 2776. LEVEE action for converting street into, 823, 824. LEX LOCI-governs as to carrier's liability, 2379, 2406, 3437. LICENSE. of county board to make telegraph poles in highway, 351. no protection against action, 351 . structure on land by, 665. to lay track in street, no defense to action, 849. where city has but an easement, 849. presumption of, 993. revocation of, for right of way, 997. as to speed of train, ordinance is not, 2190. of warehouseman revoking, 2737. limitation as to re-licensing, 2737. of class A, how obtained, 2737. revocation, 2737, 2766. renewal, 2739. LIEN. of carrier, 168. on railroad, 1073, 1096. for what given, 1073. as against mortgage and other liens, 1073. of what date, 1073. where it is given, 1074-1080. in whose favor, 1081. does not extend beyond sub-contractor, 1082. petition, what to show, 1083. release of, by contractor, 1084. relation of parties, 1085. not to exceed contract price, 1081. notice of, 1087-1089. service of, 1087. list of persons claiming, 1090. action to enforce, 1091. petition to enforce, 1093. attorney's fee taxed, 1092. limitation of action, 1094, 1095. on sale of rolling stock, 1493. 428 INDEX. LIEN Continued. of warehouse for storage, 2748-2751, 2754, 2755. purchaser of receipt, takes subject to, 2748a. when lost, 2749-2751, 2991 . by agreement, 2752- on grain for charges, 2774, 2954, 2958. of creditor on stockholder's liability, 2903. not lost by issue of fraudulent receipt, 2955. on stock, 1203a, 1204. of warehouse, not on goods of another, 2961 . warehouse receipt, gives none to holder, 2965. priority of, 1073, 1079, 1081. LIGHTING DEPOT. See DEPOTS AND GROUND. LIMITATION. of action, to enforce municipal subscription, 25. Qfor penalty extortion, 97, 2705, 2715. to enforce lien, 1073, 1077, 1079. for penalty, 2147a. Texas cattle, 2148 . against stockholders, 2915-2918. of time for organizing under old charters, 58. for commencing and completing road, 1462. on issue of bonds and stock, 87-90. increase of capital stock, 87-90, 1206. of rates and charges, 68. of right to lay track in streets, 118. of carrier's liability, 162, 2339-2444. of legislature as to eminent domain, 180, 183. of power of eminent domain, 199, 219, 220, 390. as to place of side track, 352. as to conditional sales of rolling stock, 1493. on right to select route in city, 1257, 1258, 1262a. on right granted by city, 1264-1266. to enter city, 1268, 1288. on police power, 1437, 1439, 1445. of warehouseman's liability, 2744. on transfers of stock, 1200. LIMITED USE -is property, 562. LOCAL LAWS. how far prohibited, 3. effect of prohibition, 9. depending on local option, 10. limited in object to which it applies, 11. laws held local or not, 11-38. not prohibited by old constitution, 29. LOCAL OPTION laws dependent on, 10. LOCATION. of land as affecting value, 751. of highway and streets compensation, 497-500, 645. of depot, opinion as to benefits, 733. LOCATION OF RAILWAY, power given, 1220, 1223, 1288. no power to change, 1225a. benefits from not considered, 582, 713. benefits from, of a park, 591 . change after municipal aid, 1422. of points of intersection, 1225. in cities. power of city to regulate, 117-120, 125, 128, 136, 137, 1258-1270, 1288. is subject to assent of city, 118-120, 1257. city's assent, a limitation of power. 118, 1257, 1270, 1288. not till exercised, 133, 1288. delegation of city, power, 120-123, 132, 1258, 1258a. injunction, till city assents, 124. how obtained, 118, 119, 126-127. petition for leave, 151-161. sufficiency of ordinance for, 121, 131. railway alone can locate. 128. may select route without assent, 118, 128-130, 1257, 1261, 1261a, 1288. ordinance not necessary for, 359. limitation as to time for, 332. See RAILWAYS. SELECTION. MACHINE SHOPS, injury to, 172, 174. condemnation for, 1213. INDEX. 429 MALE ANIMALS at largo, 174V. MALICIOUS MISCHIEF. to baggage, 176. attempts to commit, 173. abandoning locomotive, 2552. obstructing business, 2553. MANAGERS. See DIRECTORS. MANDAMUS. to compel appointment of commissioners, 473, 477, 481. to pay compensation, 927, 954, 956, 959. to compel condemnation, 9%. to compel fencing of track, 162%, 1824. in respect to weighing grain in bulk, 2730. to compel collection of subscription, 2829. MANUFACTORIES connections with, 137, 1275. MAPS OF ROAD evidence on condemnation, 734. MARKET VALUE. of land taken. 604, 610, 624, 626, 644, 662, 693. uses and capabilities as affecting, 610. instructions as to, 664. 678. not confined to a particular use, 671, 679. evidence to show, 674, 694-696, 713. to enhance, 671. to show uses, etc., 674, 682-684. 713. special value above, 669, 670, 678, 679. when property has no such value. 642, 643, 657, 658, 681, 684. from location and advantages, 713, 719, 720. depreciation in, 899. See DAMAGES. difference in measure, 685, 709, 710. See EVIDENCE. DAMAGES. MARRIED WOMAN condemnation of property of, 325. MATERIALS. condemnation of, 182, 1214. taken by contractor, 1215. liability for taking, 705, 1221. lien on road for, 1073, 1079. MAXIMUM CHARGES. See CHARGES. MEETING. fixing time, commissioners to assess damages, 479. of consolidated railway company of several states, 1419. of stockholders. See STOCKHOLDERS. MERCHANDIZE not included in baggage, 2252. MILITARY CONTROL. as an excuse for refusing freights, 2580, 2589, 2592, 2593. no excuse for delay in transporting, 2580, 2585, 2592, 2598. MILL as enhancing value of lot, 752. MINE in land as affecting value, 610. MINORITY REPRESENTATION-in election of directors, 59, 1459. MINORS. climbing on cars. 2122-2126. prosecution for, 2125. penalty for, 2126. as otherwise affecting negligence, 2123, 2124. MISCONDUCT. See DISORDERLY CONDUCT. PASSENGERS. INSPECTORS. MISDEMEANORS. stoning cars, 2118. freight cars behind passenger, 2129. on trains and boats, 2551. witness refusing to testify, 2640. misconduct of inspector, 2773. MIXING GRAIN different grades, 2740, 2766, 2767. MOB VIOLENCE as an excuse for delay by carrier, 2586, 2587, 2594. MONEY. compensation to be in, 613, 645. loaned no lien on railway, 1074. set apart not subject to garnishment, 1346. as baggage, 2242, 2243, 2247, 2251. when action lies for, had, 2!J8,H. MONOPOLY presumption against, 258. MORTGAGE BY RAILWAYS. of real estate passes rolling stock, 66. of after acquired property, 65, 1356. 430 INDEX. MORTGAGE BY RAILWAYS Cimt.inued. to secure bonds, 1338, 1344, 1467-1470, 2941 . vore and recording order for, 1338. denying validity, 1339. defenses, 1339, 1359. statute authority necessary, 1342. estoppel to deny validity, 1349, 1363. order for to be recorded, 1467, 1470. what necessary to validity, 1361, 1467, 1468. how and by whom executed. 1467, 1468. does not pass municipal subscription, 1352. by union depots, 1514. chattel acknowledgement, 1366. of consolidated company, 1350. validity of consolidation, not open, 1349. title necessary to support, 1355. proof of authority to make. 1357. by consent of all stockholders good, 1360. substantial compliance with statute, 1360. priority between, 1355. lien for labor, priorities, 1073. when property not subject to execution, 1345. liable to garnishment, 1346, 1347. earnings, when liable to, 1353. sale ae an entirety no redemption, 64. costs of subsequent liens, 1341. of part only, improper, 1354. proper decree, 1354. rights of purchaser, 1343. change of possession sufficient, 1340, 1341. trustee managing road, 1351. liable while operating, 1348. mortgagee in possession liable for fire, 2484, bonds convertible into stock, 1359. power of sale transfer under, 1341. MORTGAGED PROPERTY subject to condemnation, 1015. MUNICIPAL CORPORATIONS, subject to legislative control, 57 . power to condemn, 325, 327. preference between, 394. over streets, 846-848, 864, 1250. when fee is in, 847-849. to construct and repair bridge, 1244. grant of use of street, when no protection, 849-851. injury to access to lots, 831, 834, 841. assent of lot-owners, 1235. of use of steam power in street, 1250. of railway in street, 1250. binds public and city, 1253, 1254, 1260. how made, 1254, 1255. passes to successor, 1256. sufficiency of ordinance, 1261 h. who may question, 1252. streets fee vested in, 1248, 1249. power of city to regulate, 1258. delegation of power, 1258, 1258a, 1262. powers as a limitation on railway, t262a, 1271, 1272. assent of lot-owners, 1263, 1263a.. service of process on, 1113. delegation of police power to, 1438. property of, exempt from condemnation, 1512. liability. See CITIES AND VILLAGES. MUNICIPAL DONATION. effect of consolidation on. 1405a. change of location after, 1422. MUNICIPAL SUBSCRIPTION. limitation act, 25. not under eminent domain, 187. does not pass by mortgage, 1352. passes to consolidated company, 1387, 1416. not validated by legislation, 1463. MURDER resulting from willful injury, 171. tfAME. of land-owner in notice, 445. in what to file petition, 402. in what, to sue consolidated railway, 1395. INDEX. 431 NAVIGABLE STREAM. bridges over, 1235, 1244-1344b. water-craft over, by railway, 1488. no condemnation of landing, 1489. railway to receive and deliver at intersections, 2634. NAVIGATION obstructing, 1335, 1344-1344b. NECESSITY. eminent domain founded on, 238. for exercise of, 228. must be pressing, 297. reasons tor, not material, 0l. grass on right of way, as evidence, 2496, 3197, 3-199-2303, 2508, 2509, 2520, 2532, 2531- 2536, 2542. See, also, FIRE. railway may not contract against gross, 2340. proof of delay does not show, 2417. of owner of warehouse receipt, 2971. 432 INDEX. NEGLIGENCE Continued. injury to animals b//, no fencing involved. common law liability, 1612. when nniBt be proved. 1605, 1648-1653. 1674, 1676. no liability if no negligence, 1679, 1680. burden of proof on plaintiff, 1647, 1669. gross negligence, 1664-1668, 1670, 1671, 1673, 1675, 1676, 1678, 1734, 1740, 1741. when ordinary care could have prevented injury, 1665-16H8, 1081, 1682, 1684, 1733, 1742, 1743, 1744, 2012. injury from neglect to fence, 1518. need not be shown,' 1594, 1595, 1599, 1603, 1613, 1619, 1620-1622, 1713, 1754. will be inferred, 1605, 1613, 1616, 1619. evidence as to fencing, 1600. conneetUm of the negligence with injury. neglect to fence must have caused the injury, 1593. instruction ignoring cause of injury, 2201. failure to give signal at crossing, 1836-1839, 1929, 1850-1856, 1858-1862, 1864, 1866- 1871. neglect to fence. 1591, 1592, 1606, 1672, 1673, 1681. burden of proof, 1838, ia39. See CAUSE OF INJURY. CONNECTION OF NEGLECT. contributory of plaintiff . leaving bars down, 1608. in passing over depot grounds, 1502. when a bar, 1593, 1671. of passenger, when a bar, 2211, 2215-2223. leaping from car in motion, 2211, 2220, 2222, 2215-2219. getting on while in motion, 2221, 2223. of plaintiff, brakeman, 2230, 2232. when a bar, 2448. of owner of stock injured, 1728-1759. allowing to go on track. 1733-1735, 1739, 1740. horses left blindfolded in field, 1737, 1738. negligence in allowing at large, 174b-1759, 2083. 1784. what is in plaintiff, 1746, 1747. walking on track, 1810, 1811, 1813, 1814. as to child injured, 1952, 1970, 1606, 2124. of traveler at a crossing, 1898-1902, 1906-1924, 1&55-1867. plaintiff no signal, 1851, 1865, 1869, 1830-1835, 1868, 1870. a question of fact, 1745. burden on defendant, to show, 2079. as a defense, 2158, 2164, 2183a, 2184, 2193, 2202, 2489, 2490, 2539, 2505, 2506, 1921-1925, 1927, 1928, 1935, 1951, 19IJ5, 1969, 1836-1867, 1872, 1881, 1882, 1896, 1906-1920, 1956,2124. gross negligence a bar, 1844, 1845, 1849-1858, 1936, 1940. defective sidewalk, 1938. cause of injury, 1940, 1941, 1946, 1947. when extra care necessary, 1942, 1948, 2538. speed of train, 2158, 2159, 2183a, 2184, 2202. escape of fire, 2489, 2490, 2531. ignoring plaintiffs care in instruction, 2067. comparative. negligence, 1971-2081. weighing degrees of, 1971, 1978, 1993, 2036. plaintiff's slight defendant's gross, 1972-1976, 1979, 1980, 1983, 1984, 1985, 1990-1996, 2003, 2017-2021, 2023-2023. 2030-2032, 2034-2039, 2042-2045, 2500 -2502, 250S. plaintiff's gross no recovery, 1974, 1981, 2004-2011, 2015, 2026, 2071, 2073. applied to case of tumbling-rod, 1977. when the rule applies, 1986, 1988. when both equally in fault, 1989, 1998-2002, 2014, 2016, 2022, 2027, 2028, 2037, 2060. preponderance not enough, 2033, 2040, 2041, 2046, 2055, 2058, 2069. instructions as to, 1982, 1987, 2025, 2026, 2029, 2030. elements of comparison in instructions, 1982, 1987, 2061, 2065, 2066. instructions ignoring, 2202, 2072, 2074, 2509. plaintiff need not be without fault, 2065, 2075, 2077. plaintiff's negligence, will not excuse gross negligence, 2083. ordinary care or plaintiff, 2076. liability for willful injury, 17:56, 1741, 1742, 1814. when plaintiff relieved from negligence, 2048. NEGOTIABILITY of warehouse receipts, 2777-2792, 2969-2971, 2982, 3005, 3011, 3012-3018. NEW BURDEN. compensation for, 232, 239, 241, 847, 849. when fee is in city, 848. on right of way in street injunction, 882. NEW REMEDY. for damage from entry, 235 for damage to^contiguous land, 809-866. INDEX. 433 NEW TRIAL, in vacation, 435. excessive damages, 541-544, 552a. presumption in favor of judgment, 545, 547. case of personal view, 546, 551. on the evidence. 541-552a. NEW USE. taking property for, 253. of street, 369. of track in street, 1289. NOMINAL DAMAGES. when on condemnation, 763. expulsion of passenger, 2289, 2330. NON-RESIDENT, directors, 67. land-owner, 325. notice to, 432. payment to county treasurer, 1516. NOTICE. before condemnation, 186, 432. of condemnation for street, 437. not necessary unless law requires, 438. if parties appear, 439. is essential, 440, 442. when record must show, 440. necessary to jurisdiction, 442. of condemnation. to non-resident owner, 432. when to be personal. 440. recital of, not enough, 440. of time of filing report, 441. must be to the owner, 443, 444. must name land owner, 445, 446. how to be given, 446. when essential, 447. by publication, 445, 446. proof of publication, 448. construction of, 447. before amendment, 464. in general, 478, 1031, 1032, 1087. to quit before ejectment, 987. of appeal, 1055. of lien, 1087, 1090. of lien suit, 1093. by publication, 1099. of stockholder's meeting, 1182, 1469. when not necessary, 1362. of consolidation, 1386, 1422. of defective state of fence, 1637, 1640, 1641, 1647, 1627, 1634, 1730-1732. to build fence, service, 1816. of intent not to keep fence and gate, 1645. of approaching train, signal not necessary, 1929. to make crossing, 2098, 2099. to minors posting, 2128. exempting carrier by, 2341a-2344, 2346, 2352, 2357, 2390. on free pass, 2347. to railway of grain at warehouse, 2601. of change of consignment, 2622. of arrival of grain, to consignee, 2623. of revocation of warehouse license, 2637. of change of schedule, 2766. of grain becoming injured, 2766. of sale of damaged grain, 2766. not to put grain in warehouse, 2774. in prior statutes for condemnation, 437-452. of laying out street, 437. of increase of capital, 87, 120(1, 2941. to carrier not to store grain, 2774. to warehouseman not to take. 2774. of change of grade of inspection, 2796. of appeal from inspection of grain, 2798. to warehouseman of purchase, 2972. of transfer of warehouse receipt, 3020-3023. NUMBERING may be required, 1451. NUISANCE. damages for, in condemnation, 520. 33 434 INDEX. NUISANCE-Conttnued, track in street, 142, 148, 1377, 1294a. by grade, 810. abating, 817. by railway obstructing street, 865. recovery for, in street, 885, 902. OATH. of jury to condemn, 486-488. of railroad commissioners, 2627. of committee of appeals, 2799. of chief inspector, 2756. OBJECTION. not made on trial, 367. waiver of, 487, 497-500. OBLIGATION. Of contract. 229, 1210d, 1211, 1211a. impairing, 78. OBSCENE LANGUAGE expulsion of passenger for, 2550. OBSTRUCTION. , . action for special in jury, 863. ordinance against, 892, 2113-2117a. of sidewalk injury from, 2010. - of highway crossing. 2111. liability of conductor, &c., for, 2117a. of access to lots, 904. of flow of water removal, 876. of water-course, 1236-1236c. of navigable stream, 1235, 1244, 1244b. of natural flow of water, 1237-1241. on railway track or bridge, 171, 173. of railway, 1331. of passage to eating house, 1500a. of access to depot or trains. 1503, 1505. of view of approaching train, 1803, 1805, 1873, 1881, 1921, 1930. to use of property, 563. of business of railway, 2553. conspiracy to, 2554. OCCUPANT notice to, of condemnation, 445. OCCUPATION of land before payment, 197, 201, 208. OFFENSE on railway and steamboat, 178. OFFICE. tenure of directors filling vacancy, 1175, 1516. of railway to be kept in state, 61, 3174, 1425. open for tickets, 2293-22%, 2000, 2316. of railroad commissioners, where to be held, 2628. OFFICER. of railway embezzlement by, 169, 170. ministerial and Judicial, 474. removal by stockholders, 1185. appointment by directors, 1188. powers of, 1190. to dispose of securities, 1190. loan of corporate funds to, 1200. power of legislature to make, personally liable, 1210d. to prosecute minors, 2125. to wear badges, 2338. examination or, under oath, 2638. penalty for not making reports, 2641. giving certificate of party's shares of stock, 2935. liability for refusal, 2935, 2936. OPENING. of depot for passengers, 2130. and closing right to, 522, 1041. OPERATION. of road, 1144, 1319. condemnation for, 1213, 1229. OPERATOR of railway notice to fence, 1816. OPINION. of witness matter of law, 557. experts, 558, 559, 747, 748. difference in market value, 626. INDEX. 435 OPINION-Continwed. evidence, 726, 733, 753, 756. value, 737. damages, 738, 741, 742, 747. jury not bound by, 745-749. ORDER. for laying road evidence, 451. of court making parties and notice, 456 . recitals in, 478. omission to fix time of meeting, 479, 480. appointing commissioners, 478-480. of court, 924. finding who entitled to condemnation money, 1014 . of board of directors, 1192. not of record, proof of, 1200e. for increase of capital recording, 1206. for issue of mortgage bonds. 1338. for mortgaging road, etc., 1338. for loan ana mortgage, 1467, 1468, 1470. to be recorded^ 1470. ORDINANCE. for track in street, 121, 122, 123, 127, 130-135, 138, 139, 359, 361, 520, 526, 1254, 1263a, 892, 896,1961, 828. only notice necessary in laying street, 437. for laying a street, 364, 365, 437. must fix route and termini, 1258. void for uncertainty and delegation of power, 1258, 1258a. sufficiency to authorize trackln street, 1261b, 1263a. delegation to select location, 1262. granting use of street, construed, 1264, 1281a, 1283. against obstruction of street, 1301-1303. for track connecting warehouse, 1311. as to motive power, 1317. flagmen at crossings, 1888. speed of trains, 2152. liability under, 2152-2159. sufficiency of, as to speed of train, 2157, 2159. presumption of negligence, 2158, 2159. power to pass, 2165. not a license as to speed, 2190. must be given in evidence, 2194 proof of T>eing in force, 2197. proper evidence of negligence, 2198, 2199. sufficiency of declaration to admit, 2200. OVERFLOW. of upper land, 870-877, 905, 906. right of way no justification for, 878. liability for, 1237-1243. by bridge (insufficient), 1398. OWNER. right to inspect property stored, 105. notice of condemnation to, "~ , 443, 445. of stock, record of names, etc., 1174. of grain, right to receive in cars, 2774. right to change consignment, 2774. time to remove from cars, 2774. of cattle, duty to fence, 1584, 1585. OWNERSHIP. of grain, not affected by change of consignment, 2623. warehouse receipt, evidence of, 2754. proof of, 1768, 1769. PAINT SHOPS-^condemnation for, 338. PARALLEL LINES. consolidation of, denied, 67, 1412, 1422, 2940, purchase of, prohibited, 2940. PARKS. condemnation for, 201, 202, 208, 348, 477, 511, 966, 967. measure of damages, 591, 641. damages for, 784, 785, 952. right to abandon, 958, 959. PARTIAL TAKING. See EMINENT DOMAIN. PARTIES. to petition to condemn, 325, 423-430. heirs on owner's death, 424, 425, 1063. remainderman, 426. 436 INDEX. PARTIES Continued. former owner, 427. tenants in common, 428, 429. jurisdiction of, 428, 429. new ones, 456, 464-466, 1036. action by lot-owner, grantee or grantor, 423. action on inspector's bond, 2762. to creditor's bill, 2830, 2831. bill to enforce stockholder's liability, 2885, 2886. defendant to bill of discovery, 114, 115. who may sue stockholders, 2888. action for damages to lot, 758. condemnation, lessor, 272, 431. holder of easement, 276. PAETNER8 stockholders liable as, 2846-2848. PARTNERSHIP of railways, 1484a. PASS embezzlement of, 170 . PASSAGE to and from trains, 2131,2133-2139. PASSENGERS. expulsion from cars, 2275-2337, 1325, 1328, 1333. refusal to pay fare, 2275, 2285, 2287, 2288, 2289, 2292, 2298, 2305, 2316, 2337. subsequent offer to pay, 2332. neglect to purchase ticket, 2277, 2278, 2283, 2286, 2291, 2292, 2293, 2298, 2299, 2311- 2314, 2=316, 2324. when ticket cannot be had, 2293-2296, 2300. for disorderly conduct, 2275, 2281, 2317, 2321-2323, 2550. violation of rules. 2277-2279, 2283, 2284, 2286, 2291, 2292, 2302, 2303, 2311, 2313-2315, 2318. refusal to surrender ticket, 2301, 2304, 2319, 2324. rules as to lay-over ticket, 2318. rights under family ticket, 2327-2329. when must be at regular station, 2285, 2289, 2290, 2291, 2298, 2299, 2305, 2307, 2310, 2312-2314, when may be at other place, 2276, 2302, 2303. worthless ticket, 2288, 2310. from freight train, 2297, 2298, 2315, 1157y, 1158, 1158e. ladies' car, 2308, 1157t, 1157u, 1330, 1331. on account of color, 2309, 1337. " eight train, 2206. excluding from freight train, 5 when and for what, 2275-2280. right to eject, 2550. rules and regulations as to, 1157s, 1157v, 1327, 1328. from ladies' waiting-room, 1158b, 1336. damages recoverable for, 2288-2290, 2334. unnecessary force, 2281, 2303. mistake of conductor, 2320. rules and regulations, 1320. giving check to. 2319. excluding well-behaved persons, 2333, 1337. tickets for freight trains, 1158a. as to fare and freight, 1320. tickets before entering, 1324, 1333, 1334. accommodations of, 1319, 2180. tending to safety of, 1329. injttrj/ to. assaulting and beating, 2280, 2282, 2287, 2307. protection from assault, &c., 2335-2337. not dependant on payment of fare, 2337. from defective platform, 2131-2139. taking ticket, no contract to stop at the station, 2206. carrying beyond station, 2207, 2*)9, 2210, 2212, 2214, 2215, 2219, 2220-2224. leaping from cars in motion, 2207, 2209. getting on while in motion, 2221, 2223. not stopping to take on, 2213. time for getting off, 2208, 3209. act for protection of, 2549-2551 . contributory negligence of, 2209, 2211-2223. comparative negligence, 2222. signals at crossings, not for, 1883. PASSENGER TRAINS. freight cars in rear not allowed, 2129. stopping at stations. 2204, 2209, 2220, 2223-2225. at principal stations, 2205. at county seats, 2224, 2225, 2228. brakemen on, 2229. liability for starting suddenly, 2226, 2227. See STATIONS. INDEX. 437 PATROL ON ROAD not required as to fences, 1630, 1631, 1635-1639. PAYMENT. See CONDEMNATION. COMPENSATION. STOCK AND STOCKHOLDER. PENALTY. to enforce keeping office In state, 61, 1472, 1473. for extortion, 75, 76, 81, 94 1428, 1515. for non-payment of stock, 1211. neglect to stop train, 2101-2103. effect of change in law, 2105. obstructing highway, 2119-2121. combustibles on right of way, 1800. animals on track injury from, 1807. neglect to post law, 2128. as to Texas cattle, 2148-2151 . excessive speed in city, 2152-2159. neglect to give signal, 1844, 1847. sale of tickets without authority, 2558. not redeeming tickets, 2561. not erecting scales, 2599. unjust discrimination, 1428, 1515, 2710, 2713. as to grain, &c., 2600, 2622, 2624, 2639, 2640, 2641, 2730, 2731, 2739, 2747. assuming to act as inspector, 2771, 2772. misconduct of inspector, 2773. obstructing weighmaster, 2811. neglect as to car couplings, 2444. as to flagmen, 2450. other neglect of duty, 2455, 2456, 1506, 1522, 1524, 1525. stockholder's liability is not, 2851. PERSONAL PROPERTY. what is, 1369-1375b, 62-66. rolling stock, 62, 63. shares of stock, 1200, 1200a. in hands of trustees, garnishment, 1345. PERSONAL LIABILITY of stockholders. See STOCKHOLDERS. PETITION. to city for use of street, 151-156, 159, 160. for use of freight trains over, 157. See CITIES AND VILLAGES. of lot-owners, as to use of streets, 1271, 1284, 1281. for elevated ways in street, 2948. for lien against railway, 1083, 1093. time of filing, 1095. sufficiency as to notice, 1088. to condemn. See CONDEMNATION. PHYSICAL INJURY. as a ground for damages, 801, 803, 804, 806, 835,807, 839, 851, 857, 859, 890, 902-904, 916. to property not taken, 234, 629. PISTOLS as baggage, 2242, 2255. PLACE. of delivery, by carrier, 106, 107. of grain to railway, 2601. by railway, 2600, 2602-2621. for unloading grain, 2623. when cattle get on track, 1591, 1618, 1621, 1672, 1673, 1705-1707. not when killed, 1606 . PLANK ROADS. railway over, 1235. condemnation of, 325. PLANS AND ESTIMATES. as evidence on condemnation, 727, 784. explaining, by engineer, 729. PLANS AND SPECIFICATIONS, evidence on condemnation, 418, 516. preserving in record, 757. compelling production of, 750. road to be constructed according to, 728-734. liability for change of, 758. of proposed building, to show uses, 754, 755. PLAT dedication of street by, 1248, 1249. PLATFORM. liability for defects in, 2131-2139. for defect in floor, 1500. PLEA-not allowed in condemnation, 419-422, 515. 438 INDEX. PLEADINGS. petition to condemn, 402-418. defects in, 782. defects in cross petition, 523, 782. PLEDGE. of stock informally assigned, 1202a, 1202b how far liable to execution, 2926. who liable to creditors. 2859, 2860. who liable for stock, 1208. of warehouse receipts, 3024-302G. construed as not a, 2993. POLES of telegraph, 351, 369, 1003. POLICE POWER. over corporations, 50-53, 1431, 1433. 1435-1458. subject to constitutional limitations, 52, 1437, 1439, 1445. nature of the power. 1445, 1446. inalienable, 1443, 1446. applies to pre-existing corporations, 1449. conductors invested with, 2549a . delegation of, 1438. POLICE REGULATIONS, to regulate trains, 2156 fencing track, 1519, 1520. 1524. signal at railroad crossings, 1828. as to what in respect to railways, 1450-1457. stopping trains at county seats, 2224. no damages allowed for, 805, 576, 577. POLITICAL QUESTIONS what are, 377, 383, 392, 394. POND. for use of mill, 690. for making ice, 691. in city a nuisance, 810. POSSESSION. when proof of necessary, 889. when lawful, 987. when a trespass, 948. when lawful in inception demand necessary, 988-990. pending appeal, 991, 1057, 1067, 1068. license to enter, 993. effect of giving, 992. as evidence or grant, 994, 993. extent of no deed, 999. for telegraph, 1002. of land for street, 1008 . order for, on bond, 930, 934, 958. effect of reversal on, 988. of grain by warehouseman, 2997. by transfer of receipt, 3022, 3023. by corporation, not compelled, 1026. before payment of compensation, 1M7, 201-208, 282, 963-986, 1004, 1025, 1035 enjoined, 960, 963-965, 982-985, 1033. remedy for wrongful. 995, 1001, 1027, 1068. ejectment for, 997. forcible entry, 991. action at law, 240, 241. by consent before payment. 987. condemnation by party in, 996. right to dismiss, after wrongful, 459. interest on judgment, depends on, 945-947, 949, 950, 952. POST OFFICE notice by, 1192. POSTING. statement by warehouseman, 104, 2755. of rates of charges, 1452. of the minor law, 2128. of law by warehouseman, 2794a. of ticket agent authority, 2559. PRACTICE. time of presenting petition, 405. forming issues, 419-422. removal to U. 8. court, 430. amendments, 455-466, new parties, 456-466. right to open and close, 522. on appeal, 1037. INDEX. 439 PRELIMINARY SURVEY. remedy for damages by, 705, 1220, 1221. power to make, 1220. PREPONDERANCE. See EVIDENCE. PRESIDENT. compensation, 1177-1178b. duties, 1183. powers, 1189. 1191. service of notice of lien on, 1087, 1090. service of process on, 1104, 1105, 1106, 1110. when to be served, 1114, 1199. return to show his absence, 1109-1112. PRESUMPTIONS. against monopoly, 258. ' of ownership as tenants In common, 460. of right to condemn for lateral road, 330. in favor of verdict. 36. power to cancel warehouse licenses, 3637. examination of books, &c., of railways, &c., 3638. power to examine under oath, 2638. may examine witnesses, 2039. may issue subpoenas for, 2639. punishment of witness refusing, 3610. penalty for obstructing board, 2641 . may direct prosecutions, 2642. to enforce law against extortion, 3719. to prosecute for violations, 3719. to employ assistant attorneys, 2719. in what county may sue, 3719. to make a schedule of rates, 3720. schedule made evidence, 2720. duty and power as to automatic signals, 2726, 2727 . prosecution for not having weighing appliance, 2730, 2731 . powers as to inspection or grain, 2756. appointment of assistant inspectors, 2756. power to fix charges for inspector, 2756, 2800. duty to fix compensation of inspectors, 2756. power to appoint registrar and assistants, 3756. general supervision over inspection, 2756. power to remove appointees, 2756. rules and regulations for payment of committee of appeals, 27o6, 2799. power to establish grades for inspection, 2796. notice before changing, 2796. to appoint committee of appeals, 2797. removal from office, 2797. to appoint weighmaster and assistants, 2802. to fix fees of, 3804. rules and regulations for weighing grain, 2810. to make rules governing appeals, 2?98. to fix the charges of railways, 75, 76, 103. duty to enforce railway act, 1474. suits by and employment of counsel, 1474. RAILWAYS. incorporation of, 1144. under law of 1849, fixing termini, 1149. when incorporated, 1149b. organization before abrogation of charter, 1150. when a new corporation, 1150a. de, facto corporation, 1147, 1159. articles of incorporation, 1152. contents of, 1153. when corporation brought into existence, 1155. evidence of incorporation, 1155. judicial notice, 1168.- when corporate existence ceases, 1462. validation of its organization, 1463-1466. law has no application to horse railways, 1145. election of directors . See DIKGCTORB. ELECTION. of its powers in general, 1155, 1157-1165. to purchase and operate railway, 1144. to purchase railway at sale, 1144. additional powers, 1230. to acquire property by gift or grant, 1236, 1229. to convey same when not needed, 1226, 12211. conveyance to, when only an easement, 1330. -34 442 INDEX. RAlLWAYS-Continued. to take and negotiate notes, 1162. to lease and take lease, 1163-1165. to make stock transferable, 1155. to make by-laws, rules and regulations, 1155, 11571-1161, 1320-1337. to make by-laws, 1157-1157g. to transport persons and property, 1316. to make rules and regulations for, 1320. to borrow money and issue bonds, 1467. 1468, 2941 . to contract for lease and use of road, 1484. to form partnerships, 1484a. to make contracts, I484b. to own and use watercraft, 1488. to purchase roads of other states, 2940. to extend lines beyond state, 2940. limitation on power to issue bonds, 87-90. limitation on increase of debts, 87. to fix route and termini of road. 352, 1463. to mortgage, not without statute, 1342. to enter land, survey and locate, 1220. to lay out and construct road, 1231. altering route further damages, 1234. how much land it may take, 1231. to build over streams, 1235-1236C. right to connect with other roads, 1485, 1304. with rail on bridge, 1487. right of way over school land, 1492. to use union depot 1517. to buy its own stock, 1200, 1203. lessees may purchase, 1426. limitation as to time of beginning work, 1462. as to time of completing, 1462 contract for reduced rates, 1460, 1461. to intersect and unite with other roads, 1304 . property of what real and what personal, 62-66. power of legislature over, 1428-1433. subject to general laws, 1429-1445 . vested in board of directors, 1175. consolidation. See CONSOLIDATION. to increase capital . See CAPITAL INCREASE OF. powers as to right of way and constructifm. power U< take by condemnation, 1213, 325, 330, 334. to take materials necessary. 1214, 1215, 182. width it may take, 1231-1233, 366-372. cutting trees near right of way, 1231. as to crossings, connections, &c., 1304. under law of 1849, 181. as to the fee, 214. for lateral road, 329-331, 353, 354, 363. length of, 329. no limitation as to switches, 352. not exhausted by exercise, 336, 349. for work and paint shops, 337, 338. lumber sheds and depot grounds, 338. switches, turn-outs and side-tracks, 352, 356. additional tracks in city, 356. de facto railway may, 362. extent of land taken, 366-372. width of right of way, 366, 367. 369-371. for depots and side-tracks, 370. for union depots, 1512. for elevated ways, 2943, 2944. of ground used by consent. 850. taking public property, 341. t .king for a public use, 289, 292, 295, 296, 302. how far private, 292. railway property subject to, 245-251, 255-256a. may condemn property of another, 231, 244-251. part of another road in length, 25(ia. right to take railway already in public use, 256a-256e. limited to crossing and connections, 256d, 256e, 1*14, 1305. of rival road, 259-261. presumption as to right to take property in public use, 262. power to condemn in city, 339, 346, 355. by implication, 345. power to tmttd road in city and in streets right to bring road into city, 1267-1269. legislative recognition of right, 1259. po lo INDEX. 443 ower of city as to location, grade and crossing of streets, 117, 118, 120. location subject to assent of city, 118. a limitation of power of railway, 118, 1262a. but not till used by city, 133. consent of city necessary, 00, 118. how obtained, 118, 119, 125-127. how made, 1255. sufficiency of ordinance for, 121-123, 127, 131, 1201b. delegation of power, 120, 123, 132, 1262. enjoined until city assents, li'4. grant of city binding, 1254, 1255, 1260. passes to successor, 1256. petition for, 151, 156. is subject to rights of lot-owner to sue, 154. conditioned for use of track by other roads, 134, 135, 1263a. must clearly appear, 1281, 1282. right to lay track in streets, 1259. by charter, 860, 1251. who may question, 138. 1252, 1279. power of city to give leave. 137, 125, 1253. may select route without city's, assent, 128-130. may cross street without leave, 1261, 1278. connecting tracks in street, 72, 73. duties in respect to the public. to keep public office in state, 61, 1471. fine for neglect of duty, 1472, 1473. books open to inspection, 61. what to show, 61. subject to examination, 2638. annual reports by, 1427. penalty for not making, 2641. prosecution for neglect, 2642, 2643. duties and liabilities. injury by entry to survey, etc., 1221. duty to unite and form intersections, 1304. compensation for, 1304. on contracts after taking benefits of, 1463. to repair on recommendation by railroad commissioners, 2636, mandamus to compel, 2636 duty to stop passenger trains at county seat, 2304. statute a proper police regulation, 53, 1456, 2224. not a regulation of inter-state commerce, 2224. what are passenger trains, 2225. all its passenger trains to stop at, 2228. not at new depot, out of town, 2228. awning too close to track, 2137. badges, what employes to wear, 2338. not to exercise powers without, 2338. baggage, checks for, 2236. baggage smashing, 176, 2274. bell to be rung at crossings, 1827-1830. brakemen, required, damages, 2229-2235. buckets in passenger coaches, 2443. cars, provision for supply, 2130, 2130a, 2130b, 2140, 2141. combustibles, on right of way, 1800-1806. conductors, police powers of, 2549a, 2551 . connections by union depots, 1513. facilities for to be allowed, 1304. of tracks in streets, 72, 73, 1375, 1314. corporation, defined, 49, 2457, 2725. for construction, 2457. couplings, for cars, 2444-2449. crossings, street, powers of city to require, 144 . duty as to new streets, 149. duty as to approaches, 1296. duty as to highway, 2089-3097a. binds its successor, 2092. neglect to make, 2098. notice to make, 2099. penalty for neglect, 2100. stopping a railway at, 2101. penalty limitation, 2103. effect of change in law, 2104. actions for penalty, 2105-2110. animals, cruelty to, 16s. willful injury to, 175. accommodation at stations, 2130, 2130a, 2130b, 2140, 2141. 444 INDEX. RAIL WAYS Continued . ax for cars, 3443. automatic signals at crossings, 2726. brakes, neglect to apply, 2233. bridge, injury to, 172-174. Canada this' lee, 163, 165. cars when treated as those of company using, 2478-2480. cattle-guards, city may require, 144. charges ot See CHARGES. EXTORTION. checks for baggage, 2236. county seats, stopping of trains at, 53, 1456, 2204, 2224, 2225, 2228. stopping at advertised stations, 2204-2209, 2220-2223. extortion. See EXTORTION. duty to keep flagmen at street crossings, 146. allowing ice and water along track, 148. injury from not adopting rules, 11571, 1157m. liability for acts of contractors, 1215-1217, 1219a, 2465-2468, 2473, 2458-i'460, 2464, 2466. for lessees operating, 1217-1219a, 2469. both liable for injury for want of fence, 2462, 2470. for acts of receivers, 1219b. for acts of trustees, 1219e, 1219d. of company using, 2461, 2471, 2472, 2474, 2476-2482. signals of approaching trains, 1827-1967. obstructing way to inn, 2112. highway ordinance, 2113-21 17a. posting law as to minors, 2126, 2127, 2128. liability for injury at stations, 2132-2139. penalty for neglect, 2145-2147a. liability for Texas cattle, 2148. safe passage to and from trains, 2223. speed no ordinance, 2169-2183. rules and regulations as to ticket, 2281-2337. ax, saw, &c., for cars. 2443. office open for sale of tickets, 2293-2296, 2300, 2316. duty to furnish flagmen and shelter, 2450. penalty for neglect, 2451 . contract to stop trains at particular points, 1484c. freight cars behind passenger, 2129. lessees liable for defects in foreign cars, 2481 those making up its trains, ite servants, 2479, 2480. liability for fire from engines, 2481-2548. grass on way, evidence of negligence, 2496, 2497, 2534, 2542. furnishing ticket agent with authority, 2556. redemption of ticket, 2560. penalty for not, 2561. how far a public highway, 68, 69, 74. tracks, public, 1273. fencing duty on successor, 1540, 1541. railroad commissioners to pass free, 2629. liability for coroner's expenses, &c., 2950. duty to stop at railway crossings, 2726, 2727. when need not, 2726. subject to examination by railroad commissioners, 2631. purchaser not liable for debts, 1391. liability for injury to contiguous property, 809-866, 883-910. use of street by railway, 846-856, 1301. prior to constitution of 1870, 846. new burden on street, 847, 848. license no protection, 849-852. injunction as to laying, 846. 848, 850, 854-856, 858, 862. throwing surface water on lot, 852. right of lot-owner to assessment of damages, 853, 861. damage to house built after location, 857. for physical injury only, 803, 851, 859, 903. special injury not common, 863, 894, 895, 898. for use of street, 864, 867-882. additional tracks in, 865. culverts obstructing water, 867. structures not properly made. 868. floods choking up channel, 869. obstructing flow of water, 870-875, 877-879. right to remove obstruction, 876. neglect construction of drains, 880-882. new burden injunction, 882. obstructing street, 1301a-1303, 891, 892, 832. sg , a-, , , . railroad in street, 827, 832, 842, 845-866, 883-910. structing access to lot, 237, 646, 677, 825, 830, . obstructing access to lot, 237, 646, 677, 825, 830, 831, 834, 835, 840-842, 865, 866, 904. access to place of business, 911, 915. INDEX. 445 RAI LWAYS Continued. overflowing land, R52, 875, 905, 906. under ordinance requiring payment, 911-920. moving place of business, 912. 916. loss of business and profits, 912, 913, 916. when action accrues, 423. deviation from the original plan in condemnation, 702, 728, 734, 757, 758. in what county sued, 1097. power of city to extend street across, 150. criminal negligence punishable, 167. offenses on trains, where tried, 178. criminal nffenscs. cruelty to animals, 168. embezzlement by servants, 169. of tickets, 170. malicious mischief, 171, 173, 174. conspiracy to injure, 172. willful injury to stock, 175. injury to baggage, 176. taking property of, 177. injury to track or bridge, 172-174. See LOCATION. CITIES AND VILLAGES. STREETS. CROSSINGS. STOPPING TRAINS. RATES OF CHARGES. See CHARGES. RATIFICATION of consolidation by legislature, 1402. REAL ESTATE. I when rolling stock is, 62, 63, 66. what is, 1370-1375b. power of railway to acquire and convey, 1229. REASONABLE. rates and charges, 6, 75-77, 82, 83. may be fixed by law, 77. 82, 83. by-laws, 1157-1157b. rules and regulations, 1157-1158h. REBATE. . contract to pay back, void, 2680, 2682. is evidence of unjust discrimination, 2680, 2682, 2706. RECEIPT. of carrier limiting. See COMMON CARRIER. for grain by railway, to be given, 2599. to show weight, 2562, 2728. warehouse. See WAREHOUSE RECEIPT. RECEIVER. no liability of railway for acts of, 1219b. appointed for railway for not delivering grain as directed, 2600. may enforce stockholder's liability, 2818. appointed for defunct corporation, 2829. appointment, no release of stockholders, 2878. no defense to action for fencing, 1821. RECOGNITION. of powers of railway by legislature, 1259, 1269. of corporate existence and powers, 345. RECORDING. of order for mortgage by railway, 1338, 1470. of order increasing capital stock, 1206. of by-laws, 1173. amount of capital stock, 1174. articles of incorporation, 1152, 1156. articles of consolidation, 1424. report of jury on condemnation, 489. conditional sale, 1493, 1495. certificate of payment of capital stock, 2838, 2842 sworn statement conditional sale, 1498. RECORD. owner shown by necessary party to condemn, 427. must show personal notice. 440. showing disqualification, 485. preserving plans in, 757. what apart of, 931. of verdict and judgment, 1070. of notice of lien, 1087, 1090. when to show provision for compensation, 1177-1178b. proof of order not entered of, 1200e. RECORDS. inspection of warehouse. 105. examination of railway by stockholder, 1186. 446 INDEX. REDEMPTION. from sale on foreclosure, not allowed, 64. of tickets, penalty, 2560, 2561. REGISTERED FOR COLLECTION marking on warehouse receipts, 2800. REGISTRAR. appointment and removal, 2756. statement of warehouseman to, 2755. REGISTRY of stock and transfers, 1425, 1471. REGULATIONS. of charges of railways, 68, 78. of commerce, 84. of charsres by warehouses, 102. of inspection of grain, 108, 112. of tracks in streets, 118-136. of use of streets, 1270, 1280. of speed of trains, 1453. of use of steam, 1454. ladies 1 waiting room, 1504. RELEASE. Of damages, necessary in laying highway, 502, 504. of right of way- bar, 796-798. of subscription fraud as to creditors, 1195, 1196. effect of an agreement for, 1228. of lien by contractor, 1084. of lien by fraudulent statement, 1498. of duty to fence, 1719-1727. of stockholder's liability, 2837, 2838. dissolution does not, 2876. nor bankruptcy, 2877. nor receivership, 2878. neglect to sue in three months, 2904. REMAINDER-MAN when necessary party to condemn, 426, 444. REMEDIAL LAW. eminent domain law is, 305. fencing law is, 1527. REMEDY cumulative, 111, 1071, 2724. election of, 1612. new one for property damaged, 235, 804, 805, 853, 856. when exclusive, 281, 705. condemnation by jury, 881. when by the public alone, 863. for wrongful possession, 995. no part of the obligation of contract, 1211a. statute must be followed, 1221 . for improper use of road, 1290. injunction, 1290-1293, 1294a. to collect condemnation money, 988, 1043. against unlawful lease, 1483. for extortion cumulative, 2724. against warehouseman refusal to deliver, 2747, 2753, 2782. at common law, 2794. against defunct corporation, 2832. against stockholder, at law or equity, 2879-2884, 2907, 2908, 2919, 2923-2925. when in equity against warehouseman, 2967. when in equity, lien against railway, 1076. at law, holding new company liable for debts of old, 1401 . See CHANCERY. REMOTE. damages, 565, 712, 718, 722-724, 783, 784. cause of injury, 2512, 2513, 2529-2531, 2541. See DAMAGES. FIRE. RENEWAL. of charter, 1172. of conditional sale, 1493. RENTAL VALUE on question of damages, 907, 1022. REPAIR. shops condemnation for, 1213. gutter, out of, 821. of fence, not before duty to make, 1539. of cattle-guard in street, 1596. leaving bars down, 1608. fence, gates, and bars, 1609. keeping gates closed, 1609. notice of fence being out of, from time, 1627. INDEX. 447 RE P AIR Continued. diligence to keep fence in, 1635-1638. time in which to make, 1637. notice to, of fence and gate, 1816. right of owner to, 1817-1824. estoppel to deny duty to, 1646, 1647. of fence by owner defectively, 1730-1732. of crossings and approaches, 2098, 2099. See FENCING TRACK. REPEAL. laws by constitution, 44, 45, 48, 155, 217, 221, 222, 308-311, 313, 314, 317, 324, 1065, 1071, 1276. of charters, 56, 58. city charters, 57, 136. laws of 1849, 1147, 1148. laws of 1852, 92, 283, 284. of prior acts, 1463. saving of rights, 1463. saving against, 2724, 2801 . by implication, 1530, 1532. REPORT. of directors to auditor, 61, 1427. of president to stockholders, 1183. of railway may be required, 1450. by railroad commissioners, 2H34. by railway penalty for neglect, 2641. by warehouseman to registrar, 2755. of accident, &c., by railroad commissioners, 2636. of jury to show notice, 440. time of filing and notice, 441. modification of, 441, 467. part of the record, 931. award construed, 1026. as to whom compensation belongs, 1012 of width of way, 1233. See VBRDICT. REPLEVIN. of grain, after mixing, 2953. against wrongful transfer of receipt, 2970. RESERVATION. in deed passes no title to another, 998, 1000 of power over corporations, 1210a-1210c. RESIDENCE. of corporation, 1153. of officers, 61, 1174. of directors, 67, 1187, 1187a, 1422 of stockholders, list of, 1425. RESOLUTION. grant of use of street by, 125-127, 1254. of directors, 1192. to increase capital recording, 1206. to mortgage road, &c., 1338. fixing rates to induce aid, 1460. recording, 1400. of stockholders, to mortgage, 1467 1468 recording, 1470. RESTORATION to former usefulness, 1235, 1242, 1243, 1245, 1297, 1298. RESTRICTION. of carrier's liability, See COMMON CAKKIER. on police power, 1437, 1439, 1445. RETURN. of service of process, 1100, 1105, 1132. plea in abatement, 1126. amending, 1100. showing character of person served, 1100, 1105. denying, 1102, 1132. REVERSAL effect of, 988, 1043, lOttii, REVERSION. See 1006. REVOCATION. of warehouse license. 2(i37, 2737, 27(iti. of license to enter and make road, 997. REVOLVER as baggage, 2255. 448 INDEX. RIGHT OP WAY. condemnation by railway for, 181, 1213. taking before payment, 201, 202, 208, 217. Injunction, 190, 197. when the title passes, 192, 195. Canada thistles on, 165. effect of new constitution on proceeding, 218, 225, 226. new burden on land, 232, 239, 241, 270. what may be taken for, 242-256a. , across another, 231, 264. for telegraph, 232, 241. on property in public use, 262. when use is different, 263. additional crossings, 265-267, 273 . over another in street, 268, 269, 271, 274. for lateral road, 330. for sewer provision to pay, 361 . as much as is necessary, 366-372. width of. 415, 1231, 1233. for depot and side tracks, 370. grant construed, 794. no protection for unskillful construction, 878. by dedication, 1000. evidence of a grant of, 994. only by deed, 998. right of owner to fence on, 1009. attempt, to steal by fraudulent condemnation, 1033. deed for void for uncertainty, 1227. cutting trees near, 1231. obstructions on, 1231. railway not bound to take as much as asked, 1232. obstructing flow of water, 1238. stagnant water on, 145. ice and water on, 148. over school land, 1492. keeping clear of grass, etc., 1800-1806. trespass on, 1808, 1809. exclusive property of railway, 1809. protection of persons on. 1809. negligence to walk on, 1810, 1813, 1814. care of person on track, 181 1. team stalled on track, 1812. care to discover one on, 1815. acquiescence in, gives no right, 1809. grass and weeds on, 2496, 2497, 2499-2502, 2508, 2509, 2520, 2522, 2535, 2536. of elevated ways, 2943 . ROAD CROSSINGS. See HIGHWAY CROSSING, AND CROSSING* OF HIGHWAYS AND STREETS . ROLLING STOCK. See CONDITIONAL SALE AND REAL ESTATE. ROUTE. fixing in city, subject to consent of city, 118. who to locate in city, 118, 128, 133, 1259, 1269. uncertainty of, in ordinance, 121, 122, 131 . fixing of, before condemnation, 334, 352, 1149. RULES AND REGULATIONS. power of railway to make, 1155-1161. show of tickets before entering, 11571. extra fare for neglect to get ticket, 1157J. facilities for getting, 1157k. procuring ticket before entering, 1157n, 1157o, 1158a. expulsion for not, 1157o. family ticket, 1158c. evidence as to, 1158d. tirkets on freight trains, 1322, 1333. before entering, 1324, 1334. surrender of, 1325, 1326. as to tickets, 2281-2337. liability for not adopting, 11571, 1157m. passenger on freight trains, 1158e. on what trains, 1157p, 1157q, 1157y. trains not stopping at all stations, 1157r. in respect to passengers, 1157s, 1157v. ladies' car, 1157t, 1330, 1331, 2308, 2309. colored persons, 1157u, 1331, 1332, 2308, 2309. surrender of tickets, 1157w. reasonableness of, 1157x, 1158g. ladies' waiting room, 1158b, 1336. INDEX. 449 RULES AND REGULATIONS-Omtimied. as to employe, 1158f . witnesses' construction, 11581. refusing passage, 1158J. as to manner of entering cars, 1158k. injury for disobeying, 1159. show and surrender of ticket, 1160. as to carriage of persons and property, 1320-1337. as to fare and charges, 1320. as to running of trains, 1321, 1324. for safety and comfort of passengers, 1327, 1329. of employes, 1335. expelling for violation of, 1325, 1328, 1853. refusing well behaved persons, 1337, 2333. form part of the contract, 2328. for inspection of grain, 2756, 2810. for paying committee of appeals, 2799. SALARY. of railroad commissioners, 2628. of committee on appeals, 2799. SALE. on foreclosure without redemption, 64, 1354. stock and bonds, 90. 1192. burial lots, 764, 765. railway, 994, 1344. decree of, for lien, 1096. rolling stock, reserving lien, 1493. contract, how executed, 1494. recording evidence, 1494, 1495, 1496. notice as to creditors, 1497. of ticket without authority, 2557. of unused ticket by holder, 2560. of stock on execution. See STOCK. contract as to grain, 2990. SAMPLER'S TICKET not a warehouse receipt, 2746. SCALES. for weighing grain in cars, 2599. of warehouse, subject to examination, 2768. testing and expense of, 2768. use after found incorrect, 2768. inspection, by weighmas^er, 2803. penalty for obstructing, 2811. SCHEDULE. of regulations, 1158d. of rates, 2696. 2697, 2699, 2700. necessary before action for penalty, 2713, 2721, 2722. commissioners to make rates, 2720. made prima facie evidence, 2720. how proved, 2720. notice of change. 2720. classification of freights, part of, 2722 of charges by public warehouse, 2764. warehousemen to publish, 2764. SCHOOL. special laws as to, 32, 33. fund, 2145, 1492, 1506. fund penalty to use of, 1807. land, right of way over, 1492. SCIRE FACIAS against corporation, 1151. SEAL. adoption of corporate, 1155. to mortgage of railway, evidence of authority, 1357. to agents, authority to sell tickets, 2556. SECONDARY EVIDENCE stockholder's liability, 2815, 2886. SECRETARY. service of process on, 1099, 1122. notice of hen to, 1087, 1090. of railroad commissioners, 262S. appointment and salary, 2628. SECRETARY OP STATE. record of articles of incorporation, 1152. to certify copies of, 1155. 1156a, 1171, 1171a. to certify copies of articles of consolidation, 1394. to certify copy of certificate, 1509. oath and bond of railroad commissioners filed with, 2627. 35 450 INDEX. SECURITY from officers of railway, 1188. SELECTION. of jury, 468. of second jury, 4T2. f jury by justice, 471. of place of railway crossing, 277. of route of road power, 1361 . change after. 1225a. entry on land for, 1820. See LOCATION. SEPARATE. appeals, 1060. assessment of damages, 460-463. as to fruit trees, 600. SERVANT. embezzlement by, 169, 170. liability for injury to, 1157m. rules and regulations to protect, H58f. duty to fenoe, not for his protection, 1584, 1585. injury to baggage by liability, 2274. of railway to wear badge, 2338. SERVICE. ten days, 434. as in chancery, 435. of notice when personal, 446. less than ten days jurisdiction, 453. of notice of appeal, 1055. of notice of lien, 1087. of corporation, how put in issue, 1126. on foreign corporation, 1125, 1127, 1128, 1130. on interested director void, 1131. of director pay for, 1177-1178b. notice of stockholders' meeting, 1206. summons on railway, 1099-1122. when on president, 1099. when on other agent, 1099. of notice to build fence, 1816. SERVITUDE. See 847. SET OFF. of benefits, 489, 581, 582. 584-687, 589, 591-594, 596-598, 603, 605, 646. See BENEFITS. of debt by stockholder, 2873-2875. for storage in action against warehouseman, 2986. SEWER. See 145. under railway, 150. power of city to condemn, 361 . challenge to each defendant, 483. defective injury from, 811, 817. SHEEP. cruelty to, by carrier, 168. injury of, from neglect to fence, 1518. SHELTER for flagmen in street, 2450. SHERIFF may attest or verify execution, 2931. SHIPPER. protection of, 111, 112. rights of, when goods sent to fictitious person, 2957. SHOPS condemnation for, 416. SHORTAGE OF GRAIN. rights of owners, 2951 . damages for, 2562. SHRINKAGE OF GRAIN no deduction for, 2562. SIDE TRACKS. condemnation, for more, 350, 352-355. condemnation for, 370, 41ti. private, when part of road, 2C04. width of way, 370. removal when enjoined, 2620. SIDEWALK. injunction to prevent city from taking, 816, 8~'8. injury from, 19:!8, 1943, 1957. SIGNALS BY BELL OR WHISTLE. malicious displacing, 171. c I of approaching train, 1898-1902. of evidence relating to, 1904, 1905. INDEX. 451 SIGNALS BY BELL OR WHISTLE Continued. negligence of plaintiff as a defense, 1906-1920. neglect to give, no excuse for plaintiff's negligence, 1916-1924. duty of plaintiff to stop before crossing, 1925. comparative negligence, 2020, 2028. starting train without, 2087-2088a. on approaching a crossing, 2185, 1827. what companies bound by the law, 1828. applies to corporations previously formed, 1828. a proper police regulation, 1828. exempting company from duty, 1829. sounding Dell or whistle sufficient, 1830. only at highway crossings, 1831. for whose protection, 1832-1835. liability for neglect to give, 1836-1888. neglect must cause the injury, 1836, ia37, 1840-1849. burden of proof, 1838, 1839. does not per se, render liable, 1811, 1842, 1848. penalty, not dependant on injury, 1844, 1847. e'vidence of negligence causing injury, 1840-1849. when omission is negligence, 1872. 1873, 1881, 1882, 1884, 1885, 1888. not necessary signal shall apprise, 1874-1880. at other places than crossings, 1883, 1887. injury near crossing, 1885-1887. duty to give warning by, 1889, 1890. as to those wrongfully on street, 1891 . mutual rights and duties at crossings, 1898-1900. stopping train, 1892-1897. hoard at crossing. neglect must cause the injury, 1826. See NEGLIGENCE. SIGNING. of petition for incorporation, 1508. to condemn in corporate name, 402. SINKING FUND garnishment of, 1346. SITUATION as affecting value, 713. SLEDGE-HAMMER in each car, 2443. SLEEPING-CAR not liable as carrier, 2261. SOVEREIGNTY OP STATE-eminent domain an attribute of, 227, 229. SPECIAL ASSESSMENT. interest on not special legislation, 22. by cities not special legislation, 30. under eminent domain, 193, 304, 2J4. before condemnation by cities, 3(K), 365. to pay for park, 591 . for street, mandamus to collect, 954. imposing burdens by, 1439. SPECIAL CHARTEUS-not affected by constitution, 45. SPEClALDAMAG^S-necessary to right of action, 617, 624, 657, 712, 718, 802,831, 889441, SPECIAL LEGISLATION. prohibited, 3-28. not prohibited, 32-34. corporation by, prohibited, 46. fencing railways, not, 1525. inspection or grain in Chicago, 2736. SPECIAL MEETINGS OP STOCKHOLDERS how called, 1182. removal of officers, 1185. increase of capital, 1206. notice and business at, 12<)6. SPECIAL PRIVILEGES. prohibited by special legislation. 39. prohibition, applies only to tlie legislature, 40. SPECIAL USE. is property, 562. measure of damages to, 561, 562, 743. value from, f passengers on, 2549-2551. furnishing authority to ticket agents, 2556.. redemption of tickets, 2560. penalty for not, 2561. liability for coroner's inquest, 2950. See 166, 167, 176, 1235. STIPULATION evidence on condemnation, 571-575, 579, 580, 759. STOCK. books to show amount and the owners, 61, 1174. stoek dividends prohibited, 87. fictitious increase of, 87. purchase of stock on renewal, 1172. what stock book to show, 1174. power to make transferable, 1155, 1200. by-laws, as to, 1157a. paid in, to be entered, 1174. forfeiture and sale of, 1192. notice of sale, 1192. personal estate, 1200, 1200a. purchase of, by corporation, 1200, 1203-1203b, 1203d, 1203e, 1205. creditor's lien on, 1203a. retiring and re-issue of, 1203d. who entitled to increased, 1207c, 1385c, 1207c. right to convert into bonds, 1338. limitation as to issue, 1376, 2941. contract to take, does not make a stockholder, 1377. fraudulent issue, void, 1878-1888. in violation of law, void, 1381 . equitable relief against, fraudulent, 1380, 1382. fraudulent issue, no defense to subscription, 1379. object of constitutional prohibition, 1383. dividends to be general, 1385a. who may increase capital, 1385b. votes determined by, 1459. convertibility of into bonds, 1467. payment for in land when good, 2819, 2820. sale of, on execution, 2926-2929. liable to sale on, 2926 when pledged. 2926. remedy mast be strictly pursued, 2927. steps to perfect levy, 2928. attested copy of execution, 2929-2933, . levy and sale in case of attachment, 2934. officers to give certificate of shares, 2935. liability for refusal, 2935. issue of certificate to purchaser, 2937. transfer on books, 2937. 2938. right of purchaser to dividends, 2939. vote necessary for increase of stock, 1206. forfeiture of for non-payment, 1192. transfer of. transfer office to be kept in state, 61, 1471-1473. transfers made at, 61, 1471, 1425, 1174. transfer of, 1200b-1200d, 1200f, 1201, 12011). certificate of transfer, 1200e, 1200d. new when void, 1200d. 454 INDEX. STOCK-.Cotttinued. canceling old, 1200e. equitable, relief against assignor, 1200f, 1201a. neglect to enter on books. 1201. assignee protected in equity, 'I201b, 1201c, as against creditors of assignor, 1201d. as between the parties, 1201d. as against execution creditor, 1201b. liability of corporation refusing, 1202. equitable rights of assignee, 1202a, 1202b, 1201a, 1201b. in absence of by-law regulating, 1202c. not enforced, if void, 1381. protection of innocent purchaser of fraudulent, 1384. limitation on transfer of, 1200. office for, where kept, 1425, 1174. registry of, 1425. on books, of sale on execution, 2937, 2938. notice to purchaser of the trust character of stock, 1203c. to be kept in books, 1174, 1425, 1471. governed by by-laws, 1200b. by issue of new stock, 1200e. presumption as to, 1200f. equitable what passes by, 1202a. title of assignee, 1202b. when new certificate not necessary, 1202d. See ASSIGNMENT OF STOCK. STOCKHOLDERS. right to vote, 59. notice to before consolidation, 67. annual meeting of, 1183. election of directors at, 1175. change of mode of election at, 1175. report of corporate affairs at, 1183. powers at general meetings, 1184. fix amount of loans and rate of interest, 1184. special or called meetings. how called, 1182. notice of quorum adjournment, 1182. removal of any officers, 1185. to increase capital stock, 1206. notice of, 1206 notice, how given, 1206. for other purposes, 1206. business at, 1206. record of proceedings, 1206. vote in person or by proxy, 1206. of the vote to increase, 1207, 1207b. notice of meeting when not necessary, 1361 . what is substantially a meeting of, 1362. directors are trustees for, 1176. bound by the by-laws, 1157d. city and non-residents may become, 1181. contract to subscribe, does not make party one, 1193. right to examine books, &c., 1186. forfeiture of stock by non-payment of calls, 1192. may order issue of mortgage bonds, 1338. order for to be recorded, 1338. must authorize the mortgage, 1362. ratification of mortgage, 1364. meeting to authorize, 1468. notice of meeting. 1469. remedy against an unlawful loan. 1483. must assent to increase of capital, 1179a, 1206, 2941, 1385b. must assent to consolidation, 1411, 1422. railway to keep in state a list of. and their residence, 1425. personal liability of for debts of corporation, 1208-1210a, 2857-2864. administrator not so liable, 1208. pledge and pledgee, which, 1208. power of legislature to provide for, 1210-1211a. reservation of power to regulate, 121 Oa. to extent of face value of stock, 2857. of purchaser of stock, 2858. holder of pledged stock, 2859, 2860. of assignee informal transfer, 2861 . as between assignor and assignee, 2862. depending on time of becoming stockholder, 2863, 2864. need not be such when debt contracted, 2863, 2864. how discharged, 2865-2872. INDEX. 455 STOC KHOLDERS Continued. payment in full, 2865-2871. individual linhility of. paying stock when no release, 2837, 2838. certificate of payment of whole capital and recording, 2838, 2842. when released from further liability. 2872. rito deny title, 505, 509. benefits, when set off, 589, 616. measure of damages widening street, 638. benefits to one part as against damage to other, 646. special assessments to pay for, 365 . mandamus to compel collection and payment, 954-956. city estopped to deny validity, 955. taking for a public use, 294, 298. jury not necessary under old constitution, 207. opening when title passes, 1008. appeal lies from order widening, 1056. expediency is for city, 374, 375, 393. reversion on abandonment or vacation, 1006. vacation of, no taking, 237. vacation vote required, 140. See VACATION. of railway track in, 40. power of city to permit, 72, 846, 864, 884, 1250-1258. laying road in street act of the state, 290. grant to enter city, gives no right in streets, 344, 860. to use for track, by implication, 1259. right of railway to build over, 1235, 1251. to cross streets, 1278. consent of city necessary, 60, 118, 1257, 1261, I265a. tracks connecting warehouses, &c., 137, 1273. not necessary to cross street, 359, 1278. 1261a. power of city to grant use and for what, 1250, 1253, 846, 864, 884 grant of use of construed, 139, 1264, 1266, 1281b, 1283. joint use with public, 139, 1283. public bound by, 141, 1253, 1254, 1260. mode granting, 1255. passes to successor, 1256. sufficiency of ordinance, 1261b. no exclusive use, 1274, 1287. uses must be a public one, 1275, 1274. must clearly appear, 1281, 1282. who may question, 1252, 1279, 138, railivay track in. estoppel of city to deny Its grant, 291. power of city as a limitation on railway, 1262a. liability of city allowing railway in street. 1300, 130], 1300a, 1301a, 1303 827. 832-834. liability of railway for use of street, 851, 854, 857, 832-834, 846-866, 888-890, 893-895. for additional tracks in, 865. action for obstructing, 892. no injunction till damages assessed, 862. track in when no nuisance, 142, 1277. contract for use of by railway, 143. negligent laying of track in, 145, 147. no grant except on petition of lot-owners, 151. assent of lot-owners to, 1263, 1265a, 12titi, 1271, 1272, 1284, 1286 limitation on city, 1271. 1272. power of city to regulate location, etc., of tracks in, 1258, 1280. delegation of authority, 1258, 1258a, 1262, 12ti2a. may change location and crossings, 1280. INDEX. 457 STREETS Continued. require fencing of track, 1280. steam power in by railway, 1250. new use, operation of freight trains, 1289. dummy railway in, 1286. dedication acceptance necessary, 1249. title to vested in city, 1248, 1249. injunction of improper use, 1290-1293. restoring to former usefulness, 1297. condemnation of property in, 268-272. damages for new burden, 269. easement in protected, 268-270. right to locate depot in, 1513. right to lay tracks in, 1513. cattle guards in, 1582, 1596. use of oy elevated ways, 2947, 2948. STREET CROSSINGS. city may compel railway to construct, 144, 1280. duty of railway as to, 2089-2097a. change of, 2090. leaving safe, 2091 . duty oil successor, 2092. notice to make, 2098. penalty for not making, 2100. no duty as to new street, 2096, 149. warning boards at, 1825, 1826. signal by bell, etc., at, 1827. requiring flagman at, 2450. See CROSSINGS OP HIGHWAYS AND STREETS. STREET RAILWAYS. general railroad law not applicable to, 2483. liability for injury from sudden starting, 2227. STRICT COMPLIANCE when required, 306, 319, 321, 1199, 1822, 2927. STRICT CONSTRUCTION. when applied, 323, 328, 2147, 2116. See CONSTRUCTION. STRIKES. of railway employes, 2552. of servants, no excuse for delay, 2587, 2594. STRIKING OUT pleas to petition to condemn, 419-422. STRIP OP LAND CUT OFF. in condemnation value. 606. relative value as to whole, 686, 687. STRUCTURES ON LAND. on right of way, 1238. by consent value on condemnation, 630, 665-667. in street, 826, 833-866. SUB-CONTRACTOR lien for labor and materials to, 1081-1085, 1089. SUBJECT MATTER-jurisdiction of, 395-401. SUBPOENA of witnesses by railroad commissioners, 2639, 2640. SUBSCRIPTION. municipal, limited, 25. municipal, not under eminent domain, 187. of capital stock, necessary, 1156g. directors may require payment, 1192. forfeiture of stock, 1192. fraud, as a defense, 1192k. when released, 1192a-1192j. alteration of charter, 1192a. amendment of charter, 1192b-1192h. when collection enjoined, 1192i. estoppel, 1192J. who liable to call, 1193. identity of corporation. 1194. release, void as to creditors, 1195-1197. whole capital must be taken, 1198. strict compliance as to incorporation, 1199. to union depot, 1515. for reduced rates, 1460, 1461. unauthorized lease in defense, 1482. how enforced by creditors, 2829. assignee in bankruptcy to collect, 2834 . 36 458 INDEX. SUBROGATION. of creditors of corporation to enforce subscription, 2817, 2828. to rights of corporation, 2817, 2828. SUCCESSOR. of railway right to use street, 1356. takes same duties, 2092. bound by contracts of predecessor, 1484c. SUMMARY PROCEEDING. See 322, 447. SUMMONS. order for, by judge, 432. issue by clerk, 432. alias return in vacation, 434. service, ten days, 434. as in chancery, 436. as to new parties, 464, service on corporations, 1099-1132. less than ten days, 449. SUPERVISORS-road appeal hearing as to damages, 1038. SUPERINTENDENT powers of, 1191a. SUPPLIES lien for, 1073, 1074, 1079. SUPERIOR COURT OF COOK COUNTY jurisdiction to condemn, 399. SUPREME COURT appeals to, 1054. SURETY on inspector's bond extent of liability, 2761. SURFACE WATER. See 811, 818, 819, 852, 873, 1237-1241. SURPL OS after sale of goods for charges, 2957. SURPLUSAGE. See 1692, 1716. SURRENDER OF TICKET. See TICKBTS. SURVEY OF ROUTE. See 1220. SWEARING. appraisers, 475. jury, 487, 488. SWINE cruelty to, 168. SWITCH. private. 71. displacing, 171. limitation as to, 352-356. TAKING FOR PUBLIC USE. what is, 230-241. 948. what is a partial, 1%, 230. not by a mere enactment, 233. for same public use, 252. part of a railway for another, 256a, 249-251 . property subject to, 262-276. compulsory, 300. See EMINENT DOMAIN. CONDEMNATION. TAMPERING with grain by warehouseman, 2767. TAXATION . of consolidated road, 1400, 1419. of rolling stock, 1493. TAXES apportionment between city and county, 188. TAXING OF COSTS attorney's fees, 1092, 1794-1799, 1518, 2599, 2600, 2714 TAXING POWER. special assessments not derived from, 193, 204, 224. not under that of eminent domain, 203. effect of eminent domain on, 223. TEAM frightening by whistle, 175, 2084-2086a. TELEGRAPH condemnation for, 232, 241, 351, 369, 648, 1002, 1003. TEMPORARY LAW -what is, 11. TENANT IN COMMON. separate assessment not necessary'as to, 460, 540 evidence by one avails all, 527. joinder in appeal, 1039. TENANT. damages to, 697, 700, 703, 704, 1020-1023. for life, summons on, judgment does not bind remainderman, 444 426 TENDER. of charges, when to be shown, 2567, 2568. of grain to railway, when made, 2601. back, of fare on expulsion, 2550. INDEX. 459 TENDER Continued. of grain by warehouse receipt, 2779, 2973, 2978, 2979. of fare, to entitle to baggage check, 2236, 2241 . TERMINI OP EAILROAD. to be approved or fixed before condemnation, 334. legislative reservation of right to fix, 335. when so far fixed as to give right to condemn, 347. company may fix sidetracks, 352. fixing and approval necessary to complete organization, 1149. no power to change after once fixed, 1225a. company may fix, 1463. TEXAS CATTLE suit for bringing into state joinder of partieo, 2148. TICKETS. embezzlement of, 170. procuring before entering ears. 1157n, 1157o, 1322, 1324. confers right to be carried to place named, 1157q. surrender of, 1157w, 1160, 1326. for freight train may be required, 1157y, 1158a, 2311-2313, 2316. family, 1158c. expulsion for not surrendering, 1325, 1326, 2301, 2304. keeping office open for sale of, 1323, 1334, 1457. stopping at stations named in, 2205. taking up, no contract to stop at station named, 2206. includes baggage, 2250-2253. full fare for failure to get, 2277. necessary to avail of special rates, 2278. special not transferable, 2279. punched or worthless, 2288, 2310. expulsion for not getting, 2291, 2298, 2299, 2324. refusal to purchase expulsion, 2292, 2293, 2304 lay-over may be limited, 2318. loss of berth ticket, 2325. family good for adult son, 2327, 21328. excursion or thousand mile, 2706. redemption of penalty, 2560, 2561. holder of may sell, 2560. officer having no badge, not to take, 2338. TICKET AGENT. certificate of authority to sell, 2556. sale of tickets without, 2557. penalty for selling without, 2558. to exhibit his authority, 2559. TITLE. transfer by condemnation,' 192, 1512. judgment that transfers, 205. when acquired, 933, 935, 938, 953, 958, 967, 968, 980. how passed, 998. effect of judgment to pass, 1005, 1007, 1008. proof of on condemnation, 506, 508, 509. admission of, 506, 510. estoppel to deny, 505, 507, 511. land-owner to prove, 1041. proof of on appeal, 1053. to streets, 1248, 1249. necessary to support mortgage, 1355. by transfer of warehouse receipt, 2777-2794, 2992, 2784, 2785. TOKTS. of contractors and lessees, liability of railway, 1216-121 9c. of corporation- -stockholders not liable for, 2839. TOWN. may condemn for a street, 327. liable for obstructing navigation by bridge, 1244b . penalty collected for, 1506. TOWNSHIP ORGANIZATION. road law for counties under, not local law, 19. law relating to, not local or special, 36. constitution of 1848 construed, 37. TCJMBLING-ROD -comparative negligence applies to use of, 1977. TRACKS OF RAILWAY. right to use connecting, 107. in cities. See CITIES AND VILLAGES. RAILWAYS. ice and water along, 148. 460 INDEX. TRACKS OF RAILWAY -Continued. injury to, 171-174. false signal on, 171. condemnation of. See RAILWAYS. CONDEMNATION. EMINENT DOMAIN. liability of city for allowing in streets. See CITIES AND VILLAGES. in street when no nuisance, 1277. fencing. See FENCING. team stalled on, 1812. duty of railroad commissioners as to, 2636. in unincorporated town, 290. TRAINS. See FREIGHT TRAINS. RAILWAYS. TRAINING TRACK-damages for, 651. TRAIN-WAY from coal bank a private use, 302. TRANSCRIPT OF JUSTICE-filing in circuit court, 1091. TRANSFER OF STOCK. See STOCK. TRANSPORTATION, of grain in bulk. 107. of persons and freight, 1316. duty to furnish cars for, 2140, 2141. delay in, 2142-2144. TRAVELLER. injury for want of signal boards, 1825, 1826. signals, for protection of, 1832. rights of at crossings, 1898-1902. duty at highway crossings. 1898-1902. neglect to look for train, 1906-1915. excuse for want of care, 1916-1924. without negligence, 1930, 1931, 1934. walking on track, 1932, 1933. comparative negligence of, 2028. TREBLE. damages, 2145-2147a. extortion, &c., 2714. TRESPASS. entry before payment, 240, 241. 1004. no recovery for on condemnation, 668, 736. evidence of on condemnation, 736. ' entry before judgment, 948, 1045. against telegraph company for entry, 1003. removing fence to open road, 1029. expelling passenger, not at a sttion, 2305. on right of way by animals, 1655-1657, 1660, 1684, 1739, 1740, 1744. passing over depot grounds, 1501. by person on track, 1808, 1811, 1813, 1&32, 1891, 1932, 1933. TRESTLE examination of by railroad commissioners, 2636. TRIAL. necessary to a condemnation, 209. by jury, 278-288. date of, as fixing damages, 783-790. TROVER against warehouseman refusing to deliver, 2984, 3001. TRUSTEE. directors are, 1176. liability for stock, 1208. operating road, liability of, 1219c, 1219d. individual liability of, 1210d. in possession, liable in name used, 1348. person managing mortgaged road, is, 1351. of warehouseman, for creditors, 2967. of schools grant of right of way, 1492. TRUST FUND capital stock ib, 1197. TUNNEL-in street, 836, 837. TURNPIKE railway over, 1235, 325. ULTRA VIRES estoppel to insist on, 1385. UNION DEPOT. incorporation of, 1507. articles of, 1507. over and under streets, 1513. borrowing money mortgage, 1514. subscriptions, 1515. legislative control, 1515. election of directors, 1516. INDEX. 461 UNION DEPOT-Cvntinucd. joint use of depot, 1517. rules and regulations, 1517. discrimination in use, 1517. UNION OP ROADS. See CONNECTIONS. UNITED STATES power to condemn, 333. UNJUST DISCRIMINATION. act of 1873 a valid law, 81. duty to pass laws to prevent, 94. passage of laws to prevent, 1428, 1515. statute against, 3653-2705. statute held unconstitutional, 2656. laws held valid, 2657. law against, no violation of charter|rights,*2654. only im.fttsf prohibited, 2655, 2656. carriage not confined to state, 2659. power of state to prohibit, 2665. effect of law on prior contracts. 2666. applies to all roads in state, 2667. discrimination at common law, 2668, 2669. extra charge for no_t getting ticket, 2668. as to charge being in proportion to distance, 2670. must be a shipment, 2671. action for giving a preference, 2672. as to persons, 2672-2677, 2685, 2686. as to warehouses, 2674, 2677. as between places, 2678, 2687, 2689-2694. in what it may consist 2679, 2683. rebate as to .one, is and contract void, 2680. what is not unjust, 2684. instances of just, 2695. right of action for, 2696. not before rates fixed, 2697. evidence must show the discrimination is unjust, 2698. schedule of rates, prima facie evidence, 2699. to be published, 2700. increase of charges, not as to prior contracts, 2701 . declaration for, 2703. for extortion, 2702. must show the offense, 2704. limitation of action, 2705. evidence of ,2706, 2708. construction of statute, 2707-2709. penalty for, 2710. trial by jury, 2710. appeals to what courts, 2711. preponderance of eyidence, 2712. rules of evidence as to, 2724. fines to be paid county, 2724. suits for, to have precedence, 2724. UNKNOWN OWNER. party to condemnation, 325. notice to, 445. See 1016. UNLAWFUL. taking of property, 177. entry, 1004. UNLOADING. grain from cars, 2774. time allowed for, 2623. USE. taking property for 'same, 252. change in, 262, 263. " when different, 263. new, of a street, 269. must be a public, to condemn, 289, 302. what is a public, 289-302. of highway, 1245-1247a. whether joint or exclusive, 1245, 1264. statute construed, 1246. power of commisioners to grant, 1247. right to not as against public, 1247a. of streets, 1248-1263a. joint or exclusive, 1264, 1283. not exclusive, 1274, 1275, 1287. USER of corporation to show corporate existence, 1169. 462 INDEX. USER OF LAND. stating in petition, 412, 413, 416. manner of need not be stated, 418. on question of value, 610, 657, 679, 682-684. as evidence of value, 674-676, 678, 679. future, 723. embraced in grant, 794. special, giving value, 751. proposed, 754. evidence as to use and proposed, 764. evidence of damages, 893. VACATION. of street, 140, 237. petition in to condemn, 432. powers of judge in, 433. return of summons in, 434. new trial in, 435. hearing in, 453. petition filed in hearing in term, 467. amendments in, 464. selection of jury, 468, 469. of street, vote necessary to, 140. reversion on. 1006. liability of city to lot-owner, 845. See STREETS . VALIDATION of prior incorporation, 1463-1466. VALUE. depreciation, 578, 638. relative, 639, 642, 643. of what it consists, 651. depending on special use, 647, 651, 751. facts stated, 751, 752, 657. whether building enhances, 658. of building to the owner, 667, 673. when no market value, 678, 679. as a part of whole tract, 686, 687. difference in, as a measure, 709. part, when as of the whole, 714. what owner or jury thinks, 711, elements, uses and capabilities, 721, 743, 751. location, situation and demand, 721, 751. prospective, 722. improvements on land, 752. lots have no standard, 725. land for subdivision into lots, 743. when of the whole lot necessary, 776. evidence of sales, 920. party's deed as, 739. plans of proposed buildings, 754. opinion of witnesses, 725. diminution of, 801. as of date of filing petition, 788-790. action for, 995. of stock pleadings, 1718. See DAMAGES. EVIDENCE . VALISE injury to,l76. VARIANCE -between declaration and proof, 1779-1782, 2532. VENIRE . for jury in vacation, 468. to fill panel, 482. VENUE proof of, 1777. VESTED RIGHTS. under condemnation, 938, 951, 981. in condemnation, money, 951, 981. under old constitution, preserved, 1, 2. not in the remedy, 1211. VERDICT. amending, 489. recital or appointment, 530. showing basis and elements of allowance, 531, 532 allowance for fencing, 531, 533. to show compensation and damages separately, 533, 535, 539, 540. omission as to fencing, 534. certainty in, 536. finding separately as to each tract, 537. INDEX. 463 VE RDICT Continued. sufficiency of description of land, 538. gross sum as to compensation and damages presumptive, 539, 540. construed as to allowance of benefits, 70S). mode of flndinsr addition and division, 762. recording, 1070. curing defects, 1569, 1701, 1710. VIADUCT in street, action for, 839, 840. VIEW. of premises by jury, 490 -496. as evidence, 740, 768. of animal on or near track, 1803, 1806. obstructing, of approaching train by brush, etc., 1803, 1805. VILLAGE. what is, under fencing law, 1575-1577. laying street ordinance, 364, 365.5 penalty to, for neglect as to depot, 1506. VIOLENT ENTRY not evidence on condemnation, 736. VOID. allowance of benefits against compensation, 632. when judgment is, 485. VOLUNTARY GRANT to railway authorized, 1226. VOTE. required to vacate street, 140. to increase capital stock, 1206. to mortgage railway, 1338. to consolidation of roads, 1422. regulating by by-laws, 1157a. by proxy allowed, 1206, 1459, 1468. WAITING-ROOM at depot, 1158b, 1504. WAIVER. of trial by jury, 288. of objections. 487 Of damages, 497-500. of proof, 514. as to separate finding, 537. of rights, 992. of lien, mechanic's, 1080. of right to increased capital, 1207c. of tort, money had and received, 2988. of prepayment of freight, 2568. WALKING ON TRACK. See 1808-1814, 1832, 1897, 1896, 1932, 1933, 1959, 1961, 2024. WANTON INJURY to stock, 1670. WAREHOUSE AND WAREHOUSEMEN. liability for defects in approach, 2097a. storing baggage in. 2270-2273. action by, for not delivering grain to, 2600. delivery to, if on railway's line, 2603. track of, when part ot railway, 2604. statements, by to commissioners, 2633. licenses cancellation, 2637. delivery of grain, after revocation, 2637. re-licensing limitation, 2637. licenses contrary to law, void, 2637. act, not special legislation, 20. not unconstitutional, 85. what a public, 99. posting statements, 104. mixing grain, 104. inspection of books and property of, 105. receipts to be delivered, 106. fraudulent receipts. 111. connections to reach, 107-110 137, 1275, 1308-1310. inspection of grain regulated, 112. delivery of gram at, 107-110. examination of books of, 2638. act regulating, is constitutional, 2732, 2733. classification of, 2734, 2735. license to class A revocation, 2737. bond of licensees, 2738, penalty for doing business without, 2V39. renewing license, 2739. not to discriminate or mix grain, 2740. grain in, to be inspected, 2740. receipt lor grain in separate bin, 2740. 464 INDEX. WAKEHOUSE AND WAREHOUSEMEN Continued. not compelled to take, when full, 2740. manner of issuing receipts, 2741. limitation of liability in receipt, 2744. liability of, 2745. lien on grain, when lost, 2748-2751. lost by agreement, 2752. remedy against for non-delivery, 2753. posting statements of grain in store, 2755. furnishing statements to registrar, 2755. reports of cancelled receipts, 2755. appointment of chief inspector, 2756. to publish schedule of rates, 2764. maximum charges for storage, 2764. agreed and customary rates, 2764. loss by fire or heating, 2766. duty as to order oi delivery, 2766. notice, when grain is out of order, 2766. ' what it shall state, 2766. delivery of equal quality as received, 2766. care to preyent loss by fire, &c., 2766. mixing grain with that out of order, 2766. penalty for neglect of duty, 2766. action on bond, 2766. revocation of license, 2766. when may sell grain at auction, 2766. notice of such sale, 2766. tampering with grain, 2767. mixing different grades, 2767 . trying to deliver one grads for another, 2767. drying grain in priv_ate bins, 2767. removing grain for its preservation, 2767. right to examine grain and scales, 2768. not to receive before inspection, 2769, 2770. liability for taking grain after notice not to store, 2774. combination to get grain delivered to, 2775, 2770, action on bond for violation of law, 2776. criminal prosecution for, 2776. liability of successors to holders of receipts, 2787. removing property without return of receipts, 2793. remedy for non-delivery of grain, 2782. measure of damages, 2783. when liable on execution against, 2784, 2785. may dispose of grain, if he keeps enough, 2786. liability for false receipts, 2793. posting copy of law, 2794a. delivery without return of receipts, 2800. inspector's fees made a lien on grain, 2800. certificate of weighmaster, conclusive, 2803. penalty deny weighmaster's access to scales, 2811. when grain falls short, loss divided, 2951. intermixture, each takes proportunate share, 2952. party consenting, cannot replevy, 2953. lien in favor of, 2954 . not lost by issue of fraudulent receipts, 2955. action for issue of fraudulent receipts. 2956. on sale for charges surplus goes to snipper, 29o7. may recover charges of holder of receipt, 2958, 2859. lien of, lost by delivery, 2960. no lien on goods of another person, 2961 . degree of care required of, 2962, 2977. compensation of, receipt, construed, 2963. confusion of grain by loss ratably, 2966. assignment for creditors, loss chancery jurisdiction, 2967. care and liability of not insurer, 2968. liability of assignee of warehouse selling, 2974. assignee of warehouse takes no title to grain of others stored, 2975. average of loss on intermixture, 2976. contract for storageconstruction, 2980, 2981. remedy against warehouse refusing to deliver, 2984, assumpsit or trover against, 2984. measure of damage, 2985. non-payment of storage no defense, 2986. whether contract of deposit or sale, 2990. lien of, how lost, 2991. act regulating, a valid law, 2994, 2995. liability under contract to insure, 2996. selling grain may hold in store, 2998. liability of grain to execution against warehouseman, 2999. INDEX. 465 WAREHOUSE AND WAREHOUSEMEN Continued. intermixture of grain, title in holder of receipt, 3000. liability in trover for refusing to deliver, 8001 . te-w.vS assignee or purchaser, liable to holder of receipts/SOOS. duty and pay for forwarding, 3003. what will bar charges, 3004 . liable for delivery to wrong person, 3009. when the contract is for storage or transportation, 3014 . regulation of charges of, 78-85. WAREHOUSE RECEIPTS, manner of issuing, 2741. what to state, 2741. mode of cancelling, 2742. issue one on delivery of grain, 2743. issue of new partial delivery, 2743. dividing receipt, 2743. consolidation of, 2743. limiting liability on, published, 2744. sampler's ticket is not, 2746, 3010. holder's rights on non-delivery of grain. 2747. purchase taken subject to lien, 2748a, 2749. holder of properly indorsed, entitled to grain, 2747. evidence of ownership, 2754. cancelled to be reported to registrar, 2755. assignable by indorsement, 2f~7. negotiability of, 2777-2792. delivery of transfe: asfers property, 2778, 2780. tender of is of the grain, 2779. cannot be varied by parol. 2781, 2983. remedy for refusing to deliver, etc., 2782. whether a pledge, 2784. property not subject to execution, 2785, 2999. binding on successor of warehouseman, 2787. title that passes by assignment, 2788-2791 . not negotiable as a note, 2788-2791. punishment for false or fraudulent, 2793. return of, before property removed, 2793. to be returned before delivery. 2800. issue of fraudulent effect on lien, 2955. action on case for issue of fraudulent, 2956. purchassr, takes subject to charges, 2958. liable for charges when, 2958. construed as to warehouseman's pay, 2963. rights of holder, when entitled to damages, 2964. creates no lien on property of warehouseman, 2965. stand in place of the property stored, 2969. transfer of, transfers the property, 2969. not strictly negotiable instruments, 2969. transfer by one having no title, 2970. negligence in enabling holder to sell, 2971. delivery in blank bona fide purchaser, 2971 . what is negligence in purchaser of, 2972. tender of, when tender of grain, 2973, 2978, 2979. negotiability of, 2982, 2969-2971. 3005. 3006, 3011,^3014, 3015. transfer of property by, 2992, 3007, 3008. construed as not creating a pledge, 2993. etidence of ownership of grain, 2993. possession of is of grain, 2997, 3008. given by warehouseman on sale, good, 2998. is but a contract, 3006. will not pass title when assignee has none, 3007. rights of assignee, 3012, 3013. 3016, 3018. by overseer of warehouse, not negotiable, 3015. does not guaranty the title of property, 3017. holder takes no better title than if he had the goods, 3018. transfer of, passes title and possession of property, 3019. notice or, to warehouse before title vests absolutely, 3020. transfer of makes warehouseman bailee of holder, 3019. attachment before notice of transfer to warehouseman, 3021. transfer passes constructive possession without notice, 3022. notice of transfer, 3023. may be pledged, by one clothed with apparent title, 3024. pledge by warehouseman,^ transfer of his own receipt, 3025. rights of pledgee of, 3024, 3026. transfer without endorsement, 3027, 3028. purchaser protected against fraud, by vendor, 3029. transfer of title by, 3030-3032. rights of holder not to identical grain, 3031. 37 466 INDEX. WAREHOUSE RECEIPTS Continued. to action for breach of duty, 3033, contract by blank indorsement, 3033. WARMING DEPOT. duty as to, 2130. penalty for not, 2145. WARNING. of approach of train at crossings, 1827-1967. for whose protection, 1832-1835. at street crossings, duty to give, 2454. boards at road crossings. 18\5, 1826. See HIGHWAY CROSSINGS'. WATCHMEN. at railroad crossings, 2450, 145 . on rear of cars pushed, 2451, 2452. absence from street crossing liability, 2453. expenses of, at railway crossing, 560. See FLAGMEN. WATER. on sides of track, 148. stagnant, 145. dividing farm from, 609, 716. power, 610. to mill, on condemnation evidence, 690. thrown on lot, 810, 811, 815, 821, 835. change of natural flow, 818, 819. provision for carrying off, 867. damming up obstruction, 870-874, 878, 1237-1241. tank in street, 838. course railway over, 1235. obstructing, 1236, 1236a. craft offenses on, 178. obstructing by defective bridge, 1398. craft power of railway to own and use, 1488. no condemnation for landing, 1489. in ditches, as negligence, 1689. tank not a regular station, 2299. WEEDS, ETC. on right of way, 165, 1800-1806. WEEKLY STATEMENT-by warehouses, 104. WEIGHING GRAIN. by railway, 106, 2562, S599. in bulk by, 2728-2731 . railway to furnish appliances for, 2728. to give weight in receipts, 2728. liability for violation, 2730. penalty for violation, 2731. WEIGHT OF EVIDENCE. See 726, 748, 749, 768, 1904, 1905. WHARF. connections with, 1275. condemnation for different use, 263. WHISTLE. frightening team by, 175, 2084-2086a. at highway crossings, 1828. application of law, 1828. police regulation, 1828. either bell or whistle, 1830. starting train without, 2087-2088a. See SIGNALS. WIDENING STREET. See 638. appeal, 1056. WIDTH. of right of way, 366-372, 415, 1051, 1231-1233. not for the jury, 524, WILLFUL. injury to stock liability, 1518, 1587, 1736, 1657, 1670, 1677. to person, 1814, 197, 1961, 1964, 1959, 2024. plaintiff in some fault, 2037, 2038, 2052, 2068, 2082. when act is, 2189. WILLFUL MISFEASANCE carrier cannot exempt self from, 2340, 2347-2349, 2354, 2385, 2389, 2391, 3392, 2409, 2417, 2419, 2423, 2428. WINE-CELLAR profits of, 676. INDEX. 467 WITNESS. opinion as to value, 725. credibility and weight, 726, 749. cross-examination, 735. experts, 741, 748, 747. competency to give opinion, 733, 741, 743, 745-749, 753, 756. limiting number of, 942. commissioners may examine,