St. Louis Connecting R. Co. v. Blumberg

• Citation: 325 Ill. 387,156 N.E. 298
• Decision Date: 20 April 1927
• Docket Number: No. 18092.,18092.
• Parties: ST. LOUIS CONNECTING R. CO. v. BLUMBERG et al.
• Court: Illinois Supreme Court

325 Ill. 387

156 N.E. 298

ST. LOUIS CONNECTING R. CO.

v.BLUMBERG et al.

No. 18092.

Supreme Court of Illinois.

April 20, 1927.

Condemnation proceeding by the St. Louis Connecting Railroad Company against H. F. Blumberg and others. From a judgment dismissing the petition, plaintiff appeals.

Reversed and remanded, with directions.Appeal from Madison County Court; Wilbur A. Trares, Judge.

Fordyce, Holliday & White, of St. Louis, Mo., and Hiles, Newell, & Brown, of Edwardsville (George B. Gillespie, of Springfield, of counsel), for appellant.

Springer & Buckley and Warnock, Williamson & Burroughs, all of Edwardsville, for appellees.

HEARD, J.

Appellant filed its petition, and later an amended petition verified by affidavit, for the condemnation of certain tracts of land belonging to appellees for railroad right of way purposes, and in the amended petition set out at length the facts upon which it based its claim to exercise the right of eminent domain. Appellees filed their motion to dismiss the amended petition, basing their motion upon facts apparent upon the face of the petition. No evidence was heard upon this motion, and, upon consideration thereof, it was sustained by the court and appellant's petition dismissed. From the judgment of the county court, appellant has appealed to this court.

The motion to dismiss was in the nature of a demurrer to the petition, and the sufficiency of the facts alleged in the petition to authorize appellant to exercise the right of eminent domain and take the property described in the petition for right of way purposes is the only question here involved.

[1]The facts stated in the petition, which for the purposes of this case we must accept as being true, are that appellant, the St. Louis Connecting Railroad Company, is a railroad corporation organized and existing under and by virtue of the laws of the state of Illinois; that its articles of incorporation are filed in the office of the Secretary of State of Illinois and a certified copy thereof filed and recorded in the office of the recorder of deeds of Madison county, Ill.; that in the articles of incorporation it is stated that it is intended to construct the proposed railroad from a point on the constructed line of the Pittsburgh, Cincinnati, Chicago & St. Louis Railroad Company at or near the city of Collinsville, thence northeasterly to a point on the constructed line of that railroad company about two miles west of the village of St. Jacob, all within the county of Madison; that the amount of the capital stock of such corporation is $100,000; that the number and amount of capital stock of such corporation are 1,000 shares at $100 per share; that the Pittsburgh, Cincinnati, Chicago & St. Louis Railroad Company, an Illinois corporation, is the owner of a railroad extending in a northeasterly direction through the city of Collinsville and continuing easterly to and through the village of St. Jacob; that said railroad from Collinsville to St. Jacob has many bad curves and grades, making it difficult to operate fast trains, such as are necessary at present for the accommodation of the traveling public; that it is a part of the system of the Pennsylvania Railroad, connecting the city of St. Louis with the cities of New York, Washington, and other Eastern cities; that said railroad is single track from Collinsville to St. Jacob, and is the only line of said companies connecting the city of St. Louis with the cities of the Eastern part of the United States; that the Pittsburgh, Cincinnati, Chicago & St. Louis Railroad is now leased to the Pennsylvania Railroad Company under a long-term lease, and that many cities in Illinoisand in other states are served by this road and by the various railroads of the Pennsylvania Railroad system from St. Louis to the Eastern cities; that the Pennsylvania Railroad Company proposes to lease the railroad of the St. Louis Connecting Railroad Company and operate its trains over said railroad under the lease, the same as it is now operating under the lease of the Pittsburgh, Cincinnati, Chicago & St. Louis Railroad; that the Pennsylvania Railroad Company is a common carrier for hire, and is one of the post-roads of the United States, under contract for carring United States mail; that the St. Louis Connecting Railroad Company proposes to construct a railroad from Collinsville to a point about two miles west of the village of St. Jacob, the western terminus of such railroad to connect with the Pittsburgh, Cincinnati, Chicago & St. Louis Railroad near the easterly side of Collinsville, the railroad to be so constructed as to be free from objectionable curves or grades and to be 5,600 feet shorter than the line of the Pittsburgh, Cincinnati, Chicago & St. Louis Railroad; that petitioner theretofore, on February 2, 1926, made its application to the Interstate Commerce Commission for a certificate of public convenience and necessity for the construction of said railroad and also for authority to issue $100,000 of capital stock, and that thereafter, on May 3, 1926, the Interstate Commerce Commission issued its certificate of public convenience and necessity and authorized the issue of $100,000 capital stock; that on February 2, 1926, the Pennsylvania Railroad Company filed its application with the Interstate Commerce Commission, asking for authority to acquire control of the St. Louis Connecting Railroad Company by purchase of the capital stock of that company; and that thereafter, on May 3, 1926, the Interstate Commerce Commission entered an order authorizing the Pennsylvania Railroad Company to acquire control of the St. Louis Connecting Railroad Company by purchasing its stock at par value, the proceeds to be used for construction purposes. The orders and findings of the Interstate Commerce Commission were attached to the petition as exhibits and made a part of the petition, and contained, among other things, the following:

‘It is represented that the laws of Illinois would not permit either the Pennsylvania or the Pittsburgh Company to construct the new line railroad. Accordingly the Connecting Company was incorporated under the laws of that state on November 19, 1925, solely in the interests of the Pennsylvania and of the Pittsburgh Company, for the purpose of constructing the proposed line. The authorized capital stock of the Connecting Company is $100,000, divided into 1,000 shares of common, each of the par value of $100. It is proposed to sell this stock at par to the Pennsylvania, the proceeds therefrom to be applied toward the cost of constructing the new line. Additional funds necessary to complete the project will be advanced by the Pennsylvania from its treasury, and no securities are to be issued by the company at this time in connection therewith. After completion of the construction, the Pennsylvania Plans to operate the line under lease. It is stated that a proper application for authority to execute such lease will be filed with us. Nothing herein is to be construed as authorizing the Pennsylvania to operate over the new line or as a commitment on our part with respect thereto. The line in question will be double track and laid with 130-pound rail. The maximum grade will be 0.5 per cent. and the maximum rate of curvature 2. A reconnaissance has been made, plans and estimates have been prepared, and the projected location of the line staked. Cost of construction is estimated at $1,954,000. It is represented that about one year will be required to complete the line after the right of way has been acquired. The construction of the proposed line is a part of the program now being carried on by the Pennsylvania in double-tracking the main line of the St. Louis division of the Pittsburgh Company, all of whose line is operatedby the Pennsylvania under a long-term lease. It is represented that the proposed construction is necessary in order to double-track the main line, to improve the grade and alignment thereof, and to shorten the distance between Collinsville and St. Jacob. It will also materially relieve the congestion which is said to exist on that part of the St. Louis division The new line will be 5,600 feet shorter than the old. Grades and curvature will be substantially reduced. The line is not intended to originate new business or to handle local traffic. Under the completion of the proposed construction, through freight and passenger traffic will be moved over the new line. Traffic originating on or destined to points on the old line will be handled as heretofore. Upon the facts presented we find:

‘(1) That the present and future public convenience and necessity require the construction and operation by the Connecting Company of the line of railroad in Madison county, Ill., described in the application recorded in finance docket No. 5335.

‘(2) That the issue by the Connecting Company of $100,000 of common capital stock as aforesaid (a) is for a lawful object within its corporate purposes and compatible with the public interest, which is necessary and appropriate for and consistent with the proper performance by it of service to the public as a common carrier, and which will not impair its ability to perform that service; and (b) is reasonably necessary and appropriate for such purpose.

‘(3) That the...