Horn v. Illinois Cent. R. Co.

• Decision Date: 07 January 1946
• Docket Number: Gen. No. 43593.
• Parties: HORN et al. v. ILLINOIS CENT. R. CO. et al.
• Court: United States Appellate Court of Illinois

327 Ill.App. 498

64 N.E.2d 574

HORN et al.

v.ILLINOIS CENT. R. CO. et al.

Gen. No. 43593.

Appellate Court of Illinois, First District, First Division.

Jan. 7, 1946.

Appeal from Superior Court, Cook County; Joseph A. Graber, Judge.

Action by L. H. Horn and others against the Illinois Central Railroad Company and the Interstate Company for damages allegedly resulting from denial to the plaintiffs, because of race and color, of the free and equal accommodations of a restaurant. From a judgment of dismissal, the plaintiffs appeal.

Affirmed.

Irvin C. Mollison, of Chicago, for appellants.

David & Fainman, of Chicago (Sigmund W. David, of Chicago, of counsel), for appellees.

NIEMEYER, Justice.

Plaintiffs appeal from a judgment dismissing their amended complaint in an action for damages resulting from denial to them, because of race and color, of the free and equal accommodations, advantages, facilities and privileges of a restaurant or eating house possessed, owned, conducted, operated and controlled by defendants in, at and upon the station and premises of the defendant railroad company in Centralia, Marion County, Illinois. The appeal, taken to the Supreme court, was transferred to this court.

The original complaint, consisting of one count, was based on the Civil Rights Act (Ill.Rev.Stat.1943, chap. 38, pars. 125 to 128), which provides that any person who shall violate the act ‘by denying to any citizen, except for reasons applicable alike to all citizens of every race and color, and regardless of color or race, the full enjoyment of any of the accommodations, advantages, facilities or privileges' enumerated in the act, including those of restaurants, eating houses and railroads, ‘shall for every such offense, forfeit and pay a sum not less than * * * $25 * * * nor more than * * * $500 * * * to the person aggrieved thereby, to be recovered in any court of competent jurisdiction, in the county where said offense was committed * * *.’

Defendants having questioned, by motions to dismiss, plaintiffs' right to institute their action in the Superior court of Cook county, plaintiffs filed an amended complaint setting up the original complaint as count one, and adding three counts. The second count of the amended complaint alleged that the acts complained of in count one were violations of the Public Utilities Act. Ill.Rev.Stat.1943, chap. 111 2/3, pars. 10, 38 and 77. Counts 3 and 4 were based upon an alleged common-law liability of the defendants to furnish equal accommodations, etc., to all persons regardless of color or race in the restaurant of defendants, and are identical except for an addition of a paragraph in count 4 claiming exemplary damages. To this amended complaint defendants filed their several motions to dismiss the action, in which, as to count one, they again questioned plaintiffs' right to recover under the Civil Rights Act in a proceeding brought in the Superior court of Cook county; as to counts 2, 3 and 4 they alleged failure to state a cause of action and interposed the defense of the statute of limitations. These motions were allowed and plaintiffs' cause dismissed. Thereafter plaintiffs moved to vacate the order of dismissal and for a rule on defendants to answer the amended complaint, and filed in support of the motion an affidavit of one of the plaintiffs setting out facts which would have been material on a motion for leave to file a second amended complaint, had such motion been made. The matters stated in the affidavit cannot be considered on the questions presented by this appeal. The sufficiency of the amended complaint must be determined by the allegations of the complaint, unaided by any affidavit of facts supporting and amplifying the allegations of the complaint. Hart v. Tolman, 1 Gil. 1;Fish v. Farwell, 160 Ill. 236, 253, 43 N.E. 367;Dunlap v. Brotherhood of Railroad Trainmen, 206 Ill.App. 209.

The Civil Rights Act, as applied to restaurants and eating houses, creates a cause of action unknown to the common law. 10 Am.Jur., Civil Rights, sec. 17, page 910; Brown v. Bell Co., 146 Iowa 89, 95, 96, 123 N.W. 231,124 N.W. 901, 27 L.R.A.,N.S., 407, Ann.Cas.1912B, 852; Grace v. Moseley, 112 Ill.App. 100, 102. As to common carriers and inn keepers, it gives to the person aggrieved, if his action is brought in the county where the discrimination occurred, a remedy differing from the common-law remedy in that the minimum and maximum damages to be recovered are fixed by the statute. The action created by the Civil Rights Act is, as plaintiffs contend, a transitory action the venue of which may be fixed by the legislature. Mapes v. Hulcher, 363 Ill. 227, 230, 231, 2 N.E.2d 63. In the statute the legislature fixed the venue of the civil action thereby created ‘in the county where said offense was committed,’ and although the act was amended several times since its enactment in 1885, this provision has not been changed. The venue thus fixed is preserved by section 9, subparagraph 2 of the Civil Practice Act, Ill.Rev.Stat.1943, c. 110, § 133, which provides: ‘Any action which is made local by any statute shall be brought in the county designated in such statute.’ Plaintiffs, however, contend that defendant Interstate Company, being a foreign corporation licensed to do business in this state and having a registered agent located in Cook county, had no lawful right to object to the jurisdiction of the Superior court of Cook county. In Neirbo Co. v. Bethlehem Corp., 308 U.S. 165, 60 S.Ct. 153, 84 L.Ed. 167, 128 A.L.R. 1437, cited by plaintiffs, the court quotes from the opinion of Judge Cardozo in the case of Bagdon v. Philadelphia & Reading C. & I. Co., 217 N.Y. 432, 111 N.E. 1075, 1076, L.R.A.1916F, 407, Ann.Cas.1918A, 389, where he says that the designation of an agent by a foreign corporation for the service of process ‘deals with jurisdiction of the person. It does not enlarge or diminish jurisdiction of the subject-matter. It means that, whenever jurisdiction of the subject-matter is present, service on the agent shall give jurisdiction of the person.’ It necessarily follows that where the court is without jurisdiction of the subject matter, service on the agent does not give jurisdiction of the person, and the defense that plaintiffs' action under the Civil Rights Act was instituted in the wrong county was available to the Interstate Company, as fully as to any other defendant.

Count 2 seeks recovery under the Public Utilities Act, section 10 of which, in so far as the same is applicable to the present case, defines the term ‘public utility’ as meaning and including every corporation which ‘May own, control, operate, or manage, within the State, directly or indirectly, for public use, any plant, equipment or property used or to be used for or in connection with the transportation of persons or property * * *.’ Transportation of persons includes ‘any service in connection with the receipt, carriage and delivery of the person transported and...