People v. the Chicago & Alton R.R. Co..

• Decision Date: 30 September 1870
• Citation: 8 Am.Rep. 631,55 Ill. 95,1870 WL 6384
• Court: Illinois Supreme Court
• Parties: THE PEOPLE OF THE STATE OF ILLINOIS, ex rel.EDWARD HEMPSTEAD et al.v.THE CHICAGO & ALTON RAILROAD COMPANY.

55 Ill. 95

1870 WL 6384 (Ill.)

8 Am.Rep. 631

THE PEOPLE OF THE STATE OF ILLINOIS, ex rel.EDWARD HEMPSTEAD et al.

v.THE CHICAGO & ALTON RAILROAD COMPANY.

Supreme Court of Illinois.

September Term, 1870.

OPINION TEXT STARTS HERE

This was an application, in the name of the People, on the relation of Edward Hempstead and Calvin T. Wheeler, for a writ of mandamus, to compel the Chicago & Alton Railroad Company to receive, at one of the stations upon the line of their road, a quantity of grain in bulk, to be delivered by the company at the elevator of the relators, in the city of Chicago. The company had refused to receive the grain for transportation, because it was consigned to that elevator. The reasons for such refusal are set forth in their return to the alternative writ, and will be found in the opinion of the court.

Messrs. GOUDY & CHANDLER and Messrs. KING, SCOTT & PAYSON, for the relators.

The duty of the Chicago & Alton Railroad Company in the premises, and the right to recover damages at law, or inflict the penalty prescribed by the statute, was settled by this court at the last term. Vincent et al. v. The C. & A. R. R. Co. 49 Ill. 33.

The railroad company will be compelled by mandamus to perform its corporate duties, and to receive and deliver all goods as directed.

“No better general rule can be laid down upon this subject than that where the charter of a corporation, or the general statute in force and applicable to the subject, imposes a specific duty, either in terms, or by fair or reasonable construction and implication, and there is no other specific or adequate remedy, the writ of mandamus will be awarded.” 2 Redfield on Railways, 279.

A mandamus has been awarded to compel a railroad company to run its cars to a particular point, and there to receive and discharge passengers. State v. Hartf. & N. H. R. 29 Conn. 538; People v. The Albany & Vt. R. 24 N. Y. 627.

It has been ordered to compel a turnpike company to fence its road. Reg. v. Trustees Luton Roads, 1 Q. B. 860. To restore a highway to its former width. Reg. v. Birming. & Glou. R. 2 Rail. C. 694. To establish a uniform rate of tolls. Clarke v. L. & N. Union Canal, 6 Q. B. 898. To build a bridge. Cam. & Som. v. Charlestown R. 7 Met. 70. To reinstate its road after the rails have been taken up. Rex v. Severn & Wye R. 2 B. & A. 646. To bridge a private way. Habersham v. Sav. Canal, 26 Geo. 283.

A mandamus was applied for to compel a railroad company to receive the goods of the relator, and only refused upon the ground that the company was not, by its charter and custom, carriers of that kind of goods. Ex parte Robbins, 7 Dowl. P. C. 566; 2 Shelford on Railways, 846.

The law is discussed, and many cases referred to in Moses on Mandamus, 155, 168, 171, 176; 2 Redfield on Rail. 257, 275, 294.

Mr. A. W. CHURCH, Mr. J. H. HOWE and Mr. GEORGE C. CAMPBELL, for the respondents.

The relators, in order to entitle themselves to the issue of the writ, must show a clear and indisputable legal right to have the thing sought by it done, and in the manner and by the person or body sought to be coerced, and the writ must be effectual as a remedy, if enforced, and it must be in the power of the party, and his duty, also, to do the act required by the writ. The People v. Forquer, Breese, 104; The People v. Gilmer, 5 Gilm. 242; Canal Trustees v. The People, 12 Ill. 248; The People v. Hatch, 33 Ill. 140.

It can not be claimed that the relators, at common law, are entitled to have the respondents' cars delivered at their elevator, because, while the elevator is connected with respondents' road by side or switch tracks, yet it is situated beyond the terminus of their road, and they have never acquired the right to use such side or switch tracks, and can not properly be compelled to acquire that right. Vincent et al. v. Chi. & Alton R. R. Co. 49 Ill. 33; Porter v. Chi. & R. I. R. R. Co. 20 Ill. 410; 1 Redfield on Railways, 66.

If relators have no common law rights to be enforced by the issue of this writ, they must show some statutory right, the infringement of which requires the interference of this court, and must rely on the statute of the State of Illinois, approved March 11, A. D. 1869, and here we object to the issuance of the writ to enforce the rights claimed under this act, because,

First. The statute itself has provided a specific and adequate remedy for an infringement of its provisions. The penalty imposed by the statute is so heavy that no corporation could afford to violate the provisions of the act if that penalty were enforced against it. See act March 11, A. D. 1869.

Second. Where a new right, or the means of acquiring it, is conferred by a statute, and an adequate remedy for its invasion is given by the same statute, parties injured are confined to the statutory redress. Smith v. Lockwood, 13 Barb. 217; Hare v. Steamer Hamburg, 2 Clarke, Iowa, 460; Dudley v. Mayhew, 3 Comst. 15; Miller v. Taylor, 4 Burrows, 2305; Crosby v. Bennett, 7 Met. 17; Craig v. Butler, 9 Mich. 21; Thurston v. Prentiss, 1 Mich. 193.

Third. The act of March 11, 1869, is a violation of the chartered rights of the respondents, as granted by the legislature of the State of Illinois, and is therefore unconstitutional and void. By the acceptance of their charter, respondents entered into a contract with the people of the State of Illinois, through the legislature, to build, operate and maintain a railroad from Joliet to Chicago. They did so build a railroad, and fixed its terminus at Madison street, south of the relators' elevator. Having so fixed its terminus, and complied with their contract in that regard, they are not bound to perform the duty of common carriers beyond the terminus of their railroad, and not even the legislature can compel the respondents to carry goods beyond the terminus of the line over which they profess to be common carriers.

The statute violates the chartered rights of respondents in that it attempts to fix and prescribe the rates which the respondents must charge for doing this particular service, when, by the respondents' charter, the right was granted to respondents to fix their own tolls.

Any law which attempts to alter the duties imposed by the terms of respondents' charter, or to vary the terms of respondents' contract with the people of the State, is in repugnance to the constitution of the United States, and is therefore null and void. Brigham v. Agricultural, etc. R. R. Co. 1 Allen, 316; Hatch v. Vermont Central R. R. Co. 28 Vt. 142; Buffalo, Corning and N. Y. R. R. v. Pottle, 23 Barb. 21; Hentz v. Long Island R. R. 13 Barb. 646; Walker v. Mad River and Lake Erie R. R. 8 Ohio, 38.

The relators' elevator is located beyond the terminus of the respondents' road, and they could not obey the writ if issued, if they were forbidden so to do by the railroad companies owning the tracks in Water street, in the city of Chicago, over which the respondents' cars must pass in order to reach the elevator.

But the relators assert that, by virtue of the fourth section of an ordinance of the city of Chicago, passed August 16, 1858, under which certain railroad companies were authorized to lay down the tracks which lead from respondents' road to the elevator in question, the respondents have the right to use those tracks. That section is as follows: “SEC. 4. Said companies may associate with themselves, in the construction and use of such tracks, any and all corporations, and any railroad corporations so associated shall possess all the powers herein granted to the said Pittsburgh, Fort Wayne and Chicago, and the Chicago, St. Paul and Fond du Lac Railroad Companies, and said latter companies shall allow and permit the use of the tracks constructed under this ordinance, by any other railroad corporations, upon such terms and conditions as shall be fair and equitable, to be determined, in case of disagreement between the companies, by two disinterested and competent civil engineers, one to be selected by each party, and in case of their disagreement, a third shall be appointed by the judges of the Cook county court of common pleas, and the award and decision of said referees shall be final, conclusive and binding upon the parties.”

The court will see that the ordinance confers no such right. It merely provides that the railroad companies to whom the right to lay down tracks in West Water street is given, may associate with them in the construction and use of said tracks any other corporations, and they shall allow and permit the use of said tracks by any other railroad corporation upon terms and conditions to be agreed upon, and a manner is provided for settling those terms and conditions in case of disagreement between the parties. Relators do not allege that any agreement has ever been entered into by respondents for the use of said tracks, and respondents expressly deny, in their return, that any such agreement was ever made by them. Respondents have never exercised the option given them by the ordinance, and until they do so, they have no rights in West Water street, except such as are specially granted from time to time by the railroad companies owning the same. Before a writ of mandamus to deliver cars at the relators' elevator can be made effective, this court must compel the respondents to acquire a right they do not now possess, and as it would be out of the power of respondents, in case the Pittsburgh, Ft. Wayne and Chicago Railroad Company, or the Chicago & Northwestern Railroad Company, objected, to obey the writ, the writ ought not to issue. Ex parte Black, 1 Ohio State, 30; Turnpike Road v. Sandusky, ib. 149.

The respondents, as common carriers, are not bound to carry goods beyond the terminus of their own line. They may do so by special contract for that purpose, but the fact that the respondents have sometimes carried, by special contract, goods beyond their own line, does not entitle any one to demand that they shall perform similar service whenever h...