Pub. Utilities Comm'n ex rel. Illinois Cent. R. Co. v. Smith

• Decision Date: 21 June 1921
• Docket Number: No. 13835.,13835.
• Citation: 131 N.E. 371,298 Ill. 151
• Parties: PUBLIC UTILITIES COMMISSION ex rel. ILLINOIS CENT. R. CO. v. SMITH, Highway Com'r.
• Court: Illinois Supreme Court

298 Ill. 151

131 N.E. 371

PUBLIC UTILITIES COMMISSION ex rel. ILLINOIS CENT. R. CO.

v.SMITH, Highway Com'r.

No. 13835.

Supreme Court of Illinois.

April 21, 1921.

Rehearing Denied June 21, 1921.

Application by the Illinois Central Railroad Company to the Public Utilities Commission, for an order granting permission to build a switch track across a street. From an order of the Public Utilities Commission granting permission, Will Smith, Highway Commissioner, appealed to the circuit court, which affirmed, and the Commissioner appeals.

Judgment of the circuit court affirmed.

Appeal from Circuit Court, Sangamon County; E. S. Smith, judge.

Livingston & Whitmore, of Bloomington, for appellant.

John G. Drennan, of Chicago (Edward J. Brundage, Atty. Gen., A. D. Rodenberg, W. E. Trautmann, and Geo. B. & Geo. M. Gillespie, all of Springfield, of counsel), for appellee.

CARTER, J.

This is an appeal from the judgment of the circuit court of Sangamon county affirming an order of the Public Utilities Commission granting the right to construct a switch or spur track across the highway known as East street, in the town of Anchor, in McLean county, Illinois.

This cause has heretofore been before this court on appeal from the judgment of the circuit court of Sangamon county dismissing an appeal on the question whether an order of the Public Utilities Commission could be appealed from. Public Utilities Com. v. Thedens, 291 Ill. 184, 125 N. E. 765. In the former case we reversed the finding of the circuit court, and remanded it, with directions to that court to consider the case on the merits. Later the circuit court did consider the cause on the merits, and affirmed the decision of the commission. From this last order this appeal is taken.

The original petition was filed by the Illinois Central Railroad Company in January, 1914, praying the Public Utilities Commission to grant it permission to construct a side track across the public highway known as East street, in Anchor township, unincorporated. The petition alleged the location of the side track and that it has been partly constructed, and that the highway commissioner of Anchor township objected to the location of the same; that the elevator to which it was proposed to construct said side or spur track, when open for business, would be a public elevator having a capacity of some 60,000 bushels of grain, and that when said track was constructed grain could be loaded into cars with great expedition from the elevator; that the elevator is located several hundred feet from any track now at Anchor station, and that grain has to be hauled in wagons from the elevator to the station for loading; that there is a great public demand for grain, and for facilities for handling it, and that the method of carrying and loading grain from the elevator to the railroad delays the movement of the grain and the use of cars for that purpose at the station. Hans Thedens, highway commissioner of Anchor township, who was made a party to this proceeding, filed an answer denying that the building referred to was a public elevator, but averring that it was only a large corncrib, and further alleged that the car shortage would not to any extent be relieved by the construction of a switch track to the elevator; that without crossing the highway the elevator could be approached by a switch on the land of D. B. Stewart, who was made a party to the proceedings, and who owned most of the farm land in that vicinity. He further answered setting out the proceedings in an injunction suit in the circuit court of McLean county brought by the highway commissioners against Stewart to restrain him from constructing a side track across the highway (Town of Anchor v. Stewart, 270 Ill. 57, 110 N. E. 385), and the answers relied on in this last case, as an estoppel to these proceedings.

The evidence taken on the hearing before the Public Utilities Commission shows that Stewart owns a large farm surrounding Anchor, which annually produces about 15,000 bushels of grain; that he originally constructed the building here in question as a corncrib and a bin to store oats; that he has converted it into an elevator with a capacity of 60,000 bushels of grain, and has been taking steps to operate it, when he shall obtain facilities for loading, as a public elevator subject to supervision by the Public Utilities Commission; that it is impracticable to locate a side track to this elevator in any place except that now proposed without extensive changes in the existing side track and stock pens of the Illinois Central Railroad Company at Anchor. The evidence tends to show that the most feasible location for the side track to the elevator is that proposed in this proceeding; that the highway commissioners of Anchor township had knowledge of the location of this track, and made no objection thereto until a personal dispute arose with the stockholders and officers of the Farmers' Elevator Company, located at Anchor; that Thedens was, when these proceedings were instituted, highway commissioner, and also an officer in the Farmers' Elevator Company; that the evidence tends to show that many of the stockholders of the Farmers' Elevator Company are opposing the construction of this side track to Stewart's building, as argued by counsel for appellee, because of the fear of the competition that will result from the operation of an elevator by Stewart. The testimony offered on behalf of appellee shows, without serious contradiction, that a side track can be located across the highway at grade in such way as not to interfere with travel thereon; that it is proposed to deliver cars from the elevator across the highway with a tractor, which cannot be operated at to exceed three or four miles per hour, or with pinch bars; that the most serious objection urged by the highway commissioner is that the cars would be moved across the highway from the elevator to the railway by a tractor; that the only obstruction shown to the view of travelers upon the highway is a hedge growing on the side of the highway nearest the elevator, which the highway commissioner testified afforded some obstruction, and which other witnesses testified would not materially obstruct the view. The testimony of Stewart was to the effect that if requested by the commission he would cut down the hedge so that the view on the highway would be wholly unobstructed at this point. The evidence tends to show that a large number of grain growers in this locality desire to use this elevator when the spur track is constructed, and that it would afford business to the Illinois Central Railroad Company, and that the side track, when constructed, would facilitate the operation of its road and be a public convenience to the community. Appellant attempted to show on the hearing before the Public Utilities Commission that it would be practicable to construct a spur track to certain land of Stewart's upon which an elevator could be constructed without crossing the highway, by extending the side track now located and connecting the main track of the railroad with the stock pens of the railroad company, while the evidence for appellee was to the effect that if the track were so constructed it would cost far more to moved the cars to and from the railroad to the elevator at that point than it would on the proposed location of the side track and Stewart's elevator.

It is argued by counsel for appellant that there is no authority to construct the side track across this highway because the record shows that it is to be constructed solely for the private use of Stewart, and also that the track cannot cross said highway without the permission of the highway commissioners being first obtained, and in any event cannot be so constructed because of this court's decision in the former injunction proceedings in Town of Anchor v. Stewart, supra. Paragraph 5 of section 20 of the Railroad and Warehouse Act (Hurd's Rev. St. 1919, c. 114) authorizes any railroad company chartered under the provisions of said act to construct a railway, and also to construct it across a public highway in the state, when the public highway is not located in an incorporated town or village, without the authority or consent of the highway commissioners. County of Cook v. Great Western Railroad Co., 119 Ill. 218, 10 N. E. 564. While this decision was rendered many years ago, the statute has not been changed in this regard since that date, except that the Public Utilities Act has provided by section 58 that the Public Utilities Commission shall have sole charge of such railway crossing over public highways. Chicago, Burlington & Quincy Railroad Co. v. Cavanagh, 278 Ill. 609, 116 N. E. 128;Chicago, Milwaukee & St. Paul Railway Co. v. Lake County, 287 Ill. 337, 122 N. E. 526. It would seem that section 58 of the Public Utilities Act (Hurd's Rev. St. 1919, c. 111a) is the only modification of the Railway Incorporation Law and the only limitation upon the charter powers of railroad companies to construct their tracks across public highways outside of incorporated cities and villages that has been made since section 20 of the Railway Act was enacted. Said section 58 does not confer any power upon railroad companies, but merely provides a limitation upon the exercise of such power, and it would seem to follow that when the petitioner filed its petition in this proceeding it was only required to aver that it proposed to construct a track across the highway in question and set forth the public reasons and necessities requiring the construction thereof. Whether it has a contract with Stewart for a division of the expense of construction or may use his services in doing the work is a matter which, under the decisions of this court, is immaterial. Prior to the enactment of the Public Utilities Act it was held more than once by this court that a railroad track, though used in connection with an industry on a line of railway,...