Shellabarger Elevator Co. v. Illinois Cent. R. Co.

• Decision Date: 06 June 1917
• Docket Number: No. 10856.,10856.
• Citation: 116 N.E. 170,278 Ill. 333
• Parties: SHELLABARGER ELEVATOR CO. v. ILLINOIS CENT. R. CO.
• Court: Illinois Supreme Court

278 Ill. 333

116 N.E. 170

SHELLABARGER ELEVATOR CO.

v.ILLINOIS CENT. R. CO.

No. 10856.

Supreme Court of Illinois.

April 19, 1917.

Petition for Rehearing Stricken June 6, 1917.

Appeal from Circuit Court, Macon County; William K. Whitfield, Judge.

Assumpsit by the Shellabarger Elevator Company against the Illinois Central Railroad Company. Judgment for the plaintiff, and defendant appeals. Reversed and remanded.

Carter and Farmer, JJ., dissenting.Crea & Housum, Charles C. Le Forgee, Thomas W. Samuels, and George W. Black, all of Decatur (John G. Drennan, of Chicago, of counsel), for appellant.

Vail, Miller & Pogue, of Decatur, for appellee.

DUNN, J.

The Shellabarger Elevator Company recovered a judgment in the circuit court of Macon county for $37.43 in an action of assumpsit against the Illinois Central Railroad Company, which has appealed.

The action was for the loss of grain shipped in transit and the declaration consisted of seven counts, each based upon the separate shipment of a car from a station in Macon county on the defendant's railroad. Three of the cars were shipped from Forsyth to Peoria, one from Emery to Peoria, one from Argenta to Chicago, and two from Argenta to New York. The bills of lading for the last two contained a notation, ‘Stop at Chgo. for inspection & wts.’ The plaintiff claimed that there was a deficiency in the grain in each car when delivered from the amount received, varying from 250 to 850 pounds. The appeal is brought to this court directly, because it involves the constitutionality of section 1 of the ‘Act regulating the receiving, transportation and delivery of grain,’ etc. Hurd's Stat. 1916, p. 2092. The first two sections of that act are as follows:

‘Section 1. Be it enacted by the people of the state of Illinois, represented in the General Assembly, that every railroad corporation, 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 carefully 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 delivery, the full amount of such grain, without any deduction 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 neglect 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.

‘Sec. 2. At all stations 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 persons 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 capacity for the weighing of grain by carload in their cars after the same shall have been loaded. Such corporation shall carefully 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 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, including such reasonable attorney's fees as may be assessed by the justice before whom the case may be tried.’

In order to prove the weight of the grain shipped, the plaintiff, besides the bills of lading, introduced in evidence the affidavits of its agents at the respective stations of shipment as to their personal knowledge of the weight of grain delivered into each car, as authorized by section 1.

The appellant insists that the requirement that railroad companies shall weigh grain upon its delivery to them for shipment is unconstitutional because it is unreasonable and because it is class relation, relating to one kind of carrier and to one kind of commodity. The appellant argues, first, that section 1 requires the weighing of grain only when desired by the shipper. But this is not in accordance with the language of the section, which in the first sentence requires the railroad company to receive and transport grain in bulk, when desired. This limitation has no application to the second requirement of the act, that at the time of the receipt of grain for transportation the railroad company shall weigh it and issue a receipt or bill of lading for it.

Counsel for the appellant also contend that the first section applies only to shipments of less than carload lots, and their argument is based on the fact that the second section deals with shipments of grain in carloads, only, and that if the first section also refers to shipments in carloads it covers the same subject-matter as the second section and the second is wholly unnecessary. The argument assumes that if the first section applies to carload lots it requires the railroad company to install at every station where it receives grain, scales of sufficient capacity to weigh carloads of grain. But the two sections of the act are not based on any such assumption. The first section does not attempt to direct the kind or capacity of scales which shall be installed. It merely requires that the grain shall be weighed-not that it shall all be weighed at one draft. It no doubt assumes that at smaller stations where grain is not shipped in large quantities scales of sufficient capacity to weigh carloads are not necessary and that the grain might be weighed on other scales, but in cases where shipments for a year have amounted to as much as 50,000 bushelsit is assumed that the public convenience reasonably requires the weighing of the grain in carloads, and for that reason section 2 was passed, requiring the installation of such scales upon the request of the shippers of the greater part of the grain.

[3] It is contended that it is unreasonable to require railroad companies to maintain scales for weighing grain at every station where grain is received for shipment. Sections 4 and 6 of article 13 of the Constitution are a sufficient answer to this contention as well as to the contention that section 1 is class legislation. Those sections are as follows:

‘Sec. 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.’

‘Sec. 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 construed so as to protect producers and shippers. And the enumeration 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.’

When the Constitution provides that railroad companies and common carriers...