author: Mr. Justice Magruder

text:
    The Chicago and Alton Railroad Company v. William B. Suffern et al.

      Filed at Ottawa June 15, 1889.

    1. BahiEoads—permitting connections — constitutional requirements By section 5, article 13, of the constitution, it is made the legal duty of railroad companies to permit connections to be made with their tracks,, so that any public warehouse, coal bank or coal yard may be reached by the cars on their roads. The command to allow such connection is imperative.
    2. Same—side-track connections—with coal mine—severing the connection—rights and remedy of owner. Where a railway company has permitted the owner of a coal mine to build a side-track connecting its-main track with the mine, and continues for years to furnish cars to haul coal from the mine over its line, such side-track must be considered as a part of its line; and if it disconnects such side-track, it may, by mandamus, be compelled to restore such connection.
    3. In 1879 a railway company allowed the owners of a coal mine to build a switch from its main track to the mine, and to use the same for eight years in shipping coal from their mine, when, without right or authority, it cut the switch loose from its track, so that its cars could not reach such mine, and thereby refused any longer to grant the permission required by the constitution: Held, that the company was guilty of the violation of a public duty, and that mandamus would lie to compel it to restore such connections with the switch, and to furnish cars on the switch for the shipping of coal from the mine, the same as before the severance.
    4. In such case it may be that the railway company was originally vested with such discretionary power as to authorize it to direct in what particular manner the connection should be made with its main track; but the discretion of the company in this respect was exhausted after the completion of the switch, and its use, without objection, for a number of years.
    5. When the constitution enjoins it as a duty upon a railroad company to permit a connection between its tracks and any coal mine, tho right is impliedly conferred upon the owner of such coal mine to call upon the company to grant such permission, and to continue it when once granted.
    6. Same—connections with coal mines—in the case of several railroads. Where there are several railroads passing near a coal mine, the same constitutional obligation rests upon all of them to permit connections with their several tracks. Under such circumstances, a common track to be used by all the roads for receiving coal into their cars becomes a necessity, and the owner of the mine will not be compelled to have a separate coal chute or a separate entrance to his mine for the switch of each railroad company.
    7. A railway company allowed the owners of a coal mine to connect their mine with its track by means of a switch, a part of which was on the company’s right of way and a part on the land of the owners of the mine. After some years the mine owners allowed another railway company to connect a switch from its tracks with the mine, using a small part of the other switch, so that the only point where the two switches were joined was in the track upon the weighing scales near the coal bank, under the coal chute. The cars w¿re shoved upon and off the scales from and to the respective switcl/es by hand, only: Held, that such a joint use of the common track upon the weighing scales, for the purpose of loading cars and pushing them upon the several switches, could not injure the first named railway company, or justify it in severing the connection with its track.
    8. In such case, the fact the second railway company might shove its cars upon the first company’s track, or that the manager of the first company thought the joint use of the switch at the weighing scales would be unsafe, would not justify the latter company in disconnecting the switch from its main tracks, and in refusing to furnish cars at the coal mine. If such joint use is unsafe, the facts making it unsafe should be averred in the pleading attempting to justify the severance.
    9. Same—improper use. of switch connection—remedy. Should a mine owner make an improper use of a switch or side-track to its mine, so as to injure in any way the railway company allowing the connection, the courts will furnish the company a remedy for the wrong. But this will not author'ze the company to take the law into its own hands, and refuse to do what the constitution requires it to do,—or, in other words, to cut off the connections of such switch with its tracks.
    10. Same—discrimination—as between individuals—duty to afford facilities to all. A railway company can not lawfully make any injurious or arbitrary discrimination between individuals in its dealings with the public. As railway companies must deliver grain to all el evaiors upon the lines of their roads, or connected therewith by side-tracks, so, also, must they receive shipments of coal from all coal mines on the lines of their road, or connected therewith by side-tracks.
    11. So a railroad company will not be justified in refusing to permit the owners of a coal mine to ship coal over its road merely because such owners also ship coal from the same mine over the road of another company. A railroad company has no right to refuse to carry freight unless it has a monopoly. It is for the interest of the public that there shall be full and fair competition between railroad companies operating in this State.
    12. Mandamus—at whose instance. A private person may apply for a mandamus to enforce a public duty not due to the government as such, without the intervention of the government law officer.
    13. Same—prerequisites. To entitle a party to the writ of mandamus, the party applying for it must show a clear legal right to have the thing which is asked for, done, and it must be the clear legal duty of the party sought to be coerced, to do the thing he is called upon to do.
    14. Same—pleading and practice. Under our present practice, the answer or plea to the petition for mandamus takes the place of the return to the alternative writ under the former practice, The respondent must deny the facts alleged in the petition on which the claim of the relator is founded, or set up other facts sufficient, in Jaw, to defeat such claim, stating these facts positively and distinctly. - All the material facts all eged in the petition, not denied by the pleadings of the respondent, must be taken as true.
    Writ of Error to the Appellate Court for the First District; —heard in that court on appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.

      Mr. William Brown, for the plaintiff in error:
    The managing officer having determined that the joint use of the switch was unsafe to passengers, employes and property, it was the duty of plaintiff in error to immediately avoid the danger by severing the conneclion with its tracks.
    The performance of specific acts will be compelled by mandamus only when the duty to discharge them is clear and well-defined,—when no element of discretion is involved. People v. Dulaney, 96 Ill. 503; State v. Turnpike Co. 16 Ohio St. 308; High on Ex. Legal Rem. secs. 25, 321; State v. Howard County Court, 39 Mo. 375.
    The principle is well established, that where it is sought by mandamus to coerce the performance of a particular act, the party applying must show, not only the clear legal right to have the thing done, but he must show affirmatively that the corporation has the power, and that it is its duty, to do the act in the manner sought. Tappan on Mandamus, 11; People v. Hatch, 33 Ill. 69; Village of Hyde Park v. Thatcher, 13 Braw. 613; Commissioners v. People, 66 Ill. 339,
    Where the duty is not specific, but general, and its performance as such involves the exercise of judgment and discretion, the writ will not lie. This is elementary law. Commissioners v. People, 19 Bradw. 253; Tappan on Mandamus, 64, 282; St.Clair County v. People, 85 Ill. 396; School Inspectors v. People, 20 id. 525; Hildrath v. Heath, 1 Bradw. 83; Kelly v. Chicago, 62 Ill. 279; People v. Williams, 55 id. 178; High on Ex. Legal Rem. see. 124; Swann v. Gray, 44 Miss. 392; Mayor v. Rainwater, 47 id. 547; People v. Metzger, 47 Cal. 524; People v. Board of Supervisors, 84 Ill. 303; Decatur v. Paulding, 14 Pet. 499; United States v. Guthrie, 17 How. 284; United, States v. Commonwealth, 5 Wall. 563; Litchfield v. Register, 9 id. 569; United States v. Lamar, 116 U. S. 423.
    The construction and maintenance of switches and the place of location are necessarily left to the sound discretion of the company. 1 Rohrer on Railroads, 490; Railroad Co. v. Speers, 36 Pa. St. 325.
    Mr. John M. Hamilton, and Mr. Charles C. Gilbert, Jr., for the defendants in error:
    The constitution and statute give no discretion as to the allowing of connections. That is a clear legal duty, enforceable by mandamus. Vincent v. Railroad Co. 49 Ill. 33; People v. Railroad Co. 55 id. 95; Railway Co. v. People, 56 id. 367; Hoyt v. Railroad Co. 93 id. 609; People v. Railroad Co. 28 Hun, 549; Abbott v. Railroad Co. 80 N. Y. 31; State v. Railroad Co. 29 Conn. 538.
    Freight must be received by a railroad company according to its usage. 68 Am. Dec. 875.
    By its own voluntary act the company established relator’s coal shaft upon the side-track, at a “place” where it could receive coal, to be transported as freight. (Rev. Stat. chap. 114, sec. 22.) The company is bound to receive coal as freight there, and restore the connection of this track, and furnish cars thereon. When the remedy relates to a private right, the person interested in having the right enforced must become the relator. 11 Ill. 202.
    The relator’s right to the writ must clearly appear. 86 Ill. 613. 3
    The writ lies to compel a common carrier to deliver grain at any elevator on its line. Railway Co. v. People, 56 Ill. 365.
    The writ has been granted to compel a railroad company to build a bridge. (Railroad Co. v. Railroad Co. 7 Md. 70.) To re-instate its road after the rails have been taken up. (Rex v. Railroad Co. 2 B. & A. 646.) To receive merchandise for shipment. (Ex parte Robins, 7 D. & P. C. 566; 2 Shelford on Railways, 848.) To restore an abandoned station. (State v. Railroad Co. 37 Conn. 165.) To furnish and maintain stations for passengers and freight at all proper points on its line. State v. Railroad Co. 17 Neb. 647; Munn v. Illi

      mois, 94 U. S. 113; State v. Telegraph Co. 17 Neb. 126; Messenger v. Railroad Co. 36 N. J. 407.
    Duties and obligations imposed by statute are always enforced by mandamus, unless some other mode is prescribed by statute, (2 Bedfield on Bailways, 276, 277,) and, in a word, to do whatever is required by law. 1 Bedfield on Bailways, -278, 279; 6 Bacon’s Abridgment, 428.
    The law orders these parties to perform the duty if they build the road. Regina v. Trustees, 1 Q. B. 680.
    When a person desires to be placed in the possession of a right illegally and unjustly withheld from him, and not damages for the injury done him, the writ of mandamus is a proper remedy to give the thing itself, the withholding of which constitutes the injury complained of. Railroad Co. v. Wisdom, 5 Heisk. 125; Moses on Mandamus, 14.
    Private persons may, without the intervention of the government law officers, move for a mandamus to enforce a public duty not due the government as such. This is true in all cases where the defendant owes a duty in the performance of which the prosecutor has a peculiar interest. Railroad Co. v. Hall, 91 U. S. 343; Regina v. Railroad Co. 2 B. & A. 646.
    The writ should be to re-instate and lay down again. Regina v. Railroad Co. 2 B. & A. 652.
    To authorize the issuing of a writ, it is not necessary to ■show a positive refusal. It is sufficient to show a manifest intention not to perform. 33 N. J. 110.
    It is no sufficient excuse to say that respondent’s road is no longer necessary for the shipment of complainant’s coal. Bedfield on Law of Railways, 648; Railroad Co. v. Hoyt, 1 Bradw. 385.
   Mr. Justice Magruder

delivered the opinion of the Court:

This is a petition for a mandamus, filed by Suffern Bros., the defendants in error, against the Chicago and Alton Bailiroad Company, the plaintiff in error, to compel the Company to restore a switch or side-track connection between its main, track and the coal mine of Suffern Bros., and to furnish cars-for the transportation of coal from the mine. The Circuit. Court awarded the writ, and its judgment has been affirmed: by the Appellate Court, from which the ease is brought hereby writ of error.

The coal mine is situated a short distance west of the right, of way of the company, which, at this point, is one hundred feet wide and runs from the northeast to the southwest. The-side track was built in 1879 under a contract then made between the company and Suffern Bros. The cost of it was paid by Suffern Bros, at the rate of $1.00 per foot, amounting to-$793.00. It was constructed with the consent of the company and under the supervision of the company’s servants. It is. partly upon the railroad right of way and partly upon the land of the defendants in error. It starts from the main track at, a point northeast of the coal mine, and connects again with the track at a point southwest of the mine, diverging to the-westward in its course between these two points, so as to pass over the land of the relators near the coal bank and under the-coal chute attached to their mine. The plaintiff in error furnished them with cars and hauled coal for them from their coal shaft over this switch to various places on the main line,, to which shipments were made, for eight years from 1880 to>-1887 inclusive.

On September 10,1887, plaintiff in error, the respondent Lathe court below, severed the connection between the switch 1 and the main track by taking out the frogs and connections., at both ends of the side track, and has ever since refused to-restore such connection, or to furnish ears,'although called upon by the relators to do so.

Section 5 of article 13 of the constitution of this State» provides as follows: “and all railroad companies shall permit connections to be made with their track, so that any such consignee (of grain) and any public warehouse, coal bank or coal yard, may be reached by the cars on said railroad.” If the respondent had no right or authority to remove the connection, it can be compelled by mandamus to restore it under' the constitutional provision thus quoted.

Two rules in regard to the issuance of a writ of mandamus are well settled by all the authorities upon the subject. First, the party applying for it must show a clear legal right to have-the thing, which is asked for, done. Second, it must be the-clear legal duty of the party, sought to be coerced, to do the. thing he is called upon to do. (Commissioners, etc. v. The People ex rel. 66 Ill. 339; The People v. C. & A. R. R. Co. 55 id. 95.)

The constitution says, that the respondent “shall permit” its-track to be connected with the coal bank, so that the latter-may be reached by the cars on its road. The command to it to permit such connection is absolute and imperative. Its-legal duty in the premises is so plain that it cannot be questioned. In 1879 and for eight years thereafter it performed its duty by allowing the switch to be connected with its main-. track, and to be used by the relators in shipping coal from their mine. If in 1887 it cut the switch loose from its track without right or authority, it thereby refused any longer tc : grant a permission which the constitution commanded it to 1 grant, and was guilty of the violation of a public duty which the organic law of the State expressly imposed upon it. That mandamus will lie in such a ease, there can be no question.

When the side track was first laid, the respondent may have-had the right to say how it should be laid. It may have then been vested with such discretionary power, as that it was authorized to direct in what particular manner the connection should be made with its main track. But its discretion in this regard was exhausted after the completion of the switch, and its use without objection for a number of years. In the late case of The People ex rel. v. L. & N. R. R. Co. 120 Ill. 48, we awarded a mandamus to compel a railroad company tcstop its trains at a depot in McLeansboro. It was there held, that the fixing of the terminal point of its road in a town or city was within the discretion of the railway company, but that fGe location when once fixed could not afterwards be changed by the company,"And that its discretion in the matter had been fully and finally exercised when it erected a'depot in the town, built tracks to it and stopped its trains there for nearly thirteen years.

The legal right of the relators to have the connection of the switch restored, if it was wrongfully removed, follows as a necessary corollary from the legal obligation of the respondent to make such restoration. When the constitution enjoins it as a duty upon the railroad company to permit a cohnection between its track and any coal mine, it impliedly confers upon the owner of such coal mine the right to call upon the company to grant such permission, and to continue it when once granted.

The doctrine in this country -is, that a private person may apply for a mandamus to enforce a public duty, not due to the .government as such, without the intervention of the government law officer. [The County of Pike v. The People, 11 Ill. 202; City of Ottawa v. The People, 48 id. 233; Union Pacific R. R. Co. v. Hall et al. 91 U. S. 343).

The question next to be considered is, by what right or authority respondent has assumed to disconnect from its track the switch running to the mine of the relators, and to deprive them thereby of all facilities for shipping coal in its ears and over its road.

The Chicago, Santa Fe and California R. R. Co. runs west of the coal mine, and its right of Avay is nearly parallel with that of plaintiff in error. About September 1, 188.7, the Santa Fe R. R. Co. constructed a switch from its main track to the mine of the relators, and received some shipments of coal over its line from the coal mine by means of such switch. This new connection betAveen the mine and the Santa Fe road has given rise to all the trouble between the relators and the respondent.

The pleadings are voluminous and complicated. 1 The respondent answered the petition. The relators filed replications to the answer. The respondent filed two rejoinders to the replications. The relators demurred to the rejoinders. The trial court sustained the demurrer, and the plaintiff in errqr electing to stand by its rejoinders, a judgment was rendered awarding the writ. We do not deem it necessary to pass upon the various objections made by each party to the pleadings of the other, or to determine the comparative merits of the pleadings upon both sides. It will be sufficient to refer to such statements therein as we consider material to the decision of the case.

The relators aver, that the Santa F^witeh does not cross or interfere with the main track of the ^respondent, or with^ the switch built from respondent’s track ' b the- mine, except that, in connecting with both roads, empty coal cars from the separate switch of each railroad are pushed by hand by the servants of relators upon the trackebn the weighing scales near the coal bank under the coal chute attached to the mine, and, after being loaded and weighed, are pushed off said scales by hand, and delivered upon the separate switches of the two railroads away from and without any interference with each other; and relators further aver that this was the practice when respondent’s switch was the only one connected with the mine, and that neither company runs, or is permitted to run, its engines or ears over said scales, or over the switch of the other company, but that the cars at that point are and always have been handled by hand.

The respondent avers, that the relators permitted the Santa Fe company, without the consent of respondent, to connect with and jointly usé, upon the property of the relators, the switch built from respondent’s road, whereby the Santa Fe company “‘would be enabled to transfer its cars over the said switch to and upon the main tracks of defendant,” and that, in the judgment of respondent’s general manager, such joint use would not be safe or prudent, “wherefore defendant did remove the frogs, ” etc.

The respondent admits in its pleadings, that the only point where the two switches connect is upon the land of the relators, and not upon its own right of way. Under our practice, the answer or plea to the petition for mandamus takes the place of the return to the alternative writ. The respondent must deny the facts alleged in the petition, on which the claim of the relator is founded, or set up other facts sufficient in law to defeat such claim, stating these facts positively and distinctly. (Moses on Mandamus, page 210). Every intendment is made against returns which do not answer the important facts. (The People ex rel. Brewster et al. v. Kilduff, 15 Ill. 492; The People ex rel. v. Ohio Grove Town, 51 id. 191). Nowhere in its pleadings does the respondent deny, that the only point, where the two switches were joined, was in the track upon the weighing scales near the coal bank under the coal chute, or that cars were shoved upon and off the scales from and to the respective switches by hand, and not otherwise. These allegations in the pleadings of the relators must, therefore, be assumed- to be true. It is difficult to understand how such a joint use, as is here described, of a common track upon the weighing scales of the relators for the purpose of loading cars with coal, and then pushing them by hand upon the respective switches of the two roads, could in any way injure the plaintiff in error, or justify its severance of the connection with its track.

There was no danger to the servants or property of the respondent. The cars were shoved upon and from the scales by the servants of the relators. It is not sufficient to aver that the Santa Fe cars might he shoved upon respondent’s track. It is not alleged that any Santa Fe cars were ever pushed upon its main track, or upon its right of way, or upon the Switch leading to its track except at the common point of juncture above indicated.

Counsel for plaintiff in error says, that its manager, in the exercise of his discretion, determined that such joint use and occupation, as are above mentioned, were unsafe and imprudent, and for that reason that it had a right to disconnect the side track, and. that it cannot be compelled by mandamus to 1 do what depends upon the exercise of discretion. It is neces-' sary to go further than to state that the manager thought the joint use to be unsafe. Facts must be set up showing wherein' such use was unsafe. No such facts are averred. What the plaintiff in error is called upon to do is to permit a connection between its track and the coal mine. It has no discretion in the performance of this duty. By the command of the con- ■ stitution it must permit the connection. If the owner of the mine makes an improper use of the switch or sidetrack, so as to injure plaintiff in error in any way, the courts will furnish it a remedy for the wrong suffered. But it has no right to take the law into its own hands and refuse to do what the constitution requires it to do.

The Santa Fe Bailroad Company is also obliged to permit its track to be connected with the mine of the relators. If there were several other railroads passing near the mine, the same constitutional obligation would rest upon each. Under such circumstances, a common track to be. used by all the roads for receiving coal into their cars would become a necessity. The owner of the mine would not be compelled to have a separate coal chute, or a separate entrance to his mine for the switch of each railroad company. We have held in a number of cases, that a railroad company is bound to deliver grain at any elevator or warehouse, to which such grain may be consigned, along the line of its road or connected with its main track by a side track, which it had permitted to be laid down. (Vincent et al. v. C. & A. R. R. Co. 49 Ill. 33; People v. C. & A. R. R. Co. 55 id. 95; C. & N. W. R. R. Co. v. People, 56 id. 365; Hoyt v. C. B. & Q. R. R. Co. 93 id. 601). Switches, branching off from the main tracks of a number of roads, frequently connect with one or two tracks under the archway of an elevator, where grain is loaded into or unloaded from the cars of all the roads. Such common tracks are used by all the companies delivering or receiving grain at the elevator.. Would- Dne of these companies be justified in disconnecting the switch running from its track, because the owner of the elevator permitted some other company to use the common track under the archway?

As plaintiff in error permitted the side track to be built connecting its main track with the mine, and has continued for years to furnish cars to haul coal from the mine over its line, such side track must be considered as a part of its line, (Vincent v. G. & A. R. R. Co. supra), and it has been held that a railroad company can be compelled by mandamus to operate its road as a continuous line, and to replace a part of its track which it has wrongfully taken up. (O. & M. Ry. Co. v. The People ex rel. 120 Ill. 200, and cases there cited). '

The petition in this case avers, that respondent informed the relators, that it severed the connection because relators had made use of the Santa Fe switch for the shipment of their coal, and that respondent notified the relators, that it would refuse to receive coal from their mine for shipment if relators, continued to avail themselves of the facilities of the Santa Fe road for the transportation of coal. This averment is not specifically traversed in the answer. Tapping, in his work on. Mandamus, (marg. pge. 349), says: “every distinct and material allegation, contained in the writ, must, if it be intended to contradict them, be traversed. * * * Such of the material suggestions and allegations of the writ, which are not denied or traversed by the return, are, in contemplation of law, admitted by the defendant to be true.”

Even if it can be truthfully said, that there are general words of denial in the answer which are sufficient to negative the last mentioned averment, it otherwise appears from the pleadings, that such averment suggests the true reason for the. severance of the side track. The respondent alleges in its answer, that the relators can take all the coal from their mine by means of the Santa Fe switch, and that, since they have acquired the means of shipping coal over the Santa Fe road, they have abandoned the shipment of coal upon respondent's line. The fact, that the relators had acquired the means of shipping coal over the Santa Fe road by means of a new switch connection therewith, is thus admitted by the answer to be the cause of the alleged abandonment of shipments over the respondent’s road. But it clearly appears that the abandonment of such shipments was not voluntary but forced. Eespondent compelled the relators to abandon its line because it took up the frogs and disconnected the sidetrack. The allegations in the pleadings of the relators, that, when the switch was severed, they were shipping about 125 car loads of coal per month over the Chicago & Alton road, and had contracts at that time for the delivery of coal to persons along the line of that road, and were unable to comply with their contracts by reason of such severance, and up to that time had only shipped three car loads of coal over the Santa Fe road, and were only obliged to abandon their shipments over respondent’s road because of the respondent’s act in severing the side track from the main track, are nowhere traversed either by a general or special denial.

It follows that, according to the respondent’s own averments, it removed the connection with the mine of the relators, because the relators chose to make some shipments of coal over the Santa Fe line. In this view the conduct of the plaintiff in error is wholly inexcusable.

One railroad company is not justified in refusing to permit the owners of a coal mine to ship coal over its road, because such owners also ship coal from the same mine over the road of another railroad company. It is the duty of a railroad company to carry any freight that is offered provided its legal charges for such carriage are paid. It cannot take the posiiion, that it will not carry coal from a mine upon the line of its road unless it is allowed to carry all the coal from such mine. It is foi the interest of the public that there should be full and fair competition between the different railroad companies operating their lines in the State. Serious injury will result to the business interests of the country, if shippers can be compelled by arbitrary measures to patronize one railroad to the exclusion of all others. No monopolies would be more odious than those which would result from the adoption of such a policy.

It is admitted that a side track connects the main track of plaintiff in error with the coal mine of the Streator and Wilmington Star Coal Company, which is situated a short distance north west of the mine of the defendants in error, and that plaintiff in error furnishes cars to said Star Coal Company and hauls coal for it from its mine. Thus one coal mine is aided in the prosecution of its business, while another is forced io suffer loss for want of the necessary means of transportation.

In Vincent v. C. & A. R. R. Co. supra, and Chi. & N. W. Rlw'y Co. v. The People, supra, certain railroad companies ' claimed the right to deliver all the grain transported over their lines to particular elevators in the city of Chicago which they favored, and to refuse to deliver any grain to other elevators which they did not favor. In the Vincent ease we said: The ■‘‘evident object (of the Legislature) was to prevent the growth •of those injurious monopolies in the grain trade, which would almost necessarily spring from the toleration of such a practice as that which these appellants seek to enjoin. To do this, it was necessary to secure to every warehouseman, whose warehouse was connected by a side track with a railway, the right to a delivery of all grain consigned to him. * * * It (the railroad company) must deal fairly by the public, and this it would not be doing if allowed so to discriminate as to build up the business of one person to the injury of another in the same trade.”

In the Chi. & N. W. Rlw’y case, after stating, that contracts with railroad companies to deliver all the grain hauled by them to particular warehouses, or all the lumber hauled by them to particular lumber yards, etc., would enable such companies to “subject the business of the State almost wholly to their control, as a means of their own emolument,” we said: “How injurious to the public would be the creation of such a system of organized monopolies in the most important articles of commerce, claiming existence under a perpetual charter from the State, and, by the sacredness of such charter, claiming also to set the legislative will itself at defiance, it is hardly worth while to speculate. It would be difficult to exaggerate the evil of which such a system would be the cause, when fully developed, and managed by unscrupulous hands. ® * * The principle that a railroad company can make no injurious or arbitrary discrimination between individuals in its dealings with the public, not only commends itself to our reason and sense of justice, but is sustained by adjudged cases.”

The language thus quoted applies to the case in hand. It was the evident design of the constitutional provision above quoted to compel the railroads to furnish the coal mines in the State with all necessary facilities for the shipment and transportation of coal. As the railroad companies must deliver grain to all elevators upon the lines of their roads, or connected therewith by side tracks, so also must they receive shipments of coal from all coal mines on the lines of their roads or connected therewith by side tracks.

The mandamus was properly issued. The judgment of the Appellate Court is affirmed.

Judgment affirmed.

Mr. Justice Craig, dissenting:

As I do not agree with the majority of the court in the decision of this case, I have thought it proper to state my views.

This was a petition for mandamus, brought by defendants in error, who operate a coal mine in Grundy county, to compel the Chicago and Alton Railroad Company to restore a certain switch connection between its main track and the coal shaft of defendants in error, and also to compel the railroad company to furnish ears on the switch for the use of defendants in error in the shipment of their coal. No evidence was introduced in this case. All the questions involved arise on the-pleadings. It appears from the pleadings, that the side-track or switch was constructed in 1879 by the railroad company, from its main track to the coal mine of defendants in error, partly on the right of way,of the company, and partly on land qf defendants in error which joins the right of way. Defendants in error paid, on account of the construction of the switch, $793. From the time the switch was constructed until the-month of September, 1887, the switch was used solely by the railroad company, the company placing empty cars upon it, which defendants in error would fill with coal, and then the company would transport the coal over its line of road to its proper destination. In September, 1887, the Chicago, Santa Fe and California Railroad Company, at the instance and request of defendants in error, built a side-track from its main line into this switch, which, of course, gave it the joint use of the switch which the Alton road had constructed. When the Alton railroad company learned the fact, it removed the frogs-which connected the main track with the switch, and thus the connection between the main line and coal mine was broken, and this action was brought to restore the connection, as stated before.

The railroad company put in an answer to the petition, in which some of the facts alleged were admitted and others denied. Among other things, the answer contained the following : “Respondent admits that about the first of September the Chicago, Santa Fe and California Railroad Company constructed a switch to said coal mine, and respondent avers that it did so by the procurement and consent of petitioners, and petitioners, without the knowledge and consent of respondent, connected said switch of said Chicago, Santa Fe and California Railroad Company with the switch leading to the main track of this respondent, so as that the cars of the said Chicago, Santa Fe and California Railroad Company might be pushed onto the right of way and main track of respondent, without its knowledge or consent, and respondent thereupon declined to permit such connection with its main track to remain, and in the exercise of its judgment and discretion as to the safety and good policy of such connection, determined that it was unwise, unsafe and improper for it longer to permit the switch, so out of its control, to connect with its main track, and believing that such connection might in some way become dangerous to the lives and limbs of its passengers and employes, and dangerous to its property, it did disconnect its main track from such side-track by the removal of the frogs on its right of way, as was its duty and right to do.”

To the answer the petitioner filed seven replications. No. 6 contains the following: “Defendants ought not to be precluded by reason of the allegation in said answer contained, that about the first of September, 1887, the Chicago, Santa Fe and California Railroad Company constructed a switch to said coal mine, and that it did so by and with the procurement and consent of petitioners, and that petitioners, without the knowledge and consent of defendant, connected said switch of the Chicago, Santa Fe and California Railroad Company with the switch leading to the main track of defendant, without its knowledge or consent, and the defendant thereupon declined to permit such connection with its main track, and, in the exercise of its judgment as to the safety and good policy of such connection, it determined that it was unwise, unsafe and improper for it longer to permit the switch, so out of its control, to connect with its main track, etc., because they say they have the constitutional right to have their said coal bank connected with both of said railroads, so that it can be reached by cars thereon; and that in making such connection the switches of defendant’s road do not in anywise connect or interfere with each other, except that it is so arranged that empty coal cars from the separate switch of each railroad may be and are pushed by hand by petitioners, their agents and servants, upon the track on the weighing scales, near petitioners’ coal bank, under the coal chute attached to said mine, and are loaded and weighed by petitioners, and are by hand pushed off said scales and delivered upon the separate switches of said two railroads, away from and without any interference with each other; and the manner of loading and delivering said cars, with both the railroads, as aforesaid, is the same in practice as it has always been, when the switch of the defendant was alone connected with petitioners’ mine.” To the replications the defendant filed two rejoinders, to which petitioners demurred. The court sustained the demurrer, and as the defendant elected to abide by the rejoinders, judgment was entered as prayed for in the petition.

It is first claimed, that the rejoinders were good, and that the court erred in sustaining the demurrer to them. It is also insisted, that if the rejoinders were not good, then the demurrer ought to have been carried back and sustained to the replications. It will therefore be necessary to consider the replications, but in the view I take of the record, it will only be necessary to consider replication No. 6, as the real point in controversy arises under the facts alleged therein.

The last clause of section 5, of article 13, of the constitution of the State of Illinois (1870), provides as follows: “And all railroad companies shall permit connections to be made with their track, so that any such consignee, and any public warehouse, coal bank or coal yard, may be reached by the cars on said railroad.” Paragraph 84, section 22, chapter 114, of Starr & Curtis’ Statutes, provides: “Every railroad corporation in the State shall furnish, start and run cars for the transportation of such passengers and property as shall, within a reasonable time previous thereto, be ready or be offered for transportation at the several stations on its railroad, and at the junctions of other railroads, and at such stopping places as may be established for receiving and discharging way passengers and freights; and shall take, receive, transport and discharge such passengers and property at, from and to such stations, junctions and ‘places,’ on and from all trains advertised to stop at the same for passengers and freight, respectively, upon due payment or tender of payment of tolls, freight or fare legally authorized therefor, if payment shall be demanded,” etc. Defendants in error, in the argument, predicate their right to relief on the above, provisions of the constitution and statute.

I think it is plain, from the language of the constitution, that a railroad company may be required by the owner of a coal mine to permit a connection with its track, by switch or side-track, at a proper place, in order that the mine may be reached by rail and the coal may be transported by car. Indeed, the original arrangement, set out in the pleadings, under which the side-track was constructed and the connection with the main track made, and under which the side-track was operated for eight years by the constant delivery of cars and shipment of coal, was but a compliance on the part of the defendant with the mandate of the constitution. But the question here involved is not whether defendants in error, who own a mine adjacent to the track of the railroad company, have the right to require the company to permit a connection between the coal mine and the railroad track, by a side-track or switch. That right, in the argument, as I understand it, is not disputed; but the question here is, whether the company may be required to restore a switch connection which will confer the power on another railroad company to not only use the switch of the defendant, but will also enable the other company to run its cars, if it saw proper, on the main track of the defendant. When this switch or side-track was constructed by the Chicago and Alton Railroad Company, no other company had any connection with it. Thus matters remained until September, 1887, when, without the knowledge or consent of the defendant, defendants in error procured the Santa Fe railroad company to connect a switch it had constructed to the mine, with the switch of defendant, and now defendants in error claim that the defendant should be compelled to restore a switch connection which will, in effect, allow the Santa Fe railroad company to use defendant’s tracks without its consent, and without making any compensation for the right.

Section 20, of chapter 114, of the Eevised Statutes of 1874, authorizes a railroad company organized under the act, “to cross, intersect, join and unite its railway with any other railway before constructed, at any point on its route, and upon the grounds of such other railway company, with the necessary turn-outs, sidings and switches, and other conveniences in furtherance of the objects of its connections.” Under this section it may be conceded that the Santa Fe railroad company might join or intersect defendant’s side-track if the public necessity required it to do so. But this could not be done without making compensation, as the act expressly provides, if the two corporations can not agree upon the amount of compensation to be made, or the points and manner of such crossing and connection, the same shall be ascertained and determined in the manner prescribed by law. Has the Santa Fe railroad company the right to intersect the track of defendant, and thus acquire the right to use its side-track or switches, without making compensation? The statute declares otherwise ; and yet, if defendants in error can compel the respondent to restore the connection, which they are seeking to do, the Santa Fe railroad company will be at liberty to use defendant’s tracks without making compensation, in direct violation of the statute. It may be true, as set up in relators’ sixth replication, that they have the constitutional right to have their coal bank connected with both railroads; but the two railroad companies are under no obligation to use the same switch or side-track in connecting their respective roads with the mine, and the relators have no constitutional or other power to compel the defendant corporation to consent to the use of its side-track 'by another railroad company until such company has obtained the right in the mode prescribed by law. I do not think the facts set up in the sixth replication were a defense to the matters alleged in the defendant’s answer, and the demurrer interposed to the rejoinders ought to have been carried back to the .sixth replication.

As to the right of relators to have a switch connection connecting their coal mine with the railroad track of the defendant, and as to their right to be supplied with cars to transport their coal, I entertain no doubt whatever, and in a proper case they would be entitled to a mandamus; but as I understand this record, it is not a controversy between the relators and the defendant, the Chicago and Alton Bailroad Company, but the real controversy is between the two railroad companies, and the effect of granting relief to relators will be to allow the Santa Fe railroad company to use the switch of the Alton road without paying for such use. As said before, the relators procured the Santa Fe company to connect its track with the ■switch of the Alton company. This they had no right to do until compensation was made for the right, and, in my judgment, before the defendant should be compelled to restore the switch connection, relators should be required to disconnect the Santa Fe switch from defendant’s switch, and leave the two companies to adjust their rights as provided by law, before the one shall connect with the other.

Shore, C. J., and Wilkin, J., also dissenting.


source: Caselaw Access Project

author: Mr. Chief Justice Shope

license: Public Domain

text:
    The Merrimac Paper Company v. The Illinois Trust and Savings Bank et al.

      Filed at Ottawa June 15, 1889.

      1. Practice—trial by the court—preserving questions of law. If » party desires to preserve the rulings of the court trying a case without a jury, in its application of the law to the facts, he should submit to the court formal propositions of law, and except to the ruling thereon, if adverse.
    2. Appeal—reviewing the facts. Where the Appellate Court affirms a judgment in replevin, its finding as to the facts is conclusive on this-court.
    3. Assignment op error—by whom. In replevin against a bankj. described as trustee for a warehouse company, the court found the issues for the defendant, and rendered judgment in the defendant’s-favor, and awarded a writ for the return of the property to the bank, omitting to state the character in which the bank defended: Heldf that this was an error of which the plaintiff could not complain, as it could not affect its right whether the return was ordered to the nominal or beneficial plaintiff.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Mr. Charles W. Needham, for the appellant.
    Mr. E. W. Bussell, and Mr. G. Frank White, for the appellees.
   Mr. Chief Justice Shope

delivered the opinion of the Court:

This was an action of replevin, brought by appellant in the-Superior Court of Cook county, against appellees, to recover a quantity of book paper. By stipulation, a jury was waived, and the cause submitted to the court for trial. The court found the issues for the defendants, and rendered judgment accordingly, and for costs, and awarded a writ of retorno habendo in favor of the Illinois Trust and Savings Bank. On appeal to the Appellate Court for the First District this judgment was affirmed, and the plaintiff below prosecutes this-appeal from the judgment of affirmance.

We are asked to review the finding of the Appellate Court and of the Superior Court in respect of the facts and law applicable thereto. No propositions of law were asked upon either side to be held by the trial court, and, in accordance with the uniform holding of this court, we must again hold that no questions of-law are raised by this record which we can review. If the plaintiff below desired to preserve the rulings of the court in its application of the law to the facts of the ease, formal propositions of law should have been prepared and submitted, and the rulings of the court thereon, if adverse to the view of the plaintiff, could have been excepted to, and such exception preserved. This was not done, and the principal question sought to be raised by counsel is not therefore before us. The finding of the Appellate Court of the facts adversely to the plaintiff, is conclusive upon us. We are not permitted to review such finding.

There is, however, one matter assigned as error which we may properly consider:—The order of the Superior Court awarded the writ of return in favor of the Illinois Trust and Savings Bank, whereas the defendant, from which the property had been taken upon the writ of replevin, was the Blinois Trust and Savings Bank, trustee for the Union Warehouse Company, the character in which the bank defended having been omitted in the order awarding the return of the property replevied. It is sufficient to say, that this is an error in nowise prejudicing appellant, and it can not, therefore, be heard to complain.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


text:
    Supreme Lodge of Ancient Order of United Workmen et al. v. Florentina Zuhlke.

      Filed at Ottawa June 15, 1889.

    1. Pleading and evidence—under stipulation as to evidence wnder general issue. In an action of assumpsit against several branches of a benevolent society, including the order itself, upon a certificate of membership in the nature of a policy of life insurance, the defendants •filed the general issue, not verified by affidavit, and it was stipulated between the parties that the defendants might introduce proof of all matters under the plea, which they might do had the same been spe■cially pleaded: Held, that the language of the stipulation was not broad enough to cover pleas verified by affidavit and in abatement, which are required by sections 33 and 35 of the Practice act.
    2. Same—action against several—cause of action against all—of the pleadings required. In order to recover in an action ex contractu against .several, a cause of action must be established against all the defendants, even though none of them may have put their joint liability in issue by plea in abatement, or a plea in bar, verified by affidavit. In such case no recovery can be had, even in the absence of such a plea as is required by section 35 of the Practice act, if the evidence shows affirm.atively that the defendants are not liable jointly.

      3. Benefit society—expulsion of a member, as a defense against the •beneficiary—notice—insanity of member. The expulsion of a member of a benevolent society, when the tribunal had no jurisdiction for want of proper service on him, and while he is insane, so as not to be capable of giving jurisdiction by consent, is void, and is no bar to a suit by the beneficiary upon the certificate of membership, whereby the society bound itself to pay the beneficiary a certain sum of money on such member’s death.
    4. If the society relies on an expulsion of a member in his lifetime, as a defense to an action brought upon his certificate of membership in the nature of a life policy of insurance, it must prove such expulsion by its records, and the proceedings must show that such member was •duly served with notice, or that the society acquired jurisdiction of the person by consent, and proceeded according to its constitution and bylaws ; and if a voluntary appearance is relied on, it must not appear that Tie was incapable of waiving the necessaiy steps by reason of insanity.
    5. An expulsion resting on the appearance of the member without the service of notice on him of the charges, and based on his admission of their truth, when, owing to his insanity, he had not mental capacity to understand the force and effect of his acts and admissions, can not be sustained by the court as a defense to an action on a certificate of membership for the insurance money therein promised to the beneficiary.
    6. Appearance—admissions—mental capacity. Where a person is brought into court, not by service of process, but by an entry of his appearance, he must be intelligent enough to comprehend the meaning of his act; and if he admits a fact to be true, such admission can not bind him, unless he has mental capacity to understand its force and effect. This rule applies to the judgment of a benefit society in the expulsion of a member.
    7. Interest—on a benefit certificate, in the nature of a policy of life inswrance. The beneficiary of a certificate of membership in the nature of a policy of life insurance is entitled to six per cent interest on the sum agreed to be paid, from the date of notice of the death of the assured.
    8. Practice in the Supreme Court—entering the proper judgment. In an action on a policy of life insurance, the court below rendered judgment in favor of the plaintiff for the amount named in the policy, without interest. On appeal by the defendant, the appellee assigned as a cross-error the refusal to allow interest from the date of notice of the death of the assured. This court, on sustaining the cross-error assigned, rendered judgment Jor the plaintiff for the sum due, with six per cent interest.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. E. W. Clifford, Judge, presiding.
    Mr. John P. Ahrens, for the appellants:
    Appellants are not jointly liable on the beneficiary certificate sued on. If there be any liability, it is on the part of the grand lodge, only.
    In benevolent associations their by-laws and constitutions enter into and become a part of the contract, the same as if written in the certificate. Limeral v. Dubuque, 18 Iowa, 319; Walsh v. Insurance Co. 30 id. 103.
    The certificate shows that the grand lodge alone is the party liable, and hence it was not necessary to file a plea, verified by affidavit, denying joint liability. (Davison v. Hill, 1 Bradw. 70.) Neither is such a plea necessary when it appears, from the defendant’s evidence, that there is no joint liability. Garland v. Peeney, 1 Bradw. 108; Rosenberg v. Barrett, 2 id. 386.
    If Edward Zuhlke was not insane during the proceedings for his expulsion, and if the proceedings were in substantial compliance with the laws of the order, the expulsion worked a forfeiture of all claims to the beneficiary fund, and is a bar.
    Proceedings in orders of this kind, had in substantial compliance with their laws, and regular and in good faith, are final, and the merits of the proceedings can not be inquired into. Dolan v. Court Good Samaritan, 128 Mass. 437; Black and White South L. v. Vandyke, 2 Whart. 308 ; Toram v. Howard Association, 4 Pa. St. 519; Anacostee Tribe of Red Men v. Murbach, 13 Md. 91; Karcher v. Knights of Honor, 137 Mass. 368; Grosvenor v. U. S. of Believers, 118 id. 78; White v. Brownell, 2 Daly, 329; Benton v. St. George Society, 28 Mich. 261.
    The act of expulsion was like a judgment of a court of law, and even if Zuhlke were insane at the time of his trial and expulsion, a judgment against a lunatic is not void, and can not be attacked collaterally. Freeman on Judgments, sec. 152; Ordronanx on Judicial Aspect of Insanity, 288, 289 ; Cripper v. Culver, 13 Barb. 424; Stenberg v. Schoolcraft, 2 id. 153; 8 id. 552; Robertson v. Lain, 19 Wend. 650.
    Messrs. Cameron & Hughes, for the appellee:
    None of the defendants put in issue their joint liability, by a verified plea. Bev. Stat. 1874, secs. 33, 35.
    By virtue of the statutes and of the common law, as to corporations sued, the plaintiff was not required to prove, first, that defendants were corporations; or, second, that they were jointly liable in the suit; or, third, that they executed or authorized the execution of the instrument sued on. Dwight v. Newell, 15 Ill. 333.

      A judgment is void for all purposes, unless the court had jurisdiction of the person of the defendant and of the subject matter. White v. Jones, 38 Ill. 159.
    A party can not be deprived of property or other rights except by judicial decision, after being duly notified, and after reasonable time and opportunity to defend. Clark v. Lewis, 35 Ill. 421; Yates v. Milwaukee, 10 Wall. 491.
    An insane person can not give jurisdiction, even to a court of general jurisdiction, to pronounce judgment for or against him while he remains in that condition. Titcomb v. Vantyle, 84 Ill. 374; Bradford v. Abend, 89 id. 78.
    Appellee is as much entitled to the interest ($532.66) as she is to the principal ($2000.) To give her one and deny the other is to fail to do her complete justice. She is entitled to the interest claimed. Laws of 1879, p. 184, sec. 2; Insurance Co. v. Gould, 80 Ill. 388; Insurance Co. v. Robinson, 98 id. 324.
    This court has the power to enter the judgment prayed for. 2 Starr & Curtis’ Stat. p. 1838, sec. 80.
    The Supreme Court has held, over and over again, that where the court below, without a jury, entered a judgment for the wrong amount, and they could ascertain the correct amount by computation, then the Supreme Court could and would enter an original and final judgment for the correct amount. Wilmans v. Bank, 1 Gilm. 669.
   Mr. Justice Magruder

delivered the opinion of the Court:

This is an action of assumpsit brought on March 24,1885, in the Circuit Court of Cook County, by the appellee against the Supreme Lodge of the Ancient Order of United Workmen, the Grand Lodge of the Ancient Order of United Workmen of Illinois, Wicker Park Lodge No. 104 of the Ancient Order of United Workmen, and the Ancient Order of United Workmen, the appellants. The case was tried before the Circuit judge without a jury, the jury being waived by agreement. The trial resulted in a judgment in favor of the plaintiff, which has been affirmed by the Appellate Court. Appellants prosecute their further appeal to this Court.

The suit is brought upon a beneficiary certificate, dated in January, 1881, which certifies that Edward Zuhlke, the deceased husband of the appellee, “is entitled to all the rights and privileges of membership in the Ancient Order of United Workmen, and to participate in the beneficiary fund of the order to the amount of $2000.00, which sum shall, at his death, be paid to Florentina Zuhlke, his wife.” Zuhlke died on October 15,1881. The amended declaration, filed on October 28, 1885, consists of two special counts, which aver that the defendants issued, or caused to be issued, the certificate sued upon to Edward Zuhlke. All the defendants by their attorney filed the plea of the general issue. It was stipulated between the parties, that the defendants might “introduce all matter of evidence on the trial * * * under the plea of general issue, which they might do, had the same been properly specially pleaded.”

The first point made by the appellants is that they are not jointly liable on the certificate, and that it was error to enter judgment against them jointly.

Section 33 of the Practice Act provides, that “no person shall be permitted to deny on trial the execution * * * of any instrument in writing, whether sealed or not, upon which any action may have been brought, unless the person so denying the same shall, if defendant, verify his plea by affidavit.” The plea of the general issue was not verified by affidavit by the defendants or either of them. When the certificate was introduced by the plaintiff upon the trial below, the defendants made no objection to its introduction.

Section 35 of the Practice Act provides, that “in actions upon contracts, express or implied, against two or more defendants as partners or joint obligors or payors, whether so alleged or not, proof of the joint liability or partnership of the defendants * * * shall not, in the first instance, be required to entitle the plaintiff to judgment, unless such proof shall be rendered necessary by pleading in abatement, or unless the defendant shall file a plea in bar, denying the partnership or joint liability or the execution of the instrument sued upon, verified by affidavit.” In this case, the defendants-did not, either or any of them, plead in abatement, or file a plea in bar, denying their joint liability or the execution of the-certificate, verified by affidavit. The language of the stipulation is not broad enough to cover the pleas verified by affidavit and in abatement, which are required by said sections 33 and 35.

Appellants invoke the well known principle that, in order to recover in an action ex contractu, a cause of action must be established against all of the defendants, (Griffith v. Furry, 30 Ill. 251; McLean v. Griswold, 22 id. 219; Goit v. Joyce, 61 id. 489); and they claim, in view of this principle, that the provision contained in section 35 as above quoted does not prevent the defendants or either of them from questioning their joint liability without such plea in abatement or verified plea, but merely relieves the plaintiff of the common law burden of proving such joint liability in the first instance. It is,, therefore, contended, that no recovery can be had, even in the absence of such a plea as is required by said section, if the evidence shows affirmatively that defendants are not jointly liable. We think that the contention of the appellants in this regard is correct, but they had the full benefit of it upon the trial below. The trial court held as law in the decision of the case the following proposition submitted by the defendants: “That, notwithstanding there is no plea in this case denying the joint liability of the defendants, if it appears from the evidence in the case that the defendants are not jointly liable, there cannot be a finding or judgment against them jointly.” Holding the law to be as thus stated, the circuit court must have found the fact to be that defendants were jointly liable. The judgment of the Appellate Court affirming the finding of the Circuit court is conclusive upon this question of fact so far as we are concerned. After a careful examination of the constitutions of these various organizations, and of the certificate, and other documentary and oral proofs in the record, we cannot say that there is no evidence tending to establish such joint liability. The defendant corporations all seem to be parts of one general system, the Supreme Lodge being apparently an aggregation of the Grand Lodges, the Grand Lodges working under the authority of the Supreme Lodge, the subordinate Lodges, like the Wicker Park Lodge, being under the jurisdiction of the Grand Lodges, and the rights and privileges of membership in either or all of the Lodges being the same as those rights and privileges in the Ancient Order of United Workmen. We do not think the first point is well taken.

It is next urged by the appellants that no recovery can be had because Edward Zulilke was in his life time expelled from the Grand Lodge. It appears, that the deceased was taken sick with “degeneration of the brain” on June 16, 1884, and that after that date he was entitled to the benefit of the sick fund. About June 27, 1884, it was charged against him, that he had made false statements in regard to his health when he joined the Lodge in December, 1880, or January, 1881, and also that he had attempted to commit suicide on June 21,1884. Proceedings for his expulsion, based mainly upon the charge of false statements made about his health when he first became a member, were begun about the 27th of June, 1884, and resulted in his expulsion on August 15, 1884.

Upon the trial before the Circuit Court, the plaintiff introduced evidence tending to show that the deceased was insane during the proceedings for his expulsion. The defendants introduced testimony tending to show that he was sane at that time. That he was insane is a fact which is established by the judgment of the Appellate Court. But the trial court modified several of the propositions submitted to it by the defendants so as to hold that the judgment of expulsion and the proceedings therefor were no bar to a recovery, if the deceased was insane when the proceedings were conducted and the judgment was rendered. Such modification is claimed by the appellants to be error. They insist that, by reason of such expulsion, there can be no recovery in this case even if the deceased was insane during the proceedings, which resulted in expulsion.

If the tribunal, which expelled Zuhlke had no jurisdiction, then the judgment of expulsion was void. Such judgment, as presented by this record, must be regarded as a consent judgment, or a judgment by confession. In the first place, whatever jurisdiction was acquired over the person of the deceased was so acquired by his appearance, and not by the service of process or notice upon him as prescribed by the constitution of the Lodge. Section 2 of article 16 of the constitution provides for a special committee of three members to investigate the alleged offense, and to prefer charges against the accused member, if they think there are grounds therefor, and to take charge of the prosecution on the part of the Lodge. Section 3 provides that the charges so preferred “shall be read in open Lodge at the next stated meeting thereafter, and the Recorder shall immediately furnish a copy thereof under the seal of the Lodge to the member so accused, and at the same time cite said member to appear before the Lodge at the second stated meeting thereafter, when the matter will be taken up for consideration, at which time, if the charges are not withdrawn, a committee of five members shall be appointed.” Section 4 provides, that the charges shall be referred to this committee of five, and that they shall examine the party, witnesses, etc.

A record is produced, which purports to be full and complete, of the proceedings of expulsion before the Lodge, and also before the trial committee of five members. It nowhere appears, that a copy of the charges against him was furnished

to Zuhlke, or that he was cited to appear before the Lodge at the second stated meeting, or that he ever appeared before the Lodge at all. On August 1,1884, there was a meeting of the Lodge, at which the charges were preferred, and, at the same-meeting, a trial committee of five was appointed in the absence-of Zuhlke, and without any citation to him to appear, and without any notice to him of the charges. On the same day the trial committee met and resolved to hear evidence on August 5, 1884, and instructed their secretary to summon Zuhlke to appear on that day. On August 5,1884, the committee of five met and examined witnesses. Zuhlke appeared at this meeting of the committee and was questioned by them,, and then for the first time the charges were read to him. It is not shown whether he had been summoned by the secretary or not. Some testimony was also taken on August 7, but Zuhlke does not appear to have been present. At another meeting of the committee on August 14, 1884, Zuhlke was present, and the testimony was read over to him, and he was-asked some questions in regard to it. He is not shown to have been present on any other occasions than at the meetings-of the committee on the 5th and 14th days of August. The-report of the committee sustaining the charges was dated August 14, and presented to the open Lodge, and adopted on< August 15 in the absence of the accused and of his counsel. The only counsel, which the deceased had, was one Both, a saloon-keeper, who is not shown to have been present at any time except before the committee on August 14.

In the second place, the judgment of expulsion, which was nothing more than the adoption by the Lodge of the report of the committee of five, is based mainly upon the admissions of the accused as to the truth of the charges against him. On August 5, he admitted that he had had spells of sickness as far back as 1878 and 1879. On August 14 he made the same admissions, and at that time Both declined to oppose his expulsion for the alleged reason, that he had admitted the charge to be true. The committee in their report find “brother Ed Zuhlke guilty of above mentioned charges, while (which) brother Zuhlke does not dispute.”

It thus appears, that the judgment of expulsion rests upon the appearance of the accused, and upon his admissions of facts. Appearance and admissions involve the element of consent. If a man is brought into court, not by service of process, but by an entry of his appearance, he must be intelligent enough to comprehend the meaning of his act. If he admits a fact to be true, such admission cannot bind him, unless he has mental capacity enough to understand its force and effect. So far as this court is concerned, it is an established fact, that the accused entered his appearance in the expulsion proceedings and therein admitted the truth of the charges against him while he was insane. In Bradford v. Abend, 89 Ill. 78, we said: “the bill was filed in the name of the insane wife against her husband for divorce. * * * It is a matter of no consequence, who advised the filing of the bill. * * * Being insane she could give no consent to the proceedings had in the divorce ease, and hence everything that was done in her name was invalid. Consent involves an act of reason, and when one is bereft of reason it follows there can be no consent given that comes from reflection.” This language is strictly applicable to the relations of the deceased Zuhlke to the proceedings for his expulsion. Being insane he was incapable of giving that consent, upon which alone those proceedings can rest for their validity. We are of the opinion that the trial court committed no error in modifying the propositions of law, submitted to it, in the respect above indicated.

The judgment below was for'the $2000.00 named in the certificate without interest. ’ The appellee assigns as cross-error that she was allowed no interest. It is in evidence, that on October 24, 1884, appellee gave the appellants written notice of her husband’s death on October 15, 1884, and made a written demand for the payment of the $2000.00. We know of no reason why she is not entitled to interest from the date of such notice at the rate of six per cent per annum. (Knickerbocker Ins. Co. v. Gould, 80 Ill. 388; Mass. M. L. Ins. Co. v. Robinson, 98 id. 324). The judgments of the Circuit and Appellate Courts are correct as far as they go, but they should have allowed interest. The interest on $2000.00 at the above rate from October 24, 1884, to the present term of this Court is $553.33. Judgment is therefore hereby rendered in this Court in favor of the appellee for $2553.33.

Judgment affirmed and modified.


author: Mr. Justice Bailey

text:
    Ada M. Anderson v. Cyrus H. McCormick.

      Filed at Ottawa June 15, 1889.

    1. Ejectment—possession as evidence of title—and of evidence in rebuttal thereof. In ejectment, proof of possession of land by a party claiming to be the owner of the fee, is prima facie evidence of his ownership and seizin of the inheritance. Therefore it is sufficient for the plaintiff, in order to make prima faeie proof of title, to trace his title back to an immediate or remote grantor, who, at the time of his conveyance, was in possession of the land, claiming it in fee.
    2. Where the plaintiff proves possession of land in a remote grantor, to whose title he has succeeded by several mesne conveyances, the prima faeie case thus made can be overcome or rebutted only by proving a paramount title, either in the defendant or in a stranger.
    3. Same—lease to defendant from third person—whether availing as a defense. In ejectment, where the plaintiff shows prima facie title in himself, derived under a valid deed of trust, the defendant, though no party to the deed of trust and claiming no rights through any of the parties thereto, can not set up as a defense a lease to him of the land from a party not shown to have the paramount title.
    4. Tax deed—evidence required in support of it—to show outstanding title. On the trial of an action of ejectment, the defendant, for the purpose of showing an outstanding title, offered in evidence several tax deeds made to a third person, but no offer was made to prove any of the proceedings anterior to the execution of the tax deeds: Held, that such deeds were properly excluded.

      5. Pubohaseb ebom debtob—subsequent judgment and sale. Two years after a party had sold and conveyed a lot, judgment was recovered against him, under which the lot was sold and conveyed by the sheriff: Held, that the sheriff’s deed passed no title paramount to that conveyed by the defendant in the judgment.
    6. Peaotioe—placing cause on the calendar for trial. "Where a cause has once been placed upon the calendar and assigned a number, in the absence of proof that it was assigned a wrong place, or that a new calendar is in course of preparation, there will be no error in refusing a motion to strike the case from the list set for trial on a particular day, and place the same on the calendar. This court can not take judicial notice of the rules of practice in the trial courts.
    7. Same—waiver of objection to trying ease out of its order. Where a case has once been tried, and, after a new trial is granted, is set for trial a few days later, but during the same term, if the parties go into trial without objection, this will amount to a waiver of an objection that the cause was tried out of its order, or that the cause should not be tried a second time at the same term.
    8. Same—directing what the verdict shall be. Where the plaintiff in ejectment has made out a prima facie case by his proofs, and there is no rebutting evidence, it is proper for the court to instruct the jury, as a matter of law, to find for the plaintiff.
    Appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Mr. Augustus N. Gage, for the appellant;
    The court improperly tried the case out of its order. Starr & Curtis’ Stat. sec. 17, chap. 110.
    The plaintiff showed no title in himself, and the defendant showed several outstanding titles to the land. The statute makes the tax deeds prima facie evidence of title. Ransom v. Henderson, 114 Ill. 528; Hyde v. Heath, 75 id. 381.
    The instruction given by the court to find -for the plaintiff was erroneous.
    Mr. W. T. Bubgess, for the appellee;
    _ The grounds of the motion for a new trial not being given, appellant is confined to matters occurring on the trial. Railroad Co. v. McMath, 91 Ill. 112; Smith v. Bank, 79 id. 118.

      Proof of possession of land under claim of ownership is prima facie evidence of a fee simple title. Harland v. Eastman, 119 Ill. 22; Barger v. Hobbs, 67 id. 592; DeWitt v. Bradbury, 94 id. 446; Keith v. Keith, 104 id. 397.
    It is perfectly well settled, both upon common law authority and by the decisions of this court, that in an action of ejectment, proof of prior possession by the plaintiff, claiming to be the owner in fee, is prima facie evidence of ownership and seizin, and is sufficient to authorize a recovery, unless the defendant shall show a better title. Jackson v. Hazen, 2 Johns. 21; Jackson v. Hardin, 4 id. 202; Robinson v. Doe, 7 Blackf. '86; Day v. Alverson, 9 Wend. 223; Hubert v. Hubert, Breese, (Beecher’s ed.) 357; Mason v. Park, 3 Scam. 533; Davis v. Easley, 13 Ill. 198; Brooks v. Bruyn, 18 id. 539.
    In actions of ejectment, and for injuries to the inheritance, the possession of a tract of land by a party claiming to be the owner in fee is prima facie evidence of his ownership and seizin of the inheritance, and throws upon his adversary the burden of rebutting the presumption thus raised. Davis v. Easley, 13 Ill. 193; Pickard v. Williams, 7 Wheat. 59; Steele's Heirs v. Logan, 3 A. K. Marsh. 394; Jackson v. Porter, Paine’s Rep. 457; Mason v. Park, 3 Scam. 532.
    The tax deeds were properly excluded, for the reason that the necessary preliminary proof was not made, and there was no error in the instructions of the court.
   Mr. Justice Bailey

delivered the opinion of the Court:

This was a suit in ejectment, brought by Cyrus H. McCormick Jr. against Mary Dunne and Ada M. Dunne, now Ada M. Anderson, to recover possession of lot 49, of Henry H. i Walker’s re-subdivision of blocks twelve and thirteen, of S. F. , Smith’s subdivision, in the north-west quarter of the northeast quarter, of section 18, township 39, north, of range 14, *,east of the third principal meridian. The plaintiff by his ■declaration claimed an estate in fee in said premises. Both ■ defendants pleaded not guilty, and defendant Mary Dunne filed a further plea denying that she was in possession of the premises demanded at the time of the commencement of the suit, and disclaiming all title and interest therein, and the suit was thereupon dismissed as to her. A trial was had as to the other defendant at the January term, 1889, of the Superior Court, resulting in a verdict finding the defendant guilty, and also finding that the plaintiff had an estate in said premises in fee. The defendant entered her motion for a new trial, . which was overruled, and judgment was entered upon the verdict in favor of the plaintiff for the recovery of said premises, and for costs. From that judgment the defendant has appealed to this court.

It is claimed that the Superior Court improperly tried the ■cause out of its order on the docket, and such action of the court is assigned for error. It appears that on the 18th day of December, 1888, that being one of the days of the Decem- . her term, 1888, of said court, the cause was tried by a jury and a verdict rendered for the plaintiff. A new trial was granted, as is now claimed, on account of an informality in the verdict, and on the 9th day of January, 1889, that being ■one of the days of the January term, 1889, of said court, another trial was had resulting in a verdict finding the defendant not guilty. This verdict was also set aside and a new trial .granted by the court, and the cause was at the same time, by order pf the court, set for trial on the 14th day of the same month, that being one of the days of the same term, or as soon thereafter as counsel could be heard. On the 12th day of ¡ January, 1889, the defendant filed her petition for a change •of venue on account of the prejudice of the judge before whom the cause was pending, and the cause was thereupon transmitted by said judge to another judge of the same court for /trial, where it was placed on the list of causes subject to trial .January 15, 1889.

On the 16th day of said month the defendant appeared by her counsel before the last named judge and entered her motion to strike said cause from the list of cases set for hearing, January 15,1889, and to place the same on the calendar, and in support of said motion, read an affidavit stating, in substance, that said cause was inserted in the trial calendar of-the court after the same had been made up, as number 2361J that it was regularly reached on the call of the calendar and sent to the judge before whom it was first tried about December 7, 1888, and was there set for trial December 18, 1888; that on that day and the day following it was tried and a verdict found for the plaintiff; that said judge, after overruling the defendant’s motion for a new trial, ordered a new trial on account of a defect in the verdict, and set the cause for another trial on the 2d day of January, 1889, contrary to the defendant’s request that it be placed upon the next trial calendar ¿ that the trial was postponed at the instance of the plaintiff until January 9, 1889, when a trial was had resulting in a verdict for the defendant; that said verdict was immediately set aside and the cause set for another trial on the 14th day of the same month, against the defendant’s request and wishes; that the change of venue was thereupon taken, and after the-cause was sent to another judge, an application was made to him to have it placed on the trial calendar, to be reached in its regular order, which application was refused; that there were then a large number of cases pending in said court which had, and of right ought to have, precedence over this, in many of which both sides were ready for and desired an immediate-trial ; that there were then still on the trial calendar of said court several hundred cases that were awaiting trial and had not then been reached; that the defendant had already had one-trial at said term, resulting in a verdict in her favor, and that she desired to have the cause placed on the regular calendar.

The defendant’s motion was overruled the day it was made, and an exception to said decision was duly preserved. Two days afterward the cause was called for trial, and the trial was entered upon, without any objection on the part of the defendant, either on the ground that the cause was being called for trial out of its proper order on the docket, or otherwise.

We cannot say that any error was committed by the court in refusing to enter an order placing the cause on the trial calendar of the court. It appears that such a calendar had been prepared for a previous term, and was still in use, several hundred cases on it not having then been reached for trial. On that calendar this case had already a place and a number; and while it is alleged that it was placed there after the calendar was completed, it is not claimed that that was improperly done. So far as appears, it may have been accidentally omitted, and inserted in its proper numerical position after the omission was discovered. So long as it had a place on the calendar, there could be no occasion, so far as we are able to see, for giving it a new place or a new number. Doubtless the question might have been raised whether, after having been reached and tried, the defendant was not entitled to have it passed until all the cases below it on the calendar had been reached and called, but that was not the question presented to the court by the defendant’s motion.

Moreover, it does not appear that any new calendar for the use of said court was in course of preparation or contemplated, nor are we informed as to the rules under which the court caused its trial calendars to be prepared. The statute requires the clerks of all courts of record to keep dockets of all causes pending in them courts, and it further provides that all causes shall be tried or otherwise disposed of in the order in which they are placed on the docket, unless the court, for good and sufficient reasons, shall otherwise direct; it being provided, however, that in counties where two or more judges shall be holding two or more branches of the same court at the same time, two or more trial dockets may be made, making distribution of the causes among the several dockets so as to place causes of a particular class on each docket. Rev. Stat. Chap. 110, secs. 3 5-17. If the trial calendar of the Superior Court is a list of causes different in its nature from the docket provided for by the statute, and of this the record gives us no information, its preparation must depend upon rules of practice of that court of which we can take no j udieial knowledge, and of which the record furnishes us with no evidence. In no view of the case then can it be seen that the court was under any duty to assign to this ease a new place on the existing calendar, or to place it on any new calendar, and it follows that the motion asking the court to do so was properly denied.

The defendant cannot complain of the trial of the cause at the time it was tried, as the trial seems to have been entered upon by her and her counsel entirely without objection. They asked for no postponement or continuance, and made no suggestion, at the time the cause was called for trial-, either that it was being called out of its order, or that it should not be tried a second time at the same term. Even if calling the case for trial at that time was improper, and as to that we need express no opinion, it was competent for the defendant to waive the objection, and as none was made, it will be deemed to have been waived. Cleaver v. Webster, 73 Ill. 607.

It is next insisted that the record and judgment are unsupported by the evidence. The plaintiff, to prove title, gave evidence tending to show, that in 1869 Henry H. Walker, claiming to be the owner of the lot in question, entered into a contract with Edward C. Waller to convey said lot to him. At that time the lot was vacant and unoccupied, and under said contract of purchase, Waller entered into possession of it, built a house on it, and occupied it by his tenants until April 20, 1872, when it was purchased by Mary Dunne, the wife of James Dunne, for $5500. No conveyance had been made by Walker to Waller, and it was accordingly arranged that the lot should be conveyed directly from Walker to Mrs. Dunne, and that of the purchase money, she should pay $500 in cash, and that for the residue, she should give her promissory notes signed by herself and her husband, payable to the order of Walker, and should secure the same by a deed of trust on the lot. The deed conveying the lot was thereupon executed by Walker to Mrs. Dunne, and she and her husband executed to Walker their promissory notes for $5000, and secured the same by their deed of trust on the lot to John G. Rogers as trustee. Mrs. Dunne entered into possession of the lot under said deed and lived on the same, with her family, the defendant then being one of her minor children. James Dunne died in 1874.

The notes secured by the deed of trust not being paid, the plaintiff, who was then the owner and holder of said notes, caused said lot to be sold by the trustee under said deed of trust, and became the purchaser of the lot at the sale and received a trustee’s deed therefor. Said sale was made April 5, 1885. After the sale, certain negotiations were entered into between the plaintiff and Mrs, Dunne, with a view to obtaining from her a recognition of the plaintiff’s title, it being proposed that she take from him a lease, so as to establish between them the relation of landlord and tenant. While these negotiations were in progress, the defendant, then living with her mother as a member of her family, obtained from Asahel Gage, who claimed to be the owner of said lot by'virtue of a tax deed, a lease of said lot for a term of three years, at a nominal rent. Mrs. Dunne thereupon, as she claims, surrendered the possession of the premises to her daughter, and the latter claims to be in possession under her lease. Prior to this alleged change of possession, the defendant was living and boarding with her mother, and paying her mother for her board. After the change of possession, both continued to live as before in the same family, the daughter taking the place of the head of the family and the mother boarding with her, payment for her board being made, as is claimed, by turning over to the ^daughter certain of the furniture then in use in the house.

There can be no doubt that Mrs. Dunne would be estopped to deny the validity of the title acquired through or under the trust deed executed by herself, and it is claimed that the defendant, being a member of the family of Mrs. Dunne and having received the possession directly from her, is so far in privity with her as to be bound by the same estoppel. The question thus raised need not be decided, since, upon another principle, it must be held that the evidence establishes title in the plaintiff.

The rule is well settled that, in actions of ejectment, proof of possession of land by a party claiming to be the owner in fee, is prima facie evidence of his ownership and seizin of the inheritance. Davis v. Easley, 13 Ill. 192; Barger v. Hobbs, 67 id. 592; Keith v. Keith, 104 id. 397; Harland v. Eastman, 119 id. 22. It is sufficient therefore for a plaintiff, in order to make prima facie proof of title, to trace his title back to an immediate or remote grantor who, at the time of his conveyance, was in possession of the land claiming it in fee.

At the time of the conveyance of the lot in question from-Walker to Mrs. Dunne, Walker was claiming to be the owner of said lot in fee. The lot was then and for several years had been in the possession of Waller and his tenants, such possession having been taken and held under a contract with Walker, and their possession therefore, so far as the present question is concerned, must be deemed in law the possession of Walker. It follows therefore that the deed from Walker to Mrs. Dunne presumptively conveyed the fee, and the fee thus conveyed became vested in the plaintiff by means of the trust' deed executed by Mrs. Dunne and the sale thereunder.

There is no evidence in the record rebutting or tending to rebut the prima facie case thus made. Such case could be overcome only by proving a paramount title either in the defendant or in a stranger. No such proof was made. The defendant offered to read in evidence certain tax deeds executed to Asahel Gage, but as no offer was made to prove any of the proceedings anterior to the execution of the tax deeds, said deeds were excluded, and properly so. The defendant also offered to read in evidence a deed executed by the sheriff of Cook county to one Thompson, upon an execution sale under a judgment recovered by one Sehloesser against Samuel J. Walker and Henry H. Walker, in the Superior Court of Cook county, at the September term, 1874. This deed was also excluded, and properly, as it could in no event have tended to prove title paramount to that conveyed by Henry H. Walker to. Mrs. Dunne, the judgment having been rendered something more than two years after that conveyance was made.

Complaint is made of the rulings of the court in the instructions to the jury. One instruction only was given on the part ’ of the plaintiff, that being, in substance, that the plaintiff had shown title to the property in question, and that the verdict should be in his favor. That instruction was proper. The plaintiff had made out a case by prima facie proof, and there being no rebutting evidence, his right to a verdict followed as a matter of law.

Four instructions were given at the instance of the defendant, laying down rules of law applicable to the case. The plaintiff being entitled to a verdict as a matter of law, these instructions might all have been properly refused, but the defendant, of course, can not complain of the action of the court in giving them. The following instruction asked by the defendant was refused:

“The court further instructs the jury, that if they believe, from the evidence, that said defendant, Ada M. Anderson, is a tenant of the said property holding under a lease from any person other than the plaintiff, and if they shall further believe, from the evidence, that she was not a party to the trust deed of the property through which the plaintiff claims title, and that she claims no rights through any of the parties thereto, then the said Ada M. Anderson is under no obligation to recognize the plaintiff as owner, nor is she subject to the provisions of said trust deed.”

The unsoundness of the propositions contained in this instruction is too apparent to require extended discussion. Whether the defendant is bound to recognize the plaintiff as owner depends upon whether he has the paramount title, and not upon whether she was a party to the deed of trust. If that deed conveyed the fee, it was binding not only upon the parties to it, but upon all the world, and the defendant can not set up as against the title derived by the plaintiff through said deed of trust, a lease to her from a party not shown to have the paramount title.

We are of the opinion that the verdict and judgment are the proper and necessary result of the evidence, and that there are no prejudicial errors in any of the rulings of the court. The judgment will therefore be affirmed.

Judgment affirmed.