author: Smith, J.

text:
      (Circuit Court of Champaign County. In Chancery.)

    Samuel H. Meloy vs. The Wabash Railway Company, et al.
    (March, 1879.)
    1. Receivers — Appointment oe eor Railroad Company -at Instance oe Bondholders. The court will not appoint a receiver of a large railroad system at the suit of a bondholder where there is no allegation of fraud or insolvency, and it is merely alleged that the railroad company has failed and refused to apply its revenues to the payment of interest on its bonds.
    2. Same — When Court Should Appoint. In the appointment of a receiver the court always exercises its extraordinary powers. The remedy is harsh and summary in the extreme and should not be applied except in cases of extreme necessity. No ordinary occasion should justify its use.
    3. Same — Not Appointed Unless Fraud Shown or Imminent Danger to Property would Ensue. A receiver is not usually appointed unless fraud is clearly shown or imminent danger would ensue if a receiver is not appointed. There must be an imperative necessity, for the step.
    4. Same — In Case oe Railroad Corporation. Courts are more reluctant to lend their extraordinary aid by the appointment of receivers over railways than in any other class of cases.
    5. Remedies of Bondholders upon Failure of Mortgagor to Pay ■ Interest. If the mortgagor in a railway mortgage securing an issue of bonds fails to pay the interest on the same, the remedy of the bondholders, is to foreclose the mortgage or to sue in a court of law, and not to apply for the appointment of a receiver.
    6. Appointment of Receivers — What Considerations Should Influence Court. In an application for the appointment of a receiver of a railroad at the suit of a bondholder, the fact that such appointment would affect the market value of the bonds and seriously affect the operation of the road should be taken into consideration by the court.
    Bill for foreclosure of a mortgage and the appointment of a receiver. Heard before Judge C. B. Smith. Decided March, 1879. The facts are stated in the opinion.

      Hassler & McWilliams, for complainant.

      Gen. Wager Swayne of Toledo, Ohio, & H. S. Green, for defendants.
   Smith, J.

This suit is brought by the complainant, a resident of the District of Columbia, to. enforce the payment to him of bonds amounting to the sum of ten thousand dollars, which he avers it is the duty of the Wabash ailway Company to pay, and it further avers that the Wabash Railway Company, has not nor any one for it, paid the Company’s bonds nor any interest thereon, since November 1, 1874, and that said Company is now denying its liability for either principal or interest upon said bonds owned by complainant. And the bill sets out with great care and elaboration the organization and history of the various railroad corporations which ultimately terminated in one consolidated, continuous line of road extending .across three states, from the city of Toledo, in Ohio, to the Mississippi river in Illinois, making in all over six hundred miles of continuous railway, and now known as the “Wabash Railway Company;” and it is alleged in the bill, and admitted by defendants, that in 1862 the Toledo and WabashRailroad Company, for the purpose of enabling it to meet the demands made upon it for transportation, issued six hundred thousand dollars of bonds, known as “Equipment Bonds,” and placed them upon the market without any security beyond the maker’s promise to pay thereon. These bonds are made payable in 1883, with seven per cent, interest, payable semi annually.

It is averred that in February, 1867, the Toledo, Wabash and Western Railway Company resolved to, and did issue its bonds to the extent of fifteen millions of dollars, to be known as its consolidated bonds, and at the same time made and recorded a mortgage on all its property securing the payment of these new bonds when they should be issued. The object of this action on the part of the company seems to have been to take up the various outstanding obligations against the small section of road composing the new consolidated company and fund them and issue new bonds, to take their place as fast as the owners of the old bonds would come forward and surrender them. The right to fund the old bonds, of course, was optional with the holders. It appears, from one of the exhibits shown by the defendant, that 96.5 of all the outstanding indebtedness has been funded under this scheme. The exhibit shows that none of these equipment bonds have been funded, and it is averred in the bill that the holders of the equipment bonds have not been invited to fund their bonds and thus share the benefit of the consolidated mortgage bonds. It is alleged that the present corporation, the Wabash Railway Company, came into possession of all the property rights and franchises of the Toledo, Wabash and Western Railway Company, by purchase at a judicial sale, and that it holds the property subject to the rights of the consolidated bond-holders, and of those who hold the equipment bonds. The .respondents deny that they hold the property subject to any supposed rights of the owners of the equipment bonds, among whom is the complainant in this suit. The complainant charges that the defendant is neglecting and refusing to apply all its net revenues to the payment of the interest accruing on the bonds secured by the consolidated mortgage and especially to that class of bonds known as the equipment bonds, and charges that the defendant is applying a part of its resources to the payment of the Seney mortgage, which it alleges to be junior to the complainant’s bonds. The bill, prays for an account and that the bonds held by complainant may be declared a lien on the property of the defendant, and the defendant required to pay the same; that the said mortgage be foreclosed, and that pending proceedings for foreclosure, a receiver for the property of the defendant be appointed.

The respondent denies that the complainant’s bonds are secured by the consolidated mortgage, and denies any liability to him whatever, and resists the appointment of a receiver,, and the propriety of granting or refusing the prayer of this bill is the only question upon which I am now called to pass, and in doing so I shall assume for the purpose of this motion, that the complainant’s bonds are secured by. the consolidated mortgage, and that the Wabash Bailway Company holds and owns its roads and franchises subject to the superior lien of the complainant, as he claims in his bill. In other words, upon his own showing, is he entitled to the appointment of a receiver? In the appointment of a receiver the court always exercises its extraordinary powers. The remedy is harsh and summary in the extreme. The court before ascertaining the right or to whom the property in controversy belongs, upon substantially ex parte proceedings (for they can be but little better when even both parties are before the court) lays a strong hand upon him who is in possession of the property and compels him to surrender it to the possession of a stranger and engage in long and vexaatious litigation for its recovery. This sword of justice with which courts are armed, ought to be sheathed except in cases of extreme necessity. No ordinary occasion should justify its use. In Baker v. The Administrator of Backus, 32 Ill. 79, 115, the supreme court say that: “A receiver is not usually appointed unless fraud is clearly proved by affidavit, or when it is shown that imminent danger would ensue, if the property is not taken under the care of the court, before an answer is put in. There must be a strong special ground to induce the court to interfere in this way before an answer. ’ ’

And in First National Bank of Sioux City v. Gage, 79 Ill. 207, 209, the court say that: “A receiver should be appointed in no case,- unless it is made to appear there is an imperative necessity for the step; to preserve some particular property for such parties as shall be entitled to the benefit. ’ ’

In High on Receivers, at section 365, it is said that: “While the jurisdiction of equity over railway corporations, as enlarged by the statutes and practice of the various states, is based upon and exercised in accordance with substantially the same principles which govern its jurisdiction over other corporations, the courts are more reluctant to lend their extraordinary aid by the appointment of receivers over railways than over other corporate bodies. The importance of these corporations, as being quasi public bodies, and the peculiar nature of their property and franchises, sufficiently explain the reluctance with which equity interferes with their management, and in general the courts proceed with extreme caution in placing them in the hands of receivers and whenever the ordinary remedies provided by law are open to the creditors of such corporations for the enforcement of their demands, the appointment and continuance of a receiver in office for a long period of years is the exercise of a judicial power which can only be justified by the pressure of an absolute necessity.”

These are sound and wholesome doctrines of the law, and are but examples of the language of all the books, and it seems to me to be a matter of regret that the courts have not been always as careful, and more especially in recent times, to keep within the prescribed limits of this extraordinary jurisdiction as would seem to have been required by private and public rights. It is' a matter of public notoriety that millions of dollars of property have been wasted and squandered in the state of Illinois alone, and men delayed and hindered in the assertion of the plainest rights, by the free use of this arbitrary and monstrous power. The great railway interests of this state have been seriously crippled by having their earnings eaten up and squandered- by- being run by receivers and courts instead of by the owners. Railroads, like individuals, should be compelled by law, if need be, to keep strictly and faithfully all their legal obligations both to private individuals and to the public. Railroad corporations, like individuals, must render a willing obedience to the majesty of the law and submit to its mandates, and like individuals they may appeal to the laws for protection when their just rights are invaded. But if this corporation for any reason, good or bad, fails to meet its legal obligations and to pay all its debts promptly, why should it have all its property taken away from it before judgment and turned over to the hands of a stranger? If it shall be sufficient cause for the appointment of a receiver that it cannot pay its debts, then by the same reasoning might the holders of mortgages and trust deeds ask to have the farms and houses in Illinois turned over to them until they are paid.

The complainant argues here with a great deal of force and justice, that the majority have no right to deprive the minority of their right of collecting their debt, however small that debt may be compared with the vast volume of the property of this corporation. While this is true, the majority have a right, to say to him when he comes into a court of equity for relief, that he shall not be permitted to pursue a course that would involve common ruin to all and waste infinitely more than he can save. If this complainant has any valid and subsisting claim against any of these defendants, either of a legal or equitable character, that claim can be asserted by the ordinary and usual mode of collecting debts.

If these bonds are secured by this mortgage, I can perceive no reason why the mortgáge cannot be foreclosed in the usual manner, and if the defendants fail to pay what is found due against them, the court will order their property sold and compel them to pay. If the demand is simply a legal one, then a judgment at law can be had and they may take on execution, if the defendant has any property. ' But what is the court here asked to do? It is conceded on the argument that the value of the property and franchises of these defendants amounts to more than twenty millions of dollars ; that it is a great public highway traversing and crossing threé states of this union, giving constant employment to a great multitude of people and carrying a vast commerce and thousands of people securely and safely on its flying trains every day and night. It is in proof that under its present wise and prudent management its securities and obligations are steadily rising in value year after year and no effort is made to show that this steady increase in its value is the result of stock-jobbing or gambling. And yet the court is asked to reach out and lay its hands on this vast enterprise and practically paralyze and put a stop to all that has been realized within the past two or three years and turn the management over to stranger hands, who could at best but imperfectly operate it, and all for the purpose of enabling the complainant to collect his debt of ten thousand dollars by this extraordinary method. The language of the supreme court of the United States in the case of Railroad Company v. Soutter, 2 Wall. 510, 523, is so pertinent here that I cannot do any better than to quote it: “The idea of appointing or continuing a receiver for the purpose of taking ninety-five miles of railroad from its lawful owners, which is earning a gross revenue of $800,000 per annum to enforce the payment of a judgment of $16,000, the lien of which is seriously controverted, is so repugnant to all our ideas of judicial proceedings that we cannot argue the question. If Mr. Howard has a valid judgment, the usual modes of enforcing that judgment are open to him, both at law and in chancery; but the extraordinary proceeding of taking millions of dollars ’ worth of property — of such peculiar character as railroad property —from its rightful possessors as one of the usual means of collecting such a comparatively small debt, can find no countenance in this court.1

Such is the language of the highest court in the country, when an effort was made to take from the rightful owner only ninety-five miles of railroad to compel them to pay a judgment of $16,000. But here I am asked to take from this defendant a railroad over six hundred miles long, worth at least twenty millions of dollars and put it into the hands of a stranger to enable the complainant to collect ten thousand dollars of bonds and that upon a controverted claim, and that too upon a bill where no single allegation of fraud appears and where it does affirmatively appear that this defendant has a lawful and just existence through a regular judicial proceeding and for which its present owners paid a very large sum of money. I am asked here to go to the very extreme of judicial power and to pass far beyond the ordinary boundaries which have hitherto circumscribed judicial discretion. The consequences of such judicial madness to the thousands of people who own the bonds of this great corporation Would be most deplorable. Who can doubt, if a receiver for this company was appointed here this morning, that its bonds would not be depreciated ten per cent, in Wall street before sundown, thereby causing vastly more injury and loss to the holders of the company’s obligations than would be saved to this complainant? Who can doubt, if I appointed a receiver that the running arrangements of the road must be seriously impaired and interrupted to the great detriment of public and private interests? These are considerations to which the court cannot be blind and must not disregard in the exercise of that sound judicial discretion which ought to control the deliberations of the court.

In arriving at this conclusion, I do not deny the complainant the full and complete right which he enjoys to proceed with his bill in the ordinary and usual mode provided by the law for every citizen to enforce payment of his just debts' against his debtors, but on the contrary, to prevent the gravest and most serious consequences to a multitude of people-who are interested in saving this great railway company and its property from becoming again the helpless victim of railroad wreckers.

The appointment of a receiver and the prayer for the injunction will be denied. Solicitors for respondents may prepare an order to be signed to that effect.


source: Caselaw Access Project

author: Jameson, J.: —

license: Public Domain

text:
      (Superior Court of Chicago. In Chancery.)

    Thos. Clowry, Adm’r, etc. vs. Unknown Heirs of Patrick Brennan, Margaret Brennan, etc.
    (November, 1869.)
    1. Deed — Construction of — Intent of Grantor Carried Out.. Under a deed to A. of “one-half * * * of the premises and * * * such * * * further interest, if any, in the remaining half of said premises as she * * * as widow * * * would be entitled to under the law of Illinois if her husband had died seized of an unincumbered title in fee simple to said ' premises,” there being no issue of A. and her husband, A. is entitled to dower in “the remaining one-half,” and not to one-half of the one-half in fee simple and dower in the remaining one-quarter, as the intent of the grantor was that her interest in the remaining one-half should be the same as if her husband had deed seized in fee simple of the entire premises.

    2. Charitable Use — What is. A bequest of an estate to an executor to give to such charitable and religious purposes as he shall see fit, is a bequest for a charitable use within the meaning of the Statute of Elizabeth, and valid.
    3. Charitable use — Death of Trustee — When Court Will not Supervise. Where an estate is left to an executor for such char- ■ itable purposes as he may deem fit; should the executor die without exercising his discretion, the court will not undertake the supervision of the trust, but will allow the estate' to go to the heirs of the donor.
    Petition for partition. Heard before Judge Jameson. The facts are stated in the opinion.

      Thos. Clowry, pro se.

      Sleeper, Whiton & Durham, for defendants.
   Jameson, J.: —

On the first of June, 1863, Patrick Brennan, who was seized of lot 5, in block 3, in Brainard & Evans’ addition to Chicago, together with his wife, Margaret, conveyed the same to one Martin Brennan as trustee, in trust to secure certain sums at a certain time therein mentioned, payable to another Patrick Brennan, whom I shall designate as Patrick Brennan 2d. Brennan. 1st died Nov. 14, 1865, intestate, leaving Margaret, his widow, but no children or descendants of children surviving. Margaret was afterwards duly appointed the administratrix of his estate, on the 19th of July, 1866. In the mean time, on the 4th of January, 1866, Martin Brennan, the trustee, advertised for non-payment of the amount due, and sold the lot in question, under the power in the trust deed, Patrick Brennan 2d, the creditor, being the purchaser. On the 13th of September of the same year, Patrick Brennan 2d, in consideration of $5.00, conveyed to Margaret Brennan, widow, and to the unknown heirs of Patrick Brennan, deceased, the lot in question, except the west twenty feet thereof. The quantity of the estate thus conveyed to the several parties was described in the deed as follows: “To.the said Margaret Brennan one-half, undivided, of the premises above described, absolutely and in fee simple, and moreover, such other and further interest, if any, in the remaining half of said premises, as she, the said Margaret Brennan, as widow of the said Patrick Brennan, deceased, would be entitled to, under the law of Illinois, if her husband had died seized of an unencumbered title, in fee simple, to the said premises; and the residue of the said remaining half of the said premises shall be had and held in fee simple by the said unknown heirs of the said Patrick Brennan, deceased. ’ ’

In June, 1867, Margaret Brennan, the widow, died, leaving a 'will, which was duly proved, and in which she named the late Dr. Dennis Dunne, her executor. By this will, she directed the said Dunne to sell her real estate, and that the proceeds thereof, after the payment of her debts, be divided as follows: “The sum of $500 to Patrick Donohoe, of Greens-burgh, in the state of Pennsylvania, and all the rest and residue of the proceeds of said real estate, be given by her executor to such charitable and religious purposes as he might deem fit.”

Letters testamentary were issued to Dennis Dunne, on the 19th of June, 1867, but he died in December, 1868, and the petitioner, Thomas Glowry, was appointed administrator de bonis non, with the will annexed. Dennis Dunne also left a will in which he appointed Edward Dunne and John Goughian, his- executors; the latter of whom qualified, and is made a defendant in this case. This petition was filed by the administrator de bonis non, dowry, for a partition of this lot, to enable him to carry out the provisions of the will of Margaret Brennan, under the directions of this court.

The first question is, to determine the respective shares of Margaret Brennan and of the heirs of her husband, Patrick Brennan, deceased, under the conveyance from Patrick Brennan 2d. There then remains a second question: What directions shall be given by this court, respecting the bequest to charitable uses, made by Margaret Brennan, under the circumstances of the case?

The real nature of the conveyance by Patrick Brennan 2d, is admitted to have been this: he desired only to be paid his debt, and finding that the west twenty feet of the lot would do that, he wished, like an honest man, to give the residue of it back to those who would have had it on the death of Patrick Brennan 1st, and it is probable that he desired them to take in the same proportions as if Patrick Brennan had died seized of that alone. The phraseology of the dead has already been given. It was contended by the petitioner, before the master, upon whose report this case comes up, that the true construction of this language was that the widow should have one-half of the residue of the lot after reserving the twenty feet, absolutely, and that the other half should be apportioned between her and the heirs of her husband as it would have been had her husband died seized of that half only; in which case, she would have, first, one-half in her own right, by virtue of the conveyance to her by Patrick Brennan 2d, and then, one-half of the remaining half, that is, one-quarter of the premises, under the 46th section of the statute of wills as heir to her husband, and beside this, would have her dower in the remaining quarter; making, in all, a fee in three-fourths of the premises, and dower in the other fourth. This, in my judgment, in which I agree with the master in his report, is not the true construction of the deed. It will be observed that the words, “said premises” are used in every clause of this conveyance; and I think, wherever used, they refer to the same lot or part of a lot, namely, that conveyed by Patrick Brennan 2d to Margaret Brennan, and the next of kin of her husband. Thus, the widow was to take one-half of said premises in fee simple, and moreover such other and further interest, if any, in the remaining half, * ■* * as the said Margaret * * * as widow of the said Patrick Brennan, deceased, would be entitled to, under the law of Illinois, if her husband .had died seized of an unencumbered title, in fee simple, to “the said premises,” not to the remaining half of said premises.

Now, had her husband died seized of a fee in the said premises, under the conditions stated, his widow would clearly have been.entitled to one-half of the whole in fee, and'to dower in the other half, under the 46th section of the statute of wills. Such, therefore, must have been the decree of the court, had she applied for a partition during her life time. As she died without making such an application, her right of dower has fallen in, and hence her heirs are entitled to only one-half of the lot, subject to the terms of the will.

The second question presents more difficulty. This bequest of money to the executor of Margaret Brennan, to be disposed of for “such charitable or religious purposes as he might think fit,” seems to have left a discretion in the executor, as to both the objects and the recipients of the bounty. Dunne died, having done nothing whatever towards executing his trust, except to qualify as executor,' and, it is said, to collect and use for his own purposes the personal estate of his testatrix.

There is, I think, no doubt that this is a bequest for charittable uses, within the meaning of the statute of Elizabeth, chapter 43, section 4, determining the description of trusts of that nature which the law will countenance and enforce. The uses prescribed by Margaret Brennan’s will are thus stated, “and all the rest and residue of the proceeds of said real estate, is to be given by my executor to such charitable and religious purposes, as he may deem fit.”

The uses which are countenanced by the statute of Elizabeth, and which courts of equity are authorized by it to enforce as charities, are as follows: “Devises for the relief of aged, impotent and poor people; for the maintenance of sick and maimed soldiers and mariners; for schools of learning, free schools, and scholars at the universities; for repairs of bridges, ports, havens, causeways, churches, seabanks and highways; for education and preferment of orphans, the maintenance of houses of correction, for the marriage of poor maids, ’ ’ et cetera.

The word charitable in the bequest of Margaret Brennan, must be construed to refer, generally, to any of the uses which are defined in this statute, and to none others; and the word religious, as relating especially to one of the uses therein enumerated, namly, repairs of churches, the word “repairs,” doubtless, to receive a liberal construction. So far, then, as the nature of the charities contemplated by the will is concerned, the bequest is not void as contravening that statute.

Now, will this court award to the administrator of Margaret Brennan de bonis non, a discretion to execute the will in the distribution of this bequest, as he may deem fit ? Such .a course is sanctioned by none of the authorities, and it is •doubtful if such an order was ever made by a court of equity. If the court will not direct the administrator de bonis non to •execute this trust, will it itself attempt it ? Will it, in other •words, provide a scheme of charities to which this bequest shall be applied, instituting inquiries as to the probable direction the deceased executor would have given to the charity, had he lived; or if, despairing of ascertaining precisely the intention of either the donor, or her executor, coming as near to it as may be, thus, as it is called in equity, executing this trust, cy pres?

This is one of the most difficult questions in equity jurisprudence. There is no doubt, in general, of the jurisdiction of a court of chancery to enforce trusts for charitable uses. The power was either given, or recognized as existing already, in that court, by the statute 43 Elizabeth, chapter 4 referred •to, which is in force in this state. The better opinion seems to be, that courts of equity always had that power, even before and independently of that statute. See 2 Story, Eq. Jur. sections 1142-1162; 2 Redf. on Wills, 776 and following pages.

A court will not hesitate to interfere and compel the execution of such a trust, whenever it is clearly expressed in the will; where the trustee is named, or is easily ascertainable; or where the objects of the testator’s bounty are pointed out; but whether, where the persons beneficially interested in the charity are not described, perhaps not even known to the testator, but a discretion to name them, and to determine the proportions in which they shall receive it, has been left to the executor; and, especially, where the executor, as here, has died, without having taken any steps towards executing the trust, the court will then step in to execute it, is a far different question, upon which our American courts have not been agreed.

In England, the Lord Chancellor has always had extensive authority in cases of this kind. But in what character has he been understood to act ? Has he, in assuming to exercise that authority, acted in his ordinary capacity as chancellor, or as commissioner of the king, who, as parens patriae, undoubtedly has the power, as a branch of his prerogative, to intervene and name the objects of a charity, in danger of lapsing for want of a trustee, or because of the vagueness of the trust. 4 Kent. Com. 508 and note; 2 Redf. on Wills, 828; Mogridge v. Thackwell, 7 Vesey, Jr., 36. In either of these eases, it would be equally the Lord Chancellor who would intervene; in the one ease, however, in the exercise of his ordinary chancery jurisdiction over trusts, and, in the other, as the agent through whom the king exercises his extraordinary prerogative. In this country the question has been variously decided, according to the views entertained of the nature of the power. Thus, in Saltonstall v. Saunders, 11 Allen (Mass.) 446, the supreme court of Massachusetts assert a jurisdiction over charities almost eo-extensive with that of the chancellor of England. On the other hand in New York, in Williams v. Williams, 4 Selden, 525, 548, it was held, that the courts of equity of that state could only administer such charities as create a trust within the strictly equitable cognizance of such courts. In deciding this case Judge Denio said: “In that class of cases, therefore, where the gift is so indefinite that it cannot be executed by the court, * * * the claim of the representatives of the donor must prevail over the charity. The reason is, that we have no magistrate clothed with the prerogatives of the crown, and our courts of justice are entrusted only with judicial authority. Where the gift is capable of being executed by a judicial decree, I know of no' reason why the court should refuse to excute it.” He then adds: “My own opinion is, that the distribution of powers among the great departments of the government which is a fundamental doctrine in the American system, would prohibit the courts from exercising a jurisdiction so purely discretionary.” From this I infer, that in the opinion of Judge Denio, the power in question was a branch of the royal prerogative, not a judicial power, and that consequently it was not inherited by courts of chancery in this country on its separation from Great Britain. The cases on this interesting point are collected and discussed in 2 Story, Eq. Jur., section 1167-1183; 2 Bedf. on Wills, 776 and following pages.

Our supreme court have not passed, so far as I am aware, upon precisely this question. In Heuser v. Harris, 42 Ill. 425, they indicate, perhaps, the principles upon which they would decide it, were a case to come before them, of which the facts were such as to require an adjudication of it. Judge Breese, in deciding the case, says: “It is well settled in the English chancery courts, that where money is given to charity generally and indefinitely, without trustees or objects selected, the king, as trustee or parens patriae, will direct a scheme, and where trustees are appointed, the chancellor will direct a scheme for the charity, he having jurisdiction over the trust (Boyle on Charities, 238, 239); and this, when neither trustee nor objects" are selected.” He adds: “Surely the powers of a court of chancery should extend so far as to supply a trustee to manage a testamentary bequest; and, if it be admitted one could not be elected under this will, a court of chancery to carry out the intention of the testator would, by a liberal intendment, appoint one. Every reasonable act will be done, and the most liberal construction of the will had, by a court of chancery, to aid the beneficiaries, when the intention is plain and undeniable. Hadley v. Hopkins’ Academy, 14 Pick. 240. But without reference to 43 Elizabeth, we think that the innate, inherent jurisdiction of a court of chancery is fully competent to supply defects of this nature.

But, it should be observed, it was not necessary to the decision of that case, that the court should consider this question, because there the object of the bequest was certain, as was also the intended recipient of it. The court say: “The object of this bequest is certain, and so is the recipient, being the school district in which the farm is situated” etc. The only question was whether the school district, of which the boundaries had been changed since the date of the devise, could take the benefit of it.

On the whole, admitting that the authorities would warrant the intervention of this court to provide a scheme of charities to carry into effect this will, I have great doubt whether, under the circumstances, it ought to be done. In the first place, the amount left after the payment of the debts of the testatrix, and of the specific legacy of $500, will be but small. Secondly, there is no person or corporation before us claiming the benefit of this bequest; nor is it suggested that any such claimant exists. I doubt if it is my duty to advertise for beneficiaries under the trust, or to presume that it would be thought worth the expense, by any charitable or religious institution, to seek the distribution of this fund in its favor. Finally, the executor having died without naming the donees of the charity, admitting that a mere personal discretion to be exercised by the executor was not intended, and that the bequest has not therefore elapsed, the difficulty seems too formidable of attempting to make a distribution of the fund in accordance with the terms of the will.

A decree for the partition of the lot between the .parties according to their respective interests, as stated, will therefore be entered, but the court declines to direct the execution of the will so far as relates to the charity.


author: Tuley, J.:—

text:
      (Circuit Court of Cook County.)

    Christian Neilson vs. The City of Chicago, the Chicago, Rock Island & Pacific Railway Company and the Lake Shore & Michigan Southern Railway Company.
    (July 27, 1899.)
    1. Constitutional Law — Police Power — Compensation for Property Damaged for Public Use. Where private property is damaged through the elevation of railroad tracks, elevated in accordance with a city ordinance, such damage must be compensated for under the constitutional provision that private property shall not be damaged for public use without compensation and it is no defense that the ordinance was passed under the police power.
    2. Constitutional Law — Property Damaged for Public Use— Power of Legislature to Exempt Municipality. The legislature cannot exempt a municipality from the operation of the constitutional inhibition against taking private property for a public use without compensation.
    3. Constitutional Law — Railroads—Property Damaged for Public Use — Effect of Authority of Municipality under Police Power. A railroad must compensate for property damaged by it in pursuance of a public use even though the improvements causing the damage have been ordered by "the city acting in its governmental capacity in the exercise of its police power.
    4. Pleading — Duplicity—What is not. Where one general public improvement is carried on by several distinct entities, a declaration is not double which alleges that one of them inflicted certain damage and another certain other damage, etc., as long as they are not alleged as separate and distinct causes of action but simply as allegations as to injuries inflicted in the performance of the entire work, from all of which taken together the plaintiff’s property was damaged.
    5. Parties — Joinder of Corporation and Agents in Actions Ex Delicto. In actions ex delicto a corporation and its agents are alike responsible and may be sued severally and jointly.
    6. Actions — Trespass Against Municipal Corporations. The action of trespass as well as case will lie against a municipal corporation.
    7. Municipal Corporations — Liability When not Acting in Strictly Governmental Capacity. When two parties enter into an agreement by which certain work is to be done in pursuance oí a joint purpose and the property of a third person is injured thereby the first two parties are jointly and severally responsible therefor and it is immaterial that one of the contracting parties is a municipal corporation.
    8. Constitutional Law — Damaging Property for Public Use — •" What Sort of Damage Recoverable. Where property is damaged for a public use it is only special damage to plaintiff’s property which can be recovered, and not the damage resultant from the contiguity of properties.
    9. Contracts — Property Damaged for Public Use — Effect of Agreement to Save Harmless. An agreement to save a party harm-' less from any liability incurred by him in the prosecution of a. public work, irrespective of its validity between the parties, "cannot effect a plaintiff’s rights against either of the contracting" parties.
    Demurrer to declaration. Heard before Judge Murray F. Tuley. The facts are stated in the opinion.

      Masterson & Hoft, for plaintiff.

      C. S. Thorton, for the defendant, the city of Chicago, and R. Mather, for defendant, C., R. I. & P. R. R. Co.

      Gardner & McFadden, for defendant L. S. & M. S. R. Co.
   Tuley, J.:—

The demurrer of the city raises the question as to the liability of the city of Chicago, of the Chicago, Rock Island & Pacific Railway Company and the Lake Shore & Michigan Southern Railway Company, in connection with the elevation of the tracks of the two railroad defendants'made under an ordinance of the city of Chicago of July 9, 1894.

The tracks of the two railroad companies were raised over a distance of several miles in the thickly populated part of the city, many of the street crossings on the line of the elevation were cut down and the grade lowered at the point of intersection; streets and alleys were built up solidly at some intersecting points, leaving them but blind thoroughfares; sidewalks on approaches to the point of intersection of the crossing streets were lowered, light and air of adjacent buildings were more or less interfered with and the buildings were cracked or otherwise damaged through the making of the improvement. A large number of suits have been commenced against the city of Chicago and the two railroad companies for the damages sustained by reason of the work.

In the amended declaration in this case it is alleged that the plaintiff was the owner of a large brick building adjacent to the right of way of the two railroad defendants, and located on the northwest corner of the intersection of Armour avenue and Thirty-seventh street. That on or about the 9th of July, 1894, the defendant, the city of Chicago, passed an ordinance whereby it required and contracted with the railroads that they should elevate the plane of their railroad tracks in the rear of and on the west side of plaintiff’s premises in a certain manner therein described, setting out the ordinance in full. That said ordinance provides for the elevation of the tracks of the railway companies, designates the cross streets, etc:, to be viaducted, among others being Thirty-seventh street, and provides for excavating such streets, gives specific details for the doing of the work, and that “all of said work shall be done as by and for the city of Chicago under the superintendence of the Department of Public Works, but at the expense of the said railway companies.” Where the tracks of the two railway companies parallel each others, as they do most of the distance, the work was to be done at the joint expense of the railways, and where, they did not parallel each railway was to pay the expense of elevating its own tracks. Provides that the damages caused by change of grade of streets and alleys should be adjusted and paid by the city of Chicago and that the ordinance should be null and void unless within thirty days it should be accepted by the railroad companies. That they should by their acceptance agree to pay $50,000 as liquidated damages for failure to carry out the provisions of the ordinance. Also that the railway companies should agree to pay, and pay at the time of the acceptance, to. the city of Chicago $100,000 as a contribution toward the liabilities for land or business damages incurred or recoverable from the city of Chicago by the passage and enforcement of the ordinance or by changes of grade, etc., and that such payment should be held to protect the railroad comp arries from all liability for said damages to said city, or others, save that covered by negligence in the doing of the work provided for.

The declaration alleges that said ordinance was accepted by the railroad companies, $100,000 deposited by them with the city of Chicago in accordance with its terms; that in accordance with the provisions of the ordinance plans and specifications were prepared for the work which required a part of the work to be done upon plaintiff’s premises. That the railway companies commenced the elevation of their tracks in August, 1895, and practically completed the same by the end of November the same year. That it was the duty of defendants, before committing or permitting any damages to or taking any of plaintiff’s premises, to have assessed and appraised the same and to have paid plaintiff a just compensation therefor; but regardless of such duty they did such work of elevation and of the excavation of Thirty-seventh street, etc., without paying such just compensation. That the defendants also, disregarding their duty to do said work in such manner as not to interfere with the property rights and easements of the plaintiff in any manner, so negligently and carelessly excavated Thirty-seventh street and conducted the work that the supports and foundations of his building were loosened and cracked so as to make the building almost worthless, and constructed a large embankment on the west side of and adjacent to plaintiff’s premises. That the city as principal, and the railroad defendants, as agents and servants of the city, constructed a stone wall on the north side of Thirty-seventh street and across their right of way and into plaintiff’s premises and up against and adjoining plaintiff’s building, and in and upon the close and grounds of plaintiff, and appropriated part of plaintiff’s premises to their own use, and, in disregard of plaintiff’s rights, built over their right of way into premises not belonging to defendants, and thereby shut out light and destroyed other easements which plaintiff enjoyed upon the west and rear end of said premises. That all of said acts and doings were done in accordance with plans and specifications made by the defendant railway companies, ratified and approved by the city, and were all done 1 ‘ as, by and for the city and under the direction and supervision of the city.”

It alleges general ratification by the city; the tearing up and taking away of the sidewalk belonging to said premises and the lowering of the grade of the sidewalk so that it became impossible for the public to enter said premises for business purposes, whereby plaintiff was forced to build a stairway for that purpose down to the sidewalk. Alleges the taking and carrying away of a street lamp, the property of plaintiff. That the plaintiff’s premises were otherwise greatly injured and made useless for the purpose intended. That having elevated the tracks of the railroad companies, the two railroad companies built an iron bridge over Thirty-seventh street crossing and continuously since have permitted the running of defendants’ railroad trains over the same. . Whereby plaintiff has been greatly damaged and his property rendered almost worthless, and the business to which it was adapted rendered almost worthless; all to the damage of plaintiff of fifteen thousand dollars.

The contention of the city upon its demurrer is that the ordinance' of 1894, requiring the railway companies to elevate their tracks, construct subways, viaducts, etc., was passed in the exercise of the police power of the city. “That the constitutional provision that private property shall not be taken or damaged for public use without just compensation,” must be construed with reference to the police power, and so construing it, that no recovery can be had by plaintiff.

The city claims, “To support the ordinance upon the broad foundation of the right to exercise the police power of the state for the public safety. ’ ’

I find that the appellate court has passed upon this identical question, in a case not cited upon the argument; of Marshall v. City of Chicago, 77 Ill. App. 351. While this decision is not controlling, except in that particular case, Marshall v. The City, yet the opinion of Judge Adams is so logical and convincing, and so well sustained by the decisions of our own supreme court, that there is no escaping from its conclusions. The litigation arose out of a claim for damages caused by the doing of the work under this same ordinance of July, 1894.

Judge Adams, in that case, well says: “It stands admitted” (as it is by the demurrer in this case) “that the plaintiff’s property was damaged for public use, and to hold that in such case there can be no recovery would be to nullify the constitutional provision cited.’’And that, “No ease has been cited, nor do we believe any can be found in which, there being a provision (constitutional or statutory) for compensa-. tion for damage occasioned to private property for public use, it has been held that there could be no recovery for such damage.” Also, “The question, whether the improvement was ordered in the exercise .of the police power, or in the exercise of some other power, is wholly immaterial to the plaintiff’s case, because, no matter what the power in the exercise of which the ordinance of July 9, 1894, was passed, if the plaintiff’s property was damaged as claimed in his declaration he is entitled to compensation.”

Upon a review of the Bigney Case — which is the leading case as to the meaning and effect of the constitutional limitation that private property shall not be damaged for public use without just compensation being made therefor — and of the several decisions following the Bigney Case, 1 had come, before seeing Judge Adams’ opinion, to the same conclusion at which he arrived upon this question. The following Illinois supreme court decisions fully sustain the appellate court: Rigney v. City of Chicago, 102 Ill. 64, and cases cited; C. W. & I. R. R. v. Ayres, 106 Ill. 511; Zinc Co. v. La Salle, 117 Ill. 411; City of Bloomington v. Pollock, 141 Ill. 346; City of Joliet v. Blower, 155 Ill. 414; L. E. & W. R. R. v. Scott, 132 Ill. 429; Parker v. Catholic Bishop, 146 Ill. 167; Metropolitan W. S. Elevated Ry. Co. v. Stickney, 150 Ill. 362; Galt v. C. & N. W. Ry. Co., 157 Ill. 125; Metropolitan W. S. Elevated Ry. Co. v. White, 166 Ill. 375.

As said in the leading case, Rigney v. City, ante, the words “or damaged” in the 1870 constitutional provision, were intended “to declare a new rule of civil conduct from which spring new rights which did not exist under the constitution of 1848.” And that “we have no doubt it was the intention of the framers of the present constitution to require compensation to be made in all cases, where, but for some legislative enactment an action would lie by the common law.”

There can be no question but that in a case like the present an action would lie at common law unless the corporation had the authority of an act of parliament, and in this state because of the constitutional provision referred to the legislature is without authority to exempt a municipality from its •constitutional liability to make due compensation for all private property taken or damaged for public use. There can be no doubt but that the constitutional provision quoted was intended to give owners of private property a right of action for damages caused by improvements of this nature made for the public use or benefit.

The Demurrer of the Lake Shore & Michigan Southern Railway Company and of the Chicago, Rock Island and Pacific Railway Company.

The railroads contend that as the city is not liable for the exercise of its police power under its governmental function in passing the ordinance, they are not liable for doing the work under the ordinance “any more than the laborer who shovéled the dirt,” unless they were guilty of negligence in doing the work ordered by the city. If this contention could be sustained, the property owner would be between the “upper and nether millstone.”

The disposal of the demurrer of the city disposes of this contention.

Objections are raised by the demurrers of the defendant railroad companies as to the declaration being double, in that it joins causes of action, as, for example, for damages sustained by changing the grade of Thirty-seventh street, which the city only had the right to do, making just compensation, with a cause of action against the railroad companies for negligence in building the elevation for the tracks, and that no joint liability is shown by the declaration.

I was at first inclined to think these objections were well taken. If we regard the excavation at Thirty-seventh street, the lowering of the sidewalk, the removal of the lamp-post, the building of the stone wall for the embankment over upon plaintiff's lot, the darkening or shutting off of light, the cracking of walls by reason of the excavation ‘in Thirty-seventh street, and other injuries recited, as intended to be distinct, disconnected or separate acts and separate causes of action, there would be no denying that the declaration was double, in certain allegations, and that there is a misjoinder of parties defendants. They are not alleged as separate and distinct causes of action, but are allegations as to injuries inflicted in the performance of the entire work, from all of which injuries taken together and as a whole, the plaintiff’s property was damaged, that is, lessened in value. Nor is it necessary to decide that any one of them, treated as a distinct and separate cause of action, would entitle the plaintiff to recovery. The particular .injury might be over-balanced by actual benefits derived from the whole improvement, and, if so, no recovery could be had therefor. The question is. whether or not plaintiff’s property has, by reason of the improvement (as an entire and completed improvement) been lessened in value not whether any particular part of the work of itself, and without relation to the remainder of the work, caused an injury to plaintiff’s premises.

The general rule is that in actions ex delicto agents and principals are alike responsible, and may be sued severally or jointly.

If a corporation authorizes a trespass, if it authorizes a work done which (if done as authorized) takes or damages private property for public use, “without just compensation,” I can discover no reason why an action will not lie against the corporation or against its agent who does the wrongful act, or against both, for in torts, all concerned in the tort, he who orders as well as he who commits the action, are separately and jointly liable.

The action of trespass as well as case will lie against a municipal corporation: Allen v. Decatur, 23 Ill. 332; Wolf v. Boettcher, 64 Ill. 317, 321; Chicago v. McGraw, 75 Ill. 566; Chicago v. Turner, 80 Ill. 419, and cases cited.

The question does not arise here whether or not the city may not by a proper ordinance — purely in the exercise of a •governmental function — require a railroad to elevate its tracks, and this without the city incurring any liability, as, in this, ease, the ordinance it not only an ordinance, but is •also an agreement, a contract between the city and the two railroad defendants. It must be viewed both in the light of an ordinance and of a contract. It is apparent from the face ■of it that it is beneficial to the city at large, and to the railway companies. If A and B enter into an agreement that B shall do certain work, which is beneficial to both parties, or that B shall do certain work on A’s property, in connection with work to be done on B’s property, or that B shall do certain work which it was A’s duty to do, in connection with work which it was B’s duty to do, and in the doing of such work the property of C was damaged, in either of such cases there can be no doubt but an action would lie against A or B nr against both of them. It certainly makes no difference that one of such contracting parties might be a municipal corporation.

The complaint here is that the improvement, taking it as a whole, was the result of a concert of purpose and of action by and between the city and the two railway companies; that there was a. joint purpose by this ordinance and contract to get these tracks elevated, viaducts built, streets and sidewalks lowered, other streets and alleys closed, and to make improvements in the manner and on the plan assented to by all the parties to the contract; that by reason of this concert of purpose, and co-operation of the city and railway companies in making the improvement in question, the plaintiff’s property has been specially damaged and that all the parties so concerting together are liable, severally and jointly, as principals, for the special damages suffered by the plaintiff.

The constitutional provision cited-was not intended to reach every possible injury that might be occasioned by a public improvement. Rigney v. Chicago, ante. The damages recoverable must be special to plaintiff’s property and not arising solely from contiguity of properties. It is the public character of the improvement and the damages for public use which gives the right of recovery by reason of the constitutional provision cited.

It is not necessary for me to decide upon the validity of the contract by which the city agreed, in substance, to save the railway companies harmless from all damages caused to adjacent property owners, provided they were not the result of negligence on the part of the railway companies in the doing of the work, as that question is not before me. If such an agreement is valid as between the parties, it can have no effect upon the plaintiff’s right of action as against either of the contracting parties.

The demurrer admitting that plaintiff’s property has been damaged as alleged, by reason of the said improvement, and that he has received no just compensation therefor, the demurrer of all the defendants will be overruled and defendants ruled to plead in thirty days.


author: Dunne, J.:—

text:
      (Criminal Court of Cook County.)
    People of the State of Illinois vs. Lake Shore & Michigan Southern Railway Company.
    (January 1, 1893.)
    Constitutional Law — Railroad and Warehouse Act — Act Requiring Weighing of Cabs of Grain Unconstitutional as to Interstate Shipments. The act of June 15,1887, prescribing the manner in which and conditions under which grain shipped from one point to another shall be weighed and transferred and that the weights so ascertained shall be given in the receipts or bills of- lading is unconstitutional so far as it applies to any interstate commerce shipments, but the law so far as it applies to shipments made within this state to points of destination within this state is valid.

      Criminal court of Cook county. Action of debt to recover penalties accruing for violation of sections 192 and 193 of railroad and warehouse act. Heard upon demurrers to special pleas before Judge Edward F. Dunne.

      Francis A. Riddle, attorney for plaintiff.

      Gardner & McFadon, attorneys for defendant.
    The facts are stated in the opinion.
   Dunne, J.:—

This is an action in debt, brought by the people of the state of Illinois against the Lake Shore and Michigan Southern Railway Company, to recover from said company penalties accruing under sections 192 to 195 inclusive of the chapter on railroads and warehouses. Sections 192 and 193 of said act are as follows (Act June 15, 1887, Laws of Illinois, 1887, p. 253):

“192. Road receiving for transportation shall furnish suitable appliances for weighing, etc. 1. Be it enacted: That in all counties of the third class, and in all cities having not less than fifty thousand inhabitants, where bulk grain, millstuffs or seeds are delivered by any railroad transporting the same from initial points to another road for transportation to other points, such road or roads receiving the same for transportation to said points,, or other connections leading thereto, shall provide suitable appliances for unloading, weighing and transferring such property from one car to another without 'mixing, or in any way changing the identity of the property so transferred, and such property • shall be accurately weighed in suitable covered hopper scales, which will determine the actual net weight * * * which weights shall always be given in the receipts or bills of lading and used as the basis of any freight contracts affecting such shipments * * *”
“193. Where original car runs through without transfer. * * * 2. The practice of loading grain, millstuffs or seeds into foreign or connecting line cars at the initial point from which the grain, millstuffs or seeds are originally shipped, or the running of the original car through without transfer, shall not relieve the railroad * * * from weighing and transporting such property in the manner aforesaid. * * *” Hurd’s B. S. 1891, pp. 1113, 1114.

Section 195 provides, as a penalty for the failure of any railroad company to comply with the provisions of said act the sum of not less than $100 nor more than $500 for eachi neglect or refusal, “to be recovered in an action of assumpsit in the name of the people of the state of Illinois, for the use of the county in which such act or acts of neglect or refusal shall occur.”

The declaration contains two counts, the first alleging that the rye in question was delivered to the defendant by William H. Beebe and company; and that after demand by William H. Beebe and company, the said defendant neglected and refused to issue or to give to the said William H. Beebe and company, or any one for them, a receipt or bill of lading for said carload of rye, giving and stating therein the true and correct weight of said rye; contrary to the form of the statute in such case made and provided.

The second count of said declaration alleges that the said carload of rye was delivered to the defendant company by the Chicago, Bock Island & Pacific Bailway Company, and after demand the said defendant company refused to issue to the said William H. Beebe and company, or to any other person or persons, a receipt or bill of lading for said carload of rye, stating therein the true and correct weight thereof; but did eventually issue to the said William H. Beebe and company for said carload of rye, a bill of lading stating therein that said grain was “said to weigh 31,850” meaning said to weigh “31,850 pounds” and refused to ascertain the correct weight of said rye and to issue to said William H. Beebe and company or any other person, any other or different bill of lading; contrary to the form of the statute in such ease made and provided.

To these two counts of said declaration said defendant company has pleaded nil debit; and secondly, especially, that the defendant company used and operated the railroad as, and that it was a part and parcel of a continuous line of railroad, extending through and from the state of Illinois, into and through the states of Indiana, Ohio, Michigan, Pennsylvania and New York, upon and over which railroad the defendant is and was engaged as a common carrier in transporting and ■ carrying for hire; persons and property from and out of each of the aforesaid states, into each of the other1 of said states; said railroad of the defendant then forming only a part of the entire route of carriage, the defendant being thus engaged in commerce between the several states; that the carloads of rye in the several counts of said' declaration mentioned are one and the same1 carload of rye; and that the said carload of rye was delivered to the Chicago, Rock Island & Pacific Railway Company, doing business as a common carrier in transporting passengers and property from and through each of said states of Illinois and Iowa into and through the other thereof, on a railroad owned and operated by it, extending continuously through said last mentioned states, and said carload of rye having been received by it at Iowa City in said state of Iowa, to be transported by it to the city of Chicago,. In the county of Cook and state of Illinois for hire; that said ' carload of rye was accordingly transported by said company to said city of Chicago, and delivered to the defendant company by said Chicago, Rock Island & Pacific Railway Company, consigned to William H. Beebe and company at Kerr-moor, Clearfield county, in the state of Pennsylvania; that the defendant thereupon accepted the same in the regular course of business, and as a common carrier, as aforesaid, undertook for certain reward to transport and carry said carload of rye to and into the state of Pennsylvania; that while it was in the course of transportation from and out of the state of Iowa to and into the state of Pennsylvania, for transportation by it as a common carrier for hire, out of the state of. Illinois into and through the state of Illinois into and through the states of Indiana and Ohio into the state of Pennsylvania, it was engaged in, and was an instrument of commerce between the aforesaid states; and that therefore, the supposed law and the statutes of the state of Illinois, upon -which said action is based, is null and void, by reason of being repugnant and contrary to the constitution of the United States, conferring upon congress the; power to regulate commerce among the several states, and to the statute of the United States made and provided.

To the plea of nil debit the plaintiff replies similiter; and to the special plea it has filed a general demurrer. The demurrer to the special plea raises directly the constitutionality of the act passed by the Illinois legislature.

It is well settled that upon a demurrer to a plea the court must examine the whole record, and should decide in favor of the party who ought to prevail upon the whole of said record. I am of the opinion that the declaration itself is demurrable for the following reasons, to-wit: 1. The action is not brought for the use of the county where it is alleged the default and refusal to comply with the statute took place as provided by the statute in question. 2. Said declaration does not allege in either count that the defendant company failed to provide suitable appliances for unloading, weighing and transferring the rye in question from one car to another with mixing or in any way changing the identity of the property so transferred, and that it failed to accurately weigh said rye in suitably covered hopper scales; and failed or refused to give a receipt or bill of lading used as the basis of the freight contract, containing the actual net weight of the entire contents of said carload of rye.

Section 194 of the statute provides that “Any railroad company neglecting or refusing to comply promptly with any and all of the requirements of either sections 1 or 2 of this act shall be liable. ’ ’

This being a gwasi-criminal proceeding to recover a penalty, it must be construed strictly in favor of the defendant. Such a construction would require the plaintiff to allege in its declaration that the defendant failed or refused to comply with all of the requirements of said section.

• The only allegation in either count of said declaration upon which they seek to recover the penalty in question is, that the defendant company neglected or refused to issue a receipt or bill of lading, giving and stating the true and correct weight of said rye. So that upon these grounds alone I am of the opinion that my finding, shall be for the defendant company. B.ut aside from these technical objections, I am of the opinion that the plaintiff’s demurrer to defendant’s special plea must be overruled.

I am of the opinion that the act in question is in contravention of the constitution of the United States, and of the interstate commerce act, so far as it applies to or affects the goods and merchandise being shipped from other states, through the state of Illinois, to other states of the United States.

Clause 3, section 8, article 1, of the constitution of the United States declares that the congress of the United States shall have power “To regulate commerce with foreign nations, and among the seyeral states, and with the Indian tribes.” This power was reserved and retained by the federal government upon the adoption of the constitution by the several states, and the wisdom of -the framers of the constitution in reserving this power to the government, can not be questioned.

Were each state to have the power of regulating commerce between it and sister states inextricable confusion would result. Each state, in the exercise of this power, would pass such regulations concerning commerce as it deemed for its best interests, independent of the interests of its sister states. The congress of the United States being vested with this power, it remains for us to ascertain whether there is power vested in the state of Illinois to pass such a law.

It has been maintained by reputable authority that in the absence of federal legislation, the several states may enact laws for the furtherance and facilitation of commerce between states, but it is universally conceded that such legislation must facilitate and not obstruct the commerce between states. Patterson on Federal Restraint on State Action, 124.

It has also been held, and in my opinion, it is undoubtedly the law, that a state may pass laws of local application to that state; and that the same is not an infringement on the rights of congress.

Let us examine the case at bar and determine, whether the legislation in question is for the facilitation or furtherance of commerce; or whether it is of exclusively local application.

The plea demurred to sets up that the grain in question was shipped from Iowa City, Iowa, to Chicago, to be there transferred from the Chicago, Bock Island & Pacific Bailway to the Lake Shore & Michigan Southern Bailroad for shipment to Kerrmoor, Clearfield county, Pennsylvania. And the plea being demurred to this state of facts must be taken to be true.

Section 192 of the statute in question requires the defendant company to unload the grain from the car in which it was received into “suitably covered hopper scales, without mixing or in any way changing the identity of the property so transferred and weighed;” and to then endorse upon a receipt or bill of lading, the actual net weight of said grain, as ascertained by weighing same in hopper scales, then reload it upon a car and give such bill of lading to the shipper. Surely this can not be held to be in furtherance or facilitation of commerce. It necessitates the shipping' of the car to a side track convenient to such a scale, the unloading of the grain into said scale, the weighing of the grain when so loaded upon said scale, and the replacing it upon the same or some other car;. all of which must necessarily occasion loss of time, labor and expense; and all of which must eventually fall upon the shipper. It is a cumbrous, awkward way of ascertaining the weight of the grain in question; and must be, in the opinion of any rational man, a measure which retards and obstructs the quick transmission of merchandise, instead of facilitating the same.

Secondly: Is the law in question local in its application to Illinois? I am of the opinion that if a carload of grain was shipped from Chicago to Cairo in this state, that under the law in question the shipper would have the undoubted right to demand the weighing of the same in a hopper scale, and the endorsement of the weight thus ascertained on a bill of lading. But the law plainly shows upon its face that it applies to and covers not only a case of the shipment of grain from one point in a state to another point in said state, but to all cases where grain is shipped in any city having not less than fifty thousand inhabitants, no matter what may be the point of original shipment or destination within the state or without. And so far as it does this it is certainly not of local application.

The ease presented by the said plea shows that the shipment in this case was originally from Iowa City, in the state of Iowa, and that the destination of said rye was in Pennsylvania ; and certainly the law applied to this case can not be of local application.

So far I have discussed this case upon the assumption that there was no legislation of the federal government upon the points covered by the statute in question; but an examination of the inter-state commerce act shows plainly that this is merely an assumption.

Section 7 of the Inter-State Commerce Act, which went into effect in the spring of 1887, a few months before the act of the Illinois legislature in question, provides: ‘1 That it shall be unlawful for any common carrier, subject to the provisions of this act, to enter into any combination, contract or agreement, expressed or implied, to prevent by carriage in different cars, or by other means or devices, the carriage of freights from being continuous from place of shipment to the place of destination.”

This provision of the inter-state commerce act plainly indicates that it is the policy of the Federal government to further and protect in every possible way, the continuous shipment of merchandise without check or hindrance.

Even before the passage of the inter-state commerce act, the supreme court of the United States, in the case of Wabash, etc., v. Illinois, 118 U. S. 557, 572, declared that the right of continuous transportation from one end of the country to the other is essential, in the following language:

“It can not be too strongly insisted upon that the right of continuous transportation from one end of the country to the other is essential in modem times to that freedom of commerce from the restraints which the state might choose to impose upon it, that the commerce clause was intended to secure. This clause, giving to congress the power to regulate commerce among the states and with foreign nations, as this court has said before, was among the most important of the subjects which prompted the formation of the constitution. Cook v. Pennsylvania, 97 U. S. 566, 574; Brown v. Maryland, 12 Wheat. 419, 446.”

Justice Walker, in the dissenting opinion delivered by him in the case of Wabash, etc., v. People of Illinois, 105 Ill. 253, declares in the following language that “The manifest purpose of that clause (i. e. 3 clause, section 8, article 1, of the Federal constitution) was to prevent impositions, burthens and obstructions on articles of commerce passing from one state to another, or such articles passing through states.”

It will thus be seen that one of the strongest supporters of the right of state regulations of commerce, recognizes the object and purpose of the Federal government in preserving the' right to regulate commerce between states. It thus appears, not only from the language of the interstate commerce act, but from the construction placed by state and Federal courts upon the intent and aim of the provision of the Federal constitution, that the policy of the Federal government has always been in favor of continuous and unrestricted transmission of property and passengers between the states.

The interstate commerce act, in section seven, makes it an offense to retard continuous shipments by carriage in different cars or other means or devices.

Such being the plain provision of the Federal constitution and Federal enactments, how can it be claimed that any state legislation which compels the unloading, separate weighing, and reloading of grain, can be held to be constitutional ?

If the state of Illinois has the right to enact any such legislation in the face of this provision of the interstate commerce act, every other state in the union would have the same right, and the Federal constitution might be set at defiance. That the object and aim of this law was to protect the shipper and to secure to him the correct weight of the merchandise shipped, I have no doubt; and the law, as far as it relates to shipments made within this state to points of destination within this state, will and should be upheld by our state courts. But when it seeks to affect, as it does in the case at bar, shipments to and from other states, notwithstanding the laudable object of the law, it is in direct conflict with the constitution of the United States and the legislation of congress, as set out in the interstate commerce act.

Counsel for the people have cited to me eases in which it has been held that provisions of a state law regulating the speed of trains and requiring trains to stop at county, seats, were within the police power of the state, and not in conflict with the power preserved by congress of regulating commerce between states. I think a plain distinction can be made between this class of cases and the one under consideration.

State provisions, regulating the rate of speed and the stoppage at county seats, are really in the interests of and for the furtherance of commerce; and while they necessarily sometimes hinder the speed of trains, it is an undoubted fact that they are for the protection of the life, limb and property of passengers. They make commerce more safe and the Federal government has never legislated upon these points. While in the exercise of police power I have no question but that individual states may pass reasonable regulations for both passenger and freight trains, but when congress has once legislated on these same subjects, or indicated by its acts, its policy in reference to the same, if the state legislation is in conflict with the Federal, then in my opinion the local legislation must give way. Even the police power of the state, in the absence of Federal legislation, has its limitations.

Tiedeman’s Limitations of Police Powers, 616, lays down the law as follows: “It is impossible for a state regulating the time and manner of making transfers of subjects of commerce transported by railway carriage from one point to another within the state, to extend the application of the regulation to freight that is being transferred to some point beyond the state.” It will be found, upon examination, that all of the cases cited by counsel for plaintiff are based — first, upon statutes, passed in the exercise of police power, for the protection of the life, limb or property of citizens, where the Federal authorities have not legislated upon the same; or— secondly, are statutes of purely local application, or — thirdly, laws passed by the state for the facilitation and furtherance of rapid transit of passengers or merchandise. The case at bar, in my opinion, does not fall under any of these classes.

The position I have taken in this matter is, I believe, abundantly sustained by the following, among other authorities: County of Mobile v. Kimball, 102 U. S. 691-702; Welton v. Missouri, 91 U. S. 275-280; Original Package Case, 135 U. S. 108; Wabash, etc., Ry. Co. v. Illinois, 118 U. S. 577. In Council Bluffs v. K. C., St. J. & C. B. R. Co., 45 Iowa, 349, it was sought, by a statute of the state of Iowa, and an ordinance of the city of. Council Bluffs, to compel the defendant railway company to receive and transfer its passengers and freight in the city of Council Bluffs instead of running them across the river to Omaha; and the court, in discussing the several authorities in which it had been held that the levying of licenses or taxes upon railroads and others by state law, was unconstitutional, as imposing a burden upon the transportation of interstate commerce, declares that, “The same principles upon which the statutes were held invalid apply to the statutes creating burdens or imposing restrictions of a different character. Commerce may suffer no more from a law requiring a direct tax to be paid thereon into the state treasury, than from a regulation under which charges will be exacted by individuals, as would be the case of transferring freight from the cars of one railroad to those of another at state lines when the connecting roads form continuous lines over which freight may be carried without change of cars. And a regulation of the state whereby the most speedy transit is prevented may be a greater burden upon interstate commerce — a greater embarrassment to it, than taxes of the character held invalid in the cases above cited. Celerity in the transportation of passengers and freight is now imperatively demanded by the business of the country; every impediment thereto is a burden upon commerce. State statutes producing such results are, under the authorities cited, clearly in conflict with the constitution of the United States. Subjects of legislation of this character, which are in their character national, affecting the whole country, and confided by the constitution to the general government, ,are exclusively within the legislative control of congress.”

In the case of Stanley v. Wabash, St. L. & P. R. R. Co., 42 Am. & Eng. R. R. Cas. 328, the supreme court of Missouri held that “A statute requiring a railroad company to furnish double deck cars for transporting sheep, was unconstitutional as to an interstate shipment. ’ ’

In H. & St. J. R. R. Co. v. Houston, 95 U. S. 473, a statute of Missouri, prohibiting the entry of Texas cattle at certain times of the year was held bad, as being in violation of the commerce provision of the constitution.

In Norfolk & W. R. Co. v. Commonwealth (Va.), 13 S. E. 345, the court held that a statute of the state of Virginia, prohibiting the running of freight trains within certain hours on Sunday, was bad, as being in conflict with the commerce provision of the constitution of the United States.

After careful consideration of the matter, I am of the opinion that this statute, so far as it- relates to shipments made from other states-through the state of Illinois to other states of the United States; and in so far as it relates to the cases presented by the pleas, is unconstitutional and void; and therefore-the demurrer to said plea should be overruled.