author: Mr. Justice Dickey

text:
    The Town of Abington v. Thomas B. Cabeen.

      Filed at Ottawa March 28, 1883.

      Statute—whether the provisions of an act are expressed in the title ■—of the “Act to incorporate the Dixon and Quincy Railroad Company”— authorizing townships to give aid to the company, etc. The fourth section of the act approved March 4, 1869, entitled “An act to incorporate the Dixon and Quincy Railroad Company,” assumes to confer on townships power to subscribe to the capital stock of or to make donations to said company, and provides for elections to decide as to such subcriptions or donations, for taxation for the payment of the same if voted, and for the issue of bonds to represent the same, etc. It is held that section does not cover and embrace a subject not expressed in the title of the act, within the meaning of the provision in the constitution of 1848, declaring that “no private or local law which may be passed by the General Assembly shall include more than one subject, and that shall be embraced in the title,” and is therefore not unconstitutional. The provisions in such section are so far germane to the subject expressed in the title as to be fairly embraced therein.
    Appeal from the Circuit Court of Mercer county; the Hon. John J. Glenn, Judge, presiding.
    Messrs. Miller, Lewis & Bergen, for the appellant:
    The section in the act of March 4, 1869, entitled “An act to incorporate the Dixon and Quincy Railroad Company, ” which confers power upon municipal corporations to subscribe to the capital stock in such company, and to issue cor-, porate bonds therefor, is in violation of section 23, article 3, of the constitution of 1848, which provides, “no private or local law which may be passed by the General Assembly shall embrace more than one subject, and that shall be expressed in the title. ” Such section violates this clause of the constitution by special legislation in increasing the powers of municipalities to incur indebtedness, in a private act relating to a distinct subject,—the incorporation of a railroad company,—thus embracing two separate subjects, only one of which is expressed in the title. Giddings v. San Antonio, 47 Texas, 553; Cooley’s Const. Lim. 144; City of San Antonio v. Gould, 34 Texas, 49; Cannon v. Hemphill, 7 id. 208; Mayor v. State of Georgia, 4 Ga. 38.
    An act to incorporate a railroad company means an act which confers the ordinary and appropriate powers, rights and privileges incident and adequate to such a franchise. Thomas v. Dakin, 22 Wend. 70.
    The description of the act can not fairly be construed as including the conferring of new powers upon existing municipal corporations, and prescribing a mode for exercising such new powers. No one, from reading the title, would suppose that this object was embraced in it.

      Mr. B. C. Taliaferro, also for the appellant:
    That this section 4 of the charter violates the constitutional prohibition, see Welch et al. v. Post, 99 Ill. 471; Middleport v. Ætna Life Ins. Co. 82 id. 562; Village of Lockport v. Gaylord, 61 id. 276; Giddings v. San Antonio, 47 Texas, 548.
    The township of Abington, being a municipal corporation-, had no power outside of this act to make the subscription. 1 Potter on Corporations, secs. 368-373; Angell & Ames on Corporations, sec. 111; Miller v. Goodwin, 70 Ill. 659.
    Mr. Louis D. Holmes, for the appellee:
    We aver and maintain that the act in question is constitutional ; that the title expressed the object for which the law was passed, and that the whole law embraces only one subject. This court has passed upon the question. Board of Supervisors v. People, 25 Ill. 181. See, also, O’Leary v. Cook County, 21 Ill. 534. We also cite, as upholding these views, Sedgwick on Construction of Constitution, 517, 526, 521 note, 522 note; Firemen’s Association v. Lounsbury, 21 Ill. 511; Burke v. Monroe County, 77 id. 610; People v. Brislin, 80 id. 423; Neifing v. Pontiac, 56 id. 172; People v. Lœwenthal, 93 id. 205; Phillips v. Albany, 28 Wis. 360; Phillips v. Covington Bridge Co. 2 Metc. 219; Louisville Co. v. Ballard, 2 id. 167.
   Mr. Justice Dickey

delivered the opinion of the Court:

This case is before us on an agreed statement of facts, from which it appears that on December 31, 1869, the township of Abington issued, in due form, one hundred bonds, of flOOeach, payable twenty years after date, bearing interest at the rate of ten per centum per annum, payable annually, the interest installments being represented by coupons or notes, of $10 each, attached to the several bonds for the respective years intervening between issue and maturity. These bonds were issued pursuant to a vote at an election held May 20, 1869, “upon due notice, under and in pursuance of section 4” of the act of the legislature of Illinois, approved March 4, 1869, entitled “An’act to incorporate the Dixon and Quincy Railroad Company, ” to determine whether the township should subscribe $10,000 to the capital stock of said railroad company, the majority of the votes cast at such election being in favor of such subscription. The coupons sued on were issued solely for interest on such bonds, and the plaintiff below was conceded to be a Iona fide holder thereof. The bonds were duly registered in the State Auditor’s office, and interest was regularly paid thereon from taxes collected on the order and assessment of the Auditor, up to the year 1880. On the trial of the cause in the Mercer circuit court there was entered a judgment for the plaintiff, from which the township prosecutes this appeal to this court.

It is contended on behalf of appellant that said act of incorporation of said railroad company embraced more than one subject, and that the fourth section thereof, by which it •was attempted to confer on.townships power to subscribe to the capital stock of or make donations to said railroad, and in which are found provisions for elections to decide as to such subscriptions or donations, for taxation to provide for payment of the same if voted, for the issue of bonds to represent the same, etc., covers a subject not- expressed in the title of the act, and that for this reason said section is inoperative, as in contravention with section 23, article 3, of our constitution of 1848, which provides that “no private or local law which may be passed by the General Assembly shall include more than one subject, and that shall be embraced in the title. ” The sole question presented for our determination is, whether the provisions of section 4 of the act named are so far germane to the subject expressed in the title thereof as to be fairly “embraced” therein, or whether that section imports into the act a distinct subject matter not represented by the title,—for the act being a private law, if said fourth section embodies a subject distinct from that covered by the title of the act, such section must be rejected, under the inhibition of the constitution quoted, and the bonds and coupons issued thereunder must be adjudged invalid.

The question before us is not a novel one. In many cases heretofore determined by this court this provision of the constitution of 1848 has been invoked as against the validity of legislative enactments present'd for consideration. In Belleville R. R. Co. v. Gregory, 15 Ill. 20, (decided in 1853,) it was held that a law authorizing the construction of a railroad, with a branch or extension, the purchase of land and the working of coal beds therein, and the purchase or lease of a ferry franchise, did not necessarily cover more than one subject, within the meaning of the constitution of 1848, and that such subject was sufficiently embraced in the title of the bill, which was, “An act to incorporate the Belleville and Illinoistown Railroad Company. ”

In Firemen’s Benevolent Association v. Lounsbury, 21 Ill. 511, it was held the sixth section of “An act to incorporate the Firemen’s Benevolent Association, and for other purposes,” approved June 21, 1852, by which section it was provided that there should be paid to the treasurer of said association two per cent of all premiums received in this State by any agent of any foreign fire insurance company on fire insurance in Chicago, was not obnoxious to the provision of the constitution of 1848, under consideration.

In Board of Supervisors v. People, 25 Ill. 181, the precise point before us came in judgment, and was directly passed upon. In that case the question arose upon the act incorporating the Rock Island and Alton Railroad Company. That act was approved February 14, 1855, and was entitled “An act to incorporate the Rock Island and Alton Railroad Company.” (Private Laws, 1855, p. 305.) By section 16 of the act authority was given each of the counties through which the road should run, to subscribe for stock, borrow money to pay therefor on bonds, etc., to call elections through the proper officers to vote upon the question of such subscription, etc. It was contended that said section introduced a distinct matter into the bill which was not embraced in its title, and that it was therefore unconstitutional. Upon this point the court spoke as follows, viz: “We think the title of this "act sufficient to embrace the whole of the law, and that it is a compliance with the constitutional requirement. All of the provisions of the act are appropriately designed to carry out the object of this corporation. If it was proper to authorize subscriptions to the stock, it was certainly proper to enable individuals or counties to subscribe, and specify the terms and conditions on which they might subscribe, .and the mode of making the subscription. ”

In O’Leary v. County of Cook, 28 Ill. 534, it was held that section 2 of “An act to amend an act entitled ‘an act to incorporate the Northwestern University,’ approved February 14, 1855,” by which section the sale of ardent spirits within four miles of the college was prohibited, and which provided a penalty for violation, and for the recovery thereof, was not unconstitutional, though no such subject or object was named in the title of the bill. The rule enforced by the court was stated in these words, viz: “The object of the charter was to create an institution for the education of young men, and it was competent for the legislature to embrace within it everything which was designed to facilitate that object. Every provision which was intended to promote the well-being of the institution or its students, was within the proper subject matter of that law. We can not doubt that such was the single design of this law. This provision * * * was designed for the benefit and well-being of the institution, and this is the touchstone of the constitutionality of the enactment. ”

It is true that in the case last cited a dissenting opinion was filed by Mr. Justice Bbeese, yet in such dissent he fully recognized the general doctrine above announced, and so clearly stated it that his words are worthy of repetition. He says : “As was said by Sanford, J., in the case of Connor v. The City of New York, 2 Sandf. S. C. R. 361, in which State there is a similar constitutional provision, that the provision was aimed at ‘log-rolling,’ a well known process by which bills to promote individual interests, and even neighborhood projects, often at the expense of the people of a county at large, were combined together, in order to aggregate a sufficient number of votes to carry them all through the legislature. The learned judge might have added, ‘and in one bill.’ If to this provision a rigorous and technical construction is given, much of our legislation would be wiped out, as there is scarcely a railroad charter or other act of incorporation that does not embrace subjects other than that distinctly announced in their titles. The charter of the Belleville and Illinoistown Railroad Company was thought to be obnoxious to this objection, as it authorized the purchase of large tracts of land; but this court was of opinion such a subject was germane to the principal object of the bill, and instanced the charter of the Illinois Central Railroad Company, in which provision is made for the accepting of a large grant of land. (Belleville R. R. Co. v. Gregory, 15 Ill. 20.) The provision itself has rather a shadowy than real importance. The greatest benefit derivable from it is, the people will not be so apt to be deceived as they were when so many subjects in which they had an interest were aggregated in on¿ bill, with a title affording no clue to the contents of the bill. In very many private bills it would be nearly impossible to express all the subjects of it without making the title as voluminous as the bill itself. But few of our private acts could stand the test of a rigid scrutiny. ”

The rule of construction established in these cases is recognized in many later decisions of this court. See Neifing v. Pontiac, 56 Ill. 172; Prescott v. Chicago, 60 id. 121; People v. Brislin, 80 id. 423; Johnson v. People, 83 id. 431; People v. Lœwenthal, 93 id. 191.

This construction having been announced shortly after the adoption of the constitution of 1848, and having been uniformly followed, and often applied before the passage of the act under consideration, we must conclude that in the adoption of the title of that act the legislature proceeded upon the faith of the repeated adjudications of this court, and that they could not have been deceived into the passage of an act that would not have received their sanction with a more specific title. The title adopted being sufficient to apprise the legislators fairly of the general subject matter of the act, all provisions therein fairly related to that general subject, and designed to conduce to the building of the road named, must, in the light of previous decisions of this court, be held to be fairly embraced in the title adopted.

Appellant cites the language of this court in the cases of Middleport v. Ætna Life Ins. Co. 82 Ill. 562, and Welch v. Post, 99 id. 471. Much stress is laid upon the language of the opinion in the case last cited, in which, when considering a question thought to be somewhat like the question here presented, the court say: “On the authority of Middleport v. Ætna Life Ins. Co. we are inclined to hold the point is well taken, and if so, it would be conclusive of the whole case.” It is, however, at once added: “Without passing upon this question definitely, there is another view of the case that is equally conclusive, upon which the decision maybe placed. ” An examination of the full report of both these cases shows that the decision in each of the cases was placed upon other grounds, and in neither case was the precise question considered here presented to the court,—the relation between the title of the statutes considered in those cases and the clauses of those statutes called in question not being precisely analogous to the relation of the title of the statute now under consideration and the clauses here assailed. It is very clear that in what was said in those two cases there was no intention on the part of this court to overrule the doctrine established so thoroughly by the cases above referred to.

Counsel for appellant cite Giddings v. San Antonio, 47 Texas, 548, and San Antonio v. Gould, 34 id. 49. These decisions directly sustain the contention of counsel, but in doing so squarely overrule the earlier' decision of the same court. (San Antonio v. Lane, 32 Texas, 405.) We are satisfied that the earlier decision is more in harmony than the later ones with the current of authority, and is supported by the better reason.

In Phillips v. Covington Bridge Co. 2 Metc. (Ky.) 219, the second section of “An act to amend the charter of the Covington and Cincinnati Bridge Company, ” authorized the city of Covington to subscribe to the stock of the company, to levy a tax to pay the subscription and interest, to sell bonds, etc. It was contended that this section was inhibited by section 37, article 2, of the constitution of Kentucky, which provided as follows’: “No law enacted by the General Assembly shall relate to more than one subject, and that shall be expressed in the title. ” ’ In passing on this point the court used this strong language: “The only provision in this section of the act that is involved in the question we are examining is that which relates to the power conferred on the bridge company to sell, and on the city to subscribe and pay for, $100,000 of the capital stock of the company. It is not denied that this provision, so far as it relates to the bridge company, is consistent with the title of the act; but it is contended that so far as it relates to the city of Covington it is entirely foreign to the subject therein indicated. The power to sell stock to the city of Covington, necessarily requires that' a power should' be conferred on the latter to subscribe and pay for it, for without such a power the power to sell would be nugatory. The subject is the same although it relates to a transaction to which two corporations are parties, one of whom only is named in the title of the act. If by the act a power had been conferred on the city of Covington to subscribe for the stock of any other corporation but the one named' in the title of the act, then the provision would fall within the constitutional prohibition, and be clearly null and void; ¡but as it is restricted in its operation to matters pertaining to the bridge company, and the provisions of the act, so far as they relate to the city of Covington, are apposite to the purpose which was intended to be effected by its passage, and are sufficiently indicated in its title, it is not liable to this constitutional objection. It was certainly not necessary for the legislature to pass two separate acts to effect the object it had in view,—one to enable the company to sell the stock to the city, and another to enable the city to subscribe and pay for it. The constitutional provision relied on must receive a rational construction, and not one that would lead to such an unnecessary and absurd result. ”

The teachings of these cases are not incompatible with our own decisions.

The judgment of the court below' is therefore affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Scholfleld

license: Public Domain

text:
    County of McLean v. City of Bloomington.

      Filed at Springfield March 29, 1883.

    1. Special assessments—exemption—lialility of property of counties, cities, etc. Exemption from taxation does not exempt from special assessments. The constitution makes a distinction between taxation and such assessments. While it provides that -the General Assembly may exempt the property of the State, counties and other municipalities from the former, it makes no such provision as to the latter, but on the contrary authorizes the legislature to vest the corporate authorities of cities, towns and villages with power to make local improvements by special assessments, without any restriction as to the property to be assessed.
    2. The exemption, not the inclusion of the property liable to special assessments, must specifically appear. The general language of the statute authorizing cities, etc., to make improvements by special assessments, includes the property of counties, cities, etc., as well as private property.
    3. While the State may not authorize corporate authorities to levy special assessments upon the property of the United States, as it would he an invasion of the rights of a distinct sovereignty, no such reason exists as between the several agencies of the State government, which are subject to its control and direction. It may authorize a burthen to be imposed on one of its agencies to the extent it is benefited by another agency, for the benefit of the entire public.
    4. Same—how payment enforced against property of county. Real estate of a county can not be sold for a special assessment levied by a city for a public improvement, and the title passed to private parties or to the city. In such case the amount should be paid out of the county treasury, and should this not be done, mandamus would lie to compel it; but before this step can be taken a judgment at law must be obtained for the amount.
    5. Same—former decision. In Craw v. Village of Tolono, 96 Ill. 255, holding that no personal liability could be enforced against the owner of land on account of a special assessment, but that it must be collected from the property itself, it was not intended to overrule the case of Taylor v. People ex rel. 66 Ill. 322, and hold that public property could be sold in such cases; nor was it intended to overrule Higgins v. City of Chicago, 18 Ill. 276, and Scammon v. City of Chicago, 42 Ill. 192, and hold that public property was not liable to special 'assessments, but it was intended only to lay down a rule in regard to the special assessment of properly of private owners.
    Appeal from the County Court of McLean county; the Hon. Reuben M. Benjamin, Judge, presiding.
    Mr. Robert D. Porter, State’s Attorney, for the appellant;
    A special assessment is substantially a tax. The right to make it rests on the same principle, and the mode of collection is essentially the same. Fagan v. Chicago, 84 Ill. 227; Craw v. Village of Tolono, 96 id. 255 ; White v. People, 94 id. 604; Harvard College v. Boston, 104 Mass. 470; Allen v. Drew, 44 Vt. 175; 2 Dillon on Mun. Corp. sec. 596; Cooley’s Const. Lim. 618, side page 496; Cooley on Taxation, 416; Art 9, chap. 24, “Cities,” secs. 150, 153-156.

      Public squares and public buildings, with ground on which they stand, not exceeding ten acres, are, by express law, exempt from taxation. Clauses 6 and 9 of sec. 2, Revenue law, chap. 120, Rev. Stat. 1874, p. 857.
    Federal property is exempt from special assessment, on the same principle that it is exempt from taxation. People v. United, States, 93 Ill. 30; Fagan v. Chicago, 84 id. 227.
    Both Federal and county property is exempt from taxation by the same general law. (Clauses 4, 6, 9, sec. 2, Revenue law.) But by necessary implication, public buildings which are governmental agencies are exempt from special assessment and taxation. The exemption is implied in every constitution, though not expressed in words in the instrument. People v. McCreery, 34 Cal. 432; People v. Austin, 47 id. 353; Fagan v. Chicago, 84 Ill. 227; People v. United States, 93 id. 30; Directors of Poor v. School Directors, 42 Pa. St. 21; Louisville v. Gommomuealth, 1 Duval, (Ky.) 295; People v. Doe, 36 Cal. 220; People v. Salamon, 51 Ill. 30; Cooley on Taxation, 59-130; Nashville v. Bank of Tennessee, 1 Swan, 269; Piper v. Sanger, 4 S. & R. 354; Worcester County v. Worcester City, 116 Mass. 193; Hartford v. West Middle District, 45 Conn. 462.
    The only mode provided by law for the collection of special assessments is by sale of the property. The sale of the court house would interfere with the State’s and county’s instrument of governing, and is therefore impliedly forbidden by the constitution. Gen. Incorp. act, art. 9, secs. 153-156, p. 238; Worcester County v. Worcester City, 116 Mass. 193; Fagan v. Chicago, 84 Ill. 227; Taylor v. People, 66 id. 322; People v. United States, 93 id. 30; Craw v. Village of Tolono, 96 id. 255.
    The only legal method of selling county property is by action of the county board. Secs. 23, 24, chap. 34, “Counties,” Rev. Stat. p. 306; Sec. 16, chap. 30, “Conveyances,” Rev. Stat. p. 238.

      To make the special assessment act apply to counties, would make the act conflict with section 10 of article 9 of the constitution of 1870.
    This judgment purporting to be in personam can not stand. The only judgment authorized is in rem, and that is the only judgment where collection can be enforced. Sec. 148, art. 9, chap. 24, “Cities,” Rev. Stat. 237; Butler v. Nevin, 88 Ill. 575; Craw v. Village of Tolono, 96 id. 255; Worcester County v. Worcester City, 116 Mass. 193.
    Mr. John T. Lillard, for the appellee:
    The judgment is not a personal judgment against the county, but against the lot owned by the county. The words, “recover of McLean county, owner, lot 39, original town of Bloomington, $180, ” can not be construed as a judgment in personam. Burt no sufficient reason exists why a special assessment on lands should not be made a personal charge against the owner, if he is a resident, and has an opportunity to be heard. Cooley on Taxation, 471; Craw v. Village of Tolono, 96 Ill. 255.
    There is no exemption of any property from taxation or assessment except by statute,—and there is no statute on our books exempting, by general or other law, county property from special assessments. Therefore, “by necessary implication, such property is liable to special assessment. ” Cook County v. Chicago, 103 Ill. 646.
    Nor does our constitution provide that an exemption from special assessments may or can be made. Art. 9, sec. 3, “Exemptions,” const. 1870.
    The legislature, in pursuance of the constitution, has, by general law, exempted county property from taxation, but special assessment is not taxation. Cook County v. Chicago, 103 Ill. 646; Higgins v. City of Chicago, 18 id. 276; Chicago v. Colby, 20 id. 614; City of Peoria v. Kidder, 26 id. 352; Wright v. City of Chicago, 46 id. 44; Nix v. Post, 57 id. 121; Cooley on Taxation, 146; Canal Trustees v. City of Chicago, 12 Ill. 405.
   Mr. Justice Scholfleld

delivered the opinion of the Court :

This is an appeal from- a judgment rendered against the court house square of the county of McLean, in favor of the city of Bloomington, upon a special assessment for the improvement of adjacent streets.

The objections urged may be included under three heads: First, the property is exempt from special assessments; second, the statute under which the city is proceeding does not authorize any assessment against property of the county; third, the judgment can not be enforced by sale of the property, and no other mode of enforcing the payment of such judgment can be resorted to.

It is not claimed the first objection has the direct sanction of the statute in its support, but the contention is, such property is expressly exempt from taxation, and special assessments are included within the. meaning of the word taxation. We have been too long and too firmly committed to the doctrine that exemption from taxation does not exempt from special assessments, to now admit that it is even debatable. Trustees et al. v. City of Chicago, 12 Ill. 403; Higgins v. City of Chicago, 18 id. 276; City of Chicago v. Colby, 20 id. 614; City of Peoria v. Kidder, 26 id. 352; Wright v. City of Chicago, 46 id. 44; Nix v. Post, 57 id. 121. The distinction between taxation and special assessment is, also, clearly made in our present constitution, (secs. 1-5, 9, art. 9,) and while providing that the General Assembly may exempt the property of the State, counties and other municipal corporations from the former, (section 3, supra,) makes no such provision in regard to the latter, but on the contrary, by section 9, supra, authorizes the General Assembly to “vest the corporate authorities of cities, towns and villages with power to make local improvements by special assessments, ” without any restriction as to the property to be assessed.

The second objection rests entirely upon the assumption that to include the property of counties it should be expressly named,—that language, however comprehensive, in general terms only, is not sufficient. The rule held by this court is directly the reverse of this assumption. The exemption, not the inclusion, must specifically appear. General language, like that under which the city is proceeding, includes the property of counties, cities, etc., as well as private property. Higgins v. City of Chicago, supra; Scammon v. City of Chicago, 42 Ill. 192; Cook County v. City of Chicago, 103 id. 646.

There is not the slightest analogy between Fagan v. City of Chicago, 84 Ill. 227, and The People v. United States of America, 93 id. 30, cited by counsel for appellant. There the question related to the right of one sovereignty to invade another. The relation between cities and villages and counties is totally unlike that between the government of the State and the general government of the United States. Cities, villages and counties are mere agencies of the State, by and through which to conveniently administer local government. In the absence of express constitutional restraint the General Assembly might abolish them, one or all, and substitute other and .entirely different agencies in their stead. We have repeatedly held, that although the fee of streets is in the city, she has no private property in them, but holds them in trust for the use of the public,—not the citizens of the city alone, but the entire public, of which the legislature is the representative. (Chicago v. Rumsey, 87 Ill. 355; The People ex rel. v. Walsh et al. 96 id. 232; City of Chicago v. Union Building Association, 102 id. 379.) So here, instead of one sovereignty invading another, as in the cases referred to, we have the General Assembly simply authorizing that property held by one of its agencies shall be burdened with a charge for the benefit of another of its agencies to the extent it has been benefited by that agency, in regard to a matter in which the citizens and property owners within the territorial limits of such last named agency have no exclusive interest, but only an interest in common with the entire public. The question relates purely to the right of the State to apportion a public burden upon public, in common with private, property, in proportion to the benefits conferred upon that property, and in nowise involves any questions of conflicting sovereignties.

The remaining objection, we think, involves no serious difficulty, though, at first blush, it may seem to do so. We certainly do not hold the court house square may be sold and the title passed to private parties, or to the city. In Taylor v. The People ex rel. 66 Ill. 322, we held, explaining Scammon v. The City of Chicago, supra, that in such cases the amount should be paid out of the treasury. Should this not be done, mandamus would lie to compel it. (City of Olney v. Harvey, 50 Ill. 453.) And it seems that the judgment at law must precede the mandamus, the latter being in the nature of process of execution of the former. The People ex rel. v. Board of Supervisors, 50 Ill. 213.

Finally, reference is made to Craw v. Village of Tolono, 96 Ill. 255, in which we held no personal charge can be enforced against the owner on account of a special assessment, but it must be collected from the property itself. It was not intended in that case to overrule Taylor v. The People ex rel. supra, and to hold that public property can and must be sold in such eases. Nor was it intended to overrule Higgins v. City of Chicago, and Scammon v. City of Chicago, supra, and hold that public property is not liable to special assessments, but it was simply intended to lay down a rule in regard to the special assessment of property of private owners. Undoubtedly, the principle will equally protect the public owner from being charged in this way more than the value of its property,—but as that is not claimed to have been done here, it is not necessary to discuss the mode by which to interpose such defence.

Some objection is taken to the form of the judgment, but this we regard as of no moment. No execution can issue upon the judgment, nor can the court house square be sold by virtue of it. If it shall not be paid without coercion, that coercion must be by mandamus against those who properly represent the county, and are derelict in the performance of their duty in that regard.

The judgment is affirmed.

Judgment affirmed.


author: Mr. Justice Craig

text:
    Indianapolis and St. Louis Railroad Company v. Daniel Morgenstern, Admr.

      Filed at Springfield March 29, 1883.

    1. Appeals—reviewing questions of fact. In an action on the case against a railway company to recover compensation for the death of an employé of the company, alleged to have been caused by negligence, in which a recovery is had, and the judgment is affirmed by the Appellate Court, this court is precluded from considering whether the verdict is sustained by the evidence, and from examining any of the controverted questions of fact.
    2. Law and pact—as to negligence—and who are fellow servants. The definition of negligence is a question of law, but it is a question of fact whether a particular case falls within that definition; and the same rule may be applied to the question of who are fellow servants of the same master. as to whether negligence in fact is shown, and whether the party killed thereby was a fellow servant, and received the injury from another servant of the same master in the same line of duty, bringing them often together, cooperating in the same work, this court is precluded from determining.
    3. Practice—demurrer waived by pleading over. If a defendant, after his demurrer to the declaration is overruled, pleads to the merits, he abandons his demurrer and admits the sufficiency of the declaration, and can not assign for error the decision on the demurrer.

      Appeal from the Appellate Court for the Third District; —heard in that court on appeal from the Circuit Court of Coles county; the Hon. J. W. Wilkin, Judge, presiding.
    Mr. John T. Dye, and Mr. Charles Bennett, for the appellant:
    All who serve the same master, work under the same control, derive authority and compensation from the same common source, and are engaged in the same general business, though it may be in different grades or departments of it, and who are habitually brought together in the performance of their usual duties, so that the safety of each depends upon the care with which the other shall perform his appropriate duty, and that each is an observer of the conduct of the other, and can give notice of any neglect of duty to the common master, are fellow servants, who take the risk of each other’s negligence. Wood on Master and Servant, 837, and eases cited; Thompson on Negligence, 969, note 2, and 1026, sec. 31, and notes; Moak’s Underhill on Torts, (1881,) 52, and cases cited; Addison on Torts, sec. 565, note; Farwell v. Railroad Co. 4 Metc. 59; Morgan v. Vale of Neath R. R. Co. L. R. 1. Q. B. 149; Gravelle v. Minneapolis and St. Louis R. R. Co. 10 Fed. Rep. 711; Pittsburg R. R. Co. v. Ranney, 37 Ohio St. 665; Howland v. Milwaukee R. R. Co. 54 Wis. 226; Illinois Central R. R. Co. v. Cox, 21 Ill. 20 ; Chicago and Alton R. R. Co. v. Keefe, 47 id. 108; Chicago and Alton R. R. Co. v. Murphy, 53 id. 336; Valtez v. Ohio and Mississippi Ry. Co. 85 id. 500; Chicago, Burlington and Quincy R. R. Co. v. Clark, 92 id. 47; Chicago and Northwestern R. R. Co. v. Moranda, 93 id. 302.
    Messrs. Craig & Craig, for the appellee:
    The rule that a servant can not recover from a common master, for the negligence of a fellow servant, is limited to cases where both servants are in the same line of employment. Chicago and Northwestern R. R. Co. v. Moranda, 93 Ill. 302; Pittsburg, Ft. Wayne and Chicago Ry. Co. v. Powers, 74 id. 345; Chicago, Burlington and Quincy R. R. Co. v. Gregory, 58 id. 284; Toledo, Wabash and Western Ry. Co. v. O’Conner, 77 id. 396.
    The two servants here were not engaged in the same department of business, but in entirely different ones, having no connection with each other.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an action brought by the administrator of the estate of Hugo Eilenstine, deceased, to recover damages on account of the death of the intestate, which was caused, as alleged, by the negligence of one of defendant’s servants.

It is alleged in the second count of the declaration, in substance, that Hugo Eilenstine, in his lifetime, at Mattoon, was in the employment of the defendant, in the capacity of inspector of rolling stock of said company, and that it was his duty, on the arrival of trains in Mattoon, to be present to examine the wheels and trucks, for the purpose of seeing that they were kept in good repair; that as such inspector he had nothing to do with the running of trains upon defendant’s road; that his duties were totally disconnected from the running department of defendant’s railroad; that it was necessary and customary for said Eilenstine, while said passenger trains were approaching, to stoop or squat down alongside the track, and to strike the wheels of the cars with a hammer, in order to ascertain their condition; that on the day aforesaid one of defendant’s trains arrived in Mattoon, and the said Eilenstine, in the discharge of his duty, stooped down in the customary manner alongside said track, and that one Solomon Bray, a servant of defendant, as baggage-master at Mattoon station, whose duty it was to assist in loading and unloading baggage from the baggage car, had baggage to be loaded in said ear, which was then and there on a truck under the management of said Bray, and the servants of defendant so negligently and carelessly managed said truck, and the baggage thereon, that, in consequence of the negligence of defendant, a piece of baggage on said truck, to-wit, a trunk, in consequence of the negligence and carelessness of the defendant’s servants and agents, as aforesaid, then and there fell from said truck and struck the said Hugo Eilenstine, while he was in the-exercise of all due care and caution, and without any fault or negligence on his part whatever, with such force and violence as to knock the said Hugo Eilenstine on the track of the defendant, and he was crushed by the said car of said train, which caused the death of the said Eilenstine on said day, to-wit, September IS, 1880. And the plaintiff further avers that the death of the said Hugo was in nowise contributed to by his own negligence, or by the fault or negligence of any of his fellow servants or co-employés engaged with him in the same or similar line of duty, but was wholly produced by the carelessness, fault and negligence of the other servants and employés of said defendant then and there engaged in an entirely dissimilar line of duty, and with whom said Hugo Eilenstine, deceased, had no connection whatever, and over whom he could not, nor did, exercise any control. To the declaration the defendant demurred, and the demurrer having been overruled, it pleaded the general issue. On the trial of the cause evidence was introduced tending to prove the averments of the declaration, and the plaintiff recovered a judgment, which, on appeal, was affirmed in the Appellate Court, to reverse which the railroad company has brought this appeal.

The principal part of appellant’s argument has been devoted to the discussion of a controverted question of fact,— that the verdict of the jury is contrary to the evidence. Under this branch of the argument it is contended that Eilenstine’s death was the result of his own negligence, and that the evidence fails to show the slightest negligence on the part of the defendant. What led to the death of Eilenstine, and whether appellant was guilty of negligence, was purely a question of fact for the jury, and under our statute we are precluded from reviewing the verdict. That was a proper question for review in the Appellate Court, but the decision of that court is final, so far as the controverted facts are concerned.

It is also contended that the deceased, and Bray, the baggage-master, were fellow servants, and upon that account no recovery can be had. In Great Western R. R. Co. v. Haworth, 39 Ill. 346, it was held that negligence is not a legal question, but is one of fact, and must be proved like any other. This was followed by Chicago and Alton R. R. Co. v. Pennell, 94 Ill. 448, where the same doctrine was announced. In Pennsylvania Co. v. Conlan, 101 Ill. 93, what was said in the cases cited was approved, and it was further held that the definition of negligence was a question of law, and it was a question of fact, to be determined from the evidence, whether the particular case falls within the definition.

What has been said in relation to the question of negligence may also be said in regard to fellow servants. The definition of fellow servants may be a question of law, but it is always a question of fact, to be determined from the evidence, whether a given case falls within that definition. Whether the deceased and Bray were fellow servants depended upon a variety of facts, which had to be proven before the jury. The inquiry would arise whether they were in the service of a common master; were they engaged in the same line of employment; were the existing relations between them of such a character, and their duties such, as to bring them often together, cooperating in a particular work. These, and perhaps other facts of a kindred character, were matters to be proven before the jury, and from the facts thus proven it was for the jury then to say whether the two servants, in the discharge of their duties, were fellows. Had appellant desired to raise the question for decision in this court, whether, under the evidence, the deceased and Bray were fellow servants, it might have done so by an appropriate instruction, but under the statute we can not review the evidence, and from it determine the question.

It is also urged that the court erred in refusing instructions Nos. 5f- and 8, on the question of contributory negligence. At the request of appellant, the court, in instruction No. 7, directed the jury, that if they believed, from the evidence, that by the exercise of ordinary care and watchfulness Eilenstine could have avoided the injury, and that he failed to exercise such a degree of care and watchfulness, then plaintiff could not recover in this action, unless defendant was guilty of gross negligence. This instruction is in substance like No. 8, which contains all embraced in the other refused instruction proper for the consideration of the jury, and the refusal of the two instructions named could work no injury to appellant. As to instruction No. 14, the principle therein announced was given to the jury in No. 11, and as has been held in numerous cases, it is not error to refuse an instruction announcing the same principle in different language.

It is also urged that the court erred in overruling a demurrer to the declaration. After the demurrer was overruled the defendant pleaded to the declaration. This was a waiver of the defects in the declaration, if it contained any. If the defendant deemed its demurrer well taken, it should have abided by it, and not tendered an issue on the facts. By abandoning the demurrer and pleading to the declaration it admitted the sufficiency of the declaration, and can not now assign the decision upon it as error. American Express Co. v. Pinckney, 29 Ill. 392; Quincy Coal Co. v. Hood, 77 id. 68.

After a careful examination of the whole record we find no substantial error in it, and the judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Mulkey

text:
    Luke Nevin v. The Pullman Palace Car Company.

      Filed at Springfield March 29, 1883.

    1. Action on the case, and action ex contractu—of the distinction between them. The gravamen of the charge in an action on the case is the tort or wrong of the defendant, notwithstanding such tort or wrong may also be a breach of an express or implied contract, whereas in an action ex contractu the gist of the action is the breach of the contract, without regard to the tortious character of the act of the defendant.
    2. The general principle seems to be, where the duty for the breach of which the action is brought would not be implied by law by reason of the relations of the parties, whether such relations arose out of a contract or not, and its existence depends solely upon the fact that it has been expressly stipulated for, the remedy is in contract, and not in tort,—when otherwise, case is an appropriate remedy. Assumpsit is a concurrent remedy with case in all cases where there is an express or implied contract.
    3. Same—when an action on the case lies—against a common carrier. An action on the case will lie for a mere nonfeasance against persons exercising certain public trades or employments, independently of any contract relation, as, -when a common carrier, having the requisite means of transportation, refuses to carry goods or passengers.
    4. Sleeping oar company—as a carrier—duty and liability—remedy of passenger. A sleeping car company operating and running sleeping coaches over railroads, by force of law, independently of contract, owes duties to the public as a common carrier, one of which is that it shall treat all persons whose patronage it has solicited with fairness and without unjust discrimination, and it is liable in case for a breach of such duty to the party injured thereby.
    5. Where a passenger, who, under the rules of such company, is entitled to a berth upon payment or tender of the usual fare, and to whom no personal objection attaches, enters the company’s sleeping car at a proper time for the purpose of procuring accommodation, and in an orderly and respectful manner applies for a berth, offering to pay or tendering the customary price therefor, the company is bound by law to furnish it, provided it has a vacant one at its disposal.
    6. Where a berth in a sleeping car is engaged, the passenger impliedly agrees to conduct himself in a quiet and orderly manner, to take proper care of the berth while in his possession, and to give up the same at the end of his journey; and the carrier company impliedly stipulates to use all reasonable and proper means to preserve order and decorum in the sleeper, to furnish and keep on hand such supplies and conveniences as are usually found in like sleepers, and are necessary to the health, comfort and safety of passengers, and also to permit the passenger to quietly and peaceably occupy his berth for the time engaged. And case lies for the breach of such implied contract against the carrier, as well as assumpsit.
    Writ of Error to the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of McLean county; the Hon. Owen T. Beeves, Judge, presiding.
    Messrs. Tipton & Ryan, for the plaintiff in error:
    The averments of the declaration show that the defendant was engaged in a public employment, as a regular business, for hire, and so held itself out to the traveling public.
    A common carrier is one who undertakes, for hire or reward, to transport the goods of such as choose to employ him, from place to place. This may be carried on at the same time with other business. Dwight v. Brewster, 1 Pick. 53; F. and M. Bank v. Ch. Trans. Co. 23 Vt. 186; 2 Parsons on Contracts, 104, 158, 178; 2 Hilliard on Torts, 538; Parmalee v. Lowitz, 74 Ill. 116.
    A common carrier need not be the owner of the conveyance employed in the business. Buckland v. Adams Express Co. 97 Mass. 124; Lowell Wire Fence Co. v. Sargeant, 8 Allen, 189; Sherman v. Wells, 28 Barb. 403; Christenson v. American Express Co. 15 Minn. 270; Rogers v. Wheeler, 43 N. Y. 598; Dickinson v. Winchester, 4 Cush. 114; Belger v. Dinsmore, 51 Barb. 69; Verrier v. Sweitzer, 32 Pa. St. 208; Place v. Union, 2 Hilt. 19; Mercantile, etc. v. Chase, 1 E. D. Smith, 115; 1 Hilliard on Torts, sec. 1.
    There is an implied engagement on the part of public carriers of persons not to refuse those who apply for seats by their conveyance, the privilege of traveling in such manner, provided there is room for them, and a tender of or offer to pay the fare is made at the time. Angelí on Carriers, secs. 524, 418; Brotherton v. Wood, 3 Bro. & Bing. 54; Pickford v. Grand Junction R. R. Co. 8 M. & W. 372; Bennett v. Dutton, 10 N. H. 481; Tarbell v. Central Pacific R. R. Co. 34 Cal. 616; 3 Kent’s Com. sec. 599; Frink v. Schroyer, 18 Ill. 419.
    Plaintiff in error has properly declared in case. A party may sue in assumpsit, according as the neglect of duty or breach of promise is intended to be relied upon as the cause of injury. Angell on Carriers, sec. 422; Brotherton v. Wood, 3 Bro. & Bing. 54; Griffin v. Farwell, 20 Vt. 151.
    An action on the case includes assumpsit as well as tort. 1 Chitty’s Pleading, sec. 182; Hathorn v. Calef, 53 Maine, 471; Albert v. Blue, 10 B. Mon. 92.
    Defendant in error promised to furnish appellant a berth and conveyance therein, and by designating and assigning the berth, commenced upon its undertaking, and case lies for the refusal to perform that undertaking. Hyde v. Moffat, 16 Vt. 271; Frink et al. v. Schroyer, 18 Ill. 419; Bufft v. Troy and Boston R. R. Co. 36 Barb. 420; Edwards on Bailments, sec. 699.
    For cases recognizing the Pullman Palace Car Company as a common carrier, see Pullman Palace Car Co. v. Baker, 4 Col. 344; Welch v. Pullman Palace Car Co. 1 Buff. (N. Y.) 457.
    Messrs. Fifer & Phillips, for the defendant in error,
    argued that the Pullman Palace Car Company was not a common carrier, in any such sense as would authorize the law to interpose, and, upon grounds of public policy, impose an obligation to exercise its calling upon proper application, independently of any contract.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This was an action on the case, brought by Luke Kevin, the plaintiff in error, in the circuit court of McLean county, against the Pullman Palace Car Company, the defendant in error, for refusing to permit him to occupy a sleeping berth in one of its cars, which had been assigned to him, an&^whieh he was ready and offered to pay for. The circuit court sustained a general demurrer to the declaration, and the plaintiff electing to stand by his declaration, judgment was entered against him for costs, which, on appeal, was affirmed hy the Appellate Court for the Third District, and the plaintiff in error brings the record here for review.

The declaration, omitting mere formal averments and unnecessary verbiage, charges, in substance, that the plaintiff, on the éth day of August, 1881, at Dubuque, Iowa, purchased of the Illinois Central Railroad Company, for his niece, wife and himself, respectively, three first-class passenger tickets over that company’s railway, from Dubuque, Iowa, to Chicago, this State; that having provided himself with these tickets, he, together with his wife and niece, about ten o’clock of the night of that day, and just before the train from Dubuque to Chicago started out, entered a sleeping car called “Kalamazoo,” belonging to and constituting a part of said train, which said sleeping car was then in the possession and under control of the defendant; that upon entering the car he engaged of the conductor of said car two lower berths, at one dollar and fifty cents each; that the conductor thereupon assigned one berth to his niece, and one to plaintiff and his wife, promising to have them made up a little later in the night; that he and his wife took the seats in the berth assigned to them, and remained sitting up, in an orderly manner, until about twelve o’clock, frequently, in the meantime, requesting the conductor to have the berths made up, so they could retire to rest, and at the same time tendering to him the price agreed to be paid therefor; that on the arrival of the train at Lena, this State, about the hour just stated, plaintiff temporarily left his seat, and stepped out on the platform of the sleeper, intending to return immediately to his berth, when the conductor instantly closed and secured the outer doors of said sleeper, and thereby prevented him from again entering the same; that plaintiff endeavored to open said doors and reenter said car, and frequently requested the conductor to permit him to do so, but that said conductor, instead of complying with his request, removed his satchel, coats and shoes from the berth so assigned to him and his wife, to another car, and ejected the latter from said sleeper, by means of which plaintiff was compelled to take and occupy a seat in a common passenger car on said train till its arrival in Chicago, by reason of which plaintiff was deprived of his rest and sleep, in consequence of which “he became exceedingly weary and sick, and was greatly humiliated, ” etc.; that his expulsion from his berth in the manner stated was done willfully and maliciously, and that the only reason assigned by the conductor for refusing the price of the berths was, “that they were not made up.”

It is hot claimed or pretended, as we understand counsel, that the facts alleged in the declaration do not show a good cause of action, but the claim rather is, that they disclose a right to recover in assumpsit, and not in case,—or, in other words, the contention is, that the plaintiff has misconceived his action; that the only wrong complained of consists of a breach of an express contract, and therefore the action should have been brought in form ex contractu, and not in form ex delicto, as it was.

We sh^ll not attempt a review of the authorities, with a view of extracting from them some general principle or rule by which the question in hand may be satisfactorily solved, but shall content ourselves with adverting to such general rules and principles relating to the subject as are fully established by the authorities, and which we regard as conclusive of the question. We have been led to adopt this course mainly from two considerations. In the first place, the cases bearing on the question are so very numerous that a general review of them would be an almost endless undertaking; and in the next place, it would be impossible to harmonize all that has been said by the courts, even of the highest character, in attempting to define the true and exact limits of an action on the case.

To proceed, then, it is agreed by all the authorities the gravamen of the charge in an action on the case is the tort or wrong of the defendant, notwithstanding such tort or wrong may be also a breach of an express or implied contract, whereas in an action ex contractu the gist of the action is the breach of the contract, without regard to the tortious character of the act of the defendant. It follows, therefore, if •there is a right of recovery at all in this case, it must be upon the ground the defendant has been guilty of some tort or wrong resulting in damage to the plaintiff. That the conduct of the defendant was wrong and indefensible, and that the plaintiff was subjected to great inconvenience and suffering in consequence of it, is not, and can not be, denied; but the contention is, that all the defendant did on the occasion was a mere breach of the special contract between the parties, and that the remedy therefore is on the contract, and not in' tort,—and this is the vital question in the case.

Without stopping, for the present, to inquire whether the position of the defendant is well founded to the extent claimed, but conceding it to be so for the purposes of the argument, is it true, as a universal proposition, that this form of action will not lie in any case where the conduct complained of is a direct breach of an express contract ? Certainly not. A simple illustration will demonstrate the fallacy of such a position. Suppose A contracts with B to keep the latter’s horse for an indefinite period at fifty cents a day, the horse to be returned to B on demand, and A, after having been paid all charges for the keep of the horse, should refuse to redeliver him to B, on demand, no one, in such case, would question for a moment the right of B to maintain an action of trover against A for the horse, which is one species of the action on the case,—and yet, in the case supposed, the refusal of A to redeliver the horse, the real cause of action is, in the strictest sense of the term, a direct breach of the special ^contract between the parties. While the fact that the act or acts complained of constitute the breach of a special contract between the parties may always be looked to, in connection with other elements that enter into the question, it is by no means conclusive in determining whether case will lie. An examination of the standard authors who have treated of this subject, as^well as of the decisions bearing on the question, conclusively shows that there are many elements that often enter into the question besides the one just mentioned, such as, the business, profession or calling of the wrong-doer ; the character of the relations between the parties,—whether one of trust and confidence, or otherwise; whether the defendant rests under any implied duties or obligations to the plaintiff, arising either ex contractu or ex lege, and the like. One or more of these considerations often become important factors in determining whether the action will lie.

It is a familiar doctrine that case will -lie for a mere nonfeasance against persons exercising certain public trades or employments, where no contractual relation exists between them and the plaintiff, as, where a common carrier, having the requisite means of transportation, refuses to carry goods or passengers. Chitty, in discussing this matter, in his work on Pleadings, says: “There are, however, some particular instances of persons exercising certain public trades or employments, who are bound by law to do what is required of them in the course of their employments without aid of express contract, and are in return entitled to a recompense, and may, therefore, be sued in case, as for a breach of duty in refusing to exercise their callings,—as, where a common carrier, having convenience, refuses to carry goods, being tendered satisfaction for the carriage; pr an inn-keeper to receive a guest, having room for him; or a smith, having materials for the purpose, to shoe a horse for a traveler; or a ferryman to convey one over a common ferry, and the like.” (Vol. 1, 136.) It is clear, from the language of this author, the classes of persons enumerated are intended as mere examples of the application of the general principle stated, and not as a limitation of the rule itself, and ' by a well recognized rule of the common law the same principle should be extended to all other trades and callings that bear the same relation to the public as those just enumerated, and the fact that no precedent can be found for it is entitled to but little consideration, when it is clear the case in hand falls within the principle. This is particularly true with respect to extending as a remedy.the action we are considering, to new states of facts, where they clearly fall within the general principle upon which the action is maintained. To the objection there was no precedent for the action made on a certain occasion before Pratt, Ch. J., (afterwards Lord Camden,) he is reported to have said: “I wish never to hear this objection again. The action is for a tort. Torts are infinitely various, not limited or confined, for there is nothing in nature but may be an instrument of mischief.”» Indeed, the writ in case, as its very name imports, was invented for the express purpose of giving a remedy where none of the old forms of writs were applicable, and the British Parliament, by Stat. Westm. 2 C. 24, with the view of promoting the remedy by this writ, expressly directed that “where in one ease a writ is granted, in like case, when like remedy falleth, the writ shall be made as hath been used before; ” and when “in one case a writ is found, and in like case, falling under like law, and requiring like remedy, is found none, the clerks of the chancery shall agree in making the writ.” 2 Inst. 404.

Since, as we have just seen, certain legal consequences affecting the question we are considering result from the exercise of certain public trades or employments, it becomes important to determine, with some degree of particularity, the true relation which the Pullman Palace Car Company sus- ’ tains to the public, and to point out, so far as we are able, the difference between it and persons or companies exercising public callings or employments like those above enumerated, if, indeed, any such difference exists. Like an ordinary railway company engaged in the transportation of freight and passengers, this company transacts its entire business, so far as it relates to this case, over the various railways in this and other States. Like railway companies it exercises special privileges and franchises granted to it by the State, and its business is transacted almost exclusively with the traveling public. Its cars on the various lines of road are extensively advertised all over the country, setting forth-, in fitting terms; the accommodations and comforts they afford, rates of charges, etc., and the public are earnestly invited to avail themselves of the advantages and comforts they thus offer. In what respect, then, does this company differ in its? relation to the public, so far as the present inquiry is con-]; cerned, from an ordinary railway company? No difference] has been pointed out by counsel, and we are confident none^ can be. Why, then, should not the same principles be held to apply to it that apply to common carriers, and others in like employments, in so far as their relation to the public is the same ? To say there is no precedent for it, we have just seen, is not a sufficient answer. Indeed, it has ever been the boast of the common law, that, by reason of its elasticity, it adjusts and moulds itself to meet the constant changes in the affairs of life, and that it never hesitates to apply old rules to new cases, when it is clear they come within the reasons or principles of such rules. The business of this company in running its elegant and commodious sleepers over various lines of railways has become one of the great industries and enterprises of the country, contributing, perhaps, as much, or more, than any one thing to the convenience and comfort of the traveling public. Indeed, the running of these sleepers has become a business and social necessity. Such being the case, can it be maintained the law imposes no obligations or restrictions on this company in the discharge of its duties to- the public? Or, more accurately put, is it true this company owes no duties to i the public except such as are due from one mere private' person to another? Can it be possible that the common carrier, the ferryman, the inn-keeper, and even the blacksmith on the roadside, are all, by reason of the public character of their business, by mere force of law, placed under special obligations and duties to the public which they are bound to observe in the exercise of their respective callings, while, at the same time, this company is entirely relieved from the observance of all such duties and obligations which are not expressly contracted for? We think not. To so hold would be to unjustly discriminate between parties similarly situated, and make the law inconsistent with itself, to the great detriment of the public.

If, then, this company owes any duties to the community by reason of its relation to the public, as we hold it does, manifestly one of them is, that it shall treat all persons | whose patronage it has solicited with fairness, and without ji unjust discrimination. When, therefore, a passenger, who, under the rules of the company, is entitled to a berth upon payment of the usual fare, and to whom no personal objection attaches, enters the company's sleeping car at a proper time for the purpose of procuring accommodations, and in an orderly and respectful manner applies for a berth, offering or tendering the customary price therefor, the company is bound to furnish it, provided it has a vacant one at its disposal. To require this of the company is merely exacting of it that which is clearly dictated by the plainest principles of justice and fair dealing. To construe the law otherwise might lead to great abuses and the grossest injustice, detrimental alike to public and private interests. Suppose, for instance, a party who, by reason of advanced age or feeble health, is unable to travel after night except in a sleeper, having an important business engagement at a distant point on a specified day, with a choice of several routes, after having examined the advertisements relating to them makes his selection of the one that has through sleepers, and accordingly arranges his time of departure so as to reach his destination by traveling day and night. At the appointed time for leaving he provides himself with a first-class ticket over the road and enters the sleeper, where he finds plenty of vacant berths, and asks the conductor to assign him one, tendering the customary price therefor, but the conductor, from some private pique, or from mere wantonness, refuses to let him have one, and by reason of such refusal he is unable to meet his business engagement, whereby he is subjected to great pecuniary loss. Can it be said there is no remedy in such ease ? Certainly it can, if the law does not, under the circumstances supposed, impose upon the company the duty of furnishing berths when it has them for disposal. But, as we have already seen, such is not the law. Holding then, as we do, where there are sleeping berths not engaged, it is the duty of the company, upon the payment or tender of the customary price, to furnish them to applicants when properly called for by unobjectionable persons, it follows the defendant was not justifiable in refusing to let the plaintiff have one for himself and wife, and it is well settled the fact there was a special contract between the company and the plaintiff, upon which an action of assumpsit might have been maintained, does not at all affect the right to recover in the present form of action, which is founded upon the defendant’s common law liability, as above stated.

But outside of this view, of the soundness of which we have no doubt, the same result may be reached by a somewhat different process, though the principle, perhaps, is the same in both cases. Let us assume, then, for the purposes of the argument, the defendant owes to the public no common law duties in the absence of any contract relating to its business. It would then follow the defendant is under no obligation to the plaintiff, except such as grew out of the contract entered into between them. But it does not follow that all the duties growing out of the contract on either side must have been expressly stipulated for. On the contrary, nothing is better settled than that in many contracts, especially those which establish peculiar relations between the parties, as, those of confidence and trust, the law silently annexes certain conditions, and imposes mutual obligations and duties, which are not all, in express terms, provided for in the contract, yet, in contemplation of law, they are nevertheless," regarded as a part of the contract, and the non-performance of them may, in an action on the contract, be assigned as a breach thereof. But while assumpsit will certainly lie for a breach of these implied duties, it is equally well settled that case will lie also. Strictly speaking, these duties arise ex lege out of the relation created by the contract. As familiar illustrations of this class of contracts, which give rise to an almost infinite variety of implied duties and obligations, may be mentioned those between client and attorney, physician and patient, carrier and shipper, and, in short, every species of bailment. In all these and analogous eases it is conceded 'caseds a concurrent remedy with assumpsit for a breach of the implied duties growing out of any of these relations.

Now, when we look at the contract between the plaintiff and defendant, the character of the business of the company, the subject matter of the contract, the relations of the parties with respect to such subject matter, and all the circumstances attending the transaction, can it be doubted for a moment that the contract falls within the same class of contracts as those between carrier and passenger, and the like ? Can it be questioned that upon assigning the two berths to the plaintiff upon the terms which he agreed to and offered to 'comply with, and which the company agreed to accept, the contract thus made at once became obligatory and binding upon the parties, and that it established a special relation between them, such as that between carrier and passenger, and the like, to which the law, of its own force, annexed certain implied obligations and duties, to be respectively observed and performed by the parties towards each other ? Clearly not. What were some of these implied duties ? On the part of the plaintiff, he impliedly agreed to conduct himself in a quiet and orderly manner, to take due and proper care of the berths while in his possession, and surrender the same at the end of his journey in as good condition as when assigned to him, necessary wear excepted. On the part of the company it was impliedly stipulated that it would use all reasonable and proper means within its power to preserve order and decorum in the sleeper during the journey, and especially during sleeping hours, and that it would furnish and keep on hand such supplies and conveniences as are usually found in like sleepers, and are necessary to the health and comfort of passengers, and also that it would permit the plaintiff .to quietly and peaceably occupy the berth engaged by him during the journey, and not expel him or his wife from the car or such berth, or otherwise attempt to interfere with its proper use and enjoyment, so long as he and his wife demeaned themselves with propriety. None of these duties were, or ever are, expressly stipulated for by one engaging a sleeping berth, for the simple reason the law always implies them from the relation of the parties created by the contract securing a berth; and for a breach of any of these implied duties, it is clear, as already shown, case is a concurrent remedy with assumpsit, and, indeed, is always the more appropriate remedy where matters of aggravation are relied on as an element of damage. It is clear, in the present case the defendant utterly disregarded its duty in not making up the berth of the plaintiff, and in not permitting him and his wife to occupy it through the night, and in expelling them from the car, and for this it must be held liable.

The view here expressed is believed to be in consonance with the general principles of the law, and is clearly sustained by some of the best considered eases, both English and American. Burnett v. Lynch, 5 Barn. & Cress. 589; 11 Eng. Com. Law, 597; Hancock v. Coffin, 21 Eng. Com. Law, 318; Dickson v. Clifton, 2 Wils. 319; Boorman v. Brown, 3 Adol. & E. (N. S.) 525. In this last case, Chief Justice Tindal, in delivering the judgment in the Exchequer Chamber, entered into an extended review of the authorities, and in summing up used this language: “The principle in all these cases would seem to be, that the contract creates a duty, and the neglect to perform that duty, or the nonfeasance, is a ground of action upon a tort, ”—and this ease was affirmed on appeal to the House of Lords. (11 Cl. & Fin. 44.) In this case, Lord Campbell, in delivering the judgment in the. House of Lords, says: “I think the judgment of the Court of Exchequer Chamber is right, for you can not confine the right of recovery merely to those eases where there is an employment without any special contract. But wherever there is a contract, and something to be done in the course of the employment which is the subject of that contract, if there is a breach of the duty in the course of that employment the plaintiff may recover, either in tort or in contract. ” This, subject to the limitation hereafter to be. stated, we regard as the true rule on the subject.

It is often, and indeed generally, stated, the action lies only for the breach of a common law duty, and this we believe to be strictly true; yet there is some confusion in the eases as to what is meant by a common law duty, growing out of the fact that it sometimes arises without the intervention of a contract and sometimes with it, and in the latter case it is often said, as in the case last cited, “the contract creates the duty, ” and while this is true and accurate enough in a certain sense, yet when we attempt to define with precision just when the action will lie and when it will not, the statement is not sufficiently definite, for it must be conceded the law makes it the duty of every one to perform his contract, and it is clear ease will not lie for the breach of every duty created by contract. If one contracts to deliver to another a load of wood, or pay a specific sum of money on a given day, and fails to do so, an action on the contract alone will lie,— and yet it is manifest, in the case supposed, there has been a breach of duty created by the contract. We think it more accurate, therefore, to say, that base lies only for the breach of such duties as the law implies from the existing relations of the parties, whether such relations, have been established with or without the aid of a contract; but if created by contract, it is no objection to the action that the performance of the duty in question has been expressly stipulated for, if it would have existed by reason of such relations without such stipulation. This is well illustrated by the case put in the early part of this opinion, where B let his horse to A, to be kept at a stipulated price per day, and returned on demand. Now, in that case, by the mere delivery of the horse, to be kept at the price agreed upon, the law implied or imposed the duty of returning him upon demand, without any agreement to that effect, and the duty being thus implied by law, independently of the express stipulation for its performance, case clearly would lie for its breach.

The general principle seems to he this: Where the duty, for whose breach the action is brought would not be implied!, by law by reason of the relations of the parties, whether such relations arose out of a contract or not, and its existence depends solely upon the fact that it has been expressly ! stipulated for, the remedy is in contract, and not in tort,— when otherwise, case is an appropriate remedy. Of course, assumpsit is a concurrent remedy with case, in all cases where there is an express or implied contract.

The judgment of the Appellate Court is reversed, and the cause remanded, with directions to that court to reverse the judgment of the circuit court, and remand the cause for further proceedings not inconsistent with the views here expressed.

Judgment reversed.