| Ill. | Sep 15, 1879
delivered the opinion of the Court:
In Vincent v. Chicago and Alton Railroad Co. 49 Ill. 33" date_filed="1868-09-15" court="Ill." case_name="Vincent v. Chicago & Alton Railroad">49 Ill. 33, it was held by this court a railway company could not be required by legislative enactment to transport freight beyond its own line of road, but that the 22d section of the Warehouse act of 1867 was valid as to the warehouses upon such line. It was also there held that when, for a valid consideration, the company had permitted a connection with its line to be made and a side track to be laid, for the use of a particular lot of ground, and in order to transport to such lot heavy articles of freight, then such side track was'to be considered as a part of its line for the purposes of delivery.
The same doctrine was iterated in The People ex rel. Hempstead v. Chicago and Alton Railroad Co. 55 Ill. 95" date_filed="1870-09-15" court="Ill." case_name="People ex rel. Hempstead v. Chicago & Alton Railroad">55 Ill. 95, and it was there said, to compel a railroad company to receive and deliver freights off and beyond their own line would be not only oppressive, and involve their business in inextricable confusion, but would impose burdens and responsibilities upon them which they never contracted to assume.
In Chicago and Northwestern Railway Co. v. The People, 56 Ill. 367, it was said the rule announced in the Vincent case did not compel the delivery of grain at an elevator merely because the delivery ivas physically possible. And it was there held the Wisconsin and Milwaukee divisions of the Northwestern company and the Galena division of said company, though belonging to the same corporation and having a common name, and although connected by rail, were, under the peculiar circumstances of that case, for the purposes of transportation, substantially different roads.
We may take it then as the established doctrine, that a railroad corporation will only be compelled to deliver grain in the particular warehouse or elevator to which it is consigned when such warehouse or elevator is upon the line of its road. Of course, the line of the road would not necessarily be confined to tracks, side tracks and switches by it owned or leased. But the mere fact a company sometimes actually makes use of a track, does not of itself, and under all circumstances, constitute such track a part of the road of the corporation. In The People v. Chicago and Alton Railroad Co. supra, although the company had previously, in repeated instances, delivered freight at the elevator of relators by use of a switch track belonging to another company, yet it was expressly held it could not, in the absence of an existing contract to justify such use, be compelled to so deliver, and could not be coerced to purchase from the other company the right to make such delivery.
We regard that case as decisive of this. If a railroad corporation has already purchased or secured, by contract or otherwise, the legal right to use the track of another road necessary to reach a particular warehouse or elevator, then such warehouse or elevator, for the purposes of delivery, may be considered as being upon its line. But here, in order to arrive at the Union Elevator, there are fifteen feet of railroad track, belonging to the Chicago and Alton Railroad Company, that the defendant company would be compelled to run over, and which it has no legal right to use. Under the evidence in this record, there is no pretence for saying it has a license from the Alton company for so doing; and the testimony of the president of that company rebuts any such presumption. The most that can be said is, that company, thus far, has interposed no objection to such employment of the track when not itself using it. This acquiescence is merely voluntary, and may at any moment cease. A court would hardly assume to compel the defendant corporation to do that which the corporation has no legal right to do. We said in the Hempstead case: “That a railroad company may, by special agreement, run their cars over the track of another, is not doubted, but that they can be compelled to do so, is not and can not be admitted.” So, here, although this company has occasionally run its cars over this track of the Alton company by the mere acquiescence of that company, and because not prevented therefrom, yet that it can be compelled to do so does not follow.
The Vincent case was essentially different from this. There, the only party having a legal right to object to the desired employment of the tracks had himself provided them for the express purpose of such use, and was insisting upon the delivery; while here, the Alton company, which laid and keeps in repair, and has charge of the track, and a part of whose line of road it forms, is no party to this suit, and the scope and theory of the bill is, that said fifteen feet of railroad track is part and parcel of the line of the Chicago, Bur-ling and Quincy company.
The fifth section of article 13 of the constitution of 1870 provides as follows: “All railroad companies receiving and transporting grain in bulk or otherwise, shall deliver the same to any consignee thereof, or any elevator or public warehouse to which it maybe consigned, provided such consignee, or the elevator or public warehouse, can be reached by any track owned, leased or used, or which can be used by such railroad companies; and all railroad companies shall permit connections to be made with their track, so that any such consignee, and any public warehouse, coal bank or coal yard, may be reached by the cars on said railroad.”
The effect of this constitutional provision may be to change the rule announced in The People ex rel. Spruance v. Chicago and Northwestern Railway Co. 57 Ill. 436" date_filed="1870-09-15" court="Ill." case_name="People ex rel. Spruance v. Chicago & Northwestern Railway Co.">57 Ill. 436, and other cases, that, by the common law, railroad companies could not be constrained to permit individuals to connect side tracks of their own with the tracks of the companies, in order to enable the latter to carry grain to warehouses or elevators which have been erected "off their lines of road; as, also, the rule where two roads ór divisions are owned or leased by" one corporation and are connected by rail. But here, this fifteen feet of railroad track—and, so far as legal principle is involved, it may as well be that insignificant distance as a much greater—is not owned, or leased, or used by any claim of right by the defendant company. Nor is this a case where the owner of an elevator has constructed a side track, and is seeking permission to form a connection with the track of the railroad; nor yet is it a case wherein the complainants are proceeding not only against the defendant company, but also against the Chicago- and Alton company, as owner of the side track that leads into the elevator, to compel a delivery by the defendant company, at the junction of the tracks, to the Alton company, and a delivery by the latter in the elevator.
We are unable to perceive wherein the section quoted from the constitution changes the law so far as regards the case in hand. As was well said by the Appellate Court, in giving their reasons for the reversal of the decree herein, “we can not suppose it to be the intention of the constitution to impose upon railroad corporations the duty of performing any act which they have no legal right toi perform. To the extent of their legal rights and powers, the mandate of the constitution is doubtless operative. If the place of consignment can be reached by any track of which the railroad company is the owner or lessee, or in the lawful use, or which can be lawfully and rightfully used by it, the company is bound to deliver at that place. This, however, we think is the extent of the duty imposed by the constitution. The contrary interpretation would involve the fundamental law in the absurdity of commanding the performance of an unlawful act.” Where a railroad company has given no license or permission to another company to use their tracks, then such tracks never become a part of the line of road of the other company. We understand that, as matter of fact, the lines of all the numerous railroads leading into Chicago are connected; so that, physically, it is possible grain reaching that city, in bulk, on any one of these roads could be delivered by the carrier in any of the elevators or public warehouses connected by side track or switch with any of the other roads. To hold the law forces such delivery, regardless of a requirement of legal right vested in the carrier to so make use of these tracks of other companies, would lead to results most disastrous, and would be subversive of the vested rights of railroad corporations. The mandate of the constitution must necessarily be understood to be confined to a delivery by the common carrier at the warehouse or elevator where consigned, when such delivery can be made by availing itself of tracks it has the legal right to employ. In our view, this point is conclusive of the case, and it is needless to consider the other questions discussed by counsel for appellants and raised by his assignments of error.
Under the circumstances connected with the laying of the track that reaches from the Burlington main track to the Alton track running into the elevator, and in view of the statutory provision that every railroad corporation shall permit connections to be made and maintained with its track to and from any and all public warehouses where grain is or maybe stored, and the further requirement that every such corporation shall receive and deliver all grain consigned to its care for transportation at the crossings and junctions of all other railroads, we are not prepared to say the portion of the decree rendered by the circuit court that was based on the original bill and affirmed by the Appellate Court was erroneous.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.