| Ill. | Jun 14, 1906
delivered the opinion of the court:
The only material question in this case is whether, under the constitution and laws of Illinois, a railway corporation organized under the general act for the incorporation of railroad companies (Hurd’s Stat. 1905, p. 1564,) is obliged to carry both passengers and freight over its line of road.
Section 12 of article 11 of the constitution in part reads: “Railways heretofore constructed, or that may hereafter be constructed in this State, are hereby declared public highways, and shall be free to all persons for the transportation of their persons and property thereon, under such regulations as may be prescribed by law.”
Section 84 of chapter 114, Hurd’s Revised Statutes of 1905, provides: “Every railroad corporation in the State shall furnish, start and run cars for the transportation of such passengers and property as shall, within a reasonable time previous thereto, be ready or be offered for transportation at the several stations on its railroads and at the junctions of other railroads, and at such stopping places as may be established for receiving and discharging way-passengers and freight; and shall take, receive, transport and discharge such passengers and property, at, from and to such stations, junctions and places, on and from all trains advertised to stop at the same for passengers and freight,” etc.
Appellants contend that this court, in its former decisions, has held that the section of the constitution above quoted, although it expressly says, “railways heretofore constructed, or that may hereafter be constructed,” does not include all railways, and to support that contention cite Koelle v. Knecht, 99 Ill. 396" date_filed="1881-06-21" court="Ill." case_name="Kœlle v. Knecht">99 Ill. 396, Wiggins Ferry Co. v. East St. Louis Union Railway Co. 107 id. 450, and Lieberman v. Chicago Rapid Transit Railroad Co. 141 id. 140.
The case of Koelle v. Knecht, supra, held that a railroad constructed by individuals on their own lands for private use only, was not to be regarded as the instrumentality of a common carrier, and in the consideration of that case the question here involved did not arise at all. No doubt tracks built exclusively for the purpose of affording terminal facilities within, or in the vicinity of, a city should be regarded as in the same category as the road which was under consideration in the case last mentioned.
In each of the other two cases expressions will be found which support the contentions of appellants. The question, however, whether, as against the public, a railroad company has the right to engage in the business of carrying freight and to decline to engage in the passenger traffic was not squarely presented, and in neither case was the constitutional provision now under consideration mentioned or discussed. For these reasons we do not think those cases should control here.
In the case of People ex rel. v. St. Louis, Alton and Terre Haute Railroad Co. 176 Ill. 512" date_filed="1898-12-21" court="Ill." case_name="People ex rel. Cantrell v. St. Louis, Alton & Terre Haute Railroad">176 Ill. 512, the constitutional provision and the statutory provision which are above set out were quoted and considered, and the conclusion reached that a railroad company was thereby obligated “to furnish and use cars and locomotives for the transportation of persons and property,—that is to say, for the carriage of both passengers and freight.” While it is true that the question in that case was not whether the railroad company should engage in passenger traffic, but whether it should be required to furnish additional facilities for carrying passengers, yet we are of the opinion that the language last quoted is an accurate statement of the law, and that under section 12 of article 11 of the constitution, and section 84 of chapter 114 of Hurd’s Revised Statutes of 1905, all railway corporations incorporated under the general Railroad Incorporation act must engage in the carrying of both passengers and freight.
The judgment of the circuit court will be affirmed.
Judgment affirmed.