| Ill. | Sep 15, 1870
delivered the opinion of the Court:
This is an application for a peremptory mandamus, on the relation of Edward Hempstead and others, against the Chicago & Alton Bailroad Company.
In the petition of relators, it was prayed that a writ of mandamus issue, directed to this company, commanding them, their agents, officers and employees, to receive all grain which might be delivered to them at any of their receiving stations on the line of their road, consigned to the elevator of relators, and known as the Illinois Biver Elevator, in the city of Chicago, upon the payment of the usual and customary charges, without unfavorable discrimination, and to deliver all such grain at that elevator in due course of business and without unreasonable and unnecessary delay; and also commanding the agents, officers and employees of this company to receive and transport three certain car loads of corn from Odell to Chicago, and to deliver the same at this elevator, or show cause why they refuse so to do.
Bespondents, by way of showing cause, have made an elaborate return to the writ, to which the relators have demurred, thus opening to our consideration the whole merits of the controversy.
It is not denied that relators own and operate the elevator, as alleged, and that they have all the necessary machinery and conveniences for the purposes to which it is devoted, nor is the fact denied that respondents own and operate the Chicago & Alton railroad from East St. Louis to the city of Chicago, but they do deny that they are common carriers to the extent set up and claimed by the relators. The relators claim, that to and from East St. Louis, and all points intermediate that and the city of Chicago, on the line of their road, it is their legal duty to receive all goods and freights delivered to them at any station on their line, and to transport the same to such stations and places as may be directed by the consignor, for a reasonable price or reward, and to deliver them to the person or persons to whom they are directed to deliver them, and that it is also their duty to deliver all grain received by them in bulk, into the warehouse to which it is consigned, and that it is unlawful for them to deliver any grain into any warehouse other than that to which it is consigned, without the consent of the owner or consignee thereof.
The claim of the relators reaches to this extent. The objection' to such a pretension is very obvious. It does not confine the legal duty of respondents to their own line of road. Beyond that this court has no power. Their duty is commensurate with their franchise, and can not, by this court, be made to extend beyond it, and the demurrer admits that the south line of Madison street, as stated in the return, is the limit to which their franchise extends, while the elevator is north of that point some five hundred feet or more, entirely without the limits of respondents’ charter.
But the relators say, that a railroad track is laid down on West Water street, running by the elevator with a switch, by which the elevator can be approached to load and unload cars, and which track was laid under an ordinance of the city of Chicago, passed August 16, 1858, but that the particular part in front of the elevator, and the switch were constructed by the Pittsburgh, Fort Wayne & Chicago Railroad Company, and that, by the fourth section of that ordinance, respondents have the right to use this track, and, in fact, do use it; that they run all their cars upon a part of the track constructed under this ordinance, to reach their depots, and a run of five hundred feet beyond their passenger depot, would bring the cars to relators’ elevator.
To this it is answered by respondents, that they have never acquired any right to run their cars north of the south line of Madison street, the terminus of their railroad, and that none of their engines or cars have the right to pass north of this south line without obtaining permission of the railroad companies owning them, and paying to them such sum as may be charged for their use. And they further say, they have no right to send their cars over the tracks leading to this elevator without special permission, and upon paying the owners of the tracks compensation therefor, and that they have never held themselves out to the public as common carriers beyond the termini of their own line of road, and that whenever their cars have been permitted to go beyond the terminus of their road, it has been done by virtue of special agreements made to that effect; and they further say, they have never accepted thé provisions of the ordinance of the sixteenth of August, 1858; that while it may be true, as' alleged, the Pittsburgh, Fort Wayne & Chicago Railroad Company, and the Chicago, St. Paul and Fond du Lac Railroad Company, did construct the tracks from Van Burén to Elinzie street, it is not true that respondents had any part in their construction, or have availed of the provisions of the fourth section of that ordinance for the use of the tracks so laid north of the south boundary line of Madison street; nor have they ever acquired, by agreement or otherwise, as provided by the terms of that ordinance, any right to run their trains north of that line, nor have they had anything to do with the construction of any side or switch track connecting with any railroad track north of that boundary line in West Water street, or in any other street in Chicago north of Madison street.
Here, we think, is presented the pith of this controversy. The facts are admitted by the demurrer to be true, and the question is, can a railroad company, chartered with certain express powers and privileges, with certain termini within which they are to be exercised, be compelled to purchase, for the accommodation of the public, more extended privileges beyond the limits of their franchise.
In the case of Vincent et al. against this same company, 49 111. 33, we took occasion, in defining the duties of common carriers as to delivery of articles carried, imposed by the common law, to advert to the relaxation of that rule in regard to railways.
We there said, the rule of the common law, requiring common carriers by land to deliver to the consignee, has been so far relaxed in regard to railways, from necessity, as in most cases, to substitute, in place of a formal delivery, a delivery at the warehouse or depot provided by the companies for the storage of goods, and that the decisions of this court, that a railway company may discharge themselves of their liability as common carriers, by safely depositing goods in their warehouse, and there holding them under the responsibilities of a warehouseman until demanded by the consignee, proceed upon the ground that a railway has no means of delivery -beyond its own lines.
We consider this quotation very apposite in the present case, for it is admitted by the pleadings, that relators’ elevator is not on the line of respondents’ railway, and that they have no connection with it, or use of it, except such as they acquire by purchase when their own necessities or interests demand its use.
And in remarking on the custom which had grown up in this State, of carrying grain by rail in bulk, it is said, since it would be impossible for railroad companies to unload and store grain so brought, at their ordinary freight depots, a custom of delivering it at elevators has obtained, to which it may be consigned, but it is indispensable such elevators must be connected by some track with the railroad line, and be, in fact, a portion thereof, for such we understand to be the meaning of the opinion in that case. It could not be understood that, although these respondents have connection by sidings or switches, or other contrivances, with other roads running into Chicago, they should be compelled to use them to reach an elevator upon such road situate, it may be miles beyond the terminus of their road, and not on the route of their own road. We know of no power which can compel a railroad company to exercise its franchise beyond its own termini. Within those limits, this court can exercise a supervisory power over them, and, as in Vincent’s case, enjoin them. That proceeding was upheld, because the siding to their elevator was a part of the track of the respondents. In commenting upon the act of the legislature of February 22, 1867, entitled, “Warehousemen,” in answer to the argument of the "respondents, that the act did not mean that railway companies shall deliver grain at points off their line, the court said, clearly it does not, but the question recurs—what points are to be considered on the line of a railway for the purposes of delivery under this law ? They contend that its line consists of its main track, and such side tracks as may belong to it. The court said, when a railroad, for a valid consideration, has allowed the owner of adjacent land to lay a side track connecting with its own rails, and, as in the case then before it, had permitted the connection to be made, and the side track to be laid for the use of a particular lot of ground, and in order to transport to such lot heavy articles, and the owner of the lot and side track has his warehouse in readiness for the receipt of such freight, then such side track must be considered as a part of its line for the purposes of delivery under the statute.
In the same opinion, it was conceded that a railway company could not be required, by legislative enactment, to transport freight beyond its own line.
This, we think, settles the matter in dispute between these parties, unless an additional obligation has been imposed upon these respondents by the ordinance of the city, of August 16, 1858.
It is admitted by the pleadings, that respondents had no agency in constructing the tracks which pass by this elevator, and have never availed of the provisions contained in that' ordinance, and have never authorized or permitted a connection with their line of road of any switch or side track constructed on the street in which this elevator is situate, and it is further admitted that the lawful northern terminus of their road is the south line of Madison street.
If, then, by legislative enactment, a railroad company can not be compelled to transport freight beyond their own line, with what propriety can it be urged that a permission to use tracks, which they were not instrumental in connecting with their line, and which are beyond their terminus and the property of other parties, shall have a greater effect than a legislative enactment ? Does the permission of the city authorities to use these tracks impose an obligation on the respondents to use them? If the legislature, with its vast powers, can not so compel them, it would be strange, indeed, if the act of a subordinate authority should have that effect. The ordinance cited can have no other effect than to legalize a departure from their line of road, should the respondents desire to do so. Delators allege that respondents have the right to use this track, and, in fact, do use it; that they run all their cars upon a part of it to reach their depots, and a further run of five hundred feet beyond their passenger depot would bring them to this elevator. As a general fact, we believe cars with heavy freights, like grain in bulk, do not make the depot for passengers their stopping - place. They usually stop at the freight depot, and that, judging from the diagram attached to the return, the accuracy of which is not questioned, must be more than five hundred yards south of this elevator. The fact that the respondents use this track is not denied in the return, but the respondents say, and that is admitted by the demurrer, that all these tracks laid in West Water street, and north of Madison street, are owned exclusively by the Chicago & Northwestern and the Pittsburgh, Fort Wayne & Chicago railroad companies, who control the manner of using them, and charge track service for every car run over them by respondents, and by other railroad companies. The respondents further say, and this is also admitted, that although they may have delivered coal over that switch, to that elevator, they have never done so except by special agreement made for that purpose.
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. If the ordinance of August, 1858, intended a favor to this and other companies, still, the companies can not be coerced to accept the favor. So long as they perform their duties under the privileges and powers granted them, the people have no right to complain. To compel a railroad company to receive and deliver freight at points 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. A reference to the diagram accompanying the return of respondents, and to which we have before referred, taken in connection with the statement in the return, which is admitted to be true, it will be seen, that all the tracks leading into West Water street belong exclusively to the Pittsburgh, Fort Wayne & Chicago railroad company, while those owned by these respondents jointly with that company, as also those owned exclusively by respondents, all terminate at or near the south line of Madison street. The question, then, becomes pertinent, should a mandamus be awarded, how could respondents obey it? Could they, without the permission of the first named company, run their cars over their tracks? Could the writ command them to purchase the right so to run them, of that company ? Can a writ of mandamus be made to perform such an office? Would this court be justified in so trenching upon the rights and franchise of the Pittsburgh, Port Wayne & Chicago railroad company ? They have chartered rights which can not be infringed so long as they properly perform their duties under their contract, and it would be going to an unwarrantable extent, in order to compel one company to perform a supposed duty, to trespass upon the chartered privileges of another.
This court said, in The People ex rel. v. Hatch, and the Same v. Dubois, 33 Ill. 9" date_filed="1863-11-15" court="Ill." case_name="People ex rel. Harless v. Hatch">33 Ill. 9, at page 140, that a mandamus should not issue in any case unless the party applying for it shall show a clear legal right to have the thing sought by it done, and in the manner and by the person or body sought to be coerced, and must be effectual as a remedy if enforced, and it must be in the power of the party, and his duty, also, to do the act sought to be done, and is never awarded unless the right of the relator is clear and undeniable, and the party sought to be coerced is bound to act. And in The People, etc. v. Gilmer, 5 Gilm. 242, it was held, that a mandamus could only be issued to compel a party to act, when it was his duty to act without it—that the writ conferred upon him no new authority. And the duty must be a public one, and must be imperative and not discretionary. Tapping on Man. 65. This has peculiar application to the fourth section of the ordinance, so much insisted upon by relators. That section nowhere confers any rights upon respondents. As we understand its terms from respondents’ brief, the ordinance not being before us, it provides, only, that the railroad companies, to whom the right to lay down tracks in West Water street is given, may associate with them in the construction and use of said tracks any other corporations and shall allow and permit the use of said tracks by any other railroad corporation upon terms and conditions to be agreed upon.
- It is admitted by the pleadings, that no agreement was ever made by the respondents for the use of these tracks. By the ordinance, it is discretionary with the companies to make such agreements. This court can not compel respondents, if application was made to it, to enter into an agreement to use them. It is not their duty to make an agreement, it is a privilege, only, and, consequently, the court can not compel respondents to use these tracks, or any one of them. In short, it can not coerce a party to do what the law does not oblige him to do. Granting the writ would confer no power or authority upon respondents to enter upon and use these tracks. "A plain dereliction of duty must be established before a mandamus can be awarded.
The ground of the decision in Vincent’s case was, that the side track, under the circumstances attending its construction, became a part of the track of the railroad company, and they were, therefore, bound to deliver grain, carried by them in bulk, to the warehouse erected upon it, when consigned to such warehouse.
The return in this case shows, and the fact is admitted by the demurrer, that the respondents have provided, by contract with other parties, a warehouse on their own track, ample in capacity to contain all grain ordinarily transported in bulk over their line of road, having all the necessary machinery and appliances for speedily receiving, unloading and returning the cars in which it is transported, and have guarded consignors of such articles against imposition, by a covenant that the charges made at such warehouse shall not exceed those of other warehouses in the city of Chicago. A delivery, therefore, of grain in bulk to such a warehouse, if not consigned to any other warehouse on the line of their road, would be a fulfillment of the obligation resting upon them to carry and deliver such freight.
So long as no discrimination is made by railroad companies between warehouses on their line of road, shippers can have no real cause of complaint. So long as their grain is properly handled and stored, and at the usual charges, it can make but little if any difference to them by whom those services are performed, or where, and if no warehouse upon the line of a railroad is designated by the consignor as the recipient, and as a delivery can not be made at the usual freight depot, what can be more reasonable and proper than a delivery to the warehouse they have furnished upon their own track, that being- in all- respects ample for the purpose. Porter v. Ch. & R. I. R. R. Co. 20 Ill. 407" date_filed="1858-04-15" court="Ill." case_name="Porter v. Chicago & Rock Island Railroad">20 Ill. 407. As they can not be compelled to transport the grain beyond their track, or off it, so neither can they be compelled to receive it for such purpose. There is nothing in the warehousing act of 1867 opposed to this. The twenty-second section of that act clearly implies, that the warehouses designated by the consignors shall be upon the track of the road on which their grain is carried, and within the limits of its franchise. It never could have been the design of the act to compel one road to trespass on the chartered rights of another, or to purchase a privilege of the other.
It is urged by the respondents, in support of their return, that they have a right to refuse to receive grain in bulk, to be carried on their road, and can demand it shall be placed in proper packages, convenient for handling and storage in their cars, and for unloading.
When we consider the vast amount of grain annually produced for market in the rich country through which this road passes on its way to the great grain market of the West, the difficulty, if not impossibility, of providing sacks, barrels, or other safe contrivances to secure properly this production for shipment, is quite apparent. This led to the establishment of costly elevators, and they induced the custom, which has obtained with all railroads, in this State, at least, to receive grain in bulk, it being equally as well protected in that condition in its transit by cars as in sacks, and as speedily unloaded from them, by means of the steam power and appropriate machinery employed by them. These erections have had the same powerful influence upon the production of wheat, one of our great staples, as the introduction of the reaper, for without the agency of the latter, those vast fields yearly blossoming with this product, would be devoted to other purposes, and but for the steam car and the elevator, if cultivated up to the limit of their capacity, their products could find no market. Hand in hand, these powerful influences are at work, and so long as the two latter make no unjust discriminations, and are satisfied with moderate charges, the stimulus to the agricultural interest will be unceasing, and nothing will be wanting to make this the great grain growing State of the West, if not of the Union.
We are not of opinion that respondents, or any other railroad company, can disregard the custom of conveying grain in bulk over the line of their own road, and delivering it at any elevator thereon, to which it may be consigned. If consigned to an elevator or warehouse not on their road, and beyond their terminus, or there be no elevator on the road on which the grain is carried, then they may rightfully refuse to receive it in bulk.
The facts stated in respondents’ return, and the legal consequences flowing from them, for the reasons we have given, afford a complete justification for the refusal to receive the grain in question, the elevator to which it was consigned not being on their road, or within the limits of their franchise. We have examined all the cases to which reference has been made, and we are well satisfied the views here expressed conflict, in no particular, with any of them.
The demurrer to the return must be overruled.
Mandamus refused.
Mr. Justice Sheldon : I hold, that so long as the respondents actually make use of the track leading to the relators’ elevator, in running their cars over it, it is their duty to make delivery of grain there, under the rule laid down by this court in the case of Vincent v. C. & A. R. R. Co. 49 Ill. 33" date_filed="1868-09-15" court="Ill." case_name="Vincent v. Chicago & Alton Railroad">49 Ill. 33.
Mr. Justice Scott : I concur in denying the peremptory writ in this case, on the ground, that the writ of mandamus is not the appropriate remedy for the wrong complained of. When the law affords another and complete remedy, I understand the law to be well settled, that a writ of mandamus will never be awarded. On the state of facts presented by this record, the law furnishes a complete and ample remedy to the party injured.
Without discussing the case at length, I am of opinion, on the facts presented in the record, that it was the duty of the railroad company to receive the grain in question, and deliver it at the relators’ warehouse, and for that purpose the company had the clear right to use the track in question, and for a failure so to do, they are liable in any appropriate common law action. o
Hr. Justice Walker : I concur in the opinion announced in this case, but hold, that respondents, and all other railroad companies in the State, may be compelled by mandamus, when a proper case is made, to carry grain in bulk, if such is the customary mode of transportation, and to deliver it to any elevator on the line of their roads, or upon any of their side tracks or switches, to which it may be consigned; and when such roads enter the city of Chicago, they should deliver grain therein in the same manner, when so consigned, on their own tracks, side tracks or switches, and at the elevators to which consignments are made, on other roads in the city with which they have running arrangements, unless they would be compelled to incur unreasonable expense in making such delivery. But they are not, nor can they be, required to construct new side tracks or switches, or extend the line of their roads, or to make running arrangements with other roads, or to purchase or lease other roads for the purpose of making such delivery.