delivered the opinion of the court:
This is an original petition for mandamus in this court in the name of the People of the State of Illinois, on the relation of W. H. Stead, as Attorney General, against the Chicago, Indianapolis and Louisville Railway Company, (hereinafter called the company,) a non-resident railway corporation, and W. H. McDoel, president and general manager of said company, praying for a peremptory mandamtis commanding respondents to report to the railroad and warehouse commission, as required by section 6 of an act to establish a board of railroad and warehouse commissioners and prescribe their duties, approved April 13, 1875. The petition avers that the said company has been and is possessed of, owning and operating, by lease or otherwise, a certain line of railway from a point on the State line dividing the State of Illinois from the State of Indiana, to a point in the city of Chicago, about nineteen miles in length and located in the county of Cook and the State of Illinois; that Chicago is the terminal point of said company, where it maintains depots, freight, storage and warehouses for the handling of freight and passenger traffic and yards, side and terminal tracks for the handling of cars and the transaction of its business as a common carrier; that the said company is operating, by lease or otherwise, a large system of railway within the States of Indiana, Illinois and Ohio, and terminating in the city of Louisville, in the State of Kentucky; that the company receives a large amount of business, both passenger and freight, as a common carrier in the city of Chicago and transports the same to the other States; that said company is possessed of a large amount of railroad property in the city of Chicago and along its line in the State, of Illinois which is subject to taxation under the laws of this State; that said company and its president have wholly neglected and refused to make or cause to be made a report in accordance with the law as above set forth; that suit has been commenced by the petitioner against respondents to recover the penalties prescribed by said act for a failure to make said report as required by said section 6, in the circuit court of Cook county, where said cause is now pending, but that said case will not be reached for trial, in the regular course of the call of the Cook county docket, earlier than from three to five years. The petition prays for a writ of mandamus commanding respondents to make the report required by said section 6, which petitioner avers, on information and belief, will not be made until compelled by the order of some court of competent jurisdiction. Respondents have filed demurrers, both general and special, to the petition, and the questions here involved relate to the sufficiency of the petition when challenged by demurrer.
First—Respondents contend that section 6 of the Railroad and Warehouse Commission act has no application to this company, as the petition shows on its face that the company is a foreign corporation engaged in inter-State commerce, and that said section should be so construed as to exclude this company, thereby obviating a construction that would render the section void, as being an attempt by the State to interfere with the exclusive jurisdiction of Congress over the subject of inter-State commerce.
Section 6 of said act is as follows: “Every railroad company incorporated or doing business in this State, or which shall hereafter become incorporated, or do business under any general or special law of this State, shall, on or before the first day of September, in the year of our Lord 1871, and on or before the same day in each year thereafter, make ahd transmit to the commissioners appointed by virtue of this act, at their office in Springfield, a full and true statement, under oath of the proper officers of said corporation, of the affairs of their said corporation, as the same existed on the first day of the preceding July.” Then follow forty-one clauses designating, in detail, the subjects upon which the report shall furnish information.
Section 7 of this act authorizes the commissioners to propound any additional interrogatories to such railroad companies, which shall be answered in the same manner as those specified. Section 8 makes sections 6 and 7 applicable to the president, directors and officers of every railroad company now existing or which shall hereafter be incorporated or organized in this State, and to every lessee, manager and operator of any railroad in this State. Section 10 of said act makes it the duty of the railroad and warehouse commission to report at least once a year all its doings to the Governor, giving such facts, statements and explanations as will disclose the actual workings of the railroad systems of the State in their bearing and relation to the business and prosperity of the people of the State. Section 11 requires the commissioners to examine into the management and all other matters concerning the business of railroads, as far as the same pertain to the relation of such roads to the public and to the security and accommodation of persons doing business therewith, and to ascertain whether such railroad companies, their officers, managers, lessees and agents, comply with the law of the State concerning them. These provisions are all referred to for the reason that all of them seem to have some bearing upon the proper construction of section 6.
The language of section 6 is so broad and comprehensive that it is difficult to see how it can be interpreted so as to exclude any railroad company doing business in this State. “Every railroad company incorporated or doing business in this State,” clearly includes companies incorporated under the laws of Illinois and companies incorporated under the laws of other States and which are engaged in the usual business of a railroad corporation within this State. The expression “doing business in this State,” occurs in section 26 of chapter 32, and is used with respect to foreign corporations. This language has been defined to mean, doing the business or character of business for which the corporation was organized. (Bradbury v. Waukegan and Washington Mining Co.
We come more readily to the view that all railroads doing business in this State are included within the purview of section 6 of this act when we consider the object of this legislation as gathered from the general scope of the act and the impossibility of attaining its purposes if it is to be limited to those roads that are exclusively engaged in intraState commerce. Among the objects to be attained by the creation of the railroad and warehouse commission and in giving to it a supervisory and administrative power over the maintenance, management and operation of railroads, is to protect the lives and health of the traveling public, to guard against discrimination and oppression, and generally to promote the efficiency of railroad companies in the discharge of their duties to the State and the people. If railroads engaged in inter-State commerce are for that reason exempt from the duty imposed by section 6, then they must be excluded from all other provisions of the act for the same reason.
In the application of this law we see no reason for a distinction based on the legal residence of the corporation. If a railroad company chartered in Illinois is engaged in interState commerce, the prohibition of the commerce clause of the Federal constitution applies to the State of Illinois with respect to such company equally with every other State prohibiting one as well as another from imposing any restrictions or burdens on commerce between the States.
Since, in our opinion, section 6 must be held ex vi termini applicable to all railroads which are doing business in this State, without reference to the State from which they derive their charters and wholly regardless of whether they are engaged in inter-State or intra-State commerce, we come next to the question whether this section is void under the commerce clause of the constitution of the United States. This clause provides that Congress shall have power to “regulate commerce with foreign nations and among the several States and with the Indian tribes.” (U. S. Const, art. 1, sec. 8, par. 3.) No well defined classification has been made of the laws which a State may properly pass under its taxing or police power and those which it may not pass because of the .exclusive power of Congress over inter-State commerce. Indeed, the difficulties inherent in the subject are such that, so far, courts have dealt with each case by its points of agreement or disagreement with previous cases and ¿educed therefrom a decision of the case in hand. The cases in the United States Supreme Court on this subject may be clasified under one or the other of the following heads: (i) Cases where the power of the State is exclusive; (2) cases in which the State may act in the absence of conflicting legislation by Congress; (3) cases where the power of Congress is exclusive and the State cannot act at all. (Bridge Co. v. Kentucky,
It follows that all the powers which inhere in the people of a State, and which have not been expressly granted to the United'States and not prohibited to the States, still reside with the people with respect to common carriers of interState commerce as well as to persons and companies engaged in other lines of business. The power of a State to create an administrative board and invest it with power to make reasonable rules and regulations applicable to all railroads doing business in the State has been upheld. (Railroad Commission cases,
In the light of these authorities, what should be the rule in the case at bar? Here the State has created an administrative agency, called railroad and warehouse commission. It has enjoined upon this commission certain duties, among others, to examine into the condition and management and all other matters pertaining to railroads, so far as the same concern the relation of such roads to the public and the accommodation and security of persons doing business therewith. They are required to report such facts, statements and explanations to the Governor once each year as will disclose the actual working of the railroad system of transportation, in their bearings upon the business and prosperity of the people. All this is, manifestly, for the purpose, in part, at least, of uncovering the necessity for such corrective legislation as the State may properly enact. How is the commission to perform these duties unless it has some means of obtaining the necessary data upon which it can act, and such as the executive and legislative branches of the government will require as a guide in the application of appropriate remedies? Section 6 meets this requirement and is the superstructure of the whole act. This law does not impose any tax or license on the business or the property of the company. It does not direct when or how its trains shall be run, or seek to direct, manage or control its internal affairs. So far as this particular section is concerned, it, in effect, says: “Do your business in your own way, but report to the people of the State once a year what you have, what you are doing and how you are doing it.” This, in our opinion, is not a restriction or a burden on inter-State commerce, within any rule laid down in any of the adjudged cases. If it be said that the information called for may be used as the basis of some future unconstitutional legislation, we reply that it will be time enough to meet that emergency when it arises, if it ever does.
It is said in argument that Congress having acted on this subject in the passage of the Inter-State Commerce law of 1887 and the several amendments thereto, the right of the State to legislate on that subject is gone and the power of Congress is exclusive. This would be sound if there was a collision between the State and Federal statutes. In such case the Federal statute would prevail over the State law; and if the State law was a regulation of inter-State commerce it would give way under the constitution, whether Congress had acted or not. But in a case where the State law is not repugnant to the constitution and is not in corn ' flict with existing Federal legislation on the subject, we do not understand that the bare fact that Congress has assumed to act makes the powers granted to the Federal government greater or those reserved to the State less than they would be without such action. In respect to subjects over which the power of Congress is exclusive, a failure to act means that the subject is to be left free; (Robbins v. Shelby County Taxing District,
Respondents have argued some other matters of minor importance, but none of them, in our view, afford any reason for sustaining the demurrer.
The facts alleged in the petition show a clear right to the writ. The demurrer will therefore be overruled and a peremptory writ of mandamus awarded.
Writ awarded