229 Ill. 430 | Ill. | 1907
delivered the opinion of the court:
The city of Cairo is located at the confluence of the Ohio and Mississippi rivers and occupies the southern portion of a narrow strip of land lying between these two streams. The main tracks of the charter lines of the Illinois Central Railroad Company coming from the north, after passing the northern limits of the city, proceed south about a quarter of a mile, practically midway between the two rivers, and then turn to the east until within a few hundred feet of low-water mark on the Ohio river, when they turn in a southerly direction and proceed along the west bank of the Ohio river about two miles to the passenger depot in that city. The tracks leading to the bridge across the Ohio leave the main line tracks about three-quarters of a mile north of the city limits and run south on the west side of the main line tracks, gradually ascending and departing a little to the west from the main line tracks but practically parallel thereto, until the tracks- leading to the bridge turn to the east at a point but little south of the place where the main lines turn to the east. The line leading to the bridge then passes over a steel viaduct and crosses the main tracks of the charter lines at a point about 50 or 60 feet above the main tracks and about 700 feet west of the most westerly portion of the bridge proper. If the bridge and the main tracks of the charter line were on the same level, those tracks and the railroad track on the bridge could be connected by a switch approximately 700 feet in length. The accompanying plat will perhaps assist in arriving at a correct understanding of the situation:
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The question is whether the tracks leading to the bridge, and the embankment and steel structure upon which they rest, should be taxed in the ordinary way for the purposes of the State and the various local municipalities, or whether they are exempt from such taxation by virtue of sections 18 and 22 of the charter of the Illinois Central Railroad Company. Appellee contends, and the circuit court held, that these tracks, and the embankment and structure upon which they rest, constitute a branch or lateral railroad 'of the Illinois Central Railroad Company not a part of the lines the construction of which was contemplated by the charter; while appellants contend that the tracks, and the embankment and structure upon which they rest, are a part of the lines of the company constructed pursuant to the provisions of its charter and necessary for the proper operation of the road.
In 1850 the Congress of the United States passed an act which received the approval of the executive on the 20th day of September in that year, and which, so far as here material, with its title, reads as follows:
“An act granting the right of way, and making a grant of land to the States of Illinois, Mississippi and Alabama, in aid of the construction of a railroad from Chicago to Mobile.
"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled: That the right of way through the public lands be, and the same is hereby granted, to the State of Illinois for the construction of a railroad from the southern terminus of the Illinois and Michigan canal to a point at or near the junction of the Ohio and Mississippi rivers, with a branch of the same to Chicago, on Lake Michigan, and another via the town of Galena, in said State, to Dubuque, in the State of Iowa,” etc.
“Sec. 2. And be it further enacted, that there be, and is hereby, granted to the State of Illinois, for the purpose of aiding in making the railroad and branches aforesaid, every alternate section of land designated by even numbers, for six sections in width on each side of said road and branches,” etc.
“Sec. 4. And be it further enacted, that the said lands hereby granted to the said State shall be subject to the disposal of the legislature thereof, for the purposes aforesaid and no other; and the said railroad and branches shall be and remain a public highway for the use of the government of the United States, free from toll or other charge upon the transportation of any property or troops of the United States.
“Sec. 6. And be it further enacted, that the United States mail shall at all times be transported on the said railroad under the direction of the post-office department, at such price as the Congress may by law direct.
“Sec. 7. And be it further enacted, that in order to aid in the continuation of said Central railroad from the mouth of the Ohio river to the city of Mobile, all the rights, privileges and liabilities hereinbefore conferred on the State of Illinois shall be granted to the States of Alabama and Mississippi, respectively,' for the purpose of aiding in the construction of a railroad from said city of Mobile to a point near the mouth of the Ohio river, and that public lands of the United States, to the same extent in proportion to the length of the road, on the same terms, limitations and restrictions in every respect, shall be, and is hereby, granted to said States of Alabama and Mississippi, respectively.” (9 U. S. Stat. at Large, p. 466.)
It will be observed that the words “said Central railroad” occur in the seventh section. The word “Central” does not appear at any other place in the act, and the expression just quoted from section 7 evidently has reference merely to the location of the proposed railroad, and is not intended to designate that railroad as the property of the Illinois Central Railroad Company or of any other company.
Thereafter the State of Illinois accepted the provisions of the act of Congress by the act granting to said company its charter, and also by section 3 of an act of the legislature approved February 17, 1851, which section reads:
“Sec. 3. Be it further enacted, that the act of the Congress of the United States granting lands to the State of Illinois for the purpose of constructing a railroad fr,om a point at or near the mouth of the Ohio to the southern terminus of the Illinois and Michigan canal, with branches to Chicago and Galena, entitled 'An act granting the right of way and making a grant of land to the States of Illinois, Mississippi and Alabama, in aid of the construction of a railroad from Chicago to Mobile,’ approved September twentieth, one thousand eight hundred and fifty,- be and the same is hereby accepted, and all conditions expressed in said act are hereby agreed to and made obligatory upon the State of Illinois.” (Public Laws of 1851, p. 192.)
The act creating the Illinois Central Railroad Company was approved February 10, 1851. Section 1 so far as material, section 2, section 3 so far as material, section 15 so far as material, section 18 so far as material, section 22 and section 27 of that act, are as follows:
Section 1 provides that the Illinois Central Railroad Company is thereby “invested with all the powers, privileges, immunities and franchises, and of acquiring, by purchase or otherwise, and of holding and conveying, real and personal estate which may be needful to carry into effect, fully the purposes and objects of this act.
“Sec. 2. The said corporation is hereby authorized and empowered to survey, locate, construct, complete, alter, maintain and operate a railroad, with one or more tracks or lines of rails, from the southern terminus of the Illinois and Michigan canal to a point at the city of Cairo, with a branch of the same to the city of Chicago, on Lake Michigan; and also a branch via the city of Galena, to a point on the. Mississippi river opposite the town of Dubuque, in the State of Iowa.
“Sec. 3. The said corporation shall have right of way upon, and may appropriate to its sole use and control, for the purposes contemplated herein, lands not exceeding 200 feet in width through its entire length; may enter upon and take possession of and use all and singular any lands, streams and materials of every kind, for the location of depots and stopping stages, for the purpose of constructing bridges, dams, embankments, excavations, station grounds, spoil-banks, turn-outs, engine houses, shops and other buildings necessary for the construction, completing, altering, maintaining, preserving and complete operation of said road,” etc.
“Sec. 15. For the purpose of securing the construction of said road and branches, the right of way, and all the lands which may be selected along the lines of said road and branches within this State, under the grant made by the government of the United States to the State of Illinois by virtue of ‘An act granting the right of way, and making a grant of land to the States of Illinois, Mississippi and Alabama, in aid of a construction of a railroad from Chicago to Mobile,’ passed September twentieth (20), eighteen hundred and fifty (1850) ; and also the right of way which the State of Illinois has heretofore obtained along and on the line of said railroad and branches, as heretofore located and surveyed, for the uses of the same, as well as the lot of ground obtained by the State within the city of Cairo for a depot, and all the grading, embankments, excavations, surveys, work, materials, personal property, profiles, plats and papers, constructed, procured, furnished and done by or in behalf of the State of Illinois, for or on account of said road and branches, also the right of way over and through lands owned by the State, are hereby ceded and granted to said corporation, for the only and sole purpose of surveying, locating, constructing, completing, altering, maintaining and operating said road and branches, as in this act provided and in the manner following—that is to say: * * * That said company shall proceed to locate, survey and lay out, construct and complete said road and branches through the entire length thereof—the main trunk thereof, or central line, to run from the city of Cairo to the southern termination of the Illinois and Michigan canal, passing not more than five miles from the north-east corner of township 21 north, range 2 east of the third principal meridian, and nowhere departing more than seventeen miles from a straight line between said city of Cairo and said southern termination of said canal, with a branch running from the last mentioned point, upon the most eligible route, to the city of Galena, thence to a point on the Mississippi river opposite the city of Dubuque, in the State of Iowa, with a branch also diverging from the main track at a point not north of the parallel of thirty-nine and a half degrees north latitude, and running on the most eligible route into the city of Chicago, on Lake Michigan; that the central road or main track shall be completed, with at least one line of rails or single track, with the necessary turn-outs, stations, equipments and furnishings, within four years of the date of the execution of said deed of trust, and the branches within six years from the said date,” etc.
“Sec. 18. In consideration of the grants, privileges and franchises herein conferred upon said company for the purposes aforesaid, the said company shall, on the first Mondays of December and June in each year, pay into the treasury of the State of Illinois five percentum on the gross or total proceeds, receipts or income derived from said road and branches for the six months then next preceding,” etc.
“Sec. 22. The lands selected under said act of Congress, and hereby authorized to be conveyed, shall be exempt from all taxation under the laws of this State until sold and conveyed by said corporation or trustees, and the other stock, property and effects of said company shall be in like manner exempt from taxation for the term of six years from- the passage of this act. After the expiration of six years, the stock, property and assets belonging to said company shall be listed by the president, secretary, or other officer, with the Auditor of State, and an annual tax for State purposes shall be assessed by the Auditor upon all the property and assets of every name, kind and description belonging to said corporation. Whenever the taxes levied for State purposes shall exceed three-fourths of one percentum per annum, such excess shall be deducted from the gross proceeds or income herein required to be paid by said corporation to the State, and the said corporation is hereby exempted from all taxation of every kind, except as herein provided for. The revenue arising from said taxation, and the said five per cent of gross or total proceeds, receipts or income aforesaid, shall be paid into the State treasury in money, and applied to the payment of interest-paying State indebtedness, until the extinction thereof: Provided, in case the five per cent provided to be paid into the State treasury, and the State taxes to be paid by the corporation, do not amount to seven per cent of the gross or total pror ceeds, receipts or income, then the said company shall pay into the State treasury the difference, so as to make the whole amount paid equal at least to seven per cent of the gross receipts of said corporation.”
“Sec. 27. This act shall be deemed a public act, and shall be favorably construed for all purposes therein expressed, and declared in all courts and places whatsoever, and shall be in force from and after its passage.” (Private Laws of 1851, p. 61.)
By the act of the legislature of this State approved February 12, 1855, it is provided:
“Sec. 1. All railroad companies incorporated or organized under or which may be incorporated or organized under the authority of the laws of this State, shall have power to make such contracts and arrangements with each other, and with railroad corporations of other States, for leasing or running their roads, or any part thereof, and also to contract for and hold, in fee simple or otherwise, lands or buildings in this or other States for depot purposes, and also to purchase and hold such personal property as shall be necessary and convenient for carrying into effect the object of this act.
“Sec. 2. All railroad companies incorporated or organized, or which may be incorporated or organized as aforesaid, shall have the right of connecting with each other, and with the railroads of other States, on such terms as shall be mutually agreed upon by the companies interested in such connection.” (Private Laws of 1855, p. 304.)
An examination of the act of Congress herein above in part set out, and of the title thereto, makes it apparent that it was the purpose of that body to assist in the construction of a railroad from the city of Chicago, Illinois, to the city of Mobile, Alabama. By that act the southern terminus of the road in the State of Illinois was to be “at or near the junction of the Ohio and Mississippi rivers,” and the road south of the Ohio was to be constructed from the city of Mobile “to a point near the mouth of the Ohio river.” Pursuant to the provisions of that act the Mobile and Ohio railroad was built from Mobile to the city of Columbus, in the State of Kentucky, which is situated on the bank of the Mississippi river about twenty miles below Cairo, and for a period of many years connection was made between the two roads by steamboat. Later the lines of the Mobile and Ohio were extended to a point opposite Cairo, where connection was made over the bridge there located from the lines of the Mobile and Ohio to those of the Illinois Central, and vice versa.
The act of the General Assembly approved February 10, 1851, cedes and grants to this company all lands which may be selected under the grant made by the government to the State of Illinois by virtue of the act of Congress, setting out the title of the latter act, to-wit, “An act granting the right of way and making a grant of land to the States of Illinois, Mississippi and Alabama in aid of the construction of a railroad from Chicago to Mobile,” from which it is apparent that the General Assembly of the State then contemplated the use of some method of transportation by which «freight and passengers carried south on the lines of the Illinois Central Railroad Company in Illinois should be transported across the Ohio river, that they might- thence .be carried by railroad to Mobile or points en route. It is to be observed that the act of Congress by the first section, grants the right of way through the public lands “for the construction of a railroad from the southern terminus of the Illinois and Michigan canal” to a point at or near the junction of the Ohio and Mississippi, and by section 7, for the purpose of aiding.in “the construction of a railroad” from the city of Mobile to a point near the mouth of the Ohio, grants are made to the States of Alabama and Mississippi. It is apparent that Congress did not make the grants upon condition that the same company should own the railroad throughout its entire length from Chicago to Mobile. The act speaks of the construction “of a railroad” in Illinois and the construction “of a railroad” from Mobile to the mouth of the Ohio. It follows, therefore, that it is a matter of no importance in this litigation that the lines of road now operated by the Illinois Central Railroad Company and owned or leased by that company have their southern terminus at the city of New Orleans, in the State of Louisiana, and not at the city of Mobile, in the State of Alabama. The lines of the Mobile and Ohio and the lines of the Illinois Central now connect at Cairo. Entire trains may be transferred from the lines of one road to the lines of the other. Passengers, freight, mail and express may pass from Chicago to Mobile by a continuous journey by rail, crossing the Ohio at a point near its mouth and near the junction of the Ohio and Mississippi rivers. The purpose of the- national Congress in making the original grants has been attained. This view has been taken by the Supreme Court of the United States in the case of Illinois Central Railroad Co. v. State of Illinois, 163 U. S. 142, where it was said: “The line of railroad communication crossing the Ohio river at Cairo, and of which the Illinois Central railroad forms part, has been established by Congress as a national highway for the accommodation of inter-State commerce and of the mails of the United States, and as such has been recognized and promoted by the State of Illinois. This will clearly appear by a brief recapitulation of the acts of Congress and the State of Illinois on the subject. * * * The manifest purpose of Congress was to establish a railroad in the center of the continent, connecting the waters of the Great Lakes with those of the Gulf of Mexico, for the benefit of inter-State commerce as well as of the military and postal departments of the government of the United States.”
It is contended that, notwithstanding this fact the corporation created by this State is, for all purposes of local government, a domestic corporation, and that as to this controversy the Illinois Central stands exactly as if no such purpose had ever been entertained by Congress; that the question of whether this property now' under consideration should be taxed as appellee seeks to have it taxed is a matter to be determined precisely as though the Illinois Central Railroad Company was authorized to construct a railroad from the mouth of the Ohio to Chicago, without any regard to the transfer of passengers, freight, mail and express, by rail, from its southern terminus to points beyond the Ohio. This view we think entirely too narrow. It could not reasonably be expected that all traffic to the south on this road should find destination north of the mouth of the Ohio, and while it is true that the question of the taxation of the company is solely a question for the State of Illinois, it is nevertheless true that in determining what property was needful for the operation of a road extending from the northern part of the State to the extreme southern boundary, the legislature could not but recognize the necessity of some means of passing and re-passing the Ohio river, and if the legislature, accepting, as it did, the provisions of the a£t of Congress, realized, as it must have done, the necessity of the ownership by the Illinois Central Railroad Company of property which would enable its traffic to reach the Ohio river, it would seem to follow that such property necessary for that purpose would fall within the provisions of the statute providing for commutation of the taxes or for a substituted method of taxation.
It. is also urged that the bridge approach is, in law, a part of the bridge, and many authorities are cited in support of .this proposition. It is then contended that the earnings of the bridge proper should be so apportioned as that a part thereof should be treated as the earnings of this approach ; that none of the earnings of the bridge proper are credited to this approach; that as the Illinois Central Railroad Company has not elected to treat the portion of the earnings of the bridge proper which are, in fact, the earnings of the approach as a part of the earnings of its charter lines, appellants cannot say that the approach in question is to be regarded as a part of the charter lines of the Illinois Central. In other words, that as the company does not pay taxes on the approach, or money in lieu thereof, in the manner that the law requires it to pay upon its charter lines, it should be required to pay taxes in the method prescribed by the general laws of the State for the taxation of railroad property. The failure of a tax-payer to comply with the law in reference to the payment of his taxes has nothing to do with the determination of the method by which the property should be taxed. If the Illinois Central Railroad Company is not paying the proper percentage of the earnings of this approach into the State treasury it should be required to do so, but its failure so to do does not alter the law.
It is also contended that under the contract which the Illinois Central has with the Mobile and Ohio, and under the practice of the Illinois Central by which an arbitrary charge or toll is levied upon freight passing over the bridge, on account of its so passing, the bridge, including this approach, is, in fact, a toll bridge. The contention further is, that under its charter the company has no right to maintain a toll bridge; that even if this approach might, under some-circumstances,- be exempt from ordinary taxation, it is not now so exempt because it is now devoted to a use not contemplated by the charter. Attention is called by appellee, in this connection, to the cases of In re Swigert, 119 Ill. 83, and Illinois Central Railroad Co. v. People, 119 id. 137. In those cases the question was whether a grain elevator known as the “Cairo elevator,” and located on ground owned by the Illinois Central Railroad Company in the city of Cairo and leased to the firm of Halliday Bros., was exempt from taxation under sections 18 and 22 of the charter of that company. The court held that it was not so exempt, on the ground that it had no necessary connection with the construction, maintenance or operation of the company’s road. The approach is not in the same class. It is directly and continually used in the operation of the lines of the Illinois Central. It is used in the business of operating a railroad, and in no other business. By the sections of the act of February 12, 1855, above set out, the Illinois Central Railroad Company was authorized to make contracts with other roads by which other roads might use the tracks of the Illinois Central. While it is true that if the legislature, by an act subsequent to the charter, empowered the company to acquire and hold property which it was not by the charter authorized to acquire and hold, such property would not come within the charter exemption, it is also true that when the law-makers by the act of 1855 authorized the company to lease its tracks to other companies,, a use of the tracks by another company under such a lease would not be a use for other' than railroad purposes, as was the usé of the elevator. It matters not what name is given to the earnings resulting from the use of the charter line tracks of the company by other companies, they are still a part of “the gross or total proceeds, receipts or income derived from said road and branches.”
It is also insisted that this approach is taxable under the law as announced by this court in Illinois Central Railroad Co. v. Irvin, 72 Ill. 452. In that case it was held that a steamboat owned by the company for the purpose of carrying passengers and freight between Cairo, Illinois, and Columbus, Kentucky, thereby making a connection between the northern terminus of the Mobile and Ohio railroad and the southern terminus of the Illinois Central railroad, was not exempt from taxation by virtue of the provisions of the charter, on the ground that a steamboat is not railroad property, and that the right of carrying by rail, possessed by the Illinois Central Railroad Company under its charter, does not include, as a necessary incident, the right to carry by water. It is apparent that that case is not in point. This approach is like unto a switch track which would carry the cars of the Illinois Central Railroad Company from its main track to the wharf at the river’s edge, and is unlike an instrumentality for transporting cars or passengers and freight upon or over the stream.
In People v. Illinois Central Railroad Co. 215 Ill. 177, it was held that the property here involved could not be taxed by the local assessor. Whether it could be taxed by the State Board of Equalization was not there decided, but it was there determined that this approach was used exclusively for railroad purposes and came within the denomination “railroad track.” We are satisfied that the use which has been made of this approach is not such as would warrant us in holding that it was taxable by ordinary methods, as was the case with reference to the steamboat and the elevator.
The parties hereto agree that the Federal government required the bridge in question to be built at a height of 53 feet above high-water mark on the Ohio river. This requirement has made necessary the expenditure of a large sum of money in the construction of this approach. Had the bridge been constructed on the same grade as the main tracks of the charter lines of the Illinois Central Railroad Company, the only thing necessary to make the connection between the rails on the bridge and such main tracks would have been a comparatively inexpensive switch track. It cannot be seriously contended that the greater expense of the method necessarily pursued under regulations established by the government of the United States in providing a way whereby cars might pass from the main tracks of the Illinois Central Railroad Company on the Illinois shore to the. tracks on the west end of the bridge, and from the tracks on the bridge to the main tracks of the company in Illinois, would affect the question as to whether or not the property made use of for that purpose is exempt from ordinary taxation.
It is to be observed that no traffic of any character originates along this approach and that no passengers, freight, express or mail find a destination at any point which -it touches. In this respect it is entirely different from an ordinary branch or lateral line. (Chicago and Eastern Illinois Railroad Co. v. Wiltse, 116 Ill. 449.) Section 1 of the charter vests the Illinois Central Railroad Company with the power of acquiring and holding all “real and personal estate which may be needful to carry into effect fully the purposes and objects of this act.” The third section authorizes the company to acquire land “for the location of depots and stopping stages, for the purpose of constructing bridges, dams, embankments, excavations, station grounds, spoil-banks, turn-outs, engine houses, shops, and other buildings necessary for the construction, completing, altering, maintaining, preserving and complete operation of said road.” In In re Swigert, supra, it was said that the enumeration in this charter of property that may be acquired by the corporation “doubtless includes the road, with all necessary switches and turn-outs.”
In Lake Shore and Michigan Southern Railway Co. v. Baltimore and Ohio and Chicago Railroad Co. 149 Ill. 272, the appellee sought in the county court to condemn a strip of land for the purpose of connecting its tracks with the tracks of the Chicago, Rock Island and Pacific Railway Company. It was there contended that the petitioner was without the power to condemn, for the reason that the connection which it proposed to make was either a branch line or a re-location of the main line, but it was held that the proposed connection, which was not over 800 feet in length, was not a branch road and was not a re-location of the main line, but that it was a side-track needful for the operation of the main line; and it was further said, that “the grant of power to locate and construct a railway carries with it the right to construct turn-outs, sidings and such conveniences as are usual in the necessary operation of the road,” and that the act of 1872, “while requiring the persons incorporating the company to name the places from which and to which it is intended to construct the proposed railway, lays down no limitation as to the places where such switches, side-tracks or turn-outs are to be constructed.”
We conclude, upon consideration of the fact that the act creating the Illinois Central Railroad Company was passed, in part, for the purpose of carrying out the object of the national Congress as expressed in the act of Congress approved September 20, 1850, upon consideration of the various provisions of the charter of that company, and upon consideration of the language used and the conclusions reached by this court in the two cases last referred to, that it is clear and certain that power to acquire and construct this approach for the purpose of connecting the main tracks of the charter lines of the Illinois Central Railroad Company in Illinois with the tracks upon the bridge over the Ohio at the east line of the State was granted by the charter to the company, and that the approach is therefore within the exemption created by sections 18 and 22,' supra. This approach must be regarded as a switch or side-track “needful to carry into effect fully the purposes and objects” of the act, and not as a branch or lateral railroad.
The question whether the sections of the charter providing for the commutation of the taxes of the Illinois Central Railroad Company or for substituted taxation of its property should be liberally or strictly construed has been much discussed. We find it unnecessary to determine that question, for the reason that in our view the property involved in this litigation comes clearly within that class of property exempted from ordinary taxation by the charter, whether the sections in question be liberally or strictly construed. '
It is also urged that long prior to the construction of this approach the power of the Illinois Central Railroad Company to condemn lands for the purpose for which this approach is used had been exhausted, and that as it could not acquire this property by condemnation i't could not acquire it for the purposes contemplated by its charter, and therefore could not hold it free from such taxation as is imposed by the general law. The power to acquire land by condemnation for side or switch tracks, such as this, is not exhausted by an apparent completion of the road, but may be exercised as other or additional conveniences of this character may become needful or requisite for the operation of the railroad. (Chicago, Burlington and Quincy Railroad Co. v. Wilson, 17 Ill. 123.) The power to acquire land for switch or side-tracks “is a continuing power, which may be exercised from time to time as the needs of the company may require.” Chicago and Western Indiana Railroad Co. v. Illinois Central Railroad Co. 113 Ill. 156.
Whether the approach is, in law, a part of the bridge so as to draw to itself a portion of the earnings of the bridge proper which are now not credited to the approach or to the charter lines in Illinois, is not for our consideration or determination in this suit.
The judgment of the circuit court will be reversed and the cause will be remanded, with directions to overrule the demurrer to the answer.
Reversed and remanded, with directions.