People ex rel. Cantrell v. St. Louis, Alton & Terre Haute Railroad

Mr. Justice Magruder delivered the opinion of the court: The main question in this case is, whether a railroad company can be compelled by mandamus to run a passenger train. The appellee operates about fifty miles of railroad running from DuQuoin easterly to Eldorado, which it leased in 1880 for 985 years from the Belleville and Eldorado Railroad Company; and it is conceded, that it runs no passenger train, that is, no train for passenger service exclusively, over this distance of fifty miles between DuQuoin and Eldorado. On Sunday and Monday evenings a train, consisting of a baggage car and one passenger coach, runs from DuQuoin easterly to Benton about eighteen miles, returning from Benton to DuQuoin the next morning about four o’clock; but the only train, which runs the whole length of the branch road between DuQuoin and Eldorado is what is called a mixed train, consisting of coal, stock and freight cars, to which are attached a combination car and passenger coach. This mixed train leaves DuQuoin daily at eleven o’clock A. M. for Eldorado, and returning in the afternoon arrives at DuQuoin at 7:10 P. M. Appellee runs through trains from St. Louis, by way of Belleville, to DuQuoin; but the mixed train in question does not connect at DuQuoin with any of the passenger trains run bj- appellee from DuQuoin to St. Louis, nor at Eldorado with any of the trains upon the Cairo division of the Cleveland, Cincinnati, Chicago and St. Louis railroad, or the Shawneetown branch of the Louisville and Nashville railroad. Passengers for St. Louis, or points west of DuQuoin, must remain over night at DuQuoin and take the train next morning at 4:50 o’clock. This mixed train carries freight, express, baggage, stock, mail and passengers; on account of the freight carried and handled, it is a slow train, being often behind its schedule time from twenty minutes to three hours; during the busy shipping season, it often has to be cut in two on the grades, one part going forward to a switch, and returning for the balance of the train including the passenger coach; at Eldorado the entire train is often pushed in front of the engine down to the depot; when the mixed train goes east, the passenger coach, which is used by all classes of passengers both ladies and gentlemen, is between the freight cars and the combination coach; the mixed train has two brakemen, is operated by hand-brakes, and has no air-brakes; the regular passenger trains on the other parts of the road are equipped with air-brakes operated from the engine; the road-bed is a dirt ballast, and the passenger car on the mixed train is dirtier and dustier than the passenger cars on the west end of the road; there is often an odor from the stock cars ahead of the passenger coach; it is bad for ladies and children; the stock cars are frequently filthy and offensive from the manure in them; the train is often delayed at the stations to take on and deliver freight; it is subject to jars that stagger the passengers; much switching is done, and, where switching is done at a station the passenger coach is usually uncoupled; and passengers must wait while the cars are loaded with stock, cattle and hogs, and are often inconvenienced by the gang planks thrown out. Thé country, through which the mixed train passes, is a farming country and well settled. The products shipped are mostly grain, mill products and live stock; and the freight distributed along the line is merchandise. St. Louis seems to be the commercial center for that part of the State. Of the counties, through which the mixed train runs, Franklin county has a population of 17,138, Perry county 17,259, Saline county 19,342; and of the towns along the line of the road, DuQuoin has a population- of about 5000, Benton 1200, Eldorado 2000, Galatia 800, Thompsonville 500, Ealeigh 500, Christopher 200, Mulkeytown 200. Improved lands”in that section are worth from $20.00 to $50.00 per acre. Such being- the character of the mixed train, and such being the character and population of the territory through which the mixed train runs, ought appellee to be required to furnish the people with a passenger train? The question is not, whether appellee should run more than one train, but the question is, whether it does all that it is required to do awhen it runs a passenger coach attached to a freight train; or whether it is its duty to run one or more passenger coaches, separate and disconnected from freight cars, for the accommodation of passengers only and not of passengers in connection with shippers. When it is sought by mandamus to compel a railroad company to do any act in relation to the equipment and operation of its road, the courts, as a general rule, will not interfere with its management of its 'railway in these respects, except where the act sought to be enforced is specific, and the right to its performance in the manner proposed is clear and undoubted. (People ex rel. v. Chicago and Alton Railroad Co. 130 Ill. 175). Whether or not the people are here entitled to relief by mandamus against the appellee company must be determined by the answer to the inquiry, whether the act sought to be enforced is specific, and whether the right to a performance of that act is clear and undoubted. There can be no doubt about the clear legal duty of the appellee to operate the railroad from Du'Quoin to Eldorado, leased by it from the Belleville and Eldorado Railroad Company. The act of February 12, 1855, to enable railroad companies to enter into operative contracts, and to borrow money, authorizes railroad companies organized under the laws of Illinois to make contracts and arrangements with each other, and with railroad corporations of other States, for leasing or running their roads, or any part thereof. (2 Starr & Cur. St-at. p. 1921). In case of a lease by one railroad company to another, the lessee assumes the rights, franchises and obligations contained in the charter of the lessor, and must conform to the requirements of said charter. (1 Rorer on Railroads, p. 610; 19 Am. & Eng". Ency. of Law, p. 897). “And when one company leases its road to another, the lessee must, in operating it, be governed by the charter of the lessor.” (City of Chicago v. Evans, 24 Ill. 52). When, therefore, the appellee leased the road in question from the Belleville and Eldorado Railroad Company, it assumed the charter obligations of the latter company and agreed to conform to its charter requirements. Section 1 of the act to incorporate the Belleville and Eldorado Railroad Company in force February 22,1861, declares, that the company “shall possess all the powers, etc., * * necessary to carry into effect the objects and purposes of this act, which is to lay out, build, construct, equip, complete and continue in operation a railroad from Belleville in St. Clair county by way of Benton in Franklin county, and Galatia and Raleigh and to Eldorado in Saline county; * * * and they may make connections with any railroad on the line, or at either terminus, on such terms as may be mutually agreed upon between the parties.” (Private Laws of Ill. of 1861, p. 485).' Section 4 of the act provides that “said company shall have power, when, in their discretion, they have a sufficient amount of capital stock subscribed, to proceed to lay out, locate, construct, build, equip, complete and operate their road.” (Idem, p. 486). It will be noticed, that the charter of the Belleville and Eldorado Railroad Company provided for the con-, struction, equipment and operation of a railroad “from Belleville in St. Clair county by way of Benton in Franklin county and Galatia and Raleigh and to Eldorado in Saline county.” As matter of fact, however, the Belle-ville and Eldorado Railroad Company never constructed a railroad from Belleville to Eldorado. It constructed a road about fifty miles long from Eldorado to DuQuoin in Perry county, the latter place being distant more than fifty-six miles from Belleville, and, as soon as the road between DuQuoin and Eldorado was finished, and on July 1,1880, it leased the latter road to appellee. At that time appellee owned and operated a railroad running from East St. Louis, opposite St. Louis, to Belleville, a dis-' tance of a little more than fourteen miles, and, prior to that time, had leased for a long term of years the railroad of the Belleville and Southern Illinois Railroad Company, running from Belleville to DuQuoin, and was then operating- the entire line from Bast St. Louis to DuQuoin as one road, commonly known as the “Cairo Short Line.” The lease made on July 1, 1880, by the Belleville and Eldorado Railroad Company to appellee recites the ownership by appellee of the road from East St. Louis to Belleville, and its lease of the road from Belleville to DuQuoin, and its operation of the two as one line; and also recites the completion of the road from DuQuoin to Eldorado, “and that it is deemed and considered for the mutual interest of the parties hereto,” (the Belleville and Eldorado Railroad Company and appellee), “that said roads” (the three roads) “should be placed under the same management and operated as one line; and to that end the party of the second part” (appellee) “has ag'reed to lease from the party of the first part” (the Belleville and Eldorado Railroad Company) “its railroad from DuQuoin to Eldorado,” etc. It thus appears from the recitals of the lease of July 1,1880, that the object of that lease was to so connect the road from DuQuoin to Eldorado with the roads from East St. Louis to Belleville and from Belle-ville to DuQuoin, as that the three roads could be operated as one line. And so, although the Belleville and Eldorado Railroad Company did not construct a road from Belleville to Eldorado as its charter provided, yet, by the connection thus made with the road leased by appellee which ran from Belleville to DuQuoin, it became part of a continuous road from Belleville to Eldorado, the terminal points named in its charter. As the Belleville and Eldorado Railroad Company was bound to equip and operate its road, the appellee, the lessee company, was also bound to equip and operate, the leased road. “Equipment,” as applied to railroads, has been defined to be “the necessary adjuncts of a railway, as cars, locomotives.” (Rubey v. Missouri Coal and Mining Co. 21 Mo. App. 159; 6 Am. & Eng. Ency. of Law, p. 655, note 6). Section 12 of article 11 of the constitution says: “Railroads 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.” (1 Starr & Cur. Stat. p. 163). It follows, that the obligation to equip, and operate, and continue in operation, the leased road involves the obligation 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. Section 22 of the act of this State, in relation to fencing and operating railroads, provides, (2 Starr & Cur. Stat. p. 1940,) that “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 freights.” It is claimed, however, in behalf of appellee, that, while it is obliged to furnish cars for the carriage of passengers, yet it is not necessarily obliged to carry passengers upon a separate passenger train; and that it has the right to exercise its own discretion as to the manner of their transportation. The discretionary power of railroad companies in this respect is subject always to the condition, that there is no statutory provision limiting and restricting such power, and that its exercise is not opposed to the terms of the charter. (People ex rel. v. Chicago and Alton Railroad Co. supra; Mobile and Ohio Railroad Co. v. People, 132 Ill. 559; 2 Morawetz on Corp.—2d ed. —sec. 1119). This discretion is also subject to the condition, that it must be exercised in good faith and'with a due regard to the necessities and convenience of the public. (People ex rel. v. Chicago and Alton Railroad Co. supra). Counsel for appellants rely upon articles 1 and 6 of the lease of July 1, 1880. Article 1 is as follows: “The party of the second part shall have, possess and operate the said railroad from DuQuoin to Eldorado, for and during the time hereinbefore mentioned, upon the terms and conditions herein set forth, at all times during the continuance of this lease, furnish all necessary rolling stock and equipment for the complete and perfect operation of the said demised railroad.” And in the sixth article the defendant company covenants as follows: “The said party of the second part shall and will, during the term hereby granted, operate, maintain and keep in good repair the railroad and premises hereby demised, and shall, from time to time, make all necessary additions and improvements, and shall and will indemnify and save harmless the said party of the first part, its successors and assigns, from and against all costs, charges and expenses, damages and liabilities whatsoever, growing out of the maintaining, repairing, operating or using of said road.” Thus, by the terms of the agreement made for the connection of the road of the Belleville and Eldorado Railroad Company with the roads of appellee, appellee was to operate the three roads from East St. Louis to Eldorado as one road, and to “furnish all necessary rolling stock and equipment for the complete and perfect operation” of the road from DuQuoin to Eldorado. But, independently of the provisions of the lease, which was a contract between the lessor and the lessee companies, the right of the People to insist upon the running of a separate passenger train is implied from the charter obligation to equip and operate the road. Inasmuch as a railroad company is bound to carry both passengers and freight, the obligation of the appellee required it to furnish all necessary rolling stock and equipment for the suitable and proper operation of the railroad as a carrier of passengers, no less than as a carrier of freight. It cannot be said, that the carrier of passengers in a car attached to a freight train is a suitable and proper operation of a railroad, so far as the carriage of passengers is concerned. The transportation of passengers on a freight train, or on a mixed train, is subordinate to the transportation of freight, a mere incident to the business of carrying freight. To furnish such cars as are necessary for the suitable and proper carriage of passengers involves the necessity of adopting that mode of carrying passengers which is best adapted to secure their safety and convenience. This can be accomplished better by operating a separate passenger train than by operating a mixed train. That is to say, the duty of furnishing all necessary rolling stock and equipment for the suitable and proper operation of a railroad carrying passengers involves and implies the duty of furnishing a train which shall be run for the purpose of transporting passengers only, and not freight and passengers together. Eailroad corporations, engaged in the transportation of passengers for hire or reward, are bound to the exercise of the highest degree of care and diligence in the conduct of their business. “Their duties and liabilities in this respect extend as well to the appliances used as to the manner of using them.” (2 Eorer on Eailroads, pp. 948, 949). But there are necessary differences between passenger and freight trains. (2 Wood on Eailroads, p. 1288). These differences need not be here noticed, but are well understood and easily recognized. Eailroad companies are not required to adopt, on freight or mixed trains, all the appliances which they use on passenger trains, but they are merely required to use the highest degree of care consistent with the practical operation of such trains. (Oviatt v. Dakota Central Railroad Co. 43 Minn. 300; 44 Am. & Eng. Railway Cases, 311). When passengers are carried on freight or mixed trains, the care required of the company, so far as such appliances are concerned, is such as the nature of .the train permits. (2 Wood on Railroads, p. 1288). And when a passenger rides on a. freight or mixed train, he takes upon himself the increased risk and lessened comfort which is incident thereto; nor has he the legal right to demand any other care in the management of such a train than is requisite for that kind of a train, or any other security than such a mode of conveyance affords. (2 Rorer on Railroads, p. 947; Galena and Chicago Union Railroad Co. v. Fay, 16 Ill. 558; Chicago, Burlington and Quincy Railroad Co. v. Hazzard, 26 id. 373.) It follows, that, when the only train operated by a railroad company is a mixed train, passengers, being unable to ride upon any other kind of train, are forced to incur risks and submit to inconveniences, which do not exist on a separate passenger train. Hence, the operation of a railroad with a mixed train only is inconsistent with the duty of furnishing such cars and locomotives as are necessary to the suitable and proper operation of the railroad when engaged in the passenger traffic. We are not unmindful of the fact, that, within certain limits, a discretion may be exercised as to what rolling stock and equipment are necessary for the suitable and proper operation of a railroad carrying passengers. When the mode of carrying passengers is separate from the mode of carrying freight, the legitimate exercise of discretion may begin. What we hold is, that there cannot be suitable and proper operation of the railroad as a carrier of passengers, when the car, in which it carries its passengers, is part of a freight train, because freight trains are inferior to passenger trains, and travel in them is attended with less comfort, convenience and safety than travel in passenger trains. The inferiority of a freight train to a passenger train as a mode of carrying passengers is so obvious, that no man of ordinary understanding would regard the use of a freight train for the purpose of hauling a passenger car, as a suitable and proper operation of a, railroad in the matter of transporting passengers. We are, therefore, of the opinion that the act here sought to be enforced—the running of a passenger car or cars separately from freight cars—is sufficiently specific to be enforced by mandamus, and the right to compel its performance is clear and undoubted, unless such right is changed or modified by the decision of the question, whether the expense of running such a passeng'er car or train would be justified by the amount of business over the particular line of road running from DuQuoin to Eldorado. Counsel for appellee insists that a railroad company, is not bound to provide a separate passenger train when its business is not sufficient to warrant it in doing so. In Ohio and Mississippi Railway Co. v. People ex rel. 120 Ill. 200, where the lower court awarded a mandamus upon a petition to compel a railroad company to repair and improve generally a certain portion of its road, and to increase the passenger trains thereon, we reversed the judgment, and held that the writ was improperly issued, upon the grounds that the business of the road did not pay the current expenses, that the defendant was unable to perform the acts sought to be enforced, and that the requirement made upon the defendant was too general, and involved too much discretion as to details; but it was there said, that a railroad company could be compelled by mandamus to perform any specific duty which it owed to the public as owner or operator of its road, such as operating its road as a continuous line, and running daily trains; and the following language was used (p. 206): “It is believed, however, no case can be found which, in the absence of a statutory requirement, has gone to the length of holding that a railway company may be compelled by mandamus to increase the number of trains on its road, or to run daily a particular number of trains over its road; and we are satisfied there is no common law authority for making such an order. Of course, where the charter of the company expressly requires that not less than a given number of trains shall be run daily, the company may be compelled by mandamus to perform this, like any other specific duty enjoined by its charter, or by other statutory provision. ® * * A company that runs a daily passeng'er train each way over a road which cannot, with proper management, be made to keep up repairs and pay running expenses, certainly does as muph as the law requires of it, so far as passenger trains are concerned.” There are several marked differences between the Ohio and Mississippi Railway Co. case and the case at bar. Here, the appellee does not run a daily passenger train each way over the road from DuQuoin to Eldorado. Here, the charter enjoins a duty, which cannot be regarded as otherwise than specific, in view of the considerations already presented. Here, it cannot be said that the appellee is financially unable to discharge the duty, imposed upon it by the law, and which it owes to the public. The learned circuit judge, before whom this case was tried below, says, in his decision of it, that “defendant railroad company is solvent and in a prosperous condition, its net earnings last year being over §600,000.00, a net income of about §3000.00 per mile of road.” After a careful examination, we are satisfied that the statement thus made is sustained by the evidence. When, however, it is said, that “the defendant railroad company” has a net yearly income of some §600.000.00, the reference is to the defendant railroad company as made up of its branches or leased roads, as well as of the main stem. So far as appears from this record, the main road, owned by appellee and operated under its own charter, is the short line running from St. Louis to Belleville; but, besides the leased roads running from Belleville to DuQuoin and from DuQuoin to Eldorado, appellee also operated three other roads leased by it for long terms of years, to-wit: the Belleville and Carondelet railroad, a short road about seventeen miles long, running west from Belleville, to East Carondelet on the Mississippi river; the St. Louis Southern railroad, forty-six miles long, which taps said leased road that runs from Belleville to DuQuoin, at Pinckneyville, about ten miles east or northeast from DuQuoin, and runs from Pinckneyville to Marion; and the Chicago, St. Louis and Paducah railroad, about fifty-two miles long, running from Marion to Brooklyn on the Ohio river. The Belleville and Carondelet road was not leased by appellee until June 1, 1893, and, therefore, but little consideration can be given to it in making up the estimate of earnings and expenses as found in the record. The large net income referred to is based mainly upon the earnings of the other five roads already mentioned. It is said, that the earnings of the Belleville and Eldorado railroad, running from DuQuoin to Eldorado, when that road is taken by itself and considered'separately, are not sufficient to justify the expense of running a separate passenger train from DuQuoin to Eldorado. But why should this branch be considered separately and by itself? Appellee operates its main road and its leased branches as one system, and, as thus operated, the main road and its connections or branches, yield the net yearly income of about $600,000.00 already referred to. All the divisions, which are entirely within the boundaries of the State of Illinois, are mere feeders of the main road running from East St. Louis to Belleville, which is also in Illinois; and all the leased roads above mentioned, except that running to East Carondelet, are feeders of the road running from Belleville to DuQuoin. The latter road and the Belleville and Eldorado railroad are required, by the charter of the Belleville and Eldorado Eailroad Company and by the terms of its lease t'o, or agreement with, appellee, to be operated as one line, and such operation as one continuous line is merely the carrying out of the original intention of said charter, which provided for the operation of one continuous line from Belleville to Eldorado. It is no more proper to select the fifty miles from DuQuoin to Eldorado of this compact network of roads, all operated under one system and all contributing to the support of each other, as being deficient in the profits necessary to justify a reasonably safe and convenient operation of passenger traffic, than it would be to select any other portion of the line running from East St. Louis to DuQuoin, and charge that portion with being deficient in such profits. If it be admitted that a railroad company is not bound to run a separate passenger train when its business is not sufficient to warrant it in doing so, we are confronted at this point with the question, whether this doctrine refers to the business done by the main road and other roads leased by it and connected with it, all of which are operated, or are required to be operated, as one line, or whether it can be made to refer to a small part of the continuous line or system which happens to run through a section of country, where the freight is not so much, and the passengers are not so many, as is the case on some other part of the line. We are of the opinion that the whole business of the various parts operated as one line should be taken into consideration where the circumstances are such as are revealed by this record. The duty required of a railroad company in the matter of transporting passengers is the duty to meet and supply the public wants. These wants are measured by the business actually done, or what, it could be clearly shown, could be done if increased facilities were granted. That there is here a public demand for passenger service is shown by the fact, that a passenger car is attached to a freight train, and that passengers are invited to ride, and do ride, upon this mixed train. It is not contended, that appellee is not abundantly able, out of the earnings realized by it from the system controlled by it, to pay the expense of running- a passenger car separately from freight cars over the Belleville and Eldorado railroad and there-. by save the traveling public from the increased danger and inconvenience of taking passage on a freight train. Nor does it appear, that such expense could not be easily met by the earnings of the line running from East St. Louis to Eldorado by way of DuQuoin. The following language used by the Supreme Court of the United States in St. John v. Erie Railway Co. 22 Wall. 136, is applicable here: “The business of the road was a unit. If it had been disintegrated, as proposed by complainant, we apprehend it would have been found that the co-relations of the main stem and the branches were such, and that the expenses and charges incident to the entire business and to those of the several parts were so interwoven and blended that an accurate ascertainment of the net profits of the main line, and any of the auxiliaries taken separately from the rest, would have been impracticable. An ancillary road may be short and yield but little income, yet by reason of its reaching to coal fields, or from other local causes, its contributions to other roads of the series may be very larg-e and profitable. Whether in this case the partial computation insisted upon could or could not have been made, the process was one upon which the company was neither bound nor had the right to enter.”, The reports made by appellee to the railroad and warehouse commissioners for the years 1891,1892 and 1893 show, that it has never kept a separate account of the actual earnings or expenditures of the road from DuQuoin to Eldorado, but has treated the line from East St. Louis to Eldorado as one continuous line, making no difference in its accounts between the division front DuQuoin to Eldorado and any other portion of the road. In estimating the liabilities of the Belleville and Eldorado Railroad Company, certain indebtedness, which is in the nature of preferred stock, is charged up as a liability, in the accounts produced, to show that the obligations of appellee are such as to relieve it from the duty of operating- the passenger train asked for. This is manifestly improper, because guaranteed or preferred stock is but a dividend and not a debt, and the holder of a certificate for such stock can have no action against the company as for a debt, but his right is to a dividend. (Taft, Trustee, v. H. P. & F. R. R. Co. 8 R. I. 310; St. John v. Erie Railway Co. supra; 1 Rorer on Railroads, p. 167). The object of iucorporating railroad companies is to secure to the public increased facilities of transit from point to point, and an improved mode of carrying persons and property. Their public Character is apparent from the fact, that they are clothed with the power of taking private property through the exercise of the right of eminent domain. Prior to the adoption of the present constitution, municipal corporations were authorized to aid in the construction of railroads by subscribing for their stock. As matter of fact, Franklin county, through which the Belleville and Eldorado railroad passes, subscribed $150,000.00 to its construction, of which indebtedness' $37,000.00 is still outstanding. Railroads are creatures of the law, and are entrusted with the exercise of these sovereign powers to promote the public interest, and are, therefore, bound to conduct their affairs in furtherance of the public objects of their creation. The interest of stockholders in their profits is secondary, and, in the main, subsidiary to the interest of the public. It is in view of their public character, that the courts are authorized to determine and enforce the public duties enjoined upon them. The duties which they owe to the State and the general public, cannot be shirked or evaded. (1 Wood on Railroads, p. 12; Railroad Comrs. v. P. & O. C. Railroad Co. 63 Me. 269). We do not think, that there is, here, such insufficiency of business or profits as to present a valid defense to the application of the People. The writ of mandamus should issue as prayed for. The judgment of the circuit court is reversed, and the cause is remanded to that court with directions to enter a judgment, awarding thé writ in accordance with the prayer of the petition. Versed ^ remaM Subsequently, upon considering the petition for a rehearing herein, the following additional opinion was filed: Per Curiam: Since the rehearing was granted in this case we have given further consideration to the questions involved, and entertain the same views as those expressed in the foregoing opinion, and adhere to the same conclusion there announced. Said opinion is accordingly readopted, and it is ordered that the same be re-filed, and that the judgment heretofore entered reversing the judgment of the circuit court and remanding the cause to that court with directions to enter a judgment awarding the writ in accordance with the prayer of the petition, be re-entered as the judgment of this court.