[ocr errors]

t creeks. 9

the water bills instead - The coed that was ation of the ounty Court cannot say t necessary

of courts to od on the right is un Csburgh, Ft.

v. Sanitary 532, 2 LR. on page 233

cessary that strip of land the object of

was a legon, and was stees of the

urt in shich ending. The pending may etitioner has of eminent

subject to being taken ter is being e amount of stions which

the neces of the lands

(148 N.E.)
cited by appellants. Those cases, and many | “within a reasonable time to be fixed by the
others, hold the power of condemnation is court." What is a reasonable time must in
harsh, against common right, and the grant some measure depend upon facts and cir-
of such power should be strictly construed, cumstances. In this case the payment must
and when such power is attempted to be ex- be made out of a special assessment not yet
ercised, courts will determine whether the confirmed. That will necessarily involve con-
power exists and whether the use for which siderable delay. We know from observation
it is sought to condemn land comes within that such proceedings are subject to delay
the power delegated by the Legislature. and frequently are delayed by appeals. It
Such cases are not in the slightest conflict was important that sufficient time should be
with the other cases we have cited and with given for payment to afford the commission-
the view expressed in this opinion.

ers a reasonable opportunity, in the exercise
Appellants also contend that no sufficient of diligence, to procure the money. When
effort was made by the drainage commission- the time for payment has been once fixed by
ers to agree with appellants upon compensa- the court it cannot be subsequently changed
tion, and the proof was insufficient to sup- or extended. La Salle County Electric Rail-
port the allegations of the petition that the way Co. v. Hill, 260 Ill. 621, 103 N. E. 624.
parties had been unable to agree. It is not We cannot say the time allowed for pay-
denied the proof showed efforts were made ment, in view of all the circumstances, is un-
by the commissioners to agree upon the com- reasonable. True, if the assessment pro-
pensation and they could not do so, but ap-ceedings are delayed by litigation it will not
pellants contend the compensation attempt be the fault of appellants, as their land can-
ed to be agreed upon was compensation for not be assessed, but until such time within
land' taken and for damages to land not tak- the three years as appellee shall take pos-
en, combined. We regard it as wholly un- session appellants' possession will not be dis-
necessary to review the evidence upon that turbed. We do not see how their right to
question. It abundantly sustained the al. sell or encumber the land will be materially
legations of the petition, and the claim that affected. If they wish to convey it they can
proof of a failure to agree on compensation do so and confer upon the grantee the rights
for land taken and damages to land not tak- of the grantor in the condemnation judg-
en was insufficient is without merit.

[6] It is further contended there was a va Presumably appellants were awarded suf-
riance between the routes of the diversion ficient compensation for their lands taken
channels as shown in the plans and order of and for damages to the lands not taken, for
court and as shown by the petition. The they have not preserved the evidence upon
changes complained of were of slight char- that question in the bill of exceptions and
acter, and, as we understand it, affected only have assigned no

the amount
the lands of Burger, Clark, and Jacobs. The awarded them by the verdict and judgment.
change on the Burger land was in slightly The judgment is affirmed.
moving the ditch so as to avoid a public Judgment affirmed.
highway. On the Clark land a slight change
was made to avoid making a right-angle turn
where Schuhart creek comes out of the

(317 Ill. 278)
bluffs. The change as to Jacobs' land was DAVIS, Agent, v. KEYSTONE STEEL &
of a typographical error in description.

WIRE CO. (No. 16299.)
There was no change in the line staked out (Supreme Court of Illinois. April 24, 1925,
and no substantial change of the location of

Rehearing Denied with Modification
the ditch. Appellants were not injured or

June 11, 1925.)
prejudiced thereby. Such changes as were
made the commissioners had a right to make. ". Constitutional law cw81-Owner of proper-

ty, devoted to use in which public has inter-
Reynolds v. Milk Grove Drainage District,

est, must submit to regulation for common 134 Jll. 268, 25 N. E. 516; People v. Board

of Supervisors, 314 111. 256, 145 N. E. 337.

Owner of property, devoted to use in which
[1] It is also claimed the county court public has interest, must submit to regulation
erred in fixing the time for payment of the for common good.
compensation. By its judgment the county

court allowed appellee three years from the 2. Constitutional law Ow70(1)
date of the judgment to pay the compensa-

charges fixed by Legislature not interfered

with by court, unless owner is thereby forced
tion and damages. Appellants contend three

to use his property for public benefit without
years is an unreasonable time and clouds compensation.
their title until the compensation is paid and Where maximum charge has been fixed by
title vests in appellee, during which time the Legislature, court has nothing to do with ques-
right to sell or encumber the land is inter- tion, unless statute attempts to force owner to
fered with. The statute authorizes the court use his property for public benefit without
to order the compensation fixed to be paid just compensation.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes



re the right ty is subject nent domain lic use, and

abused, the lemn on the ower is m etermination

legislative a question gorernrient go & West11: Chicago Tiltse, 116 Co. r. City co & Altos 9 III. 153"

[blocks in formation]

3. Commerce 8(12)-Hepburn Act excludes 9. Carriers Om 100(1)-Strike cannot exempt

power of state to regulate furnishing cars from payment of demurrage charges. for interstate traffic.

Under Hepburn Act June 29, 1906, § 2, par. Hepburn Act June 29, 1906, § 1, par. 2 ? (U. S. Comp. St. $ 8569, par. 7), amending (U. S. Comp. St. 8563, par. 2),'amending In- Interstate Commerce Act, § 6, par. 7, Act Aug. terstate Commerce Act, § 1, par. 2, clearly de- 29, 1916, § 1 (U. S. Comp. St. g 1974a), and clared intention of Congress to impose duty on

Federal Control Act March 21, 1918, § 10 (U. carriers in respect to furnishing cars for in- S. Comp. St. Ann. Supp. 1919, § 3115%;), conterstate traffic, which excludes power of state signee is not exempt from liability for deover subject-matter.

murrage charges for detention of cars be

cause detention was caused by strike, regard1. Carriers 30 Demurrage charges held less of whether demurrage accrued on interproperly included in schedule filed with Inter- state or intrastate shipment. state Commerce Commission and published.

Appeal from Circuit Court, Peoria CounCharge for demurrage is on same footing ty; Charles V. Miles, Judge. as any other charge in connection with transportation, and was properly included in sched Action by James C. Davis, Agent of the ule required to be filed with Interstate Com- United States Government, etc., against the merce Commission and published under Hep-Keystone Steel & Wire Company. Judgburn Act June 29, 1906, § 2, pars. 1, 7 (U. S. ment for plaintiff, and defendant appeals. Comp. St. § 8569, pars. 1, 7), amending In- Affirmed. terstate Commerce Act, $ 6, pars. 1, 7, and Federal Control Act March 21, 1918, § 10 (U.

Tichenor, Todd, Wilson & Barnett, of Pe8. Comp. St. Ann. Supp. 1919, § 3115943). oria, for appellant.

Miller, Elliott & Westervelt, of Peoria 5. Carriers 35 — Parties cannot by agree- (Barnes, Magoon Black, of Peoria, of coun

ment alter traffic schedules as filed and pub- sel), for appellee.
Parties to interstate shipment cannot by

DUNN, J. The defendant, the Keystone agreement alter schedule of tariffs filed with and approved by Interstate Commerce Com- Steel & Wire Company, claiming that, by a mission under Hepburn Act June 29, 1906, § 2, judgment_rendered against it by the circuit pars. 1, 7 (U. S. Comp. St. § 8569, pars. 1, 7), court of Peoria county, in favor of James C. amending Interstate Commerce Act, $ 6, pars. Davis, Agent of the United States under the 1, 7, and Federal Control Act March 21, 1918, provisions of the Transportation Act of 1920 8 10 (U. S. Comp. St. Ann. Supp. 1919, 8(U. S. Comp. St. Ann. Supp. 1923, § 1007144 3115340), though agreement is in writing and is et seq.), for $18,930, demurrage on certain performed, and collection of less than schedule cars delivered to defendant between August rate will not prevent recovery of shortage.

5 and October 10, 1919, it has been deprived

of its property without due process of law, 6. Commerce Om 48 Congress, may adopt in violation of the Constitutions of the state convenient as well as necessary means to reg- of Illinois and of the United States, has apulate interstate commerce,

pealed to this court. Power given Congress by Constitution to

The cause was heard by the court without regulate interstate commerce is complete in itself, and as incident thereto Congress may

a jury, upon the plea of the general issue adopt such means as are convenient, as well and stipulation that any evidence showing as those which are necessary to its exercise, a defense might be offered. The defense and such means may have qualities of police made by the evidence was that, on July 5, regulations.

1919, a strike of the defendant's employees

was called, which, because of threats and in7. Carriers On 26-Fixing of rates by Interstate timidation, resulted on August 13 in depriv

Commerce Commission establishes that they ing it of all of its employees, who usually are reasonable, and not discriminatory.

numbered between 400 and 600 men, except Fixing of rates by Interstate Commerce | the office employees and from 50 to 75 emCommission establishes that they are reason-ployees in the plant. On August 13 it underable, and not discriminatory.

took to increase its working force, but its

efforts were frustrated by a mob, which by 8. Constitutional law 89(1), 298(2)—Fix- violence drove out its employees and took ing of rates by Interstate Commerce Com possession of its plant. The defendant sought mission is not unconstitutional interference with freedom to contract nor deprivation of protection from the sheriff and the state,

but received none, and finally regained posproperty without due process.

session of its plant on October 2 by the asFixing of rates by Interstate Commerce sistance of the United States marshal, actCommission is not unconstitutional interference ing under a restraining order issued by the with liberty to contract nor deprivation of property without due process of law, but it is prop- federal District Court. From August 13 to er exercise of police power for prevention of October 2 the defendant was prevented from unreasonable extortion and discriminatory unloading the cars delivered to it, except rates, service, and preferences.

one car, which was unloaded on September Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(148 N.E.) 26. The demurrage charges which accrued , places to excessive rates, to the great injury to October 2 amounted to $16,830. On Octo- of the trade, be it therefore enacted," etc. ber 3 the unloading of cars began and continued until October 17. During this time

[2] An act of the General Assembly of Ilthe demurrage charges accumulated to the linois, approved April 25, 1871 (Laws 1871-72, amount of $2,100. The unloading was ac- p. 762) fixed the maximum rate to be chargcomplished as fast as the defendant could ed for the storage of grain in warehouses. get the men to do it.

An information for a violation of the act was Propositions of law were submitted to the filed in the criminal court of Cook county, court by the parties, and the court held, in and the defendants being convicted prosecutsubstance, that it was the duty of the appel- ed a writ of error from this court, insisting lee to collect the demurrage charges in ac- that the statute violated the constitutional cordance with the tariffs in force and on file prohibitions against deprivation of liberty or with the Interstate Commerce Commission property without due process of law, and and the Illinois Public Utilities Commission, against the taking of private property for that the defendant was bound to pay such public use without just compensation. The charges, even though it had been prevented judgment was affirmed, the court holding from unloading the cars by reason of strike that a law providing a maximum rate of of its employees, and that a strike, where charges did not violate either of the constithe strikers and mob took possession of the tutional provisions in question.

Munn v. defendant's plant, and by threats and acts of People, 69 Ill. 80. The case was then taken violence and intimidation prevented it from to the Supreme Court of the United States, carrying on its business and unloading cars which affirmed the judgment, holding that delivered to it, did not relieve it from this the statute did not violate the Fourteenth liability. The contention of the appellant Amendment of the federal Constitution or is that the duty to pay demurrage charges is any other provision of that instrument, and one imposed by law, and is in the nature of that the fixing of maximum rates is a lega penalty not arising from any contract, and islative function. Munn v. Illinois, 94 U. S. that the failure to admit its defense depriv- 113, 24 L. Ed. 77. In Budd v. New York, 143 ed it of its property without due process of U. S. 517, 12 S. Ct. 468, 36 L. Ed. 247, the law, and its whole argument is based on that constitutionality of a somewhat similar statproposition.

ute of the state of New York, governed by [1] The charges of common carriers, keep- the same principle, was sustained, the court ers of ferries, wharfingers, innkeepers, hack- citing numerous cases as recognizing the docmen, and others whose business is affected trine of the Munn Case that the Legislature with a public interest, have from time im- may fix a maximum fee, beyond which any memorial been subject to regulation by law, fee would be unreasonable, in respect to and the rates to be charged for their serv- services rendered in a public employment or ices have been fixed by statute. The owner for the use of property in which the public of property which he has devoted to a use has an interest, but cannot compel the doing in which the whole public has a direct inter- of services without reward, or taking private est must submit to the regulation for the property for public use without just compencommon good so long as he exercises the sation or due process of law. Where the use. The public has a direct interest in all maximum charge has been fixed by legislathese occupations, for they are necessary to tive authority, the court has nothing to do the public convenience and welfare. Every with the question unless the lawmaking one has a right to make use of the services power has attempted to force the owner to and enjoy the accommodations of those who use his property for public benefit without are engaged in these employments, and every just compensation. one is at times obliged to have the use of Moved by combinations and practices simisome of them. At common law persons en- | lar to those recited in the preamble to the gaged in these employments were allowed to statute of 3 W. & M. 200 years before, which charge such prices as they could agree upon has been referred to, and by other practices with those dealing with them but not en- and devices, resulting not only in excessive tirely at their own will. The rule was rec- rates but also in unjust discrimination beognized that the charges for their services tween individuals and communities, Congress and accommodations must be reasonable and passed the act of February 4, 1887 (U. S. not arbitrary and excessive. This rule was Comp. St. § 8563 et seq.), to regulate comthe regulation at common law of rates charg. merce, known as the Interstate Commerce ed for service. As to carriers it was early Act, for the purpose of preventing interstate amended in England by statute (3 W. & M. c.

railroad carriers from charging unreasonable 12, & 24), fixing rates, and following a pre

rates and from unjustly discriminating beamble reciting:

tween persons and localities. New York,

New Haven & Hartford Railroad Co. v. In"Whereas, divers wagoners and other car. terstate Commerce Com., 200 U. S. 361, 26 riers by combination amongst themselves have s. Ct. 272, 50 L. Ed. 515. The railroads raised the prices of carriage of goods in many availed themselves of the weakness and cum

148 N.E.-4

brous machinery of the original law to de- , not be suspended by the Commission pending feat its purpose, and this led to various final determination. amendments strictly defining and limiting the

"Said rates, fares, charges, classifications, duties and powers of the carriers, and giving regulations, and practices shall be reasonable authority to the Interstate Commerce Com- and just and shall take effect at such time and mission for effective action to secure the ob- Interstate Commerce Commission sball, upon

upon such notice as he may direct, but the servance of the law by the establishment and complaint, enter upon a hearing concerning enforcement of reasonable, uniform rates, the justness and reasonableness of so much of without discrimination between persons and any order of the President as establishes or localities. Railroad Com. v. Chicago, Bur- changes any rate, fare, charge, classification, lington & Quincy Railroad Co., 257 U. S. 563, regulation, or practice of any carrier under fed 42 S. Ct. 232, 22 A. L. R. 1086, 66 L. Ed. 371.! eral control, and may consider all the facts and The act of June 29, 1906, known as the ing of the same. In determining any question

circumstances .existing at the time of the makHepburn Act, amended section 6 of the In- concerning any such rates, fares, charges, clasterstate Commerce Act so that paragraph 7 sifications, regulations, or practices or changes of that section provides as follows:

therein, the Interstate Commerce Commission "No carrier, unless otherwise provided by shall give due consideration to the fact that the this act, shall engage or participate in the transportation systems are being operated untransportation of passengers or property, as

der a unified and co-ordinated national control defined in this act, unless the rates, fares, and and not in competition.” U. S. Comp. Stat. charges upon which the same are transported Ann. Supp. 1919, § 311594j. by said carrier have been filed and published in accordance with the provisions of this act; Under the authority of this section 10, denor shall any carrier charge or demand or col- murrage rates were initiated by the Presilect or receive a greater or less or different dent, through the Director General of Railcompensation for such transportation of pas, roads, by rules which were filed with the Insengers or property, or for any service in connection therewith, between the points named terstate Commerce Commission and the Illiin such tariffs than the rates, fares, and charg- nois Public Utilities Commission, and by the es which are specified in the tariff filed and in stipulation of the parties were applicable to effect at the time; nor shall any carrier refund any charges for demurrage during the times or remit in any manner or by any devise any for which demurrage is claimed in this case. portion of the rates, fares, and charges so spec- These rules provided that all cars, with cerified, nor extend to any shipper or person any tain exceptions not material here, should be privileges or facilities in the transportation of subject to them which were held for or by passengers or property, except such as are specified in such tariffs: Provided, that wher- consignors or consignees for loading, unloadever the word “carrier' occurs in this act it ing, forwarding directions, or for any other shall be held to mean 'common carrier.'U. purpose, 48 hours, 2 days' free time to be S. Comp. Stat. $ 8569, par. 7.

allowed for loading or unloading of all com

modities, and, after the expiration of the An act of Congress of August 29, 1916, s free time allowed, charges would be made 1, gave the President, in time of war, pow. for each car of $3 for each of the first 4 er to take possession and control of any sys- days, $6 for each of the next 3 days, and $10 tem of transportation and use it to the ex- for each succeeding day. There were rules in clusion of all other traffic, so far as neces- regard to Sundays, holidays, the manner of sary for the transportation of troops, war computing time, delivery of cars, and other material, and equipment, or such other pur- matters not material to state because they do poses connected with the emergency as might not affect the controversy. Rule 9 authorized be necessary or desirable. U. S. Comp. Stat. what is called the average agreement which § 1974a. War with Germany was declared consignors and carriers might make as a on April 6 and with Austria on December 7, basis for determining demurrage by a differ1917, and on December 26 the President is ent rule, which is not material, since the sued a proclamation taking control of the amount of the charge is not in controversy if transportation systems of the country and the appellant is liable for the demurrage. appointing a Director General with author- rate fixed by the rule filed. ity to operate and manage them, using the

[3, 4] The term "transportation," as definservices of the agents and employees then ed in the Hepburn Act, § 1, par. 2, includes engaged in such operation and management. cars and other vehicles and all instrumental

On March 21, 1918, the Federal Control ities and facilities of shipment or carriage, Act was enacted by Congress, section 10 of irrespective of ownership or of any contract, which provided, among other things:

express or implied, for the use thereof, and

all services in connection with the receipt, “During the period of federal control, whenever in his opinion the public interest requires, delivery, elevation, and transfer in transit, the President may initiate rates, fares, charg: ventilation, refrigeration, or icing, storage es, classifications, regulations, and practices by and handling of property transported; and filing the same with the Interstate Commerce that act makes it the duty of every carrier Commission, which said rates, fares, charges, subject to its provisions to provide and furclassifications, regulations, and practices shall | nish such transportation upon reasonable re

(148 N.E.) quest therefor, and to establish through but such as are convenient to the exercise routes and just and reasonable rates applic-of it, and such means may have the qualities able thereto. This act clearly declared the of police regulations. Hoke v. United States, intention of Congress to impose a duty upon 227 U. S. 308, 33 S. Ct. 281, 57 L. Ed. 523, carriers in respect to furnishing cars for in- 43 L. R. A. (N. S.) 906, Ann. Cas. 1913E, 905. terstate traffic, and this assertion of its au- So Congress for the correction of the abuses thority by Congress excluded the power of of extortion and favoritism before mentionthe state over the subject-matter. Chicago, ed, made substantial changes in the relations Rock Island & Pacific Railway Co. v. Hard- existing between carriers engaged in interwick Farmers' Elevator Co., 226 U. S. 426, state commerce and shippers, which have 33 S. Ct. 174, 57 L. Ed. 284, 46 L. R. A. (N. materially limited the freedom of contract S.) 203. The charge for demurrage stands between them which originally existed. The upon the same footing as any other charge terms of every contract of shipment, so far made by a carrier in connection with the as the service to be rendered and the comtransportation of property, and was properly pensation to be received are concerned, are included in the schedule required to be filed fixed by the schedule filed with and approved by the Interstate Commerce Commission and by the Interstate Commerce Commission. published. Swift & Co. v. Hocking Valley No agreement of the parties can modify these Railway Co., 93 Ohio St. 143, 112 N. E. 212, terms, though expressed in writing and actu. L. R. A. 19178, 916; affirmed in 243 U. S. ally performed. The collection by the car. 281, 37 S. Ct. 287, 61 L. Ed. 722.

rier of less than the schedule rate, though [5] The retention of cars unloaded beyond expressly agreed on, will not prevent the the free time allowed by the demurrage rule recovery of the shortage from the schedule is a terminal service, forming a part of the rate. The rates defined by the tariff cannot transportation as defined in the act of Con- be varied or enlarged by either contract or gress. It is a facility of shipment or car- tort by the carrier. Texas & Pacific Rail. riage in the storage and handling of proper- road Co. v. Mugg, 202 U. S. 242, 26 S. Ct. ty transported provided for in the schedule 628, 50 L. Ed. 1011; Chicago & Alton Rail. of rates filed and published, for which the road Co. v. Kirby, 225 U. S. 155, 32 S. Ct. carrier has no right to charge, demand, col- | 648, 56 L. Ed. 1033, Ann. Cas. 1914A, 501; lect, or receive a greater or less or different Louisville & Nashville Railroad Co. v. Max. compensation than that so specified. The well, 237 U. S. 94, 35 S. Ct. 494, 59 L. Ed. parties cannot by agreement alter in any 853, L. R. A. 1915E, 665; Keogh v. Chicago particular the terms of the contract of trans- & Northwestern Railway Co., 260 U., S. 156, portation, including every form of instru- 43 S. Ct. 47, 67 L. Ed. 183. “This stringent mentality or facility of shipment or carriage, rule prevails,” it is said in the case last citirrespective of ownership, or of any contract ed, “because otherwise the paramount purin the care, handling, and storage of the pose of Congress-prevention of unjust disproperty transported, from the time the car crimination-might be defeated.” The fixis delivered to the consignor for loading un-ing of rates by the Interstate Commerce til it is returned empty by the consignee. Commission establishes that they are reasonThe principle was applied in Southern Rail- able and not discriminatory. Keogh v. Chiway Co. v. Prescott, 240 U. S. 632, 36 S. Ct. cago & Northwestern Railway Co., supra; 469, 60 L. Ed. 836, and in Cleveland, Cin- Interstate Commerce Com. v. Atchison, Tocinnati, Chicago & St. Louis Railway Co. v. peka & Santa Fé Railway Co., 234 U. S. 294, Dettlebach, 239 U. S. 588, 36 S. Ct. 177, 60 34 S. Ct. 814, 58 L. Ed. 1319. Such interferL. Ed. 453, in holding that the parties to an ence with the freedom of contract is not an interstate shipment may not by special agree- unconstitutional interference with the liberty ment alter the conditions specified in the of the citizen to make contracts, or an unbill of lading in conformity with the car- constitutional deprivation of his property rier's published regulations governing the without due process of law. Congress has carrier's liability when a shipment is not re- the right to regulate commerce between the moved within 48 hours after notice to the states. It is a proper exercise of this power consignee of its arrival. The schedule con- in order to prevent unreasonable extortion taining the terms upon which the service of and discriminatory rates and discriminations transportation was rendered was binding up-, in the rendition of service and in preferences on both carrier and shipper, and must be to persons or localities, to prescribe the treated as though it were a statute. Penn- terms on which the services of carriers, in sylvania Railroad Co. v. International Coal connection with interstate transportation, Mining Co., 230 U. S. 184, 33 S. Ct. 893, 57 may be rendered, the nature of those servL. Ed. 1446, Ann. Cas. 1915A, 315; Swift & ices, the compensation for them, and the Co. v. Hocking Valley Railway Co., supra. character of the contract between the carrier

[6-8] The power given to Congress by the and the shipper. Even existing contracts in Constitution to regulate commerce amongst regard to special rates, rebates, or for free the several states is complete in itself, and transportation in consideration of an execut. as an incident of that power Congress may ed consideration, though valid at the time adopt not only such means as are necessary of the going into effect of the act, after that

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