MALOTT v. COLLINSVILLE C. & E. ST. L. ELECTRIC R. CO., 108 F. 313

After the foregoing statement of the case, GROSSCUP, Circuit Judge, delivered the opinion of the court, as follows: . It is not necessary that we should determine whether the court, sitting in equity, and having jurisdiction, through the receivership, to administer the Terre Haute & Indianapolis Railroad Company had power, upon a proper showing, to order the receiver to assent to, or contract respecting, the crossing named, upon the terms named.

This view of the case, manifestly, was not. in the mind of the court; for the appellant was refused leave to file an answer; no cognizance was taken of the policy of the state relating to railway crossings; and no testimony heard or required that would throw light upon the suitableness of the crossing proposed, or the general equity of the order asked. The demand of the appellee seems to have been regarded as one of right, subject only to the fixing and payment of compensation, as in eminent domain proceedings.

As an action, purely in eminent domain, the attitude and rulings of the Circuit Court seem to us to have been in conflict with both the letter and the spirit of the laws of the State of Illinois.

Section 209, c. 114, Rev. St. Ill. (an act approved May 27, 1889) provides: “That hereafter any railroad company desiring to cross with its tracks the main line of another railroad company, shall construct the crossing at such place and in such manner as will not unnecessarily impede or endanger the travel or transportation upon the railway so crossed.

If in any case objection be made to the place or mode of crossing proposed by the company desiring the same, either party may apply to the board of railroad and warehouse commissioners, and it shall be their duty to view the ground, and give all parties interested an opportunity to be heard.

After full investigation, and with due regard to safety of life and property, said board shall give a decision, prescribing the place where and the manner in which said crossing shall be made, but in all eases the compensation to be paid for property actually required for the crossing and all 'damages resulting therefrom shall be determined in the manner provided by law in case the parties fail to agree.” The answer offered by the appellant avers that the appellant objected to the place and mode of crossing, and there being a refusal to meet this objection, proceedings were instituted by the appellant, in pursuance of the

section just recited, before the Board of Railroad and Warehouse Commissioners of Illinois, to have the place and mode of the crossing determined by the Board. The refusal.to entertain this answer, or to take any account of the proceedings before the Board, ruled out, in effect, the statute as having any relation to the exercise of the right of eminent domain. There have been no rulings by the Supreme Court of the State involving the effect of this statute upon the pre-existing law of eminent domain; but we think it clear that

Section 209 is to be regarded as in pari materia with Sections 17 and 19 of the Act of March 1, 1872. (Sections 18, 20, c. 114. Rev.

St.), which, so far as material to this case, read as follows: Sec. 18: ‘‘If any such corporation shall ho unable to agree with the owner for the purchase of any real estate required for the purposes of its incorporation, or the transaction of its business, or for its depots, station buildings, machine and repair shops, or for right of way or any other lawful purpose connected with or necessary to the building, operating or running of said road, such e.orporation may acquire such title in the manner that may be now or hereafter provided for by any law of eminent domain.” Sec. 20: ‘‘livery corporation formed under this act” (railroad corporations) “shall, in addition to the powers hereinbefore conferred, have power: * * * Sixth — To cross, intersect, join and unite its railways with any other railway before constructed, at any point in its route, * * * and every corporation whose railway is or shall be hereafter intersected hy any new railway, shall unite with the corporation owning such new railway in forming such intersections and connections * * * and if the two corporations can not agree upon the amount of compensation to be made therefor, or the points and manner of such crossings and connections, the same shall be ascertained and determined in manner prescribed by law.” Keither

section 17 or 19 of the act of 1872 prescribed any tribunal by whom, in case of dispute, the place or manner of the crossing should be determined. Coming under

interpretation, in this respect, of the Supreme Court of Illinois, in 1881, it was held that, where the parties did not agree, the power of selecting the place and maimer of the proposed crossing belonged to the railroad seeking the right of way. Lake Shore & M. S. Ry. Co. v. Chicago & W. I. R. Co., 97 Ill. 506.

The statute of May 27, 1889 makes no' departure from sections 17 and 19 of the act' of 1872, except ia its provision that in case of objection to the place or mode of crossing' proposed by the company desiring the same, eitlier party may apply to- the Board of Railroad and Warehouse Commissioners, which Board, alter full investigation, shall prescribe the place and manner of such crossing.

We think it clear that, in respect of the place and manner of crossing, and an independent tribunal to determine such place and manner, the latter legislation was intended to modify the former, as the former had been construed by the Supreme Court of the State. In no state is the mileage of railways so great as that of Illinois. In no state has the extension of railways been so rapid. .Nearly every township is now intersected, north and south, and east and west, hy these great railways.

With the increase of mileage has come, also, multiplying of trains, on the roads already laid, and growing need for greater speed. There has been no time when the grade crossing was not attended with danger, and no time when the danger, from all these sources, was not rapidly increasing. The purpose behind the act of 1889 is, we think, clearly disclosed in this rapid evolution of the railway situation. The act of 1889 doubtless looked toward an escape, as far as possible, from grade crossings.

It could be accomplished only hy crossing overhead or underneath, and this, in turn, depended frequently upon the topography of the place where the crossing was made; hence the provision in the act of 1889 (to that extent modifying sections 17 and 19, act of 1872), that in case of objection, both manner and place of crossing should be left to the disposal of a state board. Our conclusion as to the purpose of the act is reinforced by the fact that it followed shortly after the decision of Lake Shore & M. S. Ry. Co. v. Chicago & W. I. R. Co., supra; by the fact that any other

interpretation would leave the act emasculated of any substantial meaning; and by the fact that another Act looking to the better protection of grade crossings by interlocking devices quickly followed —

an Act itself having no meaning, unless read in pari ma-teria with Sections 17 and 19 of the act of 1872, and also the act of 1889. The inquiry then arises: Is the appellee a railroad company, within the meaning of the Act of May 27, 1889; and is its exercise of the right of eminent domain subject to the provision and limitations of that Act. It was incorporated under the law of March 1, 1872, relating to the incorporation of railroad companies. Its ardides of incorporation are on file in the office of the Secretary of State of Illinois in the book of Railroad Records.

It took, and unquestionably intended to take, under its charter, the powers of a railroad corporation; among them the railroad corporation’s right of eminent domain. The fact that its trains are to be operated by electricity instead of steam does not affect its place in the laws of the state, as a railroad company. ■ There is nothing in the acts of 1872 and 1889 that restricts railroads therein mentioned to the use of steam as a motive power, or prevents existing steam roads from changing their motive power to that of electricity.

There is nothing in these Acts that neces°sarily or fairly excludes its application to electrical roads, as they now exist; indeed, those electrical roads, in the speed of their trains, in the distances travelled, and in their capabilities for transportation, are well within the field of public utilities hitherto occupied by the steam railroads alone. We can not conceive that these-acts, so far, at least, as they are reasonably applicable, were not meant to cover every form of railroad that, in the march of events, answers the purposes of general transportation.

Nor does their incidental function as street railways, in the towns or cities traversed, lift them out of the railroad statutes; for it has-been held that an elevated road — wholly intramural — is, in its creation and its powers, within the contemplation of the railroad statutes, and exercises its right of eminent domain by virtue of those statutes. Lieberman v. Railroad Co., 141 Ill. 140, 30 N. E. 544.

Indeed, if the appellee be not a railroad, within the meaning of the Act of March 1, 1872, as modified by the Act of May 27, 1889, and other Acts relating thereto, we can find no authority for its existence, as á corporation, or for its exercise of the right of eminent domain. Since the Illinois1 State Constitution of 1870, no corporation can be created, except under some general statute of the General Assembly.

Article 11, Const. 1870. The legitimacy of a eoi'poi-ation is tested by its ability to point to the specific statute of its origin. From what general statute of the state has the ap-pellee sprung, if not from the act of 1872? From what other statute has it invoked the spark of life that gives it existence and the rights of a corporation? The right of eminent domain must have a like specific statutory origin. It can not exist outside of some specific statute, and statutes of this character, being in derogation of the common law, are (o be strictly construed. Ligare v. City of Chicago, 139 111. 46, 28 IN. E. 934.

A survey of the Illinois statutes shows that the right lias been granted in favor of mill sites, drains, parks, streets, highways, toll roads, telegraph lines, sanitary districts, horse and dummy roads, and railroads. To which one of this catalogue can appellee trace its right, except to the railroad acts? It is not a horse or' dummy road, within the Act of March 19, 1874; for it was not so organized, and has not accepted ihe burdens or limitations of that act. It is not entitled to open a street; the right of eminent domain, for that piu-pose, is vested in ihe municipal authorities.

It is not a highway or toll road, within the meaning of the law. Unless a railroad, within the acts of 1872 and 1889, it is a corporation, sui generis — exercising the high right of eminent domain from an origin sui generis — -a conception impossible under the Constitution and laws of Illinois. This disposes of the case, so far as it may be regarded as a suit purely in eminent domain; for the right of the appellant to take the judgment of llic Raih*oad and Warehouse Commissioners upon the manner and place of the crossing is one that can not be denied without committing error.

Nor may the court:, sitting under the lessei1 restrictions of chancery, ignore this general and salutary policy of the state. From all Unit appears, a crossing at grade might have befen avoided, either at the point where the crossing was proposed, or at some point, adjacent; or, in the absence of this, circumstances might have been shown imposing upon the court the duty of protecting the crossing at grade by some interlocking or safety device, as contemplated by the Act of July 1, 3891.

No evidence respecting these inquiries was heard or required — the answer raising them was refused; the court seemed to be under the impression that, in these respects, its hands were tied. We are compelled to hold that this attitude of the court, toward inquiries so closely related to the policy of t.he state, and the safety of the travelling public, was mistaken, and that the order ensuing was improvident. The order of the Circuit Court is, accordingly, reversed, and the case remanded, with directions to enter an order not inconsistent with this opinion.