The People v. The Chicago and Alton Railroad Co.

whom the right to lay down tracks in West Water street is given may associate with them in the construction and use of said tracks any other corporations, and shall allow and permit the use of said tracks by any other railroad corporation upon terms and conditions to be agreed upon.

It is admitted by the pleadings, that no agreement was ever made by the respondents for the use of these tracks. By the ordinance, it is discretionary with the companies to make such agreements. This court cannot compel respondents, if application was made to it, to enter into an agreement to use them. It is not their duty to make an agreement, it is a privilege only, and, consequently, the court cannot compel these respondents to use these tracks, or any one of them. In short, it cannot coerce a party to do what the law does not oblige him to do. Granting the writ would confer no power or authority upon respondents to enter upon and use these tracks. A plain dereliction of duty must be established before a mandamus can be awarded.

The ground of the decision in Vincent's case was, that the sidetrack, under the circumstances attending its construction, became a part of the track of the railroad company, and they were, therefore, bound to deliver grain, carried by them in bulk, to the warehouse erected upon it, when consigned to such warehouse.

The return in this case shows, and the fact is admitted by the demurrer, that the respondents have provided, by contract with other parties, a warehouse on their own track, ample in capacity to contain all grain ordinarily transported in bulk over their line of road, having all the necessary machinery and appliances for speedily receiving, unloading and returning the cars in which it is transported, and have guarded consignors of such articles against imposition, by a covenant that the charges made at such warehouse shall not exceed those of other warehouses in the city of Chicago. A delivery, therefore, of grain in bulk to such a warehouse, if not consigned to any other warehouse on the line of their road, would be a fulfillment of the obligation resting upon them to carry and deliver such freight.

So long as no discrimination is made by railroad companies between warehouses on their line of road, shippers can have no real cause of complaint. So long as their grain is properly handled aud stored, and at the usual charges, it can make but little, if any, difference to them by whom those services are performed, or where,

The People v. The Chicago and Alton Railroad Co.

and if no warehouse upon the line of a railroad is designated by the consignor as the recipient, and as a delivery cannot be made at the usual freight-depot, what can be more reasonable and proper than a delivery to the warehouse they have furnished upon their own track, that being in all respects ample for the purpose. Porter v. Chr. & R. I. R. R. Co., 20 Ill. 407. As they cannot be compelled to transport the grain beyond their track, or off it, so neither can they be compelled to receive it for such purpose. There is nothing in the warehousing act of 1867 opposed to this. The 22d section of that act clearly implies, that the warehouses designated by the consignors shall be upon the track of the road on which their grain is carried, and within the limits of its franchise. It never could have been the design of the act to compel one road to trespass on the chartered rights of another, or to purchase a privilege of the other.

It is urged by the respondents, in support of their return, that they have a right to refuse to receive grain in bulk, to be carried on their road, and can demand it shall be placed in proper packages, convenient for handling and storage in their cars, and for unloading.

When we consider the vast amount of grain annually produced for market in the rich country through which this road passes on its way to the great grain-market of the west, the difficulty, if not impossibility, of providing sacks, barrels, or other safe contrivances to secure properly this production for shipment, is quite apparent. This led to the establishment of costly elevators, and they induced the custom, which has obtained with all railroads, in this State, at least, to receive grain in bulk, it being equally as well protected in that condition in its transit by cars as in sacks, and as speedily unloaded from them, by means of the steam power and appropriate machinery employed by them. These erections have had the same powerful influence upon the production of wheat, one of our great staples, as the introduction of the reaper, for without the agency of the latter, those vast fields yearly blossoming with this product, would be devoted to other purposes, and but for the steam car and the elevator, if cultivated up to the limit of their capacity, their products could find no market. Hand in hand, these powerful influences are at work, and so long as the two latter make no unjust discriminations, and are satisfied with moderate charges, the stimulus to the agricultural interest will be unceasing, and nothing will

The People v. The Chicago and Alton Railroad Co.

be wanting to make this the great grain-growing State of the west, if not of the Union.

We are not of opinion that respondents, or any other railroad company, can disregard the custom of conveying grain in bulk over the line of their own road and delivering it at any elevator thereon to which it may be consigned. If consigned to an elevator or warehouse not on their road, and beyond their terminus, or there be no elevator on the road on which the grain is carried, then they may rightfully refuse to receive it in bulk.

The facts stated in respondents' return, and the legal consequences flowing from them, for the reasons we have given, afford a complete justification for the refusal to receive the grain in question, the elevator to which it was consigned not being on their road, or within the limits of their franchise. We have examined all the cases to which reference has been made, and we are well satisfied the views here expressed conflict, in no particular, with any of them. The demurrer to the return must be overruled.

Mandamus refused.

SHELDON, J. I hold that so long as the respondents actually make use of the track leading to the relators' elevator, in running their cars over it, it is their duty to make delivery of grain there, under the rule laid down by this court in the case of Vincent v. C. & A. R. R. Co., 49 Ill. 33.

SCOTT, J. I concur in denying the peremptory writ in this case, on the ground that the writ of mandamus is not the appropriate remedy for the wrong complained of. When the law affords another and complete remedy, I understand the law to be well settled that a writ of mandamus will never be awarded. On the state of facts presented by this record, the law furnishes a complete and ample remedy to the party injured.

Without discussing the case at length, I am of opinion, on the facts presented in the record, that it was the duty of the railroad company to receive the grain in question and deliver it at the relators' warehouse, and for that purpose the company had the clear right to use the track in question, and for a failure so to do they are liable in any appropriate common-law action.

WALKER, J. I concur in the opinion announced in this case, bu hold that respondents, and all other railroad companies in the State

Chicago and North Western Railway Co. v. Williams.

may be compelled by mandamus, when a proper case is made, to carry grain in bulk, if such is the customary mode of transportation, and to deliver it to any elevator on the line of their roads, or upon any of their side-tracks or switches to which it may be consigned; and when such roads enter the city of Chicago, they should deliver grain therein in the same manner, when so consigned, on their own tracks, side-tracks or switches, and at the elevators to which consignments are made, on other roads in the city with which they have running arrangements, unless they would be compelled to incur unreasonable expense in making such delivery. But they are not, nor can they be, required to construct new side-tracks or switches, or extend the line of their roads, or to make rurning arrangements with other roads, or to purchase or lease other roads for the purpose of making such delivery.

CHICAGO AND NORTH WESTERN RAILWAY Co., appellants, V. WILLIAMS.

(55 Ill. 185.)

Railroad company — regulations as to passengers. Measure of damages.

A railroad company set apart in its passenger trains & car for the exclusive use of ladies and gentlemen accompanied by ladies. A colored woman was excluded from the car on account of her color. Held, that the company was liable in damages, and that $200 was not excessive in view of the indignity and delay of the exclusion.

ACTION to recover damages for plaintiff's exclusion from a railway car belonging to defendants. The opinion states the facts. At the trial judgment for plaintiff was rendered for $200. Defendants appealed.

James M. Wight, for appellants.

E. W. Blaisdell, Jr., and C. F. Miller, for appellee.

SCOTT, J. There is but one question of any considerable importance presented by the record in this case.

VOL. VIII.-81

Chicago and North Western Railway Co. v. Williams.

It is simply, whether a railroad company, which, by our statute and the common law, is a common carrier of passengers, in a case where the company, by their rules and regulations, have designated a certain car in their passenger train for the exclusive use of ladies, and gentlemen accompanied by ladies, can exclude from the privileges of such car a colored woman, holding a first-class ticket, for no other reason except her color.

The evidence in the case establishes these facts: That, as was the custom on appellants' road, they had set apart in their passenger trains a car for the exclusive use of ladies, and gentlemen accompanied by ladies, and that such a car, called the "ladies' car," was attached to the train in question. The appellee resided at Rockford, and being desirous of going from that station to Belvidere, on the road of appellants, for that purpose purchased of the agent of the appellants a ticket, which entitled the holder to a seat in a firstclass car on their road. On the arrival of the train at the Rockford station, the appellee offered and endeavored to enter the ladies' car, but was refused permission so to do, and was directed to go forward to the car set apart for and occupied mostly by men. On the appellee persisting on entering the ladies' car, force enough was used by the brakeman to prevent her. At the time she attempted to obtain a seat in that car, on appellants' train, there were vacant and unoccupied seats in it, for one of the female witnesses states that she, with two other ladies, a few moments afterward, entered the same car at that station and found two vacant seats, and occupied the same. No objection whatever was made, nor is it insisted any other existed, to appellee taking a seat in the ladies' car, except her color. The appellee was clad in plain and decent apparel, and it is not suggested, in the evidence or otherwise, that she was not a woman of good character and proper behavior.

It does not appear that the company had ever set apart a car for the exclusive use, or provided any separate seats for the use of colored persons who might desire to pass over their line of road. The evidence discloses that colored women sometimes rode in the ladies' car, and sometimes in the other car, and there was, in fact, no rule or regulation of the company in regard to colored passengers. The case turns somewhat on what are reasonable rules, and the power of railroad companies to establish and enforce them.

It is the undoubted right of railroad companies to make all reason. able rules and regulations for the safety and comfort of passengers