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(315 IU. 461, 146 N. E. 606.)

lic use to be used for the mere convenience or selfish purposes of the shipper.

Chicago & A. R. Co. v. Suffern, 129 Ill. 286, 21 N. E. 824; Hoyt v. Chicago, B. & Q. R. Co. 93 Ill. 601; National Elevator & Dock Co. v. Chicago, M. & N. R. Co. 50 Ill. App. 345; St. Louis Hay & Grain Co. v. Chicago & A. R. Co. 151 Ill. App. 384; Banner Grain Co. v. Great Northern R. Co. 119 Minn. 68, 41 L.R.A. (N.S.) 678, 137 N. W. 161.

A railway company cannot be compelled to transport upon lines of railway owned or controlled by another railway company.

Hoyt v. Chicago, B. & Q. R. Co. 93 Ill. 601; State ex rel. Mt. Hope Coal Co. v. White Oak R. Co. 65 W. Va. 15, 28 L.R.A. (N.S.) 1013, 64 S. E. 630.

Where shipper is at disadvantageous location, a commission should. not require the expenditure of money by railway company to obviate the same, and to do so is a taking of railway property for a private use.

Chicago, R. I. & P. R. Co. v. State, 23 Okla. 94, 99 Pac. 901; St. Louis & S. F. R. Co. v. State, 25 Okla. 420, 106 Pac. 818; St. Louis & S. F. R. Co. v. Haywood, 25 Okla. 417, 106 Pac. 862; Atchison, T. & S. F. R. Co. v. State, 24 Okla. 616, 104 Pac. 908; Winters Metallic Paint Co. v. Chicago, M. & St. P. R. Co. 16 Inters. Com. Rep. 587.

A court called upon to exercise a power specially bestowed by statute must act within the power bestowed. Donlin v. Hettinger, 57 Ill. 348. Even a court acting summarily under statute authority must strictly pursue that authority.

Haywood v. Collins, 60 Ill. 329; Clark v. American Surety Co. 171 Ill. 242, 49 N. E. 481.

When built and connected with a railway of appellant, this track would become a part of the public railway highway of the state, free and open to the use of the public.

Truesdale v. Peoria Grape Sugar Co. 101 Ill. 567; Chicago Dock & Canal Co. V. Garrity, 115 Ill. 155, 3 N. E. 448; McGann v. People, 194 Ill. 526, 62 N. E. 941; Public Utilities Commission ex rel. Illinois C. R. Co. v. Smith, 298 Ill. 159, 131 N. E. 371; St. Louis, S. & P. R. Co. v. Commerce Commission, 309 Ill. 621, 141 N. E. 405.

When a sidetrack or an industrial track is connected with the main track of a railway the constitutional provision covers that track, and gives the

right of use to all persons for reasonable compensation.

Public Utilities Commission ex rel. Illinois C. R. Co. v. Smith, 298 Ill. 159, 131 N. E. 371; St. Louis, S. & P. R. Co. v. Commerce Commission, 309 Ill. 621, 141 N. E. 405.

The policy of the state is settled beyond doubt to protect a public utility from the invasion of its territory or the taking from it of business that is naturally tributary to it by a competing public utility.

Chicago Motor Bus Co. v. Chicago Stage Co. 287 Ill. 328, P.U.R.1919D, 157, 122 N. E. 477.

A railway company will not be compelled to extend its railway into new territory without its consent, and in the absence of a necessity therefor.

Chicago & E. I. R. Co. v. Wiltse, 116 Ill. 457, 6 N. E. 49.

The orders of the commission unlawfully require such extension.

Litchfield & M. R. Co. v. Alton & S. R. Co. 305 Ill. 391, 137 N. E. 248; Detroit & M. R. Co. v. Boyne City, G. & A. R. Co. (D. C.) 286 Fed. 540.

When a railroad has settled its termini by building its railway, there can be no extension or new construction thereof without express legislative authority.

Cairo, V. & C. R. Co. v. Woodyard, 226 Ill. 334, 80 N. E. 882, 9 Ann. Cas. 55; Chicago & E. I. R. Co. v. Wiltse, 116 Ill. 449, 6 N. E. 49; Lake Shore & M. S. R. Co. v. Baltimore & O. & C. R. Co. 149 Ill. 272, 37 N. E. 91.

The entry of these orders attempts to impose an obligation which the ownership of its railway does not impose upon the appellant.

Northern P. R. Co. v. Railroad Commission, 58 Wash. 360, 28 L.R.A. (N.S.) 1021, 108 Pac. 938; Hartford F. Ins. Co. v. Chicago, M. & St. P. R. Co. 175 U. S. 99, 44 L. ed. 88, 20 Sup. Ct. Rep. 33; Missouri P. R. Co. v. Nebraska, 164 U. S. 417, 41 L. ed. 495, 17 Sup. Ct. Rep. 130; Missouri P. R. Co. v. Nebraska, 217 U. S. 208, 54 L. ed. 732, 30 Sup. Ct. Rep. 461, 18 Ann. Cas. 989; Chicago, R. I. & P. R. Co. v. State, 23 Okla. 94, 99 Pac. 901; St. Louis & S. F. R. Co. v. State, 25 Okla. 420, 106 Pac. 818; St. Louis & S. F. R. Co. v. Haywood, 25 Okla. 417, 106 Pac. 862; Atchison, T. & S. F. R. Co. v. State, 24 Okla. 616, 104 Pac. 908; Winters Metallic Paint Co. v. Chicago, M. & St. P. R. Co. 116 Inters. Com. Rep. 587; Railroad Commission v. St. Louis

Southwestern R. Co. 35 Tex. Civ. App. 52, 80 S. W. 102, rehearing denied in 98 Tex. 67, 88 S. W. 1141.

Messrs. Miley & Combe, James M. Sheean, C. B. Cardy, and P. J. Wimsey for appellee Coal Company.

Stone, J., delivered the opinion of the court:

Appellant seeks review of a judgment of the circuit court of Saline county, affirming two certain orders of the Illinois Commerce Commission, one of which granted permission to the appellee, the J. K. Dering Coal Company, to construct and maintain at grade across the tracks of the Illinois Central Railroad Company, and across the tracks of the Southern Illinois Railway & Power Company, and across three highways in Saline county, a railroad track. The proposed track was to extend south from the coal mine of the coal company a distance of over 3 miles, and across the two railroads and the three highways mentioned, to the right of way of the appellant, hereinafter called the Big Four. The second order appealed from required the appellant to construct, maintain, and operate on its own right of way a switch track, connecting the track authorized by the first order with the main track of appellant. The physical situation of the parties affected by these orders is shown by the following plat:

J.K.DERING COAL CO.

It will be seen by examining the plat that the Big Four railroad extends in a southwesterly direction through Saline county. A branch line of the Illinois Central Railroad Company (hereinafter referred to as the Illinois Central) extends from the city of Du Quoin, Ill., in a southeasterly direction through the property of the Dering Coal Company to Eldorado, where it connects with the Big Four. On the Big Four, southwest of Eldorado 8 or 10 miles, is Harrisburg, Harrisburg, where the principal classification yards of that road in that section are located, and approximately halfway between Harrisburg and Eldorado is what is shown on the plat as the Wasson Coal Company mine. Both the Big Four and Illinois Central are interstate carriers. The Southern Illinois Railway & Power Company (hereinafter referred to as the Traction line) is an electric interurban railway extending along the northwest side of the Big Four, and parallel therewith from Eldorado to Carrier Mills, a distance of 20 miles southwest. The Dering Coal Company mine is located on the Illinois Central at a point 2 miles northwest of the junction of the Big Four and the Illinois Central at Eldorado. The coal company owns 3,670 acres of coal lands. The point of these lands nearest to the Big Four is approximately one

CITY OF ELDORADO

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(315 Ill. 461, 146 N. E. 606.) half mile from it. The evidence of the appellees shows that the maximum daily production of the Dering mine is about 3,500 tons, though its actual production has been between 2,000 and 2,500 tons.

The track sought to be laid is that shown on the plat as extending in a southwesterly direction from the tipple of the Dering coal mine across the Illinois Central railroad, and thence south to and across the Traction line, connecting with the Big Four at a point southwest of the Wasson mine. It appears that appellant was not made a party to the petition (known as No. 12,819) for permission to cross the railroads and highways involved, although that petition states that the coal company desires to connect with appellant's road. It further appears that appellant did not discover that such a petition had been filed until after the entry of the order therein. It then filed a motion with the commission to set aside the order, and for leave to appear and defend against the petition. The coal company thereupon filed a further petition (known as No. 12,891) to require the Big Four to connect its line with the proposed track when constructed. The two petitions were then consolidated for hearing before the commission.

The first petition (No. 12,819) was filed on November 25, 1922, by the Illinois Central, the Traction line, and the Dering Coal Company as their joint petition, and sets out that the petitioners had agreed among themselves as to the manner in which the crossing should be constructed, and the expense thereof met, and that such agreement would be reduced to writing, and filed with the commission. The petition alleges that the entire cost of construction of the track will be borne by the coal company, and prays that the commission permit the track to be constructed and operated as a mine spur-track from the mine of the coal company across the Illinois Central and the Traction line to the Big Four. With this petition were filed a plat of the proposed track, and the 54 A.L.R.-4.

consent of the highway commissioner to the crossing of the highways. On December 14, 1922, the commission entered the order on that petition complained of, finding that the construction of the track was necessary to facilitate movement and distribution of coal cars from the coal company's mine, and would not unnecessarily impede or endanger traffic upon the railroads to be crossed; that the parties had agreed among themselves as to the construction of the crossing and the expense connected therewith, and permission was granted to construct this track across the railways and highways mentioned.

The second petition (No. 12,891) was filed December 27, 1922, directed against appellant alone. After setting out that the coal company needed connection with appellant's line for distribution of coal, and that permission had been granted to construct the track referred to in petition No. 12,819, it prays for an order requiring the Big Four to construct, maintain, and operate a switch track connecting the proposed track of the petitioners with the tracks of the Big Four in accordance with a plat filed. The appellant filed an answer denying the reasonableness or necessity of such connection, alleging that the construction of the so-called mine lead track was to obtain additional car supply, and denying the jurisdiction of the commission to authorize its construction. Appellant's counsel also moved to dismiss the petition for Iwant of jurisdiction of the Illinois Commerce Commission, for the reason that it was, in substance, a petition for car distribution and supply which is controlled by the Interstate Commerce Commission, and for the further reason that it was a proceeding to establish a connection between two railroads, and to extend the lines of each within the meaning of the law, which matter is also within the sole jurisdiction of the Interstate Commerce Commission under the Federal Transportation. Act.

Evidence was heard touching the question of the necessity for this additional service for the coal company. Its evidence was to the effect that the track in question is necessary by reason of lack of cars and service; that the normal maximum output of its mine cannot be had without it. The evidence of appellant shows that it has expended the sum of $16,000,000 in procuring equipment and facilities for handling coal in the territory served by it; that in order to handle the additional coal from this mine it would be necessary for appellant to enlarge its equipment and to extend its classification yards at Harrisburg; that service rendered to this mine or to other industries and businesses which may locate along the proposed track would seriously limit the service now being afforded to the industries on its own line, and that it would be unreasonable to require it to take on such further extension.

At the close of petitioners' evidence, and at the close of all the evidence, counsel for appellant again moved to dismiss these petitions on the ground that the evidence showed that the proposed track would be a railroad connecting the Illinois Central and the Traction line with appellant, and would amount to the extension of such lines, and that this was a matter over which the Interstate Commerce Commission had exclusive jurisdiction. This motion was also based on the ground that the coal company was attempting to construct a railroad to be operated for general commercial purposes, without charter powers so to do.

The record shows that this line of the Illinois Central is a branch of a very large system of railroads having a number of branch lines supplying numerous other coal mines in that region. No complaint to the Illinois Central arising out of lack of cars appears to have been made, or any proceedings had to secure more service from it. It is not shown that the coal company is unable to reach any desirable market with the service given by the Illinois

Central. It also appeared on the hearing that the coal company had entered into a contract with the Illinois Central to build the proposed track at the expense of the coal company. By this contract the coal company gave to the Illinois Central the right to operate over the track with its trains and cars, the right to extend other tracks from it to other mines and properties, to change the grade of the track, to maintain additional crossings, to have the right of way in operation of its trains over the crossings, and to connect this track with its main line track. The agreement also provided that the Illinois Central was to maintain the track in good order at the expense of the coal company; that the Illinois Central agreed to operate its trains over this track in such manner as not to unreasonably interfere with the use thereof by other companies. The contract also provided that, when the coal company no longer desired the use of the track, the Illinois Central could purchase it, if it desired, at the actual cost thereof. The coal company by this contract was not permitted to sell the track to any other railroad company without the consent of the Illinois Central. The coal company also entered into a contract with the Traction company providing for a crossing over its railway and a wye connection with it, and for the operation of the track jointly with the Illinois Central for passenger and freight service, conferring on the Traction company privileges similar to those granted to the Illinois Central, but subject thereto.

At the close of the hearing of the evidence the petitioners in petition No. 12,891 moved to modify the order entered on December 14, 1922, in that cause by limiting the use of the proposed track to that of a private mine track. This was done, and the order of December 14 in that cause otherwise adhered to. The commission also entered an order in No. 12,891 confirming the building of the track, and ordering the connection with appellant, but provided in both

(315 Ill. 461, 146 N. E. 606.)

orders that, notwithstanding the contract between the coal company and the railway companies, the track, when built and connected with the Big Four, should not be used for any other purpose than to serve the mine of the coal company, until further use is granted by the commission in a proper proceeding.

Appellant contends that the recital in these orders is of no validity, for the reason that the track, when constructed, will become a public track, and the commission has no power to limit the use of it. It also contends that the proposed track is not a private or spur track, but is a track connecting three railways, and is an extension of the lines of each; that such a track cannot be laid without authority from the Interstate Commerce Commission under the Federal Transportation Act, under which act the authority of that body is supreme. It is also contended that the contracts between the coal company and the Illinois Central and Traction line constitute leases, and that the coal company has no authority under its charter to build, own, operate or lease a railroad, and no such power can be conferred on it by the commission. Appellees contend that this is a private spur track; that under §§ 45 and 58 of the Public Utilities Act (Smith-Hurd Rev. Stat. 1923, chap. 111, §§ 45, 62), and under § 1 of the Mines Act (Smith-Hurd Rev. Stat. 1923, chap. 94, § 1), it has a right to construct the track, and that under § 5 of article 13 of the state Constitution, and § 45 of the Public Utilities Act, appellant is required to permit connection with its railway.

The first question involved in the case is whether or not this track, when constructed, would be a spur track, or, in fact, a railroad extension. If the former, jurisdiction lies in the Illinois jurisdiction over Commerce Commission to enter the orders entered herein, provided the evidence shows a proper case; if the latter, the commission has no juris

Commerce

spur track.

diction, as jurisdiction over such matters is vested in -extension of the Interstate Com- railroads-jurismerce Commission

diction.

by the federal Transportation Act. It is argued that this track is for the purpose, only, of supplying additional railway service to the mine of the coal company. An examination of the plat discloses that the coal company's mine is not on the Big Four, and therefore cannot be considered an industry on that road. It is also shown by the plat and the evidence that the proposed railroad is over 3 miles in length, while the distance from the coal company's mine to the Big Four at Eldorado is about 2 miles. Whether this track is a spur track or a connection between two or more railroads, and an extension of one or all, depends upon. the use to which it is adapted. Standard lexicographers define a "spur track" as a track leading from a line of railway, and connected with it at one end only, giving as a synonym "sub track." It is a matter of common knowledge, however, that the term "spur track" is given. a somewhat wider application. The line of demarcation between a spur track and a branch or connecting line of a railroad, or a railroad extension, is not always easy to discern, and each case must rest largely upon its own facts.

In Detroit & M. R. Co. v. Boyne City G. A. R. Co. (D. C.) 286 Fed. 540, the term "spur tracks," as distinguished from extensions and connecting or new lines, as used in the Transportation Act, was held to mean tracks used for loading, reloading, storing, and switching cars, merely incidental to the regular train haul, while the latter are tracks over which there are to be train movements in the sense that such movements are actual transportation hauls from the shipper to the consignee. The Boyne City Railroad was a line extending from Alpina, Mich., on the west shore of Lake Huron, in a general westerly direction to Boyne City, on the east shore of Lake Michigan. For a dis

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