, , nDERAL REPORTER, vol.
40,,,
the ()oriclusionthat the'title of this act fairly or suffioiently or information of the scope and substanoe in the body, or indicates: with reasonable certainty the purposes intended to be effeoted; bUt, on the contrary, I am clearly of opinion that tne title is misleading, and not all broad as the act; This view is supported by the followPeiJplev. MellM,32 Ill. 182; Loc:lcport v. Gaylord, 61 IlL 276; Pecplev. Wright,70 Ill. 388; People v. Deaconegses, 71 Ill. 229; Middleportv. Inw,rance Co., 82 Ill. 565; Peoplev. Hazelwood, 116 Ill. 327, 6 N. E. Rep; 480; Leach v. PeoPle, 122 Ill. 421, 12 N. E. Rep. Dolese v. Pierce, 124 Ill. 140,' 16 N.E. Rep. 218; Cooley, Const. Lim. 147-151.' , 'The seoond point argued in ooitnection with the alleged invalidity of the legislative act presents a niost important question: Doesthe watercraft act grant, and was it intended 'to grant, any speoial' or exclusive privilege; immunity, or franohisewhatever to any corporation? If it 40es,it prohibited by the,constitution. The fun-, of the constitution, expressed in a declaradamental idea of the tion, clear and explicit, was doubtless to secure some reasonable degree of equality and unifottDity of right and privilege between the different railroads in the state, whiohare required to perform important services to the' p,ublic. In the first part of the act under consideration no prin:' oiple of.uniformity of right orprivilage is violated. All railroad COmp!1nies incorporltted \mder the laWs of the state, havitlg a, terminus on any of the rivers on its borders, are given power to own for tpeir own use water-craftrieoessary in carrying across such river cars, transported" over theirlines, or transported over property, or any Milroad terminating on the opposite side of such river, to be transported over their lines: It has already been m,entioned that the concession'seems to have been made, on the argument, of the grant ofa new power to 'the class. of Illinois railroads terminating on bordering naviglible waters. Up to the approval of the act in question, these railrol1ds, by the general incorporaticin act, with the view of merelyenlargiJ;lg their termirtal' facilities, had the undoubted right of going to the water,-to transports or ferry-boats. It was because they did not seas the power to' own and use such transports back and forward' between terminal point'S on opposite sides of. these rivers that , the'legislaturewas appealed to;'1tna the newpowet The legisl':tttlre, iU'unswering this appeal, did'a. wise thing, in the first clause of the act,' by ,granting to these railroad corporations the privilege of ferry" goods andpasseJ;igers through, on through cars, putting them on boats'aridtransfer+ing them across the'river, and expediting railroad busiijess"anq acc()mnloditting the pubIlc 'by simplifying the num.of act, however,'seems.tohave gone ri1l1ch nirtherthan the"interests of commerce orofthe pubhcdemanded.,The partieS seeking tMs legislativeaid,-'!\ ferry addition to a f"tandiii;e, satisfied with a general grant of power to all railroada 'paVirig'the same terminus, bUhought toaccoropIlsh the double keeping everybody purpose of gE!tt'ifig this neW power fol' themselves, bM'to
'tHOMA-B. ''Ii.: WAB:A.BB,BT·. L.
co.
else from ,getting it,as far, as they could. Byproyiding tha,t;.nQ,raiIrqad cQ:tnpanyshould be given power to condemn land fora landing for,such ,as water-craft, and, that the act 'should onlY:..llpplyto such own the landing for such the objectionable and vicio.us fl:laturesofthislegislation clearly appear. The new power enabled.railroad companies owning land for a landing to own and use water-craft neCell:" sary in ferrying passengers and property lWross a river, but dii>abled companies not owning such land from exercising this most important franchise or privilege. I have had occasion before to state that, under the general incorporA.tion act, railroad corporations, whose lines terminated on a bordering 'navigable stream, had the power to go to ferries, when they did so by merely enlarging their terminal fMilities; but the portion of the act now being considered takes away an existing power, by declaring that they shall not exercise the power of eminent domain to to a ferry-boat; that they can neither use a the extent of getting transfer-boat nor get to a landing. The additional power, or enlarged franchise, to own and use boats to carry freight and passengers across the river is limited "to such railroad companies as own the landing for such water-craft." Corporations not fortunate enough to own the land, it may be, in consequence of a refusal by rivlli corporations to. sell what they do not need for their own purposes, are denied alike the of owning water-craft and of condemning land to reach a ferry-boat which may be used or owned hy others. It cannot be denied that the operation of this part of the act is partial and unequal. Here are two railroad companies,-the Cairo & Vincennes, represented by the'receivers, Thomas & Tracy, and the 81. Louis & Cairo, by intervening petitioners,-both termInating on the bankof the Ohio river at Cairo. They owe a common duty to the public, and this duty grows correspondingly with the demands of commerce, and public necessity and convenience. The Cairo & Vincennes answers the demand of the public for boats transferring across the river cars, freight, and passengers connecting on the opposite side with other railroad lines, and thus securing unbroken transportation. The 8t. Louis & Cairo. when called on for a similar service, is unable to respond. It avows its willingness to do so. and its,anxiety to discharge its duty to the public, but it does not ow,n the land for a landing for transfer-boats. The owner of this land, the Cairo & Vincennes, will not sell it, and tbis water-craft act prohibits its condemnation. Is it not perfectly manifest that the Cairo & Vincennes, under this act, enjoys a special privilege or immunity over the St. Louis & Cairo? Or, to put it differently, are not all the railroads not owning land for. a landing, and unable to purchase the same, discriminated against, and a special privilege granted to such, and such only, as own the landing? If in this controversy only these two railroad companies were it were a contest of mere, private right between them, -different considerations might arise. But they are both "railroad companies, incorporated under the laws of this state," enjoying franchises to be used in the interests of the public. The one owning the landing would in ail probability promise the public to serve it, efficiently, faith-
139
FEDERAL REPORTER,
vol. 40.
fully, and cheaply; but the public, unwilling to accept such assurances, very properly demand that all the avenues for the transaction of the commerce of the country be kept open, and that no agency be crippled which has for its object the promotion of the public interests. In the discussion of this question, counsel for the receivers emphasized the argument that the legislative act could be upheld upon the ground that railroad companiestem1inating on a river bordering on a stete, and owning a landing for water-craft. constitute a class; that the legislature intended to classify railroads terminating on navigable bordering streams into such as owned land for a landing for water-craft and such as did not, and that a railroad ,corporation not owning a landing for water-craft can only claim such privilege, immunity, or franchise as belongs to any other company or corporation in that class. A number of authorities were cited to sustain this view; among others, Railroad Co. v. Iowa, 911: U. S. 155. This position cannot be sustained, nor do the authorities referred to support it. There is but one classification of railroad companies under the net, and that is such as have "a terminus upon any navigable river bordering on this state." The supreme court, in 94 U. S., 8upra, quote approvingly, an Iowa case being under consideration, from McAunich v. Railroad 00., 20 Iowa, 343, wherein it is said: "These"laws are general and uniform, not because they operate upon every person in the state, for they do not, but because every person, who is brought within the relations and circumstances provided for, is affected by the law. They are general and uniform in their operation upon all persons in the like situation. and the fact of their being general and uniform is not affected by the number of persons within the scope of their operation." "The statute," (of Iowa,) says Chief Justice WAIT:E, "divides the railroads of the state into classes, according to business, and establishes a maximum of rates for each of the classes. It operates uniformly on each class, and this is all the consti· tution requires.," !tseems probable that the authors of the act under consideration prepared it with reference to this ;doctrine of classification. But it gives them no support! Every privilege,immunity, or franchise enjoyed or used by one railroad company terminating on the Ohio river at Cairo should be extended to every other railroad terminating there. It is impossible, by any fair reasoning; or upon any principle of justice to the public, to sustain the contention that one of these railroad corporations loses an almost invaluable 'privilege of serving the public because only of not being able to purchase land for a transfer or ferry landing. All the incorporated railroad com panies terminating at Cairo exercise their franchises by virtue of grants from. the sovereign power. The state, in granting the charters, necessarily in every instance reserved the right to in the public interest. No one or regulate and control the more of these companies can be permitted, under the semblance of a state grant or 'authority, to exercise rights and privileges in connection with facilitating the commerce of the country which are denied to others. And if the exercise of such power and. authority by the one or more is rightful,' the denial of the same immunities and privileges to others is
WALKER II. CRONKITE.
133"
illegal and oppressive; and any act pretending to confer authority for such discrimination is void. The water-craft act, therefore, has not only 8 false and deceitful title, but its purpose was to confer special privileges upon certain corporations, and to deny to others of the same class the exercise of the same rights. The following authorities are referred to in support of this view, that the act is in conflict with the twenty-second section of the fourth article of the constitution of Illinois: Prye v. Partridge, 82 Ill. 273; Peryple v. fJoryper, 83 Ill. 586; Peryple v. Meech, 101 Ill. 200; Millett v. People, 117 Ill. 305, 7 N. E. Rep. 631; Cooley, Canst. Lim. 389-396. The views already expressed and the conclusions reached render it un.: necessary to consider the fourteenth section of article 11 of the tion of 1870, or the second section of the fourth article of the constitution of the United States, both of which have been referred to as authority against the validity of the act in question. They were cited to sustain the position that a statute is unconstitutional which selects particular persons, natural or corporate, from a class or locality, and subjects them to peculiar rules, or imposes upon them special obligations or burdens, from which others in the same locality or class are exempt. Thia position is so nearly self-evident as not to require authority to support it. In my view, the provisions of the water-craft act, limiting the right to own and use boats and water-craft to such railroad companies as own the real ,estate for a landing, and withholding the right from companies not owning the land for a landing, are obnoxious to both objections urged against its constitutionality, and cannot be upheld as valid or binding. Of course this conclusion in no manner affects provisions of the act which are constitutional. The constitutional and un(',()nstitutional provisions' of this act are perfectly distinct and separable, so that the first may stand, though the latter fall. The salutary and useful provision permitting all Illinois railroad companies terminat:ng on any navigQ,ble river bordering on the state to own and use water-craft as a means of increasing their capacity to serve the public is unexceptionable; but the proviso restricting the use of this additional franchise to companies owning land for a landing is void.
WALKER
et al.
tI. CRONKITE
et ale
(Olreuit Court, D. Kansas. October 28, 1889.) L lUDGMENT-COLLATER!.L ATTACK.
Where land has been 80ld on execution under a domestic judgment the judgment. debtor cannot, in a collateral proceeding, and against a bonn fide purchaser, 8eek to impeach the 8heriff's return of service of su=on8 in the original action and the recitations of the judgment. , .
.. SAME-LIMITATION OJ!' ACTIONS.
Under Code Civil Proc. Kan. 5 16, subd. It which provides that a suit for the recovery of laDd BOld under execution must be Drought by the execution debtor Withitl
