REPORT. OFFICE OF THE RAILROAD AND WAREHOUSE COMMISSIONERS, O HIS EXCELLENCY JOHN M. PALMER, Governor of Illinois : We have stated in our last report, made to your Excellency on the st of December, 1871, that we found our course beset with difficulties, rising from the fact that the laws, under which we were to act, lacked ystem and symmetry, and presented many obscurities of language and eaning, while the remedies provided for any violation of the law were ostly confined to the person actually aggrieved, and in so far as they dicated public prosecutions, to be instituted by the Commissioners, ere with one or two exceptions so indefinite, providing no particular enalty and giving no clue in which way they could be prosecuted, as › prove practically in many instances insufficient. Upon an inquiry ut to the Attorney General of the State, (see report of 1871, page 65) s to how we should proceed under the act creating the commission, for violation of any of the provisions of said act, that officer replied (see age 67) as follows: "In this connection there arise several grave legal questions. All roceedings, under the provisions of the act to which my attention has een called, must be instituted really for the purpose of recovering cerin penalties; and the kind of remedy to be sought, or the nature of e action, or the amount of the penalty, will not be presumed by the ourt. In this regard the act is so imperfect in many of its features and rovisions, that I fear it must be amended before actions for its violaon (except under section 16) can be instituted and successfully prose uted." He says further (on page 68): "The offenses named in said act were ot misdemeanors at common law; therefore they are not indictable and unishable, unless it be in the precise way and manner indicated or ointed out by the act creating the offenses, and the act, in my judg ent, fails to give any indication (except in section 16) of the kind of ction to be brought, and is, in this respect, very crude and imperfect," In one instance only is a specified remedy provided, in section 16 of the act, where railroad companies willfully fail to furnish reports. The exceptions heretofore alluded to, that is to say where the public remedy is unmistakable,.are the provisions in the passenger fare act, which provide for an information in the nature of a quo warranto and judgment of forfeiture of charter, if five judgments have been obtained, by private persons in an action of debt, and a similar provision in the act forbidding discrimination in the charges for freight, the latter act not requir ing any previous convictions. Finding this to be the condition of the law, we have, whenever complaints were made, as to discrimination in freight charges, (and they were numerous) and as to over-charges for passengers, referred the persons so complaining, to those provisions which gave them a certain and unmistakable remedy, offering them every assistance in our power, and giving them all the legal advice we deemed necessary. But finding that the persons aggrieved preferred rather to submit than to engage in a contest with powerful companies we resorted to the last and only remedy really left the public. The Commissioners, in order to enforce the act entitled "An act to prevent unjust discriminations and extortions in the rates to be charged by the different railroads in this State for the transportation of freight on said roads," approved April 7, 1871, in force July 1, 1871, having received information of a violation of the first section of the said act, by the Chicago and Alton Railroad Company, applied to the circuit court of McLean county, for leave to file an information in the nature of a quo warranto against said company for such violation. On the 5th day of December, 1871, pursuant to leave theretofore granted, such information was filed in said court, setting forth that said company had repeatedly transported lumber from Chicago to Lexington, a distance of 110 miles, and charged therefor the sum of $5.65 per M feet, as toll and compensation for such transportation, and that during the same time the said defendant transported like lumber from Chicago to Bloomington, a distance (126 miles) greater than from Chicago to Lexington, and charged for such transportation $5.00 per M feet, and no more. The lumber transported to Bloomington over the road, passed through Lexington. The defendant pleaded, admitting the facts alleged in the information and setting up divers acts of the Legislature by which it was incorporated, and insisted that it had the right to fix tolls for the transportation of property at its discretion, and that the act of April 7, 1871, is in violation of the contract made with it by the Legislature in its charter, and is therefore void under the provision of the Constitution of the United States forbidding any State to pass any law impairing the obligation of contracts, To this plea a general demurrer was interposed on behalf of the State, and the case came up for hearing, on the demurrer, at the May term of the circuit court of McLean county. The case thus presented was argued orally before said court, near the close of said term (early in July, 1872), and was taken under advisement by the court. Late in August, 1872, the counsel for the railroad company applied to the counsel for the State for leave to file a printed argument in the case, which was assented to and the argument filed-and an argument on behalf of the State in reply was also filed. The case, thus presented, was considered by the Hon. T. F. Tipton, judge of said court, and on the 27th day of Nov., 1872, he rendered his judgment in favor of the State, and filed an opinion, giving his reasons for the same. A copy of the argument of the counsel for the railroad company, and also of the counsel for the State, and of the opinion of Judge Tipton, will be found in the report made to this Commission by the State's Attorney and counsel for the People in said case, to which you are respectfully referred, and which is hereto appended, marked "C." Upon this decision a judgment of forfeiture of corporate franchises and ouster has been rendered, from which an appeal has been taken to the next January term of the supreme court of this State. The hearing of the case at that term will be pressed, and no delay that can be avoided will be allowed to intervene. The experience of the Board confirms them in the opinion, expressed in their last annual report, of the importance of authority being vested in some suitable department of the government, to employ professional aid which possess the special and peculiar knowledge requisite for the proper prosecution of cases growing out of violations of the laws regulating railroads. They would therefore suggest that authority should be conferred upon this Board, with the approval of the Governor, to employ such counsel as they may think necessary to aid the State's Attorneys in such prosecutions, and that suitable provision be made for the compensation of such counsel. We also desire to call attention to the fact, that while it is made the official duty of the State's Attorneys to take charge, originally, of such prosecutions, no legal provision exists for their suitable compensation. It will be apparent that litigations involving such vast interests, and where on the part of the railroads enormous capital is ready to resist the authority of the State, and to pursue the controversy, by appeals, through all the courts, both of the State and the United States, unless provision is made by law for compensation of connsel to represent the interest of the State, and to pay the incidental expenses of such litigation, the railroad companies might succeed in defying the law, simply because no adequate provision is made for their prosecution. We therefore recommend that an appropriation of a sufficient sum to pay the ex Vol. I-45 penses of such litigations should be made, which shall be paid out only with the approval of the Governor. An amount should be appropriated adequate to command the necessary professional ability to protect the vast interests of the people involved in the questions under discussion. Thus far the case specially reported upon has been prosecuted without any appropriation made therefor, and the only amount yet paid by the State is five hundred dollars ($500), paid to the original spécial counsel by Governor Palmer out of the contingent fund, leaving all the incidental expenses of printing the arguments and opinions, and compensation to the State's Attorney, and also to the counsel, unprovided for. The Commissioners recommend that the Legislature should pass a law, providing for the temporary operation of all railroads, whose charters may be forfeited, by receivers or others officers, to be appointed by the court rendering judgment of forfeiture, until such roads shall be reorganized. They also recommend that a law should be passed, providing for the re-organization of all railroad companies whose charters may be forfeited. Being informed in May last by some gentlemen residing at a railroad center, that they were willing to sue several railroad companies for overcharging for passenger fare, we at once gave them instructions how to proceed, and furnished them with certified copies of such records of our office as were supposed necessary as evidence. One of these cases, being against the Illinois Central Railroad Company, was argued on a demurrer, admitting all the allegations of the declaration, in the circuit court of Ford county, on the 11th of September last, and was taken under advisement by the court, to be held until the next term thereof, viz: the third Monday in February next. So this important point has not been settled yet, even by the circuit court. In many instances we have successfully remedied complaints, and we are satisfied that when the people become better acquainted with the laws on the subject of railroads and warehouses, and the control which the Commissioners can exercise over the railroad companies, even without resorting to law, the usefulness of such a Commission will become more apparent. Having, for instance, received information that on some of the roads the law requiring the putting up of sign boards at every railroad crossing of highways had been but partially observed, we at once gave notice to the railroad companies in question of such defect, and desired them to remedy it immediately, and our directions were generally promptly complied with. The instructions we gave to the county surveyors, to put the law in force as to the safety of crossings of highways, also produced favorable |