then due Daly. On August 13, 1900, Green and Daly gave the insurance company their note for $1,467, secured by the delivery of the policy to the company, and the $1,467 was paid to Daly. Green, in 1902, paid the interest on this note for one six-months' period and the note, with some interest, remained unpaid at Green's death and was deducted by the company from the face of the policy. Within four months of Green's death, and prior thereto, appellant filed a bill in chancery to foreclose his lien upon this policy for the payment of the $800 note, premiums paid by appellant, and interest, and for an accounting. It was represented in the bill that the policy had been pledged as collateral security for the note. Green did not answer the bill and was defaulted. After his death, and at a subsequent term of the court, the bill was dismissed. and a demand was made by Daly upon the insurance company for the entire sum due upon the policy.

James C. Courtney (Angus Leek, of counsel), for appellant. C. L. V. Mulkey, for appellee.

SCOTT, C. J. (after stating the facts). The initial question is: By the original transaction, did Green pledge the policy of life insurance to Daly to secure his note, or was the transaction a sale of the policy to Daly, with a contract for its repurchase by Green?

It appears that Green applied to Daly for a loan; that in connection with the matter three instruments were executed, which must be construed together in determining what the original contract was. These instruments were: First, a promissory note for $800, given by Green to Daly, due in one year, with interest from date; second, an absolute conveyance of the policy from Green to Daly; and, third, an assignment of the policy from Green to Daly with a defeasance, by the terms of which Green was entitled to have the policy reassigned to him upon the payment of the promissory note when due. The only conclusion which can be reached from an inspection of these instruments is that the policy was pledged to secure the payment of the promissory note, and that it was not sold to Daly. Appellant contends, however, that if it be true that the original transaction was a pledge, still that prior to the time of Green's death the latter had abandoned, waived, or lost by laches, the right of redemption, and that consequently Daly is now to be regarded as the absolute owner of the policy. It is argued, and cases are referred to as showing, that, in instances where the property involved is personal in its character, courts will frequently hold the right of redemption barred by laches, or waived or abandoned, under circumstances where, if the property involved were realty, the right would still exist. The authorities

cited below, while not directly in point, lead to the conclusion that the right to redeem from a pledge of personal property should not, in any event, be denied by the courts on the ground that it has been lost by laches or has been waived or abandoned by the pledgor, so long as that right is recognized by the pledgee and the pledgor as still existing. Jones on Chattel Mortgages, 688; 2 Story's Eq. Jur. p. 1520; Green v. Capps, 142 Ill. 286, 31 N. E. 597; Richey v. Sinclair, 167 Ill. 184, 47 N. E. 364. At the time of Green's death Daly had a bill pending in the circuit court of Massac county alleging that Green assigned and pledged the policy in question to Daly to secure the payment of the $800 note, praying for an accounting against Green as to the money due on that note and advances made by Daly to pay premiums on the policy, asking that Green be decreed to pay the amount due within a short day, and that in default thereof the "said pledged and assigned insurance policy" be sold to satisfy the claim of Daly. While that suit was pending Green applied to one J. F. McCartney for a loan to pay to Daly the amount due Daly and for which he held the policy as security. McCartney talked to Daly in regard to the matter, and the latter said he had brought the suit because Green didn't pay him, and inquired whether McCartney was going to let Green have the money to pay him off with, and in response to an interrogatory from McCartney stated the amount required to pay him off. At all times up to the entry of the decree herein, Daly retained possession of Green's $800 note, and, while this is not always conclusive, it is strong evidence that he (Daly) still regarded the relation of the parties as that of pledgor and pledgee. If at any time the policy had become absolutely the property of Daly, and Green's indebtedness to Daly had been extinguished, the right and natural thing for Daly to have done would have been to surrender to Green the evidence of the indebtedness. The purpose of the agreement of July 1, 1900, was, no doubt, to give Green, who was in failing circumstances, an opportunity to satisfy the indebtedness by the payment of a less sum than was actually due.

We are satisfied that up to the time of Green's death both Green and Daly regarded Green as being the possessor of a right to redeem the policy by paying to Daly the amount of money loaned and the amount of money advanced by Daly, with interest. That being true, Green's equity of redemption had not been waived or abandoned or lost by laches, and Daly will not be permit-. ted, after Green's death, "to better his hold" by claiming that he is now the absolute owner of the policy of insurance in question. We are not unmindful of the fact that Daly sought to show, by his own testimony and that of the solicitor who filed the bill to foreclose the lien on the policy of insurance (which bill was not signed nor sworn to by

the complainant therein), that Daly did not know precisely what the averments of that bill were; that he said to his solicitor, prior to the filing thereof, that he wanted the question of Green's rights in the policy determined, and that he wanted a suit brought for that purpose for the satisfaction of himself and the insurance company, and that he first learned at a date later than Green's death that the bill which the solicitor filed was a bill to foreclose a lien. Waiving all ques

tion as to the competency of these two men to testify to the matters and things detailed by them which occurred before Green's death, and which consisted, in part, of the relation by the solicitor of conversations between himself and Daly in the absence of Green, we find, on examination, that their testimony on this subject abounds in equivocation and evasion to such an extent that the circuit court may well have refused to give weight thereto.

By the decree from which Daly appealed, he was awarded the money he had loaned to Green, with interest thereon, and all the money he had advanced on account of the policy, with interest thereon, and he is entitled to nothing more.

The judgment of the Appellate Court will be affirmed.

2. SAME-STATUTES.

Hurd's Rev. St. 1903, p. 1451, c. 114, § 25, requiring railroads to stop their trains at county seats, has no application to a proceeding by mandamus to compel a railroad to stop its trains at a depot at a county seat, where it maintains another depot there.

3. SAME-ABANDONMENT OF STATION.

That private citizens may have constructed residences or established business enterprises in view of the expectation that a depot established and maintained by a railroad company for many years would continue to be a regular stopping place for the trains of the company cannot influence the court, in mandamus proceeding to compel the continuance of the depot and the stopping of trains there.

[Ed. Note.-For cases in point, see vol. 41, Cent. Dig. Railroads, §§ 134, 135.] 4. SAME.

The question whether a depot is surrounded by saloons and other places of vice cannot be considered, in a proceeding by mandamus to compel the continuance of the depot and the stopping of trains there.

5. SAME.

Where, in mandamus to compel a railway company to stop its trains at a depot it is threatening to abandon, the court held that no judgment awarding the writ could be predicated on a contract alleged to have been entered into by the company with respect to the maintenance of the depot, and no error was assigned, the court on appeal must hold, as a matter of law, that any contract was of no binding effect in the proceeding, so that the question must be whether the company had the discretionary right to change the location of its depot. 6. SAME.

A railway company acting in good faith has the right, as against the public, uncontrolled by contracts or previous acts on its part, to change the location of its depots, provided it furnishes reasonably safe, accessible, and con venient depot accommodations for the public, having also regard to the interests of the stockholders of the company.

[Ed. Note.-For cases in point, see vol. 41, Cent. Dig. Railroads, § 135.] 7. SAME.

In mandamus proceeding to compel a railway company to stop its trains at a depot it is threatening to abandon, evidence examined, and held to support a finding that the change in the location of depots as contemplated by the company furnished reasonably safe, accessible, and convenient depot accommodations for the public, requiring the court to refuse the writ.

Appeal from Circuit Court, Vermilion County; E. R. E. Kimbrough, Judge.

Mandamus by the people, on the relation of Emil H. Langhans, against the Chicago & Eastern Illinois Railroad Company, to compel respondent to stop its trains at a certain depot. From a judgment granting the prayer of the petition, respondent appeals. Reversed.

H. M. Steely and J. B. Mann, for appellant. G. F. Rearick and William L. Cundiff, for appellee.

WILKIN, J. On May 16, 1904, the relator filed an amended petition in the circuit court of Vermilion county, as a resident and taxpayer of the city of Danville, against appellant, praying for a writ of mandamus to compel it to stop its trains at the North street depot, in said city. On the 18th the defendant filed its answer, and on October 10th the petitioner filed his replication. The cause was tried by the court without the intervention of a jury, and a judgment was rendered granting the prayer of the petition as to certain specified trains, and for costs of suit. To reverse that judgment this appeal is prosecuted.

The following facts material to the decision of the case appear from the record: The appellant railroad company is organized under the laws of this state, owning and operating lines of railroad through, to, and from the city of Danville. It has a depot or station on North street, in said city, known as the "North Street Depot," established about the year 1877. It also maintains a station about one mile north of said North street depot, known in the record as the "Collett Street Station or Depot." Both of

these stations are located within the corporate limits of the city of Danville. It owns and operates a line of railroad from the city of Chicago through Danville, in a southeasterly direction, to Terre Haute, Ind.; also another line connecting with said Chicago line at or near the Collett street station, and running thence in a southwesterly direction to the village of Sidell, in the same county, where it connects with a line extend ing to the town of St. Elmo, in Fayette county, this state, and thence by two branches, one to St. Louis, Mo., and the other to Thebes, on the Mississippi river, connecting with lines south. The city of Danville is the county seat of Vermilion county; the courthouse being situated about three blocks southwest of the North street depot and about one mile southwest of the Collett street depot. It is alleged in the petition that on January 4, 1904, the company ceased to run any of its regular passenger trains to, or stop the same at, said North street depot, in said city, but from thence hitherto is now running, threatens to continue to run, and has scheduled to run, certain of its passenger trains daily, and certain others daily except Sundays, into and through the corporate limits of said city of Danville without stopping the same at said North street depot, and that since said date it has scheduled to run through the corporate limits of said city, without stopping at said depot, certain north-bound trains, none of which are through mail passenger trains carrying mail or express matter and passengers from one state to another. The petition further sets out the manner in which the respondent acquired its ownership of said railroad, and that the township of Danville voted and paid certain donations to its predecessors upon condition of the location of the depot substantially at the site of the North street station. The theory of the petition is that by reason of the location and long maintenance of the said North street depot, its convenience to the public travel, accessibility, and surrounding conditions, the respondent company has no right to cease to run its regular trains to that place. It is alleged that said station is conveniently located for the accommodation of the traveling public and the citizens of said city, town, and county, in the transaction of their business at the county seat, it being within about 1,800 feet of the courthouse, 2,500 feet of the county jail, and 2,000 feet of the town and city buildings; also that 98 per cent. of all of the business houses and 90 per cent. of the residences are located within a radius of 1 mile of that station; that by reason of the location and maintenance of the depot at said place for 27 years many citizens have erected homes, business houses, manufacturing plants, and commercial establishments, and expended large sums of money in taxes and special assessments improving the streets adjacent and approaching said depot, in the belief that 78 N.E.-50

it would forever be maintained as a depot and passenger station for all regular and passenger trains. It is further alleged that by reason of the failure of said company to run its regular passenger trains to and stop them at said depot, and the threatened continuance to do so,. the citizens of said city, town, and county, and the public at large, have been, and will continue to be, greatly aggrieved, damaged, and inconvenienced, wherefore "it was the duty of the defendant, on January 4, 1904, to run its said passenger trains into and through the corporate limits of the city of Danville, and stop all of said regular trains at said North street depot a sufficient length of time to receive and let off passengers with safety." The prayer is that a writ of mandamus be directed to the respondent to so stop its trains, and for such further order in the premises as justice may require.

The answer is, in the main, a general denial of the allegations of the petition, both as to the convenience and the necessity for the continued maintenance of the North street depot and the stopping of its trains there. It sets up the following facts: That within the corporate limits of the city of Danville, one mile north of said North street depot, at Danville Junction, where all of its divisions meet, it has for 25 years maintained, and still maintains, a depot at which all its passenger trains, both through and local, pass and stop a sufficient length of time to allow passengers to get on and off; that a large per cent. of the passengers to and from Danville, when its trains were run to the North street depot, got on and off at the junction, and still continue to do so; that the company runs through trains from Danville Junction southeasterly into the state of Indiana, and from thence connecting with other railroads to the south; that it runs another train to Shelbyville, and there. branches, one branch going to St. Louis and the other to Thebes, on the Mississippi river above Cairo, there connecting by car ferry across the Mississippi river with other lines; that the track extending from the Danville junction to the North street depot is only a spur track about three-quarters of a mile long, and except at the north end it has no connection with any other line; that it is dangerous to run trains to, and back them from, the North street depot, which is made necessary by the fact that said track between said depots is but a spur track; that the growth of the city of Danville since said depot was located has been to the north and east, until the same, with its suburbs, whether within the corporate limits of the original city of Danville or not, now extends two miles to the north and two miles to the east of said North street depot, and the principal business part of the city is to the west and north of said North street depot and upon the street car lines of the city: that the vicinity of said North street depot

has ceased to be a desirable residence portion of the city, and there are no street car accommodations to and from the same, but that it is surrounded by lumber yards, switch yards, breweries, manufacturing establishments, a few wholesale houses, and saloons. It then describes the location of various street car lines and public buildings, and alleges that the travel to and from the said North street station is not accommodated by street car lines. It denies that the defendant is or can be required to keep and maintain two depots for the accommodation of passengers within the corporate limits of the city of Danville, but that, with the exception of three months, it has run, and denies that it refuses to run, all of its passenger trains that are not through or interstate trains, to and from the said North street depot. It denies that none of its trains are through trains, or mail and passenger trains carrying mail or express and passengers from one state to another, and says that certain of its trains (giving their numbers) are through passenger trains. running to points outside of the state of Illinois.

The order of the court commands the defendant "to run all of its regular passenger trains which are operated into or through the corporate limits of the city of Danville, Ill., on either of its three divisions or lines of railroad running into said city, viz.: First, the Chicago division, extending from Danville to Chicago; second, the Terre Haute division, extending from Danville to Terre Haute, Ind.; and, third, the St. Louis division, extending from Danville to Sidell, Ill., and there connecting with another line of railroad extending to St. Elmo and Thebes, Ill. to the depot station of said railroad located on North street, in said city, and to stop the same at said depot a sufficient length of time to receive and let off with safety all passengers using or desiring to use such trains, but exempting it from running to said depot such of its through trains carrying mail, express, or passengers from one state to another, and not engaged in local mail, express, or passenger traffic, as shall be necessary to accommodate such interstate traffic and travel on said railroad," etc. The controversy between the parties, briefly stated, is this: The relator contends that, inasmuch as the North street depot has been established by the defendant company and maintained for a number of years to accommodate the public travel, it should be compelled to maintain the same and stop its passenger trains at that place. On the other hand, the respondent insists that, having provided within one mile or less of the old station within the corporate limits of the city of Danville, the county seat, another station, reasonable, suitable, and sufficient to accommodate the public travel, it cannot be compelled to keep up the old one or stop

its trains there, and that to do so would require it to establish, maintain, and stop all its trains at both stations.

A good many questions are raised and discussed in the brief and argument of counsel for appellant which in our view of the case need not be decided. That a railroad company has the right, generally, to determine the location of its freight and passenger depots is not and cannot be questioned. Of course, that right is not a mere arbitrary one, but must be exercised with reasonable discretion, taking into account the convenience of the public and interests of the company. But two propositions of law were held by the court below on behalf of the relator: The first, that section 25, of the act entitled "An act in regard to fencing and operating railroads," as amended on April 11, 1899 (Laws 1899, p. 333), is constitutional and valid. That section appears at page 1451, c. 114, of Hurd's revision of 1903, and prescribes the duty of railroad corporations as to stopping their trains, particularly at county seats. As appears from the foregoing statement of facts above, the North street and Collett street depots of the respondent company are both located within the corporate limits of the city of Danville, the county seat, and therefore the foregoing section has no practical application here. The case of Illinois Central Railroad Co. v. People, 143 Ill. 434, 33 N. E. 173, 19 L. R. A. 119, simply holds that mandamus will lie to compel railroad companies to stop all their regular passenger trains at county seat stations long enough to allow passengers to get on and off the same. It does not hold, nor was that question there involved, that trains must be stopped at more than one station at such county seats. If the respondent in this case had simply sought to relocate its North street. depot on another block in the same vicinity, it certainly could not be claimed that it was about to refuse to stop its trains at the county seat. And so here the question is whether, in view of all the facts and circumstances, the threatened relocation and stopping of trains is reasonable, in view of the public interests and that of the company; and so the case evidently was determined on the second proposition held on behalf of the petitioner, which is as follows: "The court holds, as a proposition of law, that the defendant has no right, after using and establishing the North street depot, to change

its depot to another location in the city and to abandon the said North street depot, in any event unless it furnishes another depot equally as safe and equally as accessible and equally as convenient to the public." To the holding of this proposition the defendant duly excepted. Several of the propositions submitted to the court by the respondent, holding the law to be otherwise, were refused, so that it is apparent that the deci

sion below was based upon the rule an nounced in said second proposition.

We assume that it will be conceded that the fact that private citizens may have constructed residences or established business enterprises, in view of the expectation that the North street depot would continue to be a regular stopping place for the trains of the respondent, could not influence the court, in a mandamus proceeding, to compel the continuance of that station and the stoppage of trains there; nor do we think that the question as to whether that place is surrounded by saloons and other places of vice has anything to do with the real question which we are called upon to decide. We held, in People v. Chicago & Alton Railroad Co., 130 Ill. 175, 22 N. E. 857, which was a mandamus proceeding disposed of in the court below on demurrer to the petition (page 182 of 130 Ill., and page 859 of 22 N. E.): "Railway companies, in the absence of statutory provisions limiting and restricting their powers, are vested with a very broad discretion in the matter of locating, constructing, and operating their railways and of locating and maintaining their freight and passenger stations. This discretion; however, is not absolute, but is subject to the condition that it must be exercised in good faith and with a due regard to the necessities and convenience of the public. Railway companies, though private corporations, are engaged in a business in which the public have an interest and in which such companies are public servants and amenable as such." And, on page 184 of 130 Ill., and page 860 of 22 N. E., it is further said: "It is in recognition of the paramount duty of railway companies to establish and maintain their depots at such points and in such manner as to subserve the public necessities and convenience that it has been held by all the courts, with very few exceptions, that contracts materially limiting their power to locate and relocate their depots are against public policy, and therefore void"citing St. Louis, Jacksonville & Chicago Railroad Co. v. Mathers, 71 Ill. 592, 22 Am. Rep. 122; Same v. Same, 104 Ill. 257; Bestor v. Wathen, 60 Ill. 138; Linder v. Carpenter, 62 Ill. 309; St. J. & D. C. R. R. Co. v. Ryan, 11 Kan. 602, '15 Am. Rep. 357; P. R. R. Co. v. Seely, 45 Mo. 212, 100 Am. Dec. 369; Holladay v. Pattison, 5 Or. 177; Taylor on Corporations, § 162, and authorities cited.

The leading case on this last proposition is Fuller v. Dame, 18 Pick. (Mass.) 472, which was an action on a note given under an agreement to locate a station on lands of the payee, and, although the station was built according to the agreement, the court held the note void because the agreement was against public policy, and Chief Justice Shaw, rendering the opinion of the court, said: "The work is a public work, and the public accommodation is the ultimate object. In doing this, a confidence was reposed in them, acting as agents for the public-a confidence

which it seems could be safely so reposed when it is considered that the interests of a corporation, as a company of passenger and freight carriers for profit, were identical with the interests of those who were to be carried that is, with the public interests. This confidence, however, could only be safely so reposed under the belief that all the directors and members of the company should exercise their best and their unbiased judgment upon the question of such fitness, without being influenced by distinct and extraneous interests having no connection with the accommodation of the public or the interest of the company. Any attempt, therefore, to create and bring into efficient operation such undue influence has all the injurious effects of a fraud upon the public by causing a question, which ought to be decided with a sole and single regard to the public interest, to be affected and controlled by considerations having no regard to such interests." The case of Mobile & Ohio Railroad Co. v. People. 132 Ill. 559, 24 N. E. 643, 22 Am. St. Rep. 556, was also a mandamus proceeding to compel the company to stop its trains at a station called "Hodges Park." The decision in the circuit court was on the petition and answer, and the writ was awarded as prayed. The petition, among other things, alleged that, as an inducement to locate and maintain a station and depot at said place, citizens of Hodges Park, and persons interested in property there, conveyed to the railroad company, or its predecessors, without cost to it, certain real estate to be used in the operation of the road, and that in pursuance thereof a station and depot was located at that place and maintained for many years. In our decision reversing the judgment below, we held, as will appear from a quotation from the opinion hereinafter made, that such a contract could not be enforced in a mandamus proceeding. It will readily be seen that what was decided in Gray v. Chicago, Milwaukee & St. Paul Railway Co., 189 Ill. 400. 59 N. E. 950, and Lyman v. Suburban Railroad Co., 190 Ill. 320, 60 N. E. 515, 52 L. R. A. 645, in no way militates against these decisions. They were both personal actions to enforce individual rights for a breach of a condition subsequent in agreements made by the respective companies and the respective parties bringing the suits.

The record in this case also shows that the learned judge of the trial court held as a proposition of law that no judgment awarding a writ of mandamus could be predicated upon the contract set up in the petition, and no cross-errors are here assigned. It must be therefore held, as a matter of law, upon the foregoing authorities and upon the record as here presented, that any contract previously entered into, either by the respondent company or its predecessors, to locate and maintain a depot at any particular point, is of no binding force or effect in this action, and the question must be whether