A railroad company, for its convenience and that of shippers, had constructed, at the termination of its track on Black river, an elevator, or platform car, which was used in lowering and raising freight, on an incline track extending from its depot, on the bank, to the water's edge; and the plaintiff's husband, having prepared for shipment a small cargo of fish, and placed same on platform of the elevator, undertook to ride thereon, without defendant's consent, up to the station, when the wire rope by means of which the car was operated suddenly broke, while the car was ascending, and caused the injury and death of deceased. Held, plaintiff cannot recover, because the deceased was not a passenger, and no contractual or quasi contractual relations existed between him and the defendant, he being a mere stranger or trespasser on the company's property. Snyder v. Natchez R. & T. Co., 42 La. Ann. 302; 7 South. Rep. 582. If a person, by his own solicitation or consent, is carried upon a vehicle or conveyance which is not used for the purpose of passenger carriage, there can be no presumption that he was a passenger, although the owner be a common carrier of passengers by other and different means of conveyance. Ibid.

BURDICK V. PEOPLE.

(Supreme Court of Illinois, April 2, 1894.)

1. COMMON CARRIERS. ACT TO REGULATE SALE OF TICKETS AND PREVENT TICKET SCALPING. VALIDITY. An act of Illinois requiring owners of railroads and steamboats to provide each ticket agent with a certificate of authority, and to redeem tickets which are wholly or partly unused, and forbidding persons not having such certificates to sell such tickets, except that any one who has bought a ticket from a certified agent, with the bona fide intention of traveling upon the same, may sell it, is not unconstitutional as depriving any person of property without due process of law, or as impairing the obligation of contracts.

2. The act is not in conflict with the Federal Constitution, as interfering with interstate commerce, though it applies to tickets entitling the holder to travel on any railroad or steamboat, "whether the same be situated, operated or owned within or without the limits of this state."

3. Nor is the act in conflict with that provision of the State Constitution, which prohibits the general assembly from "granting to any corporation, association or individual any special or exclusive privilege, immunity or franchise whatever."

Hill & Martin, for plaintiff in error. Maurice T. Maloney, Attorney-General, and J. M. Herbert, State's Attorney (W. S. Forrest and M. Rosenthal, of counsel), for the people.

MAGRUDER, J. This was an indictment against plaintiff in error for wrongfully and unlawfully selling to one L. H. Myers one

certain railroad ticket, entitling the holder thereof to travel upon the Illinois Central railroad from Cairo, in Illinois, to Chicago, in the same state, in violation of the following statute of Illinois:

"An act to prevent frauds upon travelers and owner or owners of any railroad, steamboat or other conveyance for the transportation of passengers. Approved April 19, 1875. In force July 1,

1875.

"Section 1. Be it enacted by the people of the state of Illinois, represented in the general assembly: That it shall be the duty of the owner or owners of any railroad or steamboat for the transportation of passengers, to provide each agent who may be authorized to sell tickets or other certificates entitling the holder to travel upon any railroad or steamboat, with a certificate setting forth the authority of such agent to make such sales, which certificate shall be duly attested by the corporate seal of the owner of such railroad or steamboat.

"Sec. 2. That it shall not be lawful for any person not possessed of such authority, so evidenced, to sell, barter or transfer for any consideration whatever, the whole or any part of any ticket or tickets, passes or other evidences of the holder's title to travel on any railroad or steamboat, whether the same be situated, operated or owned within or without the limits of this state.

"Sec. 3. That any person or persons violating the provisions of the second section of this act shall be deemed guilty of misdemeanor, and shall be liable to be punished by a fine not exceeding five hundred dollars, and by imprisonment not exceeding one year, or either or both, in the discretion of the court in which such person or persons shall be convicted.

"Sec. 4. That it shall be the duty of every agent who shall be authorized to sell tickets, or parts of tickets, or other evidences of the holder's title to travel, to exhibit to any person desiring to purchase a ticket, or to any officer of the law who may request him, the certificate of his authority thus to sell, and to keep said certificate posted in a conspicuous place in his office for the information of travelers.

"Sec. 5. That it shall be the duty of the owner or owners of a railroad or steamboat, by their agents or managers, to provide for the redemption of the whole, or any parts or coupons of any ticket or tickets, as they may have sold, as the purchaser, for any

reason, has not used, and does not desire to use, at a rate which shall be equal to the difference between the price paid for the whole ticket and the cost of a ticket between the points for which the proportion of said ticket was actually used; and the sale by any person of the unused portion of any ticket, otherwise than by the presentation of the same for redemption, as provided for in this section, shall be deemed to be a violation of the provisions of this act, and shall be punished as is hereinbefore provided; provided, that this act shall not prohibit any person who has purchased a ticket from any agent authorized by this act, with the bona fide intention of traveling upon the same, from selling any part of the same to any other person.

"Sec. 6. Any railroad or steamboat company that shall, by any of its ticket agents in this state, refuse to redeem any of its tickets or parts of tickets as prescribed in section 5 of this act shall pay a fine of five hundred dollars for each offense, to the people of the state of Illinois, and it shall be unlawful for said company, subsequent to such refusal, to sell any ticket or tickets in this state until such fine is paid." 2 Starr & C. St. 1951.

The defendant, before pleading to the indictment, moved to quash it, upon the alleged ground that said act was in contravention of the Constitutions of the United States and of the state of Illinois; but said motion was overruled, and exception taken. The court refused to give for the defendant an instruction to the effect that said act was in contravention of said Constitutions, and, therefore, void, to which refusal defendant excepted. The jury found the defendant guilty. Motions for new trial and in arrest of judgment were overruled, to which exception was taken; and judgment was entered upon the verdict, fining defendant $500, to which, also, exception was taken. The subject presented for consideration is the constitutionality of the above act, and we will consider the objections to its validity in the order in which they are presented by the counsel for plaintiff in error in their brief.

1. It is contended that the act violates section 2 of article 2 of the Constitution of Illinois, which provides that "no person shall be deprived of life, liberty or property without due process of law," and that it also violates the provisions of a similar character in the Federal Constitution. Const. U. S. arts. 5, 14, Amend. (1) Starr & C. St. 36, 38, 39). The position of counsel is that, when

a man purchases tickets or other certificates entitling the holder to travel upon any railroad, etc., as stated in the act, such tickets are his property, and that the legislature has no authority to pass an act depriving the holder of such property of the right to sell it to whom he pleases. The Constitution does not say that the disposition of property may not be limited or regulated when the interests of the public so require, but that no person shall be deprived" of his property without due process of law. The phrase "due process of law" is the equivalent of the words "law of the land," as used in Magna Charta, and means "in the due course of legal proceedings according to those rules and forms which have been established for the protection of private rights." Board of Ed. v. Bakewell, 122 Ill. 329; 10 N. E. Rep. 378; Rhinehart v. Schuyler, 2 Gilman, 473; Davidson v. New Orleans, 96 U. S. 97; Cooley Const. Lim. (5th ed.) marg. p. 356, top p. 435. An act of the legislature is not necessarily the "law of the land." A state cannot make anything "due process of law" which, by its own legislation, it declares to be such. An act of the legislature which transfers the property of one man to another without his consent is not a constitutional exercise of legislative power, because, if effectual, it operates to deprive a man of his property without "due process of law." Davidson v. New Orleans, supra; Taylor v. Porter, 4 Hill, 140; Rohn v. Harris, 130 Ill. 525; 22 N. E. Rep. 587; Ervine's Appeal, 16 Penn. St. 256; Hoke v. Henderson, 4 Dev. 1. If, therefore, the above act of 1875 operates to deprive the holder of a legally-purchased ticket of his property rights therein, it must be declared to be void. But, upon turning to section 5 of the act, we find that it authorizes the original purchaser of a ticket from an authorized agent to resell the whole or any unused part of such ticket to the owner of the railroad or steamboat who sold it to him, or to sell any part of it to any other person, if the original purchase of it from the agent was with the bona fide intention of traveling upon it. The purchaser is entitled to have his ticket redeemed by the railroad or steamboat owner at a rate fixed by the terms of section 5, but his right of sale is not even limited to such owner, provided, only, his purchase was made in the mode and for the purpose stated in the proviso to the section. In view of the provisions contained in sections 5 and 6, we fail

to see how the owner of the ticket is deprived of his property in it. His ticket is not destroyed, nor is there any serious limitation upon his use of it. The design of the act, as stated in its title, is to prevent frauds upon travelers and owners of railroads, steamboats and other conveyances for the transportation of passengers. The business of a common carrier is a public employment. The franchises of railroads acting under charters or acts of incorporation are of a public nature, so far as the safety, convenience and comfort of passengers are concerned. Reasonable regulations affecting the conduct of such public employments are fit subjects for legislative action. The lawmaking power may provide means for remedying such evils as, in its opinion, may exist in the management of these public agencies of transportation; and in doing so it may sometimes impose restrictions, which are deemed to be necessary, upon the use and enjoyment of property. A man is not deprived of his property unless it is taken away from him, so that he is divested of his title and possession. To limit the use and enjoyment of property by legislative action is not to take it away from the owner, when the property whose use and enjoyment are so limited, is invested in a business affected with a public use, or is used as an accessory in carrying on such business. Munn v. People, 69 Ill. 80; Com. v. Wilson, 14 Phila. 384. We are, therefore, of the opinion that the act under consideration does not violate section 2 of the bill of rights.

2. The act is alleged to contravene the provisions of the Federal and State Constitutions which forbid the passage of laws impairing the obligation of contracts. Const. U. S. art. 1, § 10; Const. Ill. art. 2, § 14; 1 Starr & C. St. 31, 105. The tickets proven to have been sold by the plaintiff in error contain only the name of the railroad company, the words "Cairo to Chicago," the signature of the general ticket agent, and certain figures or numbers. It has been held that such a ticket is not a contract, but merely the evidence of a contract, or a mere receipt taken or voucher adopted for convenience, to show that the passenger has paid his fare from one place to another. Logan v. Railway Co., 12 Am. & Eng. R. Cas. 141; 2 Redf. R. R. (6th ed.) 303; Ray Neg. Imp. Dut. 495; Com. v. Wilson, supra. But, if it be admitted that the ticket is a contract, the statute would only be inoperative and of no effect as to contracts existing at the time of