State v. Illinois Central Railroad

Parmer, J., Vickers, C. J., and Cooice, J., specially concurring:

We do not disagree with the conclusions reached by the court in the determination of the rights of the respective parties to this litigation upon the material questions involved in so far as definite conclusions are set out in the opinion. We do not, however, agree with all the discussion in the opinion, and without attempting to point out in detail all that is said with which we are not in accord, we feel compelled to say that we do not agree with what is said in discussing the question whether a fiduciary relation exists between the State and the Illinois Central Railroad Company. What is said on that subject seems to us unnecessary to a determination of the case upon the issues presented by the record and to serve no useful purpose. The court holds that no fidutiary relation exists, and with that holding we agree. If, then, no such relation exists, it appears to us inconsistent to hold that the rules of evidence as to the burden of proof are just the same as if such relation did exist. In our opinion, when the rights and relations of the parties are determined, the rules of evidence applicable in taking the account must necessarily be the rules applicable between any parties sustaining similar relations. In other words, there being no fiduciary relation between the State and the railroad company, but their relations being contractual, the burden of supporting the allegations of the bill by proof, in our opinion, is on the State, and it is not incumbent upon the railroad company, in the first instance, to disprove them. We also think that in some respects the opinion is not as definite as it should be in order to be a safe guide for the court in trying the case.