The opinion
Supplemental Opinion and Ruling on Petition pop Rehearing
In their petition for rehearing defendants have urged that this court has overlooked the point that the contract in question is an agreement relating to the use of land and improvements; that there are only three categories of agreement permitting the use of land — conveyance, lease and license — and hence the agreement must fall into one of those categories; that it cannot be a conveyance, which “involves a transfer of an interest in land, such as a fee, easement or other freehold interest”; that if it were a license it would be revocable at will; and that therefore it must be a lease. On this dialectic, defendants base their right to terminate the contract as if it were a year to year lease. We thought our opinion had made clear that this was not a sound argument, but we will undertake to restate our conclusions.
Of course, the station and tracks rest on land and the trains run on tracks laid on land. In that respect the document is a contract involving the use of land. But it is far more than that. It gives defendants the use of extensive terminal facilities and provides a multitude of services for them, including management and supervision of the terminal, a station master, baggage master, assistants and employees, car cleaners, repairmen, and many others; in short, all the services and all the property, real, personal and mixed, involved in the conduct of a great railroad terminal. No specific space was assigned to defendants. All their train movements and practically the entire usage of the premises were subject to the immediate direction of plaintiff. A passenger who contracts for transportation sits on a chair in a train which runs on tracks laid on real estate. We have yet to hear of the classification of such an agreement as one permitting the use of land. If it were so, the law defining the duties of passenger and carrier might well be subsumed under titles relating to real estate, such as landlord and tenant, future interests, and so on. We would have to rewrite the law books.
The contract in question has some of the characteristics of a lease, some of the characteristics of a contract for personal services and some of the characteristics of a contract for the use of personal property. Defendants’ view is that if any real estate is involved, it must be a lease. A sort of antimiscegenation law is here invoked — the color of a part determines the whole. We do not agree with this view nor do we feel the urge for classification. We have called it by what it is — a contract for the use of terminal facilities.
But assuming the contract in question was a lease, we held we would not apply the rule requiring an absolutely certain termination date, and pointed out that a lease for 999 years or longer is lawful. Defendants in their petition for rehearing say that in a 999 year lease the lessee knows the extent of his rights and obligations. In other words, they contend that a 999 year lease is more certain than one for the period provided for in the instant case. It is characteristic of the advocacy of a technical point that it falls into abstractions which divorce the law from reality. We know, with as much certainty as it is given man to know, that no arrangement for the nse of a passenger station will last 999 years. It is bound to end on a date far short of that, indeed, at a time utterly unknown. Even the calendar may be changed during a millennium. Yet in defendants’ view the mere naming of a date which sounds absolutely certain, but has no certainty, is enough to make one contract valid and another lacking it (but offering a more certain date) invalid.
Defendants urge upon the court that we have ignored the principle of stare decisis because we have not followed Stanmeyer v. Davis, 321 Ill. App. 227 . We pointed out in our opinion that there is a vast difference between the facts in that case and those in the instant case, and we believe we have adequately distinguished that case. But even if it were otherwise, we are not convinced by defendants’ ardent adherence to the decision in the Stanmeyer case that for a division of this court to depart from a principle set forth in a single prior case is equivalent, let us say, to Erie R. Co. v. Tompkins, 304 U. S. 64 (1938). Reference to any volume of the United States Supreme, Illinois Supreme or Appellate court reports of the past decade reassures us that our decision was not the catastrophic legal event which the petition for rehearing would have it appear. It is said that legal principles continue to live long after they have had their brains bashed out. But when neither reason nor practice requires it, there is no point in preserving an outmoded principle. Defendants say “The law can only be known if fixed and established rules are adhered to consistently. . . .” Stanmeyer v. Davis was decided more than fifty years after the contract in question was made. Neither the parties nor their lawyers knew of any such rule. If they had, they certainly would not have entered into the agreement on a year to year basis. That is the kind of rule which is a snare and not a guide.
We will consider one more point made by defendants in the petition for rehearing. Defendants say that our opinion ignores the statement in 51 C. J. S., p. 512, that “The possession of the tenant need not in all cases be complete or exclusive.” In our opinion we quoted C. J. S. to the effect that one of the requisites of a lease was that possession and control must pass to the tenant. Immediately following that statement we said that this was qualified to some extent in that there may be a reservation of a right to possession by the landlord for purposes not inconsistent with the privileges granted to the tenant. This we considered to be a fair statement of the law. A reexamination of the authorities confirms our conclusion.
Defendants also say in their petition that we have not given consideration to the fact that they were to have the exclusive use of a convenient office room in or adjacent to the station. Surely, defendants do not expect any court to compress the breadth and scope of this contract into one office room. That would be a Procrustean operation of major proportions. By fair analogy, it would mean that a contract for the employment of a farmhand would be a lease if he were given the exclusive use of an outhouse.
We acknowledge an error in our opinion which defendants have pointed out. We said that “it is argued” that defendants if in default could have been ousted by a forcible detainer suit and therefore the relationship was one of landlord and tenant. We should have said that the trial court stated this was one of the grounds on which he reached his decision.
A petition for rehearing can serve only one constructive purpose, that is, to call the court’s attention to matters overlooked which might induce the court to change its decision. This court gives careful consideration to all such petitions and there is no need in order to engage the court’s attention to indulge in such extravagances as the headlines “The Supreme Court Overruled,” or “Does The Opinion Establish a Freehold Interest in Defendants?” They are not appropriate to a serious legal document. Petitions for rehearing are sometimes used to serve a secondary purpose — to enable counsel to assuage the digestive pains which follow defeat in a hard fought case where stakes are high. This court is comprised of men who have practiced law and experienced such pains. "We are not unsympathetic to the use of the petition for its secondary purpose, even though it is not in accord with the rules. However, we have observed that the indignation is often in inverse ratio to the worthiness of the cause.
In the instant case a contract was made in good faith and pursuant thereto millions of dollars were expended upon the understanding clearly expressed that the arrangement should last as long as the premises were used as a general passenger station. Defendants unabashedly proclaim that they now seek to terminate it because they can save a large amount of money by so doing. They say that refusal by this court to call “this lease” a lease “is arbitrarily to deprive defendants of one of the legal rights to which they are entitled under the law of Illinois.” Of course, defendants having found the contract burdensome have a right to seek any means of escape within the law and to discover by all the diligence and ability they have whatever technical defense they can and this right they have zealously exercised. But the feeling of inequity and injustice which pervades defendants’ petition for rehearing is difficult to reconcile with the realities of their position. There can be no equity in the position of a party who seeks to evade performance of his clearly expressed obligations even though some technicality might permit him to escape therefrom as, for instance, in the days when lack of a seal might be pleaded. The law which holds parties in good faith to their bargain has come down to us from primitive times. Justice has been defined by some legal historians as the “enforcement of covenants.” It has never been considered relevant for one of the parties to plead that he has become distressed by reason of the cost of performance. Other remedies have been provided for such situations. David Hume, whose legal philosophy had great influence in the shaping of the principles embodied in our constitutions, federal and state, laid down three fundamental laws, “that of the stability of possession,” “of its transference by consent,” and “of the performance of promises.” He considered that the peace and security of human society depended upon them and that there was no “possibility of establishing a good correspondence among men, where these are neglected.” (Hume’s A Treatise of Human Nature, p. 526.) Of course, these are only philosophic generalizations and have no effect unless implemented by law. But it is well for those who with rule and line undertake the measure of a court’s decision to bear them in mind.
We do not know how many contracts of a similar nature would be imperiled if the court were to hold that such contracts are year to year leases. Nor do we know the effect on the conduct of business generally of a great railroad’s successful accomplishment of its determination to abrogate a contract in violation of its unchallenged written obligation on a ground wholly unknown to the parties at the time of the making of the contract and discovered when it was to defendants’ interest to seek its abrogation. We have made these comments only to put in its true light the charge in the petition for rehearing that this court has arbitrarily deprived defendants of a right.
Rehearing denied.
McCORMICK, P. J. and ROBSON, J., concur.