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People of the State of N. Y. v. N. Y., Lake Erie & Western R. R. Co.

hattan Gaslight Co., 45 Barb. 136; City of St. Louis v. St. Louis Gaslight Co., 70 Mo. 69, 117.

It has been decided in many cases that a corporation which has assumed the performance of duties for the benefit of the public generally cannot neglect its duties without incurring a forfeiture of its charter. The People v. Pawtuxet Turnpike Co., 8 R. I. 182, 191; The People v. Fishkill Plank Road Co., 27 Barb. 452, 458; The People v. Hillsdale & Chatham Turnpike Railroad, 23 Wend. 254; The People v. Plymouth Plank Road Co., 32 Mich. 248; The People v. T & M. Plank Road Co., 9 Mich. 285; State v. Royalston Turnpike Co., 11 Ver. 431; Turnpike Co. v. State, 3 Wallace (U. S.) 211: State v. Milwaukee & L. S. Railway Co., 45 Wis. 500. Especially so in cases where the duties are imposed in expressed terms. Attorney General v. P. & R. R. R. Co., 6 Iredell L. (N. C.) 456; The People, ex rel. Bishop v. Kingston & Middletown Turnpike Road Co., 23 Wend. 208-210; The People ex rel. M'Kinch v. Bristol & Rensselaerville Turnpike Co., Ib. 222; C. R. Bridge Co. v. Warren Bridge Co. 7 Pickering, 344, 371. But the People need not necessarily proceed against the offending corporation for a forfeiture of its charter. They may compel it to perform its duties......The only available remedy for a breach of the duty charged on the corporation by the Railroad act are mandamus, quo warranto, or indictment. The People v. Albany and Vermont R. R. Co., 24 N. Y. 261, 267-269......

The writ of mandamus has been granted in order to compel a railroad company which was operating its road in sections, to operate the whole road as one continuous line. Union Pacific R. R. Co. v. Hall, 91 U. S. 343; 3 Dill. 479. The writ has been awarded to compel the running of passenger trains to the terminus of the road. State v. Hartford & New Haven R. R. Co., 29 Conn. 533; State v. N. H. & N. R. R., 37 Conn.

People of the State of N. Y. v. N. Y., Lake Erie & Western R. R. Co.

154. To compel a railway company to deliver to a particular warehouse or grain elevator, grain consigned thereto in bulk. Chicago, &c. R. R. Co. v. The People, 56 Ill. 365. To compel it to run daily trains. Re New Brunswick & Canada R. R., 1 P. & B. (New Brunswick) 667. To compel the replacement of a track taken up in violation of its charter. King v. Severn & Wye, R.R. Co., 2 Barn & Adol. 644. To compel it to so grade its track as to make the crossing practically convenient and useful. Chicago &c. R. R. Co. v. People, 56 Ill. 365; The People v. Dutchess & Columbia R. R. Co., 58 N. Y. 152; The People v. N. Ỷ. Central & Hudson River R. R. Co., 12 Hun, 195; 74 N. Y. 302. To compel it to construct its road across streams so as not to interfere with navigation. State v. Northern R. R. Co., 9 Rich. (S. C.) 247. To compel it to complete its road. Farmers' Loan and Trust Co. v. Henning, Receiver, etc., 17 American Law Reg. N. S. 266. To compel it to build a bridge. 7 Metc. 70; People v. Boston & Albany R. R. Co., 70 N. Y. 569; State v. Gorham, 37 Maine, 451. To compel it to restore an abandoned station. State v. N. H. & N. R. R. Co., 37 Conn. 154. To compel it to construct and maintain fences and cattle guards. The People v. Rochester & State Line R. R. Co., 14 Hun, 371; 76 N. Y. 294. The writ has also been awarded to compel a bridge company to repair and construct a bridge in conformity with the injunctions of its charter. State v. Wilmington Bridge Co., 3 Harrington, 312. To compel a water power company to build bridges over its canals, although this was not required by its charter. Re Trenton Water Power Co., 20 N. J. Law, 659. To compel a dock company to make a channel, as required by their charter. Reg v. Bristol Dock Co., 2 Queen's Bench, 64; and also to compel a gas company to furnish gas to one entitled to it under their charter. The People ex rel. Kennedy v. Man

People of the State of N. Y. v. N. Y., Lake Erie & Western R. R. Co.

hattan Gaslight Co., 45 Barb. 136;* County of St. Louis v. St. Louis Gaslight Co., 10 Mo. 69, 117. The established rule is that the writ of mandamus lies to compel a railroad company to perform the public duties imposed upon it by its charter. Railroad Commissioners v. P. & O. R. R. Co., 63 Maine, 269; People v. Albany & Vermont R. R. Co., 24 N. Y. 261, 267-9.

It does not impair the remedy by mandamus that a remedy by action for damages is given by statute to the person aggrieved. The remedy is not declared by statute to be exclusive. It is not inconsistent with the remedy by mandamus, and is therefore merely cumulative. The People v. N. Y. Central & Hudson River R. R. Co., 74 N. Y. 302, 307; Caudee v. Hayward, 37 N. Y. 653. Corporations and ministerial officers are exceptions to the rule that a mandamus will not lie when the party has a remedy by action. They may be compelled to exercise their functions according to law, although there is another remedy by action for neglect of duty. Buck v. City of Lockport, 6 Lans. 251; The People v. Steele, 2 Barb. 397; The People ex rel. Moulton v. The Mayor of New York, 10 Wend. 395; McCullough v. The Mayor of Brooklyn, 23 Wend. 458.

HAIGHT, J.-The petition upon which the peremptory writ of mandamus is sought in substance alleges that the respondent is a railroad corporation existing under the laws of the State, and is subject to all the duties and obligations imposed by law upon railroad corporations. That the corporation is a common carrier of freight and passengers. That since about the 16th day of June, 1882, it has substantially refused to discharge its duties as a common carrier, and has to a

* Also reported in 20 How. Pr. 87; 1 Abb. N. S. 404.

People of the State of N. Y. v. N. Y., Lake Erie & Western R. R. Co.

material degree suspended the exercise of its franchises, by refusing to take freight which has been offered at its station in the city of New York for transportation. That it has refused to accept and transport the greater part of the outgoing and to deliver the incoming freight, the property of the merchants doing business in such city. That it has neglected and refused to furnish sufficient and adequate transportation for the goods of such merchants, whereby great loss and damage has accrued to the people of the State, for which there is no adequate remedy in damages. That the trade and commerce of the city of New York is greatly injured by reason of the failure of such corporation to transport such goods and property. That the reasons for the refusal of such corporation to accept, transport, and deliver freight and property is that the persons heretofore in their employ handling freight refuse to perform their work unless an advance of three cents per hour over the wages that they have heretofore received shall be paid them by the respondent.

Some of the questions presented upon this application are new and of vast importance. The conflict that from time to time arises between capital and labor presents the most serious and difficult problem that the Government at the present day has to solve. It is the duty of the court to guard and protect to the uttermost every right of the poor man who is compelled to support himself and family by manual labor, and when an opportunity presents itself and in the proper case, this court will not be slow to act in his behalf. But in this proceeding it is powerless to aid him. The court has not the power to prescribe a scale of wages. It has not the power to say that he shall work for $1.70 per day or that his employer shall pay him $2 per day. Hitherto the amount of wages to be paid has been left to the parties to determine by contract ex

People of the State of N. Y. v. N. Y., Lake Erie & Western R. R. Co.

press or implied. If the power exists at all to change the law in this regard, such power rests in the legislative, and not in the judicial branch of the Government.

The questions presented upon the motion to quash, the proceedings are purely legal, and do not involve the merits.

The first question presented is, Will the writ of mandamus issue on the application of the attorney general to compel a common carrier to discharge his duty as such. A franchise is a grant of a right or privilege to an individual or individuals or a corporation by the Government or sovereign power. The right to maintain highways, ferries, and bridges to facilitate communication between different parts of the State rests in the Government or sovereign power. And these rights can be exercised by others only under grant or authority of the State.

The State has conferred upon the respondent the right to build, maintain and operate a railroad for public use in the conveyance of persons and property for hire. It has also given it the right of eminent domain. The right to construct a road from and to the place or places named in the charter, the maintaining and operating of it for the public use, pertains to the Government, and the Government is therefore interested in, and has the power through its attorney general to compel the exercise of the franchises so conferred upon the respondent by the writ of mandamus. It has accordingly been held that the writ of mandamus will issue to compel a railroad corporation to operate the whole road as one continuous line (Union Pacific R. R. v. Hall, 91 U. S., 343); to compel the running of passenger trains to the terminus of the road (State v. Hartford and New Haven R. R. Co., 29 Conn. 538); to compel a corporation to deliver grain at an elevator standing upon the line of the road

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