it, seems to have obtained since the case of Rex v. Baker,2 and the only proper inquiry now is whether the plaintiff has any such valuable and permanent interest in the office or place as to justify the granting of the writ.3

*3. It was held, in an early case in Massachusetts, that this remedy could not be rendered available in cases where the office only extended to one year, and the question arising upon the return of the writ was one of fact, the traverse to which could not, according to the course of practice in that court, be determined before the term of the office would expire. "The cases, therefore," say the court, "in which the writ of mandamus may be an adequate remedy, in admitting or restoring to office, seem to be where the office is holden for a longer term than a year, or where the return to the writ will involve merely a question of law, so that, admitting the facts to be true, a peremptory mandamus ought to go."

4. It was accordingly held, in a very late English case,5 that, as mandamus to reinstate a person in office only lies where the office and its tenure are of a permanent nature, it is not an available remedy for the secretary of a benefit society, who had been dismissed by a resolution of a meeting of the society. The court here seem to consider that the office must be of such a character that the incumbent has such a vested and permanent interest in the same as that the court could render the operation of the writ of mandamus effective towards restitution, and where its operation is not liable to be countervailed by any counter agency.

that case on another ground, but Lord Denman seems to have been of opinion that on a fit occasion a mandamus ought to go. That, and the recent cases in the Queen's Bench, now under discussion, are the only cases which bear upon the subject. We feel that Lord Denman and Lord Campbell are high authorities upon this or any other matter, and are both equally entitled to the respect of this court; but we are bound to pronounce our own judgment, and, after the most careful consideration, are of opinion that the judgment ought to be for the plaintiffs in error. The result is, that the judgement of the Court below must be reversed."

23 Burrows, 1267.

3 Angell & Ames, §§ 704, 705.

4 Howard v. Gage, 6 Mass. 462, 464.

5 Evans v. The Heart of Oak Benefit Society, 12 Jur. N. S. 163.

* 272

SECTION IV.

Mandamus to compel Company to complete their Road.

1. English courts have required this upon a

now, unless under peculiar circum

stances.

general grant. 2. But these cases overruled. Not required | 3. Recent case in New York court of appeals.

§ 154. 1. The English courts at one time, it would seem, regarded a parliamentary grant to a railway company as equivalent to an agreement on their part to build the road. To make this intelligible to the American reader it is necessary to keep in mind the English parliamentary rules, in regard to passing acts of incorporation of such companies. The promoters are required to prepare plans and sections, and maps of their roads, with the line delineated thereon, so as to show its general course and direction, and to deposit copies of the same with the clerks of the peace, in the office of the Board of Trade, the Private Bill Office, in certain cases at the Board of Admiralty, and with the parish clerk of each parish through which the proposed line passes, before parliament assembles, and the plans are usually referred to in the charter as defining the course of such railway, and thus become binding upon the company, although not so regarded unless so referred to.1 Specific notice too is to be served upon each land proprietor whose land is to be taken. There is therefore some plausibility in regarding the obtaining of a charter under these circumstances as a binding obligation on the part of the company that they will build the road. No act of incorporation of a railway is passed in the British parliament until three-fourths of the estimated outlay is subscribed. Accordingly, in some of the earlier cases upon this subject, after considerable discussion and examination, it is laid down,2 that when a railway company have obtained an act of par

1 Hodges on Railways, 18, and notes; North British Railw. Company v. Tod, 5 Bell Ap. Cas. 184; s. c. 4 Railw. Cas. 449; Reg. v. The Caledonian Railw. Co., 3 Eng. L. & Eq. 285.

2 The Queen v. The York & North Midland Railw. Co., 16 Q. B. 19; s. c. 16 Eng. L. & Eq. 299. This case was decided by a divided court, Erle, J., dissenting, whose opinion ultimately prevailed in the Exchequer Chamber. Lord Campbell, Ch. J., and the majority of the court, founded their opinion chiefly upon the celebrated judgment of Lord Eldon, in Blakemore v. The Glamorganshire Canal Navigation, 1 Mylne & Keen, 154. See also Reg. v. Ambergate, &c. Railw. Co., 23 Law Times, 246; s. c. 17 Q. B. 362, 957; Reg. v. Eastern Counties

639 liament, reciting that the proposed railway will be beneficial to the public, and that the company are willing to execute it, and giving them compulsory powers upon landholders for that purpose, and in pursuance of such powers the company have taken land, and made part of their line, they are bound by law to complete such line, not only to the extent which they have taken lands, but to the furthest point. And this is so held in some cases, although the statute enacts only that it shall be lawful for them to make the railway.

4

*2. So also in another case, where the undertaking was not yet entered upon, it was held that the company under such circumstances were bound to execute the work, from the time when such act receives the royal assent. And in another case, where by the return to the writ it appeared that the company had no sufficient funds to build the road, and that the period for exercising their compulsory powers in obtaining lands had expired, and that the building of the road had thus become impossible, it was held that a mandamus must nevertheless be awarded. Writs of peremptory mandamus issued in each of the foregoing cases. But the first and last of these three cases came before the Exchequer Chamber, and were heard at great length before all the judges, and an elaborate opinion delivered by Jervis, Ch. J., of the Common Bench, reversing the judgment of the Queen's Bench, chiefly on the ground that there was no implied obligation upon the company, either before or after entering upon the work, to complete it.5

Railw., 1 Railw. C. 509. But the writ was held defective in this case, in not alleging that the company had abandoned or unreasonably delayed the work. Reg. v. Same, 2 Railw. C. 260; s. c. 10 Ad. & El. 531; 2 Q. B. 347, 569.

3

Reg. v. The Lancashire and Yorkshire Railw. Co., 7 Railw. Cas. 266; s. c. 16 Eng. L. & Eq. 327.

4 Reg. v. Great Western Railw. Co., 16 Eng. Law & Eq. 341. The extreme to which this very questionable doctrine was pushed in this case, seems to have proved, as is not uncommon in such cases, the point of departure, for its entire overthrow and abandonment.

5 York & North Midland Railw. Co. v. Reg., 1 El. & Bl. 858; s. c. 18 Eng. L. & Eq. 199; Great Western Railw. Co. v. Same, 1 El. & Bl. 874. These decisions, rendered (in April, 1853), one of which is given at length in the last section, seem to have been acquiesced in, and they certainly conform to what has ever been regarded as the law upon that subject in this country. And the same principle was maintained in Scottish Northeastern Railw. v. Stewart, 3 McQueen's H. L. Cases, 382; s. c. 5 Jur. N. S. 607. But see Lind v. Isle of Wight Ferry Co., 7 Law Times, N. S. 416; Mason v. Stokes Bay Pier & Railw. Co., 11 W.

3. This question arose and was examined in the courts of New York, somewhat, in a late case, where it was held that a railway corporation, which has completed its road between the termini named in the charter, forfeits its franchise by abandoning or ceasing to operate a part of the route. The remedy, however, in such cases, is not by injunction at the suit of the public, but by mandamus or indictment at the election of the state, or by proceeding to annul the charter of the corporation.

It is here said, that it seems that the corporation owes a duty to the public to exercise the franchise granted to it, and that it cannot abandon a portion of its road and incur a forfeiture at its mere pleasure.

SECTION V.

In what Cases this is the proper Remedy.

1. Where the act is imperative upon the company to build road.

2. Mandamus more proper remedy than injunction.

3. Commissioners of public works not liable to this writ.

6. Cannot be substituted for certiorari, when that is taken away.

7. Requiring costs to be allowed.

8. Other instances of its application.

9. Lies where the duty is clear, and no other

remedy.

§ 155. 1. But although it must be regarded as now definitively settled that the writ will not lie, in any case, coming within the categories laid down in the foregoing opinion of Jervis, Ch. J., yet where the act of the legislature is imperative upon the company to build their road, this duty will still be enforced by mandamus.1

R. 80. It is here held, that where a notice from a railway company to take lands for the purposes of their undertaking has been followed by an award fixing the amount of purchase and compensation-money, the court has jurisdiction to compel the company to complete the purchase. S. P. Metropolitan Railw. v. Woodhouse, 11 Jur. N. S. 296; s. c. 34 L. J., Ch. 297. But see Quicke ex parte, 13 W. R. 924; s. c. 12 L. T. N. S. 113.

The People v. The Albany & Vermont Railw., 24 N. Y. 261; s. c. 37 Barb. 216.

1 Hodges on Railways, 665, in note; Great Western Railw. Company v. Reg. Excheq. Ch. 1853. 1 El. & Bl. 874; s. c. 18 English Law & Eq. 211. The land-owners are so far interested in the building of a railway as to be entitled

* 2. But it has been held that such public duty cannot be enforced by injunction, at the suit of the attorney-general.2 Corporations have for a very long time been compelled, by writ of mandamus, to perform duties imposed by statute.3 A turnpike company was compelled to fence its road where it passed through the land of private persons, and it was held no excuse that the company had made satisfaction for the damages awarded to the land-owner, or that, having completed their road, they had no funds with which to build the fences.4

3. But it has been held, that Commissioners of Woods and Forto bring the petition, and different owners of land may join. Reg. v. York and North Midland Railw. 16 Eng. L. & Eq. 299. But it has been held, that a landowner could not apply for an injunction to restrain a railway company from applying for an act of the legislature repealing a former act, and to restrain them from paying back deposits. Hodges on Railways, 657, note; Anstruther v. East Fife Railw., 1 McQueen, Ho. Lds. 98. Nor can a land-owner maintain a suit in equity against a company for not completing their line, in pursuance of their act of incorporation. Heathcote v. North Staffordshire Railw. Company, 6 Railw. C. 358. The Lord Chancellor here held, reversing the opinion of the Vice-Chancellor, that in such case, a court of equity will leave the party to his legal rights. Reg. v. Dundalk & Enniskillen Railw., 5 L. T. N. S. 25; Lind v. Isle of Wight Ferry Co., 7 L. T. N. S. 416; State v. Hartford and New Haven Railw., 29 Conn. 538. And mandamus is the proper remedy by which to compel a canal company to bridge over a private way which it intersects. Habersham v. Savannah, &c. Canal Co., 26 Georgia, 665.

2

Attorney-General v. Birmingham & Oxford Junction Railw., and two other Companies, 3 Mac. & G. 453; s. c. 7 Eng. L. & Eq. 283.

3 The Hartford & New Haven Railway Company was chartered to construct and operate a railroad from Hartford to the navigable waters of the harbor of New Haven. A steamboat company was afterwards chartered to run in connection with it to New York; and the railway and steamboat line constituted a route that was of great convenience to the public. After the construction of the road and the use of it in connection with the steamboat line for several years, the railroad company constructed a track diverging from its original track at a point a mile and a half from tide-water and running to the station of the New York & New Haven railway company, in the city of New Haven, and discontinued the running of its passenger trains to its original terminus at tide-water. This change incommoded travellers who wished to pass by the steamboat route, of whom there were many. Held, that a mandamus ought to be issued to compel the company to run passenger trains to its original terminus, and that the mandamus was properly applied for by the attorney for the state. State v. Hartford & New Haven Railw., 29 Conn. 538.

4

Reg. v. Trustees Luton Roads, 1 Q. B. 860. Lord Denman, Ch. J., said, "The law orders these parties to perform the duty if they build the road." Patteson, J., said, “If they had not adequate funds they ought not to have made the road."