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supply cities and towns, and numerous other corporations endowed with similar franchises, or with such others as more or less exclude competition by the very nature of the privileges bestowed.'

IV. PUBLIC DUTIES OF PARTICULAR CORPORATIONS.-It is evident from what has been said that a large number of corporations are brought into no such relations to the public as require the discharge of certain public duties, because these obligations do not usually result from acceptance of the mere franchise to be a corporation and to exercise the ordinary powers or franchises which accompany it. Unless, therefore, the business in which the corporation is engaged is such that the public interest requires its regulation, these companies are free to conduct their affairs in practically the same way as individuals, partnerships, or quasi corporations may do. The same principles do not apply, however, to those corporations which have accepted the unusual and valuable franchises already referred to in detail, and they may, like individuals under similar circumstances, select a business which from its nature subjects them to a further responsibility to the public.

1. Railroad Companies.-(a) Duty to Build and Operate Railroads. -In England, there was at first a disposition on the part of the courts, in construing the public duty of a railroad company as created by the statute under which it was formed, to hold that the company was bound to complete and operate its road. It is now settled, however, at least so far as the statutes under which the question has arisen are concerned, that by such acts no duty is cast upon the company to make the line-the words of the act being enabling, not obligatory, and there being nothing in the subject-matter or context requiring that they should be construed as compulsory. The fact that the company had completed a part of the line does not affect the case, and a mandamus commanding the completion of the road will not issue. There is some author

tion of public services." Cofer, J., in Gordon, etc., ข. Winchester Building Assoc., 12 Bush (Ky.), 11O.

V.

1. Spring Valley Water-works Schottler, 110 U. S. 347; State v. Columbus Gaslight, etc., Co., 34 Ohio St. 572; New Orleans Gas Co. v. Louisville Light Co., 115 U. S. 650; People v. Manhattan Gaslight Co., 45 Barb. (N. Y.) 136; Zimmer v. State, 30 Ark. 680; St. Louis v. St. Louis Gaslight Co., 70 Mo. 69: Atlantic City Water-works Co. v. Atlantic City, 39 N. J. Eq. 367; Hazen 7. Union Bank, 1 Sneed (Tenn.), 115; Osborne v. Knife Falls Boom Co., 32 Minn. 412; s. c., 14 Am. & Eng. Corp. Cas. 203; Cohn v. Wausau Boom Co., 47 Wis. 314; Duluth Lumber Co. v. St. Louis Boom & Improvement Co., 17 Fed. Rep. 419.

2. Mandamus to complete a railroad cannot be supported upon the ground that

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the railroad company, having exercised some of their powers and made part of their line, are bound to make the whole railway authorized by their statutes. York, etc., R. Co. v. Queen (Excheq. Chamber), I El. & Bl. (72 Eng. Com. Law Rep.) 858, reversing Queen v. York, etc., R. Co. (Queen's Bench), 1 El. & Bl. (72 Eng Com. Law Rep.) 178. Jervis, C.J., said: "It is unnecessary here to determine the abstract proposition that a work which, before it is begun, is permissive, is, after it is begun, obligatory. We desire not to be understood as assenting to the proposition of my brother Erle that 'Many cases may occur where the exercise of some of the compulsory powers may create a duty to be enforced by mandamus.' And, on the other hand, we do not say that such may not be the law.

If

a company empowered by act of Parliament to build a bridge over the Thames

were to build one arch only, it would be well deserving of consideration whether they ought to be indicted for a nuisance in obstructing the river, or for the nonperformance of a duty for not completing the bridge. It is sufficient to say that in this case there are no circumstances to raise such a duty, if such a duty can be created by the act of the party. The plaintiffs in error have made the principal portion of their line, and they have abandoned the residue from no corrupt motives, but because Beverley has already sufficient railway communication, and because the residue of their line passes through a country thinly populated, and, if made, would not be remunerative.'

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The court refuse to sanction the argument that for three years the land-owners were deprived of their full right of ownership, and, if not to be compensated by the construction of the railway, they would in many cases sustain a loss, because, whilst the compulsory powers of purchase subsist, they are prevented from alienating their lands or houses, and from applying them to any purposes inconsistent with the claim which may be made to them by the railway company. As to this, Jervis, C.J., said: In truth, they are not prevented from so doing at any time before the notice to take their lands is given, if they act bona fide in the mean time, the notice to take their lands being the inception of the contract between the landowners and the company. But, if this complaint were better founded, it does not follow, merely because certain landowners are subjected to a temporary inconvenience for the advancement of the public good, that therefore the company are bound to make the whole railway. If it were a contract between the land-owners and the company, it would not be just that one should be bound and the other free: but to assert that there is a contract between the land-owners and the company is to beg the whole question; for upon this part of the case the question is whether there is such a contract. As a matter of fact, we know that in many cases no such actual contract exists. Some few proprie tors may desire and promote the railway, but many others oppose it, either from a disinclination to the project or with a view to make better terms. With the dissentients there is no contract unless it be found in the statutes; and to the statutes therefore we must refer," etc.

"The words upon the subject are permissive only. . . . The company say, in the language of the statutes, that they shall make full compensation for the land taken, and no more; the prosecutors say

that the consideration to be paid for the land is the full compensation mentioned in the act, and also the further consideration of an entire line of railway from York to Beverley. But, if this is the price which the prosecutors are to have, each land-owner is entitled to the same value: and yet, by this mandamus, the other proprietors on the line from Market Weighton to Cherry Burton, who perhaps are hostile to the application, are constrained to sell their land for an inadequate consideration, viz., a full compensation, and a part only of the line of the railway, to which, by the hypothesis, they were entitled by the original bargain.’ That such is not the true meaning is shown, not only by its injustice to the Market Weighton-Cherry Burton land-owners, just alluded to, but by the fact that another section of the statute contemplated total abandonment of the line, or the part performance of it, and provides for return of the land to the original proprietors in certain cases.

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Chief Justice Jervis further said: "The cases upon this subject are very few and the absence of authority is very striking when we remember how many acts have passed in pari materia, not only for railways but also for bridges and turnpike roads. Notwithstanding the numerous occasions in which such proceedings might have been taken, and the manifest interest of land-owners to enforce their rights, no instance can be found of any indictment for disobeying such a statute, or of a mandamus for the purpose of enforcing it. If correctly reported, Lord Mansfield determined this point in Rex v. Proprietors of the Birmingham Canal, 2 W. Bl. 708; for he says: The act imparts only an authority to the proprietors, not a command; they may desert or suspend the whole work, and, a fortiori, any part of it.' On the other side, the language of Lord Eldon, in Blakemore v. Glamorganshire Canal Navigation, 1 Myl, & K. 162, is referred to as an authority for this mandamus. In our opinion it does not bear that construction, although it appears that the court of Queen's Bench took a different view of that authority in Regina v. Eastern Counties Railway Company, 10 A. & E. (E. C. L. R. vol. 37), 531, and was inclined to act upon it and award a mandamus. The writ was subsequently withheld in that case upon another ground; but Lord Denman seems to have been of opinion that upon a fitting occasion a mandamus ought to go. This, and the recent cases in the Queen's Bench now under discussion, are the only ones which bear upon the subject. We feel that Lord

ity for the view that a return by the company to the writ of mandamus of absolute want of funds or of means to obtain them would be sufficient. The doctrine of these authorities has been approved in the United States.2 There is little doubt, however, that where

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 judgment ought to be for plaintiffs in error."

York & North Midland R. Co. v. Queen was decided in 1853 by the Exchequer Chamber. In 1852, the question was before the House of Lords in a case from the court of session in Scotland, viz., Anstruther v. East of Fife R. Co., 19 Law Times, 130. In that case, a railway company, soliciting their bill in Parliament, wrote to A, a landed proprietor, but not a shareholder, that in return for his support they would refer all his claims to a certain arbiter. A agreed, and with his support the bill passed, but no step was ever taken to make the replevy. At last the railway resolved to go to Parliament to dissolve their company and have the deposits returned. A then prayed an injunction to restrain the directors from either going to Parliament or paying back the deposits until their agreement with him should be performed and the statute complied with. Held, affirming the Scots court, the circumstances did not amount to a special contract sufficient to sustain such injunction. And, semble, a mere landowner, as such, cannot compel a railway company to make their railway where no step has ever been taken towards its execution; though the Lord Chancellor, speaking to the Lords, said, However, upon that I give no opinion."

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1. It is to be observed that in Queen v. York, etc., R. Co., 1 El. & Bl. (72 Eng. C L. R.) 178, the Queen's Bench, although they held that mandamus would go to command building of railroad, in which, however, they were reversed, as has been stated, were themselves of opinion that absolute want of funds, or of means to obtain them, might be retnrned to the writ. But that it was not a good return that the funds which can in reasonable probability come to the possession of or be disposable by the company will fall short by £100,000 of the sum required to build. Semble, however, that if there appeared an entire failure of funds from unforeseen casualties, and without imprudence or bad faith in the company, the

court, in its discretion, would refuse a mandamus.

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2. York, etc., R. Co v. Queen, I El. & Bl. (72 Eng. C. L. R.) 858, was cited approvingly in State of Minn. 7. Southern Minn. R. Co., 18 Minn. 40, 48, where it was held that a perfect and legal obligation to build the line in question was not imposed by certain acts of Congress, and of the legislatures of the terri tory and State of Minnesota, viz., act of Congress granting lands" for the purpose of aiding in the construction" of the road, such lands to be subject to the disposal of the legislature for that purpose, etc. the original charter, the said corporation is authorized and empowered, and it is hereby declared that the objects and purposes thereof are, to survey, locate, construct . . a railroad, with the privilege of a branch starting from Hokah, and running up the west bank of the Mississippi river by way of," etc., such branch being the line for which mandamus was sought. Section 10 of the original charter (p. 44), requiring completion within ten years, did not apply to this branch, and hence was to be disregarded in this case. By another Minnesota act (p. 49), to execute the trust created by the congressional land grant act, it is enacted that the R. railroad are hereby authorized and empowered to survey, locate, construct a railroad," etc. The court say: "Certainly there is nothing in any of these passages of the statutes which in terms imposes the complete and perfect legal obligation spoken of upon the defendant. The language is permissive and enabling, not imperative and obligatory. York, etc., R. Co. v. Queen, I El. & Bl. (72 E. C. L.) 858; 1 Redfield on Railways, SS 152, 155. It remains, then, to consider whether the complete and perfect legal obligation is imposed,' under any of the statutory provisions which we have quoted, by fair and reasonable construction and implication.' . . These lands are to be exclusively applied to the construction of the road for and on account of which they are granted, and are subject to the future disposal of the legislature of the Territory, or future State, for the purposes in the act expressed, and no other. If this was all, it might perhaps furnish some ground for contending that the acceptance of the benefits conferred by the

a railroad company has received municipal aid or some other franchise granted upon consideration of the performance of a public duty, a duty results which is commensurate with the privileges.1 Where such aid has been given and a diversion from the proposed line is attempted, the company may be enjoined.2

(b) Duty as Common Carriers.-The public duties of railroad companies and other common carriers requiring them to carry for all to the extent of their capacity, without undue or unreasonable discrimination in charges or facilities, is a well-settled common-law

3d section of the act of 1857, and by the act of 1864, under and in accordance with the act of Congress, by strong implication imposed upon the beneficiary a binding legal obligation to construct the whole of the line in aid of which the grant is made, Any such implication is, however, cut off by the subsequent provisions of the section prescribing the manner in which the land shall be disposed of by the Territory, or future State. An examination of these provisions will show that, with the exception perhaps of one hundred and twenty sections (of the lands granted) which were to be sold in advance of construction, the lands granted were to be sold for each of said roads or branches in quantities not exceeding 120 sections for each 20 continuous miles of road completed, and so from time to time until said roads or branches are completed; and if any of said roads or branches are not completed within ten years no further sale shall be made, and the lands unsold shall revert to the United States."

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1. Morawetz Corp. (2d Ed.) § 1128. Where the charter of a log-driving company provides that the " company may drive all logs and other timber" in a certain stream, the word "may is to be construed as permissive and not imperative. But when the company accepts the privilege thus conferred of driving "all the logs," etc., it assumes a duty commensurate with the privilege conferred. By this acceptance it has the exclusive right to drive all the logs, and the duty to drive results. Weymouth v. Penobscot Logdriving Co., 71 Me. 29, a case of action for damages in failing to drive logs, whereby they shrunk in quantity and quality.

The Hartford & New Haven R. Co. was chartered to construct and operate a railroad from Hartford to the navigable waters of New Haven harbor. A steamboat company was afterwards chartered to run in connection with it to New York, and the railroad and line of steamboats 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 the original track at a point a mile and a half from its terminus at tide-water, and running to the station of the New York & New Haven Railroad Co. in the city of New Haven, and discontinued the running of passenger trains to the 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 railroad company to run passenger trains to the original terminus. State v. Hartford & New Haven R. Co., 29 Conn. 538.

2. A feeble railroad company, of doubtful ability to construct any road between the terminal points of its charter, will be restrained, at the suit of a municipality which has subscribed for stock and issued bonds in aid of its proposed main line, from wasting its means in constructing branch roads so as to disable it to build such main line; and where a pretended branch is such that its completion will be a complete user of the company's original franchise, and will give it a continuous road between the termini originally named, but not passing through or near the plaintiff municipality as did the main line proposed, and there is no apparent design to continue the road on such main line, the construction of the pretended branch will be restrained as a "diversion" of the road from such municipality, within the meaning of Wisconsin act 1872, ch. 119, $ 23. Platteville v. Galena, etc., R. Co.,

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obligation, and has been further declared by various statutes.1

1. It is the rule of the common law that Every common carrier must carry for all, to the extent of his capacity, without undue or unreasonable discrimination in charges or facilities." Atchison, etc.. R. Co. v. Denver, etc., R. Co., 110 U. S. 667, 674, in which case, however, it was decided that the service is to be equal only in the like circumstances; so that a connecting railroad company having no business connection or arrangement with the company complained of could not claim the same privileges accorded to another connecting railroad company having a business engagement. See FREIGHT, 8 Am. & Eng. Encyc. of Law. See also Scofield v. Lake Shore, etc., R. Co. (Ohio), 23 Am. & Eng. R. R. Cas. 612, McGowan v. Wilmington, etc., R. Co. (N. Car.), 27 Am. & Eng. R. R. Cas. 64; People v. New York Central, etc., R. Co. (N. Y. Gen. Term, 1882), 9 Am. & Eng. R. R. Cas. 1; New England Exp. Co. v. Maine, etc., R. Co., 57 Me. 188; Railroad Commrs. v. Portland, etc., R. Co., 63 Me. 269; State v. Railroad Co., 29 Conn. 558; Commrs. '. Eastern R. Co., 103 Mass. 258; Sandford v. Railroad Co., 24 Pa. St. 379; Messenger v. Pennsylvania R. Co., 36 N. J. Law, 457; Chicago, etc., R. Co. v. Parks, 18 Ill. 460; Chicago, etc.. R. Co. v. People. 67 Ill. I; Talcott v. Township of Pine Grove, I Flip. (U. S.) 120; Peik v. Chicago, etc. R. Co., 94 U. S. 164; Chicago, etc., R. Co. v. Ackley, 94 U. S. 179; Winona, etc., R. Co. v. Blake, 94 U. S. 180. Compare, Johnson v. Pensacola, etc., R. Co.. 16 Fla. 623; s. c., 26 Am. Rep. 731; Baxendale v. E. C. R. Co., 4 C. B. (N. S.) 63: Branley 7. S. E. R. Co., 12 C. B. (N. S.) 63. 75; Fitchburg R. Co. v. Gage, 12 Gray (Mass.). 393; Eclipse Towboat Co. v. Pontchartrain R. Co., 24 La. Ann. I.

The United States Interstate Commerce Act provides that every common carrier shall, according to its respective powers, afford all reasonable, proper, and equal facilities for the interchange of traffic between their respective lines, and for the receiving, forwarding, and delivery of property and passengers to and from their several lines, and those connecting therewith, and shall not discriminate in their rates and charges between such connecting lines; but this is not to be construed as requiring any common carrier to give the use of its tracks or terminal facilities to another carrier engaged in like business. Act 1887, Feb. 4 (St. at L., 1885-87, p. 379).

The privilege of making a railroad and taking transportation money thereon, when granted to an individual or a company, is a franchise. The public have an interest in the use of the road, and the owners of the franchise are liable to respond in damages if they refuse to transport an individual or his property upon such road, without any reasonable excuse, upon being paid the usual rate of fare. Beekman v. Saratoga, etc., R. Co., 3 Paige (N. Y.), 45.

The proprietors of a stage-coach, who hold themselves out as common carriers of passengers, are bound to receive all who require a passage, so long as they have room and there is no legal excuse for a refusal. And it is not a lawful excuse that they run their coach in connection with another coach which extends the line to a certain place, and have agreed with the proprietor of such other coach not to receive passengers who came from that place on certain days unless they come in his coach. Bennett v. Dutton, 10 N. H. 481, where it was said, however, that the proprietors could legally give preference, if there were not room for all, to those who came by said connecting coach; and that if the latter passengers were the mail-carriers, the proprietors were bound to prefer them, independently of agreement.

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In McDuffee z. Portland, etc., R. Co., 52 N. H. 454, the court observed: Out of abundant caution, and for the information of those specially concerned, and to guard against any possible construction by implication repealing the common law, they [the English Parliament] affirmed some of its simplest rules. Sandford v. Railroad Co., 24 Pa. St. 378. In charters of common carriers, what is called the equality clause was inserted, requiring the carriers to furnish transportation on equal terms. The fashion of legislation once set was studiously followed with a degree of reverence for precedent that does not prevail in this country. And the practice of the English courts, on charters and general acts of this kind, has been so long continued, that the fact seems now to be overlooked that the general principle of equality is the principle of the common law. With so much leglslation on the subject as there has been in that country, and so much litigation upon acts of Parliament, it was not strange that the bar and bench should finally lose sight of the common-law origin of the principle so many times enacted in different forms, and carried out

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