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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

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V.

tion of public services.” Cofer, J., in the railroad company, having exercised Gordon, etc., Winchester Building some of their powers and made part of Assoc., 12 Bush (Ky.), 110.

their line, are bound to make the whole 1. Spring Valley Water-works railway authorized by their statutes. Schottler, 110 U. S. 347; State v. Colum- York, etc., R. Co. v. Queen (Excheq. bus Gaslighi, etc., Co., 34 Ohio St. Chamber), 1 El. & Bl. (72 Eng. Com. 572; New Orleans Gas Co. v. Louisville Law Rep.) 858, reversing Queen v. York, Light Co., 115 U. S. 650: People v. Man- etc., R. Co. (Queen's Bench), i El. & Bl. hattan Gaslight Co., 45 Barb. (N. Y.) (72 Eng Com. Law Rep.) 178. Jervis, 136; Zimmer v. State, 30 Ark. 680; St. C. J., said : “ It is unnecessary here to Louis v. St. Louis Gaslight Co., 70 Mo. determine the abstract proposition that a 69: Atlantic City Water-works Co. v. work which, before it is begun, is permisAtlantic City, 39 N. J. Eq. 367; Hazen sive, is, after it is begun, obligatory. We 2. Union Bank, i Sneed (Tenn.), 115; desire not to be understood as assenting Osborne v. Knife Falls Boom Co., 32 to the proposition of my brother Erle that Minn. 412; s. C., 14 Am. & Eng. Corp. Many cases may occur where the exerCas. 203; Cohn v. Wausau Boom Co., cise of some of the compulsory powers 47 Wis. 314; Duluth Lumber Co. v. St. may create a duty to be enforced by manLouis Boom & Improvement Co., 17 damus.' And, on the other hand, we do Feui. Rep. 419.

not say that such may not be the law. If 2. Mandamus to complete a railroad a company empowered by act of Parliacannot be supported upon the ground that ment to build a bridge over the Thames

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were to build one arch only, it would be that the consideration to be paid for the well deserving of consideration whether land is the full compensation mentioned they ought to be indicted for a nuisance in the act, and also the further considerain obstructing the river, or for the non- tion of an entire line of railway from York performance of a duty for not completing to Beverley. But, if this is the price the bridge. It is sufficient to say that in which the prosecutors are to have, each this case there are no circumstances to land-owner is entitled to the same value: raise such a duty, if such a duty can be and yet, by this mandamus, the other created by the act of the party. The proprietors on the line from Market plaintiffs in error have made the principal Weighton to Cherry Burton, who perhaps portion of their line, and they have aban- are hostile to the application, are condoned the residue from no corrupt motives, strained to sell their land for an inadequate but because Beverley has already sufficient consideration, viz., a full compensation, railway communication, and because the and a part only of the line of the railway, residue of their line passes through a to which, by the hypothesis, they were country thinly populated, and, if made, entitled by the original bargain.' That would not be remunerative."*

such is not the true meaning is shown, not The court refuse to sanction the argu- only by its injustice to the Market Weighment that for three years the land-owners ton-Cherry Burton land-owners, just alwere deprived of their full right of owner- luded to, but by the fact that another secship, and, if not to be compensated by the tion of the statute contemplated total construction of the railway, they would in abandonnent of the line, or the part permany cases sustain a loss, because, whilst formance of it, and provides for return of the compulsory powers of purchase sub- the land to the original proprietors in cersist, they are prevented from alienating tain cases. their lands or houses, and from applying Chief Justice Jervis further said: “The them to any purposes inconsistent with cases upon this subject are very few and the claim which may be made to them by the absence of authority is very striking the railway company:

As to this, Jervis, when we remember how many acts have C.J., said: “In truth, they are not pre- passed in pari materia, not only for railvented from so doing at any time before ways but also for bridges and turnpike the notice to take their lands is given, if roads. Notwithstanding the numerous they act bona fide in the mean time, the occasions in which such proceedings might notice to take their lands being the incep. have been taken, and the manifest interest tion of the contract between the land- of land-owners to enforce their rights, no owners and the company. But, if this instance can be found of any indictment complaint were better founded, it does for disobeying such a statute, or of a not follow, merely because certain land- mandamus for the purpose of enforcing it. owners are subjected to a temporary in- If correctly reported, Lord Mansfield convenience for the advancement of the determined this point in Rex v. Propublic good, that therefore the company prietors of the Birmingham Canal, 2 W. are bound to make the whole railway. If Bl. 703; for he says: “The act imparts it were a contract between the land-owners only an authority to the proprietors, not and the company, it would not be just that a command; they may desert or suspend one should be bound and the other free: the whole work, and, a fortiori, any part but to assert that there is a contract be of it.' On the other side, the language of tween the land-owners and the company is Lord Eldon, in Blakemore v. Glamorto beg the whole question; for upon this ganshire Canal Navigation, 1 Myl. & K. part of the case the question is whether 162, is referred to as an authority for this there is such a contract. As a matter of mandamus. In our opinion does not fact, we know that in many cases no such

bear that construction, although it appears actual contract exists. Some few proprie. that the court of Queen's Bench took a tors may desire and promote the railway, different view of that authority in Regina but many others oppose it, either from a v. Eastern Counties Railway Company, disinclination to the project or with a 10 A. & E. (E. C. L. R. vol. 37), 531, view to make better terms. With the and was inclined to act upon it and award dissentients there is no contract unless it a mandamus. The writ was subsequently be found in the statutes; and to the statutes withheld in that case upon another ground; therefore we must refer," etc.

but Lord Denman seems to have been of “ 'The words upon the subject are per- opinion that upon a fitting occasion a missive only. ... The company say, mandamus ought to go. This, and the in the language of the statutes, that they recent cases in the Queen's Bench now shall make full compensation for the land under discussion, are the only ones which taken, and no more; the prosecutors say 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. There is little doubt, however, that where

By

Denman and Lord Campbell are high court, in its discretion, would refuse a authorities upon this or any other matter, mandamus. and are both equally entitled to the respect 2. York, etc., R. Co V. Queen, 1 of this court: but we are bound to pro- El. & Bl. (72 Eng. C. L. R.) 858, was nounce our own judgment, and, after the cited approvingly in State of Minn. ». most careful consideration, are of opinion Southern Minn. R. Co., 18 Minn. 40, 48. that judgment ought to be for plaintiffs in where it was held that a perfect and legal error."

obligation to build the line in question York & North Midland R. Co. v. was not imposed by certain acts of ConQueen was decided in 1853 by the Exchequer gress, and of the legislatures of the terri. Chamber. In 1852, the question was be- tory and State of Minnesota, viz., act of fore the House of Lords in a case from Congress granting lands“ for the purpose the court of session in Scotland, viz., of aiding in the construction" of the road, Anstruther v. East of Fife R. Co., 19 Law such lands to be subject to the disposal of Times, 130. In that case, a railway com- the legislature for that purpose, etc. pany, soliciting their bill in Parliament, the original charter, “the said corporation wrote to A, a landed proprietor, but not is authorized and empowered, and it is a shareholder, that in return for his sup- hereby declared that the objects and purport they would refer all his claims to a poses thereof are, to survey, locate, concertain arbiter. A agreed, and with his struct ... a railroad, with the support the bill passed, but no step was privilege of a branch starting from Hokah, ever taken to make the replevy. At last and running up the west bank of the Misthe railway resolved to go to Parlia- sissippi river by way of," etc., such branch ment to dissolve their company and have being the line for which mandamus was the deposits returned. A then prayed an sought. Section 10 of the original charter injunction to restrain the directors from (p. 44), requiring completion within ten either going to Parliament or paying back years, did not apply to this branch, and the deposits until their agreement with hence was to be disregarded in this case. him should be performed and the statute By another Minnesota act (p. 49), to execomplied with. Held, affirming the Scots cute the trust created by the congressional court, the circumstances did not amount land grant act, it is enacted that the R. to a special contract sufficient to sustain railroad are hereby authorized and emsuch injunction. And, semble, a mere land- powered to survey, locate, construct . owner, as such, cannot compel a railway a railroad,” etc. The court say: “Cercompany to make their railway where no tainly there is nothing in any of these step has ever been taken towards its exe- passages of the statutes which in terms cution; though the Lord Chancellor, speak- imposes the complete and perfect legal ing to the Lords, said, “However, upon obligation spoken of upon the defendant. that I give no opinion.”

The language is permissive and enabling, 1. It is to be observed that in Queen v. not imperative and obligatory. York, York, etc., R. Co., 1 El. & Bl. (72 Eng. etc., R. Co. v. Queen, I El. & Bl. CL. R.) 178, the Queen's Bench, although (72 E. C. L.) 858; 1 Redfield on Railways, they held that mandamus would go to SS 152, 155. .. It remains, then, to command building of railroad, in which, consider whether the complete and perhowever, they were reversed, as has been fect legal obligation is imposed,' under stated, were themselves of opinion that any of the statutory provisions which we absolute want of funds, or of means to have quoted, 'by fair and reasonable conobtain them, might be retnrned to the struction and implication.' These writ. But that it was not a good return lands are to be exclusively applied to the that the funds which can in reasonable construction of the road for and on account probability come to the nossession of or of which they are granted, and are subject be disposable by the company will fall to the future disposal of the legislature of short by £100,000 of the sum required to the Territory, or future State, for the purbuild. Semble, however, that if there ap- poses in the act expressed, and no other. peared an entire failure of funds from If this was all, it might perhaps furnish unforeseen casualties, and without im- some ground for contending that the acprudence or bad faith in the company, the ceptance 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.?

(6) 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

were

3d section of the act of 1857, and by the of it in connection with the steamboat line act of 1864, under and in accordance with for several years, the railroad company the act of Congress, by strong implication constructed a track diverging from the imposed upon the beneficiary a binding original track at a point a mile and a half legal obligation to construct the whole of from its terminus at tide-water, and runthe line in aid of which the grant is made, ning to the station of the New York Any such implication is, however, cut off & New Haven Railroad Co. in the by the subsequent provisions of the section city of New Haven, and discontinued the prescribing the manner in which the land running of passenger trains to the original shall be disposed of by the Territory, or terminus at tide-water. This change infuture State. An examination of these commoded travellers who wished to pass provisions will show that, with the by the steamboat route, of whom there exception perhaps of one hundred and many. Held, that a mandamus twenty sections (of the lands granted) ought to be issued to compel the railroad which were to be sold in advance of con

company to run passenger trains to the struction, the lands granted were to be original terminus. State v. Hartford & sold for each of said roads or branches in New Haven R. Co., 29 Conn. 538. quantities not exceeding 120 sections for 2. A feeble railroad company, of doubteach 20 continuous miles of road com- ful ability to construct any road between pleted, and ‘so from time to time until the ierminal points of its charter, will be said roads or branches are completed; and restrained, at the suit of a municipality if any of said roads or branches are not which has subscribed for stock and issued completed within ten years no further sale bonds in aid of its proposed main line, shall be made, and the lands unsold shall from wasting its means in constructing revert to the United States."

branch roads so as to disable it to build 1. Morawetz Corp. (2d Ed.) $ 1128. such main line; and where a pretended

Where the charter of a log-driving com- branch is such that its completion will be pany provides that the company may a complete user of the company's original drive all logs and other timber" in a cer- franchise, and will give it a continuous tain stream, the word “may” is to be road between the termini originally named, construed as permissive and not impera- but not passing through or near the plaintive. But when the company accepts the tiff municipality as did the main line proprivilege thus conferred of driving “all posed, and there is no apparent design to the logs," etc., it assumes a duty com- continue the road on such main line, the mensurate with the privilege conferred. construction of the pretended branch will By this acceptance it has the exclusive be restrained as a diversion” of the right to drive all the logs, and the duty to road from such municipality, within the drive results. Weymouth v.Penobscot Log- meaning of Wisconsin act 1872, ch. 119, driving Co., 77 Me. 29, a case of action $ 23. Platteville v. Galena, etc., R. Co., for damages in failing to drive logs, where- 43 Wis. 493. by they shrunk in quantity and quality. An elevated railroad company was au

The Hartford & New Haven R. thorized to construct a main line and Co. was

chartered to construct and branches in New York City. It began to operate a railroad from Hartford to the construct a branch, but it did not appear navigable waters of New Haven harbor. probable that it would ever construct the A steamboat company was afterwards main line. Held, at the suit of owners of chartered to run in connection with it to property abutting on the branch, that the New York, and the railroad and line of work should be enjoined. Goelet v. steamboats constituted a route that was of Metropolitan Transit Co., 48 Hun (N.Y.), great convenience to the public. After 520. Compare Troy v. Boston, etc., R. the construction of the road and the use Co . 86 N. Y. 107.

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

1. It is the rule of the common law that The privilege of making a railroad

Every common carrier must carry for and taking transportation money thereon, all, to the extent of his capacity, without when granted to an individual or a comundue or unreasonable discrimination in pany, is a franchise. The public have charges or facilities.” Atchison, etc.. R. an interest in the use of the road, and Co.v. Denver, etc., R. Co., 110 U. S. 667, the owners of the franchise are liable to 674, in which case, however, it was de- respond in damages if they refuse to cided that the service is to be equal only transport an individual or his property in the like circumstances; so that a con- upon such road, without any reasonable necting railroad company having no excuse, upon being paid the usual rate of business connection or arrangement with fare. Beekman v. Saratoga, etc., R. Co., the company complained of could not 3 Paige (N. Y.), 45. claim the same privileges accorded to an- The proprietors of a stage-coach, who other connecting railroad company hav- hold themselves out as common carriers ing a business engagement. See Freight, of passengers, are bound to receive all 8 Am. & Eng. Encyc. of Law. See also who require a passage, so long as they Scofield v. Lake Shore, etc., R. Co. have room and there is no legal excuse (Ohio), 23 Am & Eng. R. R. Cas. 612, for a refusal. And it is not a lawful exMcGowan v. Wilmington, etc., R. Co. cuse that they run their coach in con(N. Car.), 27 Am. & Eng. R. R. Cas. nection with another coach which ex64; People v. New York Central, etc., tends the line to a certain place, and have R. Co. (N. Y. Gen. Term, 1882), 9 Am. agreed with the proprietor of such other & Eng. R. R. Cas. 1; New England Exp. coach not to receive passengers who Co. v. Maine, etc., R. Co., 57 Me. 188; came from that place on certain days Railroad Commrs. v. Portland, etc., R. unless they come in his coach. Bennett Co., 63 Me. 269; State v. Railroad Co., v. Dutton, 10 N. H. 481, where it was 29 Conn. 558; Commrs. 7'. Eastern R. said, however, that the proprietors could Co., 103 Mass. 258; Sandford v. Railroad legally give preference, if there were not Co., 24 Pa. St. 379; Messenger v, Penn- room for all, to those who came by said sylvania R. Co., 36 N. J. Law, 457; Chi- connecting coach; and that if the latter cago, etc., R. Co. v. Parks, 18 Ill. 460;

passengers were the mail-carriers, the Chicago, etc.. R. Co. v. People. 67 Ill. proprietors were bound to prefer them, 1; Talcott v. Township of Pine Grove, i independently of agreement. Flip. (U. S.) 120; Peik v. Chicago, etc. In McDuffee r'. Portland, etc., R. Co., R. Co., 94 U. S. 164; Chicago, etc., R. 52 N. H. 454, the court observed: Co. v. Ackley, 94 U. S. 179; Winona, of abundant caution, and for the informaetc., R. Co. v. Blake, 94 U. S. 180. Com- tion of those specially concerned, and to pare, Johnson v. Pensacola, etc., R. Co.. guard against any possible construction 16 Fla. 623; S. C., 26 Am. Rep. 731; by implication repealing the common Baxendale v. E. C. R. Co., 4 C. B. (N. law, they (the English Parliament] afS.) 63: Branley 21. S. E. R. Co., 12 C. B. firmed some of its simplest rules. Sand(N. S.) 63. 75; Fitchburg R. Co. v. Gage, ford v. Railroad Co., 24 Pa. St. 378. In 12 Gray (Mass.). 393; Eclipse Towboat charters of common carriers, what is Co. v. Pontchartrain R. Co., 24 La. called the equality clause was inserted, Ann. I.

requiring the carriers to furnish transThe United States Interstate Com- portation on equal terms. The fashion merce Act provides that every common of legislation once set was studiously carrier shall, according to its respective followed with a degree of reverence for powers, afford all reasonable, proper, precedent that does not prevail in this and equal facilities for the interchange of country. And the practice of the Engtraffic between their respective lines, lish courts, on charters and general acts and for the receiving, forwarding, and of this kind, has been so long continued, delivery of property and passengers to that the fact seems now to be overlooked and from their several lines, and those that the general principle of equality is the connecting therewith, and shall not dis- principle of the common law. With so criminate in their rates and charges be much legislation on the subject as there tween such connecting lines; but this is has been in that country, and so much litinot to be construed as requiring any gation upon acts of Parliament, it was common carrier to give the use of its not strange that the bar and bench should iracks or terminal facilities to another finally lose sight of the common-law carrier engaged in like business. Act origin of the principle so many times en1887, Feb. 4 (St. at L., 1885-87, p. 379). acted in different forms, and carried out

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