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directed by statute; or to establish and maintain a station. at a particular place, where the statute law so requires; or to compel a water supply company, or a gas-light company, to supply a customer who complies with the conditions entitling him to be supplied; or to compel a railroad company, which has leased its road and which owns no personal property of any material value, to pay a tax upon its capital stock; or to compel the board of trustees of the Wabash & Erie Canal to send up the papers in an appeal made by a land-owner from an assessment of damages for taking his land.

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§ 7827. When not Issued to Compel the Performance of Public Duties. - It is said that a writ of mandamus to compel a railroad corporation to do a particular act in constructing its road or buildings, or in running its trains, can be issued only when there is a specific legal duty on its part to do that act, and clear proof of a breach of that duty. For instance, if the charter of a railroad corporation simply authorizes it, but without requiring it, to construct and maintain a railroad to a certain point, mandamus will not lie to compel it to complete and maintain its road to that point, where it appears that it can not be done at a profit, or where a grant of public lands has been made to enable it to

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so, which grant has been forfeited. So, in the view of a majority of the Supreme Court of the United States, a mandamus will not lie to compel a railroad corporation to build

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• Wabash &c. Canal Co. v. Johnson, 2 Ind. 219.

' Gray, J., in Northern &c. R. Co. v. Washington, 142 U. S. 492, 498; s. c. 11 Rail. & Corp. L. J. 115; 12 Sup. Ct. Rep. 283.

York &c. R. Co. v. The Queen, 1 El. & Bl. 858; Great Western R. Co. v. The Queen, 1 El. & Bl. 874; State v. Southern Minn. R. Co., 18 Minn. 40. State v. Southern Kansas Ry. Co., 24 Fed. Rep. 179. Compare Commonwealth v. Fitchburg R. Co., 12 Gray (Mass.), 180.

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and maintain a station at a particular place, unless there is a clear specific duty so to do imposed by statute, and a clear breach of that duty. So, a mandamus will not be granted to compel a railroad company to operate a line leased by it under a lease which both parties to the suit agree is illegal and void.

§ 7828. Doctrine that the Public Duty must be Enjoined by Statute. The doctrine of many courts is that mandamus will not lie to compel a corporation to perform a public duty unless the performance of that duty is clearly and expressly enjoined by statute, no matter how great the public necessity for its performance may be. This is a very poor doctrine, and an examination of several of the cases which affirm it illustrate that fact. In one of them there was a clear and pressing public necessity for the building of a proper station house on the Erie Railway at a town containing twelve hundred inhabitants. The company refused to build the station house, not because they had not the means to do so, but because the directors decided that it would not be to their interest to do so. Application was made to the railway commissioners, and upon a hearing they held that the company ought to build

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1 Northern &c. R. Co. v. Washington, 142 U. S. 492; s. c. 35 L. ed. 1092; 11 Rail. & Corp. L. J. 115; 12 Sup. Ot. Rep. 283. See to the contrary, cases in the preceding section, and note that the dissenting opinion of Mr. Justice Brewer, concurred in by Field and Harlan, JJ., seems to show that this case was wrongly decided on its merits. The Supreme Court of Iowa refused to grant a mandamus to compel a railroad company to transport an article called "New Era Beer," the statute law of that State prohibiting common carriers from bringing into the State intoxicating liquors, including beer, and the article being prima facie within the prohibition, so that it was discretionary

with the carrier to refuse to transport it, although in point of fact it was not an intoxicating liquor. Milwaukee Malt Extract Co. v. Chicago &c. R. Co., 73 Iowa 98; s. c. 34 N. W. Rep. 761.

'People v. Colorado &c. R. Co., 42 Fed. Rep. 638; s. c. 8 Rail. & Corp. L. J. 270; 45 Am. & Eng. Rail. Cas. 599.

People v. New York &c. R. Co., 104 N. Y. 58; s. c. 58 Am. Rep. 454; Northern Pac. R. Co. v. Washington, 142 U.S. 492. Compare Atchison &c. R. Co. v. Denver &c. R. Co., 110 U.S. 667, which was a bill in equity to compel one connecting railroad to grant certain facilities to another.

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the station house. But as the legislature had clothed them with only an advisory power, the corporation ignored their recommendation; whereupon the Attorney-General applied for a writ of mandamus. This was granted by the Supreme Court; but the Court of Appeals, reversing its decision, held that, although the grievance complained of was an obvious one, yet the burden of removing it could be imposed upon the defendant by the legislature only. So, in a case where the manipulators of a railroad corporation had built its road into a county where a county seat was already established and inhabited, and which was the largest and most prosperous town in the county, and for many miles along the road; but nevertheless, the manipulators ran the road through the county seat without establishing a station there, or making it a stopping-place, but established a new town contiguous thereto, - a paper town -and all this for reasons best known to its manipulators, perhaps because the county seat refused to pay a bonus to them, or because they could make a real-estate speculation by founding a new town, it was held, reversing the court below, that a mandamus would not issue to compel them to establish a station and stop their trains at the county seat. The better view is that under every railroad charter or enabling statute, there is an implied obligation on the part of the company to maintain a station wherever the public interest demands it; that the State legislature, their sessions often limited to a few weeks, cannot bestow such a special attention upon the interests of local communities as to prescribe by statute that railroad companies shall be obliged to maintain stations at this or that point; that such legislatures have not the proper facilities for determining where such stations should be located, without doing injustice to the railroad company on the one hand or to the people on the other hand; and that consequently the power ought to reside in the judicial courts, upon a full hearing, to make such determination, and to enforce it

1 People v. New York &c. R. Co., 104 N. Y. 58, 67; s. c. 58 Am. Rep. 454.

Northern Pac. R. Co. v. Washington, 142 U. S. 492 (Brewer, Field, and Harlan, JJ., dissenting).

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by mandamus, the writ going of course, only in a clear and strong case of public necessity. Such in substance is the doctrine of the Supreme Court of Nebraska;' and such mani. festly is the principle on which other courts have acted. But under this theory there must of course be a very clear case of public necessity for the establishment of the depot at a particular place, otherwise the writ will not lie.'

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§ 7829. Does not Lie to Compel the Performance of Discretionary Acts. — It is a settled principle in relation to the use of the writ of mandamus, especially with reference to corporations, that where the statute law vests in a corporation, or in its governing body or officer, a discretion in relation to a particular matter, that discretion will not be controlled by mandamus, whether it has been exercised wisely or unwisely. On this ground a mandamus has been refused to control the action of a board of school directors;s to compel the Governor to issue a proclamation prescribed by law on the application for a

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· State v. Republican Valley R. corporation shall be obliged to receive Co., 17 Neb. 647; 8. C. 52 Am. Rep. at all proper times and places and con424.

vey persons and articles," is held to • People v. Chicago &c. R. Co., 130 mean at all reasonable times and Ill. 175; Railroad Commissioners v. places, consistent with the right of Portland &c. R. Co., 63 Me. 269; 8. C. the public to use the road; and it is 18 Am. Rep. 208.

held that, whether or not the times • Mobile &c. R. Co. v. People, 132 and places established by the corpoIll. 559, 572; 8. c. 22 Am. St. Rep. 556. 'ration are of this description, is ulOn the subject of the location of a rail- timately to be determined by the way station, the following cases, hold- judicial courts; and that where the ing that, the question being one of railroad commissioners, acting in public duty, a railway company can- pursuance of their power, have di. not bind itself, by contract with pri- rected a railroad company to estabvate individuals, to locate its station lish a station at a certain place, that at a particular point, may be com- direction will be enforced by manpared with those which have pre- damus. Railroad Commissioners v. ceded: Bestor v. Wathem, 60 Ill. 138; Portland &c. R. Co., 63 Me. 269; 8. C. Linder v. Carpenter, 62 111. 309; Marsh 18 Am. Rep. 208. v. Fairbury &c. R. Co., 64 Ill. 414; 8. C. People v. Bell, 4 Cal. 177. Com16 Am. Rep. 564; Snell v. Pells, 113 Ill. pare Commonwealth v. President of 145; St. Louis &c. R. Co. v. Mathers, Anderson Ferry, 7 Serg. & R. (Pa.) 71 Ill. 592; 8. c. 22 Am. Rep. 122; and 6. 104 Ill. 257. A provision in the char- o Clark v. Board of Directors, 24 ter of a railroad company that “the Iowa, 266.

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charter of a corporation, the statute requiring him to issue it when satisfied that the law has been in all respects complied with; to compel the Commissioner of Insurance to admit a foreign insurance company to do business in the State; or to compel a railroad company to maintain a station at a particular place, there being no statute so requiring. But mandamus may be resorted to, to compel an inferior officer to do the act which is sought to be enforced, in all cases where the officer has no discretion, and where he is under obligation to do the specific act, and there is no adequate remedy in the ordinary course of law.

§ 7830. Who Apply for the Writ: Plaintiff in the Action Where the writ is demanded to enforce a public right, the action is generally brought on behalf of the United States, or the State, as the case may be, by its Attorney-General or prosecuting attorney according to the directions of the statute law."

1 State v. Chase, 5 Ohio St. 528. 'American Casualty Ins. Co. v. Fyler, 60 Conn. 448; s. c. 25 Am. St. Rep. 337; 22 Atl. Rep. 494; post, §7902.

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3 Northern &c. R. Co. v. Washington, 142 U. S. 492; 8. c. 11 Rail. & Corp. L. J. 115; 12 Sup. Ct. Rep. 283. An analogous doctrine is that the writ of mandamus does not issue to compel judicial action; but as judicial action cannot be in any case imputed to a private corporation, this principle is irrelevant to the

present discussion. United States v. Lawrence, 3 Dall. (U. S.) 42; Chase

Blackstone Canal Co., 10 Pick. (Mass.) 244. Where, however, an association or society has certain statutes for the control of the rights of its members in the society, and certain judicatories to administer those statutes, mandamus does not lie in behalf of a member to enforce his rights therein, until his remedies have been exhausted before the ad

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People v. Bell, 4 Cal. 177.

In Northern &c. R. Co. v. Washington, 142 U. S. 492; s. c. 11 Rail. & Corp. L. J. 115; 12 Sup. Ct. Rep. 283, it was prosecuted in the name of Washington Territory on the relation of Dunstin, its prosecuting attorney. In New Orleans &c. R. Co. v. Mississippi, 112 U. S. 12, it was brought on the relation of a district attorney of one of the judicial districts of the State of Mississippi. In Connecticut, a mandamus to compel a railroad company to continue to operate the road to the terminus fixed by the charter

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