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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;6 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

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

· People 76 N. Y. 294.

v. Rochester &c. R. Co., • Wabash &c. Canal Co. v. John

son, 2 Ind. 219. • Com. v. Eastern R. Co., 103 Mass. ? Gray, J., in Northern &c. R. Co. 254, 259; 8. C. 4 Am. Rep. 555. Com- v. Washington, 142 U.S. 492, 498; 8. C. pare Southeastern R. Co. v. Railway 11 Rail. & Corp. L. J. 115; 12 Sup. Comm., 6 Q. B. Div. 586.

Ct. Rep. 283.
Haugen v. Albina Light &c. Co., 8 York &c. R. Co. v. The Queen, 1

8. c. 14 L. R. A. 424; 45 El. & Bl. 858; Great Western R. Co. v. Alb. L. J. 170; 28 Pac. Rep. 244.

The Queen, 1 El. & Bl. 874; State v. • People v. Manhattan Gas Light Southern Minn. R. Co., 18 Minn. 40. Co., 45 Barb. (N. Y.) 136; 8. c. 1 Abb. • State v. Southern Kansas Ry. PI. (N. S.) (N. Y.) 404.

Co., 24 Fed. Rep. 179. Compare Com• Person v. Warren R. Co., 32 N. monwealth v. Fitchburg R. Co., 12

Gray (Mass.), 180.

21 Or. 411;

J. L. 441.

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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 un. der 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 hun. dred inhabitants. The company refused to build the station house, not because they had not the means to do so, but be. cause 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

I Northern &c. R. Co. v. Washington, 142 U.S. 492; 8. 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 com pel 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 trans-
port it, although in point of fact
it was not an intoxicating liquor.
Milwaukee Malt Extract Co. v. Obi-
cago &c. R. Co., 73 Iowa 98; 8. C.
34 N. W. Rep. 761.

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

People v. New York &c. R. Co., 104 N, Y. 58; 8. C. 58 Am. Rep. 454; Northern Pac. R. Co. v. Washington, 142 U. S. 492. Compare Atchison &c. R. Co. o. 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 defend. ant by the legislature only.' So, in a case where the manipulators of a railroad corporation had built its road into a county where & 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 found.

g a new town, - it was held, reversing the court below, that & 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 facili. ties for determining where such stations should be located, without doing injustice to the railroad company on the one band or to the people on the other hand; and that consequently the power ought to reside in the judicial courts, upon #full hearing, to make such determination, and to enforce it

in

People v. New York &c. R. Co., 104 N. Y. 58, 67; 8. C. 58 Am. Rep. 454.

· Northern Pac. R. Co. •. 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.'

§ 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;' to compel the Governor to issue a proclamation prescribed by law on the application for a

· State v. Republican Valley R. Co., 17 Neb. 647; 8. c. 52 Am. Rep. 424.

2 People v. Chicago &c. R. Co., 130 Ill. 175; Railroad Commissioners v. Portland &c. R. Co., 63 Me. 269; 8. C. 18 Am. Rep. 208.

& Mobile &c. R. Co. v. People, 132 Ill. 559, 572; 8. c. 22 Am. St. Rep. 556. On the subject of the location of a railway station, the following cases, holding that, the question being one of public duty, a railway company cannot bind itself, by contract with private individuals, to locate its station at a particular point, may be compared with those which have preceded: Bestor v. Wathem, 60 Ill. 138; Linder v. Carpenter, 62 Ill. 309; Marsh v. Fairbury &c. R. Co., 64 Ill. 414; 8. C. 16 Am. Rep. 564; Snell v. Pells, 113 Ill. 145; St. Louis &c. R. Co. v. Mathers, 71 Ill. 592; 8. c. 22 Am. Rep. 122; and 104 Nl. 257. A provision in the charter of a railroad company that “the

corporation shall be obliged to receive at all proper times and places and convey persons and articles,” is held to mean at all reasonable times and places, consistent with the right of the public to use the road; and it is held that, whether or not the times and places established by the corpo'ration are of this description, is ultimately to be determined by the judicial courts; and that where the railroad commissioners, acting in pursuance of their power, have directed a railroad company to establish a station at a certain place, that direction will be enforced by mandamus. Railroad Commissioners v. Portland &c. R. Co., 63 Me. 269; 8. C. 18 Am. Rep. 208.

People v. Bell, 4 Cal. 177. Compare Commonwealth v. President of Anderson Ferry, 7 Serg. & R. (Pa.) 6.

6 Clark v. Board of Directors, 24 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 raēlroad 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.”

7902.

283.

State v. Chase, 5 Ohio St. 528. judicatory of the society. Ante, 6912. ' American Casualty Ins. Co. o. That the members of a county court Fyler, 60 Conn. 448; 8. c. 25 Am. St. act ministerially in contracting for Rep. 337; 22 Atl. Rep. 494; post, public work and may be controlled

by mandamus, see Anderson County Northern &c. R. Co. v. Washing- Court v. Stone, 18 B. Mon. (Ky.) 848. ton, 142 U. S. 492; 8. c. 11 Rail. & Mandamus against a judge to reinstate Corp. L. J. 115; 12 Sup. Ct. Rep. a suit instituted by a corporation,

An analogous doctrine is that erroneously dismissed for want of the writ of mandamus does not issue sufficient security for costs: Ex parte to.com

pel judicial action; but as ju- Morgan, 30 Ala. 51. dicial action cannot be in any case • People v. Bell, 4 Cal. 177. imputed to a private corporation,

• In Northern &c. R. Co. v. Washprinciple is irrelevant to the ington, 142 U. 8. 492; 8. c. 11 Rail. & present discussion. United States v. Corp. L. J. 115; 12 Sup. Ct. Rep. 283, Lawrence, 3 Dall. (U. S.) 42; Chase it was prosecuted in the name of

Blackstone Canal Co., 10 Pick. Washington Territory on the relation (Mass.) 244. Where, however, an of Dunstin, its prosecuting attorney. association or society has certain In New Orleans &c. R. Co. v. Mississtatutes for the control of the rights sippi, 112 U. S. 12, it was brought on of its members in the society, and the relation of a district attorney of certain judicatories to administer one of the judicial districts of the those statutes, mandamus does not lie State of Mississippi. In Connecticut, in behalf of a member to enforce his a mandamus to compel a railroad comrights therein, until his remedies pany to continue to operate the road have been exhausted before the ad- to the terminus fixed by the charter

this

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