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of its business; that the relator requested the railroad company to transport the oil, and the company declined.

S. Jones, for the appellant. The duty to transport relator's goods is imposed by statute on the respondent. (Laws of 1850, ch. 140, § 36, p. 232; State v. Hartford & New Haven R. R. Co., 29 Conn., 547; Vincent v. C. & A. R. R. Co., 49 Ill., 40; Chicago & Northwestern R. R. Co. v. People, 56 Ill., 365; People v. Albany & Vermont R. R. Co., 24 N. Y., 261-269.) The remedy for neglect or refusal to perform a duty imposed by statute on a corporation, is by mandamus to compel its performance. (Blakemon v. Glamorganiston Canal Co., 1 Mylne & K., 154, 162-168, per Lord ELDON; Queen v. Eastern Counties R. R., 2 Perry & D., 648, 655, 656; per DENMAN, Ch. J.; Reg. v. Trustees Luton Roads, 1 Q. B., 860; Reg. v. Bristol Railway Co., 2 Q. B. 64; Reg. v. Bury Roads, 6 D. & R., 368; King v. Justices of Cumberland, 1 Maule & S., 190, 196; Rex v. Severn & Wye R. R. Co., 2 B. & A., 646; Rex v. York & North Midland R. R., 16 Eng. L. & E., 299; State v. Hartford & New Haven R. R., 29 Conu., 547; Chicago & Northwestern R. R. Co. v. People, 56 Ill., 365; People v. Albany & Vermont R. R., 24 N. Y., 261–267; McCullough v. Mayor of Brooklyn, 23 Wend., 458; People v. Mead, 24 N. Y., 120; People v. Supervisors Chenango Co., 1 Kern., 574; People v. Hawes, 47 Barb., 457.) The other remedy to bar this writ, must be a legal, specific and adequate remedy, and equally as convenient and efficacious. (Tapping on Mandamus, 18, 19; High on Extraordinary Remedies, § 17; Overseers v. Overseers, 82 Pa. St., 279; Fish v. Weatherwax, 2 Johns. Cas., 217; People v. Mayor, 10 Wend., 395; Exp. Lynch, 2 Hill, 45; People ex rel. Ryan v. Green, 58 N. Y., 295; People v. Haw kins, 46 Id., 11; People v. Green, 1 Hun, 1.) An action on the case against a corporation to compel it to perform a statutory duty is not such a remedy by action as will prevent the allowance of a mandamus. (McCullough v. Mayor, 23 Wend., 461; People v. Meade, 24 N. Y., 120; People v. Hawkins, 46 Id., 11; People v. Green, 58 Id., 305, 306; Chicago & N. W. R. R. Co. v. People, 56 Ill., 365; Queen v. Bristol Dock Co., 4 Q. B., 70; Queen v. Eastern Counties R. R. Co., 10 Adolph. & Ellis, 565.)

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W. D. Shipman and W. W. Macfarland, for the respondent. A writ of mandamus cannot issue to a common carrier to compel the carrier to perform an alleged common law duty. (People ex rel. Walker v. Babcock, 16 Hun, 313.) Nor will the writ of mandamus issue in any case where there is an adequate remedy by action. (Tapping on Mandamus, 3; People v. Green, 1 Hun, 1; Commonwealth v. Rossiter, 2 Binney, 360; Overseers v. Overseers, 82 Pa. St., 279; Exp. Lynch, 2 Hill, 45; Exp. Firemen's Ins. Co., 6 Id., 243; People v. Mayor, &c., 10 Wend., 395; People v. Green, 58 N. Y., 306; N. J. Steam Nav. Co. v. Merchants' Bank, 6 How. U. S., 382; Angell on Carriers, ch. 5, § 123, et seq.; 2 Kent's Comm., 599; Laws of 1850, ch. 140, § 36.)

DANIELS, J.:

It was shown by the statements in the writ that the defendant was a corporation formed in 1878, under and in pursuance of chapter 430 of the Laws of 1874. That chapter, as it was amended by chapter 446 of the Laws of 1876, which was enacted before, and was in force when the corporation was formed, provided for the formnation of railroad companies, upon the sale, under a judgment or decree of a court of competent jurisdiction, of the railroad property, privileges and franchises of any other railroad corporation. (Laws 1876, ch. 480, § 1.) It is to be inferred, from the statement made in the writ, that the same railroad property, franchises and privileges acquired by the defendant, were, before its formation, vested in another corporation, and from the points presented in favor of the relator, that such other railroad company was that known as the New York & Erie Railroad, or Erie Railway Company. But, even if that were the case, no different disposition of this appeal would probably be required to be made because of that circumstance. It is not claimed that any distinction should, on that account, be made, and the propriety of none has been perceived, for the reason that in the carriage and transportation of persons and property, the duties and obligations of all railroad companies are, under the laws of the State, substantially the same. A company formed as the defendant was, has in terms been vested with and becomes entitled to enjoy all the rights, privileges and franchises

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which, at the time of the sale under the judgment or decree, belonged to, or were vested in the corporation which last owned, the property sold, or of its receiver. And it was made subject to all the duties and liabilities imposed by the act authorizing the formation of railroad corporations, enacted in 1850 (ch. 140), and the acts amendatory thereof, except where they may be inconsistent with the laws. of 1874 and 1876, or with the rights, privileges, or franchises of the corporation whose property and franchises were made the subject of the sale. (Laws 1876, 481, ch. 446, § 1, subd. 4.) The act of 1850 provided that, "Every such corporation shall start and run their cars for the transportation of passengers and property, at regular times, to be fixed by public notice; and shall furnish sufficient accommodations for the transportation of all such passengers and property as shall, within a reasonable time previous thereto, be offered for transportation at the place of starting, and the junctions of other railroads, and at usual stopping-places established for receiving and discharging way passengers and freights for that train; and shall take, transport and discharge such passengers and property at, from and to such places, on the due payment of the freight or fare legally authorized therefor; and shall be liable to the party aggrieved, in an action for damages, for any neglect or refusal in the premiises." (Laws 1850, ch. 140, § 36.) In terms, this included only the railroad corporations formed under its own provisions. But by section 49 of the same act, this section was rendered applicable to all existing railroad corporations, so far as it was not inconsistent with the charter of such corporations. (Id., 235, § 49.) And no such inconsistency appears between the duties and obligations imposed by this section, and the provision contained in the charter of the New York & Erie Railroad Company, by which it was empowered to regulate the time and manner in which goods and passengers should be transported, taken and carried on its railroad. (Laws 1832, ch. 224, § 1.) For that included no such power of discrimination, as it was the design of section,36 of the act of 1850 to prevent. Under these acts, it was the duty of the defendant to furnish sufficient accommodation for the transportation of all such property as should, within a reasonable time previous thereto, be offered for transportation, at the place of starting, or at the junction.

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of other railroads, or at usual stopping-places established for receiv ing and discharging freight for the trains, and to take, transport and discharge property at, from and to such places, on the pay ment of the freight legally authorized therefor. (Laws 1850, ch. 140, § 36.)

And that was no more than what the common law had prescribed on the same subject for many years before railroads were either used or known. This business was then carried on by a different class of vehicles on the land. The persons who were engaged in it were known as common carriers of property for hire. And they were legally obligated to carry all such property as should be offered within a reasonable time previous to the commencement of the trip, and for which a fair and proper compensation might be offered or paid. If they refused to receive and carry property so offered, without any justifiable reason for doing so, they became liable to the party injured by the refusal. (New Jersey Steam Navigation Co. v. Merchants' Bank, 6 How. U. S., 344, 382-3; Angell on Carriers, 5 ed., §§ 124, 418.) In a case decided many years since it was held that a common carrier was liable by law to carry everything which was brought to him, for a reasonable sum to be paid for the carriage, and not to extort what he will. (Harris v. Packwood, 3 Taunt., 264, 272.) His prices must be reasonable. (Id., 271.) And since the construction of railways and the transaction of this business by the companies owning or operating them, they have been held to be common carriers of property for hire, and for that reason the same principles have been applied to the conduct of their business. (Crouch v. Great Northern Railway, 34 Eng. Law & Eq., 573; Thomas v. Boston, &c., R. R., 10 Met., 472.)

Whether the obligations resting upon the defendant are to be derived from the common law, or the statute, they are substantially the same. In either case it was obliged to provide reasonable vehicles for the carriage and transportation of the property offered to it for that purpose, and to carry it for a reasonable compensation. It could not unreasonably or unjustly discriminate between persons whose property was offered for transportation, but it was bound to deal with them substantially alike. The law requires equal justice to all. (Fitchburg R. R. Co. v. Gage, 12 Gray, 393.) This equal

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ity, it was held in that case, consisted "in the restricted right to charge in each particular case of service a reasonable compensation, and no more. If the carrier confines himself to this, no wrong can be done, and no cause afforded for complaint. If, for special reasons in isolated cases, the carrier sees fit to stipulate for the carriage of goods or merchandise of any class for individuals for a certain time, or in certain quantities, for less compensation than what is the usual, necessary and reasonable rate, he may undoubtedly do so without thereby entitling all other persons and parties to the same advantage and relief.”

These principles of the statute, and of the common law, are relied upon by the relator in support of his right to the writ which the order, from which the appeal has been taken, has dismissed. It is alleged by him that they have been disregarded by the defendant to his injury, and that it should be required specifically to perform the obligations existing in his favor as the owner of property presented for transportation over its railroad. This property consists of a large quantity of crude oil. How much, has not been made to appear. But on June 1, 1878, and from thence to the issuing of the writ, he had this property and desired to have it carried and transported over the defendant's road. The property was offered to its officers and agents for that purpose, and it declined to receive or transport it, although it had the necessary tank cars unemployed by which that could have been done. And they were detained unemployed until they were devoted to the transportation of the same nature of property, afterwards offered by other parties, for a less rate of compensation than the established rate offered by the relator. These facts are not controverted, and they must therefore be accepted as the truth. And considering them as established in the case, as they must be, the defendant has violated its obligations and duties to the relator. He had the legal right to have his property carried as long as the defendant had the unemployed vehicles by which it could have been transported, and he was ready to pay the ordinary compensation for the service. This legal obligation existed in his favor, and, by the circumstances appearing, it was violated by the defendant's refusal to receive and carry his property. What has been said upon this subject in another case is especially apposite