Facts :- Suit to force street car co. to operate part of its lines on which it had stopped service. Def. ry. chantered by state to operate 50years. & was granted franchise lay tracks instants. WITHDRAWAL FROM PUBLIC SERVICE. 517 SAN ANTONIO STREET RAILWAY CO. v. STATE ex rel. 90 Tex. 520. 1897.1 GAINES, C. J. This case arose by a petition filed in the name of the state of Texas upon the relation of Henry Elmendorf and others to compel the plaintiff in error to operate a part of its lines upon which it had ceased to run its cars. Demurrers to the petition were overruled, and exceptions to the answer of respondent were sustained, and thereupon the peremptory writ was awarded as prayed for in the petition. This judgment was affirmed upon appeal, and to the judgment of affirmance this writ of error has been granted. The first question is: Did the facts alleged authorize the relief prayed for in the petition? It was alleged that the respondent company was a corporation, chartered by a special act of the legislature passed May 2, 1874, and authorized to operate street railways in the city of San Antonio for the term of 50 years; that it applied to the city council of the city for authority to construct certain lines within the city limits, and that the privilege was granted by an ordinance, which is copied in the petition.2 It is not expressly averred that at the time the ordinance was passed the company had already constructed and had in operation a line or lines of street railway in the city; but we think that this is to be inferred from section 1, which speaks of the streets over which the privilege to construct and operate was thereby granted as "additional streets and avenues." It was further averred that the company had constructed, and for a time had operated, the line from its beginning point to Highland Park, but that, while it had continued to operate that portion of that line nearest the city, it had abandoned the operation of a part. The prayer was for a writ of mandamus to compel the respondent to operate that entire line. It is a well-settled doctrine that a corporation may be compelled by the writ of mandamus to perform a duty imposed by statute. The duty need not be express; it may be implied. Clearly, when it appears by fair implication from the terms of its charter, it is as imperative as if the obligation were expressed. But as to cor 1 Arguments of counsel and part of the opinion are omitted.- ED. 2 The ordinance granted to the company the " rights, privileges and fran66 to operate a street railway in certain streets during the term of their charter."- ED. chises crew the duty 1. Cary cast he forced to praise franchise ly craptred. panta perundaire to operate hear and not an only grant-so no igatary duty to contuure like here failure to activuse all live should be, porations quasi-public in character-such, for example, as those chartered for the carriage of passengers and freight there are decisions which hold that they owe certain duties to the public which they may be compelled to perform, although not enjoined by their charters, either in express terms or by specific implication. But we have been unable to discover that any well-defined rule has been laid down by the authorities by which we may determine in every case what implied duties are assumed by such a corporation by the acceptance of its charter.3 . . . The legislature, in creating a corporation, has the power to give it an option to do or not to do the acts which it is authorized to perform. On the other hand, it may impose upon the corporation, as the law of its creation, the obligation to exercise to their fullest extent the powers which are granted. In either case the proposed corporators may accept or not; and, in the latter, if they do accept, they may be compelled by mandamus to perform the duties so imposed. But to say that in granting a charter to do a public service there is no difference between making it lawful to do an act, and imposing it as an obligation to perform it, is to say that by reason of the public interest involved language is to have a different construction and effect from what it would have in statutes in general or in private contracts. Expressions may be found in the opinions of courts which countenance that doctrine, but we think there it is based upon an assumption that cannot be maintained upon sound principle. In legislating, the lawmaking power undertakes to determine what is to the interest of the public, and under the limitations of the constitution it is the sole judge of what will promote the public utility, and must be presumed to be capable of expressing its will in intelligible words. When, therefore, a corporation, whether quasi-public or purely private, is granted the privilege of doing an act, and there are in its charter no express terms which make it obligatory to do the act, or other words from which by fair construction that intention can be gleaned, we do not see upon what sound principle the duty can be imposed. The allegations in the petition in this case show that the respondent company was chartered merely for the purpose of constructing and operating street railways in the city. The special act merely gave it the right of corporate existence for the purpose indicated. Tugwell v. Ferry Co., 74 Tex. 480, 9 S. W. 120, and 13 8 The court then cited and commented upon Northern Ry. Co. v. Washington (1892), 142 U. S. 492; People v. Railway (1887), 104 N. Y. 58; State v. Railway (1885), 17 Neb. 647; People v. Railway (1889). 130 II. 175: York & N. M. Ry. Co. v. The Quenn (1853), 1 Ellis & Bl. 858; State v. Hartford & N. H. R. R. Co. (1861). 29 Conn. 538; City of Potwin Place v. Topeka Ry. Co. (1893). 51 Kan. 609; People v. Railway (1862). 24 N. Y. 261.-ED. S. W. 654. The streets were under the control of the city council. cil. The franchise in question was granted by the city council, and no duty. the claim is that it is by virtue of that concession, and its acceptance by the company, that the duty arose. But the ordinance (which is quoted above) merely grants "the privilege" of constructing and maintaining street railways over the lines therein designated. No Harly clearer words of mere permission could have been employed. Not percussion only this, but there is in the ordinance neither sentence, phrase, nor word that indicates that it was the intention of the council to make it a condition of the acceptance of its grant that the company should be bound to construct and operate railways over the streets which were therein specified. The company are required to observe all the ordinances of the city then existing, but it is not averred that there was any ordinance in existence at the time of the acceptance of the franchise which imposed that obligation. The following succinct and accurate statement of the law from Redfield on Railways has been often quoted with approval: "Where the charter of a corporation, or the general statute in force and applicable to the subject, imposes a specific duty, either in terms or by fair and reasonable construction and implication, and there is no specific or adequate remedy, the writ of mandamus will be awarded." Redf. R. R. p. 678. It is clear that the ordinance in this case neither by express terms nor by implication imposes the duty upon the company. If the duty to construct and maintain the line is to be established, it must be upon the assumption that every privilege granted by a legislative body in reference to matter of public interest imposes upon the grantee who accepts it the duty to perform the acts he is allowed to perform. The assumption, in our opinion, is, as we have already intimated, not based upon sound reason, and is in opposition, at least, to the weight of authority. Of the numerous similar franchises granted in this state many have doubtless been abandoned, without objection, so far as we are advised, from any quarter. It does not follow that a just objection may not have been made; but the fact that none has been made serves, we think, in some measure to show that the practical construction of such charters has been that the grant is permissive and not obligatory. We are of opinion also that the fact that the road has been constructed and operated, and that a part is now operated, makes no difference. Under the grant of a privilege to construct and maintain, if after acceptance it is permissive only to construct, it is not obligatory to maintain. But we do not hold that the company can, against the will of the city, operate a part of its line, and not the whole. A privilege to establish an entire line of street railway may be granted when the privilege of constructing and operating a part only would not be, and for a failure to operate a part it would seem that the whole might be forfeited. It seems to us that the remedy in this case is to forfeit the franchise to operate the branch line in controversy. The defendant, in its answer, offers to discontinue the operation of the branch, and apparently this would have been a good answer to the petition if an answer had been necessary. We would not be understood as holding that the common law does not impose some duties upon companies chartered as common carriers, which may be enforced by mandamus, although no mention of such duties may be found in their charters. All carriers who undertake to transport goods or passengers for the public assume certain duties to the public; but certainly carriers who are not corporations may at any time discontinue the business, if they elect to do so, and we see no good reason why corporations may not discontinue their enterprises when the charter does not in express terms or by fair implication forbid it. If it is the will of the legislature, or of a municipal body to whom the power to confer the privilege may have been granted, to impose upon the corporation the duty to construct and to continue to operate the work, instead of a mere permission to do so, it is not difficult so to provide by incorporating into the grant some language which evinces that intention. It follows that, in our opinion, the trial court erred in overruling the demurrer to the petition, and that the court of civil appeals erred in not so holding. It not appearing that that petition may be amended so as to state a good cause of action, the judgment of the court of civil appeals and that of the district court are reversed, and the cause dismissed.* In accord Sherwood v. Atlantic & D. R. Co. (1894), 94 Va. 291; State ex rel. Knight v. Helena P. & L. Co. (1899), 22 Mont. 391. Facts:- def. WITHDRAWAL FROM PUBLIC SERVICE. Come. andered ry. i this road. to resume. 521 operation of THE COLORADO AND SOUTHERN RAILWAY COMPANY v. THE STATE RAILROAD COMMISSION. 54 Colo. 64. 1912.1 The defendant railway company had abandoned the operation of that part of its railway between Breckenridge and Como, twentyone miles in length, and operated only a combination train between Denver and Como. The effect was that all the freight between Denver, the commercial and political center of the State, and Breckenridge, a mining village of 800 souls, was required to pass by another railroad, a distance of 317 miles, breaking bulk on two occasions, and consuming several days; whereas if trains were regularly operated on defendant's railway, the distance was only 110 miles, and the freight was received on the day of its shipment. Passengers, too, were required to go by the same circuitous route, and one desiring to travel from Breckenridge to Como, only 21 miles by defendant's railroad, was required to travel nearly 400 miles. Moreover the freight charge, and the passenger rate, were greatly increased. The railroad commission required the defendant to resume the operation of its line between Breckenridge and Como and to operate a passenger train, daily except Sunday, between Denver and Leadville by way of Como and Breckenridge, and a through freight train at least three days in each week. The company declined to obey the order of the commission, and this action was brought to compel it to do so. Judgment was entered against the railroad. MR. JUSTICE GABBERT delivered the opinion of the court. . . . If a railroad company does not operate a sufficient number of trains to reasonably serve the needs of shippers, the Commission has the power to direct it to increase its service in this respect; or, if it operates its trains over such routes, by reason of a link in its line being abandoned, that unnecessary delays are occasioned, it is not transporting shipments with that degree of diligence which the act requires, and the Commission . . . is empowered to direct that it transport freight over the abandoned part of its line when by so doing shipments will be greatly facilitated, and burdens imposed upon shippers removed, unless the railroad can justify its action in abandoning such part of its linea proposition we shall consider later. . . ... 1 The statement of facts is taken from the headnote. Parts of the opinion have been omitted.— ED. Facts. Held! -π-by facend to rescue of of this hood му 1. Whew ry aperates its trains over such router by reason of a link in its time being abandoned, that unnecessary delays and caused there my cant operatyfty are |