# Northern Pacific Company v. Territory of Washington Dustin

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## Dissenting Opinion

    Brewer
United States Supreme Court
142 U.S. 492
Northern Pacific Company v. Territory of Washington Dustin
STATEMENT BY MR. JUSTICE GRAY.
A petition in the name of the Territory of Washington, at the relation of the prosecuting attorney for the county of Yakima and four other counties in the territory, was filed in the district court of the fourth judicial district of the territory on February 20, 1885, for a mandamus to compel the Northern Pacific Railroad Company to erect and maintain a station at Yakima city, on the Cascade branch of its railroad, extending from Pasco junction, on the Columbia river, up the valley of the Yakima river, and through the county of Yakima, towards Puget sound, and to stop its trains there to receive and deliver freight, and to receive and let off passengers.
The Northern Pacific Railroad Company was incorporated by act of congress of July 2, 1864, c. 217, and was thereby 'authorized and empowered to lay out, locate, construct, furnish, maintain, and enjoy a continuous railroad and telegraph line, with the appurtenances, namely, beginning at a point on Lake Superior, in the state of Minnesota or Wisconsin, thence westerly, by the most eligible rail road route, as shall be determined by said company, within the territory of the United States, on a line north of the forty-fifth degree of latitude, to some point on Puget's sound, with a branch, via the valley of the Columbia river, to a point at or near Portland, in the state of Oregon, leaving the main trunk line at the most suitable place, not more than three hundred miles from its western terminus; and is hereby vested with all the powers, privileges, and immunities necessary to carry into effect the purposes of this act as herein set forth.' By section 5 of its charter it was enacted 'that said Northern Pacific Railroad shall be constructed in a substantial and workman-like manner, with all the necessary draws, culverts, bridges, viaducts, crossings, turnouts, stations, and watering places, and all other appurtenances, including furniture and rolling stock, equal in all respects to railroads of the first class when prepared for business, with rails of the best quality, manufactured from American iron; and a uniform gauge shall be established throughout the entire length of the road.' And by section 20 it was enacted 'that the better to accomplish the object of this act, namely, to promote the public interest and welfare by the construction of said railroad and telegraph line, and keeping the same in working order, and to secure to the government at all times (but particularly in time of war) the use and benefits of the same for postal, military, and other purposes, congress may, at any time, having due regard for the rights of said Northern Pacific Railroad Company, add to, alter, amend, or repeal this act.' 13 St. 366, 368, 372.
The petition set forth at length the size and importance of Yakima city and its need or railroad accommodations; alleged that it was the county seat of Yakima county, a county having more than 4,000 inhabitants, and had a court-house where courts of the United States and of the territory were held, and a United States land-office; that the defendant had refused to establish a freight and passenger station or to stop its trains at Yakima city, but was building a freight and passenger station and stopping its trains at the rival town of North Yakima, four miles further north, which it had laid out on its own unimproved land, and was ruining Yakima city for the purpose of enhancing the value of its own town-site.
The answer, filed June, 1, 1885, said nothing as to the court-house; admitted that at the time of filing the petition there was a United States land-office at Yakima city, but alleged that it had since been removed by order of the president of the United States to North Yakima; admitted that Yakima city heretofore had 500 inhabitants, but alleged that since the construction of the defendant's railroad two-thirds of them had removed with their houses and other buildings to North Yakima, and others were continually abandoning it, and no buildings or business were replacing those taken away; denied that it had laid out the town of North Yakima for the purpose of enhancing the value of its own property, or for the purpose of injuring the property of any other person, town, or city; and alleged that there was not business enough to warrant more than one station on this part of its road, and that North Yakima was a much larger and more prosperous town that Yakima city ever was, and was a more convenient point for the people of the neighboring valleys, who were more than 15 times as many, and had more than 15 times as much taxable property, as the people living in Yakima city and its immediate vicinity.
The parties also made allegations and denials, and (after the filing of a replication not copied in the record) introduced evidence at the trial by a jury as to the matters afterwards stated in the special verdict, which was returned October 17, 1885, in answer to 46 questions submitted by the court, and was in substance as follows:
In January, 1885, the defendant carried freight and passengers for hire on its railroad to and from Yakima city, and kept an agent there who attended to the freight and sold tickets to passengers; but before February 20, 1885, having completed its road to North Yakima, it ceased to stop its trains at Yakima city, and established a reight and passenger station at North Yakima, and, pursuant to section 4 of its charter, tendered its road to the United States as fully completed and equipped from Pasco junction to or beyond Yakima city, and caused to be appointed by the president of the United States commissioners to examine and report on the condition of the road. On March 16, 1885, that part of its road from Pasco junction by Yakima city to North Yakima had not been turned over to the operating department of the company, but the freight and passenger trains were not run as subordinate to the construction of the road.
In January, 1885, Yakima city was the oldest and largest town, and the most important business center, on the Cascade branch of the defendant's railroad, between the Columbia river and Puget sound. On February 20, 1885, and when the defendant built and operated its road to Yakima city, the amount of business done at Yakima city annually was $250,000, its population was 500, and there was no other town or business center of any importance in Yakima county.
On October 17, 1885, Yakima city was the largest town and the most important business center in the county, except the town of North Yakima; the population of Yakima city was 150; there were 70 children attending school there; and it had 2 hotels, a flour-mill, 13 stores and places of business, 27 dwelling houses, and but a limited amount of industries requiring railroad facilities. The amount of business furnished by Yakima city to the defendant over that portion of its road between Pasco junction and North Yakima in the summer of 1885 was in June 16,000 pounds, in July 4,000 pounds, in August none, in September 2,400 pounds, in October none; and during that period no product of Yakima city or the country adjoining was furnished by any one to be carried over the defendant's road.
There is a safe and suitable place for a freight and passenger station in Yakima city on the line of the defendant's road, and the defendant has the ability to construct and maintain such a station there, with freight and passenger facilities. If the defendant had done so, Yakima city would have ratained its former size and importance. No demand was ever made upon the defendant for the establishment of a freight and passenger station there. The expense of construction and fitting for practical use a station and warehouse at Yakima city would be about $8,000, and of keeping the requisite agents there $150 a month. The wear and tear and cost of stopping a train at a station is $1.
The passenger and freight traffic of the people living in the valleys of the streams entering the Yakima river at and near Yakima city and North Yakima, considering them as a community, would be better accommodated at North Yakima than at Yakima city. There are other stations for receiving freight and passengers on that part of the defendant's railroad extending from Pasco junction to North Yakima, called 'Yakima Division,' furnishing sufficient facilities for all the country below North Yakima; and the earnings of that division are not sufficient to pay its running expenses.
On the verdict of the jury and the admissions in the pleadings each party moved for judgment; and on April 23, 1886, the district court ordered a peremptory mandamus to issue, in accordance with the prayer of the petition. The record showed that the district court during the previous proceedings in the case was held at Yakima city, but at the time of rendering judgment was held at North Yakima, to which to county-seat and the court-house had been removed pursuant to the statute of the territory of January 9, 1886. Laws Wash. T. 1885-86, pp. 57, 457. On appeal to the supreme court of the territory, the judgment of the district court was affirmed. 3 Wash. T. 303, 13 Pac. Rep. 604. The defendant thereupon sued out this writ of error, and assigned the following errors:
'First. That the proceedings were not commenced by the proper relator, or in the name or on behalf of the real party in interest.
'Second. That Yakima city is the real party in interest.
'Third. The application and petition do not state facts sufficient to constitute a cause of action.
'Fourth. The findings of the jury are not sufficient to sustain, and are inconsistent with, the judgment rendered thereon by the court.
'Fifth. The jury found that existing depot and stations between North Yakima and Pasco furnished sufficient railroad station facilities.
'Sixth. The jury found affirmatively that the railroad, at the time of the application and the return thereto, was in the hands of the railroad contractors and construction department.
'Seventh. That the business furnished said railroad company by said Yakima city and its people, and transacted at said Yakima city by said railroad, was not sufficient to pay the running expenses of a station at said place.
'Eighth. The jury found that no demand whatever was ever made upon the Northern Pacific Railroad Company for the said station or other depot facilities mentioned in the said application and the judgment of said court.
'Ninth. No facts are found showing any necessity for other or additional stations and facilities than those already furnished.
'Tenth. The charter of the Northern Pacific Railroad Company vests in said company a discretionary power in reference to locating and constructing and maintaining its stations.
'Eleventh. That the matters set forth in the application and findings by the jury are not matters which the law specially enjoins as a duty resulting from an office, trust, or station.
'Twelfth. That the judgment affirming the judgment of the district court rendered on the findings of the jury, and the writ thereon, are vague, uncertain, and insufficient, in not directing and defining what said Northern Pacific Railroad Company was to do under said judgment and writ, especially as to the character, kind, and class of station and facilities to be furnished, and requires an impossibility, in this, to-wit, that said station be constructed immediately.'
Mr. Justices BREWER, FIELD, and HARLAN, dissenting. 13 Pac. Rep. 604, reversed.
James McNaught, A. H. Garland, and H. J. May, for plaintiff in error.
Mr. Justice GRAY, after stating the case as above, delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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