#### People *ex rel.*Attorney-General, Resp’t *v.*New York, Lake Erie and Western R. R. Co., Appl’t.1

*(Court of Appeals,*

*Filed January,*18, 1887.)

1. RAILROADS — OBLIGATION TO PROVIDE STATION ACCOMMODATION S — At COMMON LAW.

At common law the defendant, as á carrier, is under no obligation to provide warehouses for freight offered it, or depots for passengers waiting transportation.

2. Same — Railroad commissioners — Their powers and duties — Laws-1882, chapter 353.

Chapter 353, Laws of 18S2, which creates the board of railroad commis*551sioners, gives the commissioners no power to compel any addition to or change of the stations or station houses of the various railroads, which they may deem proper to promote the security, convenience or accommodation of the public. The power of a company to provide such buildings is, under the statutes, a permissive one only. If the corporation choose to exercise it, it may. »

S. Maotamus — The pebfobmance op what duties can be compelled BY.

If the duty sought to be imposed upon the defendant is not a specific duty prescribed by statute, either in terms or by reasonable construction, the court cannot, no matter how apparent the necessity, enforce its performance by mandamus.

Appeal from an order of the supreme court, general term, Fifth Department, affirming an order of the Erie county special Term, directing a peremptory writ of mandamus directing the defendant to erect a certain station-house.

The facts and questions raised are sufficiently stated in the opinion.

*Sprague, Morey Sprague,*for App’lt; *Denis*O’Brien, Att’yGen’l for resp’t.

1

 Reversing 2 New Tork State R., 237; 40 Hun, 571.

Danforth, J.

Upon motion, on notice by the attorney-general, for a *mandamus*requiring the defendant to construct<and maintain, on the line of its road at the village of Hamburg, a building of sufficient capacity to accommodate its passengers arriving at that place, or departing therefrom, or in waiting to depart, and such freight as is usually received at or shipped from that point, it appeared that the village of Hamburgh contains 1,200 inhabitants, and furnishes to the defendant, at a station established by it, a large freight and passenger business ; that its depot building is entirely inadequate for these purposes, and the absence of a depot building and warehouse, sufficient for the accommodation of passengers and freight, has been, and continues to be, a matter of serious damage to large numbers of persons doing business at that station. These facts were conceded by the defendant. It also appeared that upon complaint made to the railroad commissioners, upon notice to the defendant, that body adjudged and recommended that the railroad company should construct a suitable building at that station, within a 'time named ; but although informed of this determination, the defendant failed to comply, or do anything towards complying with it, not for want of means or ability to do so, but because “ its directors decided that the interests of the defendant required it to postpone, for the present, the erection or enlargement of the station-house or depot at the village of Hamburgh.”

The supreme court, at special term, granted the motion, and, adopting the language of the railroad commissioners, ordered that the defendant “ forthwith construct and maintain a suitable depot building of sufficien^size and capacity to accommodate *552passengers arriving and departing on said road at tire village of Hambnrgb, as well as such passengers as may be in waiting on ordinary occasions to depart from the said village, on the line and by the way of said defendant’s road, and of sufficient capacity to accommodate sudh quantities of freight as are usually received at said village, or that may be shipped therefrom, by the way of said New York, Lake Erie & Western Railroad.”

Upon appeal to the general term, the order, after very careful consideration, was affirmed. The railroad company appeals.

We agree with the court below that, at common law, the defendant, as a carrier, is under no obligation to provide warehouses for freight offered it, or depots for passengers waiting transportation. But that court has found such duty to be imposed by statute. To this we are unable to assent. The question arises upon the construction of the general railroad act, (Laws 1850, ch. 140,) and its amendments. Under that act may companies many have been formed to construct, maintain, and operate railroads in a manner so affecting persons and private property as to be utterly indefensible, except upon the theory formulated by the express words of the statute, that the roads, when constructed, should be “ for public use in the conveyance of persons and property.” To promote that purpose, and for that purpose, only, such company may take the property of a citizen without his consent, (sections 1, 18;) interfere with his travel and transportation by changing the lines of highways as may be desirable, with a view to the more easy ascent or descent of their own road, (section 24 ;) and even appropriate to its purposes the land of a town or county or the state, (section 25.) All these and other like powers are justified upon the ground that, when exercised, they are the acts of the government, performed indirectly through the medium of a corporate body. It follows, of course, that the legislature has control over it, and may compel the exercise of its functions, and direct the management of its business, and use of the road, as in their judgment will best subserve the public interest.

The court below does not find, nor does the respondent claim, that the legislature has, at any time, in express and specific terms, imposed upon a railroad company the duty of erecting or *maintaining*a depot or warehouse. It is sought to be implied. The company is empowered to erect and maintain all necessary and convenient buildings, stations, etc., “for the accommodation and use of their passengers, freight, and business,” (Id., § 28, subd. 8 ;) and may acquire and hold real estate and other property for these purposes, “ as may be necessary to accomplish the object of its incorporation.” There are some other provisions in the same direction ; none go further than those cited. But from these, and from the circumstances first referred to, that the company is exercising a public^rst, and to that cause owes *553its existence and capacity to enjoy and profit by the franchise it has accepted, it is argued by the respondent that the right to construct a station, and its necessity, carries with it an obligation to do so in a proper manner. •

In regard to the facts there is no dispute. A plainer case could hardly be presented of a deliberate and intentional disregard of the public interest and the accommodation of the public. The railroad commissioners have thought that it was essential for those purposes that a new and enlarged building for passengers and freight should be erected. That, it is true, was a question for them to decide. The statute (Laws 1882, ch. 353) created a commission of “ competent personsrequired from them an official constitutional oath *;*assigned to them an office for the transaction of business ; provided a clerk to administer oaths to witnesses, and a marshal to summon them ; gave full power of investigation and supervision of all railroads and their condition, with reference not only to the security, but accommodation of the public ; and declared that whenever, in their judgment, it shall appear, among other things, that any addition to or change of the stations or station-houses is necessary to promote the security, convenience, or accommodation of the public, they shall give notice to the corporation of the improvements and changes which they deem to be proper, and, if they are not made, they shall present the facts to the attorney-general for his consideration and action, and also to the legislature. All these things have been done. The commissioners have heard and decided. They can do no more. After so much preliminary action by a body wisely organized to exercise useful and beneficial functions, it might well be thought unfortunate that some additional machinery had not been provided to carry into effect their decision. By creating the statute recognizes the necessity for such a tribunal to adjust conflicting interests and controversies between the people and the corporar tion. It has clothed it with judicial powers to hear, and determine, upon notice, questions arising between these parties, but it goes no further. Its proceedings and determinations, however characterized, amount to nothing more than an inquest of information. We find no law by which a court can carry into effect their decision. At this point the law fails, not only by its incompleteness and omission to furnish a remedy, but by its express provision that no request or advice of the board, “ nor any investigation or report made by it,” shall have the effect to im-pare the legal rights of any railroad corporation. The attorney general is given no new power. He may consider the result of the investigation made by the commissioners, and their decision, and so may the company; but we must look further for his right of action, and the corporation disregarding the judgment of the commissioners, may continue the management of its busi*554ness in its own way, — may determine in its own direction to> wbat extent, and in what manner, the exercise of a public trust requires it to subserve the “ security, convenience, and accommodation of the public.”

It may admit, as they do in this case, “ the accommodations we furnish are not sufficient, they are not suitable; the omission to furnish different and better, entails injury upon the public; but we will give no better, nor make alterations, until we choose.” The railroad commissioners are powerless, and, as the law now stands, neither the attorney-general of the state nor its courts can make their order effectual.

Cases are cited by the respondent in support of a different contention. Some of them turn upon statutory provisions, as those arising in Connecticut, where the law makes the order of the commissioners effectual by authorizing its enforcement. *State*v. *Railroad Co.,*87 Conn., 153. Under our statute, the public gain nothing in any legal sense from the determination of the commissioners. It is not enforceable as a judgment; it is not even a command, if it affects the railroad company at all; it is as advice merely. It can compel them only through the interposition of the legislature, who may, indeed, make it effectual by action upon their report, or by some general law, if it be deemed expedient, giving force and efficacy to their determinations.

In the next place, as the duty sought to be imposed on the defendant is not a specific duty prescribed by the statute, either in terms or by reasonable construction, the court cannot, no matter how apparent the necessity, enforce its performance by *mandamus. It*cannot compel the erection of a station-house nor the enlargement of one. The power of the company to provide such buildings is, under the statutes, a permissive one only. If the corporation choose to exercise it it may. The statute does not exact it. It specifies certain things which the company shall not do. It specifies many things which it shall do, as, among others, “ start and run its cars for the transportation of passengers and property, at regular times, to he fixed by public notice, and furnish sufficient accommodations for the transportation of all such passengers and property “ as shall, within a reasonable time previous thereto, being offered for transportation at the place of starting and at the junctions of other railroads, and at usual stopping places established for receiving and discharging way passengers and freight for that train, and shall take, transport and discharge such passengers and property at and from and to such places, on the due payment of fare or freight legally authorized therefor, and shall be liable to the party aggrieved, in an action for damages, for any neglect or refusal in the premises; ” and it must do some other specified things for their accommodation.

*555The statute is peremptory as to many matters, but it nowhere says that for its intending passengers or waiting freights cover by building of any hind shall be provided. As to that, the statute imports an authority only, not a command, to be availed of at the option of the company in the discretion of its directors, who are empowered by statute to manage “ its affairs,” among which must be classed the expenditure of money for station buildings or other structures for the promotion of the convenience of the public, having regard also to their own interest. With the exercise of that discretion the legislature only can interfere. No doubt, as the respondent argues, the' court may, by mandamus, also act in certain cases affecting” corporate matters, but only where the duty concerned in specific and plainly imposed upon the corporation. It was so in *People*v. *D & C. R. R. Co.,*58 N. Y., 152, where the defendant was compelled to restore an invaded highway to its former usefulness — a statutory duty — Laws of 1850 cl. 140, § 28, subd. 5; so in *People ex rel. Kimball,*v. *B. &*A. *R. R. Co.,*70 N.Y., 569, to build a bridge as directed to by statute — Laws of 1874, chap. 648; in *People, etc.,*v. *R. & S. L. R. R. Co.,*76 N. Y., 294, to erect fences as directed by statute 1850, *supra.*All these cases cited by the learned Attorney-General, and there are many others, go upon the ground above stated.

Such is not the case before us. The grievance complained of is an obvious one, but the burden of removing it can be imposed upon the defendant only by legislation. The Legislature created it upon the theory that its functions should be exercised for the public benefit. It may add other regulations to those now binding it; but the court can interfere only to enforce a duty declared by law. The one presented in this case is not of that character, nor can it by any fair or reasonable construction be implied.

The whole subject of the relation between the company and its passengers and freighters appears to have been in contemplation of the 'Legislature. Certain acts towards them as we have seen are made imperative as duties (§ 36); others, and among them the erection of stations and buildings, are made possible by permission. Sec. 28, sub. 8.

We cannot disregard this difference in language, and give by implication to one phrase the same force and meaning which the Legislature has by express terms conveyed in the other. We are constrained therefore to hold that the appeal must succeed.

The order appealed from should be reversed and the motion denied, with costs.

All concur, Rapallo J., in result.