New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1882-07-20

him ont The servant pulled out of his pocket the
Deans mandamus, and after reading ~ sna a%nnt
declared that he could find nothing IN u aoou'
helping him ont of a ditch The diiicnlty OF com
polling common carriers by mandamus 10 uo tneit
duties generally was not NJ ali ne'PSa Dy and
by common law from their assam ing voluntarily w
act as such In regard TO the argument that II tno
companies were not compelled in tins proceedng W
carry the freight OF the REALTORS they would refuse
to carry freight at all, Mr.. Conkling SAID tneLc
were many tempting answers; but that II Wy
counsel really thought that tho companies woulo
put themselves in the condition OF the man VINO
sawed on the limb on which he was sitting potmoo',
him and the tree. he would remind the coam neI
that the statute provided ample means 10 Io I ~
them to stop saving; or II the saving hau NJ
ready been done, then TO splinter the imp. .;o,.
MIR. Conkling spoke further upon the distnStaU ,
between the duties and obligations OF railroad co'
panies as touching tho building and mantenanoo y,
the road and the duties aud obligations Oh Gonnu.
carriers oyer the road whether they are antics Of
common carrier for hire and the hoide. y, "hn;IJ
chse. IL railroad company refused 10 p" he
maintain or operate road ~ Wa nn conid b.
said, to tho public IN geDerai ana reut7|s IT, ro
obtained by mandamus; but tbe guy Sy y. bv any
road as common carrier was to be eni9looa nS II
person injured and by an action ior uan'aso ,a I'd
was somewhat remarkable that in the repoi.tG'u
cases, in dealing with the pupio C - i'm
rights in ally except that IN R",Iroad
Companv had been compelled to operate their line
down to the steamboat wharf, reiatoI uau Se or
necessary So too IL the rp ts cars down to
q Ger, ain ee yator the proceedings were on tne re-
lation of those injured by the REFUSAL IN micnl-
gan case also dwet on by the complainant there
was a State statue especially empowering anu
directing the Attorney-General to begin such pro
ccedings. 49,, ,a
result unless the extraordinary relief asked were
granted he continued: How has the world got on
up to the present time, and where was my learned
friend with his new gospel when the foundations OF
the world laid For centuries we Lave gov
along with the old remedies, which, II they are nov
rio orny
saws Truth and Justice lie bleeding in the street;
and he will be compelled to invent new writ ano
defend 1t on the ground OF the Deciaratioh VI III
dependence and Eplaribus anuna"
POINTS ABOUT THE WRIT
There had been talk, the speaker said, OF the
fexibility of the writ of mandamus. 1t Was the
Hexibility OF the trp-hammer or the steel trap. In
its simplicity and its keen edge lay its essence
In former times when the King or Queen in prop77d
persone sat in the Court of Kings Bench dispensing
a somewhat rude Justice. The writ of mandamus was
n sort of judicial indulgence, manifestation OF the
judicial discretion; but the tendency now was to
limit and circumscribe it. he denied that theTe
had been any showing of interest by the people IN
the allegations They had not shipped any
freight. How. then, could there be any offence
against the State or the people of the State The
claim that trade would be diverted Dy people being
terIzed as fOcculent, nebulous, gelatnOus aver
ment." He maintained that in no court, by no
action public or private and by no known pro
ceedings in the law, could the atlantis maintain
suits for violations by the respondents of their
duties rs common carriers by section 80 oil the
Railroad law alone This section did not require
the COMPANIES to have freight handlers any more
than it dd nurses and doctors for sick people who
travel The statute would be satisfied II the
company placed its cars upon the sldlngs OF man
tracks where they could easily be. loaded by the
shippers If the atlantis were to go into court In
actions for damages the statute would not figure
at all; they would stand upon the law
the common law. Aud what was true of taking
out and delivering freight was equallyStrue OF
Mr.. Conkling asserted further that as common
carriers the railroad companies contracts of insur
ance did not embrace the element OF time. and
urged that by statute the power to regulate and
fix the time and manner in which freight should be
transported was repOsed in and LETT TO the dis
cretiOn of the companies.
The gravamen of the motion, he commended was
that the Court should say whom he railroad com
panies should employ. and what they should pay
them But the Court could not try the question
whether S109,500 should be added to the expenses
of each of the companies Other employees wonld
demand more wages. the strikers themselves might
increase their demand and if the writ were to issue.
the companies all over the State would be subjected
absolutely to the behest OF their employees Apply
the doctrine and not one chartered common carrier
could carry on business except by suferance, ana
there would be nowhere any computation upon
which to base an estimate of the justice and fair
ness of wages.
MIR. Combines CONCLUSION.
In conclusion Mr.. Conkling said:
May il please Your Honor: 1 have devoted
tine ydr SRs ore THAN q and
more than believe TO at all necessary Something
has been said by the preIace.d by
s eSScfSy Of this proceeding l. for one; shall
RhE eh no have spOUsf this there
in this world partnership between men which is natu
n ns "1 between and esp asS and
who is willing to work ana the man VINO needs fe
any advantage is to be gained by the one OF the Other
all Sa e sdS al Of the who aDcs
him. and within any sphere OF mine l mean
f hl d b Work But let me say to Your Honor
attempts like this. engenderng feeling could they suo-
conmOtion agitation bad blood and collision
wheremeanno good 70 the honest toer with MS hands
man who uses tie name of the workngman as the
but they mean no good for any honest who labors
they mean harm and loss and lasting Injury IL is I'M
and should be promptly carried 1t is vastly
more important that the law should De
should not be dragged clamored of its province
vastly important that the ministers OF the law
legally they cannot be asked to NEEDLE -,
have said once and 1ost 6 ac." on w
be without its USE and have venured TO believe that
wu aSed not BY ns t% Rs
in the first inslancse-wil not brgradge
s1s winch {GH think advanas aa
ton will Should Your Honor think that upon the
Gns Hi haTS Tor the purposes Of the motion
all advantages to the other SIDE OF demurrer that
is that all the substantive allegations are TO be taken
as true-shOud Your Honor hold that thus taken they
sufficient TO na6:e you to refuse or overrne TINS
much frankness that with which he spoke that We
have caused to be prepared, and TO be veri-
fed, not only answers but many aIldavis
which not only controver the monstrous allegations of
their afiidavits OF this petition, but show condition
the presence OF which think Your Honor and
all listeners Will be surprised when the case as 1t
will stand them is contrasted with the case as we have
chosen it stand long enough TO submit these que
tons OF law To tue Court. .
L have belief myself that either the Court or the
Attorney General Will be tried troubled he after with
any further proceedings II this regard and cannot
doubt under whose boosted advice these steps
taken will that nothing could be more det-
rmental to- nothing likely to defeat, the interests
OF the workingmen, which they profess TO espouse.
The papers in the case then handed to the
Justice who remarked that he would be Obliged To