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


Mai that snch wording would raise troublesome
question of fact How did the companies then
transport freighti MI. Russell sa'c ne wOuIu cf
secion SO of the Revised Statues or the respond
snts should be commanded 10 transport freight on
the same day that it was received. Here, said
the Justice. would arise another difficulty.
Freight was Of various kinds, some perishabie;
some not so. Could the Court prescribe for every
easel The Attorney General replied that the com
panes would know how to obey the writ they
would have greater difficulty IN performing their
duties now than on June 10. Besides. II the rem
sdy existed, any objection 10 Its form dld not ae
teat the application As to the remedy which the
respondents said the people had, the right OF acon
for damages, he argued that 1t would be diihculs
for every merchant 10 send every Dih ei
goods to the wharves to have III re-
fused, SO as to lay basis Tor hs
suit The statement that the people had no inter,
est he answered by saying that above ana Deyohu
all litigation the principle that 1T Is 10 tne goou
OF the Republic that there shall be an end 10 luga-
ton. Here hundreds OF cases could DC merseo LII
After Attorney General Russell had resumed his
seat, Justice Taught said he should IKE 10 near
by opposing counsel that the writ of man;
G,.mds did not lie. because question OF
fact was involved IN the, allegation tnat
the respondents had unreasonaby refused To receive
and deliver freight, Mr. Russell said that the proVl
sion in the Code on that point was Simply declara,
ton OF The previous law Which had 4een lr,s
that If upon the facts being presented to Inc Court
legal right appeared there was no discretion
The Court, ana TIT OF m3nualHuS uuSe icS"''
MR. CONKLING'S REPLY
Mr. Conklng after the recess began his reply to
the Attorney General. lie felt sure, be said that
his eloquent and learned friend intended nothing In
this case except what he always intended in every
case: namely to do his duty as he understood IL.
He begged the Attorney General not to receive this
as praise from him, but rather rs rebuke ior COIL
plants in his opening remarks about the conduct Oh
tho counsel for the companies The Attorney
General had no reason to complain OF the coutse
taken by the defendants counsel IN this proceeding
That course alone had made that discussion possible
which the Attorney. General had so much desired,
and which in rather warlik terms had been de,
scribed grapplo for the mastery, NIT 10 nit.
The counsel for companies might have come Tor
ward with denial OF the aggressive ana groundiess
allegations In the morning papers. and this would
have made an end oil sne whole 1or sro
damus could only issue when the only question In
volved was one of law. The Attornes, Generai, IN
one of the numerous interviews with which he mad
favored the ewspapeIs and their countless readers
had said he wanted TO have the questions IN tnls
case fully discussed; and he could not therefore,
complain of the course of his opponents who alone
had taken the course which gave any opportunity
for discussion The Court indeed might complain
because the companies had not denied the aliega-
tons of the REALTORS and thus subjected 1t 10 labor
of listening to long and wearisome arguments In
such hot weather; but the Attorney General had no
such right.
discussion of the questions involved in the case,
however, would he wholesome, and the decision
Il
ton of the public, of men who are given to weeping
ostentatiously over the sins OF others, ana then
wiping their eyes in the newspapers anu Oh men men
who brag In the newspapers OF the money winch
they have given to get up strikes ana 10 excite
extraordinary litigation 1t would have been easy
TO deny the loose-twlsted and rambling allegations
In the papers in the case. For instance, the REALTORS
had alleged that the defendants had suspended the
exercise of their franchises. Did any man believe
this was trnef Again, IL had been alleged that the
compan ,es had refused to furnish adequate accom-
modations for transportation. Was there any pre-
tence that the companies did not have enough cars
or That trains did not depart and arrive tmef
There were also allegations that the companies
elsewhere 10 naneiess places were 10 de1auit, ana
that they were unwilling to employ suncient
laborers to handle the freight offered them such
instances were amply sufficient to show tnat the
companies could have denied. and denied with
success every material allie cation on which the APP
plcation for a mandanus rested. 1t had been I'M
derstood that the Attorney General wanted dis
cussion; and notice O week ago had been given to
him of the motion to quash the proceeding OF which
he now complained There had been no surprise,
no unfairness IN any way.
THE REAL TOPICS DISCUSSED.
So much for the matters preliminary to the real
topics of discussion in the The first thing to
be done in order to get clear ground upon which to
stand, was to find out who was the party applying
for the writ This would not advance the argu-
ment il would in fact complete it. The complain
ant was the people of the State. The writ III Eng
land issued in the name of the Crown. In either
case the name was one of sovereignty one Which
signIfed the entirety of people. The name IN the
record therefore did not signify many mer-
chants OF many people at large but the
whole people. Three tailors In Iosley-st.
had proclaimed. indeed some of them had sworn,
that Hy 6o the
a few men who swore that they dealt III beans and
patent medicines convert those men into the people
of the State of New York. One of them had de-
posed a little like one of the Louiss who sad he
was the State. The Code had provided two cases IN
which the Attorney GeneIsi might Apply r Oa %f'
the other where they were interested III the pro-
ceedings. ,
The wit of man could not suggest any other case.
The Code also provided that where writ was APP
piled for in the interest of particular persons the
parties in interest must appear upon the record and
shall be called REALTORS Whatever the common
law might have been, the matter was now regu-
lated by statute. The statute mad retained the
word REALTORS because it had become term OF art,
and its meaning had Teen fixed by thousand
decisions But even in the cases referred TO. the
Code did not authorize a writ OF mandamus where
the State is the party OF record, or the party In
interest except in proceedings already begun; ana
1t gave not the slightest authority for the issue OF
. writ in a proceeding begun by motion which
begins and ends in itself. The Attorney-Generai,
Mr. COnkling continued. had dwelt upon the doc
trine of eminent domain ana the deiegatiotn e., TO
State. Mr.. COnkling said he must express his
obligations to his opponent for so dong, SINCE 1t
would enable him to present the distinction be-
tween the grantee of o franchise and common
carrier-a distinction which existed even when the
two characters were united In the same person
Take for instance the case of one Of the Pacific
railways. The United States had granted for
nothing right OF way across the iimltiess empires
of their public domains, upon the sole condition
that the railway company should build and main
tain a way and maintain the way, If you please.
Gby a continuous and continuing act" That was
putting the strongly as the Acknowledgement
could possibly wish. Now what followed il the
grantees permitted the way to fall into disusef
The powers of the courts could be invoked by quo
warranto or mandamus to protect the rights of the
United States either by depriylng the grantees of
their franchises by compelling them to operate
the road. But suppose the same company though
maintaining its road, refused to deliver to forty
four hundred persons the freight consigned to
themf Had any lawyer the courage to say that the
United States had the power by mandamus TO come
in and say, Deliver 10 Jones or Smith his pig or
coffee" and then with sort of drae-net process
.i..t.a "a iha