New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1883-01-18
COMMON CARRIERS DUTIES.
HOW THEY CAN BE ENFoCED BY LAW.
Az IMPORTANT DECISION OF THE GENERAL TERM
RAILWAYS PUBLIC HIGHWAYS.

RAILWAYS PUBLIC HIGHWAYS.
A dec;s;on of the General Term of the SUI
.o,o court on the appeal taken from the decision OF
J,s,ce Haight diminishing the mandamus proceedings
heon by the Attorney to compel the Newi DIX
Central and the New-York Lake Erie and western
ratwayjcompaniest performtheir duties ascommonIcar
iers by delivering and forwarding with due diligence all
frepht transportation, was handed down yes
t.rday The General Term WAS composed OF Justices
Davis Daniels and Brady and the opinion was written
nv Justice Davis The Court holds that the decision OF
Justice Haight must be reversed and tbathe mandahus
proceedings begun by Attorney can properly
be maintained.
Upon the return day Of the motion for the mahoau'
the opinoa saws the counsel for the companies noVed
20 ro.h and dismss the petitions and orders to show
cause The Court entertained the motion and allowed
the counsel the right to open ana cose he
argument. The Court otter argument made oroers
tha the motion to quash and dismiss the petitions and
orers To show cause be granted This modeof dsposng
of the motions for wrts OF mandamus was certainty an
unnsual mode of proceeding. The usual ana proper
course WAS TO proceed hearing OF the motions upon
the papers A notice TO quash motion Is mover pro-
ceeding Motions to quash usually Apply 10 existing
xcr,ts and not to mere attempts 10 OBTAIN them'
In this case there nothing to quash. Inc
Court OF Appeals has held that the according
of the affirmation to the wrong party in trial before
ury IA fatal error In motions at Special Term sucn
an error important but the practice In TINS case
should be discountenanced as precedent" The ques-
ton raised by the motion for mandanns was one OF
,igna importance 1t whether the people Of the State
IAN invoke the power Of the courts to compel the excr
hse by q railway corporation OF the most useful
public functions with which 1t ia clothed.
The question involves consideration OF the
nature Of this class OF corporations AS
bodies corporate their ownership may be and usually
s altogether private In this sense they are to be re-
carried as private corporations, having In view the
~ fha
NO inst sense in conflict with their duties to the public.
The objects Of their creation arc largely different from
those OF ordinary private corporations Railways are In
every essential quality public Highways created for
public use but owned and managed by private persons
But for this quality, the railways of the
defendants could not lawfully exist. Their
construction depends upon the exercise OF the
right OF eminent domain which be conferred
cept upon public use" Every attempt TO confer this
right upon private IL unconstitutional This char
aoteristic OF public use" is In lost or dimn-
ished by the fact that the Of the railway by the cor
poration which must be from its nature exclu
sye The best enjoyment by the public Of this class OF
highways can only be secured through the ownership
and management OF them by corporations created for
that purpose but they are, all the same.
public highways. When the earliest Consti-
tuition of the State was adopted, railways were
unknown. The public highways were then turnpkes,
ordinary roads and navgsble waters The exercise of
the right Of eminent domain was permitted By the Con-
stitution for the reasons that adapt II now to
railways, and in making this adaptation no enlarged
sense is given TO the language OF the Constitution 90
long as its inherent purposethe creation Of only public
uses-is faithfully observed.
In support of these principles Justice Davis reviews
many cases. which showed that the right Of
eminent domain could only be granted IN favor OF
Upublic USE" and that the right was granted TO
railway companies because railways were public high
ways or "publo uses" ALI public highways are SUBJECTS
fhalrr IN.
common property OF the public In regard to public
highways known railways this principle Of the
mon law is fortified by statute. The General Railway
act authorizes the organization Of corporations for the
constructing, etc. of railways for public use, and IL
imposes upon them the duty Z" to furnish acoommoda-
ton for all passengers and property and to transport
all persons and property on payment Of
fare on freight" These duties consigned to the oorpo
rations public trusts and are still sovereign fran
chises and must be treated as sch Dy tnem Inc OF
and convenience the incidental profits Of individuals
By them @
Of the state TO perform PdonG nndn anc1ohs o which
GERS. The performance of every oBcial duty in
respect 10 other classes Of highways may be
Gs o be-
vdua injuries Iii equally clear that railway corpora
mon carriers This springs sharply out of the exclusive
nature Of their right as carrier CARRIES r On ordinary
NAV act carrier on these ways and for that reason
the courts would not grant manoanus competing
as carriers. The . relation Of the state TO
s,o 5aS S use R rSad snS Ssrsn
It duty Of the STATE to make and maintain public
rer upon its public highways but whenever it lawfully
assumes that duty the execution OF the duty may be
it, The State may corporation an exclusive right
build and use Highway and impose on IT. the DUTY
freight Why should the performance OF this duty m-
posed upon the corporation not be capable Of being
lied nv he through COurtsf
Justice Davis reviews many cases in which the writ OF
tons to do certain things in regard 70 the construction
and operation Of their hnes We cannot bring
minds to entertain doubt" the opinion continues,
TO exercise duties carrier of freight aud passen
s seGsn sp that sa that duty which
been conferred by the state and accepted by the
the state Is not injured and has no interest
s aay ISe State may suffer no injury but
that is Of the power or duty Of the State In
syerany public function vested by il in suy person Tor
the public good is not used or Is msused aud IL is
not received special injury for which he may
cover damages IN psysts suit such ran an
other adequate remedy remedy Of dssovng the
sOns may have private remedies for the damages tley
Sy us d % se Ges pecas ne h 20
remedy by mandamus. The courts may exercise their
sS a. 70 Perform it's aay as cal
rei, but the right 10 grant Inandamus not to be
doubted. Where the injury sustained by individual
Is Of nature not 10 Affect the public generally,
the courts have refused 10 grant IDandanus.
Having determined the question OF the
witt of mandamus on the ground of tue refusal or neg
lect OF corporation 10 exercise its duty carrier
only remains be whether the Attorney -Genera
had presented which would justify the granting
OF the writ The petition alleged that the companies
had SUBSTANTIALLY refused TO discharge their duties
carriers aud had material degree suspended the
ercise OF their functions by refusing 10 take freight
had been offered at tue stations III New YORK. and
TO deliver freight NewYork ny this neglect OF the
companies TO perform their duties the trade and com
merce OF NewYOrk mad suffer ed great damage. These
allegations are broad ana show u general and
largely Injurious refusal and neglect 10 perform the
duties of carriers The afidavits in the 20 far
sustain the allegations OF tue petition They show tat
WAL amount on freight, OF which perlshabe