75 N.Y.S. 202 | N.Y. App. Div. | 1902
The law is well settled that a writ of mandamus to compel a railroad corporation to do a particular act in constructing its road or buildings, or in running its trains, can be issued only when there is a specific legal duty on its part to do that act, and clear proof of a breach of that duty (Northern Pacific Railroad v. Dustin, 142 U. S. 492, 498; People v. N. Y., L. E. & W. R. R. Co., 104 N. Y. 58, 66, 67), and the jury having found, upon a trial of the issues raised, by an alternative writ of mandamus, that “ public necessity or convenience require that the defendant operate its elevated road system from and between the termini at the Brooklyn Bridge and Broadway Ferry and the terminus at Cypress Hills in the manner the same was operated prior to the first day of April, 1900,” and the learned court at Special Term having granted an order in conformity with this finding, we are to determine whether there is a specific legal duty on the part of the defendant to operate its railroad in the manner prevailing prior to April 1, 1900; for if no such duty has been imposed upon the defendant, either by the common law or by statute, it is not within the province of the courts to say in what manner a quasi-public corporation shall discharge its duty to the public. Such matters are and always have been proper subjects for legislative consideration, unless prevented by some charter contract, and remedies for inconveniences or injustices suffered by reason of the failure of such corporations to meet our ideals can only be obtained from the Legislature. This court is not clothed with legislative power. (Northern Pacific Railroad v. Dustin, supra, 502, and authorities there cited.) “ The grievance" com: plained of is an obvious one,” say the court in People v. N. Y., L. E. & W. R. R. Co. (supra), “ but the burden of removing it can be imposed upon the defendant only by legislation. The Legislature created the corporation 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 primary object of the writ of mandamus is to compel action. It neither creates nor confers powers to act, but only commands the exercise of powers already existing, when it is the duty of the person or body proceeded against to act without its agency. While it may require the
■ Having these fundamental propositions in mind, we will consider some of the provisions of law in relation to corporations of the; character of the defendant, and then examine the facts to determine whether they constitute a sufficient ground for the interference of this court with the management of the defendant’s railroad. Section 29 of the General Corporation Law (Laws of 1892, chap. 687) provides that the “ affairs of every corporation shall be managed by its board of directors,” and section 4 of the Railroad .Law (Laws of 1890, chap. 565) says that, subject to the limitations and requirements of this chapter, every railroad corporation, in addition to. the powers given by the General and Stock Corporation Laws, shall have power “ * * * (8) to regulate the time and manner in' which passengers and property shall be transported, arid the compensation to be paid therefor.” Section 34 of the same statute provides: “ Every railroad corporation shall start and nin its cars for the transportation of passengers and property at regular times, to be fixed by public notice, and shall furnish sufficient accommodations, for the transportation of all passengers and property which shall be offered for transportation at the place of starting, within a reasonable time previously thereto, and at the junctions of other railroads,, and at the. 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, from and to, such places, on the due payment of the fare or freight legally authorized therefor.” It appears, therefore, that, subject to the limitations last above mentioned, the Legislature has specially delegated to the defendant the power, to regulate the time and manner in which passengers and property shall be transported, and this-would seem to be broad enough to permit the board of directors, in managing the affairs of the defendant, to operate its trains upon a. fixed schedule at any hours of the day or night which, in its judg
In Commonwealth v. Fitchburg R. R. Co. (12 Gray, 180) the court had before it the precise question whether the running of regular passenger trains was, under the facts admitted in the demurrer, a legal duty, and after a careful consideration of the question in an historical light, the court suggested that, “ Upon a line of railroad of much travel, and where the public convenience required frequent trains for the carriage of goods, a corporation would not discharge its duty by furnishing trains wholly inadequate to meet the public wants; much less if it wholly neglected or failed to make any provision whatever to meet the public wants.” But the court adds, “ it is plain that the power to judge of what is necessary or reasonable in the premises is, except in those cases where the Legislature has expressly intervened, in the first instance in the corporation. It is clear also that the duty required is not more than to meet and supply the public wants.” In reply to the suggestion that the duty is not relative, but absolute; that it is not to be measured by the public wants and exigencies at the time, but is to be performed at all hazards, or at any sacrifice, unless or until the Legislature shall interpose to relieve the corporation from its performance, the court say: “ This position cannot be sustained. If it had been intended that the duty of running trains should be absolute, it would have been made definite. But the question at once arises, when and how often is this duty to be discharged ? Is a train to he run whenever a passenger shall desire to go ; or are there to be fixed times, and, if so, how frequent ? To settle these questions you would have to refer to the public wants, and these could be measured only by the business done. If trains run at reasonable and moderate fares cannot be supported, it is because they are not needed.” The court, speaking of the corporation, adds: “ It would seem to be, therefore, not only its right but its duty to exercise a sound discretion in the use of its capital, lest by exhausting it upon trains that were not
Taking the facts to be as stated by the relator he has been a resident of the twenty-sixth ward of the borough of Brooklyn for thirty years. During that time elevated railways had been constructed in Brooklyn by the Brooklyn Elevated Railway Company, the Union Elevated Railroad Company and the Sea Side and Brooklyn Bridge Railroad Company. In February,. 1899, the system of elevated roads in the borough of Brooklyn passed to the ownership and control of the Brooklyn Union Elevated Railroad Company, and on or about April 1, 1900, the Brooklyn Union Elevated Railroad Company leased all of the said railroads belonging to the system, with all of the structures, etc., to the Brooklyn Heights Railroad Company, the appellant in this proceeding. At this time there were two distinct and continuous lines'which had their terminus at Cypress Hills. One started from the Brooklyn Bridge and ran through Fulton street to East New York, thence to Cypress Hills; the other started at the Broadway Ferry, ran through Broadway to' Crescent street and through Crescent street to Cypress Hills. On both of these lines a continuous service from terminus to terminus was maintained up to about August 15, 1900, when the defendant, inaugurated a new system. The old station at Manhattan Crossing was torn down or remodeled, and a new station, known as the loop, was erected in its stead, and the arrangement was such that the two lines of railroad were connected at this point, trains being enabled
A careful examination of the authorities discovers no case in which the courts have, in the absence of a specific legal duty, Undéiv taken to prescribe the manner in which a railroad shall be operated,
In People v. N. Y. C. & H. R. R. R. Co. (28 Hun, 543) the defendant had, under the pretext that it was unable to operate its road by reason of a strike among its employees, refused to accept and carry freight to and from the city of New York, and the court held that mandamus would lie to compel the discharge of the duty which it had undertaken. “ The duties imposed must be discharged at whatever cost. They cannot be laid down or abandoned or suspended without the legally expressed consent of the State. The trusts are active, potential and imperative and must be executed until lawfully surrendered, otherwise a public highway of great utility is closed or obstructed without any process recognized by law. This is something no public officer charged with the same, trusts and duties in regard to other public highways can do without subjecting himself to mandamus or indictment.”
In People v. Albany & Vermont R. R. Co. (24 N. Y. 261) the •defendant had constructed its road between Albany and Eagle Bridge, and subsequently abandoned so much of the route as lay between Eagle Bridge and Waterford Junction. The Attorney(xeneral brought an action to 2-estrain the company from taking up and selling the iron, a2id demanded that the company be directed to reopen and operate the road for its entire length. The complaint was dismissed, and on appeal the court held that the comd was with
In Matter of Loader (14 Misc. Rep. 208) the facts and decision are analogous to those in People v. N. Y. C. & H. R. R. R. Co. (supra), this case being cited as authority.
In Union Pacific R. R. Co. v. Hall (91 Ü. S. 343) the statute under which the road was- constructed provided that the “ whole line of the railroad and branches, and telegraph shall be operated and used for all purposes of communication, travel, and transportation, so far as the public and government are concerned, as one connected, • continuous line,” and when the company refused to operate-its lines over abridge which was held to., constitute a portion of the railroad, the court issued a writ of mandamus-to compel obedience to the provisions of the law. “ The mandamus awarded in this case,, therefore,” say the court, “imposes no duty beyond what the law requires.” ■
In Illinois Central R. Co. v. People (19 L. R. A. 119) the statute under which the railroad was operated provided that “ all regular passenger trains shall stop a sufficient length.of time at the railroad station of county seats to receive and let off. passengers with safety.” The railroad company operated a fast mail train, which carried several passenger coaches, between points in Illinois and New Orleans, and this train deviated from the original route of the company, passing about three miles from the station in the city of Cairo, a county seat. A' short train was - run out from, the city to connect with this train,, and the Illinois Supreme - Court held that this did not meet the requirements of the law, and- a mandamus issued. This case was carried to the United States Supreme Court and reversed upon the ground that the statute of Illinois was an interference with interstate commerce and with the United States mails, and was not a proper police regulation. (Illinois Central R. R. Co. v. Illinois, 163 U. S. 142.)
In Brownell v. Old Colony Railroad (164 Mass. 29) the defendant had come into possession of á ferry, which, by act of the Legislature, had been made a part of its railroad. The court say: “ -The
And so we come back to the rule stated in the opening of this discussion, that a writ of mandamus to compel a railroad company to do a particular act in constructing its road or buildings, or in running its trains, can be issued only when there is a specific legal duty on its part to do that act, and clear proof of a breach of that duty. (Northern Pacific Railroad v. Dustin, 142 U. S. 492, 498, and authorities reviewed and cited in this case.) Certainly it cannot be successfully contended, that there was ever any specific legal duty to operate the road of the defendant in the particular manner in which it was operated on or before the 1st day of April, 1900. While the court may require the performance of a purely ministerial duty-in a particular manner, its command is never given to compel the discharge of a duty involving the exercise of judgment or discretion, in any specified way, for that would substitute the judgment or discretion of the court issuing the writ for that of the person or corporation against whom the Writ was issued. (People ex rel. Harris v. Commissioners, 149 N. Y. 26, 30, and authorities there cited.) Admitting, then, the facts as found by the jury, there is no basis in law for the issuance of the writ of mandamus. The Legislature created the corporation On 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 cannot interfere except to enforce a duty declared by law. (People v. N. Y., L. E. & W. R. R. Co., 104 N. Y. 58, 67.)
The order should be reversed, with costs.
All concurred, except Hieschberg, J.,' dissenting.
Order reversed, with costs.