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 Ham-burgh, 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 Hew Hamburgh contains twelve hundred 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 after 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 sufficient size and capacity to accommodate passengers arriving and departing on said road at the village of Hamburgh, 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 such quantities of
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, 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 of 1850, chap. 140), and its amendments. Under that act many companies 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 (§§ 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 (§ 24), and even appropriate to its purposes the land of a town or county or the State (§ 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
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 of 1882, chap. 353), created a commission of “ competent persons,” required 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 prelimi
It may say, as 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 do those arising in Connecticut, where the law makes the order of the commissioners effectual by authorizing its enforcement (State v. N. H. & N. R. R. Co.,
In the next place, as 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. 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 cai-s for the ti’ansportation of passengers and property, at regular tunes, to be fixed by public notice, a2id furnish sufficient accommodations for the transportation of all such passengers and p2’operty as shall, within a reasonable time previous thereto, be 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 f]-eight for that train, and shall take, transport and discharge such passengers and property at and from and to such places, on the due pay2ne:it of fare or freight legally authoi’ized therefor, and shall be liable to the party aggrieved, in an action for damages, for any neglect or refusal in the p2*emises,” and it must do some other specified things for their accommodation. The statute is peremptory as to many matters, but it nowhere says that for its intending passengers, or waiting freights, cover by building of any kind shall be provided. As to that the statute imports an authority only, not a command, to be availed of at the option of the
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 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 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 freighfcors 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 (§ 28, subd. 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
The order appealed from should be reversed and the motion denied, with costs.
Ordered accordingly.