its agency. This is somewhat questioned by some of the earlier English cases.1

private undertakings he says: 'When I look upon these acts of Parliament I regard them all in the light of contracts made by the legislature on behalf of every person interested in anything to be done under them, and I have no hesitation in asserting that, unless that principle be applied in construing statutes of this description, they become instruments of greater oppression than anything in the whole system of administration under our constitution. Such acts of Parliament have now become extremely numerous, and from their number and operation they so much affect individuals, that I apprehend those who come for them to Parliament do, in effect, undertake that they shall do and submit to whatever the legislature empowers and compels them to do, and that they shall do nothing else; that they shall do and forbear all that they are hereby required to do and forbear, as well with reference to the interest of the public as with regard to the interest of individuals.' There is nothing in that language to which it is necessary to make the least exception; indeed it is nothing more than an illustration of the obligatory nature of the duty imposed by acts of Parliament, which do impose a duty with reference to other persons. In that case the statute had secured to Mr. Blakemore the surplus water, and had commanded the company to do certain things that he might enjoy it. In discussing whether Mr. Blakemore's right under the statute was affected by his right before the statute, his lordship might well say he considered the statute the origin of Mr. Blakemore's right in the light of a contract, and the statute then under discussion containing express words of command, he might well add, that those who come for such acts of Parliament do, in effect, undertake that they shall do and submit to whatever the legislature empowers and compels them to do. As we understand them, the words used by Lord Eldon in no respect conflict with the view we take of this case ; but if they mean that words of permission only, when used in the class of cases under consideration, should receive a construction different from their ordinary meaning, because, if construed otherwise, they might work injustice, with great respect for his high authority, we dissent from that proposition. We agree with my brother Alderson, who, in Lee v. Milner, 2 Y. & Coll. 611, said: 'These acts of Parliament have been called parliamentary bargains, made with each of the land-owners. Perhaps more correctly they ought to be treated as conditional powers given by Parliament to take the lands of the different proprietors through whose estates the works are to proceed. Each land-owner, therefore, has the right to have the power strictly and literally carried into effect as regards his own land, and has the right also to require that no variations shall be made to his prejudice in the carrying into effect a bargain between the undertakers and any one else.' 'This,' he adds, 'I conceive to be the real view taken of the law by Lord Eldon, in the case of Blakemore v. The Glamorganshire Canal Company.' There remains but one further view of the case to be considered, and

1

Vaughn v. Company of Gunmakers, 6 Mod. 82; S. P. Comb. 45; White's case, 6 Mod. 18.

2. But a different rule, as to requiring the office to be of a public nature to justify the writ of mandamus to restore the that we have partly disposed of in the observations we have already made; but inasmuch as Lord Campbell proceeded on this ground only in the court below, although it was not much relied upon before us in the argument, we have, out of respect for his high authority, most carefully examined it, and are of opinion that the mandamus cannot be supported, on the ground that the railway company, having exercised some of their powers and made a part of their line, are bound to make the whole railway authorized by their statutes.

"It is unnecessary here to determine the abstract proposition, that a work which, before it is begun, is permissive, is, after it is begun, obligatory. We desire not to be understood as assenting to the proposition of my brother Erle, that many cases may occur where the exercise of some compulsory powers may create a duty to be enforced by mandamus; and, on the other hand, we do not say that such may not be the law. If a company, empowered by act of parliament to build a bridge over the Thames, were to build one arch only, it would be well deserving consideration whether they could not be indicted for a nuisance in obstructing the river, or for the non-performance of duty in not completing the bridge. It is sufficient to say that in this case there are no circumstances to raise such a duty, if such a duty can be created by the acts of plaintiff himself. The plaintiffs in error have made the principal portion of their line, and they have abandoned the residue for no corrupt motive, but because Beverley has already sufficient railway communication, and because the residue of the line passes through a country thinly populated, and if made would not be rumunerative. But it is said that the railway company are not in the situation of purchasers of land, with liberty to convert it to any purpose, or to allow it to be waste; that they are allowed to purchase it only for a railway, and having acquired it under the compulsory power of the act, there must be an obligation upon the company to apply the land to that, and to no other purpose. Subject to the qualification in the act, this is undoubtedly true. Having acquired the lands of particular land-owners, the company could not retain them by merely laying rails on the lands so taken, and we agree it never was intended that the land-owners should be left with a high mound or a deep cutting running through their estate, and leading neither to nor from any available terminus. The precaution against such a wasteful expenditure of capital may, perhaps, safely be left to the self-interest of the company, but if such work were to be done, it would not be a practicable railway, and after five years the powers of the act would expire, and the land revest in the original proprietor. It is true that he would sustain some inconvenience without the corresponding advantage of railway communication, but in the mean time he would have received full compensation in the market value of the land, and for all damage by severance or otherwise, and would receive back the land on more reasonable terms. To be a railway it must have available termini. When the statutes passed, all persons supposed the termini would be York and Beverley; and if the argument be well founded, and the company are bound, if they take the land upon any portion of

party to it, seems to have obtained since the case of Rex v. Baker,2 and the only proper inquiry now is whether the plaintiff has any such valuable and permanent interest in the office or place as to justify the granting of the writ.3

the railway, to complete the whole line, it would seem to follow that one of the proprietary, by compelling the company to take his land on the line from Market Weighton to Cherry Burton, would thus entitle himself to a mandamus to compel them to make the line from Cherry Burton to Beverley, and the acts having expired, to apply to Parliament for a renewal of their powers for that purpose. But although the termini were originally intended to be York and Beverley, it is plain that the legislature contemplated the possibility of the line being abandoned or being only partially made, because in the one case the powers of the act were to cease, and in the other they were partially continued. An option, therefore, is given to some one. By the course taken the Court of Queen's Bench has exercised that option, and said the line is to be made, not to Beverley, but to Cherry Burton. In our opinion that option is left to the company, and the company having bonâ fide made an available railway over the land taken, the obligation to the land-owner has, in that respect, been fulfilled. The cases upon this subject are very few, and the absence of authority is very striking, when we remember how many acts have passed in pari materia, not only for railways, but also for bridges and turnpike roads. Notwithstanding the numerous occasions on which such proceedings might have been taken, and the manifest interest of land-owners to enforce their rights, no instance can be found of an indictment for disobeying such a statute, or of a mandamus for the purpose of enforcing it. If correctly reported, Lord Mansfield determined this point in The King v. The Proprietors of the Birmingham Canal, 2 Wm. B. 708, for he says the act imports only an authority to the proprietors, not a command. They may desert or suspend the whole work, and, à fortiori, any part of it. On the other side, the language of Lord Eldon, in Blakemore v. The Glamorganshire Canal Company, is referred to as an authority for this mandamus. In our opinion it does not bear that construction, although it appears that the Court of Queen's Bench took a different view of that authority in the case of The Queen v. The Eastern Counties Railw. Company, 10 Ad. & Ell. 531, and was inclined to act upon it, and award a mandamus. The writ was subsequently withheld in that case on another ground, but Lord Denman seems to have been of opinion that on a fit occasion a mandamus ought to go. That, and the recent cases in the Queen's Bench, now under discussion, are the only cases which bear upon the subject. We feel that Lord Denman and Lord Campbell are high authorties upon this or any other matter, and are both equally entitled to the respect of this court; but we are bound to pronounce our own judgment, and, after the most careful consideration, are of opinion that the judgment ought to be for the plaintiffs in error. The result is, that the judgment of the Court below must be

4

3. It was held, in an early case in Massachusetts, that this remedy could not be rendered available in cases where the office only extended to one year, and the question arising upon the return to the writ was one of fact, the traverse to which could not, according to the course of practice in that court, be determined before the term of the office would expire. "The cases, therefore," say the court," in which the writ of mandamus may be an adequate remedy, in admitting or restoring to office, seem to be where the office is holden for a longer term than a year, or where the return to the writ will involve merely a question of law, so that, admitting the facts to be true, a peremptory mandamus ought to go."

4. It was accordingly held, in a very late English case,5 that, as mandamus to reinstate a person in office only lies where the office and its tenure are of a permanent nature, it is not an available remedy for the secretary of a benefit society, who had been dismissed by a resolution of a meeting of the society. The court here seem to consider that the office must be of such a character that the incumbent has such a vested and permanent interest in the same as that the court could render the operation of the writ of mandamus effective towards restitution, and where its operation is not liable to be countervailed by any counter agency.

*SECTION III.

Mandamus to compel Company to complete their Road.

1. English courts have required this upon a

now, unless under peculiar circum

stances.

general grant. 2. But these cases overruled. Not required 3. Recent case in New York court of appeals.

§ 192. 1. The English courts at one time, it would seem, regarded a parliamentary grant to a railway company as equivalent * to an agreement on their part to build the road. To make this intelligible to the American reader it is necessary to keep in mind *the English parliamentary rules, in regard to passing acts

Howard v. Gage, 6 Mass. R. 462, 464.

• Evans v. The Heart of Oak Benefit Society, 11 Jur. N. S. 163.

*446-448

*

of incorporation of such companies. The promoters are required to prepare * plans and sections, and maps of their roads, with the line delineated thereon, so as to show its general course and direction, * and to deposit copies of the same with the clerks of the peace, in the office of the Board of Trade, the Private Bill Office, in certain cases at the Board of Admiralty, and with the parish clerk of each parish through which the proposed line passes, before parliament * assembles, and the plans are usually referred to in the charter as defining the course of such railway, and thus become binding upon the company, although not so regarded unless so referred to.1 Specific notice too is to be served upon each land proprietor whose land is to be taken.1 There is therefore some plausibility in regarding the obtaining of a charter under these circumstances as a binding obligation on the part of the company that they will build the road. No act of incorporation of a railway is passed in the British parliament until three fourths of the estimated outlay is subscribed. Accordingly, in some of the earlier cases upon this subject, after considerable discussion and examination, it is laid down, that when a railway company have obtained an act of parliament, reciting that the proposed railway will be beneficial to the public, and that the company are willing to execute it, and giving them compulsory powers upon landholders for that purpose, and in pursuance of such powers the company have taken land, and made part of their line, they are bound by law to complete such line, not only to the extent which they have taken lands, but to the furthest point. And this is so * held in some cases, although the statute enacts only that it shall be lawful for them to make the railway.

1

Hodges on Railways, 18, and notes; North British Railw. Company v. Tod, 4 Railw. Cas. 449; Reg. v. The Caledonian Railw. Co., 3 Eng. L. & Eq. 285. 2 The Queen v. The York & North Midland Railw. Co., 16 Eng. L. & Eq. 299. This case was decided by a divided court, Erle, J., dissenting, whose opinion ultimately prevailed in the Exchequer Chamber. Lord Campbell, Ch. J., and the majority of the court, founded their opinion chiefly upon the celebrated judgment of Lord Eldon, in Blakemore v. The Glamorganshire Canal Navigation, 1 Mylne & Keen, 154. See also Reg. v. Ambergate, &c. Railw. Co., 23 Law Times, 246; Reg. v. Eastern Counties Railw., 1 Railw. C. 509. But the writ was held defective in this case, in not alleging that the company had aban doned or unreasonably delayed the work. Reg. v. Same, 2 Railw. C. 260. *449-453

VOL. II.

18