3

4

2. So also in another case, where the undertaking was not yet entered upon, it was held that the company under such circumstances were bound to execute the work, from the time when such act receives the royal assent. And in another case, where by the return to the writ it appeared that the company had no sufficient funds to build the road, and that the period for exercising their compulsory powers in obtaining lands had expired, and that the building of the road had thus become impossible, it was held that a mandamus must nevertheless be awarded. Writs of peremptory mandamus issued in each of the foregoing But the first and last of these three cases came before the Exchequer Chamber, and were heard at great length before all the judges, and an elaborate opinion delivered by Jervis, Ch. J., of the C. B., reversing the judgment of the Q. B., chiefly on the ground that there was no implied obligation upon the company, either before or after entering upon the work, to complete it.5

cases.

6

3. This question arose and was examined in the courts of New York, somewhat, in a late case, where it was held that a railway corporation, which has completed its road between the termini named in the charter, forfeits its franchise by abandon

3

3 Reg. v. The Lancashire and Yorkshire Railw. Co., 16 Eng. L. & Eq. 327. * Reg. v. Great. Western Railw. Co., 16 Eng. Law & Eq. 341. Eq. 341. The extreme to which this very questionable doctrine was pushed in this case, seems to have proved, as is not uncommon in such cases, the point of departure, for its entire overthrow and abandonment.

5 York & North Midland Railw. Co. v. Reg., 18 Eng. L. & Eq. 199; Great Western Railw. Co. v. Same, Id. 211. These decisions, rendered (in April 1853), one of which is given at length in the last section, seem to have been acquiesced in, and they certainly conform to what has ever been regarded as the law upon that subject in this country. And the same principle was maintained in Scottish Northeastern Railw. v. Stewart, 3 McQueen's H. L. Cases, 382; s. c. 5 Jur. N. S. 607. But see Lind v. Isle of Wight Ferry Co., 7 Law Times, N. S. 416; Mason v. Stokes Bay Pier & Railw. Co., 11 W. R. 80. It is here held, that where a notice from a railway company to take lands for the purposes of their undertaking has been followed by an award fixing the amount of purchase and compensation-money, the court has jurisdiction to compel the company to complete the purchase. S. P. Metropolitan Railw. v. Woodhouse, 11 Jur. N. S. 296; s. c. 34 L. J., Ch. 297. But see Quicke ex parte, 13 W. R. 924; s. c. 12 L. T. N. S. 113.

The People v. The Albany & Vermont Railw., 24 N. Y. Court of Appeals, 261; s. c. 37 Barb. 216.

ing or ceasing to operate a part of the route. The remedy, however, in such cases, is not by injunction at the suit of the public, but by mandamus or indictment at the election of the state, or by proceeding to annul the corporation.

It is here said, that it seems that the corporation owes a duty to the public to exercise the franchise granted to it, and that it cannot abandon a portion of its road and incur a forfeiture at its mere pleasure.

* SECTION IV.

In what Cases this is the proper Remedy.

1. Where the act is imperative upon the company to build road.

2. Mandamus more proper remedy than injunction.

3. Commissioners of public works not liable to this writ.

6. Cannot be substituted for certiorari, when that is taken away.

7. Requiring costs to be allowed.

8. Other instances of its application.

9. Lies where the duty is clear, and no other remedy.

4. Public duties of corporations may be so 10. Not awarded to control legal discretion.

enforced.

5. Facts tried by jury. Instances of this remedy.

*

11. Does not lie to try the legality of an elec

tion.

12. Lies to compel transfer of stock.

§ 193. 1. But although it must be regarded as now definitively settled that the writ will not lie, in any case, coming within the categories laid down in the foregoing opinion of Jervis, Ch. J., yet where the act of the legislature is imperative upon the company to build their road, this duty will still be enforced by mandamus.1

1

Hodges on Railways, 665, in note; Great Western Railw. Company v. Reg. Excheq. Ch. 1853. 18 Eng. Law & Eq. 211. The land-owners are so far interested in the building of a railway as to be entitled to bring the petition, and different owners of land may join. Reg. v. York and North Midland Railw., 16 Eng. L. & Eq. 299. But it has been held, that a land-owner could not apply for an injunction to restrain a railway company from applying for an act of the legislature repealing a former act, and to restrain them from paying back deposits. Hodges on Railways, 657, note; Anstruther v. East Fife Railw., 1 McQueen, 98. Nor can a land-owner maintain a suit in equity against a company for not completing their line, in pursuance of their act of incorporation. Heathcote v. North Staffordshire Railw. Company, 6 Railw. C. 358. The Lord Chancellor here held, reversing the opinion of the Vice-Chancellor, that in such

2. But it has been held that such public duty cannot be enforced by injunction, at the suit of the attorney-general.2 Corporations have for a very long time been compelled, by writ of mandamus, to perform duties imposed by statute.3 A turnpike company was compelled to fence its road where it passed through the land of private persons, and it was held no excuse that the company had made satisfaction for the damages awarded to the land-owner, or that, having completed their road, they had no funds with which to build the fences.4

3. But it has been held, that Commissioners of Woods and Forests, who gave notice that they intended to take certain lands, in order to ascertain if they could be obtained at a certain price, and finding, by the claim of the land-owners, that the land could not be obtained, so as to bring the amount to be expended within the legislative limit, and the funds at the disposal of the

case, a court of equity will leave the party to his legal rights. Reg. v. Dundalk & Enniskillen Railw., 5 L. T. N. S. 25; Lind v. Isle of Wight Ferry Co., 7 L. T. N. S. 416; State v. Hartford & New Haven Railw., 29 Conn. R. 538. And mandamus is the proper remedy by which to compel a canal company to bridge over a private way which it intersects. Habersham v. Savannah &c. Canal Co., 26 Georgia R. 665.

2

Attorney-General v. Birmingham & Oxford Junction Railw., and two other Companies, 7 Eng. L. & Eq. 283.

3 The Hartford & New Haven Railway Company was chartered to construct and operate a railroad from Hartford to the navigable waters of the habor of New Haven. A steamboat company was afterwards chartered to run in connection with it to New York; and the railroad and steamboat line constituted a route that was of great convenience to the public. After the construction of the road and the use of it in connection with the steamboat line for several years, the railroad company constructed a track diverging from its original track at a point a mile and a half from tide-water and running to the station of the New York & New Haven railway company, in the city of New Haven, and discontinued the running of its passenger trains to its original terminus at tide-water. This change incommoded travellers who wished to pass by the steamboat route, of whom there were many. Held, that a mandamus ought to be issued to compel the company to run passenger trains to its original terminus, and that the mandamus was properly applied for by the attorney for the state. State v. Hartford & New Haven Railw., 29 Conn. R. 538.

* Reg. v. Trustees Luton Roads, 1 Q. B. 860. Lord Denman, Ch. J., said, "The law orders these parties to perform the duty if they build the road." Patteson, J., said, “If they had not adequate funds they ought not to have made the road."

commissioners, abandoned their notice, could not be compelled by mandamus to take the land, such commissioners acting in a public capacity, although the rule is otherwise as to private railway companies.5

*4. Public duties of corporations have been enforced by mandamus, as repairing the channel and banks of a river, which, by their charter, they had been permitted to alter.6 Also to make alterations in the sewers of a city; and where, in the act of parliament, this duty is defined, "to make such alterations and amendments in the sewers as may be necessary in consequence of the floating of the harbor," it was held this was a proper form for the command of the writ. Also to restore a highway, intersected by a railway, to its former width.8

6

5. In the English practice, questions of fact, arising on a man

Reg. v. Commissioners of Woods and Forests, 15 Q. B. 761; Ante, § 88.

Reg. v. Bristol Dock Company, 1 Railw. C. 548, 2 Q. B. 64, 2 Railw. C. 599. A return that the law imposed no such duty, but that they had performed it, "as near as circumstances permitted," is insufficient, as being a traverse of the law, or an evasion of the writ. Reg. v. Caledonian Railw., 3 Eng. L. & Eq. 285.

7 The King v. The Bristol Dock Company, 6 Barn. & Cress. 181. Mandamus is the appropriate remedy to compel a delinquent municipal corporation to discharge its liabilities under a subscription to stock of, or a loan of its credit to, a railroad company. Commonwealth v. Perkins, 43 Penn. St. 400. A declaration for a mandamus to levy a rate to pay a debt is good, though it does not state the amount of the debt. Ward v. Lowndes, 6 Jur. N. S. 247; s. c. 29 L. J., Q. B. 40; Ellis & Ellis, 940. But see McCoy v. Harnett County, 5 Jones Law, 265. But in Austin, ex parte, 13 Law Times, N. S. 443, it was held that the court will not in the first instance grant a rule for a mandamus calling on a public order to make a rate for the payment of costs due to a successful appeal against a rate which had been quashed at quarter sessions. After the order for payment of costs is found good, if it is still disobeyed, a mandamus may be called for. Austin ex parte, supra. See People v. Mead, 24 N. Y. R. 114.

Mandamus will lie to compel a town committee to pay their damages to landowners for lands taken for a highway. Minhinnah v. Haines, 5 Dutch, 388; State v. Keokuk, 9 Iowa R. 438. And see State v. County Judge, 12 Iowa R. 237; State v. Davenport, Id. 335; Knox County v. Aspinwall, 24 How. (U. S.) 376; Uniontown v. Commonwealth, 34 Penn. St. 293; Commonwealth v. Pittsburg, Id. 496.

8

• Reg. v. Birmingham & Gloucester Railw., 2 Railw. C. 694; 2 Q. B. 47; Reg. v. Manchester & L. Railw., 1 Railw. C. 523; 3 Q. B. 528; 2 Railw. C. 711. But in some cases it is requisite the duty should be strictly defined. Reg. v. The Eastern Counties Railw., 3 Railw. C. 22; 2 Q. B. 569,

damus, are tried by a jury. So a railway company may, by mandamus, be required to establish an uniform rate of tolls.10 And also to proceed in the appraisal of land damages, after giving notice to treat.11 So the sheriff, or officer who holds the inquisition, may be compelled to proceed where he has no legal excuse, as where such officer assumed to direct a verdict against the claim, on the ground the applicant could not recover.12

*6. But where the statute in terms takes away the remedy by certiorari, the court will not indirectly accomplish the same thing by mandamus.13

7. A mandamus was awarded requiring the presiding officer to allow costs in a case before him,14 for assessing land damages, including witnesses, attendance by attorney at the inquest, conferences and briefs, but not the expenses of surveyors, as such.

9 Reg. v. London & Birmingham Railw., 1 Railw. C. 317; Reg. v. Manch. & Leeds Railw., 2 Railw. C. 711; Reg. v. Newcastle-upon-Tyne, 1 East, 114. 10 Clarke v. L. & N. Union Canal, 6 Q. B. 898. But in this case judgment was given for defendant, by reason of the "insufficiency of the writ." 11 Ante, § 88, 99, et seq. and cases there cited.

12 Walker v. The London & Blackwall Railw., 3 Q. B. 744. In Carpenter v. Bristol, 21 Pick. 258, which was where county commissioners refused to assess damages sustained in consequence of constructing a railway, on the ground that the party applying did not own the land, and also refused to grant a warrant for a jury to revise their judgment, as required by R. S. ch. 39, § 56: Held, that the party was entitled to a jury to revise, and that a mandamus would lie to compel the commissioners to grant a warrant.

The court say, "Where application was made to county commissioners to estimate damages caused by the laying out of a railroad, turnpike, or highway, the duty required of them would be a judicial duty. If they refused or neglected to perform it, this court would issue a mandamus commanding them to do it, that is, to exercise their judgment on the matter. But when they had performed this duty, it being within their discretion, no other tribunal would have a right to interfere with or complain of the manner in which they had performed it." So also in Chicago, Burlington, & Quincy Railw. v. Wilson, 17 Ill. R. 123, it was held, that upon application to a judge, to appoint commissioners to condemn land for the use of a railway, he is compellable to act, if a case is made under the statute. His duty is ministerial, and not judicial, and a mandamus was accordingly awarded.

13 The King v. The Justices of West Riding of Yorkshire, 1 Ad. & Ell. 563. 14 The King v. The Justices of the City of York, 1 Ad. & Ell. 828; Reg. v. Sheriff of Warwickshire, 2 Railw. C. 661.