116 AMERICAN LAW AS TO PRIVATE EMPLOYMENTS.

York Revised Statutes, and similar statutes in other States, mere contracts of combination, in private employments, whether between employers or employees, and whether they concerned labor or merchandise, had been emancipated from the unreasonable and impracticable fetters of antiquated mediæval legislation.

CHAPTER IV.

THE COURSE OF THE AMERICAN LAW AS TO PUBLIC

EMPLOYMENTS.

THE course of the American law as to public employments has been the same as that of the English law; that is, there has been a remarkable increase in the degree of state control exercised over such employments.

The reason of that fact is to be found in the great increase in the number of such employments, and in the closeness of their relations with the ordinary life of the community. In the early history of this country, as in that of England, such employments were comparatively few in number, and of comparatively slight importance. The state control exercised over them, though well established in law, was very slight, as matter of fact.

With the construction of railroads, followed by the invention of the telegraph, and the introduction of water companies, gas companies, lighting companies, and others of the same character, the necessity of state supervision and control over the use of the properties involved in such enterprises, though the properties were in law private properties, became very manifest.

The necessity of such control was recognized at an early period. In the case of railroads, inasmuch as their property was largely acquired by the exercise of the right of eminent domain, it was natural, that at the outset there should be regulations by statute as to the use of that property.

We find, therefore, a large number of statutes, in the different States, which regulate the use of railroad properties, and the performance of the duties of railroad companies to the public.

We find also a considerable number of cases, where the courts have intervened by the writ of mandamus, to compel the performance by those companies of those duties to the public.

It is foreign to the purpose of this treatise to go into a detailed examination of the many cases in which this state control is exercised over public employments. Our purpose here is simply to show the difference between the tendencies and growth of the law in the two classes of employments, public and private.

It is sufficient, therefore, as to railroad companies, to quote from a very exhaustive and able opinion of Mr. Justice Davis(a) which gives a statement of the legal ground on which this right of state control rests, together with an enumeration of cases in which the law courts have compelled by mandamus the performance by railroad companies of their public duties.

tance.

"The question presented by the motion is one of signal imporIt is whether the people of the State can invoke the power of the courts to compel the exercise by railroad corporations of the most useful public functions with which they are clothed. If the people have that right, there can be no doubt that their attorneygeneral is the proper officer to set it in effective operation on their behalf. (1 R. S., 179, § 1; Code of Civ. Proc., § 1993; People v. Halsey, 37 N. Y., 344; People v. Collins, 19 Wend. 56.)

"The question involves a consideration of the nature of this class of corporations, the objects for which they are created, the powers conferred and the duties imposed upon them by the laws of their creation, and of the State. As bodies corporate, their ownership may be and usually is altogether private, belonging wholly to the holders of their capital stock; and their management may be vested. in such officers or agents as the stockholders and directors under the provisions of law, may appoint. In this sense they are to be regarded as trading or private corporations, having in view the profit or advantages of the corporators. But these conditions are in no just sense in conflict with their obligations and duties to the public. The objects of their creation are from their very nature, largely different

(a) People v. New York Central, etc., R. R. Co., 28 Hun, 543.

from those of ordinary private and trading corporations. Railroads are, in every essential quality, public highways, created for public use, but permitted to be owned, controlled and managed by private persons. But for this quality the railroads of the respondents could not lawfully exist. Their construction depended upon the exercise of the right of eminent domain, which belongs to the State in its corporate capacity alone, and cannot be conferred, except upon a public use.' The State has no power to grant the right of eminent domain to any corporation or person for other than a public use. Every attempt to go beyond that is void by the constitution; and although the legislature may determine what is a necessary public use, it cannot by any sort of enactment divest of that character any portion of the right of eminent domain which it may confer. This characteristic of public use is in no sense lost or diminished by the fact that the use of the railroad by the corporation which constructs or owns it, must, from its nature, be exclusive. That incident grows out of the method of use which does not admit of any enjoyment in common by the public. The general and popular use of a railroad as a highway is therefore handed over exclusively to corporate management and control because that is for the best and manifest advantage of the public. The progress of science and skill has shown that highways may be created for public use, of such form and kind that the best and most advantageous enjoyment by the people can only be secured through the ownership, management and control of corporate bodies created for that purpose, and the people of the State are not restricted from availing themselves of the best modes for the carriage of their persons and property. There is nothing in the Constitution hostile to the adoption and use by the State of any and every newly developed form or kind of travel and traffic, which have a public use for their end and aim, and giving to them vital activity by the use of the power of eminent domain.

"When the earliest Constitution of our State was adopted, railroads were unknown. The public highways of the State were its turnpikes, ordinary roads and navigable waters. The exercise of eminent domain in respect of them, was permitted by the Constitution for the same reasons that adapt it now to the greatly improved methods of travel and transportation; and in making this adaptation, there is no enlarged sense given to the language of the Constitution, so long as its inherent purpose-the creation only of public use-be faithfully observed.

use.

"These principles are abundantly sustained by authority. In Bloodgood v. The Mohawk and Hudson River Railroad Company (18 Wend., 9), the court of last resort in this State first announced them, and affixed to railroads their true character as public highways. It is there declared that the fact that railroad corporations may remunerate themselves by tolls and fares, 'does not destroy the public nature of the road, or convert it from a public to a private If it is a public franchise and granted to the company for the purpose of providing a mode of public conveyance, the company, in accepting it, engages, on its part, to use it in such manner as will accomplish the object for which the legislature designed it (pages 21, 22). And in Olcott v. The Supervisors (16 Wall, 678, on page 694), the Supreme Court of the United States adjudged 'that railroads, though constructed by private corporations and owned by them, are public highways, has been the doctrine of nearly all the courts ever since such conveniences for passage and transportation have had any existence. Very early the question arose whether a State's right of eminent domain could be exercised by a private corporation created for the purpose of constructing a railroad. Clearly it could not, unless taking land for such a purpose by such an agency is taking land for public use. The right of eminent domain nowhere justifies taking property for private use. Yet it is a doctrine universally accepted, that a State legislature may authorize a private corporation to take land for the construction of such a road, making compensation to the owner. What else does this doctrine mean, if not that building a railroad, though it be built by a private corporation, is an act done for a public use? And the reason why the use has always been held a public one is that such a road is a highway, whether made by the government itself, or by the agency of corporate bodies, or even by individuals, when they obtain their power to construct it from legislative grant. Whether the use of a

railroad is a public or a private one, depends in no measure upon the question who constructed it or who owns it. It has never been con'sidered a matter of any importance that the road was built by the agency of a private corporation. No matter who is the agent, the function performed is that of the State. Though the ownership is private, the use is public. . . The owners may be private companies, but they are compellable to permit the public to use their works in the manner in which such works can be used. That all persons

may not put their own cars upon the road, and use their own motive