power, has no bearing upon the question whether the road is a public highway. It bears only upon the mode of use, of which the legislature is the exclusive judge.'

66

All public highways are subjects of general State jurisdiction, because their uses are the common property of the public. This principle of the common law is in this State of universal application. As to the class of public highways known as railroads, the common law is fortified by the express conditions of the statutes creating or regulating or controlling them.

"The general railroad act of this State may now be regarded as the general charter of all such corporations. It authorizes the organization of corporations for the constructing, maintaining and operating' of railroads for public use,' and it imposes upon them the duty to furnish accommodations for all passengers and property, and to transport all persons and property on payment of fare or freight." (Laws of 1850, chap. 140, §§ 1, 36.) These words are a brief summary in respect of the duties imposed upon such corporations by all the provisions of the act. Those duties are consigned to them as public trusts, and as was said in Messenger v. The Pennsylvania Railroad Company (36 N. J., 407), although in the hands of a private corporation, they are still sovereign franchises, and must be used and treated as such; they must be held in trust for the general good.' This relation of such a corporation to the State is forcibly expressed by Emmons, J., in Talcott v. Township of Pine Grove (1 Flippin, U. S. Circuit Ct. Rep., 144) The road once constructed is, instanter, and by mere force of the grant and law, embodied in the governmental agencies of the State and dedicated to public All and singular its cars, engines, rights of way and property of every description, real, personal and mixed, are but a trust fund for the political power, like the functions of a public office. The judicial personage-the corporation created by the sovereign power expressly for this sole purpose and no other-is, in the most strict technical and unqualified sense, but its trustee. This is the primary and sole legal political motive for its creation. The incidental interest and profits of individuals are accidents, both in theory and practice.'

use.

"The acceptance of such trusts on the part of a corporation, by the express and implied contracts already referred to, makes it an agency of the State to perform public functions which might otherwise be devolved upon public officers. The maintenance and control

he

of most other classes of public highways are so devolved, and the performance of every official duty in respect of them may be compelled by the courts, on application of the State, while private damages may also be recoverable for individual injuries. The analogy between such officials and railroad corporations in regard to their relations to the State, is strong and clear, and so far as affects the construction and proper and efficient maintenance of their railways will be questioned by no one. It is equally clear, we think, in regard to their duty as carriers of persons and property. This springs sharply out of the exclusive nature of their right to do those things. On other public highways every person may be his own carrier; or may hire whomsoever he will to do that service. Between him and such employee a special and personal relation exists, independent of any public duty, and in which the State has no interest. In such a case, the carrier has not contracted with the State to assume the duty as a public trust, nor taken the right and power to do it from the State by becoming the special donee and depositary of a trust. A good reason may, therefore, be assigned why the State will not by mandamus enforce the performance of his contract by such a carrier. But the reason for such a rule altogether fails when the public highway is the exclusive property of a body corporate, which alone has power to use it, in a manner which of necessity requires that all management, control and user for the purposes of carriage must be limited to itself, and which, as a condition of the franchise that grants such absolute and exclusive power over and user of a public highway, has contracted with the State to accept the duty of carrying all persons and property within the scope of its charter, as a public trust. The relation of the State to such a body is entirely different from that which it bears to the individual users of a common highway, as between whom and the State no relation of trust exists; and there is small reason for seeking analogies between them. It is the duty of the State to make and maintain public highways. That duty it performs by a scheme of laws, which set in operation the functions of its political divisions into counties, towns and other municipalities, and their officers. It can and does enforce those duties whenever necessary through its courts. It is not the duty of the State to be or become a common carrier upon its public highways; but it may, in some cases, assume that duty, and whenever it lawfully does so, the execution of the duty may be enforced against the agents or officers upon whom the law devolves it. It may grant

its power to construct a public highway to a corporation or an individual and with that power its right of eminent domain in order to secure the public use; and may make the traffic of the highway common to all on such terms as it may impose. In such case it is its duty to secure that common traffic, when refused, by the authority of its courts. (People v. Collins, 19 Wend. 56; People v. Commissioners of Salem, 1 Cow. 23.) Or it may grant the same powers of construction and maintenance with the exclusive enjoyment of use which the manner of use requires, and if that excludes all common travel and transportation it may impose on the corporation or person, the duty to furnish every requisite facility for carrying passengers and freight, and to carry both in such manner and at such times as public needs may require. Why is that duty, in respect of the power to compel its performance through the courts, not in the category of all others intrusted to such a body? The writ of mandamus has been awarded to compel a company to operate its road as one continuous line (Union Pacific R. R. Co. v. Hall, 91 U. S. 343); to compel the running of passenger trains to the terminus of the road (State v. H. and N. H. Ry. Co., 29 Conn. 538); to compel the company to make fences and cattle guards (People ex rel. Garbutt v. Rochester State Line R. R. Co., 14 Hun, 373; S. C., 76 N. Y. 294); to compel it to build a bridge (People ex rel. Kimball v. B. and A. R. R. Co., 70 N. Y. 569); to compel it to construct its road across streams, so as not to interfere with navigation (State v. N. E. R. R. Co., 9 Richardson, 247); to compel it to run daily trains (In re New Brunswick, etc., R. R., 1 P. & B. 667); to compel the delivery of grain at a particular elevator (Chicago and Northwestern R. R. Co. v. People, 56 Ill. 365); to compel the completion of its road (Farmers' Loan and Trust Company v. Henning, 17 Am. Law Reg. (N. S.) 266); to compel the grading of its track so as to make crossings convenient and useful (People ex rel. Green v. D. and C. R. Co., 58 N. Y. 152; N. Y. C. and H. R. R. R. Co. v. People, 12 Hun, 195; S. C. 74 N. Y. 302; Indianapolis R. R. Co. v. The State, 37 Ind. 489); to compel the re-establishment of an abandoned station (State v. R. R., 37 Conn. 154); to compel the replacement of a track taken up in violation of its charter (Rex v. Severn and Wye Ry. Co., 2 Barn. & Ald. 646); to prevent the abandonment of a road once completed (Talcott v. Pine Grove, supra, 1 Flippin, 145); and to compel a company to exercise its franchise (People v. A. and V. R. R. Co., 24 N. Y. 261). These are all ex

press or implied obligations arising from the charters of the railroad companies, but not more so than the duty to carry freight and passengers. That duty is, indeed, the ultima ratio of their existence; the great and sole public good for the attainment and accomplishment of which all the other powers and duties are given or imposed. It is strangely illogical to assert that the State, through the courts, may compel the performance of every step necessary to bring a corporation into a condition of readiness to do the very thing for which it is created, but is then powerless to compel the doing of the thing itself.

"We cannot bring our minds to entertain a doubt that a railroad corporation is compellable by mandamus to exercise its duties as a carrier of freight and passengers; and that the power so to compel it rests equally firmly on the ground that that duty is a public trust, which having been conferred by the State and accepted by the corporation may be enforced for the public benefit; and also upon the contract between the corporation and the State, expressed in its charter or implied by the acceptance of the franchise (Abbott v. Johnstown R. R. Co., 80 N. Y. 31); and also upon the ground that the common right of all the people to travel and carry upon every public highway of the State has been changed in the special instance, by the legislature for adequate reasons into a corporate franchise, to be exercised solely by a corporate body for the public benefit, to the exclusion of all other persons, whereby it has become the duty of the State to see to it that the franchise so put in trust be faithfully administered by the trustee."

As to railroads, the legal ground on which rests this right of state control, is comparatively simple, and is easily comprehended. Railroad companies get their existence, and their property, largely under grant from the state.

But in Munn v. People of Illinois, there arose a most interesting and novel question, as to the right of the State of Illinois to fix by statute the rates of compensation to be charged by the owners of grain elevators for the use of those elevators, it being the conceded fact that the elevators were private property, owned by private individuals, acquired by ordinary private purchase. The legislature of the State of Illinois had passed a statute fixing the

maximum rates to be charged for the use of the elevators in the storage and transportation of grain in transit from the interior to the seaboard, and making it an indictable misdemeanor to charge any rate above the rates so fixed. There had been an indictment and conviction in the State court below for such an overcharge; and from the judgment on such conviction an appeal was taken to the United States Supreme Court. The position taken by the defense, which especially comes under our notice, was that the enforcement of this statutory regulation "deprived" the owners of the elevators" of their property without due process of law." It appeared in the case, though the Supreme Court appeared to give no considerable weight to the point, that a provision of the Illinois constitution (Art. XIII., sec. 5) required all railroad companies receiving and transporting grain in bulk or otherwise to deliver the same at any elevator to which it might be consigned, that could be reached by any track that was or could be used by such company, and that all railroad companies should permit connections with elevators to be made with their tracks; so that all these elevators might be reached by the cars on their railroads. The inference was fair, that the elevators in question had been connected with different railroads by virtue of these constitutional provisions. It also appeared, that the elevators in question, with a limited number of other similar ones, had virtually the entire control of the transit of grain in bulk through the city of Chicago. The decision of the Supreme Court, sustaining the conviction in the State court, went on the ground of the public nature of the employment, that the owners of the warehouses exercised "a sort of public office," that their property, though conceded to be private property, was "devoted to a public use." To give an adequate idea of the reasoning of the court, it will be well here to give an extract from the opinion. It is as follows: (a)

"This brings us to inquire as to the principles upon which this