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BIRMINGHAM WATER WORKS COMPANY
v. BIRMINGHAM.

SUPREME COURT OF ALABAMA, 1912.

SOMERVILLE, J.

[176 Ala. 301.1]

Respondent has always adequately and satisfactorily supplied the people of Birmingham in general with wholesome water, and has failed to do so only as to the specified residence section on Red Mountain. This section is now thickly settled and built up with about 150 residences of the best type, occupied by about 750 people. Respondent's water mains run into this section, the city has placed about 25 fire hydrants there, and its sewer system has been extended through it, and the dwellings have been connected therewith. The mains are full of water; but, for lack of pressure, the water is unavailable for fire hydrants or sewerage and domestic purposes. Respondent has the money and means to erect a standpipe on Red Mountain, which will adequately supply water for these purposes, and such a structure is thoroughly practicable, in view of the location of respondent's other plants and mains; but, owing to the cost of such a standpipe, and of the double pumpage thereby entailed, respondent would derive no profit from supplying water to the city or to private consumers in this elevated territory.

Respondent voluntarily assumed the duty of an important and essential public service, which was, indeed, its very raison d'être, in return for which it was clothed with sovereign powers and invested with potentially profitable franchises by both state and city. Upon the faithful discharge of this duty depends, as the preamble to its charter declares, "the health and comfort of the citizens of Birmingham," and it cannot justly be permitted to render that service when and where it is found to be profitable, and to omit it when and where it deems the service inconvenient or unremunerative. It would be a narrow and unreasonable construction of the provision for general and continued service to the city and its inhabitants to hold that the equipment required to be originally provided should measure for all time the extent of that service. The object of sections 5 and 7 was evidently to make certain an initial service that would be adequate and satisfactory, as a condition precedent to the operation of the contract and the enjoyment by respondent of its privileges and perquisites. In other words, these requirements were but details of more or less temporary expediency, and not qualifications of respondent's general duty to serve as the exigencies of the future might require.

1 Only parts of the opinion are printed. — ED.

STATE EX REL. HOWIE, DISTRICT ATTORNEY v. BENSON. SUPREME COURT OF MISSISSIPPI, 1914.

[108 Miss. 779.1]

COOK, J., delivered the opinion of the court.

Will the courts under these circumstances refuse to intervene, and compel the successor of the corporation to perform the duties of the corporation? This, we believe, was the precise question presented to the Circuit Court. Mr. Benson bought the franchise of the corporation to do business in Jackson. The corporation took possession of and enjoyed this franchise for several years. The corporation undertook to and did perform the duties of a public service corporation in exchange for the license or franchise to use the property of the city for this purpose. He cannot hold on to the benefits of his purchase without incurring the obligation to perform the duties of the trust. This seems to be made certain when it appears that he refuses to assume the burdens, if burdens there be, because he has entered into a compact with others to do so for the purpose of creating a monopoly - of destroying competition.

There seems to be no conflict in the authorities that courts possess in proper cases the power to compel trustees of a public trust to perform the duties of such trust. Leaving out of view section 910, Code of 1906, it seems clear that Mr. Benson assumed the burdens of an involuntary trustee when he took over the franchise of the corporation, and is declining to use the same for the purpose of creating a monopoly. The apparent conflict in the decisions of the courts upon the power of the courts to compel the performance of legal duties of trustees grows out of the peculiar state of facts in the several cases. In some cases the courts have refused to issue the writ of mandamus because it appeared that the corporation, or trustee, was unable to perform. In other cases the writ was denied because, in the opinion of the courts, to compel the performance of the alleged duty would work a great hardship without a compensating benefit. There is and can be no conflict of judgment that, in proper cases, the courts will and do exercise the power to compel the performance of legal duties. The petition in this case declares a state of facts which justifies the exercise of this extraordinary power.

Reversed and remanded.

1 Only the concluding portion of the opinion is printed. - ED.

ANONYMOUS.

KING'S BENCH, 1623.

[Godbolt, 335, pl. 440.]

FOUR several men were joyntly indicted for erecting and keeping of four several inns in Bathe; It was moved that the indictment was insufficient, because the offence of the one is not the offence of the other, like unto the case in Dyer 19. Where two joyn in an Action upon the Case for words, 't is not good, but they ought for to sever in their actions, because the wrong to the one, is no wrong to the other. DODERIDGE, Justice. One Indictment may comprehend several offences, if they be particularly laid, and then it is in law several indictments: it may be intended that the inns were lawful inns; for it is not laid to be ad nocumentum, and therefore not punishable; but if they be an annoyance and inconvenient for the inhabitants, then the fame ought particularly to appear; otherwise it is a thing lawful to erect an inn. An action upon the case lyeth against an innkeeper who denies lodging to a travailer for his money, if he hath spare lodging; because he hath subjected himself to keep a common inn. And in an action upon the case against an innkeeper he needeth not to shew that he hath a license to keep the inn. If an innkeeper taketh down his signe, and yet keepeth an hosterie, and action upon the case will lie against him, if he do deny lodging unto a travailer for his money; but if he taketh down his signe, and giveth over the keeping of an inn, then he is discharged from giving lodging. The indictment in the principal case is not good, for want of the words (ad Nocumentum) HAUGHTON and LEY, Justices agreed. LEY, If an indictement be for an offence which the court ex officio, ought to take notice to be ad Nocumentum, there the indictement being general, ad nocumentum & contra Coronam & dignitatem, is sufficient, without shewing in what it is ad Nocumentum. But for the inns, it is lawfull for to erect them, if it be not ad Nocumentum, and therefore in such indictements, it ought to be expressed that the erecting of them is ad Nomenentum, &c. and because in this case there wants the words ad Conumentum, the Indictement was quashed. Vi. The Lord NORTH and PRAT'S Case before to this purpose.

NEWS PUBLISHING COMPANY v. SOUTHERN RAILWAY COMPANY ET AL.

SUPREME COURT OF TENNESSEE, 1903.

[110 Tenn. 684.1]

DEFENDANT railway company contracted with defendant Commercial Publishing Company, agreeing to run a special early morning train, carrying only the newspapers of said publisher, in consideration of said. publishing company guaranteeing to it certain revenue from the operation of the train. This train became one of its schedule trains and was advertised as such, and was controlled exclusively by the railway company, which received all the revenues derived from the operation of said train, both in the carrying of passengers and freight.

Complainant, publishing the Memphis Morning News, demanded of defendant railway company the right to ship as freight its packages of newspapers to its several agents at various stations along the line of railway where the train was scheduled to stop, and tendered the usual charges on the same; but said defendant refused to transport said newspapers, alleging as grounds of its refusal, the obligations of its contract with defendant Commercial Publishing Company.

MR. CHIEF JUSTICE BEARD. One of the duties imposed upon a railroad as a common carrier is that it shall deal fairly and impartially with all who seek, as passengers or shippers of freight, to avail themselves of its service. Impressed, as it is, by its grant of franchises, with a trust to the public, this trust can only be discharged by extending equal facilities to each member constituting the public. It fails of its duty, therefore, when discriminating between individuals in like condition, it gives one an advantage in the carriage of his person or property which it refuses to another, and it follows that any contract made by it, by which one or more members of a class are fostered at the expense of or to the detriment of others of the same class, who demand like service, is unenforceable.

Granting that goods not dangerous in their nature and not unfit for shipment are offered at a proper place and time, and that the cost of carriage is tendered, and the railroad has facilities for shipment, then it must accept and transport them. In doing this it "can show no favor, nor make distinctions which will give one employer an advantage over another, either in the time or order of shipment, or in the distance of the carriage, or in the conveniences or accommodations which may be afforded." Hutchinson on Carr., sec. 297; New Eng. Ex. Co. v. 1 The statement is taken from the head note. Only an extract from the opinion is printed. — ED.

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Maine Cent. R. R., 57 Me. 188, 2 Am. Rep. 31; Messenger v. Penn. R. R., 36 N. J. Law, 407, 13 Am. Rep. 457; Union Pac. Ry. Co. v. Goodridge, 149 U. S. 680, 13 Sup. Ct. 970, 37 L. Ed. 986.

These general principles are conceded by the defendants to be sound, but it is insisted they do not control the present case. It is admitted—or it is true, whether admitted or not-that the railway company, as to the train in question, was a common carrier of passengers and their baggage, and of mail and express; but it is contended that it was, by reason of its contract with the Commercial Publishing Company, a private carrier of newspapers, and therefore was under no obligations to admit the newspapers of the complainant on its train.

It is true "a common carrier may become a private carrier or bailee for hire, when as a matter of accommodation or special agreement he undertakes to carry something which it is not his business to carry." Hutchinson on Carr., sec. 44. For example, "if a carrier of produce, running a truck boat, should be requested to carry a keg of silver or a load of furniture, . . . he might justly refuse to receive such freight, except by such an agreement as he might choose to make. . . . But when a carrier has a regularly established business for carrying all or certain articles, and especially if that carrier be a corporation created for the purpose of the carrying trade, and the carriage of the articles is embraced within the scope of its chartered powers, it is a common carrier, and a special contract about its responsibility does not divest it of the character." N. Y. C. R. R. Co. v. Lockwood, 17 Wall. 357, 21 L. Ed. 627. Affirmed.

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