PATERSON GAS LIGHT CO. v. BRADY.

SUPREME COURT OF NEW JERSEY, 1858.

[27 N. J. L. 245.]

ELMER, J. The question arises in this case, whether the Paterson Gas Light Company was bound, upon general principles, or as a duty imposed upon them by their charter, to furnish gas to all buildings on the lines of their main pipes, upon the applicants therefor agreeing to pay the fixed price, and to comply with such reasonable regulations as the company had established, as the court held in their charge, and as is assumed in the plaintiff's state of demand, and was insisted on in the argument before the court.

That no such duty arises out of the mere facts that the company made gas, laid pipes in the streets, and actually furnished it to many persons, may be safely assumed. Inn-keepers and common carriers are bound to receive all who properly apply to them, but this is a duty peculiar to them. I fully concur with what is said by Judge Bronson, delivering the opinion of the court in Wells v. Steam Nav. Co., 2 Comst. 209. "Other bailees and persons engaged in other employments are not, like common carriers and inn-keepers, bound to accept employment when offered; nor, like them, tied down to a reasonable reward for their services. They are at liberty to demand an unreasonable price before they will undertake any work or trust, or to reject employment altogether." And see Redfield on Railways, 293-94, and note.

But the court, in the charge, rested this duty on the terms of the act of incorporation. The language is, "they were incorporated with the special powers of their charter for the purpose of lighting the streets, buildings, manufactories, and other places in this city, not such particular streets, buildings, and mills as the caprice of their stockholders or officers may elect."

Upon looking into the charter, (Acts of 1825, p. 102,) it appears to be simply an act of incorporation, giving the company "power and authority to manufacture, make, and sell gas, for the purpose of lighting the streets, buildings, manufactories, and other places situate in the said town of Paterson," and for that purpose to purchase, take, and hold real estate, and to make contracts; provided, that the said real estate shall not exceed what may be absolutely necessary to effect the purposes of said company, and that no public or private land shall be dug into, or in any way injured or defaced, without permission being first obtained in writing from the owner or owners thereof. No monop

oly or special privileges are granted, except that the company is entitled to recover double damages for any wilful injury done to the pipes or other works.

The state of demand does not assume, nor was it insisted on in the argument, that the charter imposes upon the company the duty of supplying gas to all the town, but only to persons having buildings on the line of their pipes. In my opinion it imposes no duty of either description, but simply empowers the incorporation to do what private individuals might have done without any charter. There is nothing in the act indicating any intention to impose any duty that would not have devolved on an individual erecting gas works; nor is there anything to prevent another company, or any individual who can obtain the permission of the city and owners of the land, from setting up a rival manufacture, and placing pipes alongside of those belonging to the company. Most of the acts incorporating gas companies do, what this does not, authorize the company, in express terms, to place their pipes in the public streets; but I am not aware that any of them impose the express duty of furnishing gas to all the persons demanding it, or to any of them. The Paterson company is authorized to make and sell gas, which, in the absence of any indication to the contrary, implies that they may fix their own price, and choose their own customers, like any other manufacturer. If the duty of furnishing gas to those requiring it was meant to be imposed, it would doubtless be expressed, and not be left to mere inference. If it is to be inferred, what is to be the limit? Why have not all the inhabitants of the town the same right to demand it as those having buildings on the streets along which the pipes are placed? The charter sets forth the general purpose of lighting all the streets and buildings, and the court below seems to have held that the company has no choice in the matter. But what company in the state, or elsewhere, could have ventured to assume such a responsibility as that?

The language of the charter is throughout permissive, and not compulsory. The company may organize, may make and sell gas or not, at their pleasure; and I see no more reason to hold that the duty of doing so is meant to be imperative, than to hold that other companies incorporated to carry on manufactures, or to do any other business, are bound to serve the public any further than they find it to be their interest to do so. It was earnestly insisted, on the argument, that the community have a great interest in the use of gas, and that companies set up to furnish it ought to be treated like inn-keepers and common carriers, and that, if no precedent can be found for such a decision, this court ought to make one. But that there is no authority for so holding in England or America, where companies have been so long incorporated for supplying water and gas to the inhabitants of numerous towns and cities, affords a strong presumption that there is no principle of law upon which it can be supported.

Had the plaintiff averred that the company had held out to the persons occupying buildings on the streets along which the pipes are laid, that it was ready to furnish gas to those providing the requisite fixtures and accepting the prescribed terms, and that he had done this, and that in consequence of a breach of a contract, thus or otherwise entered into, he had suffered damages, the case would have been very different. But this is not the nature of his claim. He claimed and has recovered damages and it would seem exemplary damages, simply on the ground that it was the duty of the company to furnish gas on the streets where the pipes are laid, to all persons demanding it, and offering to pay a reasonable price. Assuming this principle, it was left to the jury to say whether one of the rules of the company was reasonable. Being of opinion that the state of demand discloses no good cause of action, and that the court erred in the charge, I think the judgment must be reversed.

There is also another error in the proceedings. It appears that, before the hearing of the appeal, the court discharged the jurors in attendance from two townships, without drawing them, as required by the 28th section of the act relative to juries. Nix. Dig. 385. When the appeal was called, a jury was demanded, and the sheriff having returned a panel, the defendant below objected, and the objection being overruled, the jury was sworn. The correctness of this ruling can only be maintained by holding that when the sheriff returns a panel in the Court of Common Pleas for the trial of an appeal, as required by the 48th section of the small cause act, he is not required to draw them from the box, but may return a special panel. The act relative to juries, whether considered as contemporaneous with the small cause act, or as subsequent, according to its actual date, applies to all jury cases not specially excepted, and includes appeals. The language is unqualified, and any other construction would be inconvenient, if not impracticable. The uniform practice has been to draw jurors in such cases. To depart from this practice will be to introduce a needless exception from the general policy of the law, designed to secure an impartial jury.

POTTS, J., concurred.

LOUISVILLE, CINCINNATI & CHARLESTON RAILROAD COMPANY v. CHAPPELL.

COURT OF ERRORS OF SOUTH CAROLINA, 1838.

[Rice, 383.]

RICHARDSON, J. This court has weighed the argument so well presented on the part of the appellants, and appreciate its force.

The practical power confided to the railroad company by their charter, is great; and, from its very nature, such power might be abused or perverted, and landholders annoyed. Because the route of this great commercial way is, from necessity, left to the understanding, skill and discretion of the company; and their authority might be practically enforced, with too little consideration for individual justice, or human feelings. But, for any such abuse of power, the laws supply ample remedy. An independent jury is a refreshing sight and sure refuge in every instance, and is secured by the charter; and for continued abuse, or misuse, any charter may be repealed. But when the legislature have confided express power, it is not for this court to anticipate abuses and offer to restrain them, when our judicial province might be hereafter required in their supervision and correction. All powers, great and small, may be made oppressive. Yet, still, our necessities require them to exist in some tribunal.

If the railroad route had been given for a common highway, and surveyors named to locate its track through the entire State, and contractors hired to construct such road, with the emolument of toll gates, provided for compensation, the objections offered would be of similar character to those offered in the argument for the present defendants There would be no difference in principle or degree.

The true substantial difficulty felt by the court, is in coming to the conclusion that the railroad is to be put on the footing and character of a highway, and is erected, not for private, but for such general purposes, as to render it an institution for such public purposes. But, according to the view taken in the circuit decision, that the application of the eminent domain of government is, from its essential nature, very various; and to be made according to the successive exigencies of the State, it may be rationally assumed, that railroads, although of recent origin, have already become of incalculable public importance: That the enlarged ends and objects of this great railroad especially, is, for the transportation and intercourse, commercial and social, of several different States, whose interests are to be ever regarded, and the mutual confidence that belongs to such a work sacredly fulfilled. This characteristic is irreconcilable with the proper conception of a mere private way.

Again: Railroads have been recognized as highways in other States, with whose adjudications upon great subjects of commerce and reciprocal advantage, a liberal comity ought to be observed throughout the States: and the same great objects steadily kept in view by all who value railroads, a new moral cement of the American Union, as well as the useful vehicles of our vast and increasing internal commerce: and thus uniting in their natural operation pecuniary profit with moral fitness, and the politic establishment of so many independent States.

May not railroads, then, be fairly considered, in character and objects, (and ours more especially,) as international, and therefore public highways?

With such sentiments, and for such purposes, we are bound to consider the great ends of our own railroad system, and to inquire, under their guidance, whether the eminent domain of government may not be fairly and rationally applied for its advancement, in the very way pointed out by the present charter of the Louisville, Cincinnati and Charleston Railroad Company. In such an instance, we should especially require, that the charter shall be clearly unconstitutional, before we put it in the power of any one freeholder to arrest the progress of so great a work of usefulness and high considerations. It is not enough that the human mind may balance on the subject.

But take another point of view, which I cannot help thinking of lasting importance. Such a railroad as ours, should be held as a highway on account of its great objects: and for the same reasons, to be kept under public control. Is it not wise to hold such a company, as the guardians, or lessees, of a great highway, endowed with a public franchise yet subject to the control which their purposes indicate as necessary and proper for such an establishment, and which the general right to use the road absolutely requires?

Such a road must be held as a part of the public domain, farmed out to individual men, for its practical administration and order alone and if placed aloof from such control, it would inevitably become suspected of partiality, and odious to the people.

Since the argument before this court, our attention has been turned to the case of Beekman v. The Saratoga and Schenectady Railroad Company. It is found in Paige's Ch. Rep., 3 vol., 45, and is a learned decision of Chancellor Walworth, of New York. It will be satisfactory to the parties concerned in interest, to know, that the following points were ably discussed and decided in that case: 1. "Acts authorizing railroad companies to take private property, for the purposes of the road, upon paying full compensation, are constitutional." 2. "Railroads are public improvements; and the legislature can appropriate private property for such improvements, or authorize a corporation thus to appropriate it, upon full compensation to the owner." 3. "The public have an interest in the use of the railroad and the company are liable to respond in damages if they refuse to transport an individual, or his property, without reasonable excuse, upon being paid the