People ex rel. Van Dyke v. Colorado Cent. R. Co.

• Decision Date: 27 June 1890
• Parties: PEOPLE ex rel. VAN DYKE v. COLORADO CENT. R. CO. et al.
• Court: U.S. District Court — District of Colorado

42 F. 638

PEOPLE ex rel. VAN DYKE v. COLORADO CENT. R. CO. et al.

United States Circuit Court, D. Colorado.

June 27, 1890

On the 28th day of August, 1889, there was filed in the district court of Larimer county, in this state, a petition, the material parts of which are as follows:

'Your petitioner, Isaac N. Van Dyke, on behalf of the people of the state of Colorado, respectfully represents unto your honor that he is informed and believes that heretofore to-wit, on the 12th day of May, A.D. 1884, the Colorado Central Railroad Company was a corporation of the state aforesaid; that said railroad extended through and from the city of Fort Collins to the northern line of said state and from said northern line of said state through and to the city of Cheyenne, in the territory of Wyoming, and was then being run and operated under one management from said city of Fort Collins to said city of Cheyenne, aforesaid and was by its being run and operated of great financial yearly value to the plaintiff, the people of said state, which was then, and has been hitherto, and is now, well known to the defendants hereto.'

The petition then alleges that the company mortgaged its road to the defendants Jay Gould and Frederick L. Ames; states that, about the 20th of February, 1879, the Colorado Central Company leased its railroad to the defendant the Union Pacific Railroad Company for the term of 50 years, and sets out the terms of the lease, and avers 'that the leasing of the said Colorado Central Railroad to the Union Pacific Railroad Company was done at the instance of Jay Gould and Frederick L. Ames; that when accomplished it was the selling and leasing of a competing line, and done in violation of the statute laws of the state of Colorado. ' It is averred that for a period of 'five years last past' the defendants have failed and refused to equip, operate, and run that part of the Colorado Central Railroad extending from Fort Collins to the northern line of the state of Colorado, and from thence to the city of Cheyenne, in the territory of Wyoming, and that, by reason of the failure to operate said line of road, 'the people are compelled, when they wish to travel to Cheyenne, to go upon and use another line of railroad operated by the Union Pacific Railroad, making the distance much longer, with loss of time, change of trains, and other inconveniences too numerous to enumerate. ' It is alleged the people have been damaged by the neglect and refusal to operate the line of road mentioned in the sum of $500,000, for which a judgment is asked; and the petition concludes with a prayer that the defendant may, by writ of mandamus, be required and compelled to put said line of road in repair and operation, and to operate the same.

On the petition of the defendant the Union Pacific Railroad Company, a corporation of the United States, the cause was removed into this court on the authority of Pacific Railroad Removal Cases, 115 U.S. 1, 5 S.Ct. 1113. An alternative writ of mandamus, substantially in the terms of the petition, issued out of this court. The respondents filed a general demurrer and answer to the alternative writ.

Among other defenses, the following are set up in the answer:

'That the relator in this case has no right or authority whatever to make or file the petition herein, or to maintain this action. That this action purports to relate to a line of railroad from Fort Collins, in the state of Colorado, to Cheyenne, in the territory of Wyoming, and that this court has no jurisdiction over the subject-matter stated in the petition and writ herein. Admit that there may at one time have been a lease made by the Colorado Central Railroad Company to the Union Pacific Railroad Company, but deny that it is as stated in said petition and writ; and allege that, if there ever was any such lease, that the same was never in effect or operative on said companies; and further allege that the said Colorado Central Railroad Company had no right or authority to lease, and the said Union Pacific Railroad Company had no right to take a lease of, said premises, and that, as a matter of fact, it never did take the same; and that such lease, if any there is or was, is not now, and never has been, in force or effect. That defendants are not, neither is either of them, under any obligation whatever to construct, maintain, or operate said railroad under their charter or charters or otherwise. That there is no necessity whatever for the repairing, maintaining, and operating of said railroad described in said petition and writ. That the people of Fort Collins and vicinity have direct and adequate railway connections with said Cheyenne by railroad constructed, operated, and maintained between Fort Collins and said Cheyenne by way of Greeley, and thence directly to Cheyenne, and that they have not been damaged in any way or manner whatsoever. That said railroad between said Fort Collins and Cheyenne runs through a very thinly settled country, and there are very few settlers along the line of said railroad, and very little local travel, and that the same could not, when operated, and could not now, if repaired, maintained, and operated, be made to pay the running expenses thereof; and this is especially true from the fact that all of the business is now done without any inconvenience whatever over and by way of the line of railroad above described.'

Testimony has been taken from which it appears that the line of road from Fort Collins to Cheyenne was operated until the year 1882, when trains were discontinued, and have not since been run; that the country between Fort Collins and Cheyenne is sparsely settled, and that the road between these points could not be made to pay running expenses; that the citizens of Fort Collins and vicinity can reach Cheyenne by rail via the Greeley, Salt Lake & Pacific and Denver Pacific Railroads,-- the distance by these roads from Fort Collins to Cheyenne being 79 miles, and by the line of the Colorado Central, as formerly run, 48.1 miles. The general direction of the Denver Pacific and the Colorado Central between Fort Collins and Cheyenne is the same, but to reach the Denver Pacific from Fort Collins passengers have to pass over the Greeley, Salt Lake & Pacific Railroad, a distance of 24 miles, in a south-easterly direction, to Greeley.

Isaac N. Van Dyke, for the relator.

Teller & Orahood, for respondents.

CALDWELL J.,

(after stating the facts as above.) The writ of mandamus is no longer a prerogative writ, but it is now regarded as in the nature of an action by the relator against the respondent for the enforcement of a legal right or duty which cannot be fully or adequately enforced in any other mode. It is used only to compel action and enforce the performance of a pre-existing duty. One who invokes its powers must show a clear legal right to have the act performed, and performed in the manner prayed for, and by the person or corporation sought to be coerced. Every fact essential to the exercise of the jurisdiction must be distinctly stated, and the relator's right to the relief he seeks must be clearly made to appear by the averments of the petition and the alternative writ. It must be made to appear that the writ will be effectual as a remedy, and that the court granting it has the jurisdiction to enforce compliance with its commands. Whether a writ of mandamus shall be issued is in every case a matter resting largely in the discretion of the court, and depends upon all the surrounding facts and circumstances. Mor. Priv. Corp. Sec. 1134.

These well-settled principles must be applied in the decision of the case at bar. The circuit court of the United States can exercise no original jurisdiction by mandamus, except when the jurisdiction is specially conferred by an act of congress, as was done by the act of March 3, 1873, (17 St 509.) U.S. v. Railroad Co., 2 Dill. 527, 3 Dill. 515, and 91 U.S. 343. In those courts the writ is granted only in aid of an existing jurisdiction, but this cause was removed from a state court into this court; and it has been decided by Mr. Justice MILLER on the circuit that a petition for a mandamus in a state court is 'a suit of a civil nature at law,' within the meaning of the act of congress of ...