State ex rel. Mattoon v. Republican Valley Railroad Co.

• Decision Date: 12 August 1885
• Citation: 24 N.W. 329,17 Neb. 647
• Parties: THE STATE OF NEBRASKA, EX REL. FRANK W. MATTOON, v. REPUBLICAN VALLEY RAILROAD CO
• Court: Nebraska Supreme Court

24 N.W. 329

17 Neb. 647

THE STATE OF NEBRASKA, EX REL. FRANK W. MATTOON, v. REPUBLICAN VALLEY RAILROAD CO

Supreme Court of Nebraska

August 12, 1885

ORIGINAL application for mandamus.

Peremptory writ issued, with costs.

Burke & Prout, for relators.

I. Railroad corporations have their existence in this and other states only by virtue of an act of the legislature. These corporations are not created for the personal aggrandizement of the corporators, it is only upon the theory that their works will be of benefit to the people at large that their chartered rights are given them. Special powers and privileges are granted to railroad corporations by the state as a portion of sovereignty, such as the exercise of the right of eminent domain. The duty of government to establish and maintain highways, to facilitate public travel and transportation at public expense, has been recognized and discharged by all civilized governments from the earliest times. In the progress of events it was found that this function of government could with safety and convenience be entrusted to private individuals associated together under grant from government, the corporation giving the public the right to use the highway built by it in consideration of the franchise received. Among the instrumentalities to which have been delegated this function of government, railroads stand pre-eminent. Indeed they have come to be a public necessity open to the public use without discrimination. The corporation upon payment of fare is under the same obligation to render the required service for the public that the state would be if railroads were free and conducted by state authority. Nor does the ownership of railroads, whether it be in the state or a private corporation, affect the nature of their use, since in either case the functions to be exercised and the use to be subserved are public. While the law affords railroad corporations adequate and complete protection in the exercise of their chartered rights, it holds them to a strict performance of the public duties enjoined upon them, as a consideration for the rights and powers thus granted.

Railroad charters are contracts made by the legislature in behalf of every person interested in anything to be done under them. In consideration of this franchise they receive from the state railroad corporations agree to perform certain duties toward the public. Being creatures of the law, they are entrusted with the exercise of sovereign powers to subserve public necessities and uses; and are bound to conduct their affairs in furtherance of the public objects of their creation. The duties enjoined upon the corporation are ministerial duties, to do and perform what the public convenience and necessity reasonably require. Railroads are public highways. Const., Art. 11, § 4. 2 Potter on Cor., §§ 471-478, and cases cited. Railroad Com. v. P. & O. C. R. R., 63 Me. 280. McDurfee v. R. R. Co., 52 N.H. 447. Commonwealth v. Eastern R. R. Co., 103 Mass. 258. State of Conn. v. New Haven & Northampton Co., 37 Ct., 153. Id., 43 Ct., 353. State of Conn. v. The Hartford & New Haven R. R. Co., 29 Ct., 538. Rogers L. & M. Works v. Erie R. R. Co., 20 N.J.Eq. 385. P. & R. I. R. R. v. Mining Co., 12 Am. L. R. (N. S.), 272. People v. N. Y. & H. R. R. R. Co., 9 Eng. and Am. R. R. cases, 1. Sanford v. R. R. Co., 24 Pa. 381. McCoy v. C. I. St. L. & C. R. R., 13 Fed. Rept., 3. Munn v. Illinois, 94 U.S. 113. Messenger et al. v. Pa. R. R. Co., 36 N.J.L. 407. Id., 37 N.J.L. 531. Leavenworth Co. v. Miller, 7 Kans., 479. C. & N. W. R. R. Co. v. People, 56 Ill. 367. Hallenbeck v. Hand, 2 Neb. 411. The State v. S. C. & P. R. R. Co., 7 Neb. 357. The State, ex rel. Webster, v. Neb. Telephone Co. , 22 N. W. R., 237.

II. The power of determining what the duties are that are owed by a railroad company to the public, as well as the enforcement of their performance, is vested in the appropriate tribunals of the state. It is not within the discretion of the directors ultimately to determine what these public ministerial duties are, or the manner in which they are to be performed. To hold so would be to concede to the directors the power to promote the private interests of the corporation by subverting the public objects to be subserved by the charter. The power, both of determination and enforcement, is necessarily vested in the courts. Railroad Com. v. P. & O. C. R. R. Co., 63 Me. 280. 2 Potter on Cor., § 476. The State, ex rel. Webster, v. Neb. Telephone Co., 22 N. W. R., 237. Munn v. Illinois, 94 U.S. 113. Commonwealth v. Easton R. R. Co., 103 Mass. 258. State v. Hartford & N. H. R. R. Co., 37 Ct., 153. B. & M. L. v. Brooks, 60 Me. 569. State v. The H. & N. H. R. R. Co., 29 Ct., 538. State v. N. H. & Northampton Co., 43 Ct., 353. Allen v. Joy, 60 Me. 124. People v. N. Y. & H. R. R. R. Co., 9 Eng. and Am. R. R. cases, 1. McCoy v. C. I. St. L. & C. R. R., 13 Fed. R., 3. C. & N. W. R. R. Co. v. People, 56 Ill. 367.

III. Railroad companies in accepting their franchises accept them with all the advantages and disadvantages incident thereto. They know, or should know, before undertaking their work, all that they will be obliged to contend with, and the probable expense to be incurred, and they can not, after having assumed their part of the contract made with the state, abandon or refuse to perform any part of the duty they owe to the public. R. R. Com. v. P. & O. C. R. R. Co., 63 Me. 269. C. & R. I. R. Co. v. Mining Co., 12 Am. L. J. (U.S.), 282. C. & N. W. R. R. Co. v. The People, 56 Ill. 376. 1 Redfield on Railways, 683, § 3. Id., § 6 and cases cited. The People, ex rel., v. N. Y. & H. R. R. R. Co., 9 Eng. & Am. R. R. cases, 1. State v. S. C. & P. R. R., 7 Neb. 374. State v. N. H. & Northampton Co., 37 Ct., 153. Atty. Gen. v. Erie & K. R. Co., 20 N. W. Rept., 730.

IV. The withholding of such facilities from Blue Springs which are given to all other places on respondent's road is an illegal discrimination. Comp. Stat., 385, Art. V., §§ 1-4. C. & N. W. Ry. Co. v. People, 56 Ill. 365. Sanford v. Railroad Co., 24 Penn., 382. Rogers L. & M. Works v. Erie R. R. Co., 20 N.J.Eq. 385. Messenger et al. v. Pa. R. R. Co., 7 Vroom., 410. Boxendale v. G. W. Ry. Co., 5 C. B. (N. S.), 309. Vincent v. C. & A., 49 Ill. 33. Sanford v. R. R. Co., 24 Pa. 381. N. Eng. Exp. Co. v. Me. Cent. R. Co., 57 Me. 188. McDurfee v. R. R. Co., 52 N.H. 430. Camblass v. R. & R. R. R. Co., 4 Brews., 613. Railroad Com. v. P. & O. C. R. R., 63 Me. 280. Hays v. Pa. Co., 12 Fed. Rept., 309. P. & R. I. R. R. v. Mining Co., 12 Am. L. R. (N. S.), 272. State, ex rel. Webster, v. Neb. Telephone Co., 22 N. W. Rep., 237.

V. That it is a duty owed by railroad companies to the public to stop their trains, establish depots, furnish side tracks, etc., for the proper transaction of business, at all places upon their road and as frequently as will furnish reasonable accommodation to the public, is not only shown by the very nature of their office as common carriers, and by the declaratory words of our constitution making them public highways and declaring that "their liability as common carriers shall not be limited," but is it not also clearly expressed by an act of our legislature? Comp. Statutes, Ch. 16, § 121.

Is the language of this statute to be misunderstood when it says railroad corporations "shall furnish sufficient accommodations for the transportation of passengers and freight," or can there be any mistake as to the meaning of the words, "shall take, transport, and discharge all passengers to and from * * * all places * * * upon their said road?"

Is not the language of this section of our statutes abundantly comprehensive to cover the case at bar, and if enforced will it not give the relief asked for?

Marquett & Deweese, for respondent.

1. Railroad has a right to establish its depots and stations, and has the right to determine where they shall be. Comp. Stat., Ch. 16, §§ 81, 121. A., T. & S. F. R. R. v. Denver, 110 U.S. 667.

2. The question is a legislative one, not judicial, as to whether the company should establish a depot at Blue Springs or not. Cases cited supra. Commonwealth v. Eastern R. R., 103 Mass. 258. State v. New Haven R. R., 43 Conn. 353.

3. Authorities cited by relator have reference to where a railroad company abandoned a portion of the line or abandoned a depot once established.

4. The court has no jurisdiction. Hall v. Chesapeake R. R., 12 Amer. & Eng. R. R. Cases, 41. 1 Rorer on Railroads, 20. Blanchard v. R. R. Company, 31 Mich. 43. Marble v. Ripley, 10 Wall., 339. Bagley v. Railroad, 2 Phila., 44.

OPINION

COBB, CH. J.

This is an original application to this court for a writ of mandamus requiring the respondent, the Republican Valley Railroad Company, to build within the corporate limits of the city of Blue Springs a depot, and to lay down the necessary side tracks and switches, and to stop its trains thereat for the proper transaction of business. The relator alleges that that part of respondent's railroad which runs from Beatrice in a south-easterly direction to a point in section 29, township 2, range 7 east, where it intersects the respondent's main, or east and west, line, was built in the years 1880-1; that it was built and runs through the said city of Blue Springs; that at the time of the construction of said railroad Blue Springs was a village of one thousand inhabitants; that it contained five stores carrying general stocks of merchandise, two stores carrying stocks of hardware, two lumber yards, four implement houses, one pump and wind-mill house, three blacksmith shops, three drug stores, two hotels, two livery stables, two harness shops, two barber shops, two restaurants, two millinery shops, two printing offices, three land agents, one bank, with an average...