NEW YORK. 



615 



skill has shown that highways may be created for 

 public use of such form and kind that the best and 

 most advantageous enjoyment by the public can only 

 be secured through the ownership, management, and 

 control of corporate bodies created for that purpose, 

 and the people of the State are not restricted from 

 availing themselves of the best modes for the carriage 

 of their persons and property. There is nothing in 

 the Constitution hostile to the adoption and use by 

 the State of any and every newly developed form or 

 kind of travel and traffic which have a public use for 

 their end and aim, and giving to them vital activity 

 by the use of the power of eminent domain. When 

 the earliest Constitution of our State was adopted, 

 railroads were unknown. The public highways of 

 the State were its turnpikes, ordinary roads, and nav- 

 igable waters. The exercise of eminent domain in 

 respect to them was permitted by the Constitution 

 for the same reasons that adapt it now to the greatly 

 improved methods of travel and transportation, and 

 in making this adaptation there is no enlarged sense 

 given to the language of the Constitution so long as 

 its inherent purpose the creation only of public uses 

 be faithfully ooserved. 



The judge proceeded to show that as a re- 

 sult of the public character of the functions of 

 a railroad corporation, it was not only obliged 

 to furnish facilities and accommodations, but, 

 as an agency of the State, to fulfill the purpose 

 for which it was chartered. As to the peculiar 

 relation of the company as a common carrier, 

 he said : 



On other public highways every person may be his 

 own carrier, or he may hire whomsoever he will to do 

 that service. Between him and such employ^ a spe- 

 cial 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 

 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 man- 

 damus 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 prop- 

 erty of a body corporate which alone has power to 

 use it, in a manner which of necessity requires that 

 all management, control, and use, 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 a 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. ... It is the duty of the 

 State to make and maintain public highways. ... It 

 is not the duty of the State to be or become a com- 

 mon carrier upon its public highways, but it may in 

 some cases assume that duty, and whenever it law- 

 fully does so the execution of the duty may be en- 

 forced against the agents or officers upon whom the 

 law devolves it. 



It was next shown from various authorities 

 that railroad companies could be compelled to 

 furnish appliances, etc. These obligations, 

 said Judge Davis, are no more binding than is 

 the duty to carry freight and passengers. This 

 duty is, in fact, " the ultima ratio of their ex- 

 ist 3nce, the great and sole public good, for the 

 attainment and accomplishment of which all 

 the other powers and duties are given or im- 

 posed. 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 it is created to do, but it is 



then powerless to compel the doing of the 

 thing itself." As to the point that the State 

 is not injured by the refusal of a corporation 

 to perform its duty, and has, therefore, no in- 

 terest in the question, Judge Davis said, it was 

 no test that the State suffers no direct pecu- 

 niary injury. The sovereignty of the State is 

 injured whenever any public function vested 

 by it in any person, natural or artificial, for the 

 public good, is not used or is misused or is 

 abused, and it is not bound to inquire whether 

 some one or more of its citizens has not there- 

 by received a special injury for which he may 

 recover damages in his private suit. Such an 

 injury wounds the sovereignty of the State, 

 and thereby, in a legal sense, injures the entire 

 body politic. The State in such a case as this 

 has no other adequate remedy. The fact that 

 individuals may have private remedies for the 

 damage done them does not preclude the State 

 from its remedy by mandamus. Again, the 

 provisions of the Railroad Act, as amended by 

 chapter 133 of the Laws of 1880, which give 

 corporations power to regulate the time and 

 manner in which passengers and property shall 

 be transported, can not be construed to justify 

 a general or partial suspension of receiving and 

 transporting freight. 



Regarding the interference of the strike, the 

 judge said : '' According to the statement of 

 the case, a body of laborers acting in concert 

 fixed a price for their labor, and refused to 

 work for less. The respondents fixed a price 

 for the same labor, and refused to pay more. 

 In doing this neither did an act violative of 

 any law, or subjecting either to any penalty. 

 The respondents had a lawful right to take 

 their ground in respect of the price to be paid 

 and adhere to it if they chose, but if the con- 

 sequences of doing so were an inability to ex- 

 ercise their corporate franchises, to the great 

 injury of the public, they can not be heard to 

 assert that such consequence must be shoul- 

 dered and borne by an innocent public who 

 neither directly nor indirectly participated in 

 their causes." If, however, it had been shown 

 that a strike of the skilled laborers had been 

 caused or compelled by some illegal combina- 

 tion or organized body which held an unlawful 

 control of their actions, and sought through 

 them to enforce its will upon the companies, 

 and that the latter in resisting such unlawful 

 efforts had refused to obey unjust and illegal 

 dictation, and had used all the means in their 

 power to employ other men in sufficient num- 

 bers to do the work, and that the refusal and 

 neglect complained of had grown out of such 

 a state of facts, a very different case would 

 have been presented for the exercise of the 

 discretion of the court as well as of the Attor- 

 ney-General. 



The controversy with the employes of the 

 railroads furnished no valid excuse, in the 

 opinion of the Court, for neglect or refusal to 

 perform their public duties. The conclusion 

 was as follows : 



