ported was that of Rex v. Taylor, 2 Strange, 1167, where, "upon affidavits of the defendant keeping great quantities of gunpowder to the endangering the church and houses where he lived, an information was granted." This is the entire report of the case. What the evidence showed, or the result of the case, is not reported. The affidavit was the keeping of the gunpowder to the endangering of the church and houses. No doubt the information was properly granted, and if the proof showed it was so kept as to endanger "the church and houses" it was a nuisance. Another case was that of Rex v. Williams, in which the defendant was convicted of a nuisance for keeping 400 barrels of gunpowder near the town of Bradford. How this powder was kept is not stated. Upon these cases, for they are the cases cited to support the text, Russell, supra, announced the proposition: "It seems that erecting gunpowder mills or keeping magazines near a town is a nuisance at common law;" and this view of the principle is emphasized in the case of Crowder v. Tinkler, 19 Ves. 616. In the latter case an injunction was prayed for. The court ascertained from an ex parte investigation that the defendant might keep as much as 1,200 pounds safely, for the demands of trade, and made an order allowing this quantity to be kept until a trial could be had by a jury. It is important to notice the real issue be submitted to the jury. It was not merely whether the defendant manufactured or stored large quantities of gunpowder in the place where it was charged to have been done, upon which the court would pronounce as a conclusion of law that such use would be a nuisance per se; but the jury were required to determine the question of danger. And in the case of Reg. v. Lister, Dears. & B. Cr. Cas., supra, the direct question arose as to whether the finding of the jury should be limited merely to the keeping of the explosive as charged, or should further find that such keeping was dangerous; and it was held that under proper instructions it devolved upon the jury to determine not only the fact of keeping the explosive, but whether the facts showed such keeping was dangerous to property or life. These cases are in line with the rule declared in New York and in other courts; and that is that when gunpowder is so manufactured or stored as to endanger life or property, such use is a nuisance. Whether it is so or not is a question of fact, dependent upon the "place, manner, and surrounding circumstances," to be ascertained by the jury. In Whart. Cr. Law, § 2376, it is said: "The mere keeping of a large quantity of gunpowder in a house, near dwelling houses and a public street, does not constitute a nuisance; but keeping it negligently and improvidently does." In Wood, Nuis. § 140, it is said: "In determining the question the locality, the quantity, and the manner of keeping will all be considered, as well as the nature of the explosive, and its liability to accidental explosion," and, as supporting the general principle, the cases of People v. Sands, 1 Johns., supra, Myers v. Malcolm, 6 Hill, supra, and Heeg v. Licht, supra, are cited as authorities. The question came before the court in the case of Dumesnill v. Dupont, 18 B. Mon. 800, 68 Am. Dec. 750, upon a bill filed to abate the keeping of a powder house in which large quantities of powder were kept. The answer of respondents averred that "their magazine is well constructed, and is protected against accidents by secure fencing, lightning rods, and by the constant presence of a trusty man; that it stands in a sparsely settled neighborhood," etc. These statements were proven. The evidence was conflicting as to the effects of an explosion. The question upon which the case was determined was whether the keeping of the powder house in which large quanti. ties of powder were stored was a nuisance per se. Referring to the opinion of Chief Justice Kent in the case of People v. Sands, supra, the court declared that "the point had been conclusively settled by very high judicial authority." The further statement is made "that the only adjudged case we have met with in which the principle seems to have been differently settled is that of Cheatham 'v. Shearon, 1 Swan, 213, 55 Am. Dec. 734, supra," and it declared that "the principles and reasoning upon which the decision rests are opposed to the unbroken current of modern authority, English and American, upon the subject." In the case of Wright v. Railway Co., 27 Ill. App. 200, after discussing the liability of parties for damages resulting from keeping explosive materials, the court uses the following language: "We are content with the rule that the keeping of explosives unsafely guarded in such quantities as to be dangerous to persons and property, near a frequented street or other public place, or in the vicinity of the residences or places of business of others, under circumstances that threaten calamity to the person or property of others, the consequences thereof being an explosion of such articles, which causes damage to the person or property of another, gives the latter a right of action to recover from the person keeping the explosive such damages as would not have happened in their absence;" citing Myers v. Malcolm, 6 Hill, supra, and Cooley, Torts, 607. In the case of Cook v. Anderson, 85 Ala. 99, 4 South. Rep. 713, the court used the following language: "Keeping explosive substances in large quantities in the vicinity of dwelling houses or places of business is ordinarily regarded a nuisance, whether so or not being dependent upon the locality, the quantity, and the surrounding circumstances." What was dependent "upon the locality, the quantity, and the surrounding circumstances?" There is but one answer, and that is whether "the keeping of explosive substances in large quantities in the vicinity of dwelling houses or places of business" was a nuisance. Again, the terms, "the locality, the quantity, and the surrounding circumstances," are identical with those used in Heeg v. Licht, 80 N. Y. 579, supra, and no doubt were taken from it or from Wood, Nuis. § 140, and used in the same sense. This question came before us again in the case of Collins v. Railroad Co., 104 Ala. 390, 16 South. Rep. 140, where the principle is stated as follows: "The fact that defendant had in its warehousə 1,200 pounds of powder is not of itself such evidence of negligence as entitles the plaintiff to recover. While it may be said that the keeping of large quantities of explosive material in a building in a populous town or city may be a nuisance, yet the fact that it is such or not must depend on the locality, quantity of material stored, and the circumstances. Negligence in keeping it, or in the manner of its keeping, is requisite to impose a liability to answer in damages for injuries caused by an accidental explosion or fire." After a most careful examination of the common law text books and decisions, we have no doubt of the correctness of our conclusion in the foregoing cases, and which exactly accords with the law as declared in People v. Sands, supra. Steam power, gas, electricity, dynamite, gunpowder are in daily use, and have become indispensable to the convenience of the public, and for the public'defense. Invention of man and advancement in science have enabled the manu. facturer of or dealer in these articles to provide the public or the individual with almost, if not altogether, absolute protection against danger or burt from explosion. And, even had the manufacturing and stor age of gunpowder, in its early history, been a nuisance at common law, the common law definition of a nuisance would not include gunpowder at this day. MANDAMUS AGAINST CORPORATIONS TO COMPEL DUTIES TO INDIVIDUALS. § 1. Mandamus lies to Compel Corporations to Perform Services Owing by them to Individuals.-A great multitude of cases, including those hereafter cited, unite in holding that where a corporation undertakes to perform a public service to individual members of the public or to corporations distributively, whether such undertaking is assumed by accepting a charter which commands the performance in express terms, or by accepting a charter or license which permits the performance of the service, from which circumstances an obligation to perform it is implied, such corporation can be compelled by mandamus, at the suit of the interested private person, to perform the service.1 1 Haugen v. Albina Light, etc. Co., 21 Oreg. 411, 423; State v. Delaware, etc., R. Co., 48 N. J. L. 55; State v. New Haven, etc. Co., 37 Conn. 153; State v. Nebraska Teleph. Co., 17 Neb. 126; State v. Republi can Valley R. Co., 17 Neb. 647; American Waterworks Co. v. State, 46 Neb. 194, 30 L. R. A. 447, 12 Am. K. & Corp. Rep. 88, 64 N. W. Rep. 711; Chicago, etc. R. Co. v. People, 56 Ill. 365. Mandatory injunc tions have been used to a limited extent for the same purposes as those expressed in the preceding paragraph. In one case, a contract between a railroad company and an express company, by which the railroad undertook to give the latter company an exclusive privilege of doing business upon its line, was cancelled in equity at the suit of a partner in another express company, who was also a stockholder in the railroad company and who brought his suit in that character to restrain the railroad company from discriminating in favor of a rival express company. Sanford v. Railroad Company, 24 Pa. St. 378. Another court has held that a mandatory injunction will not be granted on motion and preliminary to the final hearing on bill and answer, to a railway carrier to compel it to transport goods at the rate fixed by law; but that an injunction will issue to prevent a railway company, bound by law to transport goods, from entering into an agreement not to transport them at the rates fixed by law. Rogers Locomotive, etc. Works v. Erie R. Co., 20 N. J. Eq. 379, where the scope of mandatory injunctions is discussed. In another case, where the owner of a warehouse had, both by statute and under the principles of the common law, a right to have grain, consigned to his warehouse delivered there and not at some other warehouse, and delivered at the same rate of charges paid by the $ 2. Mandamus lies to Compel Corpora. tions to Perform Public Services in the Per formance of which Individuals have a Special Interest.-There is also a good deal of judicial authority in favor of the proposition that a mandamus will lie, at the suit of private relators, to compel private or quasi-public corporations to perform strictly public services in the performance of which such relators have a special interest; such as compelling a canal company to build a bridge over its canal to restore the public highway, which its canal has interrupted,2 or compelling; a railroad company to establish a depot and a regular service at a particular place, although there is no express statute requiring it so to do; or even to compel a borough to perform the common law duty of repairing a highway within its limits; or at the suit of a munic ipal corporation, to compel a street railway company to pave certain portions of the streets occupied by its tracks; or, at the suit of a railway corporation, to compel a county to subscribe for railway bonds in compliance with a statute giving it the power so to do." owners of another warehouse at the same place, the conditions being equal, an injunction was allowed to restrain the railroad company from delivering to any other place than that of the consignee, and from imposing an additional charge for such delivery. Vin cert v. Chicago, etc. R. Co., 49 Ill. 33. While the doc trine obtained in the circuit courts of the United States, and before the Supreme Court of the United States had decided otherwise (Express Cases, 117. S. 1), that a railway company could be compelled to furnish facilities to an express company, the writ of injunction was frequently used to compel them to furnish such facilities, or negatively, to restrain them from denying such facilities. Wells v. Oregon, etc. R. Co., 15 Fed. Rep. 561, 8 Sawyer (U. S.), 611; Wellv. Northern Pacific R. Co., 23 Fed. Rep. 469. That a mandatory injunction will not be granted where there is a plain remedy by mandamus, was held in Walkley v. Muscatine, 6 Wall. (U. S.) 481. That a mandatory injunction may be granted to compel a railroad conapany to perform the statutory duty of receiving freight and express from a connecting road, see Chicago, etc. R. C. v. Burlington, etc. R. Co., 34 Fel Rep. 481. 2 Trenton Water Power Co., 20 N. J. L. 659. 5 State v. Jacksonville St. R. Co., 29 Fla. 590. 6 Napa Valley R. Co. v. Napa County, 30 Cal. 4. Where the object, the doing of which is sought to be compelled, is a public object, mandamus may prop erly be used at the suit of the State, through its st torney-as to compel a railroad company to resume the operation of a line of its road connecting with a line of steamboats, which it had formerly operated, but which it had discontinued to the public detriment. State v. Hartford, etc. R. Co., 29 Conn. 538. Or to compel a railroad company to stop all its regular Although § 3. Not Necessary that the Obligation should have been Created by Statute. a mandamus will be more readily granted to compel the performance of a specific duty, which is clearly required to be performed by the statutory law, yet it is not at all necessary to the beneficial exercise of this jurisdiction, that the obligation sought to be performed should have been created by statute; it will be sufficient if it clearly arises under the principles of the common law. For example: A mandamus has been granted, even at the suit of a private person, to compel a borough in Pennsylvania to keep in repair a highway within its limits, the duty to repair arising under the principles of the common law. It has also been awarded to compel a railroad company, which was held to be bound under the principles of the common law, to furnish reasonable facilities for shippers to maintain a depot and a regular service thereat, at a particular place where it was clearly shown that such accommodations were necessary, although there was no express statute requiring the company so to do." So a canal company, which, in the construction of its canal, interrupted the public highway, was compelled by mandamus to restore the same, although neither its charter nor governing statute contained any express mandate that it should do so.10 § 4. The Fact that the Corporation thus Compelled is a Foreign Corporation, makes no Difference. Foreign corporations are subject, in respect to their business done within the domestic State, to domestic regulations, and can be compelled by mandamus passenger trains at a particular station in a town which is a county seat, in compliance with a statute. Illinois Central R. Co. v. People, 143 Ill. 434. There is a large class of cases presenting this use of the writ, but they lie outside the scope of this article. For a noteworthy case of this kind, where this use of the writ at the suit of private relators was affirmed, see Union Pac. R. Co. v. Hall, 91 U. S. 343, 355, citing other cases; affirming s. c., 3 Dill. (U. S.) 515. 7 People v. Chicago, etc. R. Co., 130 Ill. 175; State V. Republican Valley R. Co., 17 Neb. 647; State v. Nebraska Teleph. Co., 17 Neb. 126; In re Trenton Water Power Co., 20 N. J. L. 659, 653; Uniontown v. Com., 34 Pa. St. 293. * Uniontown v. Com., 34 Pa. St. 293. 9 State v. Republican Valley R. Co., 17 Neb. 647; People v. Chicago, etc. R. Co., 130 Ill. 195. One court, however, denied the right to relief in such a case, on the ground that the matter rested in the discretion of the directors. People v. New York, etc. R. Co., 104 N. Y. 58, 58 Am. Rep. 484. 10 In re Trenton Water Power Co., 20 N. J. L. 659. to carry on that business, and in so doing to serve all persons equally under like conditions, the same as domestic corporations may be so compelled." § 5. Mandamus Lies to Compel Gaslight Companies to Furnish Gas to Private Consumers.-Entering now upon the field of illustration, we find that a gaslight company may be compelled by mandamus to supply its gas to persons who, under its charter, have the right to be supplied with it, and who have complied with the general conditions upon which the company supplies its other customers in the same city. In so holding the court said: "They possess, by virtue of their charter, powers and privileges which others can not exercise; the statutory duty is imposed upon them to furnish gas on payment of all moneys due by such applicants."'12 It is true that one court held that a gaslight company, incorporated to supply gas to the city and to its inhabitants, but with no special privileges except that of recovering double damages for injuries to its pipes, and having no right to lay its pipes through public or private land without first obtaining permission therefor from the owners, was under no legal duty to supply gas to a particular person, since it stood on the footing of a merely private manufacturing corporation, and, consequently, owed no duty to furnish its manufactured product to any particular person. 13 This case was decided by the Supreme Court of New Jersey, two judges sitting. The doctrine announced in it was subsequently denied by a higher court of the same State, the Court of Appeals, and the case was in effect overruled.14 And it was pointedly denied in a very able judgment in another State.15 The better and sounder doctrine undoubtedly is, that where a private corporation, organized for the purpose of carrying on a business, public in its nature, such as furnishing water or gas to the inhabitants of a city, accepts from the city or from the State its franchises and a grant of the right of eminent domain, without which its business could not be carried Central Union Teleph. Co. v. State, 118 Ind. 194, 207; Central Union Teleph. Co. v. State, 123 Ind. 113. 12 People v. Manhattan Gaslight Co., 45 Barb. (N. Y.) 136. 13 Patterson Gaslight Co. v. Brady, 27 N. J. L. 245. 14 Olmstead v. Proprietors, 47 N. J. L. 333. 15 Haugen v. Albina Light etc. Co., 21 Oreg. 411. on, it accepts such grant on the implied condition that it will perform the duty for which it is organized, that of furnishing water or gas on reasonable terms to any inhabitant of the city applying therefor, and showing his capacity to receive the same and tendering compliance with such reasonable terms as the corporation may exact for furnishing the same; and that if, under such circumstances, the corporation refuses to furnish the water or the gas to such inhabitant, it may be compelled to do so by mandamus, although the grant of the franchise may not in express terms require it so to do.16 $ 6. To Compel Water Supply Companies to Furnish Water to Private Consumers. -So a private corporation which procures from a city or from the State, a franchise to supply the city and its inhabitants with water, and which, by virtue of its franchise, is permitted to use the streets and alleys of the city in laying its mains and pipes, becomes thereby charged with the public duty of supplying at reasonable rates, all the inhabitants of the city, and of charging each inhabitant for the water it supplies to him no more than the same price which it charges to every other inhabitant for the like service under the like conditions; and this duty may be enforced by mandamus.17 In California an irrigation company was chartered with power, among other things, to furnish, sell, give and supply water to any person or corporation, for irrigation or other purposes. As in the preceding cases it possessed the power of eminent domain, but it did not appear whether or not it had ever exercised it. It was held that it was a corporation organized for a public object; that the power conferred upon it for this public object carried with it a correlative duty to supply water to any one who might apply therefor, so long as it had the power to do so; and that this duty was properly en 16 Haugen v. Albina Light etc. Co., 21 Oreg. 411. That such a grant and such acceptance carry with them the implied duty to serve with the particular commodity any inhabitant applying for it, and able to receive it and pay for it on the same terms that are exacted of others, although this duty is not expressly imposed in the terms of the grant, see Olmstead v. Proprietors, 47 N. J. L. 311. 17 American Waterworks Co. v. State, 46 Neb. 194, 39 L. R. A. 447, 12 Am. R. & Corp. Rep. 68, 64 N. W. Rep. 711; State v. Joplin Water Works, 52 Mo. App. 312; Haugen v. Albina Light, etc. Co., 21 Oreg. 411, 14 L. R. A. 424; People v. Green Island Water Co., 56 Hun (N. Y.), 76. forced by mandamus.18 In Oregon, substantially the same doctrine is laid down with reference to a corporation organized to supply water to a city. The court laid stress on the fact that its franchise to dig up the pub. lic streets is a privilege which concerns the public to such an extent that the State or city may make it exclusive.19 But the court proceeded upon the broader doctrine that a corporation, undertaking by its acceptance of a public franchise to perform a certain service to the members of the community dis tributively, can, by mandamus, be compelled to perform that service. 20 So, an irrigation company, created in Colorado, to supply water to consumers, must supply those who are so situated as to receive the same. provided it has water undisposed of, upon reasonable terms; and this right will be enforced by mandamus.21 In the opinion of the court in the earlier case, Helm, J., said: "Where a statute is absolutely silent as to the amount of the charge for transportation, and the time and the manner of its collection, there will be legal ground for the position that a demand in this respect must be rea sonable. The carrier (meaning the irriga tion company), voluntarily engages in the enterprise; it has in most instances, from the nature of things, a monopoly of the business along the line of its canal; its vocation, together with the use of its property, are closely allied to the public interest; it is, I think, charged with what the decisions term, a public trust or duty. In the absence of legisla tion on the subject, it would, for these rea sons, be held, at common law, to have submitted itself to a reasonable, judicial control. invoked and exercised for the common good. in the matter of regulations and charges: and an attempt to use its monopoly for the purpose of coercing compliance with unres sonable and exorbitant demands would lay the foundation for judicial interference. '`* § 7. To Compel Telephone Companies to Serve Particular Persons.-In like manner a ress of the country and adapt themselves to the new developments of time and circumstances. They extend from the horse with its rider to the stage coach; from the sailing vessel to the steamboat; from the coach to the steamboat and the, railroad; from the railroad to the telegraph; and from the telegraph to the telephone; 'as these new agencies are successively brought into use to meet the successive demands of increasing population and wealth. They were intended for the government of the business to which they relate, at all times and under all circumstances.' "" And the court held that mandamus was the proper remedy to enforce the duty assumed by a telephone company of furnishing its service to an inhabitant of a particular city in which it did business.28 The same doctrine was affirmed in the Supreme Court of Indiana, in a case where a foreign corporation operating a system of public telephones in one of the towns of that State, was held to be a common carrier of news, and, as such, subject to public regulation. The court said: "It has been held universally by the courts, considering its use and purpose, to be an instrument of commerce and a common carrier of news, the same as the telegraph; and by reason of being a common carrier it is subject to proper obligations and to conduct its business in a manner conducive to the public benefit, and to be controlled by law." And the court also said: "Any person or corporation engaged in telephonic business, operating telephone lines, furnishing telephonic communications, facilities and service to business houses, persons and companies, and discriminating against any person or company, can be compelled by a mandate [mandamus], on the petition of such person or company discriminated against, to furnish the petitioner a like service as furnished to the others." And the court held, under a statute, that a public telephone company created under the laws of a foreign State, and doing business in the State of Indiana, and in a particular city of that State, was bound to furnish a person doing business in that city with an instrument and the facilities of a public telephonic exchange in his place of business in that city, although it ap corporation owning and conducting a system of public telephone exchanges, supplying with that service a large number of customers on terms fixed by itself, has been held to be engaged in an employment of a public nature, in such a sense that it is bound to serve all persons applying for its service and tendering the proper compensation, without discrimination, under like conditions. The reasoning of the court, in its opinion delivered by Reese, J., well illustrates the adaptability of the principles of the common law to new situations: That the telephone, by the necessities of commerce and public use, has become a public servant, a factor in the commerce of the nation, and of a great portion of the civilized world, cannot be questioned. It is, to all intents and purpose, a part of the telegraphic system of the country, and in so far as it has been introduced for public use, and has been undertaken by the respondent, so far should the respondent be held to the same obligation as the telegraph and other public servants. It has assumed the responsibility of a common carrier of news. Its wires and poles lie in our public streets and thoroughfares. It is, and must be held to have taken its place by the side of the telegraph as such common carrier. The views herein expressed are not new. Similar questions have arisen in, and have been frequently discussed and decided by, the courts, and no statute has been deemed necessary to aid the courts in holding that when a person or company undertakes to supply a demand which is 'affected with a public interest,' it must supply all alike, who are like situated, and not discriminate in favor of, nor against any. This reasoning is not met by saying that the rules laid down by the courts as applicable to railroads, express companies, telegraphs, and other servants of the public, do not apply to the telephones, for the reason that they are of recent invention and were not thought of at the time the decisions were made, and hence are not affected by them, and can only be reached by legislation. The principles established and declared by the courts, and which were and are demanded by the highest material interests of the country, are not confined to instrumentalities of commerce, nor to the particular kinds of service known or in use at the time when those principles were enunciated, 'but they keep pace with the prog 23 State v. Nebraska Telephone Co., 17 Neb. 126, 134, 135. The extracts and inside quotation points are from the opinion in Pensacola Teleph. Co. v. Western Union Tel. Co., 96 U. S. 9. |