§ 279. Service must be continued according to charter pro

visions.

In Re New Brunswick and Canada Railway Company 3 it was an application on behalf of the town of St. Andrews, New Brunswick, for a mandamus against the railway company to compel them to run a train each way each day. It was contended that the liability of the company to perform this duty was established by the act under which the company was incorporated, which required it to run at least one daily train each way over the main line and branches, unless prevented by weather, accident or some other unavoidable cause, other than want of railway stock, or from keeping the road and its appliances in good running order. The company contended that the fact that there was no profit from running a train every day was one of the unavoidable causes which would justify the company in not running a daily train.

Mr. Chief Justice Allen would not admit this contention. "If the fact that this portion of the line does not pay running expenses will justify the company in disobeying the directions. of the act in running daily trains, we cannot see what there is to prevent them from abandoning that part of it altogether, and so leaving, as a matter in their discretion, that which the act has imperatively imposed on them as an absolute duty. There is no evidence before us to show whether the running of trains on the whole road is profitable or not; and if this argument could prevail, it certainly would not be sufficient to show that there were no profits derived from that particular portion of the road between St. Andrews and Watt Junction. But admitting that the whole road thus produced no net profits, that does not seem to us sufficient to release the company from the positive duty of running trains enjoined upon them by the act a duty which they undertook voluntarily, for better or worse, which

31 Pugsley & Burbridge (17 New. Br.), 667.

they have no right to repudiate, if. the remedy has not turned out as favorably as they anticipated."

4

§ 280. Where no mandatory charter provision.

At one extreme are a series of decisions which hold that if a public service company under authorization constructs a system it must at all times operate that system. One of the earliest American cases is State v. Hartford & New Haven Railroad.5 The facts in brief were these: The Hartford and New Haven Railroad Company was chartered to construct and operate a railroad from Hartford to the navigable waters of New Haven harbor. After the construction of the road to the wharves and the use of it in connection with steamboat lines for many years, the defendant entered into an agreement with the New York and New Haven road for a joint line to New York and discontinued running to tide waters any passenger trains. It was ordered that a peremptory mandamus should issue commanding the resumption of this service.

The court-Ellsworth, J., writing the opinion-thought the duty plain: "We hardly know what doubtful principles of law are thought to be involved in this case. The respondents certainly were bound to make their road (if at all) within the time prescribed by their charter; and, having made it, to put it into use every material part of it--and keep it in use until discharged by the legislature."

The most positive case on the point is State v. Spokane Street Railway. This was an application for a mandamus to

6

4 In the following cases loss from operation was urged but held of no avail against an explicit charter provision: Farmers' Loan & Trust Co. v. Henning, 8 Fed. Cas. 4,666 (1878); People v. Colorado Co., 42 Fed. 638 (1890); State v. Central Iowa G. Ry. Co., 71 Iowa, 410, 32 N. W. 409, 60 Am. Rep. 806 (1887); Potwin Place v. Topeka Ry., 51 Kans. 609, 33 Pac. 309 (1893); State v. Sioux City Ry., 7 Neb. 357 (1878); State v. Spokane St. Ry., 19 Wash. 518, 53 Pac. 71, 67 Am. St. Rep. 739, 41 L. R. A. 515 (1898).

5 29 Conn. 538 (1861).

619 Wash. 518, 53 Pac. 720, 67 Am. St. Rep. 739, 41 L. R. A. 515 (1898).

compel the defendant, a street railway company, to operate a line of street railway to Bell Park addition, in the city of Spokane. The Ross Park Street railway built the line in question, under authority by its charter. Later there was a foreclosure upon the property by a trust company on behalf of bondholders, and the trust company leased the property to the defendant company. The defendant company then gave up running cars over the branch line in question. Some people had built residences near it, relying upon it, but only about one hundred people daily had been carried upon the line. The upper court affirmed the order of the court below, granting the mandamus.

Its

Mr. Justice Reaves held the view which follows: "The controversy is whether, under the principles of the common law, a corporation authorized to transact the business which the appellant is authorized to do, and which it has actually transacted, in the acquisition and operation of its street railway line, owes a duty to the public to continue operation. franchise was granted to appellant by the State, not for its own profit alone, or that of its stockholders, but in a large measure for the public benefit. Peculiar privileges were conferred upon it in consideration that it would provide facilities for communication and intercourse for the public. It is a common carrier. It was granted the power of eminent domain, a part of the sovereignty of the State, and, with the consent of the municipalities, it may lay its tracks over the public streets and highways. Such corporations, then, may not, by their own acts, disable themselves from performing the functions which were the consideration for the public grant. These rights, then, are held by the grantee, the holder of the franchise, as the agent and trustee for the sovereign power, and are in no sense private, but continue after, as well as before, the grant to be but a portion of the public interests. The absolute commercial and business necessity for permanence when established forbade, from the earliest years, the manifest impolicy of leaving this

interest to the laws of supply and demand, which thus far have sufficiently supplied the community with hotels, mills, etc. And it is not in degree only that these franchises differ from mills and inns. The one is private property; the other is a public function, which originally resided in the government, and, when delegated to either persons or corporations, still retains the public use. Permanency in the service of the public in a reasonable manner is an essential duty in all such avocations."

§ 281. Partial withdrawal permitted where no charter pro

vision.

On the other hand, there are a series of cases just as insistent that, unless there is explicit charter provision requiring complete operation, there may be withdrawal from any portion of the undertaking.

In Commonwealth v. Fitchburg Railroad, it was shown that the railroad at some time after the construction of the Watertown branch had discontinued passenger service over it, after

7 The following cases granted mandamus to compel operation of abandoned portion of a railroad system:

United States.-Farmers' Loan & Trust Co. v. Henning, 8 Fed. Cas. 4,666 (1878); People v. Colorado Central R. R., 42 Fed. 638 (1890).

Connecticut.-State v. Hartford & N. H. R. R., 29 Conn. 538 (1861). Kansas.-State v. Potwin Place & T. Ry., 51 Kan. 609, 33 Pac. 309

(1893).

Kentucky.-Board of Trustees v. Chesapeake, O. & S. W. R. R., 94 Ky. 377, 22 S. W. 609 (1893).

Mississippi.—See State v. Mobile, J. & K. C. R. R., 38 So. 732 (1905). Nebraska.-State v. Sioux City R. R., 7 Neb. 35 (1878).

New Jersey.-Bridgeton v. Bridgeton Traction Co., 62 N. J. L. 592, 43 Atl. 715, 45 L. R. A. 837 (1899).

Pennsylvania.-Erie & N. E. Railroad Co. v. Casey, 26 Pa. St. 287 (1856). Virginia. See Southern Ry. v. Franklin Ry., 96 Va. 693, 32 S. E. 485, 44 L. R. A. 297 (1899).

Washington.-State ex rel. v. Spokane St. Ry., 19 Wash. 518, 53 Pac. 719, 67 Am. St. Rep. 739, 41 L. R. A. 515 (1898).

England.-Rex v. Severn R. R., 2 B. & Ald. 646.

See In re Attorney-General, 113 Wis. 623, 88 N. W. 912 (1902).

8 12 Gray (Mass.), 180 (1858).

due notice, while continuing freight service. The prayer of the information was quo warranto against the corporation to forfeit its franchises. The railroad answered that since the construction of a competing street railway the passengers' receipts had so fallen off that the passenger service had been operated at a loss. The court dismissed the information.

Mr. Justice Thomas discussed the matter after this fashion: "The precise question before us is, whether the running of regular passenger trains was, under the facts admitted by the demurrer, a legal duty? Neither the statutes under which the respondents hold their franchises, nor the general laws regulating railroad companies, in terms impose upon the respondents such duty. If it had been intended that the duty of running trains should be absolute, it would have been made definite. If the duty is to be held absolute, how long, for what period of time, is it to be performed? It is during the lifetime of the charter, and this though the expense of running the train is daily and rapidly using up the capital stock of the company."

It is submitted that the rule laid down in this last case is correct. This does not mean, as some of the cases point out, that there may be cessation of service in respect to some integral part of the system. But it does mean that there may be withdrawal upon proper notice from any separable portion of the business, as was seen in the case just discussed. The alternative is to hold a company in public employment forever bound to carry on, at any loss, whatever service it may at any time have undertaken."

9 The following cases hold that a public service company may retire from any separable part of the business:

United States.-N. P. Railroad v. Dustin, 142 U. S. 492, 35 L. Ed. 1092 (1891); Royal Trust Co. v. Washburn, etc., R. R., 113 Fed. 531 (1902); Jack v. Williams, 113 Fed. 823 (1902).

Kansas.-See Asher v. Hutchinson W. L. & P. Co., 66 Kan. 496, 71 Pac. 813 (1903).

Massachusetts. Com. v. Fitchburg R. R. Co., 12 Gray, 180 (1858). Minnesota.-State v. Southern Minnesota R. R. Co., 18 Minn. 40 (1871).