having been issued, there was nothing to quash, and the objection was simply an assertion that the appellants were not, upon their own showing, entitled to have the motion granted, and such assertion did not change the rights of the respective parties as to the order of proceeding on the hearing. The Court of Appeals have held that the according of the affirmative to the wrong party on a trial before a jury, is an error fatal to the judgment. But on motions at Special Term, it is not very material which party opens or closes; and this Court on review will only inquire into the correctness of the decision, where the order denies or grants the motion. In this case although the order directs that the petition and proceedings be quashed, yet the motion for the mandamus was also denied, and both the denial and the order to quash were based upon the merits of the motion. The right of appeal was not affected, and we think it is our duty to hear and dispose of the appeal upon the merits. The practice at the Special Term should, however, be discountenanced as a precedent.

The question presented by the motion is one of signal importance. It is whether the people of the State can invoke the power of the Courts to compel the exercise by railroad corporations of the most useful public functions with which they are clothed. If the people have that right, there can be no doubt that their Attorney-General is the proper officer to set it in effective operation on their behalf. 1 R. S. 179, sec. 1; Code of Civil Procedure, sec. 1993; People v. Halsey, 37 N. Y. 344; People v. Collins, 19 Wend. 56. The question involves a consideration of the nature of this class of corporations, the objects for which they are created, the powers conferred and the duties imposed upon them by the laws of their creation and of the State. As bodies corporate, their ownership may be and usually is altogether private, belonging to the holders of their capital stock, and their management may be vested in such officers or agents as the stockholders and directors, under the provisions of law, may appoint. In this sense they are to be regarded as trading or private corporations, having in view the profit or advantage of the corporators. But these conditions are in no just sense in conflict with their obligations and duties to the public. The objects of their creation are from their very nature largely different from those of ordinary private and trading corporations. Railroads are in every essential quality public highways, created for public use, but permitted to be owned, controlled and managed by private persons. But for this quality the railroads of the respondent could not lawfully exist. Their construction depended upon the exercise of the right of eminent domain which belongs to the State in its corporate capacity alone, and cannot be conferred except upon a" public use."

The State has no power to grant the right of eminent domain to

any corporation or person for other than a public use. Every attempt to go beyond that is void by the Constitution, and, although the Legislature may determine what is a necessary public use, it cannot by any sort of enactment divest of that character any portion of the right of eminent domain which it may confer. This characteristic of "public use" is in no sense lost or diminished by the fact that the use of the railroad by the corporation which constructs or owns it must from its nature be exclusive. That incident grows out of the method of use which does not admit of any enjoyment in common by the public. The general and popular use of a railroad as a highway is therefore handed over exclusively to corporate management and control, because that is for the best and manifest advantage of the public. The progress of science and 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 navigable waters. The exercise of eminent domain in respect of 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 observed.

In

These principles are abundantly sustained by authority. Bloodgood v. The Mohawk and Hudson R. R. Co., 18 Wend. 9, the Court of last resort in this State first announced them and affixed to railroads their true character as public highways. It is there declared that the fact that railroad corporations may remunerate themselves by tolls and fares "does not destroy the public nature of a road, nor convert it from a public to a private use. If it is a public franchise, and granted to the company for the purpose of providing a mode of public conveyance, the company, in accepting it, engages on its part to use it in such manner as will accomplish the object for which the Legislature designed it." And in Olcott v. The Supervisors (16 Wall. 678), the Supreme Court of the United States adjudged "that railroads, though constructed by private corporations, and owned by them, are public highways,

has been the doctrine of nearly all the Courts ever since such conveniences for passage and transportation have had any existence. Very early the question was whether a State's right of eminent domain could be exercised by a private corporation created for the purpose of constructing a railroad. Clearly it could not, unless taking land for such a purpose by such an agency is taking land for public use. The right of eminent domain nowhere justifies taking property for private use. Yet it is a doctrine universally accepted that a State Legislature may authorize a private corporation to take land for the construction of such a road, making compensation to the owner. What else does this doctrine mean if not that building a railroad, though it be built by a private corporation, is an act done for a public use? And the reason why the use has always been held a public one is that such a road is a highway, whether made by the Government itself or by the agency of corporate bodies, or even by individuals when they obtain their power to construct it from legislative grant. Whether the use of a railroad is a public or a private one depends in no measure upon the question who constructed it or who owns it. It has never been considered a matter of any im. portance that the road was built by the agency of a private corporation. No matter who is the agent, the function performed is that of the State. Though the ownership is private, the use is public. The owners may be private companies, but they are com. pellable to permit the public to use their works in the manner in which such works can be used. That all persons may not put their own cars upon the road, and use their own motor power, has no bearing upon the question whether the road is a public highway. It bears only upon the mode of use, of which the Legislature is the exclusive judge."

All public highways are subjects of general State jurisdiction, because their uses are the common property of the public. This principle of the common law is, in this State, of universal application. As to the class of public highways known as railroads, the common law is fortified by the express conditions of the statutes creating or regulating or controlling them.

The general railroad act of this State may now be regarded as the general charter of all such corporations. It authorizes the organization of corporations for "the constructing, maintaining and operating" of railroads "for public use," and imposes upon them the duty to "furnish accommodations for all passengers and property, and to transport all persons and property on payment of fare or freight." Laws of 1850, chap. 10, sec. 1 and sec. 33.

These words are a brief summary in respect of the duties imposed upon such corporations by all the provisions of the act. Those duties areconsigned to them as public trusts, and as was said by the Court in Messenger v. Penna. R. R. Co., 36 N. J. 407, "although in the hands of a private corporation, they are still sovereign franchises,

and must be used and treated as such; they must be held in trust for the public good." This relation of such a corporation to the State is forciby expressed by Emmons, J., in Tallcott v. Township of Pine Grove. 1 Flipper, U. S. Circuit Court Reps. 144. "The road once constructed is, instanter, and by mere force of the grant and law, embodied in the governmental agencies of the State, and dedicated to public use. All and singular its cars, engines, rights of way and property of every description, real, personal and mixed, are but a trust fund for the political power, like the functions of a public office. The artificial personage the corporation created by the sovereign power expressly for this sole purpose and no otheris, in the most strict, technical and unqualified sense, but its trustee. This is the primary and sole legal, political motive for its creation. The incidential interest and profits of individuals are accidents, both in theory and practice."

The acceptance of such trusts on the part of a corporation by the express and implied contracts already referred to, makes it an agency of the State to perform public functions which might otherwise be devolved upon public officers. The maintenance and control of most other classes of public highways are so devolved, and the performance of every official duty in respect of them may be compelled by the Courts on application of the State, while private damages may also be recoverable for individual injuries. The analogy between such officials and railroad corporations in regard to their relations to the State is strong and clear, and so far as affects the construction and proper and efficient maintenance of their railroad, will be questioned by no one. It is equally clear, we think, in regard to their duty as carriers of persons and property. This springs sharply out of the exclusive nature of their right to do these things. 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 employee a special and personal relation exists independent of any public duty, and in which the State has no in

terest. 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 depository of a trust. A good reason may therefore be assigned why the State will not by mandamus 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 property of a body corporate which alone has power to use it, in a manner which of necessity requires that all management, control and uses, 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 the use 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. The relation of the State to such a body is entirely

different from that which it bears to the individual users of a common highway, as between whom and the State no relation of trust exists, and there is small reason for seeking analogies between them.

It is the duty of the State to make and maintain public highways. That duty it performs by a scheme of laws which set in operation the functions of its political divisions into counties, towns and other municipalities, and their officers. It can and does enforce those duties whenever necessary through its courts. It is not the duty of the State to be or become a common carrier upon its public highways; but it may in some cases assume that duty, and whenever it lawfully does so, the execution of the duty may be enforced against the agents or officers upon whom the law devolves it. It may grant its power to construct a public highway to a corporation or an individual, and with that power, its right of eminent domain in order to secure the public use; and may make the traffic of the highway common to all on such terms as it may impose. In such case it is its duty to secure that common traffic, when refused, by the authority of its courts. 19 Wend. 56; 1 Cow. 23. Or it may grant the same powers of construction and maintenance with the exclusive enjoyment of use, which the manner of use requires, and if that excludes all common travel and transportation, it may impose on the corporation or person the duty to furnish every requisite facility for carrying passengers and freight and to carry both in such manner and at such times as public needs may require. Why is that duty in respect of the power to compel its performance through the courts, not in the category of all others entrusted to such a body?

The writ of mandamus has been awarded to compel a company to operate its railroad as one continuous line (Railroad Co. v. Hall, 91 Ú. S. 343); to compel the running of passenger trains to the terminus of the road (State v. Railroad Co., 29 Conn. 538); to comto compel it to construct and maintain fences and cattle guards (People v. Railroad Co., 14 Hun, 371; 76 N. Y. 284); to compel it to build a bridge (People v. Railroad Co., 70 N. Y. 569; to compel it to construct its road across streams so as not to interfere with navigation (State v. Railroad Co., 9 Richardson, 247); to compel the company to run daily trains (Re New Brunswick and Canada R. R. Co., 1 P. & B., New Brunswick, 67); to compel the delivery of grain at a particular elevator (Railroad Co.v. People, 56 Ills. 365); to compel the completion of its road (Trust Co. v. Raiload Co., 17 Am. Reg. 266); to compel the grading of its track so as to make crossings convenient and useful (58 N. Y. 152; 12 H. 175; 71 N. Y. 302; Indianapolis R. Co. v. The State, 37 Ind. 486; 35 N. J. L. 396); to compel the re-establishment of an abandoned station (State 2. Railroad Co., 37 Conn. 154); to compel the replacement of a track taken up in violation of its charter (King v. Railway Co.,