THE PEOPLE, ETC., Appellants,

V.

NEW YORK CENTRAL AND HUDSON R. R. R. Co. Respondents; THE PEOPLE, ETC.,

v.

NEW YORK, LAKE ERIE AND WESTERN R. R. Co.

(Advance Case, N. Y. Supreme Court.

General Term, 1882.)

Railroads, as public highways, created for public use, and subject to State jurisdiction, are handed over exclusively to corporate management and control, because it is for the best interests of the public that their functions should be performed for the State, as public trusts by corporate bodies; and the acceptance of such trusts on the part of the corporation makes it the agency of the State, whereby it contracts to accept the duty of carrying all persons and property, within the scope of its charter, as a public trust. The exclusive enjoyment of use to the corporation imposes the corporate duty to furnish every requisite facility for carrying passengers and freight, and to carry both in such manner and at such times as the public needs may require.

The performance of such duty is compellable on behalf of the people, through the Courts, by mandamus; and their Attorney-General is the proper officer to set the process in motion. The fact that injured individuals may have private remedies for damages sustained does not preclude the State from its remedy by mandamus, where there is a general or partial suspension of the duty of receiving or transporting freight affecting large numbers of people.

Uncontroverted allegation, showing a quite general and largely injurious refusal and neglect of performance of the duties of carrier by a railroad company establishes a case for the interference of the State; and railroad corporations cannot refuse or neglect to perform their public duties pending a controversy with their employees over the cost and expense of doing them, where it does not appear that the employees committed any unlawful act, or that there was an illegal combination compelling them to stop working.

The writ should simply require the corporation to resume the duties of carrier of the goods and property offered for transportation, and upon its return all questions, whether what had been done was a sufficient compliance with its command, would become a subject of further consideration.

Appeals from orders of the Special Term, granting motions to quash and dismiss the petition and order to show cause of the appellants, and denying the application of the appellants for peremptory writ of mandamus.

Leslie W. Russell, E. C. James, S. Sterne and D. I. Thompson, for appellants. W. D. Shipman and Roscoe Conkling for respondent.

DAVIS, P. J. The appellants, upon the petition of the AttorneyGeneral and affidavits accompanying the same, obtained orders from one of the Justices of this Court requiring the respondents respec

tively to show cause, upon service of less than eight days, at a Special Term sitting at Chambers, why a peremptory writ of mandamus should not issue commanding the respondents respectively to forthwith resume the discharge of their duties as common carriers and the exercise of their franchises, by promptly receiving, transferring and delivering all such freight or other property as may be offered to or heretofore received by them for transportation at their stations in and to the City of New York, upon the usual and reasonable terms of charge.

Upon an adjourned day for the hearing of the motion, the respondents appeared by counsel and objected that the moving papers failed to show any grounds for the relief prayed for, and moved to "quash and dismiss said petitions and orders to show cause." The Court entertained this motion, and, against the objection of the appellants, awarded the right to open and close the argument on the hearing to the counsel for the respondents; and, after hearing the respective counsel, the Court orders as follows: "That the said preliminary objection be and the same is hereby sustained, and the motion to quash and dismiss the said petition and order to show cause be and the same is hereby granted and the saïd application of said petitioner denied."

It is now objected that this mode of disposing of the motions was so far irregular as to render the order erroneous. It certainly was an unusual mode of proceeding. The motions came to the Special Term precisely as though upon an ordinary notice. The order of the Judge simply limited the time of notice, and when the respondents appeared in answer to the notice, if they were willing to come to a hearing upon the petition and affidavits, the usual and proper course was to proceed to a hearing of the motions upon those papers, the moving party holding the affirmative and being entitled to the right to open the close. A notice to quash a motion is a novel proceeding. Motions to quash usually apply to existing writ or process, and not to mere attempts to obtain them. The Court doubtless regarded the action of the respondent's counsel as in the nature of a demurrer ore tenus to the petition and affidavits on the part of the appellants. Where an alternative writ has been granted the defendant may move to quash or set the same aside. People ex rel. v. Judges, etc., of Westchester, 4 Cow. 73.

And such a motion is in the nature of a demurrer (Poeple v. College of Physicians, 7 How. Pr. 290), and should be made the return to the writ, unless the motion to quash is based upon a defect in substance, in which case it may be taken advantage of any time before a peremptory mandamus is awarded. Commercial Bank v. Canal Commissioners, 10 Wend. 31; The People v. Ransom, 2 N. Y. 492.

Of course upon such a motion, the moving party holds the affirmative. But that was not this case. In this case no alternative writ