2 Barn. & Adol. 644); to prevent the abandonment of a road once completed (Talcott v. Pine Grove, supra, 1 Flipper, 145); and to compel a company to exercise its franchise (People v. A. V. R. R. Co., 24 N. Y. 261). These are all expressad or implied obligations arising from the charters of the railroad companies, but not more so than the duty to carry freight and passengers. That duty is indeed the ultima ratio of their existence, the great and sole public good, for the attainment and accomplishment of which all the other powers and duties are given or imposed. 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 for which it is created, but it is then powerless to compel the doing of the thing itself.

We cannot bring our minds to entertain a doubt that a railroad corporation is compellable by mandamus to exercise its duties as a carrier of freight and passengers, and that the power so to compel it rests equally firmly on the ground that that duty is a public trust, which, having been conferred by the State and accepted by the corporation, may be enforced for the public benefit, and also upon the contract between the corporation and the State expressed in its charter or implied by the acceptance of the franchise (Abbott v. Johnson, R. R. Co., 80 N. Y. 31), and also upon the ground that the common right of all the people to travel and carry upon every public highway of the State has been changed by the Legislature, for adequate reasons, in this special instance, into a corporate franchise to be exercised solely by a corporate body for the public benefit, to the exclusion of all other persons, whereby it has become the duty of the State to see to it that the franchise so put in trust be faithfully administered by its trustee.

But it is said that the State is not injured and has no interest in the question whether the corporation perform the duty or not. The State may suffer no direct pecuniary injury, as it may not by the neglect of one or more of its numerous political officers who hold in trust for the people the official duties reposed in their hands; but that is no test of the power or duty of the State in either case. 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 thereby 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. It may proceed, it is true, to annul the corporation, as has been held in many cases where corporations have neglected public duties (People v. Fishkill R. R. Co., 27 Barb. 452, 458; People v. H. & C. Turnpike Co., 23 Wend. 254; Turnpike Co. v. State, 3 Wall.

210; People v. K. & N. Turnpike Co., 23 Wend. 208; People v. B. & B. Turnpike Co., id., 222; C. R. Bridge Co. v. Warren Bridge, 7 Pickering, 344); but that remedy is not adequate, for it only destroys functions where the public interests require their continued existence and enforcement. It has, therefore, an election which of these remedies to pursue. State v. Railroad Co., 29 Conn. 538; People v. Railroad Co., 24 N. Y. 261; Talcott v. Pine Grove, supra.

Undoubtedly a sound discretion is vested in its law officer to decide whether the exigency is such as to call for the use of either remedy, as it is ultimately for the Court to judge whether the elected remedy should be applied. But upon the question of power and of sufficient legal injury to justify its use where the corporation neglects or refuses to exercise its franchises or perform its duties, there seems to us no reason to doubt.

Nor do we think the fact that injured individuals may have private remedies for the damages they may have sustained by neglect of duties, precludes the State from its remedy by mandamus. Where the injury is to a single person under circumstances which do not affect the general public, the Courts in the exercise of their discretion have properly refused this remedy on his relation. He has an adequate remedy by private action for damages That was the case of Ohlen v. Erie R. R. Co. (22 Hun. 533), relied upon by the Court below as establishing that the relator's remedy was by suit for damages and not by mandamus. That case is not authority for denying the writ to the Attorney-General for a neglect or refusal by corporations to exercise their franchise to an extent which affects great numbers of citizens and continues to for a considerable period of time; nor does it deny the right of the people acting on their own behalf and in their own suit, to pursue the remedy in any case of neglect or refusal to exercise a public function which the interests of the people require should be kept in vigorous and efficient use. The Court in that case recognizes the distinction when it says "An exception exists. . . . where a corporation suspends the exercise of its functions." The suspension of the exercise of corporate functions is the gravamen of the complaint in this case, and the case cited is no authority for denying the writ when the people come into Court with their own suit by their Attorney-General to move for a writ of mandamus on allegations of an alleged long continued and very general suspension of a corporate duty.

It was supposed by the Court below that the provisions of section 28 of the act of 1850, as amended by chapter 133 of the Laws of 1880, which provide that railroad corporations shall have power "to regulate the time and manner in which passengers and property shall be transported," interfere in some way with the power to grant the writ. Undoubtedly it gives the discretion which the

learned Judge states, but it cannot be so construed as to justify a general or partial suspension of the duty of receiving and transporting freight. Language of that kind in a similar act was correctly construed by Dickerson, J., in the Railroad Owners v. Portland and Oxford R. R. Co., 63 Maine, 269. We adopt but have not room to quote his language.

Having determined the question of the right of the State to prosecute the writ of mandamus on the ground of refusal or neglect of a corporation to exercise its duty of carrier, it remains to be seen whether a case which would justify the granting of the writ, was presented. The case stands altogether upon the facts presented by the appellants. The course taken by the respondents must be regarded as an admission of the material facts contained in the petition and affidavits.

The petition alleges that the said railroad company, since about the 16th day of June, 1882, has substantially refused to discharge its duties as a common carrier, and has to a material degree suspended the exercise of its franchises by refusing to take freight which has been offered at its stations in the City of New York for transportation, at the usual rates and upon the usual terms, and that said railroad company has refused to accept and transport the greater part of the outgoing and to deliver the incoming freight and property of the merchants doing business in the City of New York, who have relations with and need for the service of such railway, and has refused to them to furnish adequate transportation for the same, so that from the date aforesaid until the present date the business community of the City of New York are unable to obtain sufficient and adequate transportation for their goods on said railroad, although they have offered the same on the usual terms and rates of transportation; but the said railroad has uniformly delayed, and sometimes peremtorily refused, to receive and deliver freight and to transport the outgoing freight as aforesaid, and at certain points within the State has declined to receive incoming freight, whereby great loss and damage accrued to the people of the State of New York, for which there is no adequate remedy in damages, and that the trade and commerce of said city is greatly injured by the action of the said railroad.

These allegations are broad enough to show a quite general and largely injurious refusal and neglect to perform the duties of carrier. The affidavits go far to sustain these allegations; but it is not important to examine them minutely, because the admission of a demurrer ore tenus extends to and limits the well pleaded averments of the petition. Stated very briefly, the affidavits show that for about two weeks the respondents failed and neglected to receive from three-quarters to seven-eighths of the goods offered for transportation from the city, and large quantities seeking transportation to the city, and in many instances refused to receive goods

offered, and turned them back and closed their gates during business hours, thus causing a stoppage of all delivery of freight; that in some instances unusual terms were sought to be imposed as a condition of receiving goods, which would increase the risks of the owner; that the refusal to receive goods did not arise from any unwillingness or inability on the part of the shipper to pay charges, but was wholly the act of respondents; that it was so continued and and extensive that it seriously interfered with the business operations of the citizens of New York, deteriorated the value of many commodities and caused a diversion of trade from the city and great losses were caused, and especially that large quantities of perishable goods by reason of non-delivery were destroyed, to the value of many thousand dollars; that a vast amount of freight, equal, as estimated, to 360,000 tons, was thus detained or refused carriage; that large numbers of carmen were detained in their efforts to deliver freight, and the injury to that branch of business is estimated at not less than $50,000, while the aggregate of injuries are estimated at some millions. These are the substantial facts conceded by respondents at the Special Term. Surely it cannot be doubted that these facts being true and unexcused showed a strong case for the interference of the State.

The only question is whether the course and conduct of the respondents was so far excused by anything appearing in the petition and affidavits that the Court was justified in denying the motion for the writ on its own merits, or in a wise exercise of its judicial discretion.

The excuse appears only in the statements of the reasons assigned by the respondents for their refusal to accept, transport and deliver the freight and property. In the petition it is stated in these words: That the persons in their employ handling such freight refused to perform their work unless some small advance, said to be three cents per hour, is paid them by the said railroad corporation." The affidavits show, it may in short be said, that the skilled freight-handlers of the respondents, who had been working at the rate of seventeen cents per hour (or one dollar and seventy cents for ten hours), refused to work unless twenty cents per hour (or two dollars per day of ten hours) was paid, and that their abandonment of the work, and the inefficiency of the unskilled men afterward employed, caused the neglect and refusal complained of.

It is not alleged or shown that the workmen committed any unlawful act, and no violence, no riot, and no unlawful interference with other employees of the respondents appears. It is urged, in effect, that the Court should regard the cases as one of unlawful duress caused by some breach of law sufficiently violent to prevent the reception and transportation of freight. There is nothing in the papers to justify this contention. According to the statement

of the case, a body of laborers acting in concert fixed a price for their labor and refused to work at a less price. 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 consequence of their doing so were an inability to exercise their corporate franchise to the great injury of the public they cannot be heard to assert that such consequence must be shouldered and borne by an innocent public, who neither directly nor indirectly participated in their causes.

If it had been shown that a "strike" of their skilled laborers had been caused or compelled by some illegal combination or organized body which held an unlawful control of their actions, and sought through them to enforce its will upon the respondents, and that the respondents 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 numbers 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 for the exercise of the discretion of the Court, as well as of the Attorney-General, would have been presented. Whether such a state of facts could have been shown we cannot judicially know. The present case must stand or fall upon the papers before us, and we are not to be swerved from thus disposing of it by any suggestion of facts not in the case, which might lead, if they appeared, to some other result. The most that can be found from the petition and affidavits is that the skilled freight-handlers of the respondents refused to work without an increase of wages, to the amount of three cents per hour; that the respondents refused to pay such increase; that the laborers then abandoned the work and that the respondents did not procure other laborers competent or sufficient in number to do the work. And so, the numerous evils complained of fell upon the public, and were continuous until the people felt called upon to step in and seek to remedy them by proceedings for manda

mus.

These facts reduce the question to this: Can railroad corporations refuse or neglect to perform their public duties upon a controversy with their employees over the cost or expense of doing them? We think this question admits of but one answer. The excuse has in law no validity. The duties imposed must be discharged at whatever cost. They cannot be laid down or abandoned or suspended without the legally expressed consent of the State. The trusts are active, potential and imperative, and must be executed until lawfully surrendered, otherwise a public highway of great utility is closed or obstructed without any process recognized by law. This is something no public officer charged with the same trusts and