
    Matter of the Application of Joseph Loader for a Mandamus Against The Brooklyn Heights Railroad Company.
    
    (Supreme Court—Kings Special Term,
    January, 1895.)
    A railroad corporation has a dual relation; a public relation to the people of the state, and a private one to its stockholders.
    Its public obligation to run its cars and carry passengers transcends its obligation to its stockholders.
    If it cannot get labor at the price or conditions it offers, to perform this public duty, then it must offer such price and conditions as will get it. It may not stop its cars for any length of time to beat or coerce the price or conditions of labor down to those conditions it offers. .
    Application for a writ of mandamus to compel a street railroad company to run its cars. '
    
      M. L. Towns and Delos McCurdy ¡ for the application.
    
      Thomas E. Moore and Julien T. Davies, opposed.
    
      
       Received too late for insertion in proper place.— [Reporter.
    
   Gaynor, J.

It is my duty to declare the .law.of this case. This railroad corporation is not in the position of a mere private individual or company carrying on business for private gain, and free to suspend business temporarily or permanently at pleasure. On the contrary, it has a dual relation ; a -public relation to the people of the state, and a private one to its stockholders. It must not be forgotten here, though it may seem to be growing dim, if not wholly forgotten elsewhere, that in its chief aspect it is a public corporation, having duties to perform to the public which transcend any obligation which in its private aspect it owes to its stockholders. It has received franchises of great value from the state, and had conferred upon it the state’s transcendent power of eminent domain. In return. it took upon itself the performance of public duties and functions, in the performance of which it is, in law and in fact, not an independent individual or entity, but the accountable agent of the state. Though these principles are old, and inherent in the idea of the sovereignty of the people, it would seem that in the recent rapid growth of corporate power, and of the tendency to use public franchises for the aggrandizement of individuals first and for the service and benefit of the public 'second, they have come to be somewhat overlooked, and need to be restated. They have often been declared by the highest courts of this state and the Supreme Court of the United States. Olcott v. Supervisors, 16 Wall. 687, 694; Bloodgood v. Mohawk, etc., R. Co., 18 Wend. 9; People v. N. Y. C. & H. R. R. R. Co., 28 Hun, 543.

The duty of the company now before the court is to carry passengers through certain, streets of Brooklyn, and to furnish, man and run cars enough to fully accommodate the public. It may not lawfully cease to perform that duty for even one hour. The directors of a private business company may, actuated by private greed, or motives of private gain, stop business' and refuse to employ labor at all unless labor come down to their conditions, however distressing; for such are the existing legal, industrial and social conditions. But the directors of a railroad corporation may not do the like. They are not merely accountable to stockholders; they are accountable to the public first and to their stockholders second. They have duties to the public to perform, and they must perform them. If they cannot get labor to perform such duties at what they offer to pay, then they must pay more, and as much as is necessary tó get it. Likewise, if the conditions in respect of hours or otherwise which they impose repel labor, they must adopt more lenient or just conditions. They may not. stop their cars for one hour, much less one week or one year, to .thereby beat or coerce the price or conditions ' of labor down to the price or conditions they offer. For them to-do-so would be a defiance of law and of government' which, becoming general, would inevitably by force of example lead to general- disquiet, to'.the disintegration of the social order,' and even the downfall of government itself. Experience, shows the wisdom of our fathers in retaining at least some control of corporations to which, are given public franchises for the performance of public duties.

I shall quote' from a case decided upon appeal by the-Supreme Court in this state in 1883, .after mature deliberation, and Which is an authority I am bound to follow, even 'though I were not of the same view, and which, I need scarcely say, the corporation now before 'this court is bound to acquiesce in, and which .1 doubt .not it will immediately acquiesce in, for example’s sake, if for no other reason. That .cáse arose out of the failure of the Hew York Central & Hudson River. - Railroad Company to receive and forward freight as--a com"mon carrier. The language of the court is as'. follows: “ According to the statements of the case a body of laborers, acting in concert, fixed a price for their labor, and refused-to. .Work'at less price. The respondents, (the' railroad company) fixed a price for "the same work, ancf 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. doing so were an inability to exercise their corporate f ran-, chises to the great injury of the" public, they (the railroad company) 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.” People v. N. Y. C. & H. R. R. Co., 28 Hun,. 543. The' court in that case allowed a writ of mandamus to compel the corporation to do its corporate duties.

That a private citizen has sufficient standing to make this application, which could unquestionably be made by the attorney general of the state, has heretofore been twice decided by this court, and I must accept it as law. And it being admitted that the company is not fully operating its lines of road, it follows that it is my duty to allow the writ prayed for, either in its peremptory or alternative form, unless a sufficient answer has been made in law.

I do not think the answer of the company is sufficient to prevent a writ from being issued. The claim of violence amounting to a prevention is not legally made out. Instances of violence, generally by others than the former employes of the company, are shown, but it is also shown that not only the police force of the city, but also over seven thousand soldiers are preserving order, and I cannot believe that this company is not protected in its rights, nor do I think any question of fact is fairly raised on that head. Besides, the persistence of the company in failing to run its cars except as it may gradually get employes to accept its terms, being in itself unlawful, as I have shown, must necessarily by its bad example tend to public disquiet, if not to some disorder. In respect of the question of hours and of wages between the company and its employes, its duty was to have gone on, and now is to go on, with its full complement of employes, having the right gradually and from day to day to supersede its employes if it can, by new employes who will work on its terms, or to supersede them all at once when it has obtained a sufficient number of new employes for that purpose; but in such a controversy it has not the right to stop its cars while it is thus gradually getting other men. If thé people of the state were running these roads they would not thus incommode and damage themselves; and it must not be forgotten that this corporation is entrusted with the running of these roads as- the servant of the people of the state.

It therefore only remains for me to determine the form of the writ, whether it shall he peremptory or alternative. In one aspect of the case there seems to be ah issue of fact preT sented, and if such an issue be presented,'the law does, not permit me 'to decide it and allow a peremptory writ, but requires me to allow'-an alternative writ, which has the effect of- reserving such issue of fact ,to be tried by a jury, or by the court if so agreed upon. At one place in its answer the company avers that a reason, why 'its employes would not continue working for it was “ that it refused to run its cars.as required, by said employes in respect to the frequency with which cars should be run, and the ■ number of cars to be run.” The ’ number of cars or trains which a railroad shall run is left- to the sound discretion of its directors, subject to review by the courts upon an application for a writ of mandamus to make . them run more if the public convenience require it. Its employes may not assume to determine the number of cars to.' be run. If,, however, this allegation in the answer refers to- . the controversy in respect óf what are called trippers, then it has no force, for that .controversy is in its essence one in respect of hours and wages.

Alternative writ granted.

A similar application against the Atlantic Ayenue Railroad Company was later disposed of as follows

■ Gaynoe, J.

To deny this application I would have to. decide that this company is prevented by violence from operating its roads ; but that I cannot find upon the papers before me. I do not find that the city and the state have failed,to fully protect its powerhouse,, its stations, its. roads arid the 'cars it has offered to run, I do not find that government. has failed, at all in its obligation of protection. The answer to the statement that there have been instances of violence, is that they Were swiftly suppressed. I cannot acquiesce, or even seem to acquiesce, in statements., which have made it appear that mob violence or riot has ruled in Brooklyn, and which, have not only given a law abiding community, a bad name, but by exciting fear in many must have done incalculable damage to business interests.' To try to forcibly prevent the company from doing its public duties would be lawlessness, while on the other hand for the company to stop running cars to beat down the price or lawful conditions of labor would be lawlessness of a much more dangerous and far reaching character. The company’s public duty is to run its cars, and it may not lawfully cease to do so on the ground that it cannot get men to work at the price or conditions it offers. The law requires it 'to continue to run its cars to the full accommodation of the public, leaving it free to supersede its men from day to day by men who are willing to work on its terms, or to supersede them all at once whén it has obtained men enough to enable it to do so. In all lawful conduct the company is entitled to the full protection of government, but it is not entitled to such protection to aid it in lawlessness. The relation between it and government is reciprocal; performance of duty on the one side and protection on the other go hand in hand. But the company by its answer having raised issues of fact, the law requires that an alternative instead of a peremptory writ be issued, so that there may be a jury trial. Code of Civil Procedure, § 2070. This court cannot change the law, but must obey.it whether it be obeyed elsewhere or not. If it be a defect in the law that the time for the1 trial of such issues may not be Shortened by the court, the suggestion is one to be made to the legislature, not to the court.

Let the writ issue.  