
    Joseph Loader, Pl’ff, v. Brooklyn Heights Railroad Company, Def’t.
    
      (Supreme Court, Kings Special Term,
    
    
      Filed January, 1895.)
    
    1. Street railway—Burning op cars.
    A street railway company may not stop its cars for one hour, much less one week or one year to thereby beat the price or conditions of labor down to the price or condition which it offers.
    2. Same—Mandamus.
    In such case, a writ of mandamus may be allowed to.compel the corporation to perform its corporate duties.
    3. Same—Arrangements.
    Where it is admitted that the company is not fully operating its lines of road, it is the duty of the court to allow a writ "of mandamus, either in its peremptory or alternative form, unless a sufficient answer has been made in law.
    4. Same.
    Pending the question of hours and of wages between the company and its employes, the company has no right to stop its cars, while it is gradually getting other men.
    5. Same—Answer.
    Where the answer to an application' for a writ of mandamus raises an issue of fact, an alternative, but not a peremptory, writ may be granted, leaving such issue for trial.
    6. Same—Number op cars.
    The number of cars or trains, which a railroad shall run, is left to the discretion of its direcfors, subject to review by the courts upon an applica- . tian for a writ of mandamus to make it run more if the public convenience requires it.
    Application for a writ of mandamus to compel the railway company to run its cars.
    
      M. L. Towns and Delos McOurdy, for application; Thomas M Moore and eTullen T. Davies, opposed.
   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 of 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 xold, 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. Railroad Co., 18 Wend. 9; People v. New York Cent. & 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 condition's, 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 to 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 bontrol 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 of this state in 1883, after mature1 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 I doubt not it will immediately acquiesce in, for example’s sake, if for no other reason. -That case arose out of the failure of the Hew York Central & Hudson River Railroad Company to receive and forward freight as a common 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 a less price. The respondents (the railroad company) fixed a price for the same work, 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 doing so were an inability to exercise their corporate franchises, 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. New York Cent. & H. R. 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 7,000 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 the 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 intrusted 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 be peremptory or alternative. In one aspect of the case, there seems to be an issue of fact presented; 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 issse 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 of 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 is granted.  