
    STATE ex rel. SKEEN v. OGDEN RAPID TRANSIT COMPANY.
    No. 2172.
    Decided November 25, 1910
    (112 Pac. 120).
    1. Rauííoads — Duties to Stop to Receive and Discharge Passengers — Statutes. The duties imposed on carriers by Comp. Laws 1907, section 449, requiring every railroad to furnish sufficient accommodations for the transportation of persons and property at any station or stopping place established for receiving and discharging passengers and freight, must be discharged by a carrier at depots or stopping places duly established, and it does not require a carrier to stop its cars at any particular place to discharge or receive passengers. (Page 250.)
    2. Railroads — Duties to Establish Stations — Power oe Courts. The statutes do not confer on the courts power to determine whether a carrier should or should not establish and maintain a depot or stopping place for the reception and discharge of passengers or freight, or either, at any particular place or places along its line of road. (Page 250.)
    3. Mandamus — Performance oe Common-Law Duty. Where the common law imposes on a person a duty and the right of another to require performance thereof is clear and reasonably free from doubt, mandamus lies to compel such person to discharge that duty. (Page 251.)
    4. Railroads — Regulation—Depots. The Legislature may, within limits, direct where a carrier shall maintain depots or stopping places for the convenience of the public, and it may require a carrier to stop its trains or some of them at such depots, or stopping places, or it may confer the power to determine whether a carrier shall do so on some board, and, in either case, the courts may coerce a defaulting carrier by mandamus to comply with the legislative edict or with an order of the board. (Page 251.)
    5. Railroads — Regulation—Depots. Under ordinary circumstances, no inherent power is vested in the courts to control a carrier in its determination of the number of depots or stopping places that it will establish or maintain, or in the selection of the places where it will establish and maintain them along its line of railroad, but the matter is for legislative regulation. (Page 253.)
    6. Carriers — Regulation—Discrimination. The courts may prevent discrimination by a carrier. (Page 253.)
    
      7. Mandamus — Regulation—Discrimination. Where the duty of a carrier to receive a particular person at a particular place is clear, the courts may by mandamus compel the carrier to discharge the duty. (Page 253.)
    8. Courts — Jurisdiction. A court is an agency of the state by means of which justice is administered, and it may not exceed the powers vested in it for the sole reason that in its judgment it is necessary to exercise the power in the administration of justice. (Page 254.)
    9. Carriers — Train Service — Discrimination. The court in determining whether an interurban railway company is guilty of discrimination because it stops its cars to receive and discharge passengers at resorts along its line and refuses to do so at another resort may not consider the fact that it stops its cars at one resort, where such stop is by virtue of a special contract executed by it for a valuable consideration. (Page 255.)
    10. Railroads — Train Service — Discrimination—Statutes. Under Comp. Laws 1907, section 455, providing against discrimination from the same place under like conditions, and independent thereof, an interurban railway which stops its cars to receive and discharge passengers at resorts along its line of road and which refuses to do so at another resort is not guilty of discrimination, in the absence of evidence that any person stopped off at the former resorts simply because he could not do so at the latter resort, though the carrier refuses to stop at the latter resort merely out of ill will,' and though there is no ground for its refusal to receive and discharge passengers there. .(Page 255.)
    11. Railroads — Mandamus—Discrimination—Remedy. Where a carrier refuses permission to one person to enter or alight from its cars at a place where under similar circumstances it extends the privilege to others, the carrier is guilty of discrimination against the former, and the court may by mandamus prevent it. (Page 257.)
    Appeal from tbe District Court, Second District; Ron. J. A. Row'dl, Judge.
    Mandamus by tbe State, on relation of J. D. Sbeen against tbe Ogden Rapid Transit Company.
    Judgment for plaintiff. Defendant appeals.
    
      REVERSED AND REMANDED.
    
      Richards & Boyd for appellant.
    
      J. D. Blceen for • respondent.
    
      
       Larson v. Salt Lake City, 34 Utah, 318, 97 Pac. 483, 23 L. R. A. (N. S.) 462.
    
   ERICK, J.

On tbe 27 th day of June, 1910, the plaintiff applied to the district court of Weber County, Utah, for a writ of mandate to require the defendant, as a common carrier of passengers, to stop its ears at a certain place named in the application for the purpose of permitting the plaintiff and others to enter upon said cars as passengers and to alight therefrom at the place stated. The district court, after a -hearing, issued a peremptory writ in which the prayer of the plaintiff was granted, and the defendant now presents the record of the proceedings in due form to this court for review on appeal.

A careful reading of the entire record, including all of the evidence adduced at the hearing, discloses substantially the following facts concerning which there is practically no dispute:

The defendant is a corporation organized as a common carrier of passengers, and owns and operates a certain line of street and interurban railway. The line of railway is operated, as aforesaid, for a distance of about seven miles between the Ogden Union Depot and what is known as the “Hermitage” located' in Ogden Canyon, in Weber County, Utah. At the mouth of -Ogden Canyon is located what is known as the Ogden Canyon Sanitarium, which is a public summer resort. A hotel for the accommodation of patrons, saloon, dance hall, and other places of amusement, are maintained there for the pleasure and amusement of the public generally. The sanitarium is located immediately east of the corporate limits of Ogden City, and west of that point defendant’s railway is operated as a street railway while east thereof — that is, within the Ogden Canyon proper — the road is operated as an interurban line. Some distance east of the sanitarium, and witbin Ogden Canyon, there is what is known as the “Peery Resort,” where a few people temporarily live during the summer season. About three-quarters of a mile further east, and up the canyon, is what is known as the “Lewis Resort,” which is located on lands owned by J. S. and Eva Lewis, and to which' we shall further refer hereafter. Farther up the canyon still is what is known as the “Hermitage,” which is the eastern terminus of defendant’s line of railway. The Hermitage, like the Ogden Canyon Sanitarium, is a public resort with hotel and other conveniences, dancing pavilion, boating pond, and other attractions similar to those at the sanitarium aforesaid. The Ogden River, a considerable stream of water, flows through Ogden Canyon. The canyon is therefore a desirable place for camping, and for many years has been used by many citizens as a temporary place of residence during the summer or heated months of the year. While the canyon proper at many places is too narrow, and the sides thereof too precipitous, to be used for the purposes of either public or private resorts, yet there are numerous places where the canyon widens out somewhat, and at -some of such places public resorts have been established, while at other points resorts for summer residence have been maintained as aforesaid. A good road for all kinds of ordinary vehicles has been constructed and is maintained in the canyon.

It appears that prior to 1909 the line of railway terminated at the sanitarium, but that in that year the road was extended into the canyon to the Hermitage as before stated. In extending the line the road passed through the Peery resort before mentioned, and also through said Lewis resort. In consideration of being granted a right of way through* the lands owned by the Peerys the defendant entered into a contract whereby it agreed to stop its ears at that point when requested to do so by any person who desired to enter on or to alight from its cars there. Pursuant to this agreement the defendant has stopped and continues to stop its cars on request at said point. When the land owned by Lewis was reached, the defendant was refused permission to construct its road thereon, and it was compelled to condemn a right of way through the same, and a strip of land one rod in width and a little over two thousand feet in length was accordingly condemned through said lands for a right of way. In the cénter of said tract defendant laid its track, which is standard guage, namely, four feet, eight and one-half inches between rails, while the cars are about eight feet, ten inches wide, projecting somewhat over each rail. While the Lewises own quite a large tract of land in and along each side of the canyon, the amount that is fit for summer residence is merely an oblong strip embracing between four and five acres of ground through which defendant’s line of railway is constructed and operated. When the line of railway was constructed in the summer of 1909, the defendant requested, and was given permission by Mr. Lewis to stop its cars at a certain private road crossing on the strip of land used for summer residences as aforesaid. What is called the Lewis resort is purely private — that is, a small parcel -of ground is leased to any one who desires to pitch a tent on the strip, or Mr. Lewis, with the land, also furnishes the tent or summer cottage to any one desirous of renting an abode during the summer months. Mr. Lewis testified that about nine-tenths of all the tenants rent the tent or house from him, while the remainder provide their own tents or summerhouses. Either the parcel of land to live on, or the tent or house, is rented for the summer season commencing some time in June and ending some time in September of each year, and each tenant is given the privilege of taking the same place the following summer if he so desires. The business has been conducted as aforesaid at the so-called Xewis resort for quite a number of years, and the number of those who have rented summer residences or places there las increased somewhat each year. This year there were ¡about one hundred persons, children and adults, - exclusive •of the Lewis household, living at the resort.

In June of this year plaintiff rented a summer residence from Lewis, and in that month moved into it with his family. On the 27th day of April, and before the summer season opened in Ogden Canyon, tbe defendant posted notices in its cars that after that date it would not stop any of its cars at any point in the canyon “between Peery’s and the Hermitage.” The defendant also prepared a schedule for the running of its cars between said Ogden Union Depot and the Hermitage, and at the time of plaintiff’s demand was operating them in accordance with said schedule. According to this schedule, west of the sanitarium, and within the Ogden city limits, the cars are stopped at regular intervals, and at such places signs are placed on the overhead wires which read: “Cars stop here.” In this connection the evidence shows that one of the motormen, perhaps some others, upon request, has stopped^and permitted some persons to enter the car at points other than where the signs are put up, but it also appears that to do this was contrary to the orders of defendant, and occurred only on rare occasions. It also is made to appear that during the period of time that the road was being constructed in the summer-of 1909 in Ogden Canyon the defendant’s motorman also frequently permitted persons to either get on or alight from the cars at the Lewis resort, or at the upper end thereof at the point where the defendant at that time maintained a switch, but which has since been removed. There is no evidence, however, that the defendant stopped its cars for the purpose of permitting any person either to enter on or to alight from them at any point in the canyon except at the sanitarium, Peery’s, and the Hermitage after the 27th day of April', 1910. On the contrary, the evidence is all to the effect that within the canyon the cars were stopped only at those three points. On the 16th day of June, 1910, plaintiff demanded from the defendant that it stop its cars at the Lewis resort for the purpose of receiving him as a passenger on one of its cars, and on the same day, while he was returning on one of defendant’s cars as a passenger from Ogden City to said Lewis resort to his family, plaintiff timely demanded, from defendant’s conductor in charge of the car that said car be stopped at the Lewis resort for the purpose of permitting plaintiff to alight therefrom.. The defendant, through its conductor, refused, and continues to refuse the request of the plaintiff, and refuses to stop its cars or any of them at said Lewis resort, and refuses to receive the plaintiff or any one else at that point as a passenger, and also refuses to stop its cars or any of them to permit the plaintiff or any other passenger to alight therefrom at said point. The evidence also shows that at least a number of those who have rented summer residences at the Lewis resort carry on or conduct some business in the city of Ogden and are desirous of passing daily over its line between said resort and Ogden City, and that many of them, including the plaintiff, are considerably inconvenienced by defendant’s refusal to stop its cars at the Lewis resort because they must either stop off at the Peery resort and walk three-quarters of a mile east on the defendant’s track to reach their summer .home at the Lewis resort, or must pass through that place and go to the Hermitage one mile beyond, and then walk down the track for that distance to reach their summer home.

Mr. Lewis also testified that the permission to stop the cars which he gave the defendant in 1909 has never been withdrawn, but further says that he never granted, and that the defendant has not obtained, any other facilities to stop its cars on his land except the one-rod strip which was condemned, and that there are no public roads or highways which enter the resort located on his land. ILe also says that the resort is purely .private, and no one can locate on tho land without his permission and without paying rent, and that all ingress and egress to and from the same is shut off between the months of October of one year and June of the following year. It is also made to appear that defendant’s cars can be stopped with the same facility at the Lewis resort that they can be at any of the other resorts, and that defendant does stop its cars at at least one place where it has no better facilities to stop them than it has at the Lewis resort.

It is also contended, and the court so found, that the reason for refusing to stop the cars at the Lewis resort is “entirely because of ill will and malice growing out of certain condemnation proceedings instituted against John S. Lewis by tbe said defendant.” Tbis finding is, however, assailed by tbe defendant upon tbe ground tbat it is not supported by tbe evidence. Tbe only evidence to support it is tbe testimony of tbe plaintiff, wbo, in answer to a question propounded to bim while a witness in bis own behalf as to whether be did not know tbat tbe defendant would not stop its ears at tbe Lewis resort before be went there in June, 1910, testified: “Wellj Matt. Browning told me tbat they were going to get even with Mr. Lewis on tbat proposition, and I rather supposed it was of a temporary nature.” By tbis tbe witness meant tbat tbe refusal to stop1 cars at tbe Lewis resort would be merely temporary. When, and under what circumstances, tbe statement was made, and what, if any, relation Matt. Browning sustained to tbe defendant at tbe time it was made, is not disclosed. Tbe finding in our. judgment is not supported by any evidence. But, in view of all tbe circumstances, tbe finding is without controlling force, as will more fully appear hereafter.

We have been thus explicit in stating tbe facts for tbe reason tbat tbe case is one of first impression in tbis state, and because no claim is. made tbat tbe defendant either in its charter or by contract has assumed tbe duty of stopping its cars at tbe Lewis resort. Tbe plaintiff, however, contends tbat tbe duty to stop its cars is imposed upon tbe defendant either by tbe common law which is in force in tbis state, or by section 449, C’omp. Laws 1907, which reads as follows:

"Every railroad company shall furnish sufficient accommodations for the transportation of all persons and property as shall, within a reasonable time previous to the departure of any train, offer or to be offered for transportation at any station, siding or stopping place established for receiving and discharging passengers and freight, and at any railroad junction; and shall take, transport, and discharge such passengers and property at, from, and to such places, on the due payment of tolls, freight, or fare therefor; and if the company or its agents shall refuse to take and transport any passenger or property, or to deliver the same at the regularly appointed places, it shall be liable to the party aggrieved for all accruing damages, including costs of suit.”

Upon the other hnd, the defendant insists that no such duty is imposed by either the common law or by the provisions of the foregoing section, and further contends that no authority is vested in the courts of this state to require the defendant to establish a depot or - stopping place, or to stop its ears, at any particular point along its line of railroad for the purpose of receiving or discharging either freight or passengers, and that, therefore, the district court has exceeded its powers in issuing the peremptory writ of mandate.

A mere cursory reading of the foregoing section discloses that it contains nothing from which the court can deduce a legislative command that a common carrier must establish and maintain depots or stopping places at any particular place or places along its line of road. The duties imposed by that section are to be discharged by the common carrier at depots or stopping places which have been duly established, and what is there said had no reference to the establishment of depots or stopping places, or to the stopping of trains or cars, where there are no regularly established depots or stopping places. The defendant, there- fore, was not required to stop its cars at the Lewis resort by reason of the provisions of section 449, supra. Nor is there anything in that section or in any other to which our attention has been directed or that we can find which confers upon any of the courts of this state the right or power to determine whether a common carrier should or should not establish and maintain a depot or stopping place for the receipt and discharge of passengers or freight or either at any particular place or places along its line of railroad. There was therefore neither a contractual nor a statutory duty imposed on the defendant to stop its cars at the Lewis resort.

The next inquiry, therefore, is: Does the common law impose the duty upon a common carrier to establish and maintain depots or stopping places along its line of railroad for the accommodation and convenience of individuals or communities at points other than such as the carrier in its judgment deems necessary and proper in tbe conduct of its business ? If tbe common law imposes sucb a duty upon tbe defendant in this case, and tbe right of tbe plaintiff to require tbe defendant to comply with it is clear and reasonably free from doubt, then tbe power of tbe district court to coerce tbe defendant -by mandamus to discharge that duty is likewise beyond question. It is now well settled that tbe legislature of any state may within certain limitations determine and direct at what places a common carrier shall establish and maintain depots or stopping places for tbe convenience of the public, and that it may require tbe carrier to stop its trains or cars, or some of them, at sucb depots or stopping places, and that tbe legislature, within what are now well-defined limits, may confer tbe power to determine whether tbe carrier shall do so or not upon some board or tribunal. In either case tbe courts have tbe power to coerce a- defaulting carrier by mandamus to comply with tbe legislative edict, or with the order of sucb board or tribunal. 33 Cyc. 43, 44. TJpon the question whether tbe courts may inquire into and determine tbe necessity for establishing a depot at a certain place, and, if it be found by tbe court that the necessity for one exists, in tbe absence of statutory authority to do so, may order a carrier to establish sucb a depot or stopping place for tbe receipt and discharge of freight and passengers, tbe courts are not unanimous. A careful analysis of tbe cases will show that, while a number of cases are usually cited in support of tbe doctrine that tbe courts possess inherent power to control tbe carrier in tbe establishment of depots or stopping places, yet there is in fact but one case that really goes to that extent, namely, tbe ease of State v. Republican Valley Ry. Co., 17 Neb. 647, 24 N. W. 329, 52 Am. Rep. 424. Tbe cases upon tbe subject are nearly all collated by Mr. Elliott in notes to section 662 in volume 2 of tbe second edition of bis excellent work on Railroads. Tbe decisions in all of tbe cases, except tbe one from Nebraska, are in fact based upon particular statutes. There are quite a number of courts, however, who have given tbe subject careful con-sid.era.tion, and, after doing so have arrived at the conclusion that under ordinary circumstances no inherent power is vested in the courts of his country to control a common carrier in its determination of the number of depots or stopping places that it will establish and maintain or in the selection of the places where it will establish and maintain them along its line of railroad. Among the well-considered cases in which the question is passed on are the following: Nashville, etc., Ry. Co. v. State, 137 Ala. 439, 34 South. 401; Northern Pac. Ry. Co. v. Washington ex rel. Dustin, 142 U. S. 492, 12 Sup. Ct. 283, 35 L. Ed. 1092; State ex rel. Smart v. Kansas City, etc., Ry. Co., 51 La. Ann. 200, 25 South. 126; People ex rel. Linton v. Brooklyn, etc., Co., 172 N. Y. 90, 64 N. E. 788; People v. N. Y. L. E. & W. Ry., 104 N. Y. 58, 9 N. E. 856, 58 Am. Rep. 484; State ex rel. Atty.-Gen. v. Southern, etc., Co., 18 Minn. 40 (Gil. 21) ; Chicago, etc., Ry. Co. v. People ex rel. Atty.-Gen., 152 Ill. 230, 38 N. E. 562, 26 L. R. A. 224; Honolulu Rapid Trans., etc., Co. v. Hawaii Terr., 211 U. S. 282, 29 Sup. Ct. 55, 53 L. Ed. 186; Atchison, Topeka & S. F. Ry. v. Denver, etc., Ry. Co., 110 U. S. 667, 4 Sup. Ct. 185, 28 L. Ed. 291.

In Northern Pac. Ry. Co. v. Washington ex rel. Dustin, supra, Mr. Justice Guay, after discussing at some-length the lack of the power of the courts in this regard, at page 500, says:

“To hold that the directors of this corporation, in determining the number, place and size of its stations and other structures, having regard for the public convenience as well as its own pecuniary interests, can be controlled by the courts by writ of mandamus, would be inconsistent with many decisions of high authority in analogous cases.”

In support of this doctrine both American and English cases are cited. The case of State v. Republican Valley Ry. Co., supra, is referred to by Mr. Justice Gray, but it is disapproved. It is true that in the Northern Pac. Ry. Co. Case, supra, there is a dissenting opinion concurred in by two of tne justices, but a careful perusal of tbe dissenting opinion discloses tbe fact that tbe dissenting justices merely assumed tbe power to be vested in tbe courts without inquiring from wbat source sucb a power is derived. In all of tbe cases wbicb we bave cited above, tbe facts and circumstances were much stronger than they are in tbe case at bar, but, notwithstanding this, tbe appellate courts all promulgated tbe doctrine that tbe power to control a common carrier with respect to proper depots or stopping places for its trains or cars for tbe convenience of tbe public is inherent in tbe legislative, and not tbe judicial, department.

When tbe legislature has declared when and under wbat conditions and circumstances depots and stopping places shall be established and maintained, tbe courts may be mandamus compel tbe carrier to comply with tbe conditions imposed by tbe legislature, but tbe courts bave no inherent power to determine for themselves when, where, and under wbat conditions and circumstances a common carrier shall establish and maintain a depot or stopping place for tbe convenience of tbe public, or to stop its trains or ears at a particular place either to receive or discharge a passenger or passengers. It is true that courts may pre- vent discrimination, and, where tbe duty to receive a particular person at a particular place is clear, tbe courts may, by writ of mandate, compel tbe carrier to discharge sucb duty.

From tbe record it is made to appear that tbe district court in issuing tbe writ of mandate in this case was impelled to do so for tbe following reasons, wbicb we give in bis own words: “It seems to me that inasmuch as tbe court cannot find any other valid reason Jor tbe failure of this company to perform its duty to tbe public at this particular resort, and inasmuch as the uncontradicted testimony in this case shows that it is a matter of spite against Mr. Lewis on account of tbe proceedings that were bad in this court as it has been shown by tbe statement wbicb Mr. Browning made as testified to by Mr. Skeen, wbicb is uncontradicted by Mr. Browning, this court should let its mandate issue.” Tbe court then proceeds to state that under tbe decisions of tbe Supreme Court of tbe United States there is some doubt of tbe power of tbe court to compel tbe defendant to comply with plaintiff’s demands, but notwithstanding such doubt tbe court grants tbe writ for the reason, as appears from bis own statement, that “this court should not consider itself absolutely helpless to remedy this obvious discrimination on tbe part of this carrier; and, if it is helpless, some other court will have to decide that it is so.” Courts no doubt are often tempted to, and do, interfere where in their judgment justice demands interference, although there may be some doubt with respect to their power. It should be remembered, however, that courts are merely the agencies of the sovereign state by means of which the sov- ereign administers justice, not according to the notions of the judges, but in accordance with fixed rules and forms of law. A court may in its judgment deem the exercise of a certain power necessary in order to administer full and complete justice in a particular case, yet unless the power to be exercised is one of the inherent powers of the court, or is conferred upon it by the lawmaking power, the court would be guilty of usurpation if it exercised the power, although to do so might reflect justice in that particular case. The doctrine that courts may not exceed the powers vested in them, for the sole reason that in their judgment the exercise of such a power is necessary in the administration of justice is clearly stated and illustrated by Mr. Justice Straup in the case of Larson v. Salt Lake City, 34 Utah 318, 97 Pac. 483, 23 L. R. A. (N. S.) 462. In that case the district court exercised what in our judgment constituted a legislative power which the legislature had not authorized the court to exercise, and for that reason, and for no other, the judgment of the lower court was reversed by us. In our judgment the same principle is involved here. The power that the district court exercised in this case is under the great weight of authority clearly legislative, and not judi-dicial, and, unless and until the legislature confers the right upon the courts to exercise such a power, they cannot legally exercise it, although to do so would reflect justice in a particular case. It is true that the district court seem to be impressed with the thought that this was a case of discrimination, and that the court, as he expressed it, was not “helpless to remedy this obvious discrimination.” By this the court meant that because the defendant stopped its cars at the sanitarium, at Peery’s, and at the Hermitage, and did not do so at the Lewis resort, therefore the defendant discriminated against the Lewis resort and in favor of the other resorts. That this so-called discrimination was not in favor of the other resorts is too obvious to require argument. The evidence is conclusive that no person stopped off at any of the other resorts simply because he could not stop off at the Lewis resort. Moreover, the Lewis resort is a place where certain persons stopped off only because they had a temporary abiding place there, and not because they sought after amusement or entertainment, as was the ease at the sanitarium and at the Hermitage. The only discrimination, therefore, that could possibly exist would be one against the Lewis resort, which wonld have to be based on the mere fact that the cars of the defendant refused to stop at that place while they stopped at the other resorts. The so-called Peery resort cannot be taken into consideration, since the cars stopped there by virtue of a special contract and for a consideration received by the defendant. It is manifest, therefore, that the district court in truth and in fact merely directed the defendant how to conduct its business under particular circumstances under the guise of preventing discrimination. If a common carrier by stopping its trains or cars at one village or settlement and by refusing to do so at another village or settlement through which its trains and cars pass and where the cars can be stopped is guilty of legal discrimination against the latter village, then it follows that a common carrier must stop its trains or cars, or some of them, at every village or settlement through which it passes if requested to do so by the inhabitants or some of them, or it will be guilty of discrimination. In the absence of a statute requiring the carrier to do so, it ordinarily at least commits no breach of duty in failing or refusing to stop its cars at one village, although it does so at another similarly situated. Nor was the defendant guilty of discrimination against the plaintiff or others who, like him are staying at the Lewis resort. Our statute (section 455, Comp. Laws, 1907), which is declaratory of the common law, simply provides against discrimination “from the same place, under like conditions, under similar' circumstances and for the same period of time.” Nor is the fact that there is no good reason why the defendant does not stop its cars at the Lewis resort, or that it refuses to do so because of ill will of one or more of its managing officers, a matter of controlling importance: Where the power to examine into the question whether the carrier should stop its trains or cars at certain places under certain conditions and circumstances is conferred either upon a court or some other body, or tribunal, it may easily become material if not a controlling factor in the case that the carrier refuses to stop its trains or cars at a particular place out of mere ill will. Where, however, as in this case, the court is powerless to compel the carrier to stop its cars at a particular place, it is, to say the least, immaterial upon what ground the refusal to stop is based. We have no hesitancy in saying that, if the matter were left to our judgment or discretion, we would be compelled to hold that under the undisputed facts and circumstances of this case defendant’s refusal to stop some of its cars, at least mornings and evenings, at the Lewis resort, is wholly inexcusable, if not entirely arbitrary. This, however, is a matter to be regulated by the legislature, and not by the courts.

Where the legitimate power of the court ends and it nevertheless acts, the act is usurpation pure and simple, and any attempt to justify the act upon the ground that in the opinion of the court justice demands the act cannot rescue the act from constituting usurpation, nor does it palliate the offense. If the defendant had refused plaintiff permission either to enter upon its cars or to alight therefrom at the Lewis resort, while, under similar circumstances, it extended tbe privilege to enter and .to alight from its cars to others at that place, it would be a clear case of dis- crimination against the plaintiff. It would likewise constitute a refusal upon the part of the defendant to discharge a plain legal duty it owed to him. Under such circumstances, the court could require the defendant to discharge its duty by a writ of mandate. But, as we have seen, we are not dealing with such a case, but are dealing with a case where the defendant at a particular place treats all alike who live or are at that place, but does not treat them the same as it does others who live or are at some other places which are surrounded by somewhat different conditions and circumstances. To compel the defendant to treat all of the settlements or communities along its line of railroad alike is, as we have shown, a matter for legislative, and not for judicial, regulation.

We do not wish to be understood as holding that conditions and circumstances may not arise under which a court, even in the absence of a statute, would not be authorized to interfere as against the arbitrary acts of a common carrier in failing to provide facilities and conveniences for the public. When and under what conditions the courts might have power to interfere upon equitable or other grounds is not before us, and upon that question we express no opinion. All that we decide at this time is that, under the undisputed facts and circumstances of this case, the district court was not justified in issuing the writ.

The judgment is therefore reversed and the cause remanded to the district court, with directions to dismiss the proceedings. Appellant to recover costs.

STNAUP, C. J., and McCARTY, J., concur.  