
    The State v. Railway Company.
    .A railroad corporation assumes the- performance of duties for the benefit of the public generally. When such corporation, for a period of five years, fails to construct the line of railroad named in its charter, but condemns private property and constructs a railroad wholly unsuited to the wants of the public, and for the benefit only of coal mines, owned and operated by the principal corporators and stockholders of such railroad company, it is a misuse of its corporate powers, franchises and privileges.
    Quo Warranto. Error to the District Court of Mahoning County.
    On the 9th -day of May, A. D;, 1871, the certificate of incorporation of the Hazelton and Leetonia Railway Company was filed in the office of the secretary of state of Ohio. Its railroad as set forth in this certificate was to be located and operated in Mahoning and Columbiana counties, commencing at a point on the Cleveland & Mahoning railroad at Hazelton and. terminating at a point on the Niles & New Lisbon railroad, five hundred feet north of the Leetonia Iron Company’s blast furnace in the village of Leetonia, a distance of about twenty miles. The capital stock was fixed at two hundred thousand dollars. The corporators were C. H. Andrews, L. G. Andrews, W. C. Andrews, A. K. Price and L. E. Cochran. The' stock was subscribed for and the organization of the corporation effected in accordance with the forms of law. C. H. Andrews, L. G. Andrews, and W. C. Andrews each took thirteen hundred shares, or sixty-five thousand-dollars of stock. L. E. Cochran took fifty shares. A. K. Price, forty, Jas. Neilan, five, and J. M. Bowman, five.
    In August, 1876, an information in the nature of a quo warranto was filed in the district court of Mahoning county against the Hazelton & Leetonia Railway Company asking that it be ousted of its right to be a corporation and of all its franchises as such. To this information special demurrers were filed and sustained by the court. In accordance with leave granted by the court an amended information was filed May 15, 1877, which contained three counts. To each of these counts, pleas were filed. The issues were made up by replication on the part of the relators. The controlling questions, as made by the pleadings, were two:
    1. Did the Hazelton & Leetonia Railway Company misuse the powers, franchises and privileges conferred upon it?
    2. Did it non-use its powers, franchises and privileges for a period of five years before the filing of the original information ?
    The district court found in favor of the railway company, and the case is in this court upon a petition in error.
    
      B. F. Hoffman, attorney for relators.
   Nash, J.

The only question which we can determine in this case is, as to whether the judgment of the district court was manifestly against the weight of the evidence. After an examination of all the testimony, we cannot concur in the finding of the district coiirt. To our minds there had been, for five years prior to the commencement of this proceeding, not only a non-user'of the powers, franchises and privileges conferred upon this corporation, but there had also been a palpable misuse of them.

Under its charter this railway company had a right to construct and operate a railroad, as a common carrier and for the benefit of the public, from the town of Hazelton to the village of Leetonia. It assumed the performance of duties for the benefit of the public generally. It wholly failed, prior to the filing of the original information, to take any steps looking toward the accomplishment of this purpose. It condemned right of way and constructed a track about two and one-half miles in length, three feet, two inches wide, with heavy grades and sharp curves, to coal mines owned and operated by the principal corporators and stockholders of the railway company, and suitable only for the transfer of the coal from these mines to Hazelton, where there are other railroads. No passenger cars were put upon the road, no depots or freight-houses were constructed, and nothing done to secure, or accommodate, public traffic or travel. Judging from the things done by the corporation, its sole object was to furnish a means of transferring the products of the private mines, owned and operated by the principal incorporators and stockholders, to a place where they could be carried to market.

Judgment reversed and cause remanded.  