
    People of the State of New York, Resp’ts, v. Rome, Watertown and Ogdensburg R. R. Co., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed October 5, 1886.)
    
    1. Mandamus—Peremptory and alternative writs op.
    A peremptory writ of mandamus is only authorized when the applicants’ rights to a mandamus depends entirely upon questions of law. Where the material allegations of the application for a writ of mandamus are put in issue, or where the answering affidavits contain allegations showing that a peremptory writ ought not to he issued, the court should award an alternative mandamus in the first instance.
    
      2. Same—When granted, on application op attorney-general.
    The court will only grant the writ of mandamus on the attorney-general’s application when it is able to see from the undisputed facts alleged, that its issuance is necessary to protect some public right or to secure some public interest. Where private interests only are involved the interested parties should be the relators.
    3. Same—Railroads—What are matters op public interest to the
    PEOPLE OP THE STATE.
    A town was bonded for the construction of a railroad upon condition that a permanent depot should be erected and maintained at a certain point. Setd, that the contract rights and obligation are not in any proper sense a public matter in which the people of the state, in their sovereign capacity are interested. It must be enforced by some proceedings taken on behalf of the town, and cannot be enforced by a proceeding instituted by the attorney-general on behalf of the people of the state.
    4. Railroads—Foreclosure op mortgage on—Obligations op Suc-
    cessors.
    The contract obligation was not a charge or lien upon the property of the railroad, and would not pass by foreclosure sale to, or devolve upon, the railroads that were its successors.
    5. Same—When it can abandon onb op two op its parallel lines—
    Mandamus.
    When a railroad company owns by consolidation two lines of road running between the same points, and can substantially accommodate the people of the state by operating one line between those points, and can abandon the other line without any serious detriment to any considerable number of people, it should not be compelled by mandamus to operate both lines at a great sacrifice of money, notwithstanding a few individuals are discommoded by the discontinuance of one line.
    6. Same—When it can abandon the shorter op two lines.
    After consolidation the defendant railroad had two lines from P. to W., a direct line seven miles long and a circuitous line two miles longer. . It. could accommodate every passenger and all freight at said P. and W. by carrying it over the longer line. It was also more convenient for the people of the complaining town to reach the principal market towns than at any previous time. The only difference being that passengeis had to-change cars at a different station, and those going south from W. are obliged to travel two miles further. Held, that the company would not be com, elled by mandamus to operate the shorter road.
    Appeal from an order of supreme court, general term, fourth department, affirming an order of special term awarding a peremptory writ of mandamus.
    The attorney-general applied to the special term of the supreme court for a peremptory writ of mandamus, and'the following are the material facts alleged in his petition':
    • That. the Rome, Watertown and Ogdensburgh Railroad Company is a railroad corporation, _ organized under the laws of this state, and was engaged in the operation of a railroad from Rome, Oneida county, to Watertown, Jefferson county, and to points north on the St. Lawrence river, passing through the town of Sandy Creek, and having a station at Washingtonville; that in February, 1868, the Syracuse and Northern Railroad Company was incorporated, under the general railroad act, to construct, and it subsequently did construct, a railroad from Syracuse to the Rome, Watertown and Ogdensburg Railroad, at Washingtonville, and there formed a junction with that road; that, prior to such construction, a map locating the line and termini of the road was duly adopted by the board of directors, and filed, as provided by law, covering the location of its line and northern terminus, as subsequently constructed; that there was also a railroad from Oswego^ comiecting with the Rome, Watertown and Ogdensburg
    
      Railroad at Richland, upon which road there was a station called “Pulaski Station,” about four miles westwardly from Richland ; that the Syracuse and Northern Railroad also passed through Pulaski station, and thence, about one mile, to Pulaski village, where it had a station, and thence, about five miles, in a northerly direction, to Sandy Creek village, where there was a station, and thence, about a mile, to Washingtonville station; that while that road was thus operated the travel from Washingtonville station southerly to Syracuse was through the villages of Sandy Creek and Pulaski to Pulaski station, and thence southerly.
    That before that road was constructed the town of Sandy Creek, under statutory authority, subscribed for $80,000 of the stock of that company, and paid therefor in the bonds of the town issued for that amount; that the statutory consent for the bonding of the town was upon the express condition that the railroad should be coinstructed through the town of Sandy Creek, and a permanent depot erected at Sandy Creek village; that a mortgage was given upon that road in 1873, and that mortgage was subsequently foreclosed, and the railroad and its franchises were purchased by an individual; that subsequently, in September, 1875, a reorganization of the road was effected under “An act to facilitate the reorganization of railroads sold under foreclosure, providing for the formation of new companies,” passed April 11, 1874, and a new company, under the name of the Syracuse and Northern Railroad Company, was organized, which was vested with all the rights, privileges and franchises which at the time of the foreclosure sale belonged to or were vested in the Syracuse and Northern Railroad Company; that subsequently the Syracuse and Northern Railroad became consolidated with the Rome, Watertown and Ogdensburg Railroad under chapter 917 of the Laws of 1869, and the latter company took possession, and assumed control, of the road, and until September, 5, 1877, operated the same from Syracuse, to and through the villages of Pulaski and Sandy Creek, to Washingtonville, that the consolidation agreement recited that the Rome, Watertown and Ogdensburg Railroad Company owned and operated a railroad from Rome to Ogdensburg, and leased a road from Oswego to Richland junction; that the Syracuse and Northern Railroad Company owned and operated a railroad from Syracuse to a connection with the Rome, Watertown and Ogdensburg Railroad, at Washingtonville, and that thus the railroads formed a continuous fine of railroad between the city of Syracuse and the points and places to which the railroads of the Rome, Watertown and Ogdensburg Railroad Company did and were authorized to extend; that soon after the defendant ceased to operate that portion of the Syracuse and Northern road lying between the Oswego branch of the Rome, Watertown and Ogdensburg Railroad, at Pulaski station and Washingtonville, and removed the track on that section of the road, as well as the station-houses at the villages of Pulaski and Sandy Creek; that since that time such abandonment has continued, and still exists; that the junction formerly maintained at Washingtonville has been changed, with its attendant local advantages, to Richland; that such abandonment was and continued to be a matter of serious damage to the people of the state of New York, and especially to that portion of the people of this state who were residents and tax-payers of the town of Sandy Creek, their property and business interests, and compelling them, when desirous of travel to the village of Pulaski and city of Syracuse, to adopt a circuitous route, “involving more or less change of cars, transfer, and delay,” for which they have no remedy for damages at law.
    That by chapter 353 of the Laws of 1882 the legislature enacted that there should be created in this state, in the manner and form therein referred to, a board of railroad commissioners, with certain powers and duties therein mentioned; that, in pursuance of the provisions of that act, complaint in due form of the abandonment and proceedings above stated was made against the Rome, Water-town and Ogdensburg Railroad Company, to which complaint the company filed an answer; that a hearing was had thereon before the board, and, after due deliberation, it, on the twenty-first day of April, 1884, adjudged and determined as follows: “The judgment of the board is that the Rome, Watertown and Ogdensburg Railroad Company had no right or authority to abandon the portion of the Syracuse and Northern Road in question, and in so doing, it has violated the laws of the state, and has neglected, and now neglects, to comply with the terms of chapter 140 of the Laws of 1850, and its amendments, under which the Syracuse and Northern Railroad was created; that in so doing, and in running its trains via Rich-land junction, it usurps authority conferred by no act or law of this state. The board hereby notifies the Rome, Water-town and Ogdensburg Railroad Company of said violation, neglect, and usurpation, and recommends that said company proceed, within a reasonable time, to and do rebuild, restore, and operate said abandoned portion of its road hereinbefore particularly described;” that a copy of the determination of the board was thereafter served upon the Rome, Watertown and Ogdensburg Railroad Company, hut that it failed to comply with the recommendation of the board; and that, thereafter, on or about the fifteenth day of November, 1884, the board of railroad commisioners transmitted, in pursuance of the provisions of the act of 1882, to the attorney general, a copy of the proceedings, and its determination in the above matter.
    The application for the mandamus was opposed by the defendant, upon an affidavit of its general manager, in which he denied that the alleged abandonment by it of a portion of its former fine “has been or continues to be a matter of serious damage to the people of the State of New York, and especially to that portion of the people of the state who are residents and tax-payers of the town of Sandy Greek, their property and business interests,” and stated that, on the contrary, the present lines operated by the Rome, Watertown and Ogdensburg Railroad Company furnished greatly increased facilities to the people of the state of New York, as well as to the people of the town of Sandy Greek, above' those which were enjoyed by that community at any time prior to the last two years; that it is now far more convenient for the people of the town of Sandy Greek to reach their principal markets, the cities of Oswego, Syracuse, Watertown and Rome, than at any previous time, by means of the lines of the Rome, Water-town and Ogdensburg Railroad Company; that a far greater number of trains, both passenger and freight, are now run than were run before the alleged abandonment, and that it is an absolute fact that the passenger and freight service between the village of Sandy Greek and the cities of Oswego, Syracuse, Watertown and Rome is far more convenient, prompt and efficient than before said abandonment; that it would cost about $70,000 to restore the abandoned track, and that the annual expense of maintaining and operating that portion of the road would be about $15,000, without any addition whatever to the income of the defendant; that the defendant was engaged in a steady and determined effort to make its road in all respects a serviceable agent of the people of the state of New York, and all of the people who have occasion to use its facilities, and that if the restoration were now ordered or compelled by the courts of the state, it would result in diminishing the efficiency of the road for all the people of the state, including the people of the town of Sandy Greek.
    It further appears from the papers presented to the court that, since the abandonment complained of, passengers and freight going southerly from Washingtonville are carried to the Richland station, thence to Pulaski station, and thence to Syracuse, and that passengers and freight from Syracuse are carried to Pulaski station, thence to Richland, and thence to Washingtonville; that the passenger cars on the Syracuse and Northern Railroad all stop at and depart from Richland station, and that thus the passengers are required to change cars at that station, and that the increased distance from Washingtonville to Pulaski station, by way of Richland station, is about two miles.
    Upon the presentation of these facts, the judge, at special term, granted a peremptory writ of mandamus, commanding the defendant to proceed “to restore the abandoned portion of said road from the point where said track of the Syracuse and Northern Railroad intersects the Oswego branch at Pulaski, through the villages of Pulaski and Sandy Creek, to the Washingtonville station, só called, on the hue of the Rome, Watertown and Ogdensburg Railroad Company’s road, upon the route where said road was formerly operated at the time when said road was abandoned; and to rebuild, restore and operate said portions of such road, and to open and operate said road and route by running trains over the same at regular intervals, for the accommodation of the public in the transportation of passengers and property.”
    From the order granting the writ the defendant appealed to the general term, and from affirmance there, to this court.
    
      Daniel H. C hamberlain and William B. Hornblower, for app’lt; D. O’Brien, for the people.
    
      
       Reversing 38 Hun, 640, mem.
      
    
   Earl, J.

In his petition the attorney-general prayed for a peremptory writ of mandamus, and one was awarded. Such a writ is authorized only ‘‘where the applicant’s right to a mandamus depends only upon questions of law.” Code, § 2010. In determining whether this writ was properly issued, therefore, we must consider only such facts alleged in the petition as were not denied or putin issue, and the affirmative allegations of the affidavit presented on the part of the defendant in opposition to the application for the writ. Where the material allegations of the application for a writ are put in issue, or where the answering affidavits contain allegations showing that a peremptory writ ought not to be issued, the court should award an alternative mandamus in the first instance, in order that the issue of fact the tribunal.

As this writ was applied for by the attorney general, on behalf of the people, it must be assumed that it was issued only to subserve a public interest, and to protect a public right. If private interests only were involved, the application for the writ by the attorney general on behalf of the people was not proper. In that case it should have been applied for by the private parties interested, who should have been relators. In order, therefore, to maintain this writ, and to justify the action of the court in granting it, we must be able to see, from the undisputed facts alleged, that it was issued to protect some public right, or to secure some public interest.

It matters not that the town of Sandy Creek was bonded for the construction of the Syracuse Northern Railroad upon condition that a permanent depot should be erected and maintained at the village of Sandy Creek. If it be assumed that the bonding proceedings created a contrct between the town and the railroad company, that contract is not one which could be enforced by this writ of mandamus, issued on behalf of the people. The contract right and obligation are not in any proper sense a public matter, in which the people of the state, in their sovereign capacity, are interested. If there is a valid contract still in force, and operative, it'must be enforced by some proceeding taken on behalf of the town, and cannot be enforced by a proceeding instituted by the attorney general on behalf of the people of the state.

But the performance of the contract, if there was a valid one, never devolved upon the defendant. The contract obligation was not a charge or hen upon the property of the Syracuse and Northern Railroad Company, and remained where the unsecured obligations of the company rested after the foreclosure of the mortgage given by it. It did not pass by the foreclosure sale to or devolve upon its successors, the Syracuse and Northern Railroad Company and the Rome, Watertown and Ogdensburgh Railroad Company. In a case where the court had a discretion to grant or withhold the writ of mandamus, the circumstances attending the bonding of the town of Sandy Creek could well have been considered in determining that discretion.

Under the act (chap. 355, Laws 1882), by which the board of railroad commissioners was constituted, the decision of that board has no binding or conclusive authority. No such effect is given to the decisions of that board by any of the provisions contained in the act. Its decision in this case was merely advisory and recommendatory, and the defendant was at liberty to obey or disobey it.' It was a sufficient justification, however, for the application by the attorney general for the writ of mandamus, and, if the court had had. a discretion to withhold or grant the writ, it might properly have had some influence in the exercise of •that discretion. But no legal right in this proceeding can be based thereon.

We are left, therefore, to determine simply whether, upon the facts which we must assume to exist in this case, the defendant ought, in the-public interest, as an absolute duty, to be compelled to rebuild, maintain, and operate the small section of road which it abandoned. We have not here the question which would have to be determined if the Syracuse and Northern Eailroad Company were still in ' existence, and had abandoned the portion of its road between the Pulaski station and Washington ville station, so-that passengers and freight were carried only to and from the former station.- But we have a case where the defendant has succeeded to all the rights and obligations of that-railroad company, and the question is whether it is discharging the duty to the public imposed upon it by the-consolidation of that railroad company with it. After the consolidation it had two lines from Pulaski station to Washingtonville—a direct line about seven miles long, and a circuitous line, by way of Eichland, about two miles longer. It was not absolutely bound in law to stop any of its trains at the village of Pulaski, or the village of Sandy Creek. It would have discharged its whole duty by running its trains through from the Pulaski station to the Washingtonville station without stopping. It would cost it more than $15,000 annually to maintain and operate its direct road from Pulaski station to Washingtonville station, without adding one dollar to its income. It could accommodate every passenger and every pound of freight at Washington ville station, or at the Pulaski station, by carrying it over a line which it owned by way of Eichland. Did it not thus substantially perform the duty which devolved upon it as the successor of the Syracuse and Northern Eailroad Company ? It carried all passengers and freight ■from Washingtpnville to Pulaski station and Syracuse, and all passengers and freight from Syracuse and Pulaski station to the terminus of the Syracuse and Northern Eailroad at Washingtonville. How can it be said that it owed a duty to the public to do this over the direct line, rather than over a line near by, but two miles longer ? There is no allegation that any considerable number of people are discommoded, and it does not appear that a single person suffers any harm, except that passengers are obliged to change cars at Eichland rather than at Washingtonville station, and persons taking the cars at Washington ville station, to go southerly, are obliged to travel about two miles further.

But we must take the facts as stated in the affidavits of the defendant’s manager, read in opposition to the application for the writ, that it is not true that the abandonment of this small section of road has been and continues to be a matter of serious damage to the people of the state of New f York, or especially to that portion of the people of the state who are residents and taxpayers of -the town of Sandy Creek, but that the present line operated by the defendant between Washingtonville station and Pulaski station furnishes greatly increased facilities to the people of the state of New York, as well as to the people of the town of Sandy Creek, above those which were enjoyed at the time of the abandonment; that it is now far more convenient for the people of that town to reach their principal markets, the cities of Oswego, Watertown, Syracuse, and Rome, than at any previous time ; and that their railroad service is altogether more efficient and convenient than it was previous to the time of the abandonment. Under such circumstances, we see no reason for saying' that the interests of the people have suffered from this abandonment, or that any considerable number of the people of this state were thereby in any way injured or inconvenienced. If a few individuals were discommoded, or private interests were in any way injured, this writ is not the proper remedy for such evils.

We have, with great care, examined and considered the numerous authorities cited on behalf of the people in support of this writ, but we find none which justify it. Several cases were cited in which it was held that a railroad company could be compelled by mandamus to operate its railroad to the terminus specified in its charter (Farmers’ Loan and Trust Co. v. Henning, 17 Amer. Law Reg. [N. S.], 266; State v. Hartford and N. H. R. R. Co., 29 Conn., 538; Union Pac. R. Co. v. Hall, 91 U. S., 348; King v. Railroad Co., 2 Barn. & Aid., 646; People v. Albany and V. R. R. Co., 24 N. Y., 261), but the principles of those cases are not controlling in this, because here the railroad service is kept up between the termini of the Syracuse & Northern Railroad, and the public duty which devolved upon it at its organization is fully and substantially performed by the defendant. The present line is a little longer than the one originally adopted, and slightly varying therefrom, but it accommodates the people of the state, and the people of the locality, substantially as well as the line originally adopted. Suppose two roads were consolidated, and the lines of the two between two places were parallel, and near to each other, could the consolidated road be compelled, by mandamus, to operate both lines, or could it discharge its duty to the public by using only one line? Suppose the New York Central and the West Shore roads, as their lines approach the city of Buffalo, were parallel to and near each other, could not the New York Central, which is now substantially the owner of both roads, abandon the West Shore .line, and run into the city of Buffalo upon the New York Central line ? We do n'ot determine that in all cases, where a railroad company which by consolidation has become the owner of two lines of roads between two termini, and run-rung through different sections of country, and different cities or villages, like the two fines between Syracuse and Rochester, could abandon either of its fines, because in such cases it might well be that the public interests, and the accommodation of a large portion of the people of the state, required that both fines should be operated; but where a railroad company owns, by consolidation, two fines of.road and can substantially accommodate the people of the state by operating one fine between the same points, and can abandon the other fine without any serious detriment to any considerable number of people, we do not believe that it should be compelled, by mandamus, to operate both fines at a great sacrifice of money, upon the fanciful idea that the sovereignty of the state is wounded by its omission to operate both lines.

The defendant does not run its cars at any point where it has not the right to, and it does not exercise any franchise which it is not authorized to. - It accommodates all the travel and traffic which the Syracuse and Northern Railroad Company was required to accommodate. That road still has a connection with the defendant, and all the travel and traffic over it can still commence and terminate at Washingtonville. There is no public right to protect, and no public duty to enforce, by mandamus. We are therefore of opinion that the orders of the general and special terms should be reversed, and the application for a peremptory writ of mandamus denied, with costs.

All concur, except Andrews, J., taking no part, and Miller, J., absent. '  