quantity on the same terms as those on which it is supplied to others, to one inhabitant who is willing to comply with such terms.1 § 893. Inspection of books by creditors.-The right is generally given by statute to creditors as well as stockholders, to make inspection of the stock registry of corporations, organized for profit. And where a per sonal liability is imposed upon stockholders in favor of creditors in connection with such rights, it follows that in case he had obtained a judgment and execution thereon had been returned unsatisfied, it might be necessary, as the only means of making such personal liability available, to ascertain the names of the stockholders from the books. Under these circumstances, mandamus will lie on behalf of a creditor.2 § 894. To compel the performance of public duties.-The doctrine was early asserted by the English courts that a railroad company, having been chartered to construct its line upon a designated route, and having begun the construction of the line between the designated termini, could be compelled by mandamus to complete the undertaking. But this doctrine was subsequently overthrown in England, and the question has never been directly passed upon in this country. The reasoning employed in some of the English cases is, that in case of merely permissive provisions in the charter, coupled with the grant of authority to exercise eminent domain, no contract is created between the sovereign and the decision upon the legality of the steps which had been taken previous to the presentation of the warrant for his signature was not considered final. The words "fair" were not considered as adding anything to the force of the word "legal," but was one of these expressions which are put in for the sake of the sound and which convey no definite meaning." 66 1 People v. Manhattan Gas-Light Co., 45 Barb. 136. corporation for the construction by the latter of the whole or any portion of the road. And this rule equally applies to canal, turnpike and other companies undertaking public improvements. The policy of refusing the writ in such cases is undoubtedly correct; but the reasoning upon which it is sought to be supported appears unsound. Why should a charter ever be granted containing a grant of the important and prerogative right to exercise eminent domain with a designation and description of the place where it is to be exercised, except upon the condition always implied, if not expressed, that by the acceptance of such grant, the improvement shall be made? As we shall see, the state may by quo warranto proceedings forfeit the charter of corporations for non-performance of conditions imposed by law, whether they be express or implied; the contractual relation between the corporation and the state for that purpose being generally recognized.1 If it is recognized for that purpose why not for another and a more important purpose? The public cannot be more interested in having an unused and valueless franchise forfeited than in having a contract for the making of valuable public improvements carried out. The true and the only sound reason for refusing the writ in such cases, rests upon the difficulties which would be encountered in enforcing it. The same grounds of impracticability exist against the remedy as those which have been mentioned in suits for specific performance brought by subscribers for stock in quasi public corporations upon condition that the improvement shall be located at a certain place, namely, that the court will not undertake the superintendence of 1 Supra, § 966. vast enterprises calling for large expenditures of capital and involving the exercise of peculiar scientific knowledge and mechanical skill. That the refusal to grant a writ of mandate in these cases should rest upon the grounds of inexpediency, and upon no other, is borne out by the practice of the courts in granting it in cases where its proper execution may be superintended, as where bridges and crossways at the intersection of streets and public highways are needed for public travel and convenience. The remedy by mandamus should be granted to the state in all cases where a clear duty is either impliedly or expressly assumed by quasi public corporations in consideration of the franchises granted to them by the state to complete the construction of their roads on the route designated in the charter; provided, first, the public interest and convenience demands such completion, and second, that the existing circumstances and facts show that the powers and instrumentalities possessed by the courts are adequate to the due enforcement of such remedy if granted.' The argument advanced by some of the English judges that the public interest cannot be subserved by an investment in an enterprise when such investment will, in all probability, prove unprofitable, is a mere assumption which excludes in advance all evidence of what is such public interest. The mere profitableness or un i Queen v. York & N. Midland R. Co., 1 El. & Bl. 178, reversed on error in the Exchequer Chamber, Ib. 858; Queen v. Eastern Counties Ry. Co., 10 Ad. & E. 531; Queen v. York, Newcastle & Berwick R. Co., 16 Ad. & E. N. S. 886; Queen v. Gt. Western R. Co., 1 El. & Bl. 253, reversed on error in Exchequer Chamber, Ib. 874. Mr. High takes a position in agreement with the later English cases on this subject and in opposition to the view of the text. High on Extr. Rem. Sec. 317. The reasoning in support of the position that the railway company in such cases is under an implied contract to construct its road in consideration of the grant, was very forcibly and comprehensively stated by Lord CAMPBELL, C. J., in Queen v. York, etc., Ry. Co. in the Court of Queen's Bench, supra. profitableness of an undertaking is not considered as furnishing a sufficient or even any excuse whatever for the non-performance in the case of ordinary contracts. Why should a different rule ever apply in the case of contracts between corporations and the state? § 895. Construction of bridges and approaches to crossings. The appropriateness of the writ of mandate for compelling the construction and maintenance of bridges and approaches to public highways according to the requirements of law, has long been practically recognized both in England and in this country. The remedy was applied in the case of a railway company required to construct a bridge across a navigable stream, in the manner prescribed by its charter so as not to obstruct navigation;1 and also where to keep and maintain in repair was the duty specified. And it is no defence to the proceeding that the structure described in the application is a nuisance, for which an indictment will lie, since that would not afford the specific relief to which the petitioner is entitled.2 In the absence of legislative enactment to the contrary, it is the common law duty of a railway company to have every highway that it crosses in a safe condition for the use of the public; and mandamus is the proper remedy to compel performance of that duty.3 1 State v. Northeastern R. Co., 9 Rich. 247. 2 State v. Wilmington Bridge Co., 3 Harr. 312; In re Trenton Water Power Co., Spencer, 659. Aside from the indictable consequence of the nuisance and independent of the fact that an action at law will afford an adequate remedy for past injury, a mandamus was granted to compel the construction of a bridge over a canal which intersected a private road. The court said: Damages might perhaps do for the past, but they are not adapted to the future. The obstruction will still remain. Really, however, the injury is manifestly of a kind which it is impossible to measure with any approach to certainty by damages. And when there is no other adequate remedy mandamus lies." Hebesham v. Savannah, etc., Canal Co., 26 Ga. 665. People v. Chicago & Alton R. Co., 67 Ill. 118. It will lie in favor of a city § 896. To compel operation of road. Whatever the proper rule as to compelling railroad, canal and other companies engaging in works of public improvement to complete their undertakings, it is well settled upon anthority that, after their works are completed, mandamus will lie to have the objects for which they were created fully and fairly carried out. The owners of all public highways, whether of railroads, turnpikes or canals, are bound to keep them fit for use. In the case of railroads, the owners or managers are bound to keep them furnished with suitable cars, engines and attendants without which they cannot be used at all; and the public interest in these facilities is such that, in case of failure or refusal so to keep and maintain them, a mandamus will issue to compel a restoration to a suit to compel compliance with conditions as to street crossings contained in ordinances granting the right of way through the city. Indianapolis & Cin. R. Co. v. The State, 37 Ind. 489. It is no defence to the granting of the writ in this class of cases, that compliance with it would compel the company to resort to condemnation proceedings for the taking of land. People v. Dutchess, & C. R. Co., 58 N. Y. 152. It lies to determine the mode in which a railroad company shall be required to restore a street and to compel it to perform its duty in that connection; State v. M. & St. L. R. Co., 39 Minn. 219; to compel a telephone company to furnish a telephone; Centr., etc., Tel. Co. v. State, 118 Ind. 194. The right to bring a suit for specific performance of the duty imposed upon railroad companies in Nebraska in the matter of constructing crossings is not exclusive of the remedy by mandamus. State v. C. B. & Q. R. Co. (Neb.), 45 N. W. 469. Compare State v. N. O., etc., R. Co. (La.), 7 So. 226. It is the proper remedy to compel the deposit by a railroad company of the amount of an award of damages resulting to land from its construction across the land where such deposit is required by statute. State v. Grand Island, etc., R. Co., 27 Neb. 694; 43 N. W. 419. Under a statute which gave a railway company an option when its line crossed a turnpike road or public highway, either to carry the road over the railway or the railway over the road, it was held that a mandamus commanding the company to do one of these things was defective unless it showed on the face of it circumstances which established the impossibility of the other branch of the alternative being performed. Queen v. Southeastern R. Co., 4 H L. Cas. 471. It is also the proper remedy to compel a railroad company to construct its fences in compliance with statutory provisions; Ohio & M. Ry. Co. v. People, 121; Ill. 483: 13 N. E. 236, and to enforce compliance with an order of a board of commissioners, for a reduction of rates of transportation. State v. Fremont, etc., R. Co., 22 Neb. 313; 35 N. W. 118. |