Mandamus will lie to compel a carrier to resume or continue performance of its public functions as such.- People v. N. Y. C. & H. R. R. Co., 28 Hun (N. Y.), 543; Cumberland T. & T. Co. v. Morgan's L. & T. R. Co., 51 La. Ann. 29, 24 So. 803; Godell v. Woodbury, 71 N. H. 378, 52 Atl. 855; Haugen v. Albina L. & W. Co., 21 Ore. 411, 28 Pac. 244, 14 L. R. A. 424. Mandamus is not the proper remedy when a carrier wrongfully refuses to transport the goods of a shipper, unless the carrier suspends the exercise of its franchises, but the shipper will be left to his action at law for damages which is an adequate remedy.- People ex rel. Ohlen v N. Y. L. E. & W. R. Co., 22 Hun (N. Y.), 533. Mandamus will not lie to compel a carrier to furnish facilities, or to charge only a reasonable rate. Its refusal so to do is a private injury capable of being fully compensated by an action for damages. Mandamus will not lie where there is a plainly adequate remedy by an action at law. People ex rel. Ohlen v. N. Y. L. E. & W. R. Co., 22 Hun (N. Y.), 533. Mandamus will not lie to enforce a statute which requires stoppage of all trains at a county seat, where the town in question already has an adequate train service, local and through, and the train complained of is a New York and St. Louis special.-Cleveland, C. C. & St. L. R. Co. v. Illinois, 177 U. S. 514, 20 Sup. Ct. R. (U. S.) 722, revg. s. c. 175 Ill. 359, 51 N. E. 842. Mandamus may be granted to enforce the performance of a duty to the public imposed by law upon a common carrier corporation, whether such duty be prescribed by statute or charter in express terms or is raised by implication of law from the nature of the public duty authorized by law to be performed and which is being performed by such corporation.State v. Atlantic C. L. R. Co. - Fla. 44 So. 213. A common carrier's duty to the public is to obey the reasonable regulations of the Railroad Commission (Ga.), and if the corporation fails to perform such duty, it may be compelled by mandamus to do so, at the instance of a shipper affected by the unlawful acts.- Southern R. Co. v. Atlanta Stove Works, 128 Ga. 207, 57 S. E. 429. Individuals may, by mandamus, enforce the performance by a corporation of its public duty as to matters in which they have a special interest. Savannah & O. C. Co. v. Shuman, 91 Ga. 400, 17 S. E. 937. The running of passenger trains or cars separate from freight trains may be enforced by mandamus.- People v. St. L. A. & T. H. R. Co., 176 Ill. 512, 52 N. E. 292, 35 L. R. A. 656. Mandamus is the proper remedy by which to compel a railroad to erect and maintain a station in a town.- People v. Ch. & A. R. Co., 130 Ill. 175, 22 N. E. 857. A railroad may be compelled by mandamus to relay a portion of its track torn up in violation of its charter.- State ex rel. Little v. Dodge City, M. & T. R. Co., 53 Kan. 329, 36 Pac. 755, 24 L. R. A. 564n. Mandamus will lie to compel a street car company to perform a continuing duty under a city ordinance.- City of Potwin Place v. Topeka St. R. Co., 51 Kan. 609, 33 Pac. 309. The duty of a carrier to render services for all without discrimination may be enforced by mandamus.- State ex rel. Cumberland Telephone and Telegraph Co. v. Tex. & P. R. Co., 52 La. Ann. 1850, 28 So. 284. Mandamus will lie to compel a carrier to issue a commutation ticket to a person wrongfully refused the same. State ex rel. Atwater v. D. L. & W. R. Co., 48 N. J. L. 55, 2 Atl. 803. Duties of corporations arising out of contractual relations will not be enforced by mandamus.- Commonwealth ex rel. Stern v. Wilkesbarre Gas. Co., 2 Kulp (Pa.), 499. Remedies afforded by statute for abuses in transportation conditions are cumulative and in addition to those existing at common law.Atchison T. & S. R. Co. v. D. & N. O. R. Co., 110 U. S. 667, 4 Sup. Ct. R. (U. S.) 185, revg. s. c. 13 Fed. 546. Mandamus will lie to enforce an order of the N. Y. Board of Railroad commissioners, requiring a railroad to furnish proper accommodations for freight at a given station. The court to which the application is made may review such order as to its reasonableness.- People v. D. & H. C. Co., 32 App. Div. (N. Y.) 120, 52 N. Y. Supp. 850; affd. 165 N. Y. 362, 59 N. E. 138. The duty of a railroad to comply with orders of the railroad commissioners of Florida will be enforced by mandamus.— State v. Atlantic C. L. R. Co., 51 Fla. 578, 40 So. 875; Southern R. Co. v. Atlanta Stove Works, 128 Ga. 207, 57 S. E. 429. Mandamus is an appropriate remedy to compel observance of a valid regulation made by state railroad commissioners.- State v. Atlantic C. L. R. Co., 48 Fla. 114, 37 So. 652. [15] Effect of receivership. Where a Court which has designated receivers to operate a railroad is asked to enforce against such railroad an order made by the Interstate Commerce Commission before such designation, it must apply the same rules and principles as if the railroad were being operated by the officers and agents of the corporation itself. It can not proceed as though it were merely asked to regulate the conduct of its receivers; the latter have the same right to question the validity of the order as would the railroad company itself.- Farmers' Loan & T. Co. v. No. Pac. R. Co., 83 Fed. 249. Whether an order of the Interstate Commerce Commission should be made and enforced against a railroad in the hands of a receiver, is a question to be presented to and disposed of by the courts on the proceedings therein for the enforcement of such an order.-Loud v. South Car. R. Co., 4 Inters. Com. R. 205, 5 I. C. C. R. 529. A receivership subsequent to complaint should not interfere with the progress of a proceeding brought merely for the purpose of railway regulation.- Railroad Commission of Ga. v. Clyde Ss. Co., 4 Inters. Com. R. 120, 5 I. C. C. R. 324. A judgment against a railroad company directing it to construct a farm crossing may be enforced against its receiver unless he surrender up possession of the road.-Peckham v. D. C. R. Co., 145 N. Y. 385, 40 N. E. 15. An action under a state statute requiring a railroad to fence with its right of way, etc., will lie even though the railroad is in the hands of a federal receiver.- Ohio & M. R. Co. v. Russell, 115 Ill. 52, 3 N. E. 561. A receiver will not be compelled by mandamus to operate a portion. of a railroad which he has discontinued under the instructions of the court which appointed him.— State ex rel. Commissioners v. Marietta & Cincinnati R. Co., 35 Oh. St. 154. * § 58. Penalties for other than common carriers; [liability of agents].— 1. Any corporation, other than a common carrier, railroad corporation or street railroad corporation, which shall violate any provision of this act, or shall fail to obey, observe and comply with every order made by the commission under authority of this act, so long as the same shall be and remain in force, shall forfeit to the people of the state of New York a sum not exceeding one thousand dollars for each and every offense; every such violation shall be a separate and distinct offense, and the penalty or forfeiture thereof shall be recovered in an action as provided in section fifty-nine of this act. 2. Every person who, either individually or acting as an officer or agent of a corporation other than a common carrier, railroad corporation or street railroad corporation, shall violate any provision of this act or fail to obey, observe or comply with any order • Words in brackets are not a part of section heading as enacted.-ED. made by the commission under this act, so long as the same shall be or remain in force, or who shall procure, aid or abet any such corporation in its violation of this act or in its failure to obey, observe or comply with any such order, shall be guilty of a misdemeanor. 3. In construing and enforcing the provision of this act relating to forfeitures and penalties the act of any director, officer or other person acting for or employed by any common carrier, railroad corporation, street railroad corporation or corporation, acting within the scope of his official duties or employment, shall be in every case and be deemed to be the act of such common carrier, railroad corporation, street railroad corporation or corporation. merce, Forfeitures by shippers for violation of acts regulating interstate com- Forfeitures and penalties for violations of this Act by common carriers,― see ante, § 56. General rules of statutory construction,-see ante, § 1, notes [23][40]. What statutes construed as penal,- see ante, § 1, note [35]. Construction of statutes containing penal provisions,- see ante, § 1, notes [36]-[37]. Corporations included in term “persons,”- see ante, § 2, note [11]. Whether statutes imposing penalties for excessive charges are a regulation of interstate commerce,- see ante, § 25, note [14]. Criminal liability for discriminations in rates,- see ante, § 31, notes [89]-[94]. Criminal liability for violations of § 32,- see ante, § 32, note [35]. Indictments for failure to charge published rate,- see ante, § 33, note [10]. Criminal liability for violations of the long and short haul rule,- see ante, § 36, notes [42]-[45]. Indictment for failure to furnish cars without discrimination,— see ante, § 37, note [24]. Under the Elkins Act of Feb. 19, 1903, ch. 708 (32 Stat. 847; U. S. Comp. Stat. Supp. 1905, p. 599), each shipment at less than the lawful rate is a separate offense, and where the published rate is on carload lots, each car is a separate shipment.-U. S. v. Standard Oil Co., 155 Fed. 305. § 59. Action to recover penalties or forfeitures.An action to recover a penalty or forfeiture under this act may be brought in any court of competent jurisdiction in this state in the name of the people of the state of New York, and shall be commenced and prosecuted to final judgment by counsel to the commission. In any such action all penalties and forfeitures incurred up to the time of commencing the same may be sued for and recovered therein, and the commencement of an action to recover a penalty or forfeiture shall not be, or be held to be, a waiver of the right to recover any other penalty or forfeiture; if the defendant in such action shall prove that during any portion of the time for which it is sought to recover penalties or forfeitures for violation of an order of the commission the defendant was actually and in good faith prosecuting a suit, action or proceeding in the courts to set aside such order, the court shall remit the penalties or forfeitures incurred during the pendency of such suit, action or proceeding. All moneys recovered in any such action, together with the costs. thereof, shall be paid into the state treasury to the credit of the general fund. Similar provisions of Interstate Commerce Act,- see Interst. Com. Act, § 16, Elkin's Act, § 1, post, Appendix B. Investigations by Commission to determine whether carriers are complying with the provisions of this Act and with orders of the Commission,- see ante, post, § 45, subd. 2. Actions to recover penalties or forfeitures against gas and electrical corporations,- see post, § 73. General rules of statutory construction,- see ante, § 1, notes [23]-[40]. What statutes construed as penal,- see ante, § 1, note [35]. Construction of statutes containing penal provisions,- see ante, § 1, notes [36]-[37]. Recovery of penalties by the aggrieved party,- see ante, § 26, notes [68]-[73]. Criminal prosecutions for discriminations as to rates,- see ante, § 31, notes [89]-[94]. Criminal liability for violations of § 32,—see ante, § 32, note [35]. Indictments for failure to charge the published rate,- see ante, § 33, note [10]. Criminal prosecutions for violation of the long and short haul rule,see ante, § 36, notes [42]-[45]. |