Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/458

 § 455.] THE LAW OF PRIVATE CORPORATIONS. [CHAP. VHI. signal importance. It is whether the people of the state can invoke the power of the courts to compel the exercise by rail- road companies of the most useful public functions with which they are clothed. ... As bodies corporate, their ownership may be, and usually is, altogether private, belonging to the holders of their capital stock, and their management may be vested in such officers or agents as the stockholders and direct- ors under the provisions of law may appoint. In this sense they are to be regarded as trading or private corporations, having in view the profit or advantage of the corporators. But these considerations are in no just sense in conflict with their obligations and duties to the public. The objects of their creation are from their very nature largely different from those of ordinary private and trading corporations. Railroads are in every essential quality public highways, created for pub- lic use, but permitted to be owned, controlled, and managed by private persons. But for this quality the railroads of the re- spondent could not lawfully exist. Their construction de- pended on the right of eminent domain which belongs to the state in its corporate capacity alone, and cannot be conferred except upon a ' public use.' .... " The acceptance of such trusts on the part of a corporation by the express or implied contracts already referred to, makes it an agency of the state to perform public functions which might otherwise be devolved upon public officers. . . . The analogy between such officials and railroad corporations in re- gard to their relations to the state is strong and clear, and so far as affects the construction and proper and efficient main- tenence of their railroad will be questioned by no one. It is equally clear, we think, in regard to their duties as carriers of persons and property. This springs sharply out of the exclu- sive nature of their right to do these things. On other public highways every person may be his own carrier, or he may hire whomsoever he will to do that service. ... In such a case the carrier has not contracted with the state to assume the duty as a public trust, nor taken power to do it from the state, by be- coming the special donee and depositary of a trust. A good reason may therefore be assigned why the state will not by mandamus enforce the performance of his contract by such a carrier. But the reason for such a rule altogether fails when •138