Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/459

 CHAP. VIII.] CORPORATION AND STATE. [§ 456. the public highway is the exclusive property of a body corpo- rate which alone has power to use it in a manner which of ne- cessity requires that all management, control, and user, for the purposes of carriage, must be limited to itself, and which, as a condition of the franchise that grants such absolute and exclu- sive power over a user of a public highway, has contracted with the state to accept the duty of carrying all persons and prop- erty within the scope of its charter as a public trust. . . . " We cannot bring our minds to entertain a doubt that a railroad corporation is compellable by mandamus to exercise its duties as a carrier of freight and passengers, and that the power so to compel it rests equally firmly on the ground that that duty is a public trust, which having been conferred by the state, and accepted by the corporation, may be enforced for the public benefit, and also upon the contract between the cor- poration and the state expressed in its charter, or implied by the acceptance of the franchises, and also upon ground that the common right of all the people to travel and carry upon every public highway of the state has been changed by the legisla- ture, for adequate reasons, in this special instance, into a corpo- rate franchise to be exercised solely by a corporate body for the public benefit, to the exclusion of all other persons, whereby it has become the duty of the state to see to it that the fran- chise so put in trust be faithfully administered by the trustee." Accordingly, the court held that the fact that injured indi- viduals may have private remedies for damages does not ex- clude the state from its remedy by mandamus, and that a peace- able strike of its freight handlers does not exclude a railroad company from operating its road and carrying freight. 1 § 456. The right to enforce the application of the corporate property to the purposes of incorporation the state Through clearly would not have had but for the acceptance of ^f the^har- the charter by the corporation. The state could not teronthe 1 A peculiarity of the rights ac- quired by the state through the con- tract with the corporation lies in the fact that the possessor of these rights, the state itself, enforces them. They are, to be sure, deter- mined through a judicial proceed- ing, but it is the power of the state that enforces judicial proceedings. If the state cannot enforce its own laws, the assistance of the Federal government may be invoked under the Federal constitution; but such necessity would occur only in cases of extraordinary emergency. 439