Page:Railway Company v. B'Shears 01.pdf/5

59 Ark.] The petition for mandamus in this case was filed under secs. 5500-1-2, Mansfield's Digest, which read as follows:

"Sec. 5500. When not less than fifty citizens of any incorporated town in the State, situated on the line of any railroad, shall make application in writing to the president of said railroad company, etc.,  it shall be the duty of such railroad company to stop all of its trains, freight or passenger, at some point within the corporate limits of such town most convenient, etc.

"Sec. 5501. Before any town may or can insist upon and compel the stoppage of trains as in this act provided, the corporate authorities of such town shall provide and make tender to such railroad companies sufficient means to defray the reasonable expenses of grading a switch o side track at such place of stopping for the use of such railroad company.

"Sec. 5502. The writ of mandamus may issue at the suit of any citizen, of such town, upon the failure of any such railroad company to stop its trains as in this act provided, and to compel such company to comply with the requirements of this act."

The petition failed to state that the corporate authorities of the town of Fulton had provided, and had made tender to the defendant railway company of, means sufficient to defray the reasonable expenses of grading a switch or side track at such place of stopping for the use of such defendant.

The circuit judge found as a fact "that, at the time of the application of the plaintiff to defendant to stop the trains mentioned in the complaint at Fulton, Ark., the defendant had all the necessary switches at the town for its use and convenience in the stopping of the train of defendant, and that, therefore, it was not necessary for plaintiff, or the town of Fulton, to tender to 59 Ark.—16