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ported was that of Rex v. Taylor, 2 Strange, 1167, which the case was determined was whether the where, "upon affidavits of the defendant keeping keeping of the powder house in wbich large quanti. great quantities of gunpowder to the endangering the ties of powder were stored was a Quisance per se. church and houses where he lived, an information Referring to the opinion of Chief Justice Kent in the was granted." This is the entire report of the case. case of People v. Sands, supra, the court declared Wbat the evidence showed, or the result of the case, that "the point had been conclusively settled by very is not reported. The affidavit was the keeping of the high judicial authority." The further statement is gunpowder to the endangering of the church and made "that the only adjudged case we have met with houses. No doubt the information was properly in which the principle seems to have been differently granted, and if the proof showed it was so kept as to settled is that of Cheatham 'v. Shearon, 1 Swan, 213, endanger "the church and houses" it was a nuisanco. 55 Am. Dec. 734, supra," and it declared that "the Another case was that of Rex v. Williams, in which principles and reasoning upon which the decision the defendant was convicted of a nuisance for keep- rests are opposed to the unbroken current of modern ing 400 barrels of gunpowder near the town of Brad. authority, English and American, upon the subject.” ford. How this powder was kept is not stated. Upon In the case of Wright v. Railway Co., 27 Ill. App. these cases, for they are the cases cited to support the 200, after discussing the liability of parties for damtext, Russell, supra, announced the proposition: “It ages resulting from keeping explosive materials, the seems that erecting gunpowder mills or keeping mag- court uses the following language: “We are cuntent azines near a town is & nuisance at common law;" with the rule that the keeping of explosives unsately and this view of the principle is emphasized in the guarded in such quantities as to be dangerous to percase of Crowder y. Tinkler, 19 Ves. 616. In the latter sons and property, near a frequented street or other case an injunction was prayed for. The court ascer- public place, or in the vicinity of the residences or tained from an ex parte investigation that the defend. places of business of others, under circumstances that ant might keep as much as 1,200 pounds safely, for the threaten calamity to the person or property of others, demands of trade, and made an order allowing this the consequences thereof being an explosion of such quantity to be kept until a trial could be had by a articles, which causes damage to the person or propjury. It is important to notice the real issue he sub- erty of another, gives the latter a right of action to mitted to the jury. It was not merely whether the recover from the person keeping the explosive such defendant manufactured or stored large quantities of damages as would not have happened in their abgunpowder in the place where it was charged to have sence;" citing Myers v. Malcolm, 6 Hill, supra, and been done, upon which the court would pronounce as Cooley, Torts, 607. a conclusion of law that such use would be a nuisance In the case of Cook v. Anderson, 85 Ala. 99, 4 South. per se; but the jury were required to determine the Rep. 713, the court used the following language: question of danger. And in the case of Reg. v. Lis. “Keeping explosive substances in large quantities in ter, Dears. & B. Cr. Cas., supra, the direct question the vicinity of dwelling houses or places of business is arose as to whether the finding of the jury should be ordinarily regarded a nuisance, whether so or not belimited merely to the keeping of the explosive as ing dependent upon the locality, the quantity, and charged, or should further find that such keeping was the surrounding circumstances." What was depend. dangerous; and it was held that under proper instruc- ent "upon the locality, the quantity, and the surround. tions it devolved upon the jury to determine not only ing circumstances?” There is but one answer, and the fact of keeping the explosive, but whether the that is whether "the keeping of explosive substances facts showed such keeping was dangerous to property in large quantities in the vicinity of dwelling houses or life. These cases are in line with the rule declared or places of business" was a nuisance. Again, the in New York and in other courts; and that is that terms, "the locality, the quantity, and the surroundwhen gunpowder is so manufactured or stored as to ing circumstances," are identical with those used in endanger life or property, such use is a nuisance. Heeg v. Licht, 80 N. Y. 579, supra, and no doubt were Whether it is so or not is a question of fact, depend. taken from it or from Wood, Nuis. $ 140, and used in ent upon the "place, manner, and surrounding cir. the same sepse. cumstances," to be ascertained by the jury. In Whart. This question came before us again in the case of Cr. Law, $ 2376, it is said: “The mere keeping of a Collins v. Railroad Co., 104 Ala. 390, 16 South. Rep. large quantity of gunpowder in a house, near dwell- 140, where the principle is stated as follows: "The ing houses and a public street, does not constitute a fact that defendant had in its warehousa 1,200 pounds nuisance; but keeping it negligently and improvi- of powder is not of itself such evidence of negligence dently does.” In Wood, Nuis. $ 140, it is said: "In as entitles the plaintiff to recover.

While it may be determining the question the locality, the quantity, said that the keeping of large quantities of explosive and the manner of keeping will all be considered, as material in a building in a populous town or city may well as the nature of the explosive, and its liability be a nuisance, yet the fact that it is such or not must to accidental explosion," and, as supporting the gen- depend on the locality, quantity of material stored, eral principle, the cases of People v. Sands, 1 Johns.,

and the circumstances. Negligence in keeping it, or supra, Myers v. Malcolm, 6 Hill, supra, and Heeg v. in the manner of its keeping, is requisite to impose a Licht, supra, are cited as authorities.

liability to answer in damages for injuries caused by The question came before the court in the case of an accidental explosion or fire." Dumesnill y. Dupont, 18 B. Mon. 800, 68 Am. Dec. After a most careful examination of the common 750, upon a bill filed to abate the keeping of a powder law textbooks and decisions, we have no doubt of the house in which large quantities of powder were kept.

correctness of our conclusion in the foregoing cases, The apswer of respondents averred that “their maga.

and which exactly accords with the law as declared zine is well constructed, and is protected against ac. in People v. Sands, supra. Steam power, gas, eleccidents by secure fencing, lightning rods, and by the tricity, dynamite, gunpowder are in daily use, and constant presence of a trusty man; that it stands in a have become indispensable to the convenience of the sparsely settled neighborhood," etc. These state public, and for the public defense. Invention of man ments were proven. The evidence was conflicting as

and advancement in science have enabled the manu. to ibe effects of an explosion. The question upon facturer of or dealer in these articles to provide the

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public or the individual with almost, if not altogether, $ 2. Mandamus lies to Compel Corpora. absolute protection against danger or burt from explosion. And, even had the manufacturing and stor.

tions to Perform Public Services in the Per. age of gunpowder, in its early history, been a nuisance formance of which individuals have a Special at common law, the common law definition of a nui. Interest.-There is also a good deal of judicial sance would not include gunpowder at this day.

authority in favor of the proposition that a mandamus will lie, at the suis of private re

lators, to compel private or quasi-public corMANDAMUS AGAINST CORPORATIONS porations to perform strictly public services

TO COMPEL DUTIES TO INDIVID. in the performance of wbich such relators UALS.

have a special interest; such as compelling $ 1. Mandamus lies to Com pel Corpora

canal company to build a bridge over its tions to Perform Services Owing by them to

canal to restore the public highway, which its Individuals.-A great multitude of cases, in

canal has interrupted, or compelling; a rail. cluding those hereafter cited, unite in hold

road company to establish a depot and a ing that where a corporation undertakes to

regular service at a particular place, although perform a public service to individual mem

there is no express statute requiring it so to bers of the public or to corporations dis

do ;8 or even to compel a borough to perform tributively, whether such undertaking is as

the common law duty of repairing a highway sumed by accepting a charter which com

within its limits ;4 or at the suit of a municmands the performance in express terms, or

ipal corporation, to compel a street railway by accepting a charter or license which per

company to pave certain portions of the mits the performance of the service, from

streets occupied by its tracks; or, at the suit which circumstances an obligation to perform

of a railway corporation, to compel a county it is implied, such corporation can be com

to subscribe for railway bonds in compliance pelled by mandamus, at the suit of the in

with a statute giving it the power so to do. terested private person, to perform the serv- owners of another warehouse at the same place, the ice. 1

conditions being equal, an injunction was allowed to

restrain the railroad company from delivering to say 1 Haugen v. Albina Light, etc. Co., 21 Oreg. 411, other place than that of the consignee, and from im. 423; State v. Delaware, etc., R. Co., 48 N. J. L. 55;

posing an additional charge for such delivery. Vin State v. New Haven, etc. Co., 37 Conn. 163; State v.

cept v. Chicago, etc. R. Co., 49 III. 33. While the doe: Nebraska Teleph. Co., 17 Neb. 126; State v. Republi. trine obtained in the circuit courts of the United

! can Valley R. Co., 17 Neb. 647; American Water.

States, and before the Supreme Court of the United works Co. v. State, 46 Neb. 194, 30 L. R. A. 447, 12 States had decided otherwise (Express Cases, 117 ['. Am. K. & Corp. Rep. 88, 64 N. W. Rep. 711; Chicago, S. 1), that a railway company could be compelled to etc. R. Co. v. People, 56 Ill. 365. Mandatory injunc- furnish facilities to an express company, the writ of tions have been used to a limited extent for the same

injunction was frequently used to compel them to purposes as those expressed in the preceding para- furnish such facilities, or negatively, to restrain them graph. In one case, a contract between a railroad

from denying such facilities. Wells v. Oregon, ete. company and an express company, by which the rail.

R. Co., 15 Fed. Rep. 561, 8 Sawyer (U. S.), 611; Wells road undertook to give the latter company an exclu- v. Northern Pacific R. Co., 23 Fed. Rep. 469. That a sive privilege of doing business upon its line, was

mandatory injunction will not be granted where there cancelled in equity at the suit of a partner in another

is a plain remedy by mandamus, was beld in Walkies express company, who was also a stockholder in the

v. Muscatine, 6 Wall. (U. S.) 481. That : mandators railroad company and who brought his suit in that

injunction may be granted to compel a railroad con character to restrain the railroad company from dis.

pany to perform the statutory duty of receivina criminating in favor of a rival express company. San. freight and express from a connecting road. see ford v. Railroad Company, 24 Pa. St. 378. Another

Chicago, etc. R. C. v. Burlington, etc. R. Co., 34 Feil court has held that a mandatory injunction will not

Rep. 481. be granted on motion and preliminary to the final

2 Trenton Water Power Co., 20 N.J. L. 659. hearing on bill and answer, to & railway carrier to

3 State v. Republican Valley R. Co., 17 Neb. 647. compel it to transport goods at the rate fixed by law;

4 Uniontown v. Com., 34 Pa. St. 293. but that an injunction will issue to prevent a rail.

6 State v. Jacksonville St. R. Co., 29 Fla. 500. way company, bound by law to transport goods, from 6 Napa Valley R. Co. v. Napa County, 30 Cal. 48 entering into an agreement not to transport them at Where the object, the doing of which is sought to be the rates fixed by law. Rogers Locomotive, etc.

compelled, is a public object, mandamus may prop Works v. Erie R. Co., 20 N. J. Eq. 379, where the

erly be used at the suit of the State, through its s! scope of mandatory injunctions is discussed. In an.

torney-as to compel a railroad company to resume other case, where the owner of a warehouse bad, both the operation of a line of its road connecting with by statute and under the principles of the common line of steamboats, which it bad formerly operated

, law, a right to have grain, consigned to his warehouse but which it had discontinued to the public detriment. delivered there and not at some other warehouse, and

State v. Hartford, etc. R. Co., 29 Conn. 538. Or to delivered at the same rate of charges paid by the compel a railroad company to stop all its regular

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$ 3. Not Necessary that the Obligation should to carry on that business, and in so doing to have been created by Statute. Although serve all persons equally under like condia mandamus will be more readily granted to tions, the same as domestic corporations may compel the performance of a specific duty, be so compelled." which is clearly required to be performed by $ 5. Mandamus Lies to Compel Gaslight the statutory law, yet it is not at all necessary Companies to Furnish Gas to Private Conto the beneficial exercise of this jurisdiction, sumers.--Entering now upon the field of ilthat the obligation sought to be performed lustration, we find that a gaslight company should have been created by statute; it will be may be compelled by mandamus to supply sufficient if it clearly arises under the princi- its gas to persons who, under its charter, ples of the common law. For example: A have the right to be supplied with it, and mandamus has been granted, even at the suit who bave complied with the general condiof a private person, to compel a borough in tions upon which the company supplies its Pennsylvania to keep in repair a highway other customers in the same city. In so boldwithin its limits, the duty to repair arising ing the court said: “They possess, by virunder the principles of the common law.8 It tue of their charter, powers and privileges bas also been awarded to compel a railroad which others can not exercise; the statutory company, which was held to be bound under duty is imposed upon them to furnish gas on the principles of the common law, to furnish payment of all moneys due by such applireasonable facilities for sbippers to maintain cants.

» 12 It is true that one court held that a a depot and a regular service thereat, at a gaslight company, incorporated to supply particular plaze where it was clearly shown gas to the city and to its inhabitants, but that such accommodations were necessary, with no special privileges except that of realthough there was no express statute requir- covering double damages for injuries to its ing the company so to do.' So a canal com- pipes, and having no right to lay its pipes pany, wbich, in the construction of its canal, through public or private land without first interrupted the public highway, was com- obtaining permission therefor from

tbe pelled by mandamus to restore the same, al- owners, was under no legal duty to supply though neither its charter nor governing gas to a particular person, since it stood on statute contained any express mandate that the footing of a merely private manufacturit should do so."

ing corporation, and, consequently, owed no 4. The fact that the Corporation thus duty to furnish its manufactured product to Compelled is a Foreign Corporation, makes any particular person. This case was de. no Difference. — Foreign corporations are cided by the Supreme Court of New Jersey, subject, in respect to their business done two judges sitting. The doctrine announced within the domestic State, to domestic regu- in it was subsequently denied by a higher lations, and can be compelled by mandamus court of the same State, the Court of Appeals,

and the case was in effect overruled. 14 And passenger trains at a particular station in a town

it was pointedly denied in a very able judgwhich is a county seat, in compliance with a statute. Illinois Central R. Co. v. People, 143 III. 434. There

ment in another State. 15 The better and is a large class of cases presenting this use of the writ, sounder doctrine undoubtedly is, that where but they lie outside the scope of this article. For a

a private corporation, organized for the purnoteworthy case of this kind, where tbis use of the writ at the suit of private relatory was atfirmed, see pose of carrying on a business, public in its Union Pac. R. Co. v. Hall, 91 U. S. 343, 355, citing nature,—such as furnishing water or gas to other cases; affirming 8. C., 3 Dill. (U. S.) 515.

the inhabitants of a city, accepts from the 1 People v. Chicago, etc. R. Co., 130 III. 175; State v. Republican Valley R. Co., 17 Neb. 647; State v. Ne

city or from the State its franchises and a braska Telepb. Co., 17 Neb. 126; In re Trenton Water grant of the right of eminent domain, withPower Co., 20 N. J. L. 659, 653; Uniontown v. Com., out which its business could not be carried 34 Pa, St. 293.

& Uniontown v. Jom., 34 Pa. St. 293.
9 State v. Republican Valley R. Co., 17 Neb. 647;

Il Central Union Teleph. Co. v. State, 118 Ind. 194, People v. Chicago, etc. R. Co., 130 Ni. 195. One court, 207; Central Union Teleph. Co. v. State, 123 Ind. 113. however, denied the rigbt to relief in such a case, on

12 People v. Manhattan Gaslight Co., 45 Barb. (N. the ground that the matter rested in the discretion of Y.) 136. the directors. People v. New York, etc. R. Co., 104

13 Patterson Gaslight Jo. v. Brady, 27 N. J. L. 245. N. Y. 58, 58 Am. Rep. 484.

14 Olmstead v. Proprietors, 47 N. J. L. 333. 10 In re Trenton Water Power Co., 20 N. J. L. 659, 16 Haugen v. Albina Light etc. Co., 21 Oreg. 411.




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on, it accepts such grant on the implied con- forced by mandamus.18 In Oregon, subdition that it will perform the duty for which stantially the same doctrine is laid down with it is organized, that of furnishing water or reference to a corporation organized to supgas on reasonable terms to any inhabitant of ply water to a city. The court laid stress on the city applying therefor, and showing his the fact that its franchise to dig up the pubcapacity to receive the same and tendering lic streets is a privilege which concerns the compliance with such reasonable terms as public to such an extent that the State or the corporation may exact for furnishing the city may make it exclusive. But the court same; and that if, under such circumstances, proceeded upon the broader doctrine that a the corporation refuses to furnish the water corporation, undertaking by its acceptance or the gas to such inhabitant, it may be com- of a public franchise to perform a certain pelled to do so by mandamus, although the service to the members of the community disgrant of the franchise may not in express tributively, can, by mandamus, be compelled terms require it so to do. 16

to perform that service.20 So, an irrigation $ 6. To Compel Water Supply Compan- company, created in Colorado, to supply ies to Furnish Water to Private Consumers. water to consumers, must supply those who -So a private corporation which procures

80 situated as to receive the same, from a city or from the State, a franchise to provided it has water undisposed of, uped supply the city and its inbabitants with reasonable terms; and this right will be en: water, and which, by virtue of its franchise, forced by mandamus. In the opinion of the is permitted to use the streets and alleys of court in the earlier case, Helm, J., said: the city in laying its mains and pipes, be- “Where a statute is absolutely silent as to comes thereby charged with the public duty the amount of the charge for transportation, of supplying at reasonable rates, all the in- and the time and the manner of its collection, habitants of the city, and of charging each there will be legal ground for the position inhabitant for the water it supplies to him no that a demand in this respect must be regmore than the same price which it charges sonable. The carrier (meaning the irrigato every other inbabitant for the like service tion company), voluntarily engages in the under the like conditions; and this duty may enterprise ; it has in most instances, from the be enforced by mandamus.!? In California an nature of things, a monopoly of the business irrigation company was chartered with power, along the line of its canal; its vocation, toamong other things, to furnish, sell, give and gether with the use of its property, are closely supply water to any person or corporation, allied to the public interest; it is, I think, for irrigation or other purposes. As in the pre-charged with what the decisions term, a pubceding cases it possessed the power of eminent lic trust or duty. In the absence of legisladomain, but it did not appear wbether or not tion on the subject, it would, for these reait had ever exercised it. It was held that it

sons, be held, at common law, to have subwas a corporation organized for a public ob- mitted itself to a reasonable, judicial control, ject; that the power conferred upon it for invoked and exercised for the common good, this public object carried with it a correlative in the matter of regulations and charges 11 duty to supply water to any one who might and an attempt to use its monopoly for the apply therefor, so long as it had the power to purpose of coercing compliance with unreado so; and that this duty was properly en- sonable and exorbitant demands would lay

the foundation for judicial interference." 16 Haugen v. Albina Light etc. Co., 21 Oreg. 411.

$ 7. To Compel Telephone Companies to That such a grant and such acceptance carry with them the implied duty to serve with the particular com

Serve Particular Persons. In like manuera modity any inhabitant applying for it, and able to receive it and pay for it on tbe same terms that are ex. 18 Price v. Riverside etc. Co., 56 Cal. 431. acted of others, although this duty is not expressly 19 As was beld in New Orleans Gas Co. v. Louisiana imposed in the terms of the grant, see Olmstead v. Light Co., 115 U. S. 650; and in Louisville Gas Co. v. Proprietors, 47 N. J. L. 311.

Citizens' Gas Co., 116 U. S. 683. 17 American Waterworks Co. v. State, 46 Neb. 194, 20 Haugen v. Albina Light etc. Co., 21 Oreg. dll. 39 L. R. A. 447, 12 Am. R. & Corp. Rep. 68, 64 N. W. 21 Wheeler v. Northern Colorado Irrigation Co., Rep. 711; State v. Joplin Water Works, 52 Mo. App. Colo. 582; Combs v. Agricultural Ditch Co., 17 Colo. 312; Haugen v. Albina Light, etc. Co., 21 Oreg. 411, 146. 14 L. R. A. 424; People v. Green Island Water Co., 56 22 Wheeler y. Northern Colorado Irrigation Co., 10 Hun (N. Y.), 76.

Colo. 582.

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corporation owning and conducting a system ress of the country and adapt themselves to of public telephone exchanges, supplying the new developments of time and circum

with that service a large number of customers stances. They extend from the horse with št to on terms fixed by itself, has been held to be its rider to the stage coach; from the sailing ?engaged in an employment of a public nature, vessel to the steamboat; from the coach to

in such a sense that it is bound to serve all the steamboat and the, railroad; from the ore" persons applying for its service and tender- railroad to the telegraph; and from the teledining the proper compensation, without dis- graph to the telephone; 'as these new agencies g byət crimination, under like conditions. The rea. are successively brought into use to meet the Opel soning of the court, in its opinion delivered successive demands of increasing population to by Reese, J., well illustrates the adaptability of and wealth. They were intended for the sau ,

the principles of the common law to new sit- government of the business to which they reuations: “That the telephone, by the neces. late, at all times and under all circumsities of commerce and public use, has become stances.'” And the court held that mandamus a public servant, a factor in the commerce was the proper remedy to enforce the duty of the nation, and of a great portion of the assumed by a telephone company of furnishcivilized world, cannot be questioned. It is, ing its service to an inhabitant of a particular to all intents and purpose, a part of the tele-city in which it did business. 23

The same graphic system of the country, ard in so far doctrine was affirmed in the Supreme Court as it has been introduced for public use, and of Indiana, in a case where a foreign corpo. bas been undertaken by the respondent, so ration operating a system of public telephones

far should the respondent be held to the same in one of the towns of that State, was held to te obligation as the telegraph and other public be a common carrier of news, and, as such,

It has assumed the responsibility subject to public regulation. The court of a common carrier of news. Its wires and said: “It bas been held universally by the poles lie in our public streets and thorough- courts, considering its use and purpose, to fares. It is, and must be held to have taken be an instrument of commerce and a common its place by the side of the telegraph as such

carrier of news, the same as the telegraph; common carrier. The views herein expressed and by reason of being a common carrier it are not new. Similar questions have arisen subject to proper obligations and to conin, and have been frequently discussed and duct its business in a manner conducive to decided by, the courts, and no statute has the public benefit, and to be controlled by been deemed necessary to aid the courts in law." And the court also said: "Any perholding that when a person or company un. son or corporation engaged in telephonic dertakes to supply a demand which is 'af- business, operating telephone lines, furnishfected with a public interest,' it must supplying telephonic communications, facilities and all alike, who are like situated, and not dis- service to business houses, persons and comcriminate in favor of, nor against any. panies, and discriminating against any perThis reasoning is not met by saying that the son or company, can be compelled by a manrules laid down by the courts as applicable to date [mandamus], on the petition of such railroads, express companies, telegraphs, and person or company discriminated against, to other servants of the public, do not apply to furnish the petitioner a like service as furthe telephones, for the reason that they are nished to the others.” And the court held, of recent invention and were not thought of under a statute, that a public telephone comat the time the decisions were made, and pany created under the laws of a foreign hence are not affected by them, and can only State, and doing business in the State of Indbe reached by legislation. The principlesiana, and in a particular city of that State, established and declared by the courts, and was bound to furnish a person doing business which were and are demanded by the bighest in that city with an instrument and the facilmaterial interests of the country, are not con- ities of a public telephonic exchange in his fined to instrumentalities of commerce, nor place of business in that city, although it apto the particular kinds of service known or 23 State v. Nebraska Telephone Co., 17 Neb. 126, 134, in use at the time when those principles were 135. The extracts and inside quotation points are from enunciated, 'but they keep pace with the prog

the opinion in Pensacola Teleph. Co. v. Western Union Tel. Co., 96 U. S. 9.


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