Opinion of the Court. a subsequent statute to construct a station and stop its trains at a particular place on its road, said: "If the directors of a railroad were to find it for the interest of the stockholders to refuse to carry any freight or passengers except such as they might take at one end of the road and carry entirely through to the other end, and were to refuse to establish any way stations, or do any way business for that reason, though the road passed for a long distance through a populous part of the State, this would be a case manifestly requiring and authorizing legislative interference under the clause in question. And on the same ground, if they refuse to provide reasonable accommodation for the people of any smaller locality, the legislature may reasonably alter and modify the discretionary power which the charter confers upon the directors, so as to make the duty to provide the accommodation absolute. Whether a reasonable ground for interference is presented in any particular case is for the legislature to determine; and their determination on this point must be conclusive." 103 Mass. 254, 258. Upon the same principle, the Supreme Judicial Court of Maine compelled a railroad corporation to build a station at a specified place on its road in accordance with an order of railroad commissioners, expressly empowered by the statutes of the State to make such an order, and to apply to the court to enforce it. Maine Stat. 1871, c. 204; Railroad Commissioners v. Portland & Oxford Railroad, 63 Maine, 270. In Southeastern Railway v. Railway Commissioners, a railway company was held by Lord Chancellor Selborne, Lord Chief Justice Coleridge and Lord Justice Brett, in the English Court of Appeal, to be under no obligation to establish stations at any particular place or places unless it thought fit to do so; and was held bound to afford improved facilities for receiving, forwarding and delivering passengers and goods at a station once established and used for the purpose of traffic, only so far as it had been ordered to afford them by the railway commissioners within powers expressly conferred by act of parliament. 6 Q. B. D. 586, 592. The decision in State v. Republican Valley Railroad, 17 Opinion of the Court. Nebraska, 647, cited in the opinion below, proceeded upon the theory, (inconsistent with the judgments of this court in Atchison &c. Railroad v. Denver & New Orleans Railroad, and of the Court of Appeals of New York in People v. New York &c. Railroad, above stated,) that, independently of any statute requirements, a railroad corporation might be compelled to establish a station and to stop its trains at any point on the line of its road at which the court thought it reasonable that it should. The opinions of the Supreme Court of Illinois, though going farther than those of most other courts in favor of issuing writs of mandamus to railroad corporations, afford no countenance for granting the writ in the case at bar. In People v. Louisville & Nashville Railroad, 120 Illinois, 48, a mandamus was issued to compel the company to run all its passenger trains to a station which it had once located and used in a town made a terminal point by the charter and which was a county seat; because the corporation had no legal power to change its location, and was required by statute to stop all trains at a county seat. In People v. Chicago & Alton Roilroad, 130 Illinois, 175, in which a mandamus was granted to compel a railroad company to establish and maintain a station in a certain town, the petition for the writ alleged specific facts making out a clear and strong case of public necessity, and also alleged that the accommodation of the public living in or near the town required, and long had required, the establishment of a station on the line of the road within the town; and the decision was that a demurrer to the petition admitted both the specific and the general allegations, and must therefore be overruled. The court, at pages 182, 183, of that case, and again in Mobile & Ohio Railroad v. People, 132 Illinois, 559, 571, said: "It is undoubtedly the rule that railway companies, in the absence of statutory provisions limiting and restricting their powers, are vested with a very broad discretion in the matter of locating, constructing and operating their railways, and of locating and maintaining their freight and passenger stations. This discretion, however, is not absolute, but is subject to the condition that it must be exercised Opinion of the Court. in good faith, and with a due regard to the necessities and convenience of the public." But in the latter case the court also said: "The company cannot be compelled, on the one hand, to locate stations at points where the cost of maintaining them will exceed the profits resulting therefrom to the company, nor allowed, on the other hand, to locate them so far apart as to practically deny to communities on the line of the road reasonable access to its use. The duty to maintain or continue stations must manifestly rest upon the same principle, and a company cannot, therefore, be compelled to maintain or continue a station at a point when the welfare of the company and the community in general requires that it should be changed to some other point." page 570. "The rule has been so often announced by this court that it is unnecessary o cite the cases, that a mandamus will never be awarded inless the right to have the thing done which is sought is clearly established." page 572. And upon these reasons the writ was refused. Section 691 of the Code of Washington Territory of 1881, following the common law, defines the cases, in which a writ of mandamus may issue, as "to any inferior court, corporation, board, officer or person to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station." By the same code, in mandamus, as in civil actions, issues of fact may be tried by a jury; the verdict may be either general or special, and, if special, may be in answer to questions submitted by the court; and material allegations of the plaintiff not denied by the answer, as well as material allegations of new matter in the answer not denied in the replication, are deemed admitted, but a qualified admission cannot be availed of by the other party, except as qualified. § 103, 240, 242, 694, 696; Breemer v. Burgess, 2 Wash. Ter. 290, 296; Gildersleeve v. Landon, 73 N. Y. 609. The replication filed in this case, not being copied in the record sent up, may be assumed, as most favorable to the defendant in error, to have denied all allegations of new matter in the answer. The leading facts of this case, then, as appearing by the Opinion of the Court. special verdict, taken in connection with the admissions, express or implied, in the answer, are as follows: The defendant at one time stopped its trains at Yakima City, but never built a station there, and, after completing its road four miles further to North Yakima, established a freight and passenger station at North Yakima, which was a town laid out by the defendant on its own unimproved land, and thereupon ceased to stop its trains at Yakima City. In consequence, apparently, of this, Yakima City, which at the time of filing the petition for mandamus was the inost important town, in population and business, in the county, rapidly dwindled, and most of its inhabitants removed to North Yakima, which at the time of the verdict had become the largest and most important town in the county. No other specific facts as to North Yakima are admitted by the parties or found by the jury. The defendant could build a station at Yakima City, but the cost of building one would be $8000, and the expense of maintaining it $150 a month, and the earnings of the whole of this division of the defendant's road are insufficient to pay its running expenses. The special verdict includes an express finding (which appears to us to be of pure matter of fact, inferred from various circumstances, some of which are evidently not specifically found, and to be in no sense, as assumed by the court below, a conclusion of law) that there are other stations for receiving freight and passengers between North Yakima and Pasco Junction, which furnish sufficient facilities for the country south of North Yakima, which must include Yakima City; as well as an equally explicit finding (which appears to have been wholly disregarded by the court below) that the passenger and freight traffic of the people living in the surrounding country, considering them as a community, would be better accommodated by a station at North Yakima than by one at Yakima City. It also appears of record that, after the verdict and before the District Court awarded the writ of mandamus, the county seat was removed, pursuant to an act of the territorial legislature, from Yakima City to North Yakima. The mandamus prayed for being founded on a suggestion that the defendant had distinctly manifested an intention not Opinion of the Court. to perform a definite duty to the public, required of it by law, the petition was rightly presented in the name of the Territory at the relation of its prosecuting attorney; Attorney General v. Boston, 123 Mass. 460, 479; Code of Washington Territory, § 2171; and no demand upon the defendant was necessary before applying for the writ. Commonwealth v. Allegheny Commissioners, 37 Penn. St. 237; State v. Board of Finance, 9 Vroom, 259; Mottu v. Primrose, 23 Maryland, 482; Attorney General v. Boston, 123 Mass. 460, 477. But upon the facts found and admitted no sufficient case is made for a writ of mandamus, even if the court could under any circumstances issue such a writ for the purpose set forth in the petition. The fraudulent and wrongful intent, charged against the defendant in the petition, is denied in the answer, and is not found by the jury. The fact that the town of North Yakima was laid out by the defendant on its own land cannot impair the right of the inhabitants of that town, whenever they settled there, or of the people of the surrounding country, to reasonable access to the railroad. No ground is shown for requiring the defendant to maintain stations both at Yakima City and at North Yakima; there are other stations furnishing sufficient facilities for the whole country from North Yakima southward to Pasco Junction; the earnings of the division of the defendant's road between those points are insufficient to pay its running expenses; and to order the station to be removed from North Yakima to Yakima City would inconvenience a much larger part of the public than it would benefit, even at the time of the return of the verdict. And, before judgment in the District Court, the legislature, recognizing that the public interest required it, made North Yakima the county seat. The question whether a mandamus should issue to protect the interest of the public does not depend upon a state of facts existing when the petition was filed, if that state of facts has ceased to exist when the final judgment is rendered. In this regard, as observed by Lord Chief Justice Jervis in Great Western Railway v. The Queen, already cited, "there is a very great difference between an indictment for not fulfilling a public duty, and a mandamus commanding the |