his right to the writ. As to the facts set up in the petition, so far as not contradictory or conflicting, for the purposes of this decision, in so far as they are assumed to be true, do they constitute sufficient ground for the issuance of the writ? It appears from the petition: That on the 4th day of May, 1899, the governor of the state of Idaho issued the following proclamation: State of Idaho, Executive Office. Whereas, it appearing to my satisfaction that the execution of process is frustrated and defied in Shoshone county, state of Idaho, by bodies of men and others, and that combinations of armed men to resist the execution of processes and to commit deeds of violence exist in said county of Shoshone; and whereas, the civil authorities of said county of Shoshone do not appear to be able to control such bodies of men, or prevent the destruction of property and other acts of viclence; and whereas, on Saturday, the 29th or warrant, and hence such arrests pending the suspension, and when made in obedience to the order or authority of the officer to whom that power was committed, were practically legal. The opinion says that § 4 of the act of March 3, 1863, providing that any order of the President, or under his authority, made during the rebellion, shall be a defense in all courts to any action, civil or criminal, based on such acts, is merely declaratory of the law as it resulted from the passage of the act and the suspension of the privilege of the writ. But Griffin v. Wilcox, 21 Ind. 370, an action of a similar character, holds that the suspension of the writ does not legalize a wrongful arrest and imprisonment, but only deprives the party arrested of the means of procuring his liberty, and holds that § 4 is unconstitutional on the ground that it deprives one of his property without due process of law. Who are denied the privilege of the writ. The persons whose release was sought in Re Fagan, 2 Sprague, 91, supra, were soldiers, but it was claimed that they were not legally held because two who were drafted were not liable to enrollment, and the three who enlisted were minors whose parents did not consent. It was contended that the description in the proclamation of the persons as to whom the privilege was suspended only covered those "legally" held as soldiers or prisoners. This position was held untenable, the court arguing that under such construction the proclamation would have no effect, since there was no need of suspension if the detention were legal. ex V. People rel. Starkweather Gall, 44 Barb. 98, holds that the act suspending the privilege of the writ was designed to enable the President to arrest and detain as prisoners persons charged with, or suspected of, some offense against the government, and to suspend the privilege of the writ as to all such persons, and that the suspension did not apply to a peti tion for a writ to secure the release of a minor under seventeen alleged to have been fraudulently enlisted as a soldier. The opinion holds that the broad authority given to the President by the first clause of § 1 to suspend the privilege of the writ in "any" case throughout the United States or any part thereof is qualified by the subsequent clause to the effect that no military or other officer day of April, 1899, at or near the town of Wardner Junction, in said county of Shoshone, state of Idaho, an armed mob did then and there wantonly destroy property of great value, with attendant loss of life; and whereas, said destruction of property, with attendant loss of life, by mob violence, as above set forth, is but one and a repetition of a series of similar outrages covering a period of six years or more just passed, the perpetrators of said outrages seeming to enjoy immunity from arrest and punishment through subserviency of peace officers of said county of Shoshone, or through fear on the part of said officers to such bodies of lawless and armed men; and whereas, I have reason to believe that similar outrages may occur at any time, and believing the civil authorities of said county of Shoshone are entirely unable to preserve order and protect property: Now, therefore, I, Frank Steunenberg, governor of the state of Idaho, by vir'tue of authority in me vested, do hereby proshall be compelled, in answer to any writ of habeas corpus, to return the body of any per son detained by him by the authority of the President, but upon his oath that the person is detained by him as a "prisoner" under the authority of the President further proceedings under the writ shall be suspended. The position is further supported by the argument, drawn frfom the 2d section, which provides for the discharge of persons so detained where the grand jury has failed to indict them. Re Fagan, however, holds that even if the subsequent clause of the 1st section is, itself, limited to persons detained as prisoners under the authority of the President, yet it does not restrict the suspension, but merely makes an additional provision with reference to such special class. Re Cain, 2 Winst. L. (60 N. C.) 141, held that the suspension of the writ by the act of the Confederate Congress only applied to a case where a person was charged with a criminal offense, and did not apply to a petition for a writ to test the question as to one's liability to military service. The opinion says that the clause of the Confederate Constitution with reference to the suspension of the writ (which is the same as that of the Federal Constitution) refers only to the writ of habeas corpus ad subjiciendum to secure the release of a person who stands committed or detained as a prisoner for a crime. Re Spivey, 2 Winst. L. (60 N. C.) 156, however, holds that the return to a writ showing that the petitioner was detained as a prisoner for an attempt to avoid military service, and was thus within the scope of the Confederate statute suspending the privilege of the writ, was conclusive, and that the court could not know judicially what the act was which was considered to be such an attempt. In that case It was asserted that the petition was simply to test the constitutionality of the act subjecting principals of substitutes to military service. Re Long, 2 Winst. L. (60 N. C.) 260, is to the same effect. Continuance of suspension. Com. ex rel. Cozzens v. Frink (Pa.) 4 Am. L. Reg. N. S. 700, held that the right of the President to continue the suspension under the act of Congress ceased with the rebellion. G. H. P. claim and declare the said county of Sho- | in the aid of the military of the state, or of shone, in the state of Idaho, to be in a state of insurrection and rebellion. In testimony whereof, I have hereunto set my hand and caused to be affixed the great seal of the state. Done at the city of Boisé, the capital of the state of Idaho, this 4th day of May, A. D. 1899, and of the independence of the United States of America, the one hundred and twenty-third. Frank Steunenberg, By the Governor. the Federal government, to suppress such insurrection, and re-establish permanently the ascendency of the law. It would be an absurdity to say that the action of the executive, under such circumstances, may be negatived, and set at naught by the judiciary, or that the action of the executive may be interfered with or impeded by the judiciary. If the courts are to be made a sanctuary, a city of refuge, whereunto malefactors may flee for protection from punishment justly due for the commission of crime, they will soon cease to be that palladium of the rights of the citizen so ably described by counsel. Section 7405 of the Revised Statutes provides: "When an armed force is called out for the purpose of suppressing an unlawful or riotous assembly, or arresting the offenders, and is placed under the temporary direction of any civil officer, it must obey the orders in relation thereto of such civil offi. cer." That thereafter, upon the call of the governor, a military force was sent into said Shoshone county by the President of the United States, which proceeded at once to secure the arrest of the parties engaged in, and who committed, the outrages of the 29th of April, for the purpose of bringing such parties before the proper tribunal for trial. Among the parties who were arrested as be- The facts set forth in the governor's proing implicated in the murders and other lamation warranted his action. It is true crimes resulting from the insurrection, riot, that some of the facts recited therein are or rebellion of the 29th of April, was the pe- negatived by averment in the petition, which titioner, and he bases his claim to be dis- would seem to put in issue the truth or fals charged from such arrest upon various ity of those recitals. On application for grounds: "(1) No insurrection, riot, or re-writ of habeas corpus, the truth of recital bellion now exists in Shoshone county. (2) of alleged facts in a proclamation issued by The governor has no authority to proclaim the governor proclaiming a certain county martial law, or suspend the writ of habeas to be in a state of insurrection and rebellion corpus. (3) That martial law does not ex- will not be inquired into or reviewed. The ist in Shoshone county, and has not been action of the governor in declaring Shoshone proclaimed in said Shoshone county by any county to be in a state of insurrection and one having authority to make such procla- rebellion, and his action in calling to his aid mation. (4) That the little disturbance of the military forces of the United States for the 29th of April is over; that the parties the purpose of restoring good order and the implicated in it, after having destroyed supremacy of the law, has the effect to put about a quarter of a million dollars of prop-into force, to a limited extent, martial law erty, and committed several murders, have in said county. Such action is not in violaretired to their homes; and that, in recognition of the Constitution, but in harmony with tion of the inalienable rights of the citizen, it, being necessary for the preservation of they ought not to be disturbed. (5) That the governor had no right or authority to send an agent or representative to Shoshone county to consult and advise with the military officer sent there by the Federal govern ment to assist in putting down the insurrection and restoring order in said county." government. In such case the government may, like an individual acting in self-defense, take those steps necessary to preserve its existence. If hundreds of men can arm themselves and destroy vast properties, and kill and injure citizens, thus defeating the ends of government, and the government be unable to take all needful and necessary steps to restore law and maintain order, the state will then be impotent, if not entirely destroyed, and anarchy placed in its stead. It is no argument to say that the executive was not applied to by any county officer of Shoshone county to proclaim said county to Counsel have argued ably and ingeniously upon the question as to whether the authority to suspend the writ of habeas corpus rests with the legislative or executive power of the government; but, from our view of this case, that question cuts no figure. We are of the opinion that whenever, for the purpose of putting down insurrection or re-be in a state of insurrection, and for this bellion, the exigencies of the case demand it, for the successful accomplishment of this end in view it is entirely competent for the executive or for the military officer in command, if there be such, either to suspend the writ, or disregard it if issued. The statutes of this state make it the duty of the governor, whenever such a state or condition exists as the proclamation of the governor shows does and has existed in Shoshone county for the past six or seven years, to proclaim such locality in a state of insurrection, and to call reason the proclamation was without authority. The recitals in the proclamation show the existence of one of two conditions, viz.: That the county officers of said county, whose duty it was to make said application, were either in league with the insurrectionists, or else, through fear of the latter, said officers refrained from doing their duty. Under the circumstances, it was the duty of the executive to act without any application from any county officer of Shoshone county. This conclusion is based upon what we deem a correct construction of the provi obstructions in the path of duty prescribed sions of our Constitution and statutes in by law for the executive, but rather to renforce, construed in pari materia. der to him all the aid and assistance in their It having been demonstrated to the satis-power in his efforts to bring about the confaction of the governor, after some six or summation most devoutly prayed for by seven years' experience, that the execution of every good and law-abiding citizen in the the laws in Shoshone county through the or-state. dinary and established means and methods was rendered practically impossible, it be came his duty to adopt the means prescribed by the statute for establishing in said county the supremacy of the law, and insuring the purishment of those by whose unlawful and criminal acts such a condition of things has been brought about; and it is not the prov. ince of the courts to hinder, delay, or place The various questions raised by counsel have been considered by the court, and it is our conclusion that the petition does not state facts which show that the writ demanded ought to issue; wherefore the said demurrer has been sustained, and the writ denied. Quarles and Sullivan, JJ., concur. NEW JERSEY SUPREME COURT. STATE of New Jersey ex rel. City of v. BRIDGETON & MILLVILLE TRACTION *1. 2. (........N. J.........) A street-railway company incorporated under the laws of this state, and the route of its road, and the location of its tracks, established by an ordinance of the municipality in the streets of which the company is to operate its road. such ordinance being accepted by such company, and its tracks laid in accordance therewith, and the road constructed and in operation, cannot, at its mere will and discretion, cease and abandon the operation thereof, or any portion thereof. It becomes the duty of the railway company, in the exercise of its rights. privileges, and franchises, for the benefit of the public, to maintain and operate its road according to the terms of the ordinance, and in compliance with statutes which confer upon the company such rights, privileges, and franchises. An implied condition attaches itself to the grant of the franchise, that it be held for public benefit: and the duty upon the railway company is to exercise it for such purpose; and, as a public agent, it cannot escape this duty. 3. The company, duly incorporated, which has the ownership of, and is in possession and control of, such street railway, its appliances and property, whether under a lease of or by sale from *Headnotes by LIPPINCOTT, J. NOTE. For mandamus to compel operation of railroad, see note to State er rel. Little v. Dodge City, M. & T. R. Co. (Kan.) 24 L. R. A. 564; also Chicago & A. R. Co. v. People ex rel. Hunt (I.) 20 L. R. A. 224; State er rel. Kellog v. Missouri P. R. Co. (Kan.) 29 L. R. A. 444; People ex rel. Cantrell v. St. Louis, A. & T. H. R. Co. (Ill.) 35 L. R. A. 656. For later cases as to compelling operation of street railway, see San Antonio Street R. Co. v. State ex rel. Elmendorf (Tex.) 35 L. R. A. 662; State ex rel. Grinsfelder v. Spokane Street R. Co. (Wash.) 41 L. R. A. 515; and State ex rel. Knight v. Helena Power & Light Co. (Mont.) 44 L. R. A. 692. 4. 5. the original or other company incorporated to construct and operate such railway, or by sale under a decree of the court of chancery of this state upon foreclosure under the statute of the state concerning the sale of the property and franchises of certain corporations (Pub. Laws 1897, p. 229, chap. 127), has conferred upon it all the corporate rights, liberties, privileges, and franchises of such original or other company, and upon it rests the same burden and duty to maintain and operate such street railway under the statutes and the ordinance of the municipality as was imposed upon the original company. The fact that the located route of the railway is laid across a bridge over a stream, the construction, maintenance, and control of which bridge is in the board of chosen freeholders, which will not permit the tracks to be laid thereon unless upon proper and reasonable regulations for the safety of the bridge for the traveling public, furnishes no excuse why the road should not be operated upon its route through the streets of the municipality lying upon either side of such bridge. The acceptance of the ordinance being apart from the control of such bridge by the board of chosen freeholders, and having no relation to it, or to its use, and there being an agreement between the railway company and the chosen freeholders in relation to the use of such bridge, the court will not enter upon the consideration of the reasons why the company has not performed such agreement, in order to excuse the company from the performance of its duty towards the municipality in the operation of its road. Mandamus is the proper remedy to compel such street-railway company to perform the duty of maintaining and operating such railway for the benefit of the public. The public duty imposed upon the company is always active, potential, and imperative, and must be executed until lawfully surrendered, suspended, or abandoned by the legally expressed consent of the state; and the performance of this duty can be lawfully enforced by mandamus. 6. The municipality in the streets of which the railway is located by ordinance is a proper relator in a proceeding by mandamus to enforce the duties of the company towards the public. (June 21, 1899.) A PPLICATION for a writ of mandamus | Co. 30 N. J. Eq. 12; Booth, Street Railways, to compel defendant to operate its cars 90-92; State ex rel. Mooney v. Edwards, 51 over its entire route. Writ awarded. N. J. L. 479. The facts are stated in the opinion. Mr. Thomas W. Trenchard, for relator: The law puts the location of route of street railroad on city council. For city council to leave the matter of what portion of the route shall be operated to the company would be an unwarranted delegation of authority. State, Theberath, Prosecutor, v. Newark, 57 N. J. L. 312; State ex rel. Bowman v. Caldwell, 18 N. J. L. 313. The appropriate remedy when an ordinance requires a railroad company to lay its road in a certain manner over a certain route, and the company duly accepts its provisions, and afterwards refuses to comply with its provisions, is by mandamus. State ex rel. Wilbur v. Trenton Pass. R. Co. 57 N. J. L. 212; 8 Am. & Eng. Enc. Law, p. 616, note. Mr. Thomas E. French also for relator. Mr. Walter H. Bacon, for respondent: A writ of mandamus will not lie to enforce the performance of an act which the defendant is without lawful authority to perform. High, Mandamus, § 14; 1 Wood, Railroads, 378, 379; 2 Dill. Mun. Corp. 4th ed. 1007, note; State ex rel. Bayer v. Hoboken, 40 N. J. L. 152; State, Roll, Prosecutor, v. Perrine, 34 N. J. L. 254; State ex rel. Wilson v. Longstreet, 38 N. J. L. 312; State ex rel. Ocean County Freeholders v. Vanardsdale, 42 N. J. L. 536. The legality of the act, performance of which is sought to be enforced, may be challenged on application for mandamus. Two things must concur to authorize the issuing of a mandamus, a specific legal right, and the absence of an effectual legal remedy. State ex rel. Mount Pleasant Cemetery Co. v. Paterson, N. & N. Y. R. Co. 43 N. J. L. 505; 2 Dill. Mun. Corp. 4th ed. 1006, 1009; State ex rel. Hugg v. Ivins, 59 N. J. L. 139: State ex rel. Vannatta v. Smith, 61 N. J. L. 188: State ex rel. Rader v. Union Twp. 43 N. J. L. 518. Previous to the making of the application to the court for the writ to command the performance of a particular act, an express and distinct command or request to perform it must have been made by the prosecutor to the defendant who must have refused to comply with such demand. 14 Am. & Eng. Enc. Law, p. 106; State ex rel. Plainfield v. Runyon, 42 N. J. L. 568. Lippincott, J., delivered the opinion of the court: This is a proceeding on a rule to show cause on the part of the relator why a writ of mandamus should not issue commanding the Bridgeton & Millville Traction Company forthwith to resume and discharge its duty as a common carrier of passengers and the exercise of its franchises by operating and continuing to operate for the transportation of passengers the street railway, with all necessary turnouts and switches, the tracks of which were located by ordinance 66 of the city of Bridgeton, the relator, entitled "An Ordinance Locating the Tracks of the Railway of the Bridgeton Rapid-Transit Company and Authorizing the Said Company to Construct a Street Railway in Cer State ex rel. Pell v. Newark, 40 N. J. L. 71; State ex rel. Rosenfeld v. Einstein, 46 N. J. L. 479; Lakewood Twp. v. Brick Com-tain Streets in the City of Bridgeton." The mittee, 55 N. J. L. 275; Danforth v. Philadelphia & C. M. Short Line R. Co. 30 N. J. Eq. 12; State ex rel. Mabon v. Halsted, 39 N. J. L. 640; State ex rel. Shackelton v. Guttenberg, 39 N. J. L. 660; 2 Dill. Mun. Corp. 4th ed. 1036. The consent of the board of chosen freeholders of Cumberland county is essential to the right of a street-railway company to lay tracks on the bridges spanning Cohansey creek in Bridgeton. State, Lewis, Prosecutor, v. Cumberland Freeholders, 56 N. J. L. 416; State, Elmer, Prosecutor, v. Cumberland County Freeholders, 57 N. J. L. 366. facts are that after the incorporation of the Bridgeton Rapid-Transit Company, it presented a petition to the city council of the city of Bridgeton for a grant to locate, construct, operate, and maintain a single-track street railway, with the necessary turnouts. in the streets over the route designated in its articles of incorporation; among other streets, "beginning in Summit avenue, about 150 feet from the westerly line of Atlantie. street, in the city of Bridgeton, in the county of Cumberland, in the state of New Jer sey; thence along Summit avenue to Atlantic street; thence through and along Atlantie street to Broad street; thence through Broad street, and across the bridge over Cohansey creek, through Jefferson street to South Pearl street, through South Pearl street to South avenue, and through South avenue to Pamplylia avenue." On January 31, 1892, after consideration, the city council passed an ordinance locating the tracks in the streets of Bridgeton, including the streets above named, granting the company the right to operate the line in such streets by any mechanical power except steam, regMorawetz, Priv. Corp. §§ 1134-1136; Dan-ulating the manner of construction in such forth v. Philadelphia & C. M. Short Line R. streets, that the said railway should be coun The first consent obtained by the Rapid Transit Company to operate its road over the Broad Street bridge was set aside by this court. The second consent has been revoked by the freeholders. The defendant, therefore, is wholly without lawful authority to do the act, performance of which is sought to be enforced. The court will not build a railroad, nor enforce a contract to locate it in a particular place, nor operate it. Traction Company, to secure its bonds amounting to the sum of $400,000, mortgaged to the Solicitors' Loan & Trust Company 993 shares of stock of the Bridgeton Rapid-Transit Company and 300 shares of the capital stock of the Bridgeton & Millville Traction Company, the railway of the South Jersey Traction Company, with all its structures, cars, and appliances, and also all the leasehold estate acquired by lease from the Bridgeton Rapid-Transit Company, to the South Jersey Traction Company, dated the 23d day of June, 1893. At the same time of the lease from the Bridgeton Rapid-Transit Company to the South Jersey Traction Company, the latter company by lease acquired from the Bridgeton & Miliville Turnpike Company the rights, franchises, and property in certain highways in the city of Bridgeton of that company, which leasehold estate, with all its appurtenances, rights, and franchises, were expressly included in this mortgage. The mortgage was foreclosed in the court of chancery of this state, and by master's deed dated on May 10, 1897, the shares of stock mortgaged, the railways, rights, franchises, station, and equipments of the South Jersey Traction Company were conveyed to one Frank S. Lewis, including the leasehold estate derived from the Bridgeton Rapid-Transit Company and the Bridgeton & Millville Turnpike Company. On May 11, 1897, the certificate of the organization of the Bridgeton & Millville Traction Company as a corporation of this state was filed in the office of the secretary of state, to which corporation Frank S. Lewis immediately conveyed the shares of stock acquired at the foreclosure sale; also all the railways owned by said South Jersey Traction Company, with all cars, shops, stations, etc., and appliances; also all the leasehold estates acquired by the South Jersey Traction Company. pleted within nine months from the accept ance of the ordinance by the company, and providing for the manner in which the streets should be used. In several sections of the ordinance the duties of the company in relation to the use and repair of the streets are defined, certain restrictions imposed, and the rights of the city in the streets expressly reserved. By the twelfth section of the ordinance it is provided, in substance, that if the company shall fail to run or operate its said cars for the space of five consecutive days, then it shall and may be lawful for the said city council of the city of Bridgeton to order the said company to remove its said tracks wherever it has failed to cperate its cars, and unless the company shall forthwith remove the same, and place such street or highway in good repair and condition to the satisfaction of the city, then the said city shall have power to remove the track, repair the street or highway, and to sell the material removed therefrom, and from the proceeds pay the expense of removal and sale, paying the surplus, if any, to the company, and, in case of deficiency, the company to be liable for the same. On March 1, 1893, the Bridgeton Rapid-Transit Company filed an acceptance of the location of its tracks as designated in this ordinance. On the same day it also filed a general acceptance of the ordinance. On June 3, 1893, the Bridgeton Rapid-Transit Company leased to the South Jersey Traction Company, a corporation organized for the same purposes as the Bridgeton Rapid-Transit Company, the street railway of that company as located under the ordinance, or extended in pursuance of lawful authority then existing or which might thereafter exist, together with all "the branches, extensions, sidings, turnout tracks, rights of way, lands, machinery, fixtures, depots, stables, shops, stations, buildings, structures, improvements, appur- The Bridgeton & Millville Traction Comtenances, and hereditaments of whatever pany was organized by virtue of an act enkind and description and wherever situate," titled "An Act Concerning the Sale of Propand also "all rights, powers, franchises, and erty and Franchises of Any Corporation Creprivileges," etc., for the term of 999 years. ated by or under Any Laws of This State, The South Jersey Traction Company on its except Steam Railroads, Canals, Turnpike or part agreed to assume all existing contracts Plank Road Companies," approved April 16, relating to the construction and operation of 1897 (Pub. Laws 1897, p. 229, chap. 127). the railway, and agreed to forthwith pro- It will be seen that the Bridgeton & Millville ceed at its own cost and expense to construct, Traction Company was duly organized unequip, and thereafter operate and maintain der the statutes of this state, and became the the whole of the railway not already con- owner and possessor of all the property and structed, over and along the streets and high-franchises of the Bridgeton Rapid-Transit ways of the city of Bridgeton, as the route is designated in the articles of the association of the said lessor, and as the same has been located by the city council of the city of Bridgeton by the ordinance aforesaid." The agreement of lease also contained other stipulations that the lessee would exercise all of any corporation the corporate powers conferred, and exercise every right, franchise, and privilege in respect to the use, management, and maintenance of such railway; and also that during the continuance of this lease the railway should be efficiently operated with a full equipment during the continuance of the lease. On July 1, 1893, the South Jersey Company, the South Jersey Traction Company, and the Bridgeton & Millville Turnpike Company, for the purposes of the operation of this street railway over the streets in question. By the statute last cited it is provided that "whenever the property and franchises shall be sold by any decree or decrees of the court of chancery, such sale shall vest in the purchaser or purchasers thereof all the right, title, interest, property, possession, claim, and demand, in law and equity, of the parties to the suit in which such deeree made, of, in, and to the said property so sold was |