The mere fact that defendant does not carry passengers or freight for the public is not ground of forfeiture of its charter. A railroadcorporation may exist in law, though engaged solely in transporting coal from the mine of its owners to tide water; nor does the fact that the articles of association of defendant state its purpose, among other things, to be the " transportation of freight and passengers," make any difference, unless it be shown that the corporation refuses to transport freight or passengers when offered; and even such refusal is not ground of forfeiture under all circumstances. But plaintiff must go this length or fail in the present suit, as cases cited show.
Again: " Forfeiture is not enforced except where the violation has been of some provision of the law which is vital and essential to the objects of the trust or grant. The misuser or non-user must be such as to prevent or destroy the object of the grant, or else it must amount to a misdemeanor in the trust, injurious to the public; and this must be made out clearly by the State." (Thompson v. People, 23 Wend. 580; Common-wealth v. Fitchburg Railroad Co. 12 Gray, 186-9; People v. Manhattan Co. 9 Wend. 373-6.)
OPINION THE COURT
The demurrer to the complaint was improperly sustained. In its proceedings for the condemnation of Los Medanos Rancho for railway purposes, the defendant (assuming to exercise the eminent domain) purported to act as agent of the State in the appropriation of private property for public use. It now appears by the complaint, however, that this assumption was a mere false pretense; that the use for which these lands were taken was, in fact, a mere private use, and one to which the eminent domain is of course inapplicable. The proceedings in condemnation amounted to an imposition upon the Court before which they were had.
It is certainly competent for the State, upon discovering the misuse of its authority, whereby the private property of one of its citizens has been wrongfully taken for the private use of another, to interpose by its Attorney-General to correct the abuse.
Judgment reversed and cause remanded, with directions to overrule the demurrer to the complaint. Remittitur forthwith.