This is a petition for a mandamus, brought by a private citizen for enforcing a statute which reads thus: "Two or *Page 33 more railroad corporations, chartered by the legislature of this state, constituting the whole or part of different lines of route for public travel and transportation between any two cities or towns, or between any city and town, either within or without this state, forming rival and competing lines of route between such points, shall not be allowed to consolidate such roads or lines; and neither of said lines, or any road or roads composing the same, shall be run or operated by any such rival and competing line, or any road or roads, or portion thereof, under any business contract, lease, or other arrangement, but each and every railroad corporation so situated shall be run, managed, and operated separately by its own officers and agents, and be dependent for its support on its own earnings from its local and through business in connection with other roads, and the facilities and accommodations it shall afford the public for travel and transportation under fair and open competition, unless such lease, contract, or arrangement be first authorized by the legislature, and approved by the governor and council." G. L., c. 158, s. 11. In the view which we take of this case, it is unnecessary to examine the first reason assigned for quashing the petition. The second and third reasons may be considered together. They are, in effect, that the petitioner has a complete remedy under the statute by a bill in equity for an injunction. The statute reads thus: "In all cases where any road, its directors, officers, or agents, shall hereafter enforce, or attempt to enforce or exercise, any authority over any other road, situated as is provided in the preceding section or do any act in conflict with said section, such officers or agents shall severally be subject to a fine or liability not exceeding five hundred dollars for each offence, to be recovered by action of debt, or by information or indictment, for the use of the county within which said suit shall be instituted. And it shall be further lawful for any citizen to apply to the supreme court, or to any one or more of the justices thereof, not interested in said road or roads, whose duty it shall be to issue an injunction to restrain, under heavy liabilities and penalties, any board of directors, its officers or agents, or either of them, from attempting to interfere with or control, in any way or manner, the operation, management, or direction of such road or roads, or violate any of the provisions of said section; and said directors, officers, and agents shall be liable, on such application, to examination, under oath, touching any infringement of the provisions of said section, and be subject to all expense of every kind whatsoever necessarily incurred in enforcing the same." G. L., c. 158, s. 12.
Lord Mansfield, in The King v. The Commissioners, c., 1 T. R. 146, 148, says the writ of mandamus is grantable where there is no other specific legal remedy. In Rex v. Baker, 3 Burr. 1265, 1267, he says, — "It was introduced to prevent disorder from a failure of justice or a defect of police. Therefore it ought to be used *Page 34 upon all occasions where the law has established no specific remedy, and where, in justice and good government, there ought to be one." It is not granted where there is other specific legal remedy. Rex v. Blooer, 2 Burr. 1043, 1045; The King v. Bishop of Chester, 1 T. R. 396, 404. It is an extraordinary remedy, granted only in cases where the usual modes of procedure and forms of remedy are powerless to afford relief. This rule of the common law, recognized from the earliest times, is not confined to cases where the remedy relied on in bar of the jurisdiction by mandamus is a common-law remedy, but applies to cases where a particular or special remedy is provided by statute. Whenever the statutory remedy is plain and specific in its nature, and fully adequate to redress the grievance complained of, mandamus will not lie. High Ex. Rem., ss. 15, 16; Ang. A. Cor., ss. 708-712, and authorities.
An injunction, restraining the Concord Railroad, its directors, officers, and agents, from interfering with or controlling the operation, management, or direction of the defendants' road, or an injunction restraining the defendants, their officers, and servants from permitting their road to be operated by any other road, or in any other way than separately, by their own officers and agents, under fair and open competition with the Concord road, would effect as fully and completely the same result as would a peremptory mandamus commanding the defendants to operate their road separately by their own officers and agents, without interference from the Concord road. In the one case the defendants would be commanded not to permit their road to be operated by others: in the other case they would be commanded to operate it themselves. By operating it themselves they would prevent its being operated by others. A violation of the injunction is punishable by an attachment for contempt. A peremptory mandamus may be enforced by an attachment for contempt. High Ex. Rem., ss. 529, 565; People v. Pearson, 3 Scam. 270. The remedy by injunction provided by statute would seem, therefore, to be as full and complete, and as adequate, as the common-law remedy by mandamus. It is also as plain, cheap, and expeditious. And it is not more burdensome: for the facts to be proved would be much the same in either case, and the nature of the process in equity is quite as simple. The remedy afforded by the statute being plain, specific in its nature, and fully adequate to redress the grievance complained of, the writ must be denied. Whether otherwise there would be any distinction because the remedy is in equity instead of at law, we need not inquire.
There is another view of this question which is decisive. When a new right is created by a statute which provides a method in which the right may be enforced, the method thus provided, if the remedy is coextensive with the right, is the only one which can be pursued. But when a statute merely gives a new *Page 35 remedy for enforcing a common-law right, the new remedy is not conclusive, unless, by special enactment or by implication, the common-law remedy is excluded. Green v. Bailey, 3 N.H. 33; Fletcher v. Bank, 37 N.H. 369, 391; Osgood v. Blake, 21 N.H. 550, 564-667; Troy v. Railroad, 23 N.H. 83; Dean v. Railroad, 22 N.H. 316, 321.
The fourth reason assigned for quashing the petition is clearly insufficient. A final decree has been entered up in Burke v. Railroad,61 N.H. 160, which does not afford the relief sought in this suit, nor, in fact, any relief.
Unless the petitioner elects to amend his petition by turning it into a bill in equity, and taking an order of transfer to the docket of the trial term, the order must be
Petition quashed.
All concurred.