We think that the answer of the railroad company raises issues to be tried, and that there was error in granting the motion for judgment on the pleadings. The answer alleges that the defendantcould not take the strikers back, because they made demands for a retroactive scale of wages involving a present outlay of $275,000, and that this sum the company did not have and could not borrow. If that is true, mandamus will not issue, because obedience is impossible. (City of Benton Harbor v. St. Joseph B.H.S.R. *Page 632 Co., 102 Mich. 386; Matter of Bristol N.S.R. Co., L.R. 3 Q.B.D. 10, 13; State ex rel. Little v. Dodge City M. T.R.Co., 53 Kan. 329; People ex rel. Green v. Dutchess Col.R.R. Co., 58 N.Y. 152, 164; People ex rel. Bailey v.Supervisors of Greene, 12 Barb. 217; 10 Halsbury's Laws of England, Crown Practice, p. 101; 1 Wyman on Public Service Corporations, § 301.) The courts will not command the defendant, under pain of punishment for contempt, to do what it cannot. We do not say that there are no remedies where a corporation concedes itself powerless to fulfill its public duties. It is enough for our present purposes that they do not include mandamus. That the averments of the answer are true must be assumed, for the company was denied the opportunity to prove them. We do not know and cannot forecast the outcome of a trial. The supposed impossibility may then appear to be unreal. The defendant's resources may be greater than it admits. The evidence, when received, may justify the inference that even if the impossibility is real, a concession of higher rates for the future would lead the striking workmen either to waive demands for the past or to postpone the time of payment. But until the issues have been tried, we must take the answer as we find it. The courts below have assumed that the company had the power to resume service at once by taking back its former workmen. The theory on which the writ issued is thus seen to be untenable.
On a new hearing the court must determine whether adequate service has been resumed; if not, whether the company's professed inability to yield to the demands of the striking employees is real; and if real, whether reasonable effort has been made to operate the road through others.
The order should be reversed, the proceeding remitted to the Special Term, and a rehearing ordered, with costs to abide the event. *Page 633
HISCOCK, Ch. J., CHASE, HOGAN, CARDOZO and McLAUGHLIN, JJ., concur; POUND, J., dissents; ANDREWS, J., absent.
Order reversed, etc.