The principles involved in the discussion and decision of this case are of great public interest, but the question arising on the answer and demurrer is narrowed to a single point.
The demurrer to the answer admits in substance that the respondents have built and maintained in good condition for use the Watertown Branch Railroad and the Waltham and Water-town Branch Railroad ; that they have been used for the transportation of freight so as to meet the public wants and demands, that the respondents have been ready to carry any passengers and draw any passenger cars, for a reasonable toll or compensation, that should be offered ; that none have been offered which they have not transported ; that there is not sufficient business to pay the expenses of running regular passenger trains; that the want of passenger business has been caused by the establishing, under the authority of the legislature, of a competing line for the transportation of passengers over a horse railroad; and that for these reasons the respondents discontinued the running of regular trains over the branches, and gave public notice of this discontinuance. The giving of this notice led to the filing of this information.
The position taken by the Commonwealth is, that it was the duty of the corporation to run regular trains for the carriage of passengers upon the branch roads; that the facts stated in the answer and admitted by the demurrer constitute in law no excuse for not so doing; and that the omission and neglect to run regular trains for the carriage of passengers was a breach of public duty, involving the forfeiture of the franchises of the Corporation
*187The precise question therefore before us is, whether the running of regular passenger trains was, under the facts admitted by the demurrer, a legal duty ?
Neither the statutes under which the respondents hold their franchises, nor the general laws regulating railroad companies, in terms impose upon the respondents such duty.
The railroad contemplated by our earliest legislation upon the subject was but an iron turnpike, the use of which was to be paid for by tolls collected of persons travelling upon it. It apparently was not anticipated that the railroad companies were to become themselves the carriers of goods and passengers. Sts. 1829, cc. 26, 93; 1830, c. 4; 1831, c. 56. Boston & Lowell Railroad v. Salem & Lowell Railroad, 2 Gray, 28.
But this idea or policy as to the mode in which railroads were to be used was abandoned before any of our railroads were fully constructed and put into operation. In the act incorporating the Boston and Worcester Railroad Company, (St. 1831, c. 72,) powers were given to the corporation for the transportation of persons and goods, and for the purchase of engines and cars for the purpose. These provisions were inserted, it is understood, under the advice of a distinguished member of our profession deeply interested in works of internal improvement. All the subsequent legislation of the Commonwealth has assumed and proceeded upon the ground that railroad companies were to be the carriers of passengers and merchandise upon-their respective roads. The St. of 1849, c. 191, settled the matter in terms, by providing that no locomotive engine or motive power should be allowed to run upon any railroad constructed under the authority of the Commonwealth, except such as belonged to and were controlled by the corporation owning and managing the road, unless by the consent of the corporation.
There can now therefore be no doubt that the running of trains for the carriage of passengers and freight is among the franchises of railroad corporations. In two instances, and it is believed in two only, has the legislature in terms imposed upon *188railroad companies the duty of running passenger and freight trains. Sts. 1852, c. 305 ; 1857, c. 263.
We can have no doubt that the conferring upon the railroad corporations of the power of carrying freight and passengers has imposed upon them to some extent the correlative duty of carrying them at reasonable times and for a reasonable compensation, subject to the revision of the legislature. This conclusion is confirmed, if any confirmation were necessary, by the policy adopted by the legislature in the St. of 1849, c. 191, and since frequently affirmed, of excluding from the railroad any other motive power than that of the corporation owning the road.
The construction of a railroad is not a private enterprise. The corporation exercises the right, or the legislature through the corporation exercises the right, to take private property for the road, on the ground that the use is a public use and the road itself a highway for the public travel. On no other ground could the exercise of the right of eminent domain by or through these corporations be upheld. The legislature has in this view and to this end reserved to itself full power to amend or alter the charters of the railroad companies and regulate the exercise of powers under them.
The question therefore is not as to the existence of the duty, but as to its extent and qualifications.
Upon a line of railroad of much travel, and where the public convenience required frequent trains for the carriage of goods, a corporation would not discharge its duty by furnishing trains wholly inadequate to meet the public wants; much less if it wholly neglected or failed to make any provision whatever to meet the public wants. We are not prepared to say that such neglect and failure would not be deemed such a dereliction of .Bgal duty on the part of the corporation as to involve the loss of its franchises.
But it is plain that the power to judge of what is necessary or reasonable in the premises is, except in those cases where the legislature has expressly intervened, in the first instance in the corporation. It is clear also that the duty required is not more *189than to meet and supply the public wants. These are measured by the business actually done, or what could be clearly shown would be done if increased facilities were granted. There is nothing in the language of the statutes requiring, nor can any just implication from the powers and privileges conferred upen the corporation require, that trains for passengers or freight should be provided, which are not wanted, or which the business upon the road would utterly fail to support. Yet such is in substance the claim made by the Commonwealth through the attorney general. It is contended that the duty is not relative, but absolute ; that it is not to be measured by the public wants and exigencies at the time, but is to be performed at all hazards, or at any sacrifice, unless or until the legislature shall interpose to relieve the corporation from its performance. This position cannot be sustained. If it had been intended that the duty of running trains should be absolute, it would have been made definite. But the question at once arises, When and how often is this duty to be discharged ? Is a train to be run whenever a passenger shall desire to go; or are there to be fixed times, and, if so, how frequent ? To settle these questions, you would have to refer to the public wants, and these could be measured only by the business done. If trains run at reasonable and moderate fares cannot be supported, it is because they are not needed.
If the duty is to be held absolute, how long, for what period of time, is it to be performed ? Is it during the lifetime of the charter, and this though the expense of running the train is daily and rapidly using up the capital stock of the company ? If so, when the capital stock is exhausted, is the corporation to provide new resources for the purpose; and if so, what power is given to it under the laws for that purpose ?
Again ; it is to be considered that the respondent corporation has under its charter other roads to maintain, and other duties to the public to discharge, and the running of passenger trains on these branches might exhaust its resources and render it incapable of discharging these other duties. It would seem to be therefore not only its right but its duty to exercise a sound *190discretion in the use of its capital, lest by exhausting it upon trains that were not required by the public wants, it should deprive itself of the means of running at reasonable rates those that were.
The point is made in the argument for the Commonwealth, that because the respondents have for a time maintained the roads in running regular trains for freight and passengers, they aie bound to continue to run until authorized by the legislature to stop. We cannot see that a beginning to run these trains rendered their continuance, at whatever cost or sacrifice, a legal duty. It might be more plausibly said that it was the duty of the corporation, after a road was built, to make the trial of running regular trains for passengers and freight; that they were not to presume beforehand that the business would be inadequate; that it was difficult to foresee or anticipate all the business which would find its way to the road, and therefore the experiment should be fairly made. But when trial had been fairly made and had proved disastrous, the duty would have been discharged.
Upon the facts stated in the answer and admitted by the demurrer, we are all of opinion that the demurrer must be overruled and the information dismissed. Information dismissed.