ated about two miles east of Polk City, but that a broad-gauge road was constructed from Polk City to a point about two miles northeast thereof, where it connected with the main line; and that two passenger trains are run daily from the main line to Polk City on their way from Des Moines to Ames, and two mixed passenger and freight trains are operated to and from Polk City in the same manner. It is also alleged that the line as operated is more advantageous to the plaintiff and other property owners in Polk City than as the road was originally constructed; and the road as now operated affords reasonable and sufficient facilities for the trade and commerce of Polk City, and for all persons going to or from there; that, owing to the heavy grades, a first-class road could not be operated by Polk City. The defendants also pleaded an estoppel and the statute of limitations. There may be other allegations of the petition and answer to which we have not deemed it necessary to refer.

The court, among others, gave the following instructions to the jury:

"3. I instruct you that, under the uncontroverted facts, the Chicago and Northwestern Railway Company is bound to maintain and operate a railway substantially upon the line as originally located and constructed, so as to afford reasonable railway facilities to the public. Said company has, however, the right to make reasonable changes and variations from the line as originally constructed and operated, if, in so doing, the public interests would be promoted, though incidentally the plaintiff or others would sustain damage by the change."

"5. You will first decide whether the public interest is concerned in having the main line of said road operated by way of Polk City. You observe it is as to the public interest you are to inquire, and not merely as to the interest of Polk City and vicinity. It is as to the interest of the general public, including those who do business at and with Polk City, in traffic and travel over said road, that you are to consider. In deciding this issue, you will take into consideration the wants of the general public in the way of railroad facilities over that road, the facilities afforded by the road operated as it is, and as it would be if operated as a main line by way of Polk City, and all facts proven, fairly tending to show whether the public interest is concerned in this matter."

"11. In order to enable the plaintiff to maintain his suit, it is not enough that he may have sustained damage by depre

AM. ST. REP., VOL. VII.-31

ciation of his property at Polk City, or otherwise, or that other citizens of Polk City have sustained such damage by the change in location and operation of the road. It must further appear that the public interest requires the road to be operated upon the original line; or, if there is no public interest which has received detriment, there has been no breach of a public trust or duty on the part of the defendants, or either of them.

"12. The public interest which must have received detriment by the change in the location and operation of the railroad must be not merely the interest of the general public of Polk City or its vicinity, but of the general public, or the people of this state, who use defendants' line of railway for traffic or travel; and if this general interest will not be promoted by the relocation and operation of the road upon the original line, then the plaintiff cannot maintain this suit, even though the jury should find that it would be for the interests of the plaintiff and other citizens of Polk City to have the railway maintained and operated over the original line."

1. The defendants filed a motion for a new trial upon several grounds, among which are, that the verdict is not in accord with the foregoing instructions, and that, under the evidence and said instructions, the verdict should have been for the defendants. This motion was sustained, but upon what ground we are not advised. If, however, any single ground of the motion is well taken, the ruling of the court must be sustained. The instructions, whether right or wrong, constitute the law of the case, and it was the duty of the jury to follow them. The instructions lay down the rule that unless the interests of the general public have been injuriously affected by what the defendants did, then the plaintiff is not entitled to recover. There is no evidence tending to show that the interests of the public have been prejudicially affected. Fairly considered, we think the evidence shows that the general public have been benefited by the change made in the location of the road. Therefore the verdict is against the instructions of the court, and the court rightly held that the defendants were entitled to a new trial.

2. Counsel for the appellant insist that the foregoing instructions are erroneous, and it is insisted that we determine this question now, so that both parties may be advised as to their rights when another trial is had. It is provided by statute that the "order of mandamus is granted on the petition of

any private party aggrieved": Code, sec. 3377; and conceding that mandamus is the proper remedy, the inquiry is, whether a private person may pursue such remedy without regard to the public interest, or in disregard thereto.

It is said that the weight of authority sustains the proposition that "where the question is one of public right, and the object of a mandamus is to procure the enforcement of a public duty, the people are regarded as the real party, and the relator at whose instigation the proceedings are instituted need not show that he has any legal or special interest in the result. it being sufficient to show that he is a citizen, and as such is interested in the execution of the laws": High on Extraordinary Legal Remedies, secs. 431, 432. This being so, it seems to us that it necessarily follows that, unless the public interests have been injuriously affected, a private individual cannot insist that a public right or duty be enforced. If he can, it must. logically follow that he may do so when the public interesta have been benefited, and thus compel the performance of a. duty which the general public have waived or acquiesced in and expressly recognized what has been done. For instance, if the plaintiff is successful in this action, the defendant will be compelled to construct and operate its main line of road. by Polk City. Now, it may, for the purpose of argument, be assumed that this would injuriously affect the interest of the general public, and that the representatives of the general public do not desire that the main line of the road should be so operated. In such case, why should the plaintiff have the power to enforce such duty? On the sole ground, we presume, that his private interests have been injuriously affected, when the public interests possibly have been benefited. Whatever right the plaintiff has must be grounded on the fact that performance of a public duty is cast on the defendant. There is not, and never was, a duty or obligation based on any contract existing between the plaintiff and either of the defendants. But the theory of the plaintiff is, that, when one of the defendants accepted the tax on the condition upon which it was voted, it became the duty of such defendant and its successors to construct and operate the road in accordance with the conditions upon which the tax was voted, and that he may enforce such public duty in this action if he shows that he has suffered private damage because of the defendants' failure. This will be conceded, if the public interests have also been injuriously affected, and not otherwise. If this is not so, then,

under the pretense of vindicating and enforcing a public right, a private individual might inflict great and possibly irrepa rable injury on the general public. This, it seems to us, he should not be permitted to do in a case like this. The case under consideration is materially different from one where an officer is entitled to compensation which another officer refuses to pay. In such case the former may clearly have mandamus to enforce the payment of such compensation. Other cases of a similar character may no doubt be suggested. In the case at bar there is no private right, but, it will be conceded, a public right or duty which the plaintiff seeks to enforce. This he cannot do unless the public interests have been injuriously affected, and therefore the instructions above set out are cor rect. The instructions, of course, were given on the theory that there was evidence tending to show that the accommodations afforded by the defendant by running trains to and from Polk City were fairly and substantially sufficient for all the purposes of trade, and the accommodation of passengers to and from Polk City. The plaintiff and other citizens thereof have not been deprived of railroad facilities.

The judgment of the district court must be affirmed.

NEW TRIAL ON GROUND OF DISREGARDING INSTRUCTIONS OF COURT: Strohn v. Detroit etc. R. R. Co., 99 Am. Dec. 129, note; Pearson v. Burditt, 26 Tex. 157; 80 Am. Dec. 649; Wellborn v. Weaver, 17 Ga. 267; 63 Am. Dec. 235. New trial will be granted where conflicting instructions are given by the court to the jury: Pomroy v. Parmlee, 9 Iowa, 140; 74 Am. Dec. 328.

MANDAMUS IS NOT Regarded AS APPROPRIATE REMEDY FOR ENFORCEMENT OF CONTRACT RIGHTS OF PRIVATE AND PERSONAL NATURE, and obligations which rest wholly upon contract, involving no questions of public trust or official duty: Tobey v. Hakes, 54 Conn. 274; 1 Am. St. Rep. 114, and cases collected in note 116.

GENERAL RULE is, Mandamus wiLL NOT ISSUE where applicant has other adequate remedy: People v. Board of Police, 107 N. Y. 235; Tobey v. Hakes' supra.

MANDAMUS BY PRIVATE INDIVIDUAL TO COMPEL PERFORMANCE OF PUBLIO DUTY. - In State v. Weld, decided November, 1888, in Minnesota, mandamus was brought to compel the respondents as register of deeds and auditor to comply with the statute, and keep their offices at the county seat, said offices being kept by them six miles distant therefrom, and it was decided that inasmuch as "the relators were 'freeholders, tax-payers, and legal voters of the county, this rendered them sufficiently interested to entitle them to move as relators," and the court says: "Who is 'beneficially interested' so as to entitle them to file an information depends upon the object to be obtained. When mandamus is resorted to to enforce a private right, the person interested in having the right enforced must be the relator. But the great weight of American authority is, that where the object is, as in these cases, to enforce a public duty not due the government, as such, any private person

may move to enforce it. ... . . It was enough that the relators in this case were citizens of the county, and as such interested in having the law enforced by compelling these public offices to be kept at the county seat." That a private person may move without the intervention of the attorney-general for a writ of mandamus to enforce a public duty not due the government, as such, is also held in Attorney-General v. Boston, 123 Mass. 460, 469, citing Union Pacific R. R. v. Hall, 91 U. S. 343, 355. Substantially the same conclusion as that reached in State v. Weld, supra, and Attorney-General v. Boston, supra, is arrived at in Village of Glencoe v. People, 78 Ill. 382; State of Nevada v. Gracey, 11 Nev. 223; State v. Shropshire, 4 Neb. 411; Templeton v. Police Jury of Carroll, 11 La. Ann. 141; Moses v. Kearney, 31 Ark. 261, 264, citing Moses on Mandamus, 137; Hamilton v. State, 3 Ind. 458; People v. Collins, 19 Wend. 56; County of Pike v. State, 11 Ill. 202; State v. County Judge, 7 Clarke, 186; People v. Tracy, 1 How. Pr. 186; People v. Supervisors, 18 Id. 461. The case of Moses v. Kearney, supra, however, while holding this to be the law, decides that under the statute of that state proceedings in mandamus could not be sustained unless the petitioners have some special interest not common to the rest of the community. But examine Heffner v. Commonwealth, 28 Pa. St. 108; Ready v. Eagle, 23 Kan. 254; Sanger v. County Commissioners of Kennebec, 25 Me. 291; People v. Inspectors of State Prison, 4 Mich. 187. See also High on Extraordinary Legal Remedies, sec. 431, where the distinction is made by the author between cases where "mandamus is invoked merely for the purpose of enforcing or protecting a private right unconnected with the public interest, and those cases where the purpose of the application is the enforcement of a purely public right where the people at large are the real party in interest "; and it is added that "the decided weight of authority supports the proposition that where the relief is sought merely for the protection of private rights, the relator must show some personal or special interest in the subject-matter, since he is regarded as the real party in interest, and his rights must clearly appear. On the other hand, when the question is one of public right, and the object of the mandamus is to procure the enforcement of a public duty, the people are regarded as the real party, and the relator.... need not show that he has any legal or special interest in the result, it being sufficient to show that he is a citizen, and, as such, interested in the execution of the laws." See Pumphrey v. Mayor etc. of Baltimore, 47 Md. 145; 28 Am. Rep. 446, and note 448; note to Dane v. Derby, 89 Am. Dec. 740. So the court in Mitchell v. Boardman, 79 Me. 469, refused to grant a writ of mandamus brought by a private individual to compel a police-court judge to issue a warrant for search and seizure upon his complaint, the ground of such refusal being that no private right, as distinct from the public, was involved, it being merely "the refusal of a public officer to act in a public mat ter." And the county commissioners, instead of the attorney-general, are declared in Florida to be the proper parties to apply for mandamus, where, under the statute, they had the power to employ, at hard labor upon public works, convicts imprisoned in the county jails, and the purpose of the mandamus was to compel the sheriff to deliver over, for the purpose of utilizing their labor, as provided by statute, certain convicts in the county jail in their county, the basis of the decision being that that county was more interested than any other county in having such convicts employed upon public works therein, and also that the duty of having the statute enforced devolved upon the county commissioners of the county in whose jail the convicts were imprisoned: Holland v. State ex rel. Duval County, 23 Fla. 123. But mandamus will not be granted upon the application of a private citizen