Taylok, J. :
On the 11th of March, 1893, an alternative writ of mandamus was granted and issued by the judge of the Circuit Court in and for Lake county, in the Seventh Judicial Circuit, upon the petition of the State on the relation of the mayor, inhabitants and town of Tavares against the corporate plaintiff in error, the Flor[498]*498ida Central and Peninsular Railroad Company. Upon the denial of a motion to quash the alternative writ, and the sustaining of a demurrer to the respondent’s answer, a peremptory writ was awarded, and from this judgment the respondent takes error.
The alternative writ, which contains all the recitals in the petition making application therefor, is as follows :
Whereas, The State of Florida, on the relation of the mayor, inhabitants and town of Tavares, has filed its petition for mandamus, and it appearing from the allegations of the petition that the Florida Central and Peninsular Railway Company, successors to the Florida Railway and Navigation Company, is a corporation duly chartered under the laws of the State of Florida, and doing business in said State and within the limits of the town of Tavares, and that said town of Tavares has been a regularly established station of and for said railway for more than six years past, and' that when the said railroad was first constructed, Alex. St. Clair-Abrams, in his own person, gave the said railway the right of way in the said town, and also a block of land known as Shore Park, the consideration of which was that said railway company should cause to be constructed on said block of land a passenger depot, and that all passenger trains of said railway company should stop at such passenger depot; and that the inhabitants and town of Tavares assented- to the use and occupancy of the streets and [499]*499avenues of said town by said railroad, upon the understanding and condition that the passenger depot would be constructed on the block known as Shore Park— said block being tire best situated and most convenient to the people of Tavares, and that by reason of, establishing a station in said town of Tavares, and by reason of its receipt of the land herein described, it became, and was, and still is, the duty of said railway ■company to construct a passenger depot on said block in. said town of Tavares for the proper use and accommodation of the public; that the said Florida ■Central and Peninsular Railway Company has failed to construct any passenger depot whatever in said town, but stops its trains in the public streets in said town, exposing its passengers and the public to ' great inconvenience and hardship ; that in winter while the public await the trains of said company, the only accommodation they have are bonfires lit in the public streets, around which the public have to cluster to obtain warmth; that'no provision whatever being made for the public, passengers in said town are compelled to go to the water closets on the cars while they are' standing in said streets, to answer the calls of nature, and human feces and urine are deposited on the public streets or public highway in said town, to the great scandal and injury of said town and the inhabitants thereof; that in rainy weather the public are compelled to remain uncovered in the rain, or to seek shelter in adjacent stores and buildings because of the failure of the' said railway company to perform its duty of constructing suitable rail[500]*500road accommodations; that the Florida Central! and Peninsular Railway Company, the successor of the Florida Railway and Navigation Company, in the ownership, control and operation of said railroad, still permits the scandalous and outrageous condition of affairs to exist in said town ; that although repeatedly requested to construct suitable depot accommodations; in said town, it has failed and refused to construct any whatever, and by reason of its failure so to do,, great injury, damage and inconvenience has resulted,, to the injury of the inhabitants of said town, and to the town itself; that the Florida Central and Peninsular Railway Company has taken possession of and uses, controls and claims the ownership of the lands deeded to the Florida Railway and Navigation Company, including the block of land known as Shore Park, deeded for a passenger depot, said block being-bounded on the east by the St. Clair-Abrams avenue, and on the north by Tavares boulevard, but that the said railroad company utterly refuses to construct any depot on said block, or to construct any depot whatsoever in said town; that heretofore the said railroad company has stopped its passenger trains at the foot of Joanna avenue in said town, where no depot accommodations whatsoever exist, and that the trains still stop at the foot of said avenue, but that on the 3d of January, 1891, the agents and employes of said railroad company were engaged in measuring the distance-from defendant’s railroad track near a large marsh to* [501]*501the post office, and that the petitioner is informed and Relieves that it is the purpose and intention of said railroad company to thereafter stop its trains near the •edge of said marsh ; that nearly the entire built-up portion of said town is east and north of said marsh ; ■that the purpose of the defendant is to further annoy ¡and injure the inhabitants of the town of Tavares ; that if the passenger trains of defendant are stopped ■there it will not only inconvenience, but will inflict great injury upon said inhabitants and upon said town ;■ that said marsh is unhealthy and abounding in ■malaria ; that it presents an unsightly appearance, is forbidding in aspect, and is calculated to impress a ■stranger most unfavorably of said town and said inhabitants ; that it will force said inhabitants and the public to additional inconvenience and expense in going to and from the cars of defendant; that the locality is utterly unfitted for a passenger depot, of which fact the defendant is aware ; that the block of land known as Shore Park is the best situated and most convenient for a passenger depot in said town, ¡being only about two hundred and fifty feet from the post office and less than three hundred feet from the ■principal hotel, and from ten of the fourteen stores in said town, and the most accessible to nearly all of the residences in said town; that it is the duty of the defendant as a public carrier to construct all needed depot accommodations at every one of its stations; that the town of Tavares is an important station on [502]*502defendant’s road; that said town is .the county seat of said Lake county ; that it is the junction of five railroads ; that the defendant has a large business in said town, both of freight and passengers, and that great wrong and injury has been done to the said town and inhabitants thereof by the failure and refusal of the defendant to construct the necessary depots ; that by reason thereof the inhabitants of said town and the traveling public have been exposed to sickness and to-suffering, and the public health has been endangered.
It is therefore ordered that the respondents, the-Florida Central and Peninsular Eailway Company,, proceed immediately to construct, * or to have constructed, in the town of Tavares, on the block of land therein formerly known as Shore Park, and bounded on the east by St. Clair-Abrams avenue, and on the north by Tavares boulevard, a suitable depot for the-accommodation of passengers, said depot to be constructed in conformity with the ordinances of said town, and to be completed by the first Monday in> June, 1891, and to stop all their passenger trains at said passenger depot for the reception and delivery of passengers; or to show cause, if any they have, by the said first Monday in June, A. D. 1891, why they have not obeyed this writ. Done at chambers at DeLand, Volusia county, Florida, this 11th day of March., A. D. 1S91.
“John D. 'Broome, Judge.’”
[503]*503The respondent’s motion to quash this writ was upon the following grounds:
1st. There are no sufficient parties to said relation.
2d. There is a misjoinder of parties to the relation.
3d. The inhabitants of the town of Tavares have each their individual, full and complete • legal remedy for any and every grievance against the respondents.
4th. No obligation of contract between Alex. St. Clair-Abrams and the Florida Railway and Navigation Company, as charged, furnished a legal basis for redress for any breach thereof to the relators or either of them by mandamus.
5th. There is no allegation in the relation of the existence of any ordinance of the town of Tavares in reference to the mode and manner of constructing a depot to support the requirement' in the alternative writ that said depot be constructed in conformity with the ordinances of the said town.
6th. There is no law of the State of Florida requiring the respondent to erect depots for the accommodation of passengers at the said station, nor foy designating a place at said station where the same should, be placed.
The refusal of the court to grant this motion is assigned as error. We shall confine our remarks to the points raised by this motion to quash, as a discussion of them will completely dispose of all questions involved in the case.
[504]*504In support of the first ground of the motion to -quash it is urged for the plaintiff in error that the proceeding having been instituted for the •enforcement of a public right, no citizen, or .number of citizens in their individual or collective capacity as such, would be entitled to the writ, but that 'the application for it should have been made by the .Attorney-General. While there are many cases in .several of the States that sustain this contention, yet the decided weight and preponderance of the authorities establish the following to be the correct rule as to who are proper relators in mandamus proceedings: '“When the remedy is resorted to for the purpose of •enforcing a private right, the person interested in having the right enforced must be the relator. The relator (in such case) is considered the real party, and his right to the relief must clearly appear; but where the object is the enforcement of a public right, the people are regarded as the real party, and the relator -need not show that he has any legal interest in the result. It is enough that he is interested as a citizen in having the laws executed and the duty in question enforced.” 14 Am. & Eng. Ency. of Law, 218, and authorities there cited. The above has been adopted by this conrt as being the correct rule, in McConihe, Mayor, vs. ex rel. McMurray, 17 Fla., 288, and in State ex rel. vs. Crawford, 28 Fla., 441, 10 South. Rep., 118.
The second ground on the motion to quash is, that there is a misjoinder of parties as rélators. The writ' was issued in the name of the State of Florida ex re[505]*505latione “The mayor, inhabitants and town of Tavares.” The contention of the respondent is, that the mayor in his official character, and the inhabitants in their individual capacity, have no such similitude of duty or interests as makes it proper to have them joined as relators. Under our laws for the incorporation of cities and towns, such towns are required, as part of the process of incorporation, to adopt a corporate name, and by such corporate name they can sue •and be sued.' Sections 4 and 8, pp. 246 and 247, McClellan’s Digest (sections 661 and 665, Rev. Stat.). There was no necessity to have used the words “mayor and inhabitants,” in this proceeding. The accurate practice would have been simply to -use the corporate name of the town as being the relator ; 1 Dillon’s Mun. Corp. (3rd ed.),. sec. 237, note 1; as it was evidently the intention of the pleader to make the municipal corporation, “town of Tavares,” the relator in the case. But, the object of the proceeding being to enforce the performance of a public duty, under the rule as above announced, the State is to be considered here as the real party; and as the town of Tavares by its corporate name is included as a relator, we can see no harm that could result from treating the words “mayor and inhabitants” as immaterial surplusage, particularly as the mayor is not individually named, and no individual inhabitant is named. The suit, according to the rule, could have been instituted on the relation of any citizen of the town of Tavares, or several of its citizens could have united as relators., The down of Tavares, being a corporation of the State, [506]*506having the general power as such to sue and be sued, could also, in such a case, be the relator in its corporate capacity. The object of the proceeding being to enforce a public duty, so long as it is instituted and conducted in the name of the State, who, in such cases, is the real party, it is not a matter of much moment as to who is the relator, as that the proceedings will be quashed because of any mere technical misjoinder of parties as relators.
The third ground of the motion to quash contends that there is ample remedy at law for the relief sought here by mandamus. The sixth ground of the motion to quash is, that there is no law of the State of Florida. requiring the respondent to erect depots for the accommodation of passengers at the said station, nor for designating the place at such station where the same shall be located. These two grounds of the motion present the question as to whether the power exists in the courts, in the absence. of legislation expressly and specifically prescribing it as a legal duty to be performed by such companies, to compel railroad companies by mandamus to establish stations along their lines and to erect and maintain thereat depot buildings for freight and passengers. From the specific relief sought by the writ in this case it becomes unnecessary for us to pass upon this question, since to pass upon it with the pleadings herein constructed as they are, would be adjudicating an abstract proposition not properly presented. Without, therefore, even intimating any conclusion of our own upon the question, we deem it proper to say that there is [507]*507weighty áncL serious conflict in the authorities as to-whether'the courts can iú-ány case'compel a railroad company to establish a station, or to erect and maintain thereat depot buildings, unless there is legislation in express terms making it a legal duty that they must perform, in contradistinction to a discretionary power that they, are authorized to carry out, or not as they see fit. Some of the authorities hold, that independently of any legislation, it is a common law duty that such companies owe to the public, and that it- will, be enforced. by mandamus. Northern Pacific R. R. Co. vs. Territory of Washington, 3 Wash. (Ter.), 303; State ex rel. Mattoon vs. Republican Valley R. R. Co., 17 Neb., 647; McDonald vs. Chicago & N. W. R. R. Co., 26 Iowa, 124; People vs. Chicago & Alton R. R. Co., 130 Ill., 175, 40 Am. & Eng. R. R. Cases, 352. Other authorities, upon the ground -that the broad discretion vested in these companies in such matters by their charters is beyond the reach of judicial interference or control, hold that the courts can not interfere unless tíre duty is made a clear one by express legislative enactment. People vs. New York, Lake Erie & Western R. R. Co., 104 N. Y., 58; Northern Pacific R. R. Co. vs. Territory of Washington, 142 U. S., 492, 12 Sup. Ct. Rep., 283, overruling 3 Wash. (Ter.), 303, supra. .The case made, however, by the alternative writ before us does not seek merely to compel the erection of a depot building on the line of the respondent’s road at some point at or near the town of Tavares, that will be reasonably subservient to the [508]*508wants and convenience of the inhabitants and business of that community, leaving the exact spot of its location there to the discretion necessarily vested in the •company in such matters; but the sole demand of the writ is, that the respondent company shall be compelled to erect a depot building on the particular spot in said town known as “Shore Park.”'
There is no better settled elementary principle in the law of mandamus than that the writ will never lie to enforce the performance of private contracts. Merrill on Mandamus, sec. 16, and numerous authorities there cited; High on Extraordinary Legal Remedies, sec. 25, and authorities cited; State ex rel. Mount Pleasant Cemetery Co. vs. Patterson, N. & N. Y. R. R. Co., 43 N. J. L., 505; Parrot vs. City of Bridgeport, 44 Conn., 180. Besides this principle, in so far as the alternative writ would Seem to predicate its contention for the location of the depot upon the exact spot known as “Shore Park,” upon the private contract between Alex. St. Clair-Abrams and the town of Tavares, on the one hand, and the railroad company on the óther, it seems to be universally well-settled that contracts undertaking to obligate a railroad company to establish its depot exclusively at a particular point, are void as against' public policy. In Marsh vs. Fairbury, Pontiac and Northwestern Railway Company, 64 Ill., 414, where the effort was made by bill in equity to enforce the specific performance of such a contract, the court says: “The location of railroad depots has much to do with the accommodation of the wants of the public. And when [509]*509once established, a change of affairs may require a*. change of location, in order to- suit public convenience.. We can not admit that an individual is entitled to» call for the interference of a court of equity to- compel a railroad company to locate unchangeably its depot, at a particular spot to, subserve the private advantages, of such individual. Railroad companies, in order to» fulfill one of the ends of their creation—the promotion of the public welfare—should be left free to. establish and re-establish their depots, wheresoever the accommodation of the Avant-s of the public may require. To graut the relief asked for by the complainant, we-would regard as against public policy. ’ ’
In People ex rel. vs. Chicago & Alton R. R. Co., 130 Ill., 175, the court says ; “It is in recognition of the paramount duty of railway companies to establish, and maintain their depots at such points, and in such manner, as to subserve the public necessities and convenience, that it has been held by all the courts, with very few exceptions, that contracts materially limiting their power to locate and re-locate their depots, are against public policy, and therefore void.” The same doctrine was announced by Ch. J. Shaw in Fuller vs. Dame, 18 Pick., 472; and also in St. Jos. & D. C. R. R. Co. vs. Ryan, 11 Kansas, 602; Pacific R. R. Co. vs. Seeley, 45 Mo., 212; Currie vs. Natchez, Jackson & C. R. R. Co., 61 Miss., 725. In Mobile & Ohio R. R. Co. vs. The People, 132 Ill., 559, the court, says: “The location of stations for the receipt and discharge of passengers and freight at points most desirable for the convenience of travel and business be[510]*510ing indispensable to the efficient operation of a railroad and the enjoyment of it by the public,- the railway company can not be compelled on the one hand, to locate stations at points where the cost of maintaining them will exceed the profiits resulting therefrom to the company, nor allowed, on the other hand, to locate them 4so far apart as to practically deny to the communities on the line of the road reasonable ' access to its use. A railway - company can not be compelled to maintain or continue a station at a point when the welfare of the company and the community in general requires that it should be changed to some other point. A railway company can not bind itself, by contract • with individuals, to locate and maintain stations at particular points, or to not locate and maintain them at other points. The company must be left free to establish and re-establish its depots wherever the public welfare or wants of the public may require.” The same doctrine is held in Holladay vs. Patterson, 5 Oregon, 177, in which case the court says : “A railroad company is a quasi public corporation, and the public have an interest in the location of their lines of road and depots. An agreement which tends to lead persons, charged with the performance of trusts or duties for the benefit of others, to violate or betray them, will not be enforced.” Texas Pacific R’y Co. vs. Marshall, 136 U. S., 393.
Counsel for the relator contends, however, in his briefs filed here, that the right to compel the location of the depot on Shore Park is' not predicated upon the contract between Mr. St. Clair-Abrams and the town [511]*511of Tavares, on the one hand, and the railroad company on the other, but that the allegations as to this contract contained in the writ are merely by way of recital to show that the company owned sufficient and suitable land for depot purposes, donated for such purpose, and that such land is most convenient for public use, and to forestall any claim by the company that they were without land in a convenient part of the town for depot purposes. Conceding, for the purposes of this case, that the alternative writ as framed will permit this contention, still the law will not, in our judgment, authorize the court to dictate the exact spot of the location of the depot building, or to confine its location to any particular lot or block of ground. All of the authorities supra, bearing upon this question, agree that a very broad discretion is vested in these companies by their charters in the matter of the location of their roads, stations, depots, etc.
We have been unable, after the most laborious search, to find a single case where any court has ever undertaken to so far encroach upon this discretion as to dictate the exact spot of the location of one of its depot buildings. And, though the power may lay in the courts, upon a proper case made, and without legislation expressly enjoining it as a specific legal duty, to compel railroad companies to erect depot buildings at their stations so that the convenience of the public there will be reasonably and measureably subserved, still we are perfectly satisfied from the authorities cited that the courts are not authorized to so far con[512]*512trol the company’s discretion in the matter, as to dictate, in any case, the exact spot of the location of one of its depot buildings; but such exact location. must, of necessity, in every case, be left to the company’s discretion to determine, limited only by the-condition that it must be so located as to be reasonably subservient to the convenience of the community to be accommodated thereby. In reaching this conclusion we have not failed to consider that the language of our statute empowering railroads to build and maintain depots is permissive only, and not mandatory, but even if it were mandatory as to the duty to erect depots, our conclusion would remain the same, that the effort of this writ to dictate its exact location could not be sustained.
In the mandatory part of the alternative writ, ta which the peremptory writ also' conforms, the respondent is required, not only to construct a depot upon the particular lot known as “Shore Park,” but to construct it “in conformity .with the ordinances of said town.” Neither in the relator’s petition for the writ, nor in the recitals of the alternative writ, is there any mention whatever of the existence of any ordinance of said town prescribing any regulations as to-buildings of any kind in said town. This defect in the alternative writ constituted the 5th ground of the-respondent’s motion to quash. It is well settled that great care, particularity and certainty is required in the preparation of the mandatory part of the alternative writ, and that it must conform to the case made [513]*513by the recitals in the writ; and mnst not require-more to. be done than is justified by the recitals. Merrill on Mandamus, sec. 260; Hartshorn vs. Assessors of Ellsworth, 60 Maine, 276; King vs. Church Trustees of St. Pancras, 1 Nev. & Perry, 507; Fisher vs. Mayor, etc., 17 W. Va., 628; State ex rel. Hathaway vs. State Board of Health, 103 Mo., 22; People vs. Brooks, 57 Ill., 142; Tapping on Mandamus, 371. Another rule applicable to mandamus that seems to be equally well settled, is: ‘‘That the range of action required of the respondent can not be left to indiscriminate outside ascertainment, nor can he be required to look dehors the writ to ascertain his duty.” Merrill on Mandamus, sec. 260; Cross vs. W. Va., C. & P. Ry. Co., 34 W. Va., 742; Hartshorn vs. Assessors of Ellsworth, supra; State vs. M. & M. Ry. Co., 59 Ala., 321. The requirement of the respondent to construct its depots in conformity with the ordinances of the town of Tavares, not only overstepped the case as made by the recitals in the petition find writ, but left the respondent’s duty thereunder in a state of uncertainty, to be ascertained from the town ordinance, if there was any, entirely dehors the writ.
The motion of the respondent to quash the alternative writ should have been granted.
The judgment of the court below is reversed, and the cause remanded for such further proceedings as' shall not be inconsistent herewith.