Richmond Railway & Electric Co. v. Brown

Harrison, J., delivered the opinion of the court. The court is of opinion that the Oircuit Oourt of the city of Bichmond had jurisdiction to hear and determine the right of the defendant in error to the writ of mandamus prayed for in this case. If it was the duty of the plaintiff in error to transfer the defendant in error, as claimed in the petition for mandamus, the alleged violation of that duty occurred in the city of Biehmond, within the jurisdiction of its Oircuit Oourt, and it was a matter of no importance that the obligation to perform said duty, appeared from a record of the Oounty Oourt of Henrico county. Section 3218 of the Code, providing that the jurisdiction of writs of mandamus shall be in the Oircuit Court of the county wherein the record or proceeding is to which the writ relates, has no application to the case at bar. The court is further of opinion that the demurrer to the petition was properly overruled. The first ground of demurrer is that the petition should not have been brought in the name of a private individual, but in the name of some officer authorized to represent the commonwealth. The practice contended for does not obtain in Virginia, and is not sustained by the weight of authority elsewhere. That private persons may move for mandamus to enforce a public duty, not due to the government as such, without the intervention of a law officer of the government, is settled by the highest authority. Union Pacific R. Co. v. Hall, 91 U. S. 355. — 32 — The second ground of demurrer is that petitioner failed to allege that he was a permanent resident on BrooMand Park boulevard, or that he owned or leased a home there, or that he was then or would in the future be entitled to the right sought to be enforced. The petition is sufficiently full in the respect mentioned to entitle the petitioner to be heard. The allegation is that he is a citizen of the county of Henrico, residing on Brookland Park boulevard, and that he is entitled to the benefit of the duty which the plaintiff in error fails and refuses to perform, and that he is suffering under the deprivation of his rights by the defendant company, and that he has no other adequate remedy at law. The third ground of demurrer is that the prayer of the petition is wider than the wrong complained of. Exactly what is meant by this assignment of error does not appear. The petitioner can obtain no relief under his petition but that which the facts stated justify, and it is not perceived that the breadth of his piayer has, in any way, prejudiced the plaintiff in error. The court is further of opinion that the motion to quash the petition was properly overruled. The first ground assigned in support of this motion was that the remedy was complete and adequate at law by a suit for damages. In order that the existence of another remedy shall constitute a bar to relief by mandamus, such other remedy must not only be adequate in the general sense of the term, but it must be specific and appropriate to the circumstances of the particular case. The remedy at law which will operate as a bar to mandamus must generally be such a remedy as will enforce a right, or the performance, of a duty. A remedy cannot be said to be fully adequate to meet the justice and necessities of a case, unless it reaches the end intended, and actually compels a perfoimance of the duty in question. Such other remedy, in order to constitute a bar to mandamus, must be adequate to place the injured party, as nearly as the circumstances of the case will permit, in the position which he occupied — 33 — before tbe injury or omission of duty complained of. The controlling question is not, “ Has the party a remedy at law? ” but “ Is that remedy fully commensurate with the necessities and rights of the party under all the circumstances of the particular case? ” Or, as was said in one case, “ To supersede the remedy by mandamus the party must not only have a specific remedy, but one competent to afford relief upon the very subject matter of his application, and one which is equally convenient, beneficial, and effective as the proceeding by mandamus.” 2 Spelling Ex. Relief, sec. 1315. In the case at bar the mandamus was sought to compel the plaintiff in error to transfer the defendant in error from one to another of its street cars without additional charge. If the defendant in error was entitled, as alleged, to the transfer, it is manifest that a suit at law for damages for a failure to perform that duty was not an adequate remedy, and would not actually compel the performance of the duty in question. The wrong suffered was a constantly recurring and continual one, and, whatever may have been the result of repeated suits for damages, the remedy was not as convenient, beneficial, or as effective as the proceeding by mandamus. The second ground assigned in support of the motion to quash was that the duty charged as resting on the plaintiff in error was not based upon its charter, nor upon the general law relating to common carriers, but grew out of a contract between the plaintiff in error and the judge of the County Court of Henrico, and was therefore purely contractual. It is an important principle constituting a distinguishing feature of mandamus that it does not lie to enforce mere contractual duties. Its proper employment is to enforce the performance of duties incumbent by law upon the person or body against whom the coercive power of the court is invoked. Rights of a private or personal nature, and obligations resting entirely upon contract, not involving any question of trust or of official — 34 — duty, cannot be enforced by mandamus. In other words, the writ of mandamus cannot be substituted for a decree for specific .performance of duties other than those growing out of public relations, or such as are clearly imposed by statute, or in some respects involving a trust. 2 Spelling Ex. Relief, sec. 1379. ¥e must therefore enquire whether or not the duty in question is incumbent, by law, upon the plaintiff in error. By act of the General Assembly approved Eebruary 20, 1890, (Acts 1889-90, p. 497) the Richmond Railway & Electric Company was made and constituted a body politic and corpoi’ate, with the power to construct, equip, maintain, and operate a line or lines of street railway in the cities of Richmond and Manchester and the counties of Henrico and Chesterfield. The act of incorporation provides that the plaintiff in error may construct and operate its line or lines of railway over the streets of said cities, and the public roads of said counties; provided the councils of said cities respectively, and the judges of the county courts of the said counties respectively, who are vested with authority so to do, shall consent to the location of said railway on the streets and highways within their respective limits or jurisdiction. And it is further expressly provided that all lines of railway constructed by the said company under the act of incorporation shall be at all times subject to all restrictions, conditions, and limitations of whatsoever nature which may be imposed, respectively, by the councils of said cities, or by the judges of said county courts as to so much of said railways as may be within the limits or jurisdictions of said cities and counties respectively. In pursuance of this act of incorporation the plaintiff in error petitioned the County Court of Henrico for permission to construct its railway over the highways in a certain portion of that county, and, in pursuance of the power vested in him by the act of incorporation, the judge of that court, on the 14th day of October, 1896, entered an order granting’ the permission prayed for, and prescribing the terms and conditions upon whidh the fetid ha'ilw'dy sh'otild b!d c'dhrtructed hnd pquip’pdd. — 35 — There is no contract with the defendant in error that he is asking to have enforced, nor is the order of the county court of Henrico a contract with the plaintiff in error, except in the sense that the charter of a private corporation is a contract between the State and the corporation for the benefit of those who are entitled to have performed the duties imposed by the charter. As already seen, one of the stipulations of the act of incorporation was that the plaintiff in error might build its railway upon the highways of Henrico county upon such terms and conditions as the judge of that county should prescribe. When, therefore, the order of October 14, 1896, was entered, prescribing those terms and conditions, and in pursuance thereof the road was built and equipped, those terms and conditions became, so far as their binding force and effect was concerned, as much a part, of the organic law of the company as if they had been embodied in the act of incorporation. The very life of the franchise in the county is derived from the judge of the County Ootu’t, without whose consent, by the express terms of the act of incorporation, the plaintiff in error could not have constructed its railway upon the highways of the county. In the case of City of Potwin Place v. Topeka Rwy. Co., 51 Kan. 609, where it was contended that a city ordinance did not confer rights and impose obligations which could be enforced by mandamus in the same manner as charter obligations could be, the court says: “ The obligations imposed upon a railroad company are seldom defined with any degree of particularity by the terms of its charter, and this is especially true of street railways, and in this State where all corporations are formed under general laws. It is true that the company gets its charter under the-general law of the State, but the right conferred by the charter of a street railway company incorporated for the purpose of operating a street railroad in the city of Topeka is but a barren grant until it is given form and force by an ordinance of the city permitting it to enter on the streets — 36 — and construct and operate its lines. From the State directly it derives hut the bare power to' exist. Its vital force comes from the State, indeed, but through the subordinate agency of the city council, which is given power by the legislature to fix the terms and conditions on which it may actually carry out the purpose of its creation.” So, in the case at bar, the act of incorporation is a bare grant giving the plaintiff in error an existence, valueless, however, until the purpose of its creation is effectuated by the subordinate agencies of the cities and counties named therein through whose respective limits its railway line might be run, consenting thereto, and prescribing the terms and conditions upon which the privilege might be exercised.- The order of the County Court being the very life of the franchise in the county of Henrico, and necessarily a part of the organic law governing the plaintiff in error, it follows that the performance of the terms and conditions prescribed by that order constitutes a duty enjoined by law, which the plaintiff in error may be compelled by mandamus to perform. The court is further of opinion that there is no error in overruling the motion to dismiss the petition on its merits. The order of the County Court of Henrico expressly prescribes, -as one of the terms and conditions upon which the road should be constructed upon the highways in said county, that the plaintiff in error should transfer passengers on the county extension, for one fare, to and from that extension at First and Olay streets to its Clay street cars, and that when so transferred said passengers should have all the rights and privileges of any passenger on the main line to which he is transferred at that point. One of the privileges enjoyed by the passengers on the main line to which the defendant in error was transferred at the corner of First and Clay streets is a transfer from that line to any of the cars of the plaintiff in error going in the same direction. The right of the. defendant in error to enjoy this privilege, in — 37 — common with the passengers on the main line, was recognized by the plaintiff in error, and was accorded until a recent date, when it was refused, unless an additional fare was paid at the point of transfer in question—the company contending that the defendant in error was only entitled to the one transfer at Clay and Birst streets; that to give him another from that line was according him two transfers going in one direction, while the Richmond passenger had but one. The object of the County Court of Bfenrico was, not to secure to those sought to be protected by its order any particular number of transfers, but to secure to them, after being transferred to the main line at Birst and Clay streets, all the rights and privileges enjoyed by the other passengers on that line. As long therefore, as the privilege of transfer is enjoyed by other passengers, at the point in question, without additional charge, the passenger on the county line who is transferred at Clay and Birst streets is entitled to the same privilege, without additional charge. Bor these reasons the judgment of the Circuit Court must be affirmed. Affirmed.