Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1847-12-31
MnNDaMITS CASE.

MANDAMUS CASE.
Knowing the interest felt by the public in this
important case we lay before our readers This
morning the following opinion Of Judge P. N.
Nicholas:
The LOnisa Railroad Company q, v,na,m.. Ms,
against Oh -hd"dd"Hs ''ts''
The Board Of Public VorkS'
This case is one Of great Importance, from the
interests involved in lis decision, the principles
which have been brought into discussion, and The
influence which they may have on the public i'm.
movements of the Stale, as 10 which the mind OF
the country is eelinsly alive. Nor can The courl
shu, its eyes to the fact that in various sections of
The State considerable excitement and collisions
| have taken place between rival interests which
are coptendng as 10 the route which the Louisa
Railroad may take in carrying into effect The law
of the last session of Assembly Tor the extension
of that road This court is entirely exempt from
this excitement and these collisions and is pre-
pared 10 invcstisae the questions which have been
raised and very ably discussed before it, with that
calmness and delberalion which are essential TO
the attainment of truth, without any other wish
than sincere desire 10 ascertain the law and JUS
| lice Of The case. Animated by This wish, The
court will proceed TO examine the questions, which
have been raised before il, with as much brevy
as i, can consistently with The extensive range
which the argument has taken.
On the Sh OF March, IS47, the Legislature
passed an act entitled, "an act providing for the
extension OF The Louisa Railroad 10 he Eastern
base OF the Blue RIDGE The FIRST section OF This
act provides, shat the capital stock OF The Louisa
Railroad Company be, and the same is hereby,
authorized 10 be increased The sum OF Two hundred
and fifty thousand dollars, for the purpose OF ex.
tending their road 10 the Eastern base OF the Blue
Ridge, including the purchase OF The necessary
machinery therefor, at such point as is suitable
for accommodating the trade OF The Valley OF Viz
sinia, having regard not only TO the facility and
economy OF approaching the mountain, but also
of crossing it, and TO It's ultimate extension west.
ward" The second section declares that when
20 900 dollars shall have been subscribed BY others
than the Commonwealth and paid, or secured 10
be paid, The Board of Public Works shall sub
scribe The sum of 10000 dollars and shall con-
tinue to subscribe in the same proportion when
ever any subscriptions by others Than the Com.
monweallh are paid or secured to be paid, until
the whole sum authorized by this act is subscribed.
The object OF the Mandamus is TO compel the
Board of Public Works TO subscribe The sum OF
80 600 dollars, the company alcdeing that private
persons have subscribed 10 The extent OF 10000
dollars, and secured the same TO be paid. II also
asks further direction, that the Board shall
hereafter subscribe according 10 the proportions
| pointed out in The act Of Assembly, when fur
lher sums shall be subscribed and secured 10 be
paid by others than the Commonwealth. The
Railroad Company alledge that The Board OF Pub
lie Works have refused TO subscribe, As directed
by law, not upon the ground thai private persons
bo,. lied to- subscribe anu secure tnelr SuDScIlp.
lions which is not pretended by the Beard but on
other grounds, which will be examined in the
progress OF this opinion. Indeed, The court I'M
dersands that the Board does not deny that a sub
scriplion has been made and secured by private
subscribers ~ The extent before mentioned. Let
MS then examine the reasons which the Board OF
Public Works offer, to justify their refusal TO
subscribe on behalf of the Commonwealth. They
are stated in paper turnished TO the court by ono
OF their counsel in the progress oil his argument
The fire OF The propositions commended for is as
follows
|. Tia, the writ of Mandamus is not the pro-
per remedy Tor The wrong supposed by the petilion
namely, wrongful refusal by the Board of Pub.
lie Works TO subscribe Tor stock, which, by an act
the General Assembly, they were directed TO sub
scribe for. This proposition amounts 10 an excep-
ton 10 the jurisdiction flhe court, and was proper
" put first in he list Of objections because if could
be maintained, it would render il unnecessary 10
enquire into the validity OF numerous other objec
lions brought forward by the Board, TO an enforce
. meni OF a mandamus against them. In discuss
ing this first proposition, we mus, proceed on the
concession pro hac rice, al least, that The Louisa
Railroad Company had right 10 demand that
the Board of Public Works should subscribe, and
} i, would seem to follow that the COMPANY had 4
right 10 resort TO the appropriate remedy TO COM
pei them to do so Was The writ oil mandamus
that remedy? Ii is no, necessary 10 60 into an en-
ouiry AT any length as 10 the powers OF Courts TO
!, grant this writ. The ACT of our own Legislature
recognizes il, and directs the mode OF proceeding
4 under il. The English books and The American
authorities including .be reports Of decisions Of
The Couris OF his Commonwealth, furnish ihnu.
: merabe instances in which relief is afforded by
4 This wril: to use The language of Lord Mansfield
r it can always be resurled TO, where there would
without it be failure of Justice or defect OF Pc
lice The instances are numerous and familiar
of the application oil this remedy 10 incorporated
companies; the books TEEN with such cases.
A slight inspection OF Angel and Ames, or any
: compiler where this subject is treated, will show
this ncontestibly.
= 1t is true that a mandamus will not lie where
The party age,ieved has specific remedy by sui
at law, or, as The more modern writer's say il
u equity; bu, the remedy must be adequate 10 eX
Z clude The writ mast not be obsolete, and some
" writers contend that j, must not be difficult Of
cilcuilous though it j. Tot necessary, in The esli
II nation OF This Court 10 lay stress on This last pc
silion. The counsel for the Board of Public
o Works contend that The Louisa Railroad Com
pany have an adequate and specific remedy ir
this case by Bill in Equity, either Tor specific
C. performance or general relief To understand
whether this be so, it will be necessary TO enquire
i. what is The wrong complained o. and what relic
Il equity would afiord2 The Board Of Public Work.
are, in this instance, The agents OF The Common
wealth. They are directed to subscribe wher
s private persons have done so and given security
'r 10 pay. The subscription Is the only means o
making tie Commonwealth co.corporalor-
The Board are bound 10 ascertain that the private
subscriptions are we'll secured or actually pal,
,. up before subscribing on its part, and The Stale i
E. moi bound 10 pay until the private subscriber
N have actually done so in the proportions fixed By
D. the law on The subject But the subscription i
the first step. II The law directs the Board 10 sub
: scribe, and they will not, whose fault is i'll No
e the CONFERENCE.-The, for she has commanded TIT
S, agent to subscribe. A suit in Equity against TIT
agent would be nusaory. What would be de
:. creed against lhem2 Nothing, The Common
is wealth, The real party interested, be brough
l. before The Court What decree could be askeC
e against herr None, for she has done no wrong
r. and could not be decreed 10 pay money, because
the only act which could make her member o
= the Company has not been performed, and she il
I, eSponsble for no money. |, has been said iha
l. the subscription is an idle form, mere nullily
>. and that il is never performed. The Court can
\ not think so. IL is the mode OF making the Com
- monweath a co corporator which the law ha:
prescribed, and lhe pu0nc OIncerS or agents nave
e, no right 10 dispense with it. The only plausible
1. ground upon which the idea that suit in Chan
y Gerry is the proper remedy, would be, thai
= the Court would direc, by its decree thai
i The Board should subscribe, and this would
a presen. the singular anomaly Of manda.
mus IN Chanee,y TO compel the identical effect
which The present proceeding is intended to pro.
duce. But would this remedy be adequa,e2 Are
all the railroads, canals and other companies 10
he subjected to the delay, expense and harass-
ment OF suits in Chanceiy 10 compel The Board
D of Public Works TO perform duty prescribed by
positive law2 If this doctrine be correct, as con.
, tended for, all the public works may be arrested
in the mos, critical stages Of their progress, by
the refusal OF the agents OF The Commonwealth 10
: perform duty enjoined on lhem;-and the same