The Valley Virginian. [volume] (Staunton, Va.) 1865-1895, 1885-02-26


Liquidation q. McCOmb.
1t were useless to cumber this opinion
with as prOfuSe citation of authorities as
might be made in support of injunctiOnS,
mandatory in character, forbidding public
officers or other defendants to refuse the
performance of duties which citizens may
rightfully demand at their hands. Very
many authorities for such process are cited
on the brief of counsel for complainant,
embracing cases from the English courts,
from the courts of the States of this I'm
ion. and from our Federal courts, and I
need not repeat the citations here. The
printed brief does not contain the case of
Brooke o. Martin, Munford, 306, in which
the Virginia Court of Appeals e7VOaraed the
defendant to permit the complainant to
have the benefit OF covenant entered
into by the defendant.
will add few citations from decisions
of the Federal courts. In the case of Coe
& Wilson q. The Louisville and Nashville
Raalroad Company, 3 Federal Reporter,
775, Judge Baxter, United States circuit
judge, issued an order enjoining defend
ant from refusing to comply with an obi
CATION arising upon contract. In the
case OF The DeraUer and Ne,c Orleans Rail
road Company q. The Achsrasoas, Topeka and
Santa Fe Railroad Company, 10 Federal
Reporter, $50, Judge Hallett, Circuit
Judge McCrary concurring, after elabor-
ate orgnment and extended citation of pre-
cedents. made a degree of the same char
acter In the case of The Baltimore and
Ohio Railroad Company D. The Adams E.c-
press Company % Federal Reporter, 404, a
like injunction forbidding the refusal of
duty enjOined by contract was granted.
Judges Bond and Morris sitting. These
and other like orders of Federal courts in
other cases had been pOintedly sanctioned
by what the Supreme Court had said in the
case OF Board of Liquidation q. McCOnsb.
In the light of all the authorities on the
the subject, we do not think there is any
doubt of the power Of a court of equity.
as part of its general jurisdiction. to
grant injunctions mandatory in character.
The real objection to the remedy in the
present suit. though not made In the de-
fence nor argued at bar, as we should have
desired, is, that in this case, the prelimi-
nary injunction is equivalent to a final
decree, and that the defendants are, there
fore. deprived of the benefit of plenary pro-
ceedings which, in general, is matter of
right. But this results from the character
and subject of the contract. the benefit of
which is sought by this suit. In making
the contract of the tax-reivable coupon,
the State virtually waived the benefit of
plenary proceedings in suits against her
Ii
genuineness of the coupons is not put in
issue. This contract would be worthless
to the taxpayer if he could not use the
coupon at the time the tax was due; and
if the right to use it is denied him just
when the collector applies for the tax I'M
der the laws of the State. its value for that
purpose is destroyed, or by the use of it
being postponed, is seriously impaired. In
agreeing that it shall be so used, it seems
to US that the State has waived her right
to plenary defence in all suits for spe-
cifc performance of the contract in which
she does not deny the genuineness of the
coupon. | repeat that we should have
liked to hear argument on the subject. 1t
was, in point of fact. the real question in
the case. In the absence of argument we
thought that the objection under consider
alton did not hold good in this suit.
The decree now entered will apply of
course only to the coupons which are the
subject of this bill-4986 in nominal
amount. believe that Judge Bond has
given restraining order in the similar
suit of George Parsons. The aggregate
amount of coupons involved in both is less
than $4,000 in nominal value, and these
two suits do not therefore embody in them
selves amounts of any grave Importance.
But we are well aware of the sweeping
Importance to the State of the principle
on which the case at bar proceeds: and