Virginian-pilot. (Norfolk, Va.) 1898-1911, 1899-05-13


PRIVATE PERSONS. MAY MOVE
FOR a MANDAAIUs TO ENFORCE
A PUBLIC DUTY, NOT DUE TO
THE GOVERNMENT AS SUCH.
MANDAMuS WILL LIE TO COMPEL
AN ELECTRIC RAILROAD COM
PANY TO TRANSFER PASSEN-
GERS UPON CERTAIN CoNDI-
TlONS MENTIONED IN THE OF
DER OF THE COUNTY JUDGE OF
HENRICO COUNTY. AUTHORIZE
ING IT TO OPERATE ITS ROAD
IN SAID COUNTY.
SUCH CONDITIONS ARE a PART
OF THE ORGANIC LAW GOVERN
ING THE COMPANY.
AN ACTION At LAW DOES NOT
AFFORD AN ADEQUATE RENE
DY IN SUCH CASE.
This was petition for mandamus
by Brown to compel the defendant
railway company to transfer him with
out additional fare from its main line
10 any car OF the company going in the
same direction. This was Il privilege
which All passengers on it's main line
enjoyed. Under the charter the COM
rany was allowed to operate it, road in
1ienrico county upon such conditions
as the Judge of the County Court of
mat county should prescribe. ana
among the conditions prescribed ~ nm
was one that certain citizens of that
county should be transferred to and
from lis main line ut the county cX-
tension at one fare and after trans
fer they should haze all the privileges
OF passengers on the main line. Brown
was citizen OF 1lcnrico county entitled
To the conditions named by tho said
county judge and upon refusal by the
company to transfer him as above lie
1l!cd MS petition for II mandainus. The
lower court decided i'll favor Of the
plaintiff and the company appealed.
The court says:
The first ground of demurrer was
that the petition should not have been
brought IN the nemc of Il private in
dividual. but in the name of some oni-
Ger authorized to represent the Com
monweal;h The practice contcndca for
does moi obtain in Virginia, and is not
sustained by the weight of authority
elsewhere.
Tho court is further OF the opinion
that the motion to uuash the petition
Was properly rverrulcl. In the case mt
Mar tho mnnd mus was sought TO COM
pel the rlainttM in error 10 transfer the
uetcndant liz error from one to another
q. It's street cars without additional!
entitled Ia the transfer. it is manifest
What a suit at law for damages for
1hlurc To perform that duty was not
an adequate remedy. and would not
itctuhIiy compel the performance Of the
Futy III question. The wrong suffered
WAS n constantly recurring and con-
linual one, ana whatever may have
been the result Of repeated suits for
damages. the remedy was not as con-
Venicnt. beneficial or as effective as the
proceeding by. mandamus.
1t Is an important princinlc consti-
tntinE a DISTINGUISHING feature or ma II
CamuS that X does not lie to enforce
mere contractual duties. It's proper
employment is to enforce the perform
ancc of duties incumbent by law unon
the person or body against whom the
coercive power OF the court is Invoked
we must therefore enquire whether
or nor the duty in question is incum-
penS by law, upon the plaintiff in
error
One of the stipulations of tho nct of
incorporation was that the plaintiff in
error might build its railway unon the
highways Of Ilcnrico county. upon s,Ich
Terms and conditions as the judge of
mat county should prescribe Whom
therefore. the order Of October "a. 1S96
WIS entered prescribing those Terms
and conditions, and in pursuance there
or the road was built ana euuippnd
IhuSe terms ana conditions became. so
was concerned as much n mart Of -
organic law of the company MS If thn,.
had been embodied i'm the net or ipcor
poratlon. The Very life of the francb;eo
in the county is derived from the iudro
OF the county Court, without whose
consent. by the express terms of .bo
oct OF incorporation. the pln,ntirf Il,
error could not have constructed lie
railway upon the highways Of the
county. The order OF the County Court
being the very life of the franchise in
the county of Henrico and necessori-
~ part of the organic law Governinr
the plaintiff in error. il follows that tbe
performance of the terms and condi-
lions prescribed by that order constI
tute duty enioincd by law which tho
pla'ntif- in error m9y be compelled by
mandamuS to perform
one Of the privileges ENJOYED bv mas
senecrs on tho main line 70 which tho
defendant in error is transferred at the
corner of First and Clay streets is a
orrnsler from that lire to any Of the
ours OF the plaintiff in erN,r going in
inc same direction. The object of :he
county Court of Henrico was not to
secure 10 those sought to he protected
by us order. any particular number OF
transfers. but to secure to them. after
ncinT transferred to the main line Mt
fliSt and Clay streets. all the rights
ana privileges enioved by the other
passengers on that line AS long thcre-
fore as the privilege Of transfer is en-
loved by other passcngers IT tbs, no,nt
IN question. without additional charge
the passenger on the county line who is
transferred at Clay and First streets
is entitled TO the same privilege with
out additional charge Fer these rea-
sons the Judgment of the Circuit Court
must be affirmed.