Richmond times-dispatch. [volume] (Richmond, Va.) 1914-current, 1916-07-25
BUSINESSES PETITION
FOR OPENING STREET
Judge Crump. in Law and Equity
Court, Declines to Grant
Mandamus.
ALLEGATIONS NOT SUSTAINED
Court First Dismisses Individual
Charge Brought by Gayle Against
Commissioner Mccarthy as to OBJ
structions in Noble Avenue.

Allegations by John Y. Gayle that
members of tho Administrative Board
In general. and Commissioner Carlton
Mccarthy in particular, were dereliot
In their duty and had violated their
oath of office. set forth In a petition
filed in the Law and Equity Court seek
ing mnndalnus to compel the removal
by the board OF a hedge and wire fence
on Noble Avenue Gintcr Park, were
not sustained yesterday In an opinion
handed down by Judge Beverly T.
Crump, in which he dismissed the COM
plant
This was tho second action brought
by Mr. Gayle seeking II mnndamus ~
compel the removal Of the obstruction.
The first Was dismissed by Judge
Crump on the ground that the
thorouEhfarc in question was not own
cd by the city. and that II had neither
the right 10 put up nor remove the
obstruction complained of. In his sec
ond petition, Mr.. Gayle attacked the
integrity Of Captain Mccarthy and all
members Of the board. with the ex-
ception Of Commissioner lIobson.
Being an individual. Judge Crump
held that the court was without juris-
diction to isSt~r a mandanus against
him. y plea or res adjudicata was per-
mittcd by the court which announced
that ir demurrer was filed by tho
plaintiff il would bc overrulcd.
BUSINESSES PROCEEDINGS
As TO CAPTAIN MCCARTHY
Judge Crump's opinion follows:
ION motion of the defendants to
abate and dismiss this proceeding as
to Carlton Mccarthy:
The case before the court is nm APP
plication for mandamus. A man
damus Is an extraordinary common law
writ and, unlike an injunction in
equity, Is generally only proper to COM
pei n private or public corporation or
n public officer Ia perform a minis
terial duty imposed by law. tBurke's
Pleading and Practice. p. 775) 1t is
clear that Mr.. Mccarthy is made de-
PENDANT az private Individual. and
that the court is without jurisdiction
10 issue n mandalnus against him. Tho
proceedings, therefore. should be
abated and dismissed as to him.
ION motion Of the defendants to
strike out and cxpunge from the pc
tition for a mandamus certain allega-
tons with reference TO Mr.. Mccarthy:
These allegations are not relevant
10 tho case made In the petition nor
tho relief sought by 1t. But ] do not
think the court should sustain. I'm
common law proceeding, such mo-
always permissible in equity. because
In that forum tho defendant has TO
answer all tho allegations Of the bill.
while at common law a simple denial
by appropriate plea is sufficient, and
the court can exclude on the hearing.
whether. with or without jury. NIL
irrelevant testimony. This motion may.
therefore. be overruled, but the ques-
tion is innlaterial. ms the proceeding
will he ahatod ms to the defendant
Mccarthy.
BOARD SIMPLY ONE AGENCY
OF MUNICIPAL CORPORATION
"On motion to ahate and dismiss this
proceeding rs 10 the Administrative
Board:
Il doubt whether the fact that the
hartman Of the board alone is made
party defendant 10 the petition
brings the board as public body he
fore the court. But, in any event, the
board is not a public corporation. hut,
under the charter of the city. ts SIM
ply one of the public agencies Of the
municipal corporation. The motion
may he ovcrrulcd. but tho proceeding IS
to DO taken rs directed against the
city of Richmond. a municipal corpora
ton. the sole defendant.
ION the motion of tho plaintiff TO
disallow and reject the plea Of res
adiudicata or former adjudication ten
dercd by the city.
I'm w. e S. r. r. Company VS.. Com
monwealth. 1os Virginia, 264. il was
held that the court may entertain n
second application for a mandarnus
and Issue the writ. although tho par
tics and the object sought TO he at
tanned ny the mandamus were prac-
tically tho same. But in that case IL
is clear that the decision on the first
application was not on the merits of
tho case. and that the circumstances
ont of which the application arose and
the relative condition OF the parties
had materially changed when the sec
ond application was made.
FORMER DECISION
WAS on MERITS or CASE
I'm the case before the court. how
ever. 1t Is plain that the former de-
cision Of this court was upon the
merits, and that tile parties and the
relief sought are idcutically the sa me
az on the first application. The plea
of res adjudicata is therefore II good
plea. and the motion to strike il out
may be overrulcd. and the plea may be
nlcd The case of Sipe vs.. Alley. III
Virginia. p. $40. was suit in equity
and involved only the private rights
of lot owners among themselves. and
as against the seller, In regard TO the
opening OF streets on "A recorded plat
with reference TO which the lots had
been sold The proceeding here is for
nandamus against n municipal cor
poration. l doubt whether under the
circumstances Aet out in the petition
the city can act except by resolution of
the CITY Council. Bu, in any event the
petition does not allcgc that the Oh
struction was created by the city. II
the street IS public street and
nuisance has been committed by some
one placing and keeping an obstruc-
ton In the street. the nuisance should
he abated by proper proceeding against
the person who created 1t.
"rhe plea of res adjudicata may be
fled, ;snd if II Is dcmurrcd To will
overrule the dcmuri cr and dismiss the
petition for maaoaIaus.'