Louisville Home Telephone Co. v. City of Louisville

• Decision Date: 20 November 1908
• Citation: 130 Ky. 611,113 S.W. 855
• Parties: LOUISVILLE HOME TELEPHONE CO. et al. v. CITY OF LOUISVILLE et al.
• Court: Kentucky Court of Appeals

113 S.W. 855

130 Ky. 611

LOUISVILLE HOME TELEPHONE CO. et al. v. CITY OF LOUISVILLE et al.

Court of Appeals of Kentucky.

November 20, 1908

Hobson Nunn, and Carroll, JJ., dissenting in part.

Appeal from Circuit Court, Jefferson County.

"To be officially reported."

Mandamus by the Louisville Home Telephone Company and another against the City of Louisville and others. From a judgment for defendants, plaintiffs appeal. Reversed.

Helm &amp Helm, Helm Bruce, and Kohn, Baird, Sloss & Kohn, for appellants.

A. E Richards, A. B. Bensinger, and Dodd & Dodd, for appellees.

LINDSEY J.

The case presented by the record is an application by the Louisville Home Telephone Company and John Coleman against the city of Louisville and certain named persons, who constitute the "board of public works" of said city, for a writ of mandamus to compel such "board of public works" to advertise and sell at public sale a certain telephone franchise in said city, claimed to have been provided for, and its advertisement and sale directed to be made by such board, by an ordinance of the general council of said city, alleged to have been duly passed by both boards of the general council of said city, and to have become obligatory without the mayor's signature on May 26, 1908. The plaintiffs or applicants, as required by section 474, Civ. Code Prac., filed a petition stating the cause and ground of the application, to which the defendants or respondents filed general demurrers, and, not waiving the demurrers, also filed answers.

The demurrers to the petition raise primarily the question whether or not the facts stated in that pleading show a right in the applicants to the writ against the appellees, the members of the "board of public works." This question may be considered from two aspects, the one as to the right of the appellants, under the facts, to sue for and obtain the writ, and the other as to the liability, so to speak, of the appellees, constituting the board of public works, to the writ. It is contended for the appellants that they are proper applicants for the writ, not only because of their private right in the relief sought, but also because there is involved a public right, and the object is the enforcement of a public duty. Obviously the determination of the questions presented involves the consideration of the nature and purpose of the writ of mandamus, the character of the right of the applicant entitling him to obtain it, and against whom the writ may issue. Mandamus is, by section 477, Civ. Code Prac., thus defined: "The writ of mandamus, as treated of in this chapter, is an order of a court of competent and original jurisdiction, commanding an executive or ministerial officer to perform an act, or omit to do an act, the performance or omission of which is enjoined by law; and is granted on the motion of the party aggrieved, or of the commonwealth when the public interest is affected." This statutory definition does not differ materially from those given by the law writers and the courts. Ency. P. & P. vol. 13, p. 487; Legg v. Annapolis, 42 Md. 203. In the case just mentioned the court concisely said: "It is a writ commanding the performance of some act or duty, therein specified, in the performance of which the applicant for the writ is interested, or by the nonperformance of which he is aggrieved or injured." It is evident, then, that there must be some right which is affected by the performance, or nonperformance, of the act sought to be compelled or restrained; and, if that right is in the public, and the object is the enforcement of a public duty, the commonwealth, or the public in some form, should be the applicant for the writ, but if the right to be affected be merely that of a private person, that person must be the applicant, and that the performance, or nonperformance, as the case may be, of the act must be a duty which the law enjoins upon the respondent to the writ.

As to the interest required on the part of an individual to make him a proper party to apply for such writ, there is some conflict in the authorities. In Ency. P. & P. vol. 13, p. 630, the author writes: "In the greater number of states it is held that a private relator applying for a writ of mandamus must show some special interest in himself." While in the extended note to the case of Dane v. Derby, reported in 89 Am.Dec., the annotator, on page 471, says: "The doctrine supported by the great weight of authority is that, where the relief sought is merely private, the relator must show some special interest in the matter; but, where the question is one of public right, and the object the enforcement of a public duty, he need not show that he has any special interest in the result. It is in that case sufficient for him to show that he is a citizen, and, as such, interested in the execution of the laws (citing authorities). Other courts hold that the relator must show a special interest in the subject-matter of the proceedings." And in Ency. P. & P. vol. 13, p. 632, it is said: "In some instances a distinction has been made between public duties due the state in its sovereign capacity and those public duties affecting all, or a large number, of the citizens. When the duty is of the latter kind, it is held that a private citizen may be the relator in a mandamus proceeding to enforce it"--citing, among other authorities, the case of Union P. R. Co. v. Hall, 91 U.S. 343, 23 L.Ed. 428. In the case last mentioned the Supreme Court wrote: "There is, we think, a decided preponderance of American authority in favor of the doctrine that private persons may move for a mandamus to enforce a public duty, not due to the government as such, without the intervention of the government law officer." It is, we think, definitely settled by the decisions of this court that, though the public interest may be affected, and it may be the duty of the commonwealth or the public, through some of its agencies, to act in the matter, yet, a private person, who can show direct and special interest in himself, may apply for and obtain a writ of mandamus. Hammar v. City of Covington, 60 Ky. (3 Metc.) 494; Trustees of Catlettsburg v. Kinner, 76 Ky. (13 Bush.) 334; Register Newspaper Co. v. Yeiser, 117 Ky. 1013, 80 S.W. 478; Merchants' Police, etc., Co. v. Citizens' Tel. Co., 123 Ky. 90, 93 S.W. 642.

As to the character of right entitling an applicant to the writ of mandamus, the authorities are to the effect that it must be a clear, complete, and existing legal right. Ency. P. & P. vol. 13, pp. 496, 497; Cyc. vol. 26, pp. 151, 153, 154. Or in the language of this court: "Mandamus cannot be maintained unless there is a legal right in the appellant, and a corresponding duty imposed by law on the appellee." Lowe v. Phelps, Judge, 77 Ky. (14 Bush) 647. When it is considered that the public rights and duties enforceable by mandamus are of such great variety, and that the measure of the interest of a private individual therein to entitle him to invoke that remedy must, of necessity, largely depend upon the nature of the right or duty sought to be enforced in each particular case, it is readily seen why the authorities have not, and possibly cannot, lay down any general rule as to what constitutes an interest sufficient to entitle a private individual to institute mandamus proceedings to enforce a public right or compel the performance of a public duty.

In each of the cases of Catlettsburg v. Kinner and Hammar v. Covington, supra, the effect of the holding, in an opinion by Lindsay, Chief Justice, was that abutting property holders on a public street, by reason of their peculiar and particular right in the use of the street as a means of ingress and egress to and from their properties, and the apparent danger to their properties, distinguishable from the right in the general public to the use of the street as a highway, had such direct and special interest as entitled them to a writ of mandamus to compel the preservation and repair of the street by those upon whom the law placed that public duty.

The case of Register Newspaper Co. v. Yeiser, supra, cited in the brief of counsel, was where the newspaper company was, by due selection and appointment, the official newspaper of the city of Paducah, and as such was required and entitled to publish, at its regular rates for advertising, all ordinances, resolutions, notices, etc., which, under the charter or ordinances of the city, were required to be published. There were certain delinquent tax lists, which the law required should be sold at public auction, the lists and the notice for the sale thereof to be published for at least two weeks in the city's official newspaper. The city official charged with the duty of furnishing such lists and notice for publication failed and refused to do so. This court held that the Register Newspaper Company could, by mandamus, compel the city's official whose duty it was to furnish the delinquent tax lists and notice of sale for publication. Thereby, in effect, holding that the newspaper company had direct and special interest in having for publication and advertisement the delinquent tax lists and the notice; such interest being clearly its legal right to advertise the lists and the notice for their sale, and to receive therefor pay at its regular rates for advertising.

The case of the Merchants' Police & Telegraph Company v Citizens' Telephone Company, supra, was where the appellee had a telephone franchise, obtained from the city in accordance with the provisions of section 164 of the Constitution, and appellants did not purchase a telephone franchise as provided by that section of the Constitution, but was operating its telephone plant in the city without authority of law, under an attempted grant to...