Mobile & Ohio R.R. Co. v. Wisdom

• Decision Date: 30 April 1871
• Court: Tennessee Supreme Court
• Parties: Mobile & Ohio Railroad Co. v. W. S. Wisdom.

52 Tenn. 125

Mobile & Ohio Railroad Co.

v.W. S. Wisdom.

Supreme Court of Tennessee.

April Term, 1871.

FROM MADISON.

Appeal in error from Circuit Court at Jackson. W. P. BOND, J.

Alexander W. Campbell for Railroad, insisted: Mandamus is the proper remedy to enforce legal rights only; and the party asking it must show a clear legal right. The title must be clearly and distinctly stated in the petition, to gether with all the facts necessary to establish the relief prayed for: Fleming ex partee, 2 Wallace, 759.

The universal rule of pleading, both at law and in equity, is, that the plaintiff must aver in his declaration or charge in his bill, every fact essential to his title, and no proofs can be heard of matters not charged, although they be apparent from other parts of the pleading and evidence, for the Court pronounces its judgments and decrees secundum allegata et probata: Stephens on Pleading, 304; Note 12 to Second Appendix: Story Eq. Pleadings, ss. 257-8-9 and 260.

1. He must show a legal title and a legal liability: Nelson v. Justices of Carter County, 1 Col., 207; Gillespie v. Wood & Douglas, 4 Hum., 438;Lacy v. Anderson, 6 Hum., 495-6.

The petitioner alleges that he is the “holder” of tax certificates amounting to $24.62, and exhibits them with his petition as exhibits A B and C. He is not the person who paid either of them, nor is his name connected with the paper either as payer or endorser. He is the mere holder of the certificates, and if he has any title it is derivative. The certificates are not negotiable at common law, nor under the Code, and if negotiable at all, they must be under the provisions of the statute under which it is assumed they were executed, which declares only that they may be “traded, transferred or assigned.” Now as the petitioner seeks his remedy under the statute, he must show that he has brought himself within the statute with reasonable certainty at least, and perhaps stricti juris. He shows no transfer or assignment. Not even a transfer by delivery. It is not shown when or how the petitioner became a holder, from whom he derived title, and upon what consideration, if any. No written contract of transfer or assignment is averred. The words “transfer and assign” in legal proceedings means a transfer in writing.

If the petitioner has any title it must be derived from the payers of the several certificates by some trade or contract. This must be stated in the petition, and it must be shown to have been founded upon a valid and sufficient consideration. And a sufficient consideration must not only exist in fact, and be averred in the pleadings, but must also be proved. Promissory notes and bills of exchange imply a consideration, and are ordinarily an exception. In general, whatever is alleged in pleading must be alleged with certainty: 1 Chitty Pl., 321; Stephens on Pl., 333; Com. Dig. Tit. Pl., c. 17, 22.

The averment that the certificates are “negotiable by delivery or assignment” is in the teeth of the statute, as well as in contradiction of the face of the paper.

If the declaration omits the averment of any fact which is the gist of the action, (as if no consideration be alleged in assumpsit, no conversion in trover,) the omission is fatal.

The gist of the action is that without which there is no cause of action. It comprehends, therefore, whatever is indispensable in law to a right to recover. Hence, if anything of kind be omitted, no title can appear from the declaration, and the defect is of course incurable: 3 Black. Com., 395.

So the time of a matter charged in the declaration ought to be certainly alleged, and therefore, in assumpsit, if the plaintiff omits the day when the promise was made, it is bad: Com. Dig. Tit. Pl., c. 19; Stephens Pl., 290; State v. King, MSS., April Term, 1871.

There is no allegation in the petition or the writ showing when, from whom, how, and upon what consideration the petitioner became a “holder” of the certificates.

It is stated in general terms “that the county of Madison subscribed $250,000, that said amount of tax certificates were issued by the tax collector, and that the petitioner is the holder of ______ amount of said tax certificates, which he is advised and charges he is entitled to use at par in payment of freight or passage on said railroad at regular tariff rates, etc., and being so entitled, is authorized by law to have any or all of them secured.” etc.

The amount, number, dates, and all particulars are left blank. The substance of writings must be set out in the declaration or bill: 1 Chitty Pl., 261; Story Eq. Pl., s. 241.

In a suit under a statute the pleader must state the case in such a manner that it may appear upon the face of the declaration to come exactly within the words and meaning of the statute: 2 Arch. Nisi prius, 594.

The Mobile & Ohio Railroad Company is a corporation, and it is not shown when, how, or where said Company became a party to said subscription, or became liable to pay said alleged certificates, or how said company became bound for the performance of said contract.

The railroad company was incorporated on the 28th day of February, 1848; the general law in question was passed 22d of January, 1852, and contains this provision: “That no company shall be required, under the provisions of this act, to do anything inconsistent with the provisions of its charter, or in violation of existing obligations.” The earliest date of either of the certificates exhibited with the petition is July 12, 1854, over six years after the date of the charter, and long after said company had organized and the citizens of other States had stockholders, and acquired rights under their charter, and after the company had incurred obligations.

The writ of mandamus is not a writ of right, and is not granted as a matter of course. It only lies where the law has established no specific remedy, nor where satisfaction equivalent to a specific remedy can be had: 1 Chitty Pr., 789, 780, 781.

So the Court will not enforce an ordinary matter of contract or right, upon which an action lies at common law, as to compel common carriers to perform their public duties or special contracts: Redfield on Railways, 256; s. 3, 461; s. 3, 46; Angel & Ames on Corp., ss. 709-10-11.

The writ of mandamus is not the proper remedy to collect a debt. The writ is merely prospective.

If the tax certificates are, as contended by petitioner, “receivable in payment of freight and passage” on said railroad, and he is entitled to use them at par at the regular tariff rates; and if he presented them to the agent of the company, and offered to pay for a passage on said railroad, and the agent refused them, the petitioner has his remedy, clear and unembarrassed, at law, by an action for damages against them as common carriers. Suppose he had offered gold or silver coin, or other currency, and the agent refused to receive it, and carry him to the point upon the road he desired to reach, would his remedy not be the same? are these tax certificates of any higher dignity than lawful money? and if the statute in this respect makes it equal to lawful money, does that fact alter or change the liability of the company as common carriers? If, then, a court of law can furnish a complete and adequate remedy, this is not a proper case for mandamus. Even if it were admitted that the refusal to receive the tax certificates in payment of a ticket from Jackson to Mobile was a deprivation of a right which belonged to petitioner; it is a thing that has passed, and it is not alleged that it is still his wish and desire to go to Mobile. To be transported over the company's road upon the payment of the fair price of the passage in tax certificates, is the relief prayed for. But the language of the petition is, that the company's agent “refused to sell said ticket, and take said tax certificate in payment for a passage to Mobile on said road.”

3. A writ of mandamus is a proceeding of a summary character--is not granted, of course, but only at the discretion of the Court, and that discretion will not be exercised unless some just or useful purpose may be answered thereby: 2 Redford, R. W., 258; Angel & Ames Cor., 3d Ed., 631, 632, 633; Van Ransellear v. Sheriff of A., 1 Cowen, 501.

In the latter case the Court say that “this Court may exercise a discretionary power as well in granting as refusing a mandamus, as where the end of it is merely a private right, and where the granting of it would be attended with manifest hardships and difficulties.” It will be seen by the petition there are many thousands of these certificates in existence; and, from the necessity of the case, they are of different denominations, each one charged with the cost of collection, the amount of which is unascertained. In relation to some of them, the obligations of the company, if any existed, may have been discharged. Some of them may be unauthorized and some spurious; and if the prayer of petitioner be granted, the agent must stop the trains upon this great public highway, decide upon the liability of the company in each case ascertain the amount it cost to collect it, which must necessarily be uncertain and difficult to ascertain, and, by this delay, work great inconvenience to the public and hardship upon the company.

The right to interfere by mandamus is one of so summary a character, that it should be asserted at the earliest convenient time, or it will not be sustained: 2 Redfield, R. W., 292, 293; 1 Chitty Prac., 791.

Another rule is that the Court will not interfere by mandamus after considerable delay, and when the party applying for it has slept on his rights, and allowed, perhaps, other rights to grow up, or a disposal of the fund out of which the claim ought to have originally been perfected: 1 Chitty Prac., 791.

The application for the writ will be declined when it is not made bona fide, but merely to obtain the opinion of the Court or when made indirectly: Angell & Ames...