Richmond-Greyhound Lines, Inc. v. Davis, RICHMOND-GREYHOUND

• Decision Date: 10 September 1958
• Docket Number: RICHMOND-GREYHOUND,No. 4877,4877
• Citation: 200 Va. 147,104 S.E.2d 813
• Court: Virginia Supreme Court
• Parties: LINES, INCORPORATED v. F. A. DAVIS, STATE HIGHWAY COMMISSIONER OF VIRGINIA, ET AL. Record

Page 813

104 S.E.2d 813

200 Va. 147

RICHMOND-GREYHOUND LINES, INCORPORATED v. F. A. DAVIS, STATE HIGHWAY COMMISSIONER OF VIRGINIA, ET AL.

Record No. 4877.

Supreme Court of Appeals of Virginia

September 10, 1958.

R. Harvey Chappell, Jr. (John C. Goddin; Alex W. Parker; Shewmake, Gary, Goddin & Blackwell; Christian, Barton, Parker & Boyd, on brief), for the petitioner.

Francis C. Lee, Assistant Attorney General (A. S. Harrison, Jr., Attorney General, on brief), for the respondents.

JUDGE: SNEAD

SNEAD, J., delivered the opinion of the court.

On April 11, 1958, Richmond-Greyhound Lines, Incorporated filed in this court an original petition for a writ of mandamus against F. A. Davis, State Highway Commissioner, the members of the State Highway Commission, and Citizens Rapid Transit Company, after having served on them proper notices of the intended application and copies of the petition.

The allegations in the petition may be summarized as follows:

Petitioner is a 'common carrier by motor vehicle' as defined by § 56-273, Code 1950, and is engaged in the transportation of passengers as such among various points and places in this Commonwealth. Included is the operation across Hampton Roads and James River Bridge which was authorized by certificate of public convenience and necessity No. P-1245, issued by the State Corporation Commission on June 30, 1941.

The Commission, on July 9, 1956, issued to petitioner another certificate of public convenience and necessity, numbered P-1245-B, authorizing the transportation of passengers and their baggage, mail, express and newspapers as a common carrier, 'between Norfolk, Virginia, and Warwick, Virginia, serving Hampton and Newport News via the Hampton Roads Tunnel Project.' This certificate was to become effective upon opening of the bridge-tunnel project for motor vehicle traffic. The Commission has issued no other certificate of public convenience and necessity for operation via the Hampton Roads Bridge-Tunnel Project, and petitioner's certificate has not been revoked.

Virginia Department of Highways, by 'Invitation to Submit Proposal for Bus Operation,' dated May 20, 1957, requested proposals for operation of bus facilities through and over the Hampton Roads Bridge-Tunnel Project. The invitation is attached to the petition as Exhibit 'A'. Petitioner, by letter dated May 30, 1957 and attached to the petition as Exhibit 'B', submitted such a proposal. In it petitioner stated that it was the only transit company or motor carrier authorized to perform the proposed service. Notwithstanding this fact the State Highway Commissioner, acting for the Highway Commission, executed a contract, dated October 4, 1957, with Citizens Rapid Transit Company, Hampton, Virginia, to provide the agreed bus services. This contract is attached to the petition as Exhibit 'C'.

Since the opening of the Hampton Roads Bridge-Tunnel Project on or about November 1, 1957, Citizens Rapid Transit Company has furnished the bus facilities pursuant to its agreement with the Highway Commission. Petitioner has made demand without success, upon the State Highway Commissioner and the State Highway Commission 'for the performance of certain duties which they can and are required to perform, namely, to terminate such bus services by Citizens Rapid Transit Company through and over the Hampton Roads Bridge-Tunnel Propect and, so long as the State Highway Commission does not acquire and operate the aforesaid bus facilities but does propose to afford such bus services, to alow your petitioner to provide such bus services in accord with the aforesaid order of the State Corporation Commission dated July 9, 1956.' Petitioner prays that a writ of mandamus be issued requiring the Commission and the Commissioner to act in accordance with these demands made upon them.

In the Highway Department's 'Invitation to Submit Proposal for Bus Operation' (Exhibit 'A'), it is stated '* * * The Department contemplates the operation of certain bus facilities within the project. Funds for such facilities have been obtained by the Department, and the Department proposes that such facilities be operated by it through a transit company as its agent. This invitation sets forth and establishes the terms and conditions pursuant to which such bus service will be furnished by the transit company and the basis for payment to the transit company for such service hereunder.'

Among the provisions set forth in the invitation, the transit company is required to furnish buses, materials, service, repairs and garage facilities in connection therewith. It is also required to provide a driver pool, licenses, all insurance including liability coverage for the Department of Highways and the company as their interests may appear. The Highway Department determines the schedule of bus service, the amount of fare to be paid, and all fares deposited by patrons in locked boxes furnished by the Department shall be delivered to the Department. The invitation also provides that the Department will construct and maintain bus stations or shelters, suitable turn-outs from the main roadways or ramps and necessary parking areas at the terminal points. For its operation, the company is to receive the sum of $12,000 annually, payable in equal monthly installments, to cover all fixed charges including a reasonable profit, and it is to receive an additional sum for current costs, to be adjusted quarterly, of route mileage per bus, taking into consideration wages, fuel, tires and taxes. It was provided that the current cost figure, together with a detail basis for it, be submitted with the proposal.

In the agreement between the State Highway Commission and Citizens Rapid Transit Company, the successful bidder, dated October 4, 1957, it was provided that the company would receive payment of the sum of $12,000 annually plus 30.6 cents per bus-route mile for furnishing the bus services referred to in the 'Invitation to Submit Proposal for Bus Operation.' This document was incorporated into and made a part of the agreement. In case of disagreement between the parties as to whether there should be an increase or decrease in the stipulated 30.6 cents per bus-route mile, the matter shall be decided by the State Highway Commissioner. It was further provided that the State Commission could cancel the agreement without any liability on its part in event the company failed to provide the stipulated services, and unless cancelled the agreement was to remain in effect for a period of two years from the date operations began.

Albertis S. Harrison, Jr., Attorney General of Virginia, appearing for respondents, F. A. Davis, State Highway Commissioner, and the State Highway Commission filed a demurrer to the petition in which he specified eight grounds therefor. Instead of enumerating them here, we quote from respondents' brief:

'* * * The essence of Respondents' Demurrer is directed to the absence of any pre-existing, unperformed, clearly defined, ministerial official duty imposed upon the Respondents, which they have failed or refused to perform. When the foregoing grounds are coupled with the fact that Petitioner has a choice of available remedies to seek the relief here being asked, it should readily be apparent that this Court's original jurisdiction should not be invoked in this instance.'

Citizens Rapid Transit Company filed no pleadings, since no relief against it was requested in the petition.

Thus the case is before us on the petition, together with exhibits, and the demurrer filed thereto.

The agreed question for us to determine under the pleadings is whether mandamus is the appropriate remedy to be pursued by petitioner, in seeking the relief prayed for in its petition.

Respondents argue that this court should not entertain this proceeding for the following reasons:

'I. No clearly defined ministerial duty can be shown to be unperformed by the Respondents.

'A. The power of the State Highway Commission to operate a shuttle bus service is discretionary with that Commission.

'B. There is no duty upon the State Highway Commission to contract only with common carriers holding a certificate pursuant to Title 56 of the Code of Virginia.

'II. Mandamus does not lie to undo an act or to test the validity of an act already performed.

'III. Petitioner has an adequate remedy available.'

Petitioner concedes that the power of the State Highway Commission to operate a bus service within the project is discretionary under § 33-253, Code 1950 as amended. It also concedes that under that section, as construed in Almond v. Day, 199 Va. 1, 97 S.E.2d 824, the State Highway Commission itself is authorized to acquire and operate the bus facilities. It contends, however, that when the State Highway Commission has exercised its discretion that such services should be afforded, but that it will not acquire and operate the bus facilities itself, then its functions thereafter are not discretionary, but are ministerial and clearly defined, and that in such event it was the duty of the State Highway Commission to allow petitioner, which is the only certificated carrier, to render that service. Petitioner further contends that it does not seek to cause the respondents to undo an act, because the performance of an act contrary to a duty imposed is not a performance, and that it has no other adequate remedy to obtain the relief prayed for in its petition.

A writ of mandamus is an extraordinary remedial process, which is not awarded as a matter of right but in the exercise of a sound judicial discretion. Due to the drastic character of the writ, the law has placed safeguards around it. Consideration should be had for the urgency which prompts an exercise of the discretion, the interests of the public and third persons, the results which would follow upon a refusal of the writ, as well as the promotion of substantial justice. In doubtful cases the writ will be denied, but where...