Richmond Ry. & Electric Co v. Brown

• Decision Date: 23 March 1899
• Citation: 97 Va. 26,32 S.E. 775
• Court: Virginia Supreme Court
• Parties: RICHMOND RAILWAY & ELECTRIC CO. v. BROWN.

32 S.E. 775

(97 Va. 26)

RICHMOND RAILWAY & ELECTRIC CO.

v.BROWN.

Supreme Court of Appeals of Virginia.

March 23, 1899.

Courts — Jurisdiction — Mandamus — Parties Plaintiff—Petition—Sufficiency — Adequate Legal Remedy—Enforcement of Legal Duty —Street Railroads — Passengers — Right to Transfers.

1. The circuit court of the city of Richmond has jurisdiction of mandamus to compel a street railroad to transfer a passenger from one of its cars to another at a point within the city, though the obligation to make such transfer appears from a record of the county court, since such record is not within Code, § 3218, providing that the jurisdiction of writs of mandamus shall be in the circuit court of the county wherein is the record to which the writ relates.

2. Mandamus to compel a street railway to transfer a passenger from one of its cars to another may be brought by such passenger in his own name, without the intervention of some officer authorized to represent the commonwealth, since the duty to make the transfer, though public, is not due to the government as such.

3. In a petition for mandamus to compel a street railroad to transfer a passenger from one of its cars to another, the petitioner's right to maintain the proceeding is sufficiently shown by an allegation that he is a citizen of the county in which the road is located, resides near a highway on which the road is constructed, and is entitled to such transfer, and that defendant refuses the issuance thereof, and that he has no adequate legal remedy.

4. The duty of a street railway to transfer a passenger from one car to another may be enforced by mandamus, since the wrong is continuous and constantly recurring, and the legal remedy by suit for damages is inadequate.

5. Acts 1889-90, p. 497, incorporated a company with power to operate street railways in certain cities and counties, with the consent of the city councils of such cities and the judges of" the county courts of such counties, subject to the conditions imposed by them. The county court of a county named in the charter thereafter authorized the company to construct its railway over certain highways therein, on condition that passengers thereon should be entitled to a transfer to another car at a certain point. Held, that the issuance of such transfers could be enforced by mandamus, since it was a duty enjoined by law as a part of the company's franchise, and not merely contractual.

6. The franchise of a street railway provided that passengers on a line extending into the country should, on arriving in the city at certain point, be transferred to the cars of another line, and, when so transferred, should have the same rights and privileges as passengers on that line. Passengers on the latter line were entitled, without additional fare, to one transfer therefrom to any of the company's cars going in the same direction. Held, that passengers on the country extension, on arriving in the city, were entitled to a transfer to the main line, and thereafter, without additional fare, to a transfer to other cars going in the same direction, as long as the city passengers were entitled thereto; since the franchise entitled country passengers to the same privileges as city passengers, and not merely to the same number of transfers.

Error to circuit court of city of Richmond.

Petition by one Brown for writ of mandate to the Richmond Railway & Electric Company. There was a judgment for petitioner, and defendant brings error. Affirmed.

Wyndham R. Meredith, for plaintiff in error.

H. R. Pollard and Sands & Sands, for defendant in error.

HARRISON, J. The court is of opinion that the circuit court of the city of Richmond had jurisdiction to hear and determine the right of the defendant in error to the writ of mandamus prayed for in this case. If it was the duty of the plaintiff in error to transfer the defendant in error, as claimed in the petition for mandamus, the alleged violation of that duty occurred in the city of Richmond, within the jurisdiction of its circuit court, and it was a matter of no importance that the obligation to perform said duty appeared from a record of the county court of Henrico county. Section 3218 of the Code, providing that the jurisdiction of writs of mandamus shall be in the circuit court of the county wherein the record or proceeding is to which the writ relates, has no application to the case at bar.

The court is further of opinion that the demurrer to the petition was properly overruled.

The first ground of demurrer was that the petition should not have been brought in the name of a private individual, but in the name of some officer authorized to represent the commonwealth. The practice contended for does not obtain in Virginia, and is not sustained by the weight of authority elsewhere. That private persons may move for mandamus to enforce a public duty, not due to the government as such, without the intervention of a law officer of the government, is settled by the highest authority. Railroad Co. v. Hall, 91 U. S. 355.

The second ground of demurrer was that petitioner failed to allege that he was a permanent resident on Brookland Park boulevard, or that he owned or leased a home there, or that he was then, or would in the future be, entitled to the right sought to be enforced. The petition is sufficiently full in the respect mentioned to entitle the petitioner to be heard. The allegation is that he is a citizen of the county of Henrico, residing on Brookland Park boulevard, and that he is entitled to the benefit of the duty which the plaintiff in error fails and refuses to perform, and that he is suffering under the deprivation of his rights by the defendant company, and that he has no other adequate remedy at law.

The third ground of demurrer is that the prayer of the petition is wider than the wrong complained of. Exactly what is meant by this assignment of error does not appear. The petitioner can obtain no relief under his petition but that which the facts stated justify, and it is not perceived that the breadth of his prayer has, in any way, prejudiced the plaintiff in error.

The court is further of opinion that the motion to quash the petition was properly overruled. The first ground assigned in support of this motion was that the remedy was complete and adequate at law by a suit for damages. In order that the existence of another remedy shall constitute a bar to relief by mandamus, such other remedy must not only be "adequate, " in the general sense of the term, but it must be specific and appropriate to the circumstances of the particular case. The remedy at law which will...