75 W. Va. 183 | W. Va. | 1914
Owning land suitable for the purpose, and being authorized by charter to establish and conduct a wharfage business by
Three grounds are assigned why the peremptory writ should not issue: that the contract lacks mutuality; that mandamus will not lie to compel parties to proceed with an arbitration; and that mandamus will not lie to enforce purely contractual obligations.' We deem it necessary, however, to consider only the last assignment, believing it fatal to petitioner’s contention.
Except where public interests are involved, the doctrine that private contracts will not be specifically enforced by mandatory process is so well established that citation of authorities seems' superfluous. Such is practically the universal rule. Courts uniformly refuse to enforce purely • private contracts by mandamus. Where the public interests
Petitioner contends, however, that the contract here falls within the rule announced by the cases cited, in that it provides for the performance of duties in which the public have vital interests. With that contention we do not agree. The contract does not purport the requirement of duties which concern the public. The operation of a wharf does not fall within the general public obligations of a municipality. It is not a governmental function. On the contrary, it is an undertaking of a purely private character, a private business. Nor is its character changed to a public function by the leasing of the wharf to a corporation. It continues to be private, though authorized by the municipality under legislative grant. Wigal v. Parkersburg, 81 S. E. 544.
Chicago v. Telephone Co., 230 Ill. 157, 12 Ann. Cas. 109, 13 L. R. A. (N. S.) 1084, clearly notes the distinction between cases wherein the public is concerned and cases where the duties are due primarily and solely to the municipality as a corporate entity. There the purpose sought was to compel the telephone company to file with the city a statement showing periodical receipts derived from the public service in which by -ordinance the company was permitted to engage, it having agreed in consideration of the franchise to pay a
The mere fact that one of the parties to the contract involved was a municipal corporation, or that its charter authorized it to engage in the business or to empower its lessee to do so, does not change its character. It still remains a private contract. It is the business in which the municipality engages that determines whether it is essentially governmental or merely discretionary or permissive. As no legal duty required petitoner to engage in the business or to lease its property for that purpose, the general rule denying remedy by mandamus for the enforcement of contracts of a private nature must result in denial of the relief sought by the city. Besides, where petitioner has an adequate remedy in another forum for the enforcement of the contract, the writ will be denied. See Bristol v. Water Works, 34 Atl. 359; Euclaire v. Water Co., 137 Wis. 517; Herman v. Babcock, 103 Ind. 461; Farmington v. Water Co., 93 Me. 192; Schweder v. Franklin, 10 Nev. 355.
Writ refused.
Peremptory Writ Refused.