52 Tenn. 125 | Tenn. | 1871
delivered the opinion of the Court..
This is a proceeding by mandamus to compel the Mobile & Ohio Railroad Company to receive, in payment for freight or passage on the road, certain tax receipts given by the tax collector of -Madison county, Tennessee, and countersigned by the County Court Clerk of said county.
The petition was filed on the 2nd of January, 1869, and exhibits three tax receipts, amounting in all to about $24, none of which were issued to petitioner, nor assigned to him by endorsement. He alleges that he is the holder of the receipts by delivery, and that he tendered the same in payment for a ticket from Jackson to Mobile, but that the agent of the railroad company refused to receive them in payment for said ticket.
"We deem it unnecessary to notice, in detail, the several objections taken to the petition, for want of sufficient certainty and definiteness in its several allegations, as these objections are merely technical, not reaching the merits of the case, and as the petition, if insufficient as to the matter of mere form, is amendable. But we are satisfied that there is no substantial defect in the averments of the petition, and will proceed to examine the objections which reach the merits of the case.
1. It is said that to entitle the petitioner to the benefit of the writ of mandamus, he must show that he has a clear legal and equitable right to something which is properly the subject of the writ; but that petitioner shows, by the exhibits to his petition, that the tax receipts have never been assigned to him in writing, and, therefore, that he has not the legal title. It is true that the tax receipts exhibited were not issued to the petitioner, nor do they appear to have been assigned to him by written endorsements from the original party to whom they were issued. Whether he has-
The receipts were issued in pursuance of the 8th section of the act of 1852, p. 161, entitled “An act to authorize and regulate county subscriptions for railroad stock.” After providing the mode by which counties could subscribe for stock, and for the manner of holding elections by the people of the counties to determine whether the stock should be subscribed, and defining the mode of levying taxes to meet the subscription, and of collecting the same, the act in sec. 8 contains this provision: “ As the said railroad collector shall receive the tax, he shall give the person paying, a certificate showing the amount, which certificate may be traded, assigned or transferred, and shall be received in payment of either freight or passage on any road on which such subscription may have been expended.”
It is argued, that in providing that the certificates might be “traded, transferred or assigned,” the Legislature intended to make them negotiable by written endorsement only. We are aware of no rule of interpretation which requires such construction to be placed on the words; neither in their technical nor in their ordinary use do they necessarily imply that the act to be accomplished is to be evidenced by writing. Bur-rill on Assignments, p. 3 (note), says, “the term assignment is frequently used in the books to express the transfer of a promissory note by delivery.” He gives a number of cases to illustrate the remark. But if Are look to the object of the Legislature for making
2. It is next said that the Mobile & Ohio Railroad Company was organized in 1848, that the act authorizing the county subscriptions was passed in 1852, and that the earliest date of the three certificates exhibited in the petition is 1854, and it is argued that it is not shown when, how, or where said company became a party to the Madison county subscription, or became liable to pay said tax certificates. And it is added that the general internal improvement law, passed January 22, 1852, 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 laws.”
By reference to the petition we find this averment: “That said railroad tax was collected and paid over to said railroad company, and tax certificates given to the tax payers in due form of law for the amount of railroad tax paid by each tax payer; and he is' advised and charges, said Mobile & Ohio Railroad Company, having applied for and accepted said subscription, took upon itself the statutory obligations to receive said tax certificates in payment' for
3. It is next said that the writ of mandamus is not a writ of right, and is not granted as a matter of course — that it only lies where the law has established no specific remedy, nor where satisfaction equivalent to a specific remedy can be had. Hence it is inferred that, as the petitioner might have had his action on the case for damages, therefore he can not have the writ of mandamus. This argument assumes that the action on the case furnishes an equivalent satisfaction to a specific execution of the obliga
It is a general rule that whenever a statute gives power to, or imposes an obligation on, a particular person to do some act or duty, and provides no specific remedy on non-performance, a mandamus will be granted: Tapping on Manda., 80; Winters v. Burford, 6 Cold., 330.
Moses on Mandamus, p. 14, lays down this as the rule: “It will, therefore, be observed that it is one of the remedies resorted to when a person desires to be placed in possession of a right illegally- and unjustly withheld from him. It does not award damages as a compensation for an injury, but it seeks to give the thing itself — the withholding of which constitutes the injury complained of.” And he adds: “The office of the writ of mandamus is very extensive. It has been said that it is the supplementary remedy when all others fail.”
We deem it useless to cite other. authorities to the effect, that whenever there is a right which has been illegally and unjustly withheld, and there is no other specific adequate remedy, the writ will be issued, and private persons as well' as the public, are entitled to its benefits: Winters v. Burford, 6 Col., 328; Angel & Ames Corp., ss. 704-707.
In the case before us, the legal right is clear, the obligation created by the general statute, and the acceptance of its provisions and benefits by the company, is obvious, and the withholding of the right is illegal and unjust. It is equally obvious that there is no specific adequate remedy provided by the law which created the right and the obligation.
4. It is next objected, that the writ in this case is sued out, not so much to have the right of petitioner enforced, as to the three tax receipts exhibited in his petition, as to test the question, with the view of '"’having a decision that will be applicable to many other like receipts. We are unable to appreciate the force of this objection. As far as we are able to see, the
5. It is next objected, that the right now sought to be enforced has been so long deferred that it has become stale, and, therefore, that it is entitled to no favor. It does appear that all of the receipts exhibited were dated in 1854, and that the petition was not filed until January, 1869, a period of fourteen years. It further appears, that the holders of the receipts were not authorized to use them in payment of freight or passage, until one year after the road was completed.. But it does not appear at what time the road was completed. The facts, therefore, do not authorize us to assume, that the assertion of his right by petitioner has been unreasonably delayed, nor do we well see how the railroad company can complain of the delay. The petitioner has held a' bona fide debt against the company for fourteen years, bearing no interest, and .now, after having waited that length of time, and lost his interest all the time, and although the company has had the use of his money without interest, he is sought to be repelled upon the ground, that he has been so indulgent to his debtor, that his elaim has become stale. We are unable to appreciate the force of this objection.