State v. Wilmington Bridge Company , 3 Del. 312 ( 1840 )

On motion of the Attorney-general, the court granted a rule to show cause why a mandamus should not issue against the Wilmington Bridge Company, commanding them to repair and construct the bridge over the Christiana river at Wilmington, in conformity with the original plot,c., and according to the act of assembly in that behalf provided.

The charter of the bridge company, (4 Del. Laws 62, sec. 6,) requires certain commissioners to lay out a road and make and return a plot of a bridge over the Christiana river at Wilmington, and that the bridge should be made and kept up "as laid down in the said plot or draft, without any deviation therefrom." The plot was made and returned in the proper office, and a bridge built, more than thirty years ago. The proper officer had made search, and had not been able to find the plot. Within a short time the bridge had been rebuilt and the track narrowed several feet, as was alledged, so that it was now inconvenient and dangerous, and had been presented by the grand jury as a nuisance.

Mr. Wales, for the bridge company, now showed cause against the rule.

Wales. — This court has no jurisdiction in the matter — 1st. Because the bridge is entirely within the city of Wilmington, and this complaint is within the exclusive jurisdiction of the city courts. (Dig. 675; 8 vol. Laws 102, sec. 17.) The city council is empowered to try all nuisances within the city. This is a nuisance, if any thing. 2d. The writ of mandamus is not a writ of right; but a prerogative writ, to which the party applying must show a positive right; and this must be on individual application, and on affidavit. There is in this case no relator; no affidavit; and no proper ground laid for the proceeding. (Ang. Ames on Corp. 427-8.) 3d. There is defect of proof on the part of the State, in not showing that this bridge is not in conformity with the original plot. I agree that secondary evidence might be offered if the plot could not be had; but the State has not made diligent search for it.

Gilpin, Attorney-general. — I appear for the public, on the ground of a presentment regularly made on oath by the grand jury of this county, complaining of this bridge as a nuisance to the public generally. I ask in the name of the State, for a mandamus against this company, compelling them to repair this bridge according to its original construction, as required by law. The law required the bridge to be made according to a plot returned into the office of the clerk of the peace, which was done. That plot is lost; but it is proved that for more than forty years this bridge has been on a different construction from the present. This is evidence that it is not now in conformity with the plot. Has this court jurisdiction to compel the repair of the bridge accordingly? This is not a proceeding in the nature of an indictment. It is true, I might have proceeded by indictment before the mayor's court; but the Superior Court has the power all over the State, which the Court of King's Bench in England has. The mandamus is the proper remedy, (2 Maull Selw. 80-1; 2 Barn. Ald. 64-6; 1 Chitty Gen. Prac. 790.) It cannot be doubted that that court has jurisdiction to proceed in such a case by mandamus. A portion of the bridge is in New Castle hundred; and the mayor's court has not jurisdiction even of the nuisance, as to all the bridge.

Per Curiam: In this case an application is made by the Attorney-general exofficio, on behalf of the State, for a mandamus to the Wilmington Bridge Company, to compel the company to repair and construct the bridge over the Christiana river, in conformity with the injunctions of their charter. The company was incorporated in the year 1807, and authorized to construct a bridge across the Christiana creek at Wilmington, and to open certain roads leading from thence towards the town of New Castle. The width of the roads and the general dimensions of the bridge are prescribed in the first and eighth sections of the act; but in order to insure the construction of a bridge and roads adapted to the public wants, and to prevent any encroachment upon the rights and convenience of the public afterwards, the sixth section provides for the appointment of a board of commissioners who are named in the act, to fix on the place for the bridge and to lay out the roads, and directs them to cause the surveyor whom they employ "tomake a correct plot or draft of the bridge and roads aforesaid," which shall be signed by the surveyor and certified by the commissioners as approved by them, and then returned into the office of the clerk of the peace for New Castle county, to be by him recorded and carefully kept. The same section then provides that the "said return when made in the manner aforesaid, shall be conformed to by the said Wilmington Bridge Company, who shall erect the bridge and open the roach as they areor shall be laid down in the said plot or draft, without any deviationtherefrom, and the said bridge and roads shall forever thereafter bekept in good order and repair by the said company. (4 Del.Laws 63.) The tenth section, in consideration of the expenses thus to be incurred, grants to the company the right to take certain rates of toll or pontage for crossing the bridge; and the twenty-first section declares the bridge and roads to be a public highway. The whole object of the charter was the construction of this highway for the convenience of the public, and due precaution was taken by the above provisions, to promote and secure that convenience by requiring, both in its construction in the first instance and in its preservation afterwards, a conformity without any deviation, to the plot or draft sanctioned by the commissioners. In the recent repairs of this bridge, it would seem that the company have deviated from the original draft, and contracted the carriage tracks so as to render the passage inconvenient and dangerous, and the grand jury of the county have presented it as a nuisance. The Attorney-general acting ex officio upon that presentment, now asks a mandamus to the company, to compel a compliance with their duty under the charter. It is objected on behalf of the company — first, that this alledged misfeasance, if there be one, falls under that class of misdemeanors denominated nuisances, of which when committed within the limits of the city of Wilmington, the mayor's court has exclusive jurisdiction; and secondly, that there should have been some individual relator, whose right to the writ should be sustained by affidavit, stating explicitly the facts on which he relied in support of U. As to the first objection, although the violation of a public duty is an offence which may be punished by indictment, yet in this instance it is also the violation of a contract of which there is the right to enforce the specific execution. The party injured often prefers specific relief or performance of his contract, to compensation in damages or punishment, and the writ of mandamus isat law the appropriate civil remedy for such specific relief, in the absence of any other legal proceeding which can give U. (TheKing vs. The Marquis of Stafford, 3 T. R. 651.) InRex vs. Baker and another, (3 Burr. 1267,) lord Mansfield says, "It (the writ of mandamus) was introduced to prevent disorder from a failure of justice and defect of police. Therefore, it ought to be used upon all occasions where the law has established no specific remedy, and where in justice and good government there ought to be one/' The proceeding is a civil remedy not a criminal prosecution, and it is no objection to the writ that the party violating the duty might be punished by indictment. (Rex vs. Severn and Wye RailroadCompany, 2 Barn. Ald. 646.) In that case, Abbott, chief justice said, "If an indictment had been a remedy equally convenient, beneficial, and effectual as a mandamus, I should have been of opinion that we ought not to grant a mandamus; but I think it perfectly clear that an indictment is not such a remedy; for a corporation cannot be compelled by indictment to reinstate the road. The court may indeed in case of conviction impose a fine, and that fine may be levied by distress, but the corporation may submit to the payment of the fine, and refuse to reinstate the road; and at all events a considerable delay may take place, the remedy, therefore, is not as effectual as that by mandamus." The power of issuing the writ of mandamus, is one of the highest and most important branches of the jurisdiction of the Court of King's Bench in England, and by the provisions of our constitution and the acts of assembly, the Superior Court is invested with all the powers of the Court of King's Bench, in the general administration of justice.

As to the second objection, it is true that the writ can only be obtained by application to the court suggesting a suitable case for the exercise of its discretion in granting the writ, and that the suggestion must be made by affidavit in the case of a private relator; but not so in the case of the Attorney-general; who, ex officio, suggests to the court a case of a violation of public duty; and asks on behalf of the State, a mandamus to compel the performance of it. The Attorney-general undoubtedly must show a case which justifies the issuing of the writ, and that has been done in this instance by showing the duty imposed by the charter on the company, and the presentment of the grand jury. As the writ in the first instance will be in the alternative, either to do what is commanded, or show some reason to the contrary, the company will have an opportunity in the return to offer any explanation, excuse or justification which they may deem proper.

Rule absolute.