United States ex rel. Mutual District Messenger Co. v. Wight , 15 App. D.C. 463 ( 1899 )

Mr. Justice Shepard

delivered the opinion of the Court:

1. The judgment denying the relator’s prayer having been founded on the facts as alleged in the petition and in the respondent’s return, we must consider the case upon the assumption that the substantial statements in the return, which traverse allegations of the petition, are true. United States, ex rel. Washington, v. Johnson, 12 App. D. C. 545, 550. These statements are: (1) That the relator’s wire on Columbia road, sought to be connected with the premises of Admiral Selfridge, was erected and is maintained without thev authority of the Commissioners. (2) That existing house connections of the relator in the city of Washington have been made and maintained without permission of the Commissioners, and that their demand for information respecting the same has been refused. (3) That the refusal of the permission in controversy was not arbitrarily made; but because the Commissioners are fairly of the opinion that it is beyond their power under existing laws.

2. It is doubtless true, as claimed by the relator, that the Commissioners would have granted the application, notwithstanding their present «denial of the legal right of relator to maintain the existing wire in Columbia road, had not they entertained the opinion that they were without power to do so under existing laws.

Upon this assumption we are asked to compel their action on the ground that they have plainly erred in that conclusion; or, if unwilling to go so far in the present case, then, at least, to declare what is the extent of their power in the premises, so that they-may be advised in respect of future applications of the same character.

(1) As regards the first of these propositions, it may be said without recital of the statutory provisions relied on, that they do not expressly confer upon the Commissioners the power to grant licenses or special privileges for the occupation or use of the highways in the District, much less command them to extend such grants upon application. If the power exists it is by construction of the general provision of Sec. 247, R. S. D. C., giving the Commissioners “ the care and charge of, and the exclusive jurisdiction over” roads in the District, enlarged or restrained, as the case may be, by later provisions, from time to time, in the appropriation bills for the support of the District government. See appropriations for the years ending June 30, 1889 ; June 30, 1891; June 30, 1897; June 30, 1898.

Whenever called upon for a grant or license relating to the public roads, they must necessarily determine the extent of their, authority in the premises by the construction of these statutory provisions.

The duty to expound involves the exercise of judgment. From the decisions of the Commissioners in the performance of their official duties, no appeal lies to the courts of the District. Nor are the courts otherwise invested with power to review their decision, or to guide and control them in any official action whatever, where the decision made or action taken involves the exercise of discretion. That the performance of the duty or the act involves nothing more than, an interpretation of a statute does not alter the rule. The governing rule of action for the courts in such cases has been plainly declared by the Supreme Court of the United States in the following words: “The court will not interfere by mandamus with the executive officers of the Government in the exercise of their ordinary official duties, even where those duties require an interpretation of the law, the court having no appellate power for that purpose; but when they refuse to act in a case at all, or when, by special statute, or otherwise, a mere ministerial duty is imposed upon them, that is, a service which they are bound to perform without further question, then, if they refuse, a mandamus may be issued to compel them.” United States, ex rel. Dunlap, v. Black, 128 U. S. 40, 48. See, also, Decatur v. Paulding, 14 Pet. 497, 515; Seymour v. South Carolina, 2 App. D. C. 240, 246; Lochren v. Long, 6 App. D. C. 486, 505.

(2) We are constrained for several reasons to deny the request for the expression of a positive opinion in respect of the authority of the Commissioners, if so inclined, to grant licenses of the character involved herein.

Primarily, the existence of the power is founded on the early statute which provided that the then legislative assembly “shall have the care and charge of, and the exclusive jurisdiction over, all the public roads and bridges, except such as belong to and are under the care of the United States, and except such as may be otherwise specially provided for by Congress.” Compiled Stat. D. C. 267. A previous act declared all roads, outside of the cities of Washington and Georgetown, duly laid out, etc., to be public highways. Idem.

When this act was passed Columbia road was in fact a country highway, not only outside the strict limits of the city of Washington, but also beyond the overlapping growth of the city in houses and improvements. At and before the time of this application, it had, at the point in question, all the appearances of a city street, laid out, improved and paved as such; and there was little or nothing to suggest to the eye that it was not in fact within the limits of the city.

In subsequent legislation of Congress, contained in appropriation bills before referred to, from 1888 to the present time, are to be found many provisions relating to the erection and maintenance of the wires of telegraph, telephone and 'electric lighting companies upon and across streets and highways, without distinction in most of the instances, between those within and those without the actual or apparent limits of the city.

The foregoing conditions suggest some of the difficulties that beset the Commissioners in deciding the question, whether they really possessed the power claimed for them; and the' most that we feel justified in saying is, that the correctness of the answer thereto is involved in some doubt.

It is not within the province of the court to advise executive officers in regard to the exercise of functions committed to them by law. It is only in a case between parties where rights depend upon a power that has been exercised, that the courts are called upon to determine the question of its existence.

Moreover, it is possible that there may be other parties claiming rights under, or adverse to, similar grants or licenses that may have been heretofore conferred, whose interests might be seriously prejudiced by the expression of a decided opinion before they could he heard.

3. If it were conceded, however, that the Commissioners are clearly possessed of the power to grant the application, and that for a mistaken interpretation of the law in that respect they would be amenable to the process of the court, it would not follow that the relator ought to have the benefit of the writ.

There must be something more than the possession of the power by the Commissioners to justify their compulsion into its exercise. By some command of the law they must, at the same time, owe the exercise of the power as a duty to the relator.

Mandamus can only lie, where there is no other legal remedy, to compel performance of an act when that performance has been imposed as a positive duty to, or on behalf of, the party asking the remedy.

Grant the amplitude of the power, and that its exercise, as applied for, would be of advantage to certain public and private interests, and detrimental to none; and assume that the Commissioners have wilfully failed in their duty to the public interests committed to their keeping, yet what legal duty have they denied the fulfilment of to the relator?

A general duty to the public is not a special duty to the relator, or one that he can require the performance of through resort to the courts. The remedy for such a condition is not judicial but political, and must be sought of the legislature.

The relator makes no pretence of the possession of a franchise under which it is invested with a right to demand the license. Its corporate franchise even is not derived from an Act of Congress. Its sole claim to the remedy it seeks is founded on the public benefit and the duty of the Commissioners in respect thereof. Created under the laws of West Virginia, it came into the District of Columbia, where, by the acquiescence of the municipal government, it has been for some years engaged in a business of great public convenience. Desiring to extend its benefits to the citizen who joined in the application, it became necessary to obtain the permission of the Commissioners to string a wire over the sidewalk. Not being required by any law to grant the request, they elected to deny it; and that is the end of it unless Congress shall intervene.

Nothing can be plainer, we think, than that the relator has no right involved here which a court can undertake to enforce. The judgment must be affirmed, with costs. It is so ordered. Affirmed.