Philadelphia, Wilmington & Baltimore R. R. Co. v. Larkin. still if they further find, from the evidence, that unnecessary force was used in such expulsion, then their verdict must be for the plaintiff; and in estimating the damages they may allow the plaintiff such sum of money as in their judgment will compensate him for the wounds and injuries inflicted upon him by the use of such unnecessary force (if they shall find such wounds and injuries), as well as for the mortification and indignity placed upon him should they find any such; and if they shall further find that there was such unnecessary forcible expulsion, and that defendant's employees acted in a wanton, high-handed and outrageous manner, then they may allow the plaintiff such further sum of money as in their judgment may be a proper punishment of the defendant." We find no error in this instruction. It concedes the plaintiff may have been in fault in the first instance, and subjected himself to lawful expulsion from the cars, and that the agents of the company had therefore the right to expel him. But in the exercise of this right it was their plain duty to use no more force or violence than was absolutely necessary to accomplish the expulsion. If in performing that duty, they used unnecessary force and violence, and wantonly and in a high-handed and outrageous manner subjected the plaintiff to the brutal treatment, both in removing him from the cars and after he was on the ground, to which he and his witnesses testified, then it seems to us clear, in view of the authorities to which we have referred, that their conduct rendered the company liable to exemplary damages. An excessive battery is a complete answer to a plea of son assault demesne, and if wantonly and maliciously inflicted, subjects the party making it to the same liability to exemplary damages as if he had been the original wrong-doer. The defendant had the full benefit before the jury of the testimony of its witnesses on this subject in conflict with that of the plaintiff's witnesses. By the granting of its prayers it had also the benefit of the law exempting it from all liability, if the jury found, among other facts therein stated, that no unnecessary violence was used in putting the plaintiff off the cars and keeping him off until the train had started. Between these witnesses it was for the jury to decide, and in this case we find no error in any of the court's rulings upon the subject of exemplary damages. [Omitting other exceptions.] Judgment affirmed. Pumphrey v. Mayor, etc., of Baltimore. Mandamus PUMPHREY V. MAYOR, ETC., OF Baltimore. (47 Md. 145.) to compel performance of public duty—when issues at suit of ■ private person. Mandamus will issue to compel the performance by a public corporation of a public duty not due to the government as such, on the petition of a private person. (See note, p. 448.) PET ETITION for a mandamus to compel the appellee to take charge of a bridge and preserve the same as a free public highway, in accordance with a statute requiring them so to do. The opinion states the facts. F. A. Linthicum and J. J. Alexander, for appellant. T. A. Buchanan and J. V. L. Findlay, for appellee. BARTOL, C. J. This is a petition for a writ of mandamus filed by the appellant, to compel the appellee to take charge and possession of the bridge over Gwynn's Falls in the city of Baltimore, known as "Harman's Bridge.' The defendant demurred to the petition and by consent of counsel a pro forma judgment was rendered for the defendant, reserving the right of appeal. The question presented is the sufficiency of the matters alleged in the petition to entitle the appellant to the writ. [After stating the facts, and coming to the conclusion that the legislature had the power to enforce this duty on the appellee.] 2d. The next question to be considered is the right of the appellant to maintain the suit. The position maintained by the appellee is, that the duty imposed is of a public nature, which can be enforced only by a proceeding in the name of the State instituted by the proper officer-the attorney-general, and that a private person has no standing in court, or any right to sue out the writ of mandamus. All the authorities concur in support of the proposition, that where the petitioner has a personal interest in the matter, different in kind from that of the general public, he is entitled to the writ. Pumphrey v. Mayor, etc., of Baltimore. In this case the petitioner sets out the particular facts and circumstances which are supposed to show the special and particular manner in which the appellant is aggrieved, by the appellee's fail ure to perform the duty imposed by the act of 1876. We deem it unnecessary to go into an examination of that part of the petition, because we are of opinion that to entitle the appellant to the remedy here sought, it is not incumbent on him to show any personal interest in the matter different from that of other citi zens. We are aware there is some conflict in the decisions on this question, but after examining the cases, we concur in what has been said by Judge STRONG, speaking for the Supreme Court in Union Pacific R. R. Co. v. Hall, 91 U. S. 355, that "there is a decided preponderance of American authority in favor of the doctrine, that private persons may move for a mandamus, to enforce a public duty not due to the government as such, without the intervention of the government law officer." The authorities cited by the learned judge on page 355 amply support this position and need not be referred to here. The cases of Heffner v. Commonwealth, 28 Penn. St. 108, and Reading v. Commonwealth, 11 id. 196, cited by the appellee, are to the contrary. It appears the courts in that State maintain a different doctrine. We perceive no good reason why the suit may not be instituted by a private person. It is said by Judge STRONG in the opinion before cited, "the principal reasons urged against the doctrine are that the writ is prerogative in its nature - a reason which is of no force in this country, and no longer in England—and that it exposes a defendant to be harassed with many suits. An answer to the latter objection is, that granting the writ is discretionary with the court, it may be well assumed that it will not be unnecessarily granted." In Webster's case, 29 Md. 516, the writ was granted at the suit of a private person to compel the performance of a public duty by the county commissioners. It does not appear however that this objection was made or considered. In The Mayor and City Council of Baltimore v. Gill and others, 31 Md. 375, an injunction was granted against the appellants, upon principles somewhat analogous to those which govern the present case. Keyser v. Rice. For the reasons stated, we are of opinion the order of the Superior Court ought to be reversed, and the cause remanded, to the end that a writ of mandamus be issued as prayed. Reversed and remanded. NOTE BY THE REPORTER.-The cases cited in Union Pacific R. R. Co. v. Hall, 91 U. S. 355, are People v. Collins, 19 Wend. 56; County of Pike v. State, 11 l. 202; Ottawa v. People, 48 id. 233; Hamilton v. State, 3 Ind. 452; People v. Halsey, 37 N. Y. 344; State v. County Judge of Marshall, 7 Iowa, 186; State v. Rahway, 83 N. J. L. 110; Watts v. Carrol Parish, 11 La. Ann. 141; Cannon v. Janvier, 3 Houst. 27. Contra, see Sanger v. County Comm'rs of Kennebec, 25 Me. 291; People v. Regents of University, 4 Mich. 98; in addition to the Pennsylvania cases cited in the above opinion. The question did not arise in Reading v. Commonwealth, 11 Penn. St. 196. There it was simply decided that the obstruction of a sidewalk not being more injurious to the relators in a mandamus, whereby it is sought to abate it, than to the inhabitants at large, the remedy to attain that end is exclusively by indictment. In Heffner v. Commonwealth, 28 Penn. St. 108, which was an application for mandamus to open an alley, which the legislature had enacted should be opened, it was held that “when public rights are to be subserved, public officers must apply for the writ," but if a private individual make himself the relator, he must show some particular right or privilege of his own, independently of that which he holds with the public at large." After stating reasons for not opening the alley, the court conclude: "Now, under such circumstances, it will be soon enough for the courts to interfere to open that alley, when those public officers whose duty it is to see that the laws are executed move the courts to action. The law was enacted for the public, and if the public acquiesce in its non-execution, the courts, who are only other agents of the public, have no power or duty in the premises." Citing Sanger v County Comm'rs of Kennebec, supra. In Sanger v. County Comm'rs of Kennebec, supra, it is held, that "a private individual can apply for this remedy only in those cases where he has some private or particular interest to be subserved, or some particular right to be pursued or protected by the aid of this process, independent of that which he holds in common with the public at large, and it is for the public officers exclusively to apply, when public rights are to be subserved." Citing Rex v. Merchant Tailors' Co., 2 B. & Ad. 115. The same was held in People v. Regents, supra, disapproving People v. Collis and County of Pike v. State, but admitting that a different rule might be applied if the proper public officer were absent or refused without good cause to act. The cases cited in support of the doctrine of the principal case fully sustain it, and most of them are founded on People v. Collins, 19 Wend. 56, A debt of less than The parties were citizens of and residents in Maryland. $100 was due the plaintiff in Maryland, from the Baltimore and Ohio Railroad Company, for wages. The defendant, having a claim against the plaintiff, was prosecuting an attachment upon that debt in West Virginia. By Keyser v. Rice. the law of Maryland, such debts for wages were exempt to the amount of $100. Held, that the plaintiff was entitled to an injunction restraining the defendant from prosecuting the attachment in West Virginia.* ILL for injunction to restrain the appellee from the further prosecution, in Piedmont, W. Va., of an attachment, by which the latter sought to recover from appellant the sum of $31.25 due him as wages in Cumberland, Maryland, by the Baltimore and Ohio Railroad Company. The parties were, at the date of the issue of the attachment in West Virginia, citizens and residents of Allegany county, Maryland, Keyser being an employee at Cumberland in the rolling mill of the Baltimore and Ohio Railroad Company, which was indebted to him for wages and hire, and on no other account, in an amount less than $100, payable at Cumberland. The appellee obtained at Piedmont, West Virginia, a writ of attachment and procured the same to be laid in the hands of the Baltimore and Ohio Railroad Company as garnishee, at Piedmont, for the purpose of securing the debt due him by the appellant, amounting to $31.25, contracted subsequently to March 3d, 1874, the date of the passage of the act of assembly of 1874, ch. 45, under which the wages or hire of employees are in certain cases held exempt from attachment. The preliminary injunction was dissolved, and plaintiff appealed. Carroll Sprigg, Jas. A. Buchanan and John K. Cowen, for appellant. B. F. M. Hurley, for appellee. A court of equity never will, against equity and good conscience, interpose by way of injunction to disturb a citizen in his effort to recover money honestly due him by lawful means in the courts of another State, unless the justice of that court can be impeached by facts, or on grounds of which the complainant could not avail himself at law in that tribunal, or when required to do so, upon principles of public policy, or when there is an equitable question to be decided before the matter can be safely disposed of. Craig v. Ankeney, 4 Gill, 225. Citizens of the several States may sue in the courts of Maryland, and such right is guaranteed under the first clause of the second section of article IV of the Constitution of the United States, *To same effect, Engel v. Scheuerman (40 Ga. 206), 3 Am. Rep, 573; but compare Har ris v. Pullman (84 Ill. 20), 25 Am. Rep. 416. VOL. XXVIII- 57 |