Commonwealth ex rel. Century Co. v. City of Philadelphia, Appeal No. 354

Appeal No. 354 | Pa. | Jul 15, 1896

Opinion by

Mr. Justice Mitchell,

Although the city of Philadelphia and the board of education are parties defendant, the only real contest is raised by the demurrer to the answer of the city controller. The answer appears to be based on a very exaggerated and erroneous idea of the controller’s powers and authority, and the claim that he is “not subject to the order or direction of the court” is not to be tolerated. The duties of the controller as was held in Com. v. George, 148 Pa. 463" court="Pa." date_filed="1892-04-18" href="https://app.midpage.ai/document/commonwealth-v-george-6240735?utm_source=webapp" opinion_id="6240735">148 Pa. 463, are partly ministerial and partly discretionary, and while the courts will not review his discretion exercised in a proper case, yet he is not above the law, and his discretion is not arbitrary but legal. When therefore he is called upon by the courts the facts must be made to appear sufficiently to show that they bring the case within his discretion, and that it was exercised in obedience to law. On this subject the courts are the final authority, and their jurisdiction cannot be ousted by simply putting forth the assertion of discretionary power without showing that the matter was properly within such discretion.

The answer in the present case, after denying the authority of the court, does proceed to set out three reasons why the controller refuses to countersign the relator’s warrant.

First, that it did not appear that any contract had been entered into between the city and the relator as required by article XIV. of the act of June 1, 1885. It is not clear to what extent this averment is intended to go. If it means that no contract at all was made, it is plainly contradicted by the answer of the board of education, and in effect also by the third reason in the controller’s own answer which avers commissions to the agent “who secured the contract.” If however it means that the contract, though entered into, was not in accordance with the requirements of article XIV., it should have gone a step further and stated specifically the defects relied on. This reason was demurrable for want of precision.

Secondly, that the controller found after investigation that the binding of the dictionary was so unsuitable for a book of its size as to render it unserviceable for public school use. This reason is entirely outside of the province of the controller. What books, including what bindings are suitable for the public school service is not to be determined by him but by the board of education. He is not intrusted with the duty of making, or even of supervising the contracts of other departments. He is the city’s head bookkeeper, and his office is to see that the various departments do not exceed their appropriations, nor apply them to purposes not within their proper scope. To this end he is clothed with very large powers of examination and- investigation, and a large measure of discretion, but they do not extend to tbe revision of lawful contracts made by other departments within their proper sphere. This reason presents no excuse whatever for refusal to countersign the warrant.

Thirdly, that it had been learned that the relator was allowing a very large commission to the agent who secured the contract, and the controller was informed by some of the members of the board of education that if they had known that fact they would not have agreed to purchase the books. This excuse is even more frivolous than the last. It is hardly necessary to say that what commissions the relator chooses to pay does not concern any one but the parties themselves, and the change of mind of some or all the members of the board of education cannot alter the legal liability after a contract has been made.

The answer of the board of education sets out a by-law that no contract shall be awarded to publishers, etc., unless the bidder shall file an affidavit that the price is not greater than that charged buyers of like quantities, etc., and that reputable and responsible book dealers have alleged that the relator was then disposing of said dictionary to other parties at a lower price than that at which it was offered to the board. Had the controller’s answer averred an investigation of this fact and a refusal based thereon, it would not only have presented a good reason for refusing to countersign the warrant, but a substantial defense to the relator’s claim. The board of education do not however aver belief in the allegation, and the controller makes no reference to it. So far as appears therefore the relator has a contract on which the city is legally liable, and of course no opinion, or so-called discretion of the controller can defeat the claim.

It follows that the mandamus should have been issued. In so deciding however it is not intended to enlarge the operation of that writ as a remedy either at common law or under the act of June 8, 1898, P. L. 845. This act was not meant, nor is it to be construed, to substitute mandamus for the writ of summons and the ordinary proceedings and trial. Our judgment does not countenance any such view but is only in the usual and regular course of the law where all the facts are admitted upon the record and only the result is to be pronounced. The contract it is to be noted was made by the board of education for a matter clearly within their department. They issued a warrant for payment which was returned to them unsigned by the controller and thereupon destroyed, supposing it to be functus officio. On the reopening of the subject by this litigation the board promptly issued a new warrant, made return of the facts, and submitted the case without objection to the claim. Had the board of education at any time indicated that there was any defense to this claim, it is clear that there could be no remedy by mandamus, but only by suit prosecuted to judgment in the ordinary course of law. But they have not done so. The only contest comes from the controller, and his grounds of objection, set out at length in his answer, show that none of them was founded on matters within his discretion. Had any of them been valid the court would not review his decision in regard to the facts, but when admitting all the facts none of the reasons is sufficient, the courts and not the official must determine the rights of the parties. This is the rule even in cases of discretion vested in strictly judicial tribunals: Johnson’s License, 156 Pa. 322" court="Pa." date_filed="1893-07-19" href="https://app.midpage.ai/document/johnsons-license-6241676?utm_source=webapp" opinion_id="6241676">156 Pa. 322; Gross’s License, 161 Pa. 344" court="Pa." date_filed="1894-04-30" href="https://app.midpage.ai/document/grosss-license-6242224?utm_source=webapp" opinion_id="6242224">161 Pa. 344; Gemas’s License, 169 Pa. 43" court="Pa." date_filed="1895-05-30" href="https://app.midpage.ai/document/gemass-license-6243049?utm_source=webapp" opinion_id="6243049">169 Pa. 43; and a fortiori must it be the rule where the discretion though ample and exclusive is reposed in a tribunal or an official who is only quasi judicial within prescribed limits.

Judgment reversed and mandamus directed to be issued, unless other and legal grounds be shown why it should not.