6 Binn. 5 | Pa. | 1813
A rule having been granted on the commissioners of Lancaster county, to shew cause why a mandamus should not issue, commanding them to draw an order on the treasurer of the said county, in favour of Abraham Witmer, for 58,444 dollars 44 cents the amount of the valuation of the stone bridge over the river Conestoga, the commissioners appeared, and shewed cause upon which we are now to decide.
On the 22d September 1787, an act of assembly was passed, authorizing Abraham Witmer to build a bridge over the Conestoga, and vesting the property thereof, when built, in the said Abraham Witmer his heirs and assigns forever, with permission to take toll at the rate fixed by the said act. But the legislature reserved a power whenever it should seem .expedient to them to make the said bridge a free bridge, to appoint three persons commissioners on the part of the Commonwealth, in conjunction with three others to be appointed by the said Abraham Witmer his heirs or assigns, who or any four or more of whom should estimate “ what sum or sums of money the said Abraham “ Witmer his heirs or assigns should be entitled to receive, “ as a compensation for his trouble and expetises in building “ and maintaining the said bridge, which sum or sums “ should be paid to him or them out of the treasury of the 44 Commonwealth^ On the 4th April 1798, a supplement to-this act was passed. The preamble recites that Abraham Witmer had represented to the legislature, that the bridge erected by him by virtue of the original act, having been built without a view to the turnpike road which was after-wards established, was not constructed of materials sufficiently durable, nor calculated to sustain the heavy burthens which were daily passing, and had prayed the legislature
Many objections are made to the issuing of this writ. The first goes to the jurisdiction of this Court, and is founded on an act passed 24th February 1806, by the nineteenth section of which it is enacted, that “ the Supreme Court shall '■'•have no original jurisdiction in civil cases.” Taking these words in their greatest possible extent, they might comprehend a mandamus, for it is an original writ applied as a remedy in a civil case. But to construe words in their largest sense, is not always to attain the intent of the legislature. At the time this law was passed, the Supreme Court were overwhelmed with business arising from civil actions commenced in the city and county of Philadelphia. Before the year 1786, no such actions were commenced in this Court, and it was judged proper to place its jurisdiction on the same footing that it formerly stood. This could produce no injury to the public, because the Common Pleas had jurisdiction of all actions which were forbidden to be
It has been urged further against issuing writs of mandamus, that this Court have no power to try an issue in fact out of the county of Philadelphia. This is true, and upon that principle the Court refused to grant an information in nature of quo warranto in the case of the Commonwealth v. Smith at Pittsburgh. But the case of mandamus is different from quo warranto. We may proceed to the end of it without trying aUy fact. The return to the first mandamus must be received as true, until it shall be proved false in an action for a false return, which may be brought in some other Court. If it contains matter sufficient to prevent a peremptory mandamus, the matter ends there for the present; if not, a peremptory mandamus issues.
Considering the objection to our jurisdiction then as groundless, we must examine the cause shown against the exercise of it in this particular case. We are called on to issue a mandamus, to compel the commissioners, of Lancaster county to draw an order on the treasury for the sum of 58,444 dollars 44 cents. The commissioners say they ought not to draw the order, because there is not moneyin the treasufficient to answer it. No doubt the
No subordinate Court under the judicial system of this state ever had any power to issue a writ of mandamus. This King’s Bench power is in the Supreme Court alone. The act of the legislature taking away the original jurisdiction of the Supreme Court, can respect only those powers which the subordinate Courts could exercise. With regard to these, the Supreme Court may or may not have original power as the legislature may from time to time direct; and in doing which they are not to be understood, as speaking of those powers which were -never in any Court else to exercise. They are to be consi
A second occurs which has relation to the common law, and takes away the remedy in this particular case. It is that the party applying for the mandamus has another re> medy. It would seem to me that he has by his own act, and without application to the'law; which is by keeping possession of his property, and he may sue the commissioners for damages for the trouble they have given him. This supposes that he may bring a suit against the commissioners even on the award itself to compel the performance of it. In this therefore he has another" remedy.' But to what purpose will it be for him to bring a suit, where the interested are judges? Such remedy maybe considered as none. He is in no worse situation however than others are who have to do with commissioners, and this has never been given as an
Rule discharged.