Commonwealth v. Johnson

2 Binn. 275 | Pa. | 1810

The opinion of the court, which was delivered upon the whole case, was on this point as follows:

Tjxghman C. J.

The point which required most consi-

deration, was, whether the case was of such a nature as called for á mandamus; and we think that it is, because the supervisors are public officers, directed by the act of assembly to pay such orders as are legally drawn by the justices, and because the surveyors have no other specific remedy. It is said that the supervisors may be indicted for neglect of duty. But if they were indicted and convicted, the orders might still be unpaid. It is said also that if they withhold payment without just cause, they are liable to an action.

Granting that they are, it must be brought against them in their private capacity; and there is no form of action against them, which, being carried to judgment, will authorize an execution to be levied on the treasury of the Northern Liberties. Now it was to this treasúry that the surveyors had a right to look, when they acted under their commission from the governor. It may be said, that in truth their contract was with the township, and from the township they have a right to expect payment.

The court ordered the rule to be made absolute for a mandamus in the case of each surveyor.

Rule absolute.