Davis v. Patterson, Appeal, No. 225

Appeal, No. 225 | Pa. Super. Ct. | Feb 16, 1900

Opinion by

W. D. Portee, J.,

The plaintiff presented to the court below his petition, sefc ting forth, in substance, “that he had been duly granted a license to sell liquors at retail by the court of quarter sessions; that the amount required to be paid for said license by the Act of May 13, 1887, P. L. 108, and the Act of July 30,1897, P. L. 461, was $200, which amount together with the fees of $2.75, was all that he could lawfully be required to pay for the issuing of said license so granted to him; that he had tendered to E. M. Patterson, treasurer of Mercer county, the sum of $202.75, and had demanded of said Patterson, county treasurer, and James A. Gilmore, clerk of said court of quarter sessions, the issuance of said license; that the county treasurer had refused to accept the money so tendered for said license and the defendants had refused to issue said license, except upon condition that the plaintiff first pay to the county treasurer an additional sum of $200, alleged to be legally required to be paid for the issuing of said license under'the laws applicable to Mercer county. The prayer was for a writ of mandamus to the defendants, “ Commanding them tó issue to petitioner the said liquor license, so granted to him by the court, upon payment to them of said sum of $202.75 as aforesaid.” There was presented to the court an order which in the hurry of business was, no doubt, inadvertently signed. This paper began with an order in proper form, reciting the petition and directing a •writ of alternative mandamus to issue, “ as therein prayed for,” fixed the return day of the writ and the manner of service. Thus far the order was complete and lawful, but it had an unusual appendage, viz: “And it is further ordered that the petitioner shall pay in the full amount of the fees demanded by said treasurer, in order to allow the issuance of said license, pending the hearing and decision of-this case, with the same force and effect and in like manner as though the same had been paid into court, pending a decision of this case by the cotirt; and if the case be finally decided in favor of the petitioner, then the said disputed sum of $200, mentioned in said petition, or such amount as the said petitioner shall have paid in excess of the license fee required by law, shall be refunded to the said petitioner, otherwise the whole of said sum shall be retained by the said E. M. Patterson, treasurer, and applied by him as required by law.” The defendant filed an answer admitting the grant of the license and their refusal to issue it upon payment by plaintiff of $202.75. They set up, in justification of their demand of $200 additional, the special legislation for Mercer county, Act of May 24,1871, P. L. 1108. The answer further states that the defendants had always been willing to issue the license on payment of $402.75, and had so declared to the defendant; that, on the same day the plaintiff presented his petition for the writ, he came to the defendants and paid into the treasury of the county of Mercer the sum of $402.75, and thereupon the license was issued by defendants and received and accepted by plaintiff; that the said sum of $402.75 had theretofore uniformly been paid for hotel licenses in Mercer .county; and that said payment was made by this plaintiff, with full knowledge on Ms part of the facts, and without any agreement whatever by the county treasurer, or any other person acting for said county, that said money or any part thereof should ever be returned to plaintiff, under the circumstances. The answer then proceeds to demur to that part of the order of court, above recited, which provided that in certain contingencies, $200 should be refunded to plaintiff. The ground upon which the demurrer is put is the want of power or jurisdiction in the court to make such order. The plaintiff filed a replication which does not traverse any of the allegations of fact above recited, and we must accept them as true. The replication does not conform with the requirements of the Act of June 8, 1893, sec. 15, P. L. 345, but it was considered by all the parties as a demurrer to the answer, and the proceeding was disposed of as if it were at issue. This case can be disposed of upon the petition, answer and demurrer, but there are still some rules of pleading to be observed in cases of this nature.

The court made a decree refusing to award a peremptory mandamus, whereupon the plaintiff moved for an order on the county treasurer, requiring him to refund to plaintiff the sum of $200, “ wMch was paid by him in pursuance of the order of court,” and the court refused to make this order. The plaintiff now assigns for error the declination of the court to award a peremptory mandamus and the refusal to make an order on the defendants to refund $200 of the money which be had paid for his license. It is not contended that the court ought to have awarded a peremptory mandamus, commanding the issuance of the license, but that this most drastic remedy ought to have been employed to enable plaintiff to get his money back. This proceeding started out with a petition for an alternative mandamus requiring the defendants to show cause why they should not upon payment of a certain sum issue a license to plaintiff; this was all that plaintiff prayed for and the petition did not present the substance for a case of mandamus in any other form.' The petition is the foundation of the whole proceeding, under the Act of June 8,1893, P. L. 345, and must set forth the act or duty, the performance of which it seeks to compel. Yet in this proceeding, which avowed that it was instituted for an entirely different purpose, we have it now argued that the appellant is entitled to a peremptory mandamus for the collection of money.

It is conceded that there is but one question raised by the various assignments of error. Is the plaintiff entitled, under the pleadings, to a peremptory mandamus commanding the defendant to take from the treasury of Mercer county the sum of $200 and pay it over to the plaintiff ? The petition certainly .does not afford a foundation for any such decree, but it is contended that, because the plaintiff paid the money into the county treasury after the court had made the order hereinbefore recited, the money is still subject to the control of the court. The .county treasurer did not accept the money under any agreement that it should be held as a special deposit, or upon condition that it should under any circumstances be returned to plaintiff, or that it should remain subject to the order of court. The plaintiff must rely entirely upon the order to sustain his contention that the fund is still within the grasp of the court in this proceeding.

The remedy is undoubtedly by mandamus when the county treasurer and clerk of courts refuse to perform their official duties in and about the issuing of licenses. The court has the power to command such officers to perform their official duties. This jurisdiction is, however, limited by law, and is not to be indefinitely extended to promote the interest or convenience of private litigants. The courts have no jurisdiction to compel, by mandamus, a public officer to do any act which the law does not impose upon that officer a duty to perform, or to discharge ,the functions of his office in a manner not authorized by law; or to do anything which the law does not expressly or by necessary implication require him, as an officer, to do. The courts cannot impose duties upon public officers; the function of the writ of mandamus is to enforce duties imposed by law.

The primary writ in this case was alternative in every sense; it required the defendants to issue the license upon payment of a certain sum or show cause why they should not do so, but with this formally proper command went the order which has resulted in this secondary contention. That order gave the plaintiff an alternative; he might stand upon his petition and writ, await the decision thereon and, in case of a judgment in his favor, pay his money and take his license, or he might pay into the county treasury the amount demanded and take his license at once. The order really was a declaration, by the court, that if the plaintiff waived, for the present, his contention, and, pending the hearing, paid into the county treasury the full amount demanded by the revenue officers, and thereupon received his license, the court would consider the money as haying been paid into court, and upon final decision order it to be disposed of accordingly. Soon as the plaintiff paid his money and took his license Ms right to a mandamus compelling the issuance of the license ceased, and the character of the alleged wrong sought to be redressed and the remedy for the Mjury had changed. If the plaintiff had first paid his money and taken his license he could not have recovered an amount overpaid by a mandamus.

A county treasurer must receive and disburse the state, county and municipal funds in accordance with law. He cannot be compelled to receive money of which he is not made the official custodian, nor to hold money, which he does receive, subject to anj*- condition not imposed upon that fund by statute. He cannot be compelled to accept money and withhold it from the state, county or municipality until it is determined to whom the fund belongs. He cannot be compelled, nor can he agree, to become in his official capacity the custodian of moneys paid into court. He has no authority to make contracts binding the funds of the county. He can no more be compelled to accept the funds of private individuals, as a general deposit or upon specific conditions, than to make of the vaults of the treasury a place of storage for their jewels. The courts have no power to •compel a county treasurer to become the stakeholder of a fund, the ultimate destMation of which is dependent upon an action .at law or any other event, however interesting; nor have they jurisdiction to decree that money paid into the county treasury shall, without the consent of the financial officers of the county, foe treated as if it had been paid into court.

The court did not have jurisdiction to make the order upon which appellant relies, and the action of the court in subsequently refusing to enforce that ■ order was free from error. All the assignments of error are dismissed.

Judgment affirmed and appeal dismissed at costs of appellant.