12 Pa. Super. 479 | Pa. Super. Ct. | 1900
Opinion by
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
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.
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
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.