1 Pa. Super. 507 | Pa. Super. Ct. | 1896
Opinion by
The act of June 8, 1893 (P. L. 345), provides that if the petition presents the substance of a case for mandamus, the court shall direct that such writ issue in the alternative form : “ Provided, however, that if the right to require the performance of the act is clear, and it is apparent that no valid excuse can be given for not performing it, a peremptory mandamus may be awarded in the first instance and directed to issue forthwith.” This is not a case where it was apparent, on the face of the petition, that no valid excuse for not performing the act could be given; therefore, regularly, an alternative writ should have been issued. The defendant, however, appears to have waived that formality, and filed an answer setting forth his reasons for refusing to grant any other certificate than such as he had tendered to the plaintiff. We may, therefore, treat the rule to show cause, as a substitute for an alternative writ, and the.answer as a return thereto. “ In such a return,certainty to a certain intent in general, and no more, shall be required: ” Sec. 13, act of June 8, 1893, P. L. 345. A return to an alternative mandamus is sufficient if it contains a full and explicit answer to all the allegations expressly made in the petition, and discloses a fair legal reason why the mandamus should not be obeyed: 14 Am. & Eng. Ency. of Law, 231. Judged by these rules the answer was sufficient in law. When this stage of the proceedings was reached it was the privilege of the plaintiff to demur to the return, or to plead to or traverse all or any of the material facts therein contained. It is at this point that the proceedings in mandamus begin, and they are then to be carried on, “ as in other actions at law,” until an issue of law, to be decided by the court, or an issue of fact to be decided by a jury, is raised. The system is a complete and logical one and is well calculated to bring before the court the precise point to be decided. But, on the same day that
. It was held in Com. v. Hyde Park, 15 W. N. C. 506, that where the defendant has appeared in answer to a .rule or notice and has been heard, and there is no controversy as to the facts, and the right of the relator is clear, a peremptory writ of mandamus may, in the discretion of the court, be issued in the first instance. But in the present case it appears, both by the pleadings and the evidence, that there was a very serious controversy as to the facts, and while it may be that the testimony preponderated in favor of the conclusion reached by the learned judge, it could not be said that it was so clear and so free from conflict as to put the right of the relator beyond question. Even assuming that the reasons assigned by the defendant for his action, were traversable, it is questionable whether the issue of fact raised by the traverse could be decided upon depositions unless by the consent or agreement of the parties, entered of record: Com. v. Thomas, 32 Pa. 218; Smith v. Com., 41 Pa. 335; Jefferson Co. v. Shannon, 51 Pa. 221.
But, passing, without further comment, all questions of practice and pleading, we come to the serious questions, namely, whether the duty of the county superintendent is purely ministerial, or whether it involves the exercise of discretionary and quasi judicial powers, and whether and to what extent the court of common pleas has revisory jurisdiction.
The learned judge below concedes that, if the applicant is, a person of known immoral character or a known habitual drinker-of intoxicants, the county superintendent would have a right to refuse him a certificate. Having power for sufficient reason to-refuse a certificate, he must, necessarily, have the power—and it is his duty to exercise it—to ascertain and determine whether
The principles which govern the court in issuing writs of mandamus are well understood, and there is no better statement of them than that of Chief Justice Tilghman in Com. v. Cochran, 5 Binn. 87: “ Where a ministerial act is to be done, .and there is no other specific remedy, a mandamus will be awarded to do the act required; but, where the complaint is against a person who acts in a judicial or deliberative capacity, although he may be ordered by mandamus to proceed to do his 4uty by deciding and acting according to the best of his judgment, the court will not direct him in what manner to decide.” In Runkle v. Com., 97 Pa. 328, Mr. Justice Gordon said: “ When a person or body is clothed with judicial, deliberative .or discretionary powers, and he or it has exercised such powers [according to his or its discretion, mandamus will not lie to compel a revision -or modification of the decision resulting from the exercise of such discretion, though, in fact, the decision may have been wrong.” In Knarr’s Petition, 127 Pa. 554, Mr. Justice Williams said: “We have repeatedly said that the office of a mandamus is to require the performance of judicial functions, not to regulate the mental processes of the judge. If he
It was held that the court could not legally compel commissioners of bankruptcy to sign a certificate of conformity even though an issue should be found in favor of the bankrupt, or the court on a special statement of the facts should differ from the commissioners whether there was a full, true and perfect discovery and disclosure on the part of the bankrupt: Resp. v. Clarkson, 1 Y. 46. The admission of an attorney by a court of common pleas is a judicial and not a ministerial act; it was therefore held that mandamus would not lie, although the judges expressed a very decided opinion that the common pleas had been governed by an erroneous construction of its own rule in refusing admission: Com. v. The Judges, 1 S. & R. 187. It was held, that, under the act of 1884, the county commissioners had a discretionary power in the appointment of collectors, and that, where they decided those returned by the assessor to be unfit, and appointed others, the court would not interfere by mandamus. The remarks of the court as to the duty of the commissioners to act on their own knowledge might appropriately be quoted here: Com. v. Perkins, 7 Pa. 42. In a case already cited—Runkle v. Com., it was held that under the act of 1874 a city controller was vested with deliberative and discretionary powers in countersigning warrants, and was not liable to be controlled in his judgment within the scope of his authority by the court, through the agency of a writ of mandamus or otherwise. To the same effect is Dechert v. Com., 113 Pa. 229. The same has been held in cases where public officers have had the duty to let contracts to the lowest responsible bidder: Com. v. Mitchell, 82 Pa. 343; Findley v. Pittsburg, 82 Pa. 351; Douglass v. Com., 108 Pa. 559. The general principles have frequently been applied in the construction of the liquor license laws: Raudenbusch’s Petition, 120 Pa. 329; Knarr’s Petition, 127 Pa. 554; Johnson’s License, 165 Pa. 315. Except in extreme cases the courts have refused to control the
Where the right of approving a fit and proper person to be appointed to an endowed lectureship was by statute vested in the bishop of the diocese, the duty of the bishop was described by Lord Ellenborough in terms which may fitly be used to describe the duty of a county superintendent, thus: “ to exercise his conscience, duly informed, upon the subject; to do which, he must duly, impartially and effectually inquire, examine, deliberate and decide. If the court have reason to think that anything is defectively done in this respect, it will interpose its authoritative admonition: ” R. v. Archbishop of Canterbury, 15 E. 139. That is to say, as explained in the same case, the officer may be compelled to hear and decide, but “ the court cannot say to him, ‘ approve though you do not approve; take our conscience to guide you and not your own.’”
The cases cited by the appellee’s counsel were cases where public officers were removed without a hearing—a thing which we concede cannot be done unless the officer is removable at the mere pleasure of the appointing power—-but they have no application to this ease as it is presented by the pleadings and evidence.
The decree is reversed and set aside and the peremptory writ of mandamus is quashed.