Commonwealth ex relat. Witmer against The Commissioners of Lancaster County, 6 Binn. 5 (Pa.)

Tilghman C. J.

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

to pass a law to authorize him to erect a bridge over the said creek, upon that permanent and- extensive plan, which the importance of the situation required. It is then enacted that the said Abraham Witmer his heirs and assigns may build support and maintain a permanent bridge over the said creek,, on any unoccupied part'of the great road leading from Philadelphia to Lancaster immediately above and •on the north side of his present bridge, and to take toll at the same- rates as were established by . the original act. The fifth section provides that whenever the legislature should deem it expedient to make- the said bridge a free bridge, three commissioners should be appointed by the legislature and three 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 have and receive ufor his right and title in and to the said bridge, which sum “ or sums so estimated should be paid to him or them out of the treasury of the Commomveálth.’’ On the 2d April 1811, an act was passed giving to the commissioners of Lan- - 'caster county 10,418 dollars 34 cents, part of a debt due to the Commonwealth from the estate of William Henry, to be applied towards payment for Abraham Witmer’s bridge. On the 17th January 1812, the commissioners of Lancaster county represented to the legislature, that a great majority of the county wished for a. free bridge, that they had applied to Abraham Witmer who refused to deal with them, alleging that they had no authority to purchase. On the 27th March 1812, an actwas passed “to purchase andmake free “the bridge over the river Conestdgahmkby Abraham Wit- . “ mer in the county of Lancaster.” Bythis apt three commissioner's were named on the part of the Commonwealth, who in conjunction with three others to be named by Abraham Witmer (not being citizens of Lancaster county) were to estimate on oath “ the sum or sums the said Abraham Witumer his heirs or assigns should be entitled to receive ac- “ cording to the true intent and meaning of an act passed “ *22dSeptember 1787,and a supplement passed the 4th April “ 1798, for the stone bridge across the Conestoga river, built “and owned by the said Witmer.”* The commissioners appointed by this act, having been notified by the commis

sioners.of Lancaster county, were to fix on a time and place " of meeting, notice of which was to be given to Abraham Witmer. If four or more of these commissioners could not agree, the governor was to appoint a seventh person, and the sum awarded by a majority of these was to be paid to the said Abraham Witmer his heirs or assigns “ out of the “ treasury of Lancaster county, by warrant drawn by the “ commissioners of said county thereon.” If Abraham Witmer should refuse to receive the compensation awarded by the commissioners, for ten days after tender thereof made to him by the county commissioners, he was to be debarred of the right of taking toll. If the sum awarded exceeded 10,418 dollars 34 cents, then the commissioners of Lancaster county, after having paid the whole sum awarded, were authorized to receive toll until they should be reimbursed the amount of what they had paid over and above the said 10,418 dollars 34 cents, after which the said bridge was to be free. Abraham TVitmer having received notice from the commissioners of Lancaster county, named three commissioners on his part. The first commissioners met and made an award that the sum of 58,444 dollars 44 cents should be paid to Abraham Witmer. The commissioners of Lancaster county have refused to draw an order for this sum, and Abraham Witmer now applies for a mandamus to compel them.

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

commenced in the Supreme Court. But it would have befen productive of very ill consequences to take from the Supreme Court their jurisdiction in cases of 'mandamus and other writs of like nature, because the Common Pleas had no, right to issue them, and thus there would have been a defect of justice on important occasions. By civil cases then is to be understood civil actions, which in common parlance do not comprehend writs of mandamus, certiorari, habeas corpus, &c. This was the construction put upon the act immediately after its passage and ever since. The jurisdiction has been repeatedly exercised and never before questioned. And upon one occasion it was expressly recognized by a resolution of the legislature, in which they directed that the Attorney General should appear in a case of mandamus, and support the right of the Commonwealth to a tract of land called the mammoth farm in Luzerne county. I have thought it proper to speak explicitly on the construction of the 19th section of the act of .24th February 1806, although that section is repealed by the 5th section of the act of 20th March 1810.

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

and it appears to be cause insurmountable against issuing the "writ. Whether the commissioners have done wrong in not talcing measures to have the money placed in the treasury, is not now the question. If they have, we have no right to punish them in this way. What would it signify to draw an order on an empty treasury? The treasurer would refuse payment, and there the matter would end. We know very well that no money can come into the treasury but by a tax on the county; and that tax the commissioners cannot lay without the co-operation of other persons, even supposing that the act for the purchase of the bridge, authorizes the laying of a tax for the purpose of paying Mr. Witmer. If Mr. Witmer’s object' be attainable by way of mandamus, the first step must be to order the proper persons to lay a tax; and it must be laid for the whole sum at once, for the act for the purchase of the bridge makes no'provision for partial payments. There can be no apportionment of the toll; Witmer is entitled to take it all until he receives payment of the whole sum awarded. In short the payment of so large a sum does not seem to have been an event contemplated by the legislature; and whether this Court would think itself justified in compelling the county to raise it, without an act of assembly explicitly directing it, is a point on which I have not made up my mind. I recommend it to the serious consideration however, of Mr. Witmer and his counsel, before another application is made to this Court. There are other important points which have been well discussed on the argument by the counsel on both sides, on which I deem it premature, at the present moment, to intimate any opinion.

• Bb.acicenb.idge J.

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

dered as having a reference to the jurisdiction of the Supreme Court, where by removal, appeal, or writ of error, they have cognizance, or may have it specially given to them in extraordinary cases, as co-ordinate with the Courts of inferior jurisdiction. The term original, or appellate, or of revision, has no relation to a province in which the Supreme Court alone ever had power. If under the term original these high powers stiled prerogative are taken away as is alleged, are they given in the first instance to the subordinate Courts? This not being the case, it must have been the intention of the legislature, according to a cóntrary construction, to annihilate all such powers in the judicial authority any where. This unless by express words can never be supposed to have been intended. I must therefore be of opinion that this Court, notwithstanding any seeming implication or general term in the act of assembly, retains its usual jurisdiction in these pre-eminent cases which no other Court can exercise. But an objection made to the exercise of this power in the present case, is, that as in the case of a writ de quo -warranto, so here they may be stopped by the traverse of a fact, which from the present constitution of the Court, they have not the power to try. But in the exercise of the jurisdiction .by mandamus, in contemplation of law no fact can be traversed, but the return must be taken as true. An action may lie for a false return, but not on an issue to be directed by them; so that there is nothing in this objection.

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

answer to all who have a right of action, and might with equal reason apply to this Court for their extraordinary interposition. But supposing this to be the case, with regard to which, I will acknowledge that under the special circumT1 , ° .. .. stances 1 have not the most decided opinion, the issuing a mandamus is discretionary in the Court; and it would seem from the cause shewn by the commissioners, taking it to be true, the principle of estimation of the sum awarded is not correct, and according to the stipulations of the contract. It is not the fee simple right in the bridge that is to be purchased, bufa privilege that is to be redeemed on paying the expense and trouble in constructing it; and that would seem to be what it cost at the time of erecting it, taking the superintendance into view, making an allowance also for the depreciation of the current medium for the present time. If the real value of money notv is to the nominal as one to two, then give double of what the bridge cost at the time it was built. But the highest toll of the bridge in anyone year, and such a principal as would produce the interest, would seem to be an incorrect ratio of estimation. There is therefore a bar to the discretion of the Court in issuing a mandamus,* and the carrying this award into effect. I am therefore of opinion to refuse the writ.

Rule discharged.