Commonwealth ex rel. Griffith v. Cochran

• Decision Date: 30 May 1812
• Citation: 5 Binn. 87
• Parties: The Commonwealth on the relation of GRIFFITH v. COCHRAN, Secretary of the Land Office.
• Court: Pennsylvania Supreme Court

5 Binn. 87

The Commonwealth on the relation of GRIFFITH v. COCHRAN, Secretary of the Land Office.

Supreme Court of Pennsylvania.

May 30, 1812

Where a ministerial act is to be done, and there is no other specific remedy, a mandamus will lie to do the act required; but where the complaint is against a person who acts in a judicial or deliberative capacity, he may be ordered by mandamus to proceed to do his duty, by deciding and acting according to the best of his judgment but the court will not direct him in what manner to decide.

Hence a mandamus will lie to the secretary of the land office, to compel him to make the calculations of purchase money and interest on lands sold, if he has omitted or wholly refused to do it; but it will not lie to command him in what manner to make the said calculations, that act not being merely ministerial; nor, if he has already, under the direction of the board of property, made the calculations in an erroneous manner, will it lie to compel him to make them in a proper manner.

AT the last term of this Court for the Lancaster district a rule was granted upon the defendant to shew cause on Monday the 27th of May, why a mandamus should not be issued, " commanding him to prepare and deliver patents to Robert E Griffith, who survived Philip Nicklin, (which said Robert and Philip, in the life time of the said Philip, were assignees of Joseph Boone, who was assignee of John Nicholson ) for sixty-eight tracts of land, situate in what was formerly called the Eighteen Districts, and which were surveyed on sixty-seven warrants of one thousand acres each, and one warrant for four hundred acres, dated the 19th of March 1805; --the purchase money for which warrants was paid at the time they issued, and the surveys made thereon, returned into the surveyor general's office on the 3d of February and the 16th of March 1808, and accepted; the said warrants being issued on the application of the said John Nicholson, and in pursuance of two decisions of the board of property, one dated the 14th of January 1804, and the other the 25th of January 1805; --on the said Robert E Griffith, paying into the treasury of the commonwealth the purchase money due for the surplus quantity of land contained in the surveys made on said warrants, with interest upon the same, from the time of the surveys being made, respectively, until the 5th of November 1810, when a sum of 1800 dollars in specie, equal to the payment of the whole thereof, and the fees of patenting the said tracts, was tendered to him, with an offer immediately to pay the whole purchase money, and interest as aforesaid due, with the said patenting fees, into the treasury, for the purpose of obtaining patents for the said tracts, upon being furnished by the said secretary, with the requisite certificates to the treasurer for that purpose, which the said secretary refused."

To this rule the secretary returned on the 27th of May, in substance as follows:--" That he has no cause to shew, excepting that the said Robert E. Griffith has not paid a balance of purchase money, interest and fees due on the lands, which the act abolishing the offices of receiver-general and master of the rolls, requires to be done, before patents can lawfully issue. The said secretary has always been ready, and now is ready, to perform every act and thing on his part, towards preparing and delivering said patents, any representation or false statement made to the honourable court to the contrary notwithstanding. Had the secretary been required to shew cause why calculations were not made agreeably to the directions of Mr. Griffith's agent, several good reasons might have been furnished; but as the making of calculations, or causing them to be made, is exclusively the duty of the said secretary, he claims the right of making them, subject to the control of the board of property, who have in the case of Nicklin and Griffith's warrants directed him how to proceed. And if the secretary has refused to make calculations agreeably to the wishes of said agent, being so instructed by the board, under whose control he is, the refusal, of course, was a refusal of the board, and not of the secretary of the land office; and although he, as well as the other members of the board, are ever ready to respect the decisions of the court, and in a certain degree consider themselves bound thereby, yet when duties are pointed out by express and written acts of the legislature, the said secretary considers himself bound to adhere to them & c."

On the 30th of May 1811, a second rule was granted on the secretary, to shew cause on Saturday the first of June, why a mandamus should not be issued, pursuing the terms of the first rule, with the following variations, viz. " commanding him to prepare and deliver the usual certificates and calculations of the purchase money and interest due for the surplus quantity of land contained in the surveys made upon sixty-eight tracts of land, together with the patent fees for the said tracts, towards enabling him to obtain patents for the same on the payment thereof; " --further alleging, that " regular certificates for the purpose of patenting, had been issued by the surveyor-general on the said surveys respectively, and deposited on and previously to the 5th of November last, with the said secretary; " --then stating the tender of the money as before, and concluding " which certificates and calculations then were demanded of the said secretary, and refused by him. "

To this rule the secretary returned on the 1st of June, as follows:--" On the 30th of May, a notice was served on the secretary of the land office, to shew cause this day why a mandamus should not be issued & c.; wherein it is stated that the usual certificates and calculations of purchase money & c. for sixty-eight tracts of land & c. were demanded of the said secretary, and refused by him."

" The said secretary says, that on the sixth of November, 1810, sixty-one calculations had been made on so many of said tracts, and the usual certificates made out therefor, and severally signed by the said secretary, and no objections made as to delivering the same, which the said secretary stands prepared to prove."

" Seven of the said sixty-eight tracts, however, at that time, could not be acted upon, because they contained a greater surplus than by law could be received. But that difficulty is now removed by an act passed last session."

This return, not meeting the real point in controversy, viz. the dispute respecting the time from which the interest was to be calculated, a mandamus was awarded on the 1st of June 1811, returnable the third Monday of May 1812, to shew cause, & c.

To this mandamus the following return was made.

" Whereas a mandamus was awarded by the said court against the secretary of the land office on the 1st of June 1811, commanding him to shew cause on the third Monday of May 1812, why he had not conformed to, and complied with a rule, granted the 30th of May 1811, which rule required him to shew cause, why he did not prepare and deliver to Robert E. Griffith, the usual certificates and calculations for sixty-eight tracts of land & c."

" The said secretary, with all due deference to the honourable court, in return to said writ answers, that he thought he had superseded the necessity of issuing the said rule, by having answered to a previous rule in the same case, wherein he had stated, that he had never refused, but was ready and willing at all times to do and perform every act on his part, towards preparing and delivering patents for said tracts, (preparing of which certificates was a part of his duty towards the issuing of patents,) as soon as said Griffith had paid the respective fees and balances due the state. The said secretary also thought he had superseded the necessity of issuing the said writ, by having in his return to said last rule, stated, that calculations had been made out for sixty-one of said tracts, with certificates to the treasurer for the same, which had been severally signed, and ready for delivery when called for; and that the difficulty respecting seven others had been removed by an act of the legislature. The said secretary therefore, thought the honourable court would not have commanded him to do, what he had not only not refused to do, but had actually done and performed; which will appear by the annexed affidavit. "

" There is no person more ready than the said secretary, to obey the constituted authorities of government; but the present case being an irregularity, touching an imperfect title, the said secretary (as at present advised) thinks the exclusive power of deciding thereon, is vested in the board of property, and consequently any thing touching the same, is not within the jurisdiction of the honourable court. It is a case between the commonwealth and an individual, wherein the treasury is interested several thousand dollars; and the said secretary considers it taking by indirect means, the commonwealth into court, without the consent of her immediate representatives, which the said secretary believes cannot constitutionally be done. By the sixth section of the fifth article of the constitution, the legislature are authorised to distribute the judicial powers as they shall judge proper. And by an act passed the 5th of April 1782, the board of property are constituted a court ‘ to hear and determine in all cases of controversy on caveats, in all matters of difficulty, or irregularity, & c. touching imperfect titles, or otherwise & c.,’ and these powers are by subsequent laws (since the adoption of the present constitution) transferred to the existing board."

" This, then, being clearly an irregularity, touching an imperfect title, the power...