Heffner et al. v. The Commonwealth ex rel. Kline

• Decision Date: 01 January 1856
• Citation: 28 Pa. 108
• Parties: Heffner et al. versus The Commonwealth ex relatione Kline.
• Court: Pennsylvania Supreme Court

28 Pa. 108

Heffner et al. versus The Commonwealth ex relatione Kline.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Schuylkill county.

Parry, for plaintiff in error.—1. It is well settled that a private individual applying for a writ of mandamus, must show in himself a specific legal right, and the want of a specific legal remedy: Commonwealth v. Rossiter, 2 Binn. 362; Commonwealth v. Canal Commissioners, 2 Penn. Rep. 518; James v. Commissioners of Bucks County, 1 Harris 75.

It must be in the pursuit of or for the protection of some particular right which the individual holds independent of that which he holds in common with the public at large: 5 Bac. Ab., tit. Man. C. D.; Commonwealth ex rel. Leslie v. County Commissioners, 5 R. 76; People v. Sup. of Greene, 12 Barb. 217; Act 1836, § 7.

The incidental advantages that the owners of property in the vicinity of the alley may derive from the opening of it, is the same in kind but differing in degree, that accrues to each inhabitant of the town. If the relator can maintain this writ, any other resident of Pottsville can upon the same principle, and recover damages. Upon the same grounds an action on the case would lie; and if an action can be maintained, he cannot have a mandamus: 2 Cow. 444; 1 Wend. 325; 7 T. R. 396; 10 Wend. 367; 2 Binn. 360.

But this common right will not entitle the relator to the writ: Reading v. The Commonwealth ex rel. Fichthorn, 1 Jones 200. It does not appear that relator has sustained any special damage. It is a public statute; a public alley, and the wrong if any, a public wrong. The public officers must therefore apply for the writ: Sanger v. The Commissioners of Kennebec, 25 Maine Rep. 291; Commonwealth v. Burrell, 7 Barr 38; Murphy v. The Farmers' Bank, 9 Harris 418.

2. The writ is against the defendants individually, which would make them personally liable for costs: Act of 1836, §§ 7-14. The act to be done is a corporate act, and the writ should have been directed to the corporation: 5 Bac. Abr. tit. Mandamus, F. 278. The Act of 1836, § 1, authorizes the writ to be issued to a corporation. There are several instances of the kind in this state: 8 W. & S. 365; 3 Barr 282; 1 S. & R. 254; but no case where it was directed to the individual members of the corporation.

3. The act is unconstitutional, for no adequate remedy is provided for the payment of damages within a reasonable time: Pittsburgh v. Scott, 1 Barr 315; Commonwealth v. Wood, 10 Id. 97; Keene v. Bristol, 2 Casey 46. And this is necessary: 1 Barr 315; Yost's Report, 5 Harris 532; Sharrett's Road, 8 Barr 89.

4. That the defendant is not entitled to the writ upon the facts and merits. By demurring he admits the answer: The People ex rel. Bently v. Sup. of Hudson, 7 Wend. 474. These facts show that it would be inconvenient and burdensome to open it, and if opened would not be used for any useful public purpose. This is decisive against the right: Price v. The Co. Com., 1 Wh. 1.

F. W. Hughes, for defendant in error.—The authorities cited by the plaintiff in error establish that a private relator may have a mandamus, when he has some particular interest to be subserved, or some particular right to be protected or enforced.

The relator is such private person — his right in common is the right of way in and over the alley, his special right or interest, the appreciation of his property. The owner of property in a town has a special interest in all its streets: 1 Wh. 323-333; 5 W. & S. 129; Williams v. Esling, 4 Barr 486.

2. The town council is not a corporation, but a mere branch or division of the corporation, and it was upon them that the Act of Assembly enjoined the duty of opening this alley. The corporation were not "enjoined and required to open" this alley, but the town council, and it is directed to the officers and members composing that council. It could not be enforced against the borough in its corporate capacity. The duty is a special one — not under the corporation, but under the act.

3. If the Act of 1851 be unconstitutional, because it provides no adequate means of securing compensation for damages, then the Act of 1850 — the provisions of which as to damages it adopts — must be equally so. The terms of that act make the corporation clearly liable, and provide a speedy means of adjustment. It is compulsory upon the borough — while the owner has his option between the mode there provided and an action to recover them or compel their payment if assessed. It is not the case of the state conferring upon a corporation power to take private property for public use, but it is the state in her sovereign capacity taking it by her agent, the "town council," upon whom the duty is enjoined. The act, in the case of Pittsburgh v. Scott, 1 Barr 305, did not provide as speedy a remedy as here, and yet held constitutional: Yost's Report, 5 Harris 524.

4. The last objection is, that the specific duty, peremptorily imposed by the legislature on the council, cannot be enforced, because the members entertain certain opinions about the utility of the act — that it will cost a great deal of money, and that the borough cannot pay it.

It is probable the court below might, under the facts, in their discretion have refused the writ — if they had been satisfied that the evils deprecated by respondents would ensue — but the court did deem it "advisable" to grant the writ, and this we claim disposes of this last objection. The Act of 14th June, 1836, gives the Common Pleas concurrent powers with the Supreme Court to issue writs of mandamus. The court below has exercised its discretion. Can this court review that? The Act of 1836, § 32, authorizes the Courts of Common Pleas "to award peremptory mandamus, if the case, in their discretion, requires it, notwithstanding the writ of error."

The opinion of the court was delivered by WOODWARD, J.

In order to obtain a writ of mandamus the applicant must have a right to enforce which is specific, complete, and legal, and for which there is no other specific legal remedy. When public rights are to be subserved, public officers must apply for the writ. But if a private individual make himself the relator, he must show some particular right or privilege of his own, independently of that which he holds with the public at large: Wellington's Case, 16 Pick. 87. Hence, it was held in Sanger v. Commissioners of Kennebec, 25 Maine R. 291, that a mandamus would not be granted commanding county commissioners to locate a road, though it was their duty to do so, on the petition merely of one of the original petitioners for the road, who had no greater interest than the rest of the community in procuring such location.

In the case of The King v. The Archbishop of Canterbury, 8 East 213, the writ was refused to enforce the admission of a doctor of the civil law and a graduate of...