Commonwealth v. McLaughlin ( 1888 )

Opinion,

Me. Justice Paxson :

This was a petition by I. P. Wanger, Esq., district attorney of Montgomery county, praying for a writ of mandamus to the judges of the Court of Quarter Sessions of Montgomery county, to enforce the judgment and sentence of the said court in the above stated case, by an order directed to the sheriff of said county requiring him forthwith to abate the nuisance complained of at the costs of the defendant.

The defendant had been convicted in the court below of maintaining a public nuisance, and had been sentenced to pay a fine and to abate the nuisance. The nuisance consisted of the storage of a large quantity of gunpowder and dynamite in a building near a public highway, to the damage of the neighbors and traveling public. It was not the building that was the nuisance ; it was the storage of the above-named explosive and dangerous substances therein. Upon proceeding to enforce the sentence, the defendant showed that he was not the owner of the premises; that he was merely the agent at one time of the parties who used the building as a storehouse for powder, and that since the trial he was no longer such agent, and had no control over the building or its contents. The court below held that the defendant could not be required to abate a nuisance over which he had no control, and that the sheriff could not be required to remove it, inasmuch as the ground upon which he acts in such cases is the refusal of the defendant to do what he ought to have done.

It will appear, from what has been said, that the court below has acted upon the application of the district attorney, and refused it. If the court had declined to act, there might have been some ground for the application for a mandamus. That the writ will lie from this court to a lower court to compel the performance of a duty is settled law. Thus, if a judge unreasonably delay judgment in a particular case, he may be compelled to do so by mandamus. But it will not lie to compel him to give judgment in a particular way; it will only require him to act. Hence, when the judge has acted, mandamus will not lie to reverse his action. The judge below has acted in the matter referred to; he has refused to order the sheriff to proceed to abate the nuisance, for reasons which he regards as legal and satisfactory, and we cannot reverse his decision upon a writ of mandamus, even were we satisfied that it is erroneous. We are free to say, however, that we see no reason why the learned court below should have arrived at a different conclusion.

Writ refused.