Commonwealth v. Rogers , 59 Pa. Super. 265 ( 1915 )

Opinion by

Rice, P. J.,

The petition for mandamus alleged that, at a meeting duly appointed under the special road laws for the selection of reviewers, respondents (who were township supervisors of Litchfield township) "neglected and refused to make choice of a competent and qualified reviewer as provided by existing laws, but the petitioners at said time chose Reuben Horton.” This would seem to present a prima facie case for mandamus to compel the township supervisors to appoint. But it appears, by the answer, that the respondents did select and appoint Clyde Schneider. Pursuant to due notice of their appointment these two men met on November 27, 1911; but Reuben Horton presented his resignation and therefore no selection was made by them of a third reviewer. A month later the petitioners and the respondents met, and the former then chose P. W. Gillette for the place made vacant by the resignation of Reuben Horton. In short, the respondents, in whom the judicial discretion was vested, had acted by selecting a person who had the qualifications prescribed by statute, that is, he was "a commissioner of roads and highways of an adjoining township,” his appointment stood unrevoked, and, so far as appears, he was ready and willing to act. This was the state of the case as presented by the petition and answer, and, so far as the propriety of invoking this extraordinary legal remedy is concerned, it was not changed by the replication. The disqualification of Mr. Schneider is there alleged to consist in this, that he had acted as a reviewer in a previous proceeding for laying out the same proposed road. But the same objection applied to the petitioners’ selection of Mr. Horton, with this difference, that the latter signed the report in that proceeding, while Mr. Schneider did not. Moreover, it is not alleged that at the meeting when these two men were selected the petitioners objected to the appointment of Mr. Schneider. It is urged with great force that, in view of the selection the petitioners made, the selection made by the respondents was not an improper one, and that, even if the objection now urged might have prevailed if made at the proper time, it was waived. The Act of July 2, 1901, P. L. 607, has provided a mode in which road proceedings under these special statutes may be reviewed and the questions above suggested may be brought forward for decision. Therefore, we will express no decided opinion on them. It is enough, for present purposes, to say, that the appointment was not void in the sense of being the same as no appointment, and that under all the facts presented the petitioners’ right to have the appointment revoked is far from clear. Mandamus goes out only where there is a clear legal right in the relator and a corresponding duty upon the defendant: Com. ex rel. v. Fitler, 136 Pa. 129; Com. ex rel. v. Kessler, 222 Pa. 32.

Another reason for not disturbing the judgment is set forth in the appellees’ motion to quash this appeal, namely, that, after the mandamus was refused and before the appeal was taken, the two reviewing supervisors already chosen met and selected a third and the three acted and carried the proceedings to an end. It is argued that a reversal of the judgment would have no practical effect and therefore the appeal might be dismissed as not relating to an actual existing controversy. See Com. ex rel. v. Cairns, 48 Pa. Superior Ct. 265, and cases there cited. There is merit in this contention, but on reflection we conclude not to dismiss the appeal. For the reasons suggested in the discussion of the main question, taken in connection with those set forth in the opinion of the learned judge specially presiding below, we hold that the judgment was right and should be affirmed.

The judgment is affirmed at the costs of the appellants.