Select & Common Councils v. Commonwealth ex rel. Bair & Shenk , 1879 Pa. LEXIS 286 ( 1879 )

Mr. Justice Paxson

delivered the opinion of the court,

The proceeding, out of which the orders complained of grew, was a writ of peremptory mandamus issued at the relation of certain creditors of the city of Williamsport, to compel the councils of said city to make provision for, and pay the arrears of interest due upon its bonds, and to provide for the accruing interest. The question of the validity of these bonds was before this court and settled, in City of Williamsport v. The Commonwealth ex rel. Bair and Shenk, 3 Norris 487. In affirming the judgment in that case we said: “We do not mean to deprive the city of any special defence to any particular bond or bonds in “series A,” and not embraced in this suit.” This was intended, as the language implies, out of abundance of caution, to save the right of the city to make any special defence, not set up in that suit, to any special bond or bonds not embraced therein. It was not intended’, nor can we allow it to be used as a pretext for not paying the interest on all bonds whatever. It was a part of our judgment, “ that the treasurer of the city of Williamsport do forthwith apply any money now in the treasury of said city, and not otherwise appropriated, to the payment of the accrued interest or coupons now overdue on said bonds, known as “ series A.” The record now before us discloses the fact, that since our judgment was entered, October 4th 1877, the court below has been constantly engaged in an attempt to enforce our decree. It issued a peremptory mandamus on November 3d 1877, and the docket entries since that time and up to the month of April 1879, when the present writ of error and certiorari were filed, show an unusual degree of activity, with results not encouraging to holders of municipal bonds. Passing by those matters which are not material, we come to those orders of the court below of which complaint is now made, and which are assigned for error. First, we have the order of March 10th 1879, by -which the treasurer of the city of Williamsport was directed to pay the sum of $8000 on overdue interest, on bonds known as “ series A.” This order was made upon a rule granted February 11th 1879, on Daniel Longsdorf, treasurer of said city, to show cause why he should not apply the amount in his hands, as treasurer, in payment of overdue interest on the said bonds, which was due and payable prior to the third day of November 1877. To this particular order a writ of error was taken, and we are called upon to pass upon its propriety.

Somewhat similar rules to show cause had previously been discharged by the court below, upon the ground that a mandamus or statutory execution ought not to be enforced to the extent of withdrawing from the city treasury, the funds absolutely needed for the ordinary expenses of the city. A previous order to pay had been vacated ex parte, upon the city coming in and showing that all the money in the treasury would be required to defray expenses, up to September 1st 1878. Says the learned judge: “It was also contended that there was no occasion for the order; and it was testified by officials of the city, that the councils were proceeding to levy and collect the tax required by the mandamus in this case as early as practicable. In view of these facts, we discharged the rule. If what was then stated would he the case, had been actually carried out, there would have been no occasion for this rule. It is now one year since that hearing was had; the interest has not been paid, and the facts presented in answer to this rule are nearly identical with those testified before us at that time.” The learned judge, after ascertaining that the withdrawal of the sum of $8000 from the treasury would not embarrass, much less stop the wheels of the municipality for the fiscal year, ending April 1st 1879; made the order which is the subject of this contention. In doing so he was clearly right. In his own words it was giving “ to the creditors referred to in the rule, a small portion of what under the decree of the Supreme Court they were entitled to months since.”

We now come to the subsequent order of March 29th 1879. The city treasurer having neglected and refused to comply with the order of March 10th, to pay over the money referred to, he was duly notified that an application would he made to the Court of Common Pleas on the 29th of March 1879, for an attachment against him for contempt in disobeying the said order. The treasurer appeared on the said day, and filed an answer under oath, disavowing generally any intention of committing a contempt, and setting forth specifically as reasons for not having complied with the order of the court, inter alia, the following: 1. That the city solicitor had advised him to require all persons holding coupons for interest maturing prior to November 3d 1877, to give him the numbers of the bonds, the names of the owners, and from whom the title to the same was derived, in .order that he, the said treasurer, might report the same to councils with a view to ascertain whether or not there was any specific defence to the payment of any of the coupons so presented. 2. That the said treasurer had paid out of said sum judgments recovered on coupons amounting to $2999.29. There were a number of other matters set up in the answer which we do not consider it important to notice. The court below recognised the payment of $2999.29 as proper; but the remaining reasons were possibly regarded as frivolous, as on the same day the rule for attachment for contempt was made absolute, and the attachment directed to issue against Daniel Longsdorf, treasurer, “ unless he shall, on or before the third day of April next, pay the sum of $5000, now in his hands, upon those coupons maturing prior to November 3d 1877, which wore first presented to said treasurer for payment, under said order of March 10th 1879.” The treasurer did not pay, and before the 3d of April arrived, removed the record and proceedings to this court upon a writ of certiorari.

There was nothing in the answer of the treasurer to cause the court below to hesitate, much less to require discussion here. That it is the duty of the holder of a coupon, a thing that passes. by delivery like a bank note, to give a history of such coupon, with the chain of title at the counter where he demands payment, is a proposition that need not be seriously considered. A coupon is always numbered with the number of the bond from which it was cut. This enables the owners of stolen bonds to stop the payment of the coupons. But it was never supposed that by stopping the payment of the coupon, you could thereby ascertain if the bond were stolen.' If the city of Williamsport has a just defence to one or more bonds, the fact must certainly be known to the authorities, with the date and number of the bond, and the name of the person to whom issued, and a proper notice from them to the treasurer would enable him to decline payment for such reason when such coupons are presented. But payment ought not to be declined for frivolous reasons. In the absence of any notice from the city authorities not to pay particular coupons by reason of a defence to the bonds to which they belonged, the city treasurer incurred no responsibility by payment. The order of the • court would be a full protection to him: Monaghan v. The City, 4 Casey 207; In re Sedgley Avenue, 8 Norris 509. Equally untenable was the position, that because the amount of coupons presented was largely in excess of the amount of money on hand, $8000, he could not discriminate between them, and must therefore decline to pay any'of them.

■ A further objection was made to the orders of March 10th and March 29th, that the Act of Assembly of March 30th 1875, does not authorize a change of venue in proceedings by mandamus, and consequently the Court of Common Pleas of Columbia county, to which the cause had been removed, had no jurisdiction. It was certainly late to make this objection, after a- final decree in this court. We will, however, consider it as if the point had been made at an earlier stage in the proceedings.

The Act of 80th March 1875, Pamph. L. 85, provides, “That change of venue shall be made in any civil cause in law or equity depending in any courts of this Commonwealth,” in the particular cases specified in said act. It was not denied that the cause was removed for one of the reasons enumerated in the act, but it was alleged that a mandamus was not “a civil cause in law or equity,” and the case of Commonwealth v. The Commissioners of Lancaster County, 6 Binn. 5, was cited in support of this view. A careful examination of that case, however, will show that it is not authority for any such principle. It was a rule for a mandamus, issued out of this court, upon the commissioners. The jurisdiction was denied for the reason that the Act of 24th February 1806, declares that “the Supreme Court shall have no jurisdiction in civil cases.” The court sustained its jurisdiction upon the ground that it was manifestly the intent of the legislature by the act in question not to take' away the mandamus jurisdiction from the Supreme Court, for the reason that at that time the Common Pleas had no power to issue such writs. Says Tilghman, C. J.: “At the time the 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.” The court in placing a construction upon the language of the Act of 1806, very properly looked to the mischief to be remedied. Therefore, whilst it was admitted that the term “civil cases” in its broadest sense might include the case of a mandamus, yet in its application to the mischief, it must be held to mean “ civil actions, which in common parlance do not comprehend writs of mandamus, certiorari, habeas corpus,” &c, Turning now to the Act of 1875, it is plain to us that a mandamus is as much within the mischief sought to be remedied as any other- cause. Without going over the details of the act in which the causes for which a change of venue may be had, we will refer only to two of the reasons assigned: “Whenever the judge, who by law is required to try or hear the same, shall be personally interested in the event of such cause, or in the question to be determined thereby;” and 2, “Whenever any near relative of such judge shall be a party to any such cause, or interested in the event thereof.” These reasons for a change of venue apply with as much force to a mandamus as to any other form of proceeding. The act in question is remedial and must have a liberal interpretation. The tendency of recent legislation has been liberal in the matter of change of venue. This is noticeable in the Act of 18th March 1875, Pamph. L. 80, in regard to the change of venue in criminal cases. Whilst a mandamus is not in common parlance a civil cause, it is so in its broad sense, being really in tins case but a proceeding for the collection of money.

It is said in High on Legal Remedies, p. 10, sect. 8 : “ While in this country the writ (mandamus) has been regulated by constitutional and statutory enactments, it has lost but few of its ancient remedial incidents, and is still governed by common-law rules,' where such rules have not been abrogated. Though in form and name the proceedings partake somewhat of a criminal nature, yet the remedy is in substance a civil one, having all the qualities and attributes of a civil action. And since the proceeding has all the elements of an ordinary action at law, including parties, pleadings, mesne and final process, it is regarded as an original proceeding or suit, rather than tlje more final process of a suit, or a mode of obtaining execution on a judgment.” And in the case of Commonwealth ex rel. v. Commissioners of Allegheny County, 8 Casey 221, it was said by Mr. Justice Woodward, that “a mandamus under our statute assumes the form of an' ordinary action at law, and all questions properly arising are to be tried in the same manner as was formerly done at common law in the action for a false return.” We are of opinion that the case came within the Act of 30th March 1875, and that the cause was properly removed to Columbia county. It follows that the court had jurisdiction.

We regret to see a disposition, only too apparent upon the face of this record, to evade our decree of October 4th 1877. Perhaps too much importance has been attached to the fact that there was a difference of opinion between some of the members of the court as to the principles which should govern the case. Be that as it may, it is only proper to say that the court is á unit in the enforcement of our decree. No man or corporation in Pennsylvania is strong enough to successfully evade, much less resist the decree of this court. It has been attempted in the past, with what success is a matter of history. From the date of our decree to the present time, the city of Williamsport, has not, to our knowledge, voluntarily paid a dollar of interest to its bondholders. It is sincerely hoped that wiser counsels will ultimately prevail, and that we may see that obedience to law manifested which the Commonwealth has' a right to demand from every citizen and municipality within her borders.

This record is entirely barren of error, and the proceedings are affirmed upon each writ. It will be the duty of the court below to compel prompt obedience to its order.