Heffner v. Commonwealth ex rel. Kline ( 1857 )

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 Cambridge, to be an advocate of the Court of Arches; Lord Ellenborough observing, “ there ought in all cases to be a specific legal right, as well as the want of a specific legal remédy, in order to found an application for a mandamus. But here nothing appears to show that Dr. Highmore has any legal right to what he claims, more than any of his majesty’s subjects.”

The insufficiency of an inchoate right (though resulting out of a statutory duty) to support mandamus at the suit of a private relator, was strikingly illustrated in Sir Charles Napier’s Case, 12 Law and Equity R. 451. He was commander-in-chief of Her Majesty’s forces in India, and several Acts of Parliament had charged the expense of the military establishment in that country upon the East India Company, but yet the Court of Queen’s Bench refused a mandamus against the company to pay Sir Charles’s salary, on the ground that the duty ranged itself under that class of obligations which is described by jurists as imperfect obligations — obligations which want the vinculum juris, although binding in moral equity and conscience, of which the performance is to be sought by petition, memorial, or remonstrance, not by action in a court of law.

Nor must the right to be enforced be a mere trust, else the party will be left to his remedy in equity: The King v. The Marquis of Stafford, 3 Term R. 646.

With these principles before us, let us inquire if this relator has such a specific legal right, without other remedy, as entitles him to the writ of mandamus, a writ which, as Judge Gibson said, in Commonwealth v. Canal Commissioners, 2 Penn. R. 518, involves an exercise of extraordinary powers which fit it for use only in extraordinary cases, where there would otherwise be a failure of justice.

He shows an Act of Assembly, passed in 1850, which enjoins and requires the town council of the borough of Pottsville to open á certain alley in said borough; that he had notified them of said law, and requested them to open said alley, which they had refused to do. He also sets forth that he is the owner of a lot of ground with two dwelling-houses erected thereon, through which the alley must pass, and that the opening of said alley will greatly appreciate the value of his said lot of ground.

Now, granting that the relator has an interest in the proposed alley, and that, owing to the accidents of his position, it “ will make him two town lots out of what was one before,” and thus benefit him more than his neighbours, yet it is manifest that his interest, in kind if not in degree, is common to all. the inhabitants of Pottsville. The Act of Assembly was a public statute — the alley was to be a public highway, and every citizen of the Commonwealth will have an equal right to the free use and enjoyment of it. Some property owners may be injured by opening it, but this is no reason why the public authorities should be restrained by the courts from exercising their powers; and yet it would be as good ground for an injunction at the suit of a private complainant, as the incidental advantages anticipated by the relator are for the mandamus he wants. Be it that he has no other remedy, he has no right to the one he seeks, because he has no interest that is specific — that is definite and peculiar to himself, and which is, at the same time, a legal cause of action. He has no more right to call on the municipal authorities to open an alley to put money into his pocket than he would have to require them to build him a house. The ground on which his action rests is his right of' passage — his right to enjoy the alley as an alley — and this right is not peculiar to him, but common to the whole town, and therefore a subject of public concernment.

In Reading v. The Commonwealth, 1 Jones 196, mandamus was refused to private relators to remove obstructions from a street, and though the ground of the judgment was that there was remedy by indictment, it is apparent the court did not recognise any such interest in the relators as would entitle them to this writ. The nuisance in this ease, said the chief justice, is a public one, and it does not appear from the statement of the relators that they have received any special injury from it to entitle them to any civil remedy whatever. The obstruction of the sidewalk is not more injurious to them than it is to the inhabitants at large.

The propriety of the rule which commits public affairs to public officers is apparent in this case. The legislature enacted that an alley should be opened in Pottsville, the location of which is described with a precision which indicates rather private dictation than legislative discretion. But the legislature committed the duty of opening it to a public municipal corporation, whom they had previously called into being and invested with large discretionary powers over the streets, roads, lanes, and alleys of the borough, and to whom was granted also a limited power of taxation. The town council allege that the borough is without means to open the alley, and that it will be useless when done; and they submit the borough surveyor’s report, showing that it must overcome an elevation of 75 feet in a distance of 230 feet, which is more than 16J degrees.

Now, under such circumstances, it will be soon enough for the courts to interfere to open that alley when those public officers whose duty it is to see that the laws are executed move the courts to action. The law was enacted for the public, and if the public acquiesce in its non-execution, the courts, who are only other agents of the public, have no duty or power in the premises. The law was not made for the relator, and confers on him no such rights as the courts can be called on to, guard, and therefore his complaint ought to have been dismissed at his costs.

The judgment is reversed and judgment is entered here for the defendants, on the demurrer for costs.