Overseers of Porter Township v. Overseers of Jersey Shore

Chief Justice Agnew

delivered the opinion of the court, October 10th 1876.

The Court of Common Pleas has power to issue writs of mandamus “to all officers and magistrates, elected or appointed, in,or for the respective county, or in or for any township, district or place within such county, and to all corporations being or having their chief place of business within such county:” Act 14th June 1836, sect. 18. Overseers of the poor are officers elected in the several townships, as districts for the poor, and are therefore subjects of this high power, unless special jurisdiction has been conferred upon the Court of Quarter Sessions in respect to the subject-matter, or a special remedy has been provided by statute, or an adequate remedy otherwise exists. The Quarter Sessions has no power to enforce the acceptance of a pauper under an order of removal, that has not been appealed from. The provision of the poor law, imposing a penalty of twenty dollars under the 18th section, to be recovered before a magistrate, under the 43d section, is not a remedy to enforce performance of the duty. It is but a punishment for nonperformance. A remedy is that which is used to enforce a right or the performance of a duty, and unless it reaches the end intended, and actually compels performance of the duty, it is not adequate. The duty of maintenance being ascertained judicially, it is the right of the township procuring the order of removal to have it executed, and the duty of the township to which the removal is made to receive and maintain the pauper. This duty must be enforced in the interests of humanity and justice. A penalty may punish the wrong of the- officer, but does not enforce the duty of the township to receive and maintain. After payment of the penalty the duty still remains, otherwise the right of the removing township is without remedy, and the pauper is not maintained and cared for, and suffers in the inhuman contest. So remorseless often are avarice and meanness, they will pay the penalty to escape the heavier duty of continued support. It cannot be said, therefore, that the provision of the 18th section for a penalty is either an adequate remedy or a statutory remedy, which alone can be pursued, according to the Act of 1806.

It remains to inquire into the appropriateness of the remedy by mandamus. The law as to the exercise of the power to issue the writ is pretty well settled. There must be a specific legal right and the want of a specific legal remedy. When the legal right has not been ascertained or a remedy exists sufficient to enforce the right claimed, the writ of mandamus will not be granted. It is a high prerogative writ, to be used rather as a last resort than a common mode of redress. Hence, the court granting it will be careful to examine the circumstances and will exercise a sound discretion in doing so. See the following cases: Commonwealth v. Rosseter, 2 Binn. 360; Commonwealth v. Mitchell, Clarke et al., 2 Penna. 517; Hester’s Case, 2 W. & S. 416; Reading v. Commonwealth, 1 Jones 196 ; James v. Bucks County, 1 Harris 72; Heffner v. Commonwealth, 4 Casey 108. An examination of this case will show that the writ ought to have been granted. There was a regular warrant of removal granted by two justices, finding that the pauper had become chargeable upon Porter township for temporary relief — that she had not gained a legal settlement therein — adjudging that her last place of legal settlement was the poor district of Jersey Shore, and commanding the overseers of the poor of Jersey Shore to receive and provide for her. These overseers refused to receive the pauper, but did not appeal from the oi’der of removal, and in their answer to the petition for the mandamus make no denial of the facts, but in effect demur to the right to have the writ. But the overseers of the poor had no right to refuse to accept the pauper under a regular order of removal. The judgment of the justices was conclusive until regularly reversed on an appeal, and its effect was to relieve Porter township from the duty of support. In the face of this order, the overseers of Porter could not continue to maintain the pauper. Humanity and justice, therefore, demanded that while the order continued in force, the duty of maintenance should fall upon Jersey Shore. If aggrieved, Jersey Shore had a remedy by appeal. The pauper was not to suffer meanwhile. The conclusiveness of the order is established by Overseers of Sugarloaf v. Directors of Poor of Schuylkill, 8 Wright 481; Directors of Schuylkill v. Overseers of Montour, Id. 484; Overseers of Nippenose v. Overseers of Jersey Shore, 12 Wright 402. An action on the case would not lie on behalf of the pauper to enforce the order, and a verdict for damages would be no proper substitute; and what would become of the pauper in the meantime, or who would undertake her cause ? The writ of mandamus is the only remedy left, and it is clearly applicable: Commonwealth ex rel. Thomas v. Commissioners of Allegheny, 8 Casey 222; Borough of Uniontown v. Commonwealth, 10 Id. 293; Hamilton v. Pittsburgh, Id. 496 ; Howe v. Commissioners, 11 Wright 361.

We think the learned judge below erred in refusing the mandamus, and that legal right, as well as justice and humanity required him to compel the overseers of the poor of Jersey Shore, by mandamus, to perform the duty of receiving and maintaining the pauper cast upon them by the order of removal.

The judgment refusing the writ is therefore reversed, and a procedendo awarded; and the record is ordered to be remitted for this purpose.