Drexel v. Man

[397] The opinion of the Court was delivered by Gibson, C. J. It is sffange that the writ of mandamus should still be supposed to give remedy in a case like the present. It is true that it does so in New York, as appears by The People v. The Judges of Washington County, (2 Caines’ R. 97), the secret of which is, that the matter is regulated there by a particular statute of the state. I have seen no case, English or American, which indicates that it may be used for the purpose as a prerogative writ. In England it certainly may not; for we are told by Lord Coke, (2 Inst. 426), that the proper remedy is a writ specially framed on the stat. Westm. 2; and accordingly we find a form for it in the Register, page 182, setting forth the circumstances of the case, and commanding the judges, if they be true, to affix their seals to the bill. If they return that they are untrue, the superior court proceeds no further, but leaves the complainant to his action for a false return, in which their truth is tried according to the course of the common law. Such a remedy certainly resembles an alternative mandamus; still it is not a prerogative writ, but specific, grounded on a statute. That no instance of its use is to be found, was said by counsel in Bridgman v. Holt, (Show. P. C. 122), to be because no English judge had ever refused to allow a proper exception. However that may be, recourse might certainly be had to it there, and a writ might be framed in conformity to it here. But if we have no precedent for an actual recourse to it, neither have we a precedent for a successful recourse to a mandamus as a substitute for it. In place of that, it was very seriously doubted in The Commonwealth v. The Judges of the Common Pleas, (3 Binn. 273); The Same v. The Same, (1 Serg. & Rawle 187); Morris v. Buckley, (8 Serg. & Rawle 211); and in Kolb’s Case, (4 Watts 154), whether a mandamus lies to a county court for any purpose whatever. The point has not been decided, nor is it necessary to decide it now; for it has never been sup [398] posed that it lies to compel performance of a judicial function in a particular way. Thus it was held in the first of the cases just quoted, that it lies not to compel the reception of an appeal; or in the second, the admission of an attorney to the bar. So far was the principle carried in Griffith v. Cochran, (5 Binn. 87), that it was applied to the function of an executive officer acting in a deliberative capacity. Is not the sealing of a bill of exceptions a deliberative act? The exception is written by the party who alleges it, and the fact is judged of by him who, of all others, is most competent to determine whether it is truly written, because his eyes and ears have taken in the whole transaction. And yet counsel come here for the interference of a court which knows nothing of the matter but what it gleans from affidavits, to com* pel him to act in a particular way, though at his peril, on an assumption of facts and circumstances which he may know to be unfounded. But that is not all. We have used the mandamus only as a process in the last resort: never where there was a specific remedy. Thus it was refused in The Commonwealth v. Rosseter, (2 Binn. 362), where the object was to restore the relator to a pew in an incorporated church, because he had a remedy by action for a disturbance; and in The Commonwealth v. The Canal Commissioners, (2 P. R. 518), it was said that though the writ is grantable of common right, yet it is only where it is necessary to prevent a failure of justice. The principle is more emphatically asserted by Lord Hardwicice, in The King v. Wheeler, (Cases Temp. Hardw. 99), in saying, “ the reason why we grant these writs is to prevent a failure of justice, and for the execution of the common law or of some statute, or of the King’s charter, and never as a private remedy to the party, except on the statute of Anne, and that stands on another footing : nay, the old cases went so far as to refuse a mandamus in all cases where an assize lay -, and though the court is not so strict now-a-days, yet it shows in what light these writs are considered.” Now the writ grounded on the statute of Westm. 2, would be much more manageable than an assize. Again, in The Commonwealth v. The Commissioners of Philadelphia County, (5 Rawle 75), the court would not award a mandamus to settle the validity of an election, but put the parties to a quo warranto in order to try the contested facts by a jury. As, then, there is a specific remedy for the case before us, by the form of writ in the Register, the rule might be discharged for that reason alone. But we are bound to take the facts returned to be incontrovertible, and the judge has returned what would prevent us from awarding this extraordinary writ were we otherwise competent in such a case to do so. Rule discharged.