Commonwealth ex rel. Griffith v. Cochran

Tilghman C. J. Although this court has in several instances granted rules on the secretary of the land office, to shew cause why a mandamus should not issue, commanding him to make out patents, yet no mandamus has ever issued; because these rules have been made in consequence of the wish of the board of property to know the opinion of the court, and to comply with it. In the case of the Commonwealth v. Tench Coxe, secretary of the land office, the propriety of this remedy was brought into question, but' not decided on, as the mandamus was denied on the merits of the case. The power of the court to issue writs of mandamus is confessed; it is grounded on an old act of assembly (22d May 1722), by which we have all the powers of the Courts of King’s Bench, Common Pleas, and Exchequer in England. But it is contended that this is not a Case in which that power can be properly exercised. It becomes necessary therefore, to consider the nature of the case. Without entering unnecessarily into its merits, it appears that on the 21st of April 1794, John Nicholson deceased', under whom Mr. Griffith claims, entered applications for two hundred and six warrants, containing 202,400 acres of land, for which he gave his check on the Bank of Pennsylvania, for 27,838 dollars 13 cents, to the receiver-general. On the 29th of April the check was presented, and payment refused by the bank. On the 14th of June of the same year, Nicholson tendered the amount of the check to the receiver-general who refused to receive it, having obliterated the credit entered to Nicholson in his books, at the time the check was given. The right of Nicholson under those applications, has after several assignments, become vested in Mr. Griffith. In 1805 the board of property made, an order that warrants for 80,400 acres, should issue on payment of the purchase money according t& law. The warrants were accordingly issued, the .usual purchase money paid, and surveys have since been returned, containing the quantity called for by the warrants, and a considerable surplus. Mr. Griffith, wishing to obtain patents on these surveys, applied to the secretary of the land office, to make calculations ascertaining the sum to be paid to the treasurer. A considerable difference of opinion prevails between the secretary and the agent of Mr. Griffith with respect to the balance due to the commonwealth, the secretary contending that interest should be paid from April 1794, — 103 — when the applications of John Nicholson were entered. The matter of interest I understand to have been the sole point of controversy, Mr. Griffith having been always ready to pay the balance of the principal, and all fees of office. The cause shewn against the mandamus is, that the secretary has always been ready to make the calculations, according to the principles laid down by the board of property to whom the case was submitted, and that in fact the calculations were made and offered to the agent of Mr. Griffith, who refused to receive them. The principles which govern the court, in issuing writs of mandamus, are well understood, and the counsel who argued this cause have not differed in that respect. Where a ministerial act is to be done, and there is no other specific remedy, a mandamus will be granted to do the act which is required. But where the complaint is against a person who acts in a judicial or deliberative capacity, he may be ordered by mandamus to proceed to do his duty, by deciding and acting according to the best of his judgment, but the court will not direct him in what manner to decide. This was the principle adopted by the Supreme Court of the United States in the case of the United States v. Lawrence, and it has been frequently recognised by this court, particularly in the case of the Commonwealth v. the Judges of the Court of Common Pleas of Philadelphia county. 3 Binn. 272. But it is said, that the act required of the secretary is purely ministerial, and enjoined on him by the third section of the act of the 29th March 1809. By this act, the office of receiver general is abolished, and it is directed that the secretary of the land office, “ shall make all calculations of “ purchase money and interest on lands sold or that shall be “ sold by the state, and direct the payment of the money by “ the applicant, with the price of the warrants, into the state “ treasury.” These calculations were formerly made by the receiver-general, who, as well as the secretary of the land office, was a member of the board of property. As the objection to the mandamus rests in a great measure on the order of this board, it will be proper to consider its nature and its powers. The late proprietaries established a board of property for superintending the business of the land office, which consisted of the principal proprietary officers, that is to say, — 104 — the governor for the time being, the secretary of the land °®ce> ^ surveyor-general, the receiver-general and the auditor. This board was applied to, and decided in all matters of difficulty, and although not recognised as a judicial tribunal, yet the business brought before it was verv important, and such as required great deliberation. We shall find however, that after the commonwealth took the affairs of the proprietaries into their own hands, they thought proper to clothe the board of property with judicial authority. JBv the act of the 5th of April 1782, the board of property was established and its powers defined, that is to say, they were “ to “ hear and determine in all cases of controversy on caveats,' “ in all mattery of difficulty or irregularity, touching escheats, “warrants on escheats, warrants to agree, rights of pre- “ emption, promises, imperfect titles, or otherwise, which “ heretofore have or hereafter may arise in transacting the “business of the said land office;” but it is provided that the courts of law shall be open to any party who is dissatisfied with the sentence of the board, as fully as if no sentence had been given. There are other legislative provisions, by which they have power to administer oaths in causes depending before them, and their decisions on caveats respecting lands in certain parts of the state, are conclusive, unless an ejectment is brought in six months, by the party against whom the decision is made. The constituent members of the board have been varied from time to time. It consists at present of the secretary of the commonwealth, the secretary of the land office, and the surveyor-general. According to the true intent of the act of 1782, if a difficulty arises in any particular department, it is the duty of the officer to refer the matter to the board, and such has been the conduct of the secretary of the land office on the present occasion. I do not consider the calculation of the purchase money as an act merely ministerial; for in order to ascertain the amount, the contract must be examined. The price of land has been different at different times, and in different parts of the state; and sometimes conditions have been annexed to the purchase, besides the payment of money. I can conceive many difficulties which may arise from these circumstances. Besides, the secretary of the land office may have reason to think, that there has been something wrong in the conduct — 105 — ,©f the applicants for land, or of the deputy surveyor or other officers, and in such case it would be his duty to stop the calculations till the matter is decided by the board. If the secretary had in this case refused to make any calculation, or take any step whereby the business of the applicant might be dispatched, it would certainly have been our duty to compel him by mandamus; but having taken measures for the decision by the proper authority, of a matter in which he conceives there is difficulty, and having offered to act according to the decision of that authority, he has shown sufficient cause against a mandamus, unless there is some other principle by which we are called upon to interpose. It has been said that there is such a principle, and that our interposition is, necessary to prevent a defect of justice. If by a defect of justice, it is meant, that no action lies against the commonwealth, it is clear that this would be no ground for a mandamus. For if the commonwealth by our constitution is not subject to an action, but with its own consent, then we have no right to do that indirectly by mandamus, which we have no power to do directly; and we might as well be called on to issue a mandamus to the state treasurer, to pay every debt which is claimed by an individual from the state. But although no suit can be brought directly against the state, yet the case of Mr. Griffith is not entirely' without remedy; for having tendered the money to which the state is justly entitled, he may enter on the lands and hold them, or in case the state grant them to other persons who take possession, he may support an ejectment against such persons. His situation, indeed, as to obtaining a complete title by patent, is not much different from what it would be, if his contest was with an individual; for we have no' court of chancery to compel a specific performance of a contract for the purchase of land. When the party entitled to a conveyance, does every thing necessary to be done, in order to obtain a decree for a specific performance, he stands with us in a situation to support or defend an action for the possession of the land. But even if there was a total defect of justice, I do not conceive that that consideration would authorise a mandamus against a member of the board of property, acting under the direction of the board, in a matter «n which they had a right to decide. Such a defect would — 106 — deserve the serious attention of the legislature; but they alone would be competent to provide a remedy. I have considered this case very attentively, because I am sensible that the state may suffer great injury from the suspense in which titles to large quantities of land is held. Uncertainty of title prevents the improvement of the country. But, on which ever side I view it, I find insuperable objections to a mandamus. My opinion is, that the secretary of the land office has shewn sufficient cause, and therefore this court should abstain from any farther proceeding. Yeates J. The present case comes before us, on a rule to show cause why a mandamus should not issue, commanding the secretary to prepare and deliver to Robert E. Griffith^ the usual calculations &c., preparatory to patenting certain lands. Return has been made thereto, that those calculations had been made agreeably to the decision of the board of property, on the 26th of October 1810, computing the interest on the whole purchase money from the 21st of April 1794, when the lands were applied for by John Nicholson. The relator, Robert E. Griffith, who is the surviving assignee of the warrants, has objected thereto, inasmuch as a former board of property before whom the matter was brought, have in their minutes made on the 14th of January 1804, recognised a tender of the large sum of 27,838 dollars 13 cents, in full of the purchase money of 206 warrants applied for by the said John Nicholson, as made on the 14th of June 1794; and that he and his assignees are exempted by reason thereof, from the payment of interest in the intermediate time. The secretary in his return, has relied on his conformity to the decision of the''board, in October 1810, whose directions in the case of an imperfect title to lands to be completed in the land office, he was bound to pursue. And it is now insisted by the attorney general, that this being a case wherein the fiscal concerns of the commonwealth are to be affected, the secretary of the land office, independently of the merits, ought not to be compelled to answer in this court, without a special law enacted for the purpose. Under these facts, the question is, whether a writ of mandamus ought to be awarded? The case has been minutely stated by the Chief Justice. — 107 — It is a high prerogative writ, which issues in all cases where the party has a right to have any thing done, and has no other specific means of compelling its performance. But such writs are not so convenient for the trial of title, as the usual common law actions, and are not to be unnecessarily multiplied. 2 Binney 262. Though a mandamus will lie to art inferior jurisdiction to compel that tribunal to proceed to judgment, it will never issue to prescribe what judgment shall be given. 3 Dall. 53., 3 Binney 275. It would be a waste of time to cite further authorities upon the point. But I cannot avoid mentioning, that shortly after I came on the bench, the court refused in July term 1791, to award a mandamus against Matthew Clarkson and others, commissioners of bankrupt, directing them to grant a certificate of conformity to one Freeport, who had been examined before them, though the court differed with the commissioners as to his answers. It is alleged here, that Mr. Griffith may enter on these lands if vacant, and defend himself at law, if attacked; and if any other person enters adversely to his title, he may prosecute his writ of ejectment against him, and try his right. It is true that he cannot by these means obtain his patents, whereby he may convey a complete legal title to purchasers; but he has the same remedies, and stands in the same situation, as any other person who claims lands under articles of agreement, if from the circumstances of his case he would be entitled to specific execution, in a court of equity. By an act of assembly passed the 5th of April 1782, a board, of property was constituted, with power “ to hear and deter- “ mine in all cases of controversy on caveats, in all matters “ of difficulty or irregularity touching escheats, warrants on “ escheats, warrants to agree, rights of preemption, pro- “ mises, imperfect titles, or otherwise, which heretofore “ have, or hereafter may arise, in transacting the business “ of the land office.” Other organizations of the board, have been made by two other laws, passed the 8th of January 1791, and the 29th of March 18Ó9; but their powers continue as granted under the first law. It is contended on the part of the relator, that the secretary of the land office is merely a ministerial officer, in making — 108 — these calculations, and that the law must be his guide in that 'particular. Judicial knowledge certainly is not required in the performance of arithmetical operations: but whoever will carefully examine the act of the 8th of April 1785, (2 Dall. St. Laws 30,) which is one of the laws under which these warrants issued, will find it to be one of the most unintelligible contradictory acts, which appear in our statute books. This I well know, that in the discussion of a motion for a new trial, between the Lessee of Willinck and others, and Morris and Nicholson, in December term 1800, the members of this court, after full argument by learned counsel, expressed very different opinions of the true construction of it. It appears to me, that if any difficulty occurred to the secretary in the investigation of the relator’s title to these lands, or as to the principles upon which the calculation of the purchase money should proceed, he was justifiable in convening the board of property, and requiring their directions in the premises, to which he was afterward bound to conform; and that though this court should entertain an opinion very different therefrom, we ought not to enforce our decision upon the secretary by a writ of mandamus. Mr. Griffith is not concluded by the decision of the board, but may contest it at law, when the legal question will come before the court between proper parties. It cannot be the wish of the legislature to hang up the title in suspense, and thereby injure the public interest; and I should presume, that the legislature upon a proper application to them, would put the matter in a train for a speedy decision. I have cautiously avoided saying any thing on the merits of the case, which might lead to prejudice the claim of either party. At present, I am of opinion, that the mandamus prayed for should be denied. Brackenridge J. having been u'nable to attend the argument, in consequence of ill health, gave no opinion. Peremptory mandamus denied.