Commonwealth v. Fitler

Opinion, Mr,. Chief Justice Paxson: The exhaustive and interesting review of parliamentary law with which the learned counsel for the relator have favored us in their paper-book, has failed to convince us that the writ of mandamus prayed for should go out. It is possible that cases may arise in which it would be the duty of the mayor and clerks of councils to certify an ordinance, and that, upon their refusal to do so, the performance of such duty would be properly compelled by mandamus. But in this case we are asked to require them to certify, as an ordinance of the city, an ordinance which the record shows was vetoed by the mayor, and which subsequently failed to pass councils over his veto. We are asked to do this upon the bald technicality, as asserted by the relator, that the mayor by a mistake returned the ordinance, with the veto, to the wrong chamber; that is to say, he returned it to the select council, from which he received it as a select council bill, when he should have returned it to the common council, where the relator alleges it originated. This, it will be seen, raises the serious question whether it is a lawful ordinance ; and the mayor and clerks of councils, neither of whom is learned in the law, are required by the relator to practically decide this question, or to do what amounts to the same thing, certify [141] it as a lawful ordinance, under the provisions of the act of March 21,1866. We do not think the validity of the alleged ordinance can be decided in this summary manner. The writ of mandamus was not intended for any such purpose. Such writ has never been held to be a proper remedy, except where there is a clear legal right in the relator, and a corresponding duty of the defendant, and the want of any other adequate, appropriate and specific remedy: Commonwealth v. Pittsburgh, 34 Pa. 496 ; Lehigh Water Co.’s App., 102 Pa. 515. This is sufficient to dispose of the case. We will say, however, in addition, that while it is true that the act of May 23, 1874, requires that the mayor shall sign a resolution or ordinance if he approve of it, or return the same to the branch of councils wherein such resolution or ordinance originated, within ten days, or at the next meeting of councils after ten days have expired, etc., yet we regard it as at least doubtful whether the ordinance in question originated in common council, within the meaning of this act. It is true it was first introduced into the common branch, and then referred to a committee, the chairman of which was a member of the select council. The committee reported it to the select council, which body passed it finally and then sent it to common council as a select council bill. The common council then passed it, and sent it back to the select council, the clerk of which certified it as a select council bill to the mayor, who returned it, with his veto, to that body. While the ordinance was first presented to common council, it does not follow as a conclusion of law that it originated there. In many of the parliamentary authorities and precedents cited by the learned counsel for the relator, the words “ presented ” and “ originated ” are used interchangeably, but the difference in manner of procedure between city councils and the parliament of England, the congress of the United States, and the legislatures of most of the states, has been overlooked. In most, if not all, of the lasiv-named bodies, a bill when introduced in one house is never sent to the other, until after it has passed the body in which it was introduced. Hence, we can see why, in such cases, the words have been used interchangeably. But with councils it is different. The committee on law, to which this ordinance was referred, was a joint committee, composed of members of both branches, [142] and when the committee reported it to the select branch, it became the ordinance of the latter, for all practical purposes. Common council paid no further attention to it, until it had been passed in the upper branch and sent to them. As an ordinance, it may be said to have had no existence, and hence not to have originated in either branch, until some action had been taken upon it. So far as the act of 1874 requires the mayor to return an ordinance to councils within ten days, it is mandatory, and, by his failure to do so, the ordinance would be as valid as if he had signed it. But the direction to return it to the “ branch of councils wherein such resolution or ordinance originated ” is merely directory. That is a matter for the convenience of councils, and it is difficult to see how any injury to the public interests could possibly result from an error or oversight of this character. The main matter, the one in which the public are concerned, and the neglect of which might imperil the public interests, is the return of the ordinance to councils within the ten days; all the rest is unimportant detail. So far from there being any serious irregularity in regard to this ordinance, we are of opinion, under the practice prevailing in councils, the mayor returned it to the proper chamber. The corporation, appellant, has not even the color of right in seeking to override the will of the municipality. Judgment affirmed.