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THE SUPREME COURT
EASTERN DISTRICT, DECEMBER TERM, 1835.
[PHILADELPHIA, DECEMBER 24, 1835.]
COMMONWEALTH ex. rel. PRICE AND ROBERTS, against THE COMMISSIONERS OF THE COUNTY OF PHILADELPHIA.
THE SAME ex. rel. CLYDE, against The Same.
Mandamus to the Commissioners of the County of Philadelphia, to draw orders on the
County Treasurer refused, where it appeared by the return to a rule to show cause that there was no money in the County Treasury, applicable to the purpose.
On a previous day, Price, for himself and Hugh Roberts ; and G. L. Ashmead for Thomas Clyde, had obtained rules to show cause why a mandamus should not issue to the Commissioners of the County of Philadelphia, commanding them to draw orders on the County Treasurer for the payment of certain sums of money alleged to be due to the relators, under the following circumstances.
In consequence of the opening of certain streets in the City and County of Philadelphia, damages had been assessed pursuant to the Acts of Assembly, in favor of several persons whose property had been taken away for the purpose. The Court of Quarter Sessions confirmed the report, and ordered the amount awarded in VOL. 1.
(Price v. County Commissioners.) the several cases to be paid by the County Treasurer. In the case of Roberts, it appeared by affidavit, that application had been made to the County Commissioners, for the necessary order on the Treasurer, about the 8th of April, and at several subsequent times. In the case of Clyde, the order of the Quarter Sessions was made on the 11th of December, 1835; and application was made forthwith. The County Commissioners declined compliance with the order of the Quarter Sessions, on the ground that there were no funds in the County Treasury applicable to this purpose..
And now, on the return of the rule, Dallas for the County Commissioners read their affidavit, setting forth in substance:
That they had ascertained from the Treasurer of the County, that there did not exist at the time, and had not existed during the current year, adequate funds for the payment of the said damages; the moneys in the Treasury having been applied to the payment of claims of a prior date, and to the current expenses of the County. That the deficiency had arisen from circumstances beyond their control. Desirous to levy for the public exigencies a sufficient sum, at the highest rate authorized by law, to wit: “at the rate of one cent in every dollar of the adjusted valuation" of real and personal property, they submitted their exposition of the wants of the County to “ The County Board," as they were bound to do, on the 20th of April, 1835, and asked their consent and approbation to the assessment of the County rates and levies. But the Board did not assent, but restricted the assessment to the rate of three-quarters of one cent on every dollar, making a difference between the sum which they asked to be empowered to raise, and the sum which they were limited to, of $219,267, and causing an estimated deficiency for the current year of about $250,000. That they were restricted by the act of 10th April, 1834, entitled, “An act for erecting the County Board,” &c., from laying any tax or borrowing any money without the consent and approbation of the said County Board ; and by a proviso in the sixth section of the same act, no meeting of the said County Board could be held at any time during the session of the legislature.
After setting forth particularly the state of the County funds, the return concluded thus:
“ The undersigned do not think it their duty, as public agents, to continue drawing orders upon a treasury which they know to be in effect empty. They have been obliged heretofore, by a strong sense of the necessity of particular cases, to do so; but in the exercise of the discretion with which on this point they deem themselves vested, they cannot continue the practice or extend it to a class of cases of mere personal hardship, without subjecting the interests confided to their supervision and care to great dangers, much discredit, and almost inextricable confusion."