Williams v. Controllers , 18 Pa. 275 ( 1852 )

The opinion of the Court was delivered, by

Lowrie, J.

Where there can be no execution, there can be no action, and as a levari facias is the only execution proper on a judgment on a mechanic’s lien, and as that sort of execution is not allowed against a county, it follows that this form of action cannot be sustained, if these defendants come within the meaning of the word “county”. The Execution Act of 1836, s. 72, would seem to consider such a body as coming within the spirit of the description, for it excepts from the ordinary execution against corporations, all counties, townships, and “other public corporations and the impolicy of such an execution against such a corporation is illustrated by Mr. Justice Kennedy, in Wilson v. The Commissioners of Huntingdon County, 7 W. & Ser. 199.

“ The first school district of Pennsylvania,” is the city and county of Philadelphia, or in other words, the county of Philadelphia including the city. The controllers are therefore the officers of the county in that part of its public business which relates to public schools. If they are sued, they are merely the agents of the county to attend to the suit. The county is in fact the party under a particular name, and it must provide the means of satisfying the judgment, if one be obtained. They represented the county for school purposes before, they were incorporated, and their relation is in no way changed by the fact of incorporation. It is abandoning substance and standing upon words, to say that their corporate name is anything but a name of the county of Philadelphia, indicating a particular aspect of its interests. And no party suffers by being limited to the remedy by mandamus, a very good and effectual writ, if adopted and executed according to the spirit of the law.

The claim here is for materials furnished by persons who never had any contract with the controllers, and who seek to make the county liable, because the builder to whom they sold the materials has failed to pay them. Such a lien may be allowed against private persons, without implying that the public and its officers should also be held to the duty and risk of seeing that all the workmen and material men are paid their claims before they settle with the man with whom they contracted to do the whole work. If such is the duty of school directors, they fill an unrewarded office at a risk, that is not generally taken into account.

Judgment affirmed.