Keasy v. Bricker , 60 Pa. 9 ( 1869 )

The opinion of the court was delivered, by

Agnew, J.

— The steps which precede the issuing of a mandamus are not to be assimilated to a proceeding in equity, with all its attendant pleadings. The ordinary practice is to direct an alternative mandamus to issue when the court is satisfied on affidavits that the writ should be issued as a matter of justice and right, to compel the performance of an act or duty, for which otherwise there would be no-adequate remedy. This gives the party to whom it is directed an opportunity to do the act or to show good reason at the return of the writ why he should not do it. He does this by making a return to the writ. It is at this point the pleadings in the cause begin. The return may traverse the facts alleged in the writ; of admitting them may avoid performance by stating sufficient facts in excuse. The relator may then demur, plead to, or traverse the facts set forth in the return. Such is the ordinary practice recognised by the act relating to mandamus, but in this case all the pleadings were preliminary. First there was a petition, and then an amendment or substitute called an “ amended bill.” In reply a paper was filed called on the record “reasons why a mandamus should not be awarded,” but in the paper itself styled a “ return to the alternative mandamus.” The first branch of this paper consists of numerous technical objections to the “petition” and “amended bill,” and the second relates to the merits. Our opinion on the merits renders it unnecessary to consider this irregular mode of raising the issues in the case.

The claims for repayment by taxation set forth in the amended bill are two principal demands: 1st, for money subscribed to pay bounties; 2d, for money borrowed to pay bounties of individuals, by a committee of the citizens. It seems to be quite clear upon the evidence that the money subscribed was a voluntary and unconditional donation, and that no provision was made for its repayment by taxation. At the public meetings there were strong objections made to raising the whole sum necessary to pay bounties by general taxation. The total sum was estimated at about $4000 ; after much discussion it was resolved to raise from $1800 to $2500 by subscription, and the remainder by taxation. The result is stated by the Rev. William Stuart, who says, “ my understanding was that we would raise by taxation the difference between the amount subscribed and the amount necessary to fill the quota of the township.” The money borrowed was $1482. The borrowing of this sum on the condition of its being repaid by taxation appears to have had the general assent of the citizens, and the answer admits it should be paid, and alleges that the directors would have paid it by taxation, had not the relators persistently demanded payment of the subscriptions, which the/" combined with the other claim, and endeavored to compel the directors to assess a tax for both. There is a claim also of $177 made by the committee for .their own services and expenses; but it .is no proper charge against the district. The committee was a voluntary body representing the voluntary action of the citizens and acting without compensation. Neither the law nor the action of 'the meetings recognise this as a debt against the township.

The question to be considered is whether the borrowed money is a legal demand against Winfield township, under the special bounty laws applicable to the county of Butler. As a matter of fact, it was lent to the committee by individuals on the condition of repayment by taxation, and the money was used to the amount of $1200, in paying bounties to volunteers enlisted and credited to the quota of the Winfield district. This condition, however, was only agreed upon between the lenders and the committee of the citizens, who gave their own notes as the security, taking an agreement of upwards of twenty leading men to indemnify them, or rather to share the liability. There was no agreement or understanding between the lenders and the school directors, that the money should be lent on condition of its being repaid by taxation. Another fact in the cause is, that though the condition to refund the money borrowed by means of taxation was agreed to at a large public meeting of the citizens, a majority of the electors of the district did not petition the directors in favor of taxation. These facts raise the question, whether the 3d section of the Act of .14th April 1864 applies to the money thus borrowed, so as to bring it within the operation of the 2d section of the supplement of 22d August 1864, to compel repayment by mandamus.

The 1st section of the Act of April 14th 1864 is not mandatory, but merely empowers the directors to levy and assess taxes to pay a bounty to each volunteer enlisted and credited on the quota of the district. This extends by force of its terms to the entire quota. But in the 3d section, the directors are not only authorized but required to repay the money lent or advanced by individuals and paid to volunteers, on condition of repayment by taxation; but the repayment is to be out of the moneys levied and assessed under the 1st section. The only authority to lay taxes is that contained in the 1st section. Thus the 1st and 3d sections are evidently repugnant to each other, unless the party assenting to the condition mentioned in the 3d be the school directors themselves. If the parties to the condition of repayment be the lenders and committee only, the directors could not be required to make repayment out of taxes they had never consented or determined to lay. But if they consented to the condition, that the money borrowed to pay bounties should be repaid by taxation, it would be virtually a determination on their part to levy and assess a tax under the 1st section, in order to perform the condition. The two sections would then be consistent with each other. This brings us to consider the effect of the supplement of the 22d of August 1864. ' Its 1st section changes the effect of the 1st section of the Act of 14th April 1864, by requiring the directors to levy and assess taxes to pay bounties at the petition of a majority of the qualified electors of the township, and if they refuse, the court is authorized to compel them by mandamus at the petition of ten citizens. Thus, the legislature intended that when a majority of the electors of the district were favorable to a relief from the draft by means of taxation, the directors should not stand in the way. The 2d section of the supplement then directs that if the directors refuse to levy a tax under the 3d section of the first act to repay money borrowed, the court shall have power to compel them to do so by mandamus. 'In this instance, a majority of the electors is not required to petition the directors. If, therefore, the 3d section of the first act be an unlimited authority conferred upon individuals or committees to contract loans to pay bounties, and to bind the district to repayment by taxation without the consent of the directors, the supplement superadds a power to enforce these outside liabilities by a writ of .mandamus. But it cannot be well supposed, that the legislature intended to confer such an unlimited power to bind the district, by the action of individuals or even of committees, without the sanction of either a majority of the electors petitioning the directors, or of the directors representing the entire body of the citizens. But if the consent of the directors be required to the condition of repayment of such loans by taxation, both the acts would harmonize as well as the 1st and 3d sections of the first act with each other. Then the authority of the court to compel taxation by mandamus would be confined, as it clearly should be, to cases where the loans had been consented to by the directors, and the township preserved from inordinate taxation. It conforms also to the principle that the people should not be taxed except by their own consent, or that of officers truly representing them. Such was the interpretation given to the General Bounty Laws of March 1864, in the case of Donegal v. Oldweiler, 5 P. F. Smith 259.

Eor these reasons the judgment is reversed, and the writ of mandamus must be quashed.