#### Commonwealth of Pennsylvania *versus*Sheehan, Wilson and Roop, Commissioners of Mifflin County.

1. By act of Assembly of February 1st, 1871, tbe commissioners of Mifflin County were required to erect a bridge over the Juniata Kiver before November then next, to buy a bridge at Mattawana at not more than $8000, and to borrow $25,000 for these purposes. The commissioners refused to build the bridge. Two of them answered to an alternative mandamus out of the Supreme Court, that there was no money in the county treasury, that they ought not to put a debt on the county which it could not pay, that the act could not be carried into effect without a larger loan than $25,000, which could not be negotiated ; they could not provide means during the present year for either bridge ; that the object being purely local and private, and not of public utility, an act could not compel them to execute it; that indictment, not mandamus, was the proper remedy; that the bridge would be on private property, while there was no provision for compensation; the legislature could not require the purchase of a bridge from an incorporated company; that an act forbade the erection of a free bridge over the Juniata within one mile of a toll-bridge, as this would be; that the act of 1871 was unconstitutional, as creating a loan for a debt not existing, etc. *Held,*that the answer was insufficient, and a peremptory mandamus was awarded.

2. Defendants moved to quash the writ, because it was against the individual officers, whilst the duty was on the county; that mandamus did not lie to enforce a public duty against a public officer, indictment being the remedy. The Supreme Court refused to quash the writ.

3. After the mandamus was issued, on a bill by citizens of Mifflin County, the associates, without the president judge, awarded a special injunction restraining the commissioners from raising money to execute the act; they answered a rule for an attachment against them by setting up the injunction. *Held,*insufficient. An attachment for contempt was issued.

4. The defendants having been brought in on the attachment, they by affidavit averred that they had contracted for the construction of the bridge ;. the Commonwealth replied that the contractor was irresponsible, without means, and unable to give security ; this was admitted by defendants to be true. The court declared the matters in the affidavit to be evasive, and a subterfuge, and sentenced the defendants to pay a fine of $500 each.

May —, 1872. —

Before Thompson, C. J., Read, A&new, Sharswood, and Williams, JJ.

This proceeding was mandamus, at tbe relation of the attorney-general of Pennsylvania, to James Sheehan, Henry S. Wilson, and Thomas Roop, commissioners of the county of Mifflin.

The suggestion and petition for the writ were tiled May 2d, 1871, and a writ of alternative mandamus awarded.

On the 8th of February, 1871 (Pamph. L., 26), an act was passed requiring the commissioners of Mifflin County to cause a bridge to be erected over the Juniata River from a point in the borough of Newton Hamilton, to the laud of Mrs. Wharton, and the commissioners were directed to provide means and have the bridge completed before the 1st of November then next. They were required also to purchase *133from the Mattawana Bridge Company, their bridge across the Juniata at McVeytown, at a valuation to be put thereon by three disinterested citizens appointed by the Court of Quarter Sessions at the next session of the court, the appraisers to make report to the next court, and the commissioners then to draw their warrant on the county treasurer in favor of the bridge company for the amount of the appraisement ; on the payment to the bridge company, the bridge should be vested in the county of Mifflin, and be free for the use of the public; provided that the appraisement should not exceed $8000. If the bridge company should refuse to sell the bridge at the price of the appraisement, the commissioners were required to cause a bridge to be erected at the expense of the county, over the Juniata at McVeytown, at a suitable site, to be selected by the commissioners, and they were directed to provide means to cause the bridge to be erected as speedily as possible. For the purpose of carrying out the object of the act, the commissioners were authorized to borrow $25,000 and issue bonds therefor.

The suggestion set out, the act of Assembfy; that the defendants were commissioners of Mifflin County ; that on the 9th of March, 1871, certain citizens of the county requested them to proceed to build the bridge; that on the 5th of April, 1871, the commissioners passed the following resolution :

“ That we do not recognize the binding obligation of said act of Assembly, and do hereby refuse to proceed to erect said bridge.”

That the commissioners still refused to erect the bridge.

The writ was allowed, returnable May 15th, 1871, and was served on all the commissioners.

On the 16th of May, 1871, Roop, one of the commissioners, and president of the board, made return to the writ, averring that he never refused to recognize the binding obligation of the act, and had always been willing to execute it; that when the resolution of the commissioners was under consideration he voted against it, and it was carried by the votes of the other commissioners.

The other commissioners, May 24th, 1871, made the following return:

* * * * *

3. A good and sufficient public bridge at Newton Hamilton cannot be built, according to the provisions of said act, for a sum less than twenty thousand dollars ; or in case of a purchase of the bridge or bridges at McVeytown, from said Mattawana Bridge Company, the sum to be paid cannot, as defendants are informed and believe, be less than the *134further sum of eight thousand dollars, making in the aggregate a debt of at least from thirty-eight thousand dollars to fifty, thousand dollars, to be provided for and paid by defendants at the expense of the county ; and thirty thousand dollars to be paid on or before November 1st, 1871.

4. There is no money in the treasury to pay any such debt or any part thereof, nor have the defendants the means or power to place the same there for that purpose, and defendants are of the opinion and believe they ought not to be compelled to draw their warrants upon an empty treasury, and to entail a debt upon the county which it is at the present time entirely unable to pay, for the purposes of building and purchasing bridges under said act.

5. By the fourth section of said act, the defendants are authorized to borrow money to enable them to carry into effect the provisions of said act, any sum not exceeding twenty-five thousand dollars, at any rate of interest not exceeding eight per cent.; said defendants cannot carry said act into effect without a much greater and heavier loan than twenty-five thousand dollars, and under the present financial embarrassments of the county, defendants cannot borrow money, nor can they negotiate their bonds at eight percent, interest as required by said act.

6. The county of Mifflin is deeply involved in debt, to wit: In the sum of twenty-five thousand dollars, the greater part of which debt was created to raise bounties for volunteers, and that the several townships in the county are also heavily involved in debts of like nature and for like purposes, and the people of this county have been for several years last past and still are struggling under embarrassments and financial difficulties, to pay off and discharge said debt; it would be oppressive and grievously burdensome upon the people of this county to increase the debt upon them at the present time to the extent necessary to carry into effect the said act, even if defendants could borrow money for the purpose, or negotiate their bonds as authorized anil directed by the said act, but the defendants say that they cannot pirovido the means during the present year to build either the one or the other of said bridges.

7. The bridge at Newton Hamilton can be of no public benefit or use, but merely to subserve the interest of a few individuals who reside upon the opposite side of the river from that village,'and defendants are of the opinion that it would be unjust and oppressive to tax the people against their wills and contrary to their desires, especially when the best interests of the public do not require it, but only to *135promote au entirely private enterprise by the building of such bridge.

8. The "defendants for return further say that the information made by the attorney-general before this court, is true so far as defendants know and are advised ; but submit with great respect to the judgment of this court, that said act of Assembly has no binding obligation or force upon them, so as to compel them to create a debt against the county for the promotion .of an enterprise of a purely local and private character; that the building of the contemplated bridge at Newton Hamilton is an enterprise of such a character, and not one of any general public utility ; that nine-tenths of all the taxable citizens of Mifflin County are opposed to its erection at their expense, and that the defendants, being the constituted authorities and immediate representatives of the people of Mifflin County, believe it would be au act of injustice to themselves and the people they represent, to create a debt of such magnitude, for such purpose, in the present helpless condition of the treasury, and the embarrassed condition of the county.

9. Defendants further say that there are other remedies; this writ is only granted in the last .resort when there is no other adequate remedy; in this case it is not the proper remedy, but it is by indictment in the quarter sessions of Mifflin County, and cannot be resorted to until every other specific remedy shall have been exhausted.

10. The bridge at Newton Hamilton cannot be built at all without extending the structure thereof over and upon the private property of Mrs. Wharton and others, in Wayne Township, Mifflin County ; no provision is made in said act for compensation for the taking of her or their private property for such public use, and neither she, or any other land-, owner, over whose land said bridge is authorized to be built, has granted any right of way to defendants, by deed or otherwise, to pass over, use, or occupy any of her or their property for the purpose of constructing and building such bridge thereupon ; the defendants have no right, as they have been advised and believe, to enter- upon and take any of her or their private property for public use without compensation, nor can the legislature give to them by act of Assembly any such right.

11. Said act of Assembly is unconstitutional and void in this, that the legislature have no power to compel the defendants topurchasea bridge from an incorporated company; that the Mattawana Bridge Company is an incorporated company, and that their bridge is a toll-bridge.

12. Said'act is unconstitutional and void in this, that by *136the first section of the act of 11th of March, 1850 (Pamphlet Laws, 172), it is not lawful to erect any free bridge over the Juniata River within one mile from any toll-bridge, constructed by any company incorporated by this Commonwealth.

13. Said act is unconstitutional in this, that defendants cannot be compelled to create a debt against the county, either by borrowing money, issuing bonds, or by levying taxes upon the people for the payment thereof, for any purpose whatever, except for an already existing debt created for the legitimate arid current expenses of the county.

Same day defendants moved to quash this writ on the following grounds:

1. The writ is against three individuals who happen to be officers of the county of Mifflin, while the act or acts wfflich they are complained of for not performing is a duty of the county in its corporate capacity, if it be a duty at all.

2. There is no complaint made by any party interested; no loss or injury alleged to any person or body of persons.

3. It does not appear and is not alleged that any person having interest or authority in the premises demanded the execution of the act of Assembly recited in the writ.

4. The writ of mandamus does not lie at the suit of the attorney-general for the enforcement of a public duty by a public officer. The Commonwealth must indict the officers for a misdemeanor.

5. The writ contains no command upon the defendants to do any definite or particular thing, and if made peremptory wmuld leave the defendants wholly unable to understand how it should be obeyed.

6. The vague and indefinite command of the writ cannot be carried out without a violation of the constitution.

7. This is a civil proceeding without any interested plaintifl‘, who makes himself knowrn, without a proper defendant and wdthout any subject-matter on which it can be legally founded.

The Commonwealth demurred to the return, and assigned for causes of demurrer:

I. The return exhibits no sufficient or legal reason for disobeying the aforesaid first section of the act of February 8th, 1871, recited in the information.

II. The defendants being ministerial officers, are bound by the provisions of said act, and cannot set up any of the matters stated in their said return.

III. The return is argumentative and evasive.

May 26th, 1871, Loren L. Ellsworth was by order of the court, substituted as relator instead of the attorney-general.

*137On the 18th of May, 1872, John D. Taylor and a number of others, citizens and taxpayers of Mifflin County, presented a bill before the two associate judges of Mifflin County, the court not being in session, setting out that the commissioners of the county were about to issue bonds to the amount of $25,000, and to raise a fund by taxation upon the people of the county, without any legal warrant or authority of law, except by virtue of an act of Assembly of February 8th, 1871 (heretofore mentioned); that the said act was unconstitutional ; for reasons set forth in the bill. The bill alleged that the commissioners were about to draw their warrant on the treasurer of Mifflin County in favor of the president of the bridge company for $7300, the purchase-money of the Mattawana bridge; they averred that the commissioners had no constitutional power to purchase said bridge and compel the people of Mifflin County to pay for it, nor could the legislature confer upon them such power, and that the act ot February, 1871, was void. The plaintiff prayed for a special injunction. On the same day the judges granted a special injunction, and directed the commissioners to answer the bill.

The commissioners refused to obey the mandamus. A rule was awarded to show cause why an attachment should not issue against the commissioners as for a contempt in disobeying the mandamus.

They answered the rule by setting up as an excuse the injunction above mentioned.

On the 29th of May, 1872, the Supreme Court made the following order:

“ The answer of the above named defendants, commissioners as aforesaid, to the rule granted upon them to show cause why an attachment as for a contempt should not be issued against them for disobeying the act of peremptory mandamus issued against them heretofore being read, it is judged insufficient as an answer to the rule; and it is decreed that the rule be made absolute, and that an attachment do now issue against James Sheehan and Henry S. Wilson, commissioners aforesaid of the aforesaid county of Mifflin, and the sheriff is directed to have them before this court on the first day of July next, at an adjourned term of this court at Philadelphia, to be held at that time.

“ Indorse on this attachment, that the said defendants are not to be taken into close custody, excepting only at such time as may be necessary in order to execute this writ at the time aforesaid.”

On the return of the writ of attachment, July 1st, 1872, the defendants filed an affidavit, setting forth that they had, in June preceding, contracted for the construction of the *138bridge, etc. The reply on behalf of the Commonwealth to the affidavit averred, that the contractor was irresponsible, without means to build the bridge himself, or to obtain security for building it.

The defendants in open court admitted the, averments to be true.

On July 3d, 1872, the Supreme Court,

Thompson, C. J.,

pronounced the following sentence, directing the same to be tiled, and the case to be reported:

“ James Sheehan and Henry S. Wilson'.

“ On the 29th of May last this court granted an attachment against you as for a contempt of court, in not obeying its process. After giving you an opportunity of purging yourselves of the contempt, and in hopes* that you might act in good faith, in obediénce to the mandamus issued to you a year before, directing and ordering you to proceed as required by an act of Assembly passed the 8th day of February, A. D. 1871, authorizing the commissioners of Mifflin County to construct a public bridge over the Juniata River, at the borough of Newton Hamilton, in said county, — we made the attachment returnable at this time at an adjourned term of the court. But, instead of satisfying us, now that you have since the issue of the attachment made faithful efforts to perform your duty under the judgment rendered in this court at May Term, 1874, your affidavit, this day filed, setting forth, that on the-day of June last you had let the construction of the same to a contractor to build, and the reply admitted in the presence of the court to be true that the person to whom you let the same was totally irresponsible, without means either to build himself or to procure security for building the same, satisfied us, especially after the known subterfuges and evasions already resorted to and overruled on the rule to show cause why an attachment should not be issued against you, that this is also but a repetition-of past evasions and subterfuges. We wish to say to you that the plain road for you to have pursued was laid down by this court, and it was a great error in you to permit yourselves to be persuaded to leave it, for you will be the sufferers, while perhaps your most active advisers may escape all the consequences of .the disobedience they may have been the cause of: it might be' left to you to decide that a court that would prevent its decrees and judgments to be set at naught by trick or evasion would be unworthy the name, much less the respect, due to a court. That this would be your verdict, we feel that your sober reflection would undoubtedly force you to render. But you must be right in action as well as in reflection, and, *139because you have failed in tbe former, we are reluctantly compelled to resort to the power the law gives and requires us to exercise to enforce it.

*Woods S¡*Elder, and *F. Carroll*Brewster, for the Commonwealth.

*J. Alexander*and *J. S.*Black, for defendants.

“We shall, in the sentence we are about to pass on you on this occasion, and, in hopes that you will be admonished by it, give you another opportunity to acquit yourselves of your duty, and, to some extent, make atonement to the law you have disregarded. We will impose a line upon each of you, and stay proceedings for its enforcement until the first Monday of October next, with permission to you to show cause then to the court, if any you have, why the sentence should be mitigated; the writ of attachment to remain in the sheriff’s hands without further execution until that time.

“ And now, July 30th, 1872, the sentence of the court is that each of you pay a fine to the Commonwealth of five hundred dollars and the costs, of this attachment, and that you stand committed until the said sentence is complied with; and it is ordered that the collection of said fines be postponed until the first Monday of October next, as stated above, and that you presently pay to the sheriff of Mifflin County the costs which have accrued on the writ of attachment in his hands.”