on the pavement in front of his store, and went to the water closet in the rear of the store, and when he had been there two or three minutes he heard a cry, and, without waiting to fasten his suspenders, ran out and found his child killed. There were two tracks on the street, and the rail nearest the curb was far enough away to permit a wagon to pass between them. The wife of the plaintiff was away from home and there does not appear to have been any person in the store when the plaintiff went to the closet. The plaintiff testified in his direct examination, in answer as to where he left the children, "Right before the store, in the inside, in the little store where I live, and I just took the candy out; the child cried and I gave her a piece of candy." On cross-examination he testified as follows: "Q. You left her along with your boy? A. Yes, sir. Q. And at the time you left them they were out on the pavement in front of your house playing, weren't they? A. Yes." This is not the case where a child slips away without the parent's consent, nor one where the child is left on the pavement while the parent watches the child, and when her attention is temporarily called away the child runs out on the street; but here the father deliberately leaves his children, both of tender years, on the pavement playing with a car track seven or eight feet from the curb, and shuts himself in a water closet where he can have no care over the children. Can there be any question of lack of ordinary care under the circumstances? Court of Common Pleas, WASHINGTON COUNTY. BOGGS v. THE SELECT AND COMMON COUN- Mandamus-Where it may be used-City Councils-Rules governing their actions. A peremptory writ of mandamus never issues to control A decision of the president of a city council unap- Under the Acts of Assembly incorporating cities of the No. 146 May T., 1899. Mandamus. Opinion by MCILVAINE, P. J. Filed September 25, 1899. The alternative writ of mandamus issued in this case, and which must be taken as the plaintiff's statement of his claim for relief, is, after giving the caption of this case, and the names of the parties to whom it is addressed, in these words: "Whereas, William M. Boggs, the plaintiff, has shown by his petition that by an Act of Assembly of said Commonwealth, approved March 24, A. D. 1873, it became the duty of the select and common councils to assemble jointly in session for the purpose of appointing, among other officers, a city solicitor, on the first Monday of April, A. D. 1899, to wit: on the third instant; and whereas the said select and com There would seem to be three questions which naturally suggest themselves in considering the care which a parent ought to exercise over his children in a case Ike this. Was the place where the children were playing a dangerous one? Were they there by permission of the parent? And was the parent exercising any care or supervision over them? Unquestion-mon councils did so meet in joint session, actably the pavement was a dangerous place for children of the ages of these to play. They were there by permission of the plaintiff and he shuts himself in a water closet where he can neither see or hear what his children are doing. What other question of fact could have been left to the jury to determine the question of the negligence of the plaintiff? ing as a single body, on the said day, and did proceed to the appointment of a city solicitor, there being two candidates, to wit: William M. Boggs, the plaintiff, and William R. Vance, and thereupon a vote was taken which resulted as follows, to wit: for William M. Boggs, six votes, to wit: Charles S. Crall, Levi R. Campbell, James Lowstuter, Ewing B. Neil, Thomas For plaintiff, Thos. M. & Rody P. Marshall. Chataway, and Thomas Nolder; and for WillFor defendant, Geo. C. Wilsou. iam R. Vance there were cast five votes, to wit: S. M. Downer, J. B. Finley, Frederick K. Alexander, William Ewing, Jr., and George Dovey, and no other or more votes were cast for either of these candidates or any other person. That the eleven persons voting constituted a quorum of the joint session of the select and common councils, and that the six votes cast for the said William M. Boggs constituted a majority of said quorum, and he was thereby duly appointed city solicitor of the said city of Monongahela City. "That J. B. Finley, a member of the select council and president pro tempore of said joint session of councils, unlawfully declared and decided, as such president, that there was no election of city solicitor, in violation of his duty | in the premises. "That the said William M. Boggs has qualified as such city solicitor and deposited his oath of office with H. R. Campbell, city clerk of the said city, and has also served upon him, the said city clerk, a written demand that he, the said city clerk, execute and deliver to the plain- | tiff a certificate of his due appointment to the said office of city solicitor, as he was in duty bound to do, and thereupon the said city clerk did refuse to execute and deliver such certificate. By reason whereof the ssid William M. Boggs is deprived of his said office of city solicitor and cannot have adequate relief in the premises without the aid of a writ of mandamus. the election of a city solicitor show that the said William M. Boggs was not elected, but that there was no election "no election" of officers being as follows: "April 3, 10 A. M.-Moved by Mr. Alexander that we proceed to permanent organization. Agreed to. Mr. Dovey and Mr. Jones nomi|nated for persident. Mr. Jones declining, Mr. | Dovey received seven votes, and Mr. Jones four. Mr. Dovey declared elected. "For city clerk, H. R. Campell received twelve votes and was declared elected. "For city solicitor, W. K. Vance received five votes, W. M. Boggs, six votes, not voting one. No election. Moved by Mr. Downey that election of city solicitor be postponed for the present; agreed to. "April 3, 8 A. M.-Minutes of morning session read and approved without correction. "Motion by Mr. Crall that consideration of question in regard to city solicitor be taken up. Withdrawn. "Moved by Mr. Crall, seconded by Mr. Nolder, to reconsider the vote by which election of city solicitor was postponed. Motion by Mr. Chataway to lay on the table. A division being called for on the later motion it was agreed to by a vote of five for the motion and four against." Under the facts as they are made to appear in the alternative writ and the return of the defendants filed thereto, is the plaintiff entitled to a peremptory writ of mandamus? In seeking an answer to this question we must keep in mind the well established rule that mandamus only "lies against public officers to compel the "We, therefore, being willing that due and speedy justice should be done in this behalf, do command you, the select and common councils of the city of Monongahela City, and H. R. Campbell, city clerk of the said city, firmly enjoining that forth with you put the said William M. Boggs into his said office of city solicitor of the said city of Monongahela City and establish him in the same, und that you cause a certifi- | performance of duties purely ministerial in cate of his due election to said office to be executed and delivered to him. And that all and singular the matters for the speedy performance of the foregoing, according to the exigency of the law, you shall do and execute immediately; or the cause wherefore you cannot do the same, to us you shall signify on or before the twenty-fourth day of April next, at Washington, lest for your default further complaint shall come to us." The defendants did not obey the mandate of the writ by issuing a certificate of election and by putting the said William M. Boggs in the office of city solicitor, but made return giving the cause why they did not do so; and it, in susbstance, is this: 1. There is no law, custom or usage requiring the city clerk to issue a certificate of election to the person elected city solicitor. 2. That at the meeting of council referred to in the writ the proceedings had in reference to their nature and so clear and specific as not to call for the exercise of any discretion in their performance." "The proper function of the writ is merely to set in motion. It will, therefore, in a proper case be allowed to conmand action but never to control discretion. It follows that the plaintiff in this case before he can succeed, must show that the defendants are clearly in duty bound to perform the acts which he asks the court to command them to do. The first is that the city clerk give him a certificate of election; the second is that the select and common councils "put him in the office of city solicitor and establish him in the same." Monongahela City was chartered by a special Act of Assembly which is found in the Pamphlet Laws of Pennsylvania of the year 1873, at page 377. The seventy-second section of that act provides as follows: "Said councils shall annually, and as much oftener as may be necessary, appoint one street commissioner in and for each ward, one city clerk, one city solicitor, one clerk of taxes in and for each ward, and one city engineer." . . . as One of the duties of the city clerk, as defined by a city ordinance, is: "To keep a true and perfect record of the proceedings of the select and common councils in joint session sembled, in a book provided for that purpose." A careful examination of the provisions of the special Act of Assembly and of the ordinances defining the duties of the city clerk fails to reveal any provisions by which he is required "to execute and deliver a certificate of his due election" to the person who may be elected city solicitor by the select and common councils. Neither can we find anything in either the charter or ordinances which makes it the duty of the select and common councils "to execute and deliver such a certificate of his due election to the office of city solicitor" to the plaintiff | when the law does not require them to perform such an act. The minutes of the proceedings of councils is the evidence of the action taken in regard to the election of the officers provided for by the Act of Assembly, and the most that could be demanded of the clerk would be an attested copy of the minutes. This he has given in his return to the alternative writ. This brings us to the second and more serious question, can this court upon the facts before it compel the select and common councils "to put the plaintiff into the office of city solicitor and establish him in the same." It certainly cannot, if there is any doubt about his election to that office on April 3, last. A peremptory writ of mandamus will issue only where the plaintiff's right is clearly established. The plaintiff contends that because he obtained six votes and his opponent only five, that he should have been declared elected. | Whether this contention should be sustained or not depends upon other facts that must be inquired into. Where a quorum of a deliberative body votes, the common-law rule would be that a majority of those voting would be sufficient to pass a resolution or elect where two persons are voted for. But this common-law rule only prevails where the body voting does not adopt some other rule. The Legislature, when it gave the select and common councils the power to appoint a city solicitor also gave them the power to adopt their own method of making that appointment, and if they saw fit to adopt the rule that a majority of the twelve members of councils should actually vote for a candidate for city solicitor in order to elect, it was within their power to do so. And such a rule might be adopted by an ordinance duly enacted, by a resolution duly passed, or a custom or usage so long observed as to make an estabblished precedent. It is claimed by the defendants in their return or answer that an ordinance was passed on January 10, 1888, that required a majority of the members chosen to both branches to elect a city solicitor and that even prior to the passage of this ordinance that there was an unwritten law or usage that to elect any one to the office of city solicitor he must receive the votes of a majority of all the councilmen present. And that such a usage existed and was observed is not denied by the plaintiff. He does claim, however, that the Act of May 24, 1887, P. L. 204, under which the ordinance of January 10, 1888, was enacted, is unconstitutional and that therefore the ordinance is null and void, nothwithstanding the Act of May 13, 1889, P. L. 196, validating all ordinances passed by cities under the Act of 1887, which was declared unconstitutional. In our opinion the intent of the Act of May 13, 1889, was to ratify all municipal action under the Act of 1887, and to declare that if it would have been valid under that act it shall be treated as valid now. The Act of May 23, 1889, P. L. 277, dividing cities into three classes does not apply to Monongahela City, and if it did it also provides that all ordinances of cities legally passed should be valid and remain in force so far as not inconsistent with that act: Devers v. York City, 150 Pa. 208; Melick v. Williamsport, 162 Id. 408. Did, then, J. B. Finley, president of the joint session of councils on April 3, 1899, as stated in the plaintiff's alternative writ, "unlawfully declare and decide that there was no election of city solicitor in violation of his duties in the premises?" If he followed the recognized usage of the bodies over which he presided, and the rule as found in the ordinance of January 10, 1888, validated by the Act of May 13, 1889, he did not, for the plaintiff only received six votes out of the twelve councilmen, all of whom were present. But granting that his decision was wrong, it would not avail the plaintiff anything, for two reasons: First, there certainly was a question under the existing facts for the presiding officer to decide which required the exercise of judgment and discretion on his part, and a peremptory writ of mandamus never issues to control the judgment of any public officer, where he is placed in a position that he must exercise a choice between two courses. "Mandamus will lie to compel the performance by public officers of duties purely ministerial in their character; but as to all acts and duties necessarily calling for the exercise of judgment and discretion on their part, mandamus will not lie." Nor" will it lie to compel revision or modification of the decision resulting from the exercise of such discretion thongh in fact the decision may have been wrong: " Dechert v. The Commonwealth, 113 Pa. 229. Second, the decision of the president was acquiesced in by the councils over which he presided, and the election of city solicitor was postponed. The decision of a presiding officer of a deliberative body, unappealed from and acquiesced in becomes the action of the whole body, and in this case the whole body is put on record on the question that six votes are not enough to elect where there are twelve present, and this is just as binding, so far as this pro ceeding is concerned, as if the councils had passed a resolution then and there that to elect the successful candidate must have at least seven votes cast in his favor. 16, 1891, P. L. p. 75, for the appointment of The viewers made report December 12, 1898. On December 21, 1898, C. F. Bohan caused to be filed a paper purporting to be an appeal on behalf of the city of Pittston, from the report of viewers filed, in favor of William S. Tompkins, J. E. Patterson & Co., and Newton Coal Mining Company, and against the city of Pittston, and said city demands trial by jury. The paper is We are clearly of the opinion the plaintiff is signed "The City of Pittston," by her solicitor not entitled to the relief he here claims. And now, September 25, 1899, it is ordered, adjudged and decreed, after hearing and due consideration, that the defendants go without a day, and that the plaintiff pay the costs of this proceeding. and attorney, C. F. Bohan; attached to which For plaintiff, Owen C. Underwood and P. P. to it. Court of Common Pleas, LUZERNE COUNTY. In re Appeal of CITY OF PITTSTON. This act seems to be silent upon the right of the municipality to take an appeal for the purposes of having a jury trial, and a liquidation of damages by that tribunal, but it does provide in the seventh section thereof that the municipal corporation can repeal the ordinance and discontinue the proceeding taken prior to an actual entry upon and occupation of the property. The sixth section provides that upon the report of viewers being filed in the court, any party may thereafter file exceptions to the same, and the court shall have power to confirm said report, or to modify, change or otherwise correct the same, or change the assessments made therein, or refer the same back to the same, or new viewers, with the like power as to their report; or within thirty days from the filing of any report in court, any party whose The appeal should be filed by leave of court, it should property is taken, injured or destroyed may Appeal by city from award of viewers-Man- A city may appeal from the award of a board of viewers show authority from the city and should set forth the aggrievance of the city. Rule to show cause why the appeal of the city of Pittston, and demand for an issue and a trial by jury shall not be stricken off. Opinion by LITTLE, P. J., of the 26th Judicial District, specially presiding. Filed July 29, 1899. appeal and demand a trial by jury, and any party interested in any assessment of damages This was a proceeding under the Act of May exceptions to the report of viewers, a right of appeal to the Supreme Court within thirty days after final decree. While the act, in words, does not give the persons whose property have been assessed with benefits the right to appeal and jury trial, it has been held that such persons are entitled to an appeal to the Court of Common Pleas, and to have a jury trial. Mount Pleasant Avenue, 171 Pa. 38, wherein Mr. Justice DEAN, in delivering the opinion of the Supreme Court, takes occasion to comment upon this section of the act, and of the act generally. Notwithstanding the words of this act, which seem to provide for the viewers directed to be appointed, as the exclusive tribunal who shall determine the amount of the damages the city or other municipality must pay for the purposes of the improvements made, as provided for therein, the city has the right of appeal to the Court of Common Pleas, and the right of trial by jury to pass upon the amount of damages to be paid. court was given power to do under the latter part of this sixth section and would have done upon request if satisfied of the city's wish to have an appeal entered in each of the three matters of assessment of damages. Being of the opinion that the city of Pittston has done nothing which can be recognized as an appeal from the action of the viewers, the rule is made absolute so far as it may affect the rights of W. S. Tompkins and Ruth A. Stark, mortgagee. For appeal, C. F. Bohan. Contra, E. K. Little and C. O. Dershimer. District Court, United States, Western District of Pennsylvania. In re JAMISON F. BALDWIN, Bankrupt. selling. The real estate of A., a bankrupt, was advertised for sale by the sheriff, the liens against it being a mortgage and judgments entered prior to the bankruptcy. The secured claims were more than the value of the property. The referee refused to restrain the sheriff from proceeding with the sale. No. 660, in Bankruptcy. Petition for a restraining order. The petition sets forth:— Article XVI, section 8 of the Constitution Bankruptcy - Restraining the sheriff from substantially makes the right of appeal in such instances reciprocal. The latter part of section 6 of this Act of 1891 further says: "The said Court of Common Pleas shall have power to order what notices shall be given in connection with any part of said proceedings, and may make all such orders as it may deem requisite." A party whose property has been injured or destroyed, is required by this same section to take this appeal within thirty days. Conceding then that the city had the right of appeal to the Common Pleas, and had done nothing to waive that right, is this paper, filed as of De-bankrupt on his own petition and the matter cember 21, 1898, an appeal? It fails to show was referred to Harry Russell Myers, Referee any authority given by the city council for the in Bankruptcy for said county, to take such taking of any appeal. Neither is it specific. further proceedings therein as are required by It is too uncertain. It in no way claims that the Act of Congress relating to bankruptcy; the city is aggrieved at the action of the viewers that among the claims scheduled in the petiin the assessment made by them of the damages tion upon which said adjudication was made awarded either to William S. Tompkins, Pat- are four judgments entered upon warrants of terson & Co., or to the Newton Mining Com-attorney in the Court of Common Pleas of said pany, nor assigns in what manner it is ag- county of Washington, and entitled as follows: grieved. There is nothing about the paper, called "the appeal and affidavit," to indicate that it was ever seen by the court, or that the court, if disposed to recognize the paper, as the evidence of the desire of any of the city authorities to appeal from the action of the viewers in awarding damages either to Mr. Tompkins, or to Patterson & Co., or to the Newton Mining Company. There is no request that the same be filed as and for an appeal in each of the three matters of assessment of damages, and that separate issues be permitted to be framed and entered upon the records of the court, all of which the That the petitioner was, by said court, on the 6th day of November, instant, duly adjudged a T. F. Birch, for use of Frederick Hood, vs. J. F. Baldwin, J. S. Baldwin, W. B. Myers, No. 66 November Term, 1898, D. S. B., for $450, with interest and costs. Armour & Co., for use of T. F. Birch, vs. Baldwin & Huffmann, J. F. Baldwin, No. 100 November Term, 1898, D. S. B., for $778.60, with interest and costs. Armour & Co., for use of T. F. Birch, vs. J. F. Baldwin, No. 128 May Term, 1899, D. S. B., for $223.10, with interest and costs. Armour & Co. vs. J. F. Baldwin, No. 129 May Term, 1899, D. S. B., for $311.55, with interest and costs. |