
    [Philadelbhia,
    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.
    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 rela.tors, under the following circumstances.
    In consequence of the opening of certain streets in the City and County of Philadelphia, damages had been assessed pursuant t.o-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 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 fhe 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; „i
    “ The undersigned do not think it théir 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.”
    
      
      G. L. Ashmead and Price contended,
    that the County Commissioners were bound to draw orders according to the period and in the order of time, at which demand was made upon them. In the case of Price, demand was made before the meeting of the County Board. The County Commissioners have not done all that they might have done. Admitting that by the refusal of the County Board to sanction the proposed tax they w’ere deprived of funds, it does not appear that they'were unable to obtain their authority to borrow money. Our situation is one of great hardship. Our property has been taken away from us; and we have no judgment which can be enforced under the act of 15th April, 1834, or under which we may be entitled to interest at a future time.
    They cited the act of the twenty-fifth March, 1835, (Purd. Dig. 802.) — Act of tenth April, 1834, (Pamph. Laws, p. 266.)
    
      Dallas, contra,
    referred to the case of The Commonwealth v. The Commissioners of Lancaster County, (6 Binn. 5.)
   Per Curiam.

This rule must be discharged, and the mandamus denied. It appears by the affidavit of the Commissioners, that there is no money in the treasury,' except that which is wanted to defray the ordinary and current expenses of the County. The writ of mandamus is not of course. It will be granted when a plain case of necessity is shown, and where, in the discretion of the Court, it appears to be advisable. In this case we should probably stop the wheels of the county government, if the mandamus were allowed.

Rule discharged.  