
    Supreme Court of Pennsylvania.
    COMMONWEALTH ex rel. O’CONNOR v. McCUEN et al.
    Under the Act of March 31st, i860, there must be a trial of the case on its merits to justify a finding as to who shall pay the costs; a mere formal verdict is not sufficient to impose the costs on the county.
    Error to the Court of Common Pleas of Philadelphia.
   Opinion delivered Feb. 9th, 1874, by

Agnew, C. J.

This is not a proceeding-in the Court of Quarter Sessions. It is petition to the Court of Common Pleas for a writ of mandamus to compel the city commissioners to draw their warrant on the city treasurer for payment of a bill of costs incurred in the Quarter Sessions. The facts are set forth in the petition and answer, and also in the history of the case, and are therefore regularly before us as the ground on which the mandamus is asked for. Jas. O’Connor, the relator, prosecuted an indictment in the Quarter Sessions against the Trasks and others for a conspiracy in relation to large oil transactions carried on between them. After a trial and disagreement, and discharge of one jury, the prosecutor and defendants came to an arrangement to settle their matters by a reference, and when the indictment came up again, by agreement, the prosecution being abandoned, a verdict was rendered without evi-. dence or trial, of not guilty, and that the county pay the costs. The bill of costs as taxed exceeded two thousand seven hundred dollars, of which the prosecutor claimed two hundred and eight dollars and eighty-eight cents. He, as relator, now seeks this mandamus to compel the payment of his own bill. It is clearly proved that the criminal proceeding was used by the prosecutor to accomplish a private purpose, rather than to serve the ends of justice. The reference and mode of indictment make this plain. Why should the city be saddled with the costs of such an attempt ? Clearly it should not be, unless it has been legally so fixed with' their payment as to be beyond escape.

The county or city is never in court to defend herself, and is no party to such a proceeeding, and it is the duty of the court to see that she is not charged by mere arrangement of private parties. The purpose of the law was plainly to make the jury to stand as a shield against improper charges, and that the county should be charged only as a result of a trial. The Act of March 31st, i860, provides that “in all cases of acquittals by the petit jury on indictments for the offences aforesaid (viz., misdemeanors), the jury trying the same shall determine by their verdict whether the county, the prosecutor, or the defendant, shall pay the costs, or whether the same shall be apportioned between the prosecutor and the defendant, and in what proportion.” In misdemeanors the parties to an indictment are determined by the law. The 27th section of the Act 31st March, i860, enacts that no person shall be required to answer to any indictment unless the prosecutor’s name, if any there be, is endorsed thereon ; and when none is avowed, enables the court to hear witnesses and determine whether there is a prosecutor, and if they find there is, to direct his name to be endorsed on the indictment: 1 Brightlv’s Dig. 381, pi. 28. It has been held also that when the jury find costs against the prosecutor, they must name, him in their verdict. It was the evident purpose of the law to place the costs upon the party that has behaved the worst, or to divide them between them in proportion to their demerits. It is not just that the public should pay the expense of a litigation growing out of malice or revenge, or where the behavior of the defendant is deserving of punishment, though he may, through defects of form or of evidence, escape conviction of a technical offence: Baldwinv. Commonwealth, 2 Casey, 172. Hence the act says, the jury trying the same shall determine by their verdict who shall pay the costs. But how can it be said the jury has tried and determined anything, when nothing has been submitted to them? On what principle of propriety or of justice shall it be in the power of the parties to hush up a prosecution and agree to throw the costs on the city or county? Such a verdict is not a trial, and really determines nothing against an absent party. To grant a mandamus in such a case, upon the admitted facts, would make the court a party to a mere shift, by which the parties would unload themselves of all responsibility.

The case is, by its admissions and the nature of the application, much stronger than that of Commonwealth v. Horner, 10 Casey, 440, where this court, looking into the facts adduced by the prosecutor himself, refused to reverse the order of the Quarter Sessions setting aside the taxation of the prosecutor’s bill of costs. There were two bills of indictment, one for larceny and the other for conspiracy, and a settlement having taken place,the prosecutor filed his bill of costs in the conspiracy case, while in point of fact the costs were incurred in the felony case. On the testimony taken in the court below, relied on by the prosecutor, upon his writ of error, tills court refused in that case to reverse the action of the Quarter Sessions. The determination of the jury in the very case, is the only protection the city or county has against fictitious claims. To suffer the costs to be imposed otherwise, would encourage litigation where the arm of the law, in its criminal branch, is used for improper purposes. Fortunately we are not bound to do this wrong. The mandamus is a great prerogative writ, of extraordinary character, which may not be invoked unless the relator is clearly entitled to it, and has no other legal remedy: Commonwealth v. Canal Commissioners, 2 Penna. 517; Heston’s Case, 2 W. & S. 416; Hoffman v. The Commonwealth, 4 Casey, 108; 1 Jones, 196. We think that the relator has not shown such a case here, as to require us to reverse the refusal of the court below to award the writ.

The judgment is therefore affirmed.  