
    Commonwealth versus The Justices of the Court of Sessions for the County of Hampden.
    The St. 1787, c. 54, $ 1, is peremptory on the Court of Sessions in each county to erect or provide a house of correction, distinct from the common gaol, and a man* damns lies from this Court to compel them to do it.
    An information was filed by Davis, Solicitor-General, on behalf of the commonwealth, complaining that the justices of the Court of Sessions for the county of Hampden had neglected to cause a suitable house of correction to be erected or provided within that county, pursuant to St. 1787, c. 54, and praying that a writ of mandamus might issue commanding them to make such provision. At May term 1824, in Hampden, a rule was granted by this Court upon the justices of the Court of Sessions, to show cause why they had not provided a house of correction, and why the writ prayed for should not issue ; and at the following September teim in that county the justices of the Court of Sessions filed an answer to the information, in which (reserving all exceptions to the jurisdiction of this Court, and to the form and character of this process) they stated, that the county of Hampden was established in 1812 ; that from that time the Court of Sessions had made all reasonable efforts for providing suitable public buildings for the use of the county ; that in the purchase of land and erection of the gaol and the gaoler’s dwellinghouse they had expended about 15,000 dollars ; that in repairing the old court-house and in erecting the new one they had expended 10,000 dollars ; that in addition to these and other necessary expenses of the county, they had been obliged to expend large sums of money for rebuilding and supporting various bridges in Westfield, Chester and Palmer ; that to meet these expenses they had been obliged, not only to impose heavy taxes on the inhabitants of the county, but also to borrow large sums of money and incur heavy debts, which had not been wholly discharged until since the filing of the information ; that in August preceding they had ordered that a part of the common prison should be used for a house of correction, and had appointed a suitable master thereof; and they submitted, that in the exercise of the discretion of this Court, the youngest and one of the smallest counties in the commonwealth should not, at this time, be .subjected to the expense of providing or erecting a house of correction, when it was a matter of notoriety, that most of the older and larger counties were destitute of such houses ; and they therefore moved that the rule issued against them should1 be discharged.
    The Solicitor-General, in addition to the facts alleged in the information, and by way of replication to the answer of the respondents, stated that the common gaol in Hampden was wholly insufficient, and without any accommodations proper for the confinement and employment of such persons as' might be committed, either as proper subjects of a house of correction, or as convicts sentenced to hard labor by-judgment of this Court in pursuance of the statute in such case made and provided ; and he further alleged, that there was a balance in the treasury of the county, not appropriated, of 4165 dollars.
    At the hearing, before Lincoln J., the Solicitor-General admitted the truth of the facts stated in the respondents’ answer, and he produced witnesses who testified to the insufficiency of the gaol for the purposes of a house of correction. A certificate of the balance in the county treasury was also produced, by which it appeared, that of the 4165 dollars above mentioned, 3863 consisted in outstanding taxes.
    The judge reserved the question, whether a mandamus should issue, and all other questions arising upon the papers and facts proved, for the decision of the whole Court.
    And now the Solicitor-General, to show that the process of mandamus was proper in this case, referred to the preliminary remarks to the title Mandamus, in 4 Bac. Abr. 496, and letters D and E; and he contended that St. 1787, c. 54, § 1, was imperative on the Court of Sessions to provide a house of correction. He referred to the same statute, and those of 1797, c. 62, — 1802, c. 22, — and 1818, c. 123, as showing such houses to be distinct from common gaols m their general policy and course of discipline, and in the subjects to be confined in them ; and said that it was impossible to carry the provisions of these and some other statutes into effect in the county of Hampden, the part of the gaol appropriated as a house of correction being unsuitable and insufficient for that purpose.
    
      E. H. Mills, for the respondents,
    said that if it was discretionary with the justices of the Court of Sessions to erect a house of correction, or to omit doing it, a writ of mandamus would not lie in this case ; and he insisted that they have such a discretion. They have a judicial, and not merely a ministerial power on this subject. A discretionary power is to be inferred from the clause in the first section of St. 1787 c. 54, that “ until such house or houses of correction be erected, built or otherwise provided, the common prison in each county may be made use of for that purpose.” That section, on which the government rely, is copied from Sf..ll Will. 3, c. 5, § 1, and the legislature, when passing laws respecting such houses at many different times since, knew that very few had been erected, and they would have taken efficient measures, by imposing penalties, for carrying the provision into effect, if they had considered it to be peremptory. That they viewed it as giving a discretion, is in particular to be inferred from their repealing, in 1819, the fifth section of St. 1818, c. 123.
    
      Bliss senior replied.
    The opinion of the Court was read at May term 1825, m Hampden, as drawn up by
    
      
       See Rice v. Commissioners of Highways of Middlesex, 13 Pick. 225 ; People v. Superior Court of the City of New York, 10 Wendell, 285 ; People v. Superior Court &c. of New York, 5 Wendell, 114 ; Ex parte Bacon, 6 Cowen, 392 ; Louisiana College v. Treasurer, 2 Louisiana R. 394.
    
   Parker C. J.

The St. 1787, c. 54, § 1, provides, “that there shall be erected, built or otherwise provided by the Court of General Sessions of the Peace, in every county within this commonwealth, at the charge of such county, a fit and convenient house or houses of correction ” &c.

The object of this statute is of importance, and its execution, if neglected, cannot be overlooked by this Court, upon proper application to their authority.

Such an establishment seems to be essential to the maintenance of the wholesome discipline of the laws, and it is obvious, from the language of the statute, that the legislature ^ nQt jntenc] that the proper subjects of restraint and discipline in a workhouse or house of correction should be committed to the county gaol, any longer than while these houses of correction were preparing for their reception. Ten years after the passing of the statute before mentioned, another was enacted (1797, c. 62) which is founded upon the supposed actual existence of such houses of correction, for it provides for the government thereof, and in the third section is the important provision, that lunatics and mad persons should be therein confined. Now it is obvious that such unhappy persons ought not to be committed to the gaol, which is a place of punishment for crime, and yet it is equally clear that the safety of the community will not admit of their going at large ; the legislature therefore have wisely ordained that they shall be restrained and secured in houses of correction.

Again, in St. 1802, c. 22, the legislature enact important provisions in relation to houses of correction, with regard to the means of labor, and the description of persons to be therein employed, presupposing that the inhabitants of every county had performed their duty in establishing such houses.

With such a series of legislative enactments before us, we are not at liberty to believe that the duty of providing such houses by the Court of Sessions is not imperative. The words of the first statute are mandatory, and there is no discretion given to the Sessions upon the subject, except that they are to be allowed a reasonable time to execute this duty. Now it appears by the answer filed by the justices of the Court of Sessions of this county, that more than twelve years have passed since its establishment, and that no measures have been taken to execute this duty imposed by the laws on that court. Nor do we see any sufficient excuse for its non-performance in the statement given of the expenses which the county has sustained, or in the pres ent state of its finances. Every community which upon its own application is incorporated into a distinct body politic, must be presumed to be capable of sustaining all the burdens which the general laws impose upon such communities. They ought not to be allowed to screen themselves from the duty common to other similar bodies, upon the plea of poverty. Nor indeed would it be in our power to withhold the authority of this Court upon such ground, if made manifest. It is for the legislature to judge' upon such applications, if any partial relief can be constitutionally given.

Now it seems to us that' this law ought to be executed in every county, and the only question is, whether this Court can enforce it, by virtue of their general superintending power over all courts of inferior jurisdiction. And of this we entertain no doubt ; for besides the general authority given by St. 1782, c. 9, the second section expressly provides, that it “ shall have power to issue all writs of prohibition and mandarhus, according to the law of the land, to all courts of inferior judiciary powers, and all processes necessary to the furtherance of justice, and the regular execution of the laws.” The common law, in regard to this subject, is the law of the land, and it is very clear that the Court of King’s Bench’ might by mandamus compel the performance of duty by all inferior tribunals, whether that duly be of a judicial or ministerial nature. Bac. Abr. Mandamus, D and E ; Com. Dig. same title.

Mandamus is a prerogative writ introduced to prevent disorder from a failure of justice and defect of police ; and therefore ought to be used on all occasions where the law has established no specific remedy, and where in justice and good government there ought to be one.” Rex v. Barker, 3 Burr. 1267 ; S. C. 1 W. Bl. 352 ; Rex v. Windham, Cowp. 378.

There being then an omission of duty on the part of the Court of Sessions, occasioned without doubt by their belief that it was discretionary with them whether to cause a house of correction to be built or not, and also by the liberty taken in other counties to neglect this provision of the laws, we feel bound to award a mandamus ; which might be peremptory, as a rule to show cause has been served, and an answer filed which we deem insufficient; but as time will be required for them to proceed in the execution of this duty, and as further opportunity to answer may be reasonable, we grant the writ in the alternative, that is, to command them to cause to be erected within the county of Hampden a house of correction, or to show cause why they shall not have done it, at the next term of this Court in this county. 
      
       See Brander v. The Chesterfield Justices, 5 Call, 548.
     
      
      
         See 3 Bl. Com. 265, and notes by Chitty.
     
      
       The County Commissioners are liable for not providing a gaol, to a sheriff, who has been subjected to damages through want of it, or through a deficiency in it. Commissioners of Brown County v. Butler, 2 Ohio R. 348. The sheriff is, however, liable in the first instance for an escape, though it happen through defect in the gaol. Slemaker v. Marriott, 5 Gill & Johns. 406.
     