The COMMONWEALTH against The COMMISSIONERS of the COUNTY of PHILADELPHIA, 2 Whart. 286

The opinion of the Court was delivered by Sergeant, J. The return by the defendants on oath, that there is not at this time in the county treasury, nor was there at the time of the application of these relators, any funds applicable to such orders, the whole balance then in the treasury being demanded for current expenses and otherwise specifically appropriated, is a sufficient answer to the request for a present mandamus to the defendants to pay the amount of these claims. This principle was decided very recently in the case of Comm’lth ex rel. Price v.

The County Commissioners, (1 Whart. 1); and the reasons of it are obvious. The county commissioners are the officers elected by the people, under the laws, to superintend the finances of the county. They /authorise all its expenditures, and are responsible for the faithful and prudent management of the concerns of the county in that respect.

If the funds under their control, raised by directions of the county board in whom the authority is vested by law, are not sufficient to meet the claims against t'he treasury, how are they to pay them l Or why should they draw, orders for them l It was decided long since in Comm'lth ex rel. Witmer v. The Commissioners of Lancaster County, that they ought- not to draw orders on an empty treasury; and where the demands exceed the funds, it is an empty treasury as to some of them.

Under these circumstances the county commissioners must exercise a sound and just discretion in reserving money to defray the current expenses of the county; because they are of the first importance to the welfare of the public; and they are precluded by law from expending moneys specifically appropriated, otherwise than for their specified objects. This court would not interfere with the exercise of a discretion so plainly proper and necessary.

But the main point in the present case arises under the loan authorised by the county board, of a certain sum, for the purpose of defraying among other claims, those occasioned by the damages awarded for the opening of Carbon street and Leonard street. This loan was to be raised only in case this court should be of opinion, that under the circumstances, claims such as those of the plaintiffs were valid.

The objection is, that the acts of the 3rd of April 1804 and the 25th of March 1805, after prescribing proceedings to be adopted for the laying out and opening streets in the city and part of the county of Philadelphia, provide that “ unless the damages shall be paid within one year next after the return made by the viewers, all such proceedings shall be void and of no effect whatsoever and that more than a year has elapsed from the time of the return of the viewers of damages, in cases to be settled by the loan above mentioned, without the payment of the damages, in consequence of the want of funds in the county treasury.

Where a year has elapsed from the return of-the viewers, without payment of the damages by them assessed, it is too clear to admit of a doubt, that the county commissioners are not bound to pay the damages. These damages are the consideration money for the property of an individual taken as a street for the public use : but if the public cannot thereby acquire a title to the street, the money is not to be paid. That they cannot, is evident: for the act declares that all the proceedings for that purpose shall be void and of no effect.

If so, they give no right to open or use it as a street; but the property remains vested in the individual as it was before, free from all liability to be opened as a public highway, without new proceedings. The public have no other mode of acquiring the right to the land, (without the express or implied consent of the owner,) but by certain prescribed proceedings; and if -those proceedings are annulled and declared to be of no effect, the right of the public never vests. The public would then pay their money without any equivalent.

If the property is not transferred to the public, but the individual retains it as before, he cannot compel payment for it. The owner is no wise injured by this result. His property is untouched; for unless the damages are previously paid, the street cannot be opened. The only consequence is, that things remain exactly as they were; and there is no street.

Nor ought there to bé a street where the funds of the public (whom the county commissioners in this respect represent,) are in such a condition as not to admit of paying within the year, without greater public detriment and inconvenience than dispensing with the street.

Indeed it would' seem at present that some streets had better be dispensed with than that the expenditure of money from the county treasury should be continued on a scale, which has, Vithin a very few years, involved' the county in debts and responsibilities to near a million of dollars; and which appear by the return in these cases, to be more likely to increase than to diminish, unless great care be taken. Motion denied.