The opinion of the court was delivered by
GibsoN, C. J.Although power to grant writs of mandamus was given to this court by the legislature so early as 1722, no trace 'of its existence in practice is found in our books before the case of Respublica v. Clarkson, 1 Yeates, 46, which was determined in 1791, since when recourse has been frequently and advantageously had to it where there was a clear right without a specific means to enforce it. It, however, involves- an exercise of extraordinary power, which fits it for use only in extraordinary cases, where there would otherwise be a failure of justice. Although demandable of common right, it is truly said to be grantable at discretion; for an indiscriminate use of it, would certainly lead to its abolition. With us, it is supposed to stand very nearly, as it did in England before the Stat. 9 Ann, Ch. 20; and an early but salutary doubt seems to have been entertained of the propriety of substituting it for a remedy which merely happens to be more tedious. . That doubt has since been resolved into certainty by the judgment in the Commonwealth, at the relation of the Insjjcctors of the Philadelphia Prison v. The Commissioners of Alleghany County, 16 Serg. & Rawle, 317, in which a mandamus to compel the commissioners to pay an account, before recovery had in an action against them in their corporate capacity, was refused, because the extraordinary powers of the court are not to be invoked before the right has been established, where it is susceptible of it, by a verdict and judgment, br other proceeding in the nature of it. In the case at bar, there is no room for objection on that ground; and the inquiry is, whether the respondents are disbursing officers for the purpose of paying these damages, without which, it were immaterial that they have been assessed by viewers whose report has received the approbation of the proper court according to the law then in force. The state, having created the debt and provided the means of payment, can be called on only in the mode prescribed by law; and if the means have been withdrawn by inadvertence or design, the deficiency can be supplied only by the legislature. Although private property may be taken for public use, consistently with the constitution only on compensation made, it never has been thought that the state may be made an involuntary party to a judicial proceeding to enforce it. Compulsory process against a sovereign, would *519be a novelty in jurisprudence; for no instance is known, of an action or other proceeding against one without permission had in the constitution, or an act of the legislature. Nor may the public funds be intercepted in the hands of the proper officers, or diverted from objects to which they have been appropriated. Aside from the question of dignity, it is evident that the disorder which such 'an interference would introduce into the public affairs, would be intolerable; and if further argument against it were necessary, it Would be found in the Constitution, art. 1, -§ 10, which declares, that “no money shall be drawn from the treasury except in consequence of appropriations made by law.” The point, then, is, whether the respondents are disbursing officers for the purpose of paying these demands; for it is only to enforce obedience to the plain directions of the laws, that they are answerable here. The demands of the relators are for damages separately - reported by Viewers) under the act of 1827, which it was the business of the acting canal comihiSsioners to pay. By the act of the 25th of April, 1826, the board'was directed to appoint with that title, one or more of its members; to the performance of separate executive duties, including the whole business of disbursement, for which he was required to give security in 50,000 dollars, the funds being, put into his hands by direction of the board on warrants drawn by the governor. Being thus charged, he made all payments in the course of the business on his own responsibility, and settled his accounts with the proper department of the government; and on this footing, matters remained till the 6th of February, 1830. On that day the legislature directed the governor to appoint a new board, with the specific powers of the old one, together with others to be particularly noticed; and supplied the place of acting canal commissioner with that of an officer called a superintendent, whose duties of disbursement are limited to payment o.f the contractors. Of the additional powers given to the new board, the first has respect to assessments by appraisers under the new law, and it is therefore distinctly prospective as regards the subject of its operation. The remaining power is alleged to bo more material, as it authorizes the respondents ’to compromise all cases of damages then .depending in court. Taking, then, the reports ’of the viewérs in the case under consideration, to be depending, according to the meaning of the legislature, (for having received the final act of the court, they are clearly not so according to the technical méaiiing- of the word,) how far, and for what purpose;'have the respondents power to act on them? Clearly no further.than to offer of receive terms of compromise, and to make satisfaction according to them when accepted. . They seem not to have an unqualified power to pay the whole or a part; and whether they were purposely restricted in this par*520ticular, by reason of a belief that the state bad been wronged by the viewers, it is not our business to determine, it being sufficient for the purpose of the present decision, that the respondents have not withheld the public money from any object to which it was legally appropriated. But even had they a discretionary power over •the subject, it would be for them to judge of its exercise, and, of course, without accountability here. The application of the rela.-tors must therefpre be refused.
Rule discharged.