statute is void ab initio and only remains an operative fact to be given effect where equities cannot be ignored
How later courts described this case
- statute is void ab initio and only remains an operative fact to be given effect where equities cannot be ignored
Written by the judges who cited it.
The opinion
Concurring Opinion by
Me. Justice Cohen:
I would have arrived at the same result by simply holding that mandamus does not Be. It is elementary that a writ of mandamus cannot lie to control the discretionary actions of a public official. Here, appellants seek not only to compel the public officials sitting as the Board of Finance and Revenue to exercise their discretion, but they seek to compel them to do so in a manner contrary to the language of the very act that created the Board, namely, to go back further than five years in the granting of refunds. Thus, even if an appeal to the court below from the Board would lie, which it does not, Land Holding Corporation v. Board of Finance and Revenue, 388 Pa. 61 , 130 A. 2d 700 (1957), and even if the final act of the Board were subject to review in mandamus, which it is not, Calvert Distillers Corporation v. Board of Finance and Revenue, 376 Pa. 476 , 103 A. 2d 668 (1954), and even if mandamus could *520 be used as an alternative for an appeal, which it cannot, Kaufman Construction Co. v. Holcomb, 357 Pa. 514 , 55 A. 2d 534 (1947), mandamus still would not lie for the purpose of compelling these public officials to exercise discretion in an area where they have none. The Board cannot be required to pass upon appellants’ petition and by so doing violate the very terms of the statute by which it was created, and violate the very authority given by the legislature to the Board to function in refund matters.