217 Pa. 591 | Pa. | 1907
Opinion isy
On December 23, 1905, two of the commissioners of the county of Berks issued to the appellant a warrant upon the county treasurer, payable to his order, for $2,200. It appeared upon its face to be for “ special attorney county cases.” It was approved and countersigned by the deputy county controller. Upon presentation to the county treasurer payment was refused and the holder of the warrant — this appellant' — ■ applied to the court of common pleas for a writ of mandamus to compel its payment. Edwin C. Ruth was the treasurer at the time the writ was applied for, but, his term of office having expired before the return day of the alternative writ, his successor, Henry H. Fry, was, upon the petition of the appellant, substituted as respondent. He made return to the writ. It was demurred to by the petitioner, and on the demurrer judgment ivas entered for the respondent.
In the statement of the questions involved the appellant says one is, “ Has a board of county commissioners, having a county solicitor, regularly appointed under the provisions of the Act of May 22, 1895, P. L. 101, the power to employ special counsel to assist the county solicitor in certain specified litigation in which the county is a party ? ” This question was not passed upon by the court below, for the judgment in favor of the respondent was based'entirely upon the fact alleged in the return and admitted by the demurrer to be true, that the warrant was not founded upon any contract of the county of Berks with the appellant.
The Act of May 22, 1895, P. L. 101, authorizing the appoint
Upon the assumption that the averment in the return that the county commissioners never authorized anyone to employ the appellant as counsel in any of the cases for which payment was demanded, except in the case of the county of Berks v. F. F. Bressler (which ought to have been, as appears in the sixth averment of the return, Commonwealth v. F. F. Bressler), might be construed as an admission that the county had employed the appellant in that criminal prosecution, the learned judge held that even if a valid contract can be entered into by the county for the employment of special counsel in civil cases, no such contract can be entered into in a cri minal case. It is not within the express power of county commissioners to employ special counsel in any case, civil or criminal, and, even if it be within their implied powers to do so in a civil case, there is no such power in criminal cases. The commonwealth itself administers its criminal laws. It commits to a special officer the duty of prosecuting offenders against its peace and dignity and bringing them to punishment, and a county has no more interest in public prosecutions than any private individual, and county commissioners, therefore, have no more right to take out of the public treasury moneys to pay for special counsel in criminal prosecutions than has an individual. The prosecution of Bressler may have been instituted because he had criminally appropriated or withheld moneys belonging to the county, but the object of his prosecution was not to secure the return to the county of any moneys which it may have lost through him, but to vindicate public justice, and the county, as a county, had, therefore, no more direct interest in his prosecution than any individual. The rights, privileges and properties of a county are no more involved in public prosecutions than the rights, privileges and properties of an individual. That a county may pay the costs of public prosecutions makes no difference as to this. It pays such costs out of public moneys simply as the representative of the state, and because the state commands it to do so.
This warrant, having been illegally issued, if it was not founded upon a contract between the county of Berks and the appellant, any taxpayer, after its issuance, could have filed a bill to enjoin its payment. Such bill would have been against the treasurer of the county. He was notified of the illegality of the warrant, and warned not to pay it. If he had not been county treasurer and the notice of its illegality had come to him as a citizen, a court of equity would have been open to him, but, being himself the treasurer of the county, what would have been sufficient to enjoin such officer from paying the warrant is sufficient to justify his refusal to pay it. He would hardly be expected to file a bill against himself, and, upon the notice received 'by him, it was his duty to refuse payment. “ A county treasurer is not required to pay all warrants drawn upon him, but only such as are founded on orders of the board of supervisors for the payment of demands legally chargeable
The assignment of error is overruled and the judgment of the court below is affirmed, without prejudice to the right of tbe appellant to recover for any services which lie may have rendered in civil cases in pursuance of a legal contract with the county commissioners that he should render them.