195 A. 103 | Pa. | 1937
Three members of the Board of Viewers brought mandamus proceedings against the Commissioners and the Controller for fees and expenses. It was alleged that they had been appointed by the judges of the Court of Common Pleas; their services had been performed, bills presented according to law, and their approval refused. The county commissioners answered that they were not required to act until the controller had countersigned the bills; this defense was sustained. The controller's return raised the following defenses: that one of the relators is not a freeholder of the county and therefore not entitled to payment; that the relators charged more for the services than they were entitled to for the time they had spent, and failed to recognize fractions of a day in computing the time spent; and that the three members of the board owed more money to the county in taxes than the county owed them for their services. The court below rejected these defenses and, without taking testimony or allowing a jury trial, directed the controller to approve the bills. The controller appeals.
Appellees contend that the approval of the fees and costs of viewers is a ministerial matter involving no discretion on the part of the controller.
The General County Law of May 2, 1929, P. L. 1278, Art. IV, Sections 341 and 349, from which the appellant derives his power, broadly states that the controller is to have the general supervision and control of the fiscal affairs of the county, that he is to "scrutinize, audit and decide on all bills, claims and demands whatsoever against the county," that he may investigate whether *22 "the supplies or services for which payment is claimed have been furnished or performed under legal authority," and that he shall certify such claims as he finds legally due to the commissioners for payment. The corresponding fiscal officers of other political subdivisions have similar powers under similar statutes.* These statutes are not very precise in delimiting the powers and duties of the fiscal officer.
It has been frequently stated that some of the statutory duties of the controller or auditor are ministerial, whereas others are discretionary. The expressly granted power to investigate is a quasi-judicial one indicating the controller is more than a mere rubber stamp or adding machine. On the other hand, he is not an overlord of the county (see Thayer v.McCaslin,
Here the controller resisted payment because he alleges one of the viewers was not a "freeholder." This is disputed. When the claim of the viewer was presented he was entitled to a presumption that he was a de jure officer. The controller is not entrusted with the duty of determining the legal qualification of every county officer and employee who presents a claim for compensation. The right to pass on the qualifications of employees and officers is, in most cases, entrusted to officers or boards or to a court who appoint them, and the question as to whether such bodies or tribunals have heeded statutory direction in deciding qualifications is a judicial one to be determined generally by quo warranto (Brinton v. Kerr,
In mandamus to pay fees and salaries the defense that the relators did not possess certain qualifications has been entertained. Thus in Com. ex rel. Bowman v. Slifer,
The controller asserted the bills of appellees were improper, that they included claims for services not actually rendered. The court should have heard this objection; it could not be summarily disposed of. This does not mean that the controller has, in every case, the power to determine the validity of a claim. When the legislature designates officials or other bodies to determine whether services of employees or of contractors have been performed, and such a power has been exercised, *25
a controller can attack such a finding only for fraud or mistake. Thus a city council allowed the claim of an attorney, and the controller refused to approve it without an itemized bill; this court on mandamus held that, since the amount had been adjusted by a city council having jurisdiction, the controller could not refuse payment: Com. ex rel. v. Tice,
Where no such power is given to other officials or boards, or where the power is given but not exercised, the conclusion reached in Skelton v. Lower Merion Township,
The controller's defense that the services were not performed is not foreclosed simply because he failed to state that he had made an investigation. Assuming such investigation necessary, the court overlooked the strong presumption in our law that the investigation was made: Hibbs v. Arensberg,
The question is raised as to whether the viewers should have recognized fractions of a day in charging for their services, it being the contention that a statutory provision for per diem compensation does not entitle a public officer to collect a full day's pay when the work consumes only a fraction of the day: Act of May 2, 1929, P. L. 1278, Article III, section 171, as amended by the Act of June 9, 1931, P. L. 401, Section 1. The established *26
rule is that where a public officer is paid on a per diem basis, fractions of a day are not recognized. While the question seems never to have arisen in this State, it is practically the universal rule. In United States v. Erwin,
The third defense, that the relators owed more to the county in taxes than was due them for their services, should not have been rejected. The Act of April 28, 1899, P. L. 97, Sec. 2, gives the controller the right to deduct from claims against the county all moneys due to the county for taxes. The Act of April 21, 1937, P. L. 316, which authorizes the county to set off tax claims against salaries, up to 20 per cent and no more, of the compensation due, applies only to "current" salaries *27 due any public officer or employee. The word "current" is plain in meaning; and as the compensation or fees due to these officers are not current but intermittent, such claims would come under the Act of 1899 and not the Act of 1937. Moreover, the effective date of the Act of 1937 was September 1st (see Sec. 1 of the Act of May 17, 1929, P. L. 1808, as amended June 10, 1935, P. L. 293, Sec. 1), and the mandamuses issued before that date. This case comes under the Act of 1899.
Judgment reversed with a procedendo.