County of Lehigh v. Semmel

| Pa. | Feb 25, 1889

Opinion,

Mr. Justice Sterrett :

This action against the comity of Lehigh was brought by Reuben Semmel to recover fees alleged to be due him for official services as constable of North Whitehall township, performed in obedience to the act of May 13, 1887, the twelfth section of which declares : “ It shall be the duty of each constable in the county to visit, at least once in each month, all places within their respective districts, where any of said liquors are sold or kept, to ascertain if any of the provisions of this or any act of assembly relating to the sale or .furnishing of such liquors have been or are being violated,” etc.

The eleventh or next preceding section of the act, declares: “ The constable of the respective wards, boroughs, or townships in each county, shall in the first week of each term of the Court of Quarter Sessions make returns under oath of all places in his bailiwick, where vinous, spirituous, malt, or browed liquors, or any admixture thereof, are kept for sale or sold, except stores kept by druggists and apothecaries, stating which of said places are licensed under this act, and which are unlicensed,” etc. That section is substantially a re-enactment of similar provisions in § 33, act of March 31, 1856; § 13, act of April 20,1858, and § 6, act of April 12, 1875. It will be seen by reference to these sections that for more than thirty years prior to the passage of the act of 1887, constables were required to make returns substantially the same as those specified in the eleventh section of that act,’ above quoted. One of the obligations assumed by plaintiff below when he accepted the office of constable in March, 1887, was to make returns as required by the laws then in force; and that involved the duty of acquiring the information necessary to enable him to correctly and intelligently make the returns. Compensation for making such returns, including services necessarily connected therewith, is provided for in the fee-bill, and that compensation is as applicable to the returns required by the eleventh section of the act of 1887, as it was to the returns prescribed by prior enactments. In other words, his official obligation to make returns to éach Court of Quarter Sessions is substantially the same now as when he was elected, and that involved the duty of acquiring the necessary information.

The twelfth section of the act of 1887, supra, specifies how that preliminary duty shall be performed, viz., by visiting places where liquors are sold or kept at least once in each month, etc., and enforces the performance thereof by appropriate penalties. The evil intended to be remedied was the general indifference and carelessness that had long existed in regard to making the required returns. While the duty imposed by law was not wholly neglected, it was generally attended to in the most perfunctory manner, without the slightest effort on the part of many constables to obtain such information as was necessary to enable them to make full and complete returns. Instead, therefore, of prescribing an entirely new duty, requiring services not theretofore contemplated, and for which no compensation was provided, the twelfth section of the act of 1887, was intended, we think, to specifically define and more effectually enforce the performance of an existing duty necessarily connected with the making of a proper return, for which compensation is provided in the fee-bill. In the absence of any specific provision in the fee-bill for services necessarily involved in making a proper return, the reasonable inference is that the compensation allowed for that official act was intended to cover all services necessarily connected therewith.

It was not claimed that any separate or specific compensation for the services in question is given by the fee-bill, but it was contended in the court below that under the clause which allows “ same fees for services not herein specifically provided for as for similiar services,” plaintiff was entitled to compensation; and he was accordingly permitted to recover as for .making each return to court and mileage. In this there was error. Assuming, merely for argument sake, that the services in question are separate and distinct from that of making the required return to court, there is no such similarity between them as to justify separate compensation under the clause of the fee bill above quoted.

Public officers who are paid solely by fees take and hold their offices cum onere. They can claim no compensation for any service not specified or provided for in the fee-bill. It is well settled that they cannot be paid out of the public treasury without statutory warrant therefor: Mercer Co. v. Patterson, 2 Rawle 108" court="Pa." date_filed="1828-09-15" href="https://app.midpage.ai/document/sharpless-v-tate-6314358?utm_source=webapp" opinion_id="6314358">2 R. 108; Irwin v. Commissioners, 1 S. & R. 505, and Wayne County v. Waller, 90 Pa. 99" court="Pa." date_filed="1879-05-05" href="https://app.midpage.ai/document/wayne-county-v-waller-6236124?utm_source=webapp" opinion_id="6236124">90 Pa. 99. In some cases the rule may operate harshly; but the remedy, if any is needed, rests with the legislature alone. The courts have no power either to make or amend fee-bills.

In this case, however, the services in question are so intimately connected with making the required return and so necessary to a proper performance of that duty that tliey cannot be regarded as separate and distinct services; but, if they could be so regarded, the fee-hill makes no provision for their separate payment, and hence plaintiff below was not entitled to recover.

It therefore follows that both assignments of error are sustained.

Judgment reversed.