74 Pa. 74 | Pa. | 1873
The opinion of the court was delivered, July 2d 1873, by
The subject of this controversy is the military fund paid into the hands of the defendant as treasurer of York county for the years 1868 and 1869. If the county auditors had authority to settle the treasurer’s account for this fund, it is conceded, the case is at an end, no appeal having been taken by the Oommonwealth from the settlement of the auditors. This, therefore, is the question to be determined. To prevent confusion, it is proper to say at once that the relief fund established by the Act of 1862 has no connection with the military fund. The relief fund account was by that act to be settled by the county auditors, but the settlement of the account for the military fund depends on other laws.
Before examining the legislation specifically applicable to the military fund, it is proper to notice the general jurisdiction of the county auditors over the accounts of the treasurer for funds col
The act to revise the militia system and to provide for the training of such as shall be uniformed, passed the 17th of April 1849, repealed all former laws and supplements to laws on the subject of the militia, except those parts relating to the adjutant-general, to contested elections, courts-martial, and calling the militia into the actual service of the United States: Pamph. L. (1849) 670, § 21. This act, therefore, furnishes a beginning to the inquiry as to the military fund. Under this law, after the enrolment, all ununiformed persons between 21 and 45 years of age are subjected to a payment of fifty cents, which the 8th section, p. 666 — 67, required the county commissioners “ to add to the amount of the state tax of each delinquent, to be collected with the same under the same authority, and in all respects as authorized in the case of the collection of county taxes.”
The 10th section then provides for the duties of the county treasurer. Thus this military fund is assimilated directly to other state and county.funds in its collection and custody, and there being no other provision in the Act of 1849 as to the settlement of the county treasurer, it must be audited and settled in the same manner as they are. This point is settled by the next act, a sup
Thus, throughout the act, the county treasurer is made the custodian of the military fund, as he is of other funds of the state and county, while the law is silent as to the settlement of his account. There being no repealing clause, and no .substitute, his account is necessarily to be audited and settled under former laws. But as the court below was evidently misled by certain provisions of the Act of 1858, it is proper to notice them. The judge held, that the treasurer’s account was not to be settled before the county auditors, but by a military board. This was a misapprehension of the 10th section. It provides for the creation of a board of officers, whose duty it is made to “ audit all just claims on the military fund of such brigade for contingent expenses and for the per-diem pay of all officers, musicians and privates, for service and duty performed in and for said brigade.” The evident purpose of this board is to adjust and allow the just claims upon the military fund before payment shall be made by the treasurer, for the section immediately proceeds to add: “ and shall make their-
Thus even the accounts of the board of officers are to be settled before the county auditors. They bear the same relation to the military fund that the commissioners bear to the county funds, in determining the just claims upon it and settling their accounts, like the commissioners for its proper administration. This is the'check provided by the law against the allowance of unjust claims upon the military fund, and for a periodical settlement therefor. Thus the account of the county treasurer, who can pay only on the orders of the board of officers, must necessarily be audited and settled afterwards, and of course according to prior laws, for no substitute is provided in this law.
Next we find the last proviso in the 28th section of the Act of 15th May 1861 (Pamph. L. 757), suspending, during the existence of the war, any payment for military parades to volunteers not in actual service, and directing the military tax to be collected and paid into the treasury of the Commonwealth to meet the expenses of the militia mustered into actual service. That this was but a different appropriation, and did not change the mode of collecting and accounting for the military tax, is made obvious by the Acts of 4th March 1862 (Pamph. L. 76), and 8th April 1862 (Pamph. L. 314). The latter made a new appropriation of the tax to the relief fund, and the several county treasurers were authorized and required to pay the same on orders of the commissioners for that purpose. The receipt and disbursement of the military fund remaining thus with the county treasurer, his account remained to be settled as before, for no change in this respect was made. In the year 1864 the militia system again underwent a general revision in the Act of 4th May (Pamph. L. 221). Under this act each county having the minimum number of enrolled militia constituted a brigade, and the treasurer of each city and county was expressly required to receive and disburse all moneys arising from the act payable into the brigade fund ; and this fund was further increased by numerous fines and penalties: vide §§ 71-73, 76, 78, 79, 80, 87, 88, 89. This act provides no mode of auditing or settling the accounts of the treasurers, and the repealing clause is only of inconsistent acts. Thus again the law left the account of the treasurer to be settled as provided for in prior laws. The 99th section, p. 240, also pn.
Judgment reversed, and a venire facias de novo awarded.