35 A.2d 733 | Pa. Super. Ct. | 1943
Argued November 8, 1943. The auditors of the County of Carbon, a county of the sixth class, presented a bill for their services which the county commissioners refused to pay. The auditors secured a writ of alternative mandamus directed to the county and the commissioners; the commissioners moved to quash; the motion was overruled. Then the commissioners filed a "return and answer"; the auditors demurred; and the court overruled the demurrer and quashed the writ. The auditors appealed.
I. The auditors' bill for $1,730.64 covers the services of the three auditors rendered from July 28, 1942, to November 14, 1942, at the rate of $6 per day and mileage. Payment was refused for the reason, inter alia, that the appropriation for auditors' compensation for 1942 had been exhausted when the bill was presented. The commissioners had appropriated $3,000 for auditors' compensation, and that sum having been expended for that purpose, they declined to make further payments.
The General County Law of May 2, 1929, P.L. 1278, as supplemented by the Act of July 18, 1935, P.L 1184, § 3, and as amended by the Act of July 2, 1941, P.L 236, § 1, 16 P. S. § 370, requires the commissioners in counties where there are no controllers to adopt an annual budget and "necessary appropriation measures required to put it into effect." Provision is made for "supplemental appropriations for any lawful purpose from any funds on hand or estimated to be received within the fiscal year and not otherwise appropriated," and for the transfer of unencumbered balances within the same fund or from one spending agency to another. It also provides: "No work shall be hired to be done, no materials purchased, no contracts made, and no order issued for the payment of any moneys by the county commissioners which will cause the sums appropriated to be exceeded."
A budget, under the Act, is more than a mere estimate *302
of probable revenues and expenditures. It is a method whereby expenditures are controlled and limited during the fiscal period by designating the amounts of money legally at the disposal of the commissioners, and the purposes for which they may be expended. Construing similar legislation applicable to cities of the first class, it was held that such a provision is not merely directory, but that it is in the highest degree mandatory. InLeary v. Philadelphia,
County commissioners, however, cannot, by adopting a budget, limit or avoid liabilities imposed upon the county by the Constitution or by statutes. The call of the Constitution or of a statute is paramount, and they must respond to it by providing sufficient appropriations. In Bladen v. Philadelphia,
Whether, when a constitutional officer is confronted by an appropriation insufficient to pay his statutory compensation, he should first apply for a mandamus to *304 compel an increased appropriation and follow with an other mandamus to compel payment of his compensation, is a question which, in view of our disposition of this case, we need not now decide. Possibly, in such a case, he might secure relief by joining both prayers in one petition. It seems unnecessary to require him to institute two proceedings; but we express no opinion upon that question.
II. The second ground of the commissioners' defense is that the auditors' compensation is not regulated by the act upon which they base their claim. The auditors claim under a general statute; the commissioners stand upon a local act which has not been specifically repealed; and thus is presented the question of implied repeals of local acts by general statutes.
The Act of March 9, 1865, P.L. 292, provided "that the . . . . . . county auditors of Carbon County shall . . . . . . receive . . . . . . the sum of three dollars for each day they shall each actually and necessarily attend to the duties of their offices: Provided . . . . . . the pay, as aforesaid, allowed to each auditor, shall not exceed eight days; and for all time, . . . . . . spent by said auditors, over eight days they shall receive, therefor, the compensation now allowed by law, and no greater." The compensation "now allowed by law" was, under the Act of April 15, 1834, P.L. 547, § 60, $1.50 per day, "for each days necessary attendance upon the duties of their offices."
The Act of May 12, 1887, P.L. 95, § 1, 16 P. S. § 2561, provided that "the auditors of each county shall be allowed" three dollars a day and mileage. It contained no repealing clause, and inMorrison v. Fayette County,
The Act of May 8, 1929, P.L. 1634, § 1,
Although the opinion does not distinctly avow it, the Morrison
case was grounded upon the principle, stated in the syllabus: "A general statute without negative words, does not repeal a previous statute which is particular, even though the provisions of one be different from the other." From this general principle was drawn the corollary: "It is against reason to suppose that the legislature in framing a general system for the State, intended to repeal a special act which the local circumstances of one county had made necessary": Brown v. County Commissioners,
After the Morrison case, the impact of the municipal classification statutes upon local acts began to receive increasingly more attention by the courts. Starting with Com. exrel. v. Macferron,
The amendment of November 6, 1923, to the Constitution (Art. III, § 34) expressly authorizes the legislature to classify political sub-divisions, and provides that "all laws passed relating to each class, . . . . . . shall be deemed general legislation within the meaning of this Constitution." The Act of May 8, 1929, supra, although it applies to only one of the several class of counties, is a general law. It is mandatory; it provides that the compensation "shall be six dollars per diem". (Italics supplied.) There is nothing in the text of the act, or other factors which are to be considered in the construction of legislation (see Statutory Construction, supra, § 51, 46 P. S. § 551) showing an intention to save local acts upon the same subject from repeal, and, therefore, *308 following the presumption, we are bound to hold that it repealed the local act of March 9, 1865, supra.
III. The third contention of the commissioners, set up in their return, is that the auditors "have not performed their work with diligence, . . . . . . they have procrastinated and have delayed the completion of their work, so that the same was not completed until on or about December 1, 1942, when . . . . . . their work and duties . . . . . . should have been performed and completed prior to June 30, 1942. Because of the excessive, unreasonable and unnecessary amount of time . . . . . . they intend and seek to obtain from the funds of Carbon County excessive, unreasonable, oppressive and unlawful compensation, and the defendant commissioners, who have charge of ordering the disbursement of county funds and who, in their discretion, are to pass upon the justness, reasonableness and lawfulness of money claims against the County, have determined and adjudged that the claims of the county auditors now sought to be enforced in this proceeding are excessive, unreasonable, unnecessary, oppressive and unlawful."
To this the auditors reply, in effect, that they (1) are vested with discretion to determine the number of days necessary for the performance of their duties, and (2) that the duty of the commissioners to pay is purely ministerial.
We do not experience the slightest difficulty in dealing with their first proposition. It is clearly untenable. Uncontrolled and unreviewable discretion is, under our system of government, rarely committed to public officers, and discretion to transfer the public funds to the private purses of public officers has never been recognized. "The turpitude of acting both as a judge and party in the same cause, cannot but be obvious to the dullest comprehension:" Boyer v. Potts, 14 S. R. 157, 158, per GIBSON, J. The Act of 1929, supra, expressly limits auditors to "six dollars per diem, for each *309
and every day necessarily employed in the discharge of their duties." (Italics supplied.) Undoubtedly, there is a presumption in favor of the correctness and regularity of their official acts, but their claims for the time alleged to have been devoted to official duties are subject to review: Mansel v. Nicely,
This duty devolves upon the commissioners. Upon them rests an obligation to guard the county against unlawful or exorbitant charges. In counties where there is a controller, he is required to "scrutinize, audit and decide on all bills, claims and demands whatsoever against the county": The General County Law of May 2, 1929, P.L. 1278, § 349, 16 P. S. § 349. In counties which have no controller, this duty must necessarily be performed by the commissioners. The authority of county commissioners has not been comprehensively defined by legislation, but the cases clearly mark the path of their official responsibilities. "The commissioners of a county . . . . . . are the public agents of the county, with respect to all the money concerns; and must necessarily possess an authority, without any express grant from the legislature, commensurate with their public trusts and duties": Vankirk v. Clark, 16 S. R. 286, 289. "County commissioners are the agents, trustees and managers of the county and its financial affairs. They act in a fiduciary capacity, and the money of the county is expended on orders drawn by them on the county treasurer": Com. v. Krickbaum,
The point under consideration is also exemplified by Fey'sAppeal,
The performance of this duty calls for investigation, deliberation and the exercise of judgment, and for this the commissioners are clothed with ample discretion. In that regard, they possess the powers and authority exercised by the county controller in Com. ex rel. v. Woodward,
We announce no novel proposition when we hold that with respect to many of their duties county commissioners are clearly vested with wide discretion with which the courts will interfere only upon an indubitable showing that the discretion has been abused. This has been the holding of the courts from the earliest to the latest times: Com. v. County Commissioners, 5 Binn. 536; Parkerv. Lancaster Co., 1 W. S. 460; Com. ex rel. v. Perkins,
161 A. 359, Thayer v. McCaslin,
Having demonstrated that the duty which they were called upon to exercise in relation to the auditors' claims is discretionary, not ministerial, it is scarcely necessary to add that the auditors cannot secure an adjudication of their claims in a mandamus proceeding.
IV. The auditors argue that if mandamus is not available to them, they are without redress. The commissioners contended, and the court below held, that assumpsit was the proper remedy. The auditors insist that, under Skelton v. Lower Merion Township,
Judgment affirmed.