Philadelphia v. McMichael
57 A. 705
Pa.
1904
Check Treatment

Lead Opinion

Opinion by

Mr. Justice Dean,

Thе court below has demonstrated the correctness of its judgment by unquestionable authority and the soundest reasoning. Whatever duties the state chooses for its own advantage to impose upon county officers for the collection of its rеvenue, it cannot so blend such duties with those they owe to the county as to make these duties indistinguishable. Primarily, the officer’s allegiance is owing to the county; the state may as a matter of convenience or economy use him for certаin purposes of her own, but the question still is, is there a liability on the part of the county to the state to which the county through her officers must respond ? If so, in so responding the officer acts for the county and in that respect he is a county officеr. It is wholly immaterial that at the further end of the line the state receives the answer and either accepts, modifies or rejects it, the officer acts throughout as a county officer and comes clearly under the provisions of the 5th seсtion of the 14th article of the constitution and of the act of 1876.

The case before us is only another instance of many like contentions of county officers. Had it not been for the mere inadvertence of the court below shared in by this cоurt, in Phila. v. Martin, 125 Pa. 583, it is probable, that this attempt to give a strained interpretation to the constitution would not have been made. But that case cannot be carried beyond the point clearly decided although it may be so carried by lumping *306the differеnt sources of revenue in that case stated as one sum. All through Judge Allison’s opinion in that case his reasoning is based on the clearly defined thought, that the state may “ lay hold of the treasurer of counties and make them its own officers,” by imposing upon them clearly separate and distinct duties from those of county treasurers and for the performance of such separate and distinct duties may provide for their special compensation. And the state did in that case provide а separate and distinct compensation which, it was held, the county treasurer was authorized to receive but which ivas wholly outside his salary as county treasurer. This was the whole scope of that decision. It was affirmed by this court in a per curiam opinion of less than three lines.

It is obvious that the opinion of the court below in that case, its affirmance by this court as well as the argument of counsel, had in view just one point, viz : whether the county treasurer under the 5th section of article 14, could lawfully receive from the state a separate and distinct compensation, for separate and distinct duties imposed upon him by the state and performed for the state. While in nearly all the items on which the treasurer claimed commissiоns, such commissions were under the opinion in the case referred to properly allowable, there crept into the case a few items which were purely county fees and which should have been paid into the county treasury. As to these items the court below in the case before us well says :

“ From these items of the case stated it will be perceived that the commissions of each year were treated as one sum; that the several sources from 'which they were derived, though recited, were not differentiated or classified and that the license fees were placed at the head of the ‍‌‌‌‌‌‌‌​‌​​‌​​‌‌​​​‌‌‌​‌​‌‌​‌‌​‌‌‌‌‌‌‌‌‌​​‌​‌​‌​‍list, and all the rest treated as ejusdem generis. Either the parties were unconscious that the sources of the treasurеr’s commissions were not all of one quality, or their eyes were fixed on the single point of the right of the treasurer to receive anything beyond his salary.”

Phila. v. Martin, supra, has been cited again and again since it was decided as authority for the prоposition, that the state can, practically, authorize such compensation to county treasurers in addition to their salaries as it may deem just, or as the supposed justice or equities of the particular case may seem to Warrant. Not so, however, The legislature has no power in *307counties having over 150,000 inhabitants to give county fees any other direction than that which leads into the county treasury; has no power to say that part shall go into the county treasury and part into the pocket of the officer. All fees which they may be authorized to receive must go into the county treasury. We have in several cases pointed out, as has the court below, what Phila. v. Martin does and what it does not decide ; we hope this is the last time it will be urged upon our attention as holding that the fees of county officers can have any other destination than the county treasury.

While the court below rightty concedes that appellant is entitled to retain from the statе commissions on licenses and penalties, because in the collection thereof he acted solely for the state, it nevertheless holds, that as to the personal property tax añd municipal loans the county is entitled to the сommissions and they must be paid into the county treasury. As to this the court says: “ In the matter of the personal property tax and the municipal loan tax the defendant was performing his simple duty as city treasurer to pay into the state treasury the monеy which the city was bound to pay.” We directly decided this point in Commonwealth v. Phila. County, 157 Pa. 531, and held that in collection and payment of the personal property tax the treasurer acted only as a county officer. In Knisely v. Cotterel, 196 Pa. 615, it was decided that “ the state may appoint its own agent to collect its own tax even though such agent be also for other purposes a municipal officer and his duties as state agent will not necessarily blend or become part of his duties as а city officer.”

Having therefore flatly decided that the treasurer performed his simple duty as a county officer in paying into ‍‌‌‌‌‌‌‌​‌​​‌​​‌‌​​​‌‌‌​‌​‌‌​‌‌​‌‌‌‌‌‌‌‌‌​​‌​‌​‌​‍the state treasury the personal property and municipal loan tax, we squarely face the constitutional mandate:

“ The compensation of county officers shall be regulated by law, and all county officers who are or may be salaried shall paj^ all fees which they may be authorized to receive, into the treasury of the county or state, аs may be directed by law. In counties containing over one hundred and fifty thousand inhabitants all county officers shall be paid by salary. . . .”

In no instance has this court permitted any equivocal or even doubtful construction of this plain provision, exceрt in the one *308case which escaped its notice in Phila. v. Martin, supra. It is well known that at the date of the adoption of the constitution the aggregate of fees, in counties containing within their boundaries large cities, was enormous ; the fees of a single term of office were equivalent to a fortune. The purpose of the fundamental law was to so reduce this extravagant and burdensome compensation, that it would in some degree be measured by the capacity, work and rеsponsibility of the officer. It is not without interest to note how persistent has been the effort to narrow the interpretation of this section. In Pierie v. Phila., 139 Pa. 573, on a claim by the recorder for fees in addition to his salary, it was held that the law fixed the salary оf the officer at $12,000, which sum could not be exceeded on any pretense. In Commonwealth v. Grier, 152 Pa. 176, it was argued that the district attorney was to be paid partly in salary and partly by fees; this court held he must be paid wholly by salary. In McCleary v. Allegheny County, 163 Pa. 578, the sheriff sought to charge mileage and fees; we held he must be confined to a salary. The same ruling was made in Von Bonnhorst v. Allegheny County, and in McGunnegle ‍‌‌‌‌‌‌‌​‌​​‌​​‌‌​​​‌‌‌​‌​‌‌​‌‌​‌‌‌‌‌‌‌‌‌​​‌​‌​‌​‍v. Allegheny County, in the same volume. In Commonwealth v. Mann, Same v. Shields, and Same v. Latta, 168 Pa. 290, it was decided that the act of 1876 to carry into effect the 14th article оf the fifth section of the constitution was a substitute for all previous legislation on that subject; that thereafter, all county officers in counties having a population of over 150,000 must be paid by salaries and that they could lawfully receive nothing morе. In Schuylkill Co. v. Pepper, 182 Pa. 13, the county treasurer claimed fees ofi liquor licenses, because he had to divide the money realized among the different townships in such proportions as they were entitled thereto. This, the treasurer argued, was a tоwnship duty and he was entitled to additional compensation. We said no, he received the money as county treasurer and must pay it over as county treasurer and his compensation was his salary alone. In City of Pittsburg v. Anderson, 194 Pa. 172, it was sought to rest the clаim of the county treasurer for fees in liquor licenses on Phila. v. Martin, supra. It was argued that the state in turning over a share of the fees to the county, turned over its own money in the nature of a gift to the county, therefore, in receiving and paying out this monеy, the treasurer *309acted as the mere agent of the state and was entitled to fees. We held his salary as county treasurer was all he could lawfully claim. And now we have the present appeal.

It will be noticed that, through most of the years thаt the act of 1876 carrying into effect the constitution has been in force, county officers have been dissatisfied with it, and have sought to narrow and restrict it, yet as was said by Judge Thayer in Pierie v. Phila., supra. “ The prohibition of the receipt of fees fоr their own use and the regulation of their compensation by fixed salaries exclusively could hardly have been expressed in plainer language than that which is written in the constitution. It is impossible for any ingenuity to prevail against it.”

The judgment of the court below is affirmed.





Dissenting Opinion

Mr. Chief Justice Mitchell

dissenting:

I would reverse this judgment for thrеe reasons. The first, which is technical, is that the action is too late. The appellant’s accounts with the state ‍‌‌‌‌‌‌‌​‌​​‌​​‌‌​​​‌‌‌​‌​‌‌​‌‌​‌‌‌‌‌‌‌‌‌​​‌​‌​‌​‍have been settled, the settlement has not been appealed from, and is not now open to question in any other way thаn that which the statute provides.

The second reason is also technical but insuperable. The city has shown no title to the money in the hands of the appellant. The tax was imposed by the state on the county, and it was held in Com. v. Philadelphia County, 157 Pa. 531, that the treasurer acts on behalf of the county until actual payment into the state treasury so that the county is liable for the loss by embezzlement of its treasurer before such payment. By such payment, however, the money becomes the money of the state. Neither that case nor any other has held that it continues to be the money of the county after the latter has once discharged itself -of the tax by payment. Though under the law the state returns part of it to the county, yet it does sо as a gratuity and on its own terms. It does not permit the county to retain its ultimate share from time to time on its collections, but requires the whole to be paid in full and then returns the county’s share. The legislature might at any time repeal the allowance of this' gratuity, without in any way affecting the status of the money up to and including its payment into the treasury. In settling therefore with the county treasurer *310for his compensation after he has paid in the full amount, the state is making an allowance out of its own moneys, аnd it alone has any title to claim a repayment from him. If through illegal allowances to the treasurer the county receives less than its legal due, its only claim is against the state for a proper settlement.

But thirdly, waiving all technicalities, and on the broad ground of the substantial merits, the case is with the appellant. Notwithstanding the criticisms passed upon Philadelphia v. Martin, 125 Pa. 583, and the efforts to restrict its application, I am of opinion that it was rightly decided, that it should be followed, and that it rules this cаse. In Knisely v. Cotterel, 196 Pa. 614 (633), it was said, “There is no prohibition to the state to impose additional duties to itself on city officers virtute officii.. The state may appoint its own agents to collect its own tax even though such agent be also for other purposes a municipal officer, and his duties as state agent will not necessarily ‍‌‌‌‌‌‌‌​‌​​‌​​‌‌​​​‌‌‌​‌​‌‌​‌‌​‌‌‌‌‌‌‌‌‌​​‌​‌​‌​‍blend, or become part of his duties as a city officer.” This was what the state did in the present case, and the effort to reach a contrary conclusion, however desirable the result may be on grounds of public policy, does not appear to me to rest on sound construction of tbe statute or the constitution.

Thompson, J., concurs in dissent.