Scranton v. Lackawanna County

214 Pa. 509 | Pa. | 1906

Opinion by

Mr. Justice Mestrezat,

This is an amicable action in assumpsit to determine the right of the plaintiff to recover compensation alleged to be due him as the treasurer of Lackawanna county. The facts' were agreed upon by the parties and submitted to the court below in a case stated. The learned trial judge entered judgment in favor of the defendant. His opinion states the law of the case.

The controller was substituted for the county auditors so far as their duties under the act of 1834 required them to approve the compensation of the county treasurer as fixed by the county commissioners. This, as the learned judge says, is the effect of the Act of June 27, 1895, P. L. 403, as interpreted by this court in Lloyd v. Smith, 176 Pa. 213. The constitution provides that “ county officers shall consist of . . . . auditors' or controllers,” and we have held that the duties and powers of each are substantially the same. In Taggart v. Commonwealth, 102 Pa. 354, this court, in construing these words used in the constitution, says (p. 364) : “ The fair import of the language ‘ auditors or controllers,’ in the connection it is used with other official titles, admits of one construction only. It assumes that each subtantially exercises the same powers and performs the same duties.” Not only is this the fair and reasonable interpretation of these words as used in the constitution, but the act of 1895, authorizing the election of controllers in the commonwealth, in its first section directs that the voters shall elect a controller “in place of county auditor.” The effect of the act was to substitute the controller for the county auditors, conferring the powers and imposing the duties of the latter upon the former except wherein the statute provides otherwise. Such was held by this court, in Commonwealth ex rel. v. Samuels, 163 Pa. 283, to be the effect of the Act of June 8, 1893, P. L, 393, creating the office of county controller and which was almost identically the same as the act of 1895, but that act was declared unconstitutional by reason of a defect in its title. In the Samuels case it is said (286) : “The act of June 8, 1893, P. L. 393, while it does not in express terms abolish the office of county auditors in counties having more than 150,000 inhabitants, does so in effect by transferring their duties and powers to a county controller. This is the manifest intent of the act, as gathered from all its provisions, and as especially indicated in section one which directs the election of a controller ‘ in place of county auditor,’and section fifteen which expressly directs how the duties theretofore devolved on the county auditor shall thereafter be performed. Such moreover, even without an express legislative intent, would be the result of the act.”

It follows that the county commissioners could not settle the compensation of the county treasurer without the approval of the controller, and the latter having refused his consent to the rate fixed by the commissioners at their meeting on March 27, 1903, it was not binding on the county and would not render the county liable in this action.

It is contended, however, by the appellant that if no compensation was settled by the commissioners and auditors for the year 1903, the compensation settled on the first Monday of January, 1902, for that year, continued until the end of the treasurer’s term on the first Monday of January, 1904, and that he is entitled to recover the rate of compensation established for 1902. But this contention is clearly untenable. The act of 1834 provides that the treasurer shall receive as his compensation “ a certain amount per cent on all moneys received and paid by him, which rate shall be settled, from time to time, by the county commissioners, with the approbation of the county auditors.” It has been expressly ruled that under this act, the compensation of the treasurer may be increased or diminished during his term of office: Crawford County v. Nash, 99 Pa. 253. It was said by this court in Merwine v. Monroe County, 141 Pa. 162, adopting the suggestion of the trial court, “ that fixing the compensation (of the county treasurer) each year is a judicious exercise of this power.” The appellant entered upon the duties of his office on the first Monday of January, 1901, and the term expired the first Monday of January, 1904. So far as the record discloses, the only action taken with reference to fixing the compensation during his incumbency of the office was on the first Monday of January, 1902, when the commissioners and auditors, in joint session, settled bis compensation by adopting the following resolution: “ That the county treasurer be allowed the same commissions for the ensuing year as that allowed the past year.” This action was in line with the suggestion of this court that it would be a proper exercise of the authority conferred on the commissioners and auditors for them to fix the treasurer’s compensation each year during his official term; and the language of the resolution indicates an intention to fix the compensation annually. The resolution, it will be observed, limited the time during which the treasurer should receive the compensation named in it to “the ensuing year,” and consequently, the rate of compensation fixed at that time was in force and continued only until the first Monday of January, 1903. As the act requires the compensation “ to be settled from time to time,” the commissioners and auditors had the authority to limit the time for which the treasurer should receive the rate then fixed by them, and the rate expired with the limitation. After that date, and without subsequent action by the commissioners and auditors settling another rate, the treasurer could not enforce payment by the county at the rate of compensation fixed for 1902. Had the resolution of January, 1902, not limited the rate to that year, the appellant’s contention would have some basis to support it. That rate would, as appellant contends, have continued until some subsequent action by the commissioners and auditors. But having the authority to settle the compensation “from time to time,” and having exercised that authority by fixing it for a limited time, it became the duty of the commissioners and auditors to again settle the rate at the expiration of the period for which the former rate was to continue. Until such action was taken By the commissioners and auditors, no rate was fixed and there was no liability to the treasurer which could he enforced against the county.

The treasurer was not compelled to serve without compensation, and the failure or neglect .of the commissioners and auditors could not deprive him of it. In the event of a failure on the part of these officials to settle his compensation as required by the act of 1834, subsequent legislation afforded him an ample and complete remedy. That was provided by the Act of April 16, 1875, P. L. 54, 1 Purd. 464, pl. 28. That act provides that “ in every case where the commissioners and auditors have heretofore failed, or shall hereafter fail, to fix the-compensation of any county treasurer, an appeal may be taken to the court of common pleas of the proper county by the commissioners or treasurer; . . . . and on every such appeal the said court shall have power, in its discretion, to fix the compensation aforesaid finally.” This remedy, as we have said, was ample to give the appellant the relief he needed, and being statutory it is exclusive : Act of March 21, 1806, sec. 13, 4 Sm. L. 326, 1 Purd. 77, pl. 5.

The assignments of error are overruled and the judgment is affirmed.