Walsh v. Luzerne County

36 Pa. Super. 425 | Pa. Super. Ct. | 1908

Per Curiam,

While the jury in the criminal case directed by their verdict that the costs should be paid by the county, it seems to us clear that this did not impose upon the county liability for fees which were not legally taxable. Possibly, if an extremely technical view be taken of the case stated, it could be argued that the validity of the taxation of the fee in question as part of the costs of the case could not be questioned in this action. But counsel expressly waived this objection and argued, and requested us to dispose of, the case as if the question of liability of the county for the fee were duly raised in a direct proceeding. Another point to be noticed is that the appellant’s counsel concede that the officer serving the warrant cannot claim the fee for his own use, although it is the legal fee prescribed for the same service when performed by a constable. This concession, say counsel, is not based on the Act of July 14, 1897, P. L. 266 — which they ciaim does not apply — but, to quote from their brief, “ on the broad ground, which has been repeatedly recognized in the courts of Pennsylvania, that no officer of the law should be allowed to collect two fees for the same public service; in this case one from the state in the shape of salary and the other from the county by virtue of the finding of a petit jury.” In view of this concession it seems unnecessary to discuss or decide the question of the applicability of the act of 1897, to a member of the state police force. While differing in their reasons both parties give assent to the proposition that the officer cannot recover the fee in his own right. Therefore the question upon which the case turns is, whether an officer who is prevented by statute or by judicially established principles of public policy from demanding and collecting for his own use a fee for serving a criminal warrant may demand and collect it for the use of the commonwealth, The grounds upon which the contention that he may is based are: first, that because the officer is an agent and employee of the state and paid by the state all fees and costs otherwise going to him in that capacity belong to the state; second, that the doctrine of substitution and a principle analogous to that of subrogation in equity are applicable. The earnest and able argument of appellant’s counsel in support of these propositions seems to us to be fully considered and satisfactorily answered in the opinion filed by the learned judge below. We adopt his conclusion, and his reasoning in support of it, so far as it is based upon a consideration of the case apart from the act of 1897.

The judgment is affirmed.