Mansel v. Nicely

Opinion by Mr. Justice Fell, Two questions of importance are raised by the assignments of error in this case. One relates to the right of the appellee, a county commissioner of Lycoming county, to the allowance of $8.50 per day for each of the three hundred and six days on which he was in attendance at his office, and the other to the allowance of the daily expenses of travel from his home to his office. The pay of county commissioners is fixed by the act of May 7, 1889, P. L. 109, and is “for each and every day actually and necessarily employed in the discharge of the duties of their office.” There was an actual employment on each day for-which a recovery was allowed, and the dispute was mainly as. to the necessity of the employment. The office of county commissioner is an important one. In Vankirk v. Clark, 16 S. & R. 286, it was said: “ The commissioners of a county are coeval with the settlement of a county, are the public agents of the county with respect to all money concerns, and must necessarily possess an authority without any express grant from the legislature commensurate with their public trusts and duties.” By numerous enactments they are charged with the perform [375] anee of responsible duties, and are made liable to a fine for the neglect of any of them. The amount of work which they are required to do differs in different counties. In some counties a weekly, or perhaps a less frequent session of the board, is all that is necessary; while in others daily sessions are required. The presence at their office of one or all of the commissioners may be important when daily sessions are not necessary. It is their duty to keep their office open and be in attendance whenever it is necessary, and the necessity is not to be determined alone by the hours of actual labor or the amount of work done. The convenience of the public who have business with the office is to be considered, and the commissioners should be in attendance whenever their presence is required by the reasonable demands of public business. The duties of the commissioners cannot be delegated to their clerk. He is a clerk merely, with duties fixed by act of assembly. It is difficult to determine exactly where the line should be drawn to secure the proper service of the interest and convenience of the public on the one hand and to guard against an abuse of the office on the other. Each case must depend upon its own facts, and the necessity for attendance must be left largely to the discretion of the commissioners themselves. They are public officers, presumably acting in good faith, and the presumption is in favor of the correctness and regularity of all their official acts. Their conduct and their discretion as to attendance are subject to review on an appeal such as this, and where there is any evidence of an abuse for the purpose of unfairly increasing the emoluments of their office the question is for the jury. But to carry the question to the jury there must be some basis for a finding more substantial than a mere conjecture whether public officers could have done their work in a less number of days. The appellee in this case was in actual attendance at his office on each day for which a charge has been allowed, there was a meeting of the board which he attended each day, and on all but nine days business requiring the action of the board was transacted. The work of the commissioners for the year had been largely increased by disastrous floods which had injured and destroyed bridges, and over $100,000 had been expended in repairing and rebuilding them. The account of the appellee, verified by his oath, had been submitted to the county auditors, [376] and by them audited, adjusted and settled; and there was not one word of testimony to show that his attendance for any day for which a recovery was had was not necessary. What then was there to submit to the jury upon this point ? The affirmative of the issue was with the appellants, and they had failed to show that any of the charges, except for two days’ attendance at a convention of county commissioners, which the court directed the jury to disallow, were improper. The sum of all the evidence is that if the work of the whole year had been lumped together it could have been performed in a comparatively few days. The duties of the commissioner are fixed by law; they arise day by day and are to be discharged day by day as they arise, and he is liable to severe penalties for the neglect of any of them. It would be manifestly unjust to allow a jury, after the services were performed and without evidence that they were not honestly and faithfully performed, to deprive him of Ms just compensation. The right to an allowance for traveling expenses is given by the act of May 13, 1889, P. L. 200. Such a right cannot rest upon usage or custom: Albright v. County of Bedford, 106 Pa. 582. All general laws upon the subject were repealed by the act of May 7, 1889. Two acts relating to the subject were passed M that year. The act of May 7 fixes the compensation of county commissioners at $8.50 per day, and provides : “ That the pay allowed by tMs act shall be M lieu of all other compensation and charges for the individual services and expenses of said commissioners.” The act of May 13 allows county commissioners “ their traveling expenses necessarily incurred in the discharge of their official duties.” It will be observed that the first act allows nothing for mdividual services and expenses, and the second act allows traveling expenses Mcurred in the discharge of official duties. For the purposes of construction, as these acts relate to kindred subjects and were passed within a week of each other, the entire scope of the legislation should be considered. The second act does not repeal any part of the first, but supplies something for AvMch it had not provided. The first act took aAvay the right of allowance for all individual expenses; the second conferred the right to traveling expenses. It supplied an omission in the first act. An implied repeal is a question of intention, and the presumpti on against the intention [377] to repeal is strengthened by the fact that both acts were under consideration by the legislature at the same time. If then the allowance for all individual expenses is forbidden, and only traveling expenses necessarily incurred in the discharge of official duties can be recovered, has the appellee a right to have repaid to him the expenses which he incurred each day in going from his home to his office and returning ? These would seem to come under the head of individual expenses, the collection of which from the county is forbidden by the act of May 7. ~\Vh.enever the official duties of the commissioner call him from his home or his office to different parts of the county, or it may be of the state, his traveling expenses are incurred in the performance of an official duty, and he is entitled to an allowance for them under the act of May 13. Such an expense, we think, is the only one within the meaning of the act. The purpose of the legislation to exclude all individual expenses and to allow only for traveling expenses incurred in the discharge of an official duty seems to be clear. Of the former the officer knew when he accepted the office, and he took it with the additional burden which his place of residence might impose. Of the latter he could not know certainly, as it would depend upon future exigencies, and it was a burden which might be made greater or less by the requirements of his official duties. The assignments of error which relate to this subject are sustained, and the judgment is reversed with a venire facias de novo.