Kittanning Borough v. Mast

Opinion by Orlady, J., The defendant, as county treasurer, collected for the use of the borough of Kittaning the sum of $2,160 which represented liquor license fees; and retained out of that sum $108 as his fees for services rendered. He was duly elected treasurer of Armstrong county and the license fees were paid to him under the statutes as such. He is compensated for his services under, and by, the joint resolutions of the county commissioners and auditors by which he is allowed to retain “ the sum of one and one half per cent for all moneys collected by him, and the sum of one and one half per cent for all moneys paid out by him up to $60,000, and thereafter the sum of one half per cent for receiving and one half for paying out on all sums over $60,000.” The Act of April 15, 1834, P. L. 537, secs. 37, 38, defines the duties of a county treasurer to be as follows: “ to receive all moneys, (amongst others, from licenses to tavern keepers) due or accruing to the county, and to pay the same on warrants drawn by the commissioners.” By the Act of May 27, 1841, P. L. 400, sec. 1, the officer is to “perform all the duties enjoined by law on the several county treasurers of this commonwealth.” Section 8 of the Act of May 13, 1887, P. L. 108, provided “ that all persons licensed to sell at retail any spirituous, vinous, malt or brewed liquors, or any admixture thereof .... shall be classified and required to pay to the city or county treasurer annually for such privilege, certain specified sums for the use of the commonwealth, counties, cities, boroughs and townships. Provided that counties, cities, boroughs and townships, receiving part of said licenses, shall bear their proportionate share of the expenses attending the collection of the same.” The distribution of the money received from this source was changed by the Act of J une 9, 1891, P. L. 248, .... the whole of the 8th section being dealt with, and it is, “ amended so as to read as follows: . .''. .” The money to be required to be paid annually for the privilege of selling liquors and admixtures thereof at retail is directed to be paid to the treasurers of the respective counties, [55] and a designated proportion thereof for the use of the cities, counties, boroughs and townships. No reference is made to the proviso of the act of 1887 above cited, and its omission from the latter act is conclusive evidence of the legislative intention to exempt the cities, counties, boroughs and townships from their “ proportionate share of the expenses attending the collecting of the same.” The county treasurer is the only person authorized bylaw to receive the license fees which are held by him for the use of the parties designated in the act of assembly. After the money, “ due and accruing to the county,” is in the county treasury, its disbursement is to be made by warrants drawn by county commissioners under authority of section 37, of the act of 1834. By the act of 1891 the fees to be paid by a person licensed in the borough of Kittanning is fixed at 1150, and of this sum, one fifth of the amount of the license, shall be paid to the treasurer of the borough for its use, and the proportion due to the borough under that act cannot be held to be money “ due and accruing to the county ” under the act of 1834. On the contrary its payment is directed to be made to the treasurer of the borough for the use of the borough. The duty of receiving these fees is “ enjoined upon him by law in behalf of the commonwealth ” and his withholding from the borough part of its statutory proportion is a default in the faithful discharge of his duty. As was said by the Supreme Court in Commonwealth v. Martin, 170 Pa. 118, “ The county has no interest in any part of the license money except that part which the statutes direct shall be for its usé. The treasurer has no power to pay the balance into the county treasury for the use of the county, but is bound to credit it to the account of the owner and pay it to the proper treasurer. This duty is imposed, not on the county, but on the county treasurer. He is the party primarily liable to pay. The county might be ultimately liable as the surety of its officer, and might be allowed to intervene whenever, upon equitable principles, a surety would be allowed to do so; ” and further, “ If it is received for the use of a city, borough, township or school district, it is the money of the municipality entitled to receive it for its own use, and it is the duty of the receiving officer to pay to the owner.” This contingent liability of the county is recognized in Schuylkill County v. Pepper, 182 Pa. 13. [56] The amount to which the borough is entitled to receive is ■ definitely stated in the act of 1891 to be “ one fifth of the amount of the license,” and this is not to be abated by the per centum of the county treasurer or any other expense incident to its collection. In Schuylkill County v. Pepper, 182 Pa. 18, the question before the court was as to the right of a salaried county treasurer, in a county containing over 150,000 inhabitants to retain in his settlement with the county auditors commissions for services rendered such boroughs and townships which were in no way connected with his official duty to the county, and it was therein held that he could not do so. • 'While the Supreme Court says in that case that “The plain letter of the law and public policy demand that the commissions retained by the treasurer out of the boroughs’, townships’ and counties’ portion should be turned into the county treasury, because he received them as a county treasurer,” we do not interpret it as deciding that the county treasurer is authorized, after deducting one fifth of the amount of the license for the use of the county, to make any further deduction from the balance which by the act of 1891 is directed to be paid “ to the treasurer of the respective borough for its use.” In Pittsburg v. Anderson, 194 Pa. 172, it was held that the salaried county treasurer of Allegheny county was not entitled to retain commissions upon the amount of liquor licenses- collected and paid over to the city of Pittsburg by him. The fact that county treasurers in Schuylkill and Allegheny counties were salaried officials did- not affect their duty as to receiving the license fees. The omission to provide for the compensation of the treasurer of Armstrong county for his services in receiving similar fees does not affect his duty in that matter. The emoluments of an officer are prescribed and allowed by law and may be altered, increased, reduced .and regulated by law at ail times except when the constitution has expressly forbidden it: 19 Am. & Eng. Ency. of Lawj 526. Public officers are held subject to any change or increase of duties that may be imposed by the sovereign power, — án'increase of duties conferring upon the incumbent no right to increased compensation, asfor extra services: 19 Am. & Eng. Ency. of Law, 478. The duty i's imposed by the statute,, and if he makes default [57] he is primarily liable to the party to whom the money is due. The primary right being in the borough, this action is properly brought, and the amount not being in dispute, the verdict is right. The judgment is affirmed.