Graham v. Schuylkill County

Opinion by Rice, P. J., The Act of June 26, 1895, P. L. 392, makes it the duty of the sheriff to give notice of general elections by advertisements in at least three newspapers, if there be so many published in the county. Subject to the limitations expressed in the act the discretionary power to select the newspapers is vested exclusively in him. In contracting for the publication of the election proclamation, he acts as the agent of the public, and the. county is directly liable to the publishers for the advertising expenses thus incurred: Eyster v. Rineman, 11 Pa. 147. If the sheriff exceeds his authority, the county is not liable, but the limits of his authority, so far as the selection of the newspapers is concerned, are prescribed by the statute, and cannot be narrowed or enlarged by any action of the county commissioners. Upon this subject Chief Justice Paxson said: “It is also proper to observe that the county commissioners have nothing to do with the selection of the newspapers, and that their consent, or failure to object, is of no importance: ” Bartholomew v. Lehigh Co., 148 Pa. 82. The same doctrine has been recognized and applied in our own cases: Wilkes-Barre Record v. Luzerne Co., 6 Pa. Superior Ct. 600; Bogert v. [183] Luzerne Co., 13 Pa. Superior Ct. 549. We may also refer to the analogous cases where it has been held, that a coroner, as a public agent, has authority to employ a physician to make a post-mortem examination, that the latter is entitled to recover from the county a reasonable compensation, and that the county commissioners have no power to employ a surgeon at a fixed salary to perform such services and thereby preclude the coroner from selecting a proper person in the exercise of his discretion: Allegheny Co. v. Watt, 3 Pa. 462; Allegheny Co. v. Shaw, 34 Pa. 301; Northampton Co. v. Innes, 26 Pa. 156. But although the defendant’s counsel concedes that the sheriff has power to designate the newspapers, he strenuously contends that the power to fix the price that the publisher is to receive is vested exclusively in the county commissioners. We are unable to assent to this proposition. If, as is clearly the case, the sheriff has authority to publish the election proclamation in newspapers of his selection without consultation with the county commissioners, it necessarily follows that he has authority to subject the county to liability for the reasonable expense of the publication without their consent. In other words, the publisher may recover from the county without showing that a price has been fixed or agreed upon by the county commissioners. As was said in Commissioners v. Hall, 7 Watts, 290, “ the law which gives the power to order, implies the promise to pay, and it will certainly not be asserted that county commissioners are bound by nothing less than an express contract.” Whether or not the county could defend upon the ground that the price agreed upon by the sheriff when the printing’ was ordered was exorbitant or unreasonable is a question not fairly raised in this case. It might have been the duty of the county commissioners to set up that defense if there was evidence to warrant it; but it is not alleged in the case stated, and no facts are alleged from which it is to be inferred. It is not even alleged that the county commissioners dispute the reasonableness of the charge. They put their defense .upon the ground that it was not fixed or agreed upon by them. This, standing alone, was not a defense to the action. Before concluding we deem it our duty to remark, that the form of this case stated is not one that may safely be followed as a precedent, if it is desired to obtain a review on appeal, [184] See Fuller v. Trevoir, 8 S. & R. 529, Knisely v. Shenberger, 7 Watts, 193, Altoona v. Irvin, 3 Penny. 115, Com. v. Callahan, 153 Pa. 625, and Marbaker v. Matson, 3 Walker, 506. It is only by assuming, perhaps unwarrantably, that a right of appeal was reserved in a paper filed of record which has not been printed, that we are justified in reviewing the case. Judgment affirmed.