Schuylkill County v. Boyer

• Decision Date: 08 April 1889
• Docket Number: 14
• Parties: COUNTY OF SCHUYLKILL v. J. M. BOYER
• Court: Pennsylvania Supreme Court

17 A. 339

125 Pa. 226

COUNTY OF SCHUYLKILL v. J. M. BOYER

No. 14

Supreme Court of Pennsylvania

April 8, 1889

Argued February 20, 1889

ERROR TO THE COURT OF COMMON PLEAS OF SCHUYLKILL COUNTY.

No. 14 July Term 1888, S.Ct.

On July 24, 1887, J. Monroe Boyer brought assumpsit against the county of Schuylkill, declaring for the recovery of fees as sheriff of the county from the first Monday of January, 1883 until the first Monday of January, 1886, his entire term of office. Issue.

At the trial on November 30, 1887, it was shown that for his official services, chargeable to the county during his term the plaintiff had settled annually with the county commissioners, according to the sheriff's fee-bill under the act of June 12, 1878, P.L. 187, which act on April 12 1886, in Morrison v. Bachert, 112 Pa. 322, was declared unconstitutional. He then brought this suit to recover the difference in amount in the fees allowed by said act and those allowed by the act of April 2, 1868, P.L. 3.

The services being proved and the other testimony in the cause received, the court, GREEN, J., charged the jury:

[Gentlemen of the jury, we have already said we think under all the evidence in this case that the plaintiff is entitled to a verdict. It appears that this was a mutual mistake that arose by reason of the passage of a law in 1878 fixing the fees of the sheriff in certain cases, and making it less than it was under a previous fee-bill.] For instance, under the act of 1878 the sheriff's fees in each criminal case was fixed at one dollar. Under the act of 1868 it had been $1.25. For summoning jurors to the court under the bill of 1868 it was fixed at thirty cents, and under the act of 1878 it was reduced to twenty-five cents; also with regard to commitments and capias there was a slight reduction in each one of these cases under the act of 1878.

When the sheriff presented his bills to the county commissioners for these different criminal cases and others, his bill was presented based upon the act of 1878, which was therefore less than it would have been if it had been made out under the act of 1868, and the county commissioners paid these bills according to the act of 1878; but after the sheriff went out of office, upon a case taken to the Supreme Court of this state, that court declared the law of 1878 unconstitutional, null and void, and the effect of that was to declare the act of 1868 still in force. Therefore the sheriff made out his bill under a wrong impression as to the law; and, instead of making out his bills in criminal cases for one dollar he should have made them out for $1.25, and so with regard to the other cases; and this suit was brought here for the purpose of recovering from the county the difference in the bill that he made out and the bill he should have made out under the act of 1868. That difference, according to the testimony in this case, undisputed, would amount to $659.40. There were some eight cases in which no fees at all had been paid and which it is admitted on the part of the defendant the sheriff would be entitled to recover. In all the other cases the bill is made out upon the theory that the sheriff should have been paid according to the fee-bill of 1868 and not according to the fee-bill of 1878.

[The question has arisen here as to whether the sheriff is estopped from making out his bill according to the fee-bill of 1868, because he presented his bill under the fee-bill of 1878 and accepted his pay under that bill, and therefore is estopped from claiming any further amount of money; but we say to you, for the present, that that will not estop him from making his claim for the balance of the fees according to the act of 1868, and for that reason he is entitled to recover in this suit the difference between the amount that he received, and the amount that he should have received, if the bill had been made out according to the fee-bill of 1868. That, according to the testimony, amounts with the eight cases I have spoken of to $659.40, and the sheriff would be entitled to demand interest on this amount from the time that he made demand for his fees, and if there is no proof here of any prior demand it would be interest from the time of the institution of the suit, I presume.] [As I have said before, there is no dispute as to the different items of this claim and the interest is now reckoned upon this claim from the time of the institution of the suit, because the institution of the suit shows that demand is made for the money. The amount for which the plaintiff would be entitled to a verdict, would be $689.06, and we direct a verdict, if you find that amount, with interest to be correctly calculated. I presume there is no difficulty about that.]

The jury returned a verdict in favor of the plaintiff. Judgment having been entered, the defendant took this writ, assigning as error:

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The judgment is reversed.

Mr. J. W. Ryon (with him Mr. J. F. Minogue), for the plaintiff in error:

1. This was a common law action. Under the provisions of § 13, act of March 21, 1806, 4 Sm. L. 332, the courts of Pennsylvania have uniformly held that wherever a remedy is provided by any act of assembly, the common law remedy is no longer available: Bowman v. Herr, 1 P. & W. 283; Downer v. Downer, 9 W. 60; Thomas v. Simpson, 3 Pa. 60; Taylor v. Birmingham, 29 Pa. 306; Mussleman's App., 65 Pa. 480; Whiteside v. Whiteside, 20 Pa. 474; Commonwealth v. Garrigues, 28 Pa. 9.

2. The act of April 15, 1834, in its sections 47, et seq., P.L. 545, has provided a special tribunal, the county auditors, with ample power to settle, audit and adjust the accounts between the sheriff and county. Provision is made for the filing of the reports of this tribunal, and such reports, if not appealed from within the time prescribed, have all the effect and force of a judgment of a court of record. The plaintiff was bound to pursue the remedy provided by this statute.

3. In this case there was no evidence submitted to show whether the claim made by the plaintiff in the court below, had ever been presented to the auditors for adjudication; but, whether it was or not, is not material, as the plaintiff's remedy was before them, and not in a common law court by a common law action: Brown v. White Deer Tp., 27 Pa. 109; Dyer v. Covington Tp., 28 Pa. 186; Willard v. Parker, 1 R. 448; Northumberland Co. v. Bloom, 3 W. & S. 542; Northampton Co. v. Yohe, 24 Pa. 305; Glatfelter v. Commonwealth, 74 Pa. 74; Blackmore v. Allegheny Co., 51 Pa. 160; Northampton Co. v. Herman, 119 Pa. 373; Commissioners v. Lycoming Co., 46 Pa. 496; Hutchinson v. Commonwealth, 6 Pa. 124.

Mr. Geo. J. Wadlinger (with him Mr. Jacob C. Kline and Mr. Chas. N. Brumm), for the defendant in error:

1. This case does not come within the ruling of Northampton Co. v. Herman, 119 Pa. 373. In that case, there had been a settlement and adjustment of the sheriff's account by the county auditors, and it was rightly held that the auditor's settlement unappealed from was conclusive and the sheriff was not entitled to recover.

2. An examination of the cases cited in support of the position that, because of the provisions of the act of 1806, the plaintiff could not avail himself of the common law action of assumpsit, will disclose that they are not applicable to the case at bar. They all pertain to the jurisdiction of the Orphans' Court in the ascertainment and distribution of decedents' estates. The act of 1806 contemplates a remedy that is constitutional and efficacious. To take away a citizen's common law rights, without substituting a substantial and adequate remedy,...