City of Pittsburg v. Goshorn

• Decision Date: 03 January 1911
• Docket Number: 168
• Citation: 230 Pa. 212,79 A. 505
• Parties: Pittsburg v. Goshorn, Appellant
• Court: Pennsylvania Supreme Court

79 A. 505

230 Pa. 212

Pittsburg v. Goshorn, Appellant

No. 168

Supreme Court of Pennsylvania

January 3, 1911

Argued October 28, 1910 [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Appeal, No. 168, Oct. T., 1910, by defendant, from judgment of C.P. No. 4, Allegheny Co., First Term, 1910, No. 299, for plaintiff on case stated in suit of City of Pittsburg v. Lawrence R. Goshorn. Reversed.

Case stated to determine compensation of the collector of delinquent taxes of the city of Pittsburg.

From the case stated it appeared that by an ordinance approved March 8, 1906, councils fixed the compensation of the collector of delinquent taxes at two-fifths of five per centum of the amount of delinquent taxes and water rents collected by him. On June 20, 1906, the mayor, George W. Guthrie, appointed the defendant, Lawrence R. Goshorn, collector of delinquent taxes. As a condition of his appointment the mayor required Goshorn to execute the following agreement:

"MEMORANDUM OF AGREEMENT

"Made this 20th day of June, A.D. 1906, between the City of Pittsburg, party of the first part, and L. R. Goshorn, party of the second part.

"Whereas, the said party of the second part is an applicant for appointment for the position of Collector of Delinquent Taxes for the City of Pittsburg.

"And whereas, it is mutually agreed that the compensation provided by ordinance is excessive.

"Now therefore, it is mutually agreed between the parties hereto that in case the said party of the second part should receive the appointment, he will accept as full compensation of his services, the sum of six thousand ($6,000) dollars, and pay over to the City Treasurer the amount of the commission allowed by the ordinance, less his compensation as above fixed and the expenses of his offices not to exceed an amount to be audited and adjusted by the City Controller.

"And further, that all collections made by him shall be daily paid over to the City Treasurer.

"In witness whereof, the parties above named have hereunto set their hands and seals.

"(Sig.) L. R. GOSHORN.

"Attest:

"Geo. W. Guthrie."

It appeared from the case stated that Goshorn claimed that the agreement which he signed was without consideration and null and void, and that he was entitled to commissions on collections notwithstanding the contract which he had executed.

The court entered judgment for the plaintiff for $31,649.06, CARNAHAN, J., filing the following opinion:

The defendant, Lawrence R. Goshorn, was collector of delinquent taxes of the city of Pittsburg from July 5, 1906, until April 5, 1909, in virtue of an appointment by George W. Guthrie, mayor, by and with the consent of select council, in accordance with the law providing for the appointment of heads of departments of the city government. During his term of office Mr. Goshorn collected as taxes and water rents an aggregate sum of $4,604,081.63, and has paid to the city, in aggregate, $4,510,613.16. Subsequent to April 5, 1909, in virtue of the powers vested in him as city controller by the charter act of March 7, 1901, Eustace S. Morrow stated an account between the city and Mr. Goshorn, and filed the same of record in this court. On November 26, 1909, Mr. Goshorn paid to the city the sum of $41,406.97, which includes interest from November 17, 1909. This payment is included in the amount, $4,510,613.16, above stated as the aggregate of payments to the city. Mr. Goshorn appealed from the statement of account so filed, and as a result of such appeal, this case stated, in which the city of Pittsburg is plaintiff, and the appellant, Mr. Goshorn, is defendant, has been agreed upon, argued by counsel and submitted.

The amendment to the charter act of the city of Pittsburg, of June 20, 1901, contains this provision in reference to the collector of delinquent taxes:

"The Collector of Delinquent Taxes shall be the head of the department of delinquent taxes. . . . The head of this department shall receive such compensation, either by a stated salary or by fees, as may be fixed by councils."

By ordinance, duly approved by the mayor March 8, 1906, it was provided:

"Section 3. That the compensation of such collector for the collection of all city taxes and water rents hereafter becoming delinquent shall be two-fifths (2/5) of five per centum of the amount of delinquent taxes and water rents by him actually collected and paid into the City treasury; which said five per centum shall be added to all delinquent taxes and water rents hereafter becoming delinquent, as a penalty for non-payment of the same at the time prescribed by the Act or Acts of Assembly relating thereto; Provided, that the said penalty shall only be collected on the amounts collected by said collector, and shall not be added to any exonerations legally made."

This ordinance was not, during the term of Mr. Goshorn, repealed or amended.

On June 20, 1906, Mr. Goshorn executed and delivered to George W. Guthrie, mayor, a paper of the same date, purporting to set forth an agreement between him and the city of Pittsburg, from which it appears that, at that time, he was an applicant for appointment to the office of collector of delinquent taxes; that it was mutually agreed that the compensation of said officer, as provided by ordinance, was excessive; that he agreed that in case he should receive the appointment, he would accept as full compensation for his services the sum of $6,000; pay to the city treasurer the amount of commissions allowed by ordinance, less the compensation fixed by this agreement, and the expenses of his office not to exceed an amount to be audited and adjusted by the city controller; and that all collections made by the office be daily paid to the city treasurer.

This paper was signed by L. R. Goshorn, attested by Geo. W. Guthrie, and is marked exhibit No. 2, as a part of the stated case. It is not signed by the city of Pittsburg, nor is the official seal of the city attached. Obviously, it was an agreement between the mayor, who was the appointing power, and the defendant, who was an applicant for the appointment; and while it is not stated in the agreement that the sum of $6,000 was to be the compensation for services in full per annum, apparently it was so understood and acted upon.

On the day of which the agreement bears date, namely, June 20, 1906, Mr. Guthrie, as mayor, nominated and appointed Lawrence R. Goshorn, collector of delinquent taxes of the city of Pittsburg, and the appointment was approved by the select council of the city, in accordance with the statute law so provided. Lawrence R. Goshorn is the L. R. Goshorn, who executed and delivered the agreement marked exhibit No. 2.

Mr. Goshorn, having served his full term as collector, is now called upon to meet a claim of the city that he is short in his account to the extent of $30,476.44. It is this sum for which the city claims judgment, together with interest thereon from November 17, 1909. He replies that he is not indebted to the city for any amount, because, at the time of his appointment, and during the whole of his term, his compensation was fixed by law, namely, by ordinance of councils, pursuant to the provisions of statute law; that the mayor had no authority to change the law by providing for him as a public officer a compensation different from that fixed by law; that the agreement of June 20, 1906 was against public policy, and without valid consideration; and that consequently it is not binding upon him, is void, and of no effect. If he is correct in this contention, it is agreed that judgment shall be entered in his favor, because his commissions for the full term served would equal the amount claimed by the city. If the city is correct in its contention that the defendant is bound by the writing of June 20, 1906, it is agreed that the amount claimed, namely $30,476.44, is the amount for which it is entitled to judgment, with interest as aforesaid.

The mayor had no express authority to act for the city as respects the question of reducing the compensation of a collector of delinquent taxes. The law fixed his compensation. No city officer had authority to change it. But there was no misrepresentation, fraud or compulsion on the part of the mayor. He was the appointing power. He believed that the compensation of the collector of delinquent taxes as fixed by ordinance, was too great. Goshorn so believed, and stated to the mayor that, should he be given the appointment of collector, he would accept a salary in lieu of commissions, and pay into the treasury all sums collected, less the amount of his salary and certain expenses. The mayor, being satisfied of his fitness for the office, took him at his word, and appointed him. The mayor did not mislead him in any manner. Goshorn did not accept the appointment under compulsion. He was not forced to assent to the fixed salary in lieu of commissions, as stated in exhibit No. 2. He himself agreed "that the compensation provided by 'ordinance' was 'excessive.'" He desired the appointment, thought the compensation was excessive, agreed to accept less in case of his appointment, and thus secured the appointment. The mayor evidently thought that, by making the appointment with the understanding as to compensation, as provided in exhibit No. 2, he was serving the interests of the city. Goshorn thought so, too, and apparently meant to carry out all that he agreed to do. How can it be said, therefore, that his action was other than voluntary on his part? If, during the term of his office, he had repudiated his agreement of June 20, 1906, and had given notice to the city by word or deed that he intended to claim the compensation fixed by ordinance, and after such notice, the city had continued him in...