Cohen v. Commonwealth
| Decision Date | 30 June 1847 |
| Citation | 6 Pa. 111 |
| Parties | COHEN <I>v.</I> COMMONWEALTH. |
| Court | Pennsylvania Supreme Court |
McCormick and Meredith, for plaintiff in error.—The question is, whether the plaintiff in error, under the act of 1810, should not be allowed for clerk-hire and stationery, out of the amount of fees received by him, before the Commonwealth can claim fifty per cent. on the excess over $1500. Is this act, for the purposes of taxation, to be construed on the net or gross amount of fees received? The act of 5th April, 1842, section 7, (Pamph. Laws, 238,) requiring the public officers of Philadelphia county to file in the office of the county treasurer a written statement, under oath, &c., of the gross receipts and expenditures of their several offices, for clerk-hire, stationery, &c., does not include the prothonotary of the Supreme Court; nor does the act of 21st April, 1846, section 10, (Dunlop, 968:) and the necessary implication therefore is, that such officer was to be taxed only for the net amount of fees received. It is agreed, on all hands, that the prothonotary of the Supreme Court is to have $1500; but under the construction of the act of 1810 contended for, he would not, after paying clerk-hire, stationery, &c., receive $800, the sum he pays one of his clerks. To discharge his official duties in a proper manner, and to subserve the interests of the public, it is proved that the plaintiff in error must have three clerks: and they must be paid.
The public has nothing to do with expenditures of offices. They contended, that the repealing clause of the act of 29th April, 1844, section 34, (Purdon, 1102,) repealed the act of 1810. The act of 1810 charges a tax of fifty per cent. on the excess of fees received over $1500. The act of 29th April, 1844, charges two per cent. on the emoluments of office. The different taxes imposed by those acts on prothonotaries, &c., are not cumulative. The plaintiff in error, the prothonotary of the Supreme Court at Philadelphia, has paid the tax of two per cent. on the emoluments of his office, and is willing to continue to do so; but declines, unless this court determine otherwise, to pay fifty per cent. more, under what he considers a repealed act; and the construction of which, for the purposes of taxation, if not repealed, must and should be upon the net, and not the gross amount of the excess of fees received over $1500.
Lesley, and Champneys, Attorney-general, contrà, contended, 1st, that the act of 10th March, 1810, does not authorize prothonotaries, &c., to charge the state with their office expenses.
That act directs that they shall keep "a fair and accurate account of the fees," (not the expenses,) of their office, using the language of the act of 5th December, 1801, (Pamph. Laws, p. 3,) and of the act of 24th Feb. 1806, sect. 27, (4 Smith's Laws, 278.)
The language of the act shows that the employment of clerks by prothonotaries, &c., was contemplated by the legislature, and had they intended the state should pay them, would have said so.
In Hiester v. Commonwealth, 17 Serg. & Rawle, 255; Commonwealth v. West, 1 Rawle, 29; and Commonwealth v. Murdoch, 3 Watts, 282, it was not disputed that the officer is bound to pay into the treasury fifty per cent. of the excess over $1500.
The legislature would not have deemed it necessary to pass the act of 22d June, 1839, (see Pamph. Laws, p. 390, section 3,) if expenses of office were chargeable to the state under the act of 1810.
No other construction can be put upon this act than that expressly contained in the words. Broom's Leg. Max. 135, 136, Law Lib. vol. 1.
In this government, the greatest strictness is necessary in disbursing the public moneys, and for every disbursement there should be an appropriation of the legislature. A prothonotary is not allowed himself to appropriate the public funds.
The absence of statutory provisions, to ascertain the number and compensation of clerks necessary in the offices of prothonotaries, &c., shows that the legislature never intended that the state should pay their expenses. The emoluments of these offices keep pace with the labour to be performed in them. Under the construction, for which the plaintiff in error contends, the door is opened wide to fraud, and the object of the law defeated.
2d. That the act of 10th March, 1810, is not repealed by the 34th section of the act of 29th April, 1844.
The word "levying" restrains and explains the repealing clause. The same word is used in the 6th section of the act of 16th April, 1845. The words, "valued and assessed," are used in the 32d section of the act of 1844. To levy, signifies to collect by assessment; to assess, is to fix the value of property for the purpose of being taxed. Webster's Dict. The fifty per cent. tax on offices is not levied and assessed.
The object of the act of 1844 was to increase the revenues, but under the construction given it by the plaintiff in error, it would have reduced them, by repealing the tax on bank dividends, writs, collateral inheritances, auction commissions and duties, brokers' and tavern licenses, &c., (as well as the tax on offices,) none of which are specially referred to.
It substituted for all that it repealed. The tax on salaries and emoluments in the 32d section, was in lieu of the tax on the same imposed by section 2 of the act of 11th June, 1840, (Pamph. Laws, 613,) and section 9th of act of 4th May, 1841, (Pamph. Laws, 310.)
The legislature should not be taken to have postponed a public right to that of an individual, unless such an intent be manifested by explicit terms. Commonwealth v. Baldwin, 1 Watts, 55.
June 30. COULTER, J.
This cause has been contested by the counsel for the respective parties with much power; but the court are conducted to the opinion which they have formed, by what they understand to have been the intent of the legislature in the various acts of Assembly which bear on the subject, without, however, discarding from their minds the topics which were brought into the argument by the counsel.
Two questions are presented for resolution. The first is, whether the prothonotaries can lawfully retain the amount of clerk-hire for conducting their offices, and $1500, and fifty per cent. of the surplus over these sums, if any such surplus should be received.
The court are...
To continue reading
Request your trial
-
Board of Com'rs of Teller County v. Trowbridge
... ... applied to the other items of expense herein involved. Other ... authorities to the same effect are: Cohen v. Commonwealth, 6 ... Pa. 111; Gilchrist v. City of Wilkes [42 Colo. 460] Barre, ... 142 Pa. 114, 21 A. 805; Daggett v. Ford County, 99 Ill. 334; ... ...
-
Commonwealth v. Allegheny County
...Statutes, 179; U.S. v. Recorder, 1 Blatchf., C.R.R. 218; Graham's App., 1 Dall. 136; Com. v. Grant, 2 Woodward's Cases, 379. In Cohen v. Commonwealth, 6 Pa. 111, the Supreme speaking of the act of 1810, said ". . . the law of 1810 cannot be considered as assessing or laying a tax properly s......
-
The State ex rel. Bybee v. Hackmann
... ... Board of Equalization had no authority to employ a ... stenographer at the expense of the State. Benton v ... Decatur County, 36 Iowa 504; Cohen" v ... Commonwealth, 6 Pa. 111; Laws 1917, sec. 14, p. 545; ... Laws 1917, sec. 15, 545; R. S. 1909, sec. 11807; R. S. 1909, ... sec. 11411 ... \xC2" ... ...