County Auditors of McKean County v. Anderson

• Decision Date: 16 December 1938
• Docket Number: 158-1938
• Citation: 133 Pa.Super. 475,3 A.2d 28
• Parties: County Auditors of McKean County, Appellant, v. Anderson
• Court: Pennsylvania Superior Court

3 A.2d 28

133 Pa.Super. 475

County Auditors of McKean County, Appellant, v. Anderson

No. 158-1938

Superior Court of Pennsylvania

December 16, 1938

Argued October 24, 1938.

Appeal from decree of C. P. McKeanCo., Feb. T., 1936, No. 108, in case of County Auditors of McKean County v. A. R. Anderson.

Appeal by Recorder of Deeds from report of county auditors.

The facts are stated in the opinion of the Superior Court.

Appeal sustained and judgment entered for appellant, opinion by Hubbard, P. J. County auditors appealed.

Error assigned was judgment.

Decree affirmed.

W. D Gallup, with him F. D. Gallup and E. G. Potter, of Gallup Potter & Gallup, for appellant.

Joseph P. Willson, with him F. J. Woods and Robert B. Apple, for appellee.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker and Rhodes, JJ.

OPINION

Stadtfeld, J.

This is an appeal by the County Auditors of McKean County from a judgment in favor of A. R. Anderson, Recorder of Deeds of said County, defendants, sustaining an appeal from the report of the auditors for 1934 surcharging the said Anderson, Recorder, for certain fees collected by him for the preparation of abstracts of title.

The facts agreed upon as stated in the opinion of Hubbard, P. J., who heard the case without a jury, are substantially as follows: "That A. R. Anderson has been Recorder of Deeds for McKean County since the first Monday of January, 1920; for the first twelve years his compensation was made up of fees, and since January, 1932, he has had an annual salary of $ 3,000, the County of McKean having become a county of the sixth class in January, 1931; that during the year 1934, defendant prepared abstracts of title for which he received compensation amounting to $ 879.62, in addition to $ 164.50 which he paid for typewriting the abstracts and $ 212.08 which he paid to the county for certificates (plaintiff not contending that these amounts for type-writing and certificates should be charged against defendant), and that he applied the said $ 879.62 to his own use and did not account to the county therefor, part of this amount having been paid to him by checks payable to him personally and part by checks to 'A. R. Anderson, Recorder,' but that no permanent record of the receipts of the money was kept by him; that the work of abstracting was mostly done by C. C. Choate, the duly appointed and acting Deputy Recorder of Deeds, who did most of the work during regular office hours, but some of it after such hours, (there being nothing to show, in said statement, how much was done during office hours and how much thereafter); that the receipts for abstracting were divided equally between defendant and C. C. Choate; that for many years it has been the common practice of those requiring abstracts of title (meaning, doubtless, not a universal practice, but one indulged in merely by those who so desired), without solicitation by the defendant, to have abstracts prepared by defendant or C. C. Choate; that defendant never represented that he or C. C. Choate prepared abstracts as Recorder of Deeds, that such abstracts did not bear his certificate as Recorder of Deeds nor the official seal of his office, but that bound to and forming part of said abstracts were certificates of liens under his hand and official seal and the hand and official seal of Joseph R. Carvolth, Prothonotary, for which McKean County received payment; that abstracts consist of memoranda from deeds and other records in the Recorder's office, showing titles to lands, and entail the examination of the various records found in the offices of the Prothonotary, Treasurer, Register of Wills and Commissioners of McKean County."The amount involved is $ 879.62, with interest from December 31, 1934.

The office of the Recorder of Deeds was established by the Act of 1715, May 28th, 1 Smith's Laws 94, Section 1, and from time to time, by various Acts of Assembly (Act of 1755, March 18, 1 Smith's Laws, 422, Section 6;Act of 1921, May 16, P. L. 649), the duties of the Recorder have been enumerated, but in none of the Acts is the Recorder directed to make abstracts.There is no statutory requirement on the subject here at issue.

The Act of Assembly of June 29, 1923, P. L. 944, sec. 1,16 PS sec. 2431, fixed the annual salaries of certain officers in counties of the sixth class.The recorder of deeds was one of these officers.When this Act was passed, McKean County was a county of the seventh class.By reason of increase in population, as shown by the 1930 census, McKean County became a county of the sixth class.

Article XIV, Section 5, of the Constitution of Pennsylvania provides that: "The compensation of county officers shall be regulated by law, and all county officers who are or may be salaried shall pay all fees which they may be authorized to receive, into the treasury of the county or State, as may be directed by law."

"To enforce this constitutional obligation, the Act of March 31, 1876, P. L. 13, in both sections 1and15, directed that all such sums received should be paid to the respective counties, 'and none of said officers shall receive for his own use . . . . any fees for any official services whatsoever'": Bachman's Appeal, 274 Pa. 420, 423, 118 A. 363.(Italics supplied).

Section 6 of the Act of Assembly of June 29, 1923, P. L. 944 relating to sixth class counties, section 1 of [133 Pa.Super. 479] which fixed the salary of Recorders of Deeds, reads as follows: "The salaries fixed and provided for by this act shall be in lieu of all moneys,...