Glatfelter v. Commonwealth

• Decision Date: 02 July 1873
• Citation: 74 Pa. 74
• Parties: Glatfelter <I>versus</I> The Commonwealth.
• Court: Pennsylvania Supreme Court

74 Pa. 74

Glatfelter versus The Commonwealth.

Supreme Court of Pennsylvania.

May 19, 1873.

July 2, 1873.

May 19th 1873.

Before READ, C. J., AGNEW, SHARSWOOD, WILLIAMS and MERCUR, JJ.

Error to the Court of Common Pleas of Dauphin county: No. 2, to May Term 1873.

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J. Gibson and L. W. Hall (with whom was J. W. Bittinger), for plaintiff in error; as to the conclusiveness on the Commonwealth of the settlement by the county auditors, cited Act of April 15th 1834, sect. 49, Pamph. L. 546, which provides that they shall audit, &c., the accounts of the county treasurer, receiving money for the Commonwealth. Sect. 56 of same act gives an appeal by the Commonwealth within four months, and by the county and treasurer within sixty days, after which time if there be no appeal the settlement is conclusive: Commonwealth v. Lamb, 3 W. & S. 435; Northumberland Co. v. Bloom, Id. 542; Blackmore v. County of Allegheny, 1 P. F. Smith 160; Elder v. Juniata Co., 5 Id. 485.

The Commonwealth had no interest in the fund. Sect. 3, pl. 8, Act of April 21st 1858, Pamph. L. 425, is repealed: Acts of April 8th 1862, Pamph. L. 314; May 15th 1861, sect. 14, Pamph. L. 754; May 4th 1864, sects. 95, 96, Pamph. L. 239-240; April 7th 1870, sect. 5, Pamph L. 62.

J. Kell and W. Mc Veagh (with whom were L. D. Gilbert, Dep. Atty.-Genl., and Dimmick, Atty.-Genl.) for Commonwealth.—Sect. 49 of Act of 1834 is repealed by sect. 1 of Act of March 15th 1847, Pamph. L. 355. The "military fund" is exclusively for military expenses, and is not to be paid out by county treasurers, but by a board of officers, and the balance is to be paid into the state treasury; Act of April 21st 1858, supra. A military board, consisting of the officers of the brigade, is authorized to audit the military fund: Act of May 4th 1864, supra, sect. 99.

The opinion of the court was delivered, July 2d 1873, by AGNEW, J.

The subject of this controversy is the military fund paid into the hands of the defendant as treasurer of York county for the years 1868 and 1869. If the county auditors had authority to settle the treasurer's account for this fund, it is conceded the case is at an end, no appeal having been taken by the Commonwealth from the settlement of the auditors. This, therefore, is the question to be determined. To prevent confusion, it is proper to say at once that the relief fund established by the Act of 1862 has no connection with the military fund. The relief fund account was by that act to be settled by the county auditors, but the settlement of the account for the military fund depends on other laws.

Before examining the legislation specifically applicable to the military fund, it is proper to notice the general jurisdiction of the county auditors over the accounts of the treasurer for funds collected for the Commonwealth. By the 48th section of the Act of 15th April 1834, the accounts of the county treasurer are to be settled by the county auditors, the balance stated, and a report made thereof to the Court of Common Pleas: Pamph. L. (1834) 545; 1 Brightly Purd. 300, pl. 10. The 49th section makes it the duty of the auditors, also, to audit, settle and adjust the accounts of the treasurer of the county with the state treasury, and make a separate report thereof to the court: Pamph. L. (1834) 546. This coincides with the provision in the 38th section, p. 543, making it the duty of the county treasurer to keep separate accounts of all moneys received by him on behalf of the Commonwealth, from the various sources named in the section, one of which is "exempt fines." Mr. Brightly, in note c to page 300, vol. 1, Dig., says the 49th section is repealed by the Act of 15th March 1847, § 1. Hence he has omitted the 49th section from his Digest. This is an error, the repeal being partial and relating only to those officers named in the Act of 21st May 1846, § 10, to which the Act of 1847 is a supplement: Dig. 2d vol., p. 1392, pl. 208. The county treasurer is not one of them. The pamphlet laws clearly evince this, and an inquiry at the auditor-general's office resulted in a statement of the fact that the accounts of the county treasurers in the several counties are settled as before the passage of the Act of 1847; and this agrees with my own knowledge. The county auditors, therefore, have jurisdiction of the account of the military fund, unless by special legislation that fund is an exception. But it is not, as an examination of the laws on the subject conclusively shows.

The act to revise the militia system and to provide for the training of such as shall be uniformed, passed the 17th of April 1849, repealed all former laws and supplements to laws on the subject of the militia, except those parts relating to the adjutant-general, to contested elections, courts-martial, and calling the militia into the actual service of the United States: Pamph. L. (1849) 670, § 21. This act, therefore, furnishes a beginning to the inquiry as to the military fund. Under this law, after the enrolment, all ununiformed persons between 21 and 45 years of age are subjected to a payment of fifty cents, which the 8th section, p. 666-67, required the county commissioners "to add to the amount of the state tax of each delinquent, to be collected with the same under the same authority, and in all respects as authorized in the case of the collection of county taxes."

The 10th section then provides for the duties of the county treasurer. Thus this military fund is assimilated directly to other state and county funds in is collection and custody, and there being no other provision in the Act of 1849 as to the settlement of the county treasurer, it must be audited and settled in the same manner as they are. This point is settled by the next act, a supplement to the Act of 1849, passed April 30th 1853 (Pamph. L. 654). The 10th section expressly enacts that it shall be the duty of the county treasurer to prepare annually a statement of the receipts and expenditures of the military fund of the said county, setting forth the amount received from each collector separately, and the amounts paid each person to whom money shall be due, which statement, after being examined and passed by the county auditors, shall be published as other accounts of the treasurer, and the expense paid out of the military fund. The 2d and 3d sections, referring to payments to the treasurer, also bear on the question. The Act of 1853 seems not to have been brought to the attention of the learned judge in the court below, as I do not find it in either paper-book. And indeed the Act of 1849 appears not to be noticed. The Act of April 21st 1858 (Pamph. L. 421) is the next law, and is important in its bearing. It is a general revision of the militia laws, but is without a repealing clause. The same general system is re-enacted for the enrolment of the militia through the instrumentality of the assessors and commissioners, and for the collection of the commutation-tax of fifty cents for every person enrolled and liable to its payment, and for the collection of fines and penalties. This tax is to be collected in the same time and in the same manner as taxes are collected in each county, under warrants issued by the commissioners. It is made the duty of the county treasurers to procure suitable books in which shall be entered an account of all moneys received in pursuance of the act, and which shall be called the Military Fund of the county, and of payments out of the fund. The treasurer shall...