Hiester v. Commonwealth
| Decision Date | 27 May 1828 |
| Citation | 17 Serg. & Rawle 255 |
| Parties | HEISTER v. THE COMMONWEALTH. |
| Court | Pennsylvania Supreme Court |
IN ERROR.
A prothonotary who held his office from 1810, to the passing of the act of the 24th of March 1818, is not chargeable to the commonwealth with a tax on the fees received by him after the latter date, for services rendered while he held his office.
An act taxing a public officer, is not to be construed retrospectively, if its language in that respect be doubtful.
WRIT of error to the Court of Common Pleas of Dauphin county where judgment was rendered in favor of the commonwealth against the defendant below and plaintiff in error, Gabriel Heister, upon a case stated for the opinion of the court with a right to take out a writ of error. The case came into the court below on an appeal by the defendant below from a settlement by the auditor-general.
Gabriel Heister, Jr., on the 13th day of January 1809, was appointed and commissioned prothonotary of the court of common pleas clerk of the court of quarter sessions, and clerk of the court of oyer and terminer for the county of Berks, and continued to hold the said offices until the 1st day of April, 1818. During the time he held the said offices, he settled his accounts regularly with the commonwealth, and paid over into the state treasury fifty per cent. each year upon all the fees which he received above the sum of $1500. Since the 1st of April 1818, when he ceased to hold these offices, he received the sum of $5930 25 [prout the accounts settled by the auditor-general hereto annexed and made part of the case]. This sum is composed of fees of office, for services rendered by him whilst he held the said offices, and before the 24th day of March 1818, but which were not received by him until after he ceased to hold them.
If the court should be of opinion that the said G. Heister is under a legal obligation to pay into the treasury of this commonwealth, fifty per cent. upon the fees so by him received, after he ceased to hold all or any of the said offices (after first deducting $27 18 to make up a deficiency in the year 1811, and also the sum of $184 04 1/2, received from John Adams, Esq., and twice charged by mistake), then judgment to be entered in favor of the commonwealth for $2859 51 1/4. If the court should be of opinion that the said G. Heister is under a legal obligation to pay into the treasury of the commonwealth fifty per cent. upon the fees so by him received after he ceased to hold all or any of the said offices, after deducting from the sum which he received in each year subsequently to the time when he went out of office, $1500, then judgment to be entered for the commonwealth for $776 77. And if the court should be of opinion that the said G. Heister is not under a legal obligation to pay into the treasury of the commonwealth any portion of the said fees so by him received after he ceased to hold any of the said offices, then judgment is to be entered in favor of the defendant. It is hereby understood and agreed, that if the court shall render judgment for the commonwealth on any one of the foregoing points, it shall exclude the others.
Account of the Commonwealth of Pennsylvania against the defendant.
Dr., Gabriel Heister late prothonotary, & c., of Berks county, in account with the Commonwealth for surplus fees.
| Fees received up | to 1st of October 1819, No. 1, | $555 74 1/2 |
| Ditto, | to 1st of October 1820, No. 2, | 305 19 1/2 |
| Ditto, | to 27th of July 1821, No. 3, | 286 13 |
| 1821, |
| October 13th, do. of John Adams, Esq., per receipt, No. 4, | 42 93 1/2 |
| Fees settled with George Marks, Esq., former sheriff of Berks county, as per answer to interrogatories, No. 5, | 400 29 |
| Do. Daniel Kerper, Esq., do. per do. | 1200 00 |
| Do. Peter Aurand, Esq., do. per do. | 2653 25 |
| Do. collected for Peter Aurand, Esq., late sheriff, per No. 6, | 486 71 |
| 5930 25 1/2 |
| Deduct for deficiency in the year ending on the 1st of October 1811, No. 7, | 27 18 |
| 5903 07 1/2 |
| Of which he is entitled to retain fifty per cent., agreeable to the act of the 24th of March 1818, | 2951 53 3/4 |
| Tax due the commonwealth, | $2951 53 3/4 |
| Settled and entered, | ) | Approved and entered, |
| James Duncan, | ) | William Clark, |
| Auditor-general's Office, | ) | Treasury Office, |
| May 1st, 1824. | ) | May 1st, 1824. |
The court below gave the following opinion:--By the act of the 10th of March 1810, it was the intention of the legislature to tax the officers; and although no provision was made in that act relative to the taxation of fees received by a person after he went out of office, I conceive, that the general powers incident to the office of the auditor-general would be sufficient for the purpose, independently of any such provision. But the act of the 24th of March 1818, places this matter in such a light as to remove every difficulty. The defendant was in office when this act passed; all its provisions embrace him, and he is liable to account for all fees received by him, after he went out of office, in the same manner that he would have been obliged to account had he remained in office. I therefore decide upon the first point, in favor of the commonwealth, and direct judgment to be entered against the defendant for $2859 51.
Buchanan, for the plaintiff in error, contended: 1. That previously to the act of 1818, prothonotaries were not subject to be taxed: 2. That the act does not embrace the present case.
No tax can be imposed but in plain terms. Taxation is the highest attribute of power, and it must be exercised unequivocally. In acts previously to 1818, there is a broad line of distinction between officers in and out of office. The legislature itself supposed the present casus omissus, else why provide for it particularly. He cited Charles v. Good, 11 Serg. & Rawle 247; Lyon v. McManus, 4 Binn. 169.
The first act is that of the 7th of December 1801, Pamph. Laws 3, taxing the clerk of the supreme court: the first section expressly respects the officer while holding the office. Act of 24th February 1806, sect. 27, 4 Smith L. 278, is the first general act on the subject: the act is confined to the period of official tenure, in express terms. The act of the 21st March 1806, 7 Sm. L. 547, has little relation to the subject. The act of the 10th March 1810, 5 Sm. L. 105, is the material one, and the question will depend on the construction of this act. The legislature had had the experience of nine years, under the act of 1801, and no officer was called to account for moneys received after he retired: the legislature acted with this before them.
The fees of existing prothonotaries will come into the hands of their successors, and to effect what is contended for, would require them to keep an account: the past officers do not keep such lists. But the penalty for not returning an account is removal from office: does not this conclusively point the provisions of the law to officers in office?
The act of 1818, Pamph. L. 300, is a clear legislative construction of preceding acts.
It is said, this construction would offer facilities to fraud. What of that? It is the business of courts, to construe, not to supply the defects of laws. But if the officer fraudulently kept fees outstanding, he would be chargeable for them as if actually received. But the officer could not prevent the fees from coming to hand; they are collected by the parties on execution, and the parties take care to have payments of costs noted on the docket.
2. The act of 1818 does not embrace this case. Retrospective acts are abhorrent to the principles of justice. Dash v. Van Kleeck, 7 Johns. 501; Alexander v. Reigart, 14 Serg. & Rawle 216; 6 Bac. Abr. 370. The construction is to be against retroactive operation. But all the provisions of that act are prospective. The act of 1818 was not to operate till after there should be a resignation or removal of the existing officers at its passage. To carry this back, all accounts settled previously would have to be opened, where $1500 had not been received during the period of actual tenure. He also insisted that the accountant would be entitled to $1500 a year after going out of office.
Harris, contra. By the act of 1810, he is to be allowed for deficiency when in office, out of the fees to be recovered afterwards: why then allow him a part, if entitled to the whole? But the case depends mainly on the act of 1818. It is not ex post facto. The constitutional provision relates to criminal laws. 3 Dall. 386; Ogle v. Somerset Turnpike Company, 13 Serg. & Rawle 256. To allow $1500 a year, after retirement, would defeat the law, because $1500 a year is not received in any county.
Douglass, same side. The commonwealth may tax fees earned as well as those to be earned hereafter. The act of 1810 gives $1500, and divides the surplus, no matter when received. Commonwealth v. Lewis, 6. Binn. 274.
Buchanan, in reply, referred to 7 Johns. 501.
The notion of a tax of fees was first put in practice in 1801 when the legislature laid a tax on fees received by the prothonotary of the supreme court, first deducting $2000, which were allowed him clear of tax. In 1806, the sum to be deducted was increased to $2500, without, however, changing the principle of accountability, which embraced fees only while in office. In the same year, and with the same limitation, the legislature laid a tax on the fees received by the prothonotaries or clerks of each of the courts in the commonwealth. These acts were repealed and supplied by the act of 1810, which, as it is one of the two on which the question depends, merits a...
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