Pierie v. City of Philadelphia

• Decision Date: 26 January 1891
• Docket Number: 11
• Citation: 21 A. 90,139 Pa. 573
• Parties: GEORGE G. PIERIE v. PHILADELPHIA
• Court: Pennsylvania Supreme Court

21 A. 90

139 Pa. 573

GEORGE G. PIERIE v. PHILADELPHIA

No. 11

Supreme Court of Pennsylvania

January 26, 1891

Argued January 15, 1891

APPEAL BY PLAINTIFF FROM THE COURT OF COMMON PLEAS NO. 4 OF PHILADELPHIA COUNTY.

No. 11 July Term 1890, Sup. Ct.; court below, No. 345 December Term 1889, C.P. No. 4.

On December 10, 1889, an amicable action was entered in the court below between George G. Pierie, plaintiff, and the city and county of Philadelphia, defendant, the following case being stated for the opinion of the court, in the nature of a special verdict:

"George G. Pierie, the plaintiff, is recorder of deeds for the county of Philadelphia, duly elected and qualified for three years from the first Monday of January, 1888; he is paid by salary said county containing over 150,000 inhabitants.

"Under the act of May 28, 1715, § 1, 1 Sm. L. 94, it is the duty of the recorder of deeds for said county to 'record in a fair and legible hand all deeds and conveyances which shall be brought to him for that purpose.' Under said act, it was not the custom for the several recorders of deeds for said county to attach their signatures upon the records of said deeds and conveyances at the end thereof, or add any certificate whatever thereto, and none of the predecessors of said plaintiff ever did so.

"On June 24, 1885, the legislature passed the following act:

"'AN ACT

"'To perfect the records of deeds, mortgages and other instruments in certain cases:

"'§ 1. Be it enacted, etc., That in all cases where the term of the recorder of deeds and mortgages in the several counties of this commonwealth has terminated by death, resignation, or expiration of the term for which he was elected, and by reason of his having failed or neglected to authenticate the record of any deed, mortgage or other instrument of writing entered on the record, by adding thereto the proper certificate or his signature, his successor in office shall certify or sign the same.'

[§§ 2, 3, provide the forms of certificate and authentication.]

"'§ 4. The records of such deed, mortgage or other instrument of writing, thus authenticated, shall be taken and deemed to be as good and valid to all intents and purposes, as if the same had been certified to and signed by the proper recorder during his term of office.

"'§ 5. The person performing such service shall be entitled to be paid by the proper county the sum of twenty cents for each certificate to record, and ten cents where the signature alone is wanting.'

"In conformity with his interpretation of said last-mentioned act, the plaintiff has certified 211 of certain deeds, which were entered of record by his predecessors, but not certified by them, and now claims that, as the person performing said service, he is entitled, under said last mentioned act, to be paid by the defendant the sum of twenty cents for each of said certificates to record.

"The defendant has refused to pay the same, alleging:

"1. That the said act of 1885 is unconstitutional, in that it does not recite the said act of 1715, which it was intended to alter and amend.

"2. That § 5 of said act of 1885, is in violation of § 5, article XIV. of the constitution of Pennsylvania.

"3. That said act is not retroactive.

"4. That, if said act of 1885 is retroactive, it applies only to deeds and other instruments not certified by the immediate predecessor of the present incumbent.

"If the court be of the opinion that the said sum is due and payable to the plaintiff, then judgment to be entered for the plaintiff for the sum of $42.20; but if the court be not of that opinion, then judgment to be entered for defendant costs to follow judgment, each party reserving the right to an appeal."

After argument, the court, THAYER, P.J., entered judgment on the case stated for the defendant, filing an opinion in part as follows:

It has never been customary for the recorder in Philadelphia county to add any certificate to the record of the deed, or to attest it by his signature. The law did not require it, and consequently it was never done. He certified the recording of the deed upon the deed itself, when it was left to be recorded, as the act of 1715 required him to do, and he certified all exemplifications or copies from the records, as he was also required to do by the act. There would seem to be no more necessity for certifying every recorded deed at the end of the record, than there is of certifying in like manner any other public record which is kept in the courts or the public offices of the commonwealth.

The office of recorder of deeds has existed from the very foundation of the commonwealth. It was provided for in the "Laws agreed upon in England," under the name of the "Public Enrolment Office," and with the residue of those laws was enacted by the first general assembly which sat at Chester in 1682. From that time until the passage of the act of June 24, 1885, no one, at least in this part of the state, ever supposed that it was necessary, or that it was a part of the recorder's duty, to write a certificate in the record books at the end of each record of the deeds there recorded.

It has long been determined that the record books themselves are evidence of the deeds copied in them: Lewis v Bradford, 10 W. 67, and that those records are constructive notice to all mankind: Evans v. Jones, 1 Y. 173. In hundreds of cases, those records have been given in evidence, on the trial of causes in the courts, and no lawyer was ever found so astute as to object to the records for lack of such certificate. But, by the act of June 24, 1885, entitled "An Act to perfect the record of deeds, mortgages, or other instruments in certain cases," it was enacted: . . . .

The act assumes, what is altogether untrue, that the omission to do that which is here provided for, was due to a failure or neglect of duty on the part of former recorders, whereas it never was their duty to do it. No such duty was ever imposed upon them by any law, written or unwritten, nor by any custom. The records of the office in Philadelphia for two hundred years will be searched in vain for any such certificates. How the recorder who is now to add these certificates to the old records is to know that the records made by his predecessors are true records, especially where those predecessors have been dead for several generations, except by finding the records spread out there in the official books, the act does not inform us.

The fifth section of this act requires the county to pay the recorder for the service to be rendered, in writing up certificates to these many thousand of old records, a fee of twenty cents for each certificate. I say, requires the county to pay the recorder. The language of the act is, "the person performing such service;" but that person, as will be seen by reference to the first section, is necessarily the recorder of deeds, and cannot be any one else. It is for the recovery of these fees which the city has refused to pay, that the present action has been brought.

It is insisted on behalf of the city that the act of June 24, 1885, so far as it provides a compensation for the recorder of deeds, by the payment to him of the fees mentioned in the fifth section, is unconstitutional and void, the same being in conflict with § 5, article XIV. of the constitution.

By § 12, act of March 31, 1876, entitled "An Act to carry into effect § 5, article XIV. of the constitution, relative to the salaries of county officers, and the payment of fees received by them into the state or county treasury, in counties containing over 150,000 inhabitants" the salary of the recorder of deeds "in counties, or in cities co-extensive with counties, containing over 300,000 inhabitants" (which is the modern statutory name of the city of Philadelphia), is fixed at twelve thousand dollars.

Nothing can be plainer than the intention of the framers of the constitution of 1874 to substitute, in all counties containing over 150,000 inhabitants, for the old method of compensating county officers by fees, a new system, by which they are to be paid fixed salaries, not exceeding, however, the aggregate amount of the fees earned by them under the existing fee bills. That the payment by salaries was intended to exclude such officers from all right to compensation by fees, is perfectly clear; for the constitution not only says that "they shall be paid by salary," but expressly requires them to pay all fees received into the state or county treasury.

The prohibition of the receipt of fees for their own use, and the regulation of their compensation by fixed salaries exclusively, could hardly have been expressed in plainer language than that which is written in the constitution. It is impossible for any ingenuity to prevail against it. There is nothing left for construction or interpretation. It interprets itself as plainly as any words in the English language can do so, and there is no hook upon which to hang a query or a doubt. If the strongest prohibitory words had been used against a return by the legislature in the counties designated, either partially or entirely, to the old system of compensation of county officers by fees, it could not have made the matter plainer than it is written in the constitution.

Inasmuch as the act of June 24, 1885, was passed before the election of the plaintiff to his present term of office, it would have been competent for the legislature, by an act passed at that time, to have increased, prospectively, the amount of the compensation fixed by the act of March 31, 1876, if they had thought proper to do so. But the constitution permitted them to do that only by increasing the fixed salary. Its provisions amount to an absolute prohibition of their doing so, by...