Schuylkill County v. Shoener
| Decision Date | 04 May 1903 |
| Docket Number | 6 |
| Citation | 55 A. 791,205 Pa. 592 |
| Parties | Schuylkill County v. Shoener, Appellant |
| Court | Pennsylvania Supreme Court |
Argued February 17, 1903
Appeal, No. 6, Jan. T., 1903, by defendant, from judgment of C.P. Schuylkill Co., Jan. T., 1902, No. 61, for plaintiff, on case stated in County of Schuylkill v. John T. Shoener, Clerk of the Courts of Schuylkill County. Affirmed.
Case stated to determine whether the defendant, clerk of the courts of Schuylkill county, had the right to retain as fees of his office the money received from applicants for liquor license under the Act of July 30, 1897, P.L. 464.
The case stated was as follows:
And now, November 21, 1901, an action of assumpsit having been entered in the above stated case, it is hereby agreed by and between the parties to the above stated action that the following case be stated for the opinion of the court in the nature of a special verdict:
1. That John T. Shoener, clerk of the courts of Schuylkill county, in accordance with section 3, pages 469 and 470, P.L. 1897 which provides: "Every person intending to apply for license as aforesaid under this or any other act of assembly in any city or county of this commonwealth, on and after the passage of this act, shall file with the clerk of the court of quarter sessions of the proper county, his, her or their petition, at least three weeks before the first day of the session of the court at which the same is to be heard, and shall, at the same time, pay said clerk $5.00 for expenses connected therewith; and said clerk shall cause to be published two times in three newspapers designated by him one of which may be printed in the German language, a list containing the names of all such applicants, their respective residences, and the place for which application is made; and the cost of the publication shall not exceed the usual rates charged by such newspapers; the first publication shall not be less than fifteen nor more than twenty-five days before the time fixed by the court: Provided, the amount to be paid for such advertisement shall not, in the aggregate, exceed the $5.00 provided in this section to be paid by such applicant for expenses," collected the said five dollars ($5.00) from every petitioner, who applied for license under the provisions of the said act, to January term, 1901.
2. That there were 1,076 applicants, under the provisions of said act, to January term, 1901, and that the said John T. Shoener, clerk, etc., collected $5,380 from the said applicants.
3. That John T. Shoener, clerk, etc., retained said $5,380, and refused to pay it into the county treasury for the reason that the act of assembly created the money thus collected as a special fund for the expenses of advertising and his own legal expenses incident thereto, and that after paying all expenses out of the fund made up from the said $5.00 paid by each applicant, the balance remained due to him and was not an earning of the office under the meaning of the salary act of 1876, but was in the nature of a special fee for special services rendered.
4. That the commissioners contend that the said sum of $5,380 realized under the said act of assembly, was an earning of the office of the clerk of the courts, and in accordance with law, the said John T. Shoener, clerk, etc., should have paid the said amount into the county treasury as earnings of the said office, and that all legal expenses as provided for by said act of assembly, and appertaining thereto, should be paid out of the county treasury and charged up against the earnings of said office as any other item of expenses, arising from said office, is paid and as any other fees earned by said office are made a credit thereof.
If the court be of the opinion that the said John T. Shoener, clerk of the courts of Schuylkill county, had a right to retain the said $5,380, he, the said John T. Shoener, paying all expenses for services rendered, advertisements, etc., incident thereto, and had the right to retain the balance as his special fee in addition to his salary under the act of 1876 and its provisions, and that said $5,380 derived under said act of 1897, was not an earning of the office, and he was not required to pay it into the county treasury, then judgment be entered for the defendant for the sum of $5,380, but if not, then judgment to be entered for the plaintiff, the county of Schuylkill. The costs to follow the judgment, and either party reserving the right to sue out a writ of appeal therein to the Supreme Court. This judgment to be subject to such lawful expenses and salaries of the clerk and his deputies as a set-off as have been withheld pending a judicial determination of the questions involved.
The court below, MARR, J., filed an opinion, the material parts of which were as follows:
Does the act of 1897 modify or change the law, as thus referred to? It is true the act designates the clerk, as the one who shall receive the $5.00 on filing the application, and further designates him as the one who shall select the newspapers in which the advertisements required shall be published, but it further provides that the cost of publication shall not exceed the usual rates charged by such newspapers and in no event shall in the aggregate exceed the $5.00 thus provided. These limitations to the cost of publication are significant, as showing the intent of the legislature in not permitting contracts for advertising to be made which would be more than usual charges for similar work and under no circumstances, be in excess of the amount paid and thereby create a claim against the county treasury in excess of the amount collected for such purposes. Evidently the county treasury is to be protected by these provisions and not the individual clerk, and if this is true, is not the money collected to be paid to the county treasury, from which amount, thus paid, the expenses, referred to in the act, are to be cared for under the provisions of the salary act? The act of 1897 places no unusual duties on the clerk, except empowering him to designate the papers in which the license advertisements are to be published, in which respect it...
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