author: Charge oe the Court.

text:
      Court of Common Pleas, Dauphin County,

      March 30th, 1867.
    Young et al. v. Machamer et al.
    A bond given to the township auditors by a supervisor to secure the faithful performance of his duties is valid; but it must be sued upon in the name of the township.
    The fact that the bond was never approved by the township officers, and was given by only one supervisor, when there were two in the township, does not render it void.
   Charge oe the Court.

This suit is brought upon a bond in the name of the township auditors, conditioned that Charles Machamer shall properly perform his duty as supervisor of Wiconisco township for the years 1862-63. The bond is intended to be taken under the act of March 16th, 1860, requiring such officers to give security; but is very inartificially drawn, being made payable to the auditors of the township and their successors in office, instead of being drawn in the name of the township itself. It is without date; but there is no difficulty as to the time it is intended to cover. The suit is not brought in the names of the proper parties, as that of the township should have been used instead of the auditors for the time being. The latter error may readily be amended by striking out those names and inserting that of the township, and we must treat it as thus amended, if necessary. The main question is, does the bond substantially comply with the statute ? Although the bond is directed to be taken in the name of the township, yet that Avas held not to vitiate in Greenfield et al. v. Yeates et al. (2 Rawle, 158), Avhere a form of bond is prescribed, yet it does not say it shall not be taken in other form. The act may be considered as merely directoiy (3 W. & S. 324 — 327). Where a bond Avas taken in the name of the toAvnship auditors and was sued for the use of the toAvnship, held to be a good obligation, and the suit sustained (4 Casey, 186). The same decided m substance in Glover v. Wilson (6 Barr, 290). So, Avhere a bond was taken in the names of road commissioners, and sued in that of the toAvnship, held good (Anderson v. Hamilton Township, 1 Casey, 75). So that it would seem that this suit could be sustained as brought or amended, and then the bond be valid. Although not precisely in the words of the statute, yet the condition is no more onerous than prescribed, which appears to be the principal requisite (1 W. & S. 261). The surety is bound, as far and as fully as the principal (6 Barr, 290; 5 W. & S. 21).

And Avhere several conditions are mentioned in a bond, some being more onerous than the statute prescribed, yet held good for those directed by law, wherever the acts are capable of severance (Speck v. Commonwealth, 3 W. & S. 324; 5 W. & S. 21; 1 W. & S. 261).

McAlarney, for plaintiff.

ICwnhel and Simonton, for defendant.

It has been suggested that this bond was never approved by the township officers; but the fact of holding and bringing suit upon it is some evidence of approval. Besides, that was not intended for the benefit of the supervisor or his surety, but for the township. The principal and surety cannot take advantage of the want of approval (7 Barr, 240; 1 W. & S. 261).

It is said that the bond should have been given by both supervisors, and the amount settled against both. The act of 1860 (P. L. 175) authorized separate bonds, and if the security is several, the settlement of the account must almost necessarily be so, else it could not be told how much each was to pay oh his bond. Such settlement must always be made before the township auditors, and if unappealed from is conclusive (Dyer v. Covington Township, 4 Casey, 186).

We see nothing in the way of a recovery by the township. You will give a credit for $7.10, spoken of by the witness, and compute interest after thirty days from the time of settlement, the statute requiring the balance found due to be paid within that time. Judgment will, therefore, be rendered in favor of the plaintiff for $415.40.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
      Court of Common Pleas, Dauphin County,

      July 1st, 1867.
    Adose et ux. v. Fossit.
    The fact that a woman cohabited with and spoke of a man as her husband, is sufficient to bar her claim to the estate of another man, whom she claimed to have married during the lifetime of the former; proof of an actual marriage is only necessary in indictments for adultery or actions for criminal conversation. A woman is not debarred from claiming her husband’s estate under the laws relating to escheat by the fact that she had eloped from him, and was living with an adulterer.
    A woman having deserted her husband without sufficient cause, and not living with him at the time of his death, cannot claim three hundred dollars out of his estate. The fact that a man called another his son, and the latter bore the former’s name, is sufficient to prove that the son was legitimate. A marriage cannot be inferred because a man and woman continue to cohabit as husband and wife after the death of another husband of the wife.
   By the Court.

Several reasons have been assigned for a new trial in this case, some of which are not, in our opinion, precisely in accordance with what transpired on the trial, as the facts On the several issues were mainly left to the jury. We will proceecl to consider the issues decided in their order. 1. The jury-found that the petitioner was not the lawful wife of Daniel Fossit at the time of his death. The finding was predicated on the fact that Susan Adose had a husband in full life at the time she married Fossit. There was much evidence submitted to the jury on that subject, and it was left as a question to be determined by them. Their finding is in our opinion in accordance with the weight of the evidence. Long before this woman’s marriage with Fossit, she lived and cohabited with a man named John Pay as her husband, always spoke of him as such, and after his death claimed a portion of his estate as his widow, although she was then the wife of Fossit. This claim is not very clearly and regularly established ; but the long cohabitation and reputation, together with her assertions, are fully proved. This is, in our opinion, such evidence as must be submitted to a jury to show a marriage in fact. Direct proof is only required in prosecutions for adultery or bigamy, or civil suits for criminal conversation. This proceeding is neither; and it can scarcely be pretended that the proof is insufficient to establish a marriage between her and John Pay, had the question arisen before her intermarriage with Fossit; and we are at a loss to see how she can get clear of the effect of the cohabitation and acknowledgments by subsequently contracting marriage with another person, when the question arises on a mere claim of property, part of the estate of her second husband. 2. It was clearly proved that Susan eloped from Daniel in an. adulterous manner, and lived with her adulterer in another county at the time of Daniel’s death. By this she forfeited all claim of dower in his estate under the statute of 13 Edward I. The present is not, however, a claim of dower, but of the whole estate under the act of 21st January, 1819, relative to escheat (7 Smith’s Laws, 114). To recover this, she presented her petition as provided by the act of 6th April, 1833 (Dunlop, 569); and hence this issue was directed. It is clearly settled that such elopement was no cause of forfeiture by the common law, and the cause must come strictly within the words of the statute. It would not debar a widow from recovering her distributive share out of the deceased husband’s personal estate, as given by our acts of Assembly, although in many respects placed on the same footing as dower; nor would it prevent her successfully claiming his whole estate under the acts referred to, relating to escheat. We are of the opinion that this finding would not preclude her recovery, were there nothing else in the way; and the^ issue on that point was unimportant, except so far as it bears on the claim for three hundred dollars under the act of Assembly,, as. set forth in the third question to which the attention of the jury was- directed. 3. The jury find that Susan did not form any part of Daniel’s family at' the time of his death. She had previously eloped, and was living absent from him in a state of adultery; at that time she formed no part of his family. Section 5 of the act of 14th April, 1851, authorizes the widow to retain either real or personal property belonging to the estate of her deceased husband to the value of three hundred dollars; and the same shall not be sold, but suffered to remain for the use of the widow and family. The widow is suffered to retain the goods, not to obtain them from others. They are to remain with herself and the family of the deceased for their use. The whole tenor of the statute contemplates that the goods or money shall be held by those constituting the family of the deceased at the time of his death. It never was intended that the three hundred dollars’ worth of property should be distributed among children, who were of full age, living separate from their parents, and constituting no part of the family of the deceased at the time of his death. Nor does it intend that a widow, who had long since deserted her husband by her own act, and without impropriety on his part, and was living separate from him, should obtain that sum from his estate to the exclusion of creditors and heirs. The act has in view a provision for the family of a decedent, who were about him at the time of his death, and is designed to prevent them from being stripped of the last remnant of his property, and left in destitution. The whole wording shows that the goods were to be retained by those then in possession, and left unsold for their use. There might possibly be excepted cases, as where the husband by his own improper act had driven his wife from her home, or the father had turned his children out of doors; in each case his house for such purposes might be considered their domicil, and they be permitted to retain. But when the wife had eloped, and lived in a state of adultery at the time of her husband’s decease, it never could have been intended that after his death, she should return to claim three hundred dollars’ worth of his property as part of his family. At the time of his demise she constituted no portion of it, could not retain the goods, nor could they remain for her use. Susan Adose is not entitled to any portion of the three hundred dollars allowed by law as the widow of Daniel Fossit, deceased, under the circumstances proved.

4. The jury found that Daniel Fossit, Jr., is the lawful son of Daniel Fossit, deceased. Was this finding on sufficient evidence? The witnesses testified that Daniel, senior, always called Daniel, junior, his son; frequently spoke of him as such; never qualified it by saying that he was illegitimate. He assumed, and always bore his father’s name. One witness stated that before and at the time of Daniel’s birth, his father and mother cohabited together as husband and wife; whether they were married or not the witness did not know. Other witnesses proved that they separated over forty years ago, the woman always going by ber maiden name; that she lived and died in the vicinity some years prior to the death of Daniel, senior. Suppose the facts as stated by the one and the other sets of witnesses to be of equal weight so far as regards the marriage of these parties from cohabitation, yet where a person always spoke of another as his son without more, introduces him to the world as such; he bears the father’s name, shall we not rather presume that he was legitimate than illegitimate? It is presuming in favor of innocence rather than of guilt; that the conduct of the parents was lawful rather than unlawful. If a person says to the world, “ This is my son,” speaking of one who bears his name, is it not to be presumed that he meant his legitimate, lawful son ? It is very true that our lawbooks state many other acts, such as superintending his education, providing for his wants, the family traditions, etc., which may be proved by way of corroboration; yet it is not said that these arc requisite. Besides, as to providing for and educating children among the poorer colored classes of society, little could in general bo proved, for little is done; scarcely any education given, and few wants provided for. It is not considered proper in law to bastardize by mere reputation after the death of the parents, especially where the father has always recognized the son as his offspring during the lifetime of the former. This question was fairly submitted to the jury on what we consider sufficient evidence; nor are we dissatisfied with their finding.

There is one other important question raised in this case by Adose and wife, predicated on the fact that Susan continued to reside with Daniel for some time, perhaps over a year, after the death of her former husband, John Ray; from which it is contended that the jury should have inferred a subsequent marriage between the parties, after the legal disability was removed; although we do not believe that in reality there is the slightest ground to suppose that an after marriage took place in point of fact, as Susan throughout the trial contended she had never been lawfully married before, and therefore, there could be no inducement for a repetition of the ceremony. Yet if it was a legal presumption from the continued cohabitation, the jury should have been instructed to infer it, and no such instruction was given; therefore, an error was committed. In some of the States the second marriage has been strongly presumed on very slight or no grounds. Such is the case in Kentucky and New York (8 B. Monroe, 117; 4 John. R. 52). Yet in others and our own no such inference is drawn. The true question is, was there sufficient evidence from which to infer an after marriage ? "Where the wife claims dower or other interest in the estate of her alleged husband after his death, an actual marriage must be proved (Cord on the Rights of Married Women, s. 551). True, marriage with Fossit was proved here, but that was destroyed by showing that the woman had another husband in full life at the time it was consummated, and no after marriage was shown. The bare fact that they lived together after the termination of what was established as an illicit intercourse will not, per se, be sufficient to raise an inference of marriage (Cord, s. 552). If sufficient of itself, why decide, as was done in Hantz v. Sealy (6 Binn. 405), a leading and well-accredited case in this State ? Why not presume an after marriage ? Wh ere a coup] e went together to live in illicit intercourse, the one being a married woman, afterwards her husband died, and she continued living as before; held, that it was not to be presumed that the parties were afterwards married; but the children born after the husband’s death, as well as those before, were held to be illegitimate (1 Bishop on Marriage and Divorce, s. 507, and the case there cited). The law does not presume an after marriage, but the fact may be inferred by a jury (Bishop, s. 508). It is not an inference of law, but may be inferred by a jury, which may and must consider all the circumstances of the case; and to decide in favor of an after marriage would in most cases be to determine against the probabilities of the case (Bishop, 509, 510; 3 Bradford, 369; 2 Vermont, 582, 591; 1 House of Lords Cases, 498). In the case under consideration there was not the least ground to infer that the parties were ever married. Had it been so this woman, who is in full life and was present at the trial, could have readily j>ointed out the person who performed the ceremony, as she and her alleged husband, Fossit, continued to reside in this place until the time of her elopement. We consider that the jury decided correctly on all of the questions submitted, although the second was unimportant and immaterial, except so far as it has a bearing on the third proposition. The motion for a new trial is out of time; but that might not debar our action, if satisfied that we had committed an error material to the merits. We regret that the plaintiff in the issue did not except to our charge so as to give the chance for a review; but that not having been done in time precludes our sealing a bill of exceptions, as the defendant can insist on his rights. The motion for a new trial must be overruled.

Oraydon and McKinney, for plaintiff.

L. B. Abides, for defendant.


text:
      Court of Quarter Sessions, Dauphin County,

      December 5th, 1867.
    De Carlton v. The City of Harrisburg.
    A city is bound to pay the damages caused by the opening of its streets, lanes, and alleys, although by its charter the county in which it was situated was liable, when a subsequent act of Assembly requires it to do so.
    Such a law is constitutional, as the legislature has the power to change a city charter, and is not made invalid by the fact that the creditor must obtain his money from a less solvent debtor. The city is liable even when the petition for opening the streets and assessing the damages was presented to the court before the passage of the act, if the damages were not awarded and confirmed after it became a law.
   By the Court.

Applications have been made in several cases by those whose property was injured by the opening of streets in the city of Harrisburg, for an order on the council to pay them respectively the amount of damages assessed in their favor by viewers appointed by the court, and the reports confirmed ; and in one case of like situation the party injured has made application for an order on the county commissioners. All of the cases present but one question: Is it the duty of the city of Harrisburg, or of the county of Dauphin to pay these damages ? The 33d section of the act of March 20th, 1860, incorporating the city, appoints certain commissioners to lay out avenues, streets, lanes, and alleys in the new or extended portions of the city; also to make alterations in some parts of the old portion, and present a draft with proper descriptions to the Court of Quarter Sessions of Dauphin County, which, if approved by the court, is to be recorded, and all of the streets, etc., so located, are to be public highways.

The thirty-fifth section provides in substance that the mayor and council of the city may, by ordinances, from time to time direct the streets to be opened, whereupon viewers are to be appointed by the court to determine the amount of damages the owners of property may have sustained by reason of their grounds being injured or occupied by the opening of the streets. On the approval of the reports, the county of Dauphin is iequired to pay the damages assessed within six months thereafter, and no such street, etc., can be opened until the damages are paid, or adequate security given to the owners therefor. It is further provided that after the expiration of one year, execution may issue against the county to collect the amount due. The report made by the commissioners was not approved by the court, but, so far as concerns the stre'ets in question, was confirmed by the law of April 1st, 1863. On the 4th day of April, 1866, an act was passed, probably intended to apply to these streets, but really relating to public roads only, attempting to throw the damages assessed on the boroughs and townships through which they were opened. The proviso to that act shows that the streets of the city were not embraced, as all had been previously laid out by competent authority. Next comes the act of March 12th, 1867 (P. L., p. 402), on the proper construction of which these cases turn. It is provided “that all street and road damages hereafter awarded and confirmed to the owners of property in the county of Dauphin, through which public streets or roads are or may be opened, shall be paid by the city, borough, or township in which said street or road is or may be located.” The second section of this act repeals that of March 31st, 1866, relating to road damages in the county of Dauphin, but makes no mention of the charter law of 1860. All the streets now in question were ordered to be opened and graded by the city council, and petitions were presented to the president of that body to have the damages assessed. In every case this was done before the enactment of March 12th, 1867, already cited, but, owing to continuances of the orders to the viewers, none of the reports were made before the 13th of April, 1867, and were subsequently confirmed at various times. The damages were therefore “ awarded and confirmed ” in every case after the enactment of the law. If this were a new statute, standing isolated and alone, it could not be pretended that the city of Harrisburg could avoid a payment; but it is contended that the burden remains on the county of Dauphin, because there is no repeal of so much of the act of 1860 as throws that duty upon it, nor is there a clear and necessary inconsistency between the two enactments, and the former law is not to be repealed by implication. It is Very true that implied repeals are not to be favored, and generally negative words must be used, else the two enactments will be construed to stand together, unless it appears clearly that they are repugnant in their nature, and then the latter is always deemed a repeal of the former, according to the legal maxim, leges posteriores priores contrarias abrogant. Are not these laws clearly inconsistent with each other? The first commands the county of Dauphin to pay; the latter declares that the city, borough, or township in which the street or road is located, shall make payment. It is not disputed but that the damages were “awarded and confirmed” in every case after the passage of the later statute. The two are in our opinion irreconcilable, and we must be governed by the latest act of Assembly, as the last expressed will of the legislature. There is no doubt or question as to the actual intention. The people of the county complained, and with good show of reason, that there was a desperate disregard of economy on the part of the city authorities in having streets opened and the damages assessed in cases where they would not be required for public use for many years to come, and by means thereof, the county of Dauphin had been obliged, in the course of less than three years, to pay damages to an amount exceeding one hundred and forty thousand dollars. It was deemed expedient that each township, borough, and city should pay its own damages, and they would thereby be deterred from opening unnecessary streets and roads. The act of 1866 was intended to effect this object, but was so lame in its provisions as to become utterly impotent. Its place was supplied by the present law, which this court has no right to disregard or explain away. It is said, however, that the act of 1867 is in violation of the Constitution, as it throws additional burdens upon the city, in violation of its charter, and also takes away the right of the property-holder to recover damages from a perfectly solvent corporation, shifting his claim over upon one of more doubtful solvency. Independent of the second section of the first article of the Constitution, giving the legislature unlimited power over corporations, it always had full control of those of this character.

Old powers could be taken from and new duties imposed upon municipal or public corporations at the will of the law-making power. This the city was bound to know when it extended its boundaries and obtained its charter. The property-holder had no such rights against the county by the mere location of the street as would prevent the shifting of his remedy against another municipality of which he was a member, and in which his lot was located. The right was at best but contingent and inchoate, not determined and vested. It is fully met by tire case of Gault’s Appeal (9 Casey, 94), and the most that can be said of this legislative arrangement is that the remedy is changed, a power always conceded to the legislature by numerous judicial decisions, is not prohibited by the organic law, and it infringes on no constitutional right.

This question does not arise so far as regards the property-owners in any case before us excepting one. The parties ask for orders on the city authorities to make payment. If they have a less solvent debtor it is in conformity with their own applications, and volenti non fit injuria. One claimant demands an order on the county'Commissioners to discharge his assessment. We are of the opinion that he is not entitled to it, for the reasons already given. The act of 1867 virtually abrogates that portion of the act of 1860, which imposes the duty of payments on the county of Dauphin. Nor has this property-holder any reason to complain on account of being turned over to a less solvent debtor, even supposing such to be the case, as no one can intrude upon his ground or disturb his possession until the damages are paid, or amply secured. Besides, the statute prescribes another remedy: if the claim is not discharged within a year the law gives him an execution against the couniy. This method must be adopted to collect the money, not an order, to be enforced by a mandamus, or attachment.

Kunhel and Bimonton, for plaintiff.

Abides and Lamberton, for defendant.

It is the duty of the court to make an order on the city authorities to discharge all of these confirmed reports, where the same is demanded by the persons in whose favor the damages have been or may be assessed, which will be done from time to time. If any of the confirmations were irregular, or the action of the viewers not sanctioned by law, it was the duty of the city officers to file exceptions, and support them by proof. In each of the cases under consideration the reports were confirmed without objection.

Affirmed by the Supreme Court, May 27th, 1868. Not reported.


text:
      Court of Common Pleas, Dauphin County,

      December 27th, 1867.
    Eberly v. Rowland.
    In a foreign attachment no affidavit showing the defendant to be the citizen of another State or country, and that he owed the plaintiff a real subsisting debt is necessary. The property of a person who leaves his residence with the avowed intention of returning soon, but remains away eighteen months, and enters no appearance when suit is brought, is subject to foreign attachment. It need not be shown that he has gained a residence elsewhere.
   By the Court.

On the 13th day of June, 1866, Robert B. Rowland left this State for the Southwest, and has never yet returned. On the 2d day of August, 1866, a foreign attachment issued to seize his property and effects in the hands of Irwin Nicholson and others, garnishees. He left property in this city at the time of his departure, probably worth about $200, the subject of attachment and debts amounting to over eight hundred dollars. On the 22d of November, 1866, Mr. Etter appeared for the defendant and the garnishee to move for a rule on the plaintiff to file an affidavit of his cause of action. On the 31st of January, 1867, on motion, a rule was granted on the plaintiff to show cause of action and why the attachment should not be dissolved. Much testimony has been taken for the purpose of proviug that the defendant was not, and is not, the subject of a foreign attachment ; and it is complained that the proceeding is entirely irregular. First. It is said that an affidavit should be made and filed before issuing the writ, showing the defendant to be the citizen of another State or country, and that he owed to the plaintiff a real subsisting debt, with the amount thereof. There is no law in Pennsylvania that we are aware of, which requires such an affidavit. It must be made before a domestic attachment can issue, but no such practice has prevailed in case of foreign attaahment. In the latter writ the plaintiff can be cited to show cause of action the same as on writs of capias ad respondendwn. This is shown after suit brought, if a rule is taken, not otherwise. The only instance in which a previous affidavit is required is where the garnishee is asked to be arrested lest he should carry off or use the effects. There it is prescribed by the statute.

The cause of action is- not now disputed, but it is contended that the defendant is a citizen of Pennsylvania, and not subject to this writ. By the act of Assembly the defendant must be a non-resident within the commonwealth at the time of its impetration; and residence is established by acts and: intentions. Where a person leaves the State with the manifest intention of immediately returning, he is not subject to this form of proceeding. Where he goes into another State or foreign country, with intent to make it his place of abode, and abandons his home here, he becomes the subject of a foreign attachment so soon as he reaches his intended domicil, and perhaps at once after leaving the boundaries of Pennsylvania. Where there is an avowed intention of returning, such avowal will be taken in the first instance as evidence of the fact 5 but a long-continued absence may raise the conviction that the intention to return was only pretended, and thus destroy the rights of citizenship.

Residence and domicil are not treated as synonymous under the attachment laws of New York, and I am inclined to think that ours will bear the same interpretation (1 Seld. 423). Our attachment laws have received a construction in various cases. Where a resident of the State started to leave it with the avowed intention of moving away, it was held that he was not the subject of a foreign attachment, he having reached no further than Pittsburg at the time of the impetration of the writ (1 Dal. 480). He was still residing within the State, though intending to leave it. In Pfouts v. Comford (12 Casey, 420), it is said by the reporter that the residence continues until the party has obtained another place of abode with the intention of remaining in it. Such is not the language of the court; but the person “remained a resident of the State until he left it with his family on his way to a new home elsewhere.” The facts of that case fully support the decision, which is perfectly sound. There the man left his abode with his family for the avowed purpose of taking them to a relative in another part of the State, and then seeking a home elsewhere; but declaring his intention to return in about three weeks. After he had been gone but three days, and most probably before he had left the State, the writ in question issued. He returned with his family to his former abode at the end of the three weeks; but in the mean time his goods were attached. This was dearly irregular. The family had. not left the State, and probably the debtor himself had not. The avowed intention was to return soon, and then take his final departure; that was afterwards accomplished. Such a person is not the subject of either a foreign or domestic attachment. In Fuller v. Ryan (8 Harris, 144), it was rightly held that the mere temporary absence from the State by the debtor, for the purpose of completing a job of work, his family all the time residing here, did not render him subject to a foreign attachment. The case before us is unlike any of these. Here a citizen of the State, having no family, leaves his place of business with the avowed intention of returning soon; after he had been gone about three months a foreign attachment was issued by a creditor. The few goods left behind him were attached, but that does not compel an appearance. Three months later an attorney, on the request of a garnishee, enters an appearance, merely for the purpose of requiring the plaintiff to show his cause of action. At the end of over two months more the rule is taken, and also to show cause why the attachment should not bo dissolved, still no appearance is induced. At 'the end of nearly another year wo are called on to decide the case. The defendant has not yet returned to his native State, nor has he written a word to any one since the 1st of June, 1867, when a letter came from the State of Mississippi. He had, according to the evidence, written from different States during his absence, in all declaring an intention to return, but still remaining away. We think that there is ample reason to believe that the defendant has no intention of returning, but has taken up his abode elsewhere, or is a mere wanderer. It is contended that the plaintiff must not only prove that the defendant has left the State for the avowed purpose of effecting a change of residence, but that he has actually become a citizen of another State. This is, in our own opinion, asking more than the law requires. That there is no present intention to return is more strongly evidenced by the party’s acts than by mere professions, which are easily made. He might readily exercise all the rights of citizenship in another State without a possibility of the plaintiff showing it. Some of the States, where the defendant spent a portion of his time, requires but six months’ residence to become a citizen, and one of them but ten days. It must be borne in mind that the object of this proceeding is merely to compel an appearance. And we must also consider that this motion is not on behalf of creditors, either under a domestic attachment or otherwise, but of the defendant himself, who will not appear, or of the garnishee, who is a mere stakeholder, and has no right to interfere.

Creditors under domestic attachment are entitled to a much more favorable consideration, as was held in the case of Lazarus Barnet’s Case (1 Dal. 153), than the party himself. There are many cases where the absent debtors will possess immunity from their debts, if so strict a construction is put on the foreign attachment law, as is contended for here. The domestic attachment is often unavailing, as no one can conscientiously make the required affidavit as to the party’s intention, etc. It is said that this case should be tested by what had occurred at the time the writ issued; but we hold that the subsequent conduct of the party is strong evidence of his original intention, showing that the alleged design to return was only simulated. We must decline to set aside the writ in this case, and discharge the rule.

Miller and MoAlarney, for plaintiff.

Etter, for defendant.


text:
      Court of Common Pleas, Dauphin County,

      May 10th, 1854.
    The Commonwealth of Pennsylvania v. Morrison.
    County bonds are within the act of 29th of April, 1844, imposing a State tax upon money at interest.
    A county subscribed to the stock of a railroad company and paid its subscription in bonds bearing six per cent, interest, having been authorized by law to do so. By the same law the railroad was required to pay to the county a dividend of six per cent, on its stock until the road was completed; therefore the company undertook the payment of the interest on these county bonds. Held, that the county treasurer was bound to see that the State tax on the interest was retained, as required by the act of 1844, and on failure so to do, was liable to a penalty of twelve per cent, on the amount so due the Commonwealth. The fact that the law which directed him to retain the money was obscure, will not relieve him.
   By the Court.

From the facts stated, it appears that the commissioners of Allegheny county subscribed for stock in the Pennsylvania Bailroad to the amount of one million of dollars, as authorized by the act of March 27th, 1848, and paid the subscription by giving the bonds of the county, bearing interest at the rate of six per cent, per annum.

On these bonds the county was bound to pay the interest half-yearly, and the company was obliged, under the second section of the same act, to pay the county six per cent, dividends on its stock until the road was completed. An arrangement was made, for mutual convenience, that the company should pay the interest on the bonds as the same fell due, instead of paying the dividends on the stock, which was done for some years, and probably still continues to be done.

By the 32d section of the act of 29th of April, 1844, all money at interest, clue by solvent debtors, is subject to a tax of three mills on the dollar. In general, this tax is assessed against the holder of the obligation, and collected as other taxes are collectable; but in the case of any scrip, bond, or certificate of indebtedness issued by certain municipal corporations, a different method of assessment and collection is prescribed.

The first question presented is, do the bonds issued by the county of Allegheny come within that mode of'collection?

By the 42d section of the act of April 29th, 184-4, it is provided inter alia, “ It shall be the duty of the treasurer of each county, incorporated city, district, and borough of this commonwealth, on the payment of any dividend or interest to any holder, or agent claiming the same, on any scrip, bond, or certificate of indebtedness, issued by said incorporated city, district, and borough aforesaid, to assess the tax herein made and provided for State purposes, upon the nominal value of each and every said evidence of debt; said tax to be deducted by said treasurer on the payment of any interest or dividend aforesaid, and the same shall be held by him until paid over to the State treasurer, and the said treasurer shall be subject to the same penalties and liabilities now prescribed by existing laws in relation to taxes on bank dividends.” This section in the outset, speaks of and enumerates county treasurers as among the officers who are to assess and deduct the taxes due upon the various evidences of debt mentioned; but when it refers to the corporations owing the debts, counties are omitted. Can the courts by construction supply that omission? It is obviously our duty to so construe the law as to carry into effect the general intention of the legislature. Cases are often brought within the intention of a statute which do not come within the letter, and those which come within the letter, but manifestly not within the intention, are construed not to be covered by it. It is the duty of courts in interpreting an act to give effect, if possible, to every word contained within it, and if the intention of the legislature can be collected from the whole act, to carry that into effect. Where a case manifestly comes within the mischief intended to be remedied by the legislature, and would have been covered by its words, if foreseen, it furnishes sufficient warrant to bring it within the act. The mischief intended to be provided for by this act, was that a large amount of money at interest within the State escapes taxation. The scrip, bonds, and other evidences of debt, issued by counties, cities, incorporated districts, and boroughs, fell into the hands of persons not residing within the State, often of those living in foreign countries, and could not be assessed under the former laws. The legislature desired to meet the evil, and directed that the State tax should be retained out of the interest by the officer whose duty it was to pay it. The same course of collection was proscribed in regard to the State stock, or that of corporations guaranteed and paid by the commonwealth, which was to be deducted by the State treasurer from the annual interest.

The officers of banks were required to deduct the State tax from the dividends paid over to the stockholders, so that it would seem that in almost every case, except that of private debtors or mere private corporations, the mode of retention was resorted to, and the sum ordered to be retained was directed to be paid by proper officers into the State treasury. In the present act, the word “ eon/nties” has been omitted, where it comes to speak of the evidences of debt issued, which has most probably occurred in transcribing the bill, or possibly in printing the law after its passage. But we cannot give effect to every word of this act, should we fail to apply it to counties, as well as cities, boroughs, and districts, -when we find that it is made the duty of the county treasurer to assess and retain a tax, and yet no indebtedness is mentioned from which it is to be retained. We cannot believe that the legislature intended to secure the State tax on the indebtedness of every petty borough within the commonwealth, whose obligations could, at most, amount to a few thousand dollars, and trust to accident for the collection of that due from the great counties of Philadelphia and Allegheny, whose debts run up to millions.

We are therefore of the opinion that had the treasurer of Allegheny county paid the interest due on these bonds, he was bound by law to deduct the State tax therefrom.

Will the arrangement by which the railroad company paid the interest, instead of it being paid by the county treasurer, change the liability ? It is very true that the county commissioners and the officers of the company entered into an agreement, not provided for by law, to have the interest on the bonds paid in Philadelphia instead of at the treasury of Allegheny county, and to substitute such payment for that on the dividends of stock held by the county. Over this arrangement the treasurer had no control ; he was not required to be privy to it. But it is conceded as part of the case that he knew of it, and that the company’s treasurer was paying tire interest on these bonds as the same fell due. It then became his duty to secure the State tax by notifying the treasurer of the railroad company to deduct it from the coupons when presented by the holders. As to this payment, the treasurer of the company became his agent, and the county treasurer is liable for neglect of duty on the part of the person employed.

A different conclusion would leave the commonwealth without remedy for the collection of this tax. It cannot proceed against the railroad company — it is not recognized as a debtor of the State; nor against the county of Allegheny in its corporate capacity, for it has not received this money into its treasury nor been benefited by it. The money has illegally gone into the pockets of the holders of the coupons. There is no privity or connection with the county commissioners; they are not officers recognized at the State treasury department, and if liable at all, it must be in their private, individual capacity, for making an illegal coutract with the railroad company, by which the State has lost its taxes. This would certainly be a new and anomalous proceeding to collect a State tax. The legal and obvious remedy is against the county treasurer, who was bound to secure the taxes due to the commonwealth.

It has been contended that no State taxes could be properly deducted from the coupons attached to these bonds; that they are negotiable, and pass from hand to hand as money. Nothing, in our opinion, can be further from the fact. They are in no sense negotiable paper; they have no words of negotiability; are not payable to bearer, nor order, nor even assignable, and express on their face that they are for the interest due on a certain bond issued by Allegheny counly, and although made joayable at the office of the Pennsylvania Nailroad Company in Philadelphia, yet the holder is bound to know that they are subject to a deduction of the State tax. The tax is in terms to be deducted from the interest, when the treasurer is called upon to pay the same. It is not charged against the principal in the hands of the holder of the bond, but against the interest. If that is never demanded, or paid, no tax can be collected, for it is only to be “deducted.” If the county of Allegheny issued bonds to various holders, to the amount of a million of dollars, all bearing interest, yet but one hundred thousand dollars of the bonds were presented at the treasury during the year 1850, and interest demanded, the treasurer can be called upon to account for-the State taxes on no more than the six thousand dollars of interest paid by him. He can deduct it from no more; and when the arrears of interest due on the other nine' hundred thousand dollars is paid, the taxes must be deducted.

From the statement made by Mr. Baem, it appears that for the year 1850, they paid out interest on these bonds to the amount of $16,785, the State tax on which is $839.25, and for the year 1851 the sum of $37,173, the State tax amounting to $1858.65. ’With this amount the defendant is chargeable, according to the principles already stated, and the only remaining ■ question to be determined is as relates to the interest or penalty for not paying over the money. The act of 1844, after directing the retention of this tax and its payment into the State treasury, declares the said treasurer shall be subject to the same penalties and liabilities now prescribed by existing laws in relation to taxes on bank dividends.”

Fisher, for plaintiff.

Alriclcs, for defendant.

The only act prescribing a penalty for not paying over the tax on bank dividends that we can discover, is the 24th article of the 3d section of the act of March 25th, 1824, which declares, that the bank neglecting to pay the tax, “ shall be liable to interest on the amount so due the commonwealth at the rate of twelve per cent, per annum.” It appears hard in the present case, under all the circumstances, to impose a penalty on the treasurer for not paying over money which in fact did not come into his hands, and where the law under which he acted was lame and obscure. But if the court is bound under the facts conceded to charge him with the principal, we do not see on what ground he can be absolved from paying the prescribed rate of interest. It is true that the Easton Bank was relieved, but perhaps the only sound reason given for that decision is, that the penalty was not imposed for a failure to pay the increased tax on dividends. The other reason given, that the act of 1811 only gives simple interest to commence three months after the date of settlement, is in terms overruled in the second decision of The Commonwealth v. Porter, not yet reported. To the additional reason that it was uncertain whether a liability existed, we cannot lend our sanction. It is not the point of the case, nor binding on us as authority. The law is considered as always certain, however uncertain its decisions may be. Every one is bound to know it, especially if he voluntarily takes on himself a trust or duty under it. The whole scope of the previous enactments, as well as the act of 1844, contemplated a settlement of the county treasurer’s account at the State department ; and as he must come under the review of that tribunal, if the penalty is to be imposed or enacted at all, it must be imposed by it. The account must be settled there, before the treasurer can be sued; and in that settlement he must be charged with the interest at the rate of twelve per cent., or forever absolved. "When the case is brought into this court by appeal, we must be governed by the same law, and charge the appellant with all that the department could lawfully charge against him. As there has been no final settlement of this account by the department, but the balance struck has been appealed from, there can be no suspension of interest for three months, but the same will be computed from the end of the respective years until the rendition of this judgment.

Judgment is directed to be entered against the defendant for the sum of $3562.28, this 9th day of May, 1854.


text:
      Court of Common Pleas, Dauphin County,

      December 3d, 1855.
    The Commonwealth of Pennsylvania v. The Diamond Coal Company.
    Under tlie act of 29th of April, 1844, imposing a tax on the dividends of corpiorations, the first day of November is the time to and from which the profits are to be computed. When the statement of a conrpany does not show what part of the dividends of a year was made before November 1st, and what after, but mixes them all together, the State officers can calculate the tax upon the whole amount, as if all was made after the 1st of November.
   By the Court.

This case comes into court by an appeal from the. decision of the auditor-general and State treasurer. It seems that those officers have charged the defendant with the sum of $937.50, as a tax on their dividends for the year 1854, computing the same at seven and one-half per cent, on the capital stock. Also with $5.74, for interest from January 15th, 1855, to 22d of February, 1855. The latter item is, in our opinion, erroneous, as interest can only be charged from three months after the settlement. If the State claims to recover the penalty mentioned in the act of Assembly, it must bring suit for it as prescribed.

The right to impose this tax depends on the true construction of the thirty-third section of the act of April 29th, 1844, which requires one-half mill to be paid into the public treasury on each one per cent, of dividends or profits made and declared, provided such dividends shall exceed or be equal to six per cent, per annum, and the same is to be assessed and paid as is provided in the act of the 11th of June, 1840. On recurring to that act, we find no form of assessment or payment prescribed, nor is it stated when the year is to begin or end, or from what period it is to be computed, but refers to the act of March 25th, 1824, for our guidance.

The 24th article of the first section of the last-named law, fixes the first Monday in November of each year as the time from and to which the dividends are to be computed, when a statement is to be made to the fiscal officers of the government, and the tax paid over within two months thereafter.

The first Monday in November is, therefore, the commencement and conclusion of the fiscal year of all institutions and companies incorporated within the State (except banks, which have been since changed), and their profits should be computed, and dividends made, as of that period. It is contended that the dividend declared by this company on the 4th of January, 1854, of two dollars and twenty-five cents per share, being four and a half per cent on the capital, cannot be taxed for the year 1854, as it was made out of the profits of the year 1853. This would certainly be the case if the corporation had shown that it was made prior to the 1st day of November, 1853. But it neither reported to the department, nor has it shown us, in what part of the year it was made. We have a right to presume that it was made as well after, as before the 1st day of November.

If the officers of this corporation have thrown all the profits of the year 1853 together, not distinguishing the time when made, they stand in the situation stated by the Supreme Court in the Commonwealth v. The Pennsylvania Insurance Company (1 H. 165), “they have put their head in the noose, and cannot get it back.” It is like the ordinary case of one man throwing his gold into the crucible of another, or one man throwing his wheat into the granary and among the wheat of another; he cannot separate his property thus illegally commingled, and must lose it. In the present case, as we cannot divide, the profits of the year 1853, it must be treated as made after the 1st of November, as it is impossible to distinguish between that which was made before or after, and we therefore think it correct to treat it as part of the business of one -year, commencing on the 1st of November, 1853. And as the next dividend of three per cent, on the capital was declared on the 4th day of October, 1854, the State officers were right in computing the tax on seven and a half per cent, profit per annum, made and declared for that year.

This is no more than a just penalty against the defendant for so keeping its accounts, and failing to comply with the law. If proper data had been furnished to the department, from which it could be known at what time the profits were made, there would probably be no ground to complain of over-taxation. But the company failing to show when it was made, the State can very properly look to the time when the dividend was declared.

The company also failed in another essential particular. It was required by law, in case of a failure to make and declare a dividend of six per cent, per annum, at some time between the 1st and 15th day of November of each year, to have an appraisement of the actual cash value of the capital stock, and forward a certificate thereof to the auditor-general, and pay a tax according to such valuation, in the mode prescribed by law. No valuation appears to have been returned, except for the year 1852,, of sixteen dollars per share, and of 1855, of twenty-two dollars' per share; and Dr. Hammond says that he made the settlement for the year 1853 in February, 1854, on the basis of the appraisement of 1852, at which time the dividend of January, 1854, was not spoken of or alluded to, .and that if it had have been, according to the settled practice of the department, it would not have been taken into consideration, but would have been thrown into the year 1854 for adjustment.

There is no fact disputed in the case, and the question has been argued as -one of laiv alone. We cannot see anything to prevent the commonwealth from recovering the amount of fax charged, with interest from three months after the day of settlement, to wit, May 23d, 1855.

Casey, for plaintiff.

Alrielcs, for defendant.

Affirmed by the Supreme Court, June 2d, 1856. Not reported.


text:
      Court of Common Pleas, Dauphin County,

      December 18th, 1857.
    The Commonwealth of Pennsylvania v. Wilson & McCullough.
    A miller, who purchases grain, grinds it into flour, and sells it, is a dealer, and must take out a mercantile license under the act of 22d April, 1846,
   By the Court.

The controversy in the jiresent case arises under section 11 of the act of 22d April, 1846, relative to mercantile taxes. We think that no great difficulty exists in the construction of the act as applicable to the facts admitted; but we have two decisions of the Supreme Court, which conflict in principle though not in words; the later does not overrule the former, yet combats it, and ultimately declares that it may be right enough under the circumstances of that case. In Berks County v. Bertolet (1 H. 522), millers carrying on business like the present defendants were held liable to taxation and the payment of a license fee, although they raised a portion of the grain ground in their mill on their own farm, and took other portions as tolls on the grain of customers. Yet as they sold it in different places, they were held not to be mechanics, but dealers. They bought to sell again. The present defendants purchase all the grain used in their mill, and make it into flour, which they sell in Philadelphia, New York, and Baltimore, and also to such customers in the neighborhood as bespeak it. Therefore, they can more strictly be considered dealers than Bertolet. In Norris & Brothers v. The Commonwealth (3 C. 494), it is held that manufacturers of locomotives, who -carry on a shop, and sell their commodities throughout the State or United States, are not dealers, although they purchase the materials from which the engines are made. They are decided .to be mechanics, and not subject to taxation; nor are they required to take out a license. The only distinction, which wo are able to perceive, is that the one mainly makes his commodity by the labor of the hands, and the other by machinery —his mill. Both vend them, when manufactured, in the same way, and neither keeps a storehouse for the purpose.

As the first decision is more parallel with the one under consideration, we shall follow it, although it is evident that the court in the later case did not like the reasoning by which Judge Rogers arrived at the conclusion. It certainly has one quality to recommend it above the later decision; it produces equality of burdens, which is equity. And while we concede that the court cannot create a tax, where the legislature has not imposed it, yet, in construing a statute of doubtful meaning, it should be so interpreted as to divide the public burdens as equally as possible. We throw out of view the decision reported in 10 Legal Intelligencer, 122, which is too much like a mere verbal criticism; but on the case of Berks County v. Bertolet give judgment in favor of the plaintiff on the case stated.


text:
      Court of Common Pleas, Dauphin County,

      December 24th, 1860.
    The Commonwealth of Pennsylvania v. The Girard Bank.
    When a charter was given by the legislature to a corporation, exempting it from taxation for a certain time, in consideration of a sum of money paid into the State treasury, such company is relieved from the payment of State taxes, although the governor, at the time of signing the bill, considered that it was not exempted, and the president of the company wrote to him, after he had signed it, that the corporation tax would still be paid by it. Such a charter will not relieve the corporation from taxes due and unpaid at time of granting it.
   By the Court.

On March 19th, 1836, the charter of the Girard Bank, in the city of Philadelphia, was extended for a period of twenty years, and its capital stock increased to five millions of dollars, in consideration of a bonus of $250,000 paid into the State treasury. On May 25th, 1853, an act was passed again extending the charter for twenty years from the expiration of the former charter, and a bonus required therefor of $125,000. After the bill had passed the legislature, and before it was signed by the governor, that officer addressed a letter to the attorney-general of the commonwealth, dated May 20th, 1853, asking for a construction of the bill and the effect thereof on the tax of the corporation, should it become a law by his signature. And on May 16th, 1853, the opinion of the attorney-general was sent in reply, expressing the belief that the corporation would still be liable to a tax on its capital stock under section 46 of the act of 16th April, 1850. On May 24th, the governor appears to have inclosed the opinion of the attorney-general to the president of the bank, stating his belief that such would be the true construction of the law, and asking, if he signed the bill, whether he could have an assurance that the corporation tax Avould still be paid. Before receiving a reply, to wit, on May 25th, he signed the bill.

On June 6th, the president of the bank assured the governor by letter that he would carry out the propositions contained in his letter of May 24th. This correspondence is followed by a meeting of the directors and stockholders of the bank, pursuant to a regular call. The opinion of the attorney-general, as also that of Benjamin Champneys, Esq., appears to have been laid before them, and by a vote the corporation accepted the charter as construed by Judge Champneys, and duly communicated the resolution of acceptance to the State department by papers filed therein on August 1st, 1853. All of this correspondence and documents, together with the opinions of the two gentlemen of the law, were given in evidence by the plaintiff, under objection by the defendant, with the understanding, however, that when received, the court was to decide on the validity thereof, and whether the same should have any effect in the determination of the cause. It is very clear that neither the opinion of the attorney-general, as furnished to the governor, nor of the latter officer at the time of signing the bill can have any weight with this court in giving an interpretation to the statute. And the promise .of the president of the bank is of no more validity, for, independent of his having no authority to make a contract for the corporation, the bill was signed and had become a law before his letter was written, and, therefore, would not have influenced the governor in giving it his sanction. Besides, acts of Assembly must be construed according to their words and meaning, and not according to the interpretation given by one branch alone of the law-making power. Laws are not in the nature of contracts in this particular; are not bargains between individuals, but commands proceeding from the legislature. This act of Assembly is not to be interpreted either by the views of the governor when he signed the bill, or those of the company when it accepted of its provisions. The whole case presents for our consideration a single question: Is the bank exempt from taxation immediately on accepting the provisions of the act, or only during the twenty years to which its charter is extended? A portion of the amount charged against the corporation by the department is on account of arrears of taxes due prior to May 25th, 1853, to which, as we conceive, there can be no possible objection, as it cannot be pretended that the law was intended to be an exemption from past indebtedness. The department did not attempt to charge the bank with taxes under section forty-six of the act of 1850, and had it done so, there would have been no shadow of foundation for the claim. That section was repealed in 1852, and the thirty-third section of the act of 1844 substituted in its stead. There was no pretence to revive section forty-six, either by the act of 1853, extending the charter of the Girard Bank, or by any other law. It had ceased to be any portion of the act; and what makes the intention still more clear, this institution was in terms exempted from the burdens imposed on its capital stock. "We do not think that there is the least plausibility in that part of the attorney-general’s opinion. The bank was required to pay into the State treasury $125,000 immediately, if the State treasurer should so direct, as a bonus for the renewal of its charter for twenty years from the expiration of its then present charter, and for the sum thus paid was to be free from any tax or other charge whatever, until the expiration of this extended charter.”

The first part of the statute extends the charter for the period of twenty years from the expiration of the present charter, subject to-the provisions, restrictions, and conditions, and with all. the rights, privileges, and immunities mentioned and contained in the act of 16th April, 1850, except the twenty-first section, which imposes a tax on dividends, and section thirty-three of the act of 1844, taxing the capital stock. This bank is clearly relieved from any taxation during the twenty years of its newly-granted existence, and it will transcend the power of the legislature to impose any tax on it during that time. It is exempted fór a valuable consideration, and the grant is binding on the State as a contract (3 Howard, 133). Even land may be thus exempted for a consideration paid, and the right to tax cannot be resumed (7 Cranch, 164).

Although the power to exempt property or franchises from taxation for a full consideration paid has been questioned by the Supreme Court of this State, yet we apprehend that the above-cited authorities are binding on our legislature and judiciary, and will continue so to be whilst the Constitution of the United States is recognized as the supreme law of the land. Plow long that will last, it is impossible 'for human prescience to foretell. But whilst we insist on the binding obligation of a contract to relieve a party from taxation, yet it never ought to be presumed without clear words to that effect. The whole community is interested not only in retaining the right, but also in securing the equality of its imposition; and where certain specific taxes are imposed, those who contend for the exoneration, either present or prospective, should show that they have been relieved from the burden by clear words or necessary implication (4 Peters, 514; 10 Barr, 450). In the present law we can see a clear agreement to exempt the Girard Bank from any taxes during the term of twenty years added to its charter, yet we can find nothing showing an intention to release the taxes to which, in common with nearly all the other banks in the State, it was subject until that period had commenced. The payment of a bonus was for exemption during the new, not the old charter. The amount was obviously insufficient remuneration to the State for the taxes of twenty-three years, and to judge from the past, could only have been received for the twhnty years because paid in advance to an embarrassed treasury. We leave out of view the contemporaneous construction' put on this statute both by the officers of the bank and of the government, as manifested by the annual payment of the taxes during the whole period for which they are now claimed; but we are of the opinion that the law was properly construed, and that the legislature never intended to relieve the bank from arrears of taxes then due, or grant it any immunity until the commencement of its new charter. Therefore we direct a verdict to be rendered in favor of the commonwealth for the sum of $8146.76.

Knox, for plaintiff.

Kwilcel, for defendant.


text:
      Court of Common Pleas, Dauphin County,

      June 2d, 1862.
    The Commonwealth of Pennsylvania v. Toms et al.
    The sureties on a register’s bond conditioned for the faithful performance of his duties, and that he will ]oay over all money received for the commonwealth, are not responsible for his failure to pay to the State sums received by him as collateral inheritance tax, when the duty of collecting it had been imposed upon him by another statute, and a different form of bond prescribed. Bail cannot be held by the letter when the case does not come within the spirit of their bonds.
   By the Court.

The facts presented in this case raise a single legal question: Are the sureties in a register’s bond, given under section 1 of the act of 15th of March, 1832, responsible for the failure of that officer to pay over the amount of collateral inheritance tax collected by him?

By the act referred to, the register of wills in each county is required to give bond with one or more sureties in one-half the amount exacted from the sheriff of the proper county, to be approved by two judges of the Court of Common Pleas, and the governor, conditioned for the faithful execution of the duties of his office, and well and truly to account for and pay according to law all moneys received by him for the use of the commonwealth,” etc. At the time this act was passed, the register of wills had no authority by law to receive the collateral inheritance tax; that duty devolved on the county treasurers, tax collectors, etc., under the act of 7th of April, 1826, which continued in force, under various modifications, until March 22d, 1841, when it was imposed upon the respective registers, who were required by section 4 of the act, “to give bond to the commonwealth in such penal sum as the Orphans’ Court of the county may direct, with two sufficient sureties, for the faithful performance of the duty hereby imposed, and for the regular accounting and paying over of the amounts to be collected and received,” which bond, after its approval, was to be forwarded by the said Orphans’’ Court to the auditor-general. Although new remedies are provided for assessing and collecting this tax by the register by the act of 10th of April, 1849, yet no new bond is prescribed, it appearing pretty manifest that section 4 of the act of 1841 was still in force, and the bond therein required being quite sufficient to cover all the new duties enjoined, which made no substantial variance as to collecting and paying over the tax. Plence we find the compilers of our statutes carrying on this section as though it was part of the new act (Purd. Dig. 140, 706). Although at the time the act was passed under which the bond now in suit was given, the register of wills could not lawfully receive the collateral inheritance tax, yet that duty might have been imposed upon him at any time, and the money thus collected would have been covered by the words of his bond, and the sureties therein held liable» Yet when the law which conferred the power and imposed the duty of collecting the tax, also prescribed the giving of a bond to cover the amount, the sureties in the general bond would have no reason to suppose that they were to be held responsible for the performance of this new duty, but would have a right to believe that the commission could be withheld until the officer had given both the bonds required by law. Two distinct obligations are directed to be taken; the one in a fixed sum, half the amount of the sheriff’s bond prescribed by law, the other in such amount as the Orphans’ Court shall direct; the one to be approved by the judges of the Court of Common Pleas and the governor, the other by the Orphans’ Court alone; the one to be acknowledged by the parties before'a magistrate of the proper county, recorded in the office for the recording of deeds, and transmitted to the secretary of the commonwealth; the other to be sent to the auditor-general by the Orphans’ Court which took it. Therefore, the bonds are different throughout in every particular, and although this tax is “money received for the use of the commonwealth,” and therefore comes within the letter of the bond given, yet it does not come within the spirit and intention, as the sureties in this obligation, had a right to believe the register would give an additional bond as required by law, to cover the ■collateral inheritance tax. It has often been declared that bail cannot be held beyond the letter of their contract, and we are of the opinion that they cannot be held by the letter, when it does not come within the spirit and intention of their bond. ‘

Meredith, for plaintiff.

Miller and Sharp, for defendant.

The obligation in suit not being intended or designed by law to cover the collateral inheritance tax, the sureties therein are not responsible for its collection and payment into the State treasury by the register, but the commonwealth must look to the bond given to secure the performance of that duty; and if none was given or exacted, it is the fault of the State officers, and furnishes no reason for holding the defendants answerable beyond the intention of their undertaking. "We hold that the register’s sureties in the present case are only responsible for the other moneys in arrear by that officer, and therefore give judgment in favor of the commonwealth in the case stated, for $88.75, with interest thereon, from 9th of April, 1861, making in all the sum of $94.73, and costs of suit.

Affirmed by the Supreme Court (9 Wright, 408).


text:
      Court of Common Pleas, Dauphin County,

      June 2d, 1862.
    The Commonwealth of Pennsylvania v. Herr.
    A county, in order to obtain an abatement of its tax for prompt payment, must pay it in full, as fixed by tbe revenue board; no allowance can be made for exonerations. The collectors and treasurer may be permitted to deduct their commissions from the sum so fixed. The treasurer cannot receive a commission on the amount retained by the tax collectors or himself; neither is paid into the State treasury; nor on exonerations of militia fines, or tavern or store licenses exonerated. He is entitled to a percentage for liquor license taxes collected and paid over. There is no law authorizing a tax on millers as such.
    If the amount assessed and collected for State taxes exceeds the valuation fixed by the revenue commissioners, it must be paid into the State treasury under the act of 22d April, 1846.- Where no quarterly statements are made by the county treasurer, and the money not paid over quarterly to the State, no commission can be allowed on it, as it is the duty of the treasurer to show when it was received.
    No fee can be paid to an attorney at law for trying a claim for taxes against a , ■ delinquent storekeeper; the act makes it the duty of the attorney-general or his deputy to collect it. The county treasurer is permitted to employ an attorney to recover militia fines from collectors who fail to pay over, and the lawyer employed can retain his fee out of the money collected.
   By the Court.

The case as stated presents the following points for the decision of the court.

First. Did the accounting department properly deduct $165.97 on account of an abatement of five per cent., said to have been erroneously allowed to Lancaster county on $315.67, paid into the State treasury on tax on real and personal property for the year 1858, or was the sum last aforesaid paid on account of the State tax for that year ?

The solution of this question depends on the proper construction of the 42d section of the act of the 29th of April, 1844, which provides, inter alia, that “if any county shall pay into the State treasury its quota of tax levied on its said adjusted valuation fifteen days prior to the first day of August in any year, such county shall be entitled to an abatement of five per cent, on the amount so paid.” Do the words amount so paid, apply to the sum actually paid into the State treasury, or to the quota of tax levied on its adjusted valuation? The difference arises from the percentage paid to the collectors and county treasurer, as they are both properly deductible from the quota of State tax chargeable to the county, and yet are never in point of fact, or in contemplation of law, paid into the State treasury, but retained by those officers out of the money in their hands. According to our interpretation of the statute the whole of the State tax due by a county must be paid into the treasury of the commonwealth at least fifteen days prior to the first day of August of each year; but that means the sum due after paying the officers for collecting it, and then the county is entitled to an abatement of five per cent, on the sum actually paid in. Such construction is more in accordance with the words of the act than the one contended for by the county treasurer. “ The amount so paid” refers to the sum of money paid into the State treasury, and not to the “ adjusted valuation.” According to our conception of the law neither the account as stated at the department, nor the case stated, present the question properly; although the latter shows truly what took place, and furnishes sufficient data to enable us to arrive at a proper conclusion as to the sum of $165.97 now under consideration.

The assessments of State tax in the county of Lancaster for the year 1858 amounted to $92,855.96. The exonerations to collectors for that year is $2967.09, leaving to be collected only $89,888.87. This falls short of the tax charged against the county by the revenue commissioners $1,683.66, the sum charged being $91,572.53, which in this case must be taken to be the true amount of the State tax due, as the county cannot be relieved without paying its full proportion as fixed by the revenue board, leaving out all exonerations. This we decided in the case of Bradford county, and have seen no ground to change that opinion.

The account then would stand thus:

Amount fixed by the revenue board, $91,572.53.

Commission allowed collectors, $5747.29.

County treasurer’s commission, $858.53.

Amount of tax to be paid into the treasury, $84,966.71.

On which allow a deduction of five per cent., $4248.33.

The county has, therefore, already received a larger deduction than it is entitled to without the item now in dispute, and the appeal cannot be sustained as to this item.

The receipt of Mr. Magran to the county treasurer for $88,-148.43 on account of State tax for the year 1858, covers a larger sum than is due from the county for that year, and must have been applied to the arrears of the previous year, or to taxes due for other subjects on which no abatement can be allowed; and his decision is by no means conclusive, but the errors can be corrected by the department at an after time, especially when, as here, the account was opened and re-examined on the application of the county treasurer. The abatement can only be allowed on the whole sum due for State taxes paid into the treasury that year. The next question presented is: Can the county treasurer claim commissions on account of the exonerations allowed collectors, or the percentage retained by them, or by himself for his services? The acts of Assembly authorize the county commissioners to exonerate the township collectors from certain taxes on account of the indigence of the parties or mistakes in the assessments, and for various other causes. The taxes so exonerated never come into the county treasury, and are lost to the State or the county. A certain sum is authorized to be retained by the collectors as percentage for their trouble, and the county treasurer is also allowed to retain one per centum for his services out of the tax on real and personal property collected for the use of the commonwealth. The seventh section of the act of June 11th, 1840 (Pamphlet Laws, 614), provides “that it shall be the duty of the treasurer of each county, upon the settlement of his account as aforesaid, to pay into the treasury of the commonwealth the amount so received by him, for which he shall be allowed one per cent, on the amount so paid.” It is merely on the amount paid into the State treasury that he is to be allowed a commission by the plain words of the statute, and we are unable to see any reason for allowing it on exonerations, with which he had nothing to do except to secure a list thereof from the county commissioners, or on the percentage of collectors, which never came into his hands; and it is certainly unusual for one officer to claim a percentage on his own compensation.

The same doctrine is applicable to militia fines exonerated and to the percentage retained by the collectors: the money never came into the hands of the county treasurer, nor was it paid into the State treasury. The next item of any moment which is presented by the stated case is relative to the percentage allowable to the treasurer on licenses to retailers of merchandise, of liquors by not less measure than one quart, and to millers. The county treasurer also claims to recover a like percentage on the exonerations allowed him on account of said money not being collectible, to the amount of $460. For the last-named item there is no pretence of claim. The treasurer is only authorized to deduct a percentage “ from the gross amount of money received by him,” all of which must be paid over within a specified time. This money never was received, and hence the exoneration. If received, he could obtain no compensation for its collection unless it was paid into the State treasury within the period designated.

The department should have allowed the regular percentage to the treasurer for collecting and paying over the amount received from licenses to storekeepers or others to sell liquors by not less measure than one quart. It is, under the present laws, a distinct subject of grant; the license emanated from a different source than that of the ordinary retailer — the Court of Quarter Sessions —and may be granted either with or without permission to sell other goods. A separate account is required to be kept of the money received from that source, which is the true criterion of the right to charge the percentage under the provisions of section seven of the act of April 15th, 1850. This subject was carefully examined and decided in The Commonwealth v. McGrath, Treasurer of Philadelphia County, very recently, to which we refer for our reasons.

,We can find no law upon our statute-books authorizing the county treasurer to issue a license to millers, as such. If granted to them, it must be as retailers; and if required, it is because they retail the product of their manufactory. A miller, as such, is no more required to take out a license to carry on his business than is a tailor or a blacksmith; each must do it, if they become retailers of merchandise within the provisions of the act of Assembly ; neither is required to do it because they carry on a trade or calling; and if issued to the miller, tanner, or other dealer, it is because they become retailers, and are required to take out a license to sell the commodities manufactured by them, if they make sales at some other place than the store or warehouse at their manufactory (11th section of the act of April 22d, 1846). Such we understand to be the decision in Berks County v. Bertolet (1 Harris, 522). The action of the mercantile appraisers referred to in the case stated can make no possible difference, as their duty is confined to ascertaining the names of the dealers, and classifying and arranging them according to the amount of their sales, not to make new classes of dealers. If a license was lawfully granted to any miller by the treasurer of Lancaster county, it was to retail goods, wares, and merchandise; and they must be classified, and returned with other retailers. No separate account for the money received for such license is authorized or required to be kept. On that point the department settled the treasurer’s account correctly. The assessments of State taxes in Lancaster county for the year 1859 amounted to $93,871.50, of which was exonerated by the commissioners $1272.64, leaving for collection and received by the treasurer, $92,598.86. The amount charged against that county by the board of revenue commissioners was $91,572.53; and the difference between that and the sum received, $1026.33, the treasurer paid over to the county commissioners, instead of paying it into the State treasury. For this he is charged, with that amount, and it contributes a material item in the appeal. The act of 1844, constituting the board of revenue commissioners, authorized them to determine the amount of State taxes on real and personal property, which should be charged against each county of the commonwealth. If less was raised, the difference must be forthwith paid out of any money in the county treasury. If more, it went into the same treasury. The 17th section of the act of April 22d, 1846, made a different provision. It declared that the amount fixed by the revenue board should be treated as a minimum valuation, below which the aggregate amount of assessments in the different counties should not descend, but any excess of valuation must be taxable for State purposes. Under this statute the excess of valuation in Lancaster county should have been paid into the State treasury; and giving it over for the use of Lancaster county was a misapplication of the money, for which the county treasurer is answerable to the commonwealth; and it was properly charged against him in that settlement. We have been referred to an opinion of this court, delivered in The Commonwealth v. Bradford County, in which we said that such surplus would be retained in the county treasury. That was a mere obiter dicta, no part of the case, and not necessary for its solution; and the opinion was framed on the act of 1844 alone, without observing or adverting to the act of 1846, which makes an essential change in the law. We do not consider ourselves bound by the mere dicta of the Supreme Court, still less by our own, when erroneous.

On the settlement of the account of 1859, the department refused to allow the treasurer any commission on the sum of $11,935.34, collected during that year on certain specified items, on the ground that he had not settled quarterly accounts, and failed to show that he had paid over the money, as required by law. This amounted in all to $144.29, a commission having been allowed on many of the larger items. The 79th section of the act of May 18th, 1857 (Pamphlet Laws, 570) requires all county and city treasurers and certain officers, on the first Monday of July, 1857, and quarterly thereafter, or oftener if required by the State treasurer, to pay into the State treasury, or other designated place of deposit, the whole amount of money received during the period preceding said payments, and furnish to the State treasurer statements under the proper heads designating the source from which the money was received; and said officers .shall file and settle quarterly accounts in the office of the auditor-general, as now required by law. Upon the settlement of said quarterly accounts, if it appear that the receipts shall not have been paid, as directed by this section, any officer so offending shall forfeit his fees and commissions on the whole amount of money collected during the quarter.” The case stated concedes that no quarterly accounts were settled; that a circular letter directing attention to the law was sent to the appellant by the auditor-general, but no' special call was made upon him for such settlement and payment; also, that no evidence was exhibited at the department as to whom any of the money paid over on the 13tb of April was received. The act of Assembly is a public law, of which every receiving officer was bound to take notice, and with the mandate of which he is bound to comply. No special or general requisition need emanate from the department at Harrisburg; it is only when the State treasurer requires settlements to be made more frequently than every quarter, that notice to that effect must be given.

The stated case does not find when the money was received on- which the appellant claims a commission. It does find, however, that he failed to comply with his official duty, and neither proved to the department nor now in court, when the money came into his hands. If he had shown on the settlement or on a trial, that the whole sum was received during the last quarter, he would have been entitled to a commission on all. If part was received then and a portion in previous quarters, the commission would have been allowed on the part received in the last quarter; for it must be observed that the forfeiture is imposed, not for a failure to make quarterly settlements, but to pay over the money received during the quarter. The county treasurer now contends that it is to be presumed that all of the money was received during the last quarter, and immediately before it was paid over, as no other time of receipt has been shown, and the law presumes that a public officer has done his duty. In the present case it already appears that this officer has not done his duty. He was required by law to make quarterly settlements, which he neglected; and it rests upon him to show when the money came into his hands; he alone can know it, and it can by no possibility be proved by the commonwealth. Every presumption must be made against the appellant under these circumstances. If the cause were trying by a jury, we should feel no hesitation in instructing them to find against the county treasurer on the facts as exhibited, and although nothing can be taken by intendment in a case stated on special verdict, but should be admitted or found, yet legal presumptions may be drawn from facts admitted. Here the party whose duty it is to show when the money was received, fails to prove it, and he therefore fails to establish his right to compensation. The onus probandi rests upon the county treasurer, and we have no right to conjecture or speculate on probabilities that the money was received wholly or partially during the last quarter. The same doctrine applies with equal force to the arrears of militia fines long due, as to the license-money received for that year. The treasurer may have had it in his hands for many months, and we cannot permit him by any possibility to gain an advantage through his own neglect and violation of official duty. The compensation claimed was properly refused, and the department would have been justified in disallowing all the commissions for the year, except on money proved to have been received during the last quarter.

The county treasurer claims a credit for five dollars paid N. Ellmaker, Esq., for attending to a suit brought by appeal into the court of Lancaster county for the collection of mercantile taxes, in wdiich judgment wras rendered against the commonwealth.

By the 2d section of the act of March 4th, 1824, it is provided that when mercantile taxes have to be collected by suit, the county treasurer shall be entitled to recover from the delinquent ten per cent, for his trouble; and if an appeal is taken to court, the attorney-general or his deputy is to prosecute such appeal to judgment, “ for which he is to recover the sum of three dollars and no more.” By the 8th section of the act of April 7th, 1830, the compensation to the treasurer is reduced to five per cent., but no change is made as to the duty of the attorney-general, or his compensation. The 1st section of the act of March 13th, 1847, disallows any costs to be paid out of the county treasury for collecting mercantile taxes, but the same must be paid by a warrant drawn on the State treasury by the auditor-general. It is not found in this case that Mr. Ellmaker was district-attorney; we must therefore take it that he was private counsel employed by the county treasurer, who has no right to place the business in the hands of any other than the district-attorney, on whom is devolved the duties required to be performed by the deputy of the attorney-general, and who could in no event demand a fee of more than three dollars; and this and all other costs in the case must be paid by the warrant of the auditor-general. It is not for us to determine whether it is or is not the interest of the commonwealth to restrict the compensation of attorneys who attend to her lawsuits to so low a compensation; but it is our duty to decide that where an officer intrusted with the collection of public money, pays it out in violation of the acts of Assembly, he can claim no compensation for such expenditure. In the present case, the county treasurer paid the costs illegally, and can claim no credit for such disbursement.

The appellant permitted Mr. Franklin, an attorney-at-law, to retain fifteen dollars as compensation for some four hundred dollars collected by him from a delinquent collector of militia fines, by a suit in court. The whole money actually received by the appellant was paid into the State treasury but he is charged with the fifteen dollars in addition. We cannot discover any provision in the militia laws prescribing the mode of proceeding against delinquent collectors of fines, except it may be under the act of 21st of April, 1858, which imposes a penalty of not less than twenty-five nor more than fifty dollars, against such officer for a neglect of duty, to be sued for by the district-attorney in the name of the commonwealth; but that would be poor compensation to the State for the loss of over four hundred dollars received by the collector. A suit must therefore be brought for the recovery of the money, and such business can only be conducted by attorneys-at-law. The county treasurer, who is only entitled to receive a commission of one per cent, for receiving and paying over the money, cannot be expected to pay the attorney’s fees out of his OAvn poclrnt, nor would any court oblige the attorney to pay over the money without permitting him to retain the customary percentage for collecting. It is not the policy or interest of the State to permit collectors to pocket and retain the money received by them, yet such must be the case if no allowance can be made for enforcing payment in the only method known to the laAV. Some officer must set the machinery of the law in motion, and we know of no one more suitable to do so than the county treasurer, who is authorized to receive the money from the collector, and pay it into the State treasury. It is not made the duty of any particular attorney to attend to these collections, and therefore the county treasurer can make his OAAm selection. The charge here does not seem to be unreasonable, and should have been allowed by the department.

The case is entirely unlike the one last considered. There the duty is directed to be performed by a particular officer, the amount of compensation is fixed by law, and it cannot be paid m the method prescribed in the act of Assembly. It would be eminently proper for the legislature in this, as it has in some other cases, to require the delinquent collector to pay all the expense of recovering the money, by fixing a penalty of some five or ten per cent., to be recovered from him by the attorney for his fees; but until that is done, the attorney must be permitted to retain his compensation, and the county treasurer held responsible for no more money than comes into his hands. This disposes of all the legal questions, and any other errors will be corrected in the account annexed, as agreed by the stated case.

Knox cmd Pu/rviance, for plaintiff.

Fisher, for defendant.


text:
      Court of Common Pleas, Dauphin County,

      September 5th, 1862.
    The Commonwealth of Pennsylvania v. The National Safety Insurance and Trust Company.
    In an action by tbe State for taxes, judgment cannot be taken for want of a special affidavit of defence, where the narr merely contained the common counts, and no copy of the claim, as settled by the accounting department, is set forth. The commonwealth must count specially on the balance due, or file a copy of the account, else it cannot demand a special affidavit of defence.
   By the Court.

The affidavit, as filed'in this case, sets forth facts, which primd facie amount to a good defence against a suit for taxes on dividends or capital stock, unless it might probably be on the former for the half of one year. What the claim is for, there is nothing on the record to show; but the attorney-general relies on the fact that a settlement took place at the accounting department in which a balance was struck against this' corporation, and by which, as no appeal was taken in due time, it' is concluded. No copy of the claim by the commonwealth has been filed, nor is any specially set forth in the narr; and we do not consider the averment that “an account was then and there settled, approved by the accounting officers of the commonwealth of Pennsylvania,” anything more than the common count on an account stated. The suit is in assumpsit, and the narr only contains the common money counts for $300 money had and received, and a like sum in an account stated as aforesaid, without more. This has never been held to confine the plaintiff either to the sum or date. The amount is generally laid sufficiently large to cover the claim, and the date any time before suit brought.

Such a narr in general terms is sufficient under the act of 1846, which required nothing but a general affidavit of defence. It was put to the conscience of the parly to meet a broad claim by an oath equally broad. The act of 7th April, 1862, requires a special affidavit, stating the nature and character of the defence, which would seem to require either a change in the form of declaration, by making it sufficiently special to show precisely the nature of the claim, or a copy to be filed as in cases under the statute or our rules of court. It is very true that, where the affidavit merely states facts, which could in no event amount to a defence, judgment will be given on the general narr. But where, as in this case, the affidavit makes out a good defence in the first instance to all that is stated in the declaration, the commonwealth’s officers cannot reply new and extrinsic matter by way of estoppel. That could be done in pleading, or on the trial, but not in cases like the present. The commonwealth must therefore count specially on the balance due, setting forth the exact sum as settled by the officers, on what account the same was due, when settled, that it was on notice, or that notice was afterwards given as required by law, and that it is in full force and unappealed from; or file a copy of the account as evidence of the claim, also a special affidavit, stating facts which might be a good defence to a claim that the State by possibility might have against the defendant, and which could be covered by such a narr, will be sufficient. We would advise that hereafter actions of debt should be brought for the balances found due, and special declarations filed as above mentioned; or that copies of the claim be filed as in general practice under the laws requiring special affidavits, or as directed by our rules of court. Judgment must be refused in this case, the affidavit being apparently sufficient.

Meredith, for plaintiff.

Sparing, for defendant.