Monroe v. County of Luzerne , 103 Pa. 278 ( 1883 )

Chief Justice Mercue

delivered the opinion of the court,

The plaintiff entered upon the duties of his office on the first Monday of January 1880. To recover in this action, he must establish the fact that the county of Luzerne then contained a population of over one hundred and fifty thousand. The burden rests on him to prove his case.

The evidence on which he relies is contained in this case stated. We find, inter alia, the following facts admitted :

1. When the United States decennial census for the year 1870 was taken, and according thereto, the county of Luzerne as then organized and constituted, contained a population of one hundred and sixty thousand nine hundred and fifteen.

2. In pursuance of the Act of 17th April 1878, the county of Lackawanna was erected and created out of the county of Luzerne on the 21st of August 1878, and thenceforth ceased to be any part of the latter county. '

3. ' At the time of its erection the county of Lackawanna had a population of eighty thousand inhabitants.

4. When the decennial census of 1870 was taken, as indicated thereby, the portion of Luzerne county not embraced within the territorial limits of Lackawanna comity, had less than one hundred and fifty thousand inhabitants.

5. Under the 14th section of the Act of 31st March 1876, Pur. Dig* 1997, pi. 14, the plaintiff would have been entitled to the salary he claims if the county of Luzerne contained a population sufficient to admit of the application of that Act.

This Act is general in its terms. It is designed to apply to counties then containing the requisite population, and also to those which might thereafter acquire it. Whenever an effort is made to apply this Act to an officer of any particular county, the fact to be ascertained is whether the county contained sufficient population at the time the officer entered on the duties of his office. Whatever the population may previously have been, or what it may thereafter become, does not control the ease.

By what mode that population shall be ascertained does not arise in this case. The agreement of the parties settles several questions relating to the population. We therefore take that agreement as the starting point.

It is agreed that the whole county of Luzerne contained a population in 1870 of less than 11,000 in excess of 150,000, and that the portion of territory set off therefrom in 1878 contained eighty thousand. Without any increase of population in the meantime, that would have reduced it in the portion of territory remaining in the comity of Luzerne, to less than 81,000. In the case stated, the plaintiff does not aver, and the defendant does not admit, any increase of population. In the absence of any such agreement, the plaintiff asks us to assume that the original county had increased its population 69,000. An increase of more than 42 per cent, in eight years. Or if the increase was not so much at that time, yet that the superadded increase in the reduced comity of Luzerne prior to the 1st of January, 1880, brought it up to the 69,000.

In the absence of evidence we cannot assume any such fact. The case stated does not aver any such increase nor any other fact from which it may reasonably be inferred. The paying over to the county of a portion of his fees by the plaintiff cannot change or control the question of population on which his right to recover rests.

The learned judge was clearly correct in entering judgment for the defendant on the case-stated.

Judgment affirmed.