Glatfelter v. Commonwealth , 74 Pa. 74 ( 1873 )

The opinion of the court was delivered, July 2d 1873, by

Agnew, J. —

The subject of this controversy is the military fund paid into the hands of the defendant as treasurer of York county for the years 1868 and 1869. If the county auditors had authority to settle the treasurer’s account for this fund, it is conceded, the case is at an end, no appeal having been taken by the Oommonwealth from the settlement of the auditors. This, therefore, is the question to be determined. To prevent confusion, it is proper to say at once that the relief fund established by the Act of 1862 has no connection with the military fund. The relief fund account was by that act to be settled by the county auditors, but the settlement of the account for the military fund depends on other laws.

Before examining the legislation specifically applicable to the military fund, it is proper to notice the general jurisdiction of the county auditors over the accounts of the treasurer for funds collected for the Commonwealth. By the 48th section of the Act of 15th April 1884, the accounts of the county treasurer are to be settled by the county auditors, the balance stated, and a report made thereof to the Court of Common Pleas: Pamph. L. (1834) 545; 1 Brightly Purd. 300, pi. 10. The 49th section makes it the duty of the auditors, also', to audit, settle and adjust the accounts of the treasurer of the county with the state treasury, and make a separate report thereof to the court: Pamph. L. (1834) 546. This coincides with the provision in the 38th section, p. 543, making it the duty of the county- treasurer to keep separate accounts of all moneys received by him on behalf of the Commonwealth, from the various sources named in the section, one of which is “ exempt fines.” Mr. Brightly, in note o to page 300, vol. 1, Dig., says the 49th section is repealed by the Act of 15th March 1847, § 1. Hence he has omitted the 49th section from his Digest. This is an error, the repeal being partial and relating only to those officers named in the Act of 21st May 1846, § 10, to which the Act of 1847 is a supplement: Dig. 2d vol., p. 1392, pi. 208. The county treasurer is not one of them. The pamphlet laws clearly evince this, and an inquiry at the auditor-general’s office resulted in a statement of the fact that the accounts of the county treasurers in the several counties are settled as before the passage of the Act of 1847; and this agrees with my own knowledge. The county auditors, therefore, have jurisdiction of the account of the military fund, unless by special legislation that fund is an exception. But it is not, as an examination of the laws on the subject conclusively shows.

The act to revise the militia system and to provide for the training of such as shall be uniformed, passed the 17th of April 1849, repealed all former laws and supplements to laws on the subject of the militia, except those parts relating to the adjutant-general, to contested elections, courts-martial, and calling the militia into the actual service of the United States: Pamph. L. (1849) 670, § 21. This act, therefore, furnishes a beginning to the inquiry as to the military fund. Under this law, after the enrolment, all ununiformed persons between 21 and 45 years of age are subjected to a payment of fifty cents, which the 8th section, p. 666 — 67, required the county commissioners “ to add to the amount of the state tax of each delinquent, to be collected with the same under the same authority, and in all respects as authorized in the case of the collection of county taxes.”

The 10th section then provides for the duties of the county treasurer. Thus this military fund is assimilated directly to other state and county.funds in its collection and custody, and there being no other provision in the Act of 1849 as to the settlement of the county treasurer, it must be audited and settled in the same manner as they are. This point is settled by the next act, a supplement to the Act of 1849, passed April 30th 1853 (Pamph. L. 654). The 10th section expressly enacts that it shall be the duty of the county treasurer to prepare annually a statement of the receipts and expenditures of the military fund of the said county, setting forth the amount received from each collector separately, and the amounts paid each person to whom money shall be due, which statement, after being examined and passed by the county auditors, shall be published as other accounts of the treasurer, and the expense paid out of the military fund. The 2d and 3d sections, referring to payments to the treasurer, also bear on the question. The Act of 1853 seems not to have been brought to the attention of the learned judge in the court below, as I do not find it in either paper-book. And indeed the Act'of 1849 appears not to be noticed. The Act of April 21st 1858 (Pamph. L. 421) is the next law, and is important in its bearing. It is a general revision of the militia laws, but is without a repealing clause. The same general system is re-enacted for the enrolment of the militia through the instrumentality of the assessors and commissioners, and for the collection of the commutation-tax of fifty cents for every person enrolled and liable to its payment, and for the collection of fines and penalties. This tax is to - be collected at the same time and in the same manner as taxes are collected in each county, under warrants issued by the commissioners. It is made thé duty of the county treasurers to procure suitable books in which shall be entered an account of all moneys received in pursuance of the act, and which shall be called the Military Fund of the county, and of payments out of the fund. The treasurer shall also report to the adjutant-general, at the close of each year, the amount of moneys received as commutation and fines, and paid out, and the balance on hand.

Thus, throughout the act, the county treasurer is made the custodian of the military fund, as he is of other funds of the state and county, while the law is silent as to the settlement of his account. There being no repealing clause, and no .substitute, his account is necessarily to be audited and settled under former laws. But as the court below was evidently misled by certain provisions of the Act of 1858, it is proper to notice them. The judge held, that the treasurer’s account was not to be settled before the county auditors, but by a military board. This was a misapprehension of the 10th section. It provides for the creation of a board of officers, whose duty it is made to “ audit all just claims on the military fund of such brigade for contingent expenses and for the per-diem pay of all officers, musicians and privates, for service and duty performed in and for said brigade.” The evident purpose of this board is to adjust and allow the just claims upon the military fund before payment shall be made by the treasurer, for the section immediately proceeds to add: “ and shall make their-order on the proper county treasurer, which shall require him to pay such order out of any money in his hands belonging to the military fund of the brigade.” The meaning is made still more obvious by the 8th clause of the 3d section (p. 425), which says: “ and no moneys shall be paid from such fund (military) by the county or city treasurer but upon orders of a board of officers, as provided in this act (section 10th), countersigned, &c., &c.; and the said board shall settle their accounts with the county or city officers.”

Thus even the accounts of the board of officers are to be settled before the county auditors. They bear the same relation to the military fund that the commissioners bear to the county funds, in determining the just claims upon it and settling their accounts, like the commissioners for its proper administration. This is the'check provided by the law against the allowance of unjust claims upon the military fund, and for a periodical settlement therefor. Thus the account of the county treasurer, who can pay only on the orders of the board of officers, must necessarily be audited and settled afterwards, and of course according to prior laws, for no substitute is provided in this law.

Next we find the last proviso in the 28th section of the Act of 15th May 1861 (Pamph. L. 757), suspending, during the existence of the war, any payment for military parades to volunteers not in actual service, and directing the military tax to be collected and paid into the treasury of the Commonwealth to meet the expenses of the militia mustered into actual service. That this was but a different appropriation, and did not change the mode of collecting and accounting for the military tax, is made obvious by the Acts of 4th March 1862 (Pamph. L. 76), and 8th April 1862 (Pamph. L. 314). The latter made a new appropriation of the tax to the relief fund, and the several county treasurers were authorized and required to pay the same on orders of the commissioners for that purpose. The receipt and disbursement of the military fund remaining thus with the county treasurer, his account remained to be settled as before, for no change in this respect was made. In the year 1864 the militia system again underwent a general revision in the Act of 4th May (Pamph. L. 221). Under this act each county having the minimum number of enrolled militia constituted a brigade, and the treasurer of each city and county was expressly required to receive and disburse all moneys arising from the act payable into the brigade fund ; and this fund was further increased by numerous fines and penalties: vide §§ 71-73, 76, 78, 79, 80, 87, 88, 89. This act provides no mode of auditing or settling the accounts of the treasurers, and the repealing clause is only of inconsistent acts. Thus again the law left the account of the treasurer to be settled as provided for in prior laws. The 99th section, p. 240, also pn.vides for the creation of a military board, “ who shall have power to aiidit and adjust all claims upon the brigade fund for expenses accruing under the provisions of this act, and shall make their order on the treasurer for the payment thereof.” This is a repetition of the provision in the Act of 1858, requiring a military board for the adjustment of claims on the military fund before they shall be paid by the treasurer, and therefore leaves him as before to settle his account of disbursements before the county auditors according to law. This is the last law, for the Act of 1870 passed as a supplement to it, was after Mr. Glatfelter had gone out of office, and has no bearing on the case. It may be remarked upon it, however, that it is pari materia and repeats the duties of the county treasurers under the 99th section of the Act of 1864. Thus a review of the legislation of the state proves conclusively that neither the Act of 1834, conferring general jurisdiction upon the county auditors to settle the accounts of county treasurers with the state treasury, nor the special Act of 1853, expressly conferring it over the military fund, has been repealed. In all the revisions of the militia laws the county treasurers being made custodians and disbursers of the military fund, just as in the case of other public moneys coming into their hands, it is evident the legislature did not consider it wise or necessary to change the mode of auditing and settling their accounts. A new system would not only complicate settlements, but might lead to entangling questions. The accounts of the plaintiff in error for 1868 and 1869 having been examined and passed by the county auditors, it is not in the power of the auditor-general to resettle them. According to numerous cases, the settlement of the auditors is final and conclusive, unless appealed from under the 56th section of the Act of 1834 (Pamph. L. 547), which includes the Commonwealth by name; the 57th section also allowing the Commonwealth four months after the filing of the report for an appeal, while it allows the officer but sixty days.

Judgment reversed, and a venire facias de novo awarded.