County of Armstrong v. Coleman , 99 Pa. 6 ( 1881 )

Mr. Justice Paxson

delivered the opinion of the court, November 14th 1881.

We are in no doubt as to the constitutionality of the Act of Assembly, approved May 25th 1878, entitled “ An act to provide for the payment of existing orders drawn by the military boards of the several counties of this Commonwealth.” P. L. 147. The object of the act is so fully set forth in the preamble that I give it entire: “ Whereas, Previous to the act, approved the 15th day of April 1873, entitled ‘ A further supplement to the Act of 4th May'-1864, entitled £ An Act for the organization, discipline and regulation of the militia of the Commonwealth of Pennsylvania,’ the military boards of the several counties of this Commonwealth had power to draw their orders on the county treasurer of the proper county in payment of the necessary expenses of the military organizations of the county; and whereas, by the then existing laws provisions were made for the payment of orders so drawn; and whereas, by the 9th section of said Act of 15th of April 1873 all means for the payment of such orders was repealed ; and whereas, on the said 15th of April 1873, and prior thereto, there were in existence in several of the counties of this Commonwealth outstanding orders drawn by the military boards aforesaid, which, in good faith, should be paid, therefore;” the act then provides that all such outstanding orders shall be paid by the respective counties out of the general county funds.

At the time the order which is the subject of the present controversy was drawn it was the duty of the county treasurer to have paid it out of a special fund raised by the militia tax, which was laid per capita on those persons who were liable to military duty but who failed to perform it. See sections 4 and 5 of the Act of 7th April 1870. The Act of loth April 1873 repealed the per capita tax, and thus destroyed the fund out of which the orders had theretofore been paid. Next in order of time came the decision of this court in Wyoming County v. Bardwell, 3 Norris 104 (decided in 1877), in which it was held that the county was not liable for the payment of such orders. This was followed by the Act of 1878, above referred to, which was plainly intended to furnish a remedy in lieu of the one which had been taken away by the Act of 1873. The difference between the remedies is this: The Act of 1870 imposed the liability upon a portion only of the citizens of the county, while the Act of 1878 imposed it upon the entire body of the county. The services of this military company had been performed, and the liability incurred before the repealing act of 1873 was passed. It was the duty of the county treasurer then to have paid it; not, indeed, out of the general county funds, but out of the particular fund before referred to. The act of 1878 cannot therefore be said to impose a new debt or obligation upon the county which it did not owe. Nor is the change of remedy open to criticism. It merely Ibid the burden upon all the citizens of the county instead of upon a few. The Act of 1878 was an exercise of the taxing power of the Commonwealth, and is not obnoxious to any constitutional provision.

It follows from what has been said that the rulings of the learned judge of the court below were entirely accurate, and his judgment therefore must be Affirmed.