County of Schuylkill v. Boyer , 125 Pa. 226 ( 1889 )

Opinion,

Mr. Justice McCollum .

J. Monroe Boyer was sheriff of Schuylkill county from the first Monday of January, 1883, to the first Monday of January, 1886, and for his official services, where the county was liable, he presented bills, under the act of June 12, 1878, which were allowed and paid by the county commissioners. After that act was declared unconstitutional, Morrison v. Bachert, 112 Pa. 323, he brought this action of assumpsit to recover the difference between the amount of the bills rendered and paid under it, and the amount allowed for the same services by the act of April 2, 1868. This difference was ascertained on the trial to be f>659.40, and for this amount with interest upon it from the institution of the suit, he obtained a verdict and judgment.

It did not appear on the trial whether the bills originally rendered by him for these services had been examined and passed upon by the county auditors, and, because of the absence of proof on this point, an effort is made to distinguish this case from Northampton Co. v. Herman, 119 Pa. 373. The first step in this effort is an assumption that the auditors failed to discharge a duty enjoined by the statute, which requires that they shall annually audit, settle, and adjust the accounts of the commissioners, treasurer, sheriff, and coroner of the county. The correctness of this assumption may well be doubted, as it appears to conflict with the ordinary rule, that in the absence of evidence it is presumed the officers did their duty: Pike Co. v. Rowland, 94 Pa. 238.

But if it be conceded that these accounts were not presented to the county auditors and were not examined and passed upon by them, it does not follow that the sheriff may maintain a common law action against the county for the fees which the law requires it to pay him. It has been repeatedly held by this court that the act of April 15, 1834, which defines the powers and duties of the county auditors, constitutes a special tribunal for the settlement of the accounts of the officers named in it, with the necessary authority to compel the attendance of witnesses and the production of papers, and to determine the indebtedness by or to the officer, and to enforce its collection. A reference to all the cases in which this construction has been placed upon it, is not deemed necessary. Many of them are collected in Northampton Co. v. Herman, supra, and in Blackmore v. Allegheny Co., 51 Pa. 160. It is true that in most of these cases there was an adjudication by the special tribunal created by statute, the effect of which was discussed and considered in connection with the rights and duties of the auditors and the officers whose accounts they are authorized and required to settle, but there is no intimation in any of them that the statutory tribunal and the Court of Common Pleas have concurrent jurisdiction in the adjustment of these accounts. That the former has original and the latter appellate jurisdiction of the subject matter of this controversy is conceded. It is the right and duty of the officer to have his accounts examined and passed upon by the county auditors, and if he is not satisfied with their decision he may appeal from their report to the Court of Common Pleas, and have an issue and trial by jury; but he has no right to elect in which forum he will first proceed for the settlement and enforcement of his claims. The statute has provided an adequate remedy; its directions must be strictly pursued, and it precludes a common law action.

The learned judge of the court below did not allude to the question discussed here, and the record does not show that it was raised before him. It is, however, covered by his instruction, that the plaintiff was entitled to a verdict for the amount of his claim, with interest, and is fairly before us on exception to the charge. Besides, this is a case in which action “ agreeably to the provisions of the common law ” is expressly forbidden by the act of March 21, 1806, § 18, and it is not too late to raise and consider a question of jurisdiction. All the assignments of error relate to the instruction that the plaintiff was entitled to recover, and they are sustained. We decide that a common law action will not lie against the county for this claim, and therefore

The judgment is reversed.