County of Allegheny v. Grier , 179 Pa. 639 ( 1897 )

Opinion by

Mr. Chief Justice Sterrett,

The principle which underlies the construction heretofore given the act of 1876 and its supplements is too plain for question. The constitution had declared that in counties of a specified class, their officers should be paid by fixed salaries; and the legislature sought by that act to accomplish this purpose. It accordingly struck down all prior acts which provided for the payment of such officers in fees as being necessarily inconsistent with the constitutional mandate; and hence McCleary v. County, 163 Pa. 678, and allied cases; and left those acts which provided for the payment of fixed salaries, because consistent; and hence Bell v. County, 149 Pa. 381. The operation of the act was limited by the accomplishment of its purpose. The act of 1861 being in entire harmony with the constitutional intent, it would have been vain and useless to have stricken it down. The act of 1864 which fixed the controller’s salary belongs to the same category, and hence the court below was clearly right in holding that the present case is not distinguishable, in this respect, from Bell v. County, supra. The act of 1864 being in force, the amount received by the controller in excess of the salary there fixed was therefore illegal. So on grounds of public policy, the court was right in holding that the maxim volenti non fit injuria has no application to the illegal payment of public funds to a public officer, — more especially where as here it is the peculiar function of that officer to guard the public treasury. Public revenues are but trust funds, and officers but trustees for its administration for the people. It is no answer to a suit brought by a trustee to recover private trust funds that he had been a party to the devastavit. There could be no retention by color of right: Abbott v. Reeves, 49 Pa. 494. With much the stronger reason is this -doctrine applicable where the interests of the whole people are involved; and the authorities are accordingly numerous to this effect: New Orleans v. Finnerty, 27 La. Ann. 681; Com. v. Field, 84 Va. 26; Day Land & Cattle Co. v. State, 68 Texas, 526; Am. Steamship Co. v. Young, 89 Pa. 191; Taylor v. B’d of Health, 31 Pa. 73; Smith v. Com., 41 Pa. 335, and cases cited. It is obviously immaterial whether the illegal payment be through design or mistake; for in either event the result must be not only misuse of trust funds, but what is of far more importance, demoralization in tbe service. Tbe only practical difference lies in this : that one makes a criminal and the other a trustee. So it is immaterial by what officer the funds are had and received, fidelity to the government, which he represents and is sworn to support, makes restitution a duty. Even a tenant may not question his landlord’s title, and much less may a public servant, that of his sovereign. He can plead neither laches nor estoppel in pais to a suit for malversation. Public office is a public trust; the sanctity of public property is essential to its due administration; and necessarily implies a remedy for every diversion from legitimate use. The attributed effect of the filing and advertisement of the controller’s annual report, so far as relates to his salary, is without merit. The report is given the “ effect of a judgment against the real estate of the officer who shall thereby appear to be indebted to the county: ” but the act of 1861 does not contemplate that the controller shall become “ indebted.” He has no power to handle public funds. He is the fiscal officer of the county and, as such, it is his duty to take notice of illegal disbursements of the public funds, and charge the officer who is guilty of misappropriation. This is the only protection the people have against the illegal acts of those who have charge of their pecuniary interests: Commissioners v. Lycoming Co., 46 Pa. 496. Chosen by the people to watch and take care of these interests, it cannot be expected that they shall in turn keep a watch on him.

The suggested hardship of compelling the controller to refund is more specious than real. The adoption of the constitutional provision marked a radical change of policy and should have put him on his guard. As the fiscal officer of the county he was.bound to take notice that the construction of the act of 1876 was open to question, and that without the aid of the courts he must act at his peril. His responsibility is not answered by the plea of inconvenience. The county would soon fall into a condition of hopeless insolvency if the “ retarding friction ” of personal inconvenience were once recognized as a principle of defense to the enforcement of its dues. It follows that there is no error in the judgment and it is therefore affirmed.