Commonwealth ex rel. City of Lancaster v. Martin

Opinion by

Mr. Justice Williams,

The duties, imposed upon county treasurers by the license laws of the commonwealth are additional and special. The price of the license is received for such uses and purposes as the law provides. If it is received for the use of the county it becomes a part of the money of the county in the hands of the treasurer and is paid out on the orders or warrants of the county commissioners. If it is received for the use of the state it is the money of the state, for which the receiving officer is primarily liable. If it is received for the use of a city, borough, township or school district, it is the money of the municipality entitled to receive it for its own use, and it is the duty of the receiving officer to pay to the owner. Such monej'-s do not become county moneys because they are in the custody of the county treasurer, nor is the custody of the treasurer necessarily that of the county. In the case now before us the act of June 9, 1891, P. L. 248, provides, inter alia, as follows: “ In cities the sum of one hundred dollars, in boroughs and townships one fifth of the amount of license, shall be paid to the treasurers of the respective counties for the use of the counties, and the balance shall be paid to the treasurer of the respective cities, boroughs and townships for their respective use.” If this act stood alone, a payment, by the persons to whom the licenses were granted, to the treasurers of the respective county, city, borough and township entitled to a share of the license-money, of. so much thereof as each was entitled to receive, would have been a good payment. But the act of May 18, 1887, and several earlier statutes, had made the county treasurer the proper person to receive the price of the license, whoever might be entitled to the ultimate benefit of it.

Assuming, as I think we must, the continuing force of these . earlier statutes, as far as this subject is concerned, the payment of the price of their licenses was properly made by those to whom licenses to sell liquors were granted in Lancaster county, to the county treasurer as the designated receiver. The duty which but for these earlier statutes would have fallen on the applicant, must now fall upon the holder of the money; and it becomes his duty to carry out the mandate of the act of 1891 that “ the balance shall be paid to the treasurer of the respective cities, boroughs and townships for their respective use.” The balance is not county money in any sense. The county commissioners have no control over it. They cannot abrogate or modify in anjr degree the duties of the county treasurer as the statutory receiver of the license money; nor is their order or warrant an indispensable voucher for him. He may upon the settlement of his accounts with the county auditors make proof in any competent way of the payment of the money he holds for others by the receipts, properly executed, of those entitled to receive the money. The mistake of the learned judge of the court below was in treating the license fees as indistinguishable from other county moneys. He states his own view of the situation thus: “ The county treasurer, having paid the money into the county treasury for the use of the county, was no longer liable to a suit at law or subject to a writ of mandamus therefor, or on account thereof.” But the county treasurer had power to pay into the county treasury for the use of the county only one hundred dollars out of the price of each license. As to the other four hundred dollars the statutory direction was “the balance shall be paid to the treasurer of the respective cities, boroughs, and townships for their respective use.” The county has no interest in any part of the license money except that part which the statute directs shall be for its use. The treasurer has no power to pay the balance into the county treasury for the use of the county, but is bound to credit it to the account of the owner, and pay it to the proper treasurer. This duty is imposed, not on the county, but on the county treasurer. He is the party primarily liable to pay, and he is necessarily subject to a mandamus to quicken, or to compel appropriate official action in relation thereto.

The county might be ultimately liable as the surety of its officer, and might be allowed to intervene whenever upon equitable principles a surety would be allowed to do so; but a surety under such circumstances must rest upon the equities of his principal and not upon some independent cause of action of his own. In this case we cannot see upon what theory the county was allowed to intervene except the mistaken one that the money had been paid by the treasurer “ into the county treasury for the use of the county,” so that it could only be withdrawn upon the warrant of the county commissioners; and that in consequence of such payment the treasurer “ was no longer liable to a suit at law or subject to a writ of mandamus therefor, or on account thereof.” As this theory cannot be sustained for the reasons already given, and as the county as the surety of its officer is asserting no equity growing out of that relation, no right to intervene is apparent and the order of Dec. 13,1894, permitting the county to come in and answer, and thereafter to conduct the proceeding on behalf of the defendant, is reversed. The answer of the defendant Martin sets up the same line of defense as that made by the county, with the additional averment that the county commissioners had notified and required him to withhold the money claimed by the city because the county held a judgment against the city to which it proposed to appropriate the money in his hands. They might with equal propriety attempt to' seize the moneys of any other debtor of the county in the hands of some third person by a simple notice not to pay over.' They have no lien on the money because of the relation of debtor and creditor; they acquire no lien by their notice; their notice is therefore no defense to the person who holds their debtor’s money, when he is called upon to pay it over to him to whom it belongs. That is the situation here. It follows that the demurrer should have been sustained and a writ of mandamus awarded. The judgment overruling the demurrer and permitting the defendant to go without day is now reversed and judgment is entered on the demurrer in favor of the plaintiff.

The record is remitted and a procedendo awarded.