Bogert v. County of Luzerne

Opinion by

Orlady, J.,

This action of assumpsit was brought by the plaintiff, a newspaper publisher, to recover from the defendant for publishing a sheriff’s proclamation of the general election for 1894. After the cause was at issue, it was referred, under the provisions of the Act of April 6, 1869, P. L. 725, and its supplements, to a referee who filed a report, under which a judgment was entered in favor of the plaintiff.

It is admitted by the defendant that the general election proclamation for 1894 was published by the plaintiff in his newspaper under the direction of the then sheriff of the county. The sole defense to payment of the claim was that the same sheriff “ posted in the various election districts of the county handbills containing his proclamation of the general election of that year, for which he received pay from the county amounting to $126; ” and under the Act of June 10, 1893, P. L. 419, sec. 10, the sheriff is authorized only to give notice of the general election in one of two ways: 1. By proclamation posted up in the most public places in every election district. 2. By advertisement in at least two newspapers. It is urged that he cannot do both, therefore, the county having paid the sheriff for giving the notice by posting the proclamation, is not liable for the cost incident to following the other method. The contract for printing in the newspaper had been made and completed before the handbills were printed. The sheriff was authorized by the statute to make the contract, and when the work was done pursuant to that contract the liability of the county was fixed, so that by his subsequent conduct he could not destroy the plaintiff’s right to recover, moreover, for thirteen days before the bill for posting was paid by the county commissioners they had notice of -the plaintiff’s claim.

In the light of the facts the payment of the bill for posting was not proper, and the county cannot successfully urge the mistake of the commissioners in order -to defeat payment of the prior bill for publishing in the newspaper. In Bartholomew v. Lehigh County, 148 Pa. 82, the sheriff’s authority to order the publication of his proclamation was exhausted when he ordered it to be published in four newspapers; the order to publish in the fifth one being without any authority under the statute. The duty and power of the sheriff are fixed by the act of assembly, and when, under the order of the sheriff, the notice by proclamation was given by advertisement in a newspaper, his duty and power were folly discharged. The county commissioners had full control over the payment of each bill and were bound to know that both should not be paid. They made choice of the wrong creditor.

The judgment is affirmed.