The Commonwealth against Murdoch, 3 Watts 282

The opinion of the Court was delivered by. Kennedy, J. The only question for consideration is, can the Commonwealth, under the act of assembly of the 10th of March 1810, or under any other act in connection with it, recover for a fraction of a year, where the amount of the fees received by the officer in that time do not exceed 1500 dollars'? The first

section of the act of 1810 directs, that “the prolhonotaries, or clerks of the supreme courts, of the courts of nisiprius, of the courts of common pleas, of the courts of oyer and terminer and general jail delivery, of the courts of quarter sessions of the peace, of the orphan’s court; the registers of wills and the recorders of deeds in this commonwealth, shall, from and after the 1st day of October then next, keep or cause to be kept, a full and accurate account of all the fees received for‘*services performed by them, or any person employed by them in their respective offices; and shall annually thereafter furnish a copy of such account, upon oath or affirmation, to the auditor-general, who shall proceed to examine the accounts so furnished by the officers aforesaid; and whenever the amount of any of the said accounts shall exceed the sum of 1500 dollars, the auditor-general shall charge the said officers respectively 50 per cent on the amount of such excess, which sum so charged shall be paid by them into the treasury for the use of the commonwealth.” Now it is evident from the language of this section, that there is no express authority given to charge the officer on the amount received by him during a part of the year in the same ratio that such sum and portion of the year may bear to 1500 dollars and the whole year; nor to charge him in any case where the amount received in fees shall not in the course of the year exceed 1500 dollars.

It has, however, been contended, that it is the office and not the officer that is to be assessed, and consequently if the office in the course of the year should yield an excess beyond the 1500 dollars in fees, one half of such excess ought to be paid to the Commonwealth, whether the same person be continued in the office throughout the year or not; and that this is the true spirit and meaning of the act. It does not appear to me that the legislature intended this; neither do I think that the terms employed by them in the act will bear this construction. The provisions of the second

section seem to militate against it. By this

section it is enacted that “ if two or more of the said offices shall be held by one pérson, the auditor-general shall add together the fees received in the offices so held, and shall charge the same per centage on the aggregate amount of the fees received by such persons, as is directed in the first

section of this act, to be paid as therein directed.” So that in many instances two or more of these offices may be held separately by different persons, and the amount of fees received in each be less than 1500 dollars, when it must be admitted by all that no tax will be payable on them; but if united in and held by the same person, a tax of several hundred dollars will become payable annually to the state.

Hence it would' appear, that it was not so properly the office, as the officer that was intended to be taxed on account of the largeness of the amount of his income, derived from the fees received by him.for services, performed in his offices. The amount received, by him in the course of the year was to determine whether hé was to pay any thing to the state or not.

He was not to be charged unless he should in the course of the year receive a sum in fees exceeding 1500 dollars, and then only was he to be charged and required to pay into the state treasury 50 per cent on the amount of the excess, whatever it might be.

In case of his removal from office before the expiration of the year, when it would have been his duty to have made a return to the auditor-general, had he been permitted to remain in office, the fees which his successor might receive for his own use in the office, could not, as was argued in this case, be brought into view in order to show the probable amount that he would have received had he remained in office, and to furnish the data whereby he might be charged. The legislature, I apprehend, in passing the act of 1810, never thpught of such a thing.

The act contains no provision for calling d person, turned out of office before the expiration of the year, to an account, and requiring him to pay when he has not received an excess beyond the 1500 dollars. But to make provision for such cases, and for the case under consideration, the legislature on the 24th of March 1818, passed a supplement to the act of 1810, Purd.

Dig. 666, directing that “ in case of the resignation or removal from office of any officer who by law is accountable to the commonwealth for certain surplus fees of office, it shall be the duty of his successor or successors in office, who from time to time may receive and pay over such fees to his predecessor or predecessors in office, to take duplicate receipts for the same, and to transmit one of the said receipts to the auditor-general, together with a statement of such fees as may otherwise be received by such predecessor from time to time, as far as he may be enabled to ascertain the same.

And it shall be the duty of the auditor-general, from time to time, to settle the account of the late officer to whom such fees shall have been paid, and compel him to account upon oath or affirmation, and to pay over such ■ proportion of the arrearages of fees, so received by him as would have been paid to the commonwealth had he remained in office, allowing to such late officer, in case of deficiency in any year while he shall have held his office, such sum as shall make up the whole sum he would have been entitled to have retained free from any tax thereon.” I consider this case as falling clearly within the terms of this latter act, which made it the duty of Mr Murdoch’s successor in office to keep an account of all fees received by him for Mr Murdoch’s use, and to pay them over to him, taking duplicate receipts therefor, one of which receipts he was bound to transmit to the auditor-general, together with all such fees as Mr Murdoch might have received otherwise, so far as he the successor could ascertain the same.

And in addition to this the auditor-general had also authority thereby given to him to compel Mr Murdoch to render an account of the fees received by him after he went' out of office as well as before, upon oath or affirmation ; and, according to the amount which should appear from all these various sources of information to have been actually received by Mr Murdoch at the end of the year in which he was removed from office, he was either to be charged or not charged, as the amount received throughout the whole year by him might have fallen within or over 1500 dollars; but even then he was not to be required to pay any thing to the state until he had received not only an excess beyond the 1500 dollars for the year in which he was turned out of office, but likewise in addition thereto a sum sufficient to make his fees equal to 1500 dollars in every preceding year that he held the office, in which the amount of fees received by him fell short of that sum.

On the trial of this case it was not shown that the defendant had received any thing beyond the 1355 dollars 46 cents during the year ending with the last day of September 1819 ; and this sum being less than 1500 dollars, he had, according to a true exposition of the acts of assembly on this subject, a right to retain the whole of it. Judgment affirmed.