USA > Pennsylvania > The Register of Pennsylvania : devoted to the preservation of facts and documents and every other kind of useful information respecting the state of Pennsylvania, Vol. XII > Part 39
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Sections 13 and 14, Relate to the erection of new townships, and the alteration of the lines of old town- ships, and are taken, with several verbal alterations, from the act of 24th March, 1803, (4 Sm. 30:)
The next title of the bill relates to county officers, who are thus arranged.
1. County Commissioners.
2. County treasurer.
3. County auditors.
4. Sheriff and coroner.
Under these heads, we have collected and arranged the existing provisions of the law, relative to the elec- tion or appointment, qualifications, tenure of office, compensation, and general duties of these officers, and
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have added some new regulations, which will be the subject of remark in their order. The particular duties of county commissioners and others, in relation to coun- ty rates and levies, elections, education, &c. will be ar- ranged under the proper titles in future bills.
Section 15, Is derived, with no material alteration, from the 2d section of the act of 11th April, 1799, (3 Sm. 393.)
Section 16, Is derived from the same section. We have added to the cases mentioned in that section, two others, viz: the failure to elect and the removal of the commissioners from office. We have also, in this and others parts of the act, substituted the court of Quarter Sessions for the Common Pleas, as the proper tribunal for the appointment of county officers and for other pro- ceeding in relation to them. The judges are the same in both courts but the Quarter Sessions appears to us better fitted in its character for the transaction of muni- cipal business, than the Common Pleas, which is mainly concerned in the settlement of private rights.
Section 17. In this section we have followed the 3d section of the act of 1799, providing for an official oath or affirmation to be taken by the commissioners. In this and other cases in the bill, we have altered the oath so as to make it conform to that required by the constitution of the United States, and of this state.
Section 18, Corresponds with the 7th section of the act of 1799, with an addition requiring the commis- sioners to assemble at the seat of justice of the proper county.
Section 19, Is nearly the same as the 15th section of the act of 1799.
Section 20, Is derived from the 11th section of the act of 1799.
Section 21, Is copied from the 26th section of the act of 1799, with an addition, requiring the proceedings to be certified by the clerk.
Sections 22 and 23, Are copied from the 27th section of the act of 1799, with slight verbal alterations.
Section 24, Contains the provisions of the 27th and 23d sections of the act of 1799, somewhat enlarged.
Section 25, Is derived from the 2d section of the act of 23d March, 1811, (5 Sm. 219.) .
Section 26, Is copied from the act of 18th June, 1821, §6, (7 Smith, 345, ) with the exception of the prov sion respecting the county of Philadelphia, which, with other Local provisions, not coming within the sphere of our duties, are left by a general section, upon the footing on which they now stand.
2. County Treasurer.
Section 27, Is derived from the 13th section of the act of 1799, and from the act of 12th April, 1825, (P. L. 247.)
Section 28. The first part of this section is derived from the 13th section of the act of 1799. The provi- sion excluding commissioners and auditors, which by the acts of 29th March, 1819, (7 sm. 233) and 2d April, 1821, (Id. 463) extended only to the counties of Phila- delphia and Bucks, is here made general. We think that the reason for the exclusion applies to all parts of the state. The last clause of this section is taken from the act of 12th April, 1825, which we have extended to all accounts of the county treasurer with the common- wealth.
Section 29, Is copied from the 1st section of the act of 28th March, 1803, (4 Sm 35. )
Section 30. This section is copied from the act of 12th April, 1825, (P. L. 248) with an alteration which ex- tends the provision to all cases, in which a person may be disqualified by law from receiving the appointment of county treasurer.
Section 31, Is derived from the 23d section of the act of 30th March, 1811, (5 Sm. 228) with an alteration, transferring the duty of forwarding the certificate from the recorder to the commissioner.
Section 32, Is derived from the same section of the
act of 1811. We have added a clause forbidding the treasurer to act until he shall have given bond, with surety, as afterwards provided.
Section 33, Is copied from the 13th section of the act of 1799.
Section 34. In this section we have required the county treasurer to give a separate bond to the com- monwealth to secure the moneys that may come into his hands on behalf of the state. We have here consoli- dated the provisions of the acts of 15th April, 1828, (P. L. 491) and 25th March, 1831, (P. L. 208, 210) and extended them to all cases in which that officer may be the agent of the commonwealth.
Section 35, Is derived from the act of 15th April, 1828.
Section 36, Is copied from the 10th section of the act of 1831.
Section 37, Is copied from the 14th section of the act of 1799.
Section 38. In this, and the two following sections, we have endeavored to methodize the duties of county treasurers, in their relation with the commonwealth, and to subject them to more effectual control or super- vision. The act of 4th March, 1824, (P. L. 34) re- quires them to keep separate accounts of all moneys received, for licenses to retail rs of foreign merchan- dize. In the 38th section, we have extended the pro- vision to every case in which money may be received by them on behalf of the commonwealth, and directed separate accounts to be kept in each case; which we think will be serviceable as a check upon the officer, and as a source of information to the Legislature and the public. In the 39th section are contained certain provisions, regulating the manner of rendering accounts to the Auditor General, which are at present contained in eleven acts of Assembly, viz:
Act of March, 1811, 5 Sm. L. 228 2d April, 182., 7 Sm. L. 473 2d April, 1822, Id. 647 4th March, 1824, Pamph L. 34
12th April, 1825, do. 247
7th April, 1826, do. 228, 230
2d April, 1830, do. 147
do. do.
do. 160
7th April, 1830, do. 387
25th March, 1831, do. 206
do. do.
do.
209
By these acts, it is made the duty of each county trea- surer to report annually to the Auditor General. We have added a provision, requiring him to report at such other times as the Auditor General may require. In the 40th section, we have directed the county treasurer to pay over to the state treasurer quarterly, instead of annually, as the law now stands. Whatever may have been the propriety of annual payments, at a period when county treasurers were accountable only for the small sums payable by tavern-keepers and hawkers and pedlers, it appears to us that more frequent settlements are necessary at the present time, when their respon- sibility to the commonwealth is so largely increased.
Section 41, Is copied from the 14th section of the act of 1799.
Section 42. In the 42d section we have endeavoured to place the compensation of county treasurers, as agents of the commonwealth. on an equitable basis. The acts of 1811, 1821, 1830 and 1831, already cited, allow him a percentage on moneys received and paid over for the commonwealth, varying in some respects, ac- cord ng to the source from which they are derived .: We think that the compensation should be regulated by the amount paid over, and neither be below the proper re- muneration for the labor and responsibility of the office, nor out of proportion with the general standard of -mo- lument of public officers in this state. The rate which we have suggested in this section has been adopted in conformity with these views, and appears to us, on the
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whole calculated to furnish an adequate compensation to the county treasurers in all parts of the state.
Section 43, Is copied from the 23d section of the act of 1799.
Section 44. This section is copied from the 1st sec- tion of the act of 21st March, 1806, (4 Sm. 324) with a verbal alteration, which is intended to remove any doubts relative to the object of the legislature in for- bidding commissioners and treasurers from engaging in the construction of public works. We have also added a provision that a commissioner or treasurer, after.con- viction of the offence stated, shall be judged to be re- moved from office, because it appears to us that the public dignity and the interests of the county require that under such circumstances he should not be allowed to retain the situation.
3. County Auditors.
Sections 45 and 46, Are derived, with slight altera- tions, from the act of 7th February, 1814, (6 Sm. 103.) Section 47, Is derived from the 8th section of the act of 1791, (3 Sm. 15) with the alteration in the oatlı al- ready adverted to, and with an addition requiring the oath or affirmation to be filed in the office of the clerk of the Quarter Sessions, in like manner as is now re. quired in the case of the commissioners. It appears to us that uniformity is desirable on this and other points.
Section 48, Is composed from the 2d section of the act of 16th March, 1809, (5 Sm. 19) with slight varia- tions.
Section 49, Is copied from the 1st, 2d, and 5th sections of the act of 1791, and the 2d section of the act of 20th March, 1810, (5 Sm. 161. )
Section 50. This section, which is new in terms, de- clares the duty of auditors in respect to the accounts of commissioners, treasurers, and sheriffs, with the state treasury. The subject of the relations of county offi- cers with the executive of the state, to which we have already briefly adverted, is an important one, little un- derstood, and requiring, we think, the early attention of the legislature. For some considerable period after the revolution, taxes appear to have been levied in the se- veral counties for the use of the state, and through the agency of the county officers. The 7th section of the act of 1791 requires the auditors to transmit to the Comptroller General duplicates of all assessments made for state taxes, and to the State Treasurer a transcript of so much of their settlement as contains the account of moneys levied for state purposes within the county; state taxes having been repealed, no other moneys were collected in the counties for state purposes, than those which were derived from licenses to hawkers and ped- lers, and tavern keepers, and from fines and forfeited recognizances. Until within a few years therefore, the state had but a limited interest in the just settlement of the accounts of the county officers. Since the acts le- vying a duty on retailers of foreign merchandize, or col- lateral inheritances, and on real and personal property, a material change has taken place in the responsibility of county officers, requiring a corresponding supervi- sion on the part of the state. It has become material that a system of examination and control should be es- tablished, which may prevent abuses on the part of county officers. By the act of 1811, the Auditor Gene- ral is invested with large powers to compel settlements; but, at a distance from the county seats, his means of investigation must, after all, be limited. We propose in this bill to give him the aid of the county auditors in the settlement of all accounts between the state and its agents in the different counties; by making it the duty of the latter to settle their accounts in the same manner as if they were the accounts of the officers with the county. In the case of commissioners, treasurers, and sheriffs, this duty is required to be performed by them, without special directions; and we propose besides, to give the Auditor General power to refer to them the settlement of the accounts of prothonotaries, registers,
recorders, &c. if he shall deem it necessary or expedient. It is not intended to take from him any supervisory pow- er, but merely to render the auditors auxiliary to him, and we think they will be found useful in the investi- gation of these accounts. It will be seen from the suc- ceeding sections that their report is to be filed in the Common Pleas; to which tribunal, an appeal may be taken by the commonwealth, the county or the officer, We trust that these provisions with those which we have introduced into the title of county treasurer, with a view of protecting the financial interests of the com- monwealth, will be acceptable to the legislature.
We desire to add, that in the preceding remarks it is not intended to suggest that any instance has occurred of delinquency on the part of any county officer, in re- spect to the moneys of the commonwealth. We are not aware of any such case, and have been governed in our' suggestions only by the general and well established principles of our system.
Section 51, Is copied from the 2d section of the act uf 1791, with an addition giving auditors the like pow- er to obtain the attendance of witnesses, as are possess- ed by the courts of Common Pleas. In the 10th sec- tion of the act of 1791, the auditors are referred to the Common Pleas for the necessary process to obtain the attendance of witnesses residing in another county. It has appeared to us, that the auditors ought to possess this power, which it is believed they are not likely to abuse, and that the want of it may produce great in- convenience if the court should not happen to be in session. For similar reasons, we have, in the 52d and 53d sections, authorized the auditors to administer oaths and affirmations, and to commit to the county prison in case of refusal to answer.
Section 54, Is copied from the 8th section of the act of 1791.
Section 55, Is derived from the 4th section of the act of 1791.
Section 56, Is derived from the 5th section of the act of 1791.
Sections 57 and 58, Are derived from the 5th section of the act of 1791. We have altered the original pro- vision, so as to give the right of appeal to the common- wealth and the county, as well as to the officer. In the case of "The Commissioners of Mifflin county ». Bris- bin," (2 Penn. Reports, 430, ) the Supreme court was compelled, by the terms of the act of 1791, to decide that there was no right of appeal by the county; we think that each party should have the right. In the 58th section, we have extended the time for appealing, in the case of the commonwealth, to four months; which we think is called for by the distance of the seat of government from some of the counties.
Section 59, Is copied from the 6th section of the act of 1791.
Section 60, Is intended as a substitute for the 7th section of the act of 1791, to which we have already adverted, and has been introduced for the purpose of giving the Auditor General notice of the settlement of the accounts.
Section 61, Is copied from the 6th Section of the act of 18th January, 1821, (7 Sm. 345,) omitting, for rea- sons already stated, the provisions relating to the coun- ty of Philadelphia.
Section 62, Is copied from the 8th section of the act of 1791.
4. Sheriff and Coroner.
Section 63. Is derived from the act of 28th March, 1803, §1, (4 Sm. 45. )
Section 64. The act of 1803 specifies the amount of security to be given by the sheriff's of the several coun- ties therein enumerated, 28 in number. In one of them, viz. Huntingdon, the amount of security has been increased by an act passed on the 30th of March, 1822, (7 Sm. 522. ) Since the act of 1803, 23 counties have been organized, and provisions have been made by law
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for the security of their respective sheriffs. In some of the acts passed for this purpose, there appears to be a great want of precision and certainty. Thus, the act of 2d April, 1803, provides that the sheriff's of Beaver, Butler, Mercer, and Erie, shall respectively give the same security as the sheriffs of Allegheny and Craw- ford. Now, by the act of 28th March, 1803, the secu- rity to be given by the sheriff of Allegheny is $10,000, and that of the sheriff of Crawford is $5000; it is diffi- cult, therefore, to ascertain upon what basis the amount of security in the four counties above mentioned is tak- en. Again, by the several acts for organizing M'Kean, Tioga, Bradford, and Susquehanna counties, it is de- clared, that the security of their respective sheriffs shall be taken "in the like sums," "as in the other organized counties of the commonwealth " As the amount of se- curity, however, varies in the several counties, from $60,000 in Philadelphia to $5000 in Crawford and other counties, similar difficulties, we suppose, must exist in ascertaining the proper standard in M'Kean, and the three other counties mentioned. In relation to the 28 counties enumerated in the act of 1803, we have follow- ed that act in the amount of security, with the exception of Huntingdon; not because we supposed the amount to be adequate in every instance for the present day, but for want of sufficient information to enable us to arrive at a better standard. Since that act, the population of the state has doubled itself, and the increase in wealth and business has, in all probability, been equally great. Some increase in the amount of the security of sheriffs seems therefore expedient; but we have thought it best, upon the whole, to report the bill with the present" sums, leaving it to the Legislature to make such altera- tion as the interests of the several counties may seem to their representatives to require. The same remark may be made of those counties which have been organ- ized since the act of 1803. We have followed the se- veral acts where the sum was ascertained. In the cases alluded to, where the sum remains uncertain, we have taken the amount which we supposed to be nearest to the intention of the Legislature.
Section 65, Is copied from the 3d section of the act of 1803, with a slight verbal alteration.
Section 66, Is copied from the same section, with the omission of the words "after he shall have been duly commissioned sheriff," &c. which are not in the recog- Rizance, and appear to us an unnecessary restriction, and calculated to interfere with the provisions of a suc- ceeding section.
Sections 67 to 70. These sections are derived from the 1st, 2d, 3d, and 7th sections of the act of 1803, with some slight verbal alterations, not affecting the sub- stance of the original provisions.
Section 71, Is new to our code. The first clause of this proviso exists, however, in the laws of Ohio, and probably in those of other states, and appears to us to be worthy of incorporation with our system. The im- portance of the office of sheriff to the community, is shown by the amount of security which he is required to give; and it is material that those who are called upon to exercise a degree of supervision or control over she- riffs, or who are otherwise concerned in the administra- tion of justice, should not be allowed to connect them- selves with the officer, in the way of suretyship at least, so as to disturb or even throw doubts upon their impar- tiality, or to create embarrassing relations of business with him. The last clause is intended as an additional means of obtaining sufficient security for the public against misconduct in either sheriff or coroner.
Section 72. This section is similar in substance with the 2d section of the act of 1803.
Sections 73 and 74. The 73d and 74th sections con- tain some new provisions. We consider it important for the public, that the commission of the sheriff shall be placed on record in some convenient place, to which the people may have easy access; and that every possi- ble check should be imposed upon the exercise of the
office, before a commission shall have been received and recorded. It will be seen by a subsequent section, (S. 75,) we have provided that the recorder of deeds shall certify the recognizance to the prothonotary of the Common Pleas, in order that it may be entered on the judgment docket. It may happen, however, that a commission may not be granted, although the recogni- zance has been given and approved by the judges, be- cause the governor is still to judge of the sufficiency of the suretics. In such case, there would be at least a nominal lien on the property of the parties, which it would not be easy to discharge. By providing, how- ever, that the sheriff shall cause his commission to be recorded, and that after the receipt of the commission, the recorder shall certify the recognizance to the Com- mon Pleas, the occurrence of this difficulty will be pre- vented.
In the 74th section, we have introduced a provision varying materially from the act of 1803, the 5th section of which provides, that "until sureties shall be given in manner aforesaid, all commissions granted to, and all acts and things, whatsoever done by any such sheriff or coroner, under color of office, shall be void and of none effect." The object of this section of the act of 1803, is to prevent sheriffs elect and others from undertaking any act, as such, before giving security; and so far it is undoubtedly right; but it is so worded as to produce in- conveniences to the public which were not anticipated. In the case of Young vs. the Commonwealth, (6 Binn. 88,) it was decided by the Supreme Court, upon the construction of this section, that the sureties of a coro- ner were not liable on his official bond for his miscon- duct in office, in a case in which a recognizance had not been given. Chief Justice Tilghman, after citing the 5th section of the act of 1803, said-"This bond, by the express terms of the condition, is to have no effect until Samuel Young shall be duly commissioned coroner, &c. But a void commission is no commission; there- fore, by the positive provision of the law, there can be no recovery on the bond, unless accompanied with a recognizance. This may be attended with excessive hardship when the officers of the commonwealth have been so inattentive as not to see that the law has been complied with, before the commission issues, or, at least, before any process is put into the hands of the sheriff or coroner: and it may be doubted whether the Legisla- ture, in their anxiety to enforce security, may not have gone further than was necessary. The subject is well worthy of their consideration; for, as the law stands, both individuals and the public may be subject to great injury, from the hardihood of a sheriff or coroner, who presumes to act without having given the requisite se- curity." To prevent the recurrence of similar difficul- ties, we have struck from the condition of the bond, the words which limit the liability of the sureties to acts done after a commission granted; and we propose, in this section, to inflict a penalty upon any sheriff or co- roner elect, who shall undertake any of the duties of the office, before a commission shall be granted to him; reserving, however, the liability of the sureties, for all acts done by color of office.
Section 75, Is derived from the 4th section of the act of 1803, with the addition of a few words, which limit the lien of the recognizance to the county in which it was given. The words of the act of 1803 are broad enough to extend the lien to all the real estate of the parties throughout the commonwealth. We doubt whether this was the intention of the Legislature, and we think it has not been so considered in practice. Cer- tainly it has been the object of all other acts regulating liens, to carry notice with them, which cannot be effect- ed in this instance. Under the present law, we sup- pose that real estate lying in the county, is only or chief- ly considered in determining the competence of a sure- ty. We propose, therefore to limit the lien to the coun- ty; and in order to give more effectual notice we re- quire that the recognizance shall be certified to the
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prothonotary of the Common Pleas, in whose office it is to have the effect of a judgment.
Section 76, Is copied from the 7th section of the act of 1803.
Section 77, Is derived from the 6th section of the act of 1803. We have altered the last clause, however, so as to authorize the judges of the Common Pleas to de- termine the amount in which security shall be given. It appears to us that the length of time for which the com- mission is to be granted, will not always be found a just measure of the security, and that the court of the county will generally have the best means of determining the question.
Section 78, Is derived from the 6th section of the act of 1783, (2 Sm. 85, ) and the 26th section of the act of 1811, (5 Sm. 234, ) with some alterations, in which we have extended the duty, so as to embrace all mo- neys received for the use of the commonwealth, and to require an account thereof whenever the Auditor Ge- neral shall exact it. .
Section 79. This section is new. Considerable in- convenience at present exists for want of some provi- sion respecting the books of sheriffs after the expiration of their office. Many entries of great importance or interest to suiters are contained in these books, which, after they leave office, are generally carried with them to their respective places of residence, and difficulties are frequently experienced in obtaining access to them. Some consideration, we think also, is due to the sheriff's sureties, who by the loss or concealment of his books, may be disabled from proving facts of material import- ance to them. This section is suggested with the hope that it will be effectual to remove an inconvenience generally experienced.
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