Commonwealth Ex Rel. Margiotti v. Cunningham

10 A.2d 559, 337 Pa. 289, 1940 Pa. LEXIS 403

• Court: Supreme Court of Pennsylvania
• Decided: November 27, 1939
• Docket: Appeal, 315
• Status: Published

Opinions

Opinion by

Mr. Justice Linn,

Thomas W. Cunningham was sheriff of Philadelphia County from the first Monday of January, 1928; to the date of his death August 13, 1931. His executors appeal from a decree 1 requiring them to account for money 2 “representing costs paid by persons dealing” with him “while . . . sheriff . . . and ... in his hands at the time of his death . . .'and which are subject to the Act of April 8,1937, P. L. 284”, and money “of like character” coming into their hands subsequently. The total is composed of small balances of money deposited as indemnity by execution plaintiffs in. circumstances described by the learned chancellor, as follows: “A sheriff is not required to render services in civil, proceedings until he receives indemnity for, or prepayment of, his fees, costs and expenses, and, asi the exact amount of his expenses cannot be determined in advance, it has always been the custom of sheriffs, in lieu of demanding indemnity from litigants, to require them to deposit a sum slightly in excess of the estimated total costs and expenses of the service to he performed, and to refund any balance remaining after it is rendered and the actual expenses are known. These balances are small in amount, averaging less than $10.00 in each case. . . . The custom which produces this result is of such antiquity and has been so universally followed by sheriffs that its validity is not open to question, and there is nothing about the transaction to justify the allegations of the Bill that Sheriff Cunningham acted fraudulently in following the custom; especially since the Act of July 11, 1901, P. L. 663, as amended by the Act of May 23, 1923, P. L. 347, 3 recognizes the practice, and expressly provides that ‘any money advanced for his [the sheriff’s] charges, and not earned or expended by him, shall be refunded to the payer thereof.’ ”

The bill was filed in the name of the commonwealth; the decree was entered after hearing on bill, answer and evidence produced at the trial. Counsel who presented the case on behalf of plaintiff stated that he represented the city treasurer 4 and not the commonwealth. The sheriff’s surety, the Fidelity and Casualty Company of New York, was a party defendant, but, as to it, the bill was dismissed.

The appeal involves the construction and application of the Act of 1937, P. L. 284, 16 PS section 1188, 3694 et seq., 27 PS section 282b. The appellant executors contend that the Act cannot constitutionally be applied to them. The title of the Act is: “AN ACT Requiring county officers and persons formerly occupying .county offices in counties of the first class to pay over to the county treasurer for safekeeping certain unclaimed moneys, and providing for the payment of such moneys out of the county treasury to claimants, and for the escheat of unclaimed moneys.”

Sections 1 to 4 of the Act provide: “Section 1. Be it enacted, &c., That whenever any moneys shall have been paid over to any county officer in any county of the first class which do not belong to such county officer, and no provision is made by law for the payment over of such moneys into the county treasury, if no claim for the payment over of such moneys shall be made by the party legally entitled thereto within a period of one year after the same shall have been paid to the county officer, or before the expiration of the term of office of such county officer, regardless of the time the same shall have come into his possession, then it shall be the duty of the county officer, upon the expiration of said one year period or upon the expiration of his term of office, as the case may be, to pay all of such moneys, together with any interest earnings thereon, over to the county treasurer for safekeeping, and to furnish to the county treasurer a statement of the source from which such moneys were derived, and the name of the person or persons, if known, who are legally entitled to such moneys.

“A copy of such statement shall also be filed with the controller. Such moneys shall be deposited in a fund separate and apart from all other public moneys and shall not be paid out for any purpose whatever, except as provided by this act.

“The receipt issued by the county treasurer showing the payment over of such moneys shall fully discharge the county officer or person making such payment and his surety from all liability whatever for the payment of such moneys to the person or persons legally entitled thereto.

“The provisions of this section shall apply to all moneys, and the interest earnings thereon, in the hands of any county officer for the period of one year and more prior to the effective date of this act. The provisions of this section shall also apply to all persons whose term of office as county officers shall have expired, prior to the effective date of this act and who may still retain any such moneys in their possession, and such person shall be required to pay over to the county treasurer all such unclaimed moneys, together with the interest earnings thereon, within sixty days after this act becomes effective and furnish to the county treasurer and controller a statement as in this section provided.

“Section 2. If, after such moneys have been paid over to the county treasury, the person or persons legally entitled thereto, if known, shall be notified to appear and claim the same, the moneys shall be repaid from the county treasury on warrant of the county controller after proof of claim to the satisfaction of the county controller.

“Section 3. Hereafter no person shall, after the expiration of his term of office as a county officer, be entitled to receive payment of any moneys arising from official business transacted in the county office which he occupied, but all such moneys shall be paid over only to his successor in office, who shall become responsible therefor and subject to the payment over of such moneys into the county treasury as provided in this act. No county officer shall, upon the expiration of his term of office, remove from the county office, which he occupied, any official books, papers, records or documents whatever, but the same shall be turned over to his successor in office.

“Section 4. All moneys paid into the county treasury, in accordance with the provisions of this act and held for the benefit of any claimant or claimants, shall, if no claim therefor is made within seven years from the time the same was paid into the county treasury, be escheated to the Commonwealth for the use of the county: Provided, however, That at least six months before any such escheat shall take place, the county treasurer shall notify by mail the person, if known, entitled to any of such moneys of such contemplated escheat, and shall publish once a week for three successive weeks in two newspapers of general circulation, published in the county, a true and accurate statement of such proposed escheat, stating the amount to be es-cheated and generally describing the sources from which such moneys were derived: And provided further, That if it shall appear that claim for any such moneys was not made within said period of seven years because of pending litigation, then payment of any such claim shall be made out of the county treasury if such claim shall be presented within one year after the final determination of said litigation.

“So much of any provision of any act of Assembly relating to escheats as provides for a reward to informers of an escheat, shall not apply to any proceedings to escheat any moneys referred to in this section, but in other respects the proceedings to escheat siich money shall be governed by the laws relating to es-cheats, now or hereafter in force, in like manner as if the county treasurer were an officer of the court of common pleas of the proper county.”

The purpose of the suit, then, is to subject to the Act of 1937 unrefunded balances of the character described, amounting to “upwards of $3000”, in the possession of appellants.

The appellee contends that the fund was held in a fiduciary capacity; appellant argues that the relation was that of debtor and creditor. For the purposes of this case it is immaterial what name is applied to describe the obligation; the important thing is its substance.

The Act of 1923, P. L. 347, 16 PS section 2662, authorized the sheriff and any one requiring his services, to contract for the sheriff’s indemnity for the purposes stated in the Act, which provided that if the indemnity took the form of “money advanced for his charges, and not earned or expended”, the unused portion “shall he refunded to the payer thereof”. These words created a direct obligation from the sheriff to the payer. The terms of the sheriff’s bond, which are fixed by the Act of 1929, P. L. 1278, Art. III, sec. 183, 16 PS section 183, also provide that he must “pay or cause to be paid . . .” all sums in his hands belonging to litigants: 5 compare Com. v. Comly, 3 Pa. 372, and cases following it. The statutory obligation to refund may be enforced by an action in assumpsit: compare Alexander v. Leckey, 9 Pa. 120; American Steamship Co. v. Young, 89 Pa. 186, 192. The obligation was composed of the elements both of fiduciary nature and of the debtor-creditor relation. See Potter Co. v. Page, 53 Pa. Superior Ct. 268, 273 et seq.

In Allegheny Bank’s Appeal, 48 Pa. 328, and in Stair v. York Nat. Bank, 55 Pa. 364, it was said that at the expiration of a sheriff’s term, official funds are payable to his successor in office. That was the holding in Trestrail v. Johnson, 298 Pa. 388, 148 A. 493. Whether the funds in appellants’ hands should have been delivered to Cunningham’s successor in office is not before us for decision on this record. But their failure to make payment to their testator’s successor in office cannot be allowed to interfere with the right of a depositor to recover from them after they have taken control of the balance of his deposit; the money did not belong to Cunningham and does not belong to his estate. As between the executors, who hold it, and parties respectively entitled, the executors may discharge their testator’s obligations by paying the parties entitled. Assumpsit, in which an accounting can be obtained if necessary, now affords an adequate remedy for one entitled to a refund, for, in the course of the proceeding, the court may order production of the sheriff’s accounts of the transactions. But even if such a plaintiff receive judgment in his suit he will still be required to present it in the orphans’ Court which now has jurisdiction of the administration of Cunningham’s estate ; that court also has ample power to order the sheriff’s records brought in and to adjudicate claims presented there and to order payment.

While on the subject of the jurisdiction of the orphans’ court, another phase of appellees’ argument may be considered before dealing with appellants’ constitutional objections. It is said that the Act of 1937 provides a step in escheat; that (in the words of the brief) “Such moneys are to be turned over to the County Treasurer for safekeeping in a separate fund, and if they remain unclaimed for 7 years, they are to be escheated to the Commonwealth for the use of the County.” The commonwealth’s power to escheat is not challenged. Procedure for the safekeeping of escheatable funds is available in the orphans’ court: see Act of April 9, 1929, P. L. 343, section 1314, 72 PS section 1314; Link’s Estate, 319 Pa. 513, 515, 180 A. 1;. and no reason has been suggested in this case why the commonwealth (or perhaps the court on its own motion, section 1314) should not proceed under that Act. If the lapse of time can be pleaded by the executors against the demand of one entitled to refund, that fact will not prevent the declaration of an escheat: Holmes v. Pat tison, 25 Pa. 484; see Act of June 7, 1915, P. L. 878, sec. 15, 27 PS section 261; Germantown Trust Co. v. Powell, 265 Pa. 71, 83, 108 A. 441. A debt, though barred by limitation, is stiil a debt: Woods v. Irwin, 141 Pa. 278, 293, 21 A. 603; lapse of time does not make the debtor’s title absolute.

Assuming, but not deciding, that the Act of 1937 can apply to appellant executors, we come to the constitutional objections, and shall consider three of them. Article I, section 10, of the constitution of Pennsylvania, provides: “. . . nor shall private property be taken or applied to public use, without authority of law and without just compensation being first made or secured.” Article I, section 17, prohibits impairment of contracts. Article III, section 7, prohibits the enactment of a special law “providing or changing methods for the collection of debts”.

(1) Appellee contends that appellants are not affected by the invalidity of the Act and are therefore within the rule that one unaffected by it may not challenge the constitutionality of a statute. An examination of the Act in its operation on the appellants will show that they are not within the rule invoked by appellee. Before the Act was passed the sheriff could be required to refund at the suit of a depositor. If the Act is invalid, the sheriff, of course, remains subject to suit as before. We then inquire whether the act has effectively changed this. Section 1 requires the sheriff to pay the remaining deposits to the county treasurer and adds that “The receipt issued by the county treasurer . . . shall fully discharge the county officer or person making such payment and his surety from all liability whatever for the payment of such moneys to the person or persons legally entitled thereto.” It is on this provision that appellee depends for the proposition that appellants cannot question the validity of the statute, It is said that the sheriff is released by Ms payment to the treasurer. If, however, the Act is invalid and the sheriff is not released but remains liable to pay to the depositor it will be no answer to the depositor’s demand that the sheriff has paid his depositor’s money to one not legally authorized to receive it. He would therefore be required to pay the depositor. If he has complied with the Act he will also have paid the county treasurer. The sheriff would be required to pay twice. The addition, by the statute, of a liability to make a payment to the county treasurer which will not discharge the liability to the depositor is a plain violation of the constitutional provision against taking property without due process. The appellants are thus directly affected.

Appellants’ argument goes on to point out that the Act attempts to destroy the depositor’s right of action to recover the refund, without providing an adequate substitute and so fails to afford due process. Section 2 provides that if one, entitled to a refund, “claim the same, the moneys shall be repaid from the county treasury on warrant of the county controller after proof of claim to the satisfaction of the county controller.” No right of appeal is granted; compare section 504 of the Act of 1929, P. L. 343, 72 PS section 504. Does that provision of the Act of 1937 furnish an adequate substitute for the right of action theretofore existing? The substitute provided deprives a claimant of a judicial trial, and, instead, requires him to satisfy the controller. By what rules shall the controller be satisfied? Suppose he denies a claim and says that he is not satisfied with the proof, what then? Or, if in allowing prior claims, the controller has been mistaken and has exhausted the deposited funds, leaving nothing to pay a valid claim; from what shall the refund be made, the county not being required to supply money for that purpose? The right of the depositor to sue for the refund in some form of action is a property right. Compare Com, ex rel. v. Brown, 327 Pa. 136, 142, 193 A. 258. That right is taken away by the Act. While due process would be satisfied if an adequate substitute for the,destroyed right were provided, the Act provides none. It contains no provision for appeal to a court from the controller’s denial of the claim. If such a claim were presented to him for allowance, it would be his duty to act judicially; his function would not be ministerial; mandamus would not lie to control his judgment given or to be given in a judicial capacity: Dechert, Controller, v. Com., 113 Pa. 229, 6 A. 229. In Com. ex rel. v. Phila., 176 Pa. 588, 593, 35 A. 195, in which the controller’s return was held insufficient, Mitchell, J., said: “This act [the Mandamus Act of 1893, P. L. 345] was not meant, nor is it to be construed, to substitute mandamus for the writ of summons and the ordinary proceedings and trial. Our judgment does not countenance any such view but is only in the usual and regular course of the law where all the facts are admitted upon the record and only the result is to be pronounced. The contract, it is to be noted, was made by the board of education for a matter clearly within their department. They issued a warrant for payment which was returned to them unsigned by the controller and thereupon destroyed, supposing it to be functus officio. On the reopening of the subject by this litigation the board promptly issued a new warrant, made return of the facts, and submitted the case without objection to the claim. Had the board of education at any time indicated that there was any defense to this claim, it is clear that there could be no remedy by mandamus, but only by suit prosecuted to judgment in the ordinary course of law. But they have not done so. The only contest comes from the controller, and his grounds of objection, set out at length in his answer, show that none of them was founded on matters within his discretion. Had any of them been valid the court would not review his decision in regard to the facts, but when admitting all the facts none of the reasons is sufficient, the courts and not the official must determine the rights of the parties. This is the rule even in cases of discretion vested in strictly judicial tribunals: Johnson’s License, 156 Pa. 322; Gross’s License, 161 Pa. 344; Gemas’s License, 169 Pa. 43; and a fortiori must it be the rule where the discretion though ample and exclusive is reposed in a tribunal or an official who is only quasi judicial within prescribed limits.” See also Thayer v. McCaslin, 314 Pa. 553, 171 A. 898. To sustain the Act in this respect, appellee relies on Com. v. Dollar Savings Bank, 259 Pa. 138, 102 A. 569, but the statute considered in that case gave a new right of action against the state to recover the deposits turned over by the bank; the depositor’s claim was not, as here, restricted to the adjudication of a non-judicial forum; his right of action against the bank was taken away, but, for it, the law substituted the right to sue the state. Due process was satisfied by the substitution of a right of action against the state for the withdrawn right to sue the bank. As the Act of 1937 takes away the payer’s right to sue the sheriff and substitutes only a demand on the controller, without judicial review, the statute denies to the depositor the due process guaranteed by the constitution; the Act is therefore not available against appellants because payment by them to the county controller would not be a good payment.

(2) The Act of 1923, under which the deposit was made, authorized the sheriff to make the contract of indemnity; the depositor’s right to enforce the obligation by remedies then available or by an equivalent remedy was an element in the contract: Beaver Co. B. & L. Ass’n v. Winowich, 323 Pa. 483, 489, 187 A. 481; Clark v. Phila., 328 Pa. 521, 528, 196 A. 384. By taking away the right, without providing an adequate substitute, the statute impairs the obligation of the contract contrary to the requirement of Article I, section 17, of the constitution. Compare International Steel and Iron Co. v. National Surety Co., 297 U. S. 657.

(3) Article III, section 7, of the constitution, provides : “The General Assembly shall not pass any local or special law . . . providing or changing methods for the collection of debts.” The Act of 1923, supra, provided that the sheriff would discharge his obligation by refunding the unused or unearned portions of the indemnity. As the obligation was composed of elements both of fiduciary nature and of the debtor-creditor relation it was enforcible by action of assumpsit; for present purposes it is immaterial to consider the extent that, if at all, equity might take jurisdiction to decree a refund, especially in view of the comprehensive procedure provided by the Practice Act of 1915, P. L. 483, section 11. The Act of 1937 takes away all remedies theretofore applicable to the enforcement of the obligation whether of fiduciary character or in the debtor-creditor relation and substituted a limited trial before the controller without judicial review. We can find no possible ground to support such a classification: Penna. Co. etc. v. Scott, 329 Pa. 534, 538 to 548, 198 A. 115; Schoyer v. Comet Oil & Refining Co., 284 Pa. 189, 130 A. 413; in Strine v. Foltz, 113 Pa. 349, 359, 6 A. 206,. an Act designed to give former sheriffs a right of action not common to other creditors was held invalid. But the learned chancellor, in disposing of preliminary objections to the bill, was of opinion that the Act did not deal with the collection of debts; that, as he said, “Its real object is to conserve apparently abandoned property for the benefit of the Commonwealth and the owner until the escheat occurs”; in that connection, he relied on Com. v. Dollar Savings Bank, 259 Pa. 138, 102 A. 569, considered earlier in this opinion. Examining the Act in the light suggested, it is to be noted that section 1 provides that the money to be paid to the county treasurer is “moneys . . . which do not belong to such county officer ... if no claim . . . shall be made by the party legally entitled thereto within a period of one year after the same shall have been paid to the county officer, or before the expiration of the term of office of such county officer, regardless of the time the same shall have come into his possession ...” It applies, therefore, to money deposited — say, within the last month of the sheriff’s term. Can there be any valid reason to abolish a recognized right of action against a limited class of debtors for money due for such a short period on the ground that it is proposed “to conserve apparently abandoned property for the benefit of the commonwealth and the owner until the escheat occurs” and allow other creditors the usual remedies? We cannot agree that indemnity so recently deposited can be regarded as “apparently abandoned”, with the result that the owner must satisfy the county controller of the validity of his claim. The learned chancellor said, “In this respect it is identical in purpose with the Act of April 17, 1072, P. L. 62, which deals with unclaimed savings bank deposits in a manner closely analogous to that of the present act and which was held to be constitutional in the case of Commonwealth v. Dollar Savings Bank, 259 Pa. 138 ...” The Act of 1872 related to deposits neither increased nor diminished for 30 years. But, instead of limiting a depositor’s right of recovery to satisfying a single non-judicial officer, the Act gave a remedy to the owner by suit against the commonwealth to whom the bank was required to turn over the deposits. The escheat provisions in the Fiscal Code, sec. 504 of the Act of 1929, P. L. 343, 370, 72 PS section 504, also provide for recourse against the state: see Link's Estate, 319 Pa. 513, 516, 180 A. 1. The Act of 1937 applies to deposits made “before the expiration of the term of office”, that is, all deposits, however recent, without substituting a lawful remedy. Such classification cannot be justified.

A number of other grounds for sustaining the appeal were relied on, but as any of the three that have been con sidered require tlie dismissal of the bill, it is unnecessary to lengthen this opinion by referring to others; for the present they may be laid aside.

The decree is reversed and the bill dismissed, costs to be paid by appellees.

1 “2. That Thomas W. Cunningham, Jr. and J. Louis Bréitinger, executors under the Last Will and Testament of Thomas W. Cunningham, deceased, shall, within thirty days, file in this case an accounting showing all moneys representing costs paid by persons dealing with the said Thomas W. Cunningham, while he was Sheriff of the County of Philadelphia, and which remained in his hands at the time of his death unreturned to the persons entitled thereto, and which are subject to the Act of April 8, 1937, P. L. 284, and also all moneys of like character which came into the hands of the said defendant executors subsequent to the death of the said Thomas W. Cunningham, together with any interest and earnings accrued thereon and the disposition thereof, taking credit in said account for all moneys returned to the persons from whom the same were received by the said executors or their decedent; and shall hold the balance shown by said accounting subject to further order of the Court.”

2 The 17th finding is: “Defendants now have in their hands upwards, of $3000, representing excess deposits made by litigants or their, attorneys for advertising and other costs with Sheriff Thomas W. Cunningham, in his lifetime.” .....

3 The Act now in effect is that of June 1, 1933, P. L. 1141, section 3, 16 PS section 2661c.

4 The bill averred and the answer admitted that the treasurer of Philadelphia and the county commissioners had refused to institute proceedings under the Act. In this court, the petition of the treasurer of Philadelphia to become a party plaintiff was granted.

5 “. . . The condition of the above obligation is such that, if the said (A.B.) shall and do, without delay, according to law, well and truly serve and execute all writs and process of the said Commonwealth to him directed, and shall and do, from time to time, upon request to him for that purpose made, well and truly pay or cause to be paid to the several suitors and parties interested in the execution of such writs or process, their lawful attorney, factors, agents or assigns, all and every sum and sums of money to them respectively belonging, which shall come to his hands, and shall and do, from time to time and at all times during his continuance in the said office, well and faithfully execute and perform all and every of the trusts and duties to the said office appertaining, then ...” (1929, May 2, P. L. 1278, Art. Ill, sec. 183, 16 PS section 183.)