Pennsylvania Advisory Opinions January 19, 1905: AGO 114

Advisory Opinion Text

FEES OF SECRETARY OF THE COMMONWEALTH-JUDGES COMMISSIONS.

The act of April 27, 1871 (P. L. 241) in section one, prescribes the fee of the Secretary of the Commonwealth as five dollars in issuing the commission "of any other State officer who draws salary."

Judges are State officers and subject to this fee. The fee is not a tax, and does not diminish judicial salaries. It must be paid before the salaries are earned.

Office of the Attorney General, Sir: You have informed me that the State Department in sending the judges' commissions to the recorder of deeds for delivery to the judges, makes a charge against each judge of five dollars as a tax or fee, payable under the act of April 27, 1871, Sec. 1 (P. L. 241). You further say that if the judge does not pay this, the recorder must, otherwise he appears delinquent in the books of the Commonwealth. If, on the other hand, the judge pays, the principle that the Legislature should not have the power to reduce the salary of the judges by taxation or otherwise, is impaired.

You ask for my views upon the subject. I reply that the authority for the charge is to be found in the act above referred to. The act is entitled: "An act prescribing the fees of, the office of the Secretary of the Commonwealth," and specifically enacts that the fees of the Secretary for the use of the State shall be (inter alia) as follows: "Commission for Auditor General, Surveyor General or any other State officers who receive a salary, five dollars." No other part of the act in my judgment is applicable, and hence, no other part calls for consideration.

I see no ground for contending that the words "any other State officer who receives salary" do not apply to judges. Judges are State officers and receive salaries. The Constitution treats them as State officers. They are vested with a portion of the judicial power of the Commonwealth and many judicial districts embrace more than one county. They have never been regarded as county officers. They are elected at State elections', and are paid out of the State Treasury, salaries which are fixed by statute. They have no relation to a county except through the accident of territorial boundaries to their jurisdiction, which may be identical, geographically, with the limits of a county but which in a vast majority of instances are not coterminous. In case of a vacancy the Governor appoints and issues a commission to his appointees and also issues commissions to those duly elected for a fixed term. The term is fixed by the Constitution and all process of the courts is in the name of the Commonwealth. There is nothing in the words used in the clause quoted which would limit the State officers therein designated to executive officers.

Nor do I consider the fee as a tax. The word "tax" nowhere occurs in the statute. It is a fee charged for a service rendered by the Secretary of the Commonwealth; a reward fixed by law for service performed by him, as a public officer. It is a reward or wage given as a recompense for labor and trouble in the execution of his office. It is not a tax upon a judicial salary, nor does it diminish the amount of salary. It precedes the performance of duties by a judge, and is necessary to his qualification. It is not pretended that the fee is imposed under a legislative assertion of a power to diminish salaries, nor has it any necessary relation thereto. It is due and payable before any salary is earned, and is not deducted from the salary if not paid; nor is it imposed in terms upon such salary. I do not regard the independence of the judiciary as being in any way connected with the matter. The question was mooted during the secretaryship of Hon. Charles W. Stone, .and determined by him, and the then Attorney General, Hon. William S. Kirkpatrick, in favor of the existing practice which has prevailed until to-day.

Very truly yours,

HAMPTON L. CARSON, Attorney General.