Appeal, 171 Pa. 412 (Pa. 1895)

Opinion by

Mr. Chief Justice Sterrett,

This appeal involves the construction of section 8 of the act of February 22,1821, P. L. 57, prescribing, inter alia, that “the fees to be received by the clerk of the orphans’ court shall be as follows: . . . . All proceedings for the sale of real estate, recognizance or confirmation, recording and copy, three dollars.”

The facts, so far as they are material, are sufficiently set forth

in the report of the learned auditor and need not be restated. He found that, under the original and subsequent orders of sale, eighty-three distinct parcels of land were sold and sales confirmed to the respective purchasers, and that “ there were fiftjrfive different purchasers at public sales and eight different purchasers at private sales,” making in all sixty-three purchasers, some of whom bought two or more of the eighty-three parcels of land. Adopting the opinion of Mr. Justice Gibson in Ramsey v. Alexander, 5 S. & R. 337, and treating each of said purchases as a separate sale, he awarded to the appellant, clerk of the court, a fee of $3.00 on each of said sales, making the sum of $189. This was excepted to, and the learned judge of the orphans’ court, considering himself bound by the opinion of Chief Justice Tilghman in Ramsey v. Alexander, supra, sustained the exception and awarded appellant a single fee of $3.00 “for the whole proceeding,” treating the several distinct sales to different purchasers as merely one sale of decedent’s real estate. In doing so he said : “ If we were permitted, as the learned auditor has done, to consult our own feelings in the matter, irrespective of the rule of stare decisis, we should sustain his report and dismiss the exceptions, as in our opinion the compensation allowed by law is entirely inadequate for the services of the officer in this case. But the court .... is bound by the rulings of the Supreme Court, and until the case of Ramsey v. Alexander, supra, is overruled, it is our plain duty to obey the law as it is interpreted for us by our highest court.”

If the single question now before us had been expressly ruled by this court in the case referred to, there would be some force in the position assumed by the learned judge ; but, neither that, nor any other question of similar import was passed upon by this court, because, as to the construction of the clause above quoted, the two judges, who alone heard and considered the case, differed in opinion, and hence the decree of the orphans’ court was permitted to stand, except as to matters in which both judges concurred. In other words, as to the question of construction now before us, the decree of the court below stood as affirmed by a divided court. That is not a decree or judgment of this court, in support of which the rulé of stare decisis can be successfully invoked. That principle applies only to

actual judgments or decrees of this court, and not to judgments or decrees of inferior tribunals which are necessarily allowed to stand as final because of an equally divided appellate court. It therefore follows that, in construing the clause above quoted, we are not embarrassed by any prior decision involving the same or even a similar question.

We are clearly of opinion that the clause referred to was rightly construed by the learned auditor, and his report, awarding appellant $189, or a fee of $3.00, for each of the sixty-three separate sales of decedent’s real estate, made and confirmed to the respective purchasers. As was clearly shown by Mr. Justice Gibson, in the case above cited, that is the only construction of the clause in question that gives proper effect to the legislative intention.

Decree reversed with costs to be paid by the appellee, and it is ordered and decreed that the report of the auditor be confirmed and the fund be distributed in accordance therewith.