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Opinion,

Mjr. Chief Justice Paxson :

It may have been the legislative intent, when the act of May 28, 1874, was passed, to abolish the office of school treasurer in cities of the third class, but it was not done, and there is no clear expression of such intent in the act itself. On the contrary, the forty-second section thereof provides that “ the city treasurer shall ex officio be school treasurer, and before entering upon the duties of his office shall give bond to the school directors, conditioned for the faithful performance of his duties, in such amount as the board shall direct and with such sureties as shall be by them approved, and.....taka and subscribe an oath or affirmation of like nature as that prescribed for the city treasurer.”

This language is clear, and leaves no room for doubt that the office of school treasurer remains an independent office, not, affected by the act of 1874. It is true it is now filled by the city treasurer; he is ex officio school treasurer, and acts in a dual character; he gives bond for each office, and takes a separate oath of office for each. As city treasurer his salary is fixed at $4,000; can he also claim the salary or compensation affixed by la\v to the office of school treasurer ? We see nothing to prevent it, unless it has been taken away by an act of assembly. This has not been shown. The defendant claims to retain the sum of 86,231.65, as his compensation under the act of May 8, 1854, until such time as his compensation shall be fixed by the board of school controllers, as provided by the act of 1854. They may fix it at any sum not exceeding two per centum upon the amount of school taxes collected. The school controllers have refused to fix his compensation, alleging, as we understand it, that he is not entitled to any pay whatever, be*210yond his salary as city treasurer. For the reasons given, we do not think this position can be sustained. We are of opinion that the court below took the proper view of it.

This decision does not entitle Mr. Simpson to the whole of the fund retained by him. The school controllers may fix his compensation at any amount less than that sum. All the court below decided, and all we decide, is that, until his compensation is fixed, he has the right to retain the sum referred to. The school controllers have practically the amount of his compensation under their control, and, if it is thought that he* o.uglit' not to be entitled to any pay beyond his salary as city treasurer, the legislature can say so, and end the matter so far as his compensation for the future is concerned. This has not yet been done.

The foregoing expresses our view of the law of this case. The fifth assignment was intended to reach the form of the proceeding below. The record shows that the plaintiff excepted to the order framing an issue. The assignment, however, only goes to the replication. It is too plain for argument that it was a mistake to have awarded an issue. There was .nothing but a question of lawr to be decided by the court. There were no disputed facts for a jury to try. Hence it was clear error to award an issue. Had the assignment of error been as broad as the exception, we would have been compelled to reverse the case. And while we might still do so, for the reason that the replication ordered by the court does not meet the plaintiff’s case, we can see no good reason why we should do so. It would only lead to further litigation, and as we have the question of law presented, although in a singularly indirect and inartificial manner, we have concluded, though not without hesitation, to decide the case as it stands.

Judgment affirmed.

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