Commonwealth v. Hershey

Opinion by Mr. Justice Fell, We agree with the learned judge of the common pleas that the sureties on the bond of the county treasurer given to the state under the act of 1834. are liable for his default in not paying to the state treasurer the four-mill tax assessed on the owners of mortgages, judgments, etc., under the act of 1891; and that the county having paid the state the amount of the treasurer’s default, may recover from his sureties on the state bond. No tiling can profitably be added to the full and able discussion of the subject found in the opinion filed. We cannot however accept the conclusion reached as to the amount for which a recovery may be had in this action. The tax collected by the county treasurer for the state was $83,930.83. This sum was paid to the state by the county after the treasurer’s defalcation and before this action was brought. The county immediately received back from the state $62,318.65, being three fourths of the tax, less the treasurer’s commission, returned to the county under the provisions of the act of 1891, making the net payment by the county only $21,612.18. This action is founded on the right of the county to be subrogated to the use of the remedies which the state had to secure the payment to it of the tax collected by the treasurer. The right of the county is, of course, no higher than that of the state and it cannot in any event recover more than it lost by reason of the failure of the treasurer to perform his duty to the state. In an action by the state against the county, under the facts as they appear, the prinicples stated in the opinion in Commonwealth v. Philadelphia, 157 Pa. 531, would limit the recovery to the difference between the whole tax charged and the amount of the tax which the state was required to return to the county. If the treasurer had complied with the law and paid the tax and received back three fourths thereof, the county would have been $21,612.18 better off, and this was all it was.required to pay because of his default in this particular. To charge the defend 311 ants with the whole tax, $83,930.83, is to charge them with $62,318.65, which the treasurer would have received from the state as county treasurer, and for the safe keeping of which they were not responsible. In other words if the treasurer had complied with the law as regards the state, he would have paid out $21,612.18 more than he would have received back as county treasurer; his failure in this regard cost the county $21,612.18. We are not adjusting the equities between the sureties on the county bond and those on the state bond, but dealing only with the strict rights of the parties to this action. In this view of the case the proportion of the whole loss because of the treasurer’s defalcation which should be borne by his sureties on the state bond is $10,666.43, and the judgment entered is reduced to this amount with interest from February 2, 1900. With this modification, the order of the court is affirmed.