Lancaster County v. Hershey

Opinion by Mb. Justice Dean, Emanuel H. Hershey was duly elected county treasurer of Lancaster county. To qualify he gave two bonds, one to the commonwealth and one to the county of Lancaster, the latter in sum of $100,000 ; among the conditions of this bond were these, that he would keep full accounts and that on expiration of his term, he would deliver to his successor all books, papers, documents and all other things held by him in right of said office and pay to his successor any balance of money belonging to said county. The other bond was to the commonwealth in the sum of $60,000, conditioned to keep safe and account as directed by law for all moneys received by him for use of the commonwealth. The treasurer’s term of office expired the first Monday of January, 1900, when his successor was duly qualified and assumed the duties of the office. Hershey turned out to be a defaulter, altogether, to the amount of over $65,000. The amount due the commonwealth was ascertained to be $10,666.43. See Commonwealth v. Hershey, 200 Pa. 306. For this amount the commonwealth obtained judgment and the sureties paid it. This amount with some commissions added, deducted from the whole amount of the default, left the balance due the county $61,104.62, the amount for which the court below entered judgment against the treasurer and his sureties on the county bond in this case. The judgment was entered for want of a sufficient affidavit of defense. The two sureties, C. H. Hershey and Amos Hershey, bring this appeal. There are thirteen assignments of error, most of them to the correctness of the court’s method of ascertaining the balance due the county, and the soundness of its conclusions of law based [353] on the admissions expressed or implied in the affidavit of defense, also on the proper effect to be given the judicial determination in Commonwealth v. Hershey et al., supra. A careful scrutiny of the very clear opinion of the court below and an examination of the authorities cited in it leads us to the firm conclusion, that all of the assignments of error except the fifth are without real merit and should be overruled. The fifth raises some doubt and demands special notice; it is as follows: “ The court erred in holding that the suit was not prematurely brought, and the fact that no prior auditor’s report was filed before its commencement does not make this proceeding void.” Although the county auditors did settle and adjust the accounts of the county treasurer before the judgment was entered, they had not yet acted in the matter at the time the suit was brought, therefore, it is argued, the suit was premature and must fail. Section 48 of the act of 1884 says : “ The auditors of each county, and two of them when duly convened shall be a quorum, shall audit, settle and adjust the accounts of the commissioners, treasurer, sheriff and coroner, of the county, and make report thereof to the court of common pleas of such county together with a statement of the balance due from or to such commissioners, treasurer, sheriff or coroner.” This section was not for the protection of the officer or his sureties ; its purpose was the protection of the public; the accounts of the officer must not be left solely to his determination; they must undergo the scrutiny of a board of officers elected by the people entirely independent of him, and having no interest in common with him. This is apparent from the proviso to the act of February 18, 1871. A vicious custom had grown up in some of the counties, of electing as one of the auditors the county treasurer; that proviso expressly prohibits it. The finding of the auditors, may, or may not change the accounts of the officer so as to affect his or his sureties’ liability; their finding might, if not appealed from, absolutely determine a breach of the bond, when by the officer’s own account no such breach was shown. This suit was brought February 9, 1900; there was no auditor’s report until August 21 of that year and if the question, as to whether there is a breach of the condition [354] of the bond, is determinable solely by the adjudication of the auditors, of course the suit was preznature ; but as we have intimated, that board does not alone determine that fact; we must go back of it and take notice of the law defining the officer’s duties and the obligation of his sureties. Section 38 of the act of April 15, 1834 says : “ Each county treasurer shall give bond with sureties .... conditioned for the faithful performance of the duties of his office; for a just account of all moneys that znay cozne into his hands on behalf of the county: for the delivery to his successor in office of all books, papez-s azid docuznezits and other things, held in right of his office and for the payment to hizn of any balance of money, belonging to the county remaining in his hands.” It will be noticed that in addition to the general duty of faithful performance, he is to do three specific things : 1. Keep a just account of all moneys that come into his hands. 2. Deliver to his successor all books, papers and documents held in right of his office. 3. Pay over to his successor any balance of couzity money remaining in his hazids. And such were the conditiozis of the bond, which conditions his sureties undertook he would pei’form. It is ziot matezial that the written obligation in the bond does not exactly follow the words of the statute; it was a statutory bozid given uzzder and by the provisions of the statute and the liability assumed by the sureties was the one fixed by the statute. No breach of the first and second specific duties is alleged ; the officer did keep accounts, he did deliver to his successor the books and papers held in right of his office; but he failed to perform the third specific duty, pay over to his successor the balance of the county money izi his hands. How do we know this ? We aziswer, from the public account books, which the law enjoined upon him as a duty to keep and which he handed over to his successor; they were not his individual books, they belonged to the public and were kept for a public purpose; they showed a large balance izr his hands belonging to the county: he did not pay this to his successor. Why was not this a breach of duty for which the sureties were at once answerable ? It is answered that the auditors had not yet settled and adjusted his accounts. But this did not postpone the performance of a plain statutory duty on the part of the of [355] fleer. The accounts which the law directed him to keep, and which he did keep and handed to his successor showed a large balance in his hands. This public account kept by an officer was just as much an account authorized by law as the report of the county auditors. True, that report might increase the balance or on evidence of some mistake shown by the officer lessen it, but prima facie his account showed the balance of money in his hands belonging to the county. The county so assumed and brought suit. Afterwards, the county' auditors made adjustment but made no change in the balance; even if they had changed it, that fact would not have affected the prima facie proof of the breach growing out of the distinct unequivocal admission of the officer in the lawful account kept by him. It is conceivable that the county auditors might not have met for a year or more. Is the outgoing officer to retain a large balance of the public money to the possible great prejudice of the public during that interval ? That is, would the neglect or inability of one set of officers to perform their duty suspend the obligation to perform a plain duty on the part of another ? The bond of the sureties, by the express terms of the act, was that the officer should pay over to his successor immediately, the balance on hand, not such sum as in the indefinite future the county auditors might find to be in his hands, when his term ended. This, from the plain account kept by himself he failed to do, and the suit might at once be brought. We do not undertake to decide in this case, what would have been the proper course of the county had the treasurer failed to perform any one of the three special provisions of the bond, that is, had not kept accounts, had not handed them to his successor and had not paid over the balance ; such default raises a different question and one not before us. The authorities cited by appellant are not in point; they are all under other statutes with other provisions as to other officers with other duties; we decide the case on our statute prescribing specifically the duties of the officer, the conditions in his bond, and the undisputed fact of his default from the official account kept by him. The opinion of the learned court below fully demonstrates the soundness of the judgment and it is affirmed.