Lancaster County v. Hershey

• Decision Date: 20 April 1903
• Docket Number: 153
• Citation: 205 Pa. 343,54 A. 1038
• Parties: Lancaster County v. Hershey, Appellant
• Court: Pennsylvania Supreme Court

54 A. 1038

205 Pa. 343

Lancaster County v. Hershey, Appellant

No. 153

Supreme Court of Pennsylvania

April 20, 1903

Reargued February 2, 1903. [Copyrighted Material Omitted]

Appeal, No. 153, Jan. T., 1902, by defendants, from order of C. P. Lancaster County, Feb. T., 1900, No. 85, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Lancaster County v. Emanuel H. Hershey C. H. Hershey, Amos Hershey, Jacob L. Brubaker and Joel S Eaby. Affirmed.

Rule for judgment for want of a sufficient affidavit of defense.

LANDIS, J., filed an opinion which was in part as follows:

Emanuel H. Hershey, having been elected treasurer of Lancaster county, before entering upon the duties of his office, gave two bonds, one to the county of Lancaster, in the sum of $100,000, conditioned to "faithfully perform all the duties of the said office," to "keep safe and render just and true accounts of all moneys that shall come into his hands on behalf of the said county," and to "deliver to his successor all books, papers, documents and all other things held by him in right of said office," and to "pay to his successor in office any balance of money belonging to the said county;" and the other to the commonwealth of Pennsylvania, in the sum of $60,000, conditioned to "keep safe and account, as directed by law, for all moneys received by him for the use of the said commonwealth," and to "faithfully discharge all duties enjoined on him by law in behalf of the said commonwealth of Pennsylvania." His term of office expired on the first Monday in January, 1900, and his successor, Jacob Stoner, then assumed the duties of the office. He proved to be a defaulter, the amount of his deficiency being $65,037.94. From this the plaintiff, in its amended statement, admits there should be deducted certain commissions and allowances. It is not assumed that any moneys came into his hands which were not covered by one of these bonds, and the present proceeding is to ascertain the liability on the county bond.

In Commonwealth to the use of the County of Lancaster v. Hershey et al., 200 Pa. 306, the liability on the state bond was fixed at $10,666.43, and judgment was entered for that amount. That case conclusively settles the law as to the liability of the state bondsmen, and it would be futile for us to again enter into a discussion of that question. [It would, therefore, seem to follow, as a corollary, that, if the whole default was $65,037.94, and the state funds included in that amount and which the state bondsmen were compelled to pay were $10,666.43, the difference, less the deductions above referred to would be the amount of county moneys not paid over, and, therefore, that would be the liability for which the sureties on the county bond are now responsible.] It must, of course, be conceded that the judgment in the case against the state bondsmen cannot absolutely determine the rights of the sureties on the county bond; but the principles decided in that case must necessarily be effective against these defendants, if the facts as here presented are similar to those coming before the court in that proceeding. If, therefore, no new legal difficulties would intervene, we would be bound to render a judgment based upon the conclusion there laid by the Supreme Court, and it only then remains for us to investigate what additional objections have been here interposed to prevent the entry of such a judgment which were not presented at the hearing of the other case. . . .

It has, however, been strenuously urged that no suit could be commenced upon the bond until the county auditors had first settled the treasurer's accounts. We have carefully examined the numerous cases, which, through the industry of the learned counsel for the defendants, have been cited upon this point; but among them we fail to find a single one which supports the proposition in its entirety. It is true that it has been held that a settlement, when once made by the auditors, is conclusive between the officer and the county, unless appealed from in accordance with the statute, and, where the auditors have thus adjusted the account, the officer could neither maintain an action against the county for items not included in the settlement nor the county against the officer: Siggins v. Commonwealth, 85 Pa. 278; Blackmore v. County of Allegheny, 51 Pa. 160; County of Schuylkill v. Boyer, 126 Pa. 226; Westmoreland County v. Fisher, 172 Pa. 317; Northampton County v. Herman, 119 Pa. 373. These, however, are not the real questions, as we understand them, which are now presented for decision.

[Suit here is really brought against the sureties alone, there being no personal service upon the principal, who, prior to the issuing of the writ, had left the jurisdiction, although technically he has been served by leaving a copy of the writ at his residence.] [It is asserted, and not denied, that subsequently to the bringing of the suit the county auditors audited his accounts and found the balance due as is claimed by the plaintiff.] At best, then, if no judgment could have been recovered until after the holding of such an audit, what was there in either the acts of assembly, or the decisions of the court, to prevent the bringing of the suit, and then awaiting such an adjudication before entry of judgment? Some inconvenience and great danger of loss might attend any other construction of the law. If, as in this case, one of the sureties was dead, leaving real estate, and the period of two years was approaching since his decease, after which time his debts would cease to be a lien upon the same, the neglect or inability of the auditors to settle finally the account before that period had elapsed would bring about the loss of the security, and perhaps wholly take away the protection of the public, were there not others upon the bond of equal responsibility against whom it could be enforced. If, too, as has been forcibly said, an appeal was taken from the settlement, years might elapse before a final disposition of it, and, in the meantime, all the county's money, whether in dispute or not, could be retained by the outgoing officer, to the great prejudice and injury of the county, and perhaps to an impairment of its credit. [It is true that in Branch Township v. Youndth, 23 Pa. 182, it was held that, where one of the supervisors of a township was appointed to collect the road taxes and gave bond with sureties, no action would lie against the sureties without a previous settlement of the account of the collector by the township auditors. This proceeding was, however, under a special act of assembly, and the same principle does not, as we think, apply to a case such as that now under consideration. But, even if it does, we strongly doubt whether it is well considered.]

The acts of assembly which direct that official bonds of public officers shall be sued for in the name of the commonwealth would seem to refer to those bonds such as are given by the prothonotary, register, recorder and the like, in which the individual citizen has an interest for which he can maintain an action upon the bond for his use. Even this direction is not, however, compulsory, for in Clarke v. Potter County, 1 Pa. 159, GIBSON, C.J., says: "Nor is it an available objection that the bond is not payable to the commonwealth instead of the county. Though the 6th section of the act of 1836 directs how an official bond to the commonwealth shall be sued, it prescribes not what bonds shall be given to the commonwealth as a trustee; and the 33d and 34th sections of the act of 1834, which require the treasurer to give one bond for his duties to the county and another for his duties to the commonwealth, are silent as to the person of the obligee. But it seems to be most natural and proper to give them respectively to the agents of the interests to be secured by them; in other words, to the county or the commonwealth, as the case may require." [In like manner the Act of June 14, 1836, P.L. 637, would seem to have no application to cases like this. That act provides for the assignment of specific breaches of the bond, and the purposes intended to be subserved are those which refer to such public officers, executors and administrators and the like, whose bonds are given for the benefit of individual interests, and may thus be used.]

The bond of the county treasurer is, however, somewhat different from other bonds. It is for the protection of the county alone, and is, therefore, given by virtue of the 33d section of the Act of April 15, 1834, P.L. 537, to the satisfaction of the commissioners, conditioned "for the faithful performance of the duties of his office, for a just account of all moneys that may come into his hands on behalf of the county, for the delivery to his successor in office of all books, papers, documents and other things held in right of his office, and for the payment to (by) him of any balance of money belonging to the county remaining in his hands." No individual can reap any benefit from it, nor can a default entail any individual loss, except that which may fall upon the sureties upon being compelled to pay. It is true that by the 48th section of the same act it is provided that "the auditors of each county, any two of whom, when duly convened, shall be a quorum, shall audit, settle and adjust the accounts of the commissioners, treasurer and 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;" and section 55 says: "The report of the auditors shall be filed among the records of the court of common pleas of the respective county, and from the time...