2 Rawle 40 | Pa. | 1829
The opinion of the court, which embraces all that is material in the case, was delivered by
— By the act of assembly of the 30th of March, 1791, auditors were to be appointed amicably to settle the accounts of
Section fifth provides: “That the said auditors having examined and settled the said accounts, to the best of their skill and ability, shall report the same with the respective balances due, to, or from such commissioners or treasurer, to the next County Court of Common Pleas for such county, who shall thereupon cause such report and settlement to be filed among the records of said court: and such report, from the time of being so filed, §hall have the effect of a judgment, on the lands, tenements,, and hereditaments of such com.missioners or treasurer, who shall thereby appear to be indebted: and, if within sixty days after such report, made and filed, the said commissioners or treasurer, their-executors, or administrators, or any of them, shall enter their appeal in the said court, from the said settlement, or any part thereof, it shall be lawful for the court to direct an issue, wherein the commonwealth shall be made plaintiff or defendant, as the case may require, to he tried by a jury during the next term, upon whose verdict, final judgment shall be entered.” -It then goes on to prescribe the bail to be entered by the party appealing.
Matthew Brown was treasurer of Lycoming county, in the year 1826; and an account, finding him indebted to the county, was settled by the auditors on the Slst of January, 1827, and this report given to the Court of Common Pleas, who ordered the same to- be filed. By this report, Mr. Brown was found indebted to the county two hundred ■ and thirty-three dollars. He appealed 'in due form; and, on the trial of the issue, several points arose, which are the subjects of this writ of error. After the jury were sworn, the plaintiff’s counsel offered to read and show to the jury, the account-of Matthew Brown, treasurer, &c., as filed in the office of the prothonotary, according to law. This was objected to; and the court admitted the repcjrt of the auditors, order of,court to file, &c. and the appeal; to show what were, the report and proceedings till this time, but not to establish any one item charged in the said report against the treasurer. This formed the subject of the first bill of exceptions', but was not insisted on here, and ought never to have been taken. In those proceedings specially prescribed by act of assembly, and not commenced in the ordinary course of law, it is right that the nature of the dispute, the manner in which it came before the jury, and what is before the jury, should be understood by them; and, with the limitation prescribed by the court, nothing would so clearly and satisfactorily show this as the course taken. The plaintiff then offered to adduce evidence, to prove the items of which the debit side of the account was composed. This was objected to on the following ground, and this was the only matter on which this court were seriously called on to decide: — -The auditors
“I do hereby protest against the passage of the above account; because, it is incorrect in part,, contrary to law in part, and because the compensation allowed Mr. Brown, is unnecessarily extravagant.
“TV. R. Powers.”
Afterwards, one of the auditors who had signed the account, changéd his opinion. The account, as copied into the .auditor’s book, had a cross put on it, and. this auditor took his name from the.account made out and signed for the purpose of being given to the court to be filed; .The auditors met again, and on the 31st of January, 1837; two of them signed the report which was given to the court, and filed, and which was appealed from, and was now trying.
The defendant’s counsel showed the court this cancelled account of the 5th of January, 1837, and the same account in the auditor’s book, crossed; and, insisted it was conclusive; that the auditors, or a majority of them, having once agreed on a report, copied it into the book,'and signed it, without having handed it to the court, were bound — they could not revise or alter it. The court held this not to be the law, -and admitted- the plaintiff to prove the items of the debit side of tlié account, and to this the second bill-of exceptions was taken.
We are of opinion there was no error. . I can see no ground in reason, why any referees, or arbitrators, who have made an award or report, may npt, before it is finally delivered to the parties, or the court,- reconsider it, and if found wrong, change it. There is nothing.in the act, or acts of assembly, which will forbid this, in the case of county auditors.. They are to examine and settle the account “to the best! of their skill and ability;” and their report is not to be instantly filed, but to be reported to the next court. Reason, and justice to-themselves, and to the county, and the parties, unite in permitting them to. use their skill and abilities, until the ' report passes from their hands to .the court. It was not necessary that, this account should go to the commissioners; and, if it did reach their office, they were bound to know, that until given to the court, and ordered to be filed and recorded, it was npt conclusive. The account settled by the auditors, has been, in -some, degree, confounded in the argument, and, is too often confounded with an account, directed by the fourteenth section of the act of assembly of the Hth of Jlpril, 1799. This latter act directs'the treasurer, if re
The first account settled by the commissioners with the treasurer, is not conclusive on the auditors; .and. the report of the auditors, even when made to the court, and by them ordered.tó be filed among the records; is not conclusive. An appeal within sixty days is given, and if taken in the manner prescribed, the whole is investigated anew before a court and jury, in the county, and this again may go to the Supreme Court, . ,-
The two accounts agreed to a cent in the amount of-money received- by the treasurer from collectors in the county,- and from the owners of unseated lands for county and road tax; and, also, in the amount of the orders paid by the treasurer; but,-two orders, drawn by the commissioners in favour of the treasurer, and for which he asked credit for the amount retaiüéd, were struck odt of the account in the second report made and filed; and, also, rejected by ■ the court and jury. One of them was an order; drawn by the commissioners-in favour of the treasurer, for his time arid expenses in going to Philadelphia, to collect the taxes due by the owners of unseated lands. Ik is a practice of many years’ standing, for the treasurers of the counties containing much unseated land, to go to Philadelphia in the winter, and give notice generally, that they are in the city, by a note in the newspapers, and their books being with them, the owners of the unseated lands, dr many of them, call; examine their accounts and pay them. The treasurer often receives large sums in this way. The 14th section of the act of assembly of the 11th of Jlpril, 1799, above cited, directs, that the commissioners shall'allow the treasurer -so much per cent, on all monies received and paid by him, as they shall, from time to time, deem sufficient for his services, which being approved of by the auditors aforesaid, shall be in full for his services as. treasurer. Where a positive law prescribes the manner and nature of the payment to be made to an officer, the directions of the law are, and ought to be, the only rule. We had at one time, in this state, a custom of admitting, under the
Another difference in flip two accounts arnsp from this: — The first account, by mistake, we must suppose, gave the treasurer a per cent, on the amount of road tax assessed, instead of on the amount of road tax received and paid over by the treasurer. It was not alleged here, that there was any error in correcting this.
Much was said about the power of a court and jury, and something about the power of auditors to change the rate per cent, agreed on by the commissioners, as compensation to the treasurer. The act .above cited, expressly requires, that the compensation agreed on by the commissioners, be approved by the auditors. The terms “being approved by the auditors,” imply an exercise of judgment; and, the right of appeal from the report of the auditors, Is general to the whole account, or any part of it. I dp not see how this court can make this an exception. At the same time, T know it is usual for an understanding to exist, in most counties, that every treasurer shall receive a certain rate per cent, on monies received and paid; and, I would not, without strong reasons, depart from what may fairly be considered a contract, if not express, at least, clearly implied. But where, as in Lycoming county, this rate varies with every treasurer, according to some principle not generally known, or acknowledged,'or according to no principle, the right to revise and control it, is a wholesome provision.
A great deal was said on a subject which-was not expressly alleged as error, but which is too important to be passed over. It was proved at the trial, that Mr. Brown did not attend before the auditors while they were making out the report of the 31st of January; and the assertion was often repeated, that he had no notice that the auditors were about to meet and revise the account. If they did proceed without giving him notice, it was grossly wrong. The act which gave them authority, required them to give notice, and empowered them, after notice given, to proceed ex parte, if the treasurer did not attend.
But I am by no means satisfied he had not notice. The auditors were not examined in court. This point was not directly made there, -perhaps not mentioned; and, from taany parts of the case, I would infer, that he had notice, and refused to attend.
Judgment affirmed,