Commonwealth v. Evans

1 Foster 277 | Pa. | 1873

The opinion of the court was delivered, July 2d 1873, by

Sharswood, J. —

These are writs of error by both parties to a judgment of the Court of Common Pleas of Dauphin county, upon the verdict of a jury rendered in a suit by the Commonwealth against George 0. Evans. The case Avas tried by the learned president of the court with his accustomed ability and impartiality. We have examined carefully all his rulings on the subject of evidence which have been complained of in this court by either party, and find nothing upon which he can be convicted of error. Nor can any of the errors assigned to his answers and charge be sustained, except as to three points, Avhich in different forms appear in several of the specifications by the Commonwealth. It will be unnecessary to consider these several specifications more in detail.

We are of the opinion that the defendant below was a public officer within the purview of the first section of the Act of July 12th 1842,- Pamph. L. 339, which excepts from the provisions of that act, abolishing imprisonment for' debt, proceeding for the recovery of “moneys collected by any public officer.” It may sometimes, indeed, be a difficult matter to distinguish between a public officer and a person employed by the government to perform some special service by contract. It is clear that it is not all public debtors who are within the exception of the Act of 1842, nor all parties, who, under the Act of March 30th 1811, 6 Sm. L. 225, are bound to account to the auditor-general. But we are of the opinion that all persons who, by authority of law,, are intrusted with the receipt of public moneys, through whose hands money due to the public, or belonging to it, passes on its way to the public treasury, must be so considered, by whatever name or title they may be designated in the laAv authorizing their appointment, and Avhether the service be special or general, transient or permanent. It is quite unnecessary to discuss the authorities Avhich have been cited upon this point. None of them bear any resemblance to this case, except, perhaps, The United States v. Maurice, 2 Brock. 96, and that, Ave think, sustains the conclusion at Avhich we have arrived. It Avas there held, that an agent for fortifications, appointed under the army regulations, which had received the sanction of Congress, was a public officer from whom the government had a right to exact an official bond with sureties, and that such bond was therefore a valid obligation. The appointment there as here was for an indefinite period. Nor does it seem to us to distinguish this case from that, that this appointment was to collect a single claim, or rather a set of claims against a particular debtor. No one can doubt that collectors of public taxes are within the letter of the exception of the Act of 1842. Suppose a special tax laid for a temporary purpose, is it susceptible of any more doubt that a person appointed by authority of law to collect such tax — call him special collector or special agent — would be equally within the exception, and moneys collected by him be “moneys collected by a public officer?” Can it make any difference that a person is commissioned by the governor as a general agent to collect all claims of the Commonwealth, or as a special agent to collect only one particular claim? We think not. Mr. Evans was appointed by virtue of a joint resolution of the legislature, approved March 22d 1867, Pamph. L. 1848, by which it was provided that the governor be and is hereby authorized to appoint a special agent to collect the disallowed and suspended claims of the state against the United States. Under this resolution the governor appointed Mr. Evans, and very properly issued and delivered to him a commission under the great seal of the state. This commission is in the usual form of an official commission. In like manner he required of him to give bonds with two sureties. The bond is to the Commonwealth, and is conditioned that “ the above bounden George 0. Evans, special agent as aforesaid, shall faithfully perform his official duties under said joint resolution.” It is an official bond. It is true that it does not appear that he took the oath required of all officers, executive and judicial, by the eighth article of the Constitution, but it does not follow that he was not bound to take such oath in order to render his qualification complete: Riddle v. Bedford County, 7 S. & R. 386. He certainly had official duties under the joint resolution, as his bond acknowledged, which, when he accepted the position, he was bound to perform with fidelity. It is not a case of service rendered to the Commonwealth under a contract. The joint resolution did not empower the governor to make any contract, and as the learned judge rightly decided upon an offer of evidence, he had no authority outside of the resolution to do so. Even if the fact were that Evans did enter into a contract or contracts with the governor and auditor-general, it did not change his character and responsibility as an officer. “ If,” says Mr. Chief Justice Marshall, “it may be converted into a contract, it must be a contract to perform the duties of the office of agent, and such an office must exist with ascertained duties, or there is no standard by which the extent of the condition can be measured.” 2 Brock. 103. A contract to perforin the duties of an office is implied on the part of every person who accepts it: 3 Bl. Com. 165. We think, therefore, that the moneys collected by Evans were moneys collected by a public officer within the exception of the Act of 1842, and the learned judge below ought so to have instructed the jury, and not that the defendant was entitled to a verdict in his favor on the second count of the declaration.

There was a further error in the charge upon the subject of the compensation of Evans for his services in the matter of the claims placed.in his hands for collection by Auditor-General Hartranft. The jury were directed, “you must fix the amount, and can say that it shall be three, five or ten per cent, as you may think just and reasonable.” He had before rightly directed the jury that the defendant could not be allowed more than ten per cent, on the amount actually collected by virtue of his appointment under the joint resolution. He does not in this case limit the commission to the amount actually collected. But' we think it clear from the letters of Governor Geary to Auditor-General Hartranft, dated March 29th 1870, and from the paper signed by the latter, dated March 30th 1870, that the vouchers for these claims were handed over to Evans as the special agent, under the joint resolution requiring the auditor-general to-furnish him with these vouchers. Governor Geary names and describes him as “ special agent of the state under the joint resolution of the legislature of March 22d 1867,” and Auditor-General Hartranft carefully stipulates that his compensation for these services shall be “ out of the commission of ten per cent, allowed by the joint resolution that is, as we think it must be, reasonably construed; the services rendered in the matter of these claims shall be considered in determining the rate of commission to be fixed under the joint resolution, and not in the whole to exceed the maximum of that commission,- since it is to be paid out of it.

One other point remains to be considered upon the subject of the forfeiture by Evans of his right to any commission. The learned judge undoubtedly laid down the rule correctly as between private principal and agent. But that was not the relation between the Commonwealth and Mr. Evans. Admittihg even that he was not a public officer, it cannot be questioned that he was an agent liable to account under Act of March 30th 1811. The first section of that includes, as such, expressly, “ persons intrusted with the receipt, or who now or hereafter may become possessed of public money.” Evans indisputably fell within this category. The fourteenth section of that act provides “that no allowance for commissions shall in any instance be made by the accounting officers, in case of refusal or neglect to furnish accounts.” It cannot, with any show of reason, be maintained that this provision applies only to the accounting officers. It is a rule of forfeiture, applicable in all cases between the state and her agents, who are bound to account, and is to be applied whether the question arises upon an appeal from a settlement or in a common law action, if the Commonwealth chose to resort to that remedy. The legislature has laid down a very simple and just rule — essential to the safety of the state — and which can never work injustice to her honest agents. She ought in no case to be compelled to pay double or treble commissions for the collection of her claims — first to the original agent, and then to the agent or attorney employed to collect of that agent, and so on, as it may be, until the whole claim is exhausted in commissions. The simple rule laid down, and which she has an undoubted right to lay down, is to furnish accounts. She says to her agents, report the amount you have collected — make whatever offsets you may thing yourself entitled to; the accounting officers will then have the means of making a settlement with you, and if you are dissatisfied with their decision you can appeal. Evans was bound, under the Act of 1811, to account promptly— at least within a reasonable time, and besides, it was a part of the condition of his official bond that he would “ make semi-annual reports to the state treasurer of the amounts collected, and of the sources from which derived.” It is not pretended that he made any reports or furnished any accounts within any reasonable time or within the time named in his bond. He received from the United States, May 1st 1867, $78,516.39; October 27th 1868, $105,651.46, and August 20th 1870, $136,846.09. He furnished no accounts whatever until July 21st 1871. He said on his examination as a witness in court: “I reported to the governor how I was succeeding in my collections. I did not report in writing, because it was not considered expedient, and against the interest of the state. The state had a large balance unsettled, and if reported and got into the newspapers would damage our claims. The governor requested that no public report should be made for the good of the state to facilitate the claims.” Governor Geary was not alive at the time of the trial to meet this allegation. It is too clear for argument that the governor had no power to release the agent from one of the plainest of his duties, as well as the condition of his official bond, upon any such notion of expediency. The attention of the learned judge does not appear to have been distinctly called to the provision of the fourteenth section of the Act of 1811, and if this was the only .question in the cause we might hesitate to reverse upon it. It is, however, necessarily involved in the answer to the defendant’s fourth point, which forms the subject of the sixth assignment of error by the Commonwealth.

Judgment reversed, and venire facias de novo awarded.