Commonwealth v. Porter, 21 Pa. 385

21 Pa. 385 | Pa. | 1853

The opinion of the Court, filed was delivered by

Lowrie, J.

— This case came up and was decided here two years ago; 17 State Rep. 14; and it now comes up again and we are asked to reconsider that decision. We have done so, and are fully convinced that it is our duty to say that it cannot be maintained without serious injury to well settled .principles.

Under our laws the auditor-general, aided by the state treasurer, and, when necessary, by the governor, constitutes the tribunal that is to examine, adjust, and decide upon all claims of the state against its revenue officers, subject to an appeal to the general judiciary. But no appeal is allowed without a specification of the objections to the decision complained of. In this case the accountant filed a specification of objections to the priricipal items of the account as stated by the auditor-general, but none to the item of interest. How then could the question of interest be raised on the appeal ?

That it could not be, has been several times directly decided: 1 Penna. Rep. 252; 6 State Rep. 124; and this is one of the most plain and common principles of administrative law: 7 Ser. R. 276; 2 State Rep. 153; 6 Id. 483; 1 W. & Ser. 480; 5 Id. 385. It is the rule always practised on in relation to reports of auditors, masters, and arbitrators.

It is said, however, that the objection to the charge of interest was unnecessary, because the objection to the principal includes it as an incident. True enough, so far as it is an incident, and therefore, if’ the objections to the principal or part of it had prevailed, there would have been a proportional deduction of the interest. But then on the other hand, and on the same principle, an unavailing objection to the substance could not affect its shadow. And when we have both shadow and substance, he that objects only to the substance, assumes that the two are inseparable. It is only by a special objection that the mind of the Court can be led to inquire whether, the principal being proved or admitted, the charge of interest is improper.

Besides this, the question of the liability of a revenue officer for interest was erroneously decided. It tends only to confusion in such a case, to talk of the faults of other officers, or the hardship of the case, for the question of interest does not arise until it is found that the accountant is in default. This case is that of an officer whose duty is merely to receive and pay over to the state treasurer part of the state revenue, and he has failed in paying over. Must he pay interest for his negligence ? On mere common law principles unquestionably he must: 4 Dall. 286; 6 Binney 266; 6 State Rep. 290 ; 1 Ser. & R. 179; 9 Id. 422.

In such' an inquiry, it is always relevant to notice the functions of the officer. Here it is a state revenue officer, a county treasurer, who receives money from collectors and others, and is required by law to pay over in July and December all moneys in his hands: Act of 15 April, 1834, § 40, P. L. 544. Without this law, his duty as to paying over would have been no less ; for it is a necessarily implied duty of such an officer to pay over the revenue as fast as sums, of a reasonable amount for remittance, come to his hands ; and a public, as well as a private, agent is chargeable with interest for a breach of such a duty. It is just like the case of an agent withholding his principal’s money after demand; for, when the place of payment is fixed, the duty of such a revenue officer is itself equivalent to a continual demand. It is different with trustees and officers, whose, duty is to receive and disburse a fund; because their functions are different. They hold until the proper time or opportunity for disbursing or administering.

It is no answer to this that the auditor-general for a long time neglected to decide upon the account, for it is settled by numerous decisions, beginning with our own ease of The Commonwealth v. Wolbert, 6 Binn. 292, that the- state is not chargeable with the negligence of its officers in such cases, even as against sureties: 13 State Rep. 6-17; 9 Wheat. 736; 11 Id. 188; 12 Id. 509; 1 Peters 325; 3 Mason 446; 4 Wend. 570; 13 Johns. 283; 19 Id. 58; and even though there be long delay after the debtor has called for a settlement: 5 Peters 293.

On the principles of common justice, how can it be otherwise ? There is no duty more plainly implied and written than that of a county treasurer to pay; and how can he excuse his neglect, by pleading that of his superior officer to call on him 1 His is the first fault, and it is not forgiven because of a similar neglect of another. The auditor-general did not settle the account; and what of that ? It was no less the duty of the county treasurer to pay; and, if he kept his accounts as he ought to have done, he knew exactly what to pay. His duty was to the state, and not to the auditor-general, and he ought to have performed it and then called for a settlement. The state has been guilty of no negligence, for it has clearly defined the duty of both officers. One of them, who has neglected his duty, has no right to excuse himself on the ground of the negligence of the other.

It seems to be supposed that the state is not entitled to interest, until three months after the auditor-general has stated the account, because the law of 1811, section 35, requires that it shall then bear interest; and it is thought that until then, the only penalty for neglect is loss of commissions. But this does not exclude the direction of the first section, that the account “ shall be examined and adjusted by the auditor-general, according to law and equity.” This act makes the auditor-general the primary judicial tribunal in all claims by the state against its revenue agents, and, in adjusting the accounts by law and equity, he must charge interest as part of the settlement whenever any of the money is wrongfully withheld. The declaration, that the balance found due shall bear interest after three months, is the mere repetition with a little indulgence, of the Act of 1700, giving interest on all judgments.

Suppose the Act of 25th March, 1831, section 8, requiring the county treasurer to pay “ on the settlement of his accounts,” be still in force; it does not authorize him to keep the money till it is settled; and it is not inconsistent with the Act of 1834,' which requires him to pay promptly as he receives. The Act of 21st April, 1846, section 9, P. L. 415, does not, as an Act, apply to this case; hut it declares the true rule as it stood before; that, when accounting officers allow suit to he brought, they shall be charged with interest from the time the public moneys were or ought to have been received by them. It is true that under the Act of 1834, the defaulting officer loses his commissions; but this is the case with all such agents, according to common law principles. They pay interest for the wrongful withholding, and lose the reward ^belonging to the office which they have unfaithfully performed. In this case we must presume that the accountant presented to the auditor-general some equitable grounds for indulgence ; for his commissions were allowed, and he was not charged full interest. We need not. notice the case of The Bank of Easton v. Commonwealth, 10 State Rep. 442, further than to say that it was not a case of money withheld by a receiving officer: but a controversy as to the propriety of a tax.

Judgment reversed and a new trial awarded.