145 A. 843 | Pa. | 1929
Argued January 29, 1929. As a result of investigations, growing out of or resulting in appeals from the reports of the county controller for 1924 and 1925, where it was determined that the county treasurer owed the county for interest received by him from certain banks in which he had deposited the *275 money of the county, and for certain fees which he had received but had not paid over, it was ascertained that he had appropriated to his own use the same items during the years 1922 and 1923 also, but the controller's reports for those years did not refer to them, and the time, fixed by section 57 of the Act of April 15, 1834, P. L. 537, 547, for taking appeals therefrom had expired. The county, by its commissioners, thereupon filed petitions in the court below, setting forth the amounts the treasurer had thus collected and kept; that he had not reported them to the controller, but, on the contrary, had fraudulently concealed the fact of their collection, with the result that they had not been considered or acted upon by that official; and prayed that a rule be granted to show cause why the county should not be allowed to appeal nunc pro tunc, from the reports of the controller for those years. The answer of the treasurer admitted the receipt and keeping of the amounts stated in the petitions, but denied concealment thereof; alleged that the commissioners and the controller knew of their retention by him, as a matter of right; and that, under the statute, the county was debarred, by lapse of time, from obtaining the relief sought. Testimony was taken; the court below decided that there was no concealment by the treasurer, nor want of knowledge by the commissioners; and, without determining any other matter, held that, even if the county would ordinarily be entitled to an appeal nunc pro tunc, it had lost that right, in the present instances, because it had not made application within sixty days after the commissioners had actual knowledge of the wrongful retention of the funds; this length of time being adopted as the test, because, by the statute, it was the period within which the county was allowed to appeal from the report of the controller after it had been filed. From the resulting dismissal of its petitions, the county has taken these two appeals.
The principal contention of the treasurer is that, as the county did not appeal from the reports of the controller *276
within the time allowed by the statute for the purpose, its failure so to do operated as a complete defence, not only as to matters considered by the controller, but as to all others which theretofore existed, whether known or unknown. Though there are expressions in some of our opinions which give color to this contention, nevertheless we have expressly ruled, and rightly so, that, under some circumstances, appeals nunc pro tunc may be granted: Ziegler's Petition,
But, says the treasurer, I did not conceal the fact that I kept that money, the county commissioners knew I intended to keep it, and later that I had done so. The commissioners deny this, but the court below accepted the treasurer's testimony on the point. This finding, however, does not avail to relieve him of liability for his conduct of which complaint is now made. It cannot be too strongly stated, that "An officer mismanaging funds may not defend by pleading knowledge and approval of his unlawful conduct by other officers, nor his own good faith": 43 Corpus Juris 720. The matter is not one for *277 the treasurer and commissioners alone. The entire body of citizens is interested in the money being obtained and used for public purposes; and this is recognized by the statute which authorizes ten or more taxpayers to appeal from the report of the controller. Nor can the treasurer, by saying that he kept the money as a matter of right, obtain any title to it. In reality he kept it as a matter of wrong, though apparently he did not appreciate this.
The treasurer further says he had a book or books in his office, from which, if the controller had compelled their production, all the data as to these several items of surcharge could have been ascertained; and, as the statute provided a means by the use of which the controller could have compelled their production, the county must be treated as bound by what he could thus have learned. As against the concealment already referred to, this argument is unavailing. Since, by the apparent completeness of his returns, he obtained from the controller a favorable audit on the faith of their being actually full and complete, as the statute required them to be, he cannot be heard to say the county is bound because it did not know of their incompleteness; he cannot thus obtain title to the public money not referred to in them.
The treasurer lays great stress, also, on the alleged fact that there was "common knowledge" he was keeping these funds; but this, even if true, is of no moment: Chemical National Bank v. Tuttle, 2 Sad. 328; 17 W. N.C. 415; Maul v. Rider,
In this way the fact of ownership of the fund would have been adjudicated, and the statutory time for taking an appeal would have been controlling. The treasurer's failure to make a full return, in violation of his duty in that regard, made the report actually filed but a partial one, and entitled the county either to compel a new and complete report to be filed, or to have an appeal from the original one nunc pro tunc, in order that it might obtain, as it was statutorily entitled to, an adjudication as to the omitted items specified in the application.
On the question as to whether or not there was a legal reason for not granting relief in the instant case, the treasurer reiterates the reason given by the court below for dismissing the petitions. The basis of this contention is that ordinarily, in cases of fraud, the statute of limitations begins to run at the time of its discovery, and an interested party will be debarred, if thereafter he does not proceed until more than the full statutory period for bringing suit has elapsed. This is a settled rule, and it is not our purpose to disturb it; but it is not applicable here. If the treasurer had made no return whatever, the county could have compelled him to do so, without limitation of time so far as the statute is concerned, which contemplates a complete return, an audit *279 of it, and an early judgment against the treasurer, if found indebted to the county. Nowhere does it even hint that the county must be content with an incomplete return, though this has been acted upon by the controller. Probably, therefore, by appropriate proceedings, the treasurer could have been, and possibly he can even yet be, compelled to make an additional return covering the purposely omitted items, in which event the county would have the full sixty days to appeal from the controller's report thereon, after it was filed, and not merely after the fact of the wrongful withholding was ascertained. The fact that leave to appeal nunc pro tunc was asked (as the cases above cited say was a proper course to pursue), rather than an order to compel the filing of a further account, would not seem to require a less allowance of time for the former than for the latter, the statute being silent on the subject in both cases.
Moreover, the present status is not like the ordinary one where an appeal is to be taken from the controller's report. In the present instance, the treasurer, by his failure to report collection of the sums now sought to be recovered, has prevented the county from having an early judgment, by the controller, in its favor. This is a valuable right of which the county has been deprived. If there had been proper returns made by the treasurer to the controller, and the treasurer had afterwards so deceived the county that it did not appeal, by analogy the rule relied on by the court below might be applied; but the analogy, under the present circumstances, is an imperfect one. Hence, for this reason also, the true rule is that which is applied in all similar equitable proceedings, namely, the county will be debarred only by such laches as may prejudice the treasurer's defence. Where, as here, the facts regarding the claim are all admitted, mere lapse of time is relatively unimportant, since the test is whether or not, under the circumstances of the particular case, injury will probably result to the defendant if, despite the lapse of time complained of, *280
plaintiff is permitted to proceed: Kinter v. Commonwealth Trust Co.,
The orders of the court below are reversed, and appellant is given leave to appeal nunc pro tunc within thirty days after the records in these cases shall be filed in the court below; the costs to abide the event.