19 A.2d 92 | Pa. | 1941
Herbert T. Lilly et al., appellants, challenge the propriety of a surcharge imposed upon them by the township auditors, following the audit and settlement of their accounts, as supervisors of Lower Nazareth Township, for the fiscal year ending January 1, 1939. The *173 subject matter of the surcharge, aggregating $11,452.72, is moneys expended on contracts let for the repair and maintenance of highways in excess of the sums budgeted and appropriated for such purposes.
The "Second Class Township Law" of 1933, as amended by section 3 of the Act of June 5, 1937, P. L. 1738, provides, in section 902, that "No money shall be paid out of the township treasury except upon appropriation made according to law." And, in section 802, as amended by section 2 of the Act of June 5, 1937, it is provided that "The supervisors shall not hire any work to be done, purchase any material, or make any contract in any amount which shall cause the sums appropriated for such purposes to be exceeded"; further, that "No contracts or purchases not provided for by an appropriation, or which shall cause any appropriation to be exceeded, shall be valid." As the disbursements in question were made without previous appropriation according to law and in payment of obligations legislatively declared to be beyond the power of the supervisors to incur and utterly void, they were clearly illegal. Notwithstanding that this is so, appellants contend that in the absence of proof that the township suffered actual pecuniary loss as a result of the transactions, the surcharge was nevertheless improperly imposed under section 545 of the Act of 1933, as amended by the Acts of July 18, 1935, P. L. 1299, and May 28, 1937, P. L. 937, providing that "Any officer, whose act or neglect has contributed to the financial loss of any township, shall be surcharged by the auditors with the amount of such loss." It is conceded that the township has received, in maintenance and improvement of its highways, a reasonable quid pro quo for the unauthorized outlays, and that no fraud or dishonesty on the part of appellants has been shown.
The right to surcharge township officers is not new, as appellants state. Section 1 of the Act of June 9, 1911, P. L. 865, from which the surcharge provision *174 contained in section 545 of the "Second Class Township Law" has been derived, almost verbatim, provided as follows: "Be it enacted, c, That hereafter the auditors whose duty it shall be to audit the accounts of the officers of any borough, township, poor district, or school district . . . shall meet annually, on the day following the day which has been or shall be fixed by law for the organization of borough councils, townshipsupervisors, or commissioners of any township, directors of any poor district, or school district, respectively, and shall forthwith proceed, in the respective instances, to audit, settle, and adjust the accounts of the burgess, members of the council, treasurer, street commissioner, and other officers, either appointed or elected, of the borough; of the supervisors or commissioners, roadmasters and treasurer of the township; of the directors or overseers, treasurer, of the poor district; of the directors and treasurer of the school district, and of the tax collectors of each of said municipalities or districts; andany such officer whose act or neglect shall have contributed tothe financial loss of any municipality or district shall besurcharged with the amount of such loss."
Construing the Act of 1911, this Court said, in HanoverTownship School District's Audit,
The language of section 545 being identical with that of section 1 of the Act of 1911, which applied to and governed the surcharge of township supervisors as well as, inter alia, school directors, appellants' contention that the decisions referred to are not controlling in determining payments or acts necessary to constitute "financial loss", within the meaning of the "Second Class Township Law", is untenable. It is a well settled rule of statutory construction, codified by section 52 of the "Statutory Construction Act" of 1937, P. L. 1019, subsection (4), that "where in a later act the legislature uses the same language as in a prior cognate statute, which had been construed by us, the presumption is that the language thus repeated is to be interpreted in the same way it previously had been when considering *176
the earlier statute": Buhl's Estate,
The construction of section 545 contended for by appellants is not only unwarranted under all the authorities,1 but is not sustainable as a matter of principle. To adopt it would be to render wholly abortive not alone the salutary requirement that township supervisors shall pay moneys out of the township treasury only upon appropriation made according to law, but all the mandatory requirements of the law regarding the making of contracts on behalf of such municipal subdivisions, thus depriving the people of the protection against their own representatives, which it is the purpose of the legislature, in imposing such requirements, to secure to them, and would expose the public funds to raids of every conceivable form. As the court below aptly states: "Despite the value of the consideration obtained through illegal contracts, making contracts in violation of the Township Law, whether negligently or intentionally, and exceeding the moneys budgeted and appropriated, must be regarded as acts which occasioned the township a financial loss within the meaning of the statute. Were any other construction sanctioned, township officers would be encouraged to enter into unauthorized contracts and the only protection afforded the taxpayers would be in the timely discovery and enjoining of the invalid contract. Thoroughly extravagant contracts for unnecessary work and materials could be made, provided the work given or material furnished constituted fair consideration. Such impunity, we do not believe, the legislature intended that township supervisors enjoy."
The judgment of the court below is affirmed.