197 A. 635 | Pa. Super. Ct. | 1937
Argued November 10, 1937. Mauch Chunk Township School District, a school district of the third class, brought this action of assumpsit against Benjamin C. Fisher, tax collector of the district for the years 1928 and 1929, and American Employers' Insurance Company, the surety on his tax collector's bond, to recover the sum of $2,583.69,1 covering taxes owed by Fisher on his tax duplicate for 1928, $1,458.75, and for 1929, $1,124.94. The plaintiff's statement averred that Fisher was the duly elected collector of taxes in and for Mauch Chunk Township in the years 1928 and 1929, and as such was entitled and obliged to collect the school taxes levied by said school district for those years; that for the school year beginning the first Monday *330 of July, 1928, and again for the school year beginning the first Monday of July, 1929, the school board of said district fixed his bond as collector of school taxes in the amount of $25,000, which was furnished with American Employers' Insurance Company as surety, and was duly accepted and approved by the school board; that on or about July 17, 1931 the Board of Township Auditors of said Township completed its audit of the accounts of said Benjamin C. Fisher by which they found that the amount due by said collector on the duplicate for 1928 was $1,458.75 and on the duplicate for 1929, $1,124.94; that the said Board of Auditors gave notice of said audit to said Benjamin C. Fisher and filed their report in the office of the Prothonotary of the Court of Common Pleas of Carbon County on July 29, 1931 to No. 33 October Term 1931, which was not appealed from; that by virtue of the premises the defendants were indebted to the plaintiff school district in the sum of said amounts, $2,583.69, with interest from July 29, 1931.
The defendant surety filed an affidavit of defense raising a question of law, under section 20 of the Practice Act of 1915, P.L. 483, contending that it was entitled to judgment because the Act of May 18, 1911, P.L. 309, Art. XXVI, section 2620, requires that in every school district of the third class the proper auditors shall begin their duties on the first Monday in July of each year, and, within thirty days, audit the accounts of the school district for the preceding fiscal year; and that on its face the statement showed that the audit on which the suit was based was not made for the preceding year, but for the years 1928 and 1929, which were beyond the jurisdiction of said auditors.
The court below sustained the position taken by the surety defendant and entered judgment in its favor. The school district appealed. The judgment must be reversed. *331
The appellant does not dispute the proposition that if the Board of Township Auditors had audited the accounts of the tax collector for the years 1928 and 1929, a subsequent board could not audit them again, even though a mistake had been made — in the absence of fraud, see Zeigler's Petition,
All of the decisions of the appellate courts cited by the court below and relied on by the appellee, (Leasure v. Mahoning Twp.,
8 Watts 551; Short v. Gilson,
The Act of April 15, 1834, P.L. 537, relating to counties and townships and county and township officers — supplied as to counties, by the Act of May 2, 1929, P.L. 1278 (See Art. IV, sec. 363) and as to schools, by the School Code of 1911, supra — provided in sections 47 and 48: "The auditors of each county shall assemble at the seat of justice thereof, on the firstMonday of January in each year, and at such other times as they may find necessary for the performance of the duties required of them by law. The auditors of each county, any two of whom when duly convened shall be a quorum, shall audit, settle and adjust the accounts of the commissioners, treasurer and sheriff and coroner of the county, and make report thereof to the court of Common Pleas of such county, together with a statement of the balance due from or to such commissioners, treasurer, sheriff or coroner"; and in sections 102 and 103: "The auditors of each township, any two of whom duly convened shall be a quorum, shallmeet annually on the second Monday of April, and oftener if necessary, and shall audit, settle and adjust the accounts of the supervisors and treasurer of the township, and of such other township officers as may by law be referred to them. The report of such township auditors shall be filed with the town clerk, if there be one; and if there be no town clerk, it shall remain with the senior auditor, for the inspection of all persons concerned"; and section 9 of the Act of June 13, 1836, P.L. 525, relating to schools, provided: "The district treasurer shall receive all moneys belonging to the district, whether the same be derived from appropriations by the state, district taxes, private donations, or otherwise, and shall pay out the same, on orders drawn by the president and attested by the secretary of the board of directors, by *333 order of the board, and his accounts shall be audited and adjusted as accounts of townships and boroughs are directed by law to be audited and adjusted."
Construing these provisions our Supreme Court held in Richterv. Penn Twp.,
In Godshalk v. Northampton County,
The right of a board of auditors to audit an account in a subsequent year if it had not been previously audited was recognized by the Supreme Court in Com. v. Scanlan,
In re Manor Township School Dist.,
That the rights and liabilities of township school district tax collectors are not finally settled until there has been an audit of their accounts, regardless of whether within the time designated by the School Code or not, was recognized by the Supreme Court in Senor v. Dunbar Township School Dist.,
In the case of O'Gara v. Phillips,
It should be added that there is nothing in the provisions of the tax collector's bond sued on which relieves the surety of liability in case yearly audits are not made. The bond is "conditioned upon the faithful performance of [the principal's] duties as such tax collector." The case of Yubas, Executrix, v.Makransky,
The judgment is reversed, the question of law raised by the appellee is decided against it and a procedendo is awarded. The appellee is given leave to file an affidavit of defense to the averments of fact in the plaintiff's statement within fifteen days after the return of the record to the court below.