Philadelphia & Reading Railroad v. Commonwealth, 104 Pa. 86

Philadelphia & Reading Railroad v. Commonwealth

104 Pa. 86 | Pa. | 1883

Mr. Justice Green

delivered the opinion of the court, October 1st 1883.

The defence on the merits in this case is determined against the plaintiff in error by tlio- judgment of this court in the case Ho. 32 May Term 1883 between the same parties. It is. alleged in addition, however, in the affidavit of defence in the present cause, that the settlement of taxes on which the claim of the Commonwealth is founded, purports to have been made by Bobert L. Frazer for John:A. Lemon, Auditor-General, and approved by W. Livzey for Samuel Butler, State Treasurer: The affidavit further states that at the time when the. account was settled J ohn A. Lemon -was Auditor-General and Samuel Butler was State Treasurer, and that the account was not settled by the former nor approved by the latter. Had. the affida-. vit proceeded one step further and alleged that Frazer was not legally authorized to act'for Lemon; and‘Livzey for Butler, it would,have been sufficient to put.:the,Commonwealth,to proof *89of their authority, if the plaintiff in error was not concluded by its omission to appeal. Or if it were true that only the Auditor-General and State Treasurer, in person, could perform the official functions involved in the settlement of the account in question, then also the averments in the affidavit- would have been sufficient. But as long ago as in the case of Commonwealth v. Aurand, 1 Rawle 282, and again in the very recent case of Hamilton Steeled Wheel Company v. Commonwealth, 12 W. N. C. 328, it was determined that such settlements could lawfully be made by clerks in the office of the Auditor-General-. The duty is ministerial and not judicial. In the present case the amount of gross receipts was-furnished by the company, and the amount of tax was ascertained by the mere arithmetical computation of eiglit-tenths of one per cent, upon that amount. In doing this no species of judicial function was exércised. It will be perceived therefore that when the affidavit of defence merely negati-ved the fact of the settlement and approval of the account by the Auditor-General and State Treasurer in person, it did not go far enough, since other persons acting on behalf of those officers may perform this function. The affidavit admitted that other persons claiming to act for the officers in question had, in the names of the latter, settled and approved the- account, and did not deny their authority to do so. Heroin it was defective and insufficient to prevent judgment. As the Commonwealth was the plaintiff and set up the settlement as her act, done by her properly authorized officer, and there is no denial of that authority, we certainly can not presume its absence. On the contrary the presumption of its existence is required by the fact of its practical averment unopposed by any denial.

Judgment affirmed. ,