53 Pa. Super. 268 | Pa. Super. Ct. | 1913
Opinion by
The appellee, Page, was the duly elected qualified and
It appears from the facts agreed upon that during the year 1910 the appellee kept deposit accounts in three banks in the name of Henry E. Page, treasurer, or county treasurer, and that he deposited the funds paid to him as county treasurer in the said banks where they were credited to the said accounts. It further appears that he also kept personal accounts in the same banks in his own name in which he deposited his individual funds. During the year 1910 there was paid in and credited to the official treasurer’s accounts designated, the sum of $895.41 which is the subject of this controversy. This money the treasurer withdrew from the official account by checks, duly signed by him as treasurer or county treasurer to his own order, and these were redeposited by him in his individual account. The proceeds, thus mingled with his private
From the careful opinion filed by the learned judge below it appears that he regarded the conclusion reached by him as the necessary result of the application, to the facts on the record, of the principles declared in Com. v. Comly, 3 Pa. 372; Nason v. Poor Directors, 126 Pa. 445; Com. v. Baily, 129 Pa. 480, and Wilkes-Barre v. Rockafellow, 171 Pa. 177. We must at once agree that these cases have indubitably established the proposition that the liability of a public officer, appointed or elected, to collect, safeguard and disburse, in the manner., provided by law, public moneys, and who has given security of the character of that given in the cases cited and in the present case, is not merely that of a bailee or trustee. Hence it was held in those cases that neither the officer nor his sureties could successfully defend the claim of the state or other municipality for the performance of the obligations imposed on him or them by the law and the covenants of his bond, by setting up that the money committed to his custody had been lost without any fault or negligence on his part. We cannot regard that principle as of controlling force in the disposition of the present case. It does not appear in this case that any money has been lost. This is not an action on the bond against the principal and his sureties. But even if it were, the real controlling question here, as we view it, is outside of the principle referred to.
Whilst it is true that the officer in such cases becomes the debtor of the state or municipality rather than its.
In Wilkes-Barre v. Rockafellow, 171 Pa. 177, the record presented more than the single question disposed of in the preceding cases. In that case Rockafellow was the city treasurer. He had agreed not only that he would safeguard and disburse, according to law, all moneys received by him, by virtue of his office, but that he would also pay interest at an agreed upon rate on the daily balances of
Moreover, if, as soon as the pubhc revenue is received by the proper officer, we are to hold that in every respect it becomes simply his private property because he is in the attitude of a debtor to the state and liable to account for it, we would find ourselves in a situation where it would be difficult to ascribe any rational meaning to a number of statutes, both civil and criminal, from time to time enacted by the legislature. These acts make very marked distinctions between the funds collected and received by a pubhc officer by virtue of his office and his individual property. We have already observed, in the quotation from the act of 1834 requiring the county treasurer to give a bond, that one of its conditions is to secure the payment by him to his successor of any balance of money belonging to the county remaining in his hands. Section 63 of the crimes act of March 31, 1860, P. L. 382, provides, “If any such officer (of any city, borough, county
But again we are not confronted here with any attempt on the part of the county to recoup from its official, money which he had individually received as interest on the public deposit. Our proposition is just the converse of the one stated. Where money has been actually paid into the county treasury by a third party, either as a gratuity in recognition of the benefits received from the public deposit, or by way of gain or compensation for the same purpose, may the county treasurer, who has the control of that fund, withdraw such money from the treasury and put it in his own pocket and claim immunity from any liability to account, because the county could not collect from him interest on the money in his hands? If he may successfully do this, he may do indirectly that which it would have been a misdemeanor for him to do directly as the result of a contract made by himself.
Keeping in mind then precisely the facts disclosed by this record, we observe first that Henry E. Page, the individual, has shown no claim whatever to the'money he has withdrawn from the official account. He has declared in the case stated that it arose from no contract made by him. The bankers who paid it knew the account on which they did pay it, and they knew precisely the
We deem it proper to-say that the record discloses no intention on the part of the treasurer to misapply what he believed to be the money of the county. But we are forced to the conclusion that, under the facts stated, the learned judge below should have followed the action of the county auditors and entered judgment in favor of the plaintiff.
The judgment is reversed and the record is remitted to the court below with direction to enter judgment for the plaintiff in the sum agreed upon.