191 A. 9 | Pa. | 1937
The county controller in the annual report of his audit of the fiscal affairs of the county surcharged the county *537 treasurer in the sum of $81,183. It does not appear in the record whether any effort was made by the surety to take part through its principal, the county treasurer, in the audit held by the controller. Appellant attempted to appeal to the common pleas court in its own name. This effort was held to be fruitless by the court below because the governing act did not permit such an appeal.
There seems little doubt that it was not the intention of the legislators to give the right of appeal to sureties on the bonds of county officials, although they are vitally concerned in the report. The Act of May 2, 1929, P. L. 1278, Article IV, Section 379, provides that: "An appeal may be taken from such report to the court of common pleas, either by the Commonwealth, the county, or the officer. Such appeal may also be taken by ten or more taxpayers in behalf of the county. . . ."
It is a familiar maxim of statutory construction that where a provision of an act is expressly stated to apply to named persons or groups, those persons and groups not named are excluded. See Sugar Notch Borough,
Although the precise point has not been decided, there is dictum in analagous cases which supports the conclusion of the court below. We held in Commonwealth v. Reitzel, 9 W. S. 109, that under the Act of 1811, relating to the settlement of accounts of toll collectors, such settlement was final and conclusive on the sureties who had no right to appeal. Similar indications by dicta may be found in Senor v. Dunbar TownshipSchool District,
Appellant objects, however, that unless it is permitted to appeal it will be deprived of property without due process of law, and be subjected to liability without an opportunity to be heard. It contends that the *538 decision of the court below makes the report of the controller, if unappealed from, final and conclusive upon all parties including the surety, and as it has the effect of a judgment against the officer the surety cannot attack it collaterally when suit is brought against it upon the officer's bond. It therefore complains it has not had its day in court.
The statutory method of settling the accounts of officials is the exclusive method of determining their liability and the report of a county controller is conclusive upon the officer as to all matters embraced within it unless an appeal be taken to the court of common pleas. The decision of that court is final. See Riehl et al. v. Miller et al.,
However meritorious this reasoning may be, the case has been limited by subsequent decisions to the facts there presented.
The above rules definitely state the exact legal position of these reports. In answer to the surety's objection that it is denied the right to be heard, it had due notice that the audit was being made. The statute requires these audits at the end of each year. This the surety knew when it executed the bond. Had it been diligent, it could have apprised itself of the controller's action and, though it could not have appeared in its own capacity, it could through its principal have taken such part in the audit as would have enabled it to protect its interests; the court below, unless cause was shown to the contrary, would have given due recognition to that right. The surety could also, through its principal, effect an appeal in his name, but it could not do so in its own capacity as surety. The principal could not object *540 to the use of his name as long as he was protected from costs. A surety's right under equitable principles clearly authorizes this use.
But, the cases we have noted as to the surety's liability cannot be understood to deny to it the right to defend an action upon a bond by raising personal defenses which are available to it from the nature of its obligation. Such defense does not impeach the controller's report but confines it within legitimate limits. The surety in the present case is not deprived of the relief which it seeks. It is only liable to the extent of its surety contract regardless of the question of its principal's liability. Sureties are only bound according to the true construction of the obligation notwithstanding the form of expression: Spangler v. Commonwealth, 8 Watts 57. See alsoMasser v. Strickland, supra. Thus in Commonwealth v. Sweigart,
Appellant was not surety for the county treasurer for the entire period of his office but its bonds limit its liability to any transaction occurring after July 15, 1935. The report of the county controller did not show when the shortage occurred. There can be no doubt, therefore, *541 that although the report is conclusive as to the fact of a shortage and as to the total amount, it does not purport to fix appellant's liability, which must be determined by proof that the shortage occurred within a given period. This defense can be raised by the surety in an action upon its bonds even though it cannot be heard to attack the surcharge upon the merits.
The decree is affirmed without prejudice to appellant to make any defense available at law in a subsequent action upon its bonds.