Commonwealth v. Philadelphia City & County , 157 Pa. 558 ( 1893 )

Opinion by

Mb. Justice Dean,

On August 1,1891, the auditor general of the commonwealth settled against the city and county of Philadelphia for the year 1890 a tax on loans, amounting to 186,513.36, no part of which was paid into the state treasury. The whole amount, however, was received by John Bardsley, city treasurer, from the city within the tax year, and was by him embezzled. About the 20th of May, 1891, on discovery of this and other large defalcations, he resigned, and soon after was sentenced to a long term of imprisonment. Being insolvent, recovery of the amount of this particular defalcation is improbable, and it may be considered lost. The material facts in this issue are so perspicuously narrated by the learned president judge who tried the case, that further repetition of them is unnecessary. The principal question before him was : In receiving this loan tax, was Bardsley an officer of the commonwealth or of the city ? If the first, the city was discharged from liability by payment to him ; if the second, nothing relieved it but payment to the state treasurer.

That the question, before the trial, was not free from doubt, the able argument of counsel for appellant abundantly shows. That the county treasurer, however, in his relations to this particular fund, was an officer of the city, the court below, in a very able opinion, has clearly demonstrated.

The many acts of assembly passed in the last fifty years, imposing taxes upon' the different subdivisions of the state, and upon all classes of corporations, directing how they should be assessed and collected, and by what officers received and paid into the state treasury, had led to uncertainty as to whose agent the city treasurer was when he received this “loan tax.” In receiving liquor and mercantile licenses, he was undoubtedly the agent of the commonwealth, and the city was in no way answerable for his fidelity. There was but little more doubt that in receiving the personal property tax he was the agent of the county, and its responsibility ended only with payment to the state treasurer. But, as to taxes on loans,' the peculiarity, both of the subject of taxation, and the method of its collection and payment, as well as equivocal language in some of the acts of assembly, made the law susceptible to conflicting inferences as to the real functions of the officer. By a careful examination and comparison of the many acts of assembly on this subject from 1844 down to 1889, in the light of the decisions from time to time made on cases arising under them, the court below rightly determined Bardslejr was the agent of the city as to this tax. The question now, on both reason and authority, may be considered settled.

It was further contended on behalf of the city, that the failure of the treasurer to pay over this tax was occasioned by the neglect of the officers of the commonwealth to enforce payment as it was their duty to do under the law, and that his retention of it after it was in his hands was by their knowledge and permission.

For the whole year during which this money was received and was due and payable to the commonwealth, and for the more than four months afterwards that Bardsley was in office, not a single quarterly return or payment, as the law enjoins, was requested or exacted by the commonwealth’s officers.

The court held these facts to be immaterial, and ■ entered judgment against the city for the amount of tax settled by the auditor general thus:

Balance at settlement, .... $86,513.36

Less tax on bonds exempt, .... 10,003.61

$76,509.75

Add interest at 12 per cent from October 1,

1891, to May 1, 1893, .... 14,536.85

Attorney general’s commission, . . . 3,825.49

Judgment, .... $94,872.09

Since United States v. Kirkpatrick, 9 Wheaton, 720, first followed by this court in Commonwealth v. Baldwin, 1 Watts, 54, decided as early as 1832, down to Lehigh County v. Bartholomew, 148 Pa. 82, decided in 1892, there has been no break in the decisions that the right of the commonwealth cannot be lost by the neglect or unfaithfulness of her agents. But as we have said in No. 303 September term, 1891, [the preceding case,] a suit between these same parties, this right of the commonwealth is to her tax, not to penalties. The reason given by Justice Story in United States v. Kirkpatrick, however imperative as a declaration of public policy, never did commend itself to the moral sense; it in substance says: The sovereign must not lose in such cases, because it is intolerably inconvenient to the government to be the sufferer; it could not be carried on if it practiced the same rule it enforces on the citizen, so the right of the government shall not be impaired by the neglect or wrong of her agent. While the rule has become so fixed in the law of the commonwealth that nothing less than positive legislative action can disturb it, there is no reason why it should be extended by implication to include, besides the strict right, the tax, also a premium or penalty for a delay occasioned, certainly in part, by the neglect of her officers. This is not a suit by the commonwealth against an individual, who had the money of plaintiff in his possession, and knew the exact amount and that payment was due. It is the case of a municipality which had raised the money and put it into the hands of its own agent to be paid over, an agent, too, recognized by the commonwealth; then, by the neglect of the commonwealth’s officers and the wrong of the agent combined, the money is embezzled and lost. If it were not for the prerogative of the commonwealth, of the sovereign, who is constructively the parent of or trustee for the whole people, the argument from inconvenience, in United States v. Kirkpatrick, could be :as effectively invoked by this subordinate municipality as by the commonwealth. By progress in wealth and population, the magnitude of the city’s public affairs to-day equal those of the commonwealth when that case was decided. The city might aptly reply, that if it is inconvenient to the state, because of the multitude of its agents, to be prejudiced in right by their neglect, it is quite as inconvenient to the city, because of the large number of its agents, to lose money by their dishonesty. But the answer would avail nothing in the mouth of a subject against the unquestioned prerogative of a sovereign to exact the money for the use of the whole people.

When it comes, however, to adding penalties in shape of increased interest and fees for wrongful detention of the money, which the city had once raised and paid, and there was room for doubt whether in law it had not been paid to the commonwealth when Bardsley received it; and when it was just as important to the commonwealth as to the county to have the question settled as to whose agent the county treasurer is in the collection of the “ tax on loans,” for it affects every county in the commonwealth; and when it further appears that, owing in part to the neglect of the commonwealth’s officers, the money had not reached her treasury, it seems to us there was no such detention of it as warrants the imposition of penalties.

For these reasons, the penalties imposed in the court below are deducted. Instead of interest at 12 per cent it is computed at 6 per cent to October 2, 1893, and attorney general’s fees, $3,825.49, are stricken off, leaving the judgment stand as of this day $85,690.92, and as thus modified it is affirmed.