Lehigh County v. Gossler , 24 Pa. Super. 406 ( 1904 )

Opinion by

Smith, J.,

This action is brought by the county of Lehigh for the use of the city of Allentown against John R. Gossler, on a bond given by him as county treasurer, with ten sureties. The claim is for a portion of the money collected by the treasurer in 1894, 1895 and 1896, for retail liquor licenses in Allentown, under the act of June 9, 1891, which by law is payable to the city, but which has been retained by the treasurer as commissions for collection.

By the terms of the bond, the obligors “ bind ourselves, our heirs, executors, administrators, and each and every one of them.” It has long been settled that this creates a joint and several obligation: Geddie v. Hawk, 10 S. & R. 33; Besore v. Potter, 12 S. & R. 154; Wood v. Hummel, 4 Watts, 50. The liability of an executor arises from that of his testator, and, necessarily, both are bound to the same extent and in like manner. Therefore, when joint obligors bind each executor, the obligors are by implication severally bound. Hence the action is well brought against the defendant alone.

The bond was given in accordance with the act of April 15, 1834, section 33, and is conditioned in accordance therewith. This section provides that the. treasurer “shall give bond with sureties, to the satisfaction of the commissioners,” but without specifying the obligee. In Clarke v. Potter County, 1 Pa. 159, the treasurer’s bond was given to “ the commissioners of Potter county,” and this was held sufficient. The bond in the present case, given to the commissioners by name, and describing them as “ commissioners of the county of Lehigh,” must be equally valid.

All official bonds, whoever may be named as obligee, are given for the use of the parties having a legal interest in their enforcement. The act of June 14,1836, prescribes the method of proceeding on bonds given to the commonwealth for the performance of public or private trusts. Though, technically, the bond in this case was not given to the commonwealth, it was given for the performance of a public trust; it may be enforced in like manner, and no authorization by the obligee is necessary : Com. v. Snyder, 1 Pa. Superior Ct. 286; Com. v. Allen, 2 Pa. Superior Ct. 175. To the extent of the money in the treasurer’s hands by law payable to the city of Allentown, the city has a legal interest in the enforcement of the bond. That the defendant holds such money is clear: Kittanning v. Mast, 15 Pa. Superior Ct. 51. There is no denial of its receipt by him. That it was not received within six years of the commencement of suit is no defense, since the obligation to pay is secured by a sealed instrument.

The first condition of the bond is that the treasurer “ faithfully performs the duties of his office.” If the payment of the money claimed by the plaintiff is among these duties, it has not been performed. The treasurer’s duty in this matter is clearly defined in Pittsburg v. Anderson, 194 Pa. 172, “ Such duty,” said Mr. Justice Dean, “ was plainly imposed upon the county treasurer by the acts of 1887 and 1891. He no longer received a cent of the $900 [the proportion payable to the city] for, nor paid over a cent to, the state. It Avas not in any real sense a gift by the state to the city, but an acknowledgment of the city’s equitable claim to the money, and a positive relinquishment of the commonwealth’s legal right thereto; thereafter the officer received for and paid over to the city money belonging to the city, and to the city alone was he accountable.” In not having paid to the city of Allentown the money here claimed, the defendant has failed in the performance of his official duty, and thus broken the condition of his bond.

A settlement of the treasurer’s accounts by the county auditors is conclusive only if they had jurisdiction in the premises: Schuylkill County v. Minogue, 160 Pa. 164. The settlement of the treasurer’s accounts by the auditors, as a substitute for the settlement of disputed matters in the courts, is limited in scope. By the act of April 15, 1834, section 37, the treasurer was required to “receive all moneys due or accruing to the county, and to pay the same on warrants drawn by the commissioners ; ” and “ once in each year state his accounts, and produce his vouchers, which, after examination by the commissioners, shall be. by them laid before the county auditors for settlement according to law.” Section 48 required the auditors to “ audit, settle and adjust ” his accounts, and make report to the common pleas, with a statement of the balance due from him. This settlement was only of the accounts laid before them by the commissioners. Section 49 required the auditors to settle the accounts of the treasurer and certain other officers with the state treasurer, and make a separate report thereof. Under various statutory provisions, they were required to settle the treasurer’s accounts for certain military and relief funds. The act of May 23,1887, provided that the accounts of county treasurers for “ school, road, and all other municipal taxes ” received by them, “shall be audited and settled by the county auditors at the same time and in the same manner as is now provided by law for the audit and settlement of county taxes collected by county treasurers.” Taxes' for liquor licenses, not being levied by municipal authorities, cannot be deemed municijoal taxes within the meaning of this provision; the purpose of the act was to embrace local taxes' on unseated lands, received by the treasurer, in the settlement of his accounts by the auditors. But there is no statutory provision for referring to the auditors the settlement of the treasurer's accounts respecting the proportion of license taxes payable to cities, borough and townships. All questions relating to these must be determined by the courts. The auditors are without jurisdiction. Hence the adjudication by the auditors, alleged by the defendant, is without effect on the plaintiff’s claim.

Judgment affirmed.