Commonwealth ex rel. etc. v. Joyce , 1897 Pa. Super. LEXIS 68 ( 1897 )

Opinion by

Reeder, J.,

The act of February 17, 1859 was a special act of assembly relating only to Schuylkill county, the first section of the act providing that, “ hereafter all supervisors, all township, borough and school district treasurers for both road and school purposes, and all collectors of borough, road and school taxes shall file in the office of the clerk of quarter sessions bonds with warrants of attorney to confess judgment, with sufficient sureties, there to remain subject to the order of the court, for the security of said townships, boroughs, school districts and all others interested in said bonds whenever legal proceedings shall be necessary thereon.”

The account of Peter Joyce as treasurer of the school district of Butler township was regularly filed in the office of the clerk of quarter' sessions. The auditors found by this settlement Peter Joyce to be indebted to the township in the sum of $484.48. Prior to this time, in conformity with the said act of assembly, the bond of Peter Joyce, with security, was filed in the court of quarter sessions, and upon the filing of the report of the auditors, that $484.48 was due from Peter Joyce as treasurer, under the warrant of attorney, judgment was entered in favor of the plaintiffs and against the defendants for that sum.

It is claimed by the appellants that the auditors had no jurisdiction in passing upon the account of the treasurer of the school district to surcharge him with any amount, for the reason that he did not have notice of the settlement by them of his account.

It appears as a fact from the statement of the auditors and which fact was not denied by the appellants in this case, that the books, papers and accounts of the school district were in the custody, possession and control of Owen Conroy, the son-in-law of Peter Joyce, who was a school director of this district. The auditors further find, that Peter Joyce was but the nominal treasurer and that Owen Conroy was in fact treasurer of the Butler school district in everything but name, and that Peter Joyce admitted, while testifying before them, that he was but the nominal treasurer. During the examination of the account* of Peter Joyce he was present before the board of auditors and testified. The auditors surcharged him with a number of orders, which were not drawn by the legal board of school directors, but by a board illegally constituted, of which Conroy was a member, upon Owen Conroy, who was then the acting treasurer of the district and which orders the auditors found were drawn in an illegal manner, and in some cases and instances for illegal purposes. The auditors also find as a fact, that Peter Joyce, the father-in-law of Conroy, had an agreement with Conroy that the latter was to act as treasurer, although a member of the school board, and was to draw the compensation.

It is difficult to understand how it can be successfully contended, that the auditors did not have jurisdiction for the purpose of investigating the accounts of Peter Joyce as treasurer, when before the investigation by the auditors took place, they demanded the books from Owen Conroy, who had the custody of them for Peter Joyce, and while the investigation was pending, Peter Joyce himself testified before the auditors, or that it can be successfully contended that the neglect of Peter Joyce to appeal from the report as filed by the auditors surcharging him, is not conclusive upon him in the absence of such appeal. Peter Joyce must certainly have had knowledge that his accounts were being passed upon by the auditors, he having been called as a witness to testify before the auditors in relation to them. Owen Conroy continuously acted for Joyce, as the auditors find, as treasurer, Joyce being but the treasurer in name, and Owen Conroy having been the actual custodian of all the books and having charge of the entire business, and the accounts having been obtained from Conroy with extreme difficulty prior to the beginning of the investigation, and the report of the auditors having been unappealed from, it is conclusive on Peter •Joyce and his sureties. This disposes of the first and second assignments of error.

The third assignment of error asserts that the court erred in deciding that the auditors were empowered or authorized to surcharge Peter Joyce with orders which they knew were paid by Joyee and “ which orders were legally and properly drawn by the legally authorized officers of the school district and for purposes that were on the face of said orders entirely legal and lawful.” The appellants claim that these orders or warrants were regular on.their face,- for purposes recognized by law and within the scope of the authority of those issuing them, and that, therefore, the disbursing officer was protected in their payment. If this position is correct, and the statement of fact upon which it is based is also correct in its description of the orders — the purposes for which they were drawn, and the authority by which they were directed to be issued — -it nevertheless was too late to raise the question upon a motion to strike off the auditors’ report at the time it was presented in the court below. The appellants’ only remedy was an appeal from the auditors’ report, and that not being taken they lost their remedy and have no right to raise the question in this way, and we have no power to consider it. But it appears from an examination of the auditors’ report and their finding of fact, which is the only evidence upon which we can determine any fact at issue, or which might be at issue in this controversy, that the orders were not legally drawn by a legally constituted board, but were drawn by an illegally constituted board, one of whom was Owen Conroy acting as treasurer of the district, and that they were paid by himself as the acting treasurer, and, as found by the auditors in some cases drawn for illegal purposes and known by him to be fraudulent. The appellants contend that the provisions of the act of 1859, providing for the filing of auditor’s settlements of the accounts in the office of the clerk of the court of quarter sessions for the inspection of those interested in said accounts was not complied with, for the reason that a copy of the settlement was filed instead of the original, and that therefore it ought to be stricken off or set aside by the court in accordance with their motion. It seems to us that the spirit and purpose of the act of 1859 is complied with just as fully by the filing of a copy of the settlement for the inspection of parties interested as by filing the original account itself, and as it stands of record in the court having competent jurisdiction under the act of assembly, all parties interested have the same opportunity for investigation and their interests are as fully protected in the one case as in the other, and that therefore the filing of a copy of the settlement by the auditors in the court of quarter sessions, while it may not be a strict compliance with the requirement of the law, and while the court could compel the auditors to file the original account upon proper application, yet, no person could complain of the filing of the copy of the account instead of the original, unless his material interests were in some way affected by the substitution, and as there is no allegation of mistake or variation in the copy as filed and the original settlement as made, and as no appeal was taken by Peter Joyce from the report of the auditors as filed by them in the court of quarter sessions in the shape of the copy of their settlement, he is not now in a position which entitles him. to relief here.

It is also a doubtful question whether this portion of the act of 1859 is not superseded by the act of April 21,1871. By the latter act, auditors are required to file a copy of their annual settlement with the clerk of the court of quarter sessions, which shall be at all times subject to the inspection of the citizen. It would seem as if this was intended as a substitute for the provisions of the act of 1859 relating to the filing of settlements by auditors in the court of quarter sessions and directly authorizing a copy of the settlement to be filed. For the purposes of this case, however, it is unnecessary to pass upon this question.

The discussion of the assignments of error upon which we have already passed, and what we have already said in regard thereto, disposes of all the questions raised by the several assignments of error in this ease, and they are therefore dismissed and the judgment is affirmed.