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wherein the fault lay. We do not see that pellant alleges error in refusing to allow
this was done. The discrepancy between compensation to the receiver.
the amount of the appraisal and that receir- matter largely within the discretion of the
ed at the sale was so great as to amount to court below. The negligence of the receiver
a demonstration that something was wrong. was conceded. His counsel admitted the pro-
It may have been the method of the sale. priety of, and did not contest, surcharges
But, whatever it was, the burden of explain-; amounting to $18,689.86. In view of these
ing such a sacrifice was upon the appellant, facts, it certainly cannot be said that there
and he has not met that burden to the satis- was any abuse of discretion upon the part
faction of the auditor or of the court below. of the court below in refusing compensation
Goods appraised at over $14,500 were sold to the accountant. An officer of a court,
for $530 to a purchaser who afterwards con- when found guilty of inefficiency and willful
veyed the property to Nuss individually. It neglect of duty, as this receiver was shown
was therefore in substance a sale by 'the re- to have been, can have no just claim for
ceiver to himself. The property was after compensation. The general rule upon the
wards transferred to a new company, which subject is summed up in 34 Cyc. 468, where
employed Nuss as superintendent. After it is said:
careful consideration of the evidence relating “Neglect, recklessness, or misconduct in the
to the whole transaction, the auditor allowed management of a trust estate in his hands may
a liberal sum, $1,000, for the expenses of the be sufficient to deprive the receiver of all right
sale, and surcharged the accountant with want of capacity in the management of the

to compensation. So where a receiver shows $13,000 of the loss. Referring to this item property intrusted to him, and a lack of apand to loss from operation, the court below preciation of his obligations as receiver, his

claim for compensation may be rejected or resaid:

"All that has been said by the learned auditor
in his report in the discussion of the propriety

This statement of the law is supported by
of these two surcharges is more than justified Pangburn v. American Vault, Safe & Lock
by the facts. If a receiver can, under oath, pre- Co., 205 Pa. 93, 54 Atl. 508; Schwartz v.
sent an account to the court based upon an in-
ventory of a certain date, and then thereafter Keystone Oil Co., 153 Pa. 283, 25 Atl. 1018.
claim that no such inventory had ever been tak [5] In the fourth assignment of error com-
en because he had not been able to find it or any plaint is made of the disallowance of counsel
trace of it, and if he can further delegate his fees. The auditor allowed what he consid-
authority while away from the country on a trip
to South America, and from time to time give ered a proper and reasonable fee for services
assurances to the court that the business con- rendered by counsel to the receiver, for the
ducted by him was at a profit, and during his benefit and protection of the creditors and
administration utterly fail to keep any orderly stockholders of the corporation, such an
system of accounting, but present books 'admit-
tedly in a deplorable condition,' what protec- amount being, in his judgment, the sum of
tion will there be for either creditors or stock- $1,250. He refused to allow anything for
holders of a corporation in the hands of a re- services rendered for the benefit of the re-
ceiver under such conditions? The auditor, in
the judgment of the court, reached the only con-

ceiver personally. We see no reason whatclusion which could be reached under the law ever to differ from the judgment of the court and the facts presented to him."

below which sustained the action of the We agree that the testimony was sufficient auditor in this respect. to support the findings of the auditor.

The assignments of error are all dismissed, [4] In the third assignment, counsel for ap-l and the decree of the court below is affirmed.

(245 Pa. 17)

of the county, filed an appeal from the report, In re AUDITORS' REPORT.

"particularly from the report upon the ac(Supreme Court of Pennsylvania. March 30, counts of Edson D. Harkness, Langdon H. 1914.)

Marsh and M. J. McNulty, late county com. 1. COUNTIES (8 196*) – AUDITOR'S REPORT

missioners of said county, and ex officio overAPPEAL-DUTY OF COUNTY COMMISSIONERS. seers of the poor, for the poor district com

Where an appeal by taxpayers from the re- posed of the county of Bradford.” On the port of county auditors settling the accounts of same day the appellants presented to the county commissioners is entered within the required time pursuant to Act June 12, 1878 (P. common pleas a bond, with sureties in the L. 208), the burden is then on the commission- sum of $1,000, which was duly approved, ers to bring the issue to trial and show that conditioned that the appellants should prosethey legally disposed of the county funds; and where nothing further was done for four years cute their appeal with effect, and pay all after the filing of such an appeal, and the tax-costs that might accrue thereon in case they payers then moved to proceed upon the appeal, failed to obtain a final decision more favorit was error to dismiss such motion, and, on able to the county than the report from motion of the commissioners, strike the appeal from the records on the ground that ap- which the appeal was taken. On June 30, pellants were guilty of laches.

1909, the appellants filed 15 exceptions to the [Ed. Note.-For other cases, see Counties, report of the auditors, in which it was alCent. Dig. $ 308; Dec. Dig. & 196.*]

leged that the county commissioners had 2. COUNTIES ($ 196*) – APPEAL FROM AUDI- misappropriated very large sums of the coun

TOR'S REPORT-MÓTION TO DISMISS-PRE-ty's money. Nothing further was done in SUMPTION.

It is error to dismiss an appeal taken by the proceeding until May 22, 1913, when countaxpayers under Act June 12, 1878 (P. L. 208), sel for the appellant taxpayers moved the from the report of county auditors settling the court “to proceed upon the appeal and exaccounts of county commissioners on the ground ceptions filed in the above case by directing that the essential records, including the books, papers, and vouchers explanatory of the acts an issue or otherwise as to the court may complained of, have been destroyed or have be- seem necessary and lawful in the premises." come inaccessible to both parties, in the ab- The court granted a rule upon the commissence of evidence thereof, though four years sioners to show cause why the motion should have elapsed since the taking of the appeal; there being no presumption of such destruc- not be allowed. No answer was filed, but tion or inaccessibility.

the commissioners moved the court to dis[Ed. Note. For other cases, see Counties, miss the exceptions filed by the taxpayers Cent. Dig. $ 308; Dec. Dig. & 196.*]

and strike off their appeal, assigning as rea3. COUNTIES ($ 196*) – APPEAL FROM AUDI sons the "want of due and timely prosecu

TOR'S REPORT-MOTION TO DISMISS-HEAR- tion” and that the exceptions were "too genING.

In deciding a motion to strike from the eral, not specific.” The learned court below record an appeal taken under Act June 12, refused the motion of the appellants to pro1878 (P. L. 208), from the report of county ceed upon the appeal, dismissed the excepauditors settling the accounts of county com- tions filed in support of the appeal, and missioners, it was error for the court to consider a resolution passed by the successors of struck the appeal from the record. In its the commissioners by which they attempted to opinion the learned court says: discredit the good faith of the appellant tax

“We will dismiss these exceptions, refuse to payers and protested against any prosecution direct an issue, and direct that the appeal be of the appeal.

stricken off for the reasons that respondents [Ed. Note. For other cases, see Counties, (county commissioners) were justified in preCent. Dig. § 308; Dec. Dig. § 196.*]

suming an abandonment because of the laches

of the appellants, and for the further reason Appeal from Court of Common Pleas, Brad- that we are convinced that at this late date the ford County.

respondents could not have the matters exceptIn the matter of the auditors' report for ed to fairly adjudicated. Bradford county for the year 1908. From a From that order or decree the taxpayers, judgment striking from the record the tax-appealing from the report of the auditors, payers' appeal from such report, F. N. Moore have taken this appeal. and others appeal. Reversed.

[1] From the reasons assigned by the Argued before FELL, C. J., and BROWN, learned court below for striking off the apMESTREZAT, POTTER, and STEWART, JJ. peal from the report of the county auditors,

W. G. Schrier, of Athens, and E. M. Dun- we think it misapprehended the position of

W. G. Schrier, of Athens, and E. M. Dun- the parties on the record, and mistakenly atham, of Sayre, for appellants. Rodney A. Mercur and Mial E. Lilley, both of Towanda, tributed the default of the prosecution of the

proceedings to the appellants. The act of for appellees.

April 15, 1834 (P. L. 537), authorizing the

county auditors to settle and adjust the acMESTREZAT, J. The auditors of Brad-counts of the commissioners and other counford county filed in the common pleas their ty officers, requires their report to be filed in annual statement or report of the settlement the court of common pleas. The fifty-sixth of the accounts of the several county officers section provides as follows: for the year 1908, and on May 15, 1909, more

“An appeal may be made from such report than 325 taxpayers of that county, in behalf to the court of common pleas of the same coun

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

ty, either by the commonwealth, the county orner as it deemed proper. The motion was the officer, and thereupon the court may direct certainly very appropriate under the circuman issue as the case may require, to be tried by a jury, upon whose verdict final judgment shall stances. The commissioners who were chargbe entered."

ed with the misappropriation neglected to The act of June 12, 1878 (P. L. 208), un- have the cause tried and the question deterder which the appeal from the auditors' re

mined whether they had misappropriated the

funds. The position of the parties on the port was taken in this case, provides that any ten or more taxpayers of the county record required the commissioners to act, may, in behalf of such county, appeal from and, failing to do so, the taxpayers who had the report of the county auditors to the com- duly prosecuted their appeal cannot be chargmon pleas, and requires the appellants to ed with laches because they had not moved give bond to pay all costs unless a final deci- the court earlier to proceed and determine

the issue. sion be obtained more favorable to the coun

As we have already said, the

learned court misapprehended the position of ty than the report of the auditors. The appeal in the present case was proplaches in disposing of the question at issue

the parties on the record, and attributed erly taken and entered in the court of com

to the wrong party. mon pleas by the appellants, and the statutory bond was given and approved by the striking the appeal from the record—that the

[2] The reason assigned by the court for court. The statute makes no provision for filing exceptions or specifications of error to the acts complained of may have passed out

books, contracts, and vouchers under which the report of the auditors. It is the practice, of the hands of the respondents and may however, in many counties to file such ex- have been destroyed as useless--is without ceptions, and there certainly can be no ob

merit. There is no presumption after so jection, as it informs the alleged delinquent short a period that the official records have officer of the ground on which the appeal was been destroyed or are not accessible to both taken. The court may direct, the act pro- parties. The commissioners knew within a vides, an issue to be tried by a jury, which very short time after the report was filed by evidently contemplates, upon the application the auditors that an appeal had been taken of either or both of the parties. If no such and was pending, and that a bond securing application be made, we can see no reason the costs had been approved by the court, why the court should not hear and dispose and if they destroyed their vouchers or other of the appeal.

papers necessary to their defense it was done In the present case the appeal from the re- with full knowledge that the taxpayers of the port was taken and entered in time. Within county were demanding an investigation of a few weeks thereafter the exceptions were their official conduct by the court. The defiled by the appellants, setting out the items struction of these papers, it will be observed, of the alleged misappropriation by the com- is simply a surmise by the learned court, and missioners. This was the status of the rec-is not a fact disclosed by the evidence. The ord when the appellants moved the court “to commissioners do not set it up in an answer, proceed upon the appeal and exceptions filed and much less do they attempt to establish it in the above case by directing an issue or by evidence. A surmise of the existence of a otherwise as to the court may seem necessa- fact, however important, is not sufficient to ry and lawful in the premises.” The issue as justify a court in denying the taxpayers of a made up on the record, with or without the county the right to have an investigation of exceptions, put the burden upon the commis- the conduct of officials charged with such sioners of showing that they had legally dis-important duties as those of county commisbursed the funds of the county. Whether sioners. the cause was heard by the court or before a [3] The learned judge in his opinion quotes jury on an issue directed by the court was a resolution passed by the present board of wholly immaterial, as the burden of proof commissioners of Bradford county, which, he was on the commissioners affirmatively to says, should be taken into consideration by make out a prima facie case as to all the the court in determining whether "any furitems excepted to. York County v. Thomp- ther proceedings in this case" should be takson, 215 Pa. 578, 64 Atl. 781. The commis-en.

The commis-en. In the resolution it is resolved: sioners were the plaintiffs, and the appel

"That we are of opinion that if said appeal lants were the defendants in the issue then and said exceptions were really filed in good before the court. The appellants had “pros- faith there has not been any due and timely ecuted their appeal” without any laches, and that their present agitation is founded upon

prosecution of the same, and we do not believe an issue was formed which imposed upon the good faith, and we therefore object and protest commissioners the duty of having it disposed against any issue now being framed for the of. The further delay was not in prosecuting trial of said, exceptions in which the said coun

ty of Bradford shall be use plaintiff, as the the appeal, but in bringing the issue, formed same would make an unwarranted and unnecesby the pleadings, to trial before the court or sary expense to said county of Bradford, in our before the court and a jury. The motion of opinion.” the appellants was not, as the learned court This is a remarkable resolution for any thought, for an issue, but for the court to board of county commissioners to pass under proceed to dispose of the appeal in such man- the circumstances. It shows that the pres

ent board was not properly advised as to its entire misapprehension of its official duties. duties in the premises. It was this miscon- It would have been well for the present board ception of duty and the failure of the per- of commissioners to have submitted its resoformance of their duties by public officials lution to its counsel before it entered the resthat prompted the passage of the act of 1878 olution upon its minutes. He would have under which this proceeding was instituted, advised them that one of the grounds upon and which authorizes ten or more taxpayers which they rest their resolution—to wit, that to prosecute or defend any suit or action in the prosecution of the case would make an behalf of the county. It is the duty of the unwarranted and unnecessary expense to county commissioners to prosecute and de- said county of Bradford—was entirely infend all suits in behalf of the county. It is correct, as the act of 1878 requires taxpayers, no less their duty to protect the taxpayers of in taking an appeal from the report of counthe county by instituting suits against de- ty auditors, to "enter into recognizance with faulting public officials. Unfortunately it has two sufficient sureties" to protect the county been the experience of taxpayers in many against the costs of the proceeding. This counties of the state that such duty is fre-fully protects the county for the use of its quently not performed, and, in obedience to a name in the proceeding. Here a bond was demand arising from such failure of duty, given on the day the appeal was taken as rethe Legislature passed the act of June 12, quired by the act in an amount and with 1878 (P. L. 208), which empowers taxpayers sureties approved by the court. The groundto institute and defend actions for the coun-lessness of this reason assigned by the presty, a duty which should be performed by the ent commissioners is apparent without furcounty commissioners. We said in Bell v. ther discussion. The other reason assigned Allegheny County, 149 Pa. 381, 385, 24 Atl. by the commissioners for their intervention 209, 210, that the act of 1878 "should be most in behalf of their predecessors—to wit, that liberally construed.” When taxpayers are the appeal from the report of the auditors compelled to invoke the authority of the act to had not been duly and in good faith prosesecure an investigation of the official conductcuted-is a question for the court under the of public officers charged with the adminis- law and the evidence, and not for the prestration of the fiscal affairs of the county, the ent county commissioners to determine. The court should not be astute in finding techni- learned judge of the court below was clearcal reasons to defeat the purpose.

ly wrong in permitting the resolution to have Two boards of county commissioners have any place in his consideration of the applicasucceeded the alleged defaulting board, and, tion of the appellants to have the cause proso far as the record discloses, neither board ceeded with in his court. The statute does has given any assistance in having the con- not recognize the present board as having duct of the former board of commissioners in- any standing in the proceeding, and whether vestigated. On the contrary, the present they desired it discontinued or not was wholboard of commissioners, ignoring the fact ly immaterial. that over 325 taxpayers of the county charg We think the court below should have ed the former board in its official capacity granted the motion of the appellants and with the misappropriation of large sums of proceeded to a determination of the cause. money, "object and protest against any issue If either party desires, he can make an apbeing framed for the trial of said exceptions” plication to the court to direct an issue. If averring official misconduct. If the present no issue is desired, the court should dispose board does not wish to join the taxpayers in of the appeal from the report without any this investigation, the least it could do would further delay. be to keep its hands off. No statute author The order or decree of the court below is izes it to interfere in behalf of the former reversed at the costs of Edson D. Harkness, commissioners as against the county and its Langdon H, Marsh, and M. J. McNulty, and a taxpayers, and when it does so it shows an procedendo is awarded.

(244 Pa 447)



The proviso to Act July 24, 1913 (P. Lu (Supreme Court of Pennsylvania. March 16, 1008) 8 13, that when only one person is to be 1914.)

elected to an office, and there are several can1. CONSTITUTIONAL LAW ($_48*)—PRESUMP- than one-half the total vote for such office and

didates at the primary, the one receiving more TION AS TO VALIDITY OF STATUTES. All presumptions are in favor of the va

also more than one-half of the ballots cast lidity of a statute.

shall be the sole nominee on the ballot, does

not discriminate against any elector in viola[Ed. Note. For other cases, see Constitution-tion of his constitutional rights. al Law, Cent. Dig. § 46; Dec. Dig. § 48.*]

[Ed. Note. For other cases, see Elections, 2. ELECTIONS (§ 1072*)-"FREE AND EQUAL." Cent. Dig. § 15; Dec. Dig. § 22.*]

The declaration of the bill of rights that elections shall be "free and equal” means that 9. STATUTES ($ 71*) – “UNIFORM" ELECTION

LAWS-VALIDITY OF STATUTE. the voter shall not be physically restrained in the exercise of his right of franchise, by either

Act July 24, 1913 (P. L. 1001), which recivil or military authority, and that 'every vot-lates only to the office of judge and provides a er shall have the same right as every other method of electing judges throughout the comvoter.

monwealth, does not violate Const. art. 8, § 7, [Ed. Note.--For other cases, see Elections, providing that “all laws regulating the


* shall be uniform Dec. Dig. § 1042.*]

throughout the state”; a law being "uniform" 3. ELECTIONS (8 5*)-REGULATIONS-LEGISLA- when all persons placed in the same circumTIVE POWER.

stances are treated alike. The Legislature has power to regulate

[Ed. Note. For other cases, see Statutes, elections, to prescribe the form of the official Cent. Dig. $ 71; Dec. Dig. $ 71.* ballot, and to provide in what manner candi For other definitions, see Words and Phrasdates shall be chosen and what names shall be es, vol. 8, pp. 7175, 7652.] printed on the ballot as a result of the primary.

[Ed. Note.-For other cases, see Elections, Appeal from Court of Common Pleas, PhilCent. Dig. 8 4; Dec. Dig. & 5.*]

adelphia County. 4. CONSTITUTIONAL LAW (8 70*)-LEGISLA Action on case stated by John C. Winston

TIVE CONTROL OF ELECTIONS - JUDICIAL and others against Robert J. Moore and POWER.

Errors of judgment in the execution of the others. From decree entering judgment for legislative power to regulate elections, or mis- defendants, plaintiffs appeal. Affirmed. taken views as to the policy of the law or the

The case stated was as follows: wisdom of the regulations, do not authorize

The parties to this litigation agree as folthe courts to declare invalid an election law

lows: which does not clearly violate some constitu

1. This case shall be decided as if the facts tional requirement. [Ed. Note. For other cases, see Constitu- in equity

and an answer thereto had been filed,

herein stated had been duly averred in a bill tional Law, Cent. Dig. 88 129-132, 137; Dec. admitting said facts, and submitting the quesDig. $ 70.*)

tions of law involved to the court for decision. 5. ELÉCTIONS ($ 22*) - PRIMARY ELECTION - 2. Plaintiffs are citizens, residents, and taxBALLOT-VALIDITY OF STATUTE.

payers of the state of Pennsylvania, city and The provision of Act July 24, 1913 (P. L. county of Philadelphia. 1001), limiting the names of candidates to be 3. Defendants are county commissioners of printed on the official ballot to the two who the county of Philadelphia. polled the highest vote at the preceding pri

4. Defendants are about to, and unless remary, is not violative of the provision of bill strained by the court will, spend money of the of rights that all elections shall be free and county in the printing of official nonpartisan equal.

ballots and other election material, under the [Ed. Note.-For_other cases, see Elections, provisions of the Act of July 24, 1913 (P. L. Cent. Dig. § 15; Dec. Dig. $ 22.*]

1001), for use at the forthcoming primary elec

tion to be held within the state of Pennsyl6. ELECTIONS ($ 21*)-CANDIDATE FOR NOMI- vania, on the third Tuesday of May, 1914, and

NATION – DUTIES IMPOSED - VALIDITY OF in preparation for the nonpartisan nomination STATUTE.

of judges at such primary under the terms of The requirements of Act July 24, 1913 (P. the said act. L. 1001), that a candidate for nomination shall 5. It is agreed that if the Act of July 24, file with his petition an affidavit stating his 1913 (P. L. 1001), entitled "An act to regulate residence, post office address, election district, nominations and elections for all elective offices the name of the office for which he is a candi- of cities of the second class and all offices of date, and other matters relating to his candi- judge of a court of record; providing for nondacy, which requirements enjoin a duty on the partisan nominations and elections for said ofcandidate rather than on the voter and only fices; abolishing certain existing methods of incidentally involve the voter's right, do not nomination in such cases and the use of party invalidate the act.

or political names or appellations at elections [Ed. Note.-For other cases, see Elections, with respect to said offices; imposing certain Cent. Dig. 8 15; Dec. Dig. 21.*]

duties upon the Secretary of the Common

wealth, county commissioners, and election offi7. ELECTIONS ($ 21*)--PARTY NOMINATIONS – cers and clerks; and providing penalties for VÄLIDITY OF STATUTE.

the violation of the provisions hereof, and the Since the Constitution is silent on the right punishment of certain offenses,” is constitutionto make party nominations for offices, the Legal, judgment shall be entered for the defendislature has wide discretion in such matters, and ants; if the said act is unconstitutional, an Act July 24, 1913 (P. L. 1001), is not invalid injunction shall issue to restrain defendants because it abolishes party nominations for cer- from printing any nonpartisan ballots or spendtain offices.

ing any money of the county under the proviEd. Note.-For other cases, see Elections, sions of the said act, either party to have the Cent. Dig. & 15; Dec. Dig. & 21.*]

right to appeal as in other cases. •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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