
    Commonwealth, v. Luzerne Co.
    The auditor general and state treasurer form a tribunal having jtirisdictdon to settle the accounts for tax on personal property between the counties and the state, and where this jurisdiction has been once exercised, their conclusions are final if no appeal be taken.
    Certain state taxes upon personal property in Luzerne county for the years 1875, 1876 and 1877, duly paid into the state treasury, were declared by the court to be illegal, and the board of revenue commissioners, composed of the state treasurer, auditor general and secretary of the commonwealth, in a credit settlement, in 1879 and 1882, credited the county with these taxes, from which no appeal was taken. In 1878 the county of Lackawanna was formed from a part of the county of Luzerne. In 1884, the board of revenue commissioners passed a resolution dividing the above credits between the new county and the old one, 
      in proportion to the property in each county represented by the tax, and charging the old county with the amount credited to the new, and the settlement was so made by the state treasurer and the, auditor general. On an appeal from this settlement by Luzerne county: Held that the credit should be restored to Luzerne county by the entry of judgment for the county against the commonwealth for the amount transferred.
    May 30, 1888.
    Error, No. 7, May T. 1888, to C. P. Dauphin Co., to review a judgment on an appeal from a tax settlement, to-August Term, 1884, No. 293. Tbunkey, J., absent.
    The case was tried without a jury under the Act of 1874. The court found the facts and conclusions of law as follows, in an opinion by McPherson, J.:
    “ 1. In November, 1879, the auditor general and state treasurer settled an account with the county of Luzerne for tax on personal property for the year 1879, which showed a balance due the county of $26,596.33. In April, 1881, a like account was settled for 1880, showing a balance due the county of $24,746.65. In December, 1881, a like account was settled for 1881, showing a balance due the county of $22,896.97. In May, 1883, a like account was settled for 1882, showing a balance due the county of $32,263.14. These accounts are connected, the balance from one year being carried forward to the next. No appeal was taken from any of these settlements and they have never been opened.
    “ 2. In April, 1884, a settlement for the year 1883 was made, and the plaintiff was charged therein with $11,263.59 which was transferred to the credit of Lackawanna county without the plaintiff’s consent.
    “ The present appeal is taken from this transfer.
    “ Conclusions of law :
    “We have been referred to no statute or decision which authorizes the auditor general and state treasurer to take the action complained of. [The preceding settlements of 1879-82, unopened and unappealed from, were conclusive upon both the county and the state, and, since it appeared therefrom that, at the end of the tax year of 1882, the plaintiff was entitled to a credit of $32,263.14, this credit was supported by the final decree of a competent tribunal. It was a valuable interest, and, while the decree stood untouched, could not be taken away or diminished by the accounting officers, without the county’s consent.] [1]
    “ In our opinion, there is no other question in the ease. [The auditor general and state treasurer form a tribunal having jurisdiction to settle the accounts for tax on personal property between the counties and the state. Having this jurisdiction, and having also exercised it, their conclusions are final if no appeal be taken. This is a well-known rule, and the result of applying it is that nothing-before us is open to attack except the account for 1883. As to that, no item is appealed from save the attempted transfer of credit, and the precise point before us seems to be the bare question of power. Prima facie, such a transfer of property from one person to another is without authority, and since the commonwealth is unable to support it by statute or decision we think the plaintiff is entitled to a judgment as hereafter stated.] [2]
    “ The commonwealth thinks, however, that other questions are involved, and we will find the further facts needed to present them.
    “ 3. For the years 1875, 1876 and 1877 the Board of Revenue Commissioners increased the sum of the returns of personal property made to it for state taxation by the county of Luzerne. The right of appeal from such action of the board had not yet been given, and the county paid the taxes due upon the increase.
    “ 4. For the year 1878 the board made a similar increase, and from this the county appealed to this court as provided by the Act of 1878, P. L. 126. In October, 1878, a final decree was entered, declaring the increase to have been made illegally, inequitably and without proper and sufficient information, and certifying to the auditor general and state treasurer that the amount of the illegal increase was the annual sum of $13,587.
    “ 5. Afterward the board decided that the increase made by it for 1875, 1876 and 1877 had been illegal and directed the auditor general and state treasurer to credit the county with the excess of tax paid for these years. Accordingly, in November, 1879, and April, 1882, these officers made credit settlements with the county of $30,682.48 and $14,608.23 respectively. These credit settlements are also embraced in the annual settlements referred to in paragraphs 1 and 2.
    “ 6. In 1883 Lackawanna county, which was set off from Luzerne in 1878, petitioned the board to revise the credits thus allowed and to award to her a proportionate share thereof. Luzerne county protested, but in January, 1884, the board decided that Lackawanna county was entitled to a share, and passed this resolution :
    
      “‘Resolved, That said credit settlements be divided between the counties of Luzerne and Lackawanna so that Luzerne county shall retain the three-fourths of the same and the remaining one-fourth be given to the county of Lackawanna, as that is the proportion which its taxation, as compared with that of Luzerne, entitles it to receive.’
    
      “1. In pursuance of this resolution, and acting under its authority, the auditor general and state treasurer made the transfer complained of.
    “We repeat, that, in our judgment, these facts are not now relevant, because, either in whole or in part, they lie behind the annual settlements of paragraphs 1 and 2 and cannot be reached while those settlements are untouched. But if they are proper to be considered, we have only to say briefly that the Board of Revenue Commissioners had no authority to interfere with the credit settle- ' ments of the plaintiff. The powers of the board are statutory and it is nowhere clothed with the right to take credit from one county and give it to another. Therefore, the resolution quoted was upon a subject beyond its jurisdiction and could convey no authority. In this matter, the board had no authority to give. If the transfer is based upon this resolution, it has no foundation and must fall.
    [“The plaintiff is entitled to have restored the credit of $11,263.59 transferred to the credit of Lackawanna county, and we direct a judgment to this effect to be entered if exceptions are not filed according to law.”] [9.]
    The Commonwealth filed exceptions, 1, 2 and 9, to the conclusions of law stated in the portions of the opinion included within brackets, and also the following :
    
      “ 3. The court erred in not finding, as matter of fact, that on Nov. 6,1879, the Board of Revenue Commissioners directed a credit settlement to be made by the auditor general and state treasurer, in favor of Luzerne county, for $30,682.48, and also on April 11,1880, another credit settlement of $14,668.23; that these two sums were accordingly credited and were the amounts which were ascertained by the said board to have been paid in excess of what Luzerne county otherwise would have paid in the years 1875,1876 and 1877, but for the action of the Board of Revenue Commissioners, in those three years, in revising and increasing the valuation and assessment of the county of Luzerne.”
    “ 4. The court erred in not distinctly finding, as matter of fact, that these sums had previously been actually paid into the state treasury by the county of Luzerne in the years 1875,1876 and 1877.”
    “ 5. The court erred in not finding, as matter of fact, that the amount now to the credit of Luzerne county, is the remainder of the said two credit settlements allowed to the county of Luzerne, and that the amount debited to the county of Luzerne, and credited to the county of Lackawanna, in controversy in this case, is a portion of the amount of the sum of the two credit settlements before mentioned, to wit: the credit settlements stated in the exception numbered 3 above.”
    “ 6. The court erred in not holding, as matter of law, that there was no authority of law for the said credit settlements of the said two sums mentioned m exception No. 3, and that, in making such credits, the auditor general and state treasurer acted in excess of their lawful authority and jurisdiction, and that the said credit settlements were therefore void, and of none effect as against the Commonwealth.”
    “ 7. The court erred in not holding, as matter of law, that there is no authority vested in the auditor general and state treasurer, enabling them to give credit back for sums of money actually theretofore paid into the treasury of the Commonwealth.”
    “ 8. The court erred in not holding, as matter of law, that the action of the Board of Revenue Commissioners in the years 1875, 1876 and 1877, by revising and increasing the valuation of the county of Luzerne, as set forth in exception 3, having been acquiesced in by the county of Luzerne by payment by said county of the sums assessed against the county of Luzerne by ^aid board, was final and conclusive as against said county, and that the auditor general and state treasurer had no power or authority of law indirectly to modify or reverse the action of the said Board and of the said county, pursuant thereto, by indirectly appropriating from the state treasury the amount theretofore paid in by the county of Luzerne, pursuant to the action of said Board, and crediting the said amount to the county of Luzerne.”
    “ 10. The court erred in not holding, as matter of law, that, inasmuch as Luzerne county had failed to show title to be credited with the said two sums of $30,682.48 and $14,608.23, and that inasmuch as the debit to Luzerne county of $11,263.59 was entered against the said unauthorized and unlawful credit, thereby diminishing the amount thereof to that extent; that Luzerne county had failed to show any legal injury done to or suffered by her, in consequence of the said credit, and that therefore judgment should go in favor of the Commonwealth upon the appeal of the said county of Luzerne.”
    
      “ 11. The court erred in not entering judgment for the Commonwealth, and against the county of Luzerne, upon the matters specified in the appeal.”
    The court dismissed the exceptions in the following opinion:
    “We have carefully considered the very able and elaborate argument of the Commonwealth in support of her exceptions, but are still of opinion that the principal questions stated therein cannot be raised on this appeal.
    “ The appeal, we repeat, is simply from the settlement of 1883, and does not bring up for scrutiny and decision the settlements of earlier years. The settlement for 1883 shows that the county of Luzerne had a credit with the Commonwealth, arising from past transactions, of $32,263.13. This is expressly stated to be a balance brought over, and the manner in which it was reached is not, as we think, a matter we can now consider. It is also stated to be a balance arising from the dealings of the county with the Commonwealth in respect to the tax on personal property, and this is a subject within the authority and jurisdiction of the accounting departments. If, in these dealings, they have mistakenly exceeded their authority, the mistake does not appear on the settlement before us, and is only to be found, if at all, by going behind it and examining not only other settlements unopened and unappealed from, but also the action of another body, namely, the Board of Revenue Commissioners. In this proceeding, we cannot go so far afield. To do so would be contrary to the unbroken practice of this court and, in our opinion, to the settled rules of procedure in all courts.
    “ Some effect must be given to the official action of the accounting departments, and it matters little whether that action be called judicial or administrative or ministerial. At all events, these departments form a tribunal of some sort, to which has been given the power of settling certain accounts with the counties, and when they exercise the power of settlement upon one of the accounts within their jurisdiction, the result of their action cannot be collaterally attacked. "We believe the following authorities support this statement : Spangler v. Com., 8 Watts, 57; Com. v. Reitzel, 9 W. & S. 109; Hutchinson v. Com., 6 Pa. 124; Porter v. School Directors, 18 Pa. 144; Com. v. Freedley’s Ex., 21 Pa. 33; Northampton Co. v. Yohe, 24 Pa. 305; Fitler v. Com., 31 Pa. 406; Blackmore v. Allegheny Co., 51 Pa. 160; Phila. v. Com., 52 Pa. 451; Burns v. Clarion Co., 62 Pa. 422; Glatfelter v. Com., 74 Pa. 74; Siggins v. Com., 85 Pa. 278; Com. v. Knox, 1 Penny. 478; Com. v. R. R., 2 Pears. 389, 394. Now, one of the accounts within their jurisdiction is that of each county with the Commonwealth in respect to the tax on personal property. Exercising their undoubted power upon this subject, we find, as a result, that, at the beginning of the tax year of 1883, the county of Luzerne is declared to have a balance to its credit of $32,263.13. How this balance was reached the settlement does not show, but the presumption is in favor of its correctness and legality. If it be attacked, it is seen at once that the presumption can only be overthrown by also attacking several preceding settlements, all unopened and unappealed from, as well as the action of another distinct tribunal, in no way a party to this proceeding. This seems to us so irregular, and so certain to produce serious confusion and conflict of authority, that we think it necessary to hold firmly to the rule supported by the cases above cited, and to refuse to examine a settlement not appealed from upon a subject within the jurisdiction of the accounting departments. Otherwise, no settlement would be final. In any year the accounts of earlier years could be gone into, and the authority of the departments would be little more than that of clerks.
    “ Possibly, the Commonwealth has placed herself in a position where she may be obliged to allow the same credit twice. We intimate no opinion on that subject, but if she has so placed herself, the situation is due to her own effort, well-meant, but none the less mistaken, to adjust a dispute which did not concern herself, but only the counties of Luzerne and Lackawanna. As we have heretofore said, the Board of Revenue Commissioners had no authority to interfere with the credit settlement of Luzerne county, and therefore could give none to the auditor general and state treasurer. The transfer made by the latter has no foundation in statute or decision, and being brought before us by appeal must be declared erroneous.
    . “ The exceptions are overruled and judgment is directed to be entered in accordance with the opinion previously, filed.”
    Judgment was accordingly entered and the Commonwealth took this writ.
    
      The assignments of error specified the action of the court, 1 — 11, in dismissing the exceptions, quoting them.
    
      John F. Sanderson, Deputy Attorney General and W. S. Kirkpatrick, Attorney General, for plaintiff in error.
    The credit settlements cannot be sustained because founded upon the action of the board of revenue commissioners. This body has no authority to revise its own action in any year. After its acts are fully perfected, it is functus officio. Analogous doctrine is declared and applied to the action of county auditors in Northumberland Co. v. Bloom, W. & S. 542; Northampton Co. v. Yohe, 24 Pa. 305.
    The credit settlements cannot be sustained because founded upon the action of a body conventionally styled the board of public accounts. Bed&use the action in question is that of the auditor general and state treasurer in the first instance, each acting for himself.
    Resettlements, under the Act of April 8, 1869, § 1, P. L. 19, must be based on former action erroneously or illegally had, and must be made according to law, but no action of the auditor general for the years embraced in the credit settlements are or can be so impeached.
    The credit settlements cannot be sustained as action, under the Act of April 21, 1846, § 8, P. L. 1415, had by the auditor general, because the remedy under that Act extends only to accounts of public officers and to errors in their accounts prejudicial to the Commonwealth.
    The credit settlements cannot be sustained as action, under § 16, of the Act of 1811, by the auditor general and state treasurer, because they do not purport to have been made pursuant to said section, nor at the request of either of said officers made to the other, nor of the party, but are founded on the action of the board of revenue commissioners. Nor are they revisions of settlements made by the auditor general, but are original settlements.
    The credit settlements cannot be sustained under § 1, of the Act of 1811, because Luzerne county had no claim on the Commonwealth. By claims on the Commonwealth, within the intendment of the Act of 1811, is meant demands, such in their nature as would, if against individuals, be sufficient to constitute valid causes of action.
    The doctrine of respondeat superior does not apply to the government, and the state is not legally liable to a claim of compensatory damages for an injury resulting from the misconduct or negligence of its own appointed officers. Clodfelter v. North Carolina, 86 N. C. 51.
    Yoluntary payment of an illegal tax cannot found a cause of action. Taylor v. Board of Health, 31 Pa. 73; Allentown v. Saeger, 20 Pa. 421.
    If Luzerne county had a valid claim, the auditor general had no authority to make a credit settlement of it from which items due from the county might be deducted and payment of them thereby evaded. Yalid claims are of two kinds: 1. Those for which an appropriation has been made. For these a warrant is drawn. Act of 1811, § 6, P. L. 146. 2. Those for which no appropriation has been made, but which are “ eases where the laws recognize a claim on the Commonwealth.” These are reported to the legislature so that, if approved, an appropriation may be made. Act of 1811, § 7, P. L. 14V. The 51st section of the Act of 1811, P. L. 158, has in view the allowance of a claim by the auditor general for which-an appropriation exists and for which a warrant may be drawn, but where the party entitled to the warrant is a debtor of the Commonwealth. In such case, the right of retainer is exercised, the auditor general secures the Commonwealth’s debt, or so much of it as the claim on the Commonwealth amounts to.
    Such a credit settlement is contrary to the constitutional provision that money cannot be withdrawn from the treasury save in pursuance of an appropriation. R. R. v. Alabama, 11 Otto, 832.
    The question involved concerns the rights of the Commonwealth, as affected hy the conduct of her agents, and, in such case, the authority is to be found in the letter of the law aided by no liberality of intendment. The Floyd Acceptances, 7 Wall. 666; Green v. Beeson, 31 Ind. 7; Parsel v. Barnes & Bro., 25 Ark. 261; City v. Reynolds, 20 Md. 1; Delafield v. The State, 26 Wend. 192; Com. v. Fitler, 12 S. & R. 277.
    She cannot be estopped by unauthorized acts. Bigelow on Estoppel, 331.
    If the credit settlements were unauthorized, they can be impeached in the present proceeding.
    All the cases asserting, sometimes without qualification, the binding character of acts of the auditor general and officers exercising similar functions, are such as deny the right to go into the merits of matters duly passed on within the scope of proper authority. Com. v. Freedley’s Executors, 21 Pa. 33; Porter v. School Directors, 18 Pa. 144; Com. v. Knox et al., 1 Penny. 478; Blackmore v. Allegheny, 51 Pa. 160; Spangler v. Com., 8 Watts, 57; Com. v. Johnson, 6 Pa. 136; Com. v. Pittsburgh & Connellsville R. R., 2 Pearson, 389; Com. v. Fitler, 31 Pa. 406; Delaware Division Canal Co. v. Com., 50 Pa. 399; Lehigh Crane Iron Co. v. Com., 55 Pa. 448, Id. 1 Pearson, 364; Siggins v. Com., 85 Pa. 278, and cases cited in opinion.
    The binding character of his acts, is frequently in the application of the doctrine in favor of the Commonwealth and against the individual, but the individual is bound by acquiescence, and by failure to pursue the sole remedy which the law provides for him, to wit, the appeal. Brown v. White Deer Township, 27 Pa. 109; Dyer v. Covington Township, 28 Pa. 186; South Carolina v. Corbin & Stone, 16 S. C. 533; Pulaski Co. v. State, 42 Ark. 118; Attorney General v. Marr, 55 Mich. 445; Gough v. Dorsey, 27 Wis. 119; State v. Brown, 10 Or. 215; State v. Hastings, 10 Wis. 525; Marion County v. Phillips, 45 Mo. 75.
    By the constitution of the state of Oregon the secretary of state is declared to be, by virtue of his office, auditor of public accounts. In State v. Brown, 10 Or. 215, it was held that the decision of the secretary upon a claim against the state is conclusive upon the rights of the parties in a collateral proceeding, and that the allowance of a claim by the secretary does not constitute an account stated so as to preclude an inquiry into its correctness in an action at law brought by the state for a sum of money alleged to have been unlawfully allowed in the said account, and paid through mistake.
    The auditor general exercises an administrative function and is vested with no judicial power. Art. iv, § 1, and Art. v, § 1, Const.; Greenough v. Greenough, 11 Pa. 489; Burns v. Clarion Co., 62 Pa. 422.
    
      J. C. McAlarney, for defendant in error.
    Under the Act of 1811, the auditor general is empowered to settle accounts, and, under the Act of 1869, the auditor general, state treasurer and attorney general are authorized to revise settlements, for errors appearing from the accounts, or from other information.
    If the auditor general and state treasurer had jurisdiction, it is to be presumed that everything was rightly done. Fowler v. Jenkins, 28 Pa. 178; Phila. v. Com., 52 Pa. 453.
    There is no pretense that by the provisions of the Act under which Lackawanna county was created, this transfer of credit was, or could be made. Act of April 17, 1878, § 16, P. L. 17.
    No provision having been made by the Act under which it was created a county, no part of the property of Luzerne county belonged to Lackawanna, the Legislature alone having the power to apportion the property and common burdens in such a manner as to them seem reasonable and equitable. Cooley on Taxation, ed. of 1876, page 176, and cases cited.
    When Lackawanna was created a county, nothing could be claimed or recovered but that given it by the Act, and it was beyond the constitutional power of the Legislature to have done what has been attempted by the auditor general and state treasurer in this case. The Legislature having no power to interfere with vested rights, to give the property of- A to B is clearly beyond legislative authority. McCabe v. Emerson, 18 Pa. 111.
    The partition of the property must be made by the Legislature at the time of the division of, or change in the corporation, since, otherwise, the old corporation becomes the sole owner of the property, and hence cannot be deprived of it by a subsequent Legislature. 16 Mass. 76; 4 Mass. 39 ; 6 Greenleaf, 112.
    A settlement made by the auditor general and approved by the state treasurer, unappealed from, is conclusive upon the Commonwealth and the person, body politic, or corporation with whom it is made. Respublica v. Sergeant et al., 3 Yeates, 543; Bespublica v. Bruce’s Admrs., 4 Yeates, 361; Blackmore v. Allegheny Co., 51 Pa. 163 ; Spangler v. Com., 8 Watts, 57; Com. v. Aurand, 1 Rawle, 284; Com. v. Reitzel, 9 W. & S. 112; Hultz et al. v. Com., 3 Grant, 61; Hays v. Com., 27 Pa. 274; Phila. v. Com., 52 Pa. 450; Glatfelter v. Com., 74 Pa. 74; Siggins v. Com., 85 Pa. 282; Hutchinson v. Com., 6 Pa. 127.
    If the auditor general and state treasurer had legal authority to settle and pass upon the accounts of Luzerne county, their act must be regarded as the judgment of a competent judicial tribunal, created by the state for that purpose. People of Michigan v. Phoenix Bank; 7 Bosworth, 20; 6 Tiffany, 9; Com. v. Reading and Wilmington R. R., 2 Pearson, 395.
    The state, seeking equitable relief, is subject to the same rules and equities as ordinary suitors, is bound to use the same diligence, and is chargable with Eke notice and affected by laches to the same extent as private suitors. 4 W. C. C. R. 464; s. c. 12 Wheat. 539; 2 How. 711; 15 Pet. 377; 1 Brock, 177; 3 Sum. 308; 10 Pet. 662, 917; 13 How. 12; 11 Pet. 257.
    "Whoever claims a right, affirms such right, and must support it by proof. Zerbe v. Miller, 16 Pa. 497.
    Prima facie, the money belonged to the plaintiff, as it was deposited to the credit of the trustees; the burden of proof was on defendant to show that it did not belong to them. Arnold v. Macungie Bank, 71 Pa. 290.
    The credit on the books of the Commonwealth is prima facie evidence of ownership in the county of Luzerne. Bank v. Mason, 95 Pa. 117.
    Oct. 1, 1888.
   Per Curiam,

Por reasons given in the opinion of the learned judge of the court below, we affirm this case.

Judgment affirmed.  