Opinion by
Mr. Justice Linn,
Appellant, a taxpayer, filed a class bill, praying, inter alia, that defendants, alleged “for the past ten years [to] have been duly elected directors of the poor,” be surcharged with unlawful expenditure of money in the purchase of three tracts of land for the Allegheny County Home.
Answers denying liability were filed. The chan
cellor entered a decree nisi ordering payment to the Allegheny County Home. Exceptions were sustained by the court in banc, which was of opinion that “there is no evidence to establish fraud as a fact on the part of the defendants. ...” After the first argument in this court, it was deemed wise to order reargument for consideration of a phase of the case not dealt with in the first argument made on behalf of appellant.
At the reargument, counsel on both sides agreed that the law required the controller
of Allegheny County to audit the accounts, and that they had been audited.
That agreement has materially shortened what needs now to be said. The rule that an auditor’s or controller’s report, unappealed from, is controlling (O’Gara v. Phillips, 297 Pa. 526, 147 A. 613; Senor v. Dunbar Twp. School Dist., 307 Pa. 190, 160 A. 701), even though erroneous, is not questioned. Appellant, however, denies the conclusive character of the audit “as to assets which the accounting officer conceals or of which no return is made, or which are not officially brought to the attention of the auditing officer”: see Lackawanna County’s Appeals, 296 Pa. 271, 145 A. 843; O’Gara v. Phillips, supra.
Decision now turns on whether there was evidence of such concealment; whether what was done by defendants may reasonably be said to have misled the county controller, or other auditor with like powers, from making such investigation of the challenged expenditures as would have disclosed the details of the transaction.
Payment of $105,020.25 to Louis P. Schneider for approximately 390 acres of land, designated in the record as the Carnegie Coal Co., Dorrington and the Forsythe tracts, is questioned. Schneider obtained options to buy or agreements with the owners to sell to him, and paid to the owners of the three tracts $64,188.50, retaining the difference. The learned court below stated that there was neither direct nor circumstantial evidence that defendants received any part of Schneider’s profits. The purchases were made in 1924, from February 16th to October 6th. Mr. McIntosh, who for many years had been solicitor for the Allegheny County Home, prepared the
contracts fot' the purchase of the lands, and the deeds by which the title was transferred and seems to have supervised the transfers. He arranged with a Pittsburgh Title Insurance Company for examination and insurance of the title, and participated ih the settlements conducted by the title company when the deeds
were delivered and the balance of the purchase money distributed, costs of title insurance and other adjustments were paid.
Each of the owners of the three tracts executed a separate agreement with Schneider for the sale of a tract to him and each retained an original of the agreement providing for the sale. All these agreements in the possession of the former owners, and all the records and accounts of the title insurance company relating to the transactions and showing receipts and disbursements, were of course available to the controller in the performance of his duties as auditor of defendants’ accounts for the year 1924. There is no evidence, indeed it is not even suggested, that the vendors, or the title insurance company, or any one on behalf of either, did, or omitted to do, anything which might have interfered with or obscured the performance by the controller of his duties. By calling for and examining these records, he would have learned at once all that was shown from the same sources at the trial. So, too, he might have availed himself of the records in the office of the solicitor for the Allegheny County Home, against whose connection with the transactions no charge is made. The documentary sources of information, over which the defendants exercised neither authority nor control, fully recorded all that was revealed in the trial; they were at all times available to the controller; certainly as to those sources
of information there was no concealment or other action by defendants.
What, then, is the evidence of concealment relied on? At the oral argument, counsel for appellant contended, as we understand his position, that the concealment may be inferred from the manner in which the accounts of these purchases were stated on the books of the Allegheny County Home; that the three tracts of land were not identified or described as Schneider lands, or lands purchased from Schneider, but were identified respectively as “Carnegie Coal Co.,” “Forsythe” and “Dorrington.” He contends that the accounts should formally have stated that the lands were purchased from Schneider. The books contained the following account:
“DR
“1924
%o
Carnegie Coal Co........................... $15,000.00
%i
Carnegie Coal Co........................... 4,250.00
%o
Forsythe................................... 1,000.00
%o Dorrington ................................ 1,000.00
%o Title Examination.......................... 113.00
%i
Surveying ................................. '876.00
%o Forsythe .................................. 63,762.50
%o
Dorrington ................................ 20,007.75
$106,009.25
Deduct credits set forth in detail in right-hand column.......................... 5,000.00
Net addition to real estate in 1924, as appears in report........................$101,009.25
“CR
“1924
%o
Value of house on Forsythe farm (Charged to bldg, a/c) ................... $1,800.00
%o
Value of barn on Forsythe farm (Charged to bldg, a/c) ................... 700.00
x%o Value of Baer house (Charged to bldg, a/e) ................... 2,500.00
$5,000.00.”
The accounts also contained the following:
“Real estate purchased...........................$101,009.25
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Opinion by
Mr. Justice Linn,
Appellant, a taxpayer, filed a class bill, praying, inter alia, that defendants, alleged “for the past ten years [to] have been duly elected directors of the poor,” be surcharged with unlawful expenditure of money in the purchase of three tracts of land for the Allegheny County Home.
Answers denying liability were filed. The chan
cellor entered a decree nisi ordering payment to the Allegheny County Home. Exceptions were sustained by the court in banc, which was of opinion that “there is no evidence to establish fraud as a fact on the part of the defendants. ...” After the first argument in this court, it was deemed wise to order reargument for consideration of a phase of the case not dealt with in the first argument made on behalf of appellant.
At the reargument, counsel on both sides agreed that the law required the controller
of Allegheny County to audit the accounts, and that they had been audited.
That agreement has materially shortened what needs now to be said. The rule that an auditor’s or controller’s report, unappealed from, is controlling (O’Gara v. Phillips, 297 Pa. 526, 147 A. 613; Senor v. Dunbar Twp. School Dist., 307 Pa. 190, 160 A. 701), even though erroneous, is not questioned. Appellant, however, denies the conclusive character of the audit “as to assets which the accounting officer conceals or of which no return is made, or which are not officially brought to the attention of the auditing officer”: see Lackawanna County’s Appeals, 296 Pa. 271, 145 A. 843; O’Gara v. Phillips, supra.
Decision now turns on whether there was evidence of such concealment; whether what was done by defendants may reasonably be said to have misled the county controller, or other auditor with like powers, from making such investigation of the challenged expenditures as would have disclosed the details of the transaction.
Payment of $105,020.25 to Louis P. Schneider for approximately 390 acres of land, designated in the record as the Carnegie Coal Co., Dorrington and the Forsythe tracts, is questioned. Schneider obtained options to buy or agreements with the owners to sell to him, and paid to the owners of the three tracts $64,188.50, retaining the difference. The learned court below stated that there was neither direct nor circumstantial evidence that defendants received any part of Schneider’s profits. The purchases were made in 1924, from February 16th to October 6th. Mr. McIntosh, who for many years had been solicitor for the Allegheny County Home, prepared the
contracts fot' the purchase of the lands, and the deeds by which the title was transferred and seems to have supervised the transfers. He arranged with a Pittsburgh Title Insurance Company for examination and insurance of the title, and participated ih the settlements conducted by the title company when the deeds
were delivered and the balance of the purchase money distributed, costs of title insurance and other adjustments were paid.
Each of the owners of the three tracts executed a separate agreement with Schneider for the sale of a tract to him and each retained an original of the agreement providing for the sale. All these agreements in the possession of the former owners, and all the records and accounts of the title insurance company relating to the transactions and showing receipts and disbursements, were of course available to the controller in the performance of his duties as auditor of defendants’ accounts for the year 1924. There is no evidence, indeed it is not even suggested, that the vendors, or the title insurance company, or any one on behalf of either, did, or omitted to do, anything which might have interfered with or obscured the performance by the controller of his duties. By calling for and examining these records, he would have learned at once all that was shown from the same sources at the trial. So, too, he might have availed himself of the records in the office of the solicitor for the Allegheny County Home, against whose connection with the transactions no charge is made. The documentary sources of information, over which the defendants exercised neither authority nor control, fully recorded all that was revealed in the trial; they were at all times available to the controller; certainly as to those sources
of information there was no concealment or other action by defendants.
What, then, is the evidence of concealment relied on? At the oral argument, counsel for appellant contended, as we understand his position, that the concealment may be inferred from the manner in which the accounts of these purchases were stated on the books of the Allegheny County Home; that the three tracts of land were not identified or described as Schneider lands, or lands purchased from Schneider, but were identified respectively as “Carnegie Coal Co.,” “Forsythe” and “Dorrington.” He contends that the accounts should formally have stated that the lands were purchased from Schneider. The books contained the following account:
“DR
“1924
%o
Carnegie Coal Co........................... $15,000.00
%i
Carnegie Coal Co........................... 4,250.00
%o
Forsythe................................... 1,000.00
%o Dorrington ................................ 1,000.00
%o Title Examination.......................... 113.00
%i
Surveying ................................. '876.00
%o Forsythe .................................. 63,762.50
%o
Dorrington ................................ 20,007.75
$106,009.25
Deduct credits set forth in detail in right-hand column.......................... 5,000.00
Net addition to real estate in 1924, as appears in report........................$101,009.25
“CR
“1924
%o
Value of house on Forsythe farm (Charged to bldg, a/c) ................... $1,800.00
%o
Value of barn on Forsythe farm (Charged to bldg, a/c) ................... 700.00
x%o Value of Baer house (Charged to bldg, a/e) ................... 2,500.00
$5,000.00.”
The accounts also contained the following:
“Real estate purchased...........................$101,009.25
Building and equipment......................... 229,959.85
Total......................................$330,969.10
Less depletion ................................ 1,383.07
$329,586.03
“Additions to real estate, building and equipment (See statement No. 4).”
The briefs contain analyses of the bookkeeping distribution of items stated in those accounts.
The record shows that for some time prior to 1924 there had been discussion of the necessity of acquiring additional adjoining land and that the three tracts had been considered. It was perhaps natural to identify the tracts during the negotiations, as well as when purchased, by the names of the owners with whose names they had been thus associated. At all events, we cannot say that, without more, the mere omission to record in the account the name of Schneider was such concealment by defendants as would permit the setting aside of the controller’s audit. Especially is this true in view of the existence of abundant documentary evidence in the hands of third parties available to the controller, and which defendants knew was so available, and the absence of proof that the defendants profited by the transaction in any way. We must therefore join with the learned court below in rejecting the contention made on behalf of the appellant.
One contention remains to be noticed. The general rule is that, in the absence of fraud, an audit is conclusive and can only be challenged as provided by the statute : Act of March 21, 1806, section 13, 4 Sm. Laws 326, 46 P. S., section 156; Senor v. Dunbar Twp. School Dist., supra; Skelton v. Lower Merion Twp., 318 Pa. 356. But appellants suggests that the general rule is modified by
part of section 5 of the Act of 1852,
supra, creating the Allegheny Home, basing the contention on the provision for the appointment of visitors by the quarter sessions: In re: Appointment of Visitors to the Allegheny County Home, 109 Pa. Superior Ct. 519, 167 A. 632. We find nothing in this provision indicating legislative intention to diminish the effect of the audit or of the construction which had uniformly been given to statutes providing for audits and their interpretation: see Hutchinson v. Com., 6 Pa. 121; Com. v. Reitzel, 9 W. & S. 109.
Decree affirmed at appellees’ costs.