Bradford County v. Beardsley , 1915 Pa. Super. LEXIS 223 ( 1915 )

Opinion by

Kephakt, J.,

The appeal in this case involves a consideration of the Act of May 21, 1913, P. L. 285. A claim for county taxes levied in 1912 was duly filed as a lien in the proper office March .30,1914, under the Act of June 4, 1901, P. L. 364, on which, a scire facias was issued. The affidavit of defense avers that taxes must be returned and sale must be held pursuant to the Act of May 21, 1913, P. L. 285, and that these proceedings being under the Act of 1901 were without legal authority. The court below sustained appellee’s contention, holding the Act of 1901, in so far as it related to the question of procedure, repealed by the Act of 1913. The Act of 1901 provided that the sheriff should sell the lands against which tax liens had been filed, while the Act of 1913 provides as follows: “That return to taxes assessed by the authorities of any county......against seated lands..... .shall be made whenever personal property cannot be found thereon sufficient to pay such taxes, in the same manner and at the same time that the return is now made for unpaid county taxes on unseated lands, and whenever any such taxes, against such land in such county..... shall not be paid within two years after the date of the assessment thereof, such seated lands......shall be advertised and sold by the proper county treasurer at the time and in the same manner..... .as unseated lands are now sold by such treasurer for unpaid county taxes.” The act deals with two subjects: the return of taxes, and the procedure as to sale for delinquent taxes. The record does not set forth the ‘return’ of the taxes for which this land was to be sold. The affidavit does not point out wherein such return was false. We cannot, therefore, pass upon the validity of this return and determine the many questions presented by appellant. The act deals only with the return, it does not attempt to legislate on the duties of the collectors incident to the collection of taxes or the rights enjoyed by property owners by reason of such duties. These duties and rights have been set out in numerous acts and decisions of the Supreme Court. See Kean v. Kinnear, 171 Pa. 639; Norris v. Delaware, Etc., Railroad Co., 218 Pa. 88; Simpson v. Meyers, 197 Pa. 522, wherein the acts have been discussed. Section 12 of the Act of June 25, 1885, P. L. 187, provides that taxes on unseated lands shall not be collected by the assessor but shall be certified and returned, by the several authorities levying the same, to the county commissioners to be collected as heretofore, ordinarily by the county authorities. The Act of 1913 places the return of taxes on seated lands under this Act of 1885 but, as intimated, does not lessen the duties of collectors as to collection or the rights of the property owner thereunder.

Matters of procedure in the courts are always the subject of legislative control. Prior to the passage of the Act of 1901 it had been held that the Act of April 29, 1844, P. L. 486, Section 41, furnished a complete procedure for the sale of seated lands for delinquent taxes. In Day v. Swanson, 236 Pa. 493, it was held that the Act of 1901, was in conflict with the Act of 1844, and was an express repeal of that act; and that the Act of 1901 itself furnished a complete and comprehensive system for the collection of delinquent taxes. The Act of 1913 furnishes practically the same system that was in existence prior to the Act of 1901 and as was held in Day v. Swanson, supra, the Act of 1901 would be inconsistent with the provisions contained in the Act of 1913 and the latter, therefore, must effect a complete repeal of the Act of 1901 in so far as it relates to the question of procedure in enforcing collection of delinquent taxes. When an act of assembly is repealed all proceedings founded upon it, whi,ch have not ripened into judgment, fall: Lawrence County v. New Castle, 18 Pa. Superior Ct. 313, and cases there cited. The Act of 1913 does not take away all remedy, but provides a new procedure for enforcing the collection of these taxes. If the Commonwealth had provided no method for the collection of the then existing taxes, there would be such vested right in the Commonwealth to enforce the collection of these taxes as would preserve to the Commonwealth the repealed procedure. It is not the policy of the law to permit delinquents to escape payment of a levied tax. When a proceeding founded upon one act of assembly is commenced and, while pending, another act is passed taking away the jurisdiction, the proceeding falls; but where the remedy only is changed, it continues under the forms directed by the new act where it applies: Hickory Tree Road, 43 Pa. 139; Com. v. Robb, 14 Pa. Superior Ct. 597; Com. v. Mortgage Trust Co., 227 Pa. 163. The return of the. tax collector was made and the lien filed after the approval of the Act of 1913, and would come within the provisions of this later act. Owing to the expense incident to the sale of seated lands for taxes under the Act of 1901, the legislature, by the Act of 1913, provided a less expensive and equally effective procedure. The claim in this case having been filed under the procedure designated by a repealed statute, after the repealing statute had been enacted, it follows that the filing of the lien was irregular and the proceedings thereunder could not be sustained. The lower court was clearly right in refusing to sustain appellant’s motion for judgment for want of a sufficient affidavit of defense.

The assignments of error are overruled and the order discharging the rule is affirmed.