M. S. Kemmerer & Co. v. Foster Township

Opinion,

Me. Justice Clark:

This case involves the construction of the act of assembly, approved June 25, 1885, P. L. 187, entitled, “An act regulating the collection of taxes in the several boroughs and townships of this commonwealth,” as to the collection of road taxes. It must be conceded, that in respect of the road taxes the language of the act is much involved and obscure, but we think the conclusion to which the learned court below came in the construction is the correct one.

It seems reasonably clear, the legislature intended that road taxes might be collected by the collector of taxes. The first clause of the fourth section of the act provides, that all of the several county, borough, township, school, poor and other authorities, empowered to levy taxes, within the boroughs and townships of the commonwealth, shall on or before the first day of August, in each year, issue their duplicates of taxes to the collector, directing and authorizing him to collect the taxes, etc. It is plain that the road taxes are embraced within this provision of the act, subject of course, to the subsequent clauses and sections having special reference to this particular subject. It is provided, however, that “road taxes may be worked out as heretofore.” But if the duplicate of the road taxes should issue to the collector, on or before the first day of August in each year, the policy of the state heretofore pursued, with respect to the repair of the public roads, would be practically defeated. It is a fact known from common observation and experience, that the repair of the roads can be more conveniently and effectively made in the months of August, September, October, and November, than in any other portion of the year, and the great bulk of the work has heretofore been done during those months. To confine the supervisors and the tax-payers to the months prior to August, would operate as a practical denial of the privilege. The right to work out the road taxes is one which is exercised mainly by those engaged in farming, and as the spring and early summer months must necessarily be given to tbe work of tbe farm, those engaged in such pursuits could not and would not neglect the cultivation and harvesting of their crops to work on the roads. ‘ It was doubtless deemed impracticable therefore, to limit the time for the issuing of the duplicate of road taxes to the first day of August.

Moreover, as the work on the roads would probably in most places and under most circumstances, extend into the late fall, or early winter, in order to give all the tax-payers an opportunity to work out their taxes, the duplicates would not ordinarily reach the collector’s hands until it would be too late to comply with the provisions and limitations of the seventh section. The default in payment of the taxes within six months would, in many cases, perhaps, carry them over into the term of the incoming collector, and much confusion and embarrassment would certainly ensue in consequence. Such a result was not in the contemplation of the legislature. Hence it was provided, that the limitations of the act, “ as to time,” etc., should not apply to road taxes.

Whilst the opportunity to work out the road taxes has been held to be a condition precedent to the issuing of a warrant for their collection: Miller v. Gorman, 38 Pa. 309; Pierce v. Torrence, 2 Gr. 82; Hilbish v. Hower, 58 Pa. 93; yet it is not compulsory upon the tax-payer to do so, and in consequence a portion of the taxes generally remain, which it is “ lawful and necessary to collect in money.” Besides there are certain special taxes, authorized by the acts of February 28, 1835, P. L. 46; March 31, 1864, P. L. 162,. and April 20, 1874, P. L. 67, which it is also “lawful and necessary to collect in money;’’ and, therefore, in the fourth section of the act of 1885, it is provided as follows: “ That such special and other road taxes, as it may be lawful and necessary to collect in money, may, at the discretion of the supervisors or road commissioners, be placed in the hands of the collector of taxes, with their warrant for collection by him; for which he shall receive five per centum of the amount collected by him, or the same may be collected by the supervisors or road commissioners as heretofore.” By the “ special ” road taxes we are to understand, the taxes authorized to be levied under the several acts of assembly just referred to, and the “ other ” road taxes, such as have not been worked out after full opportunity has been given. By this act of 1885, therefore, we have a special and exceptional, but uniform provision for the collection of road taxes; payable in money ; a provision which excludes the limitations of the act of 1885, as to time, etc., but affords a speedy and adequate means for its enforcement.

This construction of the act is consistent with, and harmonizes all its provisions, and we are of opinion, that it is the correct one. It follows that the defendants were not entitled to the reduction of five per centum for prompt payment, etc.

The judgment is affirmed.