Rice v. Burns

Opinion- by

Rice, P. J.,

The special law governing the levy of road taxes in Venango county provides, inter alia, “ that the said commissioners shall lay such tax upon the property so assessed as they shall deem necessary for road and bridge purposes for the current year; ” also, “if they find the same necessary, collect a part of the road tax so laid, not exceeding twenty-five per cent in money,” etc. The minutes of the road commissioners offered in evidence, show that a road tax of two mills was levied on November 8, 1895. Granting that in making the whole amount of this tax payable in money, the commissioners exceeded their authority, was the defendant a trespasser? Clearly not. So far as the duplicate and the warrant in his hands showed, the levy was apparently within the scope of the authority of the commissioners, and such being the case, he was protected in the execution of the warrant against action of trespass. The law upon this subject is well settled.’ “ In the case of public officers, an inferior acting within the scope of his warrant, when apparently regular, is always protected; unless the authority issuing it was without jurisdiction. It has been a question ho w far this protection extends, when the superior authority acts irregularly and illegally. But now the doctrine appears to be settled, as it should be, that even in such case, the inferior has to look only to his warrant, and cannot be required to rejudge the judgment of his superior. . . . The distinction is between the usurpation of a power not conferred, and the irregular or illegal exercise of a -jurisdiction possessed: ” Cunningham v. Mitchell, 67 Pa. 78; Moore v. Allegheny, 18 Pa. 55; Buck v. Commonwealth, 90 Pa. 110. In all of these cases this general principle was applied to the protection of tax collectors ; but it is one of general application as the decision in Barr v. Boyles, 96 Pa. 31, and the cases cited in the opinion of Mr. Justice Merche, will abundantly show. As the commissioners had authority to collect a portion of the road taxes of the year in money, it was not for the collector to determine whether or not they had exceeded their authority in that regard.

The plaintiff argues that the case is not within this principle, or rather that it would have been taken out of it, if the evidence referred to in the second assignment of error had been admitted. When the error assigned is the admission or rejection of evidence, the assignment should quote the full substance of the bill of exceptions, or copy the. bill in immediate connection with the assignment: Rule XVII. Doubtless, counsel intended to comply with this rule, but in the consideration of the question raised by this assignment, we deem it advisable to refer to the precise' terms of the rejected offer. The plaintiff offered to prove that the defendant “ had notice of the illegality of the tax levy or assessment for cash road tax .... prior to the seizure and sale of the property,” etc. As explained by another portion of the record he proposed to prove this fact by evidence that another taxpayer, one. H. D. McElhany, had notified the defendant that the levy of the cash road tax for the year 1895 was illegal. The objection was made to this offer that it was indefinite, and did not show wherein the levy was illegal. This objection, even if there were no other, would have justified the court in rejecting the offer. The effort was to show, apparently, the communication of the witness’s opinion upon a question of law to the collector. But, as we have seen, he was a ministerial officer, and surely this fact would not have relieved him from the duty of obeying the command of his warrant; therefore, it would not have deprived him of its protection, if it was apparently regular. The first and second assignments of error are overruled.

It is to be observed that the defendant was both collector and constable, and that the warrant under which he justified was delivered to him with the duplicate. The Act of May 22,1895, P. L. 111, provides, as follows: “All persons who are authorized under existing laws to collect either road or poor taxes .... are hereby authorized and empowered, in addition to the remedies heretofore provided, to collect either road or poor tax by levy and sale in the same manner as school and county taxes are now by law collected.” Section 20 of the Act of April 15, 1884, P. L. 509, relating to the collection of county taxes, provides that the county commissioners shall issue their warrant with the duplicate to the collector, and section 21 provides that in case of default of payment for thirty days from the time of demand the collector shall levy the amount by distress and sale. These provisions being applicable to the collection of road taxes, the objection that the warrant was not made returnable within twenty days is not well taken.

The remaining objections, urged against the regularity of the warrant, and of the proceedings of the defendant in the execution of it, are fully considered, and correctly disposed of in the able opinion of the learned judge of the court below overruling the plaintiff’s motion for a new trial and entering judgment for the defendant non obstante veredicto. We cannot add, profitably, anything to the discussion.

Judgment affirmed.