Creswell v. Montgomery

Opinion by

Orlady, J.,

The plaintiffs brought suit before a justice of the peace to recover from the defendant the amount of unpaid road taxes which had been regularly assessed against him. On appeal to the court of common pleas, the defendant interposed two defenses : First, that the justice of the peace did not have jurisdiction ; second, that the defendant did not have an opportunity, as required by the law, to work out the amount of the tax.

The Act of April 15, 1834, P. L. 537, provided for the election and defined the duties of a township treasurer. By the Act of February 28, 1835, P. L. 45, section 8, the 81st section of the Act of 1834 was repealed so far as it required the election of a township treasurer, except in nine named counties, of which Lancaster is not one. After this latter enactment the duty of supervisors in the counties not named in the act of 1835, was fixed by the 35th section of the former act, which authorized them “to collect the township rates and levies by them respectively laid.” When the supervisor collects the taxes under this authority it is not necessary for him to issue a warrant to himself for the collection thereof, as he has the duplicate for his authority while he is in office, being himself the collector of that tax.

The Act of June 25, 1885, P. L. 187, did not affect the authority of a supervisor to collect the money for road taxes in person. It is a matter in the discretion of the supervisors to place the taxes in the hands of the collector with their warrant for collection, or “ the same may be collected by the supervisors or road commissioners as heretofore.”

The Act of April 11, 1848, P. L. 517, sec. 3, gives to the collector, after the expiration of his warrant, full right and power to sue for the due and unpaid taxes for which he has not been exonerated, and to recover the same with interest thereon as other debts of like amount are by law recoverable.

The verdict establishes that the taxes were unpaid; that the term of the supervisors had expired; that they had not been exonerated; that the defendant had been given an opportunity to work out his tax and had declined to do so for a reason personal to himself. His liability had never been discharged, and it was not in his power to name the time when, or to select the place where, it would be convenient for him to exercise the privilege, given to him under the statute, of working out his tax, This is the province of the supervisors who, in the interest of the people at large, are given charge of the public highways: McKee v. Taggart, 103 Pa. 431; Kemmerer v. Foster Twp., 120 Pa. 153; Ferguson v. Moore, 5 Pa. Superior Ct. 353.

The justice had jurisdiction, and the disputed facts were fairly submitted to the jury. The assignments of error are overruled and the judgment is affirmed.