Commonwealth ex rel. Tower v. Thompson

Mr. Justice Paxson delivered the opinion of the court, The above, cases were argued together, and may be considered in one opinion. Upon petitions filed by the plaintiffs the court below directed an alternative writ of mandamus to issue in each case. The defendants filed answers denying upon the grounds therein set forth the right of the plaintiffs to said writ. To these answers the plaintiffs demurred, and after argument the writs of peremptory mandamus were refused, to which ruling-the plaintiffs excepted, and have assigned the same here for error. The two suits at the relation of Charlemagne Tower were brought to compel the treasurer of Schuylkill county, and the collector and treasurer of Porter township, to pay over all the taxes and moneys in their hands respectively arising from the lands and property which were appropriated by the Act of 7th of April 1869, Pamph. L. 738, and its supplement of 27th of February 1872, Pamph. L. 171, to the making of a state road in the counties of Schuylkill and Dauphin; the said Tower having advanced to the commissioners named in said Act and supplement, and in accordance with the provisions thereof, a large amount of money, for which he holds the certificates of said commissioners, and for which he, now claims to be repaid. The two suits at the relation of the Beading Coal and Iron Company were against the treasurer and collector of Porter township, to compel him to credit the amount of taxes due by said company upon certificates held by them for money advanced toward the construction of said road under said act and supplement. An attempt was made in a previous case (Thompson v. The Commonwealth, 31 P. F. Smith 314), by the commissioners named in the Acts of 1869 and 1872, to compel by mandamus the same parties [446] to pay over the taxes collected by them to the holder of the certificates. We reversed the order of the court below awarding a writ of peremptory mandamus in that case, upon the ground that the Act of 9th of June 1874, Pamph. L. 306, having repealed the 3d section of the Act of 7th of April 1869, and the whole of the Act of 27th of February 1872, the office of commissioners was thereby abolished, and they had no standing in court to enforce the claims of the certificate holders. It was held, however, that the repeal did not affect the contracts of those advancing money on the pledge of the fund appropriated by the Act of Assembly to the payment of the certificates. And as to the remedy it was said: “ Under the constitutional provision forbidding the impairing of contracts, they were * * * unaffected by the repeal; and their remedy against the township is ample by suit, and against the township supervisors and treasurer, and the county treasurer by mandamus.” All that was intended by this remarle, and all that its language fairly implies, was that the certificate-holders, assuming their claims to be valid, could enforce them against the township, as other creditors are by law allowed to do. This is by suit against the supervisors: Act of 15th April 1834, Pamph. L. 538. After judgment a writ of mandamus may go out as provided by the 6th and 7th sections of said act. We do not now decide Avhether the relators would be entitled to their mandamus against the proper township officers without first obtaining judgment. It is clear that this proceeding is not against proper parties; the omission of the supervisors is fatal. The 96th section of the Act of 15th of May 1834, requires the township treasurer to pay all moneys received by him from taxes or otherwise on orders drawn by the supervisors of the township, and as has already been said by the 5th section of the same act, all suits by or against the township must be in the name of the supervisors. The latter are the officers upon whom the duties of the commissioners were devolved by the repeal of the act creating said commissioners, and before the township can be required to pay the certificates or to credit the taxes upon them, it must have an opportunity to defend, which can only be done by making the supervisors parties. The township may or may not have a defence. We cannot anticij>ate this, and, therefore, will decide no question in this proceeding which it would be entitled to raise in a suit against the supervisors. The same reasoning applies with equal force to the case against the county treasurer. His duty is to pay out the moneys received by him upon the orders of the county commissioners : See sect. 37 of the Act of 1834; and to pay over taxes on unseated lands to the township supervisors: Act of March 30th 1811, 5 Sm. L. 251. The county treasurer has no means of information to enable him to set.up a defence if one exists, or even to know if it exists, nor is he the proper officer to do so. The township supervisors [447] only can know of any defence to the payment of the money held by the county treasurer from taxes on unseated lands. After judgment against them mandamus might lie against the county treasurer to the extent of the taxes in his hands payable to the supervisors. It will be time enough, however, to decide this question when it arises. The proceedings in these cases not being against the proper parties, the order refusing the mandamus in each case is affirmed.