Township of Ridgway v. Wheeler

Mr. Justice Paxson delivered the opinion of the court, This was a suit upon the official bond of Virgil S. Wheeler, as. collector of road and sidewalk taxes for the year 1872. It was not denied that he had collected a portion of said taxes, which he had neglected and refused to pay over. The sole defence was that the collector had not been appointed by lawful authority; that his bond w’as therefore null and void, and neither the collector nor his sureties responsible thereon. The court below sustained this position, and instructed the jury to find for the defendants. By a special law, applicable to Elk county, it is provided that the taxes referred to “ shall be collected by the constables of the respective townships, upon warrants and duplicates issued by the supervisors.” See Act of 1855, Pamph. L. 240, and Act of 1864, Pamph. L. 157. In pursuance of these acts, the township supervisors tendered the tax duplicates to the constable, who declined to receive them and refused to act. The supervisors then appointed .one of their own number, Virgil S. Wheeler, collector of said taxes, who gave the required bond, which was duly approved. It was [453] upon this bond that the present suit was brought. It is in the usual form and recites the fact that “ the said Virgil S. Wheeler has been duly appointed collector of road and sidewalk taxes for the year 1872.” Assuming there to have been such an irregularity in the appointment as would have enabled a taxpayer to resist the payment of his tax, it is difficult to see how either Wheeler or his surety can defend upon this ground in the face of the recital in the bond that he had been duly appointed collector. He was certainly a de facto collector, and it was urged on behalf of the township that the appointment was good ex necessitate. We are of opinion that this point was well taken. Under the general law of 15th April 1834, sect. 31, Pamph. L. 515, it is provided that “the supervisors and overseers of the poor of every township shall annually, at a meeting to be convened for the purpose, appoint some suitable inhabitant of the township to be collector of the township rates and leviesand by the 39th sect, of said act: “ If in any township there shall not be a treasurer elected or appointed, it shall be the duty of the supervisors and overseers of the poor of the township, either by themselves or by a proper person duly authorized by them respectively, to collect the township rates and levies by them respectively laid.” This being a general law, is in force in Elk county, except in so far as ii is displaced by the special laws referred to. In case of the repeal of the special laws, the general law would of course come in to take their place. So it would be in force to supply any casus omissus in the special laws. The latter provide, as we have stated, that the constable shall collect the taxes. He refuses -to .do. so. How are the taxes to be collected ? To proceed against the constable for his refusal would not remedy the difficulty. The necessities of the township require that the taxes should be collected. The supervisors are required by law to keep the roads and bridges in proper order, and are liable tfl indictment for a neglect of this duty. How is it possible to perform it unless the township rates and levies are collected ? The special acts having been rendered inoperative temporarily by the refusal of the constable to act, we see no reason why the supervisors may not appoint á collector under the powers conferred upon them by the Act of 1834. There is a clear casus omissus in the special acts, and to that extent the Act of 1834 comes in to supply their place. We regard the appointment as legal and the bond good. The collector having received the money, must pay it over. Judgment reversed, and a venire facias de novo awarded.