Walker's Appeal

Opinion by Henderson, J., The authority of the treasurer to collect the township taxes existed by virtue of the warrant of the township commissioners. The duplicate accompanying the warrant was a memorandum of the amount which the commissioners directed him to collect from the taxables whose names appeared therein. For reasons not appearing in the record the commissioners exonerated the treasurer from, the collection of some, of the amounts entered in the duplicate. This was in effect a withdrawal of these, items and an amendment of the duplicate to that effect as between the collector and the commissioners. To that extent they [155] withheld the duplicate and thereby withdrew from the treasurer authority to collect the particular amounts. The presumption is that the commissioners acted within the scope of their authority. At any rate there is nothing to show that at the time the duplicate was in the treasurer’s hands and the exonerations were made by the commissioners the treasurer knew that the existing facts did not justify the exonerations. We consider the case within the ruling in Boro, of Millerstown v. McKee, 3 Pennypacker, 129. In that case there was an oral direction simply from the town council to the collector not to collect. The case was submitted to the jury on the inquiry whether in fact the council did instruct the collector to cease to collect taxes; and if so, that their verdict should be for the defendants in an action on the official bond. The treasurer had a right to assume that the commissioners were acting within the scope of their authority and to act accordingly. In this view of the case the appeal must fail. The learned judge of the court below considered sec. 48 of the Act of April 15, 1834, P. L. 509, relating to exonerations by commissioners, supervisors and overseers of the poor of townships as still in force, notwithstanding secs. 1 and 2 of art. IX of the constitution. We need not enlarge on the argument contained in the opinion of the trial judge. The authorities cited show that the sections referred to did not execute themselves so as to repeal existing laws providing for the assessment and collection of taxes. They merely imposed restrictions on future legislation. The act of 1834 gives to the commissioners and supervisors of townships authority to make abatements or exonerations for mistakes, indigent persons, unseated land, etc., as to them shall appear just and reasonable. It is well shown in the opinion referred to that the Act of May 14, 1874, P. L. 158, contains no express repeal of the act of 1834, nor any implied repeal. None of its provisions are inconsistent with the act of 1834 and, therefore, involve no implied repeal. The por [156] tion of the act of 1874 which subjected property to taxation was held unconstitutional in Sewickley Boro, v. Sholes, 118 Pa. 165, because that subject was not embraced in the title of the act. Nothing was proved showing that the authority given to the commissioners by the act of 1834 was unlawfully exercised and the treasurer is therefore not. responsible for the exonerations. It may well be doubted in any view of the case whether the exonerations to the collector authorized by the act of 1834 are exemptions from taxation within the meaning of the constitutional provision. The exoneration of the treasurer was not necessarily a release of the property assessed from liability. The assessments were duly made and the taxables regularly charged. The release of the treasurer from liability for the collection of the taxes from which he was exonerated was in relief of the treasurer in order that he might make settlement as provided in sec. 48 of the act of 1834. The second question involved is answered by our decision in Horning’s Case, 26 Pa. Superior Ct. 282, in which it was held that in an appeal from the report of county auditors although the appellant asserts that the erroneous result was reached by the improper allowance of certain items of the account this will not preclude the other party from bringing other items under investigation if that be necessary in order to determine what the true balance is. That decision fully sustains the action of the court below on this branch of the case. The judgment is affirmed.