Walker’s Appeal.
Taxation — Exonerations—Township commissioner — Township treasurer — Act of April IS, 1884, P- A- 609.
1. A township treasurer has a right to assume in the absence of notice to the contrary that the township commissioners are acting within the scope of their authority when they exonerate the treasurer from the collection of some of the amounts entered in the duplicate.
2. There is nothing in secs. 1 and 2 of art. IX of the constitution of Pennsylvania, nor in the Act of May 14, 1874, P. L. 158, which repeals 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.
Taxation — County auditors — Appeal.
3. On an appeal from the report of county auditors, although the appellant asserts that the erroneous result was reached by the improper *146allowance of certain items of the account, such assertion 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.
Argued March 8, 1910.
Appeal, No. 38, March T., 1910, by Fletcher Walker, from judgment of C. P. Luzerne Co., Oct. T., 1908, No. 382, on appeal of Fletcher Walker from report of county auditor.
Before Rice, P. J., Henderson, Orlady, Head, Beaver and Porter, JJ.
Affirmed.
Appeal from county auditor.
Ferris, J., filed the following opinion:
The auditors of the township of Plains (a township of the first class) filed their report for the fiscal year ending March, 1908, in the office of the clerk of the court of quarter sessions on June 20, 1908, wherein they reported an indebtedness to the township of $112.81 by its treasurer, John J. Walsh.
On July 13, 1908, Fletcher Walker, a taxpayer, gave bond and took an appeal from this report; and upon his petition averring that the auditors should have found a balance due the township of $1,781.37, the above stated rule was granted upon John J. Walsh to show cause why his account as treasurer as set forth in the report of audit should not be reformed and the treasurer be surcharged with the sum of $1,674.56 over and above the said balance of $112.81, “or with such sum as the court may determine, and judgment be entered against him and in favor of said township for the whole amount found to be owing by him.”
Since this rule calls- for a reformation of the account and the ascertainment of the true amount due, if anything, by the treasurer to the township, the second rule, obtained by Walsh to show cause why he should not be allowed to appeal nunc pro tunc from the auditors’ report, was unnecessary for the purpose stated in his petition, viz., that of permitting the allowance of a credit to which he claimed *147to be rightfully entitled but which the auditors had failed to allow him in their report. As the court has no power, in the absence of allegation or proof of fraud in obtaining the report, to allow the appeal asked for after the expiration of the statutory period for taking it (School Dist. v. Wahlers, No. 2, 28 Pa. Superior Ct. 39) this rule must be, and is hereby, discharged.
Fortunately for the treasurer, however, any equities to which he might be entitled may be considered in disposing of the rule for a reformation of his account.
It is conceded that the account as set forth in the auditors’ report is incorrect and needs revision. The facts involved in such'revision are undisputed, and the only questions for the court to determine are questions of law.
1. The first of these is whether the treasurer is entitled to credit for the amount of taxes which the township commissioners exonerated him from collecting, where, as is here admitted, the taxables owned personal property from which the taxes could have been made or real estate which might have been returned to the proper officials for sale.
On the part of the appellant, it is claimed that the auditors should not have allowed the treasurer credit for these exonerations because the township commissioners had no power to grant them — that all statutes giving the right to exonerate from payment of taxes had been abrogated by the constitutional provision that all taxes shall be uniform, etc., and the Act of May 14, 1874, P. L. 158, passed in pursuance thereof.
On the part of the treasurer it is argued that the commissioners had the right to exonerate these taxes, but even if they had not, the fact that they did so, whether their action was ultra vires or not, relieved the treasurer from the duty, and, indeed, deprived him of the lawful right to collect them and absolved him from any obligation to account for them; that when these taxes were exonerated they were in effect expunged from the duplicate by the same authority that had placed them there, and the *148treasurer had thereafter no more power to collect them nor duty to account for them than if they had been originally omitted from the duplicate altogether.
The Act of April 15, 1834, P. L. 509, sec. 48, provides that, “the commissioners of the proper county, and the supervisors and overseers of the poor of the proper township, as the case may be, shall at all times make abatements or exonerations for mistakes, indigent persons, unseated lands, etc., as to them shall appear just and reasonable.”
The Act of June 25, 1885, P. L. 187, provided for the annual election in each township of “an officer to be styled collector of taxes to whom the supervisors were required to deliver their duplicates of taxes with their warrants attached, and vested in him all the power for the collection of said taxes, during his term of office, heretofore vested in collectors of county taxes under existing laws.” Section 10 of this act provides that “exonerations may be made by the authorities and in the same manner as heretofore.” By the Act of June 6, 1893, P. L. 333, the tax collector’s term of office was extended to three years. The Act of April 28, 1899, P. L. 104, classified townships and provided that, in townships of the first class, a township treasurer should be elected triennially, upon whom were conferred all the powers possessed by township tax collectors under existing laws.
It would thus appear that the township commissioners were authorized by statutes enacted both before and after the adoption of the constitution of 1874, “to make abatements or exonerations for mistakes, indigent persons, unseated lands, etc., as to them shall appear just and reasonable.”
Article IX of the constitution of 1874 provides as follows:
“Section 1. All taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws; but the general assembly may, by *149general laws, exempt from taxation public property used for public purposes, actual places of religious worship, places of burial not used or held for private or corporate profit, and institutions of purely public charity.
“Section 2. All laws exempting from taxation other than the property above enumerated, shall be void.”
The Act of May 14, 1874, P. L. 158, was passed to carry these provisions into effect and provides that certain property falling within the general classes as to which sec. 1 of art. IX permits exemption “be and the same are hereby exempted from all and every county, city, borough, bounty, road, school and poor tax: Provided, That all property, real or personal, other than that which is in actual use and occupation for the purposes aforesaid, and from which any income or revenue is derived shall be subject to taxation, except where exempted by law for state purposes, and nothing herein contained shall exempt same therefrom.”
It is urged that exoneration from the payment of taxes is exemption from taxation, and that these provisions of the organic law and the act of 1874, operate as a repeal of the act of 1834 in so far as the latter statute authorizes exonerations.
It must be borne in mind, however, that art. IX, secs. 1 and 2, of the constitution, did not execute themselves so as to repeal any existing laws providing for the assessment and collection of taxes; they merely imposed restrictions upon future legislation when it should be enacted: Coatsville Gas Co. v. County of Chester, 97 Pa. 476; County of Erie v. City of Erie, 113 Pa. 360; Evans v. Phillipi, 117 Pa. 226. If the act of 1834, so far as it confers authority to exonerate, was repealed by the Act of May 14, 1874, P. L. 158, it must have been either expressly or by implication. The latter act contains no words of express repeal. Its language is affirmative. Its purpose as expressed in its title is not to subject to taxation property theretofore exempt, but “to exempt from taxation” certain kinds of property enumerated.
*150The enacting clause of the act specifically does this. It contains nothing inconsistent with the power of abatement and exoneration conferred upon the township authorities by the act of 1834, and, therefore, could not operate as an implied repeal, pro tanto, of that act. The only provisions, if any, of the act of 1874 at all inconsistent with the power to exonerate are contained in the proviso to the act, viz.: “That all property, real or personal, other than that which is in actual use and occupation for the purposes aforesaid and from which any income or revenue is derived shall be subject to taxation,” etc. This proviso was held to be unconstitutional in Sewickley Borough v. Sholes, 118 Pa. 165, as imposing, instead of exempting from, taxation, and therefore being legislation upon a second subject not expressed in the title to the act, and thus violative of art. Ill, sec. 3, of the constitution. In Philadelphia v. Barber, 160 Pa. 123, the decision in Sewickley Borough v. Sholes was reaffirmed in so far as the proviso to the act of 1874 attempted to impose taxation; but the proviso was held to be a valid expression and explanation of the legislative intent in regard to the exemptions made in the previous enacting clause.
We are, therefore, led to the conclusion that the power to exonerate conferred by the act of 1834, has not been abrogated by the constitution and the act of 1874, nor has it been by any subsequent legislation.
It follows that, there being no evidence that this power was abused or illegally exercised in any case, the treasurer is entitled to credit for the amount of such exonerations, and the question whether their allowance by the township commissioners if it had been done without legal authority; would have relieved the treasurer, pro tanto, from his obligation to account for the full amount of his duplicate, need not be decided.
2. The second question presented for consideration is whether the treasurer is entitled to a commission of five per cent on moneys received or collected by him (a) as the *151township’s share of liquor license fees, and (b) as license fees imposed by the township authorities upon telegraph or telephone companies at the rate of a certain sum for each pole erected by such companies within the township limits.
This question has been decided in the negative by this court as to liquor license fees in the case of Kane v. Township of Wilkes-Barre, No. 168, June Term, 1907, and as to both liquor license fees and pole license fees, in the case of Davis v. The Township of Newport, No. 340, October Term, 1907. We are of opinion that these cases were properly decided and that such fees and not “taxes” within the meaning of sec. 14 of the Act of April 18, 1899, P. L. 104, fixing the compensation of treasurers of townships of the first class at “five per centum of all taxes received or collected by him.” The treasurer should, therefore, be surcharged with the amount of commissions at the rate of five per cent upon such fees allowed him by the auditors, unless he should be held entitled to a commission of one per cent thereon under the Act of June 7, 1907, P. L. 452.
3. Whether he is so entitled or not is the third question of law involved in this proceeding.
The act of 1907, just referred to, provides that “each township treasurer (in townships of the first class) shall receive, as full compensation for his services, a sum equal to five per centum of all taxes received or collected by him, and in addition thereto, a sum equal to one per centum on all other moneys received or collected by him, unless a different rate be fixed by ordinance of the township commissioners, passed thirty days prior to his election.”
This act was passed during the incumbency of office of Mr. Walsh, and it is argued by appellant that the treasurer is a public officer within the meaning of art. Ill, sec. 13, of the constitution, which provides that, “no law shall extend the term of any public officer or increase or diminish his salary or emoluments after his election or appointment.” That the act, if it applies to Mr. Walsh, *152does increase his emoluments is obvious. Is he a public officer within the constitutional inhibition?
The latest authoritative decision on this subject is Richie v. Philadelphia, 37 Pa. Superior Ct. 190. Richie was appointed a real estate assessor of Philadelphia county in 1903, his salary being fixed by the Act of April 12, 1873, P. L. 715, at $2,000 per annum. During his term of office an act was passed which increased the salaries of such assessors from $2,000 to $3,000 per annum. A case was stated to determine whether he was entitled to the increased salary, or whether he was a public officer within the^ meaning of sec. 13, art. Ill, of the constitution, and therefore not so entitled. The court, in an opinion by Judge Willson, held that he was a public officer within the constitutional prohibition. Upon appeal to the Superior Court the case was argued before all the judges, and on behalf of the assessor the distinction was drawn between “legislative” and “constitutional” officers and Com. v. McCombs, 56 Pa. 436; Com. v. Weir, 165 Pa. 284; Lloyd v. Smith, 176 Pa. 213; Com. v. Moir, 199 Pa. 534, and Kilgore v. Magee, 85 Pa. 401, were cited in support of the proposition that the assessor, being a “legislative” officer, was not a "public officer” within the meaning of sec. 13, art. Ill, of the constitution. In affirming the court below, Judge Henderson, who delivered the opinion of the Superior Court, said (referring to the authorities cited by the assessor), “they relate to the power of the legislature to abolish or diminish the term of an officer not commanded by the constitution. There is a very clear distinction, however, between the power of the legislature to abolish or regulate an office which it created, the control over which is unlimited, and a restriction of the constitution over such power as applied to a particular subject. Even if it be considered inconsistent that the legislature may abolish an office the term of which it may not extend, or by such abolition entirely take away a salary which it may not increase, the restraint is nevertheless imposed by the paramount law of the State and is *153not to be got rid of by interpretation in the face of clear, and unambiguous language. The power of the legislature to abolish an office not ordained by the constitution is unquestioned, for there is no restraint on such action, but as to both constitutional and legislative offices the command is that no law shall extend the term or increase or diminish the salary or emoluments after the election or appointment of the incumbent.” After conceding that certain agents, employees or petty officers were not intended (under the authority of Houseman v. Com., 100 Pa. 222) to be embraced in the constitutional provision, Judge Henderson goes on to say (p. 197), “Where, however, the officer exercises important public duties and has delegated him some of the functions of government and his office is for a fixed term and the powers, duties and emoluments become vested in a successor when the office becomes vacant, such an official may properly be called a public officer.” Being of opinion that the collector, custodian and disburser of public funds, in this case the township treasurer, falls within this definition quite as .truly as an assessor, we must consider this case as ruling the one before us, and conclude that the treasurer is not entitled to the benefit of the act of 1907 and, therefore, cannot lawfully claim credit in his account for a commission of one per centum on the liquor and pole license fees received by him. He should, accordingly, be surcharged to the extent of commissions allowed him on such money.
4. The fourth question of law arising in the case is whether, in this proceeding, the treasurer can be allowed credit for the amount of uncollectible taxes (a credit omitted by the auditors from the account as stated by them) and if so whether he should not be surcharged with the amount of the commission allowed upon them by the auditors.
This question is answered in the affirmative as to both of its divisions. Upon petition of the appellant this rule was granted not solely for the purpose of surcharging the treasurer but for the reformation of his account and the *154ascertainment of and obtaining judgment for "the whole amount found to be owing by him.” In order to do this it is, of course, necessary to allow him any and all credits to which he is justly and lawfully entitled. The undisputed testimony shows that, by reason of the death and removal of taxables or his inability after due diligence to' identify and locate them, the treasurer could not and did not collect taxes to the amount of $450.44. He is justly entitled to credit for this sum in the reformed account, and of course should not be allowed commissions on such uncollected taxes.
October 10, 1910:
A claim of credit has also been made by the treasurer for the amount of taxes which certain coal companies refused to pay because they had appealed from the assessment or valuation of their properties, the appeals being still pending. No such claim can be allowed. The Act of April 19, 1889, P. L. 37, giving the right of appeal expressly provides that the appeal shall not prevent the collection of the taxes complained of.
Error assigned was order sustaining the appeal.
John D. Farnham, for appellant.
Thomas F. Farrell, for appellee.