* LflO 03 no9 (Qarn? 11 IGatu ^rljool IGibran} Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024704649 THE LAW OF TAXATION IN PENNSYLVANIA ^ BY FRANK M. gASTMAN of the Dauphin County Bar Author of " Private Corporations in Pennsylvania ; " " Taxation of Public Service Corporations in Pennsylvania," etc. TO WHICH IS ADDED The Act of Congress Approved August 5, 1909, Imposing An Income Tax on the Net Earnings of Corporations ERRATA For Eastman on Taxation, Vol. I. In Note 28, on page 339, read "Hummelstown Borough, v. Brunner, 5 D. R 8 (1895)," instead of "Wilkes-Barre Times, v. Wrlkes-Barre City, 10 D. R. 691 (1901)." j>>r „ . „ In Section 625, fourth line, read "seated for ™^ In Section 634, second paragraph, next to last hne, read thud ""T Section 640, last paragraph, last line, read "third" for "second." In Note 35, on page 195, read "1834" for "1815." ~&773yo Copyright, 1909 BY Soney & Sage This book is dedicated TO HON. M. HAMPTON TODD Attorney General of Pennsylvania IN TESTIMONY of the writer's appreciation of his professional attainments, pub- lic services and personal worth. PREFACE. t There is annually collected by taxation for state and local purposes in Pennsylvania more than one hundred millions of dol- lars, an amount equal to one-eighth of the total annual revenues of the United States. Every citizen of the Commonwealth is directly interested in the subject of taxation, and every practitioner of the law is certain, sooner or later, to have to deal with tax questions. Such being the case, it is extraordinary that, prior to the pub- lication of the writer's work "Taxation for State Purposes in Pennsylvania," in 1898, there was no text-book on the subject of state taxation, and that down to the present time there has been no serious attempt to treat of county and local taxation. The writer has sought in the following pages to cover the en- tire field of taxation for all purposes in Pennsylvania, with the exception of the following subjects, which are not treated of herein : I. Assessments for municipal improvements, which constitute a distinctly separate subject. II. Liquor licenses of all kinds. III. Local and special v tax laws, the number of which makes their presentation within reasonable limits impossible. So much of this work as treats of state taxation is* founded upon the writer's earlier book upon that subject, but the matter has been wholly rewritten and brought down to date. The writer is not confident enough to believe that in the pre- sentation for the first time of this extensive and complicated sub- ject he has been able to ayoid errors, and he is conscious that he has not treated all of the topics considered by him with that uni- formity which is desirable. He trusts, however, that his work will be found useful to the legal profession and to students of taxa- tion in this Commonwealth. Valuable matter relative to taxation in Philadelphia, kindly contributed by Mayne R. Longstreth, Assistant Solicitor of that city, was received too late for insertion of the body of the work, and is presented in an appendix to the first volume. Harrisburg, Sept. ipop. TABLE OF CONTENTS. Volume I. [references are to sections.] INTRODUCTORY CHAPTER. § 1. Political subdivisions of the state. 2. Early subjects of taxation*. 3. State taxation. 4. Auctioneers' licenses. 5. State taxation, continued. 6. State revenues of 1810, 1812 and 1826. 7. Construction of public ' works. 8. Collateral inheritance tax. 9. State taxation of moneyed capital. 10. Taxation of corporations. 11. Tax on capital stock of corporations. 12. Tax on corporate loans — Other taxes on corporations. 13. Resume of Pennsylvania system of taxation. i CHAPTER I. POWBR OF TAXATION. 14. Taxes defined. 15. Powers under which taxes are imposed. 16. Territorial limitations of the power of taxation. 17. Federal limitations of the power of taxation by states. 18. Restrictions on the power of taxation prior to 1874. 19. Taxes required to be for public purposes only and reasonably uniform. 20. Limitations of the power of taxation imposed by the constitu- tion of 1874. 21. Taxes impairing the obligation of contracts may not be im- posed. 22. Local and special laws exempting property from taxation may not be passed. 23. Uniformity of taxation — Classification — Exemptions. 24. Section IX, art. 1, not retroactive. Viii TABLE OF CONTENTS. [REFERENCES ARE TO SECTIONS.] § 25. Meaning of "all taxes." 26. What are "general laws." 27. Power of classification. 28. Classifications which have been sustained. 29. Uniformity of taxation. 30. Exemptions prohibited. 31. Right to tax corporations not to be surrendered. 32. Double taxation. 33. Delegation of power of taxation to municipalities. 34. Delegation of power of taxation to corporations and commis- sions. 35. Retroactive tax laws. CHAPTER II. CONSTITUTIONAL PROVISIONS INDIRECTLY AFFECTING TAXATION. § 36. Restrictions as to state and municipal indebtedness. ■ 37. Restriction of state debt. 38. Laws authorizing state loans to specify the purposes for which the proceeds thereof are to be used. 39. Credit of state not to be pledged — State not to be a stockholder in corporations. 40. Municipalities not to become stockholders in nor loan their credit to corporations. 41. Limitation of municipal indebtedness. 42. State not to assume municipal debt — Exceptions. 43. Municipalities incurring indebtedness must provide for payment by annual tax. ' 44. State sinking fund. 45. Surplus funds applied to state indebtedness — Sinking fund in- "vestment. CHAPTER III. SUBJECTS OF LOCAL TAXATION. § 46. Acts of April 29, 1844 and April 15, 1834. 47. Real estate. 48. Horses and cattle. . 49. Household furniture, etc. 50. Occupations, trades and professions. 51. Bonds, mortgages, etc. 52. Limitations on rate of county taxation. table of contents. ix . [references are to sections.] CHAPTER IV. EXEMPTIONS FROM TAXATION. i 53. Constitutional provisions. 54. Repeal of exemptions existing prior to 1874. 55. Repeal of laws exempting property of corporations not in use or occupied thereby. 56. Repeal of special laws exempting real estate from taxation. 57. Repeal of special acts exempting county and municipal obliga- tions from state taxation. / 58. Exemptions from taxation. 59. Exemption of public property used for public purposes. 60. Exemption of the bonds and mortgages of state normal schools. 61. Exemption from state taxation of county bonds and other se- curities held for poor or road purposes. 62. Exemption of property of free, public, non-sectarian libraries in boroughs and townships. 63. Exemption of property of public libraries, museums and art gal- leries. 64. Exemption of forestry reservations. , 65. Exemption of actual places of religious worship. 66. Exemption of places of burial. 67. Exemption of institutions of purely public charity, including in- stitutions of learning. .68. Early acts exempting the property of religious and charitable institutions. 69. Charitable institutions need not be wholly supported by contri- butions in order to be exempt from taxation. 70. What property of charitable institutions and churches is ex- empt from taxation. 71. Buildings in course of erection exempted. 72. The privileges of charitable institutions must be open to the public generally in order to exempt such institutions from taxation. 73. Liability of charitable institutions to municipal assessments. 74. Exemption of trust funds held by churches and charitable insti- tutions. 75. Miscellaneous decisions relative to the exemption from taxation of charitable institutions. 76. Exemption from taxation of public service corporations. 77. Property of railroad companies held to be exempt from taxation. 78. Property of railroad companies not exempt from taxation. 79. Real estate of railroads, with certain exceptions, not exempt from taxation for city purposes in Philadelphia and Pitts- burg. 80. Exemption of property of street railway companies. x table of contents. [references are to sections.] § 81. Exemption of property of electric light, heat and power com- panies. 82. Exemption of property of water companies. 83. Exemption of property of pipe line companies. 84. Exemption of property of telegraph and telephone companies. 85. Exemption of property of natural gas companies. 86. Exemption of property of artificial gas companies. 87. Miscellaneous decisions relative to exemption of property of public service corporations. 88. Exemption of real estate from state taxation. 89. Exemption of capital stock of manufacturing corporations from state taxation. 90. Exemption from all taxation of watches, household furniture and pleasure carriages. 91. Exemption of horses, cattle and mules from state taxation. CHAPTER V. ASSESSORS OF PROPERTY FOR PURPOSES OF COUNTY TAXATION. § 92. Property assessed for taxation for county purposes by the township, borough and ward assessors. 93. History of legislation relative to assessors. 94. Election of assessors in boroughs and townships. 95. Election of assessors in townships of the first -class. 96. Election v of assistant assessors — How triennial assessments shall be made in townships of the first class. 97. Duties of assistant assessors in townships of the first class. 98. Compensation of assessors and assistant assessors in townships of the first class. 99. Election of assessors in cities of the third class. 100. Boards for the assessment and revision of taxes in counties hav- ing not less than 300,000 nor more than 1,000,000 inhabitants. 101. , Boards to divide such counties into districts and appoint subor- dinate assessors. 102. Offices of ward, borough and township assessor abolished in' » said counties. 103. Compensation of subordinate assessors in said counties When assessment for state taxes to be concluded. 104. Assessors of state and county taxes in cities of the second class and cities belonging to neither the first, second nor third classes. 105. Assessors of state and county taxes in cities of the first class. 106. Assistant assessors. 107. Vacancies in the office of assessors. 108. Vacancies in the office of assessors in boroughs. 109. Vacancies in the office of assessors in cities of the third class. TABLE OF CONTENTS. XI [REFERENCES ARE TO SECTIONS.] § 110. Names of assessors to be certified to the county commissioners. 111. Oath of assessors. 112. Assessors to file their oaths or affirmations with the county- commissioners. 113. Compensation of assessors. 113a. Mileage of assessors. * 114. Resume of duties of assessors. 115. Duties of assessors — Ward assessors in boroughs to act as a board of assessors. 116. Penalty for neglect of assessors to assess and return taxables. 117. Duties of assessors when false returns are made. 118. Penalty for neglect of duty by assessors. 119. Penalty for not complying with precept. 120. Penalty for refusing to serve as assessor. 121. Assessors to take census of taxables septennially (obsolete). CHAPTER VI. TRIENNIAL AND ANNUAL ASSESSMENTS. § 122. When assessments are made. 123. County commissioners to annually estimate probable county expenses. 124. Issue of precept for the making of assessment. 125. Assessment of real estate omitted at triennial assessment. 126. County commissioners to publish data relative to assessments. 127. Assessors returns to be open to inspection. 127a. Assessors to notify taxables of the amount of their assess- ments, the tax rate and the time and place of appeal. 128. County commissioners to advertise time and place of appeal. 129. Revision of assessments. 130. Property to be assessed at the actual value — County commis- sioners to revise assessments — Tax rate to be uniform throughout county. 131. Board of revision of taxes. 132. Prothonotary or associate judge may administer oath. 133. Failure of members of board to take oath not to invalidate or hinder the collection of taxes. 134. Powers and duties of the board of revision of taxes. 134a. When board may act — Taxables to be notified of increases of assessments. 135. Assessors to attend at appeals. 136. After the hearing of appeals assessments to be corrected. 137. Appeals may be heard subsequently. 138. Appeals from assessments "in counties having not less than three hundred thousand and not' more than one million in- habitants. Xll TABLE OF CONTENTS. [references are to sections.] § 139. Increases of assessments in said counties between triennial years. 140. Proceedings after revision of returns by board of revision. 141. Transcripts of assessments to be sent assessors. 142. Fixing of rates for county taxes. 143. Assessments in years between the triennial assessments. 144. When notice of assessments shall be given in years other than triennial years. 145. Appeals in years other than triennial years. 146. How assessments between triennial assessments are made. CHAPTER VII. APPEALS TO COURTS FROM ASSESSMENTS — INJUNCTIONS. § 147. Early acts granting appeals to the courts. 148. Act now in force providing for appeals from assessments for county taxes to courts of common pleas. 149. Decisions relative to appeals to courts. 150. Appeals from assessments for township taxes. 150a. Appeals from assessments for city taxes. 151. Appeals from decisions of courts of common pleas to the su- preme or superior court. 152. Taxpayers may contest the validity of tax laws by proceedings in equity. 153. Proceedings to enjoin the collection of taxes. 154. When the collection of taxes will not be enjoined. CHAPTER VIII. REQUIREMENTS AS TO ASSESSMENTS. § 155. What constitutes an assessment. 156. Assessments must sufficiently indicate the property assessed. 157. Separate tracts of land must be assessed separately. 158. Encumbered real estate to be assessed at its full value. 159. Timber lands to be separately assessed. 160. Assessors to return separate lists of property exempt from tax- ation. 161. Ground rents to be assessed to owners thereof. 162. Assessment of lands lying within two or more countries. 163. Assessment of lands lying within two or more townships. 164. Assessment of lands where mansion house is partly in one town- ship or borough and partly in another. 165. Assessment of property belonging to estates of decedents. 166. Assessment of hotel property. 167. Assessment of oil lands. 168. Assessment of coal lands. * TABLE. OF CONTENTS. Xlll [REFERENCES ARE TO SECTIONS.] § 169. Irregularities in assessments. 170. Miscellaneous decisions relative to assessments. 171. Assessment books and other documents as evidence. CHAPTER IX. COLLECTORS OF TAXES. § 172. History of the selection of collectors of taxes. 173. .Election of tax collectors in boroughs and townships. 174. Office of township collector of taxes abolished in townships of the first class — Township treasurers to collect taxes. 175. Appointment of collectors of state and county taxes in cities of the third class. 176. Appointment of collectors of county rates and levies for wards and districts. 177. Commissioners may appoint persons other than those returned by assessors. 178. Commissioners may appoint freeholders collectors without bond. 179. Defaulting collectors not to be reappointed. 180. Penalty for failure of collectors to perform duties. 181. Penalty for failure of collectors appointed without bond to perform duties. 182. Vacancies in the office of tax collector. 183. Bonds of tax collectors for boroughs and townships. 184. Collectors of taxes for wards and districts to give bond. 185. Condition of bond. 186. Collectors of special taxes to give bond. 187. Suits against sureties of collectors. 188. Issue of duplicates and warrants to collectors — Collection of special and other road taxes. 189. Period during which warrants are effectual. 190. Definition of "duplicates." 191. Extension of time within which tax collectors may sue for taxes. 192. Collectors are protected by their warrants. 193. Refusal of county commissioners to deliver duplicate to a collector. 194. Commissioners to file certificates of amounts due by collectors. 195. Names of collectors and amounts of their duplicates to be en- tered on minutes of county commissioners, and a copy fur- nished the county treasurer. 196. Collectors to give notice of delivery of duplicates — Abatements for prompt and penalties for delayed payments. 197. Collectors to attend at designated places to receive taxes. 198. Compensation of collectors. XIV TABLE OF CONTENTS. [REFERENCES ARE TO SECTIONS.] § 199. Compensation of tax collectors appointed by county commis- sioners. 200. Collectors to pay over taxes when — To account for collec- tions — Returns of uncollected taxes. 201. Collectors to make returns under oath. 202. Penalty for embezzlement by tax collectors. 203. County treasurers to issue warrants against defaulting col- lectors. 204. Proceedings to sell lands of delinquent collectors. 205. Sheriff to execute deed to purchasers — Proceedings against property situated elsewhere. 206. Like proceedings to be had against sheriffs or coroners detain- ing taxes. 207. Powers and liabilities of collectors in boroughs and townships. 208. Collectors to keep tax books. 209. Collectors in boroughs and townships required to give num- bered tax receipts. 210. Return of receipts issued to be made to county commissioners. 211. Accounts of collectors to be settled by township and borough auditors. 212. Taxes on unseated lands not to be collected by tax collectors. 213. Collectors may receive nothing but money in payment of taxes. 214. Exonerations. 215. Receipts for unassessed taxes or exonerations prohibited. 216. Collectors may employ deputies. 217. Collector of delinquent taxes in Allegheny county. 218. Powers of executors of deceased tax collectors. CHAPTER X. PROCEDURE IN THE COLLECTION OE COUNTY AND TOWNSHIP TAXES. § 219. Procedure by collectors in the collection of taxes. 220. Powers of collectors to compel payment of taxes. 221. Seizure and sale of personal property for taxes. 222. Returns of collectors that there is no personal property on premises. 233. Tenants liable for all taxes. 224. Goods and chattels of tenants may be distrained for taxes. 225. Collectors not to sue for taxes prior to the expiration of their warrants. CHAPTER XI. SEATED AND UNSEATED LANDS. § 226. Seated and unseated lands. 227. What are unseated lands. 228. Time when unseated lands become seated. 229. Unseating of lands by abandonment. TABLE OF CONTENTS. XV [REFERENCES ARE TO SECTIONS.] CHAPTER XII. TAXATION OF UNSEATED LANDS. § 230. Assessment of unseated lands. 231. Returns of unseated lands to be made by county surveyors. 232. Holders of unseated lands to make returns of the same. 233. Returns of taxes on unseated lands. 234. Erroneous assessments of road taxes. 235. Collection of taxes on unseated lands. 236. Collection of poor taxes on unseated lands. 237. Taxes to be paid within year for which they are levied — To bear interest thereafter. 238. Taxes may be paid in advance. 239. Joint owners may»pay proportionate parts of taxes. 240. Receipts for taxes may be recorded. 241. Receipts for taxes to be acknowledged. 242. Records of payments of taxes. 243. Commissioners' to procure books and seal. 244. Transfer of lands from seated to unseated list. CHAPTER XIII. TAX SALES OF UNSEATED LANDS. § 245. County treasurers to sell unseated lands for unpaid taxes. 246. Sales of unseated lands for road taxes. 247. Publication of notice of sale. 248. Fees of county treasurers. 249. When no fee shall be paid for advertising notice of sales. 250. Time of beginning sales. 251. Publication of notice of sales in Philadelphia newspapers dis- pensed with. 252. Vacant lots in Philadelphia to be sold as unseated lands. 253. Unseated lots and lands may be sold for city taxes in Pitts- burgh. 253a. When vacant lots elsewhere may be sold as unseated lands. 254. Successors in office of treasurers to sell unsold lands. 255. Who may purchase lands at treasurer's sale. 256. Treasurers' deeds for lands sold for taxes. 256a. Title of purchasers at tax sales. 257. Surplus bonds. 258. Executors and administrators may collect amounts of surplus bonds given on purchase of lands of decedents. 259. Surplus bonds are liens on land sold — Suits on bonds. 260. Decisions relative to surplus bonds. 261. Surplus bonds must have warrant of attorney annexed. TABLE OF CONTENTS. Volume I. [references are to sections.] INTRODUCTORY CHAPTER. » § 1. Political subdivisions of the state. 2. Early subjects of taxation. 3. State taxation. 4. Auctioneers' licenses. 5. State taxation, continued. 6. State revenues of 1810, 1812 and 1826. 7. Construction of public «works. 8. Collateral inheritance tax. 9. State taxation of moneyed capital. 10. Taxation of corporations. 11. Tax on capital stock of corporations. , 12. Tax on corporate loans — Other taxes on corporations. 13. Resume of Pennsylvania system of taxation. CHAPTER I. POWER OP TAXATION. 14. Taxes defined. 15. Powers under which taxes are imposed. 16. Territorial limitations of the power of taxation. 17. Federal limitations of the power of taxation by states. 18. Restrictions on the power of taxation prior to 1874. 19. Taxes required to be for public purposes only and reasonably uniform. 20. Limitations of the power of taxation imposed by the constitu- tion of 1874. 21. Taxes impairing the obligation of contracts may not be im- posed. 22. Local and special laws exempting property from taxation may not be passed. 23. Uniformity of taxation — Classification — Exemptions. 24. Section IX, art. 1, not retroactive. Viii TABLE OF CONTENTS. [REFERENCES ARE to SECTIONS.] § 25. Meaning of "all taxes.'' 26. What are "general laws." 27. Power of classification. 28. Classifications which have been sustained. 29. Uniformity of taxation. 30. Exemptions prohibited. 31. Right to tax corporations not to be surrendered. 32. Double taxation. 33. Delegation of power of- taxation' to municipalities. 34. Delegation of power of taxation to corporations and commis- sions. 35. Retroactive tax laws. CHAPTER II. CONSTITUTIONAL PROVISIONS INDIRECTLY AFFECTING TAXATION. § 36. Restrictions as to state and municipal indebtedness. 37. Restriction of state debt. 38. Laws authorizing state loans to specify the purposes for which the proceeds- thereof are to be used. 39. Credit of state not to be pledged 1 — State not to be a stockholder in corporations. 40. Municipalities not to become stockholders- in nor loan their credit to corporations. 41. Limitation of municipal indebtedness. 42. State not to assume municipal debt — Exceptions. 43. Municipalities incurring indebtedness must provide for payment by annual tax. 44. State sinking fund. 45. Surplus funds applied to state indebtedness — Sinking fund in- vestment. CHAPTER III. SUBJECTS OF LOCAL TAXATION. § 46. Acts of April 29, 1844 and April 15, 1834. 47. Real estate. 48. Horses and_ cattle. 49. Household furniture, etc. 50. Occupations, trades and professions. 51. Bonds, mortgages, etc. 52. Limitations on rate of county taxation. table of contents. ix [references are to sections.] CHAPTER IV. EXEMPTIONS FROM TAXATION. § 53. Constitutional provisions. 54. Repeal of exemptions existing prior to 1874. 55. Repeal of laws exempting property of corporations not in use or occupied thereby. 56. Repeal of special laws exempting real estate from taxation. 57. Repeal of special acts exempting county and municipal obliga- tions from state taxation. 58. Exemptions from taxation. 59. Exemption of public property used for public purposes. 60. Exemption of the blonds and mortgages of state normal schools. 61. Exemption from state taxation of county bonds, and other se- curities held for poor or road purposes. 62. Exemption of property of free, public, non-sectarian libraries in boroughs and townships. 63. Exemption of property of public libraries, museums and art gal- leries. 64. Exemption of forestry reservations. 65. Exemption of actual places of religious worship. 66. Exemption of places of burial. 67. Exemption of institutions of purely public charity, including in- stitutions of learning. 68. Ea/ly acts exempting the property of religious and charitable institutions. 69. Charitable institutions need not be wholly supported by contri- butions in order to be exempt from taxation. 70. What property of charitable institutions and churches is ex- empt from taxation. 71. Buildings in course of erection exempted. 72. The privileges of charitable institutions must be open to the public generally in order to exempt such institutions from taxation. 73. Liability of charitable institutions to municipal assessments. 74. Exemption of trust funds held by churches and charitable insti- tutions. 75. Miscellaneous decisions relative to the exemption from taxation of charitable institutions. 76. Exemption from taxation of public service corporations. 77. Property of railroad companies held to be exempt from taxation. 78. Property of railroad companies not exempt from taxation. 79. Real estate of railroads, with certain exceptions, not exempt from taxation for city purposes in Philadelphia and Pitts- burg. 80. Exemption of property of street railway companies. table of contents, [references are to sections.] 81. Exemption of property of electric light, heat and power com- panies. 82. Exemption of property of water companies. 83. Exemption of property of pipe line companies. 84. Exemption of property of telegraph and telephone companies. 85. Exemption of property of natural gas companies. - 86. Exemption of property of artificial gas companies. 87. Miscellaneous decisions relative to exemption of property of public service corporations. i 88. Exemption of real estate from state taxation. 89. Exemption of capital stock of manufacturing corporations from state taxation. 90. Exemption from all taxation of watches, household furniture and pleasure carriages. 91. Exemption of horses, cattle and mules from state taxation. CHAPTER V. ASSESSORS OF PROPERTY FOR PURPOSES OF COUNTY TAXATION. § 92. Property assessed for taxation for county purposes by the township, borough and ward assessors. 93. History of legislation relative to assessors. 94. Election of assessors in boroughs and townships. 95. Election of assessors in townships of the first class. 96. Election of assistant assessors — How triennial assessments shall be made in townships of the first class. 97. Duties of assistant assessors in townships of the first class. 98. Compensation of assessors and assistant assessors in townships of the first class. 99. Election of assessors in cities of the third class. 100. Boards for the assessment and revision of taxes in counties hav- ing not less than 300,000 nor more than 1,000,000 inhabitants. 101. Boards to divide such counties into districts and appoint subor- dinate assessors. 102. Offices of ward, borough and township assessor abolished in said counties. 103. Compensation of subordinate assessors in said counties — When assessment for state taxes to be concluded. 104. Assessors of state and county taxes in cities of the second class and cities belonging to neither the first, second nor third classes. 105. Assessors of state and county taxes in cities of the first class. 106. Assistant assessors. 107. Vacancies in the office of assessors. 108. Vacancies in the office of assessors in boroughs. 109. Vacancies in the office of assessors in cities of the third class. I table of contents. xi [references are to sections.] § 110. Names of assessors to be certified to' the county commissioners. 111. Oath of assessors. 112. Assessors to file their oaths or affirmations with the county commissioners. 113. Compensation of assessors. 113a. Mileage of assessors. 114. Resume of duties of assessors. 115. Duties of assessors — Ward assessors in boroughs to act as a board of assessors.. 116. Penalty for neglect of assessors to assess and return taxables! 117. Duties of assessors when false returns are made. 118. Penalty for neglect of duty by assessors. 119. Penalty for not complying with precept. 120. Penalty for refusing to serve as assessor. 121. Assessors to take tensus of taxables septennially (obsolete). CHAPTER VI. TRIENNIAL AND ANNUAL ASSESSMENTS. § 122. When assessments are made. 123. County commissioners to annually estimate probable county expenses. 124. Issue of precept for the making of assessment. 125. Assessment of real estate omitted at triennial assessment. 126. County commissioners to publish data relative to assessments. 127. Assessors returns to be open to inspection. 127a. Assessors to notify taxables of the amount of their assess- ments, the tax rate and the time and place of appeal. 128. County commissioners to advertise time and place of appeal. 129. Revision of assessments. 130. Property to be assessed at the actual value — County commis- sioners to revise assessments — Tax rate to be uniform throughout county. 131. Board of revision of taxes. 132. Prothonotary or associate judge may administer oath. 133. Failure of members of board to take oath not to invalidate or hinder the collection of taxes. 134. Powers and duties of the board of revision of taxes. 134a. When board may act — Taxables to be notified of increases of assessments. 135. Assessors to attend at appeals. 136. After the hearing of appeals assessments to be corrected. 137. Appeals may be heard subsequently. 138. Appeals from assessments in counties having not less than three hundred thousand and not more than one million in- habitants. I Xll TABLE OF CONTENTS. [REFERENCES ARE TO SECTIONS.] § 139. Increases of assessments in said counties between triennial years. 140. Proceedings after revision of returns by board of revision. 141. Transcripts of assessments to be sent assessors. 142. Fixing of rates for county taxes. 143. Assessments in years between the triennial assessments. 144. When notice of assessments shall be given in years other than triennial years. 145. Appeals in years other than triennial years. 146. How assessments between triennial assessments are made. CHAPTER VII. APPEALS TO COURTS PROM ASSESSMENTS — INJUNCTIONS. § 147. Early acts granting appeals to the courts. 148. Act now in force providing for appeals from assessments for county taxes to courts of common pleas. 149. Decisions relative to appeals to courts. 150. Appeals from assessments for township taxes. 150a. Appeals from assessments for city taxes. 151. Appeals from decisions of courts of common pleas to the su- preme or superior court. 152. Taxpayers may contest the validity of tax laws by proceedings in equity. 153. Proceedings to enjoin the collection of taxes. 154. When the collection of taxes will not be enjoined. CHAPTER VIII. REQUIREMENTS AS TO ASSESSMENTS. § 155. What constitutes an assessment. 156. Assessments must sufficiently indicate the property assessed. 157. Separate tracts of land must be assessed separately. 158. Encumbered real estate to be assessed at its full value. 159. Timber lands to be separately assessed. 160. Assessors to return separate lists of property exempt from tax- ation. 161. Ground rents to be assessed to owners thereof. 162. Assessment of lands lying within two or more countries. 163. Assessment of lands lying within two or more townships. 164. Assessment of lands where mansion house is partly in one town- ship or borough and partly in another. 165. Assessment of property belonging to estates of decedents. 166. Assessment of hotel property. 167. Assessment of oil lands. 168. Assessment of coal lands. TABLE OF CONTENTS. xiii [references are to sections.] § 169. Irregularities in assessments. 170. Miscellaneous decisions relative to assessments. 171. Assessment books and other documents as evidence. CHAPTER IX. COLLECTORS OF TAXES. § 172. History of the selection of collectors of taxef. 173. Election of tax collectors in boroughs and townships. 174. Office of township collector of taxes abolished in townships of the first class — Township treasurers to collect taxes. 175. Appointment of collectors of state and county taxes in cities of the third class. 176. Appointment of collectors of county rates and levies for wards and districts. 177. Commissioners may, appoint persons other than those returned by assessors. 178. 'Commissioner's may appoint freeholders collectors without bond. 179. Defaulting collectors not to be reappointed. 180. Penalty for failure of collectors to perform duties. 181. Penalty for failure of collectors appointed without bond to perform duties. 182. Vacancies in the office of tax collector. 183. Bonds of tax collectors for boroughs and townships. 184. Collectors of taxes for wards and districts to give bond. 185. Condition of bond. 186. Collectors of special taxes to give bond. 187. Suits against sureties of collectors. 188. Issue of duplicates and warrants to collectors — Collection of special and pther road taxes. 189. Period during which warrants are effectual. . 190. Definition of "duplicates." 191. Extension of time within which tax collectors may sue for taxes. 192. Collectors are protected by their warrants. 193. Refusal of county commissioners to deliver duplicate to a collector. 194. Commissioners- to file certificates of amounts due by collectors. 195. Names of collectors and amounts of their duplicates to be en- tered on minutes of county commissioners, and a copy fur- nished the county treasurer. 196. Collectors to give notice of delivery of duplicates — Abatements for prompt and penalties for delayed payments. 197. Collectors to attend at designated places to receive taxes. 198. Compensation of collectors. XIV TABLE OF CONTENTS. [REFERENCES ARE TO SECTIONS.] § 199. Compensation of tax collectors appointed by county commis- sioners! 200. Collectors to pay over taxes when — To account for collec- tions — Returns of uncollected taxes. 201. Collectors to make returns under oath. 202. Penalty for embezzlement by tax collectors. 203. County treasurers to issue warrants against defaulting col- lectors. 204. Proceedings to sell lands of delinquent collectors. 205. Sheriff to execute deed to purchasers — Proceedings against property situated elsewhere, 206. Like proceedings to be had against sheriffs or coroners detain- ing taxes. 207. Powers and liabilities of collectors in boroughs and townships. 208. Collectors to keep tax books. 209. Collectors in boroughs and townships required to give num- bered tax receipts. 210. Return of receipts issued to be made to county commissioners. 211. Accounts of collectors to be settled by township and borough auditors. 212. Taxes on unseated lands not to be collected by tax collectors. 213. Collectors may receive nothing hut money in payment of taxes. 214. Exonerations. 215. Receipts for unassessed taxes or exonerations prohibited. 216. Collectors may employ deputies. 217. Collector of delinquent taxes in Allegheny county. 218. Powers of executors of deceased tax collectors. CHAPTER X. PROCEDURE. IN THE COLLECTION OP COUNTY AND TOWNSHIP TAXES. § 219. Procedure by collectors in the collection of taxes. 220. Powers of collectors to compel payment of taxes. 221. Seizure and sale of personal property for taxes. 222. Returns of collectors that there is no personal property on premises. 223. Tenants liable for all taxes. 224. Goods and chattels of tenants may be distrained for taxes. 225. Collectors not to sue for taxes prior to the expiration of their warrants. CHAPTER XL SEATED AND UNSEATED LANDS. § 226. Seated and unseated lands. 227. What are unseated lands. 228. Time when unseated lands become seated.. 229. Unseating of lands by abandonment. TABLE OF CONTENTS. XV [REFERENCES ARE TO SECTIONS.] CHAPTER XII. TAXATION OF UNSEATED LANDS. § 230. Assessment of unseated lands. 231. Returns of unseated lands to be made by county surveyors. 232. Holders of unseated lands to make returns of the same. 233. Returns of taxes on unseated lands. » 234. Erroneous assessments of road taxes. 235. Collection of taxes- on unseated lands. 236. Collection of poor taxes on unseated lands. 237. Taxes to be paid within year for which they are levied — To bear interest thereafter. 238. Taxes may be paid in advance. 239. Joint owners may pay proportionate parts of taxes. 240. Receipts for taxes may be recorded. 241. Receipts for taxes to be acknowledged. 242. Records of payments of taxes. 243. Commissioners to procure books and seal. 244. Transfer of lands from seated to unseated list. CHAPTER XIII. TAX SALES OF UNSEATED LANDS. § 245. County treasurers to sell unseated lands for unpaid taxes. 246. Sales of unseated lands for road taxes. 247. Publication of notice of sale. 248. Fees of county treasurers. 249. When no fee shall be paid for advertising notice of sales. 250. Time of beginning sales. 251. Publication of notice of sales in Philadelphia newspapers dis- pensed with. 252. Vacant lots in Philadelphia to be sold as unseated lands. 253. Unseated lots and lands may be sold for city taxes in Pitts- burgh. 253a. When vacant lots elsewhere may be sold as unseated lands. 254. Successors in office of treasurers to sell unsold lands. 255. Who may purchase lands at treasurer's sale. 256. Treasurers' deeds for lands sold for taxes. 256a. Title of purchasers at tax sales. 257. Surplus bonds. 258. Executors and administrators may collect amounts of surplus bonds given on purchase of lands of decedents. 259. Surplus bonds are liens on land sold — Suits on bonds. 260. Decisions relative to surplus bonds. 261. Surplus bonds must have warrant of attorney annexed. XVI TABLE OF CONTENTS. [REFERENCES ARE TO SECTIONS.] §262. The right to recover on surplus bonds is in the county treas- urer. 263. Payment of purchase money — Suits therefor. 264. Lands may be resold in default of payment of purchase money. 265. Effect of tax sales. 266. When the rule of caveat emptor applies in cases of tax sales. 267. Sales of land lying beyond the county limits. 268. When the rule of caveat emptor does not apply. 269. When sales are void owing to payment or attempted payment of taxes. 269a. Miscellaneous decisions relative to tax sales. 269b. Tax sales of lands held by tenants in common. CHAPTER XIV. TAX SALES OF SEATED LANDS. § 270. Tax sales of seated lands — Notice. 271. Seated lands to be sold for taxes in the same manner as un- seated lands. 272. Sales of lands for taxes to be valid whether such lands were seated or unseated at the time of assessment. 873. Penalty for non-payment of taxes on seated lands. CHAPTER XV. REDEMPTION OF LANDS SOLD AT TAX SALES. § 274. Redemption of unseated lands sold for taxes. 275. Persons having liens or equitable interests may redeem. 276. Joint owners may redeem proportionate parts of lands. 277. Redemption of lands where there are interfering surveys. 278. Redemption moneys paid by lien creditors to be a lien on debtor's title. 279. Repayment, on redemption, of taxes paid by purchasers at tax sales. 280. Receipts for redemption money to be recorded. 281. Redemption of seated lands sold for taxes. 282. Owners may show that there was sufficient personal property. 282a. Decisions relative to redemption of lands sold for taxes. CHAPTER XVI. PURCHASE OF LANDS AT TAX SALES BY COUNTY COMMISSIONERS. § 283. Purchase by county commissioners of lands at tax sales. 284. Rate of taxation to be certified to commissioners. 285. Lands purchased by commissioners may be redeemed. table of contents. xv11 [references are to sections.]' § 286. Redemption after five (two) years of lands purchased by com- missioners. 287. Redemption of lands by minors and insane persons. 288. Title of original owner revested on redemption. 289. Joint owners of lands purchased by commissioners may re- deem proportionate parts. 290. Unredeemed lands may be sold at public sale. 291. Notice of sales of unredeemed lands by commissioners. 292. Execution and acknowledgment of deed. 293. Validation of certain acknowledgments of deeds. 294. Form of treasurer's deed for lands purchased by commissioners. 295. Commissioners' deeds. CHAPTER XVII. MISCELLANEOUS PROVISIONS RELATIVE TO TAX SALES OE LANDS. § 296. Recovery of lands illegally sold at tax sales. 297. Ejectment from unoccupied lands sold for taxes. 298. Actions in ejectment may be brought by all purchasers of tax titles. 299. Limitation of actions for recovery of lands sold at tax sales. 300. Right of purchasers at tax sales to recover for improvements. 301. Purchase by the commonwealth of unseated lands sold for taxes. 301a. Tax sales where there has been a division of a county. CHAPTER XVIII. TAXATION IN TOWNSHIPS— ABATEMENTS AND REBATES. § 302. Subjects of taxation in townships — Tax rate. 303. Moneys at interest not taxable for township purposes. 304. Classification of townships. 305. Taxation in townships of the first class. 306. Levy of taxes in townships of the first class. 3Q7. Collection of taxes in townships of the first class. 308. Duties of assessors in townships of the first class. 309. Penalty on delinquent taxpayers in townships of the first class. 309a. Registration of real estate in townships of the first class. 309b. Duties of recorders of deeds. 309c. Assessors in townships of the first class to examine registers of real estate. 309d. Real estate to be assessed in townships of the first class in the name of owners. 310. Tax on hacks, etc., in townships of the first class. 310a. (Special tax for construction of fire engine houses in town- Ships of the first class. xviii TABLE OF CONTENTS. [references are to sections.] § 310b. Assessors in townships. 310c. Assessment and levy of taxes in townships. 311. Record of assessment. 311a. Issue of duplicates and warrants. 312. Taxables to be notified of time and place to work out road taxes. 313. Appeals from assessments for township taxes. 313a. Collectors of taxes in townships. 314. Collection of taxes in townships of the second class. 315. Warrants for collection of township taxes. 316. Collection of road and poor taxes by levy and sale. 317. Organization of road supervisors. 317a. Levy of road tax — Abolition of work tax except when elect- ors vote to adopt the same. 317b. Payment by state to townships of fifty per centum of road tax collected by them. 318. Abolition of per capita road tax. 318a. Supervisors to make report to highway department — Notice to taxables in townships where work tax has not been abol- ished to work out same. 319. Right to work out taxes. 320. Collection of road taxes in townships of the 'second class — Abatements and penalties. 321. Collection of accrued township taxes from taxables in boroughs formed from townships. 322. Taxpayers may maintain highways and bridges in townships. s323. Taxpayers may maintain highways and bridges in townships of the first class. 324. When special road tax acts are repealed, general road law to apply. 324a. Payment by commonwealth of road taxes on forest reserves. 325. Townships to receive one-half of net receipts from sale of timber and minerals from forest reservations. 326. Tenants liable for road taxes. 327. Sales of unseated lands for road taxes. 327a. Tax for lighting streets and highways. 328. Tax to discharge debts due former supervisors or overseers. 329. Special tax to defray district and township debts. 330. Tax for the erection of a town house. 331. Tax to pay debts incurred in constructing public roads under provisions of special acts. 332. Cash road taxes to be collected in townships contributing to the construction of state roads. 333. Tax to pay for relocating, opening, straightening, etc., public roads. 334. Purchase of road building implements and materials. 335. Cash road tax to pay for implements and materials. TABLE OF CONTENTS. XIX [REFERENCES ARE TO SECTIONS.] § 336. Validation of bonds and taxes heretofore issued and levied to pay indebtedness incurred in macadamizing roads, etc. 337. Tax for construction and maintenance of lockups. 338. Rebates of road tax to taxables using wide tired wagons. 339. Rebates of road tax to taxables planting trees beside highways. 340. Limitation of rebates. 341. Record of trees to be kept. 342. Repeal of act of May 2, 1879. 343. Rebates of taxes on forested lands. 344. Duties of assessors. 345. Repeal of prior acts relative to rebates upon forested lands. 346. Rebates of taxes on lands planted with forest or timber trees. 347. Duties of assessors. 348. Limitation of rebates. 349. Credit allowed on road taxes for services rendered in remov- ing stones from highways. CHAPTER XIX. TAXATION IN BOROUGHS. § 350. Subjects of taxation in boroughs — Tax rate. 351. Moneys at interest' not taxable for borough purposes. 352. Tax on dogs. 353. Tax on dogs may be appropriated to support of public libra- ries. 354. Special gas and water tax. • 355. Special gas and water tax not to be levied until council has accepted act and an election been had. 356. Expenditure of special gas and water tax. 357. Special gas and water tax may be expended for electric light- ing. 358. Tax on hacks and other public vehicles. 359. Assessors in boroughs. 360. Assessments in boroughs. 361. Appeals from assessments for taxes in boroughs — Notice of assessments. 362. Levy of tax in boroughs. 363. Issue of duplicates of borough taxes and warrants. 364. Powers and liabilities of collectors of taxes in boroughs. 365. Collectors to give public notice of delivery of duplicate — Abatements and penalties. 366. Collectors to attend at designated place and receive taxes. 367. Compensation of collectors. 368. Collectors in boroughs formed by the consolidation of two or more boroughs. 369. Special taxes to pay borough indebtedness. 370. Tax to provide sinking fund for redemption of bonds. XX TABLE OF CONTENTS. [references are to SECTIONS.] § 371. Adjustment of liabilities on changing the limits of boroughs — Levy of special tax. 371a. Licenses in boroughs. 372. Hawker's and peddlers' licenses in boroughs. 372a. Theatre, etc., licenses. 373. Auctioneers' licenses in boroughs. ■ 374. Special taxes to provide for shade trees on highways in town- ships of the first class, boroughs and cities. 375. Proceedings by taxpayers on behalf of townships, boroughs, etc. CHAPTER XX. TAXATION IN CITIES OF THE THIRD CLASS. § 376. What are cities of the third class. 377. Powers of cities of the third class to levy taxes — Subjects taxable for city purposes. 378. Taxation of occupations. 379. Taxes for the payment of loans. 380. Poll tax. 381. License taxes. 382. License taxes on public exhibitions 'for pay. 383. Market license, tax. 384. Dog tax. 384a. Local tax acts repealed by Act of May 23, 1889. 385. Taxes to pay indebtedness of boroughs and townships an- nexed to cities of the third class. 386. Assessors of city taxes in cities of the third class. 387. Qualifications of assessors — Removals — Filling of vacancies — Powers of assessors. 388. Oath and compensation of assessors — Assistant assessors. 389. Assessors may administer oaths and require taxables to sub- mit sworn inventories of taxable property. 390. Assessors to obtain data from registries of real estate. 391. Assessment books — Clerk hire. 392. Triennial assessments. 393. Assessment of real estate — To whom real estate may be as- sessed. 394. Assessments in years other than triennial years. 395. Completion of assessments — Assessors may add omitted sub- jects to duplicates in hands of city treasurer. 396. Councils may regulate assessments, appeals, etc., by ordinance. 397. Notice of assessments — Appeals. 398. Board of revision and appeal. 399. Powers of board — Appeals. 400. When revision to. be completed. 401. Appeal from board of revision to court of common pleas. table of contents. xxi [references are to sections.] 402. Compensation of members of board of revision and clerk. 403. Collection of taxes in cities of the third class. 404. Collection of city and poor taxes and school taxes levied by boards of school controllers organized under the provisions of the Act of May 23, 1874. 405. Delivery of duplicates to city treasurer. 406. Issue of warrants. 407. Powers of city treasurer as tax collector — Deputy collectors. 408. Imprisonment of taxables in default of sufficient distress — Exonerations. 409. City treasurer's bond as collector. 410. Abatement of taxes and penalties. 411. What school and poor taxes are collected by the city treasurer. 412. Collector's office^ 413. Payments and returns by the city treasurer as collector. 414. Final settlement of duplicates. 415. Schedules of unpaid taxes — Tax liens. 416. Audit of city treasurer's accounts as collector. 417. Compensation of city treasurer as tax collector. 418. Repeal of inconsistent general laws. 419. Collection of certain school and poor taxes in cities of the third class. 420. Appointment of delinquent tax collectors — Powers — Levy and sale. 421. Collectors to make monthly returns. 422. Schedules of unpaid taxes. 423. Registration of unpaid taxes. 424. Taxes to be liens. 425. Collectors of state and county taxes in cities of the third class. 426. Tax sales of lands in cities of the second and third classes. 427. Advertisement of notice of sales— Redemption of lands sold. 428. Payment of purchase money. 429. Returns of sales. 430. Surplus bonds. 431. Deeds to purchasers of lands at tax sales. 432. Duties of city treasurer when lands are redeemed. 433. Repeal of inconsistent general laws. 433a. Registration of real estate. CHAPTER XXI. TAXATION IN CITIES OF THE SECOND CLASS. 434. What are cities of the /econd class. 435. Estimates of necessary revenues to be made. 436. Expenses of schools and poor to be 'paid from city tax. 437. Powers of cities of the second class to levy taxes — Subjects taxable for city purposes. XX11 | TABLE OF CONTENTS. [REFERENCES ARE TO SECTIONS.] § 438. Taxes for payment of loans. 439. Special taxes to pay indebtedness of certain districts. 440. License tax on places of amusement. 441. License tax for general revenue purposes. 442. Peddlers' licenses in cities of the second and third classes. 443. Tax on business in Pittsburgh. 444. Poll tax — Abolition of occupation tax, etc. 445. Dog tax. 446. Real estate of railroads taxable for city purposes in Pittsburgh. 447. Assessors of taxes. 448. Election of assessors. 449. Filling of vacancies. 450. Removal of assessors holding office at passage of act of March 7, 1901. 451. Duties of assessors. 452. Assessors in Pittsburgh to report properties owned otherwise than as stated in the registry of lots. 453. Classification of real estate. ' 454. Triennial and other assessments. 455. Assessment books — Employment of clerks — Administration of oaths. 456. Appeals from assessments. 457. When taxes shall be levied. 458. When taxes shall be payable. 459. Collector of delinquent taxes. 460. Salary of collector of delinquent taxes. 461. Registration and collection of delinquent taxes — Penalty for delayed payments — Collector's commission. 461a. Powers of collector — Distraint — Tax sales — Purchase of prop- erty by city — Redemptions. 462. Collectors to make returns of collection of taxes. 463. Advertisement of delinquent taxes. 464. Board of assessors to furnish collectors with lists of properties. 465. County commissioners to furnish collectors with copy of reg- istry of voters. 466. Adjustment of accounts of retiring collectors of delinquent taxes. 467. Registration of lots in the city of Pittsburgh. 468. Registered real estate in the city of Pittsburgh may be sold for taxes only in the name of the owner. 469. Liability for taxes on unregistered real estate in Pittsburgh. 470. Lien of taxes in Allegheny county. 470a. Lien of taxes in cities of second class. CHAPTER XXII. TAXATION IN THE CITY AND COUNTY OF PHILADELPHIA. § 471. Philadelphia city — Cities of the first class. TABLE OF CONTENTS. Xxiii [references are to sections.] i 472. Resume of the system of taxation in Philadelphia. 473. Estimate of necessary revenue to be submitted to councils, 474. Ascertainment of necessary amount of revenue and tax rate. 475. Rate and levy of taxes. 476. But one tax is levied for city and county purposes. 477. Board of revision of taxes. 478. Subjects of taxation. 479. Taxation of certain railroad property for city purposes. 480. Tax to pay indebtedness. 481. Poll tax— Rate. 482. Asessment of poll tax. 483. Collectors of poll tax. 484. Special tax for the establishment and maintenance of, free pub- lic libraries. * 485. Certain property not exempt from taxation. 486. Taxation of rural property. 487. Taxation of meadow lands. 488; Appointment of members of board of revision of taxes. 489. General powers of the board. 490.. Powers of board relative to assessors and assessments. 491. Assessment books. 492. Powers of board relative to appeals from assessments. 493. Compensation of members of board. 494. Annual report to secretary of internal affairs. 495. Appointment of assessors. 496. Assessment districts. 497. Compensation of assessors. 498. Triennial and other assessments. 499. Issue of precepts to assessors. 500. Assessment of real estate — Classification of lands. 501. Descriptions of real estate in assessments. 502. Assessment of lands in rural sections. 503. Assessment of ground rents. 504. Assessment of buildings omitted from returns. 505. Assessors to ascertain names of taxables. 506. Apportionment of taxes where separate estates are assessed as one. 507. Beginning and completion of assessments. 508. Issue of duplicates for collection of taxes. 509. Receiver of taxes to be charged with the amounts of duplicates. 509a. Audit of accounts of receiver of taxes. 510. Collection'of taxes — Departfnent of receiver of taxes. 511. Receiver of taxes. 512. Powers and duties of receiver of taxes. 513. Appointment of deputy receivers or collectors of taxes — Pow- .ers and duties. XXIV TABLE OF CONTENTS. [REFERENCES ARE TO SECTIONS.] § 514. Compensation of deputy receivers or collectors of taxes. 515. Branch offices for receipt of taxes.. 516. Appointment of local receivers of taxes — Compensation. 517. Regulation of branch tax officers. 518. Receivers of taxes responsible for collections by local receivers. 519. Abolition of office of ward receiver and other local tax collect- ors. CHAPTER XXIII. TAXATION IN PHILADELPHIA CITY AND COUNTY, CONTINUED. § 520. Delinquent taxes. ' 521. Registration of delinquent taxes. 522. Receiver of- taxes to file liens — Discharge of liens by judicial sales. 523. Penalties on registered delinquent taxes. 524. Notices to taxables of taxes about to become delinquent. 525. Receiver to publish names of delinquent taxpayers. 526. Charge for publication of lists of delinquent taxpayers. 527. Receipts to be given on payment of registered taxes. 528. Collection of delinquent taxes. 529. Distraint for taxes. 530. All taxes to be liens. 531. Lien of registered taxes. 532. Lien of taxes to cease on payment of amount of claim with interest and costs. 533. Divestment of lien of taxes by judicial sales. 534. Priority of lien of registered taxes over lien of mortgages. 535. Receiver of taxes to give certificates of searches for liens. 535a. Miscellaneous decisions relative to tax liens. 536. Suits for recovery of registered taxes. 537. Service of process. 538. Publication of notice. 539. Fees and costs. 540. Service of scire facias by posting and publication. 541. Writ on claim to contain name of plaintiff and the nature and character of claim. 542. City solicitor may be required to issue writ of scire facias to next monthly return day— Failure to issue. 543. Judgment on claims by default. 544. Claims may be read as evidence— Pleas which shall not be al- lowed. 545. Amendment of municipal claims— Continuances. 546. Locality index— Registration of street fronts of real estate against which claims are filed. 547. Registration of street fronts of real estate against which writ of scire facias are issued. TABI; Allegheny County v. Ground Society, 178 Pa. 533 Gibson, 90 Pa. 397 (1879); Bau- (1897); Phila. v. Penna. Hospital, mont v. Wilkes-Barre, 142 Pa. 198 143 Pa. 367 (1891) ; New Castle (1891); Commonwealth v. Whee- v. Cutler, 15 Pa. Super. Ct. 612 lock, 13 Pa. Super. Ct. 282 (1900) ; (1901) ; Com. v. Clark, 195 Pa. Coatesville Gas Co. v. Chester 634 (1900); Com. v. Muir, 1 Pa. County, 97 Pa. 476 (1881); Ruth's Super. Ct. 578 (1896); Pittsburgh Appeal, 10 W. N. C. 498 (1881); v. Coyle, 165 Pa. 61 (1894); Wil- Indiana County v. Indiana Agri- liamsport v. Stearns, 12 Pa. C. C. cultural Society, 85 Pa. 357 (1877). 625 (1893); Hadtner v. Williams- ""Sewickley Boro. v. Sholes, 118 port, 15 W. N. C. 138 (1883); Pa. 165 (1888); Coatesville Gas Wilkinsburg Boro. v. Home for Co. v. Chester County, 97 Pa. 476 Aged Women, 131 Pa. 109 (1890) ; (1881); West Manayunk Gas Lt. New Castle v. Stone Church Co. v. Phila., 3 D. R. 52 (1893). Graveyard, 172 Pa. 86 (1895). "Cope's Estate, 191 Pa. 1, 21 (1899). 26 TAXATION IN PENNSYLVANIA. ments made for municipal and other improvements. 72 Such as- sessments are based upon the power of taxation but. are not taxes- within the meaning of the constitutional exemption. 73 Water rents are not taxes. 74 Neither are fees for granting permits, nor rents of stalls in a borough market, 75 nor fees for the use of pub- lic scales in weighing coal. 76 The tax on collateral inheritances is not a tax within the meaning of the constitutional provision ex- empting from taxation institutions of purely public charity. 77 § 26. What are "general laws." The Act of March 22,- 1877, prescribing a system of taxation for cities of the second class, is not a local tax law in violation of Article IX, § 1, of the Constitution. "It is also contended that an act relating to the collection of taxes in a given class of cities is local, and violates art. 9, § 1, of the constitution, which declares that all taxes shall be levied and collected under general laws, and we are asked to reverse the court below for this reason. We regard this question as already settled against the appellant. We have repea'tedly held that the power to classify being conceded, the conclusion that an act passed for a class was not a local law within the prohibition of the constitution was irresistible. It may not be a general law in the same sense that one applicable to- "the commonwealth at large is general; but it is general, in another and strictly legal sense, since it embraces all the members of a class which the legislature has created, without any violation of the funda- mental law; and which is therefore a proper subject for legislation."?* An act imposing a state tax on the business of merchants,, based upon the gross amount of their sales, is a general law, within the meaning of Article IX, Section 1, although under its provisions the appraisers of the tax in cities of the first class are ,2 Harrisburg v. St. Paul's Epis- C. 415 (1897). Contra, Emaus copal Church, 18 Pa. C. C. 113 Boro. v. Emaus School District,. (1895), and cases cited. See Sec. 12 Pa. C. C. 349 (1892). 73. "Fisher v. Harri'sburg, 2 Gr. "Wilkinsburg v. Home for 291. Aged Women, 131 Pa. 109 (1890) ; "O'Maley v. Freeport Boro., 95 Phila. v. Penna. Hospital, 143 Pa. Pa. 24 (1880). 367 (1891); Huidekoper v. Mead- "Finnen's Estate, 196 Pa. 72- ville, 83 Pa. 156 (1876); Vaca- (1900). In Bittinger's Estate, 129 tion of Centre Street, 115 Pa. Pa. 338 (1889), however, the col- 247 (1886) ; Chester City v. Black, lateral inheritance tax is held to 132 Pa. 568 (1890). be a tax on property: "Rieker v. Lancaster, 7 Pa. '"Com. v. Macferron, 152 Pa. Super. Ct. 149 (1898); Dixon v. 244 (1893). Kennett Square Boro., 19 Pa. C. POWER OF TAXATION. 27 . different in number and are differently appointed from such ap- praisers in counties. 79 An act providing for the collection of taxes in the several boroughs and townships of the Commonwealth, is not a special law, forbidden by said section, because of a provision therein that "this act shall not apply to any taxes the collection of which is regulated by a local law." 80 § 27. Power of classification. The power of classification of subjects for purposes of taxation, recognized by the courts before the adoption of the Constitution of 1874, is expressly con- ferred by the first section of the ninth article of that instru- ment. 81 The power to classify is unlimited, so long as its exercise is based in good faith on substantial differences of nature, condi- tion or adaptability between the classes created. "All that is required is, that the classification shall be made according to some reasonable, practical rule, drawn from expe- rience, which would prevent gross inequality in the burdens of taxation." 82 "Nor is classification necessarily based upon any essential dif- ferences in the nature, or indeed in the condition, of the various subjects; it may be base<3 as well upon the want of adaptability of some methods" of taxation, or upon the impracticability of applying to the various subjects the same methods, so as to pro- duce just and reasonably uniform results, or it may be based upon well-grounded considerations of public policy." 83 § 28. Classifications which have been sustained. Real estate in cities may be divided into different classes and such classes subjected to taxation at different rates. 84 "Knisely v. Cotterel, 196 Pa. City, 212 Pa. 598 (1905); Kittan- 614 (1900). ning Coal Co. v. Com., 77 Pa. 10O - ""Evans v. Phillipi, 117 Pa. 226 (1875) ; Wheeler v. Phila.,^ 79 Pa. (1887); Com. v. Lyter, 162 Pa. 338, 348 (1875). 50 (1895). S2 New Castle v. Cutler, 15 Pa. "Com. v. Del. Division Canal Super. Ct. 612 (1901). Co., 123 Pa. 594 (1888); Roup's, ""Com. v. Del. Division Canal Case, 81* Pa. 211 (1874); Ger- Co., 123 Pa. 594, 621 (1888). mania Life Ins. Co. v. Com., 85 "Roup's Case, 81* Pa. 211 Pa. 513 (1877); Pittsburgh v. (1874); Com. v. Halstead, 1 Pa. Coyle & Co., 165 Pa. 61 (1894); C. C. 335 (1886); Williamsport v. Williamsport v. Brown, 84 Pa. Brown, 84 Pa. 438 (1877). 438 (1877); Jermyn v. Scranton ,28 TAXATION IN PENNSYLVANIA. The obligations issued by corporations, counties and munici- palities may be taxed at their nominal or par value while those is- sued by individuals are taxed at their actual value. 85 Manufacturing corporations may be divided into two classes, viz : those manufacturing malt, spirituous and vinous liquors and illuminating gas, and all other manufacturing companies, and the first class subjected to tax upon their capital stock and the other exempted therefrom. 86 Foreign insurance companies may be made a separate subject of taxation from domestic insurance companies. 87 Saloon keepers may be made a class for the imposition of a license tax. 88 Merchandise and real estate brokers may be segregated from other brokers and taxed as a class, 89 and an ordinance which provides that venders of certain enumerated articles shall pay a license fee, but exempts from the tax persons paying a mercantile license tax, is valid. 90 The capital stock of corporations may be made a distinct sub- ject of taxation. 91 Banks electing to collect from their shareholders and pay into the state treasury a tax of eight mills on the par value of such shares may be taxed on that basis, whTle banks not so electing may be faxed on the actual value of their shares. 92 A classification of coal mining and purchasing and selling companies is not beyond the legislative power, and a franchise tax imposed upon such companies as a class, based upon the number of tons of coal mined or purchased, is within the con- stitutional provision. 93 '"Com. v. Delaware Division "Warren Borough v. Geer, 117 Canal Co., 123 Pa. 594 (1889); 23 Pa. 207 (1887). W. N. C. 216. See Fox's Appeal, M Com. v. National Oil Co., Lim., 112 Pa. 337 (1886); 17 W. N. C. 157 Pa. 516 (1893); Com. v. Mill 449. 'See Com. v. Martin, 107 Creek Coal Co., 157 Pa. 524* Pa. 185 (1884). (1893); Com. v. Edgerton Coal "Com. v. Germania Brewing Co., 164 Pa. 284 (1894); Com. v. Co., 145 Pa. 83 (1891). Tj. S. Elec. Lt. Co., 7 Pa. C. C. "'Germania Life Insurance Co. 90 (1889). v. Com., 85 Pa. 513 (1877). M Com. v. Merchants & Mfgrs. ""Durach's Appeal, 62 Pa. 491 Nat. Bank, 168 Pa. 309 (1895). ( 187 °)- See Truby's Appeal, 96 Pa. 52 "Pittsburgh v. Coyle, 165 Pa. (1880). 61 (1895). > M Kittanning Coal Co. v. Com., 79 Pa. 100 (1875). POWER OF TAXATION. 29 A tax imposed on the capital stock of corporations paying dividends of six per centum per annum or more, at the rate of one-half mill for each onei per cent of dividend, and on cor- porations paying no dividends, or dividends of less than six per centum, at the rate of three mills, is uniform within the con- stitutional provision. 94 Wholesale merchants may be taxed at one rate and retail merchants at another, 95 and dealers at an exchange or board of trade may be taxea at a different rate from other wholesalers. 96 A license tax may be imposed on peddlers and not on traveling salesmen. 97 Lodging houses may be subjected to the payment of a license tax to which hotels and "wayfarers' lodges!' are not subject. 98 The fees of a public officer holding more than one office, may be taxed at a different rate from that imposed on the fees of such an officer holding but one office. 99 Peddlers of milk may be subjected to a license tax while ped- dlers of bread, fish or oysters are not taxed. 100 § 29. Uniformity of taxation. 1 A given tax having been determined to be based upon a valid classification, the further question arises whether or not it is uniform in its operation upon the members constituting the class subject thereto. The uni- formity required by the Constitution is limited to (a) the same class of subjects (b) within the territorial limits of the authority imposing the tax. Consequently taxation need not be uniform upon the same' class of subjects within the limits of different ♦ tax authorities, nor need all subjects within the limits of a given tax authority be uniformly taxed, but only the same class of subjects. 2 It has been held that the tax on occupations may not be im- M Com. v. Brush Elec. Lt. Co., "Com. v. Muir, 180 Pa. 47 145 Pa. 147 (1891). (1897). 9B Com. v. Clark, 195 Pa. 634 "Com. v. Anderson, 178 Pa. 171 (1900), affirming 10 Pa. Super. Ct. (1896). 507. See Butler's Appeal, 73 Pa. ""Danville Borough v. Weaver 448 (1873). & Campbell, 4 D. R. 768 (1895). "'Knisely v. Cotterel, 196 Pa. 'See § 786a. 614 (1900). 2 Hadtner v. Williamsport, 15 "New Castle v. Cutler, 15 Pa. W. N. C. 138 (1883); Harrisburg Super. Ct. 612 (1901). v. East Harrisburg Pass. Ry. Co., 4 D. R. 683 (1895). 30 TAXATION IN PENNSYLVANIA. posed according to the incomes derived by the taxables, respec- tively, from their several occupations, 3 but it has also been held that merchants may be taxed upon the basis of their annual sales, respectively, 4 although an ordinance imposing a tax upon merchants whose sales annually exceed a certain amount, and exempting other merchants, was held to be void for want of uniformity. 5 A tax on direct inheritances, from the operation of which per- 'sonal property amounting to less than five thousand dollars was exempted, was also held to be void, 6 and so was a tax on the employers of foreign-born, unnaturalized male persons over twenty-one years of age. 7 The tax imposed by the first section of the Act of June 30, 1885, on the judgments, bonds, mortgages, etc., held by indi- viduals is not void for want of uniformity because obligation's of like nature held by corporations are not subjected thereto, for the reason that by other laws the capital stock of corporations, held to be representative of the property and assets thereof, is taxed at the same rate imposed on such obligations held by individuals, by the Act of 1885. 8 "Banger's Appeal, 109 Pa. 79 following other occupations may (1885). not be taxed on the basis of their 'Williamsport v. Wenner, 172 actual receipts from such occupa- Pa. 173 (1896) ; Com. v. Clark, 195 tions, is not apparent. Pa. 634 (1900). See Allentown v. 6 Williamsport v. Stearns, 2 D. Gross, 132 Pa. 319 (1890), and R. 351 (1893); 12 Pa. C. C. 625. Knisely v. Cotterel, 196 Pa. 614 'Cope's Estate, 191 Pa. 1 (1899) ; (1900). In the first of these cases Portuondo's Estate, 191 Pa. 28 a distinction is sought to be made (1899). The Act of May 6, 1887, between Banger's Appeal, supra, P. L. 79, which exempts collateral and the case decided, by holding inheritances of less than two hun- that the tax on merchants is a dred and fifty dollars from taxa- tax on their property measured tion is, however, constitutional, by their sales, but in the case of Mixter's Estate, 28 W. N. C. 182 Knisely v. Cotterel, supra, the (1891). court holds, in effect, that the tax 'Juniata Limestone Co., L,im. v. in question was on the business Fagley et al., 187 Pa. 193 (1898). and not on the property of the "Pox's Appeal, 112 Pa. 337 merchants. Hence why mer- (1886); Fidelity Ins., T. & S. D. chants may be taxed on the basis Co. v. Loughlin, 139 Pa. 612 of the gross amount of their in- (1891). comes from sales, and persons POWER OF TAXATION. "31 "There is no constitutional requirement of uniformity in leg- islation, except in taxation." 9 The Act of June 13, 1907, P. L. 640, taxing trust companies upon the value of their capital stock as arrived at by adding to- gether the amount of their paid-in capital stock, surplus and undivided profits, with certain deductions, was held to be void by the court of common pleas of Dauphin county because the imposition of the tax on said basis did not operate uniformly upon the companies constituting the class subject to the tax, but this decision was reversed by the Supreme Court. 10 "All properties,, however, in the same class, must be taxed without discrimination in the rate of tax imposed; the rule of ascertaining the value of the property must be the same; the actual cash value of one capital stock in the same class cannot be ascertained from net earnings, another from profit, another from surplus and another from dividends, for each method will produce a different valuation and result in inequality. But each may be taxed on the actual cash valuation from any relative evidence tending to establish the fact." 11 Article IX, § 1 of the Constitution, requires not merely uni- formity of laws relative to taxation but uniformity of taxes and the method of their assessment. Where the appraisement made by the accounting officers and their settlement for taxes thereon against the capital stock of a corporation is not uniform with appraisements and settlements against other like corpora- tions and does not produce uniformity of taxes among such like corporations for the same' tax years, it is invalid and the court will inquire into such discrimination on appeal, though appel- lant's stock is not assessed above its actual value, 12 The Act of June 1, 1891, is not repugnant to the uniformity clause, because it renders the real estate of a corporatio'n liable to taxation for state purposes while the real estate of an in- dividual is not so liable. 13 "Pulaski Township Poor Dist. "Com. v. Lake Shore & Michi- v. Lawrence County, 222 Pa. 358 gan Southern R. R. Co., 11 D. (1908). R. 318 (1900); Com. v. Mammoth 10 Com. v. Mortgage Trust Com- Vein Coal & Iron Co., 11 D. R. pany of Pennsylvania, 223 Pa. 328 (1900). (1909), reversing 12 Dauph. Co. "Com. v. Union Improvement Reps. 24. Co., No. 339 Dauph. Co., Comth. "Com. v. Sharon Coal Co., Ltd., Dkt. (1899). 164 Pa. 304 (1894). 32 TAXATION IN PENNSYLVANIA. The Act of April 20, 1905, P. L. 237, providing for the care and maintenance of abandoned turnpikes at the expense of the county, city or borough in which said turnpikes or parts thereof are located, is void for lack of uniformity. 14 § 30. Exemptions prohibited. All laws exempting prop- erty from taxation, other than the property above enumerated, shall be void. 15 From an examination of the cases construing the foregoing provision, it would seem that it repeals all acts exempting prop- erty from taxation in existence at the date of the adoption of the Constitution, except acts exempting property of the classes ■permitted to be exempted by § 1 of Article IX of the Consti- tution, and acts granting exemptions involving the obligation of contracts, although the authorities are not clear on this subject, 16 but the said provision does not subject to taxation property which was not included among taxable subjects prior to said date, such as the property of public service corporations essential to the exercise of their franchises. 17 The exception in the first section of the Act of June 30, 1885, of "notes or bills for work or labor done" from other notes or bills as subjects of taxation, is in violation of the foregoing section and void, 18 and a provision in an act imposing a state tax on direct inheritances, providing that personal property to the amount of five thousand dollars shall be exempt from taxa- tion, is within the prohibition and renders the act void. 19 "Haines Township Supervisors Wheelock, 13 Pa. Super. Ct. 282 y. Centre County Commissioners, (1900); Chadwick v. Magines, 94- 16 D. R. 659 (1907); Com. v. Bed- Pa. 117 (1880); 8 W. N. C. 451 ; ford County Commissioners, 16 Coatesville Gas Co. v. Chester D/R. 353 (1907). County, 97 Pa. 476 (1881). ' "Sec. «2, Art. IX, of the Con- "Northampton County v. In- stitution of Penna. high Coal & Nav. Co., 75 Pa. 461 "German Society v. Phila., 4 (1874). W. N. C. 213 (1877); London- 18 Fox's Appeal, 112 Pa. 337 derry Township v. Berger, 2 (1886). The Act of 1885 con- Pears. 230; Wagner Free Insti- tained a provision exempting- tute v. Phila., 1 Pa. C. C. 256 building and loan associations (1886); Mercantile Library Hall from its operations, but the act Co. v. Pittsburgh, 2 Pa. C. C. 519, was held not to apply to corpora- 11 Atl. Rep. 667 (1887); 9 Sad- tions of any kind. ler's S. C. Cases 59; Lehigh Iron "Cope's Estate, 191 Pa. 1 Co. v. Lower Macungie Town- (1889); Portuondo's Estate, 191 ship, 81 Pa. 482 (1876); Com. v. Pa. 28 (1899). POWER OF TAXATION. 33 Said section does not, however, prohibit the Legislature from exempting classes of property not enumerated in § 1 from a given tax. 20 It does not require that all classes of property shall be subject to all taxes, 21 nor in any way interfere with the power to subject a given class of property or individuals to taxation without subjecting other classes thereto; but a portion of a class may not be exempted from the payment of a given tax. 22 § 31. Right to tax corporations not to be surrendered. The power to tax corporations and corporate property shall not be surrendered or suspended by any contract or grant to which the state shall be a party. 23 While it was held, 24 prior to the adoption of the Constitution of 1874, that the legislature had no power to alienate the right of taxation so as to bind future legislatures, yet, as above pointed out, 25 by acts granting charters of incorporation the legislature frequently limited its power of taxation of the corporations formed thereby. The above provision prohibits such limitation, as well as any other grant or contract to which the state may be a -party. The other provisions relative to exemptions evidently refer to exemptions granted as a matter of policy, while this relates to exemptions granted for a consideration. § 32. Double taxation. There is no restriction in Penn- sylvania upon the power of the legislature to impose double taxation, provided that it is so imposed as to produce uniformity. "It cannot be done arbitrarily in a given case, but it may be done if the whole class to which the subject belongs is subjected to the burden in substantially the same ■ manner ; but the intent to impose double taxation will not be presumed. . . . The presumption is against the existence of s,uch an intention, and this presumption will prevail until overcome by express words showing an intent to impose double taxation." 26 "Hawes' Manufacturing Co.'s 204 Pa. 110 (1902); Truby's Ap- Appeal, 1 Mona. 353 (1889); peal, 96 Pa. 52 (1880). Com. v. Germania Brewing Co., ^Art. IX, § 3, Constitution of 145 Pa. 83 (1891). . Penna. "Lackawanna County v. First "Mott v. Penna. R. R. Co., 30 National Bank, 94 Pa. 221 (1880). Pa. 9 (1858). 22 Com. v. Clark, 195 Pa. 634 25 See § 21. (1900). See generally, Com. v. 2e Com. v. Fall Brook Coal Co., Wheelock, 13 Pa. Super. Ct. 282 156 Pa.' 488 (1893); Com. v. Le- (1900) ; Erie v. Griswold, 184 Pa. high C. & N. Co., 162 Pa. 603 435 (1898) ; Franklin v. Hancock, (1894) ; Guarantee Trust Co. v. 3 34 TAXATION IN PENNSYLVANIA. § 33. Delegation of power of taxation to municipali- ties, etc. "Whatever power of taxation the Commonwealth possesses, it may delegate to a municipal government, to be legitimately exercised within its corporate limits." 27 § 34. Delegation of power of taxation to corporations and commissions. Various special acts passed before the Con- stitution of 1874 give to meadow companies and special com- missions for the maintenance of public roads the power to levy taxes. The assessments made by these companies and bodies are a special tax upon property particularly benefited by a local improvement, and the power to make them is delegated by the Commonwealth. It is an exercise of the tax power and the assessments are taxes. 28 § 35. Retroactive tax laws. "The principle has been re- peatedly -recognized in this state that, where the legislature has antecedent power to authorize a tax, it can cure, by a retroactive law, an irregularity or want of authority in levying it, though thereby ar right of action which had been vested in an individual should be divested." 29 "The power of the legislature to levy taxes for the public good extends even retrospectively to all matters not penal, not in vio- lation of contracts and not forbidden by the Constitution, and can act directly on individual rights, although remote and in- direct." 30 Loughlin, 17 Phila. 123 (1884); M Robb v. Phila., 25 Pa. Super. Loughlin's Appeal, 7 Sadler's S. Ct. 343 (1904); Garrett v. Kil- C. Cases 152 (1887); Phila. Sav- patrick, 13 W. N. C. 384 (1883); ing Fund 'Society v. Yard, 9 Pa. Rutherford v. Maynes, 97 Pa. 78 359 (1848); West Chester Gas (1881). Co. v. Chester County, 30 Pa. 232 20 Chester City v. Black, 132 Pa. (1858); Fidelity Ins. T. & S. D. 568 (1890); Grim v. Weissenberg Co. v. Loughlin, 139 Pa. 612 >Sch. Dist, 57 Pa. 433 (1868); (1891); Pittsburgh, Ft. W. & C. Com. v. Marshall, 69 Pa. 328 Ry. Co. v. Com., 66 Pa. 73 (1870); (1871); Schenley v. Com., 36 Pa. Penna. Co. for Ins. on Lives etc. 29, 57 (1859); Magee v. Com., 46 v. Com., 22 W. N. C. 340 (1888). Pa. 358 (1863); Kelly v. Pi'tts- "Butler's Appeal, 73 Pa. 448, burgh, 85 Pa. 170 (1877); Hew- 451 (1873); Durach's 7 Appeal, 62 itt's Appeal, 88 Pa. 55 (1878); Pa. 491 (1870); Penna. R. R. Co. Erie City v. Reed's Executors', v. Pittsburg, 104 Pa. 522, 541 113 Pa. 468 (1886). (1883), and cases cited; "Jermyn ""Weister et al. v. Hade, 52 Pa. v. Scranton City, 186 Pa. 595 474 (1866); Felty v. Uhler et al., (1898). 10 Phila. 514 (1873). CHAPTER II. CONSTITUTIONAL PROVISIONS INDIRECTLY AFFECTING TAXATION. § 36. Restrictions as to state and municipal indebtedness. 37. Restriction of state debt. 38. Laws authorizing state loans to specify the purposes for which the proceeds thereof are to be used. 39. Credit of state not to be pledged — State not to be a stock- holder in corporations. 40. Municipalities not to become stockholders in nor loan their credit to corporations. 41. Limitation of municipal indebtedness. 42. State not to assume municipal debt — Exceptions. 43. Municipalities incurring indebtedness must provide for payment by annual tax. 44. State sinking fund. 45. Surplus funds applied to state indebtedness — Sinking fund in- vestments. § 36. Restrictions as to state and municipal indebted- ness. _The following provisions of the Constitution, restricting the increasing of state and municipal indebtedness, necessarily limit the power of taxation for the payment of such indebted- ness, and. interest thereon, .to such indebtedness only, as is in- curred conformably to the requirements of such provisions. § 37. Restriction of state debt. No debt shall be created by or on behalf of the state, except to supply casual deficiencies of revenue, repel invasion, suppress insurrection, defend the state in war, or to pay existing debt; and the debt created to supply deficiencies in revenue shall never exceed, in the aggregate at any one time, one million- of dollars. 1 § 38. Laws authorizing state loans to specify the pur- pose for which the proceeds are to be used. All laws, authorizing the borrowing of money by and on behalf of the state, shall specify the purpose for which the money is to be used, and the money so borrowed shall be used for the purpose specified and no other. 2 1 Sec. 4, Art. 9, Constitution of 2 Sec. 5, Art. 9, Constitution of Pennsylvania. Pennsylvania. 36 TAXATION IN PENNSYLVANIA. § 39. Credit of state not to be pledged — State not to be a stockholder in corporations. The credit of the Com- monwealth shall not be pledged or loaned to any individual, company, corporation or association, nor shall the Common- wealth become a joint owner or stockholder in any company, association or corporation. 3 § 40. Municipalities not to become stockholders in nor loan their credit to corporations. The General Assembly shall not authorize any county, city, borough, townsjgip or in- corporated district to become a stockholder in any company, association or corporation, or to obtain or appropriate money for or to loan its credit to any corporation, association, institu- tion or individual. 4 This section is taken from § 7 of article 11 of the Constitution of 1790, as amended in 1857, and appears to have been originally borrowed from the Constitution of Ohio. 5 The prohibition of the foregoing provision is prospective only, and does not repeal acts in force at the time of its adoption, the provisions whereof are inconsistent therewith. 6 An agreement between a city and a railroad company whereby the city, is to construct a subway for the company so as to avoid grade crossings, and the company is to reimburse the city to the amount of one-half of the. expenditure, is not a loan of the city's credit to the company in violation of § 7 of article 9, 7 and a city may appropriate money to a committee of private citizens appointed by the chamber of commerce and ratified by city coun- cils to defray the expenses of making surveys for a ship canal and securing information as to whether such a canal is practicable and would be beneficial to the city. 8 The payment of bounties to volunteers to enable a municipality to fill its quota under a call for troops is not within the prohibi- 3 Sec. 6, Art. 9, Constitution of "Wheeler v. Philadelphia, 77 Pennsylvania. Pa. 338, 351 (1875). 4 Sec. 7, Art. 9, Constitution of "Indiana County v. Agricultural Penna. Prior to the adoption of Society of Indiana County, 85 Pa. the amendment of 1857 the right 357 (1877). See Com. v. Perkins, of the legislature to authorize a 43 Pa. 400 (1862). city to subscribe to the stock of a 'Brooke et al. v. Phila., 162 Pa. railroad company was upheld. 123 (1894). Sharpless v. Phila., 21 Pa. 147 "Com. v. Pittsburgh, 183 Pa. (1853). 202 (1897). CONSTITUTIONAL PROVISIONS. 37 tion of the foregoing provision, 9 nor is the construction of gas works 10 or of electric light plants 11 by municipalities and the operation of the same within said prohibition. But an ordinance authorizing the retention of a part of the dividends due to a city on stock of the Pennsylvania Raproad Company held by it, for the purpose of aiding in the establish- ment of a steamship company, is void under the provisions of the said seventh section of article nine, 12 and an act enabling a private, unincorporated hospital to make requisitions upon a county for the payment of its charges for the support of patients under its treatment, even though they are paupers, is prohibited by said section. 13 § 41. Limitation of municipal indebtedness. The debt of any county, city, borough, township, school district or other municipality or incorporated district, except as herein provided, shall never exceed seven per centum upon the assessed value of the taxable property therein, nor shall any such municipality or district incur any new debt, or increase its indebtedness to an amount exceeding two per centum upon such assessed valuation of property, without the assent of the electors thereof at a public election in such manner as shall be provided by law; but any city, the debt of which now exceeds seven per centum of such assessed valuation, may be authorized by law to increase the same three per centum, in the aggregate at any one time, upon such valuation. 14 Debt and indebtedness in the foregoing section are not used in any technical sense, but in their broad general meaning, of all contractual obligations to pay in the future for considerations received in the present, and unliquidated damages to land owners resulting from a public improvement are a debt within said mean- ing. Hence a municipality, already in debt up to the limit of two per cent on the assessed value of the property therein, may not, without a vote of the electors, enter into a contract for the construction of a viaduct without expense to itself, but which "Speer v. Blairsville School Di- "Pennsylvania Railroad Co. v. rectors, 50 Pa. 150 (1865). Phila., 47 Pa. 189 (1864). "Wheeler v. Philadelphia, 77 "Wilkes-Barre City Hospital v. Pa. 338 (1875). Luzerne County, 84 Pa. 55 (1877). "Linn et al. v. Chambersburg "Sec. 8, Art. 9, of the Constitu- Borough, 160 Pa. 511 (1894). tion of Pennsylvania. 38 TAXATION IN PENNSYLVANIA. will make it liable for damages to the owners of abutting land. 15 A contract of a municipality pertaining to its ordinary ex- penses, which, together with like expenses, is within the limit of the current revenues of the municipality and such special taxes as it, may legally and in good faith intend to levy therefor, does not constitute the "incurring of indebtedness" within the meaning of the constitutional provision. 16 But the rule that the making of a contract pertaining to ordi- nary expenses for a term of years, creating a liability which the city has clearly the power to meet annually from its current revenues, does not constitute the "incurring of indebtedness," does not extend to contracts pertaining to extraordinary expenses such as the construction of a water works. Hence a contract entered into by a municipality, whose indebtedness was already in excess of its constitutional limit, to purchase the plant of a water works, to be paid for in twenty annual installments out of its "current revenues, and not otherwise" is within the con- stitutional prohibition. 17 The "last preceding assessed valuation thereof" refers to the valuation fixed by the city authorities as the basis of taxation for city purposes, and not to the valuation made by county offi- cers for county purposes, 18 and municipal and other officers are not required to go back of such valuation for the purpose of inquiring whether it is upon an assessment including items not properly taxable within the meaning of the Constitution. 19 The "taxable property" mentioned in § 8, art. IX, includes all species of property subject to taxation, and offices, posts of profit and occupations are taxable property within the meaning of said section. 20 The debt of a municipality is properly ascertained by sub- tracting from its total indebtedness the amount of the certificates of its funded debt held in its sinking fund. 21 "Keller v. Scranton, 200 Pa. 130 ls Bruce et al. v. Pittsburgh, 166 (1901). Pa. 152 (1895). "Erie City's Appeal, 91 Pa. 398 "Brown's Appeal, m Pa. 72 (1879); Wade et al. v. Oakmont (1885). Boro., 165 Pa. 479 (1895); Reut- "Brown's Appeal, 111 Pa. 72 ing v. Titusville, 175 Pa. 512 (1885). (1896); Booth v. Weiss, 15 Phila. '"Brooke v. Philadelphia, 162 159 (1889). Pa. 123 (1894). "Brown v. Corry City, 175 Pa. 528 (1896). CONSTITUTIONAL PROVISIONS. 39 The law as to increases of indebtedness under § 8, art. IX, is as follows : If a municipality have an indebtedness of less than seven per centum of the valuation of the property therein, it may, without a popular vote, increase the existing indebtedness either at once or by subsequent additions, until the aggregate indebtedness is two per centum more of the valuation of the taxable property than it was at the time of the adoption of the Constitution. 22 Beyond that amount, viz, the amount of the indebtedness at the time of the adoption of the Constitution, plus two per centum, the indebtedness may be increased only with the sanction of a popular vote, until the total indebtedness equals seven per centum. 23 A city having no indebtedness at the time of the adoption of the Constitution, or one incorporated since, without debt, may increase its indebtedness up to two per centum of the valuation of the property therein, without an election held for that pur- pose, but all increases beyond that amount, whether they severally exceed two per centum or not, may be made only with the sanc- tion of a popular vote. Where the indebtedness of a municipality at the time of the adoption of the Constitution of 1874 was more than seven per centum, and it has not since been reduced below that amount, the Legislature may authorize the municipality to increase the same three per centum of the aggregate at any one time. Where this is done, and an increase of one per centum is authorized to be made under authority thereof, no popular vote on the prop- osition is necessary; whether, if the proposed increase under such authority exceed two per centum, a vote is necessary, not decided. 24 Where 'the indebtedness of a municipality falls below seven per centum, its debt may not be again increased beyond that amount, and subsequent increases must be made as provided for cities the indebtedness of which "at the time of the adoption of the Constitution did not exceed seven per centum. 25 22 Hirt v. Erie, 200 Pa. 223 "Wheeler v. Philadelphia, 77 (1901). Pa. 338, 352 (1875). K Pepper v. Phila., 181 Pa. 566 ""Pepper v. Philadelphia, 181 (1897); Wheeler v. Philadelphia, Pa. 566 (1897). 77 Pa. 338 (1875); Pike Co. v. Rowland, 94 Pa. 238 (1880). 40 TAXATION IN PENNSYLVANIA. Where a city has borrowed, since the adoption of the Con- stitution, more than two per centum, and more than that per- centage of that additional indebtedness is outstanding, the mu- nicipal authorities must have recourse to the people for authority to exceed the debt, although the proposed increase would not exceed the seven per centum limit nor exceed two per centum of the assessed valuation. 26 The method of procedure for increasing the indebtedness of municipalities is provided for by the Act of June 9, 1891, P. L. 252, amending § 3 of the Act of April 20, 1874, P. L. 65. In voting on a proposition to increase the indebtedness of a mu- nicipality, the electors are to assent to or dissent from the in- crease, not to or from the purpose to which it is to be applied ; and it is not necessary that they vote separately on each item set apart for a particular purpose for which the debt is about to be increased. 27 As a general rule, a contract of a municipality cannot be en- forced if its enforcement will result in an increase of the in- debtedness to ah amount exceeding two per centum of the value of the property therein, without the assent of the electors, 28 but the validity of a municipal contract, so far as it relates to an increase of the municipal debt beyond the constitutional re- striction, must be determined as of the time when it was made. Hence, where a city provides that the contract price of a sewer shall be paid partly by money in the treasury and partly by as- sessments on abutting and non-abutting properties, and it is sub- sequently found that the non-abutting properties are not liable to such assessments, the loss must fall upon the city, although at the time when the contract was made the obligation of the city to pay for the non-abutting properties increased the debt beyond the constitutional limit. 29 And an increase of more than two per centum,' without the precedent assent thereto of the electors, may be ratified and recognized by a subsequent vote authorizing the town council to create an indebtedness for the express purpose of liquidating the floating, indebtedness thus ir- M Houston v. Lancaster, 191 Pa. "O'Malley v. Olyphant Bor- 143 (1899). ough, 198 Pa. 525 (1901). "Barr v. Philadelphia, 191 Pa. ""Addyston Pipe & Steel Co. v. 438 (1899); Major v. Aldan Corry City, 197 Pa. 41 (1900). Borough, 209 Pa. 247 (1904). CONSTITUTIONAL PROVISIONS. 41 regularly contracted, so as to make it enforceable against the borough. 30 An ordinance providing for a municipal loan, which levies a tax of seven-tenths of a mill to repay the loan, will not be de- clared invalid on a bill in equity where the answer filed by the city avers that the levy will be sufficient to pay the loan within thirty years, and it is not alleged or shown that those charged with the duty of fixing the levy had not in good faith endeavored to fix a proper rate, or that the rate fixed might not be reasonably expected to produce sufficient funds with which to meet the prin- cipal and interest of the debt within said period. 30a Where in -a proceeding on a taxpayer's bill to enjoin the au- thorities of Philadelphia from borrowing moneys under the pro- visions of an ordinance authorizing a temporary loan, it appeared that the indebtedness of the city did not exceed two per cent, of the assessed valuation of taxable property, that the ordinance in question did not require the assent of the electors, that means for repayment of the loan had been provided for, and there was no evidence that the loan could not be paid out of the current rev- enues, a preliminary injunction was refused. 31 § 42. State not to assume municipal debts — Exceptions. The Commonwealth shall not assume the debt, or any part thereof, of any city, county, borough or township, unless such debt shall have been contracted to enable the state to repel inva- sion, suppress domestic insurrection, defend itself in time of war, or to assist the state in the discharge of any portion of its present indebtedness. 32 § 43. Municipalities incurring indebtedness must pro- vide for payment by annual tax. Any county, township, school district or other municipality, incurring any indebtedness shall, at or before the time of so doing, provide for the collection of an annual tax sufficient to pay the interest and also the prin- cipal thereof within thirty years. 33 § 44. State sinking fund. To provide for the payment of the present, state debt, and any additional debt contracted as afore- s0 Bell v. Waynesboro Boro., 195 3, Sec. 9, Art. 9, Constitution of Pa. 299 (1900). Penna. 30aBarr et al. v. Phila.-, 191 Pa. S3 Sec. 10, Art. 9, Constitution of 438 (1899). Penna. "Alexander v. Philadelphia, 17 D. R. 799 (1908). 42 TAXATION IN PENNSYLVANIA. said, the General Assembly shall continue and maintain the sink- ing fund, sufficient to pay the accruing interest on such debt, and annually to reduce the principal thereof by a sum not less than two hundred and fifty thousand dollars; the said sinking fund shall consist of the proceeds of the sales of the public works or any part thereof, and of the income or proceeds of the sale of any stocks owned by the Commonwealth, together with other funds and resources that may be designated by law, and shall be increased from time to time by assigning to it any part of the taxes or other revenues of the state not required for the ordinary and current expenses of government; and unless in case of war, invasion or insurrection, no part of the said sinking fund shall be used or applied otherwise than in the extinguishment of the public debt. 34 § 45. Surplus fund applied to state indebtedness — Sink- ing fund investments. The moneys of the state, over and above the necessary reserve, shall be used in the payment of the debt of the state, either directly or through the sinking fund, and the moneys of the sinking fund shall never be invested in or loaned upon the security of anything, except the bonds of the United States, or of this state. 35 M Sec. 11, Art. 9, Constitution of S0 Sec. 12, Art. 9, Constitution of' Penna. Penna. PART I. Taxation for County and Local Purposes. » PART I. " Taxation for County and Local Purposes. CHAPTER III. SUBJECTS OF LOCAL TAXATION. 1 § 46. Acts of April 29, 1844, and April 15, 1834. 47. Real estate. 48. Horses and cattle. 49. Household furniture, etc. 50. Occupations, trades and professions. 51. Bonds, mortgages, etc. 52. Limitations on rate of county taxation. § 46. Acts of April 29, 1844, and April 15, 1834. . . . From and after the passage of this act, all real estate, to-wit : houses, lands, lots of ground and ground rents, mills and manufacturies of all kinds, furnaces, forges, bloomeries, distill- eries, sugar-houses, malt-houses, breweries, tan-yard, fisheries and ferries, wharves and other real v estate not exempt by law from taxation; 2 also all personal estate, to-wit : horses, mares, geldings, mules and neat cattle over the age of four years ; 3 salaries and emoluments of office, all offices and posts of profit, professions, trades and occupations, except the occupation of farmers, together with all -other things now taxable by the laws of this Commonwealth, 4 , shall be valued and assessed and subject to taxation for the 'The subjects enumerated are appropriate heads. iSee Chapter those which are taxable for IV, for exemptions, county, city, borough, township, s Sec. 32, Act of April 29, 1844, poor, school and road purposes, P. L. 486. but additional subjects are tax- 3 Sec. 32, Act of April 29, 1844, able for municipal and borough P. L- 486. See § 47. purposes, as will appear under the 4 Sec. 32, Act of April 29, 1844, P. L. 486. See § 48. 46 TAXATION IN PENNSYLVANIA. purposes in this act mentioned and for all . . . county pur- poses whatsoever. The assessors of the several counties shall, on the receipt of the precepts aforesaid proceed to take an account in the form directed by the commissioners of the names and surnames of all the taxable inhabitants within their respective wards, town- ships and districts, and also an account of the following real and personal property: 111. . . . all single freemen who shall not follow any occupation or calling. 5 § 47. Real estate. The thirty-second section of the Act of April 29, 1844, supra, superseded so much of the provisions of § 4 of the Act of April 15, 1834, P. L. 509, as related to the taxation of real estate, and added to the classes of real estate made taxable "by said section "fisheries and wharves" and "all other real estate not exempt by law from taxation." "The Legislature evidently intended by the provisions of the superseding act to embrace all real estate of every description." 6 The said fourth section of the Act of April 15, 1834, super- seded the eighth section of the Act of April 11, 1799: 6 Bioren's Laws, 1803, 70; 3 Sm. Laws, 392. 7 Real estate was made taxable for both state and county pur- poses by the thirty-second section of the Act of April 29, 1844, "Sec. 4, Act of April 15, 1834, grist-mills, saw-mills, fulling mills, P. L- 509. The remainder of this slitting-mills, rolling-mills, hemp- section is superseded by § 34 of mills, oil-mills, snuff-mills, paper- the Act of April 29, 1844, P. L,. mills, and powder mills; all fur- 498, the repealing section of naces, forges, bloomeries, distil- which Act repeals "so much of leries, sugar-houses, breweries, any law or laws as are hereby tan-yards and ferries, all negro altered or supplied." and mulatto slaves; all horses, "Patterson v. Delaware County, ma'res, geldings and cattle above 70 Pa. 381, 383 (1872). See Bemis the age of four years; all offices v. Shipe, 29 Pa. C. C. 168 (1904). and posts of profit, trades and 'The said eighth section of the occupations (ministers of the Act of April 11, 1799, made the gospel of every denomination following subjects taxable for and school masters, only ex- county purposes: "All lands held cepted) and of all single freeman by patent, warrant, location or. above the age of twenty-one improvement; houses and lots of years, who shall not follow any ground and ground rents, all occupation or calling. . . ." SUBJECTS OF LOCAI, TAXATION. 47 but the fourth section of the Act of February 23, 1866, P. L. 82, exempts all real estate from state taxation. The Act of April 8, 1873, P. L. 64, makes all real estate within this Commonwealth liable to taxation for all such pur- poses as now is or hereafter may be provided by 'general laws, with the exception of certain classes of property therein specified. See § 56, infra. It was originally held that buildings erected upon leased land by the lessee, with the right to remove the same at the expiration of his lease, was personal property and not subject to taxation as real estate. 8 It has been since held, however, that though as between the lessor and lessee, the buildings may be personal property, the ' status thereof for taxation is not affected thereby, and the build- ings are taxable as real estate. 9 Machinery is taxable as real estate when owned by the same person or persons owning the real estate upon which it is located. 10 Where, however, the machinery is- owned by a lessee of the real estate, it is not taxable to him as real estate, 11 unless, perhaps, where it appears that the lessee intends to operate the machinery on said property indefinitely, so that a permanent attachment to the realty may be said to have been effected. 12 Boilers, engines, derricks, etc., erected for the purpose of drill- ing for oil, and which are removed from time to time as occasion may require, are not taxable as real estate, 13 nor are tanks and other fixtures for the storage and shipping of oil, erected by a ■corporation upon leased land, 14 nor movable mining machines. 15 "John T. Dyer Company's Ap- 70 Pa. 381 (1872). peal, 21 Pa. C. C. 442 (1898); "Wilkes-Barre Times v. Wilkes- Mattison v. Oliver, 2 Leg. Op. 48 Barre, 10 D. R. 691 (1901); (1871); Ridgway v. Anders, 5 Crozer v. Delaware County Montg. Co. 25 (1889); Bradford Com'rs, 3 Del. County 81 (1886); County's Appeal, 1 Mona. 344 John T. Dyer Company's Appeal, (1899). See Hill v. Sewald, 53 21 Pa. C. C. 442 (1898). Pa. 271 (1866); Spencer v. Dar- "Luzerne County v. Galland, 3 lington, 74 Pa. 286 (1873); Vail Kulp 11 (1884). v. Weaver, 132 Pa. 363 (1890); "Mellon v. Allegheny County, Washington County v. Pgh. Plate 3 D. R. 422 (1894). Glass. Co., 35 Pa. C. C. 673 (1909). "Union Petroleum Co.'s Ap- 'Bemis v. Shipe, 26 Pa. Super. peal, 9 Del. Co. 160 (1902). Ct. 42 (1904) ; Gorrill v. Murphy, "In re Assessment of Irwin 1 Camp. 495 (1871). Basin Coal Lands, 17 D. R. 825 "Patterson v. Delaware County, (1907). 48 TAXATION IN PENNSYLVANIA. Where the ownership of lands and of the minerals underlying them is in different persons, both the land and the minerals are taxable to their respective owners as real estate. 16 Machinery used for printing and publishing a newspaper is not a "factory" or a "manufactory," under the provisions of the Acts of April IS, 1834, § 4, P. L. 509 and April 29, 1844, § 32, P. L. 480, and is not subject to taxation under said acts. 17 Print- ing and publishing corporations, however, are manufacturing cor- porations within the laws exempting such corporations from tax on capital stock. 18 § 48. Horses and cattle. Horses and cattle were made taxable for both state and county purposes by the foregoing 'thirty-second section of the Act of April 29, 1844, but they are exempted from state taxation by the Act of March 21, 1873, P. L. 46. § 49. Household furniture, pleasure carriages, etc. Household furniture, including gold and silver plate and pleas- ure carriages, were made taxable for both state and county pur- poses by the aforesaid thirty-second section of the Act of April 29, 1844, but these subjects were relieved from all taxation by the Act of May 13, 1887, P. L. 114. § 50. Occupations, trades, professions, etc. By § 8 of the Act of April 11, 1799, 3 Sm. L. 392, all offices and posts of profits, trades, professions and occupations, with some exceptions, are made taxable for county purposes, and this pro- vision is re-enacted by § 4 of the Act of April 15, 1834, P. L. 509, and superseded by the thirty-second section of the Act of April 29, 1844, supra, which adds "salaries and emoluments of office,"' excepts "the occupation of farmers" and makes all such oc- cupations and offices subject to both county and state taxation. The foregoing provisions should not be confounded with the provisions of § 2, of the Act of June 11, 1840, P. L. 612, super- seded by § 9 of -the Act of May 4, 1841, P. L. 310, which, in turn,, was superseded by § 34 of the Act of April 29, 1844, P. L. 498, which impose specific taxes upon salaries and emoluments of office, trades and occupations. These specific taxes on these sub- jects were abolished by the Act of June 2, 1871, P. L,. 281 ; but lc Logan v. Washington County, "Wilkes-Barre Times v. Wilkes- 29 Pa. 373 (1857). See § 168. Barre, 10 D. R. 691 (1901). 18 See § 807. SUBJECTS OF LOCAL TAXATION. 49 the subjects enumerated, as above, in the thirty-second" section of the Act of April 29, 1844, remain taxable. The said section makes them taxable for both county and state purposes, and the writer has .been unable to find any act relieving them from state taxation, but the Act of June 2, 1871, P. L,. 281, seems to have been considered as repealing not only the provisions of § 34 of the Act of 1844, which it does, but also the provisions of § 32 of said act, so far as that section related to the state taxation of occupations, professions, etc., which it does not do; and no state taxes have been levied on occupations, professions, etc., since the passage of the said Act of 1871. Where an occupation tax is assessed according to the income derived by the person exercising a given occupation, it is an in- come tax, and cities of the third class may not impose such a tax. It seems that said cities may classify occupations and as- sess a uniform occupation tax upon each class, but the tax must be the same amount on each member of the class. 19 "Offices, posts of profit, occupations and trades" are "property" within the meaning of Article IX, § 8, of the > Constitution, pro- hibiting any municipality from increasing its indebtedness beyond two per centum upon the assessed valuation of "property," with- out the consent of the electors thereof expressed at a public election. 20 Under the .various acts above enumerated, making occupations, ' professions, etc., taxable, it has been held that judges' salaries or emoluments of office may not be taxed; 21 that officers of the United Sates government are not taxable ; 22 that ministers of the gospel were not taxable under the Act of April 30, 1841, 23 but were taxable under the Act of April 29, 1844 ; 24 that a professor in an incorporated university is subject to the payment of the occupation tax under the provisions of the Act of 1844 ; 23 and "Banger's Appeal, 109 Pa. 79 (1842), reversing 7 "Watts 513 ' (1885). See § 29. (1838); Ulsh v. Perry County, 7 "Brown's Appeal, 111 Pa. 72 D. R. 488 (1898). (1885). ""Com. v. Cuyler, 5 W. & S. "Com. v. Mann, 5 W. & S. 43 275 (1843). (1843). See Northumberland "Miller^ v. Kirkpatrick, 29 Pa. County Commissioners v. Chap- 226 (1857). man, 2 Rawle 73 (1829). M Union County v. James, 21 Pa. ^Dobbins v. Erie County Com- 525 (1853). missioners, 16 Pet. (U. S.) 435 50 TAXATION IN PENNSYLVANIA. that an attorney in fact of the adult, and guardian of the minor, heirs of a decedent, receiving a fixed compensation for his services as such, has a trade, occupation or office subject to tax- , ation. 26 « § 51. Bonds, mortgages, judgments, etc. The thirty- second section of the Act of April 29, 1844, supra, subjected mortgages, judgments and other choses in action enumerated therein, as well as real estate and other subjects above men- tioned, to taxation for both state and county purposes. The Act of May 1, 1854, P. L. 535, provided that all certifi- cates of loan issued by the city of Philadelphia or any of the in- corporated districts of the county of Philadelphia to any railroad company, and all bonds or certificates of loan of any railroad company incorporated by this Commonwealth, shall be liable to taxation for state purposes only. The Act of April 4, 1868, P. L. 61, and the supplements thereto, 27 exempted "mortgages, judgments, recognizances, and moneys owing upon articles of agreement for the sale of real estate," except mortgages, judgments or articles of agreement given by corporations, from all taxation except for state pur- poses in all counties in the Commonwealth except the counties of Bradford, Butler, Cambria, Cameron, Centre, Clarion, Columbia, Jefferson, Lackawanna, Northumberland, Pike, Potter, Sullivan, " Tioga, Warren, Wayne and Wyoming. It is apparent, therefore, that immediately after the passage of these acts, mortgages, judgments, etc., given by corporations other than domestic railroad companies, and all other moneyed capital of the classes enumerated in the thirty-second section of the Act of April 29, 1844, except mortgages, judgments and articles of agreement given by individuals, were taxable in all counties of the Commonwealth; while in the counties above enumerated all moneyed capital of the nature mentioned in the Act of 1844, except the obligations exempted from local taxation , ^Lebanon County Commission- to 'Susquehanna County, by the ers v. Reynolds, 7 W. & S. 329 Act of 1869, March 18, P. L,. 414; (1844). to Washington County by the "The provisions of tlfe act are Act of 1870, Feb. 12, P. £. 144, extended to Armstrong, Adams, and to Venango County by the Beaver and Montour Counties, by Act of 1870, March 1, P. L. 278. the Act of 1871, Feb. 8, P. L. 31; ' SUBJECTS OF LOCAL TAXATION. 51 by the Act of March 1, 1854, P. L,. 535, supra, was taxable for local purposes. Section 17 of the Act of June 7, 1879, P. L. 112, § 1 of the Act of June 10, 1881, P. L,. 99, and § 1 of the Act of June 3, 1885, P. L,. 193, which successively supplied the provisions of the Act of 1844 in this regard, all contained provisos that none of the classes of moneyed capital enumerated therein (which are inclusive of those enumerated in the Act of 1844) shall be subject to local taxation. But § 1, of the Act of June 1, 1889, P. L. 420, which superseded the provisions of the said section, omitted this .proviso, as d6es its supplement of June 8, 1891, P. L. 229, and the Act of May 1, 1909, P. L,. 298, amend- ing said Act of 1891. .■ As a matter of fact, bonds, mortgages, etc., are not taxable for local purposes in Pennsylvania, but, in view of the forego- ing it may be queried whether all such obligations, except bonds of railroad companies, may not be taxed for local purposes in the counties above enumerated, and whether in the remaining counties all such obligations, except mortgages, judgments and articles of agreement for the sale of real estate given by indi- viduals, and bonds of domestic railroad companies, may not be so taxed. The Act of April 4, 1868, P. L. 61, exempting mortgages from all except state taxation, exempts all mortgages whether g¥ven for the purchase money of real estate or not. 28 § 52. Limitations on rate of county taxation. . . . No tax .in any county shall in one year exceed the rate of one cent in every dollar of such adjusted valuation. 29 In any county in this Commonwealth, where the valuation of the taxable property of the county as fixed and determined by the last triennial assessment has been raised to exceed in the aggregate three hundred and fifty per cent, above its. former valuation, it shall not be lawful for the county commissioners of such county to levy or collect, for the present or any sub- sequent year, until the next triennial assessment, any tax for county, special county or building purposes, in excess, in the ffl Berks County v. Smith, 2 enactment of a part of the pro- Woodward 303 (1870). viso to § VIII of the Act of '"Section 7, Act of April 15, April 11, 1799, 3 Sm. Laws 392. 1834, P. h. 509. This is a re- 52 TAXATION IN PENNSYLVANIA. aggregate, of three and one-half mills on the dollar of valua- tion, without first applying to the court of quarter sessions of the same county, and getting the approval thereof, for the levy and collection of any such excess above three and one- half mills as aforesaid. 30 ""Section t, Act of May 24, 1878, P. L- 133. CHAPTER IV. * EXEMPTIONS FROM TAXATION. ! 53. Constitutional provisions. 54. Repeal of exemptions existing prior to 1874. 55. Repeal of laws exempting property of corporations not in use or occupied thereby. 56. Repeal of special laws exempting real estate from taxation. 57. Repeal of special ac/s exempting county and municipal obliga- tions from state taxation. 58. Exemptions from taxation. 59. Exemption of public property used for public purposes. 60. Exemption of the bonds and mortgages of state normal schools. 61. Exemption from state taxation of county bonds and other securities held for poor or road purposes. 62. Exemption of property of free, public, non-sectarian libraries in boroughs and townships. 63. Exemption of property of public libraries, museums and art galleries. 64. Exemption of forestry reservations. 65. Exemption of actual places of religious worship. 166. Exemption of places of burial. 67. Exemption of institutions of purely public charity, including institutions of learning. 68. Early acts exempting the property of religious and charitable institutions. 69. Charitable institutions need not be wholly supported by contri- butions in order to be exempt from taxation. 70. What prqperty of charitable institutions and churches is exempt from taxation. 71. Buildings in course of erection exempted. 72. The privileges of charitable institutions must be open to the public generally in order to exempt such institutions from taxation. 73. Liability of charitable institutions to municipal assessments. 74. Exemption of trust funds held by churches and charitable in- stitutions. 75. Miscellaneous decisions relative to the exemption from taxa- tion of charitable institutions. 76. Exemption from taxation of public service corporations. 77. Property of railroad companies held to be exempt from taxa- tion. 54 TAXATION IN PENNSYLVANIA. 78. Property of railroad companies not exempt from taxation. 79. Real estate of railroads, with certain exceptions, not exempt from taxation for city purposes in Philadelphia and Pitts- burg. 80. Exemption of property of street railway companies. 81. Exemption of property of electric light, heat and power com- panies. 82. Exemption of property of water companies. 83. Exemption of property of pipe line companies. 84. Exemption of property of telegraph and telephone companies. 85. Exemption of property of natural gas companies. 86. Exemption of property of artificial gas companies. 87. Miscellaneous decisions relative to exemption of property of public service corporations. 88. Exemption of real estate from state taxation. 89. Exemption of capital stock of manufacturing corporations from state taxation. 90. Exemption from all taxation of watches, household furniture and pleasure carriages.- 91. Exemption of horses, cattle and mules from state taxation. § 53. Constitutional provisions. The General Assembly shall not pass any local or special laws. . . . exempting property from taxation. 1 . . . But the General Assembly may by general 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. 2 All laws exempting property from taxation, other than the property above enumerated, shall be void. 3 The power to tax corporations and corporate property shall not be surrendered or suspended by any contract or grant to which the state shall be a party. 4 To carry the foregoing constitutional provisions into effect the following act was passed : All churches, meeting houses, or other regular places of stated worship, with the grounds thereto annexed necessary for the oc- cupancy and enjoyment of the same; all burial grounds not used or held for private or corporate profit; all hospitals, uni- 'Sec. 7, Art. Ill, Constitution of "Sec. 2, Art. IX, Constitution of Penna. Penna. 2 Sec. 1, Art. IX, Constitution of 'See. 3, Art. IX, Constitution of Penna. Penna. EXEMPTIONS FROM TAXATION. 55 versities, colleges, seminaries, academies, associations and in- stitutions of learning, benevolence or charity, with the grounds thereto annexed and necessary for the occupancy and enjoyment of the same, found [ed], endowed and maintained by public or private charity; and all school houses belonging to any county, borough or school district, with the grounds thereto annexed and necessary for the occupancy and enjoyment of the same; and all courthouses and jails, with the grounds thereto annexed, 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 tax- ation, except where exempted by law, for state purposes, and nothing herein contained shall exempt same therefrom: And provided, that all property, real and personal; in actual use and occupation for the purposes aforesaid shall be subject to taxation, unless the person or persons, association or corporation, so using and occupying the same, shall be 'seized of the legal or equitable title in the realty and possessor of the personal prop- erty absolutely. 6 By the Act of March 24, 1909, P. L. 54, the Act of May 14, 1874, P. L. 158, was amended directly and without reference to the amendment- of May 29, 1901, P. L,. 319, supra, as fol- lows : • All churches, meeting-houses, or other regular places of stated worship, with the grounds thereto annexed, necessary for the occupancy and enjoyment of the same; all burial-grounds not used or held for private or corporate profit; all hospitals, uni- versities, colleges, seminaries, academies, associations and insti- tutions of learning, benevolence, or charity, with the grounds thereto annexed and necessary for the occupancy and enjoyment of the same, found [ed], endowed, and maintained by public or private charity : Provided, that the entire revenue derived by the same be applied to the support of, and to increase the efficiency "Act of May 14, 1874, P. L. 158, taxable, but the title not sup- as amended by the Act of May porting the same, the proviso was 29, 1901, P. L. 319. This act be- held to be void. Sewickley Bor- fore amendment contained a pro- ough v. Sholes, 118 Pa. 165 viso to the effect that all property (1888). not enumerated therein should be 56 TAXATION IN PENNSYLVANIA. and facilities thereof, the repair and the necessary increase of grounds and buildings thereof, and for no other purpose; and all school-houses belonging to any county, borough, or school district, with the grounds thereto annexed and necessary for the occupancy and enjoyment of the same; and all courthouses and jails, with the grounds thereto annexed, be and the same are hereby exempted from all and every county, city, borough, bounty, road, school, and poor tax: Provided, that all prop- erty, 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 shajl exempt same therefrom. It will be noted that the new amendment omits the new mat- ter inserted by the amendment of 1901, restores the proviso making all property taxable which is not specifically exempted by the act, which proviso was held void because not supported by the title of the act, and inserts the matter printed in italics. As this act undertakes to amend something which did not ex- ist at the time of its passage, it may be a question whether the act is not a nullity. § 54. Repeal of exemptions existing prior to 1874. Whether exemptions of classes of property granted under the provisions of acts passed prior to the adoption of the Consti- tution of 1874 were repealed by § 2 of Article IX of that in* strument has been heretofore discussed. 6 Prior to the adoption of the Constitution, however, numerous exemptions so granted were repealed by the. following acts. § 55. Repeal of laws exempting property of corpora- tions not Used or occupied thereby. All property, real or personal, belonging to any association or incorporated company, which is now by law exempt from taxation, other than that which is in the actual use and occupation of such association or incorporated company, and from which an in- come or revenue is derived by the owners thereof, shall here- after be subject to taxation in the same manner and for the same purposes as other property is now by law taxable. And so much of any law as is hereby altered and supplied, be, and the same is hereby repealed: Provided, that nothing herein * •See § 30. EXEMPTIONS FROM TAXATION. 57 contained shall be construed to exempt cemetery companies from taxation. 7 § 56. Repeal of special laws exempting real estate from taxation. All real estate within this Commonwealth shall be liable to taxation for all such' purposes as now is or hereafter may be provided by general laws, excepting only therefrom the classes of property specifically exempted from tax- ation, by the twenty-ninth section of the act of this general assembly, entitled "An Act to authorize the committee of Michael Fox, a lunatic, to sell and convey certain real estate, and for other purposes," approved April sixteenth, one thou- sand eight hundred and thirty-eight, as construed by the third section of the act of this general assembly, entitled "An Act to authorize the administrators of Henry Mineum, late of Craw- ford County, deceased, to sell and convey certain real estate, and for other purposes," approved July second, one thousand eight hundred and thirty-nine, except that the quantity of land thereby exempted shall be and is hereby increased to ten acres instead of five, as therein named; also exempting from taxation all par- sonages owned by any church or religious society, with the lands attached thereto, not exceeding five acres; also excepting and exempting from such taxation all burial lots exempted by the provisions of the Act of April fifth, one thousand eight hun- dred and fifty-nine, entitled "An Act relative to incorporated cemetery companies," and the lands and premises of all cem- etery companies where such property is held in trust for the sole purpose of improving said lands and premises, and whose revenues, of whatever kind, are devoted to that object, and in no way inure to the benefit or profit of the corporators or any of them; and also excepting and exempting from such taxation all lunatic asylums, almshouses, poorhouses, houses of refuge, pen- itentiaries and asylums, schools and hospitals, supported by the appropriations annually made thereto by this Commonwealth, together with the lands attached to the same; and also excepting and exempting from such taxation all charitable institutions founded by charitable gifts or otherwise, the chief revenues for the support of which are derived from voluntary contributions, together with the lands attached to the same; and all laws or parts of laws inconsistent with the provisions of this statute, be 'Sec. 13, Act of April 14, 1851, P. L. 625. 58 TAXATION IN PENNSYLVANIA. and the same are hereby repealed: Provided, that nothing in this act contained shall be construed as repealing the fourth sec- tion of the act, entitled "An Act to amend the revenue laws of this Commonwealth," approved February twenty-third, one thousand eight hundred and sixty-six: And provided further, that no burial lots sold to individuals for burial of the dead shall be liable to levy and sale for any taxes whatsoever. 8 The foregoing act was passed not to change the course of ju- dicial decisions upon the construction of the general tax laws, but to repeal the large number of special acts upon the statute books exempting particular properties from taxation. It did not make subject to taxation the real estate of public service cor- porations necessary for the enjoyment of their franchises, which had been exempted from taxation by judicial legislation prior to its passage. 9 It seems, however, that it made all real estate tax- able, except such classes as are exempted thereby and the real estate of public service corporations, as aforesaid. 10 By an Act of Assembly approved April 18, 1864, the real and personal property of the Mercantile Library Hall Company of Pittsburgh was exempted -from taxation, except for state pur- poses. Held, that this exemption was repealed by article 9, § 1, of the Constitution of 1874 and the Act of Assembly of May 24, 1874, P. L. 158." § 57. Repeal of special acts exempting county and mu- nicipal obligations from state taxation. All laws and acts of assembly, exempting the loans, bonds or other evidences of indebt^ edness of, or issued by any county, city," borough or incorporated district of the commonwealth, from the payment of taxes for the use of the commonwealth, be and the same are hereby repealed, so far as provides for such exemption ; and all such loans, bonds or other evidences of indebtedness heretofore or hereafter issued "Act of April 8, 1873, § 1, P. L. v. Jewish Hospital, 148 Pa. 454 64. This act was held to be un- (1892). constitutional in Clinton County 10 Phila. v. Barber, 160 Pa. 123 v. Lock Haven, 29 Pa. C. C. 641 (1894). (1904). "Mercantile Library Hall Co. "Northampton County v. Le- v. Pittsburgh, 3 Pa. C. C. 519 high Coal & Nav. Co., 75 Pa. 461 (1887); 9 'Sadler's S. C. Cases 59; (1874); Wagner Free Institute v. 11 Atl. Rep. 667. Compare Se- Phila., 132 Pa. 612 (1890); Phila. wickley Borough v. Sholes, 118 Pa. 165 (1888). EXEMPTIONS FROM TAXATION. 59 or existing shall be liable for the payment of the taxes now or hereafter imposed by law for the use of the Commonwealth upon public loans or other moneys bearing interest: Provided, that this act shall not apply to any bonds negotiated into the hands of innocent holders. 12 This act "was evidently intended to repeal the exemptions theretofore granted to bonds and other evidences of indebtedness, as such; but it does not apply to the exemption of property in general, granted because of the character of the institution by which they are held." 13 Bonds issued and sold after the passage of a special act ex- empting them from taxation, and prior to the passage of the Act of April 9, 1873, P. L. t58, repealing exemptions of municipal loans, are exempt from taxation whether in the hands of the orig- inal holders, or in those of persons to whom they were trans- ferred before the passage of the said Act of 1873/ 4 but bonds issued after the passage of said act are taxable. 15 § 58. Exemptions from taxation. Exemptions of classes of property as follows are permitted by § 1, article IX, of the Constitution : 16 1. Public property used for public purposes. 2. Actual places of religious worship. 3. Places of burial not used or held for private or corporate profit. 4. Institutions of purely public charity, including institutions of learning. To carry out the provisions of said section the Acts of May 14, 1874, P. L. 158, and May 29, 1901, P. L. 319, were passed. 17 In addition to the above classes of exempted property, a fifth class, established by judicial legislation, had been created prior to the adoption of the constitution and still exists, viz: 5. Real estate of public service corporations essential to the exercise of their respective franchises. These exemptions will be considered in the order named. "Act of April 9, 1873, P. L. 68. Com. v. Southworth, 18 Phila. M Com. v. 6outhworth, 18 Phila. 593 (1884). 593 (1884), per Simonton, J. "Com. v. McKeesport Boro., 1 "Com. v. Pittsburgh, 13 Pa. C. Dauph. Co. R. 191 (1885). C. 5 (1893); 16 W. N. C. 316; "See §§ 23, 53, supra. "See § 53, supra. 60 TAXATION IN PENNSYLVANIA. § 59. Exemption of public property used for public purposes. . . . All school houses belonging to any county, borough or school district, with the grounds thereto annexed and necessary for the occupancy and enjoyment of the same ; and all courthouses and jails with the grounds thereto annexed, be and the same are hereby exempted from all and every county, city, borough, bounty, road, school and poor tax. . . . 18 The property of the United States within the Commonwealth is not subject to taxation. 19 A county poor farm is an institution of purely public charity and exempt from taxation. 20 A farm appurtenant to a poorhouse owned by a borough, but situated in a township, and used and appropriated as a place for the maintenance of the poor of the borough, and supported by taxes collected from the citizens of the borough, is exempt from taxation as an institution of purely public charity or as public property used for public purposes under article IX, § 1, of the Constitution, and the Act of May 14, 1874. The character of the property for exemption purposes is not affected by the incidental use of the property in receiving paupers from ofher districts, etc. 21 A fire engine house owned and used by a city for public pur- poses is not taxable. 22 It was originally held that a municipality owning property from which revenue was derived, such as water works, was subject to taxation under the provisions of the Act of May 14, 1874, P. L. 155. 2 3 "Act of May 14, 1874, P. L. 2, Act of April 11, 1899, P. L. 43. 158, as amended by the Act of M Cumru Township v. Directors May 29, 1901, P. L. 319. See § of the Poor for Berks Co., 112 53 for full text of this section. Pa. 264 (1886); Same Parties, 1 "Barracks at Carlisle, 2 Wal- Woodward 175 (1864) ; Directors lace Jr. 72; Mint Realty Co. v. of the Poor v. School Directors, Phila., 218 Pa. 104 (1907). When 42 Pa. 21 (1862). the consent of the Commonwealth sl Armstrong County v. Kittan- is given to the acquisition by the ning Borough Overseers, 2 Mona. United States of real estate within 316 (1888). the state, it is customary to pro- K Erie County v. Erie City, 113 vide in the act granting the same Pa. 360 (1886); 18 W. N. C. 309. that such land shall be exempt See reference to this case in from taxation while the property Phila. v. - Barber, 160 Pa. 123 of the United States. See § 2, (1894). Act of Feb. 15, 1901, P. L. 9; § ""Erie County v. Erie City, 113 EXEMPTIONS PROM TAXATION. 61 It was subsequently held, 24 however, that the proviso to the said Act of May 14, 1874, making taxable all property not ex- empted by the preceding part of the act, was void, and hence taxes on the water works of a city were not valid, inasmuch as the only authority for levying the same was such proviso. The decision referred to, however, overlooked the Act of April 8, 1873, P. L. 64, which makes all real estate taxable except such as is specifically exempted thereby. 25 Municipal assets are not within the scope of a tax law unless expressly subjected thereto. Hence, they woufd not require to be expressly exempted by the Act of April 8, 1873, P. L. 64, or subsequent similar acts. 26 Under Article IX, § 1,-of the Constitution of 1874; the leg- islature has power to tax property owned by a municipality not used for municipal purposes. Until, however, the legislature passes an act taxing such property, a collector of taxes will be enjoined from selling the same for taxes. 27 The property of a city necessary and essential to operate its water works, to protect the purity of the water and prevent its contamination, and used solely for supplying water to the pub- lic and for no other purpose whatever, is exempt from county taxation; 28 and the same is true where a city owns real estate situated in an adjoining township, part of which it uses to secure the purity of the water supplied and part for the use of the public as a park. 29 The use of a public building as a market house is a public use, and such market house, the property of a borough, is not sub- ject to the payment of a school tax, though a revenue is pro- duced from its use. 30 A market house owned by a private corporation, however, is taxable. 31 Pa. 368 (1886). See Chadwick et ^Clinton County v. Lock Haven, al. v. Maginnis, 94 Pa. 117 (1881). 29 Pa. C. C. 641 (1904), 14 D. "Sewickley Borough v. Sholes, R. 565. 118 Pa. 165 (1888). ""Reading v. Berks County, 22 ^See Philadelphia v. Barber, Pa. Super. Ct. 373 (1903). 160 Pa. 123 (1894). '"Carlisle Borough School Dist. "Carlisle Borough School Dist. v. Carlisle Borough, 11 D. R. 294 v. Carlisle Borough, 11 D. R. 294 (1901). (1901). s, South Reading Market House "New Castle City v. County Co. v. Berks County, 11 W. N. Treasurer, 2 D. R. 95 (1902). C. 424 (1882); Allegheny County 62 TAXATION IN PENNSYLVANIA. A farm devised to a city for a public park which has not yet been utilized as a park because of delay in settling the estate of the testator, and the receipt therefrom of funds for fitting the park up for such use, is nevertheless public property for public '.ise and not taxable. 32 Land leased by the county commissioners from an individual, un which is maintained an industrial school for poor children, does not cease to be private property and is taxable. 33 A garbage crematory, belonging to a city and ip use by it, is exempt from taxation by the township in which it is located. 34 A public park belonging to a city formed from an area which by special acts is subject to special assessments for improvements is not subject to such assessments; 36 and a filtration plant of a city located in a township is not taxable by the township. 37 Real estate purchased and held by the boards of directors of sub-school districts created in Pittsburg by the Act of Feb. 12, 1869, is not liable under the Act of May 16, 1891, P. L. 75, for assessments for grading, paving and curbing a street on which the real estate abuts, because such real estate is public property and, therefore, not taxable or assessable for public improvements under existing laws ; because there are no provisions in the Act of May 16, 1891, by which such an assessment can be enforced and because taxation of any kind imposed upon school property would interfere with the Commonwealth in maintaining the system of education required by the Constitution ; 38 and common school property, generally, is not subject to the payment of as- sessments for municipal improvements. 39 The armory property of a volunteer state military association is exempt from taxation under the Act of May 14, 1874, though a v. Diamond Market, 123 Pa. 164 "Allegheny Township v. Al- (1888); 23 W. N. C. 89. toona, 23 Pa. C. C. 381 (1900). ""Lancaster County v. Lancas- ""Pittsburgh v. Sterrett Sub- ter & Long Park Commission, 11 School District, 204 Pa. 635 D. R. 605 (1902). (1903); Erie v. Erie School Dis- ""Blair County Com'rs, 8 D. R. trict, 17 Pa. Super. Ct. 33 (1901). 41 (1898). "Emaus Borough v. Emaus "■"Allentown v. Whitehall Town- School Dist., 12 Pa. C. C. 349 ship, 2 Lehigh Co. Law J. 141 (1892); Scranton v. Scranton (1907). School Dist, 4 Lack. Jur. 367 "°Robb v. Philadelphia, 25 Pa. (1904). See § 73. Super. Ct. 343 (1904), reversing 28 Pa. C. C. 650 (1903). EXEMPTIONS FROM TAXATION. 63 revenue is derived from the building, but not sufficient to pay the expenses of the organization. 40 Escheated real estate, however, is liable to taxation for city and county purposes, and may be sold for the same. It is the public use of real estate owned by any department of the gov- ernment which exempts it from taxation. Real estate obtained by escheat is not taken or purchased for any public purpose. It falls upon the state as the last statutory heir, and is taxable the same as it would be in the hands of a natural heir. 41 § 60. Exemption from taxation of 'iie bonds and mort- gages of state normal schools. The bonds and mortgages of such schools, hereby authorized, shall be signed by the president and attested by the secretary of the board of trustees, under the seal of the school, by the direction of the board of trustees, and shall be payable at such time as they may fix ; and the said bonds and mortgages to be so placed shall be prior liens to all mort- gages and liens of the Commonwealth of Pennsylvania for money heretofore appropriated to the said schools by the state of Penn- sylvania; and that said bonds and mortgages shall be and hereby are exempt from all taxes. 42 § 61. Exemption from state taxation of county bonds and other securities held for poor or road purposes. The scrip, bonds and certificates of indebtedness of any county in this Commonwealth owned by any public corporation within such ■county, and the income of which is by law appropriated exclu- sively to the support of the poor and the maintenance of the public roads of such county, be and the same are hereby exempted from taxation for state purposes. 43 § 62. Exemption of property of free, public, non-sec- tarian libraries in boroughs and townships. When any huilding in any borough or township in this Commonwealth shall be owned and occupied by a free, non-sectarian, public library, such building and the land on which it stands, and that which is immediately and necessarily appurtenant thereto, shall, from and after the passage of this act, be exempt from all county, "Scranton City Guard Associa- "Philadelphia v. Linton, 10 D. tion v. Scranton, 1 Pa. C. C. 550 R. 329 (1901). (1886); National Guard v. Tener, "Sec. 2, Act of May 22, 1901, 13 W. N. C. 310 (1883); Phila. v. P. L. 290. "Keystone Battery, 169 Pa. 526 "Act of March 24, 1877, P. L. <1895). 44. 64 TAXATION IN PENNSYLVANIA. borough, school, bounty, poor and road taxes, notwithstanding the fact that some portion or portions of said building, or ground appurtenant, may be yielding rentals to the corporation or as- sociation managing said library: Provided, that the net receipts of said corporation or association from rentals shall be insufficient to maintain such library, and the same are necessarily supple- mented by gifts, charity, tax levies or appropriations. 44 Any gifts, endowments or funds of such free, non-sectarian, public library, which are invested in interest bearing securities, the income from which shall be solely used for the purchase of books or the maintenance of such public library, shall be exempt from any state tax on money at interest. 45 § 63. Exemption of property of public libraries, mu- seums and art galleries. All property, including buildings and the land reasonably necessary thereto, provided and main- tained by public or private charity, and used exclusively for pub- lic libraries, museums or art galleries, and not used for private or corporate profit, so long as the said public use continues shall be exempt from taxation by any county, city, borough, township, school-district or poor-district. 46 § 64. Exemption of forestry reservations. The title of all lands acquired by the Commonwealth for forestry reserva- tions shall be taken in the name of the Commonwealth, and shall be held by the commissioner of forestry, and such lands shall not be subject to warrant, survey or patent, under the laws of the Commonwealth authorizing the conveyance of vacant or unap- propriated lands, and all such forestry reservation lands shall be exempt from taxation from the time of their acquisition. . . 47 Whenever, however, leases or contracts for the removal of min- erals and sale of timber from forestry reservations are made, under the provisions of the Act of February 25, 1901, P. L,. 11, one-half of the net revenue derived therefrom is to be paid the township for application to township purposes and reduction of local tax levies, not to exceed twice the amount which the township would receive from such property if it were owned by individuals. 48 "Sec. 1, Act May 29, 1901, P. '"Act of April 20, 1905, P. L. L. 341. 234. "Sec. 2, Act of May 29, 1901, P. "Sec. 8, Act of Feb. 25, 1901, L. 341. P. I- 11. "See § 325. EXEMPTIONS FROM TAXATION. 65 § 65. Exemption of actual places of religious worship. All churches, meeting-houses, or other regular places of stated worship with the grounds thereto annexed necessary for the occupancy and enjoyment of the same . . . are hereby ex- empted from all and every county, city, borough, bounty, road, school and poor tax. . . , 49 Some of the questions arising under the exemptions granted by the above provision are treated of infra in the sections relating to the exemption of property of charitable institutions and in- stitutions of learning. See § 71 as to church buildings in process of construction, and § 73 as to exemption of places of religious worship from municipal assessments. Church parsonages are4axable, though annexed to church ed- ifices, 50 and so is a janitor's residence. 51 When a church building ceases to be used as "an actual place of religious worship," its exemption from taxation ceases ipso facto, and it becomes as fully taxable as if never exempted; and where the property ceases so to be used during a tax year, the Board of Revision of Taxes in Philadelphia may add the prop- erty to the taxable list, charged with a just proportion of taxes corresponding to the unexpired portion of the current year. 52 Under the Act of May 14, 1874, P. L- 158, when church prop- erty is rented out and produces income or revenue, it is taxable, though for a portion of the time — certain days or hours of the week — the church also uses the rented portion for its purposes. When a part of the building is used solely for church purposes, and certain rooms therein are rented for a school, the building may be divided for purposes of taxation, and the part used solely for church purposes exempted. 53 "Act of May 14, 1874, P. L. "Pittsburgh v. Third Presby- 158, as amended by the Act of terian Church, 10 Pa. Super. Ct. May 29, 1901, P. L. 319. See § 53 302 (1899). for the full text of this section. K Moore v. Taylor, 147 Pa. 481 "Church of Our Saviour v. (1892); 29 W. N. C. 495. See Montg. County, 10 W. N. C. 170 § 485. (1881); Parsonage Taxes, 25 Pa. ra Phila. v. Barber, 160 Pa. 123 C. C. 570 (1901); Dauphin County (1894); 34 W. N. C. 155. See v. St. Stephen's Church, '3 Phila. Harrisburg v. Ohev Sholem Cong., 189 (1858). Contra, Northampton 32 Pa. C. C. 589 (1906). County v. St. Peter's Church, 5 Pa. C. C. 416 (1888). 66 TAXATION IN PENNSYLVANIA. Camp meeting grounds belonging to associations making a profit therefrom are not exempt from taxation^ Whether the portion thereof specifically appropriated to religious exercises is exempt, not decided. Where, in a suit for taxes assessed upon such grounds, there is no evidence showing the value of such portion, so as to enable the jury to apportion the tax, the whole of the grounds will be held liable to taxation. 5 * The exemption of church property is limited to that in actual use and occupation, in exclusive use as well as actual use, and that which is not the source of revenue or income; and this ex- emption does not extend to the property unless the person using ■and occupying it also owns it. Where a portion of the property of a religious association was not used by it for worship, but was occupied and used for charitable and religious purposes by cer- tain other charitable and religious organizations, which paid an annual rent to the owner association, held that such portion was not exempt from the payment of municipal liens. 55 § 66. Exemption of places of burial. All . . . burial grounds not used or held for private or corporate profit . . . are hereby exempted from all and every county, city, borough, bounty, road, school and-poor tax. . . , 56 See § 73 as to exemption of burial grounds from municipal assessments. Under the provisions of the Act of May 14, 1874, which ex- , empt inter alia all burying grounds not used or held for private or corporate profit, a cemetery owned by a church, which sells lots therein to its members only, paying the proceeds into the church treasury, is not exempt from taxation, though the income derived be less than the expenditure. 57 A cemetery company, not for profit, is not exempt from a mu- nicipal assessment for paving a street, 58 nor from one for defray- ing the expenses of laying water pipes, 59 and it is immaterial, in the latter case, that the company was incorporated before the "Summit Grove Camp Meeting May 29, 1901, P. L. 319. See § Ass'n v. New Freedom Boro. 53 for the full text of this section. School Dist, 12 W. N. C. 103 "'Brown's Heirs v. Pittsburgh, (1882). . 1 Mona. 8 (1888). See § 65. ""Harrisburg v. Ohev Sholem "New Castle City v. Jackson, Cong., 32 Pa. C. C. 589 (1906). 172 Pa. 86 (1895). ""Act of May 14, 1874, P. L. "Phila. v. Union Burial Ground 158, as amended by the Act of Society, 178 Pa. 533 (1897). EXEMPTIONS EROM TAXATION. 67 amendment to the Constitution of 1856, P. L,. 1857, p. 811, which was adopted as § 10 of article XV of the Constitution of 1874. 60 . . . No burial lots sold to individuals for burial of the dead shall be liable to levy and sale for any taxes whatever. 61 Wherever any lot or lots, or the right of sepulture therein, shall be granted to any person or family by any incorporated cemetery company or church, or religious congregation, within any common .inclosure made by any such company, church or congregation, as and for the purpose of the perpetuaUburial of the dead, every and all lots so disposed of or used for burial shall hereafter be free and exempt from all taxation, so long as the same shall be used or held only for the purpose of sepulture. 62 § 67. Exemption of institutions of purely public char- ity, including institutions of learning. ... All hospitals, universities, colleges, seminaries, academies, associations and in- stitutions of learning, benevolence or charity, with the grounds thereto annexed and necessary for the occupation and enjoyment of the same, found [ed], endowed and maintained by a public or private charity . . . are hereby exempted from all and every county, city, borough, bounty, road, school and poor tax. . . . 63 § 68. Early acts exempting the property of religious and charitable institutions from taxation. "The early pol- icy of the state was to exempt corporations of a religious or charitable nature, and this was done by both general and special laws. The Act of April 16, 1838, § 29, P. L,. 325, was a general exemption of all churches, meeting-houses and other regular places of stated religious worship, with the grounds thereto at- tached; ... all burial grounds belonging to any religious congregation, all universities, colleges, academies and school- houses; ... all courthouses and jails. The Act of July 2, 1839, § 3, P. L. 576, declared the extent of this exemption to mean five acres of land, with the improvements thereon; and by the Act of April 14, 1851, § 13, P. L. 625, it was provided that all property, real or personal, belonging to any association or Thila. v. Franklin Cemetery, "Act of May 14, 1874, P. L. 2 Pa. Super. Ct. 569 (1896). 158, as amended by the Act of el Sec. 1, Act of April 8, 1873, P. May 29, 1901, P. L. 319. See § 53 L. 54, for the full text of this section. K Sec. 1, Act of April 5, 1859; P. L. 363. 68 TAXATION IN PENNSYLVANIA. incorporated company which was exempt from taxation, other than that which was in the actual use and occupation of sueh association or incorporated company, and from which an income or revenue was derived by the owners thereof, should be there- after subject to taxation in the same manner and for the same purposes as other property was by law taxable." 64 Collateral inheritance tax is not a tax within the meaning of the Constitution and the Act of 1874 exempting purely public charities. It is not a tax upon the property or thing bequeathed, but a diminution of what otherwise might pass under the will. It is a tax upon the right to take, rather than on the thing itself. 65 § 69. Charitable institutions need not be wholly sup- ported by contributions in order to be exempt from tax- ation. It was originally held that in order to exempt a charitable institution from taxation it should be wholly or almost wholly supported by contributions. It was held, however, that the fact that a library company re- ceived an annual fee from its members, for the privilege of tak- ing out books and a small hire from other persons leaving a deposit for the same, would not deprive the property of the company from exemption from taxation. 66 Where, however, schools were largely supported by tuition fees, it was held that they were not exempt. 67 The rule followed in the foregoing cases, however, was de- parted from in subsequent cases cited in the note, in which the earnings of the institutions concerned constituted a considerable portion of their entire receipts. 68 In the case of Episcopal Academy v. Philadelphia, 150 Pa. 565 (1893); Mr. Justice Williams, referring to the decision in the case of Philadelphia v. Women's Christian Association, 125 Pa. 572, said: "We are now disposed to go further, and say that an institu- "Hastings v. Long, 11 D. R. 168 (1881) ; Thiel College v. Mer- 370 (1901). For a construction of cer County, 101 Pa. 530 (1882). these acts, see Appeals from Tax- "Philadelphia v. Women's ation, 1 Phila. 418 (1853). Christian Association, 125 Pa. 572 Tinnen's Estate, 196 Pa. 72 (1889); Episcopal Academy v (1900). Philadelphia, 150 Pa. 565 (1892): ""Donohugh's Appeal, 86 Pa. Philadelphia v. Penna. Hospital 306 (1878). for the Insane, 154 Pa. 9 (1893) "Miller's Appeals, 10 W. N. C. Northampton County v. Lafay ette College, 128 Pr.. 132 (1889) EXEMPTIONS FROM TAXATION. 69 tion that is in its nature and purposes a public charity does not lose its character as such under the tax laws if it receives a revenue from the recipients of its bounty sufficient to keep it in operation. It must not go beyond self support. When a charity embarks in business for profit it is liable to taxation like any other business establishment; but so long as the trustees of the school manage it as a charity, giving the benefit of what might otherwise be profit to the reduction of tuition fees or to the in- crease of the number of free scholars in furtherance of 'the education of youth,' the corpus of the trust, the school house, is entitled to exemption." In a subsequent case 69 Mr. Justice Dean, who delivered the opinion of the court, points out that the cases last named depart from the rule followed in the earlier cases, and announces an intention in the future of returning to the earlier rule. "I think the distinction between a public charity supported al- most entirely by voluntary contributions, but which by reasonable regulations necessary for the preservation and care of its prop- erty incidentally realizes a small income, and a charity which collects from its beneficiaries six-sevenths of its whole income, is quite obvious. We have no desire to disturb the judgments in the three cases cited; they stand on the facts peculiar to them and are outside the line of cases which follow Donohugh's Appeal. After this lapse of time and our observation of the litigation which has had its source in the Act of 1874 and the Constitution which suggested the act, we are averse to any departure from the law of that case; we, therefore, adhere to it now as the settled rule of interpretation of that act." In later cases, however, the Superior Court has followed the three cases criticized by Judge Dean, and holds that the property of institutions which, in their nature, are public charities, is tax- able if the tuition and rent derived therefrom is sufficient to support them and supply a surplus which is not applied to the re- duction of tuition or other charges to students or inmates, nor to increasing the number of persons admitted to the free enjoy- ment of the privileges of the institutions, but otherwise not. 70 ""White v. Smith, '189 Pa. 222 Pines Assembly v. Monroe County, ( 18 99). 29 Pa. Super. Ct. 36 (1905); Mer- "Harrisburg v. Harrisburg cersburg College v. Poffenberger, Academy, 26 Pa. Super. Ct. 252 36 Pa. Super. Ct. 100 (1908). (1904); 13 D. R. 261; Pocono 70 TAXATION IN PENNSYUVANIA. If the surplus income of a school, over the cost of maintenance, is derived from payments made by students, the institution can- not be said to be maintained by public or private charity, even though the surplus be used to enlarge the 'institution, particularly if it be not shown that without such enlargement the institution could not be maintained. 71 A school will not be held to be a purely public charity, although it gives free tuition to a certain number of students, where it appears that the sums paid by students were sufficient not only to pay the annual expenses of maintenance, but to yield a sur- plus of about $9,000 per annum for five years, which surplus was not used to increase the number of free students nor reduce the tuition fees, but for the extension of the buildings and grounds. 72 Where the income derived from students' charges alone ex- ceeds the amount necessary to maintain the institution, the lands and buildings are not exempt from taxation ; and in determining whether there is a surplus over the cost of maintenance, the rental value of the lands and buildings are not to be included in the cost of maintenance, 73 "Failure to earn expenses does not make a school a public charity: Philadelphia v. Women's Christian Association, 125 Pa. 572, 581, per Paxton, C. J. No more, as has been seen, does a school founded and endowed as a charity, lose its character as such by proving its ability to earn its way. But when it has reached and is about to pass that point it has the. choice of two courses. It may keep its income down to its expenses by reducing its charges for tuition, etc., or increasing the number of its free scholarships, as in Episcopal Academy v. Philadelphia, 150 Pa. 565, trusting to future charitable gifts for an enlarge- ment of its capacity. Or it may go on as here, increasing its revenues beyond its expenses, and adding to its permanent property from the surplus of its own earnings, as well as from such donations as may come its way.'"* A hospital maintained by voluntary gifts and income there- from for the care of persons suffering from physical diseases and injuries and from lunacy, the president and directors of which receive no compensation, and .from which no pecuniary profit is "Mercersburg College v. Pof- '"Mercersburg College v. Pof- fenberger, 36 Pa. Super. Ct. 100 fenberger, 36 Pa. Super. Ct. 100 (1908). (1908). "Mercersburg College v. Pof- "Mercersburg College v. Pof- fenberger, 36 Pa. Super. Ct. 100 fenberger, 36 Pa. Super. Ct. 100 (1908). (1908), op. of court below. EXEMPTIONS FROM TAXATION. 71 derived, is an institution of purely public charity and exempt from taxation, notwithstanding it receives pay from some pa- tients for treatment. 75 All the buildings and grounds of Dickinson College were pur- chased with money .appropriated by the Commonwealth or given by individuals. In the judgment of its trustees all its buildings and grounds were necessary for the purposes of the college. All students were admitted irrespective of race, sex or religious be- lief. Revenues amounted to less than one-half of the annual expenses. No profits were made by the trustees or officers and every year there was a deficit after payment of expenses. Held, to be exempt as a public charity under Act of May 14, 1874. 70 Lafayette College by its charter is non-denominational and is subject to visitation by the state. Its expenses' are two-thirds greater than its receipts. "At least one-half of its present in- mates are instructed without charge." Held, that it is a purely public charity and that its buildings located on college grounds and occupied by professors and officers of the college, are ex- empt from taxation. 77 The medical hall of the University of Pennsylvania was held not taxable under the Act of April 16, 1838, and not to yield an income or revenue so as to subject it to taxation under the thir- teenth section of the Act of April 14, 1851, P. L. 625. 78 § 70. What property of charitable institutions and churches is exempt from taxation. "Property which is not used directly for the purposes and in the operation of a charity but for profit is not exempt, and the devotion of the profits to the support of the charity will not alter this result. Of this class of cases, American Sunday School Union v. Philadelphia, 161 Pa. 307, is the exemplar and authority. But property which is used directly for the purposes and in the operation of the charity is exempt though it may also be used in a manner to yield some return and thereby reduce the expenses. Donohugh's Appeal, "Philadelphia v. Penna. Hos- (1889); 24 W. N. C. 521; 5 Pa. C. pital, 8 Pa. C. C. 72 (1890). C. 407. See Beaver County v. "Dickinson College v. Cumber- Geneva College, 2 D. R. 70 (1892) ; land County Commissioners, 12 Metzgar Institute v. Cumb. Co., Pa. C. C. 582 (1893); 2 D. R. 2 D. R. 381 (1893f 37g "Phila. v. University of Pa., 44 "Northampton County v. La- Pa. 360 (1862). fayette College, 128 Pa. 132 ' T2. TAXATION IN PENNSYLVANIA. , 86 Pa. 306; Phila. v. Penna. Hospital, 154 Pa. 9; House of Refuge v. Smith, 140 Pa. 387. 79 " Hence real estate belonging to a charity, although separate from the main building as ruled in House of Refuge v. Smith, 140 Pa. 387, and though worked for profit, but the income being applied to the purposes of the charity, is not taxable where the property is used also for the purpose of the charity. 80 An association was chartered for "the advancement of literary and scientific attainment among the people; the study of the Bible, and the science and art of teaching; and the promotion of general culture in the interest of Christianity." It issued stock, some of which it applied to the acquirement of mountain land upon which various buildings were erected, including an inn, a recitation hall, an auditorium and cottages for lodging pur- poses. Students were accommodated at the inn and at the cottages at less than regular charges. The public were accom- modated at the inn at prices usually charged by similar re- sorts in the locality. The cottages were rented to the public at reasonable rents. The profits made were applied to the general charitable work of the association. Held, that so much of the property of the association as was used for the making a profit was liable to taxation. 81 A library building is subject to taxation on so much thereof as is rented afld produces a revenue, though it may otherwise he exempt. 82 "In 'actual use' means in exclusive use, and a mere concurrent or alternate occupation by the church does not come within the requirements for exemption." 83 A charitable institution is not exempt from taxation on a va- cant lot when it appears that the lot is separated by a street from the land upon which the institution is built and it does not ap- pear that the lot is necessary to the use of the charity, and the jury finds by special verdict that the institution "is maintained as a charity" without finding that -it was maintained as a "purely '"Pennsylvania Hospital v. Del- 82 Mercantile Library Co. v. aware County, 169 Pa. 305 (1895). Philadelphia, 161 Pa. 155 (1894); "Penna. Hospital v. Del. Co., 14 Pa. C. C. 304; 3 D. R. 139. See 169 Pa. 305 (1895). Phila. v. Barber, 160 Pa. 123 81 Pocono Pines Assembly v. (1894); Y. M. C. A. of Phila. v. Monroe County, 29 Pa. Super. Ct. Donohugh, 13 Phila. 12 (1879). 36 (1905). ""Phila. v. Barber, 160 Pa. 123 (1894). EXEMPTIONS FROM TAXATION. 73 public charity." 84 Otherwise, however, where it appears that the property is used for the purposes of the charity. 85 Real estate belonging to an institution maintained by private charity partially occupied by houses tenanted by employees of the charity, amounts equal to a just rental thereof being deducted from their wages, all of such lands having been purchased to preserve the water supply of the institution, and used exclusively for the use and purposes of the institution, is exempt from tax- ation. 86 A hospital maintained a building reserved exclusively for patients paying a higher rate than others. The profits derived from this building were used to extend the capacity of the hos- pital for good, and no portion enured to the benefit of any one connected with the charity. Held, that - the said building was exempt from taxation. 87 A building owned by an incorporated Young Men's Mercantile Library and Mechanics' Institute, occupied partly by the cor- poration and partly by paying tenants, is taxable on so much as .is not occupied by the corporation, notwithstanding a special act exempting from taxation the real and personal property of the company. 88 Lands of the House of • Refuge of Philadelphia, located in Delaware County and occupied and cultivated by the inmates of the institution as a part of the training which they receive, the product thereof partially defraying the expenses of the house, are not taxable, 89 but a farm belonging to a charitable institution is taxable when it is used solely for tillage and pasturage in order to provide food for the inmates of the institution and is not used in any way in the instruction or training of such inmates. 90 A society organized as an institution of purely public charity, and as such exempt from taxation, may, as an aid to the ac- "Philadelphia v. Ladies Aid So- pital for the Insane, 154 Pa. 9 ciety, 154 Pa. 12 (1893). (1893). "Ladies United Aid Society, ""Pgh. v. Mercantile Library etc., v. Philadelphia, 14 Pa. C. C. Hall Association, 3 Pa. C. C. 519 215; (1892); 3 D. R. 141; 34 W. (1887). See German Society v. N. C. 260. Phila., 12 Phila. 373 (1877). ""Northampton County v. Le- 89 House of Refuge v. Smith, 140 high University, 13 Pa. C. C. 659 Pa. 387 (1891); 27 W. N. C. 397. (1893); 3 D. R. 839. ""Sisters of the Blessed Sacra- 87 Phi'ladelphia v. Penna. Hos- ment, 38 Pa. Super. Ct. 640 (1909). 74 TAXATION IN PENNSYLVANIA. complishment of the primary object, carry on business or use part of the property for a business purpose, which will render such business or such part of the property taxable. The Ameri- can Sunday-School Union was organized "for the erection and maintenance of Sunday-Schools and the publication and cir- culation of moral and religious publications." It had no capital stock and no profits. It owned a building in which, in addition to the work of the Union, it conducted a book store, the profits of which were devoted to the purposes of the society. Held,, that the property used for commercial purposes was not exempt from taxation. 91 The Act of May 14, 1874, contemplates either ownership of the building and adjoining real estate by a charity exempted, by said act, or a definite' dedication to charitable or other public uses. A dwelling house and property leased by a corporation for school purposes for a terni of years at an annual money rental, and an agreement to pay the taxes and keep the property in repair, does not" work an exemption from taxes assessed against the 'owner of the real estate, such real estate not being perma-*. nently devoted to public or charitable uses. 92 A school the title of which is in an individual, which is under the denomination and control of a particular religious denomina- tion, is not exempt from taxation, though no tuition fees are charged and though, up to the time of suit, children have been received and instructed irrespective of religious faith. The prop- erty of said school cannot be said to be regularly and permanently devoted to purely charitable purposes. 93 Only such ^property of a charitable institution is exempt from taxation as is "annexed to and necessary to the enjoyment and occupancy" of the institution. Wherefore a building erected and originally employed as a hospital but not used as such for twenty years, is not exempt. 94 "American Sunday School the Act of April 16, 1838, prop- Union v. Philadelphia, 161 Pa. erty leased by churches for pur- 307 (1894); 34 W. N. C. 321. poses of stated religious worship M Kittanning Academy v. Kit- was exempt. Howell et al. v. tanning Borough, 8 Pa. Super. Phila., 8 Phila. 280 (1871). Ct. 27 (1898); 6 D. R. 603; 19 Pa. "'Mullen v. Juenet et al., 6 Pa. C. C. 296; White v. Smith, 8 Pa. Super. Ct. 1 (1897); White v. Super. Ct. 205 (1898). Under the Smith, 8 Pa. Super. Ct. 205 (1898), exemption provided by § 29 of "Phila. v. Jewish Hospital As- EXEMPTIONS FROM TAXATION. 75 vVhere a municipality assesses for taxes a large lot owned by a church, on a small part of which a chapel has been built, and the church does not raise its claim for exemption either by an appeal from the assessment, or by bill in equity, it has no status to complain if a court on a sci. fa. sur municipal lien for taxes, submits to the jury the question what portion if any of the vacant land should be considered as necessary to the occupancy or en- joyment of the chapel erected on the land. 95 The act incorporating the Wagner Free Institute of Science authorized it to receive a conveyance of real estate with the buildings, cabinet collections, etc., thereon, "to receive all and every endowment made to it and to appropriate the same to the uses, intents and purposes contemplated herein and in said deed," and provided that "the cabinet collections, edifice and lot of ground on which it is erected, belonging to said institution, with any gifts, bequests or endowments, so long as the same shall be used for free lectures, shall be exempt from taxation." ■ After- wards lots with buildings thereon were conveyed to the insti- tution, the income from which was used exclusively for purposes of the trust. Held, that the real estate with the dwellings on it was not a "gift, bequest or endowment" exempt from taxation, under the terms of the act of incorporation. 96 § 71. Buildings in course of erection exempted. Noth- ing in the act to which this is a supplement shall be taken as implying that any building, though incomplete or in course of construction, shall be subject to taxation where said building was intended under the provisions of said act to be exempt from taxation when completed. 97 Prior to the passage of the foregoing act, it was held that church buildings in the process of construction and lands occupied thereby were not exempt from taxation under the provisions of the Act of May 14, 1874, that to be exempt a building must be used as "a regular place of stated worship," and that until it sociation, 148 Pa. 454 (1892); 30 "Wagner Institute's Appeal, W. N. C. 25. See Phila. v. Home 116 Pa. 555 (1887) ; 20 W. N. C. for the Friendless, 3 Pa. C. C. 117; Wagner Free Institute v. 390 (1897); Grubb et al. v. Weaver Phila., 132 Pa. 612.(1890); 25 W. et al., 19 Pa. C. C. 609 (1897). N. C. 43J7. "Pittsburgh v. Third Presby- "Act of June 4, *879, P. L. 90. terian Church, 20 Pa. Super. Ct. 362 (1902). 76 TAXATION IN PENNSYLVANIA. actually became such it was taxable. 98 This decision doubtless led to. the passage of the Act of June 4, 1879, which, however, has been held unconstitutional by a common pleas court, on the ground that the exemption granted thereby is contrary to the pro- vision of the constitution regarding exemptions." Under the provisions of the Act of June 4, 1879, P. L. 90, where a battery of the National Guard started the construction of an armory on a lot which it afterwards abandoned, and erected its armory on another lot, and the first lot was sold and the proceeds used in the purchase of the new lot and the construc- tion of the armory, held, that the first lot and partially constructed armory were not taxable between the abandonment of the first and the erection of the second building. 100 § 72. The privileges of charitable institutions must be open to the public generally in order to exempt such in- stitutions from taxation. A charity is a gift to promote the welfare of others. A public charity may restrict its admissions to a class of humanity, and still be public, but when the right of admission depends on the fact of voluntary association with some particular society, then a distinction is made which con- , cerns not the public at large ; but so long as the classification is determined by some distinction which involuntarily affects, or may affect, any of the whole people, although only a small num- ber may be benefitted, it is public. A home limited to indigent, aged free masons is not a purely public charity. 1 A denominational school property, vested in trustees for the purpose of educating youth, is a purely public charity, even though' the school is not open in the same way to the general public as to persons connected with the religious denomination, but the general public are admitted as vacancies occur. 2 A home for white women, either single or widows, in indigent ""Mullen v. Erie County Com- Penna., 160 Pa. 572 (1894). An missioners, 85 Pa. 288 (1877); 13 amendment to the charter admit- Phila. 509. ting the public generally will not ""Pittsburgh v. Phelan, 11 D. R. relieve from taxation for years 572 (1902). See Pittsburgh v. before the amendment was made: Third Presbyterian Church, 20 Same Title, 33 Pa. 'Super. Ct. 382 Pa. Super. Ct. 362 (1902). (1907). ""Phila. v. Keystone 'Battery, 'Episcopal Academy v. Phila., 169 Pa. 526 (1895);' 36 W. N. C. 150 Pa. 565 (1892); Haverford 482. College v. Rhoads, 6 Pa. Super. 'Phila. v. Masonic Home of Ct. 171 (1897). EXEMPTIONS EROM TAXATION. 17 circumstances, is a purely public charity; 3 and so is a library company which -permits all persons to frequent its buildings and take out books for a small sum, on making a deposit, mem- bers paying an annual fee. 4 An asylum founded for the maintenance and education of white, female, orphan children, between certain ages, with pref- erence, first, to those baptized in a particular church, second, to those baptized in churches of the same denomination in Phil- adelphia and, third, to all others, with preference always to orphan children of clergymen of §aid denomination, is,, exempt from taxation as an institution of purely public charity. 5 But a scientific institute, whose object is the diffusion of scientific and general knowledge and the maintenance of a li- brary and museum, the benefits of which are restricted to mem- bers, except upon conditions prescribed by a board of managers, is not a purely public charity and its property is taxable. 6 Where a corporation, organized for the establishment and maintenance of a school where the children of the rich may be educated at reasonable rates and the children of the poor gra- tuitously, purchases lands and erects buildings thereon, and lets them as an educational venture for a rental equal to one-eighth of the gross receipts, to an individual, the corporation paying to him from the charity fund tuition fees for the instruction of the free pupils, the number of which is but 16 out of 359, the property of the corporation is not used for purposes of purely public charity and is not exempt from taxation. 7 Under the provisions of the Act of April 16, 1838, exempting "all universities, colleges, academies and school houses belonging to any county, borough, or school district or incorporation, en- dowed or established by virtue of any law of this Commonwealth, with the grounds annexed thereto," it was held that the Penn- sylvania Academy of Fine Arts was taxable, the act exempting only institutions assimilating to a university. 8 'Hastings v. Long et al., 11 D. "Delaware County Institute of R. 370 (1901). Science v. Delaware County, 94 4 Donohugh v. Library Co. of Pa. 163(1880); 8 W. N. C. 449. Phila., 86 Pa. 306 (1878) ; 12 Phila. 7 Phila. v. Overseers of Public 28 4 Schools, 170 Pa. 257 (1895). "Burd Orphan Asylum v. Upper "Academy of Fine Arts v. Darby School Dist, 90 Pa. .21 Phila., 22 Pa. 496 (1854). (1880); 8 W. N. C. 446. 78 TAXATION IN PENNSYLVANIA. Where an institute established under a will, in its practical management receives and supports orphan girls- generally, it will be deemed a public charity and exempt from taxation, although the will of the testatrix expressed a preference that the girls received should be from a certain city, and be the orphans -of soldiers or firemen. 9 "When an association or institution seeks exemption it must be in fact a purely public charity; it is not sufficient that the object of the. association as set forth in its charter is to establish and maintain such an institution. If it ceases to be that on which it depends for exemption, the property at once becomes subject to taxation. White v. Smith, 189 Pa. 222. See also Moore v. Taylor, 147 Pa. 481; Philadelphia v. Jewish Hospital Association, 148 Pa. 454. And this is true whether the doing of that which deprives it of the character of a purely public charity is in excess of the charter powers or not." 10 „ An incorporated college the charter of which provides that persons of every religious denomination shall be eligible- as trus- tees, that no person shall be refused admission into its faculty or classes, or denied participation in any of its privileges or ad- vantages, on account of religious belief, and that it shall be subject to visitation by the state, is a public institution in the broadest sense of the word. 11 A home for deaconesses belonging to the Woman's Home Missionary Society of the Philadelphia Conference of the Meth- odist Episcopal Church is a purely public charity, exempt from taxation, it appearing that it is used as a residence for the deaconesses who receive, store and distribute, without compen- sation to themselves, food, clothing and money to the needy poor, give free instruction to children, maintain a public library and lunch room, where they sell light meals to poor working girls at a rate less than the cost of furnishing them, and conduct public, daily worship of a non-sectarian character, the whole building being used as a public charity, and no part being rented out for revenue. 12 "Foulke & Long Institute, 26 fayette College, 128 Pa. 132 Pa. C. C. 561 (1901). (1889). ' 10 Pocono Pines Assembly, etc., "Women's Home Missionary v. Monroe County, 29 Pa. Super. Society v. Receiver of Taxes, 173 Ct. 36 (1905). Par. 456 (1896). "Northampton County v. L,a- EXEMPTIONS FROM TAXATION. 79 Boards of managers or trustees of a particular church or faith may manage and supervise a public charity and the character of such a charity need not be perpetual. 13 A convent connected with a school maintained for the general public by voluntary contributions, in which the teachers in such school reside, the school and convent being erected at the same time and for the use to which they are put, is exempt from taxation. 14 § 73. Liability of charitable institutions to municipal assessments. Public property used for public purposes shall not be subject to tax claims or municipal claims; and actual places of religious worship, places of burial not used or held for private or corporate profit, and institutions of purely public ■charity, shall not be subject to tax or municipal claims except for the removal of nuisances, for sewer claims and sewer con- nections or for the recurbing, paving, repaving or repairing the footways in front thereof. . . . ls It was originally held that municipal assessments were a species ■of local taxation and that charitable institutions were exempted from the payment of the same by the Act of 1874, 16 but this position was afterwards abandoned and it was held that such institutions were liable to the payment of the said assessments. "The earlier construction of the constitutional exemption from taxation, and of similar exempting language in several statutes, wquld fully support the defendant's argument that this assess- ment is a tax within the meaning of the Constitution and of the Act of 1874, P. L. 154: Olive Cemetery Co. v. Philadelphia, 93 Pa. 129; Erie v. Church, 105 Pa. 278; Jenkintown v. Church, 4 Montg. Co. L. R. 49. The later decisions abandon this position, however; and while a municipal assessment is still regarded as based upon the power of taxation (McKeesport v. Fidler, 147 Pa. 532), it is no longer regarded as a 'tax' within the true intent and meaning of the constitutional exemption: Wilkinsburg v. "White v. Smith, 189 Pa. 222 Boro. v. Jenkintown Baptist ■(1899). Church, 5 Pa. C. C. 385 (1888); "White v. Smith, 189 Pa. 222 Erie City v. First Universalist (1899). Church, 105 Pa. 279 (1884); Olive "Sec. 5, Act of June 4, 1901, P, Cemetery v. Phila., 93 Pa. 129 I,. 364. (1880); Erie City v. Y. M. C. A., 16 Phila. v. St. James' Church, 151 Pa. 168 (1892). 134 Pa. 207 (1890); Jenkintown 80 TAXATION IN PENNSYLVANIA. Home, etc., 131 Pa. 109; Phila. v. Penna. Hospital, 143 Pa. 367; Pittibone v. Smith, ISO Pa. 118; Sewickley Church's Ap., 165 Pa. 475. In the last named case Chief Justice Sterrett points out the distinction between taxation for general purposes and municipal assessment for local purposes, and concludes as fol- lows: 'We are therefore of opinion that special municipal as- sessments, such as that in question, are not within the constitu- tional exemption above quoted. While these assessments, rest- ing for their final reason upon special local benefits, are referable to the taxing power, and therefore not improperly recognized as a species of taxation, they are not general burdens or taxes proper, within the true intent and meaning of the law exempting property from taxation; and in so far as any of our cases may be in conflict with this conclusion, they must be considered overruled.' " 1T A provision in the charter of a charitable institution that all its estate and property shall be exempt from taxation does not exempt the real estate of the same from liability for a municipal claim, duly filed, for the cost of constructing a new sidewalk, together with a twenty per cent, advance thereon. The action of a borough, under Pars. V and VI of § 2 of the Act of April 3, 1851, P. L. 320, in requiring it to construct a new sidewalk in place of a dangerous old one, and on its neglect to do so, constructing the same itself, is an exercise of the police power and not the power to tax. 18 An institution of purely public charity, whose property is ex- empt by statute from taxation, is not exempt from assessment for the cost of curbing, under an ordinance of the city of Phil- adelphia, enacted May 3, 1855, in pursuance of authority con- ferred by the Acts of April 16, 1838, P. L. 626 and February 2 r 1854, P. t. 43. 19 ."Harrisburg v. St. Paul's Epis- (1896) ; Phila. v. North Penna. R. copal Church, 18 Pa. C. C. 113 R. Co., 16 Pa. C. C. 620 (1895); (1896); Sewickley Methodist Epis- 4 D. R. 451. See Northern Lib- copal Church's Appeal, 165 Pa. erties v. St. John's Church, IS 475 (1895); New Castle City v. Pa. 103 (1850). Jackson, 172 Pa. 86 (1895) ; Phila. M Wilkinsburg Borough v. Home v. Union Burial Ground Society, for Aged Women, 131 Pa. 109' 178 Pa. 533 (1895); Beltzhoover (1889); 7 Pa. C. C. 75; 25 W. N. Boro. v. Beltzhoover, 37 W. N. C. C. 178. See Olive Cemetery Co. 573 (1895); Phila. v. Franklin v. Philadelphia, 93 Pa. 129 (1880). Cemetery, 2 Pa. 'Super. Ct. 569 "Philadelphia v. Pennsylvania EXEMPTIONS FROM TAXATION. 81 Since the passage of the fifth section of the Act of June 4, 1901, P. L,. 364, given at the beginning of this section, the fore- going decisions do not, of course, apply, except as to claims not exempted by the act. § 74. Exemption of trust funds held by churches and charitable institutions. A mortgage taken and held by a church to secure the purchase money of a property belonging to a church and held for religious and charitable purposes is not subject to the tax on personal property. 20 Trust funds, held, not for any particular persons, but for char- itable and religious objects in which no particular individual or person has any legal or equitable right, the beneficiaries being selected from year to year, at the discretion of the trustees, out of an indefinite class of persons, are not taxable under the Act of June 1, 1889, P. L,. 420, as moneyed capital held by anyone "as active trustee . . . for the use, benefit or advantage of any other person." By "person" is there meant a particular in- dividual, having a beneficial ownership in the property who could claim its use, benefit or advantage and enforce the trust in his favor. 21 § 75. Miscellaneous decisions relative to exemption from taxation of charitable institutions. Statutes granting exemptions from taxation should be strictly construed. 22 An act in 1868 exempted the property of a religious association in Philadelphia from all tax except state tax, specifically de- scribing the same "so long as used for charitable or religious pur- poses." The upper story was leased to the city for school purposes. The general law of March 18, 1868, excluded from ex- emption , from municipal taxation property of religious, etc., associations, used for business purposes. Held, that the whole of the property of said association was exempt, the Act of 1868 having been passed to except the same from the operations of the Act of 1866. 23 Hospital, 143 Pa. 367 (1891); 28 al., 139 Pa. 497 (1891); 27 W. N. W. N. C. 434. C. 207; 8 Pa. C. C. 47. ^Mattern v. Canevin, 213 Pa. "Academy of Fine Arts v. 588 (1906). See Presbyterian Phila., 22 Pa. 496 (1854). Church v. Montg. Co., 3 Grant. "Howard Association's Appeal, 245 (1858). 70 Pa. 344 (1872). ^General Assembly v. Gratz et 82 TAXATION IN PENNSYLVANIA. Owners of real estate deriving their title from* the Common- wealth by virtue of a patent under the tenth section of the Act of April 9, 1781, are not exempted from the payment of a state tax on their said estate which tax is to be applied towards the payment of interest and the extinguishment of the debt of the Commonwealth, contracted for her system of internal improve- ments, by force of any contract between the state and themselves under the eleventh section of said act. 24 § 76. Exemption from taxation of public service cor- porations. In the long line of decisions beginning in 1825, 25 it has been held that so much of the property of railroad, canal, gas and other public service corporations as is essential to the enjoyment and exercise of their franchises is exempt from county and local taxation. No statute provides for such exemption, but it results wholly from judicial legislation. An examination of the cases establishing the same will be found in the writer's mono- graph "Taxation of Public Service Corporations in Pennsyl- vania," to which the learned reader is referred. The said exemption is confined to the exemption of the prop- erty of public service corporations only, and extends to only so much of said property as fs necessary (as contradistinguished from convenient) to the exercise of their respective franchises. 26 It does not extend to the exemption of the property of pub- lic service corporations from liability to assessments for munic- ipal and other improvements, and such property is subject to such assessments; 27 nor does it relieve said corporations from state taxation upon- their capital stock which is invested in the property exempted from county and local taxation, nor from any other state taxes. M Shitz v. Berks Co., 6 Pa, 80 Diamond Market Co., 123 Pa. (1847). 164 (1889); South Reading : '"Schuylkill Bridge Co. v. Market House Co. v. Berks Frailey, 13 S. & R. 422 (1825). County, 11 W. N. C. 424 (1882); M West Chester Gas Co. v. Ches- Columbia County v. Espy Lime ter County, 30 Pa. 232 (1858); & Cement Co., 1 C. P. Rep. 55 N. Y. & Erie R. R. Co. v. Sabin, (1879); 11 Lane. Bar. 124. 26 Pa. 241 (1856); Carbon Iron "Phila. v. North Penna. R. R. Co. v. Carbon County, 39 Pa. Co., 16 Pa. C. C. 620 (1895); 251 (1861); Chester County v. Phila. v. Phila. & R. R. R. Co., 1 Farmers' Market House Co. (No. Pa. Super. Ct. 236 (1896); Same 2), 1 Chester Co. 428 (1882) ;'A1- v. Same, 177 Pa. 292 (1896). legheny County v. McKeesport EXEMPTIONS FROM TAXATION. 83 The fifth- section of the Act of June 4, 1901, P. L. 364, relative to liens for taxes, which provides, inter alia, that "all real es- tate by whomsoever owned and for whatsoever purpose used, shall be subject to all tax claims and municipal claims herein pro- vided for," does not make subject to taxation property of public service corporations essential to the exercise of their franchises. 28 The test as to whether a corporation is or is not a quasi pub- lic corporation, so as to entitle it to exemption from local taxa- tion on so much of its property as is essential to the exercise of its franchises, is not what the corporation has done, or what it may. attempt to do, but what it is authorized to do and may be compelled to do underwits charter in the performance of the duties imposed thereby. 29 § 77. Property of railroad companies held to be ex- empt from taxation. The following classes of property of railroad companies have been held to be exempt from taxation: rights of way, tracks, bridges, etc. ; 30 depots, offices, oil houses and car houses; 31 round houses and turn tables; 32 telegraph offices, store houses and water tanks; 33 engines and engine houses, and machinery for raising cars on incline planes; 34 ma- chine shops not used for original construction. 35 The fact that a portion of a depot building is used as a residence of an employee, and that a postoffice is also a Phila. v. Phila. & Reading R. R. Co., . 38 Pa. Super. Ct. 529 (1909). M Conoy Township v. York , Haven Electric Power Plant Co., 222 Pa. 319 (1908). 30 Penna. R. R Co.'s Appeal, 3 Pa, C. C. 162 (1887); Phila. v. Phila. & Reading R. R. Co., 38 Pa. Super. Ct. 529 (1909); Erie v. Piece of Land, 175 Pa. 523 (1896). "Railroad Co. v. Berks County, 6 Pa. 70 (1847); Northampton County v. Lehigh Coal & Navi- gation Co., 75 Pa. 461 (1874). "Venango County v. James- town & Franklin R. R. Co., 7 Leg. Gaz. 20 (1874); 2 Foster 325; Lu- zerne County v. Lehigh Coal & Nav. Co., 5 Luz. Leg. Reg. 5 (1875). ""Luzerne County v. Lehigh Coal & Nav. Co., 5 Luz. Leg. Reg. 5 (1875). M Wayne County v. Delaware & Hud. Canal Co., 15 Pa. 351 (1850). ""Western N. Y. & Penna. R. R. Co. v. Venango County, 183 Pa. 618 (1898) ; 5 Pa. Super. Ct. 304, overruling Berks County v. East Penna. R. R. Co., 1 Walker 428; Lehigh Valley R. R. Co. v. Brad- ford County, 24 Pa. C. C. 537 (1901) ; Northumberland County v. Phila. & E. R. R. Co., 20 W. N. C. 381 (1887). See Penna. & N. Y. C. R. R. Co. v. Van Dyke, 137 Pa. 249 (1901). 84 TAXATION IN PENNSYLVANIA. does not render the property locally taxable. 36 The roadbed of a railroad is not subject to tax claims under the provisions of § 5 of the Act of June 4, 1901, P. L. 364, 37 but other real estate is subject thereto. 38 § 78. Property of railroad companies not exempt from taxation. The following classes of property of railroad com- panies have been held not to be exempt from taxation : boarding houses used by employees ; 39 general office buildings, remote from their tracks; 40 warehouses, coal yards, coal shutes, machine shops for original construction and wood yards; 41 and ice plants for cutting and storing ice for refrigerator cars and filling ice coolers in passenger cars. 42 § 79. Real estate of railroads, with certain excep- tions, not exempt from taxation for city purposes in Philadelphia and Pittsburgh. The offices, depots, car-houses and other real property of railroad corporations situated in said city [Philadelphia] the superstructure of the road and water stations only excepted, are, and hereafter shall be, subject to tax- ation by ordinances for city purposes. 43 A street railway company is a railroad within the meaning of the foregoing, act, and a car barn of a street railway company is taxable, 44 but a power house used by a traction company operat- ing a street railway is exempt from taxation under said act, the term "real estate" as used in the act not being applicable thereto. 45 All real estate situated in said city [Pittsburgh] owned or pos- sessed by any railroad company shall be and is hereby made sub- ject to taxation for city purposes, the same as other real estate in said city. 46 It was held that under the provisions of the above act, the "North Penna.* R. R. Co.'s Venango County, 183 Pa. 618; 5 Case, 23 Montg. 129 (1907). Pa. 'Super. Ct. 304 (1897). "Phila. v. Phila., G. & N. R. R. "Delaware, Lack. & W. R. R. Co., 32 Pa. C. C. 534 (1906). Co. v. Metzgar, 28 Pa. Super. Ct. ""See § 638. 239 (1905). ""Wayne County v. Delaware "Sec. 1, Act of April 21, 1858, & Hud. Canal Co., 15 Pa. 351 P. T_. 385. (1851). "Philadelphia v. Philadelphia "East Penna. R. R. Co.'s Case, Traction Co., 206 Pa. 35 (1903). 1 Walker 428 (1863). "Philadelphia v. Electric Trac- • "Railroad Company v. Berks tion Co., 208 Pa. 156 (1904). County, 6 Pa. 70 (1847); Western "Sec. 3, act of January 4, 1859, N. Y. & Penna. R. R. Co. v. P. L. 828. EXEMPTIONS FROM TAXATION. 85 lands, buildings and improvements of railroads in Pittsburgh were liable to taxation for city purposes notwithstanding that they were essential to the operation of the franchises of such railroads, 47 but it has more recently been held that under said act the rights of way of railroads in said city are not taxable. 48 Section 3 of the Act of January 4, 1859, supra, is not repealed Joy the Act of March 7, 1901, P. L. 20, relative to cities of the second class and still in force. 49 Street railway companies are railroads within the meaning of said Act of 1859, 50 and so are incline plane companies. 51 Real estate of railroad companies lying within the limits for- merly occupied by the city of Allegheny, may, since the consoli- dation of that city with, the city of Pittsburgh, be taxed by Pittsburgh, under the Act of 1859, though not taxable before the consolidation. 52 § 80. Exemption of property of street railway com- panies. 53 The following property of street railway companies is exempt from local taxation: tracks, turn tables and cars, 54 car stables, 55 horses, constituting the sole motive power of street railway companies, 58 and lands taken and necessary as a whole to the operation of a street railway are exempt from taxation, al- though every part thereof may not be in actual use. 57 "Pennsylvania R. R. Co. v. ton, S,' E. & W. L. Pass. Street Pittsburgh, 104 Pa. 522 (1883). Rwy. Co., 8 Pa. C. C. 442 (1890). "Penna. R. R. v. Pittsburgh, 221 ""Peoples' Pass. Rwy. Co. v. Pa. 90 (1908). Taylor, 22 Pa. Super. Ct. 156 "Penna. R. R. v. Pittsburgh, 221 (1903) ; Northampton County v. Pa. 90 (1908). Easton, S. E. & W. L. Pass. Rwy. =°Penna. R. R. v. Pittsburgh, Co., 8 Pa. C. C. 442 (1890). Con- 104 Pa. 522 (1883). tra, People's Street Rwy. Co. v. 51 St. Clair Incline Plane Co. v. Scrafiton, 8 Pa. C. C. 633 (1890); Pittsburgh, 49 P. L. J- 190. Citizens' Pass. Rwy. Co. v. Dono- M Allegheny Terminal Co. v. hugh, 10 W. N. C. 62 (1881); Pittsburgh, 56 Pitts 234 (1909). Smith v. Phila. City Pass. Rwy. ""See § 79. Co., 12 W. N. C. 171 (1882); "Peoples' Street Railway Co. v. Wayne Co.' v. D. & H. Canal Co., Scranton, 8 Pa. C. C. 633 (1883); 15 Pa. 351 (1850); Delaware Northampton County v. Easton County v. Chester Street Rail- Pass. Rwy. Co., 148 Pa. 282 way Co., 10 Pa. C. C. 326 (1891). (1892). "'Schuylkill Valley Traction Co. ""Northampton County v. Eas- v. Moore, 19 Montg. Co., 119 (1903). 86 TAXATION IN PENNSYLVANIA. § 81. Exemption of property of electric light, heat and power companies. The property of an electric light, heat and power company necessary to the operation thereof is exempt from taxation. 58 In order to entitle property of an electric light, heat and power company to exemption from taxation, it is not necessary that the same shall be in actual continual use. Property reserved for use in case of emergency or to meet the demands of increasing busi- ness is entitled to exemption. 59 Water power companies incorporated for the supply of water and water power to the public, and having the power to fur- nish electric power, under the provisions of the Act of July 2, 1905, P. L. 425, are entitled to exemption' as quasi public cor- porations. 60 § 82. Exemption of property of water companies. The lands of water companies on which their reservoirs are situ- ated are not taxable, 61 nor are lands on which the dams of such companies are located, 62 but lands purchased for future use for the extension of the works of water companies are taxable. 63 Lands held by such companies to prevent the contamination of their water supply and not occupied by their plant are tax- able, 64 although they may possibly be exempt if it appear that it is absolutely necessary for a company to own such lands in order to preserve the purity of the water furnished by it. 65 Corporations chartered for the purpose of supplying water and ■^Southern Elec. Light & Power "Lehigh County v. Bethlehem Co. v. Phila., 191 Pa. 170 (1899); South Gas & Water Co., 4 D. R. Scranton v. Scranton Elec. Light, 723 (1895) ; Roaring Creek Water Heat & Power Co., 8 Pa. C. C. Co. v. Northumberland County, 626 (1890); Brush Elec. Light Co. 6 Pa. C. C. 473 (1889). v.' Phila., 8 D. R. 231 (1899); "'Roaring Creek Water Co. v. Commonwealth v. U. S. Elec. Northumberland County, 6 Pa. Lighting Co., 7 Pa. C. C. 90 C. C. 473 (1889). (1889) ; L ancas ter v. Edison Elec. ""Roaring Creek Water Co. v. Ilium. Co., 8 Pa, C. C. 631 (1890). Northumberland County, 6 Pa. "Southern Elec. Light & Power C. C. 473 (1889). Co. v. Phila., 191 Pa. 170 (1899). "Roaring Creek Water Co. v. See York v. Telephone Co., 20 Girton, 142 Pa. 92 (1891). York 109 (1906). "Spring Brook Water Co. v. ""Conoy Township v. York Kelly, 17 Pa. Super. Ct. 347 (1901). Haven Elec. Power Plant Co., 222 Pa. 319 (1908). EXEMPTIONS FROM TAXATION. 87 water power to the public are quasi public corporations and ex- empt from taxation upon their real estate essential to their operations. 66 § 83. Exemption of property of pipe line companies. Property necessary to the operation of pipe line companies, such as oil tanks, pumping stations, engines and boiler sheds, is ex- empt from local taxation. 67 But oil tanks used for storage pur- poses are taxable. 68 § 84. Exemption of property of telephone and tele- graph companies. The property of such companies essential to their operations is exempt from taxation. A telephone com- pany is not taxable upon its property because a portion of it is not in constant use. 69 § 85. Exemption of property of natural gas companies. The property of natural gas companies essential to their opera- tion is not taxable. 70 § 86. Exemption of property of artificial gas companies. The works of an incorporated artificial gas company are exempt from taxation, but not dwelling houses erected for the use of their workmen. 71 An artificial gas company is entitled to exemption upon an entire lot, nearly one-half of which is occupied by its gas plant and the remainder used for dumping refuse and the storage of material, the company contemplating ultimately using the re- maining portion in enlarging its plant. 72 § 87. Miscellaneous decisions relative to exemption of property of public service corporations. A strip of land purchased by a bridge company for the purpose of widening the approach to its bridge, and intended to be used for the sole M Conoy Township v. York Light & Heat Co. v. Elk County, Haven Elec. Power Plant Co., 191 Pa. 465 (1899); Pittsburgh's 222 Pa. 319 (1908). Appeal, 123 Pa. 374 (1889); 23 W. "Mellon Pipe Lines v. Alle- N. C. 91. gheny County, 3 D. R. 448 (1894). "West Chester Gas Co. v. ""United Pipe Lines v. Venango Chester County, 30 Pa. 232 (1858) ; County, 27 P. L- J- 17 (1879). Coatesville Gas Co. v. Chester "York v. Telephone Company, County, 97 Pa. 476 (1881); 20 York 109 (1906). Schuylkill County v. Citizens' '"St. Mary's Gas Co. v. Elk Gas Co., 148 Pa. 162 (1892). County et al., 191 Pa. 458 (1899); "Pittsburgh v. Consol. Gas Co., 168 Pa. 401 (1895); Ridgway 34 Pa. Super. Ct. 234 (1907). OS TAXATION IN PENNSYLVANIA. purpose of accommodating foot passengers and vehicles, is not taxable. 73 * The Pennsylvania Canal Company does not possess the im- munity from taxation formerly enjoyed by the state, and hence it is not exempt from taxation on houses rented to its employees, nor on a building used by an employee for a grocery. 74 A mill property bought and held by a canal company was held to-be taxable. 75 § 88. Exemption of real estate from state taxation. From and after the passage of this act the real estate of this Commonwealth shall be exempt from taxation for state pur- poses; provided, that this section shall not be construed to re- lieve the said real estate from the payment of any taxes due the Commonwealth at the date of the passage of this act. 76 § 89. Exemption of capital stock of manufacturing corporations from state taxation. 77 § 90. Exemption from all taxation of watches, house- hold furniture and pleasure carriages. All taxes, for what- soever purpose, laid upon watches, household furniture and pleasure carriages by and under the revenue laws of this Com- monwealth, be and the same are hereby abolished, and the laws under which said taxes are levied -and collected, so far, as they relate to the property herein mentioned, are hereby repealed. 78 Inasmuch as watches, household furniture and pleasure car- riages were taxable at the adoption of the constitution, it would seem that the above act which relieves them not from local or state, but from all taxation whatever, is void under the provisions of § 2, Article IX, of the Constitution. Prior to the passage of said act, it was held that works of art and antiquities were not taxable as "household furniture." 79 "Monongahela Bridge Co. v. real estate owned by the state. See Pittsburgh, 12 Pa. C. C. 87 (1894). In re Bushkill Water Co., 18 D. "Harrisburg v. Penna. Canal R. 360 (1909). Co., 2 Pears 93 (1870). "See §§ 802-812. "Dauphin County v. Union Ca- "Act of May 13, 1887, P. L,. 114. nal Company, 2 Pears. 38 (1869). See Phila. v. Kingsley et al., 19 "Sec. 4, Act of Feb. 23, 1866, Phila. 463 (1888); 5 Pa. C. C. 75. P. L. 83. This act exempts from ™Lea's Appeal, 15 W. N. C. 61 state taxation all real estate within (1884). the commonwealth and not merely EXEMPTIONS EROM TAXATION. 89 § 91. Exemption of horses, mules and cattle from state taxation. All laws or parts of laws now in force in this Com- monwealth under and by virtue of which taxes for state pur- poses are levied and assessed upon horses, mares, geldings, mules and cattle shall be, and they are hereby, repealed so far as they give authority to impose state taxes on the same. . . . 80 "Sec. 1, Act of March 21, 1873, P. L. 46. CHAPTER V. ASSESSORS OP PROPERTY POR PURPOSES OP COUNTY TAXATION. 1 § 92. Property assessed for taxation for county purposes by the township, borough and ward assessors. 93. History of legislation relative to assessors. 94. Election of assessors in boroughs and townships. 95. Election of assessors in townships of the first class. 96. Election of assistant assessors — How triennial assessments shall be made in townships of the first class. 97. Duties of assistant assessors in townships of the first class 98. Compensation of assessors and assistant assessors in town- ships of the first class. 99. Election of assessors in cities of the third class. 100. Boards for the assessment and revision of taxes in counties having not less than 300,000 nor more than 1,000,000 inhab- itants. 101. Boards to divide such counties into districts and appoint subor- dinate assessors. 102. Offices of ward, borough and township assessor abolished in said counties. 103. Compensation of subordinate assessors in said counties — When assessment for state taxes to be concluded. 104. Assessors of state and county taxes in cities of the second class and cities belonging to neither the first, second or third classes. 105. Assessors of state and county taxes in cities of the first class. 106. Assistant assessors. 107. Vacancies in the office of assessors. 108. Vacancies in the office of assessors in boroughs. 109. Vacancies in the office of assessors in cities of the third class. 110. Names of assessors to be certified to the county commissioners. 111. Oath of assessors. 112. Assessors ,to file their oaths or affirmations with the county commissioners. 113. Compensation of assessors. 113a. Mileage of assessors. 114. Resume of duties of assessors. 115. Duties of assessors — Ward assessors in boroughs to act as a board of assessors. 'For duties of assessors in assessing property for state taxation, see §§ 922-936, infra. ASSESSORS OF PROPERTY FOR COUNTY TAXATION. 91 116. Penalty for neglect of assessors to assess and return taxables. 117. Duties of assessors when false returns are made. 118. Penalty for neglect of duty by assessors. 119. Penalty for not coniplying with precept. 130. Penalty for refusing to serve as assessor. 121. Assessors to take census of taxables septennially (obsolete). § 92. Property assessed for taxation for county pur- poses by the township, borough and ward assessors. Property is not assessed for county taxation by officers specially appointed or elected as county assessors, but by the assessors of the several townships, boroughs and wards, although in cities of the second and third classes there are assessors especially ap- pointed to assess property for state and county taxes. "So far as our researches have informed us, there is not and never has been in Pennsylvania a county assessor by name. The policy of the law has always been to keep the office confined, to small localities with the manifest view of securing an officer who could bring to the discharge of his duties a personal acquaintance with all the properties he was to assess. . . . The Act of 1889 does not in terms provide for the election of a county assessor but of a person 'to act as county assessor.' " 2 § 93. History of legislation relative to assessors. "An officer or tribunal to put an official valuation on property which is called upon to contribute to the public revenue, is a necessary part of the equipment of every municipal body having the power of taxa- tion, and such officer has been known in Pennsylvania from the earliest times as an assessor. The title occurs in the first act of the laws rhade by Governor Fletcher, with the advice and consent of the council and representatives in general assembly at Philadelphia in 1693: The Duke of York's Laws, pp. 221, 222, and it has been in use continuously since that time. "The Act of April 11, 1799, 3 Sm., 393, 4 Dall. Laws, 508, directs that the 'citizens .of every ward, township and district within the city of Philadelphia and the several counties of the state, shall annually . . . elect one citizen to be an assessor for the term of one year, and in 1801 and every third year following two other citizens to be assistant assessors for the term of one year,' the provision for the latter being evidently with reference to the. increased labor and im- portance of the triennial assessment on which the rate for the county levy was to be fixed." 3 "The Act of April 15, 1834, § 81, provided that each township should annually elect an assessor and two assistant assessors: Purd. Dig. 2 Kuhlman v. Smeltz, 171 Pa. "Kuhlman v. Smeltz, 171 Pa. 440 (1895). 440 (1895), per Mitchell, J. 92 TAXATION IN PENNSYLVANIA. 1637, pi. 1. The same act, § 2, requires the commissioners of every county, within six weeks after the general election, every third year, to issue their precept to the assessors of the respective town- ships, wards and districts, requiring them to make out and return within thirty days thereafter, a just and perfect list, in such form as the commissioners should direct, of the names of all the taxable per- sons residing in their townships, wards and districts, respectively, and of all property taxable by law, together with a just valuation of the same: Purd. Dig. 1582, pi. 2. The 4th section of the same act prescribes the duties of assessors and assistant assessors, requiring them, inter alia, to follow the precept "of the commissioners: Purd. Dig. 1583, pi. 5. The Act of February 28, 1835, § 6, repealed so much of the fourth section of the Act of 1834 as required assistant assessors to participate in taking an account of the names and surnames of the taxable 'inhabitants and the personal and real property in their re- spective townships, wards, and districts: Purd. Dig. 1583, pi. 6. "Thus the duties of the assistant assessors were reduced under that section to aiding the assessor in putting a just valuation on the taxable property. "The Act of July, 1839, § 59, made it the duty of assessors to attend at the place of holding every general, special or township election during the whole time said election is kept open, for the purpose of giving information to the inspectors and judge, when called on, in relation to the right of any person assessed by them to vote at such election, or such other matters in relation to the assessment or voters, as said inspectors, or judge or either of them, should from time to time inquire: Purd. Dig. 650, pi. 27. The Act of January 30, 1874, §§ 1, 2, and 3, imposed further duties on the assessors with reference to elections and especially as to registration of voters: P. L,. 1874, pp. 31-33. "Section 15 of said act provided for the election, annually, of an assessor to perform the duties incident to elections as required by the provisions of said act: P. L. 1874, p. 39. The Act of February 13, 1874, § 1, declared such assessors to be assessors only to perform such duties as were required by law of assessors incident to the holding of elections and the registration of voters, and that the office of assessor, for the purpose of valuation, with all the duties incident thereto, should continue and remain as already provided for by law; 'Pro- vided that in townships, boroughs and wards composing but one election district, the assessors *for the purposes of valuation shall be assessors for the holding of elections and the registration of voters:' P. L. 1874, p. 44. • "Act No. 8, of February 14, 1889, authorized the election, triennially, of a properly qualified person for assessor, in every borough and township of the Commonwealth to serve for three years. Section 2, of said act, provided that, 'When any borough has been or shall be divided into wards, or any township has been or shall be divided into election districts, the qualified voters of each of such wards, and ASSESSORS OE PROPERTY EOR COUNTY TAXATION. 93 of each district of such divided township, shall severally elect, at the times aforesaid, a properly qualified person as assessor for said ward or election district who shall serve for three years.' Section 3 of said act provided that assessors elected under said act should 'perform all the duties of assessors under the laws of this Common- wealth, as well those relating to elections, as to the valuation of property, and shall make the triennial assessments in the last year of their term of office:' P. L,. 1889, p. 7. "That act was amended by the Act of May 8, 1889, so as to re- strict its application to boroughs which have been or shall be divided into wards: P. L. 1889, p. 133. "The Act of June 18, 1891, provided that the electors of every election district in boroughs and townships wherein more than one election district is authorized and wherein but one assessor for valu- ation of property resides, shall annually elect a properly qualified person for assistant assessor in each of said election districts, who shall perform all the duties relating to elections now required to be performed by -assessors in boroughs and townships having but one election district: p. L,. 1891, p. 298. ' "From this review of our statutes relating to assessors, it appears, first, that prior to the Act of January 30, 1874, the duties of the office relating to elections were to be performed by the assessor and not by assistant assessors; second, that by the Act of January 30, 1874, the duties required by that act and all other duties of the office relating to elections were taken from the assessor for valuation and imposed upon a new officer; third, that by the Act of February 13, 1874, said new office was abolished in all townships, boroughs and wards com- posing but one election district, and in such single districts its duties were transferred to the assessor for valuation; fourth, that by the Act of February 14, 1889, only one assessor was to be elected for each single borough and township, who should perform all the duties of assessors as well those relating to elections as to the valuation of property; fifth, that by said act, as amended by the Act of May 8, 1889, where a borough is divided into wards, each ward should elect one assessor, who must perform all the duties of the office incident to elections and to the valuation of property; and in this case and in case fourth, the said assessors are to be elected triennially, to serve for three years, but, sixth, under the Act of June 16, 1891, where a township consists .of more than one election district, there each dis- trict should elect an additional officer, called an assistant assessor, who must perform the duties belonging to the office of assessor, so far as they relate to elections; such assistant assessors are to be elected annually."* § 94. Election of assessors in boroughs and townships. The qualified voters of every borough and township in the Com- *Com. ex rel. Mercer County v. Cornelius, 15 Pa. C. C. 73 (1895). , I 94 TAXATION IN PENNSYLVANIA. monwealth of Pennsylvania, shall, on the third Tuesday of Feb- ruary, Anno Domini, one thousand eight hundred and eighty-nine, and triennially thereafter, vote for and elect a properly qualified person for assessor in each of said districts, who shall serve for three years. 5 This act is constitutional. 6 When any borough has been or shall be divided into wards, the qualified voters of each of such wards shall severally elect, at the times aforesaid, a properly qualified person as assessor for said ward. 7 This act is constitutional. 7 * All boroughs and townships now connected in the assessment of county rates and levies shall hereafter be separate and inde- pendent of each other in the assessment of said rates and levies and for school purposes; and the respective townships and bor- oughs so separated shall elect their own assessors and other of- ficers, whose duty it shall be to exercise the same powers and authority as are now exercised by township assessors generally, in the discharge of their duties in relation to the assessment of county rates and levies. 8 In all boroughs which may be divided into more than two wards under said act, the assessors elected for the various wards shall jointly perform the duties required by law of assistant as- sessors in making the triennial assessments in the several wards, and there shall not in any such wards be any assistant assessors elected. 9 § 95. Election of assessors in townships of the first class. In townships of the first class, the following township officers shall be chosen by the qualified voters at the township election on the third Tuesday in February. . . . 3rd. In the year in which the term of office expires of the township assessor who may be in office at the time of its organiza- tion, and in every third year thereafter, a township assessor who 5 Sec. 1, Act of Feb. 14, 1889, P. TaCom. v. Green, 5 Del. Co. 342 L. 7. (1893). "Com. v. qoleman, 9 Pa. C. C. "Sec. 10, Act of May 8, 1855, 90 (1890). P. L. 509. 'Act of May 8, 1889, P. L. 133, "Sec. 2, Act of May 10, 1878, amending § 2, Act of Feb. 14, P. L,. 51. 1889, P. L- 7. ASSESSORS OF PROPERTY FOR COUNTY TAXATION. 95 shall hold office for the term of three years, as provided by ex- isting laws. 10 § 96. Election of assistant assessors in townships of the first class — How triennial assessments shall be made. In every year in which takes place the triennial assessment of property for taxation, the qualified voters in each township of the first class shall elect, at the township election, two citizens resident in said township, to be assistant assessors; and the tri- ennial assessment of property for taxation, provided for by ex- isting laws, shall be made in each township of the first class by the township assessor and the said assistant assessors, subject to correction by the county commissioners, and to appeal by the taxable persons in accordance with existing laws : Provided, how- «ver, that for the triennial assessment which is to take place in the year of our Lord one thousand nine hundred and three, two such assistant assessors shall be appointed by the board of town- ship commissioners of each township of the first class. 11 § 97. Duties of assistant assessors in townships of the first class. The duties of the assistant assessors provided for in this act shall extend only to the valuation of property for tax- ation, and nothing in this act shall be construed to supply or affect the provision of any statute providing for the election of assistant assessors for making the registry list of voters, or the performance of other duties relating to elections. 12 § 98. Compensation of assessors and assistant as- sessors in townships of the first class. The assessors and assistant assessors in townships of the first class shall each re- ceive as compensation for his services five dollars per diem, for each day actually employed in the duties of his office, to be computed and paid as provided by existing laws with reference to the compensation of assessors. 13 The township assessor shall receive as compensation for his services five dollars per diem for each day actually employed in the intervening years between the years the triennial assessment is made. 14 "Sec. 4, Act of April 29, 1899, ^Sec. 3, Act of April 23, 1903, P. L,. 104. P- L- 284. "Sec. 1, Act of April 23, 1903, "Sec. 2, Act of April 20, 1905, P. L. 284. P- L- 236. ^Sec. 2, Act of April 23', 1903, P. L. 284. 96 TAXATION IN PENNSYLVANIA. The assessors of townships of the first class be furnished by the county commissioners all books, blank forms and papers four months prior to day appointed for appeal. 15 § 99. Election of assessors in cities of the third class. The qualified voters of each ward in cities of the third class, shall on the third Tuesday of February, Anno Domini one thousand eight hundred and ninety and triennially thereafter, vote for and elect a properly qualified person, according to law, to act as county assessor in each of such wards, under existing laws, who shall serve for three years and shall make the triennial assessment the second year of his term of office. 16 The above act does not establish a new office of county as- sessor, nor provide fo*r the election of a new officer of that name, but leaves the duty of making the assessment for county purposes in the same hands where it was before, merely lengthening the term of the assessor to three years, and it does not interfere in any other way with the Act of April 5, 1867, providing for the election in the city of Lancaster of "one person as assessor for state, county and city purposes." 17 As the Act of May 23, 1889, P. L. 277, relating to cities of the third class, provides for no officer charged with the duty of col- lecting county taxes, cities of the third class incorporated under the provisions of said act, or accepting its provisions, elect as- sessors to assess county taxes under the provisions of said Act of May 9, 1889. § 100. Boards for the assessment and revision of taxes in counties having not less than three hundred thousand and not more than one million inhabitants. In counties of this Commonwealth, containing a population of not less than three hundred thousand nor more than one million, as shown by the last preceding United States census,' all assessments and valuatibns of property, whether real or personal, taxable for state and county purposes, including occupations, shall be made by a board consisting of three persons, to be designated as the board for the assessment and revision of taxes. The members of the said board shall be appointed by the court of common I5 Sec. 1, Act of April 20, 1905, "Kuhlman v. Smeltz, 171 Pa P. L. 236. 440 (1895). 10 Sec. 1, Act of May 9, 1889, P. L. 139. ASSESSORS OF PROPERTY FOR COUNTY TAXATION. 97 pleas of the proper county, or, if there be more than one court, then by the several courts of common pleas of such county, and shall hold their offices for the term of three years; and the said court or courts shall fill all vacancies occurring from time to 'time in said board. The said board shall designate one of its members as president of the board, and each member of said board shall receive a salary of four thousand dollars per an- num. 18 The members of the boards for the assessment and revision of taxes in said counties are not county officers, and hence the foregoing act is not unconstitutional as in contravention of § 2, article XIV, of the Constitution, providing that all county officers shall be elected. The provision in § 21 of article V of the Constitution that judges shall be exempt from all non-judicial duties applies to judges of the Supreme Court only. 19 § 101. Boards to divide such counties into districts and appoint subordinate assessors. The said board shall divide the county into convenient districts, and shall appoint one sub- ordinate assessor for each of said districts. The said subordinate assessors shall make assessments and valuations of all property taxable for state and county purposes, together with a list of all persons taxable upon occupations, in their respective districts, and shall, on or before the first Monday of November of the year preceding the next triennial assessment in such counties, file the same with the said board for the assessment and revision of taxes; and thereupon the said board shall examine and revise the said valuations, increasing or decreasing the same, as in their judgment may seem to be proper, or adding thereto such prop- erty or subjects of taxation as may have been omitted; and after such revision the said board shall, by rule, fix convenient times for the hearing of all appeals from the said assessments of valuations ; and after the hearing of said appeals, and after mak- ing whatever changes may be considered proper, the valuations, as so ascertained and revised, shall stand as the valuations for the assessments of all county and state taxes until the next triennial assessment, and shall be made every three years thereafter. With power, however, in the assessors to revise the said as- sessments, according to right and equity, between the triennial "Sec, 1, Act March 24, 1905, P. 10 Com. v. Collier, 213 Pa. 138 L. 47. (1905). 7 98 TAXATION IN PENNSYLVANIA. assessments, by adding thereto new, increased or omitted sub- jects of taxation, and the revising of valuations if it is proper to do so; and, upon request by any taxpayer, he shall at any time receive from the board a statement of his taxable property and its valuation. . . - 20 § 102. Offices of ward, borough and township assessor abolished in said counties. When the said valuations, are made, all taxation for county and state purposes, within the limits of the county, shall be based upon such valuation; and the office of ward, borough or township assessor or assessors, as now existing in counties coming under the provisions of this act, is hereby, abolished, in so far as respects the assessment and valuation of property and occupations taxable for state and county purposes. 21 § 103. Compensation of subordinate assessors in said counties — When assessments for state taxes to be com- pleted. . . . The subordinate assessors provided for in this act, shall receive the sum of three dollars per day for the time actually occupied in the discharge of their duties. The board shall have the right to appoint such clerks as the salary board may al- low for the proper discharge of the duties of said board, and all salaries and expenses shall be paid out of the county treasury. In so far as respects state taxes, the valuations and assess- ments shall be made by the board annually on or before Decem- ber thirty-first. 22 § 104. Assessors of state and county taxes in cities of the second class and cities belonging to neither the first, second nor third classes. Section 4, of the Act of April 11, 1799, 3 Sm. L. 392, provided for the annual election in "every ward, township and district within the city of Philadelphia" and "in the several counties of this state" of an assessor to assess county rates and levies, to' serve for the term of one year, and thereafter on each triennial year for the election of two as- sistant assessors. « The provisions of this act, so far as they relate to township assessors, were superseded by the provisions of the Act of ""Sec. 2, Act of March 24, 1905, 22 Sec. 2, Act of March 24, 1905, P. h- 47. P. I,. 47. J1 Sec. 3, Act of March 24, 1905, P. X. 47. ASSESSORS OF PROPERTY FOR COUNTY TAXATION. 99 April IS, 1834, P. L,. 552, which in turn were superseded by the provisions of the Act of February 14, 1889, P. L. 7. The election of assessors in boroughs was provided for by the general bor- ough Act of April 3, 1851, P. L. 325, and later by the Act of February 14, 1889. The election of assessors in townships of the first class was provided for by the Act of April 29, 1899, P. L. 104, and in cities of the third class by the Act of May 9, 1899, P. L. 139. The appointment of assessors in counties having not less than 300,000 nor more than 1,000,000 inhabitants is pro- vided for by the Act of March 24, 1905, P. L. 107, and as- sessors appointed in cities of the first class under the provisions of the Act of April 12, 1873, P. L. 715. This leaves the provi- sions of the Act of 1799* superseded as to townships and bor- oughs, cities of the first and third classes, and all cities of the second class located in counties having not less than 300,000 nor more than 1,000,000 inhabitants. It follows, therefore, that in cities of the second class, not located in counties as aforesaid, and in cities which do riot be- long to the first, second nor third classes (unless otherwise pro- vided by the special acts incorporating the same), assessors for the assessment of county rates and levies are elected under the provisions of the Act of April 11, 1799, 3 Sm. L. 392, § 4 of which reads as follows: "The citizens of every ward, township and district within the city of Philadelphia and the several counties of this state, shall, on the same day and at the same time and place and under the same regula- tions as inspectors for the general elections are directed to be chosen, annually elect one citizen residing within such ward, township or dis- trict to be an assessor for the term of one year; and in the year one thousand eight hundred and one and every third year following two other citizens to be assistant assessors for the term of one year, to do and perform the several duties enjoined and required of them by this act; and the constable holding such election shall make a return thereof, signed by the judges within ten days, to the commissioners of their proper county, or either of them, who shall file the same in their office; and if any constable shall neglect to make such return, he shall forfeit and pay the sum of five dollars for every such neg- lect." It would seem, therefore, that while the office of assistant as- sessor has been abolished by law (n all boroughs and in all town- ships except those of the first class, it still exists in cities of the second class. 100 TAXATION IN PENNSYLVANIA. § 105. Assessors of state and county taxes in cities of the first class. 23 § 106. Assistant assessors. The qualified voters of every election district in boroughs and townships in the Commonwealth of Pennsylvania wherein more than one electidn district is au- thorized, and where but one assessor for valuation of taxable property resides in the borough or township having more than one election district, shall on the third Tuesday of February, Anno Domini one thousand eight hundred and ninety-two, and annually thereafter, elect a properly qualified person for as- sistant assessor in each of said election districts, who shall per- form all the duties relating to elections now required to be performed by assessors in boroughs and townships having but one election district. In case of a vacancy in said office the court of quarter ses- sions, or any judge of the said court, of the same county, shall appoint a person to fill such vacancy. 24 All prior legislation relative to assistant assessors was repealed by the Act of February 14, 1889, and 'such officers no longer ex- ist in Pennsylvania, except as follows: in boroughs and town- ships forming more than one election district, as provided by the foregoing act, in which case their duties are confined wholly to services relating to elections ; in townships of the first class, as provided by the Act of April 23, 1903; and in certain cities of the second class and other classes. 25 § 107. Vacancies in the office of assessor. Whenever an assessor refuses or neglects to qualify as required by law, or re- fuses or neglects to receive the precept and books for the trir ennial or other assessment, the commissioners are hereby au- thorized to appoint a suitable person to serve as assessor on the eighth day after the time designated by law to begin the assess- ment. 26 If the electors of any township shall fail to choose an as- sessor or assistant assessor at the time appointed by law, or if any person elected to such office shall neglect or refuse to serve therein or if any vacancies shall happen therein by death or ""See § 495. 614 (1892); Assistant Assessors '"Act of June 16, 1891, P. L. Cases, 1 & 2, 3 D. R. 252-54 298. (1894). See § 104. "'Assessors' Case, 1 D. R. 195, "Act of May 5, 1897, P. L,. 39. ASSESSORS OF PROPERTY FOR COUNTY TAXA^i^ otherwise, the commissioners of the county shall appoint a fit pe'rson to fill the office, who shall have the same powers, be sub- ject to the same penalties and receive the same compensation, as if he had been elected in manner aforesaid. 27 Whenever the commissioners of any county shall, under ex- isting laws, appoint a person to fill the office of assessor, such person shall serve until the next election for assessors as pro- vided by this act. 28 The provisions of this act are constitutional. 2 ® The commissioners may not appoint an assessor until they have tendered the precept to the assessor who has been elected. 30 Where, on the trial of a contested election for the office of assessor, the court of quarter sessions finds that there is a va- cancy, the commissioners appoint. The court may not order a new election. 31 § 108. Vacancies in the office of assessor in boroughs. Upon the petition of the councils of any borough heretofore in- corporated or hereafter to be incorporated within this Common- wealth to the court of quarter sessions of the proper county, representing that any vacancy or vacancies in their own body or in any 'other borough offices exists, said court shall have the right and authority to fill such vacancy Jby appointment, said ap- pointees to hold office until the succeeding municipal election: provided, that this act shall not be construed to change the manner of filling any such vacancy in any borough where such authority now exists'by general or special law. 32 It was held in one case that constables, auditors and assessors were not borough officers within the meaning of said act, 33 but in a later case it was held that they were. 34 § 109. Vacancies in the office of assessor in cities of the third class. Should any vacancy occur in either of said offices from^ death, removal, resignation or otherwise, the same shall be filled by the county commissioners of the county in which "Sec. 87, Act of April 15, 1834, sl Street v. Com., 6 W. & S. 209 P. L. 553. - (1843). '"Sec. 4, Act of Feb. 14, 1889, a2 Act March 24, 1877, P. L. 36. p L . 7 . ^Jayne v. Smith, 9 Pa. C. C. ""Com. v. Coleman, 9 Pa. C. C. 494 (1882). 90 (1890). ""Williamstown Borough Audi- S0 Com. v. Gregory, 6 Luz. L. tor, 4 D. R. 125 (1894). Reg. 127 (1869). 102 TAXATION IN PENNSYLVANIA. such city shall be situate, and the person so appointed shall serve until the election for assessor, as provided by this act. 35 § 110. Names of assessors to be certified to county commissioners. The clerk of tha court of quarter sessions of every county within this Commonwealth shall, within fifteen days after the township elections, in each year, are returned in to his office, [to] make out, certify and deliver, under his hand and seal of office, to the commissioners of the proper county, a list of the names of^he persons elected to the offices of assessor and assistant assessors, and the names of the wards, townships, incorporated districts and boroughs, within their respective counties, for which they were respectively elected, and shall be allowed therefor the usual fees for equal or similar services, to be paid out of the county treasury. 36 § 111. Oath of assessors. The assessors of the several wards, townships and districts within this Commonwealth shall immediately on the receipt of the precept from the county com- missioners, according to the second section of an act entitled "An act relating to county rates and levies, and township rates and levies," passed the fifteenth day of April one thousand eight hundred and thirty-four, and before entering upon the duties of their office, take and subscribe the following oath or affirmation: You do (swear or affirm) that you will support the Constitu- tion of the United States and the Constitution of Penn- sylvania, that you will, as assessor for <(ward, dis- trict or township), use your utmost diligence and ability to dis- cover and ascertain all the property, real and personal, within your (ward, district or township), and all other objects subject- to taxation by the' laws of this Commonwealth, and take an ac- curate account of the same, and that you will justly and hon- estly to the best of your judgment, assess and value every sep- arate lot, piece or tract of land with the improvements thereon, and all personal property made taxable by the laws of this Com- monwealth within your (ward, district or township) at the rate or price which you shall, after due examination and consideration, believe the same would sell for if sold singly and separately at a bona fide sale, after full public notice ; and that you will rate all offices and posts of profit, trades and occupations, at what you 8B Sec. 2, Act May 9, 1889, P. L. M Sec. 9, Act of June 13, 1840, 139. P. L. 686. ASSESSORS OF PROPERTY ]?OR COUNTY TAXATION. 103 believe to be the actual yearly income arising therefrom, and that you will perform your duty as assessor of said (ward, district or township) with honesty and fidelity, according to the laws of this Commonwealth, without fear, favor or affection, hatred, malice or ill will. 37 § 112. Assessors to file their oaths or affirmations with county commissioners. It shall be the duty of each assessor and assistant assessor to produce to the commissioners of the county within twenty days after his election or appointment, a copy of the oath or affirmation taken and subscribed by him as is hereinbefore directed, and attested by the person- before whom the same was administered, which shall be filed by the com- missioners- in their office* 38 § 113. Compensation of assessors. It shall be the duty of .each assessor and assistant assessor to keep an account of the several days by him actually employed in the performance of his duties, and to make return of the same to the commissioners of the county, verified by his oath or affirmation, and for each day necessarily so employed he shall receive the sUm of two dollars and fifty cents. 39 The jluties of assessors begin when they receive their precept to assess, and end on the return of the assessment within sixty days thereafter. An assessor can claim no compensation for the performance of any other service nor for anything done by him at any time by way of preparing himself for the performance of the duties of his office, nor for employment in the performance of the latter any number of days in excess of that allowed therefor. By sixty days is meant sixty days of twenty- four hours each. There is no authority of law for allowing an as- sessor extra pay for the excess over so many hours employed by him in the work of making the assessment. 40 For compensation of assessors in townships of the first class, see § 98, supra. § 113a. Mileage of assessors. Whenever any assessor or "Sec. 1, Act May 15, 1841, P. amending the act of May 24th, L. 393, and § 9, Act July 27, 1842, 1887, P. L. 195, which amended § P. L- 441- 89 of the Act of April 15, 1834, M Act of April 15, 1834, § 88, P. P. L. 511. L # 553. "Marquette v. Berks County, 3 "Act of May 25, 1907, P. L. 232, Pa. Super. Ct. 36 (1896). 104 TAXATION IN PENNSYLVANIA. • assistant assessor 41 whose duties pertain to making assessments for purposes of state and county taxation, or either, shall be re- quired to travel to the county seat of his county, or to any place of sitting of the county commissioners elsewhere than at the county seat, he shall receive from the county mileage at the rate of three cents a mile for each mile necessarily traveled, both go- ing and returning, in addition to the per diem compensation for services allowed by law. 42 § 114. Resume of duties of assessors. "We remark, however, that the whole system of taxation in Penn- sylvania is free from serious complication; and further that the working of it when properly understood, is perfectly simple. Statutory pro- vision has been made to meet almost every contingency. To begin with the triennial assessments: The proper precepts are to be issued by the county commissioners to the several assessors, as directed by the 6th section of the Act of May 15, 1841, P. L. 395. Prior to 1834 and also under the 3rd and 6th sections of the act of that year, entitled 'An act relating to county rates and levies and township rates and levies,' P. L. 511, it was the province of the assessors to fix a uniform standard of value of objects and things made taxable bjr law; but in 1841, Act of 15th of May, P. L. 394, the Legislature wisely transferred this duty from the assessors to the county commissioners, repealing at the same time outright the 3rd and 6th sections of the* Act of April 15, 1834, supra; as also 'all laws of this Commonwealth which require the assessors of the several townships, wards and districts to fix a uniform standard of value of objects made taxable by law.' The whole and only remaining duties connected with the original making of the assessments, to be discharged by the assessors, were to assess, rate, value and return all objects of taxation, whether for state, county, city, district, ward, township or borough purposes, accord- ing to their actual value, and at such rates and prices for which they would separately and bona fide sell. The county commissioners then, having carefully examined the assessments, and valuations, were au- thorized to raise or reduce them, as they might think proper. "The undoubted purpose of this change was to secure, as far as possible, uniformity and fairness in taxation. Again, in order that all taxable property might be reached and subjected to its due propor- tion of the public burdens, the assessors were jequired, under the provisions of the 5th section of the Act of May 15, 1841, P. L,. 394, in case they had reason to believe that any person or persons, or cor- poration, had not fully disclosed their trade, profession, occupation, or any article made taxable by law, to return what they believed the same to be, and also the full value of it. Still later in' furtherance of the same purpose, the Act of April 22, 1846, P. L. 486, made it the 41 See § 106. "Act of April 23, 1909, P. L,- 146. ASSESSORS OF PROPERTY FOR COUNTY TAXATION. 105 duty of the assessors to require every person, firm, partnership, com- pany or corporate body, respectively, - to make and deliver to the assessors a written or printed statement of all their property subject to taxation. These statements are to be returned to the county com- missioners: besides, each assessor is required to return, in a separate list, all property within his township, ward or district, exempt by law from taxation-: Act of April 5, 1849, P. L. 962. Such is the mode of ascertaining and reaching the ordinary taxable property in this Com- monwealth."" § 115.* Duties of assessors — Ward assessors in bor- oughs to act as a board of assessors. The assessors elected pursuant to the provisions of this act shall perform all the duties of assessors under the laws of this Commonwealth, as well those related to elections, as to'the valuation of property: Provided, that in making the valuation of property the assessors of all the wards shall act as a board of assessors and such board of as- sessors shall make the assessments of all the subjects of taxation in the borough, for borough, school, district and county purposes, and return thereof shall be made to the county commissioners, as now provided by law, subject to revision by the county com- missioners as now provided by law. 44 A bill in equity attacking the legality of a tax assessment in a borough on the ground that the valuations had not been fixed by the assessors acting together as a board, is' properly dismissed where the court finds as a fact that, although the assessors each made a separate assessment, they subsequently meto as a body and made a final assessment. 45 . . . From and after the passage of this act it shall be the duty of the several assessors and assistant assessors 46 to assess, rate and value all objects of taxation, whether for state, county, city, district, ward, township or borough purposes, according to the actual value thereof, and at such rates and prices for which the same would, separately, bona fide sell. . . .' 7 While assessors are required to assess property at jts actual value, yet, if they fail to do so generally, and a particular prop- erty is assessed at its real market value, the court of common "Del. & Hud. Canal Co. v. "Clark v. Burschell, 220 Pa. 435 Blakely Township School. Direc- (1908). fors, 11 Phila. 587, 590 (1876). • "The office of assistant asses- "Act of July 9, 1901, P. L. 613, sor has been abolished. See § amending § 2, Act of May 8, 106. 1889, P. L- 133, which amended "Sec. 4, Act of May 15, 1841, P. § 3, Act of Feb. 14, 1889, P. L. 7. L. 393. 106 TAXATION IN PENNSYLVANIA. pleas may reduce such assessment so as to equalize the same with the assessments on other real estate in the same county. 48 • § 116. Penalty for neglect of assessors to assess and return taxables. If any assessor shall intentionally neglect or refuse to assess any citizen of this Commonwealth, who is or shall be subject to assessment by law, or shall in like manner neglect or refuse to return the name of any person so assessed to the commissioners of the proper county, or intentionally neg- lect or refuse to perform any other duty enjoined on him by the provisions of this act, he shall, on conviction thereof, be fined in any sum not less than fifty dollars nor more than two hundred dollars. 49 §•117. Duties of assessors when false returns are made. If the several assessors of this Commonwealth, in the discharge of their respective duties, shall have reason to believe any per- son or persons or corporation shall have rendered a false return of his, her or their property, trade, profession, occupation, or any article made taxable by law, or shall not make a full disclosure of the same, the said assessors shall return what they shall believe to be the full value and amount thereof to the commissioners of the proper county, and if the person or persons or corporation thus assessed shall feel aggrieved, an appeal may be had, accord- ing to the existing law, from such assessment, and it shall be lawful for the county commissioners to administer an oath or affirmation to the person or persons or corporation taking such appeal, touching the value and amount of their property, trade, occupation or profession or any article made taxable, and if they deem an abatement proper the same shall be made; but the said commissioners may if they see proper, receive other evidence. 50 § 118. Penalty for neglect of duty by assessors. If any assessor shall refuse or neglect to assess and return to the commissioners of the county, any person whom he knows to be liable to assessment, such assessor being thereof convicted in the court of quarter sessions of the same county shall be fined in any sum not less than twenty dollars, nor more than fifty dollars, at the discretion of the court, besides the cost of prosecution for the use of the county in which the party aggrieved resides. 51 "Garver's Tax Assessment, 34 M Sec. 5, Act of 1841, May 15, Pa. C. C. 138 (1907). See § 149. P. L. 393. "Sec. 108, Act July 2, 1839, P. L. "Sec. 23, Act of April 15, 1834, 519. P. L. 509. ASSESSORS OF PROPERTY FOR - COUNTY TAXATION. 107 If any assessor or assistant assessor shall knowingly and in- tentionally omit, neglect or refuse to assess and return any prop- erty, person or thing made taxable by law or shall knowingly and intentionally assess, rate or value the same at more or less than he shall know and believe the just cash value or rate thereof or neglect or refuse to assess any tax required by law, he shall be guilty of a misdemeanor in office, and on conviction thereof, be subject to imprisonment, not less than three nor more than twelve months, and fined in a sum not less than one hundred nor more than two hundred dollars. 52 / § 119. Penalty for not complying with precept. If any assessor or assistant assessor who shall have taken upon himself the duties of such office, Shall neglect or refuse to comply with any order or warrant issued to him by the commissioners of the same county in conformity with law, or shall not perform the duties enjoined upon him by law, he shall forfeit any sum not exceeding forty dollars, to be recovered by the county as debts of a like amount are recoverable. 53 § 120. Penalty for refusing to serve as assessor. . . . If any assessor shall refuse to serve he shall forfeit and pay the sum of twenty dollars, to be recovered before a justice of the peace or alderman, at the suit of the commissioners, as debts of similar amount are now recoverable : Provided, that no person who shall have served as collector or assessor shall be appointed or chosen for a second term without his consent for the term of ten years. 54 § 121. Assessors to take census of taxables septen- nially (obsolete). The Act of January 6, 1821, 7 Sm. L. 341, and the supplements thereto of March 26, 1821, 7 §m. L. 393, and March 31, 1836, P. L. 328, provided that the commissioners of the several counties should in every seventh year require the • township, ward and district assessors to take a census of all taxable persons, the returns of which census were to be trans- mitted to the Governor. This act was evidently passed to carry out the provisions of article 1, § 4, of the Constitution of 1790, requiring an enumer- B Sec. 3, Act of May 15, 1841, "Sec. 2, Act of Feb. 28, 1835, P. P. L. 393. L- 45. B Sec. 24, Act of April 15, 1834, P. L. 509. 108 TAXATION IN PENNSYLVANIA. ation of taxable inhabitants to be made every seventh year, whereon to base representation in the Legislature. The said sec- tion as amended in 1857 omits this provision, so that the said Act of 1821 has probably been a dead letter since that date, though it continues to be published in the digests of the laws. CHAPTER VI. TRIENNIAL AND ANNUAI, ASSESSMENTS. § 122. When assessments are made. , 123. County commissioners to annually estimate probable county expenses. 124. Issue of precept for the making of assessment. 125. Assessment of real estate omitted at triennial assessment. 126. County commissioners to publish data relative to assessments. 127. Assessors' returns to be open to inspection. 127a. Assessors to notify taxables of the amount of their assess- ments, the tax rate' and the time and place of appeal. 128. County commissioners to advertise time and place of appeal. 129. Revision of assessments. 130. Property to be assessed at the actual value — County commis- sioners to revise assessments — Tax rate to be uniform throughout county. 131. Board of revision of taxes. 132. Prothonotary or associate judge may administer oath. 133. Failure of members of board to take oath not to invalidate or hinder the collection of taxes. 134. Powers and duties of the board of revision of taxes. 134a. When board may act — Taxables to be notified of increases of assessments. 135. Assessors to attend at appeals. 136. After the hearing of appeals assessments to be corrected. 137. Appeals may be heard subsequently. 138. Appeals from assessments in counties having not less than three hundred thousand and not more than one million in- habitants. 139. Increases of assessments in said counties between triennial years. 140. Proceedings after revision of returns by board of revision. 141. Transcripts of assessments to be sent assessors. 142. Fixing of rates for county taxes. 143. Assessments in years between the triennial assessments. 144. When notice of assessments shall be given in years* other than triennial years. 145. Appeals in years other than triennial years. 146. How assessments between triennial assessments are made. § 122. When assessments are made. County taxes are levied in Pennsylvania on the basis of assessments made tri- 110 TAXATION IN PENNSYLVANIA. ennially, supplemented, between the periods of such assessments, by assessments of persons and property becoming taxable since the last preceding triennial assessment and by reassessments of property which has increased or deteriorated in value since such assessments, as will appear from the following sections. § 123. County commissioners to annually estimate probable county expenses. The commissioners of every county shall, *at the first meeting after the general election in every year, proceed to make an estimate of the propable ex- penses of the county for the ensuing year. 1 § 124. Issue of precept for the making of assessments. The commissioners of the several counties of this Commonwealth shall issue their precepts to make the triennial assessment of property to the assessors of their respective townships, bor- oughs, wards and districts on or before the second Monday of September, and the said assessors are hereby required to com- plete the said assessment and make their return thereof not later than the thirty-first day of December, Anno Domini one thou- sand eight hundred and ninety-seven, and triennially thereafter: Provided, that the commissioners of the several counties of the Commonwealth may, at the time of issuing their precepts as aforesaid, direct the return thereof to be made at any time be- fore the said thirty-first day of December. 2 The foregoing act fixes a uniform date for making the tri- ennial assessments in all counties, and hence repeals all local acts fixing a different date. 3 § 125. Assessments of real estate omitted at triennial assessment. Whenever any taxable real estate shall be omitted to be assessed at the triennial assessment, the assessor, on notice thereof, shall forthwith assess and return the same to the proper office, which assessment shall be subject to appeal, and shall con- tinue until the next triennial assessment, and its proper propor- tion of all taxes to which such real estate is liable levied after such assessment shall be laid thereon. 4 § 126. County commissioners to publish data relative to assessments. The county commissioners of the several ^ec. 1, Act of April 15, 1834, sessments, 20 Pa. C. C. 85 (1897) ; P. L. 509. 6 D. R. 678. Op. Dep. Atty. Gen. 2 Act of April 20, 1897, P. L. "Sec. 1, Act of April 28, 1868, P. 28. " h- 105. 'Clinton County Triennial As- TRIENNIAL AND ANNUAL ASSESSMENTS. Ill counties shall, as soon as the assessors of the several wards, dis- tricts and townships in their respective counties shall have made their returns, according to the sixth section of the act, entitled ■"An Act to establish a uniform mode for the valuation of prop- erty and assessment of taxes," passed the fifteenth of May, 1841, make out and publish in not less than two newspapers for two weeks, or if there be no newspaper published in the county, hy handbills posted up in each ward, district or township, at the place of holding township, ward or district elections, a statement in such form as will show the aggregate value and assessments made by each assessor in the county, upon property taxable by law, for county purposes, upon mortgages, moneys at interest, debts due from solvent debtors, stocks, loans and investments in corporations of other states, upon household furniture, and upon watches according to the second section of the act, entitled "An act to create additional revenue to be applied towards the pay- ment of interest and the extinguishment of the debt of the Com- monwealth," passed the eleventh day of June, 1840, according to any laws that may hereafter be passed relating to similar ob- jects of taxation, upon all salaries and emoluments of office, and all persons, trades, occupations and professions, according to the ninth section of the act, entitled "An act to provide revenue to meet the demands on the treasury and for other purposes," passed the fifth May, 1841, or ao'cording to any laws that may hereafter be passed relating to similar objects of taxation, and will also show the whole amount of taxes assessed on each ward, district and township in the county, and at the time and in the manner herein provided for publishing said statements the county commissioners shall also give public notice of a day not later than thirty days from the time of publishing, by them ap- pointed, for finally determining whether any of the valuation of the assessors have been made below a just rate, according to the meaning and intention of this act. 5 . . . And provided further, that any neglect or refusal' heretofore or hereafter, of the county commissioners or board of revision to make and publish a statement of the aggregate val- 5 Sec. 11, Act of July 27, 1842, subject to county taxation and T. L. 441. It is unnecessary to some not subject to any taxation say that many of the objects whatsoever, above enumerated are no longer 112 TAXATION IN PENNSYLVANIA. uation and assessment made by each assessor, as required by the eleventh section of the said act of twenty-seventh day of July, one thousand eight hundred and forty-two, shall not invalidate or hinder the collection of any tax imposed by any law of this Com- monwealth. 6 If the board of revision makes no publication as required by law of the aggregate values and assessments made by the as- sessors, and gives no public notice of the time of hearing, but simply calls in the assessors and examines them, and it appears that a number of the assessors did not attend, and it appears also that the results reached by the board were practically the same as the results reached by the assessors, and that there were many cases of injustice and inequality, mandamus will lie against the members of the board of revision to compel them to perform their duties in the manner provided by law. 7 § 127. Assessors' returns to be open to inspection. From the time of publishing the returns of the assessors, accord- ing to the third [11th] section of this act, until the day appointed for finally determining whether any valuation of the assessors have been made too low, any taxable inhabitant of the county- shall have the right to examine the said return in the commission- ers' office. 8 § 127a. Assessors to notify taxables of the amounts of their assessments, the tax rate and the time and place of appeal. It shall be the duty of the several assessors on re- ceiving such transcript from the county commissioners to give written or printed notice at least five days before the day of ap- peal to every taxable inhabitant within the respective ward, town- ship or district of the amount or sum for which he stands rated, and the rate per cent, of such amount, and of the time and place of such appeal. 9 § 128. County commissioners to advertise time and place of appeal. It shall also be the duty of the commissioners of the respective counties to give notice by advertisement in one or more newspapers printed in or nearest to the seat of justice of "Act of April 27, 1909, P. L. "Sec. 12, Act of July 27, 1842 r 244. P. L. 441. 7 Com. v. Hanna, 33 Pa. C. C. "Sec. 9, Act of April 15, 1834, 498 (1907). • P. L,. 509. TRIENNIAL AND ANNUAL ASSESSMENTS. - 113 the proper county, at least three weeks before the day of appeal, of the time and place fixed for such appeal. 10 ,§ 129. Revision of assessments. Prior to the passage of the Act of May 15, 1841, P. L. 393, it was the duty of the as- sessors, in conjunction with the county commissioners, ."to fix upon some uniform standard to ascertain the real value of all property made taxable by law, taking into consideration improve- ments, proximity to market and other advantages of situation, so that the same relative valuation may be observed in every ward, township and district," 11 and, after their assessments were completed, the assessors were to assemble "at the office of the commissioners of the respective county, on a day to be appointed by the commissioners, to "make returns of their several, assess- ments, when it shall be the duty of the assessors to point out er- rors or deviations in each other's, returns from the standard pre- viously determined upon, and if such errors or deviations shall be established the commissioners shall correct the returns accord- ingly." 12 The commissioners then proceeded "to assess the proportion of every ward, township and district according to the adjusted valu- ation of the taxable property, and other subjects of taxation, in such ward, township and district." 13 It therefore appears that the county commissioners had no power to revise the returns made by the assessors, except as er- rors or deviations from the standard previously determined upon were pointed out. 14 This system was changed by the fourth section of the Act of May IS, 1841, P. L. 393, which is given in the next section. 130. Property to be assessed at its actual value — County commissioners to revise assessments — Tax rate to be uniform throughout county. The third and sixth sec- tions of the act entitled "An act relating to county rates and levies, and township rates and levies," passed the fifteenth day of ^Sec. 10, Act of April 15, 1834, "Under the provisions of the P. L,. 509. Act of April 11, 1799, 4 Sm. Laws u Sec. 3, Act of April 15, 1834, 508, the return made by the as- P. L. 509. sessors was binding on the county "Sec. 5, Act" of April 15, 1834, commissioners, and the commis- P. L,. 509. sioners could not revise or alter 13 Sec. 6, Act of April 15, 1834, the same. Respublica v. Deaves, P. L. 509. 3 Yates 465 (1803). 8 114 TAXATION IN PENNSYLVANIA. April, 1834, and all the laws of this Commonwealth which re- quire the assessors of the several townships, wards and districts to fix a uniform standard of value of objects made taxable ty law, be and the same are hereby repealed, and from and after the passage of this act it shall be the duty of the several asses- sors ... to assess, rate and value all objects of taxation, whether for state, county, city, district, ward, township or bor- ough purposes, according to the actual value thereof, and at such rates and prices for which the same would separately bona fide sell, and on the return of such assessment or valuation into the- office of the county commissioners, after the same shall have been carefully examined and corrected, it shall be lawful for said commissioners, if they believe any property or thing made taxable has been assessed and valued above its actual value, to reduce the same thereto: Provided, that in no case the said commissioners shall impose a different rate per centum on different townships in their county, but the same shall be equal throughout, and all • rates shall be levied on the assessments as returned and cor- rected. 15 § 131. Board of revision of taxes. The power of revision conferred on the county commissioners by the foregoing Act of May 15, 1841, was, by the Act of July 27, 1842, P. L. 445, con- ferred upon a new body known as the "Board of Revision," which consisted of the county commissioners and the associate judges of the several counties. By the Act of April 29, 1844, § 41, P. L,. 501, associate judges were relieved from connection with the board, so that the membership of the board of county commis- sioners and that of the board of revision of taxes is identical, but the duties of the two boards, in the matter of taxation, are distinct. The said Act of July 27, 1842, P. 'L. 445, is as follows : The county commissioners . . . shall compose a board to be called a "Board of Revision," of which the county commis- sioner holding the oldest certificate of election shall be the presi- dent. The members of said board shall make and subscribe an oath or affirmation, before the president of the court of common pleas of the county, in the following words, to-wit : I . . .do swear or affirm that I will faithfully, and to the best of my knowl- edge and judgment revise, correct and equalize the valuation of 1B Sec. 4, Act of May 15, 1841, P. L,. 393. TRIENNIAL AND ANNUAL ASSESSMENTS. 115 all property taxable by law . . . in . . . county, . . . and faithfully perform all the duties of a member of the board of revision for . . . county, according to the laws of this Commonwealth, which oath shall be deposited in the office of the recorder of the county. 16 § 132. Prothonotary or associate judge may adminis- ter o'ath 1 . Hereafter it shall and may be lawful for the several prothonotaries of the courts of common pleas of this Common- wealth, or any of the associate judges thereof, to administer to the board of revision the oath of office now required by law to be taken before the presidents of the said courts of common pleas. 17 § 133. Failure of members of board to take oath not to invalidate or hinder the collection of state taxes. The refusal or neglect of any or all the members of county boards of revision to be sworn or affirmed, or to discharge the duties of such board, shall not be construed so as to invalidate or hinder the collection of state taxes imposed by this or any other act. 18 And where a board of revision has actually sat as a board of revision de facto, and performed their duties, it is immaterial whether an oath was taken or not. 19 § 134. Powers and duties of the board of revision of taxes. The board of revision in each county shall, on receiving the returns of the assessors, proceed to examine and inquire whether the same have been made in conformity with the laws of this Commonwealth, and whether all property to be valued for taxation for state and county purposes has been valued at a sum or price not less than the same would bring after full public no- tice at a public sale, supposing each separate lot or piece or tract of land, with the improvements, or the personal property of each individual, company or corporation only were to be sold. They shall receive and consider the written communication of any tax- able inhabitant of the county, relative to any property which such taxable inhabitant shall believe to have been reduced too low, and on the day appointed for determining whether any property "Sec. 10, Act of July 27, 1842, "Com. v.'Hanna, 33 Pa. C. C. P. L. 441. 498 (1907); Manor Real Estate & "Sec. 1, Act of Feb. 'll, 1859, Trust Co. v. Cooner, 209 Pa. 531 P. L. 37. (1904) ; 13 D. R. 83. "Sec. 47, Act of April 29, 1844, P. L. 486. 116 TAXATION IN PENNSYLVANIA. has been reduced too low, or reduce the same if too high, they shall proceed to raise the price or valuation of any- property which they shall believe to have been reduced too low, and if they can- not on the day appointed, .revise, raise and equalize the valuation of all property which they shall believe to have been reduced too low, they may adjourn from day to day until the whole of such valuation shall have been revised, raised or equalized. 20 In the absence of any express, statutory provision to the con- trary, two members of a board of revision are competent to per- form all the functions of the board, in the absence of the third member by reason of physical incapacity. 21 Where a board of revision did not publish the aggregate values and assessments made by the assessors, and gave no public notice of the time of hearing appeals, but merely called in the assessors to examine them, many of whom did not attend, and the results reached by the board were practically the same as those reached by the assessors, and it appeared that there were many cases of injustice and inequality, held, that mandamus lay against the members of the board to compel them to act in accordance with law. 22 "Prior to the Act of July 27, 1842, P. L. 445, all appeals from re- turns of assessors, or from valuations fixed agreeably to laws then existing, except where some local statutory provision interposed, had to be made to the county commissioners. The statute referred to changed all this: it erected a 'board of revision' composed .of the county commissioners and the associate judges of each county. One of the provinces of this board was to 'hear and decide upon all ap- peals.' The associate judges were subsequently relieved from con- nection with it, Act of April 29, 1844, § 41, P. L,- 501; but in other respects, it exists to-day, composed, however, of the county commis- sioners only. The duties of the board relate solely to the triennial assessments; analogous duties arising after the board has established a uniform valuation of property during the triennial year, or duties connected with assessments, valuations, abatements or appeals oc- curring during the two intervening years,- though they are to be discharged by the same persons, yet these persons act in different capacities, and under different obligations, in the one case from what they do in the other. Each of them before entering upon the duties of the board of revision, is required to take and subscribe an oath 20 Sec. 13, Act of July 27, 1842, 22 Com. v. Hanna, 33 Pa. C. C. P. L. 441. 498 (1907). !1 Com. v. Hanna, 33 Pa. C. C. 498 (1907). TRIENNIAL AND ANNUAL ASSESSMENTS. 117 o,r affirmation, in the form set out in the statute, before one of the judges of the Court of Common Pleas for the county, or before the prothonotary; which oath is to be deposited in the office of the re- corder; but acting as a member of the board of county commission- ers, in matters relating to valuations of property for taxable purposes, or to abatements or appeals, they are not required to take any sworn obligation additional to that assumed on entering upon the general duties of their office. "What is the law prescribing and governing the duties, of county commissioners, acting in the capacity of the board of revision? The taxable property within the proper territorial limits, having been as- certained, returned and valued in the manner already pointed out, the county commissioners, as such, are required to make publication as prescribed by the 11th section of the Act of July 27, 1842,. of the statements and valuations, returned by the assessors; and also of a day not later than thirty days next ensuing, for determining finally whether such valuations have been made below a just rate or not. In the meantime the statements or returns of the assessors, are to remain in the commissioners' office, subject to access, inspection and examination by any or all of the taxable inhabitants of the county. The board of revision enter, then, upon the discharge of their duties. They are to examine and inquire whether the returns of the assessors have been made in conformity with law; and also whether all prop- erty subject to taxation for state and county purposes has been valued at a sum not less than it would bring at public sale, no matter whether it be a separate lot, or piece, or tract of land with the im- provements; or whether it be the personal property of an individual, company or corporation: they are to receive written communications of the taxable inhabitants of the county, or any of them, relating to property claimed to have been valued too low; they are to raise or diminish the valuation as in their judgment proper equalization de- mands: if the work of thus revising the returns and raising and equalizing the valuation of all the property in the county cannot be accomplished on the day appointed for that purpose, they may ad- journ from day to day, assigning, if they please, different days for different wards, townships, or districts, until the whole shall have been completed. "This having been done, any person, partnership, company or Corporate body, feeling aggrieved at the high valuation of their trade, profession, occupation, or property, as the case may be, has the right of hearing by appeal; but it must not be forgotten that such appeals are first and always to be heard and decided by the board of revision, not the county commissioners. By the Act of April 20, 1876, P. L. 44, a further appeal may be had to the Court of Common Pleas; and this applies as well to valuations or adjustments fixed by the board of revision, as to those subsequently made agreeably to law by the county commissioners acting as such. "Appeals to the board of revision are. provided for in the 13th sec- 118 TAXATION IN PENNSYLVANIA. tion of the Act of July 27th, 1842, P. L. 446, thus: 'The same proceed- ings shall be had with reference to notice, appeals and corrections which are now had by the laws of this Commonwealth.' What are those laws? On or before the second Monday of April in each triennial year, the county commissioners are to cause accurate tran- scripts of the assessments to be made out and placed in the hands of the assessors, together with a statement of the rate per cent, and of the day or days of appeal appointed by the board of revision for the townships, wards or districts, respectively. The county commission- ers are further required to give notice, for at least three weeks, by advertising in one or more newspapers printed in or nearest the county town, of the day or days of these appeals. The assessors are also to give notice either written or printed, to every taxable within their respective districts of the amount of tax with which such taxable stands charged, the rate per cent, and the time and place of appeal. On the day of the appeal the board of revision are to 'hear all per- sons who may apply for redress, and grant such relief as to them shall appear just and reasonable.' They may administer an oath or affirmation to any person or persons taking such appeal either in their own behalf, or in behalf of any corporation touching the value and amount of their property, trade, occupation or profession, as the case may be, or the value of any article made taxable; they may also receive any other evidence on the subject which they may deem ap- propriate or advantageous to them in reaching a just determination. Whereupon, if an abatement is considered proper by them, they may make it: Act of May 15, 1841, § 5, P. L,. 394. "The action of the board of revision so far as it relates to the valua- tion of real estate for taxable purposes during the triennial year and the two ensuing years thereafter, is final. No change is possible, except by appeal to the Court of Common Pleas, under the Act of April 20, 1876, P. L. 44, supra, or where there has been some destruc- tion of buildings or improvements subsequent to the triennial year. Indeed the county commissioners, as such, are positively forbidden by the statute to 'make any allowance or abatement in the valuation of any real estate in any other year than that in which the triennial assessment is made, excepting where buildings or other improve- ments have be,en destroyed subsequently to such triennial assessment.' This refers, however, only to such real estate as has been actually passed upon and valued by the board of revision; it does not refer to that which has been additionally improved during either of the next subsequent two years, nor to that which was omitted to be assessed at the triennial assessment." 28 • § 134a. When board may act — Taxables to be notified of increases of assessments. The county commissioners of ^Del. & Hud. Canal Co. v. Plains Township's Appeal, 21 Pa. Blakely Township School Direc- Super. Ct. 68 (1902). tors, 11 Phila. 591 (1876). See TRIENNIAL AND ANNUAL ASSESSMENTS. 119 the several counties of this Commonwealth, who were, by the tenth section of the Act of July twenty-seventh, one thousand eight hundred and forty-two, and by the forty-first section of the Act of April twenty-ninth, one thousand eight hundred and forty- four, constituted a Board of Revision, be and they are hereby au- thorized to do and perform the duties of said Board of Revision upon the same day, and at the same time and place, of holding the appeals for the several townships, boroughs, and wards in their respective counties: Provided, that in every case where said county commissioners shall raise the price or valuation of any property, which they believe has been valued or reduced by the assessors too low, a notice of such increased valuation shall be given to the owner or owners, and in said notice fixing a date when an appeal for such cases will be held at the office of the county commissioners: . . . 2 * § 135. Assessors to attend at appeals. It shall be the duty of the several assessors to attend at the time and place fixed " for the appeal for the respective ward, township or district, to prevent impositions being .practiced on the commissioners by the persons appealing. 25 "The several assessors are required to attend at the time and glace fixed for the appeal for their respective wards, townships or dis- tricts, to prevent imposition by parties appealing. This provision is a part of the Act of April 15, 1834, § 14, P. L- 514. Its importance then was even greater than now, because up to that time, and, indeed, by the provisions of the 3rd section of that Act, P. L,. 511, repealed, as we have seen, by the Act of May 15, 1841, § 4, 'a majority of the assessors' together 'with the commissioners' fixed the uniform stand- ard of value of all taxable property at the triennial assessment; now the assessors have nothing whatever to do with, fixing the standard: the county commissioners, acting as a board of revision, do it. It is, however, of great importance that the proper assessor should be present before the board when an appeal is heard. To dispose of it in his absence is to invite imposition. "But, while the law makes it the d,uty of the assessors to be present on the day appointed by the board of revision for hearing appeals from their respective townships, wards or districts, it does not either directly or by implication prohibit the hearing of such appeals in the absence of the proper assessor. We are ,aware that the provisions of the fourteenth section of the Act of April 15, 1834, requiring the assessors to be present at appeals are sometimes confounded with M Sec. 1, Act of April 27, 1909, K Sec. 14, Act of April 15, 1834, P. L- 244. P- h- 509. 120 TAXATION IN PENNSYLVANIA. the provisions of the sixteenth section of the same act. This is, in- deed, quite a common mistake, but it is a mistake nevertheless. We have quoted already the fourteenth section; we quote now the six- teenth section at length: 'It shall be the duty of the commissioners to hear appeals at any subsequent time when they are in session, previous to the payment of the tax, and to make such alterations as they might have done on the regular day of appeals: Provided that no such appeals shall be heard unless the appellant shall have given due notice thereof to the assessor of the proper ward, township or district' The appeal here referred to is not that contemplated by an Act of Assembly passed upwards of eight years subsequently to the one embracing the section quoted, and which, besid.es changing en- tirely the mode of adjusting valuation at the triennial assessment raised up a new tribunal to dispose of appeals, thus, 'excepting only that the board of revision, instead of the county commissioners, shall hear and decide upon all appeals.' On the contrary, the appeal re- ferred to in that section is the one which might have been taken from the triennial assessment as made by 'a majority of the assessors . . . with the commissioners,' under the third section of the Act of April 15, 1834, P. L- 511, now repealed; and which may still be taken, and heard and decided by the county commissioners, the ap- pellant having given due notice to the proper assessor, from any assessment made in either of the two years succeeding the triennial assessment. The language of the section itself, and particularly of the proviso, is plain upon this point: 'That no such appeal' — that is, an appeal taken subsequently to 'the regular day of appeal,' and 'previous to the payment of the tax' — 'shall be heard unless the appellant shall have given due notice thereof to the assessor of the proper ward, township or district.' Suppose for example that an assessor should refuse to obey the mandate of the law, and persistently fail to attend on the day appointed by the board of revision for hearing appeals from his ward or township, could he thus defeat the statutory right of appellants? Why, manifestly not. The members of the board ■would be obliged to act, nevertheless. Their function being of a judicial or deliberative character, they could be ordered by mandamus to proceed to do their duty by hearing and deciding the appeals ac- cording to their best judgment: Comth. v. The Judges, 3 Binn 273; Griffith v. Cochran, 5 Binn 87; Comth. v. Cochran, 1 S. & R. 472; James v. Comses, 1 H. 72. Taxables, in short, are to have, not to give, notice of appeals from the triennial assessment. "Finally when the appeals have all been heard and decided by the Doard of revision, the adjusted valuation is complete. The decision or judgment in each case, particularly if any change or abatement has been made, should be entered in the assessment book for the proper ward, or township, before a copy is made for any board of school directors, or obtained by the supervisors of roads, path-masters, borough councils, overseers of the poor, or directors of poor dis- tricts, as the case may be. The same should be done also in all cases TRIENNIAL AND ANNUAL ASSESSMENTS. 121 where additions or changes are made, whether by the board of revision acting upon assessments made at the triennial year, or by the county commissioners, acting upon them as made at either of the next two succeeding years. When, however, it cannot be so done, because of some unavoidable hindrance, a certificate showing the" subsequent or final disposition of an appeal, or the making of any lawful abatement, should be recognized by school directors, borough councils, and also by the proper authorities charged with the assess- ment and collection of township rates and levies." 28 § 136. After the hearing of appeals assessments to be corrected. Immediately after the appeals are over, the commis- sioners shall proceed to regulate the assessments, according to the alterations made, and shall cause their clerks to make fair duplicates thereof, in suc*h form as the commissioners may di- rect. 27 § 137. Appeals may be heard subsequently. It shall be the duty of the commissioners to hear appeals at any sub- sequent time when they may be in session, previous to the pay- ment of the tax, and to make such alterations as they might have done on the regular day of appeal : Provided, that no such ap- peal shall be heard unless the appellant shall have given due notice thereof to the assessor of the proper ward, township or district. 28 § 138. Appeals from assessments in counties having not less than three hundred thousand and not more than one million inhabitants. . . . 'When the triennial assess- ment shall be fixed, either for the whole county or in districts thereof, notice of that fact shall be given by publication, in not more than two newspapers of the county, and of a time or times at which appeals will be heard. After hearing the appeals the board shall take such action in regard to them as may be right and proper; after such action on the appeals, any taxpayer who is dissatisfied with the assessment upon his property may, within thirty days from the final fixing of the said assessment and valua- tion, appeal to the court of common pleas of the county; and it shall be the duty of the court to at once hear and determine said "Del. & Hud. Canal Co. v. "Sec. 15, Act of April 15, 1834, Blakely Township School Direc- P. L. 509. tors, 11 Phila. 593 (1876). "Sec. 16, Act of April 15, 1834, P. L. 509. 122 TAXATION IN PENNSYLVANIA. appeal, and, if necessary, make such change therein as may be proper. 29 § 139. Increases of assessments in said counties be- tween triennial assessments. ... In case of any change by the board, during the intervals between the triennial assessments, as proyided for in this section, if there be any increase in any particular assessment, or the addition of any omitted subject of taxation, the taxpayer affected shall, if a resident of the county, have written or printed notice left at his residence, at least ten days before the change is made, and, if a non-resident, then the notice shall be posted on the property, and such tax- payer may appeal, as provided above, to a court of common pleas, and such court may take action as provided above in case of other appeals. . . . 30 § 140. Proceedings after revision of returns by board of revision. When the whole of the valuation of the as- sessor [s] shall have been raised, revised and equalized, in con- formity with the foregoing section, the same proceedings shall be had in reference to notice, appeals and corrections, "which are now had by the laws of this Commonwealth, excepting only that the board of revision, instead of the county commissioners, shall hear and decide upon all appeals. 31 § 141. Transcripts of assessments to be sent assessors. When the proportions of the several wards, townships and dis- tricts shall be ascertained as aforesaid, the commissioners of the respective county shall cause accurate transcripts of the assessments to be made out by their clerk, and shall transmit the same to the respective assessors on or before the second Monday of April following, together with a statement of the rate per cent, and the day of appeal fixed by them. 32 § 142. Fixing of rates for county taxes. When the' re- turns of the assessors shall be rectified as aforesaid, if necessary, the commissioners shall proceed to assess the proportion of every ward, township and district, according to the adjusted valuation of the taxable property and other subjects of taxation in such ward, township and district, provided that no tax in any county "Sec. 2, Act of March 24, 1905, "See. 14, Act of July 27, 1842, P. L. 47. P. L- 441. "See. 2, Act of March 24, 1905, "Sec. 8, Act of April 15, 1834, P. L. 47. P. L. 509. TRIENNIAL AND ANNUAL ASSESSMENTS. 123 shall in one year exceed the rate of one cent in every dollar of such adjusted valuation. . . , 33 The word "assess" in the foregoing act is evidently used in the sense of imposing a tax, instead of valuing property for the levying of a tax. The act provides the authority under which the county commissioners fix the tax rate. In counties having one hundred and fifty thousand population or more, which, under the provisions of the Act of June 27, 1905, P. L. 403, have county controllers, the county commissioners are not limited in the levying of taxes to the levy of taxes sufficient only to make the amount of revenue estimated for by said con- trollers. 34 § 143. Assessments in years between the triennial as- sessments. On or before the first day of April in each of the two years succeeding the triennial assessment, the commissioners of the respective county shall send a transcript of such triennial assessment to the assessor of every ward, township and district therein, together with their precepts, requiring him to take an account of all freemen and of all personal property taxable by law, together with a just valuation of the same, and also a valuation of all offices and posts of profit, professions, trades and occupations taxable by law, enjoining such assessor to make a just return to them within thirty days after the date of such precept, and to note in such return such alterations in his ward, township or district as may have been occasioned by the transfer or division of real estate, or by the destruction of buildings, or by the mining out of coal, ore, or other minerals assessed under the triennial assessment, and also noting all single freemen who have arrived at the age of twenty-one years since the last triennial assessment, and all others who have since that time come to in- habit in such ward, township or district, together with the tax- able property such persons may possess and the valuation thereof agreeably to the provisions of this act. 35 ^Section 7, Act of April 15, the tax on property was less than 1834, P. I/. 509. This section one cent on the dollar. This pro- originally provided that the rate vision was repealed by § 6 of the for any office, or post of profit, Act of Feb. 28, 1835, P. L,. 45. profession, trade or occupation, M Bradbury v. Burschell, 220 Pa. etc., should at no time exceed ten 439 (1908). dollars in one year and should ""Sec. 1, Act of May 8, 1909, P. be lowered in due proportion as L. 491, amending § 11, Act of 124 TAXATION IN PENNSYLVANIA. The assessors of the several counties of this Commonwealth are hereby authorized and directed to re-assess between the periods of the triennial assessments, all real estate which may have been improved by the erection of buildings, or other im- provements, subsequent to the last preceding triennial assess- ments, subject to appeals as now provided by law. . . . 36 It shall be the duty of the several assessors to assess such persons as may remove into the respective districts between the last assessment and the first of May in each year, or who may have been omitted from the last assessment, and to return their names, with the amount of state and county tax payable to each, to the board of school directors, who shall thereupon assess the amount of school tax payable by such persons, which tax shall be collected as in other cases. 37 For such services the assessors are payable out of the county funds. 38 § 144. When notice of assessments shall be given in years other than triennial years. It shall be the duty of the several assessors in each of the two years succeeding the triennial assessment to give notice to the taxable inhabitants in like manner as after the triennial assessment, but in the following cases only; namely, in the case of real property, where buildings or other improvements have been destroyed, and when coal or other minerals assessed under the triennial assessment have been mined out, since such triennial assessment; and in the case of personal property, offices, .professions, trades and occupations, where there has been any alteration in -the assessment, occasion- ing a different valuation from the former year, and also where persons have come to inhabit in the county since such triennial assessment. 39 Where the assessment is not a triennial one and there is no change from that in the preceding year, notice of assessment is not required. 40 April 15, 1834, P. L- 509. See § M Hoak v. Lancaster County, 29 139. . Pa. Super. Ct. 585 (1905). se Sec. 34, Act of April 10, 1849, '"Sec. 2, Act of May 8, 1909, P. P- L- 577. L. 491, amending § 12, Act of "Sec. 35, Act of May 8, 1854, April 15, 1834, P. L. 509. P- h. 617. "In re Gustav A. Sommer, 28 Pa. C. C. 93 (1903). TRIENNIAL AND ANNUAL ASSESSMENTS. 125 § 145. Appeals in years other than triennial years. At the time and place fixed for the appeal, which in each of the two years after the triennial assessment shall be held in the commissioners' office of the proper county, the commissioners shall attend and hear all persons who may apply for redress, and grant such relief as to them shall appear just and reasonable : Provided, that the commissioners shall not make any allowance or abatement in the valuation of any real estate, in any other year than that in which the triennial assessment is made, ex- cepting where buildings or other improvements have been de- stroyed, or where coal, ore or other minerals, assessed under the triennial assessment have been mined out, subsequently to such triennial assessment, in which cases such allowance or abatement shall be made. 41 While hearing appeals from assessments made between trien- nial assessments the commissioners sit as county commissioners and not as a board of revision. 42 § 146. How assessments between triennial assess- ments are made. There must be an "assessment" for each ' year, although the valuation fixed during the triennial year may not be changed except in the cases provided by law. "Fixing the rate is not charging the land with a tax, though the rate is essential to the charge. While the triennial assessment is the basis of the subsequent annual assessment, and the valuation then fixed' will remain, unless changed by reason of the alteration in the value of the property, it does not, per se, constitute the annual as- sessment of the property with taxes. The charging of lands with taxes is an annual process, for the reason that neither the property itself, nor its ownership, necessarily continues for triennial periods. The commissioners would have no right to neglect the annual returns, and falling back upon the last triennial return make their charges upon it. Of necessity the charging of lands as unseated for any year must be the act of that year, and cannot be made good by reference to the state of the property." 43 The valuation fixed at the triennial assessment must be fol- lowed in the annual assessments, except where changes may be "Sec. 3, Act of May 8, 1909, P. rectors, 11 Phila. 587 (1876). See L. 491, amending § 13, Act of § 131. April 15, 1834, P. L. 509. '"Greenough v. Fulton Coal Co., "Delaware & Hudson Canal Co. 74 Pa. 486 (1874). v. Blakely Township School Di- 126 TAXATION IN PENNSYLVANIA. made necessary by "destruction," or, under the Act of April 10, 1849, § 34, P. L. 570, the "erection of buildings or other im- provements" on the land itself, regardless of any appreciation or depreciation of value from other causes. Hence the division of the property into building lots, and the laying out and grading streets will not warrant an increase in the assessment between triennial periods. 44 Where there is a total destruction of the whole or part of the property assessed, subsequent to the assessment, the remedy is by exoneration of the tax. 45 The annual assessor should assess all the property in existence which has been assessed by the triennial assessor and include in his assessment any property which has been omitted by the latter whether by negligence, oversight or misconstruction of the law, but he has no right to assess property valued and returned by the triennial assessor except when there have been additions or improvements made after the triennial assessment. 46 ". . . When real estate has buildings or other valuable im- provements upon it at the triennial year, and is rated and valued by the board of revision accordingly, but such buildings or improvements shall be destroyed during either of the two years next succeeding; or where occasion has arisen to alter the valuation fixed at the triennial year, of personal property, offices, professions, trades and occupa- tions; or where persons have come to inhabit in the county since the triennial year, Act of April 15, 1834, § 12, P. L. 513, or where real es- tate has been improved by the erection of buildings, or otherwise, subsequent to the last preceding triennial assessment, Act of April 10, 1849, § 34; or where there has been an omission to assess taxable real estate at the triennial year, the assessors are required to assess, or re-assess, as the case may be, the same and return statements of it * in each of the next intervening two years, giving notice to the tax- able inhabitants in the same manner as after the triennial assessment: thereupon, the county commissioners are to examine and revise these statements, and to equalize the valuation of the property thus re- turned either by raising it, or reducing it, as they shall deem proper. From the valuation so adjusted, an appeal may be taken by any person, partnership, company or corporate body interested. All such appeals are to be heard and decided by the county commissioners, acting as such: a further appeal, however, may be had, as we have "Beechwood Improvement Co.'s "Union Coal Co. v. Northum- Appeal, 12 D. R. 430 (1903). berland County Commissioners, "Ferguson v. Lycoming County, 13 D. R. 160 (1903). 8 Pa. C. C. 667 (1890). TRIENNIAL AND ANNUAL ASSESSMENTS. 127 seen, to the Court of Common Pleas: Act of April 20, 1876, P. L. 44. But it must not be forgotten, that, before the county commissioners are authorized to act at all on an appeal, in any of the cases men- tioned, the appellant must have given due notice of it to the assessor of the proper ward, township or district. "We add, in this connection, that where buildings or other im- provements are upon real estate at the time of the triennial assess- ment, and the valuation is then fixed accordingly, if they should be destroyed during the first year next ensuing, and the county com- missioners should make an appropriate abatement for that year from the original valuation, still, this, of itself, would not warrant the continuance of such abatement for the second year succeeding the triennial assessment. The only sufficient reason for allowing its continuance, would be a re-showing that the destruction of the build- ings or improvements continued also during such second year. To illustrate: there might be an extensive colliery upon a tract of land at the time of the triennial assessment, and the valuation of it for taxable purposes, be fixed accordingly; the buildings or improve- ments might be destroyed before the next annual assessment; the county commissioners might make a corresponding abatement from the valuation; but before the second annual assessment, the colliery might be restored to its original condition; clearly, the abatement should not then be allowed."" "Del. & Hud. Canal Co. v. Blakely Township School Directors, 11 Phila. 595 (1876). CHAPTER VII. APPEALS TO COURTS FROM ASSESSMENTS — INJUNCTIONS. § 147. Early acts granting appeals to the courts. 148. Act now in force providing for appeals from assessments for county taxes to courts of common pleas. 149. Decisions relative to appeals to courts. 150. Appeals from assessments for township taxes. 150a. Appeals from assessments for city taxes. 151. Appeals from decisions of courts of common pleas to the supreme or superior court. 152. Taxpayers may contest the validity of tax laws by proceedings in equity. 153. Proceedings to enjoin the collection of taxes. 154. When the collection of taxes will not be enjoined. § 147. Early acts granting appeals to the courts. Sec- tion 52 of the Act of April 1, 1836, P. L. 445, gave freeholders of the counties of Philadelphia and Bucks the right of an appeal from the action of the county commissioners on the assessments of their properties to the courts of common pleas of said coun- ties. The provisions of this act were extended to Allegheny County by the Act of May 5, 1854, P. L. 571, to Montgomery County by the Act. of April 3, 1851, § 11, P. L,. 314, and to Somerset County by the Act of April 7, 1862, P. L> 301. The said Act of April 1, 1836, is repugnant to the provisions of the Act of April 19, 1889, P. L. 37, and is repealed by it. 1 Special acts providing for appeals from the action of the county commissioners on assessments to the courts of common pleas of other counties were enacted as set forth in the note. 2 The Act of April 20, 1876, P. L,. 44, amended by the Act of 'Chew et al. v. Phila., 31 Pa. 1871, P. L. 665; Somerset, May C. C. 433 (1905); 14 D. R. 168. 10,- 1871, P. L, 665; Westmoreland, "Cambria, Dauphin and Indiana, April 9, 1869, P. L. 815. These Act of May 10, 1871, P. L. 665; acts are all superseded by the Lancaster, March 6, 1872, P. L. Act of April 19, 1889, P. L. 37; 215; McKean, February 28, 1868, Chew et al. v. Phila., 31 Pa. 433; P. L, 236; 'Schuylkill, April 25, (1905). 1850, P. L,. 626, § 7, and May 10, APPEALS FROM ASSESSMENTS — INJUNCTIONS. 129 May 24, 1878, P. L. 133, provided for appeals by owners of real estate in counties of less than five hundred thousand inhabitants, from decisions of the county commissioners on assessments, to the court of common pleas of the county, but this legislation was held to be unconstitutional. 3 § 148. Act now in force providing for appeals from assessments to courts of common pleas. Any owner of treal estate or taxable property in this Commonwealth who may feel aggrieved by the last or any future assessment or valuation of his real estate or taxable property may appeal from the decision of the county commissioners, or board of revision and appeal, to the court of common pleas of the county within which such property is situated, and for that purpose may present to said court, or file in the prothonotary's office, within sixty days after the county commissioners or board of revision and appeal have held the appeals provided for by law, and acted on the said assessments and valuations, a petition signed by him, his agent or attorney, setting forth the facts of the case; and thereupon the said court shall proceed at the earliest con- venient time to be by them appointed, of which notice shall be given to the county commissioners of the proper county, or to the board of revision and appeal of the proper city, to hear the said appeal, and the proofs in the case, and to make such orders and decrees touching the matter complained of as to the, judges of said court may seem just and equitable, having due regard to the valuation and assessment made of other real estate in such county or city; the costs of the appeal and hearing to be ap- portioned or paid as the court may direct. Provided, however, that the said appeal shall not prevent the collection of the taxes complained of, but in case the same shall be reduced, then the excess shall be returned to the person or persons who shall have been paid the same. 4 An appeal taken under the foregoing act does not operate as a supersedeas, so as to prevent the collection of the tax appealed from. If the valuation is reduced, the excess of tax is returned to the taxable; 5 and where a taxable appeals from an assessment "Scranton City v. Silkman, 113 4 Sec. 1, Act of April 19, 1889, Pa. 191 (1886) ; 18 W. N. C. 384. P. L. 37. Trick Coke Co. v. Mt. Pleas- ant Township, 222 Pa. 452 (1909). 130 TAXATION IN PENNSYLVANIA. of taxes by the county commissioners, and, while the appeal is pending, pays tax on the basis of the assessment, in order to take advantage of the discount, he may recover the amount by which the tax is reduced by the court on the hearing of the ap- peal. 6 § 149. Decisions relative to appeals to courts of com- mon pleas. Under the Act of April 19, 1889, P. L. 37, which act is not defective in its title and not unconstitutional, courts of common pleas are bound to hear the evidence and find the facts on appeal to them from the county commissioners. On appeal from the decisions of such courts in such cases under the Act of June 26, 1901, infra, the appellate court will not limit themselves to a mere inspection of the record, but must review the judicial action of the court below on the evidence disclosed by the record; and an order of the court of common pleas sus- taining a tax assessment will be reversed where the evidence shows that the lands were assessed at ten dollars per acre while similar lands were assessed at but one dollar per acre. 7 On appeal the proceedings as to proofs and pleadings are de novo, and the courts must hear and determine the questions in dispute under their general equity powers in the same manner as if the controversy were between private litigants. 8 The Act of April 19, 1889, P. L. 37, apparently gives the court of common pleas the power to reduce assessments on proof sub- mitted that they are too high but not to pass upon the legality of an assessment, which question should probably be raised by en- joining the collection of the taxes. 8 Where no attempt is made by a city to collect taxes pending an appeal to the court of common pleas from an assessment and on the determination of the appeal the appellant tenders the amount due, no penalty for non-payment may be exacted. "We must assume that the city voluntarily decided to await the event of the judgment on the appeal before treating the taxpayer as delinquent. As soon as that was determined the appellant "Penna. Coal Co. v. School Dis- 8 Del., L. & W. R. R. Co.'s Tax trict, 9 Lack. 118. Assessment (No. 1), 224 Pa. 240 'Rockhill Iron & Coal Com- (1909). pany v. Fulton Co., 204 Pa. 44 "Albert v. Board of Revision, (1902); Pocono Pines Assembly, 139 Pa. 467 (1891). etc., v. Monroe Co., 29 Pa. Super. Ct. 36 (1905). appeals From assessments — injunctions. 131 promptly tendered the amount owing by him and could not then be in default." 10 But where an appeal is 'taken to a court of common pleas and a decision reducing the assessment is rendered within six months from the date of the public notice required by the Act of 1885 to be given by the tax collector, the five per cent, penalty imposed by the act must be added and paid, unless the taxes due upon the valuation fixed by the court be paid within six months from the date of the public notice, although an application for a rehearing be made to the court. 11 In an appeal to a court of common pleas under the Act of 1889, it is the duty of the court in determining whether the as- sessment is just and equitable to have due regard to the valua- tion and assessment of other real estate in such city or county. 12 The comparison is to be made with the generality of other property of the same class and not with a single assessment or a few assessments. 13 On an appeal under the Act of 1889, the court will not reduce the valuation where there was a subsequent depreciation of prop- erty by reason of an extraordinary flood, but no destruction of the building or soil and the injuries are not of a permanent character. Especially so when the actual value is still greatly in excess of the assessed value and the flood affected the greater part of the property in the county. 14 Where a tract of land has been improperly subdivided by the assessors into small lots in making assessments for taxes upon, it, the remedy of the land owner is by appeal to the board of revision of taxes to rectify the error. The court of common pleas has no power to relieve him upon such complaint. 15 Where the general power to assess exists, the remedy for il- legal taxation is by appeal. 16 "Ferguson v. Pittsburgh, 159 Armstrong County Tax Assess- Pa. 435 (1894); 33 W. N. C. 454. ments, 25 Pa. C. C. 213 (1901). "Lehigh Coal & Navigation Co. "Ferguson v. Lyconing County, v. Gormley, 21 Pa. C. C. 636 8 Pa. C. C. 667 (1890). (1897) ; 8 D. R. 375. M Phila. v. Thurlow, 5 Pa. Super. "Richter's Appeal, 8 Pa. C. C. Ct. 600 (1897); 39 W. N. C. 412. 119 (1890); Doylestown Tax As- "Clinton School District's Ap- sessments, 17 Pa. C. C. 535 peal, 56 Pa. 315 (1867); Sallade (1896). et al. v. Lykens Township School "Pringle's Appeal, 6 Kulp 525; Directors, 2 Pears. 45, 48 (1869). 132 TAXATION IN PENNSYLVANIA. Where the commissioners raised an assessment to the aggre- gate value of the property assessed, and it appeared that other real estate was assessed at but fifty per cent, of the value, held, on appeal, that the property of appellant must be reduced below its actual value so as to correspond with the other assessments. In such a case where the taxpayer was to blame for not appearing before the county commissioners, he will be allowed no costs for witnesses on the appeal to court. 17 But where no practice of assessing property at less than its actual value in a given county is shown, it will be assumed that the assessors valued property for taxation at what in their judg- ment it would bring at a bona fide sale after full public notice, and evidence as to the assessment made on other particular prop- erty will not be sufficient to reduce the assessment. 18 On an appeal from a tax assessment under the Act of April 19, 1889, P. L. 37, the court is to determine the justice and equity of the tax assessment "with due regard to the valuation and as- sessment made of other real estate in such county or city" and not with regard to the valuation of other specific property or properties in other portions of the county or city. Hence, where the county commissioners increase the valuation of the assessors and on appeal the owners admitted that the assessment was still below the real value of the property but contended that other property in the same city was assessed at a lower rate, the court refused to reduce the raised assessment, it appearing that the average valuation throughout the county was at a higher rate. 19 While assessors are required to assess property at its actual value, yet if they fail to do so generally and a particular prop- erty is assessed at the real market value, a court of common pleas may reduce the assessment so as to equalize it with other assess- ments of real estate in the same' county ; 20 but a court will not reduce an assessment of unimproved real estate for purposes of taxation, because other tracts of land in the immediate vicinity, "Richter's Appeal, 8 Pa. C. C. M In re Assessment of Irwin *119 (1890). Basin Coal Lands, 17 D. R. 825 "Heberton's Appeal, 13 Pa. C. (1907); Mattern v. Huntingdon C. 372 (1893); 2 D. R. 794. County Com'rs, 17 D. R. 15 "White et al. v. Venango (1907); Garver's Tax Assessment, County, 10 D. R. 482 (1901); Hill- 34 Pa. C. C. 138 (1907). side Coal & Iron Co., 14 D. R. 485 (1904). APPEALS FROM ASSESSMENTS INJUNCTIONS. 133 some more and some less valuable than the property in question, were assessed at a less value, and less than the value at which they should have been assessed, where the authorities aim to assess all properties at their actual value, and particularly where the only sales of properties in the vicinity of the property assessed were for amounts more than double the assessment complained of. 21 The comparison is to be made in such cases with the as- sessments upon similar properties throughout the county, and not merely with assessments throughout the township. 22 An appeal to the court brings up only the question of lowering assessments that have been made too high, measuring the same by the standard generally applied by the assessing officers, whether that standard be the legal one or not. 23 In arriving at the taxable value of real estate the court will adopt that proportion of the actual value at which other real estate throughout the jurisdiction of the authority levying the tax has been assessed, but in determining the proper ratio a court may not include personal property so as to increase the ratio in a particular case. 24 "Under the Act of July 27, 1842, P. L,. 441, the board of re- vision in the execution of their duties relative to valuation of property for taxation have general power after the assessments have been returned to them to revise, raise and equalize the val- uation of all property. From the action of this board the law authorizes an appeal and empowers the court to make such de- crees as are just and equitable. We have no general power of revision or equalization as the board of revision has. We can change the assessment appealed from only." Under the Act of April 15, 1834, § 16, P. L. 509, appeals may be heard at any time before taxes are paid, but when two sets of sworn officers have passed upon a valuation, one by regular tri- ennial assessment and the other by assessment made the following year, the owner making no complaint at the time, the court will interfere only when the evidence is clear that the property would ^Hamilton's Heir's Appeal, 14 Basin Coal Lands, 17 D. R. 825 D. R. 655 (1904). (1907). M Mattern v. Huntingdon County M Dela., L. & W. R. R. Co.'s Com'rs, 17 D. R. 15 (1907). Tax Assessment (No. 1), 224 Pa. K In re Assessment of Irwin 240 (1909). 134 TAXATION IN PENNSYLVANIA. not sell at public sale, after full notice, for the amount of the assessment. 25 Where no practice of assessing property at less than its actual value in a given county is shown, it will be assumed that the assessors valued property for taxation at what, in their judg- ment, it would bring at a bona fide sale after full public notice, and evidence as to the assessments made on other particular properties will not be sufficient to reduce an assessment. 26 "The comparison is to be made with the generality of property of the same class, and not with a single assessment or a few as- sessments." 27 § X 50. Appeals from assessments for township taxes. 28 § 150a. Appeals from assessments for, city taxes. 29 § 151. Appeals from decisions of courts of common pleas to the supreme or superior court. Any owner of real estate or taxable property in this Commonwealth may ap- peal from the judgment, order or decree of any court of common pleas, in any matter affecting the assessment of taxes upon, his property, to the Supreme or Superior Court, in the same manner as appeals are taken in other cases to the said Supreme or Superior Court : Provided, however, that the said appeal shall not prevent the collection of the taxes complained of; but in case the same shall be reduced, then the excess shall be returned to the person or persons who shall have paid the same. 30 On an appeal from a decision of a court of common pleas, taken under the provisions of. the foregoing act, the appellate court, will not limit themselves to a mere inspection of the record, but will review the judicial action of the court below on the evidence disclosed by the record; and an order of a court of common pleas sustaining an assessment will be reversed where the evidence shows that the lands were assessed at ten dollars per acre, while similar lands were assessed at but one dollar per acre. 31 "Bell's Appeal, 11 D. R. 732 ""See § 313. * (1902). ffl See § 401. ""Heberton's Appeal, 13 Pa. C. 30 Act of June 26, 1901, P. L.. C. 372 (1893) ; 2 D. R. 794. 601. "Pringle's Appeal, 6 Kulp 525; "Rockhill Iron & Coal Co. v. Armstrong County Tax Assess- Fulton County, 204 Pa. 44 (1902) ; ments, 25 Pa. C. C. 213 (1901). Pocono Pines Assembly, etc., v. APPEALS FROM ASSESSMENTS — INJUNCTIONS. 135 The mercantile license tax not being a tax upon property but upon the business of vending merchandise, the above act does not give a right of appeal from decisions of the courts of com- mon pleas in questions involving said tax. The appellate court may, however, review proceedings in such cases when brought up on certiorari. 32 Where in such case the record shows that the matter in dis- pute, and for the determination by the common pleas, was not the volume of business done, but its classification, and it appears that the common pleas made a mistake in law as to classification, the appellate court may, on certiorari, correct the error. 33 § 152. Taxpayers may contest the validity of tax laws by proceedings in equrfcy. 34 Taxpayers, where money is to be raised by taxation or taken from the treasury, have an inter- est entitling them to proceed in equity to test' the validity of the law which authorizes the assessment or expenditure. 35 In a proper case relief will be granted in equity when com- plainant's sole interest is that of a taxpayer seeking to have the constitutionality of a tax settled, or where the purpose of the bill is to restrain the illegal disposition of municipal or county moneys, or the creation of an illegal debt, which the complainant as a taxpayer, in common with others, may be obliged to pay. 36 § 153. Proceedings to enjoin the collection of taxes. "All the cases assert the doctrine that when the general power to assess exists the proper remedy for illegal taxation is by appeal to those to whom the appeal is required to.be taken; and, if none be given, neither the common pleas nor this court can revise the judgment of the tax officers. Indeed it would be a most ruinous consequence if, just when the collector comes around with his Monroe County, 29 Pa. Super. Ct. S5 Page v. Allen; Robb et al. v. 36 (1905). Barlow, 58 Pa. 338 (1868). 32 Pittsburgh Brewers' and Bot- ""Scheetz et al. v. Norristown tiers' Supply Company's Mercan- Boro. School Dist., 11 D. R. 403 tile Tax, 38 Pa. Super. Ct. 121 (1901) ; Brown v. Corry City, 175 (1909). Pa. 528 (1896); Wheeler v. Phila., "" ^Pittsburgh Brewers' and Bot- 77 Pa. 338 (1875); Sener v. tiers' Supply Company's Mercan- Ephrata Borough, 176 Pa. 80 tile Tax, 38 Pa. Super. Ct. 121 (1896); Brooke v. Phila.; 162 Pa. (1909). 123 (1894); Bruce v. Pgh., 161 al See § 375. Pa. . 517 (1894); 166 Pa. 152 (1895). * 136 TAXATION IN PENNSYLVANIA. , warrant to demand taxes assessed in due form of law by those having the general power to tax, a court of equity could interfere by injunction. ... It will not do to let the collection of taxes to be interfered with by such persons, unless in the clear- est cases of want of jurisdiction in the assessing and collecting officers." 37 Where a tax is lawfully assessed, or where the matters com- plained of are mere irregularities in the valuations or assessments, a court of equity will not interfere to restrain the collection of the same, but will leave the party aggrieved to his remedy at law; but where there is either a want of power to tax, or a dis- regard of the Constitution in the mode of assessment, there is no doubt of the power and duty of a court of equity to interfere. 38 Where an assessment is void, the remedy is by injunction; where merely irregular,- by appeal. 39 An injunction will be granted where the complaint is not against the rate of assessment, nor any irregularities susceptible of correction on appeal, but against the act of assessing at all at the place and by the parties making it. 40 In such and similar cases the turning over of the parties sought to be taxed to their action for damages against the officers seek- ing to levy the tax would be inadequate. 41 Where an ordinance imposing a tax is void, equity has jurisdic- tion to enjoin the enforcement thereof. 42 Equity will enjoin against the levying a tax without authority of law, and even where there is legislative authority for levying a tax for a certain purpose, its collection may be enjoined if the tax levied be clearly in excess of the sum required, 43 or if the "Clinton School District's Ap- 38 Manor Real Estate & Trust peal, 56 Pa. 315 (1867); Hughes Co. v. Cooner, 209 Pa. 531 (1904); v. Kline, 30 Pa. 227 (1858) ; Van • 13 D. R. 83. Nort's Appeal, 121 Pa. 118, 129 "Strong v. O'Donnell, 10 Phila. (1888). 575 (1874). ""Banger's Appeal, 109 Pa. 79 "Miller v. Gorman & Preston, (1885), citing St. Clair School 38 Pa. 309 (1861); Strong v. Board's Appeal,' 74 Pa. 252 .O'Donnell, 10 Phila. 575 (1874). (1873) ; Wheeler v. Phila., 77 Pa. "Shirk v. Bucher, 53 Pa. 94 338 (1875); Roup's Case, 81 Pa. (1866); Harper's Appeal, 109 Pa. 211- (1874); Conner's Appeal, 103 9 (1885). Pa. 356 (1883); 14 W. N. C. 155; "St. Clair School Board's Ap- St. Mary's Gas Co. v. Elk County peal, 74 Pa. 252 (1873) ; Conner's et al., 168 Pa. 401 (1895) ; Van Appeal, 103 Pa. 356 (1883) ; Davis Nort's Appeal, 121 Pa. 118 (1888). v. Bradford School District et al., 4 Pa. C. C. 656 (1888). APPEALS FROM ASSESSMENTS — INJUNCTIONS. 137 proceeds of the tax are not to be applied for the purpose for which it is authorized to be levied. 44 Injunction is the proper remedy where a tax is sought to be imposed upon property located without the jurisdiction of the authority attempting to levy the tax. 45 Where, however, a tax- able contends that he was not a resident of the district wherein . he was assessed on personal property, his remedy seems to be by appeal. 46 Though an injunction to restrain proceedings at law will not be granted when the plaintiff's right is doubtful, nor where he has an adequate remedy at law, yet where no notice nor opportunity was given by township supervisors to nonresidents to work out their road taxes by themselves or their tenants, an injunction will be grante'd restraining the collection of the tax by suit. 47 Where a taxpayer seeks to resist the payment of a tax upon the ground that the proceeds of the same are to be devoted to an il- legal purpose, he should proceed by injunction to restrain the dis- bursement of the money, or contest payment before the auditors having jurisdiction of the account, and not in trespass against the authority levying the tax, when the tax is levied under a sound discretion and under an authority conferred. 48 The remedy for an excessive valuation is by appeal to the county commissioners and the court of common pleas. Courts of equity will not take cognizance of such valuations. 49 A preliminary injunction restraining the collection of a tax on coal shutes or pockets belonging to a canal company, will be con- tinued when the bill and plaintiff's affidavits aver that the pock- ets are absolutely necessary for the transfer of coal from the land to canal boats, and are an essential part of the company's works for that purpose, while defendant's affidavits deny^ in a general way that the pockets are appurtenant and indispensable to the construction and fitting for use of the canal itself, but do "Mitchell v. Kearns, 16 Pa. "Shafer v. Marsh, 22 Pa. C. C. Super. Ct. 354 (1901); Gilbert et 33 (1898); 23 Pa. C. C. 321 (1838). al. v. Tierney, 14 Pa. C. C. 472 "Miller et al. v. Gorman & (1894); Conner's Appeal, 103 Pa. Preston, 38 Pa. 309 (1861). 356 (1883). "Moore v. Clearfield School Di- "Arthur et al. v. Polk Boro. rectors, 59 Pa. 232 (1868). School Dist, 164 Pa. 410 (1894). "Clark v. Burschell, 220 Pa. 435 (1908). 138 TAXATION IN PENNSYLVANIA. not deny that they are a necessary and indispensable means of transferring coal from the land to the boats. 50 Where an ordinance and contract for the construction of a sewer in a borough do not impose an absolute liability on the borough for the cost of the sewer, but only a possible liability for benefits if viewers should assess the same against the bor- ough, a non-resident taxpayer who knew nothing of the pro- posed construction of the sewer until about the time of its com- pletion, is not guilty of laches in filing a bill in equity four months after the completion of the sewer and seventeen days after the filing by viewers of a report assessing benefits against the bor- ough, to restrain the payment of such assessment because the ordinance and contract involved an illegal increase of debt. 51 Where an assessor makes an estimated return of the personal property of a taxable, within ten days from the receipt by the taxable of the return blank, and refuses to permit the taxable within said period to submit his own return, an injunction to restrain the collection of the tax will issue. 52 § 154. When the collection of taxes will not be en- joined. An injunction to restrain the collection of an alleged excessive tax will be refused where it appears that the levy is not excessive or illegal, but necessary to the furnishing of reasonable school facilities to the pupils of the district. 53 An injunction restraining the rating of parties for mercantile license tax will be refused, where the petitioners deny that they are proper subjects of assessment and not within the meaning of the act making dealers subject to the tax, their remedy being an appeal to the board of mercantile appraisers. 54 A taxable appealed to the court of common pleas from as- sessments made upon certain unseated lands held by him, alleging the same to be excessive. The appeal was heard by an additional law judge and two associate judges, presumably not learned in the law, and a decree was issued reducing the assessments, signed "Per curiam, T. A. Morrison," the name of the additional law "Lehigh Coal & Nav. Co. v. ""Lehigh Coal & Nav. Co. v. Miller, 155 Pa. 542 (1893).. Rahn Township School Board, 9 B1 0'Malley v. Oliphant Borough, D. R. 692 (1900). 198 Pa. 525 (1901). "Crist v. Morris, 11 Phila. 357 K Pauli v. Steward, 4 C. P. Rep. (1876) ; 2 W. N. C. 620. 137 (1887). APPEALS FROM ASSESSMENTS INJUNCTIONS. 139 judge. About the same time the associate judges filed a paper dismissing the appeals and in effect affirming the assessments. The taxable paid the taxes on the assessment as revised by the decree of court, and applied for an injunction restraining the commissioners from advertising or collecting the unpaid taxes, and costs of appeal, as ordered by the associate judges. The in- junction was granted by the court below and dissolved by the Supreme Court, in a per curiam giving no reason for its action. 55 On a bill in equity to restrain a city from collecting a tax on a home for deaconesses owned by a charitable institution, the court wiil not determine whether the proportions exempt and taxable, respectively, have been correctly ascertained. Such a question can be heard only on an apfpeal from the decision of the Board of Revision of Taxes. 56 An injunction will n,ot be granted to restrain the collection of school tax on the ground that the sum levied is clearly in excess of the amount required to maintain schools, where ninety per cent, of the property owners have appealed from the levy on the ground that it is too high, which appeal is still pending, and it is therefore impossible to determine how much revenue the district will receive from the levy. 57 M Hamlin v. Peck, 135 Pa. 493 Society v. Receiver of Taxes, 173 (1890). Pa. 456 (1896). "Women's Home Missionary "Haverly v. School District, 9 Lack. 68. CHAPTER VIII.. REQUIREMENTS AS TO ASSESSMENTS. § 155. What constitutes an assessment. 156. Assessments must sufficienly indicate the property assessed. 157. Separate tracts of land must be assessed separately. 158. Encumbered real estate to be assessed at its full value. 159. Timber lands to be separately assessed. 160. Assessors to return separate lists of property exempt from taxation. 161. Ground rents to be assessed to owners thereof. 162. Assessment of lands lying within two or more counties. 163. Assessment of lands lying within two or more townships. 164. Assessment of lands where mansion house is partly in one . township or borough and partly in another. 165. Assessment of property belonging to estates of decedents. 166. Assessment of hotel property. 167. Assessment of oil lands. 168. Assessment of coal lands. 169. Irregularities in assessments. 170. Miscellaneous decisions relative to assessments. 171. Assessment books and other documents as evidence. f § 155. What constitutes an assessment. "Three agencies may be employed in assessment of property for taxation. These are the assessors, the board of revision, and the court of common pleas. The assessors seek out the taxable property in their respective districts, ascertain the names and residences of the owners, and estimate its actual cash value. The results of their work are arranged in a schedule, or tabulated summary for each ward in the city, which is familiarly known as 'the assessment.' This assessment is returned by the assessors who make it to the board of revision. This board examines the work of the assessors, revises and equalizes it, corrects any mistakes that appear in it, and prepares it for examination by the taxables. A day for examination by them is then fixed and notice is given to them that they may appeal from the assessment, as revised, to the board of revision, upon any subject connected with the assessment on which they may desire to be heard. After these applications or appeals by taxables have been heard and such further corrections made by the board of revision as are thus brought to its attention, the assessment is completed, subject to the right of any dissatisfied taxable to appeal to the court of common REQUIREMENTS AS TO ASSESSMENTS. 141 pleas. The rate of taxation is now applied to the valuation and the amount chargeable to each taxpayer is ascertained. A list showing these amounts is prepared for the use of the collector which is com- monly called 'the duplicate.' . . . The law provides that the duplicate or list of taxes for any given year shall [in Philadelphia] be placed in the hands of the receiver as early in the year as practicable. To enable them to do this, the board of revision hears the appeals of the taxables and completes the assessment in the fall preceding the year for which the taxes are assessed and collected. This is a general glance at the system provided by law for the assessment and collec- tion of taxes. . . ," 1 "Thus by the terms of the law, the taxable or his property is assessed when the assessor has returned his list of property and valuation thereupon and the commissioners have apportioned the rate per cent, upon the several townships." 2 "The assessors value the land, but the commissioners make the assessment, from which it follows that you cannot avoid a sale of taxes, merely because you are unable to prove that the assessors had performed this ministerial duty." 3 In Philadelphia the Board of Revision of Taxes has no original power to make an assessment, but may supply an omission in the work of the assessors. "The assessment is therefore primarily the work of the assessors, and the powers of the Board of Re- vision extend only, according to the letter and the spirit of the Act of 1865, to the work of revision." 4 § 156. Assessments must sufficiently indicate the prop- erty assessed. "It is well settled in this state that in order to give a purchaser at a tax sale a good title, the provisions of the statutory law regu- lating the subject must be complied with. The right to make a sale of real estate for unpaid taxes is wholly statutory and hence the necessity in order to give validity to the sale that the provisions of Williamson's Estate, 153 Pa. soon as an assessor has returned 508 (1893); 32 W. N. C. 93. his valuation to the county com- 2 Wells v. Smyth, 55 Pa. 159 missioners; also Heft v. Gephart, (1867), citing Bratten v. Mitchell, 65 Pa. 510 (1870), op. court be- 7 W. & S. 259; Crum v. Burke, low. 25 Pa. 377 (1855); Miller v. Hale, "Devinney v. Reynolds, 1 W. & 26 Pa. 432 (1856); Laird v. Hies- S. 328 (1841); Hess v. Herring- ter, 24 Pa. 452 (1855). See Fer- ton, 73 Pa. 438 (1873). guson v. Lycoming County, 8 Pa. 'Williamson's Estate, 153 Pa. C. C. 667 (1890), to the effect that 508 (1893); 32 W. N. C. 93. an assessment is complete as 142 TAXATION IN PENNSYLVANIA. the statute be observed. The several steps resulting in the sale are the assessment of the property, a return by the collector to the county commissioners when the taxes are not paid, and an advertise- ment and sale by the treasurer. These several steps must be taken and in the manner pointed out in the statute, if the title of the real owner is to be divested and vested in the purchaser by a tax sale. The assessment, the return by the collector and the conveyance by the treasurer should sufficiently describe the property so that the record will identify and disclose the property taxed and sold. Says Agnew, J., in Philadelphia v. Miller, 49 Pa. 440: 'The evidence of identity is the record which contains the description and fixes the duty. Assessment is, from its legal requirement and the necessity of preserving its evidence, a written entry, and must depend upon the records of the commissioners' office, and not upon parol testimony, or the private duplicate of the assessor. . . . It is the assessment which confers the power to sell, in the same manner as a judgment on which an execution is issued. It is the assessment, therefore, which must contain the means of identification of the ownership in order that the proprietor may pay his tax, or redeem, if he fails to pay in time. . . . The result of the whole is, that where the as- sessment wholly fails to lead to identification so that neither the owner nor the officer can tell that his land is taxed, the duty of payment cannot be performed, and the assessment is void."" 1 The land must be in some way identified with something ap- pearing in the assessment, 6 and where the assessment wholly fails to lead to identification, so that neither the owner nor the official can tell that his land is taxed, the duty of«payment can- not be performed and the assessment is void. 7 Hence, an assessment of a certain number of acres of un- seated land without any other description or means of identifi- cation, in the name of a person unknown in connection with any title or possession of the land, will not support the sale of the land as unseated for taxes. 8 But assessments need not contain in themselves all the cir- cumstances which are necessary and sufficient to identify the land without recourse to other evidence. They must be a "source of identification." Where circumstances relied on to show the as- sociation of the name given in the assessment with the land B Norris v. Del., Lack. & W. R. 'Philadelphia v. Miller, 49 Pa. R. Co., 218 Pa. 88 (1907). 440 (1865). "Lyman v. Philadelphia, 56 Pa. 'Philadelphia v. Miller, 49 Pa. 488 (1867); Pisk v. Corey, 141 Pa. 440 (1865). 334 (1891); Bachop v. Critchlow, 142 Pa. 518 (1891). REQUIREMENTS AS TO ASSESSMENTS. 143 claimed rests In parol, the question of identification is for the jury, 9 but where the description of land sold at a tax sale, as re'turned by the assessor, is applicable to either of two lots, it is erroneous to submit the question of identity to the jury without evidence. 10 To pass title by tax sale, the assessment must contain some element either of circumstance or name which leads to the iden- tification of the land. The assessment is void only when it fails to lead to identification. Although there be no other element of description, if the name in which it was assessed has become linked to the land by some known claim of title or possession, it is a source of identification and will support the assessment. 11 Assessments of taxes on lands should follow the description of the land furnished by the owner to the registry bureau [in Philadelphia], except where the owner himself has subdivided his property for the purpose of sale of lots, or where a large tract of land is intersected by public streets. Neither assessors nor the board of revision of taxes have authority to lay out private streets or alleys on a large lot, nor to recognize any but such as are laid out by the owners. 12 Descriptions of lands in returns of collectors of taxes should be definite so as to enable the owner, the officer and the public to ascertain from the return the exact property which is delin- quent and subject to sale. H«nce, where lands, so described in the collector's return as to be incapable of identification, are sold for taxes, .the sale is invalid and does not divest the owner of title. 13 After a severance of the surface and the underlying coal, each interest is taxable separately, and returns for tax sales should identify the interest to be sold. 14 "McClement's Appeal, 2 Pa. Watts 533; Brotherline v. Ham-- Super. Ct. 443 (1896); Woodside mond, 69 Pa. 128 (1871). v. Wilson et al., 32 Pa. 52 (1858) ; "Philadelphia v. Thurlow, 5 Pa. Miller v. McCullough, 104 Pa. 624 Super. Ct. 600 (1897); 39 W. N. (1883) ; Franklin Coal Co. v. Ber- C. 412. tels, 109 Pa. 550 (1885). "Norris v. Del., Lack. & W. R. "Marsh v. Nelson, 101 Pa. 51 R. Co., 218 Pa. 88 (1907). See '(1882)- Vandermark v. Phillips et al., 116 "Glass v. Gilbert, 58 Pa. 266 * Pa. 199 (1887). (1868). See Coxe v. Blanden, 1 "Norris v. Del., Lack. & W. R. R. Co.. 218 Pa. 88 (1907). 144 TAXATION IN PENNSYLVANIA. An assessment of land in the joint names of the separate war- rantees, not shown to have ever been jointly interested, and with- out other matter of identification, coupled with the fact that the name of one of the persons assessed was incorrectly given, amounts to more than a mere irregularity, and a tax sale based thereon confers no title. 15 Where there are three separate tracts assessed in the name oi A, one for sixty acres and two for forty acres each, and one oi the forty acre lots was assessed and sold as "a tract of land con- taining forty acres, situated in the township of Clinton in the county of Lycoming, surveyed to J. Coleman," held, that there was no question of identification for the jury. 16 An assessment of two hundred and seven acres of unseated land in the name of "Thomas Carothers" will not sustain a tax sale of a part of four hundred and seven acres of land war- ranted in the name of "James Crowthers," where there is no evi- dence to identify the two hundred and seven acres as a part oi the four hundred and seven acres. 17 Where a tract is properly designated and assessed 'and the taxes paid thereon, the fact that the number of acres given in the as- sessment is less than the actual number will not prevent the trad from being discharged from tax. The number of acres in ar assessment is simply the description and does not overturn the number of the tract nor the name* of the warrantee, so that the assessing of the wrong number of acres does not in itself give notice to the owner that but a part of the tract is assessed. 18 Where a tract numbered 1031 was erroneously marked No 1029 in the general draft in the commissioners' office, and as such advertised and sold for taxes, held that the sale was void inasmuch as the owner had and could have had no notice of th( assessment for which the sale was held. It is essential to th< validity of a sale for taxes that the land sold shall be so desig- nated in the assessment as to lead the owner to a knowledge o: the fact that it is his land which is assessed. The number of < tract of donation land marked upon the ground is the best evi "Fisk v. Corey, 141 Pa. 334 Super. Ct. 337 (1906). 'See Greei (1891). v. Belford, 4 Penny. 65; Fisk \ 16 Hess v. Harrington, 73 Pa. " Corey, 141 Pa. 334 (1891). 438 (1873). "Brown v. Hays, 66 Pa. 22' "Auman v. Hough, 31 Pa. (1873). REQUIREMENTS AS TO ASSESSMENTS. 145 dence of designation, and must prevail where it differs from others. 19 The identity of a tract of unseated land sold for the payment of taxes is a matter of fact which cannot be made to depend alone upon the name in which it is sold or any other particular matter of description, and it is error to reject evidence of such a title because the name in which it was sold does not correspond pre- cisely with that of the warrantee or any subsequent owner. 20 The identity of the land is a question of fact for the. jury. The designation will be sufficient if it afford the means of iden- tification and does not positively mislead the owner. A sale will pass title though the property sold be assessed in a wrong name or by a wrong number, if otherwise designated so as to be cap- able of identification. 21 Where a deed to a grantee is in his proper name, and an accurate description of the property and the registration in the city engineer's office is in exact accordance therewith, it is no hardship to require of the delinquent tax collector that he comply with the provisions of the law requiring accuracy of description. If in such case a tax lien is filed which omits the middle initial of the grantee, and the land is described as upon a certain street, according to a plan named, which plan nowhere, appears of rec- ord, and the side of the street is not stated, nor any other street, by which the land may be located, a tax sale under the lien can- not be sustained, and a sheriff's deed, following the description of the lien, will be rejected in an action of ejectment by the representatives of the original owner to recover the land. 22 Where, in an assessment of unseated lands for taxes, the tract is described by its proper number in the name of the original warrantee, and so designated as to lead the owner to a knowledge that it is his land which is assessed, a tax sale thereof is valid notwithstanding a misstatement of the number of acres con- tained. 23 Where a warrant originally assessed as 990 acres, and after- M Dunn v. Ralyea, 6 W. & S. ^Cunningham v. Neeld, 198 Pa. 475 (1843). 41 (1901). "Thompson v. Fisher, 6 W. & "Putman v. Tyler, 117 Pa. 570 S. 520 (1843). (1888). M Woodside v. Wilson et al., 32 Pa. 52 (1858). 10 146 TAXATION IN PENNSYLVANIA. ward assessed in two parcels of 559 and 150 acres, respectively was sold to the county commissioners as 559 acres, held, tha the commissioners took title to the entire amount of land cov ered by the warrant. 24 § 157. Separate tracts of land must be assessed sep arately. There is no authority of law for assessing taxes agains several tracts of land as a whole, nor for selling the same as ; whole, 25 and assessments made jointly on real and persona property are void. 26 But a body of coal purchased in separati parcels from the owners of lands overlying the same, may b< assessed as a whole, when the body is owned and mined as ; whole, and not be assessed in the parcels in which it was ac quired. 27 A treasurer's sale of several tracts of unseated land separately assessed, at a time, for one price, is void. The act of assembh, gives no authority except for the sale of each tract separately. 271 Where several tracts are mentioned in the assessment by theii respective warrantees' names, and the quantity in each is givei and that quantity aggregated and valued at a certain amount pel acre, this constitutes a separate assessment of each tract. 27 " But where several contiguous tracts owned by the same per son are assessed-as one tract, it may be presumed that the ownei so returned them, and a sale in that form is valid. 28 A tract had been divided into two parts, one of 107 acres, whicl was seated, and one of 200 acres which was unseated, held b] different owners. Taxes were assessed on the whole tract, aftei division, and the whole 307 acres were sold as unseated land Held, that the assessment of the two parts as a single tract wai irregular and the .sale conferred no title to the 107 acres o: seated land, but a good title would pass under the sale to the 2CK acres, after the time of redemption had gone by: Mitchell v Bratton,5 W. & S. 451; Campbell v. Wilson, 1 Watts 503 Harper v. McKeehan, 3 W. V. & S. 238; McCord v. Bergantz, ; 24 Reading v. Finney, 73 Pa. 467 Plate Glass Co. et al., 35 Pa. C (1873). C. 673 (1909). 2SCunningham v. White, 2 D. 2 ? a Woodburn v. Wireman, 2' R. 531 (1892); Morton v. Harris, Pa. 18 (1856). 9 Watts 319. 2 7t>Woodburn v. Wireman, 2' 26Stark v. Shupp, 112 Pa. 395 Pa. 18 (1856). (1886). 28Woodburn v. Wireman, 27 Pa 2TWashington County v. Pgh. 18 (1856). REQUIREMENTS AS TO ASSESSMENTS. 147 \ Watts 487. The unseated part was chargeable only with its own share of the taxes, and the repayment of the taxes on the un- seated part could not be demanded by the owner of 'the other before he could be permitted to redeem. 29 A sale for taxes, as one tract and for a gross sum, of separate tracts, which are neither held as one nor owned by the same person at the time of the assessment, and assessed together in his name as the owner of the whole, will confer no title upon the purchaser. 30 § 158. Encumbered real estate to be assessed at its full value. So much of the proviso contained in the fourth section of an act entitled "An act to create additional revenue to be applied towards the payment of interest and the extinguish- ment of the debts of the Commonwealth," passed the eleventh day of June, 1840, as authorized the deduction of the value of any ground rent, dower or mortgage on any real estate within this Commonwealth, in estimating the value thereof, be and the same is hereby repealed, and said real estate shall hereafter be estimated at its full value, and taxed accordingly. 31 § 159. Timber lands to be separately assessed. It shall be the duty of the several assessors in this Commonwealth, in their return of real estate to the commissioners of the proper county, at the next triennial assessment, and at each triennial assessment thereafter, to make return of all the timber land in their proper district by specifying in separate columns how many acres each tract contains of cleared land, and how many in timber. 32 § 160. Assessors to return separate lists of property exempt from taxation. It shall be the duty of the several assessors in this Commonwealth to make return of all property now or which hereafter may be^ especially exempt by act of as- sembly from taxes, in a separate list to the commissioners of the proper county, for which service the said assessors shall receive the same compensation as is allowed for like services in other cases. 33 ""Dietrick & Wilson v. Mason, 82 Sec. 1, Act of June 13, 1883, 57 Pa. 40 (1868). P. L. 112. M Fisk v. Corey, 141 Pa. 334 ""Sec. 5,. Act of April 5, 1849, P. (1891). L. (1850) 962. "Sec. 7, Act of May 15, 1841, P L. 393. 148 TAXATION IN PENNSYLVANIA. / § 161. Ground rents to be assessed to owners thereof The assessors in the several cities, boroughs and counties of thii Commonwealth, in estimating real estate subject to ground rent where there is no provision made in ground rent deeds that thf lessee shall pay the taxes on the said ground rents, shall estimatf and assess for taxes the said ground rents to the owners thereof. 3 - It is the principal of ground rents which is taxable, not th< annual income. Under the fourth section of the Act of June 11 1840, the value of ground rents was deducted from the value o: the real estate before taxing the latter to its owner. This provisc was expressly repealed by § 7, Act of April 1, 1845, supra. Thf ground rent is exempt where the lessees have covenanted to pa] the taxes ; otherwise, they are taxable to the holder of the rent. 3 * Where the owner of land charged with a ground rent fails tc pay the tax assessed on the land, and subsequently defaults ir payment of the ground rent, and the owner of the ground ren obtains judgment for the arrearages thereof, and, at a sheriff': sale, under the judgment, buys in the land, and, in order to save th< property, pays the arrearages of taxes, he may recover in as sumpsit from the former owner the taxes which said ownei should have paid. 36 The owners of ground rents in fee are not liable for any par of the taxes assessed upon the lands out of which the rent is sues. 37 A purchaser at a tax sale takes the land subject to the pay ment of any ground rents thereon. 38 § 162. Assessment of lands lying within two or more counties. The assessors of the several counties within thii Commonwealth shall, on seated lands, make the assessment in thi county in which the mansion house is situate, when county land; divide a tract of land; and where the lines which separate ; borough from a township, or one borough from another, pas: through the lands of any person, such lands shall be assesse< where the mansion is situated. 39 So much of the Act of July 13, 1883, as relates to cases when M Sec. 1, Act of April 1, 1845, 87 Phila. Library Co. v. Ingham P. L. 280. 1 Whart. 72 (1835). "'Robinson v. Allegheny County, ss Irwin v. Bank of the U. S., 7 Pa. 161 (1847). Pa. 349 (1845). ""Frank v. McCrossin, 33 Pa. M Act of July 13, 1883, P. L,. 51 Super. Ct. 93 (1907). REQUIREMENTS AS TO ASSESSMENTS. 149 lines which separate a borough from a township, or one borough from another, pass through the land of any person, is unconsti- tutional, the title of the act not supporting the same. 40 The said act does not apply where a power-house to generate electricity is erected on a part of a farm on the opposite side of the Susquehanna River from the mansion house. Lands so used are severed from the rest of the tract, and are not part of nor appurtenant to the farm. 41 A tract of land lay in Centre County. By a division of the county, a part of the land was thrown into Clearfield County and was sold for unpaid taxes. Held, that the fact that the whole tract had been assessed and taxes paid thereon in Centre County did not relieve the part of the Clearfield County from taxation. 42 § 163. Assessment of lands lying within two or more townships. The assessors of the several counties within this Commonwealth shall, on seated lands, make the assessment in the township in which the mansion house is situate, where township lines divide a tract of land. 43 The 59th section of the act regulating election districts and for other purposes, approved the 11th day of July, 1842, be and the same is hereby repealed so far as the same relates to Berks and Luzerne Counties. 44 The foregoing Act of February 23, 1847, repeals § 59, of the Act of July 11, 1842, P. L. 133, supra, so far as it relates to Lackawanna County, which was formed from Luzerne County in 1878. 45 The 59th section of the Act of July 11, 1842, entitled "An act regulating election districts and for other purposes," shall not be construed to extend to lands lying in different townships, the mansion house of which is in an incorporated borough or city. 46 Under the foregoing 59th section of the Act of July, 1842, -taxes should be assessed in the township in which the mansion house is located, where township lines divide a tract of land, and a portion of a farm is located in an adjoining borough, notwith- w La Plume Borough v. Gard- "Sec. 59, Act of July 11, 1842, ner, 148 Pa. 192 (1892). P- L. 331. • "York Haven Water & Power "Act of Feb. 23, 1847, P. L. 133. Company's Appeal, 212 Pa. 622 45 Com. v. Wheelock, 13 Pa. {1905); 218 Pa. 578 (1907). Super. Ct. 282 (1900). "Patton v. Long, 68 Pa. 260 • "Sec. 15, Act of April 25, 1850, <1871). P- L- 572. 150 TAXATION IN PENNSYLVANIA. standing the fact that a house larger than the mansion house is situated in the borough, which the owner permits his mother and sister to occupy free of rent. The house in the borough is liable to assessment in the borough as a distinct tenement, and does not draw to it any portion of the farm, whether in the township or in the borough, which is not in the exclusive possession of the oc- cupant of the house. 47 I Where separate tracts of land were purchased by a taxable at different times, two located within a township and two within a borough, all contiguous and all used by him as one tract, the mansion house being within the township, held, that all such lands were taxable within the township. 48 The purchase and annexation of a smaller tract of land sit- uated in one township to a larger traGt situated in another town- ship, and farmed as a whole, renders the whole assessible in the township where the mansion house is located. 49 i Where a farm is divided by township and borough lines, and the mansion house is in the borough, the land in the township is assessable in the township, and the land in the borough, whether the lands outside of the borough lie' in one or in several town- ships. 50 § 164. Assessment of lands where the mansion house is partly in one township or borough and partly in another. Whenever the dividing line between any township and borough or between any two townships in this Commonwealth, as now or here- after may be located, shall pass through the mansion house of any tract of farm land, it shall be and may be lawful for the owner of the land so divided to choose, as the place of residence of its occupants, either of the townships or the borough, by a written notice of his election to the commissioners of the county : Pro- vided, that a choice once so made shall be binding on the owner and occupiers of such mansion house and on future owners "Com. v. Wheelock, 13 Pa. 571 (1906), reversing same title, Super. Ct. 282 (1900). 30 Pa. Super. Ct. 21 (1906). In "Bennethum v. Eckert, 7 W. Bausman v. Lancaster County, 50 N. C. 373 (1878). , Pa. 208 (1865), it was held that "Nippenose Township v. Bas- where the mansion house is lo- tress Township, 7 W. N. C. 245 cated in a township, and a part (1879). of a farm in a city, the whole is "Follett v. Butler County, 219 taxable in 'the township and none Pa. 509 (1908); 31 Pa. Super. Ct. in the city. REQUIREMENTS AS TO ASSESSMENTS. 151 thereof: And provided further, that in case of the neglect or refusal of the owner of such land to make an election as afore- said, the persons occupying said mansion house shall be regarded as residing wholly within the township, and the assessors of such township shall, in such case, or when he elects to reside in the township, assess therein such persons, and all the farm or tract of land on which such mansion house is erected. 51 Where the dividing line between a city and a township passes through the mansion house of the owner of a tract of land lo- cated partly in the city and partly in the township, and the owner has filed a notice that he has chosen the township as his resi- dence, the city may not tax his house and lot in said city. 52 § 165. Assessment of property belonging to estates of decedents. Where any person shall hereafter die, leaving real or personal "estate, which by the existing laws of this Common- wealth, is subject to taxation for state or county purposes, such property, so long as the same shall belong to the estate of such deceased person, may be taxed in^ the name of the decedent, or in the name of his administrator or administrators, executor or executors, or his heirs generally, or in the name of any of the administrators, executors, or heirs ; and in taxing it in the names of the executors, administrators, or heirs, it shall not be necessary to designate them by their Christian or surnames; and such tax on such real estate shall remain a lien on the part taxed for the period of one year, from the first day of June following the assessment of said tax, and may be collected from the person or persons in possession thereof, in the same manner as is now provided by law; and all taxes heretofore thus assessed, are hereby declared to be legal, and may be collected in the manner herein provided: Provided also, that the expiration of the lien of said tax shall not prevent the collection thereof within the time now provided in other cases; and where a different time is fixed by law for the existence of the lien of any such tax, this act shall not operate as a repeal of such law, but the same shall be construed as controlling the provisions of this section, so far as regards the time such lien is to- continue in force. 53 M Act of May 24, 1878, P. L. ra Sec. 23, Act of April 22, 1846, 131. ' P - L- 491. ""Lancaster v. Bare, 22 Pa. C. C. 662 (1899); 8 D. R. 472. 152 TAXATION IN PENNSYLVANIA. "This act plainly contemplates a proceeding in rem against the land with notice _ to the persons in possession ; these may be personal representatives or heirs. It does not undertake to de- clare that these taxes assessed twenty-five years after his death are a personal debt of the decedent, but provides a remedy against the land for the taxes assessed on them, and that they may in the way pointed out in the act be collected with notice to the person in possession." 54 The right to assess taxes against the "heirs" of a decedent does not apply when the land has ceased to be the property of the decedent's estate, by devise or sale. Where lands were de- vised by the owner, and subsequently sold under proceedings in partition as the estate of the devisee, and taxes were assessed against the same as the property of the heirs of the original' owner — and especially where said taxes are levied* against two separate tracts as one — the court will restrain the county treas- urer by injunction from selling such lands. 55 It seems that an assessment in the name of a "decedent's heirs," without giving their Christian or surnames, or otherwise desig- nating them, is sufficient in the case of unseated lands, but not in the case of seated lands. 56 § 166. Assessment of hotel property. In assessing the value of hotel property for the purposes of taxation, the test is as to what the property would bring at a bona-fide public sale after proper notice. If the money earning capacity of the insti- tution would influence its value at such a sale, that should be taken into consideration, as well as the fact that the property is used in an undertaking in an experimental stage. 57 § 167. Assessment of oil lands. In assessing oil lands the assessor may take into consideration the fact that the land produces oil, but when the oil lease is more than a mere license to raise to the surface and take oil, it amounts to a separation of the ownership of the oil in place and the ownership in the surface, and they should be assessed to their respective owners. 58 "Steen's Estate, Phila.'s Appeal, "Cambridge Spring Co.'s Ap- 175 Pa. 299 (1896). peal, 21 Pa. C. C. 669 (1898); 8 "Cunningham v. White, 2 D. D. R. 55. R. 531 (1892). o M Smith v. Forest County, 23 ""Cunningham v. White, 2 D. R. Pa. C. C. 643 (1900). 531 (1892* REQUIREMENTS AS TO ASSESSMENTS. 153 When coal, oil or other mineral underlying a tract of land is conveyed by deed or lease, the grantee takes an estate in land assessable and taxable to him; but where the instrument is but a lease for a definite term, with possibility or probability of its return to the grantor, the estate is not assessable as land to the grantee. The fact that the lessee covenants to pay the taxes has no bearing on the pecuniary liability of the lessor. 59 § 168. Assessment of coal lands. Where the surface of lands and the minerals in place thereunder have been severed by the agreement or conveyance of the owner, and the respective divisions have become vested in different owners, the municipal authorities are bound to levy their taxes according to the owner- ship and value of these divisions, and each owner can be held only for the tax on his interest, whether underlying strata or surface. A leased to B all the coal beneath the surface of a certain tract of land belonging to "A." The lessee was to mine and remove in each year a certain number of tons, paying for the same monthly, at a certain rate per ton, whether mined or not, unless mining should be prevented by certain specified contingencies. In case of neglect to pay for thirty days, the royalty might be distrained for, and for continued default the lease might be for- feited. The letting was not for a time certain with reversion to owner, but perpetual until all the coal was mined. The rights and privileges were extended to the heirs, executors, administra- tors and assigns of the respective parties. Held that this operated as a severance of the surface from the subjacent strata, amount- ing to a sale or assignment of the coal in place, such as relieved the owner of the surface from responsibility for the taxes levied upon the coal. 60 The liability of the owner of coal or mineral in place for taxes levied thereon results from -the nature of his estate or interest, and hence he is not relieved from his liability, on the principle inclusio unius est exclusio alterius, by an express covenant in the instrument of severance that he shall pay all the taxes levied upon the coal mined, without recourse to the lessor to refund the same. 61 ""Morre's Appeal, 4 D. R. 703 R. R. Co. v. Sanderson, 109 Pa. (1895). 583 (1885). ""Sanderson v. Scranton City, "Sanderson v. Scranton City, 105 Pa; 469 (1884); D., L. & W. 105 Pa. 469 (1884). 154 TAXATION IN PENNSYLVANIA. But where, by a mining lease made in 1872, the lessees of the right to mine coal under certain lands covenanted to pay all taxes upon the surface occupied by them, and the lessors to pay all taxes upon the coal in the ground and upon the surface not occu- pied by the lessees, and a portion of the surface was afterwards conveyed to the lessees in fee, with a provision in the deed that it should in no way affect their interest in and title to the coal, nor the rights of either parties under the provisions of the lease, held, that the liability of the lessors to pay the taxes upon the coal in place remained. 62 A leased to B all the coal beneath the surface of a certain tract of land owned by A. B covenanted to mine and remove yearly a certain number of tons, paying therefor, whether mined or not, , a specified royalty per ton, unless mining was prevented by. certain specified contingencies. Failure to pay for thirty days gave the lessor the right of distress, and after sixty days' failure, if there were no goods sufficient to pay the royalty subject to distress, the lease might be forfeited at the option of the lessor, who could re-enter without action at law. The lease was made "per- petual until all the coal was mined" and the rights conferred by the lease were extended to. the heirs, executors, administrators and assigns of the respective parties. B covenanted to pay all taxes on coal mined, without recourse to A to refund the same. In an action by B against A to recover taxes levied on the coal in place and paid by B under protest, held, that the agreement was not a lease but an absolute sale of the coal in place, and operated as such a severance of the surface and subjacent strata as would render the vendee liable for all taxes levied upon the coal in place. 63 Under a lease of coal lands, reserving the surface until the merchantable coal shall be exhausted, providing that the lessor "shall pay all taxes on lands hereby leased," and the' lessee "shall pay all taxes on their buildings and improvements and buildings," the lessors are liable for the taxes on both surface and coal in place. In such case, where the taxes assessed to the lessee on the coal in place have been paid by the lessee to the proper col- lector, on demand therefor, the lessee may lawfully retain the "Woodward v. D., L. & W. R. ""Del., Lack. & Western R. R. R. Co., 121 Pa. 344 (1888) ; 22 W. v. Sanderson, 109 Pa. 583 (1885). N. C. 292. REQUIREMENTS AS TO ASSESSMENTS. 155 amount thereof out of royalties otherwise due to the lessor, and such payments are not voluntary. 64 The owner of mineral rights, holding by virtue of a reservation in a deed, is neither a tenant in common nor a joint tenant with the owner of the surface. Each is separately subject to taxation, and there is no equity growing out of the relation which they bear to each other which will prevent one from buying the estate of the other at a tax sale. A sale of unseated lands for taxes which were assessed before the severance of the title to the surface from that to the min- erals, and a purchase of the whole by the owner of the surface, passes a good title to the whole as , against the owner of the .minerals. 6 ^ Where land is undeveloped and it is not known whether it is underlaid with coal or not, or where the existence of mineral in the land is purely conjectural, it. should not be considered in assessing the land; but where the owner has by agreement or conveyance severed the coal right from the surface, such coal right should be taxed, even in the absence of proof of the ex- istence of coal in the land. 66 On appeal a court will take into consideration the presence of large bodies of water rendering mining very expensive. 67 The grant of the right to mine coal in the land of the lessor and remove it therefrom is a grant of an interest in the land itself, and not a mere license to take the coal. 68 Where the title to the surface of lands and to the coal there- under is vested in one person, the whole must be assessed together for purposes of taxation as "land." The surface and the coal may not be separately valued and assessed, as when they are owned by different parties. The fact that the aggregate valua- tion on land and cpal. is no greater than should have been put on the land alone, does not authorize the separate valuation and assessment of the coal. 69 When the coal and the land are owned by different parties, they "Miles v. D. & H. Canal Co., "'Berwind-White Coal Mining 140 Pa. 623 (1891). Co. v. Clearfield County, 18 Pa. "Powell et al. v. Lantzy et al, C. C. 545 (1896). 173 Pa. 543 (1896). ""Hope's Appeal, 1 Sadler's S. "Berwind-White Coal Mining C. Cases 307 (1886). Co. v. Clearfield County, 18 Pa. "Scranton City v. Gilbert, 16 C. C. 545 (1896). W. N. C. 28 (1885). 156 TAXATION IN PENNSYLVANIA. should not be taxed in the aggregate more than the land would have been taxed had the title to both coal and land been in the same party. 70 In determining the value of coal lands the courts will take into consideration the fact that the assessed value of other real estate within the jurisdiction of the authority levying the tax is below its actual value, and will assess such lands at that proportion of their actual value at which such other real estate is assessed, but, in applying this rule a court may not include in the valuation personal property, to the disadvantage of the owners of the lands. 71 No distinction should be made in valuing coal lands belonging to mining companies and those belonging to private owners. 72 Assessments in separate items may be made of the coal and of the tipples and other improvements. 73 In order to secure uniformity of assessment of coal lands throughout a county a court may, after hearing evidence, fix the valuation by order at sixty dollars per foot-acre. 74 In a later case, however, it was held that the foot-acre as a unit of value could not be sustained. 75 Where by an indenture called a coal lease the coal underlying a tract of land vested in the defendant, and he thereby became liable to assessment thereon, but taxes were assessed against the lessors for years after the execution of the lease and paid by them, no notice of the assessment having been brought home to the defendant, nor request made for the payment of the taxes by it, it is a question for the jury whether the taxes were paid by the lessors under a mistake of law or fact, or voluntarily. 76 On April 18, 1902, a coal company purchased the property of i '"Logan v. Washington County, ,2 In re Assessment Irwin Basin 29 Pa. 373 (1857); In re Assess- Coal Lands, 17 P. R. 825 (1907). ment of Irwin Basin Coal Lands, See, however, Washington County 17 D. R- 825 (1907). 'See, how- v Pgh. Plate Glass Co., 35 Pa. ever, Washington County v. Pitts- C. C. 673 (1909). burgh Plate Glass Co., 35 Pa. C. ,s In re Assessment Irwin Basin C. 673 (1909). Coal Lands, 17 D. R. 825 (1907). "Del., L. & W. R. R. Co.'s Tax "Triennial Assessment of Coal Assessment (No. 1), 224 Pa. 240 Lands, 9 Lack. 215. (1909); In re Assessment Irwin "Coal Company's Appeal, 14 Basin Coal Lands, 17 D. R. 825 Luz. 253. (1907). "Millard v. R. R. Co., 9 Lack. 346. REQUIREMENTS AS TO ASSESSMENTS. 157 another such company under an agreement that the vendee was to be free from all claims or liabilities whatsoever, against the vendee company or its property at the date of transfer. On Jan- uary 24, 1902, the court of the county ordered a special tax for the payment of an indebtedness upon the part of the township in which said property was situated, incurred prior to said date. Held, that the liability of the said property for the payment of the indebtedness was fixed by the decree on January 24, 1902, and was a liability upon the property of the vendee company at the date of transfer. 77 Coal lying beneath the Susquehanna River beyond the limits of the low-water line on the Wilkes-Barre side, is not taxable by that city, its jurisdiction extending only to said line. 78 Where a body of coal, purchased by the owners to be used and mined as a whole, underlies tracts of surface land belonging to different owners, it should be assessed as a whole and not in the separate parcels in which it was purchased from the several sur- face owners, and the amount of the assessment may be greater than the aggregate valuations of the separate parcels, inasmuch as the coal acquires an enhanced value through its being part of a block of coal. 79 Miners' houses, stables, shops, office buildings, tipples, engine houses, etc., belonging to the owner of the fee, are taxable as real estate, 80 but not movable mining machines. 81 § 169. Irregularities in assessments. A general omis- sion by assessors of some of the objects of taxation does not render void the assessments of the property of particular per- sons as to other objects of taxation, nor does it avoid the whole assessment; 82 and where assessors neglect to take into account in one or more instances the underlying mineral, in determining the value of the land for purposes of taxation, a court will not be warranted in reducing below actual value the assessed valu- "Hudson Coal Co. v. Ogden, Plate Glass Co., 35 Pa. C. C. 673 212 Pa. 407 (1905). (1909). "Gilchrist's Appeal, 109 Pa. M In re Assessment of Irwin 600 (1885); 16 W. N. C. 261. Basin Coal Lands, 17 D. R. 825 "Washington County v. Pgh. (1907). Plate Glass Co., 35 Pa. C. C. 673 "'Insurance Company v. Yard, (1909). 17 Pa. 331 (1851). "Washington County v. Pgh. 158 TAXATION IN PENNSYLVANIA. ation of such underlying mineral in adjoining lands or those in the same locality. 83 A failure of the county commissioners to be sworn as a board of revision does not invalidate a tax assessment made by them when acting as such board, nor is it invalidated because the com- missioners, acting as a board of revision, send to the assessors the original triennial assessment, instead of a transcript thereof, as required by § 11 of the Act of April 15, 1834, P. L. 509. 8 * The omission from an assessment of the signature of the as- sessor is cured by § 4 of the Act of March 13, 1815, 85 and the omission of the dollar mark before the amount of an assess- •ment is immaterial. 85 " Carrying out the amount of the tax is a purely clerical matter, and the omission to do so is no defect. 86 § 170. Miscellaneous decisions relative to assessments. Proof of non-assessment of taxes against a voter for two years prior to an election, in the district in which he voted, does not, prima facie, establish the fact that he had not paid a duly as- sessed state or county tax within two years. 87 The mere statement of assessors, after their work has been completed, that their assessments were not made upon an ex- amination and view of the properties assessed, but were merely copies from the assessments made by preceding assessors, cannot be allowed to invalidate their assessment, and the opinion of a witness based upon a comparison of the assessment books is not competent evidence. The assessment books themselves are the proper evidence. 88 Whether an assessment of seated real estate made outside of the ward in which it is located, and presumably not made by the assessor of the proper ward, will support a sale for taxes •under the Act of April 29, 1844, not decided. 89 83Berwind-White Coal Mining 86Heft v. Gephart, 65 Pa. 510 Co. v., Clearfield County, 18 Pa. (1870). C. C. 545 (1896). 87Breslin's Contested Election, 84 Manor Real Estate & Trust 2 D. R. 549 (1892). Co. v. Cooner, 209 Pa. 531 (1904). 88Van Storch v. Scranton City, 85Towsen v. Wilson, 9 Pa. 270 3 Pa. C. C. 567 (1887). (1848). See § 245. v 8 9Pottsville Lumber Co. . v. 85aSmith v. Phila. City Pass. Wells, 157 Pa. 5 (1893). Ry. Co., 15 Phila. 89 (1882); 12 W. N. C. 171. REQUIREMENTS AS TO ASSESSMENTS. 159 § 171. Assessment bopks. and other documents as ev- idence. Copies of the proceedings of the commissioners, cer- tified by theirt clerk, under the county seal, shall be good evidence in the trial of any case in any of the courts within this Com- monwealth. 90 . . . All records of the county commissioners charging lands as unseated with arrears of taxes shall be evidence of an as- sessment. . . . 91 Certified extracts from the assessment books of unseated lands and certified by the clerk of the commissioners, under the county seal, to be a true copy of the taxes assessed upon such tract or tracts, taken from the assessment remaining in the commissioners' office, shall be received in, evidence in all the courts of the Commonwealth. . . , 92 The act which makes certified copies of assessments in the ■commissioners' office evidence does not exclude the originals when properly authenticated. Such books and records cannot be produced and authenticated by a person having no official custody of them, but it is competent for the parties to admit their au- thenticity, which supersedes the necessity of proof. 93 The tax laws prescribe no method for the keeping of assess- ment books or that they shall be kept, except so far as is in- volved in the general directions that unseated lands shall be valued as other property. The maxim omnia prcesumuntur rite esse acta applies to whatever method may be adopted, and whatever evi- dence of official action may exist in the commissioners' office. There is nothing to which the maxim applies with so much force as to a tax title. 94 The form in which assessments of unseated lands are made and entered, and the method of certifying and transmitting them to the county treasurer, are matters of official practice, entirely at the discretion of the commissioners of the several counties, °°Sec. 21, Act of April 15, 1834, taxes on unseated lands of Ridg- P. L. 541. wa y Township" complying with "Sec. 21, Act of April 12, 1842, the requirements of the act. P. L. 262. ""Miller v. Hale, 26 Pa. 432 M Sec. 2, Act of April 19, 1843, (1856). P. L. 342. See Earley v. Euwer, M Heft v. Gephart, 65 Pa. 510 102 Pa. 338 (1883), for a certifi- (1870). cate from the "land book for 160 TAXATION IN PENNSYLVANIA. and subject only to the condition of being intelligible, and they must be expected to be very various. 96 The minute books of the county commissioners tflay be put in evidence, even though they be not kept in the form prescribed by statute. 97 The assessment of lands is a matter resting upon the written evidence found, or once existing, in the office of tbe county com- missioners. The return constitutes the evidence of assessment. Books, dociynents, etc., from the commissioners' office, showing the proceedings of the commissioners in the matter of assess- ments, should be received in evidence. 98 A book from the commissioners' office, proved to contain the assessments of a township, containing a list of unseated lands and the following entry: "No 3888, quantity, 1100 acres, name of war- rantee, John Olden, valuation $1,650.00." This, in connection with a resolution of the commissioners fixing the rate of county taxes, and setting the date of appeal, was held to be sufficient evidence of an assessment to support a sale. 99 A draft of the unseated lands of a county, made under the au- ■thority of the commissioners, partakes of the nature of a public document, and may be given in evidence in an action of ejectment to identify the land taxed and sold. 100 The production of the tax duplicate and warrant, with a mark on it made by the collector that it had been paid, is sufficient to- prove payment of a tax, without calling the collector himself. 1 All papers found in the commissioners' office purporting to be an assessment of unseated land, are prima facie evidence of an assessment, sufficient to support a sale of property for the pay- ment of taxes. 2 Tax books found in the office of the county commissioners are official documents and competent evidence in an action of eject- ment for unseated lands sold for taxes. So also is a receipt of a treasurer for the surplus bond required to be given by the- ""Laird v. Hiester, 24 Pa. 452 100 M'Coy v. Michew, 7 W. & S. (1855). 386 (1844). "Herron et al. v. Murphy, 22 "Lewisburg Overseers v. Au- W. N. C. 181 (1888). gusta Overseers, 2 W. & S. 37 M L,yman et al. v. Philadelphia, (1841). 56 Pa. 488 (1867). ! Bratton v. Mitchell, rW.&S. • "Wells v. Smyth et al., 55 Pa. 259 (1844). 159 (1867). REQUIREMENTS AS TO ASSESSMENTS. 161 purchaser. 3 Such books may be given in evidence in ejectment, if shown to belong to the commissioners' office, by any one who knows the facts. The clerk who made the entry need not be called. 4 Under, the Act of April 12, 1842, § 21, relative to unseated lands, papers in the commissioners' office will support the fact of an assessment which, before that act, would not, per se, be evi- dence of- an assessment. There may be no actual assessment in evidence, but there may be evidence, by records and papers in the commissioners' office, from which an assessment may be inferred. Analogous entries in a book relating to sales of un- seated lands are evidence for the jury on the question whether land sold for taxes had been assessed. 5 Assessment books and tax receipts cannot prove title in an ac- tion of trespass, but they are some evidence of claim, and are more or less efficient as a basis of inference. 6 Assessment lists are not such records as import verity in themselves, especially where some material alterations in them are apparent and others are alleged, and the entries are man- ifestly inconsistent. The court should not charge positively in re- gard to the identity of a tract as to which such assessment lists are offerefl, but they, with such other evidence as may be pro- duced in connection with them, should be referred to the jury. 7 The fact that a book from which extracts of an assessment were taken contained only part of the record of the treasurer's sale, though showing irregulafmethods, is not conclusive against it as a record of assessment, when it is proven aliunde to be the' commissioners' record. 8 The books of the commissioners' office showing land regularly assessed, and the amount of the tax carried out against it as un- seated, for the year for which it was sold, with the treasurer's deed, make a prima facie case in trespass quare clausam fregit. s Fager v. Campbell, 5 Watts "Irwin v. Patchen, 164 Pa. 51 287 (1836); Cuttle v. Brockway, (1894). 24 Pa. 145 (1854). 'Diamond Coal Co. v. Fisher, 'Cuttle v. Brockway, 24 Pa. 145 19 Pa. 267 (1852). See Miller v. (1854). McCullough, 104 Pa. 625 (1883). B McReynolds v. Longenberger 8 Kase v. Losee, 1 Penny. 57 et al., 75 Pa. 13 (1873). (1881). 11 162 TAXATION IN PENNSYLVANIA. It is competent to call a former clerk to explain entries made in such books by himself while he was keeper of them. 9 A treasurer's sale book is evidence to prove the redemption of unseated lands sold for taxes, 10 but his books are not evidence of an assessment. 11 Tax receipts thirty years old, unaltered and produced from proper custody, prove themselves. 12 The minutes of the county commissioners are evidence as to the date of an assessment. Entries of payments against assess- ments on tax books are prima facie evidence of such payments, in questions relating to the legal settlement of the parties as- sessed: 13 Upon proof of the destruction by fire of tax receipts issued and outstanding for thirty years, and of their apparently official char- acter, evidence of their existence, character and possession is competent. 1 * It would seem, however, that the evidence must be clear as to the dates of the payments for which the receipts were given. 15 The tax receipts of plaintiff having been destroyed, several witnesses testified that they had seen the receipts, that they cov- ered the period from 1826 to 1868, with an interval from 1844 to 1848; that they were otherwise continuous and complete, in bi- ennial periods; were regular in character, form and time of pay- ment, and recited the name, quantity and locality of the tract of land. Held, upon the question of the validity of a treasurer's deed for the land sold at tax sale for unpaid taxes for 1832 and 1833, that this evidence was properly submitted to the jury to determine whether such taxes had been paid before the date of sale. 16 'Thompson v. Chase, 2 Grant, ^Scranton Poor District v. 367 (1858). Danville and Mahoning Directors "Huzzard et al. v. Trego et ux., of the Poor, 106 Pa. 446 (1884); 35 Pa. 9 (1859). 15 W. N. C. 183. "McReynolds v. Longenberger, "McReynolds v. Longenberger, 57 Pa. 13 (1868). See Same Par- 57 Pa. 13 (1868). ties, 75 Pa. 13 (1873). "Coxe et al. v. Deringer, 82 Pa. "McReynolds v. kongenberger, 236 (1876). 57 Pa. 13 (1868). M Coxe et al. v. Deringer, 82 Pa. 236 (1876). CHAPTER IX. COLLECTORS OP TAXES. 172. History of the selection of collectors of taxes. 173. Election of tax collectors in boroughs and townships. 174. JDffice of township collector of taxes abolished in townships of the first class — Township treasurers to collect taxes. 175. Appointment of collectors of state and county taxes in cities of the third class. . 176. Apppintment of collectors of county rates and levies for wards and districts. 177. Commissioners may apoint persons other than those returned by assessors. 178. Commissioners may appoint freeholders collectors without bond. 179. Defaulting collectors, not to be reappointed. 180. Penalty for failure of collectors to perform duties. 181. Penalty for failure of collectors appointed without bond to perform duties. 18£. Vacancies in the office of tax collector. 183. Bonds of tax collectors for boroughs and townships. 184. Collectors of taxes for wards and districts to give bond. 185. Condition of bond. 186. Collectors of special taxes to give bond. 187. Suits against sureties of collectors. 188. Issue of duplicates and warrants to collectors — Collection of special and other road taxes. 189. Periods during which warrants are effectual. 190. Definition of "duplicates." 191. Extension of time within which tax collectors may sue for taxes. 192. Collectors are protected by their warrants. 193. Refusal of county commissioners to deliver duplicate to a collector. 194. Commissioners to file certificates of amounts due by collectors. 195. Names of collectors and amounts of their duplicates to.be entered on minutes of county commissioners, and a copy furnished the county treasurer. 196. Collectors to give notice of delivery of duplicates — Abatements for prompt and penalties for delayed payments. 197. Collectors to attend at designated places to receive taxes. 198. Compensation of collectors. 164 TAXATION IN PENNSYLVANIA. 199. Compensation of tax collectors appointed by county commis- sioners. 200. Collectors to pay over taxes when — To account for collections — Returns of uncollected taxes. 201. Collectors to make returns under oath. 202. Penalty for embezzlement by tax collectors. 203. County treasurers to issue warrants against defaulting col- lectors. 204. Proceedings to sell lands of delinquent collectors. 205. Sheriff to execute deed to purchasers — Proceedings against property situated elsewhere. 206. Like proceedings to be had against sheriffs or coroners de- taining taxes. 207. Powers and liabilities of collectors in boroughs and townships. 208. Collectors to .keep tax books. 209. Collectors in boroughs and townships required to give num- bered tax receipts. 210. Return of receipts issued to be made to county commissioners. 211. Accounts of collectors to be settled by township and borough auditors. 212. Taxes on unseated lands not to be collected by tax collectors. 213. Collectors may receive nothing but money in payment of taxes. 214. Exonerations. 215. Receipts for unassessed taxes or exonerations prohibited. *216. Collectors may employ deputies. 217. Collector of delinquent taxes in Allegheny county. 218. Powers of executors of deceased tax collectors. § 173. History of the selection of collectors of taxes. Prior to the passage of the Act of June 25, 1885, P. L. 187, all "collectors of state and county taxes" were appointed by the commissioners of the several counties of the Commonwealth, under the provisions of §§ 17 and 18 of the Act of April 15, 1834, P. L. 514. All state and county taxes were not, however, col- lected by the collectors so appointed. Under the provisions of the Act of April 3, 1851, P. L. 317, the commissioners of Venango County are required to issue the tax duplicates and warrant for state and county taxes to the treasurer of that county, who is required to collect the taxes up to the first day of September in each year. After that date the constables of the several townships and boroughs collect the taxes then unpaid, on the warrants of the treasurer. Similar provisions applicable to'the counties of Armstrong, Bedford Bucks, Cambria, Chester, Crawford, Cumberland, Erie Franklin, Fulton, COLLECTORS OF TAXES. 165 Greene, Huntingdon, Indiana, Jefferson, Lawrence, Mercer, Mont- gomery and Washington Counties were subsequently enacted. 1 These acts are still in forpe and unrepealed by the Acts of June 25, 1885, P. L. 187, and June 6, 1893, P. L. 333. 2 The- first section of the Act of June 25, 1885, P. L. 1887, re- pealed the provisions of the Act of 1834 so far as they related to the selection of tax collectors in boroughs and townships, and provided for the election annually of such officer in each borough and township. By the Act of June 6, 1893, P. L. 333, such col- lector is to be elected triennially instead of annually. "The Act of 1893 meant to provide the only way of selecting' ^hese provisions were enacted as follows: Armstrong county; By Act of March 14, 1873, P. L. 357. Bedford county; By Act of April 13, 1868, P. L. 1017. , Bucks county; By Act of March 29, 1859, P. L. 294. Cambria county; By Act of April 3, 1872, P. L. 994. Chester county; By Act of April 2, 1868, P. L. 595. Crawford county; The provisions of the Act of April 3, 1851, P. L. 317 were extended to Craw- ford and Lawrence counties by the Act of March 27, 1852, P. L. 197. Cumberland county; By Act of April 10, 1873, P. L. 661. Erie county; By Act of May 6, 1854, P. L. 600. Franklin county; By Sections 8 to 19, inclusive, of the Act of Feb. 26, 1853, P. L- 128. Fulton county; The provisions of the act relative to Bedford county were extended to Ful- ton county by Act of April 15, 1869, P. L. 1050. Greene county; By Act of May 8, 1855, extending the provi- sions of the Act of April 3, 1851, P. L. 317. Huntingdon county; By Act of Feb. 27, 1872, P. L. 179, extend- ing the provisions of the act relative to Bedford county. Indiana county; By Act of April 4, 1872, P. L-954. Jefferson county; By Act of Feb- ruary 18, 1857, P. L. 53. Lawrence county; By Act of March 27, 1852, P. L. 197, ex- tending the provisions of the Act of April 3, 1851, P. L. 317. See Act of April 23, 1909/ P. L. 147. Mercer county; By Act of Jan. 19, 1853, P. L. 5, extending the provisions of the Act of April 3, 1851, P. L. 317. Montgomery county; By Act of March 17, 1868, P. L. 342. Washington county; By Act' of May 8, 1855, P. L. 179, extend- ing the provisions of the Act of April 3, 1851, P. L. 317. 2 Com. v. Com'rs of Bedford County, 6 Pa. Super. Ct. 211 (1897); Com. v. Couch, 209 Pa. 354 (1904). See Com. v. Wunch, 167 Pa. 186 (1895). 166 TAXATION IN PENNSYLVANIA. the officials known as tax collectors in the several boroughs and townships, namely, by election, and of course the office could no longer be filled by competitive bidding and appointment or on the mere preference of the municipal officers. A uniform method of filling the office was clearly effected by the repealing section of the Act of 1893, which strikes down all local statutes supplying contrary methods of choice." 3 It does not follow, however, that "the officials known as tax collectors in the several boroughs and townships," after being elected, necessarily collect all the taxes levied in their several t boroughs, and townships. The Act of June 25, 1885, in its thir- teenth section, expressly exempts from its provisions the collec- tion of taxes "the collection of which is regulated. by local laws." Hence, as already stated, where county treasurers were made the collectors of state and county taxes prior to the passage of the Acts of 1885 and 1893, they continue to collect the same. 4 And where a school board has authorized the collection of school tax in the manner provided by the Act of April 21, 1869, P. L. 87, such tax is not collectible by the collector elected under the provisions of the Acts of 1885 and 1893, but in the manner provided by said Act of 1869, which is a local statute within the meaning of the thirteenth section of the Act of 1885, inasmuch as it is limited in its application to such school districts as may accept its provisions, 5 but, in the absence of such a local law, the collector elected under the provisions of the Act of 1893 be- comes the collector of school taxes. "With the passage of this act the office of collector of school tax under the former system ceased to exist, and the collector of taxes, an officer entirely independent of the board of school directors, became the only person authorized to collect taxes of "Com. v. .Com'rs of Bedford (1897); Com. v.- Couch, 209 Pa. County, 6 Pa. Super. Ct. 211 354 (1904), overruling Com. v. (1897), opinion of court below; Wunch, 167 Pa. 186 (1895); Buckwalter v. Lancaster, 12 Pa. Pottsville Borough's Appeal, 22 Supen Ct. 272 (1897); Com. v. W. N. C. 431 (1887); Malloy v. Middletown Boro., 3 D. R. 639 Reinhard, 115 Pa. 25 (1888). - (1894); Com. v. McDonnell, 3 "Evans v. Phillipi, 117 Pa. 226 D. R. 767 (1894). (1887). See Com. v. Reinhart et 4 Com. v. Com'rs of Bedford al, 15 Pa. C. C. 487 (1894). See County, 6 Pa. Super. Ct. 211 §§ 579-582. COLLECTORS OF TAXES. 167 any description," except such as are collected under the provisions of local laws. 6 The office of tax collector in townships of the first class is abolished by the Act of May 28, 1907, P. L. 273 (See § 174, infra) and all taxes in such townships are collected by the town- ship treasurers. § 173. Election of tax collectors in boroughs and town- ships. The qualified voters of every borough and township in the Commonwealth of Pennsylvania shall, on the third Tuesday of February after the passage of this act and triennially there- after, vote for and elect one properly qualified person for tax collector in each of said districts, who shall serve for the term of three years, and shall give a bond annually to be approved by the court. 7 The Act of June 25, 1885, P. L. 187, is constitutional, 8 and ap- plies to county as well as to local taxes.^- "The Act of 1885 had already provided for the election of a collector of taxes in each borough and township in the Com- monwealth, and the only changes made by the Act of 1893 are with reference to the length of the official term, extending it from one to three years, and the giving of a bond annually as in the former act,. 'to be approved by the court' instead of 'by the court or a judge thereof in vacation,' as by the Act of 1885." 10 § 174. Office of township collector of taxes abolished in townships of the first class — Township treasurers to col- lect taxes. The office of township tax collector, in townships of the first class, is hereby abolished, and from and after the expira- tion of the respective terms of the township tax collectors now in office, all taxes imposed on and accruing from persons and 'Com. v. Topper, 219 Pa. 221 C. 274; Com. v. Frutchey, 11 Pa. (1908) ; Bitting v. Com., 20 W. N. C. C. 112 (1891); 1 D. R. 153; C. 178 (1887). Com. v. McDonnell, 3 D. R. 767 (1894). 'Act of June 6, 189.3, P. L. 333, "Bennett v. Hunt, 148 Pa. 257 superseding the provisions of § "1, (1892) ; overruling Com. v. Lack- Act of June 25, 1885, P. L. 187. awanna Co. Com'rs, 7 Pa. C. C. "Evans v. Phillipi, 117 Pa. 226 173 (1889), and Com. v. Swab, 8 (1887); 20 W. N. C. 173; Bennett Pa. C. C. Ill (1890). v. Hunt, 148 Pa. 257 (1892) ; Com. 10 Com. v. Com'rs of Bedford v. Lyter, 162 Pa. 50 (1894) ; 34 W. County, 6 Pa. Super. Ct. 211 N. C. 393; Com. v. Geesey, 1 Pa. (1897), op. of court below. Super. Ct! 502 (1896); 38 W. N. 168 TAXATION IN PENNSYLVANIA. property within the respective townships of the first class of this Commonwealth, including all state, county, borough, township, school and poor taxes, and all taxes levied by other authorities empowered, or which may hereafter be empowered, to levy taxes within the several townships of the first class of this Common- wealth, shall be collected by the township treasurer of the re- spective townships of the first class, who shall for that purpose have all the powers, perform all the duties, be subject to all the obligations and responsibilities and receive the same compensa- tion as are now by law vested in, conferred upon, or imposed upon collectors of the several classes of taxes hereinbefore men- tioned, or which such collectors are now by law authorized or empowered to have and exercise, or are vested with, or are made liable or subject to, or are entitled to receive. 11 All the laws or parts of laws, general, local or special, incon- sistent herewith, be and the same are hereby repealed; it being the purpose and intent of this act that no taxes shall be collected in any township of the first class of this Commonwealth, save only by the treasurer of the said township : Provided, that noth- ing in this act contained shall take away from or interfere with the powers and duties conferred or imposed upon the treasurer of any county of this Commonwealth by existing.laws 'in relation to the collection by such county treasurer of state and county taxes. 12 Sections 15 and 16 of the Act of April' 28, 1899, P. L. 109, provided that the treasurers of townships of the first class should collect all taxes levied by the township commissioners, leaving other taxes within the township to be collected by the township collector. The foregoing act requires all taxes to be collected by said treasurer. A treasurer of a township of the first class is liable under his bond for the entire amount of tax duplicates received by him, less exonerations, and not merely for the amount of money com- ing into his hands. 13 § 175. Appointment of collectors of state and county taxes in cities of the third class. The commissioners of the "Sec. 1, Act of May 28, 1907, M L,ower Merion Township v. P. h. 273. Cline et al., 30 Pa. C. C..444 "Act of May 1, 1909, P. L. 301, (1904); In re Bryn Mawr Trust amending § 2, Act of May 28, Co., 14 D. R. 17 (1904). 1907, P. L- 273. COIAECTORS OF TAXES. 169 several counties of this Commonwealth containing cities of the third class shall have the power to appoint one person as col- lector of state and county taxes for one or more wards in such cities of the third class, situate in their respective counties. 14 Collectors appointed by virtue of the first section of this act shall have full power to collect state and county taxes in any ward of any city of the third class, whether such person be a resident of such ward or not: Provided, the person so ap- pointed shall be a resident of the city for which he is appointed. 15 § 176. Appointment of collectors of county rates and levies for wards and districts. The election of tax collectors in boroughs and townships having been provided for by the Act of June 25, 1885, P. L. 333„ as amended by the Act of June 6, 1893, P. L,. 33, supra, such collectors being appointed in cities of the third class, under the provisions of the Act of April 10, 1899, P. L. 34, supra, and all taxes being collected in cities of the first class by a receiver of taxes, it would seem that collectors of state and county taxes are appointed under the provisions of the following acts only in wards of cities of the second class in counties having less than three hundred thousand inhabitants, and cities belonging to neither the first, second nor third classes. It shall be the duty of every assessor, on or before the day of appeals in every year, to return the names of two respectable citizens of his ward, township or district, to the commissioners of the respective county, one of whom so returned shall be ap- pointed by such commissioners the collector of county rates and levies for such ward, township or district, if he shall give security as is hereinafter provided. 16 If any assessor shall fail to return the names of two citizens as hereinbefore provided, or if neither of the persons returned shall give the security hereinafter provided, or if any person ap- pointed a collector shall refuse or neglect to perform the duties "Sec. 1, Act of April 10, 1899, Com'rs of York County, 13 D. R. P. Iy. 34. This act is constitu- 70 (1903). tional, and repeals so much of ^Sec. 2, Act of April 10, 1899, the local Act of May 4, 1871, P. P. L. 34. L. 539, as relates to the collection "Sec. 17, Act of April 15, 1834, of state and county taxes in P. L. 514. By § 10, Philadelphia Wilkes-Barre. Com. v. Com'rs is exempted from the operation of Luzerne County, 14 D. R. 683 of this act. (1904). Contra, Thatcher v. 170 TAXATION IN PENNSYLVANIA. of his office, or shall die, or become otherwise incapable to act, it shall be the duty of the commissioners to appoint some other suitable person as collector, who shall give security as is herein- after provided, and so on as often as may be necessary. 17 § 177. Commissioners may appoint persons other than those returned by assessors. The county commissioners of the several counties in this Commonwealth, who have the power to appoint collectors of state and county taxes, may do so without being confined in their selection to the persons whose names may be returned by the assessors, anything in the act passed the 15th day of April, 1834, entitled "An Act relating to county rates and levies and township rates and levies" to the contrary, notwithstanding. 18 By the Act of March 14, 1860, P. L. 167, however, the fore- going Act of February 1, 1856, is repealed so far as it applies to the counties of Westmoreland, Fayette, Adams and York, and by the Act of April 8, 1862, P. L. 339, it is repealed so far as it relates to Luzerne county, . so that in the counties named the county commissioners are limited in their appointment of col- lectors of county rates and levies to the persons returned by the collectors, provided that they are duly qualified, while in all other counties the commissioners may appoint whomsoever they choose, without regard to the persons returned by the assessors. An assessor may not return himself as one of the two persons returned to the county commissioners, 19 and if one of such per- sons be not competent for appointment, the commissioners are not compelled to appoint the other, 20 nor, if one die, need they appoint the survivor. 21 The county commissioners have a discretionary power in the appointment of collectors of taxes, and where they have de- cided those returned by the assessor to be unfit and appointed others, the court will not* interfere by mandamus. 22 But if the persons so returned are competent, they may have a remedy to compel the appointment of one of them, but a taxpayer may not "Sec. 18, Act of April 15, 1834, '"Kingsbury v. Ledyard, 2 W. P. L. 514. & S. 37 (1841); Com. v. Phila., 1 ls Sec. 1, Act of Feb. 1, 1856, S. & R. 382. P. L. 13. "Com. v. Hamilton, 5 Clark 134. "Com., v. Perkins, 7 Pa. 42 m Com. v. Perkins, 7 Pa. 43 (1847). (1847). COLLECTORS OF TAXES. 171 take advantage of any dereliction of duty on the part of the commissioners in such case. 23 § 178. Commissioners may appoint freeholders col- lectors without bond. The commissioners of the several counties shall have power to appoint collectors of taxes, without requiring the bond or mortgage, or other security directed by the 19th section of the act relating to county rates and levies and^ township rates and levies: Provided, that the person so ap- pointed shall own a freehold estate which, in the opinion of said commissioners, shall be a sufficient security for the faithful per- formance of his duties as collector. 24 If any person appointed collector from whom security shall not be required, or if any assessor shall refuse to serve, he shall forfeit and pay the sum of twenty dollars, to be recovered be- fore a justice of the peace or alderman, at the suit of the com- missioners,, as debts of similar amount are now recoverable: Provided, that no person who shall have served as collector or assessor shall be appointed or chosen for a second term, with- out his consent for the term of ten years. 23 § 179. Defaulting collectors not to be reappointed. No person shall be reappointed a collector of county or township rates and levies, who shall not have finally settled and paid over the whole amount received by him on former duplicates. 26 No person shall be appointed a collector of county rates and levies, who shall not have paid over the whole amount of his former duplicates. 27 It is not a defense, however, to an action against the sureties of a tax collector that at the time of his appointment and giving bond he was in default as a collector for a previous year, the Acts of April 15, 1834, and February 8, 1835, being merely directory and the appointment not void, 28 and the surety on the bond of a col- lector of delinquent taxes is not relieved from liability because the county treasurer knew at the time he appointed such collector that the latter was a defaulter for previous years, and did not re- veal this fact to the surety when the bond was taken. In Mont- M Kingsbury v. Ledyard, 2 W. "Sec. 42, Act of April 15, 1834, & S. 37 (1841). P- L- 509. M Sec. 1, Act of Feb. 28, 1835, "Sec. 5, Act of Feb. 28, 1835, P. L, 45. P- L, 45. ""Sec. 2, Act of Feb. 28/1835, ""Boreland v. Washington p t 45. County, 20 Pa. 150 (1852). 172 TAXATION IN PENNSYLVANIA. gomery county the county treasurer appoints tax collectors and approves their bonds. 29 § 180. Penalty for failure of collectors to perform du- ties. If any collector who shall have taken upon himself the duties of his office shall fail to perform such duties, he shall for- feit a sum not exceeding forty dollars, to be recovered by the county or township, as the case may be, as debts of like amount are recoverable: Provided, that the sureties of a collector shall, notwithstanding such proceedings against him, remain liable ac- cording to the condition of their bond. 30 § 181. Penalty for failure of collectors appointed with- out bond to perform duties. If any person appointed collector from whom security shall not be required, or if any assessor, shall refuse to serve, he shall forfeit and pay the sum of twenty dol- lars, to be recovered before a justice of the peace or alderman, at the suit of the commissioners, as debts of similar amount are now recoverable: Provided, that no person who shall have served as collector or assessor, shall be appointed or chosen for the second term, without his consent, for the term of ten years. 31 Hereafter the penalty imposed by the second section of the Act of twenty-eighth February 1835, entitled "A suppliment to the act relating to county rates and levies and township rates and levies, and to the act relating to counties and townships and county and township officers," upon any person who shall refuse to serve as collector of taxes, shall be fifty dollars ; and so much of said sec- tion as is inconsistent herewith be and the same is hereby re- pealed. 32 § 182. Vacancies in the office of tax collector. When- ever heretofore the qualified electors of any townships or bor- oughs of this Commonwealth shall have failed to elect a tax col- lector, or shall hereafter fail to elect a tax collector, as provided by existing laws; or when a tax collector heretofore elected or hereafter to be elected shall fail to qualify, as provided by ex- isting laws, as such tax collector; or whenever a vacancy shall exist in the office of tax collector of the several townships and w Com. v. Jimison, 205 Pa. 367 "Sec. 2, Act of Feb. 28, 1835, (1903); Com. v. American Bond- P. I,. 45. \ ing & Trust Co., 205 Pa. 372 M Sec. 20, Act of April 22, 1846, (1903). P. L. 486. ao Sec. 41, Act of April 15, 1834, P. L. '509. COLLECTORS OF TAXES. - 173 boroughs of .this Commonwealth, and no person resident within such district is willing to accept the appointment of tax collector, it shall be lawful for the several authorities, empowered by law to levy and assess taxes to petition the court of quarter sessions of their respective counties for the appointment of a tax col- lector of such district. 33 Upon petition of the respective authorities empowered by law to levy and assess taxes, the court shall have power to appoint any citizen of the county to collect such taxes, and such collector, so appointed, shall have all the rights and powers now vested in tax collectors regularly elected and qualified under existing laws. 3 * The tax collector, so appointed, shall qualify in like manner as is now provided by existing laws, and shall be paid such com- pensation as the authorities authorized to levy jand assess taxes shall fix, subject to the approval of the court of quarter sessions making such appointment. 35 The courts of quarter sessions shall have power to fill by ap- pointment all vacancies in the said office, within their respective counties. And, if any person elected to fill said office shall fail to give bond and qualify as hereinafter provided, on or before the fourth day of the term of said court next ensuing his elec- tion, the said court shall declare his office vacant, and appoint a suitable person, resident in the proper borough or township, to fill the same. 36 Under the provisions of § 2 of the Act of June 25, 1885, the sureties of a collector who failed to file his bond before the fourth day of the term of court next succeeding his election, will not be permitted to allege that the collector was not qualified under the Act of 1885, where his bond was filed after said day. The office does not become vacant, under such circumstances, until the court declares it to be so. 37 If any vacancy shall take place in the office of tax collector after any ward, district, borough or township election, by rea- son of the erection of any new ward, district, township or bor- ough, or from the neglect or refusal of any person elected to M Sec. 1, Act of April 27, 1909,. ""Act of June 25, 1885, P. L. P. L. 245. 187, § 2. "Sec. 2, Act of April 27, 1909, 37 Com. v. Stambaugh, 164 Pa. P. L. 245. 437 (1894). ^Sec. 3, Act of April 27, 1909, P. L. 245. 174 TAXATION IN PENNSYLVANIA. perform the duties of the office, or by death, resignation or other- wise, the court of quarter sessions of the proper county upon petition of the town council or any citizen who is a resident of said borough, township, ward, setting forth the fact that a va- cancy does exist, shall appoint a suitable person to fill said vacancy for the full or unexpired term. 38 Where a borough is created out of part of a township, the office of tax collector of the township becomes vacant, under the terms of the Act of July 2, 1895, if the incumbent at the time of the division is resident in that part of the township con- verted into the borough, and in such case the court of quarter sessions may appoint a successor. 39 . . . If any person appointed a collector shall refuse or neglect to perform the duties of his office, or shall die, or become otherwise incapable to act, it shall be the duty of the commis- sioners to appoint some other suitable person as collector, who shall give security as is hereinafter provided, and so on as often as may be necessary. 40 The foregoing provision relates to vacancies in the office of collector of county rates and levies in wards, appointed by the county commissioners under the provisions of the Act of April IS, 1834." § 183. Bonds of tax collectors for boroughs and town- ships. The collector of taxes shall, before he enters upon the duties of his office, take and subscribe an oath of office, and file the same in the office of the court of quarter sessions of the proper county, and shall also enter into a bond to the Commonwealth, in not more than the amount of taxes charged and assessed in the duplicates with at least two sufficient sureties or one trust or bonding company; said bond to be approved by the said cour-t or a judge thereof in vacation, 42 and filed in the office of the clerk of said court; the condition of which bond shall be that the said collector shall well and truly pay over or account for, &cccording M Act of July 2, 1895, P. L. 434, "So much of this section as § 1- provides that the bond may be ""Com. v. Topper, 219 Pa. 221 approved by "a judge thereof in (1908). vacation," is repealed by the Act "Sec. 18, Act of April 15, 1834, of June 6, 1893, P. L. 333. Com. P. L. 514. v. Com'rs of Bedford County, 6 "See § 176. Pa. Super. Ct. 211 (1897). COLLECTORS OF TAXES. 175 Jto law, the whole amount of taxes charged and assessed in the duplicate which shall be delivered to him. 43 Under the provisions* of the Act of June 6, 1893, P. L. 333, collectors of taxes in boroughs and townships are no longer re- quired to give the separate bond required of collectors of state, county and poor taxes by the Act of June 8, 1891, P. L. 212. Only one bond is necessary, which must be given in the form pre- scribed by § 3 of the Act of June 25, 1885, and renewed annually with the approval of the court of quarter sessions, as required by the Act of June 6, 1893. 44 Such collectors must, however, make separate settlements for the respective amounts due the town- ships, boroughs and counties, with the authorities of such bodies, respectively. Hence, an indictment against a defaulting collector cannot be sustained where there is joined in one count a charge of the embezzlement of taxes due the state, county and a school board. 45 A tax collector elected for three years, under the provisions of the Act of June 6, 1903, must renew his bond annually. "The Act of 1893 requires the collector to give bond annually. By plain im- plication this limits the liability on each bond to the taxes for the current year." In an action on such a bond, judgment can be recovered for only the taxes received for the year for which it was given. 46 But if a borough collector of taxes applies the money received on the duplicate for one year in satisfaction of a balance due from him on the duplicate of the preceding year, without the knowledge of the borough that the money was so collected on the duplicate of the second year, he makes a clear misappropriation of the money collected, and his surety on his bond, given for the second year, is not relieved from liability for the money so applied. 47 And where a tax collector expressly appropriates payments on the duplicate of one year by cheque drawn on his general fund, and it is impossible to ascertain whether the money so paid was •collected in that or the following year, the surety on his bond for "Act of May 8, 1909, P. L-. 474, "Com. v. Miller, 20 Pa. C. C. amending Act of June 25, 1885, 183 (1897). § 3, P. L. 187. '"Sullivan County v. Midden- "Com. v. Dauphin County dorf et al., 7 Pa. Super. Ct. 71 €om'rs, 15 Pa. C. C. 233 (1894); (1898); 42 W. N. C. 135. 3 D. R. 584. "'Com. v. Knettle, 182 Pa. 176 (1897); 40 W. N. C. 176. 176 TAXATION IN PENNSYLVANIA. the following year is not entitled to have any payments credited on the duplicate of the year for which he is liable. 48 § 184. Collectors of taxes for wards and districts to give bond — Oath of Office. No person shall be appointed col- lector of county rates and levies, unless he shall give bond, in such amount as shall be determined by the commissioners, with warrant of attorney to confess judgment thereon, and with such surety or sureties therein as shall be satisfactory to the commis- sioners, or a bond with a mortgage of real estate sufficient to se- cure such amount.* 9 So much of § 19 of the Act of April 15, 1834, P. L. 518, as provides for a warrant of attorney to confess judgment on a tax collector's bond is not repealed by implication by the Act of June 25, 1885. A judgment on such bond may be entered for the penal sum in the name of the Commonwealth. 50 § 185. Condition of bond. The condition of the bond to be given by the several collectors as is hereinbefore provided, shall be that such collector shall well and truly collect and pay over, or account for, according to law, the whole amount of the taxes charged and assessed in the duplicate delivered to such col- lector. 51 A condition in such a bond that the collector shall pay into the county treasury the amount of his duplicate, deducting commis- sions, is not greater than is imposed by law. 52 § 186. Collectors of special taxes to give bond. It shall and may be lawful for all the several courts of any county of this Commonwealth to require of the proper parties of any borough, township or district, authorized and empowered to collect special taxes, a bond in such amount as the court shall direct, with one or more sureties, conditioned for the faithful collection and pay- ing over of all special taxes, directed to be assessed and collected for the purpose of paying indebtedness or any other purpose, in pursuance of the provisions of any law now in force or here- after passed, which bond shall be filed in the said court for the protection of all parties interested therein; and in case the "Com. v. Stambaugh, 164 Pa. B1 Sec. 43, Act of April 15, 1834, 437 (1894). P. L. 518. "Act of April 15, 1834, § 19, " 5 Glover v. Wilson, 6 Pa. 299 P. L. 514. (1847). M Com. v. Evans, 8 Pa. C. C. 665 (1890). COLLECTORS OF TAXES. 177 said officer or officers refuse or neglect to give security as aforesaid to be approved by the court within the time ordered by the court, it shall nevertheless be the duty of such officer or officers to assess [and] to levy the said taxes as required by law, and the court may appoint a tax collector, who shall col- lect the said taxes and pay the same into court, to be distributed by the court to and among the persons entitled thereto : Provided, that before such tax collector shall entet upon his duties, he shall give a bond with one or more sureties to be approved by the court, for the faithful performance of the duties of his appoint- ment. 53 § 187. Suits against sureties of collectors. Suits on the bonds of tax collectors are properly brought in assumpsit, 54 and the averments in a statement are sufficient when they assign with certainty a failure to pay or account for a definite sum claimed as the balance of the taxes in the duplicate in a given year. 55 Until the accounts of a township collector are settled by the township auditors, and the amount ascertained by such auditor to be due by such collector, all proceedings at law upon his of- ficial bond are premature and unauthorized. 56 An auditor's tax settlement is conclusive unless appealed from, 57 and when such a settlement has once been made, a sub- sequent board of auditors may not re-examine and resettle the same. 58 And the defendants may not go behind the auditor's re- port and show that the collector is entitled to credit for such matters as uncollectible taxes, abatements, etc., which might have been submitted to and passed upon by the auditors. 59 The report of the auditors of a borough made in 1899, cov- ering the accounts of the tax collector for 1895, however, though unappealed from, is not conclusive against the sureties on his bond, where it appears that in 1897 the auditors had settled the K Act of May 25th, 1878, P. L. "Com. v. Gruver, 13 Pa. Super. 150. Ct. 553 (1900); Com. v. Black et "Com. v. Gruver, 13 Pa. Super. al., 15 Pa. C. C. 664 (1895). Ct. 553 (1900); Com. v. Stam- ra Scanlan's Appeal, 25 Pa. C. C. baugh, 164 Pa. 437 (1894). 141 (1901). ""Com. v. Gruver, 13 Pa. Super. ""Plymouth Borough School Ct. 553 (1900). Dist. v. Honeywell, 15 Pa. C. C. "Com. v. Geesey et al., 1 Pa. 545 (1894). See Moore v. Alle- Super. Ct. 502 (1896); 38 W. N. " gheny City, 18 Pa. 55 (1851). C. 274. 12 178 TAXATION IN PENNSYLVANIA. collector's account for 1895, and reported a less balance than that reported against him in the settlement for 1898, and this though the collector had met and acted with the auditors in 1898 in pre- paring the statement for that year. The report for 1897 was con- clusive on all parties and the collector could not, by consenting to the report for 1898, change the liability of his surety. 60 In an action of debt on the bond of a township tax collector against him and his surety, it is no defense that the collector, since the execution of the bond, has given the county treasurer a note for the balance due him for taxes, on which judgment has been entered, execution issued and the collector's real and personal property sold. The county treasurer has no power to relieve the surety from his obligation to the Commonwealth, even if he in- tended to substitute the collector's note for the bond. 61 Under the provisions of § 6 of the Act of April. 12, 1905, P. L,. 142, the sureties on a tax collector's bond conditioned .as pre- scribed by the Act of June 25, 1885, are liable for delinquent taxes, a list of which is made up in accordance with law by the township treasurer from the tax duplicate, in his hands, and turned over to the collector for the collection of said taxes. 62 Where an official bond given by a tax 1 collector to the Com- monwealth has been entered up by the county, a borough and a school district acting together, and judgment entered thereon, a poor district which places its duplicate for poor taxes in the hands of the same collector for collection may subsequently inter- vene as a party plaintiff by a scire facias on the judgment, and it is immaterial that the judgment was entered on a warrant of at- torney, and was not the result of an adverse action on the bond. 63 An agreement to discharge the surety of a tax collector and accept another in his place does not in fact discharge him unless the agreement has been performed and the substituted surety has given a bond, inasmuch as the new security must be such a one as would have been a good original security under the act of as- sembly. 64 < ""Com. v. Scanlan, 202 Pa. 250 "Com. v. Maxwell, 34 Pa. (1902). Super. Ct. 631 (1907). "Templeton v. Com., 3 Sadler's "Wilson v. Glover, 3 Pa. 404 S. C. Cases 550 (1886). • (1846). 62 Com. v. Worrall, 34 Pa. C. C. 618 (1908). COLLECTORS OP TAXES. 179 An action against the surety of a tax collector, based upon an auditor's report showing what was due for the three years in a lump sum, cannot be maintained where there are different sure- ties for each year, and in such a suit reference may not be made to a later auditor's report, made subsequent to the institution of the suit, in order to show what amounts were respectively due for each of said years. 65 If the accounts of a township's school tax collector are not settled as they should be in the following year, they may be con- sidered and adjudged by the auditors of a subsequent year. There is no ground for holding that a whole series of unsettled accounts must be settled or else none of them may be touched. 66 In an action by a municipal corporation against a tax collector and his surety to recover for failure to collect a tax, parol testi- mony that the town council relieved him from the duty, though that action was not entered on their minutes, was properly re- ceived. 67 Where a tax collector's bond was taken in the name of the commissioners of the county, instead of in the name of the Com- monwealth as required by statute, and suit is brought in the latter name as legal claimant, the surety may not, after a trial on the merits and a judgment against him, complain of the variance be- tween the obligee named in the bond and the legal claimant's name in the suit, and such a defect may be cured by an amend- ment which will be allowed even in the appellate court. 68 Where a county enters judgment against a tax collector and his surety and issues execution, and the surety pays a balance claimed on the judgment, being informed when he makes the payment that that was all the tax collector owed the county, the county may not thereafter, and after the death of the tax col- lector, enter a second judgment against the surety and maintain the same, without showing that there was an error in the original judgment. 69 A surety of a collector of taxes cannot protect himself against "Com. v. Piroth, 17 Pa. Super. "Millerstown Borough v. Mc- Ct. 586 (1901). Kee et al., 3 Penny. 129 (1882). "Swatara Township School "Com. v. Singer, 31 Pa. Super. Dist. v. Geesey, 7 D. R. 173 Ct. 597 (1906). (1897). "Lycoming County v. Straub, 33 Pa. Super. Ct. 441 (1907). 180 TAXATION IN PENNSYLVANIA. liability for taxes collected by "the collector and not paid over, by showing that a certain portion of the taxes, stated in the warrant had been levied on certain persons and property not subject to taxation. 70 It is not a defence to an action against the surety of a tax col- lector of county rates and levies, that at the time of his appoint- ment and giving of bond he was in default as collector for the previous year. The acts prohibiting such appointments — April 15, 1834, § 42, and February 28, 1835, § 5— are but directory and appointments made contrary to the provisions thereof are not void. 71 De facto collectors of taxes will not be heard to deny the validity of their appointments. 72 Where a bond was given as security by a collector of taxes, and his liability on the bond for county rates has been barred by the statute of limitations, but his liability for state taxes remains, under a general plea of the statute, he and his sureties are liable both for county and state taxes. 73 When taxes have been paid by a surety, if justice requires it, the lien of the taxes may be kept afoot for his benefit. 74 <■ An auditor's tax settlement is conclusive unless appealed from. 75 Where a tax collector has been duly qualified, received his duplicate and entered upon the collection of his taxes, the want of a" warrant is no defense as to the taxes already col- lected. 76 Under the Act of June 25, 1885, P. L,. 187, the surety on a tax collector's bond is liable for school taxes collected by him, al- though the school directors do not deliver their warrant to the collector with the tax duplicate' Such a collector, when lawfully possessed of a duplicate for collection, would, without warrant, have authority to demand, re- ceive and receipt for the taxes included in the duplicate, although "Moore v. Allegheny City, 18 "Glover v. Wilson, 6 Pa. 290 Pa. 55 (1851). (1847). "Boreland v. Washington "Wallace's Estate, 59 Pa. 401 County, 20 Pa. 150 (1852); Com. (1868). v. Jimison, 205 Pa. 367 (1903). '"Com. v. Gruver, 13 Pa. Super. "Mead Township v. Couse et Ct. 553 (1900); Com. v. Black *et al„ 156 Pa. 311 (1893); Ridgway al., 15 Pa. C. C. 664 (1895). Township -v. Wheeler, 90 Pa. 450 "Com. v. Black et al., 15 Pa. (1879). C. C. 664 (1895). COLLECTORS OF TAXES. 181 he could not enforce his demand by suit against the person or property. What he so deceived would be covered by his bond. 77 A tax collector who has received a duplicate for school taxes under the Act of 1885 is liable for the whole amount of the dupli- cate remaining unpaid and unexonerated after three months from the time the collector received the corrected duplicate, as provided by the Act of April IS, 1834, P. L. 518, § 29. 78 Interest is recoverable in a suit upon the bond of a collector from a reasonable time after the collector has become liable. 79 The county commissioners appointed A collector of taxes and duplicate and warrant were issued to him. B was afterwards ap- pointed and gave bond but no warrant was issued to him. A col- lected some of the taxes and the remainder were collected and * paid over by B. Held, that the sureties of B were not liable for taxes collected by A. A collector cannot use a warrant directed to anyone else, unless authorized by that person or his deputy. 80 § 188. Issue of duplicates and warrants to collectors — Collection of special and other road taxes. The several county, borough, township, school, poor and other authorities now empowered, and which may hereafter be empowered, to levy taxes within the several boroughs and townships of this Commonwealth, shall, on or before the first day of August in each year after the first election of collector of taxes under this act, issue their respective duplicates of taxes assessed to the col- lector of taxes of their respective boroughs and townships with their warrants attached, directing and authorizing him to collect the same, but road taxes may bi worked out as heretofore : Pro- vided, that such special and other road taxes as it may be lawful and necessary to collect in money, may, at the discretion of the supervisors or road commissioners, be placed in the hands of the collector of taxes, with their warrant for collection by him; for which he shall receive five per centum of the amount collected by him, or the same may be collected by the supervisors or road commissioners as heretofore. Provided further, that the limita- tions in this act, as to time and the requirements hereof relating "Com. v. Stambaugh, 164 Pa. "Glover v: Wilson, 6 Pa. 290 437 (1894). (1847). "Com. v. Stambaugh, 164 Pa. ""Cannell et al. v. Crawford 437 (1894). County, 59 Pa. 196 (1868). 182 TAXATION IN PENNSYLVANIA. to keeping an alphabetical list of persons charged with taxes, shall not apply to road taxes. 81 A properly elected and qualified tax collector may, when law- fully possessed of the duplicate for collection, without a war- rant, demand, receive and receipt for the taxes embraced in the duplicate, though he may not enforce his demand by seizure of property or person. What he would so receive he would re- ceive by virtue of his office, and it would be covered by his bond. 82 A collector of taxes is not relieved from the duty of collecting delinquent taxes because the tax duplicate was not delivered to him until over a month after the first of November. 83 The commissioners of each county shall issue their warrants, with the duplicate aforesaid, to the respective collectors of county rates and levies, therein authorizing and requiring them to demand and receive from every person in such duplicate named, the sum wherewith such person stands charged. 84 § 189. Period during which warrants are effectual. Hereafter the period during which warrants hereafter to be is- sued to collectors shall be effectual for the collection of taxes shall be two years and no more. . . , 85 "The Act of April 15, 1834, relative to county rates and levies enacted that the warrant issued to the collector should be ef- fectual to authorize him to collect the sums charged in his du- plicate during the period of three years from the date thereof. The time was afterwards reduced to two years tty the Act of April 22, 1846, P.'L. 490. This was, in effect, a prohibition upon the county commissioners against issuing a warrant limited to .a shorter period." 86 § 190. Definition of "duplicates." "But what are the duplicates? They are, in fact, certified copies of the assessments, 81 Act of June 25, 1885, § 4, P. ""Liberty Township Supervisors L. 187. See § 314. v. Lingle, 33 Pa. C. C. 335; 16 ffi Com. v. Stambaugh, 164 Pa. D. R. 950 (1907). 437 (1894), distinguishing Silbish M Act of April 15, 1834, § 20, v. Hower, 58 Pa. 94 (1868), and P. 1,. 514. Cannell v. Crawford County, 59 8B Act of April 22, 1846, § 21, P. Pa. 196 (1868); Com. v. Titman, L. 490. 148 Pa. 168 (1892), and Com. v. 88 McCracken v. Elder, 34 Pa. Black et al., 15 Pa. C. C. 664 239 (1859). Strong, J., arguendo. (1895). COLLECTORS OF TAXES. 183 with warrants annexed thereto, from the commissioners of the county, certified under their hands and seal of office, and directed to the collectors respectively named therein, authorizing them to proceed and collect the taxes therein specified. But these dupli- cates, although in point of fact they are transcripts of the assess- ments remaining in the commissioners' office, yet, ex vi termini, they may be regarded here as importing something more than copies, something of the same kind, equal in every respect and consequently equal in verity to their protocols. But, at all events, the duplicates being made out and certified by the commissioners, under their hands and common, or the county, seal, would seem to be evidence of as high a nature and quite as veritable as copies of the assessments certified by their clerk under the county seal, which are expressly made good evidence by the 22nd section of the Act of April 15, 1834." 87 The tax list for collection is usually known as the "duplicate of taxes," "duplicate" when used in connection with taxes hav- ing a known and recognized meaning, and an indictment charging the alteration of a "book and writing known as the duplicate of taxes" is good. 88 § 191. Extension of time within which tax collectors may sue for taxes. In all cases in which the period of two years, the limitation of the warrants in the duplicate of county, poor, city, township, ward, school, and borough tax collectors, have expired, and in cases where the power and authority of said tax collectors have expired or shall expire during the year one thousand nine hundred and nine, by virtue of the expiration of their term of office, and said collector or collectors have or shall become liable for the amount of tax on said duplicates, without having collected the same, the said duplicates and warrants, and the powers and authority of said tax collectors, in all such cases, are hereby revived and extended for another period of two years from the passage of this act; and said collector or collectors are hereby authorized and empowered to proceed and collect said taxes from all persons who have not paid taxes assessed to them, residing in said district within which it may have been assessed, as well as from all persons who may remove or have removed "Overseers of Lewisburg v. ""Com. v. Beamish, 81 Pa. 389 Overseers of Augusta, 2 W. & S. (18^6) ■ 65 (1841). 184 TAXATION IN PENNSYLVANIA. from said city, ward, township or townships, or boroughs, and have neglected to pay taxes so as aforesaid assessed, with like effect as if said warrant had not expired by the limitation of two years aforesaid, or the term of office of said collector had not ex- pired : Provided, that the provisions of this act shall not apply to warrants issued prior to the year one thousand nine hundred and two, and that nothing in this act shall release any bondsmen or security: Provided, that this act shall not apply to cities hav- ing special laws upon, this subject: Provided further, that no collector, or the securities thereof, who take advantage of this act, shall be permitted to plead the statute of limitation in any action brought to recover the amount of said duplicate, so ex- tended and renewed. 89 Where a taxable whose taxes have been paid by the collector but not collected from the taxable, confesses judgment to the collector as collateral, the collector has no priority over liens which preceded his judgment. 90 Where a tax duplicate or warrant is placed in the hands of a collector, he becomes liable for the whole amount of the duplicate. Under the Act of June 25, 1885, it is the duty of a resigning col- lector to collect the taxes remaining uncollected on his duplicate, and he cannot rid himself of this duty by tendering the duplicate to his successor. A delivery of his tax book, after his resignation, to his successor does not relieve him of this liability. The tax book is not his duplicate nor his authority for the collection of the taxes. It is not necessary that a warrant should be delivered to the collector with the duplicate. The delivery of the duplicate authorizes him to collect. 91 The Act of 1885 does not entitle him to wait the expiration of his term and three months thereafter to settle his account for the first year of his term. Not decided, whether under said Act of 1885 a retiring collector would have the right to distrain for the taxes unpaid and to imprison those who decline to pay. 92 "Act of April 23, 1909, P. L. "Wallace's Estate, Russell's 144. See the Acts of Apr. 25, Appeal, 59 Pa. 401 (1868). 1907, P. L. 113; May 28, 1907, "Com. v. Ferrel et al., 17 Pa. P. L. 263; Apr. 1, 1905, P. L. 101; C. C. 263 (1896). Feb. 13, 1903, P. 1m. 5; Mch. 27, "Com. v. Ferrel et'al., 17 Pa. 1901, P. L. 60; Mch. 29, 1899, P. C. C. 263 (1896). L. 22; May 11, 1897, P. L. v 49; June 25, 1895, P. L,. 287. COLLECTORS OE TAXES. 185 A tax collector is not relieved from the duty of collecting de- linquent taxes because the tax duplicate was not delivered to him until over a month after the first of November. 93 § 192. Collectors are protected by their warrants. Tax collectors are protected in the execution of warrants for the collection of taxes where the levy is apparently within the scope of the authority making the same. If such authority does not extend to the matter in question, the collectors are not pro- tected, but if the authority does extend thereto, but is irregularly or illegally issued, they are protected. 9 * A tax collector who, under a warrant duly issued by a borough council, directing the collection of a tax that has been properly levied by a borough, collects a tax from a person who, as sub- sequently appears, was improperly assessed by the assessors and county commissioners, is not criminally liable therefor. 95 A collector having a warrant from an authority having power to issue it, may not inquire -into the preceding steps. He is pro- tected when acting within the scope of his warrant, apparently regular, unless the authority issuing it is without jurisdiction. 96 § 193. Refusal of county commissioners to deliver du- plicate to a collector. Where the county commissioners re- fuse to deliver the duplicate to a tax collector, the proper rem- edy to compel them to do so is mandamus. 97 § 194. Commissioners to file certificates of amounts due by collectors. It shall be the duty of the commissioners, within three months from the delivery of the duplicate to the collector, appointed in pursuance of the provisions of this act, to file a certificate under their hands and seal in the office of the pro- thonotary of the court of common pleas of the county, stating the amount due and unpaid by such collector and it shall be the duty of the prothonotary to enter the same on his docket, which cer- tificate shall, from such entry, have the same operation and ef- fect as a judgment of said court, and executions may be issued in like manner as on judgments for the amount remaining un- paid at any time after the entry aforesaid. 98 "Liberty Township Supervisors ""Cunningham v. Mitchell, 67 v. Lingle, 33 Pa. C. C. 335 (1907). Pa. 78 (1890). M Rice v. Burns, 9 Pa. Super. "Com. v. Lyter et al., 162 Pa. Ct. 58 (1898); 43 W. N. C. 301. 50 (1894); 34 W. N. C. 393. "Buck v. Com., 90 Pa. 110 ""Sec. 3, Act of Feb. 28, 1835, (1879); 7 W. N. C. 241. P. L- 45. 186 TAXATION IN ' PENNSYLVANIA. § 195. Names of collectors and amounts of their du- plicates to be entered on minutes of county commis- sioners, and a copy furnished the county treasurer. It shall be the duty of the clerk of the commissioners to enter the names of the collectors, and the amount of their respective du- plicates, on the minutes of the office, and to furnish the county treasulNer with a copy thereof; and the twenty-second section of the act to which this is a supplement is hereby repealed." The provisions of this act, so far as they relate to assessments and collection of taxes and sureties therefor, shall not extend to the city and county of Philadelphia, but the same shall be reg- ulated therein as if this act had not passed. 100 § 196. Collectors to give notice of delivery of dupli- cates — Abatements for prompt and penalties for delayed payments. Where any duplicate of taxes assessed is issued and delivered to the collector of taxes, it shall be the duty of said collector to give public notice as soon thereafter as conveniently can 'be done, by at least ten written or printed notices to be posted in as many public places in different parts of the town- ship or borough, that said duplicate has been issued and delivered to him; and all persons who shall within ninety days from the date of said notice make payment of any taxes charged against them in said duplicate, shall be entitled to a reduction of five per centum from the amount thereof ; and all persons who shall fail to make payment of any taxes charged against them in said duplicate for six months after notice given as aforesaid, shall be charged five per cent, additional on the taxes charged against them, which shall be added thereto by said collector of taxes and collected by him. 1 This act shall not go into effect until January first, one thou- sand nine hundred and ten. 2 -Sec. 4, Act of Feb. 28, 1835, 1M Sec. 10, Act of Feb. 28, 1835, P. L,. 45. The section repealed is P. L,. 45. the 22nd section of the Act of ''Sec. 1, Act of May 1, 1909, P. April 15, 1834, P. L,. 515, which L. 305, amending Act of June 25, required the clerk to the commis- 1885, § 7, P. ]_,. 187. sioners to keep a record of the 2 Sec. 2, Act of May 1, 1909, P. collectors and the amounts of L,. 305, amending Act of June 25, their duplicates, and, in addition, 1885, § 7, P. L,. 187. It is the the names of persons exonerated, extension of time within which and the amounts of the exonera- tax may be paid in order to en- tions. See § 214, Exonerations. title to reduction of tax, from COLLECTORS OF TAXES. 187 Where a tax becomes subject to the penalty of five per cent., the penalty becomes part of the tax, and the collector is entitled to his percentage thereon when he collects the tax. 3 § 197. Collectors to attend at designated places to receive taxes. The collector of taxes shall, in person or by some person duly authorized, be in attendance for the purpose of receiving and receipting for taxes on Thursday, Friday and Saturday of each week during the last two weeks of said sixty days, between the hours of two o'clock and six o'clock in the after- noon, at his residence, or some other place in the proper township or borough to be designated by him in the notice aforesaid. 4 § 198. Compensation of collectors. The collector of taxes shall collect the taxes charged in said duplicates and pay over the same to the respective treasurers or authorities entitled thereto, after deducting his commission for the collection thereof, which is hereby fixed at two per centum on all taxes paid to him on which an abatement of five per centum is allowed and at five per centum on all taxes afterwards collected: Provided, that where the total amount of taxes charged on a duplicate is less than one thousand dollars, the said collector shall receive three per centum oh all taxes paid to him on which an abatement of five per centum is allowed. . . ? Under the Act of June 25, 1885, a tax collector is entitled to commissions of two per cent, on the amount of taxes actually collected within sixty days after notice given. He is not entitled to abatements allowed by law to the taxpayer for prompt pay- ment. The collector is entitled to five per cent, on the taxes collected after six months and on the penalty added for delin- quent payments. He is not entitled to commissions on exonera- tions. A commission of five per cent, on the amount of taxes on unseated lands will be allowed a borough collector, not as collector, but as agent or attorney in fact. 6 sixty to ninety days, made by the "Act of June 2, 1891, § 1, P. L. first section of the act, which does 175, amending § 9, Act of June 25, not go into operation until 1910. 1885, P. L. 187. "Bollinger v. Huntingdon Bor- "Com. v. Scott et al., 7 Pa. C. ough ScKool Dist, 34 Pa. C. C. C. 409 (1889). See Devlin's Case, 438 (1907). 39 Pa - Super. Ct. 311 (1909). 4 Sec. 8, Act of June 25, 1885, P. L- 187. 188 TAXATION IN PENNSYLVANIA. A collector may not receive commissions upon road taxes worked out upon the roads, nor upon exonerations. 7 Where a tax becomes subject to a penalty of five per cent, by reason of the failure of the taxable to pay within the sixty days allowed for prompt payment, the penalty becomes part of the tax and the tax collector is entitled to his percentage thereon when he collects the tax. 8 § 199. Compensation of tax collectors appointed by county commissioners. Every collector shall be entitled to retain at the final settlement of his duplicate the sum of five per centum on all moneys by him collected, which shall be al- lowed to him by the treasurer of the county or township, as the case may be, and shall be in full compensation for his services as collector. 9 The Act of April 15, 1834, permits every tax collector to re- tain, at the final settlement of his duplicate, the sum of five per cent, on all moneys collected. The Act of March 24, 1851, gives the collector of taxes in Greenwich Township, Berks County, to the lowest bidder and directs that the difference between the bid and the five per cent, commission allowed by the Act of 1834 shall be paid to the school district of the township. Held, that said act reduces the com- mission to the amount bid, and that the county may recover the difference on the official bond of the collector appointed under the Act of 185 l. 10 § 200. Collectors to pay over taxes when — To account for collections — Returns of uncollected taxes. . . . Provided further, that all taxes collected within the sixty days as provided in § 8 of this act shall be paid over as afore- said within fifteen days after the expiration of said sixty days, and all taxes thereafter collected during his term of office, shall be paid over as aforesaid at regular intervals of one month, and a full and complete settlement of all taxes collected shall be made by said tax collector with the respective treasurers or authorities entitled thereto, not later than three months after the expiration of his term of office. 11 'Brennan's Appeal, 1 Walker 'Act of April 15, 1834, P. h. 519, 522 (1880). § 52. "Bollinger v. Huntingdon Bor- 10 Berks County v. Levan et al., ough School District, 34 Pa. C. 86 Pa. 360 (1878); 6 W. N. C. 63. C. 438 (1907). "Act of June 2, 1891, § 1, P. L. COLLECTORS OF TAXES. 189 The tax collectors of the several boroughs and townships of this Commonwealth, elected pursuant to an act of Assembly, entitled "An act to authorize the election of tax collectors for the term of three years in the several boroughs and townships of this Commonwealth," approved the sixth day of June, Anno Domini, one thousand eight, hundred and ninety-three, and all other tax collectors of state, county, township, road, school and borough taxes, elected or appointed by or under existing law, shall hereafter make monthly returns in writing to the several persons to whom the tax collected by said tax collector is by law required to be paid, showing the amounts collected by them during the preceding month, and the amount of uncollected taxes upon their respective duplicates, or exhibit the duplicate showing the said uncollected taxes, at the close of each month during their respective terms' of office, and shall pay over to 'the said persons to whom by law the said taxes are made payable, the amounts so collected by such tax collectors monthly, less the commission or fees to which they are by law entitled for the collection of the same: Provided, that in the case of collectors of borough taxes they shall also be required to file with the councils of their respective boroughs, duplicate returns for the taxes collected monthly by them as aforesaid, and duplicate receipts from the respective borough treasurers for the amount so paid over to them. 12 Any tax collector failing to comply with the requirements of this act shall be deemed guilty of a misdemeanor, and upon con- viction thereof shall be sentenced to pay a fine of not exceeding one hundred dollars. 13 Hereafter when any state, county and poor taxes are placed in the hands of a collector for collection in accordance with any existing law of this Commonwealth, the amount of the same shall be credited to the treasurer of the county, if previously charged to said treasurer, and charged to the collector ; and such collectors shall give bond to the county, with sureties to be ap- proved by the commissioners of the county, in such amount as said commissioners may designate. 14 Said collectors shall be 175, amending § 9 of the Act of "Act of July 9, 1897, § 2, P. L. June 25, 1885, P. L. 187. 242. "Act of July 9, 1897, § 1, P. L. "Collectors of taxes in boroughs 242. and townships need not give the 190 TAXATION IN PENNSYLVANIA. appointed or elected in the manner now provided by law in each county, and shall make monthly returns to the commissioners' of the county of the amounts collected, and at the same time, pay to the treasurer of the county the amounts shown by such returns to have been collected. 15 Collector's returns of uncollected taxes must sufficientiy de- scribe the lands which are delinquent. "The description of the land in the return of the collector should also be definite; and sufficiently so to enable the owner and also the officer and the public to identify and determine from the return the exact property Which is delinquent and liable to sale. Vandermark v. Phillips, 116 Pa. 199. The owner should have an opportunity to pay the taxes or redeem the land after it has been sold, within the time permitted by the statute, but this right will be denied him if by reason of an insufficient description the return fails to disclose the location of the property, and hence its ownership. It is not the in- tention of the law even in cases of tax sales, that an owner shall be deprived of his property by failure to perform a duty imposed by that law, unless he has notice or an opportunity to discharge the duty. . . ."" § 201. Collectors to make returns under oath. All col- lectors of state and county taxes shall, upon the settlement of their accounts of taxes collected, make an oath or affirmation that they have made a true and just retuVn of all moneys by them collected for state or county taxes ; and the several county treasurers are hereby authorized and required to administer such oath or affirmation, which shall be filed in the commissioners' office of the proper county. 17 § 202.' Penalty for embezzlement by tax collectors. If any person charged with the collection, safe-keeping or trans- fer of any state, county, township, school, city, borough or mu- nicipal taxes, under any law or laws of this Commonwealth) shall convert or appropriate the moneys so collected, or any part thereof, to his own use in any way whatever, or shall use by way of investment in any kind of property or merchandise any portion of the money so collected by him from such tax or taxes, additional bond required by the 1! Act of June 8, 1891, P. L. 212. foregoing act. Com. v. Com'rs M Norris v. Del., Lack. & W. R. of Dauphin County, 15 Pa. C. C. R. Co., 218 Pa. 88 (1907). 233 (1894); 3 D. R. 584. "Sec. 19, Act of April 22, 1846, P. L- 486. COLLECTORS OP TAXES. 191 and shall prove a defaulter or fail to pay over the same or any part thereof at the time or times, place or places, required by law, and to the person or persons legally authorized to demand and receive the same, every such act shall be deemed and ad- judged to be an embezzlement of so much of said money as shall be thus taken, converted, appropriated, embezzled, invested, used or unaccounted for, which is hereby declared a misde- meanor; and every such tax collector and every person or persons whomsoever aiding or abetting, or being in any way ac- cessory to such act, and, being thereof convicted, shall be sen- tenced to an imprisonment not exceeding five years, or to pay a fine not exceeding five thousand dollars, or both at the discretion of the court. 18 A defaulting county tax collector may be prosecuted for em- bezzlement under the foregoing act notwithstanding the pend- ency of proceedings under the Act of April 11, 1799, given in the following section. 19 § 203. County treasurers to issue warrants against defaulting collectors. — No person shall be reappointed a col- lector, who has not finally settled and paid off the whole amount of the balance due on former duplicates, or given security for the payment thereof; and if any person who has heretofore been or hereafter shall be a collector of taxes, and shall have neglected or refused, or shall neglect or refuse to pay the treasurer of the respective county within the time limited by law, all the sums of money which shall be due on his duplicate, excepting such sum as may be allowed by the commissioners for unavoidable losses, or for services for collecting, as is hereinafter mentioned, the treasurer is hereby authorized and required to issue his warrant, under his hand and seal, directed to the sheriff or coroner of the proper county, commanding him to take the body, and seize and secure all the estate, real and personal of such delinquent col- lector, or which, in case of the death of the collector may come into the hands or possession of his heirs, executors or admin- istrators, and fhake return thereof to such treasurer, at such time and place as he shall appoint in his said warrant. 20 "Sec. 1, Act of June 3, 1885, P. 2 °Act of April 11, 1799; 3 Sm. X,. 72. L- 392, § 18. See § 202. M Com. v. Miller, 13 D. R. 147 <1903). 192 TAXATION IN PENNSYLVANIA. § 204. Proceeding to sell lands of delinquent collect- ors. When the said lands and estates are secured as aforesaid, the treasurer of the proper county shall call a meeting of the board of commissioners, who are hereby required to attend, of which meeting, he shall, in his said warrant, have notified the said delinquent collector ; and if the arrearages are not then im- mediately discharged, the commissioners shall, and they are hereby empowered and required, to issue their warrant to the sheriff or coroner of the proper county, empowering and requir- ing him to sell, at public sale, all such estates, as shall be so seized and secured, or any part thereof, giving ten days' previous notice of such sale by written or printed advertisements, and to bring the money arising from such sale to the commissioners who granted the warrant, at the time and place mentioned therein, in order to satisfy and pay the respective county treasurer the sum or balance that shall be so unpaid, or detained in the hands of the said collectors, or their heirs, executors or administrators, return- ing the overplus, if any, to the owner, after all necessary charges are deducted. 21 The sale of the land of a defaulting tax collector, by a war- rant from the county commissioners, under the Act of April 11, 1799, is not. a sale for taxes and the laws relating to the sales of unseated lands for taxes do not apply thereto. 22 § 205. Sheriff to execute deeds to purchasers — Pro- ceedings against property situated elsewhere. When any sale of lands, tenements, or hereditaments shall be made by such sheriff or coroner, pursuant to this act, the conveyance thereof shall be by deed, executed and acknowledged in the court of common pleas of the proper county, by the sheriff or coroner or their successors in office, to such person or persons as shall pur- chase the same in fee simple or otherwise; which shall be most absolute and available in law against the said delinquents, their heirs, and assigns; and if any delinquent tax collector has re- moved or shall remove into any other county within this state, or shall have estate, real or personal, in such ^ther county or counties, and which shall not have been bona fide, and for a val- uable consideration disposed of, and process to be issued in pur- "Sec. 19, Act of April 11, 1799, ^Schuylkill & Dauphin Impt. & 3 Sm. L. 392. R. R. Co. v. McCreary & Jones, 58 Pa. 304 (1868). COLLECTORS OF TAXES. 193 suance of this act may be directed to the sheriff or coroner of any such other county or counties, and shall be proceeded on as in and by this act is directed in the case before mentioned/ 23 § 206. Like proceedings to be had against sheriffs or coroners detaining taxes. If any sheriff or coroner, who has heretofore received, or hereafter shall receive, any money or moneys for taxes, by virtue of their respective^offices, and the laws in such cases provided, shall neglect or refuse, within twenty days after demand made by the treasurer of the proper county, to render a just and true account thereof, or to pay the same to such treasurer, a warrant or warrants shall be issued by the commis- sioners against such delinquent sheriff or coroner, in like man- ner, and such proceedings shall thereon be had to final judgment, execution and sale, as are in and by this act directed respecting delinquent collectors, with this difference only, that if such de- linquent officer at the time or times of the commencement of such proceedings against him or them, continued to be in office, the warrant or warrants to be issued against him or them in pur- suance hereof, shall be directed to the other officer, either sherr iff or coroner, of the proper county as the case may be, who shall proceed thereon in like manner, as any sheriff or coroner may or can do under this act in like cases; and. the property, real and personal, of such sheriff or coroner shall in such cases be as liable to be seized in such other county or counties, and the like proceedings had on the same, as on the property of delinquent collectors as directed by the nineteenth section of this act. 24 § 207. Powers and liabilities of tax collectors in bor- oughs and townships. The collector of taxes shall have all the power for the collection of said taxes, during his term of office, heretofore vested in collectors of county taxes under ex- isting laws, and be subject to the same liabilities and penalties for neglect or violation of the duties of his office. 25 § 208. Collectors to keep tax books. The collector of taxes shall provide an appropriate book the cost of which shall be allowed to him in the settlement of his accounts, in which he shall enter in alphabetical order the names of all persons charged ^Sec. 20, Act of April 11, 1799, M Act of June 25, 1885, § 5, P. 3 Sin. L. 392. L. 187. See § 220. M Act of April 11, 1799, 3 Sm. L. 392, § 21. 13 194 TAXATION IN PENNSYLVANIA. with taxes in the duplicates aforesaid and showing the amount of such tax charged against such person, which hook shall be at all times open to the inspection of each taxpayer, and shall be delivered by the collector of taxes at the expiration of his term to his successor in office. 26 § 209. Collectors in boroughs and townships required" to give numberedytax receipts. That tax collectors of town- ships and boroughs of the Commonwealth furnish each person, on the payment of taxes, with a numbered receipt setting out date, name of taxpayer, amount of tax and district in which tax- payer is assessed, from a book to be furnished by the county commissioners containing a stub, that 'on the stub a memoranda shall be made in ink of the number of the receipt, the date, name of taxpayer, amount of tax and district in which taxpayer is assessed. 27 § 210. Return of receipts issued to be made to county commissioners. Twenty days before each election the tax col- lector of townships and boroughs shall send a sheet to the office of the county commissioners containing the number of each re- ceipt issued, date of payment, name of taxpayer, amount of tax and district in which taxpayer is assessed for the period since the last report. The first report shall be for taxes received on and after June first, one, thousand eight hundred and ninety- five. 28 The commissioners are hereby directed to have such reports of taxpayers bound and kept for public inspection. 29 Any tax collector failing to comply with the provisions of this act shall be guilty of a misdemeanor, to be fined not more than two hundred dollars, or imprisoned not more than one year, or both, at the discretion of the court. 30 § 211. Accounts of collectors to be settled by town- ship and borough auditors. The accounts of collectors of, taxes shall be settled by township or borough auditors of the proper township or borough and he shall state a separate account for each different tax collected by him; but collectors of county M Act of June 25, 1885, § 6, P. ""Sec. 3, Act of June 25, 1895, P. L. 187. L. 296. "Sec. 1, Act of June 25, 1895, P. ""Sec. 4, Act of June 25, 1895, P. L,. 296. L. 296. '"Sec. 2, Act of June 25, 1895, P. L. 296. COLLECTORS OF TAXES. 195 and state taxes shall settle with the county commissioners as heretofore. 31 § 212. Taxes on unseated lands not to be collected by tax collectors. Taxes charged upon unseated lands shall not be collected by the collectors of taxes, but shall be certified and returned by the several authorities levying the same to the county commissioners to be collected as heretofore. 32 § 213. Collectors may receive nothing but money in payment of taxes. Collectors of taxes may not receive any- thing in payment of taxes except legal tender money, and the lien of taxes will not be discharged except by such payment of tender. 33 An agreement by an agent of a landowner to deliver certain commodities to the county treasurer in the future in place of an immediate payment of taxes assessed upon the land is not a valid payment, though the commodities are subsequently delivered and a receipt is given for a cash payment. In such case the owner is bound by the knowledge of his agent that the taxes are not paid, and if the land is sold for taxes without his knowledge and he does not redeem within the statutory time, he is without remedy. 34 § 214. Exonerations. 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 exoneration* for mistakes, indigent persons, un- seated lands, etc., as to them shall appear just and reasonable, and the commissioners shall direct their clerk to enter in a book or books to be kept for that purpose the names of all persons abated or exonerated, toge'ther with the reason why, the amount and date, when made, and give to the collector a certificate di- rected to the county treasurer, stating the nature of the tax, and the amount exonerated, in order to make settlement accordingly, and the same course shall be pursued by the supervisors and overseers of the poor with respect to exonerations of township rates and levies. 35 "Sec. 11, Act of June 25, 1885, "Nutting v. Lynn, 18 Pa. Super. P. L. 187. Ct. 59 (1901). 32 Sec. 12, Act of June 25, 1885,. 35 Sec. 48, Act of April 15, 1815, P. L. 187. P. L. 509. "Nutting v. Lynn, 18 Pa. Super. Ct. 59 (1901). 196 TAXATION IN PENNSYLVANIA. Exonerations may be made by the authorities and in the same manner as heretofore. 36 It shall be the duty of supervisors and collectors of road taxes, and of all collectors of any other taxes whatever, to make return to the county commissioners of any exonerations claimed by them, on or before the first day of January in each year ; and it shall not be lawful for the said county commissioners to grant any exonerations after that time, nor for the county treasurer to sell any lands which shall have been returned and taxes exon- erated, after the said time. 37 The returns for the collection of taxes on unseated lands, and for exonerations required to be made in pursuance of the sev- eral provisions of an act' of assembly, approved the twenty-first day of April, one thousand eight hundred and fifty-six, entitled "An act relative to the sale of lands for the non-payment of taxes/' shall be good and valid if made on or before the first day of February in each and every year, instead of the first day of January, as required by that act: . . . 3S The third section of the Act of April 21, 1856, P. L. 477, as amended by the Act of February 23, 1858, P. L. 45, applies to seated lands, and is not repealed by implication by the Act of June 25, 1885, P. L. 187, as amended by the Act of June 2, 1891, P. L. 175. 39 The returns of the collectors for exonerations must be suf- ficiently definite to enable the owne», and also the officers and the public, to identify and determine from the returns the ex- act properties which are delinquent and liable to sale. 40 The provisions of § 3 of the Act of April 21, 1856, P. L. 477, as amended by the Act of Feb. 23, 1858, P. L. 45, requiring tax collectors to make their returns to the county commissioners for exonerations, on or before the first day of February of the year next succeeding the assessment of such taxes, is mandatory and its observance is a condition precedent to the right of the com- missioners to sell the land so returned for the unpaid taxes. 41 "Sec. 10, Act of June 25, 1885, mark v. Phillips et al., 116 Pa. 199 P. L. 187. (1887). "Sec. 3, Act of April 21, 1856, "Vandermark v. Phillips et al., P. h. 477. 116 Pa. 199 (1887). "Act of Feb. 23, 1858, P. L. 45. "Vandermark v. Phillips, 116 ""Bigger v. Scouton, 30 Pa. Pa. 199 (1887). Super. Ct. 503 (1906); Vander- COLLECTORS OF TAXES. 197 ". . . After all appeals, whether to the board of revision or to the county commissioners, have been heard and decided; after duplicates and warrants for the collection of the taxes have been issued to the several collectors ; after collection is being had, or at all times while it is going on, the county commissioners are required to make abatements or exonerations for mistakea^yet uncorrected, for indigent persons, for unseated lands, and the like, as to them shall appear just and reasonable. These abate- ments and exonerations, together with the names of the persons exonerated, the amount and date in each case and the reason why the same was done, the commissioners are required to di- rect their clerk to enter in a book or books to be kept for that purpose. They are further required to give the collector cer- tificates of these abatements or exonerations directed to the county treasurer in order that settlements may be made accord- ingly. ... A collector receiving payment of taxes lawfully exonerated — an enterprise not unknown in this county — perpe- trates a "criminal offense. Act of May 27, 1841, § 8, P. L. 402. One of the great aids in discovering the offense is the 'book or books to be kept for that purpose.' " 42 Where there is a total destruction of the whole or a part of the property assessed, subsequent to the assessment, the remedy is by an exoneration of the taxes. 43 Collectors are not entitled to commissions on taxes from which they have been exonerated. 4 * § 215. Receipts for unassessed taxes or exonerations prohibited. ... It shall not be lawful for any county treasurer, county commissioner or commissioners, or any col- lector of taxes in any township, ward, or district nor for any other person on his or their behalf, to receive payment, or give any receipt for the payment of any taxes that have not been duly assessed, and returns of said assessment made according to law, nor shall any such treasurer, commissioner or commissioners, or collector, or other person, on his or their behalf, receive pay- ment or give any receipt for the payment of any taxes from the payment of which the party assessed has been exonerated accord- "Del. & Hudson Canal Co. v. "Ferguson v. Lycoming County, Blakely Township School Direc- 8 Pa. C. C. 667 (1890). tors, 11 Phila. 587 (1876). "Breisch v. Brennan, 15 Phila. 641 (1879). , 198 TAXATION IN PENNSYLVANIA. ing to law, unless the party so exonerated shall himself appear in his own proper person, and tender payment of the taxes from which he had been so exonerated; and it shall not be lawful lor any commissioner or commissioners of any county, or for any other person on his or their behalf, to add any name or names to the^luplicate return or list of taxables, made or furnished by the assessor or assistant assessor of any township, ward, or dis- trict, and if any such treasurer, commissioner, commissioners, or collector, or other person on his or their behalf, shall violate any of the provisions of this section, he shall upon conviction thereof, before any- court having competent jurisdiction, pay a fine of one hundred dollars for the use of the Commonwealth, and shall moreover be forthwith removed from office, and the vacancy thereby occasioned in either of said offices shall be filled or supplied as in other cases of vacancies in such office. 45 § 216. Tax collectors may employ deputies. It shall be lawful for any collector, with the approbation of the treasurer of the proper county or township, as the case may be, to em- ploy a suitable person to act for him in the execution of his warrant; such collector and his surety being in all cases respon- sible for the acts of such deputy. 46 Tax collectors must perform their duties in person or by reg- ularly appointed deputy. They may not issue their warrant to a constable to collect unpaid taxes by distress and sale. 47 § 217. Collector of delinquent taxes in Allegheny County. The Act of June 8, 1891, P. L. 212, 4 " does not operate to prevent the county treasurer of Allegheny County from re- moving a delinquent tax collector appointed by his predecessor, under the provisions .of § 23 of the Act of May 1, 1861, P. L,. 450. The liability of such collector does not extend to anything not arising from his administration of his office. 49 Where one who has been appointed delinquent tax collector presented a proper and sufficient bond to the county commission- ers, who refused their approval because they doubted the author- ity of the treasurer of the county to remove his predecessor, "Section 8, Act of May 27, 1841, "Shoemaker v. Swiler, 2 Pears. P. L. 400. 114 (1871). "Sec. 51, Act of April 15, 1834, "See § 200. P. L. 519. "Com. v. Connor, 207 Pa. 263 (1903). COLLECTORS OE TAXES. 199 held, that it was their duty to approve the bond. In mandamus to compel them to do so, the incumbent has no status which will permit him to intervene. 50 § 218. Powers of executors of deceased tax collectors. The executors or administrators of any deceased tax collector within this Commonwealth, shall have the same powers, until the end of two years from the date of the warrant, to enforce the collection of the unpaid taxes, as the collector would have, if living. 51 It shall be lawful for the executors or administrators of any deceased tax collector to employ a suitable person to act for them in the execution of the warrants, with all the powers pos- sessed by the deceased collector. 52 "Mattern v. Allegheny County 51 Sec. 1, Act of March 26, 1867, Commissioners, 12 D. R: 244 P. L. 45. (1903). 52 Sec. 2, Act of -March 26, 1867, P. L. 45. CHAPTER X. PROCEDURE IN THE COLLECTION OE COUNTY AND TOWNSHIP TAXES. § 219. Procedure by collectors in the collection of taxes. 220. Powers of collectors to compel payment of taxes. 221. Seizure and sale of personal property for taxes. 222. Returns of collectors that there is no personal property on premises. 223. Tenants liable for all taxes. 224. Goods and chattels of tenants may be distrained for taxes. 225. Collectors not to sue for taxes prior to the expiration of their warrants. § 219. Procedure by collectors in the collection of taxes. Collectors of taxes have nothing to do with the collection of taxes charged on unseated lands. 1 Where the owner of seated lands refuses to pay the taxes as- sessed thereon within thirty days from demand therefor, it is the duty of the collector to levy the tax by distress and sale of 'the goods and chattels of such owner, and in case goods and chattels sufficient to satisfy the tax with the costs cannot be found, the collector may take the body of the delinquent and commit him to jail until the tax is paid with costs or secured to be paid. 2 It is not usual, however, to arrest taxables for non- payment of taxes. If the tax on said unseated lands cannot be realized in this manner, the collector returns the property to the county com- missioners for the purpose of sale, and the commissioners ex- onerate him from the tax thereon. If the county commissioners refuse to exonerate him from such tax or any other taxes, the collector may under the provisions of § 3, of the Act of April 11, 1848, P. L. 523, infra, § 225, bring suit for such taxes after the expiration of his warrant, but not before. ^ec. 12, Act of June 25, 1885, P. L. 509, infra, § 220; and § 35, P. L. 187. See § 212, supra. Act of April 15, 1834, P. L. 511, 'Sec. 21 Act of June 15, 1834, infra, § 220. COLLECTION OF COUNTY AND TOWNSHIP TAXES. 201 "By the Act of April 29, 1844, § 41, P. L. 501, real estate on which personal property cannot be found sufficient to pay the taxes as- sessed hereon, and whei;e the owner refuses or neglects to pay, shall be returned by the collector to • the county commissioners for the purpose of sale. But by the proviso of the same section no sale shall be had until the owner shall have refused or neglected to pay for the space of two years. "By the Act of May 13, 1879, § 2, P. L,. 55, in all cases where land has been sold or returned for sale for taxes, the owner may show that there was on it sufficient personal property to pay all the taxes assessed thereon which might have been seized by the col- lector if he had used due diligence 'and in such case the title of the original owner shall not be doubted.' To the same effect is the Act of June 3, 1855, P. L. 71, making valid sales for taxes irrespective of the fact whether seated of unseated, but providing that nothing in the act should validate or authorize the sale of any land in fact seated at the time of the assessment, if there was sufficient personal property on the premises to pay all taxes assessed thereon, liable to have been seized therefor. And by the act of April 15, 1834, § 46, P. I,. 518, the goods and chattels of any person occupying any real estate shall be liable to distress and sale for taxes in like manner as if they were the goods of the owner of such real estate. "From these statutory provisions it is clear that the law has es- tablished the order of liability for taxes to be, first, th; personal property on the premises, secondly, demand on the owner indi- vidually, and lastly, the land itself, and it is only on the failure to collect by either of the first two methods that resort can be had to the 'third and the land be legally sold or returned for sale. The collector proceeding directly against the land except under the pre- scribed conditions is without warrant of law and liable as a tres- passer." 3 § 220. Powers of collectors to compel payment ol taxes. If any person shall neglect or refuse to make payment of the amount due by him for such tax within thirty days from the time of demand so made, it shall be the duty of the collector aforesaid, to levy such amount by distress and sale of the goods and chattels of such delinquent, giving ten days' public notice of such sale by written or printed advertisements, and in case goods and chattels sufficient to satisfy the same with the costs cannot be found, such collector shall be authorized to take the body of such delinquent, and convey him to the jail of the proper county, there to remain until the amount of such tax together with 3 Kean v. Kinnear, 171 Pa. 639 (1895). 202 TAXATION IN PENNSYLVANIA. the costs shall be paid or secured to be paid, or until he shall be otherwise discharged by due process of law. 4 Nothing herein contained shall authorize the arrest or im- prisonment for non-payment of any tax of any female, or infant or person found by inquisition to be of unsound mind. 5 Taxes may not be collected by a common law action unless such remedy is given by statute. The law gives no remedy for the collection of taxes other than is given by the statute. 6 If any person shall neglect or refuse to make payment of the sum charged to him for township rates and levies, it shall be lawful for the collector thereof, having first obtained a warrant under the hand and seal of any justice of the peace of the county, to levy the same by distress and sale of the goods and chattels of such delinquent, giving ten days' public notice of such sale by written or printed advertisements, and in case goods and chat- tels sufficient to satisfy the same, with the costs cannot be found, such collector shall be authorized to take the body of such de- linquent and convey him to the jail of the proper county, there to remain until the amount so charged, together with the costs, shall be paid, or secured to be paid, or until he shall be otherwise discharged by due course of law. 7 Under the foregoing section a justice of the peace has no au- thority to commit upon the information of the collector, but the commitment must be by the collector, and must set forth all the facts justifying the imprisonment, together with a statement of the amount of taxes and costs, the payment of which would au- thorize the discharge of the prisoner. 8 All persons who are authorized under existing laws to collect either road or poor taxes in the several boroughs and townships of this Commonwealth, are hereby authorized and empowered, in addition to the remedies heretofore provided, to collect either 4 Sec. 21, Act of April 15, 1834, 'Sec. 35, Act of April 15, 1834, P. L. 509. The taxes referred to P. L. 509. The rates referred to are county rates and levies. are township rates. It seems, "Sec. 45, Act of April 15, 1834, therefore, that a collector of P. L. 509. county rates may arrest for non- 'McKeesport Borough v. Fid- payment of taxes without a war- ier, 147 Pa. 532, 539 (1892); rant, while a collector of town- Schied's Appeal, 7 Pa. C. C. 282 ship rates must have a warrant. (1889). "Commonwealth v. Deuel, 8 D. R. 431 (1899). COLLECTION OF COUNTY AND TOWNSHIP TAXES. 203 road or poor tax by levy and sale in the same manner as school and county taxes are now by law collected: Provided, however, that nothing herein contained shall be construed to abridge any right secured under existing law to any person to work out any portion of his road tax. 9 § 221. Seizure and sale of personal property for taxes. The levy of a tax collector does not have priority over writs of fi. fa. in the hands of a sheriff. No more is given to an officer to enforce payment of taxes than a power to distrain, which does- not imply the existence of a lien before distress made. 10 "Since the case of Parsons v. Allison, 5 Watts 72, and Baskin et al v. Koontz & Hummel, Id. 76, it has never been supposed that a collector's warrant is a lien on property for unpaid taxes,, before actual seizure. These cases settle conclusively that it is not, and that it is unlike a fi. fa. in this particular." 11 Where the personal property of a taxpayer was sold by the sheriff, after taxes had been assessed, and before its removal from the premises the collector seized it and sold it for taxes, held, that the collector was liable to the purchaser in trespass. The property was not within the provisions of the Act of April 15, 1834, inasmuch as the purchasers were not occupants of the real estate. 12 Evidence that a tax collector entered upon the premises of the plaintiff, made a levy upon certain articles of household goods and advertised them for sale, but that he afterwards aban- doned the levy and did not sell the goods, is not sufficient upon which to maintain an action of trespass. 13 A collector of taxes may enforce payment by a distress upon personal property of an assigned estate in the hands of assignees,, and not on the premises against which the taxes are assessed, before or after the assignment. 14 Collectors of taxes are not required to proceed by distress and sale of the personal property of a taxpayer, but they may pay the tax and proceed on their warrants. In such cases the payments are not voluntary on their part. The action is expressly "Act of May 22, 1895, P. L. 111. • "Moore v. Marsh et al, 60 Pa. "Helsel & Baird v. Walker, 7 46 (1869). D. R. 628 (1897). u Wade v. Wright, 4 Penny. 255 "Moore v. Marsh et al., 60 Pa. (1884). 46 (1869). "Brice v. Hazlett's Assignees,. 21 Pa. C. C. 512 (1898). 204 TAXATION IN PENNSYLVANIA. authorized, where the warrant of a collector has expired, and he. has not. been exonerated, by § 3, Act of April 11, 1848, P. L. 524.15 A tax collector is concerned only with the taxes which he is authorized to collect, and, if there be sufficient personal property on the premises wherefrom to make such taxes, it is his duty, if the taxes are not paid, to distrain and sell the same. He is not responsible for taxes for which other collectors have warrants, and is not presumed to know the amount thereof. Hence, where three collectors of three different classes of taxes returned that they could not find sufficient personal property to satisfy the total taxes on the land, but there was sufficient in sight to have satisfied the taxes to be collected by two or more of the collectors, a sale for the entire amount of the taxes was invalid. 16 Property of an occupier of land may be seized under a dis- tress for taxes, although it be not on the premises, the rule gov- erning distresses for rent not being applicable. 17 Where a collector of taxes distrains and sells property of a ten- ant for a real and personal tax of the landlord, and the property without sacrifice does not produce sufficient to pay the amount of tax assessed upon the realty, the collector is not a trespasser, the amount of the personal tax not having been particularly de- manded or objected to. 18 § 222. Returns of collectors that there is no personal property on premises. The Act of April 17, 1866, P. L,. 961, making a tax collector's return that there is no personal property on the premises conclusive, is unconstitutional. 19 Where the owner of seated land has falsely stated to the col- lector that there is no personal' property on the premises, the purchaser of his title at sheriff's sale is not estopped from show- ing that there was such property. 20 Where a tax collector makes a return that there is not suffi- cient property on certain premises out of which to collect the taxes due thereon, and it is claimed that, on the contrary, there was sufficient personal property, the owner of the land cannot en- "Shriver v. Cowell, 92 Pa. 262 "McGregor v. Montgomery, 4 (1879). . Pa. 237 (1846). M Davis v. Beers, 204 Pa. 288 ""Guthrie v. Reck, 3 Walker 161 (1902). (1882). "McGregor v. Montgomery, 4 "Guthrie v. Reck, 3 Walker 161 Pa. 237 (1846). (1882). COLLECTION OF COUNTY AND TOWNSHIP TAXES. 205 join the county treasurer from selling the property for taxes. His remedy is against the collector for making a false return. 21 The special Act of February 16, 1867, P. L. 214, in relation to tax sales in Potter, Warren, Bradford and Sullivan Counties, providing that the return of the tax collector that taxes are un- paid and that no personal property can be found on the land, out of which the taxes can be made, shall be conclusive, was re- trospective in its operation only, and had reference only to sales for taxes assessed before its passage. 22 § 223. Tenants liable for all taxes. 23 Every tenant who may or shall occupy or possess any lands or tenements, shall be liable to pay all the taxes, which during said occupancy or posses- sion may thereon become due and payable ; and having so paid such taxes, or any part thereof, it shall be lawful for him, by action of •debt or otherwise, to recover said taxes from his landlord, or, at his election, to defalcate the amount thereof in the payment of the rent due to such landlord, unless such defalcation or re- covery would impair any contract or agreement between them previously made. 24 A lessee under an oil lease, who has exclusive possession of the land for the purpose of searching for, producing, etc., pe- troleum, has more than a mere license in the land and may re- cover from the lessor taxes on the land paid by him under com- pulsion, under § 6, Act of April 3, 1804. 25 Where a lessor of lands operated as" a slate quarry was assessed for taxes on such lands as farm lands and paid the same, and the tenant was assessed on the quarry and machinery, the machinery having been placed upon the land by the tenant, the tenant may not default the taxes so assessed and paid by him from the roy- alties due the landlord as rent. 26 Where a decedent on August 26, 1863, had leased a farm to his son G, "all taxes to be paid by the said G that may be as- sessed on said property," bounty taxes being then unknown, held, that the bounty taxes assessed on the farm in 1864-5-6 "Harris v. Davis, 24 Pa. C. C. '"Kitchen et al. v. 'Smith et al., 373 (1899); 10 D. R. 7. 101 Pa. 452 (1882); 13 W. N. ^Marsh v. Nelson, 12 W. N. C. C. 7. 214 (1882). 'Tlory v. Heller, 1 Mona. 478 "See § 326. (1889). M Sec. 6, Act of April 3, 1804, 4 Sm. L. 201. 206 TAXATION IN PENNSYLVANIA. must be paid out of decedent's estate. However general the terms may be in which an agreement is conceived, it only comprehends those things in respect to which it appears that the parties pro- posed to contract and not others they never thought of. 27 Where taxes are assessed against the lessees of property, the lessor thereof is liable to his vendee, who pays those taxes after levy, for the amount so paid, in the absence of any contract be- tween the lessor and lessees by which the latter" were bound to pay them. 28 The liability of a tenant to pay taxes, under the Act of 1804, is concurrent only with that of the landlord, and the neglect or re- fusal of the collector to collect tax from the tenant will not re- lieve the landlord from payment. 29 Where by the terms of a lease the tenant is to pay the taxes upon the leased premises, the landlord who has levied for his- rent is not entitled, out of the tenant's goods, to the amount of taxes paid by the landlord after the levy. 30 Where a lessee agrees to pay a portion of the taxes on the rented property, in addition to the rent, the lessor is entitled to preference for the amount as part of the rent, in the distribution of the lessee's estate. 31 A life tenant is not bound to pay taxes out of income, where the will provides that such life tenant shall receive a stated sum per annum from the estate, any deficiency therein to be made up out of the principal, and such deficiency exists. 32 A tenant in common is entitled to be reimbursed by his coten- ants for money advanced for the payment of taxes on common property. 33 A tenant or stranger whose goods may have been taken to pay taxes will be considered as a surety and substituted to the rights of the party to whom the tax was coming, but a collector paying the taxes cannot be considered as a surety. 34 Upon a distress for ground rent, the tenant may not set off "Focht's Estate, 2 Woodward sl Morgan's Estate, l D. R. 402 269 (1869). (1892). "Caldwell v. Moore, 11 Pa. 58 ""Bruner's Estate, 6 Pa. C. C. (1849). 221 (1888). M Morgret v. McNaughton, 3 Pa. ""Devlin's Estate, 5 D. R. 125 C. C. 606 (1887). (1896). ""Case v. Davis et al., 15 Pa. "'Wallace's Estate, 59 Pa. 401 80 (1850). (1868). COLLECTION OE COUNTY AND TOWNSHIP TAXES. 207 taxes paid by him during the years during which the taxes ac- crued, the act applying to taxes assessed on lands only and not to taxes' assessed upon ground rents. 35 § 224. Goods and chattels of tenants may be dis- trained for taxes. The Act of April 3, 1804, 4 Sm. L. 201, § 6, makes tenants- liable only to pay all taxes which, during their occupancy or pos- session, may become due and payable thereon. In that act there was no reference to the time of the assessment of the taxes, but to the time when they fall due and are payable. Said section applies to county taxes. 36 Section 8 of the Act of April 6, 1802, 3 Sm. L. 516, relating to road taxes, provided that the*tenant or tenants or other persons residing on lands owned by persons not residing in the township may have their goods levied on for the payment of taxes, "and when any tenant or tenants shall have taken or hereafter may take a lease of lands or tenements for one or more years, and of which the tenant shall be in possession at the time of levying or assessing the tax for public roads and highways, and pay the rate hereby imposed on said lands or tenements so leased" he may deduct the tax from the rent. The 46th section of the Act of April 15, 1834, P. L. 509, was taken from these two sections and is as follows: The goods and chattels of any person occupying any real es- tate shall be liable to distress and sale for the non-payment of any taxes assessed upon such real estate during his possession or occupancy, and remaining unpaid, in like manner as if they were the goods and chattels of the owner of such real estate. The occupier of real estate is not liable, therefore, to have his goods levied upon for taxes not assessed during his occupancy, and the purchaser of lands at a sheriff's sale in 1869 was held not liable for taxes assessed against the same in 1868. 86a Real estate which has passed to assignees under a voluntary deed of assignment for the benefit of creditors is not exempt from the payment of taxes, whether assessed thereon before or Tranciscus v. Reigert, 4 Watts 36aS me ich v. York County, 68 ■98, 119 (1835). Pa. 439 (1871). See Wright & "Smeich v. York County, 68 Pa. Slingluff v. Wigton, 84 Pa. 163 439 (1871). (1877); Hartman v. Hazen, 28 Pa. C. C. 311 (1903). 208 TAXATION IN PENNSYLVANIA. after the assignment was made; and the personal property re- maining on the land thus taxed, after the assignment, is liable to distress for non-payment of taxes. 36 " The goods and chattels of tenants may be levied on under § 46 of the Act of April 15, 1834, P. L. 509, for either county or ■township taxes. 37 The seizure of the goods of a deceased husband for taxes on his wife's property, which property was occupied by them to the time of his death, is a trespass, whether deceased was in his lifetime either owner or occupier. 3 ? A wife is not such an occupier of her husband's real estate, while he is himself occupying the same with her, within the meaning of § 46 of the Act of April 15, 1834, P. L. 509, as to make' her separate property liable for the taxes assessed and levied against her husband. "The relation of husband and wife is not such as to constitute a joint occupancy in a legal sense of real estate belonging exclusively to the husband." 39 Where the owner of property is a non-resident, it is the duty of the collector to make demand upon the tenant for the taxes in his duplicate to which is appended his warrant, and, on his refusal to pay, to seize and sell the personal property subject to seizure and sale for taxes.* Under the general Act of April 15, 1834, § 46, P. L. 509, the goods and chattels of a tenant occupying real estate are not liable to distress and sale for non-payment of taxes levied and assessed before the beginning of the tenancy, but under the Act of April 17, 1866, P. L. 966, in force in Carbon and Luzerne Counties, the goods and chattels of a tenant are liable to distress and sale for taxes levied and assessed prior to the beginning of the tenancy as well as those levied during the occupancy of the premises. An assignment of the premises for the benefit of creditors does not change the rights of the parties. 41 Persons owning improvements, houses, breakers and other structures and those owning the land upon which the same are 36b\Vright & ■SlinglufE v. Wig- "Ferguson et ux. v. Moore et ton, 84 Pa. 163 (1877). al., 5 Pa. Super. Ct. 349 (1897). "Ferguson v. Moore, 5 Pa. "Davis v. Beers, 204 Pa. 288 Super. Ct. 353 (1897). (1903). "Bilakeslee's Administrator v. "Sitler v. Singer Manufacturing- Stebbins, 3 D. R. 269 (1893). Co., 30 Pa. C. C. 1 (1904); 14 D. R. 382. COLLECTION OF COUNTY AND TOWNSHIP TAXES. 209 situated may agree between themselves as to the apportionment of taxes, and where a lease of a coal mine contained a covenant on the part of the lessees to pay all taxes upon improvements, held, that the lessees were bound by said covenant to pay the increased amount of taxes assessed upon the land by reason of its increased value in consequence of the erection upon it of houses, coal breakers, etc., by the lessees. 42 § 225. Collectors not to sue for taxes prior to the ex- piration of their warrants. It shall not be lawful for any col- lector to institute a suit, for the recovery of any tax in any court of this state or before any alderman or justice of the peace of this state, and no such court, alderman or justice shall issue process for such purposes. 43 Collectors of taxes cannot sustain a common law action for the collection of taxes until two years after the date of their warrants. Hence, the statute of limitations does not begin to run until six years after the expiration of such two years. 44 The provisions of the fiftieth section of an act of the General Assembly of this Commonwealth, entitled "An Act relating to county rates and levies," passed April fifteenth, one thousand eight hundred and thirty-four, shall not be so construed as to prohibit a collector of taxes 'from instituting suit or suits for the recovery of taxes due and unpaid, at any time after the expiration of his warrant ; but in all cases where taxes are due and unpaid to any collector, after the expiration of his warrant, when such collector has not been legally exonerated therefrom, every such collector, or person, his executors, administrators, or any of them, is hereby declared to have full right and power to sue for and recover the same, with interest thereon, after the expiration of his warrant as aforesaid, from all and every person and persons, bodies politic and corporate, owing the same, as other debts of like amount are now by law recoverable. 45 Under the provisions of § 3, Act of April 11, 1848, P. L. 523, in order to entitle a tax collector to maintain a suit for the re- "Hecksher et al. v. Sheafer et "Wickersham v. Russell, 51 Pa. al, 1 Sadler's S. C. Cases 424 71 (1865) ; Com. v. Mahon, 12 Pa. (1886); 17 W. N. C. 323. Super. Ct. 616 (1900). "Sec. 50, Act of April 15, 1834, "Sec. 3, Act of April 11, 1848, P. L. 509. P. L. 523. 14 ■210 TAXATION IN PENNSYLVANIA. the township, if known, wherein the same may lie; for which returns the said . . . surveyors shall receive from the county treasurer, on the order of the commissioners, four cents for each warrant or survey thus returned . to the said commissioners ; and every . . . surveyor who, when required, shall refuse or neglect to make such return shall forfeit and pay for every such neglect or refusal one hundred dollars to be recovered as other debts of equal amount are or may be by law recovereable ; and the said county commissioners are hereby enjoined and required to provide and keep a suitable book or books, in which they shall cause to be entered the number of acres surveyed, the names of the original owners and boundaries so far as it shall be known to them, of each tract mentioned in every such return, which they have already received or may hereafter receive from any of the . . . surveyors aforesaid. 2 § 232. Holders of unseated lands to make returns of the same. It shall be the duty of every holder of unseated lands within this Commonwealth, who has not complied with the in- junctions required by the second section of the act to which this is a supplement, 3 to furnish to the commissioners of the proper county on or before the fourth Monday of November next, a state- ment signed by such holder, or his, her or their agent, containing a description of each and every tract so held, the name of the person or persons to whom the original title from the Common- wealth passed, and the nature, number and date of such original title; and it shall be the duty of every person hereafter becoming 'Sec. 1, Act of April 3, 1804, 4 county within one year from and Sm. Z,. 201. after the passage of the act and "The second section of the Act on failure so to do the county of April 4, 1905, 7 Bioren's Laws commissioners were required to 508, to which the above act was assess the said lands four times a supplement, made it the duty the amount of tax that such lands of the holders of unseated lands would have been liable to had to file their title or claim with they not been secreted. The the commissioners of the proper above act repeals said section. 222 TAXATION IN PENNSYLVANIA. a holder of unseated lands by gift, grant or other conveyance, to furnish a like statement, together with the date of the conveyance to such holder, and the name of the grantor, within one year from and after such conveyance, and on failure of any holder of unseated lands to comply with the injunctions of this act, it shall be the duty off the county* commissioners to assess on every tract of land, respecting which such default shall be made, when dis- covered, four times the amount of the tax to which such tract or tracts of land would have been otherwise liable, and to enforce the collection thereof, in the same manner that taxes due on un- seated lands are or may be assessed and collected : Provided, that nothing in this act nor in the act to which this is a supplement shall be construed as giving greater validity to unexecuted land warrants than they are now entitled to, nor to the detriment of persons under legal disabilities : Provided, such person or per- sons comply with the foregoing requisitions within the time or times limited respectively, after such disability shall be removed. 4 A warrant was originally assessed in the name of the war- rantee for 999 acres. During subsequent years the amount was reduced as sales were made. It was finally assessed for 200 acres. The owner paid taxes at this rate and sold the land. A treasurer's sale* under such an assessment passes the title to the 600 acres. The owner by not complying with the Act of March 8, 1806, and knowing from having paid taxes on but 200 acres that he was not assessed properly, is in no position to object. 5 The Act of April 4rl805, and March 28, 1806, requires hold- ers of unseated lands to file a description of such lands and fail- ing so to do they become subject to a fourfold tax thereon, in payment of which the land may be sold, but when the lands are returned as seated by the assessor, the owner may elect to con- sider them as such and pay tax accordingly and in that event the land will not be subject to assessment as unseated nor to the penalty of a fourfold tax. 6 § 233. Returns of taxes on unseated lands. From and after the passage of this act, assessors, supervisors and collectors of road and school taxes, be and they are hereby required to make 4 Sec. 1, Act of March 28, 1806, "Harper v. Farmers' & Me- 4 Sm. L. 346. chanics' Bank, 6 W. & S. 204 "Williston v. Colkett, 9 Pa. 38 (1844). (1848). TAXATION ON UNSEATED LANDS. 223 their returns for the collection of all taxes on unseated lands on or before the first day of January in each and every year, and if not so made by said assessors and collectors, such returns shall not thereafter be received, nor shall such taxes be a lien on real estate: Provided, that this section shall not be construed to ex- empt any such assessors and collectors and their bail, from lia- bility for not. making their returns according to law. 7 The returns for the collection of taxes on unseated lands, and for exonerations required to be made in pursuance of the several provisions of an act of assembly, approved the twenty-first day of April, 1856, entitled, "An Act relative to the sale of lands for the non-payment of taxes," shall be good and valid if made on or before the first day of February in each and every year, instead of the first day of January, as required by that act. . . . 8 § 234. Erroneous assessment of road taxes. Whenever an assessment of road tax by the supervisors may be made upon land as unseated, which the assessors for the same year by error or mistake returned assessed as seated, while the same ought or might legally have been assessed as unseated, the said assessment by the supervisors shall be deemed valid and regular for all intents and purposes, notwithstanding it differs from the copy of the duplicate furnished the supervisor by the assessor, and all records of the county commissioners charging lands as unseated with ar- rears of taxes shall be evidence of an assessment and no clearing over by mistake shall ever be deemed sufficient to render land seated. 9 § 235. Collection of taxes on unseated lands. Taxes charged upon unseated lands shall not be collected by the col- lectors of taxes, but shall be certified and returned by the several authorities levying the same to the county commissioners to be collected as heretofore. 10 § 236. Collection of poor taxes on unseated lands. It is the true intent and meaning of the several statutes of the general assembly, authorizing the assessment of poor tax upon property, that unseated lands shall and may be assessed therewith in the manner provided for the assessment of poor tax upon other 'Sec. 2, Act of April 21, 1856, "Sec. 21, Act of April 12, 1842, P. L. 477. P. L. 262. "Sec. 1, Act of Feb. 23., 1858, 10 Sec. 12, Act of June 25, 1885, P. L- 45. P. L. 187. 224 TAXATION IN PENNSYLVANIA. real estate, and whenever hereafter any poor tax so assessed on any unseated lands in this Commonwealth shall not be volun- tarily paid by the owner or owners thereof, the collector or over- seer of the poor of the proper district, as the case may be, shall certify the same to the proper county commissioners as is now directed by law in the case of road and school taxes, and the . commissioners shall enforce the collection thereof with the taxes assessed on unseated lands for county purposes, and when so collected said tax shall be paid to the overseers of the poor of the proper district by orders drawn by the county commissioners on the county treasurer. 11 § 237. Taxes to be paid within year for which they are levied— To bear interest thereafter. After June first, Anno Domini, one thousand, eight hundred and eighty-eight, all taxes levied upon unseated lands, within the counties of this Commonwealth, shall be paid by the owner or owners of such unseated lands within the year for which the same are levied; and in case of the refusal or failure of any person or persons, companies or bodies corporate, owner or owners of such unseated lands to pay the taxes so levied within the year for which the same were levied and collectible, then interest at the rate of six per centum per annum is to be charged upon the amount of said taxes, or any part thereof, remaining due and unpaid from and after the first day of the year following that for which said taxes were levied until the same has been paid in full, or the land sold as now provided by law for the sale of unseated lands : Provided, no interest shall be charged upon taxes levied for the years 1886 and 1887. 12 § 238. Taxes may be paid in advance. Any board of commissioners may direct the treasurer of the proper county to receive in advance, for any term not exceeding six years, a sum which in their estimation shall be equal to the taxes that ought to be imposed on any such land or lands, during the period for which they shall so compound wkh the owner as aforesaid. 13 § 239. Joint owners may pay proportionate parts of taxes. Any joint tenant in common or coparcener of unseated "Sec. 1, Act of May 14, 1874, "Sec. 8, Act of March 13, 1815; P. L. 155. 6 Sm. L. 299. ^Sec. 1, Act of June 6, 1887, P. L. 363. TAXATION ON UNSEATED LANDS. 225 lands in this Commonwealth, shall have the right to pay his, her or their proportionate part of the amount of taxes due thereon at any time before the sale thereof by the county treasurer; and it shall be the duty of the said treasurer to receive and receipt for the same; and he may sell the residue of the shares or interest in said lands on which the taxes remain unpaid, any law, usage or custom heretofore to the contrary notwithstanding. 14 § 240. Eeceipts for taxes may be recorded. All re- ceipts for taxes on unseated lands given by the proper officers of any county of this Commonwealth, which shall have been duly acknowledged by said officers before any judge, or justice of the peace of the proper county, may be recorded in the office for the recording of deeds in the' county where the lands lie, and the records thereof, or the duly certified copies of said records, shall be evidence in all cases where the original receipts would be evidence. 15 § 241. Receipts for taxes to be acknowledged. It shall be the duty of the proper officers aforesaid, of the counties afore- said, to make the due acknowledgment in manner aforesaid, upon being required so to do, at the cost of the parties applying there- for: Provided, that such application shall be made within thirty days from the date of the receipts aforesaid. 16 § 242. Record of payment of taxes. In all cases where taxes upon unseated lands are paid to the county treasurer by the owners or claimants of said lands, it shall be the duty of such treasurer to enter such payments upon the proper book kept by him for the purpose, and if requested by the person paying such taxes, give a certified copy, under the official seal of said county treasurer, of the entries in such book, specifying the name of the person or persons as whose property such lands are taxed, the location of such lands, the number of the warrant, and the number of acres or other description thereof, the kind and amount of taxes assessed thereon and so paid, the date of payment of the same, and the name of the person or persons paying the said taxes and for whose use the same are paid: Provided, that the said treasurer shall be entitled to receive therefor, from the per- "Sec. 31, Act of April 25, 1850, le Sec. 2, Act of March 9, 1847, P. L- 569. P. L. 279. "Sec. 1, Act of March 9, 1847, P. L. 279. IS s 226 TAXATION IN PENNSYLVANIA. son demanding the said receipt or certified copy, the sum of twenty-five cents. 17 § 243. Commissioners to procure books and seal. In order that the county treasurers may be enabled to carry out the provisions of this act, the county commissioners of the proper county are hereby required to procure and furnish for said treasurers the proper 'book or books, together with an of- ficial seal of said office, for their respective counties; such book or books and seal, when necessary, shall be procured on or be- fore the first day of January, 1880, and all payments of taxes as aforesaid after said date shall be entered therein. 18 § 244. Transfer of lands from seated to unseated list. A tract of unseated land assessed as seated may not be trans- ferred to the unseated list so as to make it liable to taxation ana sale as unseated land, without reasonable notice to the owner. 19 But where land is dropped from both lists and is not assessed at all for three years and is then assessed as unseated, no no- tice to the owner is necessary. He has no reason to believe that his land is on the seated list. 20 Unseated lands, assessed as seated with the consent and knowl- edge of the owner and the county commissioners, may, when- ever it suits the interest or convenience of the county, upon giv- ing reasonable notice to the owner, be retransferred from the seated to the unseated list ; but the assessor has no right to trans- fer it without reasonable notice to the owner, and, if he do, a sale of it for taxes as unseated would have been, prior to 1885, at any rate, void. 21 "Sec. 1, Act of April 30, 1879, die v. Lingle et al., 66 Pa. 38 P. L. 34. (1870). See an examination of "Sec. 2, Act of April 30, 1879, these cases in .Stewart v. Trevor, P. L. 34. 56 Pa. 374 (1867), and the recon- "Owen v. Vanhook, 3 Watts ciliation of Laird v. Hiester, 24 360; Lorimer v. McCall, 4 W. & Pa. 452 (1855), and Arthur v. S- 133; Harper v. Mechanics' Smathers, 38 Pa. 40 (1860), there- Bank, 7 W. & S. 214; Milliken with. v. Benedict, 8 Pa. 169 (1848); "Bechdle v. Lingle et al., 66 Commercial Bank v. Woodside, Pa. 38 (1870). 14 Pa. 404 (1850); Stewart v. M Milliken v. Benedict, 8 Pa. 169 Trevor, 56 Pa. 374 (1867); Bech- (1848). See § 272. CHAPTER XIII. TAX SAI.ES OF UNSEATED LANDS. § 245. County treasurers to sell unseated lands for unpaid taxes. 246. Sales of unseated lands for road taxes. 247. Publication of notice of sale. 248. Fees of county treasurers.. 249. When no fee shall be paid for advertising notice of sales. 250. Time for beginning sales. 251. Publication of notice of sales in Philadelphia newspapers dis- pensed with. 252. Vacant lots in Philadelphia to be sold as unseated lands. 253. Unseated lots and lands may be sold for city taxes in Pitts- burgh. 253a. When vacant lots elsewhere may be sold as unseated lands. 254. Successors in office of treasurers to sell unsold lands. 255. Who may purchase lands at treasurer's sale. 256. Treasurers' deeds for lands sold for taxes. 256a. Title of purchasers at tax sales. 257. Surplus bonds. 258. Executors and administrators may collect amounts of surplus bonds given on purchase of lands of decedents. 259. Surplus bonds are liens on land sold — Suits on bonds. 260. Decisions relative to surplus bonds. 261. Surplus bonds must have warrants of attorney annexed. 262. The right to recover on surplus bonds is in the county treas- urer. 263. Payment of purchase money — Suits therefor. 264. Lands may be resold in default of payment of purchase money. 265. Effect of tax sales. 266. When the rule of caveat emptor applies in cases of tax sales. 267. Sales of land lying beyond the county limits. 268. When the rule of caveat emptor does not apply. 269. When sales are void owing to payment or attempted payment of taxes. 269a. Miscellaneous decisions relative to tax sales. 269b. Tax sales of lands held by tenants in common. § 245. County treasurers to sell unseated lands for un- paid taxes. The treasurers of the several counties in this Com- monwealth shall be and are hereby respectively authorized and directed, to commence on the second Monday in June, in the 228 TAXATION IN PENNSYLVANIA. year 1816, and at the expiration of every two years thereafter, and adjourn from day to day, if it shall be found necessary so to do, and make public sale of the whole or any part of such tracts of unseated lands, situate in the proper county, as will pay the arrearages of the taxes, any part of which shall then have remained due and unpaid for the space of one year before, to- gether with all costs necessarily accruing by reason of such de- linquency, and to make and execute a deed or deeds, in fee sim- ple, in the manner directed by the act to which this is a further supplement ; x and it shall be the duty of the said county treasurer to give at least sixty days' notice of the time and place of such sales, the township or townships in which the said tracts of land are respectively situated, the number of acres contained in each tract, and the names of the warrantees or owners thereof, and the sums due upon each tract for taxes, at least four times in one daily newspaper in the city of Philadelphia, and in one other newspaper in or nearest to the county where such lands lie, under the penalty of fifty dollars, in each and every case, to be recov- ered by the owner or owners of the land sold as aforesaid, as debts of like amount are by law recoverable, but the neglect* of such treasurer to cause the said publications to be made, shall not in any case, invalidate any sale made in pursuance of the provisions of this act. 2 The several powers vested in and duties enjoined on the re- spective sheriffs, by the' act to which this is a supplement 3 shall be transferred to and performed by the county treasurers re- spectively, under the same obligations and restrictions to which the said sheriffs are by law subjected, and the sales to be by them made in consequence of the transfer aforesaid shall be as valid in law as sales made by the sheriffs aforesaid, and so much of any law as is hereby altered or supplied, be and the same is hereby repealed. 4 The authority of the treasurer to sell unseated lands for taxes depends on these facts: that the lands were unseated at the time of assessment; that a tax appears to have been and was in fact ^ec. 2 of the Act of April 3, 2 Sec. 1, Act of March 13, 1815, 1804, 4 Sm. L. 201, to which the 6 Sm. L. 299. above act is a supplement, pro- "Act of April 3, 1804, 4 Sm. L. vided that deeds for lands sold 201. for taxes should be acknowledged 4 Sec. 1, Act of April 4, 1809, "in open court of common pleas." 5 Sm. L. 73. TAX SALES OF UNSEATED LANDS. 229 assessed upon it by the proper assessing officers, and that the tax has been due for one whole year and remains unpaid. The ab- sence of either of these facts involves an exemption from the penalties of the acts of 1804 and 1815 ; 5 and that there has been no redemption. The Act of March 26, 1903, P. L. 63, amending § 41 of the Act of June 4, 1901, P. L. 364, excepts from the operation of said Act of 1901, taxes assessed upon unseated lands. 7 Under the Act of April 3, 1804, supra, the courts held that to maintain a title under a tax sale everything must be shown to have been done which that act requires to divest the title of the taxed owner. This it became almost impossible to do, and to cure this Act of March 13, 1815, was passed, giving a right to redeem within two years, after which the title became absolute and free from all defects. 8 Under the said Act of April 3, 1804, the county commissioners issued their precept to the sheriff to sell lands for arrears of taxes, but the Act of March 13, 1815, imposed all duties in connection with such sales on the county treasurer. The object of the Act of March 13, 1815, was to make the sale for taxes and treasurer's deed confer a title without proof of any one pre-requisite, except that the land was unseated, and that a tax was charged by the commissioners, regularly or ir- regularly, that this tax was unpaid and that the land was sold and not redeemed within two years. 10 A treasurer's sale in 1820 was made on November 8, the sale having been adjourned from an earlier date, but there was no rec- ord of the adjournment. A deed was delivered pursuant to the sale and the subsequent records in the commissioners' and treasurer's offices were made up as if the sale had been regular. Held, that the absence of entries of adjournment of the sale was such an ir- regularity as was cured by the Act of March 13, 1815. 11 "Laird v. Hiester, 24 Pa. 452 'Birch v. Fisher, 13 S. & R. (1885); McReynolds v. Longen- 208 (1825). berger, 57 Pa. 13 (1868). "McCoy et ux. v. Turk, 1 Pen. "Knupp v. Syms, 200 Pa. 489 & W. 499 (1829). (1901); Thompson v. Chase, 2 M Hubley v. Keyser, 2 P. & W. Grant 387 (1858). See Wheeler 496 (1831). v. Knupp, 206 Pa. 306 (1903). "Coxe et al. v. Deringer et al., 'See § 631. 78 Pa. 271 (1875). See Same Par- ties, 82 Pa. 236 (1876). 230 TAXATION IN PENNSYLVANIA. § 246. Sale of unseated lands for road taxes. It shall be the duty of the commissioners of the respective counties within this Commonwealth, on receiving the transcripts of road taxes on unseated lands, which the supervisors of the different town- ships are by the existing road laws required to furnish, to issue their order to the county treasurer for the amount thereof; and also immediately to transmit copies thereof to the said treasurer, who is hereby required to enter them in a book to be kept for that purpose; and it shall be the duty of the said treasurer, on receiving the said taxes or any part thereof, and not before, to pay over the amount thereof to the supervisors who shall re- spectively be entitled to the same : Provided, that no land shall be sold for road taxes until twelve months after the said transcripts have been delivered to the treasurers aforesaid, and notice given in the manner prescribed by the second section of an act, directing the mode of selling unseated lands for taxes, passed the 3rd day of April, 1804. Provided also, that so much of the existing road laws as required the treasurers to pay the amount of road tax due on unseated lands to the supervisors, immediately on the orders of the commissioners being presented to them, be and the same is hereby repealed. 12 § 247. Publication of notice of sale. It shall be the duty of the county treasurer to publish the notice, as aforesaid, in at least two newspapers, if so many be published within the county in which the lands lie ; and if two newspapers be not published in the said county, then in one newspaper in or nearest to the same, under the same penalty in each case, and subject to the same pro- visions as specified in the said first section of the act above men- tioned. 13 Unseated lands may be sold by county treasurers only at open vendue after public notice. They have no authority to make private sales. 14 § 248. Fees of county treasurers. The fees to be received by county treasurers on the sale of unseated lands for taxes shall be as follows: ^Sec. 1, Act of March 30, 1811, "Cuttle v. Brockway, 32 Pa. 45- 5 Sm. L. 251. (1858). I3 Sec. 2, Act of March 9, 1847, P. L. 278. TAX SALES OF UNSEATED EANDS. 231 Advertising each tract, including printer's charge 50 Selling each tract, or part thereof, as the case may be 37 Writing and signing each deed 1.50 Acknowledging every deed 25 Writing and filing every bond to secure the purchase money 25" The county treasurer is not entitled to receive frcm the county pay for advertising sales for taxes in addition to the advertising fees collected by him from the purchaser at such sales. 16 § 249. When no fee shall be charged for advertising notice of sales. It shall not be lawful after the first day of Jan- uary, 1857, for the county treasurer of any county of this Com- monwealth to charge and receive any fee for advertising any land for sale for non-payment., of taxes, when the owner or owners thereof shall pay said taxes on or before the first day of March previous to the day of sale for taxes in the year in which such sale shall be advertised. 17 § 250. Time for beginning sales. The time of commencing the sales of unseated lands for taxes, according to the directions of the first section of the act, entitled "An act to amend an act directing the mode of selling unseated lands for taxes, and for other purposes," passed the thirteenth day of March, 1815, shall be on the second Monday of June of every year, in which the sales of such lands are by the said act directed to be commenced, and that so much of any law as is hereby altered or supplied, be and the same hereby is repealed. 18 § 251. Publication of notice of sales in Philadelphia newspapers dispensed with. So much of the first section of an act of the general assembly of this Commonwealth, entitled "An act to amend an act directing the mode of selling unseated lands for taxes and for other purposes," passed the thirteenth day of March, 1815, relating to the sales of unseated lands in the several counties of this Commonwealth as requires "the county treasurer to give at least sixty days' notice of the time and place of such sales, the township or townships in which the said tracts of land are respectively situated, the number of acres contained in each tract and the names of the warrantees or owners thereof "Sec. 24, Act of March 28, 1814, "Sec. 4, Act of April 21, 1856, 6 Sm. L. 234, superseding § 2, Act P. L- 477. of Apr. 4, 1809, 5 Sm. L. 73. "Sec. 5, Act of March 29, 1824, "Wyoming County Auditors, P. L. 167. No. 2, 14 D. R. 543 (1905). 232 TAXATION IN PENNSYLVANIA. and the sums due upon each tract for taxes, at least four times in one daily newspaper in the city of Philadelphia," be and the same is hereby repealed. 19 Section 1 of the Act of March 30, 1897, P. L. 11, seems to su- persede all other notices of sales of unseated lands for taxes though the title to the act does not seem sufficient to support the same. 20 § 252. Vacant lots in Philadelphia to be sold as un- seated lands. All vacant lots and pieces of ground within the city and county of Philadelphia may be sold for the payment of all taxes due and to become due thereon, in the like manner, and under the like restrictions, exceptions and provisions as unseated lands are authorized to be sold, by the act entitled "An act di- recting the mode of selling unseated lands for taxes," and the supplements thereto. 21 § 253. Unseated lots and lands may be sold for city taxes in Pittsburgh. The laws now in force for the collection of taxes on unseated lots or lands within the several counties of the Commonwealth, be -and the same are hereby extended and made applicable to the collection of city taxes on unseated lots or lands within the city of Pittsburgh; and upon the sale of any such lots cr lands within the limits of said city, it shall be the duty of the commissioners of Allegheny county to pay to the treasurer of said city the amount of city taxes which may be due thereon. 22 § 253a. When vacant lots elsewhere may be sold as unseated lands. Town lots may be sold as unseated lands for non-payment of arrears of taxes 23 but it is only by an abandon- ment entire, unlimited and intentional, and so long and so clear that there is no ground to support an intention to resume the occupancy, that a town lot once seated can become liable to be treated as .unseated land, unless taxed as such with notice to the owner. 24 And it seems that such lots may not be sold as un- M Sec. 1, Act pf March 9, 1847, '"'Sec. 22, Act of May 6, 1850, P. L. 278. , P. L. 692. "See § 301. ^McClelland v. McCalmont, 3 "Sec. 1, Act of March 28, 1814, P. & W. 106 (1831). 6 Sin. L. 223. Section 4, Act of M Negley v. Breading, 32 Pa. 325 Apr. 11, 1838, P. L. 325, provides (1858). See opinion of court be- for sales of vacant lots in Beaver low in Lynch v. Brudie, 63 Pa. County. 206 (1869).