Commonwealth v. Mahon

• Court: Pennsylvania Superior Court
• Writing for the Court: W. D. PORTER, J.
• Citation: Commonwealth v. Mahon, 12 Pa.Super. 616 (Pa. Super. Ct. 1900)
• Decision Date: 16 February 1900
• Docket Number: 27-1899
• Parties: Commonwealth of Pennsylvania to the use of Burgess and Town Council of the Borough of Chambersburg and of the School District of the Borough of Chambersburg, now for the use of H. M. White et al., v. T. M. Mahon, Executor of Martha M. Mahon, Deceased, Appellant

12 Pa.Super. 616

Commonwealth of Pennsylvania to the use of Burgess and Town Council of the Borough of Chambersburg and of the School District of the Borough of Chambersburg, now for the use of H. M. White et al.,

v.

T. M. Mahon, Executor of Martha M. Mahon, Deceased, Appellant

No. 27-1899

Superior Court of Pennsylvania

February 16, 1900

Argued March 22, 1899 [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter]

Appeal by defendant, from judgment of C.P. Franklin Co.-1897, No. 81, on verdict for plaintiff.

Assumpsit. Before Stewart, P. J.

It appears from the record that the suit was originally brought in the name of Charles B. Brand, administrator of Jacob S. Brand, deceased, for the use of H. M. White, against T. M. Mahon, and by order of court, the style of suit was amended so that the legal plaintiff should be the commonwealth to the use of the burgess and town council of the borough of Chambersburg and of the school district of the borough of Chambersburg, now for the use of H. M. White et al.

The equitable plaintiffs were the sureties on the bond of Jacob S. Brand, against whom judgment had been recovered for the amount of taxes for which Jacob S. Brand, the collector, had not settled, including taxes upon the seated lands of Martha M. Mahon.

The facts in detail sufficiently appear in the opinion of the court.

Defendant submitted among others the following points:

[1. The record as it now stands amended is as follows: The commonwealth of Pennsylvania, to the use of the burgess and town council of the borough of Chambersburg, and of the school district of the borough of Chambersburg, and now to the use of H. M. White, W. J. Zacharias, D. A. Orr, Van T. Haulman, Jno. R. Orr, W. H. Bricker, D. S. Flack, George Zullinger, W. Scott Flack, D. M.Sheller and A. J. White, v. T. M. Mahon, executor of the last will and testament of Martha M. Mahon, deceased. Such action cannot be maintained, and the verdict must be for defendant, because no statute provides for such common-law action to enforce the plaintiffs' demand; the statutes of this commonwealth having provided in the cases of boroughs and school districts certain special methods for the collection of taxes, viz: by distress, such remedy must be strictly pursued; and a common-law action cannot be maintained, except as provided by the act of assembly approved April 11, 1848, and then only in the name of the collector of taxes or his personal representatives. Answer: For the present I will instruct you directly to the contrary in this, but I reserve the question of law here stated in this point for further consideration, and if upon full consideration I am convinced that the law is correctly stated in this point, then, inasmuch as that would prevent the plaintiffs' recovery, judgment will be entered for the defendant non obstante veredicto.]

[2. The statute of limitations is a bar to the recovery in this action, and the verdict must be for the defendant. Answer: I decline to so instruct you, and say that the statute of limitations does not prevent the plaintiffs' recovery in this case.]

[5. Taxes not being a debt and not arising from any contract expressed or implied, but being purely a creature of statutory provisions, the plaintiffs cannot recover any interest on any unpaid taxes. Answer: I decline to instruct you as requested here. I refuse this point. In answer to it I instruct you that the plaintiffs are entitled to recover interest on the money paid by them for the taxes which should have been paid by Mrs. Mahon from the time judgment was obtained against them or they paid the debt. The taxes do not bear interest, but the plaintiffs are entitled to recover interest from the time they paid the debt.

So, gentlemen, there being no difficulties in the way of the plaintiffs' recovery arising from the questions presented, and the defendant not having shown that these taxes were paid by him, the payment testified to by him to Mrs. Chambers not being in discharge of Mrs. Mahon's liability for the taxes, there remains but one thing to do, and that is to render a verdict for the plaintiffs' demand, which is as follows: For the taxes which were assessed against Mrs. Mahon and which remained unpaid at the time the judgment was paid against the sureties, to wit: the sum of $ 175.30. The judgment having been obtained against them on December 14, 1896, they are entitled to recover interest upon that sum from that date to the present time, which is $ 18.40, making the total amount due the plaintiffs $ 193.70, and for that sum you will render your verdict.

Plaintiffs submitted the following point and answer:

[That upon the testimony of T. M. Mahon, the only witness who undertakes to testify to any payment of the taxes in suit, there was no such payment of these taxes as will avail the defendant in this action. Answer: Affirmed.]

Verdict and judgment for plaintiff for $ 193.70, with interest from September 13, 1898. Defendant appealed.

Errors assigned among others were In allowing plaintiff's amendment by the substitution of the commonwealth of Pennsylvania as legal plaintiff. In refusing to affirm defendant's first, second and fifth points, reciting same. In affirming plaintiffs' point, reciting same. In directing a verdict for plaintiffs. In directing judgment to be entered for plaintiffs upon the reserved point, and in not directing judgment to be entered for defendant non obstante veredicto.

Walter K. Sharpe, with him C. A. Suesserott, for appellant. -- If the commonwealth is stricken from the record the statute of limitations would be a bar as against the borough and school district.

Whilst the maxim nullum tempus occurrit regi protects the commonwealth from lapse of time, yet this immunity does not extend to subordinate divisions of the state: Rush Township v. County, 100 Pa. 356.

Where under the Act of April 11, 1848, P. L. 517, sec. 3, the right to employ a common-law action to recover taxes is conferred upon the collector after the expiration of his warrant, it has been held that such right of action is barred in six years after the same accrues: Wickersham v. Russell, 51 Pa. 71.

The present right of action, if there is any, accrued to the borough and school district on August 1, 1890, when the taxes were levied and became payable. This suit was brought February 26, 1897.

The right of the use plaintiffs to maintain a common-law action for these borough and school taxes in the name either of the commonwealth or of the municipality is flatly denied.

1. Because taxes are not such a debt arising out of contract, express or implied, for which a common-law action can be maintained in the absence of a statute expressly authorizing a recovery by that method.

2. Because the statutes relating to borough and school taxes have provided a special method for their collection, viz: by distress upon the goods of the delinquent taxpayer, and such remedy must be strictly pursued and is exclusive of all others.

In Shaw v. Peckett, 26 Vt. 482, it is said: " The assessment of taxes does not create a debt that can be enforced by suit or upon which a promise to pay interest can be implied. It is a proceeding in invitum:" City of Camden v. Allen, 26 N.J.Eq. 398. Lane County v. Oregon, 74 U.S. 71.

As the learned court below says, in his opinion upon the point reserved, the right of the commonwealth or a municipality to maintain a common-law action for taxes has never been decided by the Supreme Court of Pennsylvania. But in our sister states authorities abound, and they almost without exception support the view taken by the appellant.

Although, as we have said, our Supreme Court has never passed upon this question, yet a dictum on the subject may be found in Phila. Assn. v. Wood, 39 Pa. 73, 84, where Lowrie, C. J., says: " If this imposition may be properly called a tax, then we seriously deny the authority of the legislature to impose upon the courts the duties of tax collector, and especially so when the tax is for private account and not for the public treasury."

In Schied's Appeal, 7 Pa. C. C. 282, Mayer, P. J., in an able and concise opinion upholds the position of the appellant, and, whilst we do not cite it as an authority, we respectfully recommend it to the consideration of this court.

It is apparent from these several acts of assembly that the method contemplated, and the only method, for the collection of borough and school taxes is by distress and sale of the goods and chattels of the delinquent taxpayer, or in case sufficient goods and chattels cannot be found, by taking the body of the taxpayer. There can no longer be any doubt that where a special statutory remedy is given it is exclusive: Meurer's Appeal, 119 Pa. 115, 130; Warren v. Steer, 118 Pa. 529. If Brand had, at the time of the agreement with Mr. Mahon, the right of property in these taxes, or if subsequently they ever became his, he had a right to do with them as he pleased, and to relieve Mrs. Mahon of them if he chose. In this aspect of the case, if the action was brought in the name of Charles B. Brand, as legal plaintiff, the case should be sent to the jury.

O. C. Bowers, with him Gehr & Gehr and W. J. Zacharias, for appellees. -- Having resisted the right of the plaintiffs to recover in the name of the administrator of the collector, they now complain of, and assign for error, the action of the court in permitting the amendment which their own objection brought about. In other words, they would deny the right of the plaintiffs to recover in any form of action whatever.

That the amendment was properly allowed is set at rest beyond all controversy by the following cases: Patton v. R. R Co., 96 Pa. 169; Seipel v. R. R. Co., 129 Pa. 425; Collins v. Barnes, 130...