Miller et al. v. Gorman and Preston

• Decision Date: 11 March 1861
• Citation: 38 Pa. 309
• Parties: Miller <I>et al. versus</I> Gorman and Preston.
• Court: Pennsylvania Supreme Court

38 Pa. 309

Miller et al. versus Gorman and Preston.

Supreme Court of Pennsylvania.

March 11, 1861.

APPEAL from the Common Pleas of Schuylkill county. In Equity.

Edward Owen Parry, for appellants.

George H. Clay and John Bannan, for appellees.

The opinion of the court was delivered, March 11th 1861, by WOODWARD, J.

The plaintiffs, owners of the "James Laing" tract of land in New Castle township, Schuylkill county, sued out this bill in equity to restrain the defendants, the supervisor of roads and collector of road taxes in that township, from collecting in money a road tax of $216, which had been assessed against the plaintiffs as owners of said tract for the year 1858.

From the bill and answer, it appears that the "James Laing" is a seated tract, having on it the "Pine-knot Colliery," which is worked for the plaintiffs by Charles Miller & Co., as their tenants; that the tract, valued at $36,000, was assessed in the names of the plaintiffs, with a road tax for the year 1858, of $216; that before the duplicate and warrant were issued for the collection of the tax no notice whatever was given to the plaintiffs or their tenants, to work it out upon the road, but as soon as the plaintiffs learned the sum at which they had been rated, they gave the supervisor notice of their readiness to work out the said tax, and requested an opportunity to do so. This notice, which was in writing, was dated 10th May, 1858. In November, 1858, a levy on personal property found on the premises, was made in satisfaction of the tax, and then this bill was filed, a special injunction obtained, and the collection of the tax stopped. On final hearing, however, the court dissolved the injunction and dismissed the bill, whereupon the plaintiffs appealed to this court. The plaintiffs all reside in Philadelphia.

The reasons assigned in the answer of the defendants for not allowing the plaintiffs an opportunity to work out their taxes, are — 1. That there is no law now in force in New Castle township requiring the supervisor to give persons charged with taxes notice to work out the same. 2. That if such obligation does exist, it is directory merely to the supervisor, and a failure of performance on his part, cannot be set up as a defence to the payment of the tax. 3. That it is not his duty to give notice to non-resident owners to work out road taxes.

The court below placed their judgment on the second of the above reasons, and also on the ground that the plaintiffs were not rated or assessed with the tax, but that their land only was charged.

Before proceeding to consider the questions raised by the answer, this last ground suggested by the court below may be disposed of by saying that it seems to be a mistake of fact. We have not the assessment before us, but, according to the uncontradicted account of it, given in the plaintiffs' bill, the "James Laing" was assessed to the plaintiffs as seated land, and they were rated and assessed with the road tax. Unseated lands are made the debtors of taxes assessed upon them, and are sold for unpaid taxes, without regard to the ownership. But lands that are assessed to the owners as seated — that are improved and occupied by tenants, with plenty of personal property thereon to pay the taxes — are in no such sense, as unseated lands are, debtors for the taxes. Road taxes so assessed are a personal charge upon the owner, as much so as a state tax upon watches or carriages.

To come back now to the questions raised by the pleadings, what is the law of New Castle township on the subject of road taxes?

By the 33d section of the General Tax Law of 15th April 1834, Purdon 783, supervisors are to cause duplicates to be made of their rates of assessment, and to issue a warrant, with such duplicate, to the collector, authorizing him to "receive from every person in such duplicate named, the sum wherewith such person stands charged," provided, the 34th section goes on to say, "that before issuing the duplicate and warrant for the collection of road taxes, it shall be the duty of the supervisors of every township to give notice to all persons rated for such taxes, by advertisements or otherwise, to attend at such times and places as such supervisors may direct, so as to give such persons full opportunity to work out their respective taxes."

The 35th section authorizes a levy on goods and chattels, and the imprisonment of the body for non-payment of taxes; and the 46th section subjects the goods of tenants in possession of real estate, to distress and sale for non-payment of taxes assessed upon such real estate.

We have been referred to an Act of Assembly of 27th February, 1849, P. L. 101, which provides that thereafter but one person should be elected supervisor of New Castle township, and prescribes certain restraints and duties for him, but which touches not his plainly prescribed duty to give persons rated with road taxes an opportunity to work them out, and we are informed of no local law that repeals or modifies the 34th section of the Act of 1834.

It would seem then to be the clear duty of the supervisor of New Castle, to give parties rated with taxes full opportunity to work them out. Nor is the 34th section merely...