CHAPTER XXIII

SEWERS. (n)

1. Power of boroughs to amend

original ordinance under
which sewer was constructed

pursuant to Act of May 15, 1889, where route has been changed.

Chapter 6, art. 12, of the Act of May 14, 1915, P. L. 312, which deals with the subject of sewers, does not seem to repeal the following acts and they must therefore be taken to be still in force.

I. The Act of May 28, 1915, P. L. 575, §§1, 2, 5 Purd Dig. (13th Ed.) 5480, §§784, 785, provide as follows:

Section 1. When heretofore any sewer has been constructed by any borough, under the provisions of an act approved the fifteenth day of May, Anno Domini one thousand eight hundred and eighty-nine, entitled "An act to enable boroughs to adopt and construct sewage systems, and to assess and collect the cost thereof," and during the course of its construction the route of a portion of such sewer has been changed from a street or highway designated by the original ordinance, through private land, the council of such borough is hereby given power, after the completion of such sewer, to amend the original ordinance under which such sewer was constructed by a supplemental ordinance, if such supplemental ordinance shall have been passed within six months from the date of the approval of this act; and any lien or liens which have been filed against properties adjoining or adjacent to such sewer, within the time fixed by said act, are hereby declared to be valid and subsisting liens, and collectible according to law.

Section 2. This act shall not apply where the change in the route of a sewer causes it to embrace property which was not intended to be sewered in the original ordinance.

(n) See Part I, Chapter IX, and notes thereto.

CHAPTER XXIV.

TAXES.(0)

(0) See 1 Purd. Dig. (13th Ed.) 516, §§239-249; 5 Purd. Dig. (13th Ed.) 5484, §§810-823, and notes thereto; also 1 Vale's Dig. Vols. I, cols. 2627, 2628; XI, cols. 1037, 1038; XIII, col. 831. As to Taxes in general see 4 Purd. Dig. (13th Ed.) 4527; 7 Purd. Dig. (13th Ed.) 7603. The right to

Matters relating to the assessment, levy and collection of taxes except taxes on dogs are expressly exempt from the provisions of the Borough Code, Act of May 14, 1915, P. L. 312, by chapter 1,

tax for the support of the government in all its departments, state, county or municipal, is the perogative of the legislature and subject to the restriction imposed by the constitution, such power may be exercised by the agencies established by the legislature for that purpose. Erie v. Reed, 113 Pa. 468, 18 W. N. C. 462, 43 L. I. 489. The use of the words "all property" in the Act of April 3, 1851, P. L. 320, Art. 24 §2, without further expression of meaning, was held not sufficient to enable boroughs to tax moneys owing by solvent debtors, under the Act of April 25, 1850, P. L. 569, §22. Carlisle Borough v. Marshall, 36 Pa. 397; Goepp v. Bethlehem Borough, 28 Pa. 249, 14 L. I. 292, 5 P. L. J. 124. As to exemption from taxation, see Piper v. Singer, 4 S. & R. 354. As to the duties of assessors in making valuations under §§2, 3 of the Act of February 14, 1889, P. L. 6, as amended by the Act of May 8, 1889, and the Act of July 9, 1901, P. L. 613, 4 Purd. Dig. (13th Ed.) 4604 §157, 4771 §13, see Commonwealth v. Cornelius, 3 Dist. 680, 15 Pa. C. C. 73, 42 P. L. J. 69. The Act of February 14, 1889, P. L. 6, as amended by the Act of May 8, 1889, was held not to be either local or special legislation, contravening Art. 3 §7 of the state constitution. Commonwealth v. Green, 5 Del. 342, 7 Kulp 151. Under the Act of July 11, 1842, P. L. 321 859, it was held that taxes should be assessed in the township in which the mansion house was situated, where the township lines divided the tract of land, and a portion of the farm was located in an adjoining borough. Commonwealth v. Wheelock, 13 Pa. Super. Ct. 282, reversing 22 Pa. C. C. 418. The Act of May 1, 1876, P. L. 93 §1, relating to the manner of voting for or against taxation for water and light, was held unconstitutional and void as contravening Art. 3 §6 of the state constitution. Barrett's Appeal, 116 Pa. 486, 19 W. N. C. 519. It was also held void as local or special legislation under Art. 3 §7 of the same in Campbell v. Kane Borough, 22 Pa. C. C. 17. See also Severs v. Winton Borough, 1 Lack. L. N. 103. The Act of June 25, 1885, P. L. 187, was held constitutional. Commonwealth v. Lackawanna County Commissioners, 7 Pa. C. C. 173, 1 Lack. Jur. 197; Commonwealth v. Swab, 8 Pa. C. C. 111; Evans v. Phillipi, 117 Pa. 226, 3 Montg. 180, 11 Atl. 630, 20 W. N. C. 173; Pottsville Borough Town Council's Appeal, 22 W. N. C. 431, I Mona. 705, 15 Atl. 730, 46 L. I. 119; Commonwealth v. Frutchey, 11 Pa. C. C. 112, 1 Dist. 153. See Malloy v. Reinhard, 19 W. N. C. 43. The Act of June 16, 1891, P. L. 298, 2 Purd. Dig. (13th Ed.) 1311 §5; 4 Purd. Dig. (13th Ed.) 4772 §21, did not affect the status of assessors in wards in boroughs as defined in the prior statutes Assessors' Case, 1 Dist. 195, 9 Lanc. L. Rev. 190, neither does it apply where the borough is divided into more than two wards in which, under the Act of May 10, 1878, P. L. 51, I Purd. Dig. (13th Ed.) 491 $71 et seq., the several assessors are jointly to perform the duties required of an assistant in making the triennial assessment. See Wood v. Armstrong County, 2 Dist. 696, 12 Pa. C. C. 289; Assistant Assessors (No. 1), 3 Dist. 252, 41 P. L. J. 312, 1 Dist. 142; Blackman v. Horton, 15 Pa. C. C. 314. It has been held that an assessment will

article 1, §2, para. 1, and chapter XIII, article 1, (b) of that act and the following acts relating to the subject of taxation are therefore still in force:

I. The Act of April 1, 1834, P. L. 163, §13, 1 Purd. Dig. (13th Ed.) 508, §191, provides as follows:

Section 13. The town council of every borough hereinafter incorporated shall constitute a court of appeal and prior to the collection of any borough tax the collector shall inform each inhabitant of the amount of his tax and of the time and place of appeal provided that the court of appeals shall have no other power as such than to determine the apportionment of said taxes and to remedy any grievance that may occur. (p)

2. The Act of April 3, 1851, P. L. 320, §3, 1 Purd. Dig. (13th Ed.) 508, §§189, 190, provides inter alia as follows:

Section 3. It shall be the duty of the corporate officers, a majority of whom shall be a quorum:

IX. To appoint a time and place, of which due notice shall be given, for the hearing of appeals in relation to the assessment of taxes, by such corporate officers, not less than three of whom they may designate, who shall have power to grant such relief as may to them seem proper. (q)

X. To fix from time to time, the amount of security to be given by the treasurer, high constable and the collector of borough taxes, and their compensation; and to direct the publication of the accounts of the treasurer company, and the mode of publication. (r)

not issue upon the return to a mandamus where it appears that all the money in the treasury is required for running expenses. Earley v. Pleasant Valley Borough, 2 Kulp 417; 12 Luz. L. R. 249.

(p) Under the Act of April 1, 1834, P. L. 163 §13, and the Act of April 3, 1851, P. L. 320, Art. 9, §3, it was held that the only remedy for illegal assessments, was by appeal to those to whom the appeal was directed, and that money paid as taxes even under protest could not be recovered unless there was imminent danger of seizure. Stewart v. Maple, 70 Pa. 221, 19 P. L. J. 113; 3 Lanc. Bar 49. Clinton School District's Appeal, 56 Pa. 315; Wharton v. Birmingham Borough, 37 Pa. 371, 8 P. L. J. 252; Union Insurance Co. v. Allegheny, 101 Pa. 250, 13 W. N. C. 44, 30 P. L. J. 213; Harvey v. Girard National Bank, 119 Pa. 212, 21 W. N. C. 523, 36 Amer. L. Reg. 465, 660, 45 L. I. 164, 35 P. L. J. 411, affirming 18 Phila. 416, 43 L. I. 405.

(q) See note (p) supra.

(r) The provisions of the Act of April 15, 1834, P. L. 514 §19, requiring a warrant of attorney to confess judgment upon a bond, were held not to

3. The Act of April 3, 1851, P. L. 320, §12, 1 Purd. Dig. (13th Ed.) 517, $243, provides as follows:

Section 12. The collector of borough taxes shall have the same powers, and may be proceeded against by the borough treasurer in the same manner for neglect to pay over the amount of his duplicate according to law, as provided in the case of collectors of county rates and levies.

4. The Act of April 18, 1877, P. L. 55, §5, 1 Purd. Dig. (13th Ed.) 487, §46, provides as follows:

Section 5. In all cases where an assessment has been made, and tax duplicates issued and in the hands of persons authorized to collect taxes, levied prior to the establishment of a borough as provided in this act, then such an adjustment shall be made by the authorities ruling in such city and borough as will secure to said. borough a just and equitable proportion of the taxes collected within the limits thereof, for the current year immediately preceding such organization of a borough government; and nothing herein shall be construed in such a way as to prevent the proper authorities of such city collecting taxes upon tax duplicates that were issued and in the hands of tax receivers or collectors at the time of the establishment of a borough in pursuance of this act.

5. The Act of April 12, 1881, P. L. 9, §§1-4, I Purd. Dig. (13th Ed.) 517, §§244-247, provide as follows:

Section 1. It shall be lawful for the burgess and town council of any borough in this commonwealth, by resolution of the burgess and council, to authorize the collection of the borough tax in the manner hereinafter provided.

Section 2. The council shall place in the hands of the treasurer a certified duplicate of the borough tax, and it shall be his duty to give at least one month's notice to each and every resident taxable, by a written or printed notice, duly served, where personal service is practicable, and duly mailed, in case of non-residents, which notice shall specify the amounts and kinds of taxes, and of the time and place at which he will attend, at least one day each week during the two months after the time fixed for receiving said tax, for the purpose of receiving borough tax; and it shall be his duty to receive and receipt for all borough tax given him for three months after the date of said notice: Provided, That if any per

be repealed by the Act of 1885, and judgment was given in the name of the commonwealth for the full penal sum. Commonwealth v. Evans, 8 Pa. C. C. 665.