Black v. Duquesne Borough School District , 239 Pa. 96 ( 1913 )

Opinion by

Mr. Justice Elkin,

No objection having been made to the jurisdiction, and the question of remedy not having been raised, the learned court below considered the case on its merits in order that a matter of public importance and pressing necessity should be speedily adjudicated. It being the evident intention of the parties to have the law settled, rather than to insist upon technical pleadings, we have concluded to accept this view of the record for the purpose of making a final disposition of the questions of law raised by this appeal. The decisive question involved in this controversy is whether school taxes of the appellant borough shall be collected by the tax collector elected by the people under the Act of June 25, 1885, P. L. 187, or by a collector appointed by the board of school directors under the Act of May 18, 1911, P. L. 309, known as the School Code. Prior to the Act of 1911 school taxes in boroughs and townships were collected by tax collectors elected under the Act of 1885, which act in some particulars was amended by subsequent statutes. This law was in effect in the boroughs and townships of the Commonwealth at the time of the approval of the School Code. It therefore follows that unless the Act of 1885, in so far as it relates to the collection of school taxes, was repealed by the School Code it still remains the law. There is no express' repeal, nor in our opinion is there a repeal by implication. The School Code contains no general provisions for the election of tax collectors, and after an examination of all the sections relating to this subject, we agree with thp learned court below, that the evident intention of the legislature was to leave undisturbed the method of collecting taxes in force at the time of its adoption. This view is sustained by the plain language of the different sections of the Act of 1911 which relate to the collection of school taxes and the appointment of collectors. Beginning with Section 547, we find the provision that, “where a tax collector is not elected to collect school taxes, or where there is a vacancy, or where any tax collector refuses to qualify or furnish a bond as herein provided,” the board of school directors in school districts of the second, third and fourth class, “shall annually, on or before the first day of June in each year, appoint one or more suitable persons as tax collectors in said school district.” The most cursory examination of this section shows that the authority of a board of school directors to appoint a tax collector is limited to the contingencies named in the act. If a tax collector has not been elected, or if when elected he refuses to qualify, or to furnish a bond, or if for any proper reason there is a vacancy, then and in those events the board is given the power of appointment. Nothing of this kind appears in the present case. A tax collector was elected, qualified and offered to furnish a proper bond. He was not only willing to serve but refused to be ousted. There was no vacancy to be filled by appointment. Appellee was elected in February, 1909, for a term of three years, and by recent amendments to the Constitution, and by statutes passed to carry them into effect, his term was extended to 1914. We must therefore conclude that there was no warrant in Section 547 for filling a vacancy in the office of tax collector in the present case. Section 559 requires the tax collector whether appointed or elected, to proceed with the collection of taxes set forth in the duplicate forwarded him and pay the same to the treasurer monthly. He is also required to account for and pay over the total amount of the tax duplicate, less exonerations and certain unpaid taxes on real estate upon which there is no personal property, on or before the first day of June in each year.' But this provision applies to tax collectors elected as well as to those appointed, and clearly indicates that the legislature had in contemplation both appointive and elective tax collectors. While the act makes it the duty of all tax collectors, elective and appointive, to collect, account for and pay over the amount of their duplicates, less proper exonerations, on or before the first of June each year, failure by a collector to do so is not declared to be a forfeiture of his office for the unexpired term, nor is the power to declare a vacancy in an elective office for this reason conferred upon the school board. When there is a vacancy the board can appoint, but a vacancy cannot be created for the very purpose of making an appointment. Unless the tax collector elected by the people refuses to qualify and to furnish a proper bond, the school board must recognize his authority to collect the tax duplicate. Then follows Section 560, in which it is provided that, “no tax collector shall be reappointed, or be authorized to collect any school taxes in any school year, unless he shall first have settled his duplicate in full with the board of school directors for the preceding year.......” Certainly the prohibition against re-appointment by the board of school directors has no reference to tax collectors elected by the people and who derive their authority under the Act of 1885. The word “reappointed” implies an appointment in the first instance and necessarily refers to tax collectors selected by appointment. The only doubt that can arise as to the meaning of Section 560 grows out of the phrase, “or be authorized to collect any school taxes in any school year.” It is strongly urged that this provision applies to elected as well as to appointed tax collectors. There may be room for difference of opinion as to the meaning of the provision in question, but keeping in mind all of the sections, and the evident intention of the legislature not to disturb the method of collecting taxes under the Act of 1885, our conclusion is that the learned court below properly interpreted this particular language. In disposing of this question the court said: “Where a tax collector is elected by the people for a term of years he does not derive his authority to collect school taxes from the board but from his election and from the provisions of the present act which direct that he shall collect school taxes.” We fully concur in the view expressed by the court below that the School Code was not intended to disturb the election of tax collectors and the collection of school taxes as provided in the Act of 1885. It has been the declared statutory policy of the law for more than a quarter of a century that school, borough, township and other local taxes shall be collected by a single tax collector elected by the people of the local districts, and if it be the intention of the legislature to change this policy by substituting collectors to be appointed for the collection of school taxes, it is not too much to require that it shall be done by language so plain as to leave no doubt about its meaning.' In this view of the case the other questions considered become immaterial and need no discussion. The learned court below discussed all the questions in an able and convincing manner, and the whole case might very well be rested on the opinion which we are now called upon to review. We can add but little if anything of value to the discussion, but have deemed it proper to thus express our views in order that a question of such public importance, and affecting school districts in all the boroughs and townships of the Commonwealth, may be considered as finally settled under existing legislation.

Decree affirmed at cost of appellants.