Jenkins v. Scranton
202 Pa. 267
Pa.
1902
Check Treatment

Opinion by

Mr. Justice Brown,

George W. Jenkins, the plaintiff below, sued the city of Scranton for his compensation as delinquent tax collector for the months of April, May and June, 1901. Whether he was *271the legal collector for that period, and if so, what the city must pay him, are the two questions raised on these cross appeals. Their proper determination depends entirely upon the Act of March 7, 1901, P. L. 20. By article 2, section 1 of that act, the department of collector of delinquent taxes is created. The 1st section of article 12 authorizes the city recorder to nominate and, by and with the advice and consent of the select council, to appoint a collector of delinquent taxes. Section 3 of the schedule to the act provides that a recorder, appointed by the governor, for an existing city of the second class, may fill all offices created by the act, without the concurrence of select council. Article 17 is : “ All city officers and employees shall receive a fixed salary for their services, and all fees and penalties shall be collected for the city and paid directly into the city treasury.” The salary of the head of each department is fixed, by section 3 of the schedule, at $5,000, with the provision that councils may reduce it to not less than $2,500. By article 2, section 1, councils may, by ordinance, provide that the city treasurer may be appointed collector of delinquent taxes. The only other provision of the act relating specifically to the department of collector of delinquent taxes is article 5 : “ The collector of delinquent taxes shall be the head of the department of delinquent taxes, and all laws and ordinances in force prior to the passage of this act, relative to said office and collection of delinquent taxes, shall be and remain in full force.” It is contended by the city of Scranton that, in the face of this last article, the recorder did not have the power to appoint a delinquent tax collector, because, by section 5 of the Act of March 15, 1878, P. L. 7, the select and common councils of the city, in joint convention, are authorized to elect some suitable person collector of outstanding or delinquent taxes, and to fix his compensation. The answer to this is, that so far as the election of a delinquent tax collector is concerned, the act of 1878 falls before that of 1901. The first provides for the election of a collector by both branches of council in joint convention; but the latter expressly enacts that he is to be appointed by the recorder, and the repealing clause of the act of 1901 is, that “all other laws for the government of cities of the second class, unless preserved by the terms of this act, as well as all laws inconsistent with or supplied by *272this act, are hereby repealed.” What the legislature evidently intended to preserve were laws relating to the powers and duties of the collector of delinquent taxes. These powers and duties are not mentioned in this later act, and not being inconsistent with nor supplied by any of its provisions, are preserved ; but the appointment of the collector by the recorder is so inconsistent with his election by the councils, and so clearly supplies it, that the act of 1878 is repealed by implication, as well as by express words. The provision in the supplemental Act of June 20, 1901, P. L. 586, that “ all laws and ordinances in force at the passage of this act, relative to said offices and the collection of delinquent taxes, shall be and remain in full force, except so far as the election of the collector of delinquent taxes is therein given to councils,” is nothing more than the legislature’s construction of the act of March 7, given, perhaps, to remove doubts existing elsewhere than in the mind of a court called upon to construe the statute. With the department of collector of delinquent taxes, created by the act of 1901, and with the power given in clearest terms to the recorder to make the appointment without the .concurrence of select council, Jenkins, having taken the oath of his office and given bond on April 1, 1901, the day he was appointed, became the legal collector of the city’s delinquent taxes. Further discussion could not make this plainer. But it is urged that he was legislated out of office by the councils of the city on April 2, 1901, because, on that day, an ordinance was approved that “ the department of delinquent taxes shall be in charge of one person, who shall be the city treasurer. He shall have charge of the collection of delinquent taxes.” The city, however, did not attempt by this ordinance to oust him from his office, and councils could not have done so, even if so inclined. They could no longer elect a tax collector, and they had no control over this particular appointment. Under the schedule of the act of 1901, it was exclusively with the recorder. What councils undertook to do, and did do, by this ordinance of April 2, 1901, was simply to exercise the power given in section 1, article 2 of the act of 1901, to provide “ that the city treasurer may be appointed collector of delinquent taxes.” It may be that the collector of taxes hereafter must be the city treasurer, but that question is not now before us, and we do *273not, therefore, consider it. It is sufficient to say that the ordinance of April 2 might as well not have been passed, for any effect that it had on the appointment made by the recorder the day before. This was the view correctly entertained by the learned judge below, who aptly said: “ The recorder unquestionably had the power, under the law, to make the appointment. The ordinance of April 2, had no legislative existence when the appointment was made. It can make no difference in the interpretation of the law whether a person has been in office one day or one year. The plaintiff’s appointment on April 1 was just as valid as if the ordinance had been passed at a much later period and he had been collecting the delinquent taxes during that time. Whatever effect the passage of the ordinance had on the office of collector, it could have no effect on the validity of the appointment made by the recorder on April 1.”

The salary of the head of each department of the city government is fixed by the act of 1901 at $5,000, with the provision that councils may reduce it to $2,500; but it had not been so reduced when the recorder made this appointment. The salary as fixed by the statute went with the office. Even if it could be reduced to affect the present incumbent, the reduction could not be made by allowing him a percentage on his collections. The act of March 7, 1901, expressly provides for compensation at a fixed sum, which may be reduced to a fixed sum, and the act of March 15, 1878, in so far as it allows councils to fix compensation at a percentage on the collection by the collector, is superseded and repealed by necessary implication: Nusser v. Commonwealth, 25 Pa. 126; Keller v. Commonwealth, 71 Pa. 413; Best v. Baumgardner, 122 Pa. 17. Hereafter, under the supplement to the act of March 7, 1901, passed June 20, 1901, the compensation may be by a stated salary or by fees, as fixed by council, but the present incumbent is entitled to the compensation fixed by the statute under which he was appointed. This was $5,000 per year. The judgment in his favor for $72.50 is reversed and the record remitted, with direction to the court below to enter judgment on the case stated in favor of the plaintiff for $1,250.