150 Pa. 30 | Pa. | 1892
Opinion by
The main feature of this case is governed by City of Phila. v. Scott, 93 Pa. 25, and City of Phila. v. Hiester, 142 Pa. 39. In the former it was held that the meaning of the words “ duly proceeded in to judgment ” in the first section of the Act of March 11,1846, P. L. 114, was settled by the construction of the second section of the Act of March 20, 1827, 9 Smith’s Laws, 304, authoritatively given in Fulton’s Estate, 51 Pa. 204. In deference to the urgency of counsel and the.importance of the question to the city of Philadelphia, a re-argument was had, and after mature consideration the court adhered to its previous opinion. In City v. Hiester the same question again arose, and after a careful and independent examination of the statutes Judge Biddle reached the same conclusion as this court had in City v. Scott, though that case does not seem to have been brought to his attention. City v. Hiester was affirmed in this court on his opinion. The question therefore must be considered as settled.
The precise point decided in the foregoing eases was that the lien of a registered tax under the Act of 1846 is not preserved by the issue of a scire facias more than five years from the first of January next after the tax is due, although it is within five years from the filing of a claim. The question
By the Act of April 16, 18-45, § 3, P. L. 489, a registered tax was a lien “ for five years from the first day of January in the year next succeeding that in which such tax was due, and no longer, unless a claim for the same ” should be filed in the prothonotary’s office, and, if so filed, the lien continued for a new period of five years from that date. No provision was made for notice to the property owner, and this extension of the lien by the mere filing of the claim, while not exactly a secret was an indefinite lieu as to its point of commencement, which could only be learned by constant watching of the prothonotary’s office. As such it was a burden and a hardship upon the property owner which the legislature recognized and remedied the next year. By the Act of March 11, 1846, § 1, P. L. 114, so much of the third section of the Act of 1845 as required claims to be filed in the prothonotaiy’s office and made them a lien for five years from the date of such filing was repealed, and it was provided that all taxes registered (as theretofore) in the county commissioner’s office should “ cease to be liens after the expiration of five years from the first day of January in the year succeeding that in which they became due unless suit be brought to recover the same,” etc. The bringing of a suit was substituted for the filing of a claim, as the means of continuing the lien; but with this alteration the provision that the lien should cease, “ unless,” etc., meant that, in the stipulated case, i. e. the bringing of suit, the lien should continue under this Act, as it would have continued under the previous Act by the filing of the claim. The intent of both Acts was the same, tire only difference was in the means.
The present suit was brought for the taxes of 1883, 4, 5, 6 and 7. By the fact of registry the taxes of 1885 were a lien until the end of 1890, and. the scire facias was issued in November of that year. It was clearly in time as to the taxes of 1885 and the subsequent years, and therefore neither the claim nor the judgment should have been stricken off, nor the scire facias quashed.
The Act of 1879 is entitled “An Act to provide for the more efficient collection of delinquent taxes in cities of the first class, and for the preservation of the lien of the same,” and contains seven sections. The first three prescribe the duties of the collector of delinquent taxes and the methods of performance, the fourth provides for title in the purchasers at tax sales, subject to redemption, the sixth for the appointment of deputy collectors and the seventh for the repeal of inconsistent Acts, etc. The fifth, with which we are specially concerned, will be noticed hereafter. The Act of 1883 is entitled “An Act to abolish the office of the collector of all outstanding or delinquent taxes, to authorize and empower the receiver of taxes to collect the delinquent taxes and to provide for the more efficient collection of said taxes in cities of the first class.” The first section abolishes the office of collector of delinquent taxes after April 7, 1884. The next four sections prescribe the duties of the receiver in respect to such taxes, the method of performance, and the effect of sales, and, with addition of an express power of distraint, and some slight alterations of phraseology, are almost verbatim re-enactments of the corresponding sections in the Act of 1879. The seventh to the thirteenth sections relate' to deputies, the payment of collections to the city treasurer, the imposition of penalties for delay by taxpayers in making payments, etc., not relevant to the present inquiry. The system thus provided is both nominally and substantially upon the same subject-matter, is complete in itself, is directed to the receiver of taxes, and, though practically identical with that prescribed by the Act of 1879 for the collector, whose office is abolished, does not refer nor depend in any respect upon that Act. There can be no doubt therefore that the Act of 1883 repeals the Act of 1879 as an entirety, unless § 5 is to be excepted. This we come now to consider. It provides that “ all taxes, rates and levies hereafter registered shall remain liens on the real estate against which they are assessed,
The lien of the taxes for 1883 and 1884 therefore had expired before the issue of the scire facias and is not saved by the Act of 1846. Whether the judgment should be opened as to them, may however depend upon other matters. The taxes may be still due though the lien is gone, and may be collectible from the owner or from the property if yet in the same hands. These and other considerations will address themselves to the discretion of the court below. They have not been argued here and we express no opinion upon them.
Judgment reversed, and the claim and judgment thereon reinstated.
