
    Pottsville Borough Town Council’s Appeal. [Barry v. Pottsville Borough Town Council et al.]
    The Act of June 25,1885, providing for the election of tax collectors in boroughs and townships by the qualified electors, operates as an impli< A repeal or the prior local latos of April 4,1831, and April 11,1859, authorizing the election of a tax collector for the borough of Pottsville by the town council, notwithstanding the Act of 1885 contains a proviso that the Act shall not apply to any taxes, the collection of which is regulated by a local law.
    A court of equity will issue an injunction, at the suit of the collector elected by the qualified electors, to restrain the collection of the taxes by the collector elected by the town council, in such case.
    
      Feb. 17, 1888.
    Appeal No. 325, Jan. T. 1887, from a decree of O. P. Schuylkill Co., enjoining the borough council from delivering the duplicate of taxes to the tax collector elected by said council, and enjoining the tax collector from collecting the taxes, at Nov. T. 1886, No. 1. Trunkey and Sterrett, JJ., absent.
    The opinion of the court below was as follows, by Creen, J.:
    “William Barry was duly elected collector of taxes in the borough of Pottsville, at the last spring election, in pursuance of the provisions of the Act of Assembly passed June 25, 1885. This Act makes the collectorship of taxes an elective office, and is a radical change of the system in force before the Act was passed. In pursuance of its provisions, he took the required oath and filed his bond on March 4, 1886, which was approved by the court on April 5 following.
    “In April, 1886, John Ebert was chosen collector of borough taxes by the town council of the borough, and he subsequently filed his bond, which was approved by the court, reserving any question as to his right to act as collector.
    “The plaintiff brings this bill in equity, alleging that the town council of the borough are about to put the duplicate for the collection of the borough taxes in the hands of John Ebert; that this is contrary to law, and that he, the complainant, having been duly elected, and having complied with all the requirements of the law, is the only proper person to collect the said taxes.
    “The defendant has filed a general demurrer to the bill, and contends that the present bill cannot be sustained ; that, by virtue of his election by the borough council, and the filing and approval of his bond, he has assumed the duties of his office and has become the de facto collector, and that therefore his right to the office can only be inquired into and determined in a quo warranto, which is'the proper and only proceeding to try such a question. Quite a number of authorities have been cited in support of this position, and there is no doubt of the correctness of the general principles contended for.
    “But the defendant’s contention proves entirely too much; followed to its legitimate conclusion, it becomes fatal to his case. If it is true that Ebert is to be regarded as in office, and only to be ousted by a proceeding in quo warranto, how is Barry’s position to be regarded ? Having been elected and complied with the requirements of the law, is he not to be considered as having assumed the duties of the office, and as being the party in possession ? Having first qualified, he has got the prior possession from which he can only be ousted by a quo warranto, and the subsequent claimant, interfering with the prior occupant, in the duties of his office, becomes a mere intruder. Prior in tempore potior in jure. As against an intruder, it would be the duty of the court to protect the occupant in his office until his right to hold the office was determined in a proper proceeding. It is therefore evident that if defendant’s position was correct, it would be fatal to his case, and he would be compelled to resort to a writ of quo warranto to try Barry’s right to the office.
    “ But we do not regard this as a contest between Barry and Ebert as to who was elected tax collector. Barry was elected by the people, Ebert was chosen by the borough council. Here there is no dispute. The question turns upon the right of the borough council to elect a tax collector. If the law giving this right to the councils has been repealed, then it is evident there is no such office as collector of the borough tax to be elected by the councils of the borough. A party chosen in this way is no more the collector of the borough tax than if he were chosen by the county commissioners, or the borough council of Orwigsburg, or any other unauthorized body.
    “ The true question in this case, then, is, does the general Act, passed June 25, 1885, entitled ‘An Act regulating the collection of taxes in the several boroughs and townships of this commonwealth,’ repeal that provision of the borough charter which authorizes the councils to appoint the collector of taxes? It certainly does, unless the authority is still preserved under the saving clause in the last section, which declares that ‘this Act shall not apply to any taxes, the collection of which is regulated by a local law.’
    “ The Act of April 4, 1831, P. L. 439, etc., which is an Act to amend the borough Act of incorporation, in § 7, gives councils authority ‘ to appoint street commissioners, treasurer and collector, annually, and such other officers as may be necessary, from time to time.’ By a supplement passed April 11, 1859, the councils were authorized to appoint a collector for one, or two, or more, wards, or one collector for the whole borough, as they might deem for the best interest. It is contended that these are such local laws, regulating the collection of taxes, as brings the case within the exception to the general law of 1885. But there seems to be a clear distinction recognized_in the Act of 1831, between the authority to appoint a collector and the provision regulating the collection of the tax. Section 8 of the same Act provides that, ‘ all taxes, rates and levies, assessed, rated and levied by the councils shall be recovered in the same manner as the county rates and levies in the county of Schuylkill are or may hereafter be by law recoverable.’ That is, the collection of the taxes is made conformable to the general laws of the commonwealth, and is regulated by them. There are districts in the state where the method of collection is regulated by local law, and is different from the method prescribed by the general law. In some districts, taxes may be paid directly to the county or district treasurer, the taxpayer receiving an abatement of a fixed percentage, according as he pays promptly, and compelled to pay a ñxed percentage for neglect so to pay. In some other districts, other systems are legalized, and the saving clause in the general Act of 1885 was simply intended to except those cases where the method of collection was regulated by a local law. If this be not the true construction of the Act, then it would be safe to say that any borough in the commonwealth, not incorporated under the general borough law of 1851, would come within the exception of the Act; for we may be well assured that every special Act incorporating a borough gives authority to assess taxes and appoint collectors.
    “Again, if the defendant’s construction of the Act be correct, its operation in Schuylkill county would be exceedingly limited. By the Act of Feb. 1Y, 1859, P. L. 51, every collector of road, borough or school taxes within the county is required to file his bond with warrant of attorney in the office of the clerk of the general quarter sessions. This is a local law, and affects the parties who are to collect the tax. Therefore, with equal reason, may it be claimed to be a local law, regulating the collection of the taxes, and therefore exempt from the operation of the general Act of 1885.
    “But we do not think that the Act of 1885 ought to be construed in a narrow or illiberal spirit. It was enacted for the benefit of the taxpayer, and for the greater security of the public moneys, collected by taxation. By its provisions, the citizen, who pays his tax within sixty days after public notice is given, becomes entitled to a reduction of five per cent.; and, if he neglects to pay for six months, then five per cent, is added. Under the old system, the taxpayer, however prompt, is entitled to no reduction, and the result often was that the payment of tax was generally put off to the very last moment, often to the very great detriment of the public interest. For the reasons already given, we are all of the opinion that the Act of 1885, did repeal all prior Acts, so as to take away the authority of the borough councils to elect a tax collector; and that William Barry was duly elected to that position; and therefore entitled to the duplicate for the collection of. the taxes. Section 8, of the Act of 1885, provides that the several county, borough, etc., authorities shall, on or before Aug. 1st, of each year, issue their respective duplicates of taxes assessed to the collector of taxes of their respective townships and boroughs. It would be illegal for them to issue the duplicate to one who is not such collector, and an injunction would undoubtedly lie. ‘A municipal corporation will be enjoined from doing an act in violation of a statute.’ Cummings v. Sheble, 1 Phila. 492; Lang v. Dickinson, 31 Leg. Int. 36.
    “And now, Sept. 27,1886, it is ordered, after hearing, that the preliminary injunction heretofore issued be continued until further order of this court.”
    
      The assignments of error specified the action of the court, 1, in deciding that the Act of April, 1885, repealed all other Acts so as to take away the authority of the borough council to elect a tax collector; 2, in not dissolving the preliminary injunction; 3, in making the above decree, quoting it; and, 4, in not sustaining the demurrer.
    
      W. J. Whitehouse and R. H. Koch, with them B. W. Gumming, for appellants.
    The Act of 1831, § 8, at most establishes only the method of recovering the taxes, but does not negative the right of the borough to appoint the collector; for, if such was the intention of the Legislature it would not specially provide in the next preceding section of the same Act for the election of a collector of taxes. Besides, in the absence of the provision of the next preceding section, the first section of the Act of April 11, 1859, P. L. 450, would be a repeal pro tanto of § 8 of the Act of April 4, 1831.
    If the manner of appointing or electing a collector, or more than one, the manner of discharging such collector, the manner of compensating him, and the manner of securing the faithful discharge of his duties, are not provisions regulating the collection of taxes, why does the Act of June 25, 1885, which, by its very title, purports to be “ an Act regulating the collection of taxes, etc.,” provide for all these same things ?
    Malloy v. Reinhard, 19 W. N. C. 43, rules this case.
    A general statute, without negative words, cannot repeal a previous statute which is particular, even though the provisions of one be different from the other. Sifred v. Com., 12 W. N. C. 380; Brown v. Comrs., 21 Pa. 37; Bounty Accounts, 70 Pa. 96. Implied repeals are not favored: Erie v. Bootz, 72 Pa. 199; Shinn v. Com. 3 Gr. 205; Bowen v. Lease, 5 Hill, 221.
    If the acts sought to be restrained are prejudicial to the public interests, it must be by bill by the attorney general. Sparhawk v. Union Pass. Ry., 54 Pa. 401.
    Complainant’s damage could be no more than the amount of the commissions, and that is certain and easily ascertained. Where the remedy at law is full, adequate and complete, equity will entertain no jurisdiction. Gilder v. Merwin, 6 Wh. 522; Riley v. Ellmaker, 6 Wh. 545; Strasburg R. R. v. Echternacht, 21 Pa. 220; Winter’s Ap., 61 Pa. 307; Clark’s Ap., 62 Pa. 447; Long v. Cochran, 9 Phila. 267; Gloninger v. Hazard, 42 Pa. 389; Hewitt’s Ap., 88 Pa. 55; Koch’s Ap., 93 Pa. 434.
    An injunction will not be granted until the question of right is settled at law. Gilroy’s Ap., 100 Pa. 8; Minnig’s Ap., 82 Pa. 373; Brown’s Ap., 62 Pa. 17; Biddle v. Ash. 2 Ash. 211; Rhea v. Forsyth, 37 Pa. 503; Audenried v. Phila. R. R., 68 Pa. 370.
    The statutory remedy is at law by quo warranto. Updegraff v. Crans, 47 Pa. 103; Hagner v. Hayberger, 7 W. & S. 104; Gilroy’s Ap., supra; Campbell v. Taggart, 2 W. N. C. 93.
    Courts of equity have no jurisdiction in Pennsylvania outside of that created by statute. Dohnert’s Ap., 64 Pa. 311; Bakewell v. Keller, 11 W. N. C. 300; Hagner v. Hayberger, supra.
    A court of equity-has no jurisdiction where there is an adequate statutory remedy at law. Com. v. Wellsboro and Tioga Plank Road, 35 Pa. 152; Hamersly v. Germantown and Perkiomen Turnpike, 8 Phila. 314; Patterson v. Lane, 35 Pa. 275; Stump’s Ap., 38 Leg. Int. 205.
    
      James B. Reilly, with him John W. Ryon, for appellee.
    In all bodies that are under law, where there has been an authorized election for the office in. controversy, the certificate of election which is sanctioned by law or usage is the prima facie written title and can only be set aside in the form prescribed by law. Kerr v. Trego, 47 Pa. 292; Miller v. Corcoran, 3 L. T., N. S., 179; Ewing v. Thompson, 43 Pa. 372.
    Equity will protect a person holding a public office under the color of law in the enjoyment of it. Ewing v. Thompson, supra. Express power is conferred by statute. 1 Purd. 591, pl. 6.
    There is no dispute as to title here. Barry was in office under color of law, and it was for those who wished to contest his right to avail themselves of the proper remedy.
    In Malloy v. Reinhard, 19 W. N. C. 43, there was a local law which provided a specific manner ‘by which the tax should be recovered, whilst here the collection of taxes is specifically made subject to general law.
    Evidently the intent of the Legislature in passing the Act of 1885, was to establish a new method for the collection of the public moneys in boroughs and townships, and to give to the citizens the right and power of selecting the person by whom it was to be collected. This is apparent from the title and language of the Act. “ Each borough and township shall, etc.” This unmistakably was a revocation of the power hitherto possessed by councils to appoint, and a grant of that power to the electors to select the person who should collect the public taxes — and equally obvious it must be that the Act of 1885 was to apply to every borough and township in the commonwealth except — not where there was power in the council or elsewhere simply to appoint — but except such districts only where the collection of the tax was regulated by local law or special statute.
    Oct. 29, 1888.
   Clark, J.,

The decree for preliminary injunction and order continuing the same until further order of the court is affirmed, and the appeal dismissed at the cost of the appellants.  