
    Elsbree, Appellant, v. Keller.
    
      Taxation — Cash road tax — Bradford. county-r-Statutes — Repeal—Acts of March 30,1846, P. L. 199, and April 12,1905, P. L. 142.
    The local Act of March 30, 1846, P. L. 199, applicable to Bradford county, is not repealed by the Act of April 12, 1905, P. L. 142, and under the former act a cash road tax may still be levied in Bradford county. :
    Where an estimate for a cash road tax under the Act of March 30, 1846, P. L. 199, applicable to Bradford county, was duly adopted,-and a levy made thereon, the fact that the estimate was not entered in the town- book, and signed by the commissioners, will not invalidate the proceedings for the collection of the tax.
    Argued Nov. 22, 1907.
    Appeal, No. 198, Oct. T., 1907, by-plaintiff, from decree of C. P. Bradford Co., May T., 1907, No. 2, dismissing bill in equity in case of J. L. Elsbree v. Ed. F. Keller et al., Supervisors.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Fanning, P. J., filed the following opinion.
    This case came on to be heard July 24, 1907, at which time arguments were heard and later additional briefs submitted. The facts briefly stated are as follows:
    1. J. L. Elsbree, the plaintiff in this action, is the owner in fee of real estate situate in Athens township.
    2. Ed. F. Keller, M. E. Knight and John W. Rogers are road supervisors of said township, and James P. Campbell, the collector of taxes.
    3. At the municipal election held February 20, 1906, the question of changing the system of taxation for working the public roads'in the township of Athens and abolishing the work tax therein was submitted to the electors of said township and defeated, a majority of whom voted adversely to such proposed change.
    4. This paragraph of plaintiff’s bill avers: “That notwithstanding that a majority of the electors of said township voted against abolishing the system of taxation for worldng the public roads, the supervisors aforesaid have levied a cash road tax for the year 1906 for the purpose of mantaining highways in said township, and have refused to allow the taxpayers of said township to work out any part of-the same.”
    The entry in the secretary’s book relating to the levy reads as follows: “March 12th, 1906, Supervisors met with town auditors and completed commissioner's account for year 1905; and made annual statement for same, also appointed 13 Road-masters for the township, and divided the township in new districts, and levied a three mill work tax and seven mill cash tax, and made annual statement to state highway commissioner at Harrisburg.”
    The three mill work tax has been worked out and is not in question. It is conceded that two of the seven mills were levied for the purpose of paying the proportionate share of Athens township for the construction of a state road from the Chemung river .bridge to the Ulster township line. This tax has been paid. The contention relates solely to the remaining five mills, which plaintiff contends was levied as a cash road tax unauthorized by any act of assembly, and, therefore, uncollectible:
    5. A warrant covering the work and seven mill tax was placed for collection in the hands of J. I. Morley, treasurer of Athens township, who caused notices to be sent to the respective taxpayers in form as follows:
    “Treasurer’s Tax Notice.
    “To................................
    “You are hereby notified that the Supervisors of Athens township have assessed against you for road purposes for the year 1906, the following taxes:
    Cash Tax................................... $.........
    Work Tax................................... $........,
    Per Capita Tax.............................. $.....1.00
    Total............... $.........
    “You will be allowed an abatement of five per cent, upon all taxes paid me on or before June 1st, 1906. You will be required to pay the full amount of the cash tax, assessed against you, if paid between June first and November first, of this year. All cash taxes not paid by November first of this year must be paid to the Township Tax Collector who will add five per cent, thereto as a penalty. The work tax may be worked out as heretofore; and notice of the time and place for working out said tax will be given you by one of the Road Masters of the Township.
    “J. I. Morlet.
    “April 30,1906.”
    Pursuant to these notices many taxpayers paid in full the five mill tax in controversy. No opportunity was given to work the same out. The plaintiff declined to pay and the collector, by virtue of a warrant placed in his hands by the supervisors of the township, made a levy on certain of his personal effects and advertised the same for sale. Proceedings were stayed by injunction pending the disposition of the bill in equity.- ■ The notices and receipts would appear to indicate that the five mill tax was regarded by the treasurer and collector as a cash tax for road purposes, and this might be the legal inference but for the testimony of the supervisors, to which attention will later be called. Notwithstanding this testimony, however, it is urged on behalf of the plaintiff that this was in fact a cash road tax and unauthorized by the act of 1905. The views of counsel for defendant are not in harmony, the one contending with great earnestness that even though of this character, viz.: a cash road tax, it is collectible as such; the other, that the tax was authorized by the Act of March 30, 1846, P. L. 199, applicable to Bradford county, and, therefore, lawfully assessed and enforceable. Under the act of 1905 no taxes other than for road purposes can be lawfully levied. Whether it authorizes the assessment and collection of a cash tax in addition to a work tax is a question upon which there has been much discussion and diversity of opinion. The cases of Baldensperger v. Aman, 16 Pa. Dist. Rep. 299, and Ackerman v. Plainfield Township Supervisors, 16 Pa. Dist. Rep. 661, indicate, however, that under this act, where the system of taxation has not been changed and the work tax abolished, an opportunity must be given the taxpayer to work out the tax for which he is rated. Such apparently is the provision of sec. 2, which is substantially the same in this regard-as sec. 34 of the act of April 15, 1834, in construing which it was held in Miller v. Gorman and Preston, 38 Pa. 309, and Childs v. Brown Township, 40 Pa. 332, and other cases, that the opportunity to work out such taxes is a condition precedent to the right of collection by legal process. However this may be in other counties, it is not necessary here to decide. The question at issue, we think, is capable of solution under the act of 1846, •which provides, inter alia, that the commissioners of roads and highways of each of the several townships in the county of Bradford, are authorized and required to make an estimate annually of the probable expenses of the respective townships for the ensuing year, which, in their judgment, will be required for various purposes, to wit: for the support of the poor (now otherwise provided for) : for pay of commissioners of roads and highways; for pay of township auditors; for pay of township treasurer; for pay of town clerk; for pay of collector of township taxes.
    Also for pay of any other officer, or officers, who may be entitled to compensation out of the funds of said township.
    Also for books and stationary and-other incidental expenses, and for furnishing materials and implements for keeping roads and bridges in repair, and the amount of township debts (if any such exist), as nearly as the same can be ascertained.
    The act of 1905 repeals only such acts or parts of acts, general or local, as are inconsistent with its terms. It was held in Baldensperger v. Aman, 16 Pa. Dist. Rep. 299,. that existing laws relating to the creation of indebtedness of townships for the purpose of improvements, etc., providing for the payment thereof by taxation, and the various acts now in force for levying of cash road taxes, are not repealed thereby. The Bradford county local act, we think, is still in force. In fact this is conceded by attorneys for the plaintiff. It is not expressly repealed by the general act of 1905. It is not inconsistent with the authority conferred by the local law to levy a cash tax for township purposes.
    It appears, and is not controverted, that an estimate was made by one of the-supervisors on the day of the meeting, in which he stated the amount of tax, which, in his judgment, would be required for the purpose of bridge and other materials, machines, and implements at three mills; for payment of road masters and other town officers, one mill; township indebtedness shown to be $945, one-mill; proportion of cost of state road, two mills, making a total of seven mills. This estimate, together with a three mill work tax, was reduced to writing and submitted to the board at their meeting and, after due consideration, was adopted. Upon this as a basis the levy was made. This estimate though placed in the hands of the secretary, through some inadvertence, was not entered in the town book. This omission and the failure of the commissioners to sign the same, inasmuch as a levy was made pursuant to the estimate, would not, we think, constitute such a failure to comply with the act of 1846 as to invalidate the proceedings for collection of the five mill tax. The record, even at this date, we think, could be completed in order to conform to the facts. The provisions of the act of 1846 are sufficiently broad to cover all purposes for which the five mill tax, as shown by the testimony, was levied. It is true the act last cited requires that the warrant for the collection of cash taxes be placed in the hands of the collector. The warrant in this case in the first instance was given to the township treasurer. However, at the time of the institution of these proceedings, the warrant was in the hands of the collector, to whom it had been certified for collection by the proper authority, viz.: the supervisors. These irregularities were occasioned by the uncertainty existing and the diversity of views relative to the proper mode of procedure following the passage of the act of 1905. The tax was authorized by statute, levied by the proper authorities, and it would be inequitable by reason of the omission to make the proper entry in the books and the irregularities to which reference has been made, to declare the levy invalid, and particularly so as the greater proportion of the tax has already been paid by the property owners of the township. To restrain the collection of these taxes at this time would work great injustice.
    In the bill, as originally filed, the complaint was in brief that the supervisors could not levy a cash road tax, and it was not until after the filing of an answer by the defendants, that any objection was made to the irregularity of the proceedings under the act of 1846. Nor is it alleged that any injury has been sustained by reason of such irregularities. There was certainly an honest effort by the supervisors to inform themselves and comply with statutory provisions. That their proceedings should be in all respects technically accurate is more than can reasonably be required.
    
      February 28, 1908:
    It was well said, referring to supervisors, by Yerkes, J., in Williams v. Wright et al., 6 Pa. C. C. Rep. 497, “ They are important and useful public officials and are not elected to office with a view to the solution of intricate questions of law, but because of the sound judgment and honesty they are expected to possess.” The same principle is recognized in Miller v. Gorman & Preston, supra.
    And now, October 24,19.07, the injunction heretofore granted is dissolved and the bill dismissed at the cost of plaintiff.
    
      Error assigned was the decree of the court.
    
      L. T. Hoyt, of Hoyt & Schrier, for appellants.
    
      H. F. Maynard, with him Lilley & Wilson, for appellees.
   Per Curiam,

We concur with the learned judge below in the conclusion that the local Act of March 30,1846, P. L. 199, was still in force and that, notwithstanding the irregularities, the levy of the cash tax can be sustained thereunder; further, that there is nothing in the pleadings to prevent the decree being based thereon. These conclusions are so well supported by the findings and opinion of the learned judge below that we deem it unnecessary to add anything further to the discussion.

The decree is affirmed at the costs of the appellant.  