
    BRENNAN’S APPEAL.
    The Court of Common Pleas has jurisdiction of an appeal from the settlement of Township auditors.
    Neither the Township Treasurer nor collector is entitled to commissions upon taxes worked out on the road or on exonerations.
    Only the collector is entitled to commissions on special tax collected.
    .Certiorari to Common Pleas of Schuylkill County. No. 127, January Term, 1880.
    The facts of the case appear in the opinion delivered December 1,1879 by
    Walker, J.:
    This case comes before us on an appeal by a taxpayer, from the settlement of the treasurer’s and collector’s accounts by the board of auditors of Mahanoy township.
    The 104th sec. of act 15, April, 1834, (Pur. Dig. 1404, pi. 33), P. L. 555 gave to the township and the accounting officer, the right to appeal from the auditors’ settlement to the Court of Common Pleas within thirty days after such settlement.
    The 19th sec. of the act of 14 April, 1851, P. L. 616 (Pur, Dig. 1404, pi. 37) extended the right of appeal to resident taxpayers, and the act of 1 May, 1876, Pamp. Laws, 88, further extended the right to any taxpayer of the borough, township, ward or district in which the settlement is made.
    The exceptions filed by the appellant to . the settlement of the auditors, are in substance as follows, to wit:
    
      First. That the treasurer and collector charged and received credit for commissions on taxes, which had been worked out on the road by the owners of the lands and never passed through his hands.
    Second. That he has charged and received commissions on ex-onerations, and also commissions exceeding two per cent, on taxes returned to the county on unseated lands for 1878 and 1879.
    Third. As to the allowance- of the- treasurer’s and collector’s compensation.
    Fourth. As to the allowance of the auditors’ compensation.
    The first question that presents itself is, is the collector entitled to commissions on road taxes assessed on his duplicate, but paid in labor by the owners of the land ?
    The 34th section of the act of 15 April, 1834, P. L. 515, (Pur. Dig. 1,367 pi. 66) makes it the duty of the supervisor of every township to give notice to all taxpayers, so as to enable them to work out the road taxes if they see fit; and this notice is a condition precedent to the issuing the warrant for the collection of the taxes — Miller vs. Gorman 2 Wr. 309 — and no contract can be made to deprive taxpayers of this privilege : Childs vs. Brown Township, 4 Wr. 332; in this case taxes to the amount of $4,920.52 have been paid in labor, and no part of the money passed through the hands of the collector or treasurer, both offices of which are exercised by and filled by one person, under the 6th section of act of 17 February, 1859, (Pamph. Laws, p. 52). He certainly, therefore; had no right to commissions on money-never collected —and this is true with reference to exonerations. However, on taxes returned to the county on unseated lands the compensation of the treasurer is two per cent, only, and the collector is entitled to no commissions.
    The compensation of the treasurer is fixed by the auditors at two per cent, and that of the collector under the act of 15 April, 1834, P. L. 519. (Pur. Dig. 1371, pi. 97), is made 5 per cent, on all money collected. These exceptions are therefore sustained.
    These views are substantially the same as those expressed by Judge Pershing in the case of William H. Lewis vs. E. E. Flanigan et. al.; No. 137 July T., 1879 ; 1 Legal Record, 141.
    
      As regards the auditors’ compensation of $66 for their service, there is no evidence before the Court that it is improper, and as the appellant does not now press the exception ; the compensation for service is allowed.
    With reference to the special tax ordered by the Court under the provisions of tire act 31 March, 1864, (Pamph. Laws, 162) the collector is entitled to five per cent, for collecting the same and payment to the Prothonotary ; but the treasurer of the township has no legal right to receive a cent of it, and therefore is not entitled to commissions.
    In the settlement of the special tax in this case, no commission of the treasurer has been charged or allowed, which is correct and in accordance with the views herein expressed.
    We therefore restate the account of the road tax as follows, to wit:
    James Brennan, collector and treasurer of Mahanoy township : Dr.
    To amount of duplicate for 1878....................$5,727 70
    
      “ “ “ unseated land tax............:........ 578 92
    
      “ “ paid by former treasurer, Kershner........ 27 42
    Total.......................................$6,334 04
    Cr.
    By amount of exonerations..........................$ 181 50
    “ “ “ returns to Commissioners............ 269 75
    “ “ worked out by P. & R. C. & I. Co........... 2,000 00
    “ “ worked out by Delano Land Co ........... 1,974 58
    
      “ “ worked out by Middle Lehigh Coal Co...... 225 94
    “ “ worked out by individuals......... 720 30
    Amount on which commission is not due............$5,371 97
    By orders paid to sundry persons .............. 247 57
    By amount paid clerk for 1878...................... 30 00
    By amount of unseated land tax $578.92 on which the treasurer is entitled to two per cent........... 11 58
    By amount on which both treasurer and collector is entitled to commission amounting to 7 per cent, on $383.15 ..................................... 26 82
    
      By amount paid auditors ....................... 66 00
    By amount paid Thomas Stephenson, room rent ...... 10 00
    By balance due the township.......... . 570 10
    $6,334 04
    And now, December 1,1879, it is ordered and decreed that the appeal in this case from the settlement of the account of James Brennan, collector and treasurer of Mahanoy township, made by the auditors of said township be sustained, so far as set forth in the above opinion; and that said account be reformed and restated as herein mentioned, except as to the settlement of the special tax, which is correct; and it is further directed that the defendants pay the costs.
    Brennan then took an appeal to the Supreme Court and assigned as error,
    1st. That the Court erred in not dismissing the appeal for want of jurisdiction.
    2nd. The Court erred in surcharging Brennan, collector and treasurer, with allowed commissions on taxes alleged to have been worked out on the roads.
    
      J. F. Grady, M. M. L’ Velle and C. N. Brumm, Esqs., for appellants argued,
    that Breisch had appealed under Sect. 104, act April 15, 1834, P. Dig. 1404, Pl. 33, P. Laws 555 and its supplements. That the act of February 17, 1859, P. Laws 51 repealed the former act.
    A subsequent statute clearly intended as a substitute for a prior one operates as a repeal even though there are no words of special repeal and the two acts are not repugnant; Commonwealth vs. Crowley, 1 Ashmead 179; Johnson’s Estate, 9 Casey 511; Bartlet vs. King, 12 Mass. 545; Davies vs. Fairbaine, 3 Howard 636; Norris vs. Crocker, 13 Howard 438; Weeks vs. Walcott, 15 Gray 54.
    2nd. The taxpayer must work out his taxes before the duplicate is placed in the collector’s hands; Miller vs. Gorman, 2 Wr. 309. After the warrant is placed in the collecfor’s hands he is accountable for and can collect the full amount, and consequently he is entitled to charge commissions on the full amount. His warrant is his protection against any irregularity; Moore vs. Allegheny City, 6 Harris 58; Beach vs. Furman, 9 John 229; Ford vs. Clough, 8 Greenleaf 334; Holden vs. Eaton, 8 Pickering 436; Buck vs. Commonwealth, 7 W. N. C. 241.
    
      Wm. B. Wells and James Ellis, Esqs., for Breisch, the appellee,
    argued that the Court below had jurisdiction under the provisions of Act of May 1st, 1876, P. Laws 88, which repeals the Act of 1859; Keller vs. Commonwealth, 21 Sm. 413; Johnson’s Estate, 9 Casey, 511; Commonwealth vs. Railroad Co., 3 Smith, 62; Gwinner vs. Railroad Co., 5 Sm. 126.
    Second. The taxes were worked out; not .collected. The collector is only entitled to commission on amouut collected: Act April 15, 1834, Sect. 52, P. Laws, 519. If the supervisor improperly issued his warrant, he and not the township was responsible to the collector for the injury done him: Green vs. Borough of Reading, 9 Watts, 382.
    All owners must have a chance to work out their taxes: Miller vs. Gorman, 2 Wr. 309.
   The Supreme Court affirmed the decision of the Court below on March 29, 1880, in the following opinion ;

Per Curiam.

If the Act of May 1, 1876, P. L. 88, is inconsistent with the Act of February 17, 1859, P. L. 52, it operated so far as a repeal of it: Keller vs. Comm’th, 21 P. F. Smith, 413. But it is not necessary to decide that question. The two acts may well stand together. By the Act of 1876, Breisch had a perfect right to appeal. On the merits, if we can consider them on this certiorari, we think the Court below was right in rejecting the collector’s claims for commission, on the sums claimed to have been worked out on the roads by the taxpayers.

Proceedings affirmed.  