author: Agnbw, C. J.

text:
    McReynolds et al. versus Longenberger et al.

    1. The Act of March 13th 1815, sect. 4 (Unseated Lands), does not cure the want of any assessment.
    2. There must be an assessment, regular or irregular, for the particular year, for the taxes of which the land is sold.
    3. Under Act of April 12th 1842, sect. 21 (Unseated Lands), papers in the commissioners’ office will support the fact of an assessment, which before that act per se would not be evidence of an assessment.
    4. There may be no actual assessment in evidence, but there may be evidence, by records and papers in the commissioners’ office from which an assessment may be inferred.
    5. Ambiguous entries in a book relating to sales of unseated lands, are evidence for the jury on the question whether land sold for taxes had been assessed.
    6. I-Iefti). Gepbart, 15 P. P. Smith 510, examined and explained. Greenough v. Pulton Coal Co., 24 P. P. Smith 486 ; Hess v. Herrington, 23 P. P. Smith 438; McReynolds v. Longenberger, 7 P. P. Smith 13, recognised.
    March 31st 1874.
    Before Asnew, C. J., Sharswood, Mercur and Gordon, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Columbia county: of September Term 1873, No. 5.
    This was an action of ejectment, brought August 1st 1873, for a tract of 364 acres of land in Beaver township, formerly Mifflin township, Columbia county. When the cause was tried December 11th 1872, before Elwell, P. J., by various substitutions of the original parties, William Longenberger and James McAllarney, executors of George Longenberger, deceased, and S. P. Wolverton were plaintiffs, and Hugh W. McReynolds and Cyrus J. Bower and other heirs of Henry Bower, deceased, were defendants.
    The case had been tried-before, the judgment reversed and a new trial awarded by the Supreme Court; it is reported in 7 P. F. Smith 13.
    The land in controversy was surveyed on the 8th of July 1794 as 364 acres, on a warrant granted August 23d 1793, to Catharine Longenberger; on the 6th of September 1794, a patent for the same tract was issued to James Wilson. This land was sold by the sheriff in 1801 on an execution against Wilson, to Jacob Bower, upon whose death the title to the land passed to his son Henry Bower as his heir at law. By divers conveyances two-thirds of the title passed to H. W. McReynolds, the other third remaining in the heirs of’Henry Bower, deceased.
    The plaintiffs claimed the land under two sales for taxes to George A. Erick made in 1820 and 1822.
    There were a number of subordinate questions considered and ruled on the trial in the court below. The question considered and decided in the Supreme Court was, whether there was sufficient evidence that the county commissioners had charged this land with the taxes for which it was sold. After some preliminary evidence, the plaintiffs called William Krigbaum, who testified:
    “I am clerk to the commissioners of Columbia county; the book I hold headed, where now open, ‘Triennial Assessment, Mifflin township, 1817,’ is from the commissioners’ office; it is the assessment book for Mifflin, 1817; both the triennial and yearly -assessment, as I understand it. There are two warrants in it, one of 1816, and also in spring of 1817; I would call this the corrected triennial assessment; I have been clerk to the commissioners six years.”
    Entries: “ Warrantee, Catharine Longenberger; acres, 364; rate, 1; owner, G. Long; rate, 364. — 51.”
    Bound book handed to witness: “ This book has the lists of the treasurer’s sales for the taxes of 1818 and 1819 ; the sales made in 1820; I call this a transcript of unseated lands; it must be the commissioners’ transcript; that is my view of it; the book came from the commissioners’ office.”
    Being cross-examined he said:—
    “ I don’t know the handwriting in this book, on this page headed “ Return of Unseated Land,” made by the assessor of Mifflin township, as triennial assessment, 1817; it does not appear to me to be the Treasurer’s Sale Book, such as we have in the office now; it appears to me to be the book put into the treasurer’s hands to collect the taxes. [The heading in the back part of the book turned sidewise, shown witness.] This is the sale of unseated lands for years 1818 and 1819; sold June 12th 1820, for taxes; these purport to be entries of sales made by the treasurer; I don’t know the handwriting of the sales or of the entries in this part of the hook; don’t know anything about the book, only what appears upon it; so far as I know, the office of the treasurer and the commissioners have been kept together ; they are now kept together ; we have now in the office of the commissioners all the records of the treasurer, so far as they are in existence; there may be some that I don’t know anything about; the books are all kept in the same vault.”
    Plaintiffs offer the bound book from the commissioners’ office for the purpose of showing the copy in their transcript book, of the return of unseated lands, made by the assessor of Mifflin township, at the triennial assessment of 1817, and the assessment of taxes upon the Catharine Longenberger tract in pursuance thereof: to be followed by evidence of a sale of the treasurer in pursuance of said assessment and a deed to the purchaser, &c.
    The offer was objected to:
    1. Because the book contained upon its face evidence that it is a book belonging to the treasurer and not to the commissioners.
    2. Because before it can be given in evidence for the purpose of showing an assessment, it must appear to contain the work of the commissioners.
    3. Evidence that the book was taken from an office which is both the treasurer’s and commissioners’ office is not sufficient.
    4. Because it contains the record of road taxes of 1818, and there is no evidence of any action by the supervisors of the township relating to such taxation.
    ■ 5. That a copy or transcript in a treasurer’s book is not legal evidence of an assessment.
    The offer was admitted, and a bill of exceptions sealed.
    “ Return of unseated land made by the assessor of Mifflin township, 1817:

      Warrantee Names. Owners. Acres.

    Longenberger, Catharine. G-. Long. 364
    County Tax, 1817 — 51; Road Tax, 1817 — 58; County Tax, 1818— ; Road Tax, 1818 — 58; County Tax, 1819— : Road, 1819— .”
    The witness further testified:—
    “ This book that I hold, and all the books now here, are from the commissioners’ office; this purports to be the triennial assessmentof 1820; it contains two warrants, one of Nov. 1819, and one of spring of 1820 ; it shows a return of unseated land as such. This is the annual assessment of Fishing Creek township for 1815, and Greenwood township for same year in the same book; contains the annual assessment of each year for each of these townships; no unseated lands assessed in these years in these townships; this is the annual assessment for Fishing Creek and Greenwood townships for 1816; no unseated land assessed in these books. This is triennial assessment of Fishing Creek and Greenwood townships for 1817. There is a list of unseated lands in Fishing Creek township of that year. This is another book; assessments of several townships marked together in this book.
    “In the annual assessments for 1818-19 in Greenwood and Fishing Creek townships no unseated lands are mentioned. In the triennial assessment of 1820 for Fishing Creek township unseated lands are mentioned. In the annual assessment for Fishing Creek township for 1821, 1822, no unseated lands are mentioned. In 1828, triennial, there is a return of unseated land. In the annual assessment for Mifflin township for 1815 and 1816, no unseated lands are mentioned. The triennial assessment of 1817, before in evidence, returns unseated lands in Mifflin township. Annual assessment of 1818 and 1819, no unseated lands: 1820 triennial, return of unseated lands ; annual assessment of 1821 and 1822; no unseated lands. Return of unseated lands in Mifflin for 1828. I call this book a transcript; it contains the list of land and the taxes carried out. The unbound book of assessments of Mifflin township of 1820 is the return of the unseated lands of Mifflin made by the assessor for 1820. This is the unbound transcript of unseated lands of Mifflin.”
    (The heading was “ Return of unseated lands in,Mifflin township, &c.”)
    “ The bound book does not contain all the names that are in the unbound book. Those marked with a star in the unbound book are entered in the bound book.
    The plaintiffs proposed to read the return of the assessment Mifflin township for 1820. Under the head of warrantee names, marked with a star: “ Longenberger, Catharine;” under the head of acres, “ 216;” under the head of adjoiners, “ A. Clark ;” under the head of county tax for 1820, “$1.07;” under the head of county taxes for 1821, “ 53J cts.,” and from the bound book the heading as before stated. Warrantee names, Longenberger, Catharine, acres 216, adjoiners, A. Clark, county taxes $1.07; 1821, county taxes, 53J; remarks, G. A. Frick. Triennial assessment Mifflin township 1820. “Warrantee, Catharine Longenberger; acres, 216; adjoining, A. Clark; val. $327; taxes, $1.07.” Also : the assessments of Fishing Creek and Greenwood townships for the purpose of showing the practice of the commissioners’ office from 1815 to 1823, and the assessments of Mifflin township for the like purpose, and for the further purpose of showing the assessment of taxes on the Catharine Longenberger tract for the years 1817, ’18, ’19, ’20, and ’21.
    Objected to by defendants.
    1. That the books offered for the purpose of showing the practice of the commissioners’ office are not in the present state of the offer competent for such purpose.
    2. The books offered for the purpose of showing assessments of the Catharine Longenberger tract are not competent evidence for the purpose of showing assessments for the years 1817 to 1821, nor are they competent evidence of the assessment of road tax.
    The offer was admitted and bill of exceptions sealed.
    The witness proceeded : “ I am acting for the treasurer of Columbia county. The heading of that part of the (bound) book now open before me, on back part of book turned sidewise, is sale of unseated lands for years 1818 and 1819, made June 12th 1820, for taxes. Continued until the 19th. Expenses included in the purchase-money. This book was procured from the office of the commissioners and treasurer.”
    Plaintiffs offered to read from this book, under head of Mifflin township, for unseated land taxes for year 1818 and 1819, that which relates to the Catharine Longenberger tract, for the purpose of showing a sale of that tract by the treasurer, and to be followed by a deed from the treasurer under that sale duly acknowledged.
    Defendants objected: 1. Because there has no such assessment been shown as would warrant a sale of the Catharine Longenberger tract for taxes in 1820. 2. That no sale was warranted at the time for the taxes purporting to be unpaid by the entry in the book offered in evidence.
    The offer was admitted and a bill of exceptions sealed.
    Entries: “ 364. Longenberger, Catharine, Co. tax, 1.16; It. tax, 1.16; Total, 2.32. Ed. pd. sold $5.95. Purchasér, G. A. Frick. Deed. 10th July 1820. Deed, Wm. Wilson, treasurer of Columbia county, to Geo. A. Frick, for the Catharine Longenberger tract. Acknowledged 4th August 1820, in open court. Recites county tax, 1818, 58 cts. and 1819, 58 cts; road tax 1818, 58 cts.; 1819, 58 cts. In the whole, $2.32.”
    Plaintiffs offered deed 5th August 1822. Wm. Wilson, treasurer of Columbia county, to G. A. Frick, for Catharine Longenberger tract. Acknowledged in open court, 10th August 1822. Offered in connection with proof that the treasurer’s sale book of 1822 cannot be found in the proper office. Recites county taxes, 1818, —, and 1819, —Road tax for 1820, J1.07, and 1821, 53J cts. Sold. Geo. A. Frick, $5.23.
    Defendants objected: 1. Because there is no such assessment as would warrant a sale by the treasurer. 2. No evidence of a sale made by the treasurer has been given. 3. Because no such taxes are shown to have been assessed and unpaid as recited in the deed; the deed reciting that it was sold for road taxes.
    The offer was received and a bill of exceptions sealed.

      Wm. Krigbaum further testified: “ I have searched for treasurer’s sale book for 1822. Do not find it.”
    The plaintiffs then gave evidence tracing the title of the land in dispute to George Longenberger, John Fisher and George Miller; George Longenberger’s will, directing his interest in the land to be sold by William Longenberger and James McAllarney, plaintiffs, his executors, and tracing 'the title to the other two-tbirds to S. P. Wolverton, the other plaintiff.
    The plaintiffs gave evidence for the purpose of showing that the recital in the treasurer’s deed to Frick that the land was sold for the road tax of 1820 and 1821 was a mistake; also evidence for the purpose of showing title under the Statute of Limitations, and rested.
    The defendants then gave evidence in answer to the plaintiff’s case, amongst other things for the purpose of showing that the taxes for which the land had been sold, had been paid; and also showing the title as claimed by them.
    Both parties submitted a number of points, which it is not important to give, the positions presented by them appearing in that part of the charge given below.
    After stating the respective grounds of claim of the parties, Judge Elwell said:—
    * * * “ Under these instructions you will perceive that the validity of the tax sale of 1820 or that of 1822, or both, is the only proper subject for our consideration.

      “ By the statutes of this state unseated lands are made liable for their share of public taxes according to their value. As the owners inay be non-residents or unknown, the policy has been to charge the lands themselves with the taxes, and to enforce payment by a sale of the lands charged. In order, however, to make-a valid sale for taxes, certain requisites, without which no title will pass to the purchaser, are necessary. The land must have been unseated at the time of the assessment of the taxes. An assessment must have been made by competent authority, identifying the land assessed by the adjoiners, or otherwise, with reasonable certainty ; the taxes must have been due and unpaid for one whole year before the sale; the land must have been sold by the treasurer of the county and his deed therefor must be acknowledged in open court. When all these requisites exist, and there is no redemption from the sale within two years, the title of the former owner is divested, and that of the purchaser becomes complete. But if either of them are absent no title passes by the sale. When land is assessed as unseated, the presumption is that that is its condition until the contrary is shown. When unseated lands a.re described, valued and returned by the assessor under a warrant from the county commissioners for that purpose, and the commissioners have charged them with taxes, an assessment has been made by competent authority, and if the owners suffer such taxes to remain' unpaid for one whole year, the treasurer, without a warrant from the commissioners, may make a sale and convey a good title to the purchaser. But the treasurer has no authority to make an assessment ; he is, under the statute, merely an executive officer empowered to enforce by a sale charges duly made and ripe for such action, before his duty begins. There is no particular form or mode prescribed by law in which the books shall be kept and the assessments made. Each county may have a practice of its own.. If the assessment is actually made, the manner of doing it is not material. In this county -the books from the commissioners show, at least in regard to several townships, that for years 1815 and 1816 the unseated lands were not placed on the yearly assessments. The triennial assessment of 1814 is not to be found. In the triennial years 1817, 1820 and 1823, the unseated lands are found upon the assessment returned by the assessor. In the intermediate years between the triennial assessments, the unseated lands are not placed on the books containing the yearly assessments.
    “Your attention is now directed particularly to the evidence upon which the plaintiffs rely to prove an assessment of taxes for the non-payment of which the treasurer’s sale was made on the 12th of June, A. d. 1820.
    “ In the triennial assessment for Mifflin township for 1817 brought from the commissioners’ office with the proper warrants of the commissioners to the assessors, among other tracts contain the following: Warrantee, Catharine Longenberger; acres, 364; rate, 1; owners, G. Long; rate, 364;--51.
    “ They have also given in evidence another book called here ‘the bound hook.’ This book contains in the fore part, when held in the ordinary way, what purports to be a return of unseated lands made by the assessor of Mifflin township, 1817, charging this tract with taxes, to wit: Hoad tax 1818, 58 cents. You will have this book when you go out and will observe that there are no taxes charged on the preceding page of the same book for Mifflin township, and that by placing the figures indicating amounts of tax on the page where the Catharine Longenberger tract appears in corresponding columns with the preceding pages, the taxes charged would be, 1818, county tax, 58 cents, and 1819, 58 cents. In the back part of the book, turned sidewise, is what purports to be sale of unseated lands for years 1818 and 1819, made June 12th 1820. The entry there is, 364; Longenberger, Catharine; county tax, $1.16; road tax, $>1.16; total, $2.32; sold, $5.94; purchaser, George A. Frick; deed. In regard to this book the evidence is, that it came from the commissioners’ office; that the office of the commissioners and of the treasurer of the county is now and always has been, as far as known, in the same room; that the books of both offices are kept in the same vault. Mr. Krigbaum, the present clerk of the commissioners, who has held that office for six years, calls the first part of the book the transcript of unseated lands, and the latter part the list of treasurer’s sales; forming his judgment, however, upon no other fact than inspection of the books. Upon this state of facts I must submit to you to decide whether the taxes charged in what I call the first part of the book was the work of the county commissioners; whether it was in fact their unseated land book at that time, and the treasurer put his sale in the back part of it, or whether it was the book of the treasurer for the purposes of his office. If you find that it was the treasurer’s book, and not that of the commissioners for the purpose of assessing and charging unseated lands with taxes, then you should reject it wholly from your consideration. If the entries charging taxes were not the work of the county commissioners, then there is no evidence to support the sale of 1820 by the treasurer, and the deed of that officer to George A. Erick of the 10th of July 1820, conveyed no title. But if you find that it was the commissioners’ book in which they charged lands valued and returned by the assessors with taxes, the fact that the treasurer entered his sales in the back part of it ought not to destroy its force as evidence, and the sale made by the treasurer conveyed the title, unless the taxes had been paid before sale. The recitáis in the deed of the treasurer of more taxes than appear to have been charged upon the books, does not vitiate the sale. If there were any taxes due more than one year, whether they were for county or road purposes, the sale was valid.
    “ In support of the sale and deed of the treasurer to Geo. A. Erick, dated August 5th 1822, the plaintiffs have given in evidence the triennial assessment of Mifflin township for 1820, by which it appears that the Catharine Longenberger tract was returned by its warrantee name, described as containing 216 acres, adjoining A. Clark, and was valued at $324. These entries are found in the book from the commissioners’ office, called by the clerk ‘ the unbound book’ of assessments of Mifflin township for 1820, being the return of unseated lands made by the assessor. In this book this tract, described as before stated, is charged under the head of county tax for 1820, $1.07, and under the head of county tax 1821, with 53J cents, and in the bound book mentioned, under the head of unseated lands of Mifflin township, &c., the warrantee name, number of acres and taxes for the years 1820 and 1821, are entered the same a,s in the unbound book, with the addition, under the head of ‘ remarks,’ of the name of George A. Erick. It appears that the treasurer’s sale book of the sales made in 1822 is not to be found, but the deed of the treasurer recites such sale to George A. Erick, for the consideration of $5.23. It recites county taxes for 1818 and 1819 blank, and road tax for 1820, $1.07, and 1821, 53J cents.

      “ We repeat in regard to this sale so far as regards these books in evidence purporting to charge this tract with taxes, that if they are merely the work of the treasurer they are no evidence of assessment and the sale was invalid. But if they are the books of the county commissioners, and the charge of taxes was their work, then the sale was valid and passed the title ; provided it was made for the taxes thus charged and remaining unpaid, as I have before stated. I submit to you to determine.
    “From the evidence before you whether the recital in the deed that the sale was made for road tax of 1820 and 1821, was a mistake, and whether the sale was or was not in fact made for the taxes as they appear charged on the books, except in the deed road taxes are not mentioned in connection with this tract; the amount of taxes in the deed corresponds in each year with the amount of county tax charged for those years : you will have the books and the deed, and determine for yourselves whether the sale was in fact for road taxes or for the county taxes as charged. If you find that it was for road tax, then the treasurer’s deed conveyed no title, as there is no evidence of an assessment of road taxes for 1820 or 1821. But if you find it was made for the county taxes charged by the county commissioners for the years 1820 and 1821, based upon the valuation of the assessment at the triennial assessment of 1820, which remained unpaid and due as before stated, then the purchaser George A. Frick acquired thereby the legal title.
    “When there has been a valid assessment of unseated land and a sale for the taxes overdue one year, and there is an allegation of payment of the taxes before the sale by the owner or some other person enuring to his benefit, the burden of proof is upon the person alleging such payment.” * * *
    The verdict was for the plaintiffs.
    The defendants sued out a writ of error and assigned for error the decisions of the court on the questions of evidence, and the charge.

      J. Gr. Freeze and S. Linn (with whom was 0. It. Buclcalew), for the plaintiffs in error.
    The burden of showing that the entries in the books were made by the commissioners was on the plaintiffs ; that being a fact necessary for their case : Cuttle v. Brockway, 12 Harris 145. The testimony of the clerk, is of no avail unless he knows the fact. The evidence was not sufficient to submit to the jury that there was a proper assessment and it should have been so declared by the court: McReynolds v. Longenberger, 7 P. F. Smith 18; Heft v. Gephart, 15 Id. 510; Wells v. Smyth, 5 Id. 159. The claimant under a fax sale must prove all the pre-requisites to sale; as much that the tax bad been due for a year as that it had been assessed : McCall v. Lorimer, 4 Watts 352; Miller v. Hale, 2 Casey 432.

      A. Ricketts and Woodward (with whom were M. E. Jackson, and H. M. Hoyt), for defendants in error.
    The Act of 12th April Í842, s. 2, Pamph. L. 266, 2 Br. Purd. p. 1448, pi. 7, declares that “ all records of the county commissioners, charging lands as unseated with arrears of taxes, shall be evidence of an assessment.” Not only are such books competent to be admitted, but they are evidence of an assessment of the taxes that are mentioned in them. Official registers are “recognised by law because they are required by law to be kept, because the entries in them are of public interest and notoriety, and because they are made under the sanction of an oath of office, or at least under that of official duty: 1 Greenl. Evid., sect. 484; McCoy v. Michew, 7 W. & S. 386. When road taxes have been registered in the commissioners’ books, the maxim omnia presumuntur rite esse acta applies, and transcripts or whatever antecedent acts the law requires, are presumed: Hess v. Herrington, 23 P. F. Smith 438 ; Heft v. Gephart, 15 Id. 510. A treasurer’s deed in fee simple acknowledged in open court is all the statutes require, and the unnecessary recitals are surplusage and to be rejected: Moulson v. Rees, 6 Binn. 32. A misrecital may be explained by parol: Leshey v. Gardner, 3 W. & S. 314; Hinds v. Scott, 1 Jones 19.
   The opinion of the court was delivered, May 11th 1874, by

Agnbw, C. J.

This case appears to have been well tried by the learned judge below, and his opinion so carefully adapted to the facts it was our intention to affirm it without an opinion. But it seems to us on reflection one subject, the assessment, requires notice in order to advert to a proper distinction, the absence of which might lead to a misapplication of our decision. “ The want of an assessment in fact by some competent authority is not such an irregularity as is covered by the Act of 1815. It is essential to a valid sale and the want of it is more than irregularity.” This is the language of the late Chief Justice Thompson, in his opinion in this case upon a former writ of error, 7 P. F. Smith 27. Of necessity this assessment applies to the very taxes for which the land is sold, and therefore to the year for the taxes of which the land is sold; for it is clear that the assessment for other years cannot be for the taxes of the year for which the sale is made. The 4th section of the Act of 13th March 1815, curing irregularities in the assessment, does not cure the want of any assessment. Hence we said at this term in the case of Greenough v. TheEulton Coal Company, 24 P. F. Smith 486, that “ while the triennial assessment is the basis of the subsequent assessment and the valuation then fixed will remain unless changed by reason of alterations in the property, it does not per se constitute the annual assessment of the property with taxes. The charging of lands with taxes is an annual process, for the reason that neither the property itself, nor its ownership, necessarily continues the same for triennial periods,” we held therefore in that case that the fixing of a rate for a certain year is not to be referred to a preceding triennial assessment made two years before, so as to constitute a complete assessment for the subsequent year. This was stated as a legal proposition, and not in relation to any reference the commissioners themselves might make in fact to a former triennial assessment in making the assessment of the subsequent year. Looking then to what the late Chief Justice said himself in this case, as well as to the undoubted law of assessments, it is plain he did not mean, in Heft v. Gephart, 15 P. F. Smith 510, referred to by the defendant in error, to unsay what he had said in this case, and to hold that a mere triennial assessment two years before with the fixing of a rate for a subsequent year, is in itself an assessment for the subsequent year. His language is somewhat general, but must be read in view of the facts of the case which he was discussing. In that case there was not only the triennial assessment in evidence, but there was a paper evidencing an assessment for the year in question, 1853, made out by the clerk of the commissioners, containing a list of the tracts, and columns headed, “number of acres,” “warrantee’s names,” “ valuation per acre,” “valuation per tract,” “ owners.” This contained the taxes assessed on the tract from 1851 to 1856. The important question in the case was presented in the plaintiffs’ point that if the jury should find the paper writing purporting to be a valuation and return for the year 1853 regular, the absence of legal evidence of the rates fixed by the commissioners, &c., is so entirely wanting that the tax could not be said to have been due one year, at the time of sale. There was therefore in that case not only the triennial assessment, but also evidence tending to establish the annual assessment for the year in question. That the whole opinion is to be read in the light of these facts is shown by the concluding sentence, on this part of the case, in which the Chief Justice said : “ The valuation and return by the assessor as shown by the paper attached to the assessment book was a question of fact for the jury and they have found in favor of it.” It cannot be doubted that there must be evidence of an assessment regular or irregular for the particular year, and this brings into view the effect of the last clause of the 21st section of the Act of 12th April 1842, Pamph. L. 266, declaring that “ all records of the county commissioners charging lands as unseated with arrears of taxes, shall be evidence of an assessment.” It was in view of this provision, and especially referring to it, the Chief Justice, in Heft v. G-ephart, asserted that the return of the triennial assessment, attached as it was to the original assessment (the paper in question) both for that year, brought from the commissioners’ office, was sufficient evidence of the assessment. The Act of 1842, therefore, without dispensing with the necessity of proving an assessment for the particular year, widens the range of the evidence by bringing into the case “all records of the commissioners’ office charging lands as unseated with arrears of taxes.” Papers in that office will now support the fact of an assessment, that before the act would not he evidence of an assessment per se. It is on this foundation the case of Hess v. Herrington, 23 P. F. Smith 438, decided in 1873, was rested in part, by Sharswood Justice. In that case there was no evidence of an actual valuation and return by the assessor, but there was an actual assessment and charging of the lands with taxes by the commissioners themselves. The assessment ivas irregular, but the Act of 1842, by helping out the evidence of an assessment, helped out the assessment itself. There may be no actual assessment in evidence, but there may be evidence from records and papers in the commissioners’ office, from which an assessment may be inferred: and this it was the purpose of the Act of 1842 to sustain. The fact of the assessment being sustained, any irregularity in making it is then covered by the Act of 1815. The contest in the case before us is therefore narrowed to the single question whether there was sufficient evidence to go to the jury, that the commissioners in the year 1818 and 1819 had charged the lands with the taxes for which it was sold. It seems to us, though the evidence was slender, it was not so vague and uncertain as to have justified the judge in withdrawing it from the jury. The foundation for the charges in the book called the “ bound hook,” was laid by the introduction of the triennial assessment of 1817, the preceding year. This left it only a question of identity whether the hound hook containing the so-called returns of assessors for 1818 and 1819 were records of the commis • sioners’ office. Of this there was some evidence in the testimony of the clerk of the commissioners, in connection with the book itself. On its face the book was composed of two parts, one in each end of the book ; one part was manifestly the work of the treasurer containing his lists of unseated lands and the sales. In the other end the appearance was different. The entries were headed, “Returns of unseated lands,” for certain townships, including the township in question. The work of the treasurer is not found here, and the lists are such as would be made by the commissioners in charging the lands with taxes for the respective years. The clerk said, “ I call this a transcript of unseated lands, it must be the commissioners’ transcript, the books came from the commissioner’s office.” In cross-examination he said: “ It does not appear to me to be the treasurer’s book. It appears to me to be the book put into the treasurer’s hands to collect the taxes.” This testimony is weakened, but is not conclusively rebutted by his further statement that the other end contained the sales of the treasurer made from Juno 12th 1820 for the taxes of 1818 and 1819, and that the offices of the treasurer and commissioners have been kept together. This made it only a more difficult question for the jury to decide, but still it had to go to them for a decision. In corroboration there was also the evidence of the usage of the commissioners and their modes of dealing with the unseated lands as shown by other records of the office. That such corroborative evidence may be given follows from what has been said in various cases as to the mode of keeping their accounts of the unseated lands. See Heft v. Gephart, 15 P. F. Smith 518, and cases cited. Nor was the submission of the case to the jury contrary to the former decision in this case in 7 P. F. Smith 14. The former trial took place before the same judge in the court below, and he had charged that the assessment of 1817 and the “ bound book,” although the treasurer’s sales for 1820 are entered in the back part of the latter, contained in themselves sufficient primá facie evidence of an assessment by the commissioners to authorize the sale by the treasurer in 1820. In thus charging he assumed the part which the jury only ought to have determined, to wit: that this book was the work of the commissioners in that part of it and not that of the treasurer. Hence the Chief Justice in his opinion began on this point by saying, “was there such an assessment shown by the plaintiff below. The learned judge who tried the case ruled, as a matter of law, that there was, and this ruling is the foundation of one of the principal errors in the case.” He proceeds then on this basis to examine the characteristics of the book, and to show that it was for the jury to pass upon the testimony of identity ; and that it was not even primá facie the commissioners’ book “ so as to authorize (he says) the court in assuming it so to be.” “ The treasurer is not (he proceeds to say) an assessing officer nor is his book evidence of an assessment. Standing thus it requires proof to establish it to be an unseated land book or list furnished by the commissioners, and the proof was for the jury.”

The judge below having, in the last trial, submitted the case to the jury on evidence, meagre it is true, but not insufficient, we ought not to reverse him for doing what under the former opinion he was reversed for not doing.

Finding no error in the record, the judgment is affirmed.


source: Caselaw Access Project

author: Sharswood, J.

license: Public Domain

text:
    Northumberland County versus Zimmerman.
    1. The Act of April 12th 1867, for protection of person, &e., in mining regions is constitutional, so far as it provides for appointing police officers and paying the compensation fixed by the governor out of the county treasury.
    2. The act requires, that the governor may appoint such officers on the petition of one hundred citizens in the region, &c. Held, that a copy of such petition, &c., certified by the secretary of the Commonwealth, with the commission to the officer was evidence of the appointment.
    3. Certified copies of all records, &c., in the secretary’s office are evidence wherever the original would be.
    4. The governor is authorized to commission all officers whose election or appointment is provided by law, and his commission is the proper evidence of election or appointment.
    April 1st 1874.
    Before Agnew, C. J., Sharswood, Merour, and Gordon, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Northumberland county : No. 16, to September Term 1873.
    This action was commenced before a justice of the peace by-Clark B. Zimmerman against the county of Northumberland and was removed July 26th 1867 by appeal into the Court of Common Pleas.
    The suit was brought by the plaintiff to recover from the county of Northumberland compensation for services rendered as special policeman for the townships of Coal and Mount Carmel in county of Northumberland; he having been appointed by Governor Geary under the Act of April 12th 1867, Pamph. L. 716, entitled, “ An act for the better protection of person, property and life in the mining regions of this Commonwealth.”
    The act is as follows:—
    “ Whereas, it is alleged that in certain counties, in the mining regions of this Commonwealth, many acts of violence have been committed, on the persons and property of peaceful citizens, causing great insecurity, and frequent destruction of life, and the perpetrators of such outrages and murders have not been brought to punishment,
    “ Sect. 1. Be it enacted, &c. That it shall be lawful for the Governor, on the petition of one hundred citizens of any county, in the mining regions of this state, verified by the affidavits of at least twenty such citizens, and other satisfactory proofs, showing tfiat the local authorities of such county are inadequate and insufficient, for the protection of person, property and life, within such county, or any township or portion thereof, the governor is hereby authorized to appoint a marshal of police, and a sufficient number of officers of police, to give adequate protection to the persons and property of the inhabitants of said county, who shall be paid for their services out of the treasury of said county. * * *

      “ Sect. 3. The police officers appointed by this act shall have the like powers and .authority as constables for the preservation of the peace and the arrest of offenders against the laws, &c.' * * * and also for the execution of criminal process, when directed by the marshal of police, by endorsement on the warrant; and the said police officers shall, in all cases, be subject to the orders of the marshal of police. * * *
    “ Sect. o. The governor may make such rules and regulations for the government of the police force authorized by this act, as he may think best adapted to make the force efficient, and may create distinctions in rank, inferior to the marshal, and the officers holding such rank shall be obeyed and respected, as directed by such rules and regulations ; and the governor shall, from time to time, fix and determine the.'rate of compensation, according to their rank, to be paid to the police officers authorized to be appointed by this act, and may direct that any portion of the force shall be employed as a detective police, and shall have power to direct that the said force shall be armed and equipped in such a manner as to render them the most efficient in carrying into full effect the intentions of this act; and the expenses of such arming and equipping shall be paid by said county out of its treasury. * * *
    “Sect. 7. It shall be lawful for the police appointed under this act, in the execution of their duties, to enter any county adjoining the county in which the commission of the offence may occur, in pursuit of the offender, and to make the arrest in such adjoining county, with the same power and authority as in the county in which the offence was committed.” * * *
    The cause was tried April 7th 1873, before Elwell, P. J., of the 26th district.
    ■ The plaintiff offered in evidence a certified copy by the secretary of the Commonwealth of a petition of 166 citizens of the county of Northumberland praying the governor to appoint police officers under above-stated act, accompanied by the affidavit of May 11th 1867, of twenty citizens to the truth of the statements set out in the petition.
    The offer was objected to by the defendant because there was no authority by law for the secretary of the Commonwealth to certify copies of such documents.
    The offer was received and a bill of exceptions sealed.
    The petition and affidavit which were as stated in the offer, were then given in evidence.
    The plaintiff then offered in evidence the commission dated April 12th 1867, issued to Joseph Heisler as marshal of police of Schuylkill county, to be followed by the certificate of the secretary of the Commonwealth of May 2d 1867, that Heisler was appointed marshal of police for Schuylkill county; that his jurisdiction was extended to Coal and Mount Carmel townships in Northumberland county; to be followed by a letter from Governor Geary, extending Heisler’s jurisdiction to those townships and declaring that the police officers, including the plaintiff, named in the letter were to act as police officers in Northumberland county under the same rules as governed similar officers in Schuylkill county; and a certificate of. the secretary of the Commonwealth of March 31st 1870, that the.rate of compensation fixed by the governor to be paid to the police officers of Coal and Mount Carmel townships was $75 per month; a certified copy of a letter from the governor, dated May 1st 1867, directing that all the police officers acting under Marshal Heisler should receive $75 per month; that Heisler acted as marshal for those townships, and the plaintiff after having been commissioned, acted as a police officer for one month; also further to show by parol testimony that Heisler was authorized by Governor Geary to inform the police officers of Coal and Mount Carmel, that he had fixed their salary at $75 per month; that Heisler delivered to the plaintiff with his commission, the letter of Gov. Geary of May 1st 1867, and a copy of the rules governing these police officers.
    The defendant objected to the admission of Heisler’s commission ; because it was irrelevant, as it gives him no power to act in Northumberland county. Defendant objected to certificate of May 2d of the secretary of the Commonwealth, because the governor had no authority to extend Heisler’s jurisdiction to Coal and Mt. Carmel townships; because the paper does not purport to be a copy of any record in the secretary’s office. Defendant objected to the governor’s letter of May 21st 1867, because he had no authority to extend Heisler’s jurisdiction to Coal and Mount Carmel townships; because it does not purport to be an official act by him as governor ; that its statement that certificates had been issued, is not evidence and the governor had no authority to appoint special policemen for townships in Northumberland county. Defendant objected to the certificate of March 31st 1870, that the governor had fixed the compensation, &c., because it does not purport to be a copy of any record, &c., in the secretary’s office, but merely an act of the governor three years previously. Defendant objected to the copy of letter of May 1st 1867, because it is addressed to Heisler as marshal of Schuylkill county and is dated twenty days before the application for the appointment of police officers in Northumberland county; and before the extension of Heisler’s jurisdiction into Northumberland county; and to the commission because the governor had no authority to appoint police officers for the townships of Coal and Mount Carmel.
    By the Court: “ The certificates of the deputy secretary of the Commonwealth, dated respectively May 31st 1867 and May 2d 1867, and also that part of the parol evidence as to what the governor said to Mr. Heisler in regard to the salary, is rejected. 2d, the objections to all other portions of the offer are overruled and the evidence admitted.”
    A bill of exceptions was sealed for defendant.
    The plaintiff read the commission from Governor Geary to Heisler, dated April 23d 1867, reciting the Act of April 12th 1867; the petition and affidavit of citizens of Schuylkill county as required by the act, and appointing Heisler marshal of police of Schuylkill county.
    Circular letter dated May 1st 1867, from the governor to Heisler, instructing him that all the policemen under him were to be of equal rank and receive as compensation $76 per month; also rules of same date from Heisler to police officers.
    Commission May 21st 1867 to plaintiff reciting the Act of April 12th 1867 and the proper petition and affidavit, and appointing him an officer of police for the townships of Mount Carmel and Coal, in the county of Northumberland.
    Letter of same date from the governor to Heisler informing him of the appointment of the plaintiff and others as police officers for Mount Carmel and Coal townships and extending Heisler’s jurisdiction as marshal to those townships.
    Heisler testified: that he received a letter from the governor when he received plaintiff’s commission, that he had lost or mislaid it, had made diligent search for it and not been able to find it.
    The plaintiff proposed to ask the witness whether by the letter the governor had fixed the salaries of the police, and whether that was communicated to the plaintiff by the witness when he delivered his commission to him.
    Defendant objected to the offer, because the act of the governor fixing the 'salary should be proved by a copy from the record in the office of the secretary of the Commonwealth; — the letter would not be the best evidence of the governor’s official act.
    The offer was admitted and a bill of exceptions sealed.
    The witness said the contents were, that the compensation to police officers for Northumberland county should be $76 per month, and they should be under the same rules as 'those of Schuylkill county. Witness further testified: — that the plaintiff commenced acting shortly after receiving his commission and served more than a month; — that he and the other police officers demanded their pay from the commissioners of Northumberland county, they refused, saying there was no provision for their pay.
    Plaintiff testified as to his serving as police officer, the time he served, the demand from the commissioners and their refusal; his receiving his commission, the governor’s printed circular, &c., in a sealed official envelope from the secretary of the Commonwealth, by the hands of Heisler.
    Judge Elwell instructed the jury that the Act of April 12th 1867 was constitutional; and after referring to the application of the citizens of Mount Carmel and Coal under the act, he said:—
    * * * “ On the same day the governor appointed and commissioned the plaintiff as such police officer for said townships, and by letter extended the jurisdiction of Joseph Heisler, who had been before appointed marshal of police for Schuylkill county, to the townships before mentioned in this county. The law requires no particular form of appointment — anything which indicates the selection of the governor is sufficient for the purpose. The extension of the jurisdiction of Marshal Heisler was equivalent to, and in fact was an appointment. But it is argued by counsel for defendant that the appointment of these officers as expressed for Mount Carmel and Coal townships was invalid, and conferred no authority upon them, and that the county is not liable to compensate them for their services. We have reserved the question for further consideration, but now charge you pro forma that the appointment of the plaintiff is to be considered by you as a valid appointment, entitling him to the compensation provided by the statute for services rendered. The question of fact for your consideration are these:
    “ 1. Did the governor fix the amount of compensation to be paid to the police officers in Northumberland county at seventy-five dollars per month ?

      “ 2. Did the plaintiff render one month’s service before bringing this suit? and,
    “ 3. Did he present his bill and demand payment before bringing suit ?
    The judge then referred to portions of the evidence.
    * * * “I may call your attention to that part of Heisler’s testi'mony in which he stated that he was directed by the governor to inform the plaintiff as to the amount of compensation he was to receive. The declaration of the governor accompanying the delivering of the commission, made for the purpose of being communicated to the plaintiff, is entitled to be taken into consideration in deciding the question.
    * * * “ In conclusion wo say to you that if you find the three propositions or inquiries above stated, in the affirmative, the plaintiff is entitled to recover the sum of seventy-five dollars with interest from such time as you see proper to allow it. But if the salary was not fixed by the governor, or if the plaintiff did not serve as claimed or did not demand payment before suit was brought, the verdict should be for the defendant.”
    The reserved question was: “Whether the appointment of the plaintiff, by the governor, as a police officer, under the Act of the 12th of April 1867, was such as renders the county of Northumberland liable for services as such officer.”
    The jury found for the plaintiff $100.99, and the court afterwards entered judgment on the verdict for the plaintiff on the reserved question.
    The defendant sued out a writ of error and, in eight specifications, assigned for error the decisions of the court on the questions of evidence and the charge. The substance of the exceptions being stated in the opinion of the Supreme Court, it is not necessary to give them in detail.

      W. A. Sober and J. JB. Packer (with whom were S. Malick and Gr. W. Ziegler), for plaintiffs in error:
    on the question of the constitutionality of the act cited Sharpless v. Philadelphia, 9 Harris 167; Washington Avenue, 19 P. F. Smith 352 ; Kelly v. Marshall, Id. 319; Durach’s Appeal, 12 Id. 491; Hammett v. Philadelphia, 15 Id. 146. Counties possess no legislative powers: Kittanning Academy v. Brown, 5 Wright 269; Lehigh Co. v. Kleckner, 5 W. & S. 181; Vankirk v. Clark, 16 S. & R. 286; Act of April 15th 1834, sect. 3, Pamph. L. 538, 1 Br. Purd. 295, pi. 3. As to power of counties to contract, &c.: Comm’th v. Philadelphia, 2 S. & R. 193; Cooper v. Lampeter Township, 8 Watts 125; County v. Bridenhart, 4 Harris 458; Raush v. Ward, 8 Wright 389; Curtis v. Allegheny, 1 Phila. R. 237; Commmissioners of Lycoming v. Lycoming County, 10 Wright 496.

      L. H. Kase and S. P. Wolverton, for defendant in error:
    as to the constitutionality of the law cited Durach’s Appeal, 12 P. F. Smith 493; Burns v. Clarion Co., Id. 425 ; Sharpless v. Mayor of Philadelphia, 9 Harris 172. The payment of the expenses for the special protection of a municipality is properly to be made by it: Philadelphia v. Field, 8 P. F. Smith 325; Thomas v. Leland, 24 Wend. 65 ; Norwich v. Com’rs of Hampshire, 13 Pick. 60 ; Hing-ham & Q. Bridge Co. v. Norfolk County, 6 Allen 353 ; Sedgwick on Const. 554; Kirby v. Shaw, 7 Harris 260; Erie v. Erie Canal, 9 P. F. Smith 176. A law to be invalid must be clearly forbidden: Satterlee v. Matthewson, 2 Peters 380 ; Fletcher v. Peck, 6 Craneh 87; Calder v. Bull, 3 Dallas 386; Norris v. Clymer, 2 Barr 285; Comm’th v. McCloskey, 2 Rawle 374.
   The opinion of the court was delivered, May 11th 1874, by

Sharswood, J.

There are eight assignments of error, but the questions involved in the decision of the case are so much intermixed in these assignments that it will not be convenient to discuss them seriatim but rather to consider these questions: They are, first: Was the Act of Assembly entitled “ An act for the better protection of person, property and life in the mining region of this Commonwealth,” approved April 12th 1867, Pamph. L. 76, so far as it provides for the appointment of police officers to preserve the peace, and for their payment at the rate of compensation fixed by the governor out of the county treasury, a constitutional exercise of legislative power? We limit the question in this way, because in this case, which is an action by one of the police officers against the county to recover the compensation fixed for his services, we have nothing to do with the legality of all the powers conferred upon the police officers by the' act. Some of these powers may be unconstitutional. In an action of trespass against the officers for the exercise of such unconstitutional powers, that question might arise. But surely if in any aspect the officers were legal they are entitled to compensation. Certainly the preservation of the peace is the great object of government. The Constitution provided for a sheriff, coroner, &c., in each county. These officers were to be selected by the people. But the creation of other peace officers was not expressedly or impliedly prohibited, and no one has ever supposed that it was not entirely competent for the legislature to create such officers and to provide for their appointment in any manner they might deem proper, and to fix their compensation and provide for their payment, either by salaries or fees. Constables were not provided for in the Constitution, nor the deputies and bailiffs of the sheriffs, yet unquestionably they are peace officers. The Constitution nowhere declared the sheriff to be the only officer who could call out the posse comitatus to suppress a riot. Beyond all question the governor could do so as the supreme executive magistrate. He was commander-in-chief of the army and navy of' the Commonwealth and of the militia, and when the posse comitatus of any particular county was insufficient for the purpose he could command the military power of the state to suppress disturbance and maintain order and law in any particular district. No one has ever hinted that it was not in the constitutional power of the legislature to invest the municipal authorities of cities and boroughs with the right to appoint police officers, with all the powers pertaining to preservation of the peace. The learned judge below in his charge to the jury disposed of this question in the most simple and conclusive manner. The legislature has the same right to provide for the payment of special peace officers by a county as it has to provide for the payment of constables, or expenses incurred in trying and punishing offenders by process in the Quarter Sessions. We have never heard it urged as a reason why a county should not be liable to defray such expenses because the offence was committed in a township especially interested in bringing the offender to punishment. That the powers confided to the governor to appoint these officers and to determine their compensation might be abused is not a valid argument against the powers themselves. To invalidate them some clause of the Constitution must be pointed out with which they conflict; and this the learned counsel for the plaintiff in error has failed to do.

The second question is, was the evidence adduced competent to go to the jury to éhow that the case provided for by the act had arisen and that the governor had exercised the powers confided to him ? The act declares that “ it shall be lawful for the governor of this Commonwealth, on the petition of one hundred citizens of any county in the mining region of this state, verified by the affidavits of at least twenty such citizens and other satisfactory proofs showing that the local authorities of such county are inadequate and insufficient for the protection of persons, property and life within such county or any township or portion thereof, to appoint a marshal of police and a sufficient number of officers of police, &c.” The evidence offered and admitted was a certified copy from the office of the secretary of the Commonwealth of a petition of one hundred and sixty citizens of the county of Northumberland, praying the governor to appoint police officers, with an affidavit of twenty of the number of the truth of the facts therein stated. This offer was made in connection with the original commission issued to the plaintiff below as a police officer by the governor. The first part of the offer was objected to because there is no law authorizing the secretary of the Commonwealth to certify exemplified copies of documents like this. But the counsel in making this objection must certainly have overlooked the Act of March 31st 1823, 8 Smith’s L. 144, Pamph. L. 233, “ An act making copies of certain documents, records and papers evidence in courts of justice.” It enacts that copies of all records, documents and papers, in the offices of the secretary of the Commonwealth, secretary of the land office, surveyor-general, auditor-general and state treasurer, when duly certified by the officers of the said offices respectively, shall be received in evidence in the several courts of this Commonwealth in all cases where the original records, documents and papers would be admitted in evidence.” The objection made to the admission of the plaintiff’s commission was because there was no authority in law for issuing such a commission. But the Constitution, Art. VI. Sect. V., declared that “ all commissions shall be in the name and by the authority of the Commonwealth of Pennsylvania, and be sealed with the state seal and signed by the governor.” The governor is unquestionably authorized to issue commissions to all officers whose election or appointment is provided by law and his commission under the great seal is the formal and proper evidence of the election or appointment.

The third question is whether the governor had a right to extend the jurisdiction of Marshal Heisler, who had been previously appointed marshal of police of Schuylkill county, so as to include Northumberland county ? But what had that to do with the claim of Clark B. Zimmerman, duly commissioned to be an officer of police in and for the townships of Mount Carmel and Coal, or his compensation as such officer in the county of Northumberland ? The invalidity of Mr. Heisler’s appointment did not affect the plaintiff. If the question had arisen on the legality of an arrest or other act done under the authority of Marshal Heisler, such a question might arise, but certainly not so as to destroy or injure Zimmerman’s claim to be paid for lawful services, as far as appeared under the law.

The fourth question is whether there was competent evidence that the governor had fixed the plaintiff’s compensation, as by the act he was empowered to do ? Upon this point it is enough to say, that a copy of the letter of the governor duly certified from the office of the secretary of the Commonwealth addressed to Marshal Heisler, dated May 1st 1867, informs; him that the police appointed under him were to receive compensation at the rate of seventy-five dollars per month. This was an official letter, and under the Act of 1823 the certified copy was clearly evidence. In the letter of May 21st 1868 from the governor to Marshal Heisler, informing him of the appointment of the plaintiff and others as special policemen for the townships of Coal and Mount Carmel, Northumberland county, it is said These officers will act under the same rules as now govern those appointed by me for Schuylkill county.” In addition to this, according to the testimony of Marshal Heisler, the governor gave to him or forwarded with the commission of the plaintiff and others, a letter now lost or mislaid, in which it was stated that the police officers in Northumberland county were to receive the same pay and be under the same regulations as those in Schuylkill county. The parol evidence of declarations by the governor was rejected by the learned judge, and when he spoke in his charge of the declarations of the governor accompanying the delivery of the commission he must in all fairness be taken to have referred to the lost letter, and not to evidence offered but which he had himself ruled out.

The determination of these questions against the plaintiff in error dispose, we think, of all the assignments.

Judgment affirmed.


author: Gordon, J.

text:
    Danville and Mahoning Poor District versus Montour County.
    1. Assumpsit will lie by one poor district against another for maintenance of a pauper belonging to the latter district.
    2. Where an insane pauper is committed to the State Asylum and the county whose court committed him pays the expenses of his maintenance there, it seems, that the county is subrogated to the rights of the trustees of the asylum against the district of the pauper’s settlement.
    3. An insane pauper was committed, to the State Asylum by a court and no certificate of his settlement or notice to the authorities of his settlement was given at the time of the commitment under the Act of April 14th 1845, sect. 11. Held, that the county by whose court the commitment was made could not recover from the pauper’s district the amount paid for his maintenance at the asylum.
    4. A poor district cannot be made liable for such maintenance unless upon notice; that it may come in and show that the pauper had some other settlement, &c.
    January 26th 1874.
    Before Agnew, C. J., Merour and Gordon, JJ. Sharswood, J., at Nisi Prius.
    Error to the Court of Common Pleas of Montour county: Of September Term 1873.
    This was an action of assumpsit brought by the county of Mon-tour against the Directors of the Poor of Danville and Mahoning, to recover the amount paid by the plaintiffs to the State Lunatic Asylum for the support, &c., of Joseph Harmon, an insane pauper.
    At. the May Sessions 1859, of the Court of Quarter Sessions of Montour county, Joseph Harmon was indicted for an assault and battery. On the 18th of May 1859, on the suggestion of the district attorney that Harmon was insane, a jury was impannelled to inquire of the truth of the suggestion.
    The jury found that Harmon was insane, and the court directed that he should be sent to the State Asylum at the expense of the county of Montour.
    The commitment was under the Act of April 14th 1845, sect. 11, Pamph. L. 441, 2 Br. Purd. 971, pi. 19,. which enacts that it shall be the duty of the court in all cases where they shall commit any person to the State Asylum to certify to the trustees the legal settlement of such person if he have one, and if he have no legal settlement to certify his place of residence at the time of the commitment, and the poor district so certified as the place of his- settlement or residence, shall be chargeable with the expenses of his care or maintenance, and removal to and from the Asylum, “ provided that the settlement or residence of any such person shall not be so certified until after due notice shall have been given to the constituted authorities having charge of the poor i'n the district to he charged thereby.” There was no certificate given at any time to the trustees of the asylum of the legal settlement of Harmon under the Act of 1845, nor notice to the defendants of their intention to give such certificate.
    By the Act of May 8th 1854, Pamph. L. 654, the borough of Danville and the township of Mahoning were erected into a poor district.
    The case was tried September 17th 1872, before Rockefeller, P. J. There was evidence that Harmon’s place of settlement was Danville, that he was insane and a pauper ; also that the county of' Montour had paid for his maintenance in the State Asylum.
    The defendants submitted these points, which were refused:—
    1. If the defendants are liable to the plaintiffs for the moneys paid by them to the trustees of the State Lunatic Hospital on account of Joseph Harmon, that liability can be enforced only by proceedings in the Court of Quarter Sessions of this county, and there can 'be no recovery for the same in this action.
    3. The defendants have not become liable to repay the plaintiff the moneys so paid by them to the trustees of the State Lunatic Hospital unless the Court of Quarter Sessions of Montour county have certified to the trustees of the hospital that the legal settlement of said Joseph Harmon, at the time of his commitment to the hospital, was in the Danville and Mahoning Poor District; and there is no evidence in this case of such certificate having been made.
    The verdict was for the plaintiff for $1130.22.
    The defendants took out a writ of error and amongst other errors, assigned the answers to their 1st and 3d points.

      E. H. Baldy (with whom was I. X. Grier), for plaintiffs 'in error.

      J. W. Comly (with whom was P. Leidy), for defendant in error.
   The opinioq of the court was delivered, February 9th 1874, by

Gordon, J.

This was an action of assumpsit brought by the county of Montour against the Poor District of Danville and Ma-honing. It appears from the evidence that one Joseph Harmon was indicted in the Quarter Sessions of that county for an assault and that he was acquitted on the ground of insanity. The court thereupon directed him to be transferred to the State Lunatic Hospital, to be there kept and maintained at the expense of the county. It is for the money thus expended for the support of this insane pauper in the Asylum, that this action is brought. The court upon committing the lunatic did not certify his last place of settlement or residence, neither did they notify the poor district of their intention so to do; but upon the trial, they permitted the plaintiff to prove that his last place of settlement was in the poor district of Mahoning and Danville. Two questions are now presented for our solution. (1.) Can this form of action be maintained by the county against this poor district ? (2.) Can any action or proceeding whatever for the money so paid for the maintenance of the lunatic, be had by the county against the district, until the place of settlement has been fixed by the adjudication of the Quarter Sessions under the Act of 1845 ? The plaintiff in error contends on the first proposition, that the only remedy for the county is in the Quarter Sessions by complaint as by one poor district against another under the 23d sect, of Act 13th June 1836. To this doctrine however we cannot assent. The cases wherein the Quarter Sessions have jurisdiction in civil cases are extraordinary and specific, forasmuch as they are foreign to its general jurisdiction. Without specific provision made by statute, it is certain that even in cases for the maintenance of paupers one district could not enforce payment against another by the process of this court. Unless therefore we had what we have not, an Act of Assembly authorizing the collection of this kind of claim of counties against townships through the Court of Quarter Sessions, the theory of the plaintiff in error must fail. Beside this we are inclined to think that in cases like the present, when the county pays the hospital for the maintenance of a lunatic, where the township is ultimately liable, the county is subrogated to the rights and remedies. But under the 13th sect, of the Act of 1845, the trustees of the hospital were authorized to collect such claims as debts of a like nature were then collectable ; this, of course, limited their remedies to the civil courts. We must conclude therefore that this action was well brought so far as the form of action and the forum are concerned. We may say further that a precedent is found in the case of Lower Augusta v. The County of Northumberland, 1 Wright 143, where the action was assumpsit by the county against the township for a claim similar to the one in hand.

The answer to the second question depends for its solution wholly upon the several Acts of Assembly in such case made and provided.

Under the Act of 1845, sect. 11th, the several poor districts are made liable for the support and maintenance of indigent insane persons who having been charged with any criminal offence are committed by either of the criminal courts to the hospital. But in order that the trustees may know certainly whatever is chargeable, the courts are to certify to such trustees the legal settlement of such insane person, or if she or he have no settlement, then the place of residence of such lunatic shall be chargeable with the expenses of his or her care and maintenance in and removal to and from the hospital. It will be seen that this process, by which the township or district is thus fixed with the charge, is necessary as well where the court commits one charged with a criminal offence as where the commitment is upon application under the 14th sect, of the Act of 1845. This is indeed an adjudication, and a con-elusive one, determining what local authorities are to pay for the maintenance of the lunatic : Franklin Tp. v. The Hospital, 6 Casey 522. But we cannot properly have an adjudication, without notice 'to the party to be charged — hence it is provided by the 11th sect., “ That the settlement or residence of any such person shall not be so certified until after due notice shall have been given to the constituted authority having charge of the poor in the district to be charged thereby. It is then the poor district so certified upon which the liability is cast and none other, and no district can be so certified and thus made liable until it has been duly notified. This is the more necessary as the district thus notified may come into court and show that some other district is the true place of settlement of ;the lunatic: Shenango v. Wayne, 10 Casey 184; or that he or she is not settled in such district, but is only a resident therein, in which case by the Act of 1854 the liability falls upon the county. So far then it does not appear that this district was responsible for the maintenance of Joseph Harmon in-the Lunatic (Asylum) Hospital. The counsel for the county, however, insists that the 4th sect, of the Act of April 8th 1861, does recognise such a charge without the notice required by the Act of 1845. But we cannot so see it. That act makes the county primarily liable to the trustees of the hospital with remedy over against the township, “ where by existing laws the township is liable for the support of such pauper.” We ask by what law, except that of 1845, is the township made liable for the maintenance of paupers in the State Lunatic Asylum ? But if by that law alone the charge is created, then in order to empower such charge against the poor district the conditions therein preserved must be complied with. It is not to be forgotten that the liability of these local authorities arises only from the statute, and it follows, that by the statute they must be enforced. We do not regard the Act of 1861 as doing anything more, in cases arising in the criminal courts, than affirming what had been previously decided to be the law in the case of Lower Augusta v. Northumberland Co. It was intended rather to extend the liability of the counties to all cases where pauper lunatics are sent to the hospital by any public authority, but it was not intended to alter the remedies prescribed by the former acts.

We hold, therefore, that as the record now stands, the poor district of Danville and Mahoning is not liable to the county of Mon-tour for moneys expended for the maintenance of Joseph Harmon in the State Lunatic Hospital, neither can it be so made liable until the proper steps are taken for that purpose under the Act of 1845. •

The court therefore erred in answering the. defendant’s third point in the negative. The first point was rightly answered; as the exceptions to evidence are disposed of in the disposition of the points; it is unnecessary for us to discuss them.

Judgment reversed.