been collected after his term of office had

expired, while the aggregate amount of the payments made to the school board during his term of office was $10,162.33, or the sum of $311.61 in excess of the amount collected on the duplicate of 1888 during said term. The duplicate of 1888 being unsettled at the expiration of his term of office, no notice of the fact was given to the sureties on the appellant's bond, but he was permitted to retain possession of the duplicate, and proceed with the collection of taxes, until on or about the 31st day of July, 1893, or more than four years and three months after the expiration of his term of office, and nearly five years from the date of signing the bond, this suit was brought against him and the sureties on his bond, to recover the amount claimed to be due on the said duplicate of 1888, and this without first having had the account settled by the borough auditors, as provided by the act of assembly of June 25, 1885, and without having certified the bond from the court of quarter sessions to the court of common pleas.

The opinion of the court below was as follows (Mehard, P. J.):

"The first question to be considered is the effect upon defendants' bond of the fact that said J. W. Stambaugh failed to give bond and to qualify as collector of taxes on or before the fourth day of the term of the court of quarter sessions next ensuing his election. It is contended on behalf of defendants that this fact rendered his office vacant, and that the bond thereafter given by Stambaugh and his sureties was void. This position is based on the provision of the act creating said office that upon such failure by the collector elect 'the said court shall declare his office vacant and appoint a suitable person, resident in the proper borough or township, to fill the same.' Act June 25, 1885 (P. L. 187). It is urged that the terms of this provision left to the court no discretion, but made it imperative to declare a vacancy, and to fill it. While we do not agree with this interpretation of the act, yet, if it be the true one, it does not follow that the office became ipso facto vacant upon Stambaugh's failure to qualify within the time prescribed, but only that the court neglected an imperative duty. The wording of the act does not necessarily imply that the office would become vacant upon such failure, and, unless it does, the act should not be so interpreted. The letter of the act makes the vacancy to occur when the court declares it, and this we think its true meaning. Moreover, the duplicate upon which the balance against J. W. Stambaugh arises was not delivered to him until after the bond in suit had been filed and approved. The bond was executed for the purpose of enabling him to assun.e the duties of his office. In consequence he entered upon those duties and collected the school duplicate for the year his term covered, as set forth in the verdict;

d

hence neither he nor his securities can now deny that he was regularly qualified as such collector. Egbert v. Darr, 3 Watts & S. 517; McClure v. Com., 80 Pa. St. 167; Cutler v. Dickinson, 8 Pick. 386; Bruce v. U. S., 17 How. 437; Bigelow, Estop. (3d Ed.) 308; Mayor, etc., of Hoboken v. Harrison, 30 N. J. Law, 73; Seiple v. Mayor, etc., 27 N. J. Law, 407.

"The next question is whether the omission of the school directors to deliver to J. W. Stambaugh their warrant, with the tax duplicate of 1888, relieves the defendants from liability on their bond for the balance owing the school district by Stambaugh on said duplicate. In Hilbish v. Hower, decided in 1868, it was said: "The authority of a collector of taxes to collect is his warrant. The duplicate is but a memorandum of the amount he is to collect from the parties therein named respectively. Without a warrant the collector becomes a trespasser as soon as he meddles with the property of a taxpayer.' 58 Pa. St. 94. This was said with reference to a school director who, in attempting to collect a county tax levied by the school board, had seized and sold personal property under a warrant not issued by the proper authority. The point of the decision was that the seizure was unlawful. If the expression quoted meant only that a collector of taxes could not enforce payment by seizure of the property or person of the debtor without a warrant, that is doubtless true as the law now stands. But if it meant that one who had been appointed collector, who had qualified and had received the tax duplicate from the proper source, for the purpose of collecting it, was not a collector de jure, so as to entitle him to demand and receive the taxes from the parties named in the duplicate, then that resulted from the acts of assembly in force at that time, and in that respect we apprehend the law has been changed by the act of June 25, 1885. In 1868 a collector of school taxes derived his authority from the school board. It might well be said that one did not become collector when so designated by the school board, for the board could change its mind, and designate another, at any time before its intention was executed by delivery of the duplicate and warrant. If the board, after appointing a collector, had refused to give him a warrant, he would have been without a remedy; for the mere appointment, or the appointment and giving of a bond, neither conducted him into the office nor gave him such a right to it as could be enforced by compelling a delivery of the duplicate and warrant. But the case is different under the act of 1885. Under that act the collector of taxes is not appointed by a municipal or quasi-municipal board, but he is elected to the office by the people of the district. His right to the office is perfect, and he becomes collector of taxes as soon as he gives bond approved by the court and takes

the oath of office, if the time has arrived when his term was to commence. When so qualified, his right is a substantial one, which can be enforced by compelling a delivery to him of tax duplicate and warrant, after the 1st day of August following his election. See section 4, Act 1885 (P. L. 187). Such a one, then, being de jure collector, when lawfully possessed of the duplicate for collection, would, without a warrant, have authority to demand, receive, and receipt for the taxes embraced in the duplicate, although he could not enforce his demand by a seizure of property or person. What he would so receive, he would receive by virtue of his office, and it would be covered by his bond.

"In Cannell v. Crawford Co., 59 Pa. St. 196, the facts were as follows: The commissioners of Crawford county appointed one B. S. Burgess collector of county, state, and other taxes for Titusville in 1865, and issued to him the tax duplicate and warrant. Burgess did not give a bond, but nevertheless entered on the duties of his office, and he, and his son under him, collected thirtyeight hundred dollars of the taxes. After the appointment of Burgess, the commissioners appointed Charles Cannell collector of the same duplicate, and he gave bond with sureties. The bond recited that Cannell had received the duplicate and warrant, and the condition was that Cannell should faithfully collect the said tax according to the requirements of the warrant, and within six weeks from its date pay to the county treasurer all sums he should have received, except abatements and allowances, and within three months from his corrected duplicate pay the treasurer the whole amount of taxes charged in the duplicate, except such sums as he should be exonerated from. In some way Cannell became possessed of the tax duplicate, but the commissioners never issued to him their warrant. The taxes collected by Burgess were not paid to the county, and the question in the case was whether Cannell's bond was security therefor. The decision was that it was not. The reasoning of the decision was that the bond recited that a warrant had been given to Cannell; that the recital was false; that it was a material recital, for without a warrant Cannell had no official authority to demand the taxes, or to enforce their payment by seizure of person or property; that the duplicate and a warrant had been delivered to Burgess, and had never been revoked; that by virtue thereof Burgess had collected the taxes in question; and that it was immaterial that Burgess had not given a bond. for the commissioners had the power to appoint a collector without requiring a bond, under Act Feb. 28, 1835 (59 Pa. St. 202). In the case at bar, the bond contains no such recital. Its condition is: "That if the said J. W. Stambaugh shall and do well and truly collect and pay over or account for according to

law the whole amount of taxes charged and assessed in the duplicate which shall be delivered to him, and faithfully discharge the duties appertaining to the office of collector of taxes according to law, then this obligation to be void.' The duplicate for school taxes was delivered to Stambaugh as soon as he had qualified to receive it, by giving bond and taking the oath of office. The school board, through oversight, failed to accompany the duplicate with their warrant. Mr. Stambaugh did not then or thereafter ask for a warrant. Was it his duty to do so? Under the law as it was prior to 1885, neither a collector nor his sureties were bound to see that a warrant was given with the duplicate. Cannell v. Crawford Co., 59 Pa. St. 202. The reason of this was that, as we have seen, prior to the act of 1885, collectors derived their authority solely from the board that appointed them, and did not become collectors de jure until the duplicate and warrant were delivered to them. But under the act of 1885 those elected become collectors de jure as soon as they have qualified, and the time arrives for their term to begin as fixed by law. Their office is conferred immediately by the people, and when they have accepted it the interests of the people involved in a due and faithful collection of the taxes are intrusted to them, and they are in duty bound to care for those interests. Hence it was as much the duty of Mr. Stambaugh to know the importance of a warrant, and to demand it, as it was of the school board to issue one with the duplicate. We have seen that without a warrant he had authority to demand, receive, and receipt for the taxes embraced in the duplicate given him for collection. If he proceeded to collect those taxes without a warrant, and actually did collect them, so that the balance against him is for taxes received by him, we are unable to see how either he or his sureties can object that he had no warrant. If he had none, it was in part owing to his failure to demand one-a breach of his official duty. Neither does it appear that he was in any way hindered or delayed in collecting the taxes through lack of a warrant.

"This question was involved in Com. v. Titman, 148 Pa. St. 168, 23 Atl. 1120. It is contended on behalf of defendants that the decisive point in that case was the settlement made by the school board. We cannot so regard it. While it was held that the settlement was conclusive as to the amount Titman owed, it was not held that the settlement determined Titman's liability on his bond. The school board had no jurisdiction to determine that question, nor could auditors have done so. Com. v. Reitzel, 9 Watts & S. 109. What was there decided was that, where a judgment was entered against a collector and his sureties on his collector's bond for the unpaid balance on the duplicate given him for collection, the fact that no warrant was issued to the col

lector did not raise such an equity as would require the court to open the judgment. The case could not have been so decided if the delivery of a warrant be essential to the obligation of the bondsmen to make good such a balance. The refusal to open the judgment, if that were the law, would have been a clear abuse of discretion, for its effect would have been to make Titman's sureties liable for money they did not justly owe. We therefore conclude that the lack of a warrant is not a valid defense in this case.

"It is further contended that the bond would be security for only so much as J. W. Stambaugh collected during his term of office. It is true the bond covers only the official conduct of the collector, and the sureties would not be holden for a liability which attached subsequent to the expiration of his term. Com. v. West, 1 Rawle, 29; Manufacturers', etc., Co. v. Odd Fellows' Hall Ass'n, 48 Pa. St. 446. But section 5 of the act of 1885 makes collectors under it subject to the same liabilities and penalties for neglect or violation of the duties of their office as were collectors theretofore. P. L. 1885, p. 188. One of those liabilities was to be charged with the whole amount of the duplicate remaining unpaid and unexonerated after three months from the time the collector received the corrected duplicate. Act 1834, § 49 (P. L. 518; Purd. Dig. 1598). That was a liability which attached during Stambaugh's term, and one which was covered by the express condition of his bond.

"Should the payments made by J. W. Stambaugh on the school duplicate of 1887 after August 28, 1888, be credited on the duplicate of 1S88? Those payments were expressly appropriated by Stambaugh to the duplicate of 1887. They were made by checks drawn on a general fund. It is impossible to say that any of the money collected on the duplicate of 1888 was used in paying the balance owing on the duplicate of 1887, hence this question must be answered in the negative. And now it is considered, ordered, and adjudged that judgment be awarded, on the facts found by the jury, in favor of the plaintiff for the penalty in defendants' bond, to wit, sixty thousand dollars, and that damages be assessed against defendants and in favor of the school district of Sharon in the sum of nineteen hundred and sixty-one dollars and forty-two cents ($1,961.42) and costs "

A. W. Williams, for appellants. Miller & Gordon and J. P. Whitla, for appellee.

PER CURIAM. In this case a special verdict embodying all the material facts was rendered by the jury. On that the learned judge entered judgment in favor of the plaintiff. In doing so he fully considered and correctly disposed of all the questions presented by the facts established by the special verdict. In his opinion, sent up with

the record, will be found all that can be profitably said on the questions involved, and on it we affirm the judgment. Judgment affirmed.

In re BRANCH et al.
Appeal of BECK.

(Supreme Court of Pennsylvania. Oct. 22, 1894.)

COURTS

INTOXICATING LIQUORS-APPLICATION
FOR LICENSE-APPEAL.

1. The decision of the majority of the court of quarter sessions is the decision of the court, though the president judge dissents.

2. Neither the testimony, nor the opinion of the court, is part of the record in proceedings for a tavern license in the court of quarter sessions.

3. On appeal, the action of the court of quarter sessions in granting a tavern license cannot be reviewed on the merits.

4. Where the bond filed with an application for a tavern license is adjudged insufficient, a new bond may be filed, and the license granted. Appeal from court of quarter sessions, Forest county.

L. E. Branch and J. H. Powers applied for a tavern license. The license was granted, and J. E. Beck excepted, and appeals. Affirmed.

George F. Whitmer, for appellant. Wilbur & Schnur, for appellees.

GREEN, J. In this case. a majority of the judges of the court below granted the license in question, and their action must be considered as the action of the court. The president judge dissented from the decision of the associates, as was his undoubted right, but that circumstance does not affect the validity of their action nor its binding effect. There is nothing before us but the record, and that is in strict conformity with the statutory requirements. In Carlson's License, 127 Pa. St. 330, 18 Atl. 8, we held that "neither the testimony nor the opinion of the court forms any part of" the record, and also that upon certiorari we could only review what appears upon the face of the record. In Collarn's l'etition, 134 Pa. St. 551, 19 Atl. 755, we held that we could not review proceedings in license cases upon the merits, and that all we could do was to see that the license court has proceeded according to law. In Berg's Petition, 139 Pa. St. 354, 21 Atl. 77, we held that "the appeal is a substitute for a certiorari, and brings up nothing but the record. That shows the petition and the refusal of the court below to grant the license. The reasons for such refusal are not material. They do not properly form any part of the record." Following these precedents, we can take no account of any averments which relate to the merits of this case. They are not before us, and we cannot try them.

The record, however, does show that the bond originally filed was not accepted, but that another bond, filed on the day the

license was granted, was accepted. It is contended by the appellant that this action was erroneous, because the law makes no provision for amendments to bonds, additional sureties, or additional bonds. To that kind of an argument it is sufficient reply to say that the law makes no provision against the filing of a new bond where, for any reason, the one filed with the petition was deemed and found insufficient. The record does not inform us as to the occasion of the insufficiency of the bond first filed. Presumably and probably, the judges may not have been satisfied as to the pecuniary sufficiency of the bail, and therefore required a bond with bondsmen who were more satisfactory in that regard. The contention that a court may not require a sufficient bond in a proceeding, no matter of what kind, wherein bonds or recognizances are necessary to be filed, and those filed or offered are insufficient, is without reason. The law abounds with proceedings of many different kinds in which bonds or recognizances are required to be filed; and in all of them, as well after as before they have been filed or taken, exception to the sufficiency of the bail may be taken, the question of sufficiency may be heard upon testimony and decided, and, if adjudged adversely, the bail may be perfected by new bonds or recognizances. Such proceedings are of constant occurrence, and the practice is perfectly familiar. We know of no reason why the same action cannot be had in bonds to be given in license cases. Technically, the license law was strictly complied with in this case. The petition contained all the statutory facts required to appear therein, including the names of the sureties in the bond. The bond signed by the sureties named was duly filed, and in all other respects the provisions of the law were carefully observed. When the bond was submitted for approval, it was found insufficient for some reason, and leave was granted to file a new bond, which was done at once, and the sureties approved, and then the license was granted. In all this we see no error.

The order of the court below is affirmed, and appeal dismissed, at the cost of the appellant.

SCHWARTZ et al. v. KEYSTONE OIL CO. et al.

(Supreme Court of Pennsylvania. Oct. 22, 1894.)

RECEIVERS-COMPENSATION-ACCOUNTS - CREDIT

ORS.

1. Where, after distribution by a receiver of the amount admitted to be in his hands, his accounts are surcharged on appeal, he may be allowed additional compensation and counsel fees for services in the distribution of such fund.

2. Where the accounts of a receiver are surcharged on appeal by a creditor, such fund, after payment of cost of appeal and counsel fees, belongs to all the creditors, and not merely to the creditor who appeals.

3. Where, after allowances are fixed and distribution made, the accounts of a receiver are

surcharged on appeal, on distribution of such fund, counsel fees in the original suit should not be allowed, as they have no connection with such fund.

Appeal from court of common pleas, Venango county.

Action by William Schwartz and others against the Keystone Oil Company and others for the appointment of a receiver.

ceiver was appointed, and from a decree distributing a balance secured by surcharge of his accounts the Commercial Bank and others appeal. Reversed.

Roger Sherman, for appellants. C. Heydrick, J. H. Osmer, Geo. S. Criswell, and Wm. McNair, for appellees.

WILLIAMS, J. This appeal is from a decree distributing the sum of $13,959.16, secured by a surcharge of the receiver of the Keystone Oil Company. The surcharge was made by the decree of this court upon the appeal of the same parties now before us as appellants from a decree confirming the account of the receiver. The case is reported in 153 Pa. St. 283, 25 Atl. 1018. The sum which the account admitted to be in the hands of the receiver was distributed by the same auditor to whom the present fund was referred. He ascertained at that time the names of the creditors of the Keystone Oil Company, and the sums due them respectively; and nothing remained to be done at this time but to adjust the amount of the charges to be deducted from the fund, and distribute the remainder pro rata to some or all of the creditors in the list already settled by the action of the auditor and the court below. This was neither difficult nor laborious. Charges against the fund were presented by the receiver and by the appellants. The auditor adjusted the former and rejected the latter. He then made distribution among the creditors pro rata. The correctness of his rulings on each of these subjects is challenged by the appellants, and we will consider the assignments of error in the order of the subjects just stated.

The accountant claimed an allowance for services in connection with the fund distributed under the decree of the court below, confirming the report of the auditor, and directing payment in accordance therewith, made on the 3d August, 1891. That fund was paid over in May and June, 1892. The compensation allowed the receiver upon his account included the disbursement as well as the collection of the fund covered by it. That compensation was fixed by the decree of this court, and cannot be increased by the auditer. So much of his claim should have been rejected. For services in connection with this fund he may be allowed compensation. This, the auditor estimates, may require 10 days' time. and, at the rate per diem which he allows, would entitle the receiver to the sum of $200.

The allowance for counsel fees and professional aid asked for and allowed is $70. The