In re Auctioneers.

were commissioned by the Governor, held that the Act of 1873 repealed all previous legislation, including local laws, as to the amount and manner of payment to be exacted for the privilege of engaging in the auctioneering business, and that thereafter licenses to auctioneers must be issued by the County Treasurer and not by the Governor.

It is apparent that, notwithstanding there was a conflict of opinion between Attorney General Palmer and Attorney General Dimmick and Deputy Attorney General Gilbert, the opinions of the latter have been acquiesced in and are consistent with the decision of Judge Endlich above referred to. We also acquiesce in the opinion of Attorney General Dimmick and the decision of Judge Endlich, and advise you that the Act of 1873 repealed the Act of April 9, 1859, in so far as the latter Act authorized the Governor to issue commissions to auctioneers.

Very truly yours,

WM. M. HARGEST,

Deputy Attorney General.

Lunacy

Commonwealth ex rel v. Neff.

Commonwealth- -Charges for Support-Estate-Liability-Act of June 1, 1915.

The Commonwealth's claim against the estate of an alleged indigent lunatic unler the Act of June 1, 1915, was refused where it appeared that the Commonwealth failed to present its bill to the administrator or committee at the time the estate was audited in court and distribution ordered. Neither were the distributees held liable, as the answer to the petition denied any indebtedness, but averred that all bills rendered for keeping the lunatic had been paid to the Hospital for the Insane, and these averments had not been refuted.

Under the Act of June 1, 1915, the estate of any person confined in a hospital and maintained in whole or in part by the Commonwealth would be liable to reimburse the Commonwealth for the expense of his maintenance. And so is the father, mother, husband or wife, child or chlidren liable to the support of indigent parents and children, although the family relations may not exist at the time. But the liability of these is only secondary to the liability of the estate of the person maintained.

Rule to Show Cause. No. 1132 January Term, 1914. C. P. Allegheny.

Brown, Stewart & Bostwick, for petitioners.

H. D. Montgomery, for Commonwealth.

Geo. W. Coles, special attorney for Attorney General.

EVANS, J., Nov. 11th, 1919.-Alexander C. Neff was declared a lunatic at the above number and term, and A. S. Neff and Lloyd L. Glotfelty were adpointed his committee and he was confined in the Allegheny County Hospital for the Insane at Woodville, Penna. On September 4, 1919, the Commonwealth of Pennsylvania presented its petition to this court alleging that Alexander C. Neff had been continuously confined at Woodville from November 30, 1909 to June 15, 1915 as an indigent insane patient; that between those two dates the Commonwealth of Pennsylvania had paid to the Hospital for his maintenance and support the sum of $577.15; that Alexander C. Neff has since deceased, and that his mother is Rose B. Neff residing in Wilkinsburg, Pennsylvania; that said Rose B. Neff is possessed of real estate valued at $8,000.00 and personal estate of $8.000.00, prays for a rule on Rose B. Neff to show cause why she has not paid the bill to the Commonwealth. The answer of Rose B. Neff alleges that it is not true that Alexander C. Neff was confined in the Woodville Hospital as an indigent insane patient; that all the time that he was confined in said hospital he had a substantial

Commonwealth ex rel. v Neff.

estate in the hands of his committee and that they paid regularly, to the Poor Directors of Allegheny County all bills rendered them for his maintenance; that said Alexander C. Neff died on June 15, 1915; that his committee filed their account on September 24, 1915, showing a balance in their hands of $4,287.40; that their account was confirmed absolutely and they paid the money to the administrator of the deceased; that on July 7, 1916, the administrator of said decedent filed his account in the Orphans Court showing the balance for distribution of $3,996.02.

This application by the Commonwealth is made under the Act of June 1, 1915, Section one of which provides:

"That whenever any person is maintained as an inmate of any hospital, home, sanitorium, or other institution of the Commonwealth, in whole or in part at the expense of the Commonwealth, the property or estate of such person shall be liable for such maintenance, to be paid or recovered as hereinafter provided,"

and Section three provides:

"The husband, wife, father, mother, child, or children of any person who is an inmate of any asylum, hospital, home, or other institution, maintained in whole or in part by the Commonwealth of Pennsylvania, and who is legally able to do so, shall be liable to pay for the maintenance of any such person, as hereinafter provided."

Undoubtedly the provisions of section 1 of this act are simply declaratory of what the law was prior to its passage. The estate of any person confined in a hospital and maintained in whole or in part by the Commonwealth would be liable to reimburse the Commonwealth for the expense of his maintenance. And so is the father, mother, husband or wife, child or children liable to the support of indigent parents and children, although the family relations may not exist at the time. But the liability of these is only secondary to the liability of the estate of the person maintained, and I take it that that was the fair meaning of this act, that the estate of the lunatic should be liable, and if his estate was insufficient to pay the expense of his maintenance in the hospital, then the father and mother, wife or husband or children would be liable for his maintenance, and under this record as presented to us, we must accept as fact the allegations of the answer to this rule. The estate of Alexander C. Neff was abundant to pay the expense of his maintenance and as alleged in this bill, did pay the bills that were rendered to the committee.

If the Commonwealth neglected to collect its bill against the estate of Alexander C. Neff, that is no reason why the mother should pay for the neglect of the Commonwealth. Something was said at the argument of the case that Mrs. Neff was the sole distributee of the estate of Alexander C. Neff. This is not in the case. The claim of the Commonwealth is not based on the fact that she may have received the amount of his estate. There is no such allegation, and even if it had been alleged we can see no reason why that should change the situation.

If Mrs. Neff is liable, she is liable whether she receives that estate or not. If the lunatic had died leaving children, the Commonwealth would have made the claim against the mother just as readily as they can now. If the lunatic had made a will before he became insane, an entire stranger might have taken his estate and the mother be called upon to pay his expenses, solely through the neglect of the Commonwealth to present its claim in time.

And now, November, 1919, rule to show cause in the above entitled case, having come on for argument, in consideration thereof the rule is discharged.

Neither the Act of 1901, P. L. 364, nor the Act of April 27, 1909, P. L. 194, requires notice to be given to the registered owner of real estate of the party in possession, either when the original claim or any suggestion and averment of non-payment is filed, so that a school tax filed against a predecessor of defendant in title and revived without notice to the subsequent vendees was held to be a valid, subsisting and enforcible lien. By the Act of 1909, the claimant is given the option to revive and continue the lien by filing of record a suggestion of non-payment and averment of defaul, instead of pursuing the method provided by the Act of 1901.

Taxes and tax liens are of statutory origin, hence in providing for the filing of liens the legislature may declare, not only the time within which and the place where a public record shall be made of the fact of non-payment, and the duration of the lien, but may also prescribe the course to be pursued to preserve the lien and enforce payment. Limitations on the duration of tax liens are of grace; hence it is clearly within the power of the legislature to prescribe a method for their preservation.

Case Stated. No. 1610 October Term, 1919. C. P. Allegheny County.

G. R. Speer, for plaintiff.

A. C. Christiansen, for defendant.

Before COHEN and CARPENTER, JJ.

CARPENTER, J., Dec. 10, 1919.-The material facts agreed upon are as follows; though not in the order here stated:

(1) On and prior to March 22, 1907, John Dupont was the owner of an improved lot 24x100 feet in the Borough of McKees Rocks, and on that date sold and conveyed said premises to James Reid who on September 1, 1911, sold and conveyed same to Louis C. Lenz, who on January 9, 1919 sold and conveyed same to William F. Waltz et ux., who on September 4, 1919, sold and conveyed same to Santa Romana, the present owner.

(2) Under date, December 31, 1910, the Borough caused a lien to be entered of record against said premises in the names of said James Reid and John Dupont, for unpaid School Taxes for the year 1910, thereby creating a valid lien of record against said property which, without further action continued for a period of five years, to wit, until December 31, 1915.

(3) On December 31, 1915, a suggestion of non-payment and averment of default was filed of record by the solicitor of the School District against the names of James Reid and John Dupont but not against Louis C. Lenz, the then owner of the premises. The number of said Suggestion-averment was entered on the margin of the locality index opposite the original tax lien, and upon the judgment index against said John Dupont and James Reid.

(4) The person or persons in whose name the property was registered according to law and the person or persons in open, peaceable and notorious possession of the property as owner or owners and as reputed owners were the persons herein above named, no other person having any interest therein or title thereto between the dates named.

(5) Neither the said James Reid, who acquired title to and possession of said premises in March 1907, nor any of the subsequent purchasers had any actual knowledge of the existence of said tax lien, and had only such reputed knowledge or constructive notice thereof as the entries recited implied, all being otherwise innocent third parties who paid value for said premises.

In 1901 the legislature enacted a general tax law (P. I. 364) the first section of which defines the meaning of certain words used throughout the

McKees Rocks School District v Reid et al.

Act. Section 10 fixes the time within which liens must be filed, the time within which a scire facias to revive and continue the lien must issue, and the time within which judgment must be entered. This section also provides for the revival of the judgment of the scire facias. The Act contains fortytwo sections, forty-one of which set out in detail numerous provisions for the levy and assessment of taxes and municipal improvements, the filing of liens and the preservation and collection thereof by legal process, and one section cites numerous acts on repeal.

By Act approved April 27, 1909, P. L. 194, Section 10 of the Act of 1901 was amended and as amended provides that the "claimant" may at his option revive and continue any tax claim * * * by filing of record in the case a suggestion of non-payment and averment of default at any time within five years of the filing of the claim, or of the issuing of any writ of scire facias thereon, or of the last judgment obtained thereon, or within five years of filing a prior suggestion of non-payment and averment of default.

The form of the suggestion and averment is prescribed and, finally, provision is made for the enforcement of payment by writ of scire facias, the recovery of judgment and writ of levari facias. There is no provision in cither act requiring notice to be given to the registered owner of the party in possession, either when the original claim or any suggestion and averment of non-payment, is filed. The closing words of the Act of 1909 are "and shall proceed to recover a verdict and judgment as herein before provided, subject to the right of the owner to raise any defense arising since the last judgment."

This provision has reference to the scire facias required, before issuing the writ of levari facias. The Acts of 1911, P. L. 1076, and 1915, P. L. 599, make no change affecting the question presently involved. The Act of 1913, P. L. 285, provides for the return of taxes on seated lands and for the sale of such land for taxes.

Act No. 327, approved July 9, 1919, is entitled, "an act to validate tax liens filed since the 21st day of May, 1913, under provisions of the Act of June 4, 1901, * * and providing for their collection." The Act itself provides that:

*

* * *

"all tax liens and claims heretofore filed under and by virtue of an act approved the fourth day of June One Thousand Nine Hundred and One (Pamphlet Laws three hundred and sixty-four) and its several supplements and amendments and any tax liens filed within six months after the approval of this Act in accordance with the provisions of said act, be and the same are hereby validated and made effectual, as if the Act of May twenty-first One Thousand Nine Hundred and Thirteen (Pamphlet Laws two hundred and eighty-five) ** and the supplements thereto had not been passed and all such liens and claims shall be collected in the manner provided in said Act of June fourth One Thousand Nine Hundred and One, and with like force and effect as if said Act of May twenty-first, One Thousand Nine Hundred and Thirteen had not been passed: Provided, the tax liens shall in other respects be legal and valid."

*

Whatever may have been the purpose, and whatever the effect, of this Act, the lien here involved was filed prior to 1913 under and pursuant to the provisions of the Act of 1901 and was kept alive in the manner authorized by the Act of 1909.

The Act of 1901 declares who is meant by "claimant" and what must be done to obtain and preserve his lien. Section 9 refers to claims filed to use; Section 10 to time of filing and to proceedings to preserve and enforce payment of claim, and Section 11 to the facts that must be set forth in the claim. Section 13 provides for the intervention of parties having any interest in the property and Section 18 requires the Sheriff to add to the writ

McKees Rocks School District v Reid et al.

of scire facias, as parties defendant, all persons who may be found in possession, other than those named in the writ, and declares what shall constitute service, etc.

The preamble to the Act of 1909 states the reason for, and the purpose of, the amendment to the Act of 1901. The claimant is given the option, to revive and continue the lien by filing of record a suggestion of non-payment and averment of default, instead of pursuing the method provided by the Act of 1901.

Taxes and tax liens are of statutory origin, hence in providing for the filing of liens the legislature may declare, not only the time within which and the place where a public record shall be made of the fact of non-payment, and the duration of the lien, but may also prescribe the course to be pursued to preserve the lien and enforce payment. Limitations on the duration of tax liens are of grace; hence it is clearly within the power of the legislature to prescribe a method for their preservation. Having specified in unambiguous language, the time within which such liens must be filed, how long they shall continue, and how they may be kept alive; it is not in the power of the Court to add to, take from, or nullify, the statutory requirements.

Counsel have not requested that judgment for a liquidated sum be entered for plaintiff or that judgment be entered for defendant but have asked us to determine whether the tax lien is or is not a valid, subsisting and enforceable lien against the property described in the Case Stated, with the same force and effect as if the question were before the Court on a rule to show cause why said lien should not be stricken from the record, and we therefore have discussed and decided the question as though such rule had been entered.

ORDER.

And now, December 10, 1919, the Court being of opinion that the tax lien involved is a valid, subsisting and enforceable lien, the rule to show cause is discharged.