Wharton v. Borough of Birmingham

37 Pa. 371, 1861 Pa. LEXIS 13

• Court: Supreme Court of Pennsylvania
• Decided: January 7, 1861
• Status: Published

Opinion

The opinion of the court was delivered, by

Woodward, J.

This was an action of assumpsit to recover money paid under protest to the collector of borough taxes in discharge of a borough tax.

All our tax laws are founded on the principle, that every citizen shall have a right of appeal from assessments to the taxing power, before he pays his taxes. That is his remedy for an unfair or illegal assessment. If he waive his right of appeal, the collector has no power to relieve him. With a duplicate in his hands, charging the plaintiff with $15.10 of borough taxes for the year 1859, it was his duty to collect it out of her personal property, without regard to the manner of assessment. Her protest went for nothing, and gave her no right of action against the borough. It would become an intolerable grievance, if every taxpayer might sue the borough or county which taxes him, to recover bank moneys once regularly paid in pursuance of a regular assessment.

It is enough to say that an action of this sort will not lie, but if it would, what had the borough to do with the question that was mooted here, to wit, whether the plaintiff’s vacant lots were or were not unseated ? The tax laws of the borough have not been shown to us or alluded to, but I suppose they authorize a taxation for borough purposes on the same property and same valuation which the county taxes. If the plaintiff suffered the county to assess her lots as seated, without appealing and without returning them as unseated, it is too late for her to object that the borough assessed them also as seated. Her remedy was by appeal to the county commissioners at the proper time.

In the course she adopted, the question discussed was not raised, nor could it be, and all that was said about it either by court or counsel was a waste of words.

The judgment is affirmed.