#### Marshall *v.*Uniontown Borough School District, Appellant.

*Taxes*— Tax *collectors*— Commissions—Officers—-De *facto and de jure officers.*

The fact that a school board has paid commissions for collecting taxes to a de facto officer will not preclude the de jure officer from collecting from the school board the commissions on such taxes which he would have collected had. he been inducted into the office at the time he was entitled thereto.

Argued June 3, 1918.

Appeal, No. 152, Jan. T., 1917, by defendant, from judgment of C. P. Fayette Co., Dec. T., 1915, No. 207, on verdict for plaintiff, in case of J. Searight Marshall v. The School District of the Borough of Uniontown.

Before Brown, C. J., Moschzisker, Frazer, Walling and Simpson, JJ.

Affirmed.

Assumpsit for commissions on taxes, collected by a de facto collector. Before Reppert, J.

From the record it appeared that at the election held Nov. 4, 1913, Charles T. Cramer and J. Searight Marshall were opposing candidates for the office of tax collector in the Borough of Uniontown, Fayette County, this State. The election officers returned an apparent majority for Cramer and the return judges certified his election.

On Dec. 3, 1913, proceedings to contest this election began in the Court of Quarter Sessions of Fayette County.

On March 2, 1914, the contest not having terminated, Cramer took the oath of office and gave bond.

On June 2,1914, Marshall served notice of the pending contest on the Uniontown school board.

On June 26, 1914, Cramer received the school tax duplicate for the year 1914. The board fixed the collector’s commission at three per cent.

On July 28, 1914, the Court of Quarter Sessions de*225eided the contest in favor of Cramer. August 18, 1914, Marshall appealed to the Supreme Court.

July 17, 1918:

On Feb. 22,1915, the Supreme Court reversed the judgment of the Court of Quarter Sessions and declared Marshall elected.

Prior to February 22,1915, Cramer had collected and paid over to the school board taxes to the amount of $73,571.50, upon which the board paid Cramer three per cent, commission, or $2,207.14.

On March 4,1915, Marshall took the oath of office and gave bond. He then made demand upon the school district for the commission paid to Cramer.

Marshall brought no action against Cramer, but, October 1, 1915, sued the school district to recover from it the commission paid to Cramer on the taxes collected by him before he was ousted, $2,207.14, with interest from October 1, 1914. The case was heard October 24, 1916, before Judge Reppert and a jury. The court gave binding instructions for the plaintiff. Motions for judgment non obstante veredicto and for a new trial were filed, but were overruled by the court and judgment for the plaintiff directed for the sum demanded, with interest. From this judgment defendant appealed to this court.

The court directed a verdict for plaintiff for $2,480.45, being the full amount of the claim with interest, and entered judgment on the verdict. Defendant appealed.

*Error assigned*was in directing a verdict for plaintiff.

*IT. L. Robinson,*with him *D. W. McDonald*and *Linn V. Phillips,*for appellant.

*II. 8. Dumbmtld,*for appellee, was not heard.

Per Curiam,

Plaintiff was entitled to: the affirmance of his point asking that a verdict be directed in his favor: Rink v. Philadelphia, 15 W. N. C. 345; Jones v. Dusman, 246 Pa. 513. The judgment is, therefore, affirmed.