Appeal, No. 15, Feb. T., 1961, from order of Court of Common Pleas of Luzerne County, May T., 1960, No. 834, in case of County of Luzerne v. Frank A. Goeckel, Treasurer of the City of Wilkes-Barre. Order affirmed.
Peter Paul Olszewski, City Solicitor, for City of Wilkes-Barre, appellant.
James T. Shea, County Solicitor, for County of Luzerne, appellee.
Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (Rhodes, P.j., absent).
[ 194 Pa. Super. Page 362]
This is an amicable action of mandamus to determine whether defendant, Frank A. Goeckel, Treasurer of the City of Wilkes-Barre, must refund the sum of $3,184.52 paid to the city by plaintiff, County of Luzerne. At a regular meeting of the Luzerne County Commissioners held on December 23, 1959 the commissioners voted to divide the liquid fuels tax fund, amounting to $22,928.26, among the municipalities and boroughs according to population and mileage. Pursuant to the action of the commissioners, a check in the sum of $3,184.52 was forwarded to the then treasurer of said city. The check was deposited in a bank to the credit of Frank A. Goeckel, City Treasurer, Liquid Fuels Tax Fund, Wilkes-Barre City Treasurer. On February 8, 1960 plaintiff advised defendant that said disbursement had been made contrary to the provisions of the Liquid Fuels Tax Act of 1931, May 21, P.L. 149, as amended, 72 PS § 2611a et seq., and demanded that defendant remit said sum to the Treasurer of Luzerne County. The defendant failed to comply and this amicable action was then filed.
The applicable portion of § 10 of the Liquid Fuels Tax Act of 1931, May 21, P.L. 149, as amended, 72 PS § 2611j, is as follows:
"All moneys received by the counties hereunder shall be deposited and maintained in a special fund designated as the 'County Liquid Fuels Tax Fund' into which no other moneys shall be deposited and commingled, except in any county which does not have sufficient money in such special fund to provide for payments designated in the current annual budget for payment from such special fund for the purposes of construction, reconstruction, maintenance and repair of county-owned roads, highways and bridges, property
[ 194 Pa. Super. Page 363]
damages, interest and principal payments on road or bridge bonds, or sinking fund charges for such bonds becoming due within the current calendar year. The county, for the purpose of such payments and such payments only, may borrow and place in such special fund moneys, not in excess of the liquid fuels tax funds to be received during the current calendar year, and all such loans shall be repaid from such special fund before the expiration of the current calendar year and not thereafter. Moneys so received and deposited shall be used only for the purpose of construction, reconstruction, maintenance, and repair of roads, highways and bridges, including the payment of property damage, now due or hereafter to become due, occasioned by or the relocation or construction of highways and bridges, and for the payment of interest and sinking fund charges on bonds issued or used for highways and bridge purposes, or on so much of any bonds as have been used for such purposes, and all payments made by any county, either directly or indirectly, prior to the first day of January, one thousand nine hundred and forty-six, for any or all such purposes are hereby validated: Provided, That no expenditures from the county liquid fuels tax fund shall be made by the county commissioners for new construction on roads or bridges without first having obtained the approval of the plans for such construction from the Department of Highways: And provided further, ther, That the county commissioners shall not allocate moneys from the ...