The opinion of the court was delivered, January 9th 1872, by
Thompson, C. J.I was greatly surprised at finding the decision in the appeal of the City of Pittsburg, 4 Wright 455, cited a s' authority in a case entirely outside of its circumstances. That decision was rested upon and under the provisions of an Act of Assembly of the 18th April 1857, entitled an act “ concerning the setting of curbstones and the paving of side-walks in the city of Pittsburg: Pamph. L. 1857, p. 240. To that act, with a simple reference to a section or two in the Act of 1858, on the same subject, considered as forming a system on the subject-matter of the act, does our opinion apply. It had no reference or express bearing on any of the enactments for grading and paving streets. The decision was predicated of the 8th section of the Act of 1857, which provides “ that the lien of such claim, (paving and grading side-walks), shall not be divested by any private or judicial sale, but shall remain a lien on the premises.” Paving and curbing side-walks was the-theme of the discussion at bar, and consequently was so the opinion subsequently delivered ; and if it has been held for anything else, it was a mistake, which we think even a cursory reading of it might have prevented.
I think we might complain without injustice, that the report of the auditor and the opinion of the court below are so abstract, *145that it is not easy to comprehend the views of either on the great question of the case, and with which they ought to have been especially familiar, being their local laws. We must take them as we find them, however.
The difference between the learned auditor and the court below was, whether the judicial sale of the premises in question on mortgage judgments divested the municipal liens on the premises entered subsequently. The auditor held that it did, and applied the money in court to these liens in preference to other prior liens. The court set aside the report of the auditor so far as this was concerned, and it is said on the authority of the case in 4 Wright, supra.
We must decide upon this contrariety of opinion by the provisions of the Act of 1864 exclusively, for on this point its provisions supersede all others, being the last, and also expressly providing a repeal of inconsistent acts and parts of acts.
The material provision in regard to the question in hand is contained in section 19th of the act, and is as follows.: “ The assessments authorized by this act shall be liens upon the properties assessed from the commencement of the improvements for which they were made, and shall, if filed within six months after completion of said improvements, continue liens for five years, and be revived by scire facias, as other liens. If on any sheriff’s sale, or other judicial sale, enough be not realized to pay off the lien, it shall continue to be a lien until the whole amount with the costs be paid in full.”
This is explicit language, and is in accordance with the practice, excepting in special cases in this Commonwealth. Generally judicial sales divest all liens. But the legislature in its wisdom thought proper to enact at least the equivalent of the provision contained in the Act of 1824, “ that the assessment should be and remain a lien until paid and satisfied,” by the clause quoted above, “ that if on any judicial sale enough was not realized to pay off the lien, it shall continue to be a lien until the whole amount shall be paid with costs.” This provision corresponds with our decision in 1861 upon the Act of 1827: Allegheny City’s Appeal, Tassey’s Estate, 5 Wright 60. We held that the words quoted, meant, that if enough to pay off the liens were not realized by the sale, the unextinguished balance continued- to be a lien. I have no doubt but this decision led to the terms used in the clause in the Act of 1864, which we have quoted. Neither of these acts mean that other and prior liens being first paid, and the balance being insufficient to pay the municipal claims, they will remain a lien. The words of the Act of 1864, like its predecessor, are too explicit for this, and plainly mean that if on any judicial sale enough be not raised to pay off the assessment-lien, not prior and other liens, then it, the balance, shall remain a lien. This accords with the decision in 5 Wright, supra.
*146This is complained of, and it does seem to militate against the maxim, prior in tempore, potior est in jure. But it ought to be remembered that these provisions are parcel of a system devised for the collection of taxes and assessments, in which the public is interested. Tax laws often disregard individual equities in favor of the public demands. It is a provision also, to relieve the public from contests about priority in distribution, which often vex the citizen and perplex the courts. The preference here noticed is but another form from that found in 4 Wright supra, and is regarded, if I comprehend the cases of Northern Liberties v. Swain, 1 Harris 113, and Perry v. Brinton, Id. 202, as all right under the Act of 1824.
It was argued, with much plausibility, that the words of the 19th section of the act, that the assessments mentioned “ shall be liens from the commencement of the improvements,” ex vi termini, imports that those prior in date must have priority in the distribution of the proceeds on a sale of the property. That result would follow under the general law of distribution. But here is a special provision, as quoted above, which controls the general law in its application to this particular case. It means something, and if that meaning be properly deduced from the words used, and not obnoxious to constitutional objections, it must have effect. We think that the meaning is what we have already assigned to the words, and that the provision from which a different meaning is sought to be deduced by the argument was introduced simply to define the duration of the lien. No doubt if not revived within five years the lien would be gone. That the public must look to. But it is solely a question of distribution we decide here.
Without entering upon a calculation to ascertain how this view would leave the claims of Herlehy & Jóhnston, supposing any mon ey might remain after satisfying the municipal claims, we cannot see on what grounds the á priori objection raised by the auditor that they had no liens at all was disposed of. These liens were “ for plumber’s work done and materials furnished within six months past, for and about the erection and construction of the buildings hereafter described.” They were not liens for repairs, alterations or additions, which might have saved them, but for work and materials furnished in the construction of the buildings. These are not equivalent provisions, and we could not possibly hold that materials furnished for repairs, &c., were to be regarded the same as if furnished in the construction of the buildings. The auditor found that the buildings had been finished long before the work, &c., done by Herlehy & Johnston was begun. We see no error in this finding on the evidence, and the result is, it could not legally be set aside by the cpurt.
It is only for clear error in fact or law that the finding of an auditor is to be set aside. Decisions to this effect are so nume*147rous that I need not cite them. It would have greatly aided us, if the learned judge of the District Court had accompanied his judgment with his reasons. Taking the case as we have it, however, we think this another reason for reversing the decree of distribution in the case.
Now, to wit, January 8th 1872, it is considered and adjudged that the decree of the District Court be reversed and set aside, and that a formal decree be entered in the court below in accordance with the finding of the auditor, and that the costs of this appeal be paid by the appellees.