Basehore v. Hampden Industrial Development Authority. Walker, Appellant, v. Butler County Industrial Development Authority.
No. 91 Misc. Dkt. 16; No. 167 March Term, 1968
Supreme Court of Pennsylvania
November 22, 1968
Concurring Opinion January 10, 1969
433 Pa. 40 | 248 A.2d 212
JONES, J.
The above appeals were consolidated for argument specially on June 27, 1968.
Walker, Appellant, v. Butler County Industrial Development Authority.1
Richard C. Snelbaker, for plaintiff (Basehore).
Paul H. Rhoads, with him Walter K. Swartzkopf, Jr., and Rhoads, Sinon and Reader, for defendant, Ralston Purina Company.
Tom H. Bietsch, for defendant, Hampden Industrial Development Authority.
Edward G. Bauer, Jr., City Solicitor, with him James L. J. Pie, Deputy City Solicitor, and Matthew W. Bullock, Jr., Second Deputy City Solicitor, for City of Philadelphia, intervenor.
Walter Stein, with him Frederick D. Wood, for Philadelphia Authority for Industrial Development, intervenor.
Silvio P. Cerchie, with him Saul J. Bernstein, for plaintiff, Walker, appellant.
Paul G. Perry, with him David E. Johnson, and Burgwin, Ruffin, Perry, Pohl & Springer, for defendant, Armco Steel Corporation, appellee.
Norman D. Jaffee, for Butler Authority, appellee.
Charles T. Chew, for Board of County Commissioners of Butler County, appellee.
OPINION BY MR. JUSTICE JONES, November 22, 1968:
Both these cases originated as equity actions to enjoin the respective defendants (municipal authorities, certain officials and private concerns) from taking any action pursuant to acquisition agreements (“Agreements“) entered into by the respective defendants pursuant to the Industrial Development Authority Law (
The two Agreements here in question are similar in their provisions.2 The Hampden Authority was formed pursuant to an ordinance of the Board of Township Commissioners of Hampden Township for the purpose of constructing or acquiring industrial development projects. On January 16, 1968, the Authority and Ralston entered into an Acquisition Agreement under which the Authority agreed to buy the industrial site on which the proposed factory will be built and the site would be leased to Ralston for a term of 30 years and the Authority will provide funds for the construction of the new industrial plant by floating revenue bonds issued by the Authority in the principal amount of $8 million.3 Ralston agreed to construct the industrial plant with the funds and to lease it
Ralston was the assignee of an option to purchase the site on which the project will be built.4 On July 13, 1967, Ralston gave notice of its election to exercise the option and paid $12,000 toward the purchase price; no conveyance was made, but Ralston proposes to assign the contract to purchase the site to the Authority. Under the Agreement, Ralston has the right to assign or sublet the project once it is completed, but, if it does so, it will remain primarily liable for the performance of the Agreement.
Ralston has the further right to purchase the project during the term of the lease or after retirement of all debt obligations and, under no circumstances, would Ralston purchase the project without first providing sufficient funds to retire all debt obligations; in addition to paying all expenses of the Authority in winding up the project, Ralston would pay $1000 upon purchase of the project.
The bonds to be issued will be revenue bonds. It will be stated on the bonds that all principal and interest will be payable exclusively from the income, rentals and revenues of the project and that neither the general credit nor the taxing power of the town-
The project envisages the construction of a new plant which will employ 100 persons at the outset5 and will not replace a plant already in existence in Pennsylvania. Under Section 12 of the Act, Ralston will let the construction contracts and purchase machinery without competitive bidding.
The Secretary of Commerce of the Commonwealth approved the project on January 18, 1968, as required by Section 7 (f) of the Act.
Industrial development authorities are not new, the first such authority having been set up in Mississippi in 1936. Today over 40 states have established such authorities. The principle behind the projects is relatively simple. Tax-exempt authorities are established to build plants for private manufacturing companies and the funds used to construct the projects come from revenue bonds which are tax-exempt under
In most states having such projects, taxpayers have brought suits to test their constitutionality and, in most instances, the courts have held that the projects are constitutional.7 As in most of these suits, the taxpayers in the present suit have alleged that the Act and the Agreements violate several provisions of the State and National Constitutions. We will deal with their major contentions in turn.
I.
There is no question that the Authorities are instrumentalities of the Commonwealth, that the projects are owned by the Authorities and that these requirements are essential in order for the revenue bonds to receive a tax-exempt status under
The Act details legislative findings that unemployment is a serious problem in the state and that industrial development projects are effective means to fight
All parties are agreed that unemployment is a problem which falls within the police power of the state. See: Commonwealth v. Perkins, 342 Pa. 529, 21 A. 2d 45, aff‘d, 314 U.S. 586 (1941). The legislature has found that the unemployment problem is sufficiently serious now to warrant that steps be taken to remedy the problem and such legislative finding is entitled to great respect by us. The taxpayers have not convinced us that the legislative findings are unrealistic nor are we convinced by their argument that the legislature has not proved that there is a present unemployment problem but that the Act is designed to prevent unemployment in the future. Even if their characterization of the legislature‘s findings were correct, the taxpayers have not cited any cases holding that it is
The taxpayers’ main concern is that the party who is really benefiting from this program is the private manufacturer who acquires an industrial plant at a much lower cost than he would have incurred had he built it himself. It is beyond question that private manufacturers receive a very large benefit from this program; however, this fact alone should not invalidate the program. If the legislative program is reasonably designed to combat a problem within the competence of the legislature and if the public will benefit from the project, then the project is sufficiently public in nature to withstand constitutional challenge.
In the cases at bar, the parties have stipulated that the plants will employ 500 persons at the outset and that the projected plants will not replace already existing plants in Pennsylvania. The projects would, therefore, appear to be effective means of combating unemployment since they will create jobs directly. Moreover, there is no constitutional requirement that the entire public benefit from a program before that program can be termed “public.” “It is not essential that the entire community or even any considerable portion of it should directly enjoy or participate in an improvement in order to make its use a public one.“: Dornan, supra, at 222. There is another important factor to consider. Industrial development authorities are so prevalent throughout the country that Pennsylvania is at a competitive disadvantage in attracting industry to this state should we declare this act unconstitutional.9 Even the taxpayers do not maintain
On at least three previous occasions we have upheld the creation of authorities which have substantially benefited private citizens. In Dornan, we upheld an act creating authorities for the purpose of slum clearance, a project of primary benefit to those persons living in slums for the authorities built new housing for them and we held that the act was an effective means to combat the spread of slums, a problem admittedly within the police power, and the fact that certain private persons benefited substantially and that the public in general received no direct benefit did not derogate from the fact that this was a public project. In Belovsky v. Redevelopment Authority of Philadelphia, 357 Pa. 329, 54 A. 2d 277 (1947), we upheld the constitutionality of the Urban Redevelopment Law of Philadelphia; Belovsky involved essentially the same issues as in Dornan and we held that Dornan was controlling. In McSorley v. Fitzgerald, 359 Pa. 264, 59 A. 2d 142 (1948), we upheld the constitutionality of the Parking Authority Law under the provisions of which authorities were set up to acquire areas for parking lots. The taxpayer in McSorley made a similar argument to that made in the instant cases: the authority, although a public body, was engaging in what is essentially a private activity. This Court responded, “It is no constitutional objection to the statute, nor does it derogate from the public character of its objective, that the Authority will to some extent conduct what may heretofore have been regarded as a private enterprise; to hold otherwise would mean that the State would be powerless, within constitutional
We conclude, therefore, the Agreements entered into by the Authorities pursuant to the Act are for a public purpose, a conclusion which effectively answers several of the taxpayers’ objections. First, the taxpayers maintain that public money is being used for private purposes; while we agree that the money raised through the bonds is public money, the expenditure of this money under this program is for a public, not a private, purpose. Second, the taxpayers maintain that the Act violates the State Constitution in that the plants are tax-exempt as long as the Authorities own the properties, but that in reality it is the private manufacturers who are receiving the benefit of the tax exemption. The taxpayers rely on a line of cases holding that public bodies may not use their property for private purposes and still receive a tax exemption. See: Moon Township Appeal, 387 Pa. 144, 127 A. 2d 361 (1956); West View Borough Municipal Authority Appeal, 381 Pa. 416, 113 A. 2d 307 (1955); Pittsburgh v. Allegheny County, 351 Pa. 345, 41 A. 2d 639 (1945); Pittsburgh School District v. Allegheny County, 347 Pa. 101, 31 A. 2d 707 (1943); Kittanning Borough v. Armstrong County, 347 Pa. 108, 31 A. 2d 710 (1943). The Authorities counter with a series of cases holding that, if the public body is acting for a public purpose, it does not lose the tax exemption even though the activity in question seems to be nongovernmental in nature. See: Pittsburgh Public Parking Authority v. Board of Property Assessment, Appeals and Review, 377 Pa. 274, 105 A. 2d 165 (1954); Commonwealth, Department of Public Assistance v. Schuylkill County, 361 Pa. 126, 62 A. 2d 922 (1949); Commonwealth v. Dauphin County, 354 Pa. 556, 47 A. 2d 807 (1946); Commonwealth, State Employes’ Retirement System v. Dauphin County, 335 Pa. 177, 6 A. 2d 870 (1939). The distinction between the lines of authorities lies in whether a definite public purpose exists in the proposed project. Since we conclude that the instant Authorities are acting for a public purpose in erecting the plants, the line of cases cited by the Authorities must control. In Pittsburgh Public Parking Authority v. Board of Property Assessment, Appeals and Review, 377 Pa. 274, 105 A. 2d 165 (1954), the parking authority leased some of its garages to private parties and the taxing authorities claimed that the garages were no longer tax-exempt. We responded: “Without some element of private profit to someone the enterprise could not be conducted at all; the determinative question is whether these public properties are being used for a public purpose.” Pittsburgh, supra, at 280. In the instant cases, even though the properties are tax-exempt while still owned by the Authorities, the two manufacturing companies are required to pay an amount equal to the taxes which would have to be paid if the properties were not tax-exempt.
The taxpayers place great reliance on our decision in Price v. Philadelphia Parking Authority, 422 Pa. 317, 221 A. 2d 138 (1966). In Price the parking authority agreed with two private concerns to build combination parking garages and high rise apartments and, under the project as planned, when the buildings would have been completed, very little additional parking space would have been made available to the public. “This net increment to the public, in light of the magnitude of the garage project and the substantial benefits accruing to public therefrom, is not sufficient to warrant the public involvement here proposed.” Price, supra, at 338. Not only will there be a substan-
II
The taxpayers next allege that the Act and Agreements violate Sections 4 and 8 of Article IX of the State Constitution in that the Authorities are empowered to create debts in excess of the limits imposed on the Commonwealth by Section 4 and on municipalities by Section 8.10 The taxpayers urge that the word “debt” should not be given a limited, technical meaning intended to emasculate the intent of these two Sections. “Debt and indebtedness in the section in question are not used in any technical way, but in their broad general meaning of all contractual obligation to pay in the future for considerations received in the
The Act specifically states that any money borrowed by an authority shall not be the debt of either the Commonwealth or any political subdivision: “6(c) An authority created hereunder shall have no power at any time or in any manner to pledge the general credit or taxing power of the Commonwealth of Pennsylvania or any political subdivision, and the obligations of the authority shall be limited as provided in section 7(a)11 hereof. The bonds of the authority shall on the face thereof clearly set forth the foregoing limitation.”
The instant revenue bonds issued by the two authorities were issued pursuant to the Amendment, which states: “The board of commissioners of any county are empowered to issue non-debt revenue bonds of the county pursuant to provisions of the act of June 25, 1941 (P. L. 159), known as the ‘Municipal Borrowing Law,’ and its amendments, to provide sufficient moneys for the ... construction ... and ... equipping ... of an industrial development project ....” Section 621 (f) of the Municipal Borrowing Law requires that the bond ordinance state “That the bonds are not general obligations of the municipality and that no property or revenues of the municipality shall be pledged to the payment thereof or the interest and state taxes cove-
Our case law supports this position. On numerous occasions we have held that revenue bonds are not debts of the Commonwealth or of any political subdivision: Conrad v. Pittsburgh, 421 Pa. 492, 218 A. 2d 906 (1966); Beam v. Ephrata Borough, 395 Pa. 348, 149 A. 2d 431 (1959); Detweiler v. Hatfield Borough School District, 376 Pa. 555, 104 A. 2d 110 (1954); Greenhalgh v. Woodworth, 361 Pa. 543, 64 A. 2d 659 (1949); Belovsky v. Redevelopment Authority of Philadelphia, 357 Pa. 329, 54 A. 2d 277 (1947); Williams v. Samuel, 332 Pa. 265, 2 A. 2d 834 (1938); Gemmill v. Calder, 332 Pa. 281, 3 A. 2d 7 (1938); Dornan v. Philadelphia Housing Authority, 331 Pa. 209, 200 Atl. 834 (1938); Kelley v. Earle, 325 Pa. 337, 190 Atl. 140 (1937); Tranter v. Allegheny County Authority, 316 Pa. 65, 173 Atl. 289 (1934).
The Authorities raise two other points for our consideration. First, the Authorities argue that Section 8 does not apply because the Authorities are creatures of the State and cannot be considered alter egos of the municipalities: however, since we have concluded that no debt was created in the sense that word is used in Sections 4 and 8, this contention need not be con-
The taxpayers maintain that an illegal debt is created because the Act permits the Authorities “to pledge, mortgage, hypothecate or otherwise encumber all or any part of the property, real or personal, including but not limited to the revenues or receipts of the authority as security for all or any of the obligations of the authority.” [§6(b)(13)]. The taxpayers maintain that the right to mortgage the Authorities’ property makes the bonds debts of the municipalities, relying on Lesser v. Warren Borough, 237 Pa. 501, 85 Atl. 839 (1912). In Lesser we held that the constitutional debt limit was violated when the borough floated bonds to buy the water works and used the property of the water works as security for the bonds.
The Authorities counter with the arguments that Sections 4 and 8 do not apply to the Authorities because the Authorities are public corporations and not either departments of the Commonwealth or alter egos of the municipalities and, further, that while the Act permits the Authorities to mortgage the property, both Agreements in the instant cases specifically state that the Authorities shall not have this right.13 In view
III
The taxpayers argue that the Act and the Agreements violate Sections 6 and 7 of Article IX which prohibit the Commonwealth and any municipality from pledging or loaning their credit to “any individual, company, corporation or association ....”14 In effect, the taxpayers maintain that both the Commonwealth and the two municipalities are lending their credit to the manufacturing companies who are parties to the Agreements.
The Act specifically states that the Authorities shall not have the power to pledge the credit of the Commonwealth or any political subdivision of the Commonwealth.15 However, we need not rest on the language of the Act alone for there is a fatal flaw in the taxpayers’ chain of logic. The money raised by the bonds will go to the Authorities and not to the industrial corporations; the Authorities will own the fac-
The Authorities have also directed our attention to Section 9, Article IX, Proposition 6 of the newly-adopted Constitutional Amendments. The second sentence of that Section states: “The General Assembly may provide standards by which municipalities or school districts may give financial assistance or lease property to public service, industrial or commercial enterprises if it shall find that such assistance or leasing is necessary to the health, safety or welfare of the Commonwealth or any municipality or school district.” The taxpayers do not maintain that this Section does not control the present situation but they argue instead that this Section should only be applied prospectively. However, since we have already determined that the Act does not violate old Sections 6 and 7 of the Constitution, we need not consider the impact of the newly adopted Section 9, Article IX, Proposition 6 of the new Constitutional Amendments. We note in passing, however, that we should be most reluctant to declare this Act unconstitutional and then state that the legislature could re-enact the same law after January 1, 1969 when it would become constitutional.
The taxpayers allege that the Act, bond ordinances and Agreements all violate Section 31 of Article III of the State Constitution in three particulars. Section 31 states: “The General Assembly shall not delegate to any special commission, private corporation or association, any power to make, supervise or interfere with any municipal improvement, money, property or effects, whether held in trust or otherwise, or to levy taxes or perform any municipal function whatever.”
The taxpayers argue initially that the Authorities are special commissions within the meaning of Section 31 because the primary beneficiaries of the Act are private corporations and not the public. First, we have already rejected this latter argument in the first part of this opinion. Second, we have held on several occasions that authorities similar to these Industrial Development Authorities are not special commissions in the sense that term is used in Section 31. See: Evans v. West Norriton Township Municipal Authority, 370 Pa. 150, 154, 87 A. 2d 474 (1952); Williams v. Samuel, 332 Pa. 265, 274, 2 A. 2d 834 (1938); Dornan v. Philadelphia Housing Authority, 331 Pa. 209, 230, 200 Atl. 834 (1938); Poor District Case (No. 1), 329 Pa. 390, 404, 197 Atl. 334 (1938); Tranter v. Allegheny County Authority, 316 Pa. 65, 78, 173 Atl. 289 (1934).
The taxpayers next contend that the provisions whereby the Authorities are empowered to lease the property to private industrial concerns violates Section 31 since the industrial concerns are “private corporations” within the meaning of the Section. Section 31 does not prohibit the leasing of public property to private individuals. While the taxpayers have cited no authorities holding that public property cannot be leased to private individuals, several cases have come
Finally, the taxpayers object to provisions in the bond ordinances appointing local banks as depositories for the funds of the Authorities.16 All moneys received from the sale of the bonds will be handed over to the Authorities which will deposit the funds in an account held with the depositories and all rentals will go into separate accounts with the depositories. The Authorities will maintain various accounts such as a Principal and Interest Account, Redemption Account and Special Redemption Account. The taxpayers allege that the depositories are “private corporations” within the meaning of Section 31, relying on Beam v. Ephrata Borough, 395 Pa. 348, 149 A. 2d 431 (1959) and Lighton v. Abington Township, 336 Pa. 345, 9 A. 2d 609 (1939). In both Beam and Lighton the depository had definite duties in addition to holding the money whereas in the instant cases, the depositories are banks, nothing more, and they do nothing except hold the Authorities’ money. While we have held that the delegation of details of administration is not a violation of the State Constitution (Evans v. West Norriton Municipal Authority, 370 Pa. 150, 160, 87 A. 2d 474 (1952)) it is difficult to conclude in this case that even administrative details have been delegated to the depositories. We conclude that there is no violation of Section 31.
The taxpayers allege that the provisions in the Agreements permitting the two companies to purchase the properties for $1000 after all debts have been paid violate Sections 1 and 9 of Article I, Section 31 of Article III and Section 7 of Article IX of the State Constitution.17 In effect, they argue that a sale for such a small sum amounts to a wasting of public assets and, when the bonds have been retired, the property still has great value and should be sold at a competitive price. Moreover, they argue that the public purpose still exists and property used for a public purpose should not be conveyed to private companies.
Under no circumstances can the two companies purchase the properties without assuring that the bonds will be retired. When the Authorities sell the properties, they are not losing money for, through their rent payments, the companies have paid for the projects. The $1000 is a windfall of sorts. Furthermore, if the Authorities are going to charge competitive prices for the plants, private corporations will be less interested in industrial development projects because the cost in the long run will be no cheaper than if they constructed the plants themselves. What is more, just because a plant is sold to a private corporation does not mean that the public benefit ceases for, as long as the plant is used, citizens of the Commonwealth will be employed. Finally, our case law supports this position.
The taxpayers have raised several other objections to the Act many of which have been raised in earlier cases attacking the constitutionality of similar acts and have been rejected. We have considered all of the taxpayers’ remaining objections and find them without merit.
In Basehore (Appeal No. 91 Misc. Dkt. 16) injunction is denied.
In Walker (Appeal No. 167 March Term, 1968) decree affirmed.
Each party to pay own costs.
Mr. Justice COHEN dissents.
Mr. Justice MUSMANNO did not participate in the decision of this case.
CONCURRING OPINION BY MR. CHIEF JUSTICE BELL, January 10, 1969:
In the last few years, tax-exempt Public Authorities (as well as commissions and similar bodies of all kinds and characters) have multiplied like the sands of the sea. Most of them had worthy objectives; some of them were beneficial and really needed; many of them were unrealistic and unwise. Many of them were created unnecessarily and unwisely and solely for political or financial or patronage reasons, or to demonstrate to the voters how “liberal” the creators or advocates were. Often they were merely a tax dodge which exempted the companies directly benefited, but concealed the fact that they would increase the taxes
An increase in employment in Pennsylvania, which is the recited reason for this Industrial Development Act, and the opportunity for certain corporations doing business in Pennsylvania to meet the competition from other States are worthy objectives which every Pennsylvanian favors.
The Courts have the power, in considering a specific subject or project, to prevent an abuse or an excess of an Authority‘s power as well as its boundaries, its limitations and its discretion, and a further power to decide whether the means authorized or employed to realize a worthy objective are designed to favor primarily or will result in favoring private interests, or violate any provision of the Constitution. See and compare Price v. Philadelphia Parking Authority, 422 Pa. 317, 221 A. 2d 138.
The present Industrial Development Authority Act is, in my judgment, a borderline case. However, in spite of many serious doubts, I will concur in the result. See Daly v. Hemphill, 411 Pa. 263, 271, 191 A. 2d 835; Dauphin Deposit Trust Co. v. Myers, 388 Pa. 444, 450, 130 A. 2d 686; Evans v. West Norriton Township Municipal Authority, 370 Pa. 150, 87 A. 2d 474; Tranter v. Allegheny County Authority, 316 Pa. 65, 173 Atl. 289.
CONCURRING OPINION BY MR. JUSTICE ROBERTS:
I concur in the majority‘s decision sustaining the constitutionality of the legislation and projects here under review; but I should add a few observations regarding one aspect of the case.
As I read the majority opinion, we do not by this decision venture any judgment as to the wisdom or desirability of the use of tax free revenue bonds to foster industrial development; that is a determination entrusted exclusively to the legislature. Ours has been the more limited inquiry of whether the legislative judgment to proceed in this fashion exceeds the boundaries of the constitutionally permissible.
Our conclusion that the legislation and projects serves a “public purpose” in part reflects an evolution in attitude prompted by the changing nature of our public needs. It also reflects the deference courts must accord to the legislative branch where fundamentally at issue is the appropriate role of government in meeting those needs. In this area, there may be no pretense that we sit as a superlegislature.
Once it is accepted that the reduction of unemployment and the reversal of economic decline are a legitimate concern of government, our sole inquiry is whether the particular approach selected—the fostering of new plant development—is reasonably calculated to realize that objective.
In the instant case, appellants argue that the legislation and projects serve no useful public purpose, but are designed primarily to facilitate private interests. This contention, however, in the context of this case,
Appellants have relied heavily on Price v. Philadelphia Parking Authority, 422 Pa. 317, 221 A. 2d 138 (1966). As the majority correctly points out, that case is narrowly speaking inapposite because it was decided not on constitutional grounds, but on the basis that the specific projects under attack were not authorized by the enabling legislation. Yet in a broad sense, we deal here with the same basic problem. If the instant projects were determined not to be essentially “public,” in that the benefit accruing to the local communities were found not sufficient to justify the public involvement, then our conclusion must necessarily be in accord with that reached in Price.
In Price, the public authority‘s mandated role was to provide public parking. Yet the only benefit to the public after an investment by the parking authority of $8,000,000 to $9,000,000 was the addition of 180 parking spaces over that generally available prior to the project. Id. at 321, 338. Two-thirds of the parking spaces created were to be utilized primarily by the private commercial tenants of the structure housing the facility. The public thus was unable to benefit from the greater part of the project. But while there was a minimal gain to the public, there was numerous and significant benefits to the private developer.
In the instant case, although the immediate beneficiary is intended to be the industrial lessee, it acts solely as a conduit by which the public may realize the ultimate benefit of local economic growth. Here,
Fundamentally, the instant programs involve no more than the creation of an atmosphere conducive to industrial and economic growth by providing the mechanism for the realization of permissible tax benefits. No public property is devoted, nor credit lent to the industrial lessee. Nor are there any local advantages exempting the private users from taxation (in light of the agreements for payments in lieu of taxes) or regulation. On this basis, we would be loath to deprive local communities within this Commonwealth of the opportunity to compete with the numerous other jurisdictions (many of which adjoin Pennsylvania) making available similar inducements for economic expansion and growth.
Today‘s decision will not preclude the courts from preventing an abuse of an authority‘s discretion in participating in a specific project. What would constitute such abuse within the confines of this program need not be here specified. It suffices for present purposes, however, to state that in the instant cases no such abuse has been suggested or called to our attention. For these reasons, I concur in the result reached by the majority.