Erie v. School District, 17 Pa. Super. 33

Erie v. School District

17 Pa. Super. 33 | Pa. Super. Ct. | 1901

Opinion by

William W. Porter, J.,

The main question raised in this case is whether the city of Erie can maintain an action of assumpsit against the school district of the city of Erie to recover the cost of laying a pavement in front of a piece of property owned by the school district and exclusively used for school purposes. The plaintiff is a city of the third class. By the ActoLMay_23rJA89rTL-L-_ ,288jj.t is, inter alia, provided that “ cities of the third class shall have power to cause to be graded, paved or macadamized, any public street .... and to provide for the payment of the cost and expense of the same, or any part thereof, by the city or by the owners of real estate bounding and abutting thereon, by an equal assessment on said property in proportion to number of feet the same fronts on the street.” etc. By a subsequent section of the act, a right of action at law is given recover a general judgment' against the owner of the property, as well as a right to proceed by scire facias, as in proceedings on mechanics’ liens. The plaintiff began by proceeding by scire *37facias on the lien. This resulted in defeat on the ground that such an action could not be maintained. The present action is in assumpsit. The facts are presented by a case stated.

The right to recover on an assessment for street improvements is based upon the right of the municipality to make the assessment in the exercise of its taxing power: McKeesport Borough v. Fidler, 147 Pa. 532; Olive Cemetery Company v. Phila., 93 Pa. 129; Hammett v. Phila., 65 Pa. 145 ; Erie v. First Universalist Church, 105 Pa. 278 ; In re Centre Street, 115 Pa. 247. The property against which the assessment is laid in this case is used for public purposes. It yields no revenue. It is owned by a public body or quasi-corporation, whose revenue is derived from taxation: Ford v. School District of Kendall Boro., 121 Pa. 543. Such property so owned and used, is not subject to taxation in the absence of expressed legislative authority. “ The public is never subject to tax laws and no portion of it can be, without express statute. No exemption law is needed for any public property, held as such,” said Mr. Chief Justice Lowrie, in Directors of Poor of Schuylkill County v. School Directors of North Manheim, 42 Pa. 25. This language is quoted with approval in County of Erie v. City of Erie, 113 Pa. 366, and applied by Mr. Justice Green, thus : “ Houses and lands and horses are taxable and have been so for a long time, but when they are held and used for the purpose of extinguishing fires and are owned by a city or borough, they become of a public-character and they are used for public purposes.”

The act above quoted gives general authority to assess property abutting on the improvement. No distinction is made between public property and private property. This is not such express authority for the taxation of public property as the rule of law requires. In County of Erie v. City of Erie, supra, this language from Cooley on Taxation, p. 131, is quoted with approval: “ It is always to be assumed that the general language of statutes is made use of with reference to taxable subjects, and the property of municipalities is not in any proper sense taxable. It is, therefore, by clear implication excluded.” See also Elliott on Roads & Streets (2d ed.), sec. 550.

All that has been thus far said is predicated on the first proposition above stated, that the assessment for street improvements is an exercise of the taxing power. If it were a *38general tax, clearly the assessment could not be sustained. Our attention, however, is called to the difference between a general tax and assessments for street improvements, called, in many of the cases, municipal assessments in the nature of a tax: City of Pittsburg v. Daly, 5 Pa. Superior Ct. 528, and cases cited. In Philadelphia v. Union Burial Ground Society, 178 Pa. 589, it is said that such assessments are not general taxes, but are special and local, confined to limited areas and to property adjacent to the improvement. This difference, it is argued, is of a kind to relieve the case from the application of the principle of law relating to general, taxation. It, is to be incidentally remarked that the distinction.has been drawn and'applied in cases where exemption from assessment has been sought on the ground of constitutional exemption from taxation-. The distinction, however, cannot be extended to assessments against public property held and used for public uses by public bodies, whose revenues are derived solely from taxation, and this, not because of any constitutional exemption, but because the results of itg application are in violation of a sound public policy. This is shown in the present action, which is to hold the school district'generally liable for the assessment in an action of assumpsit. It is not contended that an execution upon the real estate could be sustained. The execution of the judgment must be by mandar mus upon the public funds held by the school district for public purposes. The effect would be to permit the municipality to collect an assessment, made by virtue of the taxing power, out of public funds raised by taxation and set apart, in the hands of the school district, for a distinct and specific public purpose. The schooTdistrict and the city being coextensive it is but the transfeFbi'public- funds from bne’ pulfiic.treasimjuta-another. We will not presume, in the absence of explicit enactment, that the legislature intended to authorize so useless and unreasonable a proceeding. The theory upon which assessments for street improvements are sustained is that special benefit inures to the abutting owner. Here the abutting owner is the school district holding for a public purpose. If benefit inures by reason of the street improvement, it is not to the owner of the property, but to the public, to whose purposes the property is devoted. The cases of Sioux City v. School District of Sioux City, 55 Iowa, 150, and County of McLean v. City of Bloom*39ington, 106 Ill. 209, are apparently not in accord with, the views herein expressed; but our conclusion is fortified by other authorities quite direct in application: Worcester County v. Worcester, 116 Mass. 193; City of Clinton v. Henry County, 115 Mo. 557 ; The People v. Trustees of Schools, 118 Ill. 52; City of Rochester v. Town of Rush, 80 N. Y. 302; City of Atlanta v. First Presbyterian Church,.86 Ga. 736 ; City of Toledo v. Board of Education, 48 Ohio, 83; City of Hartford v. West Middle District, 45 Conn. 462; County Commissioners v. Maryland Hospital, 62 Md. 127.

We have not, it will be observed, referred to the right of the legislature to adopt laws by which a charge, in the nature of a •tax, may be imposed upon public property. We hold only that the act now before us is not sufficiently explicit to permit the recovery of a judgment by the plaintiff in this case, wherefore the judgment of the court below is affirmed.