38 A.2d 273 | Pa. | 1944
We allowed an appeal from the Superior Court in this case (
This clause as amended provided that in townships of the second class the supervisors should have power "On the petition of the owners of a majority of the lineal feet frontage along any street, highway, or portion thereof within the township, to enter into contract, and shall contract, with electric, gas, or other lighting companies to light and illuminate said streets and highways and other public places in said villages with electric light, gas light, or other illuminant. The township supervisors shall levy, for the maintenance of said lights, an annual tax upon all the property, including factories and places of business, abutting upon the said streets and highways in the district benefited thereby, based upon the assessment for county purposes. Such taxes shall be collected in the same manner as other taxes. No such tax shall be levied against any farm land." *171
Charles E. Workman, appellant, is the owner of a lot of ground upon which is erected a two and a half story dwelling situate on the Lititz Pike in Manheim Township, Lancaster County. Manheim Township is a township of the second class. In pursuance of a petition of the owners of a majority of the lineal feet frontage for a distance of 11,950 feet along Lititz Pike the supervisors, on May 5, 1933,* imposed for that year a street-light tax of three and a half mills upon that "district", which included appellant's lot. On December 30, 1936, a light-tax claim of $11.03 was filed against his property, upon which there was subsequently issued a scire facias. A petition by appellant to strike off the lien proved unsuccessful and as the result of a jury trial a judgment for $16.99 was obtained by plaintiffs.
Article IX, Section 1, of the Constitution provides that "All taxes shall be uniform, upon the same class of subjects, within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws." Obviously the tax under consideration was not uniform within the territorial limits of the township for it was imposed only upon the properties within the district specified. The justification for its validity is sought by plaintiffs in the well known principle that the requirement of uniformity does not apply to assessments for the cost of local improvements: Hammett v.Philadelphia,
The weakness, however, of the contention that the street-light tax levied upon appellant's property may be sustained as a special assessment for a local improvement lies in the fact that it ignores the fundamental qualification established in Pennsylvania — whatever may be the law in other jurisdictions — that the exemption of such an assessment from the application of the uniformity provision of the Constitution relates only to an initial construction or installation of a permanent improvement and not to its continuing maintenance or *173
operation; an assessment for special benefits may be imposed only once as to any given improvement. This limitation stems from the leading case of Hammett v. Philadelphia,
There is but one theory upon which a street-light tax can be justified if not imposed generally upon the same class of subjects within the township, namely, as a reasonable charge for a product furnished, or additional service rendered, to particular persons or groups of persons within the township. The furnishing of light by a municipality is a function performed by it in its proprietary or quasi-private capacity, just as when it furnishes gas or water, or collects ashes, removes garbage, or operates and maintains sewers. Charges made in connection with such operations are based upon contract rather than taxation because those who consume the product or receive the service act in so doing voluntarily, either as individuals or as a neighborhood or *174
"district" group, and thereby impliedly agree to pay the price of the product furnished or service rendered. Such charges are "simply charges for a commodity sold as any others sell commodities": Shirk v. Lancaster City,
The street-light tax imposed in the present instance was not measured by the service rendered, for it was based "upon the assessment for county purposes". There is no necessary or even likely connection between a proper charge for the light furnished and the assessed valuation of the properties abutting on the highway. This was the very method of charging which was declared invalid, as regards sewer rentals, in Hamilton'sAppeal, supra, and in Philadelphia's Petition,
To summarize, therefore, — the street-light tax levied upon appellant's property was not a general tax, it was not a justifiable special assessment, and it was not a valid charge for service rendered because not measured by the method essential to the validity of such a charge. It therefore constitutes a violation of Article IX, Section 1, of the Constitution. But it is unconstitutional also in another respect. According to the amendatory Act of April 27, 1927, P. L. 464, it was obligatory on the township supervisors to contract for the lighting when petitioned thereto by the owners of a majority of the lineal feet frontage along any portion of a street or highway within the township, and also obligatory on them thereupon to levy a tax to maintain the lights. The action of the supervisors in furnishing the lighting and imposing the tax was therefore determined wholly by the will of an unspecified number of abutting property owners, who, by their vote, could thus subject non-assenting neighbors to the burden of the tax; indeed the Superior Court said (p. 149, A. p. 749) that "The supervisors were made merely the representatives of the abutting property owners in entering into such contract." The effects of such a system are here illustrated by the fact that of the 27,350 feet of Lititz Pike which are in Manheim *176
Township the first 1,400 feet immediately north of the City of Lancaster were not taxed at all; the next 11,950 feet, which included appellant's property, were taxed three and a half mills; the next 6,520 feet were taxed two and a half mills; the remaining 7,480 feet were not taxed; on another road in the township there was a light tax for that same year of two and a half mills, and on certain other streets one of two mills. These variations resulted from different groups of property owners petitioning, or failing to petition, the supervisors to install lights in front of their properties. If (as under the present act of May 1, 1933, P. L. 103) the supervisors were merely empowered, instead of obliged, to install the lights and impose the tax, then, even though they acted in response to a petition by individual property owners, there could be no ground for objection, but where, as here, the tax is the automatic and inevitable result of action taken by a mere group of residents, the statutory provision establishing such a system is unconstitutional as delegating to private citizens the authority to establish the boundaries of a taxing district and to compel the imposition of a tax on the property owners therein. Moreover, as due process of law requires that one's property should not be taken under the guise of taxation unless the taxing power is exercised by government and not by private individuals, the provision in question is, in the respect indicated, violative of the Fourteenth Amendment of the Federal Constitution: Browning v. Hooper,
The judgment of the Superior Court affirming the judgment of the Court of Common Pleas of Lancaster County is reversed and judgment is here entered for defendant.