275 Pa. 183 | Pa. | 1922
Opinion by
In due course the Borough of Dupont was carved out of the Township of Pittston; this automatically created the School District of the Borough of Dupont, comprising all the territory within the limits of the borough (School Code of May 18,1911, P. L. 309), the remaining territory of the township constituting the new School District of the Township of Pittston.
Subsequently the latter school district filed a petition for a writ of mandamus against the former and its board of directors, alleging that, as provided by sections 110 and 111 of the code (P. L. 1911, page 311), there had been an adjustment of the assets and liabilities of the old school district between the two new ones, the amount payable by the old school district of the borough to that of the township being thereby.ascertained and a certificate of indebtedness given for it; that repeated demands had been made for its payment, which were ignored, and hence petitioner prayed the court to compel the levy of a special tax to pay the amount due. An alternative writ
It appeared that, at the request of their respective boards of directors, the counsel for the new school districts ascertained and reported to the boards an adjustment of the assets and liabilities of the old school district between the new ones, as provided by the School Code; this was duly approved by each board and the school district of the borough thereupon gave to that of the township a paper evidencing the indebtedness thus found to exist. The fairness and accuracy of the adjustment is not challenged; but appellants allege the boards should have done all the work themselves, and hence their act in approving the work of counsel, and issuing the certificate of indebtedness accordingly, was wholly nugatory. One of the purposes of permitting a school district to have counsel is that he may aid it in complying with the elaborate provisions of the code; therefore, seeking such aid was wise, and following it was commendable and not objectionable, since admittedly it resulted in exactly what should have been done, if the boards in solemn conclave had attempted inexpertly to do it, and, under counsel’s advice, had finally got it straight.
Nor is the objection to the amendment of the petition of any validity; the strict provisions of the common law on this subject were done away with by section 26 of the
It is urged also that the appeal should be sustained because plaintiff’s right to recover had not been first established at law. The only dispute regarding the facts was that relating to the date of the meeting, already considered; and hence the contention necessarily is that although the amount presently due by the one school district to the other is not disputed, payment is nevertheless refused; and although mandamus is an appropriate remedy to compel the levying of a tax to pay the debt, this course may not be taken here, although only legal questions, upon undisputed facts, remain to be determined. This contention we cannot sustain: Williamsport v. Citizens Water & Gas Co., 232 Pa. 232.
The real question defendant wish' decided — and which, perhaps, might well have been made the only one, since it is admitted the school district of the borough should at some time and in some way be required to pay the amount claimed — is whether or not the proceedings are unconstitutional, because the adjustment and certificate of indebtedness constituted an increase of debt in excess of two per centum of the assessed value of the property in the district, and hence violated article IX, section 8, of the Constitution of the State. It is a little difficult to understand why that claim should be made in this proceeding, the only purpose of which is to compel the levying of a tax to reduce the debt; but if we assume it can be, appellants are not helped. It not infrequently happens in these political adjustments, that temporarily there appears that which, if" permanent, would be forbidden; this is inevitable and not unconstitutional : Com. v. Moir, 199 Pa. 534. Of course, if the result was one which the Constitution declares must not exist, the parties affected would be bound to take the necessary steps to restore the constitutional status, and, if they failed or refused so to do, proper legal proceedings would compel it,
If we were to treat the new district as a separate entity, irrespective of the people and property within it, and overlook everything else, appellants would have a starting point for their contention; but this is not permissible. Now, as well as before the division, every item of taxable property in each of the. new school districts is liable for all the debts contracted while they constituted but one district, and the creditors of the latter may still enforce their rights against all such property. The only effect of the separation, so far as relates to the matter under consideration, was that each of the new school districts, by virtue of the School Code and as a condition of their right to separate existence, agreed it would accept all the school property within its limits and would pay therefor and for a just and equitable share of the existing indebtedness, upon being allowed a proper credit for its fair share of the assets retained by the old district. This did not result in incurring a new
It would doubtless be a matter of great surprise to each of the individual appellants (as it would to every other untechnical person), if he were told that upon the dissolution of a partnership, indebted to Smith, Jones, Brown and Robinson, each partner taking part of the assets, one agreeing to pay Smith and Jones and the other to pay Brown and Robinson, that each partner incurred a new debt or increased his indebtedness. It is true, that here there is an adjustment also of the property of the original school district, the appellant district receiving relatively more of the property and hence agreeing to pay more of the debt; but, continuing the comparison, appellants’ surprise would doubtless be just as great if told that a new debt was incurred or the indebtedness increased, because one of the partners took three-fourths of the assets' and agreed to pay the indebtedness to Smith, Jones and Brown, and the other took only one-fourth and agreed to pay the indebtedness to Robinson. Yet the answer implied in this illustration decides the present controversy, since these words, as used in the constitutional provision, are to be understood in their general and popular sense: Keller v. Scranton, 200 Pa. 130.
Probably the apparent difficulty under which appellants labor would disappear if they remembered that the constitutional provision prevented only the incurring of a liability where none legally existed before; and that the giving of the certificate of indebtedness was simply the acknowledgment of an existing debt, and did not substantially affect the litigation in any way, since the result would have been exactly the same if no certificate had been given, or even if the school districts had not agreed upon the adjustment, which had accordingly been made by the court, in compliance with section 112 of the code: P. L. 1911, page 311.
The judgment of the court below is affirmed.