author: Mr. Justice Gordon Agnew, C. J., and Sterrett, J.,

text:
    Kelly versus City of Pittsburgh.
    By the Act of April 6th 1867 the territorial limits of the city of Pittsburgh were extended and thereby embraced within its boundaries certain lands used only for farming purposes. These lands were taxed for municipal objects, from some of which, on account of the situation of the lands, they could not derive any benefit or receive any protection. Held, Agnew, O. J., and Sterrett, J., dissenting, that this tax was constitutional.
    October 4th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Appeal from the decree of the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1876, No. 172. In Equity.
    The case was first argued on the 80th of October 1876, and this re-argument was subsequently ordered of the court’s own motion.
    It was a bill in equity, filed the 15th of August 1874, by James Kelly, against the city of Pittsburgh, to restrain said city from taxing the farm of plaintiff for city purposes, from which it derived no benefit, on the ground that such attempted exercise of the taxing power was in conflict with sect. 10, art. 1, of the Declaration of Rights of the Constitution of Pennsylvania. The hill, in substance, set forth, that plaintiff is the owner of a farm of 80 acres of land within the consolidated limits of the city of Pittsburgh; ■ that the city, with the single purpose of increasing her revenues, and without any pretext of extending any municipal benefit of any kind to plaintiff, and against his will, through the aid of a portion. of the citizens living in the new district, was instrumental in procuring an Act of the legislature (Act of April 6th 1867, Pamph. L. 846), extending the territorial limits of the city over and beyond his farm, with full knowledge that it was an improved farm, occupied by the owner as fields, pasture and woodlands, situated and adapted to farming or agricultural purposes only, and had always heretofore, and since, been used as such; that the said lands had-never, nor have they as yet, been laid off in lots, streets or avenues, or city improvements of any kind made thereon, nor are they used or needed in any way for city purposes; that the city has not filled up her original limits, but that large quantities of vacant lands lie between the plaintiff’s said lands and the inhabited portions of said city, and consequently the natural growth and developments in extension of said city have not, and the plaintiff believes will not for a generation to come, need or require any portion of the plaintiff’s said lands for city purposes to accommodate her increasing population; that not one single city improvement, convenience, protection, regulation, water facility, road or street convenience, protection from fire, drainage, light or schools has been bestowed on said lands; that the plaintiff’s farm, improved and now occupied as aforesaid, has received no benefits from the city whatever, and can derive none; that the city has never expended a dollar to enhance the value of the plaintiff’s farm; nor does the plaintiff expect or require anything, as his farm is not needed for city purposes; that plaintiff has not himself appropriated his said lands to town or city purposes; has not laid them off into parcels or lots ; has not opened streets thereon, nor invited nor held out inducements to any one to purchase, or settle on the same, for he does not wish so to sell, but to retain the same for his own use, and not divert it to any other purpose than as a farm; and until the natural growth and multiplication of numbers and extension, and reasonable business of the city shall require the use of his said farm for city purposes, he denies the right of the city to invade or interfere with his said premises, or require him to abandon the rural use thereof; that by the extension of the city territorial limits the character, situation and use of said lands ay ere not changed, but remained an improved and occupied farm as before, and agricultural lands only, and therefore are not, in any sense, liable to municipal or city taxation for any purpose whatever; that, notAvithstanding these facts, his said farm, and the foAY necessary improvements thereon, have been returned at an assessed value of $244,000, and the city has levied a tax thereon amounting to $2672.48 for the year 1874; that the greatest productive income or value of his said farm is $10 per acre, or $800 for the Avhole; of this sum $428.47 w'as paid for county and state taxes, the balance, $371.53, mainly required for necessary repairs, leaving said city taxes unpaid by any income or productive value of said farm, and which can only be paid by taking the farm or a portion thereof; that, if the said city is permitted thus to deprive him of his individual property through the taxing poAver, it is forcing him to surrender his property for the benefit of others ; that no compensation has been given, none promised and none intended; that such exercise of the taxing power would be confiscation ; that the attempt of the city to force city revenue for the purpose of making municipal improvements, not one of which has been extended or can be extended to plaintiff’s land, is directly in conflict with the rights of plaintiff, guarded and protected by section 10, article 1, of the Declaration of Rights of the Constitution of Pennsylvania, which protection he invokes; that plaintiff applied to the Board of Revision for relief, and that his appeal was dismissed ; that shortly after the Act of Consolidation extending the limits of the city of Pittsburgh, said city had some surveys made, fixing her boundaries and designating where streets might at some future day be made; and in this AYay plaintiff is informed and believes defendant surveyed his said lands, but with no intention at the time of occupying the same for city purposes or of making city improvements, for they are not required or needed for that purpose, and will not bo for fifty years to come; and the plaintiff submits that this nominal exercise of municipal jurisdiction, unconnected with any protection or benefits, is not such an appropriation as justifies taxation for municipal benefits from year to year, when none of said improvements or benefits extend to .or near the plaintiff’s land; that said city is threatening to enforce the collection of said taxes, and, if not restrained, great injury and wrong will be done to said plaintiff.
    The bill prayed that an injunction should be issued, restraining said city from again assessing or taxing the plaintiff’s lands or farm, or from exercising any municipal jurisdiction over the same for raising city revenue, as long as said lands or farm shall be as they are in fact, farm or agricultural lands, and appropriated to such purposes.
    The answer averred that said land, with the other portion- of the city in that neighborhood, was laid off in streets and avenues by councils, by a plan approved in 1870; that immediately adjoining the south side of plaintiff’s property squares of ground have been laid off in small lots, and dwelling and store-houses erected upon them; that plaintiff’s land has the advantage of.Frankstown Avenue, which has been graded and paved with wooden pavement to within a short distance of it; of Spencer Avenue, which has been graded, and runs along a portion of the north side of said land; of streets and avenues, graded and paved, running within a short distance of three sides of complainant’s said land; of the city police, stationed in the immediate neighborhood; of water and gas, which run along Penn Avenue and within a stone’s throw of complainant’s land; of the New Water Works, now in course of construction; and of all the benefits and protection afforded to life and property by the municipal government; that the consolidation of 1867, under which complainant’s property was brought into the city, has and will be for the benefit of the citizens of the annexed districts, including the complainant, and has and will appreciate the value of their property, including the said land of the complainant.
    The bill and answer were referred to a master, T. McConnell, Esq., to take testimony and report. In the facts found by him it appeared that the land remained substantially in the same situation as it was before the consolidation; that gas had not been extended to it, nor were the streets paved thereto; that the land was sufficiently watered by springs and wells thereon, and there was no need for the water from the city works; that there was no necessity for streets through the same, as the old roads afforded ample accommodation; that the fire department could not be made available on the land, and that no police visited the localities. He reported further:—
    “ Mr. Kelly does not want streets opened to or through his land; or to have them graded or paved, and he does not want water or gas. He desires to use his land as a farm, and to apply it to no city purpose. He alleges that for farming purposes his land needs no city improvements, and therefore it ought not to be taxed for them. He asks nothing from the city, and he wants it to ask nothing from liim. He asks exemption from taxation for city purposes, on the ground that lie is not interested in the objects to which the taxes are to be applied, and therefore gets nothing in return for the taxes. Mr. Kelly’s land was, up to consolidation, in close proximity to the city. Its value, therefore, depended on the growth and prosperity of the city. As the city grew and prospered the value of this land increased, until it became very great. It was then brought into the city and made a part of it, but its value still continued to depend on the growth and prosperity of the city. To arrest the prosperity of the city would be to seriously affect the value of the land; to destroy that prosperity would be to destroy to a great extent that value. The prosperity of the city depends on its streets being kept in repair, and its water and gas and educational facilities being ample. Without these it would fall into decay, and the value of all the real estate in it, including Mr. Kelly’s, would bo incalculably reduced. The city cannot keep the streets in repair, and furnish an adequate supply of water and gas and educational facilities without money, and the only way it can raise money for those purposes is by taxation. It seems to me, therefore, that the idea that Mr. Kelly is not interested in the objects to which the taxes are to be applied, and that he receives no benefits in return for the taxes, is a mistaken one, even if he received no special benefits from the application of the taxes; and the idea that taxing unproductive property according to its market value is confiscating it, or taking it for public use without compensation, I think is equally a mistaken one.
    “ Mr. Kelly’s case is doubtless a hard one, as is that of his neighbors in like condition, but I think the courts have not power to relieve him; the legislature alone, I think, has the power to do it. In Robinson v. The County of Allegheny, Judge Rogers says: ‘ All considerations of hardships' and inequality must be left to the legislature. With that we (meaning the courts) have nothing to do.’ I think, therefore, that the bill must bo dismissed, with costs.”
    To this report the complainant filed the following among other exceptions.
    3. The master finding from the evidence the fact that the city does not extend to this property the considerations which the Supreme Court of Pennsylvania have held to be the essential requisites to justify the exercise of the taxing power for either general or local purposes, the master should have found, as a legal consequence, that complainant’s farm was not liable to taxation for municipal purposes, and therefore entitled to relief from the following taxes, as stated in the city’s statement of assessments, as set out in the master’s report, to wit:
    City Taxes, 4 mills .... $876.40
    City Building, mill . . . . 54.90
    Ere, 1 mill.....219.60

      W. W. Int. & S. ]?., ] J mills . . . 329.40
    City School ..... 634.76

      4. The master finding complainant’s farm lands unchanged by and receiving no benefits from consolidation, he should have found that said farm lands were subject to taxation for only such purposes as the same were subject to previous to consolidation, or that similar property is subject to without the city boundaries, and that by the act of consolidation the municipal authorities became and were ex-officio authorized to collect and disburse the same.
    These exceptions were overruled, and the bill dismissed by the court in banc, Sterrett, P. J., presiding, and from this decree this appeal was taken.

      A. N. and W. S. Sutton, for appellant.
    — What benefit, protection or value does the city confer upon these lands ? She taxes them for fire, water, schools and city buildings, and yet none of these are necessary or available. The legislature cannot confer upon a municipality the power to tax property that receives no benefit or protection therefrom, and for purposes in which the people taxed have no interest: Sharpless v. Mayor of Philadelphia, 9 Harris 147; Hammett v. City of Philadelphia, 15 P. F. Smith 153; Washington Avenue, 19 Id. 352; McKeen v. County of Northampton, 13 Wright 524; Pittsburgh, Fort Wayne and Chicago Railway Co. v. Commonwealth, 16 P. F. Smith 73; Lewis v. County of Chester, 10 Id. 329; Borough of Carlisle v. Marshall, 12 Casey 402; Hilbish v. Catherman, 14 P. F. Smith 159; Durach’s Appeal, 12 Id. 491; Grim v. Weissenberg School District, 7 Id. 437; Mayor of Newark v. State of New Jersey, 13 Am. Law Reg. N. S. 441; Weismer v. Village of Douglas, 64 N. Y. 91; Bradshaw v. City of Omaha, 1 Neb. 16; State of Georgia v. Stanton, 6 Wall. 50. Persons or property cannot be subjected to a local burden for the benefit of others. This principle is as old as Magna Charta, and is embraced in the constitutions of all the United States: Cheaney v. Hooser, 9 B. Mon. 342; City of Covington v. Southgate, 15 Id. 494; Cypress Pond Co. v. Hooper, 2 Metc. 350; Sharp v. Dunavan, 17 B. Mon. 223; Maltus v. Shields, 2 Metc. 553; Arbegust v. City of Louisville, 2 Bush 271; Swift v. City of Newport, 7 Id. 37; City of Henderson v. Lambert, 8 Id. 609; Morford v. Unger, 8 Iowa 85; Langworthy v. City of Dubuque, 13 Id. 86; Fulton v. City of Davenport, 17 Id. 404; Deeds v. Sanborn, Marshall, 26 Id. 419; Buell v. Ball, Marshall, 20 Id. 282; O’Hare v. City of Dubuque, 22 Id. 144; Davis v. City of Dubuque, 20 Id. 458; Deiman v. City of Fort Madison, 30 Id. 542; Durant v. Kauffman, 34 Id. 194; Mitchell v. Kauffman, 34 Id. 194. The mere extension of corporate territorial boundaries does not carry with it per se the right and power to tax for all municipal purposes: Seely v. City of Pittsburgh, 1 Norris 360; Hammett v. Philadelphia, 15 P. F. Smith 146; Washington Avenue, 19 Id. 352; Cooley on Taxation 104
      et seq. ; Cheaney v. Hooser, supra; City of Covington v. Southgate, supra; Morford v. Unger, supra.

    The legislature might extend the limits of Pittsburgh to any extent and yet it cannot be asserted that within the included limits she w'ould have the power to tax for all municipal purposes, particularly in those in which those taxed could have no possible interest, and from which they could derive no possible benefit. Such taxation is the taking of private property for public use.

      Thomas S. Bigelow, City Solicitor, and Greorge Shiras, Jr., for the city.
    — In the case of Smith v. McCarthy, 6 P. F. Smith 359, it was held that the Act of April 6th 1867, Pamph. L. 846, extending the limits of the city of Pittsburgh so as to embrace the plaintiff’s property, was constitutional, and that it was a question of expediency of which the legislature are the competent and exclusive judges. See also City of Philadelphia v. Fox, 14 P. F. Smith 169. In The City of Pittsburgh v. Kitty Roup, 1 W. N. C. 254, the power to classify the various kinds of property within the city limits for the purpose of taxation was declared to be legislative and sovereign in its character, and not subject to supervision by the judiciary.
    Whenever the corporate boundaries are established it is to be understood that whatever property is included within those limits has been thus included by the legislature because it justly belongs there, as being within the circuit which is benefited by the local government and which ought consequently to contribute to its burdens. After the legislature has, by including the property within the corporation, declared its opinion that such property should contribute to the local government, can the courts inquire into that question and restrain the city functionaries from assessing and collecting taxes for general municipal purposes ?
    Where the legislature in the exercise of its constitutional power extends the taxable limits of a city, a court of equity will not interfere by injunction to restrain the collection of taxes w'ithin the limits thus extended, to defray the expenses of the corporation, because such property is used for farming and pasturing purposes: Groff v. Frederick City, 44 Md. 67. That individual instances of hardship or inequality in the imposition of municipal taxes exist, is a fact universally known, and the'abolition of such is one of the problems which the wisdom of man has so far failed to solve. The existence of injustice or inequality in the enforcement of a municipal tax law has been declared and reiterated again and again by this court as insufficient as a ground upon which to pronounce such tax unconstitutional: Weber v. Reinhard, 23 P. F. Smith 370.
   Mr. Justice Gordon

delivered the opinion of the court, January 7th 1878.

The lands of James Kelly, the appellant, upon which the taxes complained of were assessed, were formerly within the township of Collins, and were afterwards, under the provisions of the Act of April 6th 1867 (Pamph. L. 846), made part of the city of Pittsburgh. That there may be no doubt concerning the subject-matter of the plaintiff’s complaint, and that we may exhibit’ precisely the nature and character of his contention, we give the 6th paragraph of his bill in extenso.

It is competent for the legislature, with or without the consent of the citizens, to enlarge the limits of any town or city, and it is competent for the defendant (city), when the requirements of'population, commercial and mechanical interests, sanitary or protective municipal purposes require it, to apply to city uses, the full extent of her territorial limits, but your orator expressly denies that such necessity or even propriety exists; on the contrary, large amounts of city territory, on either side and in front of your orator’s farm, are occupied, held and owned, without prospects of demand for city purposes for many years to come. Your orator insists that by extension of city territorial limits, the character, situation and use of his said lands were not changed, but remain an improved and occupied farm as before, and agricultural lands only, having received no benefit whatever in the way of municipal improvements, aid, protection, convenience or care; and that, therefore, they 'are not in any sense liable to municipal or city taxation for any purpose whatever, for no single benefit has been received.” Again, paragraph 18, latter part: But your orator expressly denies that the defendant had any municipal jurisdiction over his said land, or farm, or any right to impose taxes thereon, for city or municipal purposes whatever.”

We are thus presented with the broad question of the right of the city to tax rural lands within its bounds for any municipal purpose whatever. It is not admitted that the city succeeded to the rights of the township in this respect, for this would be a surrender of the whole controversy, since it is not doubtful that the township had the power to tax these lands for every lawful municipal purpose whatever.

The power of the legislature to transfer the plaintiff’s farm from the one municipality to the other is admitted; indeed that power could not, in the face of Smith v. McCarthy, 6 P. F. Smith 359, be gainsaid. But it is urged, nevertheless, that the city’s power of taxation must be suspended until this land becomes necessary for city uses. Exactly what this means we are not informed, nor do we suppose it can be certainly known except from some judicial decree not yet rendered. No doubt the meaning of the plaintiff is, that this power of the city is to be suspended or to rest in abeyance until the city is so nearly built up to his lands that they may be advantageously laid out and sold as city lots, and until this occurs they are to be exempt from all taxes of a municipa cnaracter. This proposition is novel in Pennsylvania, since we have uniformly, and heretofore without serious complaint, in boroughs as well as cities, taxed rural and even unseated lands for borough and city purposes. This doctrine is, however, supported by certain cases, cited by the learned counsel for the appellant, decided in the superior courts of Iowa and Kentucky. The bill seems closely to have followed these cases, and it is principally upon their authority that the plaintiff's case is rested. These decisions, whilst entitled to great respect, are not to be allowed to unsettle our own rules on the subject of taxation or change the current of our policy on that subject. They are, indeed, of doubtful authority; for Judge Cooley, in his work on taxation, when speaking of these very cases, remarks : that it is difficult to harmonize them with the conceded principles governing the laws of taxation ; for they, not questioning the legislation as being in excess of authority, leave it to stand, and only interfere to qualify its effect on the ground that it has been adopted on improper grounds and will operate unequally. This is done on an inquiry into the facts and a substitution of the judicial for the legislative conclusion on a subject not at all judicial; a subject too — the proper limits of city extension — upon which persons are certain to differ widely, and where inquiry, after the judicial method by examination of witnesses, is usually much less satisfactory than that personal knowledge and investigation which legislators are supposed to possess or make. It has, indeed, the effect to suspend the legislation until certain conditions influencing the judicial mind are fulfilled. We need not stop to consider the inconvenience or uncertainty of such a condition of things, or how little consonant it would be with our settled modes of thought and action on subjects of this kind. There is, however, an element in the case in hand, which either did not exist in the cases alluded to or was not sufficiently considered; that is, the subjugation of the lands to previous municipal taxes. The argument in favor of their exemption, would have more strength had they previously to their attachment to the city, been subject only to state and county rates and levies; had they not been within the dominion of any municipality equivalent to that now complained of. But the plaintiff’s property was subject to municipal taxes when it was yet in the township of Collins, hence, it is not subjected to any new or even greater powers than formerly; it has been but transferred from township to city. This element breaks the force of the plaintiff’s argument, as it leaves him nothing of which to complain; for his complaint is not that his municipal burthens are greater in the city than they were in the township, but that as his lands are now situated the city has no power to tax them in any manner whatever. This is the bald proposition submitted for our discussion ; a proposition requiring little consideration for its disposition, since there is here no room for the intervention of judicial interference, or for the exercise of judicial discretion. The legislature certainly did not exceed its powers in the act consolidating the two municipalities, and as both had the power of taxation over their several territories, that power must remain with the present corporation, and the plaintiff’s lands must continue liable for those rates and levies to which it was subject under the township government, otherwise they are exempt from those impositions for the maintenance of the public schools, the support of the poor and construction and repair of the highways, from which no one’s property ought to be exempt.

On the broad ground, therefore, on which the plaintiff has put his plaint, it cannot be maintained and must be dismissed. Considering it, however, from the less general and most favorable point of view and it but comes to this: that the taxation is unequal and burthensome, and that the complainant is taxed for some things, as police and water, from which, however necessary for the welfare of the municipality, he derives no benefit. Granted, that the tax is both, unjust and unequal, it does not follow that the remedy is within the power of the courts ; on the other hand, the contrary has been expressly ruled. In the case of Weber v. Reinhard, 28 P. F. Smith 370, Mr. Justice Sharswood says, in commenting on the case of the Philadelphia Association v. Wood, 3 Wright 73, “ the idea that the court could pronounce a tax unconstitutional on the mere ground of injustice or inequality, was expressly repudiated.” He'further remarks; “There is no provision in the constitution that taxation shall be equal. Sound policy requires that it should be so as far as possible, but perfect equality is not possible.”

So in Kirby v. Shaw, 7 Harris 258, Gibson, C. J., says, “As regards taxation, there is no limitation of it. Equality of contribution is not enjoined in the Bill of Rights, and, probably, because R was known to be impracticable.” That the person taxed derives no immediate personal benefit from the purposes to which the taxes are appropriated, is, in like manner, no argument against the constitutionality of the law imposing them. Eor if direct personal benefit were to form a criterion for taxation we should have half the community clamoring at our doors for relief. What interest, direct and personal, has the unseated landowner in the schools or poor of the borough or township in which his lands lie ? Or, for that matter, what interest has any one, not having children to educate, in the schools of either township, borough or city ? Why shall one pay road tax when roads are of no benefit to himself or his property ? Why shall he help pay the expenses of a fire department when his property is so situated that it may burn down before an engine can reach it ? Or, why, either in the country or city, having a supply of water on his own premises, shall he pay a water tax ? To these questions there is but one answer; these things are intended for the public good, and hence, every one is indirectly if not directly,‘benefited thereby; the taxes, levied for their maintenance, are a public burthen and therefore every one must contribute to its support. If, however, this burthen rests unfairly heavy upon some classes or upon some individuals the remedy is not with the courts but with the legislature. As is said in Kirby v. Shaw, the judiciary could interfere, only, “ by overstepping the limits of its sphere; by arrogating to itself a power beyond its province ; by producing intestine discord, and by setting an example which other organs of the government might not be slow to follow.” But the legislature has granted all the relief that the plaintifl' and his class ought, in reason, to expect or ask, for at the time of filing of this bill, rural lands were authorized to be taxed at but two-thirds of the ordinary municipal rates, and now, by the Act of May 5th 1875, Pamph. L. 124, at but one-half those rates. Thus the injustice and inequality of the taxation complained of, has been, if not wholly obviated, at least, very much mitigated.

Again, taxation is peculiarly a legislative function, and, before wTe undertake to revise it, we should have a clear warrant therefor in the letter of the constitution. “ A tax law must be considered valid, unless it be for a purpose in which the community taxed has no palpable interest — when it is apparent that the burthen is imposed for the benefit of others, and when it would be so pronounced at first blush Sharpless v. The Mayor of Philadelphia, 9 Harris 147 (Black, C. J.); Speer v. Blairsville, 14 Wright 150 (Agnew, J.) But in the present case there is no doubt that the community, called the city of Pittsburgh, of which the plaintiff is a member, has a direct and vital interest in the taxation complained of, and such being the case, there is an end of our power to grant relief.

It will not do for us to stop to consider the peculiar interests of the individual as segregated from the community, for if we should so do, few tax laws could be enforced, since it often if not generally happens that such laws bear hardly upon some individuals, and not unfrequently individual interest is opposed to that of the public. We must have regard to the public welfare. If it bo not shown to us that the legislation is for the promotion of'the good of some other party or community than the one taxed, we have no right to pronounce it unconstitutional. The individual must be regarded as interested in the public welfare, hence his interest must be looked for in that of the community of which he forms part. Now, it may be true that the plaintiff is not personally benefited by either the educational or poor department of the city; but neither is any one not having children to educate, and not being himself a pauper. Yet, for such reason wo are hardly prepared to stay the hand of the collector of school and poor rates. Ho may not be personally benefited by the fire or police department; but the general municipality is largely benefited thereby, and his welfare is found in the prosperity of that municipality. As was well said by the learned master to whom this case was referred, the value of the plaintiff’s property has, heretofore, depended upon- the growth and prosperity of the city; but these, in turn, depend upon the character of the city streets and police department, and upon its water, gas, and educational facilities. Without these it would fall into decay, and the value of real estate within the boundaries of the municipality, including that of the complainant, would be incalculably reduced. It is thus apparent that the plaintiff has not only a general, but a direct interest in the objects which the taxation complained of is intended to promote.

Decree affirmed.

Agnew, C. J., and Sterrett, J.,

dissent, Agnew, C. J., filing the following opinion.

The leading facts of this case, raising an important questiomupon the power of taxation for city purposes, .alleged in the bill, and either not denied in the answer or found by the master, are these: The limits of the city of Pittsburgh were extended to embrace a large tract of country composed of farm lands, including the rural townships of Pitt, Oakland, Collins, Liberty and Peakes. The plaintiff owns a farm of eighty acres, bounded by farms, excepting an adjacent parcel of about twenty acres laid off into lots. On the north of his tract lie about one thousand acres in farms, and surrounding and between it and the city lie other farms. His tract i‘s used for farming and dairy purposes only. It was not brought into the city with his consent, and has not been laid off into lots. It lies distant from gas-pipes and lamps, water-pipes, sewers, police beats, and fire appar-atus. It has no streets or lanes maintained for city uses, excepting those prior existing roads which were and are sufficient for the use of his farm. It has springs of water sufficient for its use. In consequence of being brought within the city limits it is taxed a sum of $2117, on a valuation of $244,000 for city purposes alone, exclusive of county, poor, and ward school taxes, while the productive yearly value as a farm is $10 per acre, or $800 for the whole.

The master has' discussed a, number of immaterial questions; for example, the system of valuation and its conclusiveness, the power of the city to extend works into the tract, and the ability of Kelly to lay off his land into city lots. These, however, concern the future chiefly, and afe aside from the true question, that of power, to wit: the authority of the city to burthen such property in its existing condition, with taxes for merely city purposes. The rightful power of the city to do this is rested primarily on the power of the legislature to extend the city limits over farm lands. The power to extend is conceded. It is often necessary as a wise preparation to bring such lands into a state necessary to adapt them to future progress. But this concession to the power of extension, and general municipal jurisdiction, gives no power to tax farms having no need of city improvements for exclusively city purposes. The powers are essentially different. It might as well be argued that the extension, by Act of Assembly, of the limits of Pittsburgh to the boundaries of Allegheny county, or to that part lying between the rivers Monongahela and Allegheny, would confer a power upon the city to tax all the farms in the county or that section of it between the rivers, for gas, water, police, fire and other city uses. The difference is not in principle, but only in extent of surfaces. It is just as illegal to tax these farms in the several townships heretofore named, as to tax all the townships in that section between the rivers. The latter only exhibits the abuse more palpably. The owners of these farm lands in the townships brought within the limits, have no common interest or benefit of the improvements in the built up, or true city.

If the legislature can, by a mere extension of boundary, authorize the city to tax farm lands for purely city purposes, it might, without extension, direct all farms, within given lines, outside of the city, to pay these city taxes. Thus, when we get rid of that confusion of thought which confounds extension of boundary and power of taxation, we perceive that taxes laid on mere farm lauds to pay city levies applicable only to the built-up or true city, is nothing more than an order to farmers to pay for the benefit of the city residents; it is taking the money of A. to pay for improvements made for the use of B. This is palpably and flagrantly unjust, and therefore against common right. If the legislature itself cannot compel farmers to pay city taxes for purely local purposes in which they have no share, it is clear it cannot authorize the city to do indirectly what it cannot do directly. An order, with or without the extension of boundary, upon a certain class to pay taxes for local benefits conferred on others, is wholly different from a power to lay a general tax for the support of government. The latter is a power to which every citizen of a state submits himself in consideration of the general benefits derived from government. But as to the former, it is well said, in Bradshaw v. The City of Omaha, 1 Nebraska 16, that the object is to make the owners of farms divide the expense of supporting the municipal government with those who need it; that the true city is the built-up part; while the levy of taxes on farms is to confiscate property outside for the benefit of those within the true city. See, also, Taylor v. Porter, 4 Hill 140; Holden v. James, 11 Mass. 896.

The power of the legislature is clear to divide the state, for convenient local government, into counties, townships, cities, boroughs, &c., conferring on each an appropriate autonomy. But in doing this, the powers conferred must be adapted to the ends to be accomplished by each. A sound and largo discretion is necessarily exercised in this adaptation of powers. But it is equally clear that the powers conferred must have a reasonable appropriatenesss to the end proposed. Such an exercise of power only can fairly comport with the true and acknowledged principles of our-American governments, which are all founded on the rights of the people, and for their “peace, safety and happiness:” sect. 2, Declaration of Rights, New Constitution. These principles are well stated by Justice Chase, in Calder v. Bull, 3 Dallas 386: “ The people of the United States,” he says, “erected their constitutions or forms of government to establish justice, to promote the general welfare, to secure the blessings of liberty, and to protect their persons and property from violence. The purposes for which men enter into society will determine the nature and terms of the social compact; and as they are the foundation of the legislative power, they will decide what are proper objects of it. The nature and ends of legislative power will limit the exercise of it.” Again : “ There are acts which the federal or state legislatures cannot do without exceeding their authority. There are certain vital principles in our free republican governments which will determine and overrule an apparent and flagrant abuse of the legislative power; as, to authorize manifest injustice by positive law; or, to take away that security for personal liberty or private property for the protection whereof the government was established.”

The same thoughts were thrown out by Chief Justice Marshall, in Fletcher v. Peck, 6 Cranch 87: “It may well be doubted,” he says, “ whether the nature of society and of government does not prescribe some limits to the ^legislative power; and if any be prescribéd, where are they to be found, if the property of an individual, fairly and honestly acquired, may be seized without compensation ? To the legislature all legislative power is granted; but the question whether the act of transferring the property of an individual to the public be in the nature of the legislative power, is well worthy of serious reflection.”

- This is precisely the question before us, whether, under the mere name or color of taxation, the. legislature can confer on a city a power to transfer the money or property of farmers outside of the true city, to those who live within it, for purposes by which they alone are benefited ?

The inviolability of the right of private property and the natural boundary of the legislative power has been enforced already in this state in the case of Washington Avenue, 19 P. F. Smith 363, in these words: “ When, therefore, the constitution declares in the ninth article, that among the inherent and indefeasible rights of men is that of acquiring, possessing and protecting property, that the people shall be secure in their possessions from unreasonable searches and seizures; that no one can be deprived of property unless by the judgment of his peers or the law of the land; that no man’s property shall be taken or applied to public use without 'just compensation being made; that every man for an injury to his lands or goods shall have remedy by due course of law, and right and justice administered without sale, denial or delay, and that no law impairing contracts shall be made, and when the people to guard against transgressions of the high powers delegated by them have declared that all these rights are excepted out of the general powers of government, and shall for ever remain inviolate, they for their own safety stamped upon the right of private property an inviolability which cannot be frittered away by verbal criticism on each separate clause, nor the united fagot broken stick by stick, until all its strength is gone. There is a clear implication from the primary declaration of the inherent and indefeasible right of property, followed by the clauses guarding it against specific transgressions that covers it with an aegis of protection against all unjust, unreasonable and palpably unequal exactions, under any name or pretext; nor is this sanctity incompatible with the taxing power, or that of eminent domain, where for the good of the whole people burdens may be imposed or property taken. I admit that the power to tax is unbounded by any express limit in the constitution; that it may be exercised to the full extent of the public exigency. I concede that it differs from the power of eminent domain, and has no thought of compensation by way of return for that which it takes and applies to the public good, further than all derive benefit from the purpose to which it is applied. But nevertheless taxation is bounded in its exercise by its own nature, essential characteristics and purpose. It must, therefore, visit all alike in a reasonably practicable way, of which the legislature may judge, but within the just limits of what is taxation. Like the rain it may fall upon the people by districts and by turns, but still it must be public in its purpose and reasonably just and equal in its distribution, and cannot sacrifice individual right by a palpably unjust exaction, to do so is confiscation, not taxation; extortion, not assessment; and falls within the clearly implied restrictions of the Bill of Rights.”

Therefore, while we concede the wide range to be given to legislative discretion in adapting the means to the end, that is, to the purposes of local government, there is a limit beyond which the legislative power cannot sacrifice the sacred right of private property. This limit is reached when it palpably and plainly sacrifices this right, which the people themselves have jealously guarded against transgression in their fundamental law. There must be, therefore, a reasonable appropriateness in the means employed to execute the legislative purpose. This has been well expressed by Chief Justice Marshall, that bright luminary of constitutional law, in discussing the power of Congress, under the 19th clause of the 8th section of the 1st article of the Federal Constitution, to make all laws necessary and proper for carrying into execution the federal powers. “ But we think (he said) the sound construction of the constitution must allow to the national legislature that discretion with regard to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be Avithin the scope of the constitution, and all means Avhich are appropriate, which plainly are adapted to that end, which are not prohibited, but consist Avith the letter and spirit of the constitution; are constitutional:” McCulloch v. Maryland, 4 Wheaton 316. The italics are mine.

This was said by that greht jurist of an express poAver to pass all laAYS necessary and proper to execute expressly conferred poAvers — the means must be appropriate — must be plainly adapted to a legitimate end — one not prohibited, but consistent with the letter and spirit of the constitution. Hoav much stronger then does the language apply to a case like this, Avhere no express power over the means is given, but the poAver is left to be inferred only from its appropriateness.

The taxing power conferred on the city, therefore, cannot éxtendto such a case as this, where a ruinous burthen is laid on land wholly rural and outside of the city proper, for purely local and city objects,'in Avhich Mr. Kelly the OAvner has no interest. This distinction betAveen local taxation for purely local purposes, and general taxation by the state, in which all are interested, cannot be overlooked or thrust aside. It is the very pivot of the question: People v. Mayor of Brooklyn, 4 Comst. 419; Morse v. Stocker, 1 Allen 159. It is not the extension of boundary Avhich is unconstitutional, but it is the imposition of a burthen, where it is palpably and flagrantly unjust and contrary to common right: Bradshaw v. Omaha, 1 Neb. 16.

We are not without very respectable and numerous precedents for the doctrines contended for. The very point in question is decided in the following cases: Cheaney v. Hooser, 9 B. Mon. 330; Covington v. Southgate, 15 Id. 491; Morford v. Unger, 8 lovva 82; Langworthy v. Dubuque, 13 Id. 86; Fulton v. Davenport, 17 Id. 404; Bradshaw v. Omaha, 1 Neb. 16. The opinions in some of these cases are elaborate, well-considered, and very convincing to my mind.

Much of the answer given to this view of the natural right of property secured by constitutional limitations, is a mere criticism on words. Thus it is said the protection claimed refers only to the power of eminent domain, which relates to a taking, not a taxation of property. Even this clause is entitled to a liberal interpretation : Pearce’s Heirs v. Patton, 7 B. Mon. 162. But the Declaration of Rights does not confine its protection to this clause, when it declares the inherent right of private property, and places it on the same high plane of protection as the rights of life and liberty, or when it declares that the possessions of the people, as well as their persons, houses and papers, shall be secure from unreasonable seizures ; and when it asserts that free governments are instituted for their peace, safety and happiness. Indeed, the whole circle of fundamental rights rise up in earnest protest against the doctrine of the absolute despotism of the legislative power over property; while the clause relating to the power of eminent domain only strengthens the protest. It is not the province of the courts, which stand between the citizen and the abuse of power by public servants, to fritter away these clauses to mean next to nothing. Eminent domain is simply high and eminent dominion, and is but another name for sovereignty. Specially, it is but one of the powers of sovereignty, which includes the taxing power as well as that which takes. Taxation exacts of the owner of property a share of the public burdens, as his just proportion, for the benefits received from the government. Eminent domain goes a step farther, and takes more than a j ust share, and therefore awards compensation for the excess : People v. Brooklyn, 4 Coms. 420. But it is evident that both are founded on the consideration of benefits conferred in some form. Sovereignty, in a constitutional government under a bill of rights, imports'no arbitrary power for any purpose. What is taxation but a delegated power, and therefore subject to the fundamental rights of men, which government is intended to protect, when the exercise of this power conflicts with them without just cause V If the power to tax be absolute and unbounded by just cause, there is no protection whatever. You cannot take property without just compensation ; but you may tax it to destruction. You may not lop off a limb or cut off the head without a just cause, but you may bleed the whole trunk to death. Or if you cannot find a good cause, you may presume it; or you may find it in some infinitesimal quantity to furnish a pretext. Clearly, the power of taxation is not so destructive. It is bounded by the exigency which calls forth its exercise. Kirby v. Shaw, 7 Harris 259, a case admittedly on the verge of the taxing power, contains probably the strongest expressions of the absolute character of the taxing power; yet these must be taken in reference to the case itself which called them forth, and it was one where a special benefit was conferred on the borough of Towanda, and the chief justice made this the corner stone of his argument.

In discussing this question, the advocates of unlimited power ignore the distinction so palpable between the general power of taxation for the benefit of the whole state, though laid in districts, and the imposition of local burthens in return for specific benefits. As to the former, all men participate more or less in the general advantages of government; but there can be no such postulate for the latter, where it is palpably clear the local burthen is imposed without just cause and is plainly for the benefit of others. And a court must regard a substantial return not a merely speculative or shadowy benefit, which amounts to no more than a pretext.

. When, therefore, the exercise of the power of local taxation is manifestly arbitrary and palpably unjust and without just cause, when, according to Chief Justice Marshall, it is not “ appropriate’’ to the true purpose of local or city government, it is not constitutional, it infringes the fundamental rights of the citizen and is void. This is the rule laid down in Sharpless v. City of Philadelphia, 9 Harris 164, and many other cases to determine the constitutionality of laws: Fletcher v. Peck, 6 Cranch 87; Cooper v. Talfain, 4 Dallas 14; Eakin v. Raub, 12 S. & R. 339; Commonwealth v. Smith, 4 Binn. 123; Cheaney v. Hooser, 9 B. Mon. 330; Morford v. Unger, 8 Iowa 82; Bradshew v. Omaha, 1 Neb. 16. In this case it is palpably, clearly plain, that as to gas, water, fire and police, Kelly’s farm is taxed for purely city purposes in which it has no share. It is perfectly manifest that his money is transferred to a local use for the benefit of others. Why then 'shall a court hesitate to pronounce the burthen contrary to right, and void. No stronger authority will be found for the principle I have insisted upon than the decision of the whole court in the case of the Bridge over Sawmill Kun, ante 163. The very foundation of the opinion of Justice Woodward is the absence of peculiar benefit to the party assessed. On the doctrine of general benefits, or a supposed or infinitesimal benefit the assessment was valid. Its rejection proves that this court does look at the nature and practical operation of the charge, and the want of any substantial return for the tax, in local taxation.

Keferenee is made to the Kitty Eoup case as covering this. That is a mistake. • It decides one point only, the power under the new constitution to classify the subjects of taxation. But the power to classify is essentially different from the power to impose any tax. Classification implies that the subject is taxable for a proposed purpose. But our question is upon the power to impose any tax for gas, water, fire and police. The classification into urban and rural, the only point in the Kitty Eoup case that had a majority of the court, does not determine whether the rural is subject to a tax for merely city purposes. Some rural properties may be subj ect, for they may have the benefit of gas, water, police and other city advantages. But when the property is, as here, a farm not subject to the tax for these city purposes, it is manifest that classification has nothing to ' do with the case. Classification merely reduces the amount of the tax on the subject of the classification (when it is a taxable subject)' to two-thirds if rural. But the point made in this case is that the subject is not taxable at all for these purely city uses, and the tax is, therefore illegal in whole and in part. It is not taxable for two-thirds or any other proportion. It is not a tax for those general purposes which concern the state, such as county, poor, road and school tax. That would bring the case within the general taxing power. In such a case it is immaterial whether the tax is imposed over the state at large, or in districts, for the purposes are those of general advantage.

We have arrived just at that point in the history of local taxation where, in my judgment, this court should stand firmly as the bulwark of human rights to prevent their sacrifice in detail and by gradual encroachment. If the rights of property can be taken or taxed away, without a justifiable cause to bring the legislative act within the just powers of government, it is confiscation, not legal contribution. Planted on the broad foundation of the rights of men, I shall stand alone, if no one go with me, in the defence of constitutional liberty, opposed to every scheme of plunder, however gilded or bright, which the tenants of municipal places may devise.


source: Caselaw Access Project

author: Mr. Justice Mercur

license: Public Domain

text:
    Pittsburgh, Cincinnati and St Louis Railway Company versus Marshall.
    1. The merits of the original judgment cannot be entered into by the defendant in a scire facias upon that judgment.
    2. A decree of court declaring the mortgages executed by a railroad company to he the first lien on its property and franchises, does not give them precedence over the prior lien of a party who had no notice of the proceedings and was not a party nor privy to the decree.
    October 5th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1876, No. 190.
    This was a scire facias to revivo and continue the lien of a judgment.
    In February 1868, Frederick Marshall recovered a judgment against the Pittsburgh and Steubenville Railway Company, for §5956.11, in default of an appearance and affidavit of defence, the action being in assumpsit for work done by the plaintiff’ in the construction of the road of said company.
    The suit was brought on two orders, drawn by the president and directors of the Pittsburgh and Steubenville Railway Company, which were severally dated September 16th 1856, and accepted by the president of said company on the 12th day of May 1862, together with an acknowledgment of indebtedness, without date, signed by the secretary of tho company. A scire facias issued “ with notice to the Pittsburgh, Cincinnati and St. Louis Railway in accordance with the provisions of the Act of Assembly of April 4th 1862, relative to assignments, &c.,” to continue the lien of the plaintiff’s judgment against the defendant’s road, and to show cause why execution should not he levied thereon, and in February 1869, judgment by default was recovered against the said Pittsburgh, Cincinnati and St. Louis Railway, for the original judgment with interest. On this judgment, and to revive and continue this lien, another scire facias issued in November 1873, and the affidavit, which in substance follows, was filed in this last proceeding in pursuance of an agreement between counsel that it “ should be treated with like efiect as if the same had been filed in proper time under the rules of court in this case.”
    The affidavit of defence filed by the Pittsburgh, Cincinnati and St.' Louis Railway Company denied any indebtedness to the plaintiff or to the Pittsburgh and Steubenville Railway Company, or any connection with said company, either as vendee, assignee or otherwise, and denied further, that the Pittsburgh and Steubenville Railway Company made any assignment so as to hinder, delay, postpone, endanger or defeat creditors, and averred that the Pittsburgh and Steubenville Railway Company was incorporated March 24th 1849; that on August 1st 1856 (nearly six years prior to the date of plaintiff’s acceptances on which he recovered his judgment) said company executed a mortgage to Thomas McElrath on all its property and franchises; that subsequently said company issued another mortgage on all its property and franchises to the Western Transportation Company; that in 1856, McElrath filed a bill in equity in the Supreme Court to foreclose the mortgage of which he was trustee; that said effort was successful, and a decree entered for the sale of said road. (See McElrath et al. v. Pittsburgh and Steubenville Railway et al., 5 P. F. Smith 189.) That, in accordance with this decree, said road was sold on the 6th of March 1867, and the fund realized therefrom distributed by a master in chancery; that the purchaser and those in whose behalf he purchased, organized the Pan-Handle Railroad, which by subsequent transfers and consolidations with other railways finally became a corporation under the corporate name of the Pittsburgh, Cincinnati and St. Louis Railway Company. It was admitted that the work for which recovery was sought was done in the construction of the Pittsburgh and Steubenville Railway Company.
    Upon the filing of the above affidavit the plaintiff entered a rule for judgment for want of a sufficient affidavit of defence, assigning as a reason that under the facts, as admitted by said affidavit, the plaintiff is entitled to judgment, the whole question having-been fully considered and recently decided by the Supreme Court of the United States in the case of Edmund Fox v. Jos. H. Seal et al., 22 Wall. 424. See report of same in Pittsburgh Legal Journal of March 10th 1875.
    On the 1st of July 1876, the court made the rule absolute and entered judgment for the plaintiff for $9113.38, which entry was assigned for error by the company which took this writ.

      Hampton & Dalzell, for plaintiff in error.
    — Frederiók Marshall, tlie plaintiff below, has no claim against the Pittsburgh, Cincinnati and St. Louis Railway Company, the defendant below, unless by virtue of the legislative resolution of January 21st 1843 (Purd. Dig. 1, p. 90), which is in these words :
    “ It shall not be lawful for any company incorporated by the laws of this Commonwealth, and empowered to construct, make and manage any railroad, canal or other public improvement, while the debts and liabilities, or any part thereof, incurred by the said company to contractors, laborers and workmen employed in the construction or repairs of said improvement remain unpaid, to execute a general or partial assignment, conveyance, mortgage, or other transfer of the real or personal estate of the said company, so as to defeat, postpone, endanger or delay their said creditors, without the written assent of the said creditors first had and obtained; and any such assignment, conveyance, mortgage or transfer shall be deemed fraudulent, null and void-, as against any such contractors, laborers and workmen, creditors aforesaid.”
    Marshall cannot invoke the protection of this resolution, because the mortgage, under which the defendant in error claims, was executed prior to the time when the Pittsburgh and Steubenville Railroad Company’s liability to Marshall arose, lie did not become a creditor of the company until May 12th 1862, while the mortgage w'as executed August 1st 1856.
    The evidences of his claim are two orders on the Pittsburgh and Steubenville Railroad Company, dated September 16th 1856, accepted by said company May 12th 1862, and an acknowledgment of indebtedness presumably of the latter date. There is no averment in the affidavit of claim that these accepted orders represent the price of work done prior to August 1st 1856, or that the certificate of indebtedness is for work done at all; and certainly no presumption exists to supply a material averment omitted in the plaintiff’s own statement of his case.
    Fox v. Seal, 22 Wall. 424, Tyrone and Clearfield Railroad Co. v. Jones, 29 P. F. Smith 60, do not rule this case, as in both those cases the claims enforced originated prior to the conveyances which were declared invalid, while here the liability to Marshall arose after the execution of the mortgage.

      Thomas C. Lazear, for defendant in error.
    — This case is a scire facias to revive and continue the lion of a judgment. The affidavit of defence, in the absence of the agreement of counsel under which it was filed, was, therefore, a nullity, for it sought to go behind the judgment and to set up matters entering into its merits. But in no case of a scire facias on a judgment is a defence of this kind allowed, nothing being admissible as a defence except matters occurring since the rendition of the judgment, as a release or satisfaction : Cardesa v. Humes, 5 S. & R. 68; Curtis v. Slosson, 6 Barr 265.

      The affidavit of defence, therefore, so far from alleging anything that would impugn the plaintiff’s original judgment, or tend in the slightest degree to show that it was not within the protection of the resolution of January 21st 1843, admits all that is necessary to sustain it, unless the sale under the mortgage and the subsequent assignments mentioned in the affidavit, would have defeated the original scire facias in which the judgment was recovered. But that the mortgage and assignments rvould not have this effect, it is enough to refer to the cases of Fox v. Seal, 22 Wall. 424, and the Tyrone & Clearfield Railroad Co. v. Jones, 29 P. F. Smith 60. The liability arose when the work was done by him on the company’s road, some time prior to the 1st of November 1855. The orders, &c., mentioned in plaintiff’s affidavit as evidences of the debt, and bearing date subsequently to the performance of the work, are only evidences, but by no means the creation of the debt. To say that they were would not only be an assumption without proof and against the truth, but against the positive admissions of the defendants themselves verified by their affidavit.
   Mr. Justice Mercur

delivered the opinion of the court, October 22d 1877.

The original judgment was against the Pittsburgh and Steuben-ville Railroad Company. It was recovered for work done by the defendant in error in the construction of the railroad for that company. The indebtedness was evidenced by written certificates dated 16th September 1856. The corporation became insolvent. All its property, real and personal, and its franchises were sold under a decree of court, and the company ceased to exist. The purchaser and others for whom he acted, organized a railroad company. After some further changes and transfers, the whole property and franchises became vested in the plaintiffs in error; subsequently to this a scire facias issued on the original judgment, with notice to the plaintiffs in error, under the Act of April 4th 1862, Purd. Dig. 91, pi. 6, and judgment by default was duly recovered against it. On that judgment, and to revive and continue the lien thereof, this scire facias issued. It issued against the same parties who were defendants in the judgment recovered on the former scire facias. The plaintiffs in error were therefore restricted in their defence to either denying the existence of the judgment on which the sci. fa. issued, or to showing payment or some equitable defence, which had arisen subsequent to its rendition. It is well settled that the merits of the judgment on which the scire facias issued-cannot be inquired into: Cardesa v. Humes, 5 S. & R. 68; Lysle v. Williams, 15 Id. 135; Davidson v. Thornton, 7 Barr 128; McVeagh v. Little, Id. 279; Alden et al. v. Bogart, 2 Grant 400; Stewart v. Colwell, 12 Harris 67.

No plea of mil tiel record was interposed. The affidavit of defence avers no fact which has arisen since the recovery of the former judgment.

It is true an application made to open that judgment was refused; but the action of the court therein is not before us for review. It therefore stands in substance and in form on the record as a valid judgment, and conclusive of the matters therein adjudged.

It is contended that the decree made in McElrath v. The Pittsburgh & Steubenville Railroad Co., 5 P. F. Smith 189, declaring the mortgage executed by that company to be the first lien on its property and franchises, gave it priority over the lien of the defendant in error, and that the sale under the mortgage divested all other liens.

Inasmuch, however, as the defendant in error had no notice of those proceedings, and was neither a party nor privy to that decree, he is in nowise bound thereby.

It is further urged that giving due effect to the cases of Fox v. Seal, 22 Wall. 424, and Tyrone & Clearfield Railroad Co. v. Jones, 29 P. P. Smith 60, yet, inasmuch as the affidavit of defence avers that the mortgage, under which the plaintiff in error claims, was executed on the 1st of August 1856, that is prior to the date of the certificates, on which the defendant in error recovered, and therefore the lien of the latter was divested by the sale under the mortgage.

The affidavit omits to state on what day the mortgage was delivered or recorded. The case of McElrath v. Pittsburgh & Steubenville Railroad Co., supra, is referred to as establishing the priority of its lien. A reference to that case shows that while the mortgage was dated on the 1st of August 1856, yet it was not, in fact, until the 9th of October following that the final order was made for the issuing thereof. It was acknowledged on the day thereafter, and not recorded until the 20th of October. The lien of the defendant in error was therefore prior in time; hence it follows that the defence set up is not only too late in point of time, but manifestly insufficient, if it had been averred during the pendency of the first scire facias.

Judgment affirmed.

Agnew, C. J., dissents.


author: Mr. Justice Gordon

text:
    Beckert et al. versus City of Allegheny et al.

    1. The Act of Assembly of May 10th 1871, Pamph. L. 665, entitled “ An Act relative to grading, paving, curbing and otherwise improving Troy Hill road in the city of Allegheny,” and its supplement of April 1st 18-72, Pamph. L. 607, authorized the councils of said city to grade, pave and curb said road from Yinial to Garden streets, which improvement was wholly within said city, i the cost and expense of the same to be assessed' by three disinterested lree-¡ holders of said city as viewers, “upon all property in said city and Reserve) township which they should deem benefited thereby.” Held (reversing the court below), that the act and its supplement are unconstitutional and void, as they do not express in the title the purposes for which they were enacted, and are of no effect as to persons outside the city of Allegheny.
    2. It was contended that the hill ought not to be maintained because objection should have been made at the commencement or during the progress of the work, and that by remaining passive until the city had incurred the expense of constructing the road the relators were guilty of laches. Held, that they were not bound to object during the progress of the work or until the assessments were made, as until made they did not know wha.t they would be required to contribute.
    3. Dorsey’s Appeal, 22 P. F. Smith 192, followed; Blood w. Mercelliott, 3 Id. 391, distinguished.
    October 5th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Appeal from the decree of the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1876, No. 185. In Equity.
    This appeal was from a decree refusing an injunction, and dismissing complainant’s bill in equity.
    The bill was filed by E. Beckert and others, against the city of Allegheny and D. McEerron, treasurer of said city, and was in substance as follows:—
    That by “An Act relative to grading, paving, curbing and otherwise improving Troy Hill road, in the city of Allegheny,” approved May 10th 1871 (Pamph. L. 665), the councils of said city were authorized to grade, pave and set with curb-stone, Troy Hill road from Yinial street to Garden street.
    That said act further provides that the cost and expense of said improvement shall be assessed upon all property in said city and in Reserve township, which they may deem benefited thereby — the apppointment of viewers, their action, and the lien and assessments, to be as far as possible as provided for street openings in said city, by an act entitled “ An Act relative to streets in the city of Allegheny,” approved April 1st 1870.
    That by a supplement to said act, approved April 1st 1872 (Pamph. L. 607), entitled “ A supplement to An Act entitled ‘ An Act relative to grading, paving, curbing and otherwise improving Troy Hill road, in the city of Allegheny, approved the 10th day of May, Anno Domini one thousand eight hundred and seventy-one,’ ” the councils of the city of Allegheny were authorized to issue bonds to an amount not exceeding seventy-five per cent of the estimates for such work, the money realized therefrom to be paid to the contractors as the work progressed.
    Said supplement also provided that if said viewers shall find property outside of said city and Reserve township benefited by said improvement, they shall have power to assess the same as fully as though situate therein.
    And further provided that the viewers’ report, when confirmed by councils, should be final and conclusive, without exception or appeal; that a copy thereof should be filed in the prothonotary’s office; that the assessments should be payable in four equal annual instalments with interest; that if any instalments thereof are not paid, liens shall be filed and writs of levari facias and scire facias issued thereon, and that said assessments and the interest, fees and costs shall remain a lien upon the property assessed from the commencement of the work until fully paid.
    That the councils of said city, on the 27th of November 1872, adopted an ordinance authorizing the grading, paving, curbing and otherwise improving of Troy Hil road from Vinial street to Garden street, and by virtue thereof the street committee of councils contracted for the grading, paving and curbing of said street.
    That the engineer of said city reported to the viewers appointed to make the assessments for said improvement, the cost of said improvement, and the controller of said city reported that bonds had been issued, for the purpose of said improvement, to the amount of $70,000; whereupon said viewers made an assessment upon the property of the plaintiffs situate in Reserve township, and of others situate in the city of Allegheny, in the sum of $84,445, which was subsequently, on the 25th day of November 1875, approved by the councils of said city.
    That said improvement of Troy Hill road from Vinial street to Garden street is wholly within the corporate limits of the city of Allegheny.
    That the plaintiffs are respectively owners of land in said township of Reserve, and said city of Allegheny, by its officers, threatens to enter liens against the lands of the plaintiffs.
    The bill then averred that the said Act of May 10th 1871, and its supplement, are unconstitutional, null and void, as to the plaintiffs and their property, in that they empower the city of Allegheny to make and collect assessments upon persons and property not embraced within its corporate limits; that said act and its supplement are unconstitutional, null and void, because they do not express in their title the purpose for which they were enacted, and because they each contain more than one subject; that the plaintiffs have no adequate remedy at law to prevent the filing of liens against their lands.
    And prayed for equitable relief as follows :—
    1. That said city of Allegheny be restrained from entering liens against plaintiffs for said assessments.
    2. That the said Act of Assembly of May 10th 1871, and its supplement, be declared unconstitutional and void, so far as it affects the plaintiffs and their property.
    3. That said assessments upon the lands of the plaintiffs be declared null and void, and that the defendants may be enjoined and restrained from enforcing and collecting the same.
    To which bill the defendants, on June 8th 1876, filed an answer admitting:

      That the facts set forth in plaintiffs’ bill are true, and alleging: that Troy Hill road, from Yinial to Garden street, ascends a steep hillside, and the improvement, owing to the extent of the cut, rendered necessary in procuring a proper grade, is of but little benefit to any of the property abutting, -whilst the cost of said improvement largely exceeds the value of said property; that the property of plaintiffs is situate within the “Reserve tract,” and along and close to the city line; that plaintiffs have no other practical road to and from the business centres of Pittsburgh and Allegheny, and their property is largely benefited by said improvement.
    A motion for a preliminary injunction was denied, June 26th 1876, and on the same day the cause was ordered on the equity argument list for final hearing on bill and answer.
    On July 8th 1876, after argument, the court made the following decree:—
    “ Injunction refused and bill dismissed, without prejudice to complainants to set up the matter’s contained in the bill by way of defence to a scire facias on the lien, or any other common-law action.”
    From this decree this appeal was taken

      Miller & McBride and A. M. Brown, for appellants.
    — As to property outside the city, the levies complained of are local assessments to pay for improvements that are a general benefit, and as such are unconstitutional: In re Washington Avenue, 19 P. F. Smith 352. The grading.and paving of a street in a city must, from the necessity .of the case, be regarded solely as a public benefit,. as respects persons and property not within the corporate limits. The legislature cannot authorize a municipal corporation, charged with the subordinate government of persons and things within its limits, and having, as incident to this, power to tax these persons and things for local purposes, to impose a tax upon lands lying beyond the corporate limits: Cooley on Con. Lim.. 500; Cooley on Taxation 121; Wells v. City of Weston, 22 Mo. 385; St. Charles v. Nolle, 51 Mo. 122; City of Covington v. Southgate, 15 B. Mon. 491; Morford v. Unger, 8 Iowa 82; Wilkey v. Pekin, 19 Ill. 160; New Albany v. Meekin, 3 Ind. 481; Butler’s Appeal, 23 P. F. Smith 451.
    The act in question and its supplement are unconstitutional, because they do not express in their title the purpose for which they were enacted. As has been argued, the only purpose of these enactments was the extension of the power of the city of Allegheny to make and collect assessments for grading, paving and curbing its streets, over persons and property in Reserve township, and other localities beyond its corporate limits. If so, the title should have expressed this purpose, and failing to do so, the acts aré unconstitutional and void.
    Notice is the primary object of the constitutional provision whose protection we invoke. But what resident of Reserve township, upon reading the titles of these acts, would imagine that under the harmless title of “ An Act relative to grading, paving and curbing and otherwise improving Troy Hill road, in the city of Allegheny,” a law was to be enacted subjecting his real estate to assessment and lien to pay for such improvement? Dorsey’s Appeal, 22 P. F. Smith 192.

      W. B. Rodgers, City Solicitor, and M. W. Acheson, for the appellee.
    — The improvement is a local benefit to a district composed of a part of Allegheny city and a part of Reserve township, and no property was assessed outside thereof.
    The legislature may create such a district, and may tax a class of persons or lands benefited, to be designated by public agents appointed for that purpose, without regard to town, county or district levies: The People v. Brooklyn, 4 N. Y. 430; Shaw v. Dennis, 5 Gill. (Ill.) 416; The People v. Lawrence, 36 Barb. 177; Malchus v. Highlands, 4 Bush 547; Kirby v. Shaw, 7 Harris 258; Philadelphia v. Field, 8 P. F. Smith 320; Angell on Highways, sect. 171, and note. “ Although the general law provides for the maintenance of all roads and bridges, by imposing upon each toAvn the support of those that are Avithin its limits, yet the legislature may undoubtedly by general provision, or special statute, modify this general rule in particular cases, to make the distribution of the burden more equal, than it might otherwise prove to be in its operation:” Com. v. Newburyport, 103 Mass. 135; Dow v. Wakefield, Id. 267; Town of Waterville v. Commissioners of Kennebec, 59 Me. 81; Norwich v. County Commissioners, 13 Pick. 60. Appellants err in claiming that the same rule governs this case as that governing taxation for municipal purposes.
    The act- contains but one subject, which is clearly expressed in the title. The inhabitants of the township saw the Avork in progress, and having allowed it to go on without interference, they cannot noAV ask to be relieved from their portion of the expense.
   Mr. Justice Gordon

delivered the opinion of the court, October 22d 1877.

Frederick Beckert and some twenty-six others, citizens and taxpayers of Reserve township, in the county of Allegheny, preferred their bill to the Common Pleas of said county, praying that the city of Allegheny be restrained from proceeding to collect certain assessments made upon their several properties in said township, for the payment of the cost of constructing a certain road, known as the Troy Hill road, situate wholly within the corporate limits of said city. The authority under which the city councils professed to act, in the making of the assessments complained of, Avill be found in an act of the General Assembly approved May 10th 1871, entitled “An Act relative to grading, paving, curbing and otherwise improving Troy Hill road in the city of Allegheny,” and its supplement, approved April 1st 1872. The act empowers the city councils to construct this road and as soon as the cost and expenses of such construction have been ascertained, “ to appoint three disinterested freeholders of said city as viewers, whose duty it shall be to assess and apportion the said cost and expense upon all property in said city and Reserve township which they shall deem benefited thereby.”

The plaintiffs complain of this act as unconstitutional and void, and, therefore, as not a sufScient warrant to the councils to authorize them to collect the assessments they have caused to be made, upon the property of the complainants in the township of Reserve.

In Dorsey’s Appeal, 22 P. F. Smith 192, where the title to an act, in that case under consideration, set forth that it related to the liens of mechanics and others upon leasehold estates, and, in the body of the act, such liens were also given upon freehold estates, it was held that this latter part of the act was unconstitutional and void, because not mentioned in the title. As the language of the constitution, under which the abdve decision was made, is almost identical with that of our present one, we must regard the above-named case as decisive of the one in hand. And the argument is a fortiori, for, under the title of the act above mentioned, it might well be argued that, as it related to mechanics’ liens, there was something, in the general subject itself, which might have induced an examination of the body of the enactment by those interested, whilst, in that under consideration, there is nothing -which conveys the remotest hint that any inhabitant of Reserve township is at all interested therein. The words, “ An Act relative to grading, paving, curbing and otherwise improving Troy Hill road, in the city of Allegheny,” certainly notify all persons outside of the city limits, if of anything whatever, that the matters contained in the act of which they form the title, .do not affect them. If then it be true, as is said in the case cited, that the purpose of this part of the constitution is that members of the legislature, and all others interested, may have notice of the contemplated legislation, in order that such as is secret and unwise may be discovered and prevented, then, the act under consideration certainly comes within its prohibition and is of no effect as to all persons outside of the city of Allegheny. Reference has been made to the case of Blood v. Marcelliott, 3 P. F. Smith 391, as analogous to that now being considered; but it is not so. There the title was “ An Act to increase the boundaries of „Forest county,” and provision was made, in the body of the act, not only for the extension of ¡the boundaries, but also for the re-location of the county seat. No one, we think, will dispute but that this case carries the question therein discussed to the extreme of constitutional relaxation; in order, however, to make it analogous to the case under discussion w-e must suppose the body of the Eorest county act so altered as to provide for the re-location of the county seat of some adjacent-county, or the taxation of the citizens of such county for cost of the erection of the public buildings of Eorest county. Such a case would furnish a true analogy to the one in hand, but it would not be the case of Blood v. Marcelliott.

It has been argued, that this bill ought not to be maintained because preferred too late. It is said objection should have been made at the commencement or during the progress of the work; that by remaining passive until the city had incurred the expense of erecting the road, the relators were guilty of such laches as should close the ears of equity against their plaint. This objection, which would ordinarily be good, is successfully ansAvered by the reply, that the city, in the building of the Troy Hill road, Avas engaged in an undertaking Avithin in OAvn lawful jurisdiction and power, and Avith Avhich the relators could not interfere; that the unlawful act consisted, not in the making of the road, but in the attempt to compel the plaintiffs to pay for a city improvement, by assessments upon their property in Reserve toAvnship, and that they brought this bill as soon as possible after such assessments were made and confirmed; that they could not know, until 'after the assessments were made, that they would be called upon to contribute ; hence, before that time, any interferenee on their part would have been considered as impertinent and unauthorized.

And now, October 22d 1877, it is ordered, adjudged and decreed, that the decree of the Court of Common Pleas, No. 2, of Allegheny county, dismissing the plaintiffs’ bill, be reversed and set aside, at the cost of the appellees ; and that the assessments procured to he made by the municipal officers of the city of Allegheny against the several properties of the plaintiffs, appellants, for and on account of the cost of grading, paving, curbing and otherwise improAdng Troy Hill road in said city, be adjudged void and of no effect; and that said city be enjoined from the collection or enforcement thereof by the entry or prosecution of any lion or liens against the said several properties of the plaintiffs, in the township of Reserve, or otherwise.


author: Mr. Justice Sharswood

text:
    Beeson versus Lang.
    The creditors of a corporation selected three of their number, who were elcated directors of the company, and charged with the management of its business. Held, that they could not be made liable as partners for supplies furnished them and used in the conduct of the corporation business.

      October 5th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1876, No. 238.
    Assumpsit by John Watt and W. E. Lang, trading as Watt, Lang & Co., against William Beeson, Robert Hogsett and William Rea. The declaration was in the common counts. The defendants in the praecipe, and the writ and narr. were described as “ doing business as partners and charged as such under the name of the Directors of the Dunbar Iron Company.” Service was had upon Beeson and Rea only. Watt died after suit brought. The defendants pleaded no partnership, non-assumpserunt, payment, set-off, with leave, &c., together with special matter set forth in the affidavit of defence.
    Erom the evidence produced on the trial before Collier, J., it appeared that the Dunbar Iron Company, a corporation under the laws of this state, became embarrassed in 1873, and that a meeting of its creditors was held to consider an application for an extension. At this meeting, the creditors agreed to grant an extension, provided three of their number should be elected into the board of directors and given the sole management of its affairs. The company acceded to this arrangement, and its president transferred stock of the company to the three defendants who had been named by the creditors and who were elected into the board of directors. It appeared that they employed the president as their agent, he still continuing to fill the office of president, and that these three defendants, or a majority of them, from that time, managed the affairs of the company.
    The plaintiffs sought to recover, in this action, a balance of the price of merchandise sold, as they alleged, on the individual credit of the three defendants.
    The defendants, on the contrary, alleged that the credit was not given to them individually; and it appeared that on the books of the plaintiffs the goods were charged to the Dunbar Iron Company, and the letters, orders and other communications indicated that the credit was given to the old corporation.
    At the trial, the court permitted the plaintiffs, under objection, to examine Mr. Dunlap, who testified that he heard a conversation between Watt, Lang & Co. and Mr. Beeson, and that Beeson said that an arrangement had been made to run the furnace, with himself, Rea and Hogsett as managers, and that they wanted to buy some goods to run the furnace, and whatever goods they got they would be individually responsible for; that Mr. Lang and Mr. Watt distinctly said, Mr. Watt especially, that he would not trust the Dunbar Iron Company, but would sell Mr. Beeson all the goods he wanted, as he considered him and the others with him responsible. Witness did not know that there was any definite arrangement made at the time of this conversation, but that Mr. Beeson came to the store and ordered goods several times subsequently, and they were furnished.
    It was not shown that Rea or Ilogsett knew of this alleged conversation, or that any such statement was authorized by them.
    In answer to the defendant’s first point, the court charged that this conversation, as testified to by Dunlap, would not Avarrant a verdict against the defendants in the present action, but in the answers to points and in the general charge, as will be observed below, left to the jury the question whether the plaintiffs “ trusted the defendants individually.”
    The second point of the plaintiffs, which the court affirmed, was as follows:—
    That the circumstance that said merchandise had been charged in the books of the plaintiffs in the name of the Dunbar Iron Company, and so billed to said company, is not conclusive evidence that it Avas sold on their credit, but the jury may determine from all the evidence in the cause as to whether credit was actually given to the said defendants or to the said Dunbar Iron Company as a corporation, and as they find this fact so should the verdict be.
    The second and third points of defendants, both of which the court refused, were as follows :—
    2. That the defendants are not personally liable for the claim in suit, by reason of their election into the board of directors of the Dunbar Iron Company under the alleged arrangement between the company and its creditors, their election by the board as an executive committee and their acting as such executive committee.
    3. That under all the evidence in the case the verdict should be for the defendants.
    In their general charge the court said :—
    “ That if the jury believed that the Dunbar Iron Company was embarrassed and asked an extension, and that the creditors agreed to grant it, and that the defendants were given the exclusive management of the company’s affairs, and that the plaintiffs refused to trust the old corporation but trusted the defendants individually, then under this arrangement the verdict should be for plaintiffs.”
    The verdict was for the plaintiffs for $6856.94, and after judgment the defendants took this writ, alleging that the court erred in the affirmance of the plaintiffs and the refusal of defendants’ points, and in the portion of the charge noted.

      M. W. Acheson, T. C. Lazear and C. E. Boyle, for plaintiffs in error.
    — The furnace was not operated for the benefit of the defendants individually, nor by the creditors through the agency of the defendants, and they were simply the agents of the corporation.

      A corporation board may appoint agents or a committee to transact the business of the corporation: Ridgway v. Farmers’ Bank, 12 S. & R. 256. The defendants were at least directors defacto and their acts were binding upon the corporation: Angell & Ames on Corp., sect. 287; Baird v. Bank of Washington, 11 S. & R. 411; Cochran v. Arnold, 8 P. F. Smith 399. Where an agent discloses his principal and contracts in his name the principal is liable: 2 Kent 629 ; Sharpe v. Bellis, 11 P. F. Smith 69.
    The evidence did not sustain the allegation that defendants had purchased the goods on their individual credit, and if the plaintiffs believed that they were selling upon the individual credit of these parties, were they not bound to inquire of Rea, who knew nothing of the alleged arrangement with Beeson, if he was willing to incur this personal responsibility ?

      George P. Hamilton, George Shiras, Jr., and S. Schoyer, Jr., for defendants in error.
    — In Cox v. Hickman, 8 House of Lords 268, a case analogous to this, the managers of the works of a company were held personally liable for goods furnished to and used by them as agents for creditors.
    The defendant’s second point was an abstraction as presented to the jury and was properly refused by the court. It falsely assumed that the defendant’s liability was wholly predicated of the mere formal acts of election into the board and of their acting as an executive committee. There was evidence beyond this and the court would have erred to have restricted the jury to the facts recited in the point.
   Mr. Justice Sharswood

delivered the opinion of the court, October 15th 1877.

There is not in all the testimony produced on the trial of this case in the court below a scintilla of evidence upon which the defendants could be held liable as partners. They were not a committee of the creditors carrying on the business as their agents, and for their exclusive benefit, as was the case in Cox v. Hickman, 8 H. of L. 268, nor were they a committee of an indefinite and unknown number of principals, as in the case of Eichbaum v. Irons, 6 W. & S. 67; but they were a committee of the Dunbar Iron Company — ra corporation chartered under the laws of the Commonwealth. The contracts sued upon were made in the name of the corporation — the charges on the plaintiffs’ books were against it— the bills made out and all the business transacted in its name. On what principle then could they be held personally liable as partners ? They had not agreed to be partners. They did not receive any part of the profits, and they did not hold themselves out to the,world as partners: Irwin v. Bidwell, 22 P. F. Smith 244. Whether they were rightful directors of the corporation could not be controverted in this action. They were de facto directors and a committee appointed by -the board to manage the affairs of the corporation for its benefit, and to enable it to pay its debts: Cochran v. Arnold, 8 P. F. Smith 399. Even if they had been outside parties appointed by the board of directors to manage its affairs, and acting in its name and on its behalf, it is not easy to understand on what principle they could be held personally liable. An agent who is authorized by a principal — who discloses him and makes a contract in his name — is not personally liable. It is unnecessary, surely, to cite authorities to sustain this position. It is horn-book law. There was manifest error, therefore, in the refusal of the learned judge to affirm the second point of the defendants below — “ that the defendants are not personally liable for the claim in suit, by reason of their election into the board of directors of the Dunbar Iron Company, under the alleged arrangement between the company and its creditors, their election as an executive committee and their acting as such executive committee.” It is said that this was a mere abstract point, but surely if there ever was a concrete proposition directly applicable to the evidence in the case this was one. In the absence of any evidence of a joint promise which was not pretended or of a partnership between the defendants, which, as we have seen, cannot be maintained, the converse of the proposition was really the only ground upon which the plaintiffs could recover, and the defendants had a clear right to have the jury instructed upon that point. It is clear also that the declarations of William Beeson, either as proved by James Dunlap or J. N. Cooper, were incompetent to fasten liability upon the other defendants. We have seen they were not partners, and his acts and declarations could not make them such or subject them to a contract engagement which there was no evidence that they had authorized. We think, also, that the affirmance of the second point of the plaintiff — and so much of the general charge of the learned judge as instructed the jury — that if the plaintiffs sold the goods to the defendants on their personal credit they were liable, were clearly wrong and calculated to • mislead. Concede the fact that the plaintiffs believed that the defendants were personally liable and had sold the goods on their credit, surely that would not make them liable if they had said or done nothing which would have that effect. Yet this seems really to have been the question upon which the learned judge put the case below to the jury — did the plaintiffs trust the Dunbar Iron Company or did they trust the defendants ?

On the whole case we are of the opinion that the defendants’ third point, “that, under all the evidence in the case, the verdict should be for the defendants,” ought to have been affirmed.

Judgment reversed.