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March 24, 1952


Appeal, No. 70, Jan. T., 1952, from decree of Court of Common Pleas of Montgomery County, Feb. T., 1951, in Equity, No. 11, in case of Ida T. Evans v. West Norriton Township Municipal Authority. Decree affirmed.


Malcolm Campbell, with him Arthur R. Kane, Jr., for appellant.

George F.B. Appeal, with him Russell J. Brownback, Caspar W. B. Townsend, Jr., and Townsend, Elliott & Munson, for appellee.

Before Drew, C.j., Stern, Stearne, Bell, Chidsey and Musmanno, JJ.

Author: Bell

[ 370 Pa. Page 151]


This case involves several important questions: What is the proper construction of § 4B(s) of the Municipality Authorities Act of May 2, 1945,*fn1 and does this Authority created thereunder violate Article III, § 20 of the Pennsylvania Constitution?

We are informed that this is a test case which will affect many, if not all, of the Authorities which have been or are about to be incorporated under the above-mentioned Act in connection with the Pure Streams Program. The Stream Pollution or so-called Pure

[ 370 Pa. Page 152]

Steams Program is one of the most beneficial programs for protecting and improving the health of the people of Pennsylvania ever enacted. The importance of clean, pure water for drinking purposes and for many industrial purposes while not yet universally recognized is very great. This policy or program can be practically and effectively carried out only if sewage disposal plants or incinerator plants or other measures costing large sums of money can be built at local expense. Many communities throughout the State are able to finance such a plan and carry out such a project only by the creation of a quasi-public governmental body such as an Authority. Remedial legislation which preserves or promotes the health of all the people of this Commonwealth should certainly be given the benefit of any reasonable doubt as to its constitutionality.

Plaintiff, a taxpayer, filed a bill in equity to enjoin defendant from imposing and collecting (sewer) charges assessed against her property, for the reason that § 4B(s) of the Municipality Authorities Act, supra, was in contravention of Article III, § 20 of the Constitution of Pennsylvania. The court below sustained defendant's preliminary objection and dismissed the bill in equity.

The Board of Township Commissioners of West Norriton Township, by Ordinance dated June 6, 1947, created the West Norriton Township Municipal Authority, pursuant to and in accordance with the Municipality Authorities Act. The township commissioners, by Ordinance dated May 5, 1950, approved the plan and report of the Authority's engineers and also approved the Authority's proposal to assess not exceeding $560,000.00 of the total cost of a sewer against the adjoining property owners according to the foot front rule.

Before we can decide whether § 4B(s) of the Municipality Authorities Act violates Article III, § 20 of the

[ 370 Pa. Page 153]

Pennsylvania Constitution we must determine exactly what the Act provides. Every Authority is granted all powers necessary or convenient for the carrying out of the purposes of the Act. The specific powers enumerated are many and vast and include the power of eminent domain, the power to buy, lease and sell real or personal property, to borrow money, to enter into a wide range of contracts, and more specifically the power set forth in § 4B(s), which reads as follows: "To charge the cost of construction of any lateral sewer constructed by the Authority against the properties benefited, improved or accommodated thereby according to the foot front rule. Such charges shall be based upon the foot frontage of the properties so benefited, and shall be a lien against such properties. Such charges may be assessed and collected and such liens may be enforced in the manner provided by law for the assessment and collection of charges and the enforcement of liens of the municipality*fn2 in which such Authority is located: Provided, That no such charge shall have the force and effect of a lien unless prior to construction of such sewer system the Authority shall have submitted the plan of construction and estimated cost to the municipality in which such project is to be undertaken, and the municipal authority shall have approved such plan and estimated cost: And provided further, That the cost of the construction shall not have exceeded the estimated cost as approved by the municipal authority."

Section 20 of Article III of the Pennsylvania Constitution provides: "The General Assembly shall not delegate to any special commission, private corporation or association, any power to make, supervise or interfere with any municipal improvement, money, property or effects, whether held in trust or otherwise, or to

[ 370 Pa. Page 154]

Constitution: Tranter v. Allegheny County Authority, 316 Pa. 65, 173 A. 289 (Authority to construct and maintain toll highways); Williams v. Samuels, 332 Pa. 265, 2 A.2d 834 (Authority to buy, sell and lease water and sewer system); Dornan v. Philadelphia Housing Authority, 331 Pa. 209, 200 A. 834 (Authority for slum clearance); Belovsky v. Redevelopment Authority, 357 Pa. 329, 54 A.2d 277 (Authority for redevelopment of blighted areas). However, these cases are not controlling for in none of them was the Authority given a right to levy taxes.

2. Is the sewer assessment a tax? Whether a sewer charge or assessment or lien is a local assessment as distinguished from a tax is a matter on which the authorities are not as clear as they might be. Assessments by elected public officials of the cost of a sewer against the properties benefited was held to be constitutional although a "species of taxation". Oil City v. Oil City Boiler Works, 152 Pa. 348, 25 A. 549; Hammett v. Philadelphia, 65 Pa. 146; Michener v. Philadelphia, 118 Pa. 535, 12 A. 174; Harrisburg v. Segelbaum, 151 Pa. 172, 24 A. 1070. However, in Manheim Township Supervisors v. Workman, 350 Pa. 168, 38 A.2d 273, the Court, after holding that an annual tax upon abutting property owners for electric street lighting was a violation of the uniformity provision of Article IX, § 1 of the Constitution, although the requirement of uniformity does not apply to assessments for the cost of local improvements, said (page 172): "... it is proper to make municipal assessments for local improvements; such assessments, although stated in Hammett v. Philadelphia, supra, to be a 'species of taxation', are not really taxes but claims laid against properties specially benefited, being in the nature of an exaction from them of compensation for the presumed increase in their values resulting from the improvement".

[ 370 Pa. Page 156]

Moreover, a distinction between taxes and municipal charges or assessments against abutting property owners was recognized in Northern Liberties v. St. John's Church, 13 Pa. 104, 107; Pray v. Northern Liberties, 31 Pa. 69, 71; Phila. v. U.S. Housing Corp., 280 Pa. 417, 124 A. 669. Compare also the line of cases which hold that an exemption from taxation either by statute or by charter does not constitute an exemption from special assessments: Phila v. Pennsylvania Hospital, 143 Pa. 367, 22 A. 744; Broad Street. Sewickley Methodist Episcopal Church's Appeal, 165 Pa. 475, 30 A. 1007; Phia. v. Union Burial Ground Society, 178 Pa. 533, 36 A. 172; Harrisburg v. Cemetery Assn., 293 Pa. 390, 143 A. 111. For reasons hereinafter appearing, it is unnecessary to decide whether the assessment of the cost of a sewer and the liening of such a charge is merely an assessment for local purposes and local benefits or is a tax within the meaning of § 20 of Article III of the Constitution.

3. Does the Act delegate to an Authority the power to perform municipal functions and to levy taxes or are those powers vested only in the elected local Commissioners and in the latter event is the delegation of these powers in the mode prescribed by the Act constitutional?

It is well established that the State legislature has the right to delegate its power to tax, to municipal bodies such as counties, cities, boroughs, and townships, whose commissioners or taxing officers are elected by the people; and for the purposes and objects of carrying on local government, such elected public officials may perform municipal functions and may be validly and constitutionally authorized to impose and collect taxes: Durach's Appeal, 62 Pa. 491; Sharpless v. Mayor of Philadelphia, 21 Pa. 147; Wilson v. Philadelphia School District, 328 Pa. 225, 195 A. 90. Moreover,

[ 370 Pa. Page 157]

    elected local public officials may be specifically authorized to assess sewer charges and create liens therefor against the abutting or benefiting property owner.*fn3

Furthermore, the analogous (so-called) "School Board cases" uphold the constitutionality of acts which authorize school boards, school districts or similar bodies to administer schools and the school systems, and to impose and collect a tax if the legislature (or the duly elected public officials of a municipality) fix the tax or fix a maximum ceiling or limit on the tax: Wilson v. Philadelphia School District, 328 Pa. 225, 195 A. 90; Minisinger v. Rau, 236 Pa. 327, 84 A. 902; Moore v. Pittsburgh School District, 338 Pa. 466, 13 A.2d 29. But no recent case has sustained the grant to an Authority (or to a school board or to any similar agency, body or instrumentality) of an unlimited right or power to levy taxes. It is therefore important to determine more specifically what, if any, taxing powers are delegated to this Authority by the Municipality Authorities Act.

Appellant contends that the second proviso of § 4B(s) -- notwithstanding the words "And provided further," -- modifies only the first proviso and not the prior language of this section, and consequently the section is invalid since it delegates to an Authority the power to assess costs and levy taxes without limitation.The language of this section of the Act is undoubtedly ambiguous.*fn4 It is not clear from the words of the Act (a) whether this section gives the Authority unlimited power to impose charges or assessments, with

[ 370 Pa. Page 158]

    the proviso that such charges shall have the force and effect of a lien if and when approved by the elected township commissioners; or (b) whether the Authority's power to adopt a plan and to fix the cost of construction, and to impose charges or assessments or liens against the properties benefited, are limited and restricted to what is approved and therefore fixed by the commissioners.


Decree affirmed; each party to bear her or its respective costs.

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