Appeal, No. 175, March T., 1955, from judgment of Court of Common Pleas of Washington County, Feb. T., 1955, No. 162, in case of The School District of The Borough of Speers v. Commonwealth of Pennsylvania. Judgment affirmed.
Ralph W. Peacock, with him Phil H. Lewis, Deputy Attorney General and Herbert B. Cohen, Attorney General, for appellant.
Jay W. Troutman, with him August L. Sismondo, for appellee.
Before Stearne, Jones, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ARNOLD
The Commonwealth appeals from the judgment of the court below dismissing its appeal from the award of viewers, and directing entry of judgment against it
for damages resulting from the taking of the School District's land for highway slope purposes.
The land was taken under authority of the State Highway Law of 1945, P.L. 1242, 36 P.S. § 670-101, -301, -303, -304, which provides, inter alia: "Before the department [of highways] shall undertake the construction ... or improvement of any State highway, wherein a change of width or of existing lines ... is necessary, and damage is likely to result to abutting property, it shall notify the county commissioners ... Whenever the county commissioners do not consent to or approve of any such change ... [the secretary of highways] shall, when possible, enter into an agreement with the owner or owners of said property ... If such agreement cannot be made, the owner or owners... may present their ... petition to the court ... for the appointment of viewers to ascertain and assess such damages ... The damages, when ascertained, shall be paid by the Commonwealth..." (Italics supplied). In the instant case, the commissioners did not agree to the change.
The Commonwealth contends that it is under a duty to compensate only for private property so taken; that the school district is merely an agency of the state holding its property in a public or governmental capacity, and as such may receive compensation only as a matter of grace and not of right; and that the Act did not grant such right to it. That is, since the Legislature in the Act did not "spell out" the school district's right to compensation, it intended a taking of school property without the duty of payment therefor.
Constitutional prohibitions against the taking of property without compensation apply only to privately owned property: Article I, Section 10 of the Constitution of Pennsylvania. Therefore it has always ...