Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.


July 25, 1958


Appeals, Nos. 276 and 277, Jan. T., 1958, from decree of Court of Common Pleas No. 7 of Philadelphia County, Dec. T., 1957, No. 2262, in case of Frederic H. Barth v. School District of Philadelphia et al. Decree affirmed; reargument refused August 15, 1958.


C. Brewster Rhoads, with him Sidney L. Wickenhaver, Edward B. Soken, and Montgomery, McCracken, Walker & Rhoads, for School District of Philadelphia, appellant.

David Berger, City Solicitor, with him James L. Stern, Deputy City Solicitor, and Shirley Bitterman, Assistant City Solicitor, for Youth Conservation Commission of Philadelphia, appellant.

Marvin Comisky, with him Brumbelow & Comisky, for appellee.

Before Jones, C.j., Bell, Musmanno, Arnold, Jones and Cohen, JJ.

Author: Bell

[ 393 Pa. Page 558]


Plaintiff filed a complaint in equity in a taxpayers' suit on behalf of himself and all other taxpayers of the School District of Philadelphia. Plaintiff prayed for an injunction to restrain - not the City but - the School District of Philadelphia from making any expenditure or contribution of money, materials, services or facilities in performance of an Agreement entered into by the Board of Education of the School District of Philadelphia and the City of Philadelphia on or about February 14, 1958 to establish and pay for a Youth Conservation Commission. Defendants filed preliminary objections to the complaint; these objections were dismissed

[ 393 Pa. Page 559]

    by the lower Court. From a final decree which granted an injunction, defendants took this appeal.

The Agreement establishes a Youth Conservation Commission of Philadelphia for the purpose of organizing, formulating, operating and financing a program to curb juvenile delinquency in Philadelphia. The Agreement pertinently provides, inter alia, that the Commission shall be composed of three members, one to be appointed by the City of Philadelphia; one to be a member of the Board of Public Education to be appointed by the Board's President; and the third to be appointed jointly by the Mayor and the President of the Board of Public Education. Each member of the Commission was to serve at the pleasure of his appointing authority. The Commission (a) was to be responsible for the formulation and the general management, direction and control of the program set forth in the Agreement, and (b) was given authority to employ an executive director and a staff, "which were not to be considered employees of either the School District or the City of Philadelphia."

The functions, purposes and program of the Commission were set forth in paragraph 3 of the Agreement. These authorized the Commission:

(a) To coordinate and assist in formulating the programs of all agencies in the City for the broad purpose of reducing juvenile delinquency and to adopt and carry out plans for that purpose.

(b) To propose educational courses and special training to meet individual needs and recreational programs and activities to be furnished by the School District and the City.

(c) To meet with problem youths and their parents and to recommend the professional counseling of problem youths and their parents.

[ 393 Pa. Page 560]

(d) To organize sensitive areas in the City on a block by block basis where other agencies are not effectively operating and to enlist volunteer workers to work with the local residents in an effort to improve living conditions, and also to serve as a warning source in the event any problems arise in the area involving juveniles.

(e) To take any active part in gang control activities.

(f) To receive from public and private sources of all kinds and to administer contributions of money and property for the foregoing purposes.

The Agreement also provided in paragraph 5 that ... "the program of the Commission shall be an independent undertaking and shall not be considered an integral part of the program of either the City or of the School District, nor subject to the requirements of either the Home Rule Charter or the Public School Code of 1949, as amended."

The Agreement authorized the payment by the School District for the calendar year 1958 of "amounts up to a total of $125,000 ... In addition ... the parties may make other facilities available to the Commission for its program without cost to the Commission."

The School District's budget for 1958 contained in Item 3 "Constructive citizenship ... $125,000.00".

Various reasons, some of which will be hereinafter discussed, were advanced to support taxpayers' contention that this Agreement and the proposed appropriation of $125,000 (plus) for the first year were, as to the School District, ultra vires.

A program to study and curb juvenile delinquency is not only worthy, but highly desirable. The crime wave which is sweeping our Country, and particularly the rise and extent of juvenile delinquency, and the

[ 393 Pa. Page 561]

    vandalism and the atrocious crimes committed by juveniles*fn1 has astonished, troubled and appalled our entire nation. Law and order, prevention, suppression and punishment of crime, control of gangs, improvement of living conditions, rehabilitation of problem persons and persons with criminal tendencies - these are and since ancient times have been matters for the Sovereign (in our Country, local or State, and more recently, National Government), and have never heretofore been considered as a part of "Education". Furthermore a worthy objective does not justify the action of a School District or a public body, which has no fundamental or inherent powers of Government, unless that action is authorized by the Constitution or by an Act of the Legislature.

A School District is not a Constitutional body. The only constitutional provision with respect to Education is contained in Article X. of the Constitution of Pennsylvania. Article X. reads as follows:


,"public Schools Provided for.

"Section 1. The General Assembly shall provide for the maintenance and support of a thorough and efficient system of public schools, wherein all the children of the commonwealth above the age of six years may be educated, and shall appropriate at least one million dollars each year for that purpose.

"Sectarian Schools Not to Receive Public School Money.

[ 393 Pa. Page 562]

"Section 2. No money raised for the support of the public schools of the Commonwealth shall be appropriated to or used for the support of any sectarian school.

"Females Eligible as School Officers.

"Section 3. Women twenty-one years of age and upwards shall be eligible to any office of control or management under the school laws of this State."

It is clear, we repeat, that a public school or a public school district is not a constitutional body.

A School District is a creature or agency of the Legislature and has only the powers that are granted by statute, specifically or by necessary implication: Slippery Rock Area Joint School System v. Franklin Township S.D., 389 Pa. 435, 133 A.2d 848; Wilson v. Philadelphia School District, 328 Pa. 225, 195 A. 90; Wilkinsburg Boro v. School District, 365 Pa. 254, 74 A.2d 138.

In Slippery Rock Area Joint School System v. Franklin Township S.D., 389 Pa., supra, the Court said (page442): "'First, it should be remembered that our entire school system is but an agency of the State Legislature - maintained by them to carry out a constitutional duty ... The school system, or the school district, then, are but agencies of the state legislature to administer this constitutional duty. Wilson et ux. v. Philadelphia School District, 328 Pa. 225, 230. Within that school system, a school district is an agency of the state, created by law for the purpose of promoting education, deriving all of its powers from the statute, and discharging only such duties as are imposed upon it by statute*fn2 . ...'"

In Wilson et ux. v. Phila. S.D., 328 Pa., supra, where it was held that the Act of 1929 unconstitutionally

[ 393 Pa. Page 563]

    delegated taxing power to the school district, the Court said (pages 231-232): "The school system, or the school districts, then, are but agencies of the state legislature to administer this constitutional duty. As such agencies, they do not possess the governmental attributes of municipalities. They are not municipal corporations: Wharton v. School Directors, 42 Pa. 358, not having legislative powers. ... School District v. Fuess, 98 Pa. 600. They possess only the administrative powers that are expressly granted by the central government or inferred by necessary implication. The fact that they have the same territorial limits as muncipal subdivisions does not change the character of their functions which are not municipal. ..."

From the authorities cited and quoted above, it is clear (1) that the School District of Philadelphia is an agent or creature of the Legislature; (2) that it has no inherent powers of government; and (3) that the only powers, functions and duties it possesses are those which are expressly or by necessary implication authorized by statute.

The Public School Code*fn3 minutely details in approximately 270 pages, the powers, functions and duties of a School District. It also provides in Article VI, § 610: "The use or payment of any public school funds of any school district, in any manner or for any purpose not provided in this Act, shall be illegal." A study, nay a reading, of the Public School Code demonstrates that the Legislature unquestionably intended and provided that School District could possess and exercise only those powers and functions detailed in the Code, and that public school funds could be used only in the manner and for the purposes which are expressly or by necessary implication provided for in this detailed Act.

[ 393 Pa. Page 564]

Never heretofore have schools or school districts possessed or exercised, under the theory or name of Education, the wide basic powers, functions and duties of Municipal Government which are now claimed by the Board of Education, namely the prevention, suppression, correction, elimination and punishment of juvenile delinquency - euphemistic language to describe vandalism, misdemeanors and crimes committed by young persons - , gang control and the improvement of living conditions. It is clear that the main purpose of this Agreement is, at best, very indirectly and very remotely connected with Education. Virtually all of the work contemplated by this Agreement would be performed (a) outside of the schools, and (b) by an independent agency; and the program and the subject matters covered by the Agreement are a part of and are embraced not in Education but in the age-old functions and duties of Government. The contentions of the School District and of the City of Philadelphia and their construction of §§ 706 and 521 of the Public School Code, would necessarily, logically and unquestionably require the Courts to permit the School District ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.