Appeals from the Order of the Court of Common Pleas of Delaware County in case of In Re: Appeal of Southeastern Pennsylvania Transportation Authority, Owner, Nos. 1440, 1441 and 1442 of 1969.
William T. Coleman, Jr., with him John F. Smith, III, Lewis H. VanDusen, Jr., Ralph B. D'Iorio, and, of counsel, Dilworth, Paxson, Kalish, Levy & Coleman, Drinker, Biddle & Reath and Cramp, D'Iorio, McConchie and Surrick, for appellant.
Lewis B. Beatty, Jr., Solicitor, School District of Upper Darby, Peter J. Nolan, Solicitor, Board of Assessment and Revision of Taxes of Delaware County, and Alvin S. Ackerman, Solicitor, Township of Upper Darby, for appellees.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Wilkinson.
[ 13 Pa. Commw. Page 209]
The three cases*fn1 before us for decision turn on the question of whether appellees, being a county, a township, a borough, and two school districts, have the authority to levy real estate taxes upon real estate owned by appellant, Southeastern Pennsylvania Transportation Authority (SEPTA). The lower court held that the appellees had such authority if the real estate against which the levy was made was not reasonably necessary for the operation of a public transportation system in this location. We must reverse and rule that in the absence of a statute specifically authorizing these inferior governmental agencies to levy a tax against real estate owned by the Commonwealth, no such power exists and real estate owned by SEPTA is beyond the appellees' taxing authority.
We need not reach the second question of whether Section 39 of the Metropolitan Transportation Authorities Act of 1963, Act of August 14, 1963, P.L. 984, 66 P.S. § 2039, which provides that SEPTA should not be required to pay any property taxes imposed by any taxing authority is constitutional. While for many purposes it may be unimportant whether property's freedom from taxation is based on lack of statutory authority to levy the tax, or a statutory exemption from the tax, certainly it is clear that you do not reach the question of a statutory exemption or its constitutionality if there is no authority to levy the tax.
[ 13 Pa. Commw. Page 210]
After the decision of our Supreme Court in Commonwealth v. Erie Metropolitan Transit Authority, 444 Pa. 345, 281 A.2d 882 (1971), and this Court's decisions in City of Philadelphia v. Southeastern Pennsylvania Transportation Authority, 8 Pa. Commonwealth Ct. 280, 303 A.2d 247 (1973), and City of Philadelphia v. Southeastern Pennsylvania Transportation Authority, 1 Pa. Commonwealth Ct. 101, 271 A.2d 504 (1970), aff'd., 441 Pa. 518, 272 A.2d 921 (1971), it seems quite clear to us that this is not a case of first impression and that the decisions in those three cases dictate a result here in favor of appellant.
In Erie, supra, our Supreme Court held that the Erie Metropolitan Transit Authority, as an agency of the Commonwealth and part of its sovereignty, was not subject to a fuel tax levied by the Commonwealth in the absence of express language in the statute authorizing the tax. The basis for this decision was laid in the earlier case of Commonwealth of Pennsylvania State Employes' Retirement System v. Dauphin County, 335 Pa. 177, 181, 6 A.2d 870, 872 (1939), when it was held that real estate owned by the Commonwealth could not be taxed by a political subdivision "unless it points to a statute clearly authorizing it to do so." As forcefully stated by Chief Justice Horace Stern, in Fischer v. Pittsburgh, 383 Pa. 138, 141, 118 A.2d 157, 158 (1955), "municipal corporations can levy no taxes unless the power be plainly and unmistakably conferred by the sovereign state, and the grant of such right must be strictly construed and not extended by implication." (Citations omitted.)
The first six pages of appellees' printed brief are used to set forth the quotations from the various statutes upon which appellees rely as giving them authority to tax the real estate of SEPTA. These are Sections 201 and 204 of The General County Assessment Law, Act of May 22, 1933, P.L. 853, as amended, 72 P.S.
[ 13 Pa. Commw. Page 211]
§§ 5020-201 and 5020-204; Sections 672, 674, and 675 of the Public School Code of 1949, Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§ 6-672, 6-674, and 6-675; and Section 1709 of The First Class Township Code, Act of June 24, 1931, P.L. 1206, as amended, 53 P.S. § 56709. In all of these Acts, appellees cannot direct our attention to the magic words, "including property owned by the Commonwealth." In the absence of such words indicating an ...