Grim v. Weissenberg School District

• Decision Date: 23 March 1868
• Citation: 57 Pa. 433
• Court: Pennsylvania Supreme Court
• Parties: Grim <I>versus</I> Weissenberg School District.

Page 433

57 Pa. 433

Grim versus Weissenberg School District.

Supreme Court of Pennsylvania.

March 16, 1868.

March 23, 1868.

March 16th 1868.

Before STRONG, AGNEW and SHARSWOOD, JJ. THOMPSON, C. J., at Nisi Prius. READ, J., absent.

Error to the Court of Common Pleas of Lehigh county: No. 152, to January Term 1868 C. M. Runk, for the plaintiff in error, referred to Shirk v. Bucher, 3 P. F. Smith 94; Acts of May 8th 1854, § 29, Pamph. L. 624, Purd. 172, pl. 49; March 25th and August 25th 1864, supra; Brown v. Hummel, 6 Barr 87; Norman v. Heist, 5 W. & S. 171; Lambertson v. Hogan, 2 Barr 22; Reeser v. Tell Saving Fund, 3 Wright 137; O'Conner v. Warner, 4 W. & S. 227; Commonwealth v. McCloskey, 2 Rawle 373; Bedford v. Shilling, 4 S. & R. 405; Price v. Mott, 2 P. F. Smith 315; Lefever v. Witmer, 10 Barr 505; Dash v. Van Kleek, 7 Johns. 477; Couch v. Jeffries, 4 Burr. 2460.

J. D. Stiles (with whom was G. B. Schall), for defendant in error, referred to the various Acts of Assembly supra; Weister v. Hade, 2 P. F. Smith 474; Commonwealth v. Hartman, 5 Harris 119; Sharpless v. Philadelphia, 9 Id. 161; Commonwealth v. Maxwell, 3 Casey 456; Bleakney v. Farmers' and Mechanics' Bank, 17 S. & R. 65.

The opinion of the court was delivered, March 23d 1868, by SHARSWOOD, J.

That a party who, when threatened with a distress, pays an illegal tax under protest and notice of suit, may maintain an action to recover it back, is settled in this state Henry v. Horstick, 9 Watts 414; Caldwell v. Moore, 1 Jones 60; Allentown v. Saeger, 8 Harris 421.

We will assume, for the purpose of this opinion, that at the time the taxes here in question were levied, the school-board of Weissenberg township had no lawful authority to assess and collect them. We are brought thus at once to the question, whether the Act of the General Assembly, passed August 25th 1864, Pamph. L. 1027, entitled "An Act relative to the payment of bounties in the township of Weissenberg, Lehigh county," was constitutional.

After reciting that the said township had held a public meeting, when it was resolved that a per capita tax of $5 be levied, and that the school directors of said township levy an income tax according to the business and income of the inhabitants, in addition to the amount levied on the assessment, and that doubts had arisen as to the validity of the tax, it is enacted "that the taxes imposed by the said township of Weissenberg, in relation to the payment of bounties, are hereby legalized and made valid."

The argument for the unconstitutionality of this act is placed on this ground: that at the time of its passage the plaintiff had a vested right to recover back from the township the money which he had been compelled to pay without authority of law; and this vested right the legislature could not divest.

If an Act of Assembly be within the legitimate scope of legislative power, it is not a valid objection that it divests vested rights. There is no clause, either in the Constitution of the United States or of this Commonwealth, which prohibits retrospective laws. The legislature cannot impair the obligation of a contract, or pass an ex post facto law, for both these are expressly forbidden. But an ex post facto law is one which makes an act punishable in a manner in which it was not punishable when it was committed: Fletcher v. Peck, 6 Cranch 138. Ex post facto laws relate to penal and criminal proceedings, which impose punishments or forfeitures, and not to civil proceedings, which affect private rights retrospectively. Retrospective laws and state laws divesting vested rights, unless ex post facto or impairing the obligation of contracts, do not fall within the prohibition contained in the Constitution of the United States, however repugnant they may be to the principles of sound legislation: Calder v. Bull, 3 Dallas 386; Satterlee v. Matthewson, 2 Peters 413; Watson v. Mercer, 8 Peters 88. Neither are they expressly or impliedly forbidden in any section of the ninth article or declaration of rights of the Commonwealth of Pennsylvania. All acts curing irregularities in legal proceedings, necessarily divest vested rights of the parties, by closing the mouths of those who could otherwise avail themselves of such irregularities to escape from the fulfilment of what is a moral obligation; and, but for the irregularity, would be a legal liability. So wherever formal defects in the execution or acknowledgment of deeds, mortgages or other conveyances, are remedied by legislation, those who might have pleaded and relied on such defects are debarred of that which would otherwise have been a legal vested right. To deny the validity of such laws would be to run the ploughshare through hundreds of titles which are founded and repose in security upon them. Thus an act curing an irregularity in the entry of a judgment, was held to be within the legitimate province of the legislature in Underwood v. Lilly, 10 S. & R. 97. The various acts passed at different times, rendering valid defective acknowledgments of deeds by married women, whether merely to bar the right of dower or to convey their own estate in fee simple, so as to make such deeds, which would otherwise be void, good against them and their heirs, have been solemnly decided to be constitutional in Tate v. Stoolfoos, 16 S. & R. 35, and Mercer v. Watson, 1 Watts 330. In the case last cited the heirs of the wife had recovered the land and remained in possession of it seventeen years; when, after the passage of an act curing the defect, the alienee brought ejectment, and judgment was finally given in his favor. These cases have never since been questioned, that I am aware of; but on the contrary have been repeatedly cited with approbation, both by bench and bar: Linn's Analytical Index. Even in the able dissenting opinion of Judge Duncan, in Satterlee v. Matthewson, 16 S. & R. 191, one of the last judicial efforts of that most learned judge and sound and conservative lawyer, at that time, as he declares, the oldest living member of the profession in the state, and in which he advanced views which have since been adopted and established by this court, the authority of the cases I have referred to is distinctly admitted.

The judicial current, indeed, for a long period ran riot in sustaining acts of legislation of the most extreme character. Retroactive legislation began and was continued because the judiciary thought itself too weak to withstand; too weak, because it had neither the patronage nor the prestige to sustain it against the antagonism of the legislature and the...