Plains Township's Appeal

• Decision Date: 10 July 1902
• Docket Number: 19-1903
• Citation: Plains Township's Appeal, 21 Pa.Super. 68 (Pa. Super. Ct. 1902)
• Parties: Plains Township's Appeal
• Court: Pennsylvania Superior Court

21 Pa.Super. 68

Plains Township's Appeal

No. 19-1903

Superior Court of Pennsylvania

July 10, 1902

Argued May 12, 1902

Appeal by Plains Township from order of Q. S. Luzerne Co.-1894, No 341, ordering a levy of a special tax in the Matter of the Appeal of Plains Township.

Petition for mandamus.

The opinion of the Superior Court states the case.

Error assigned was the order directing the levy of the special tax.

Affirmed.

Chas E. Terry, John M. Garman and Alexander Farnham, for appellant. -- Township taxes are required to be levied upon the last adjusted valuation fixed by the county commissioners: Delaware, etc., Canal Co. v. Walsh, 11 Phila. 587; Moore v. Taylor, 147 Pa. 481; Hughes v. Kline, 30 Pa. 227.

The remedy for illegal taxation under a general power to tax is by appeal to the proper appellate tribunal; when no appeal is given the courts cannot reverse the judgment of the tax officers: Stewart v. Maple, 70 Pa. 221; Carlisle School District v. Hepburn, 79 Pa. 159; Hamlin v. Peck, 135 Pa. 493; Brown's App., 111 Pa. 72.

The appellees, in contracting with the township, were bound to take notice of its financial condition and the existing assessment: Nankivil v. Yeosock, 7 Kulp, 518; Borough of Millerstown v. Frederick, 114 Pa. 435; O'Malley v. Olyphant Borough, 198 Pa. 525.

E. A. Lynch, William S. McLean and John McGahren, with them George R. McLean and E. K. Little, for appellee. -- The judgments were conclusive: Marsteller v. Marsteller, 132 Pa. 517; Emery v. Nelson, 9 S. & R. 12; Lawver v. Walls, 17 Pa. 75; Pennock v. Kennedy, 153 Pa. 579; Myers v. Kingston Coal Co., 126 Pa. 582; Armstrong County v. Overseers of Plumcreek Twp., 158 Pa. 92; Bolton v. Hey, 168 Pa. 418; Hartman v. Pittsburg Incline Plane Company, 11 Pa.Super. 438; Schwan v. Kelly, 173 Pa. 65; Lancaster v. Frescoln, 192 Pa. 452; Aurora City v. West, 7 Wallace, 82; Beloit v. Morgan, 7 Wallace, 619; Rockwell v. Tupper, 7 Pa.Super. 174; District of Rock Rapids v. Miller, 92 Iowa 676 (61 N.W. 376).

Even if the evidence established the fact that when the debts were contracted, upon which the judgments were rendered, they were in excess of the constitutional limit, nevertheless the mere obtaining of the judgments by mere default does not show that they were obtained by fraud or collusion, there being no evidence of fraud or collusion in obtaining the same: Thompson v. District of Allison, 102 Iowa 94 (70 N.W. 1093); Jenkins Township v. Yatesville Borough, 1 Kulp, 190; In re Indebtedness of Wilkes-Barre Township, 4 Kulp, 83; In re Indebtedness of Marcy Township, 9 Kulp, 424; In re Indebtedness of Wilkes-Barre Township, 8 Kulp, 516.

The commissioners sitting as a board of revision have no power to make assessments; they cannot change the assessors' return arbitrarily and without any evidence: Respublica v. Deaves, 3 Yeates, 465; Stewart v. Shoenfelt, 13 S. & R. 378; Frantz v. Mueller, 35 Ohio, 397; Shove v. Manitowoc, 57 Wis. 5 (14 N.W. 829); Fond du Lac Water Company v. City of Fond du Lac, 82 Wis. 322 (52 N.W. 439).

The value of property at the time of the assessment is the true criterion of the correctness of the valuation, for the purposes of taxation: Ferguson v. Lycoming Co., 8 Pa. C.C. 667.

It has been held that the board of review has no power to arbitrarily disregard the assessors' return and make a new assessment: Hodges v. Board of Appeal, 2 Law Times (N. S.), 167.

Before Rice, P. J., Beaver, Orlady, W. W. Porter and W. D. Porter, JJ.

OPINION

W. D. PORTER, J.

The Act of March 31, 1864, P. L. 162, entitled " An act relating to the collection of district and township debts in the several counties of the commonwealth," did not provide a new tribunal for the trial of disputed claims growing out of contracts, nor invest the court of quarter sessions with jurisdiction to adjudicate controverted demands against the township. " The proceeding here prescribed presupposes that the indebtedness has been previously ascertained and fixed, as by judgment, the auditor's settlement, or otherwise, so that the decree of the court can be regarded only as executionary:" Lehigh Coal & Navigation Company's Appeal, 112 Pa. 360; Hower's Appeal, 127 Pa. 134; In re Indebtedness of Wilkes-Barre Township, 4 Kulp, 83. The court below refused to order a special tax for the payment of any claims not evidenced by judgment, and made a decree directing the proper officers to levy and collect a special tax, in an amount which was, by the court, deemed sufficient to discharge the obligations of the township evidenced by various judgments. The aggregate amount of these judgments was $ 63,621.68; the assessed valuation of the taxable property of the township, last preceding this decree, as fixed and returned by the assessors to the county commissioners, was $ 4,193,521, but after this assessment had been revised, equalized and corrected by the county commissioners sitting as a board of revision, the total assessed value of the taxable property in the township was $ 1,050,124. The court decreed that the tax should be levied and collected upon the assessments as returned by the assessors, and not as corrected by the board of revision. The assignments of error raise two questions: 1. Can the township authorities be required to levy and collect a special tax to pay judgments against the township exceeding in the aggregate more than two per cent of the assessed value of its taxable property? 2. Is the assessed value of taxable property the valuation as at first returned by the assessors, or that fixed by the correction of the return, and the disposal of the various appeals, by the county commissioners sitting as a board of revision?

The judgments against Plains township were many in number, most of them had been entered by the court of common pleas of Luzerne county, but a considerable number had been entered by justices of the peace. There has been no suggestion that any jurisdictional defect appeared in the record of any of these judgments, nor has there been any intimation as to any one of them that the tribunal in which it was entered did not have jurisdiction of the parties and of the subject-matter. The several actions were brought against the township to recover an indebtedness alleged to be due; whether the township was legally indebted necessarily involved the question of the validity of the plaintiff's claim under the constitution and laws of the commonwealth; the judgment in favor of the plaintiff was an adjudication that the sum was legally due and owing. " A debt due on a judgment cannot be said, in legal phraseology, to be a debt arising on a contract; it is a sum of money due by the decree of a court or magistrate:" Ellsworth v. Barstow, 7 Watts 314. The power of the township to contract the obligation was legally cognizable in each one of the proceedings which resulted in a judgment against it, and the entry of the judgment was, so far as that demand was concerned, a judicial determination of the question. The judgment until reversed is conclusive of the right of the plaintiff to recover and the obligation of the township to pay. Our attention has not been called to any evidence which would have warranted a finding that these judgments were entered through collusion. What has been judicially determined shall not again be made the subject of controversy, and the township was not in a position in this proceeding in the court of quarter sessions to make a collateral attack upon the judgments which had been entered in other tribunals: Emery v. Nelson, 9 S. & R. 12; Hazelett v. Ford, 10 Watts 101; Lawver v. Walls, 17 Pa. 75; Commonwealth v. Trout, 76 Pa. 379; Myers v. Kingston Coal Company, 126 Pa. 582; Marsteller v. Marsteller, 132 Pa. 517; Pennock v. Kennedy, 153 Pa. 579; Armstrong County v. Overseers of Plumcreek Twp., 158 Pa. 92; Bolton v. Hey, 168 Pa. 418; Schwan v. Kelly, 173 Pa. 65; Lancaster v. Frescoln, 192 Pa. 452; Hartman v. Pittsburg Incline Plane Company, 11 Pa.Super. 438. The mere fact that the aggregate of the judgments exceeded two per cent of the assessed value of the taxable property of the township was not conclusive of the validity of the demands upon which...