Rubinsky v. City of Pottsville

• Decision Date: 02 March 1923
• Docket Number: 48-1922
• Citation: 81 Pa.Super. 105
• Parties: Rubinsky v. City of Pottsville, Appellant
• Court: Pennsylvania Superior Court

81 Pa.Super. 105

Rubinsky v. City of Pottsville, Appellant

No. 48-1922

Superior Court of Pennsylvania

March 2, 1923

Argued December 4, 1922 [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter]

Appeal by defendant, from judgment of C.P. Schuylkill County, Jan. T., 1922, No. 192, on case stated in the case of Israel L. Rubinsky, Executor of the last will and testament of Harris Rubinsky, late of the City of Pottsville, deceased v. The City of Pottsville.

Case stated. Before Koch, J.

The facts are stated in the following opinion filed in the court below:

From the facts agreed upon it appears that, by virtue of an ordinance of said city approved the 2d day of June, 1914, that portion of West Market Street which lies between Fourth and Twelfth streets in said city was improved and paved, and that on that account the sum of $ 442.98 was assessed against certain property of Harris Rubinsky, deceased, which property abuts on said West Market Street; that the said sum of money was paid into the treasury of said city on the 4th of June, 1916; that among others whose property was in like manner assessed was one Howard N. Jones, who declined to pay the assessment; that he not only declined to pay the assessment but resisted when legal proceedings were had to compel its payment. Those proceedings were entered to No. 392, May Term, 1915, and, upon trial had before a jury, a verdict was entered in his favor. Later, an appeal by the city was taken to the Superior Court of Pennsylvania, and the judgment upon the verdict in favor of Jones was affirmed. See Pottsville v. Jones, 63 S.Ct. 180. According to that decision, abutting property owner were not liable for the improvement of the street, because the jury found that the street had been paved or macadamized prior to that time, and that abutting property owners are not liable for the cost of repaving said street. The assessment against the Rubinsky property having been voluntarily paid, the Rubinsky Estate, by this suit, now seeks to compel the city to repay the said $ 442.98, and grounds its right of action upon two Acts of Assembly, approved respectively on the 5th day of July, A.D. 1917, P. L. 682, and on the 21st day of March, A.D. 1919, P. L. 20.

Having voluntarily paid the said sum of $ 442.98 into the city treasury, the plaintiff is in no position to recover the money back, unless said Acts of Assembly enable him to do so: Peebles and Wife v. City of Pittsburgh, 101 Pa. 304; De La Cuesta v. Insurance Company, 136 Pa. 62; Bryson v. Trustees, 168 Pa. 352; Davis v. Patterson, 12 S.Ct. 480; United States v. Wilson, 168 U.S. 273. (42 L.Ed. 464.)

The title of the Act of 1917 is as follows: " An Act authorizing cities to refund moneys paid by property owners into their treasuries, when a court of competent jurisdiction shall have determined that there was no liability for such payment when made.

The Act of 1919, upon which the plaintiff relies, is amendatory of the one just quoted. It is so amended as to include boroughs and incorporated towns. Each of the Acts of 1917 and 1919 contains but one section. We will quote the section as it appears in the Act of 1919, underlining the portions of the Act of 1919 which are added to the Act of 1917:

" Section 1. Be it enacted, etc., That whenever any city, borough, or incorporated town, within this Commonwealth, shall have, under existing laws, paved, curbed, and guttered, or otherwise improved, its highways, or any of them, or has opened or graded or acquired or condemned property in or along its highways, or any of them, at the expense in whole or in part of the owners of property bounding and abutting thereon, and such owners or any number of them shall have paid the assessments, levied against them by such city, borough or incorporated town, or by viewers, for such improvement, into the respective treasury, the said cities, boroughs or incorporated towns are hereby authorized and empowered to refund to the said owners, or to their heirs or assigns, the amount of the assessment thus paid by them, if it shall have been determined by any proceeding at law or in equity by a court of competent jurisdiction that the owners of property bounding or abutting on said highway or highways were not liable for the payment of such improvement at the time such improvement was ordered by the council of said cities, boroughs, or incorporated towns to be made."

On the 14th of September, 1920, the City of Pottsville passed an ordinance entitled, " An ordinance authorizing and directing the City of Pottsville to refund moneys paid by property owners into the city treasury assessed against them by reason of the paving, curbing and improving of West Market Street, from Fourth to Twelfth Street, and providing for the manner of repayment of the same." In a preamble of seventeen separate paragraphs the reasons for passing the ordinance clearly appear, and a reference is therein made to the Act of 5th July, 1917, P. L. 682, but no reference is made to the Act of 21st of March, 1919, P. L. 20. The ordinance consists of three sections, as follows:

" Section 1. That the City of Pottsville is hereby authorized and directed to pay and refund to the several owners of property bounding and abutting on West Market Street from Fourth Street to Twelfth Street all such sum or sums of money that have been assessed against them and paid by them, respectively, into the city treasury, by reason or on account of a certain paving, curbing and improving of West Market Street, from Fourth Street to Twelfth Street, in pursuance of an ordinance of the City of Pottsville approved June 2, 1914.

" Section 2. That an appropriation be made of moneys sufficient to pay and refund the respective property owners, bounding and abutting on West Market Street, from Fourth Street to Twelfth Street who have paid the assessments levied against them as aforesaid, at the beginning of the next fiscal year.

" Section 3. That when said appropriation is made, and an item contained in the budget to cover the expenditures of the city, for the year 1921, is set aside for this particular purpose, the Superintendent of Accounts and Finance is hereby directed to cause to be issued, a warrant or warrants, in favor of the said respective property owners, who have paid the assessments levied upon them as aforesaid and the City Treasurer is directed to pay the same.

" All ordinances or parts of ordinances inconsistent herewith are hereby repealed."

In the fourth paragraph of the case stated, " It is agreed that no appropriation has been made by the City of Pottsville, in pursuance of the ordinance referred to, passed the 14th day of September, 1920, to pay and refund the moneys to the plaintiff and other property owners on West Market Street, assessed against their respective properties and paid by them into the city treasury."

Notwithstanding the passage of the ordinance of 1920 by the City of Pottsville, it now resists this suit for the recovery of the money paid by the Rubinsky Estate, upon the alleged ground that the Act of 1917 is unconstitutional as offending against the seventh section of the third article of the Constitution, which inter alia forbids the general assembly to pass, " any local or special law . . . . regulating the affairs of counties, cities, townships, wards, boroughs or school districts . . . . or refunding moneys legally paid into the treasury."

The Act of 25th of June, 1885, P. L. 187, regulating the collection of taxes in the several boroughs and townships of this Commonwealth is a general act, although it is limited in its application to only the political divisions mentioned in the act. Nor is that act unconstitutional because it fails to repeal all local laws on the same subject: Evans v Phillipi, 117 Pa. 226. An act is not local but general when it is passed for the whole State: Com. v. Reynolds, 137 Pa. 389, 401. " It is the settled law since Wheeler v. Phila., 77 Pa. 338, that classification based on genuine and substantial distinctions is within the constitutional power of the legislature, and an act which applies to all its members of the class is general and not special" : Sugarnotch Borough, 192 Pa. 349, 356. There is no constitutional objection against classification of municipal divisions. Nor is there objection against legislation for each class. " It would be a most unfortunate clog on the improvement of our school system if Philadelphia, Pittsburgh, Allegheny and other cities could not have their high schools, their manual training or industrial schools, or even their kindergartens, without the necessity of imposing the expense of a similar establishment on every borough and sparsely populated township in the State" : Ibid. 357. " There is no constitutional requirement of uniformity as to matters included in section 7 of article III. That section is a prohibition against local or special laws upon certain subjects . . . . The constitutional requirement therefore is that such laws shall be general, not local or special and uniformity of result is only one of the judicial tests applied to laws for the determination of their character as to generality. A law may by classification or otherwise produce some diversity of result, and yet be general, for where the classification is based on genuine distinctions, its expediency is for legislative determination" : Stegmaier v. Jones, 203 Pa. 47, 50; Com. v. Middleton, 210 Pa. 582. Where an act affects the school directors of all the townships of the State so far as it concerns the control of contagious and infectious diseases it is not a local or a special law: School District v. Montgomery, 227 Pa. 370. Consequently such an act as the one before us, which...