Wilson v. School Dist. of Philadelphia

• Decision Date: 16 November 1937
• Docket Number: 72
• Citation: 195 A. 90,328 Pa. 225
• Parties: Wilson et ux. v. Philadelphia School District et al., Appellants
• Court: Pennsylvania Supreme Court

195 A. 90

328 Pa. 225

Wilson et ux. v. Philadelphia School District et al., Appellants

No. 72

Supreme Court of Pennsylvania

November 16, 1937

[Copyrighted Material Omitted]

Argued November 12, 1937

Appeal, No. 72, Jan. T., 1938, from decree of C.P. No. 2, Phila. Co., Sept. T., 1937, No. 841, in case of S. Davis Wilson et ux. v. School District of Philadelphia, Board of Public Education of the School District of Philadelphia and Edward Martin, M.D. et al., members of the Board of Public Education of School District of Philadelphia. Decree modified.

Bill in equity.

The opinion of the Supreme Court states the facts.

Preliminary objections by defendant overruled and decree entered granting injunction, opinion by GORDON, P.J. Defendants appealed.

Error assigned, among others, was final decree.

The decree appealed from is modified; the defendants, severally and jointly, are restrained from levying a school tax in excess of nine and one-quarter mills on the assessed valuation; leave is granted to levy such tax not to exceed said rate for the years 1938 and 1939; this court will retain the record and jurisdiction of the case for such further action as, on proper application, may be shown to be necessary. Each party shall pay its own costs.

Robert T. McCracken, with him George G. Chandler, for appellants.

Joseph Sharfsin, with him A. L. Shapiro and Abraham Wernick, for appellees.

N. R. Criss, Solicitor for School District of Pittsburgh, amicus curiae.

Before KEPHART, C.J., SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES, JJ.

OPINION

MR. CHIEF JUSTICE KEPHART:

Appellees seek to enjoin appellants from levying and collecting, or attempting to levy and collect, taxes for school purposes in the School District of Philadelphia County for the year 1938 and subsequent years. Nine reasons were assigned for holding the taxing sections of the School Code and its amendments unconstitutional. The preliminary objections to the bill were that it was too late to raise the constitutionality of the School Code, as amended, and that the present bill was barred by the principle of stare decisis as the constitutional objections had been adversely decided in Minsinger v. Rau, 236 Pa. 327.

The court below dismissed eight of appellees' nine reasons as having been decided by Minsinger v. Rau, supra, and rested its decision on the invalidity of the legislative delegation of the power to fix the tax rate. It held that the Act of March 12, 1929, P.L. 20, amending the School Code of May 18, 1911, P.L. 309, was such a departure from that act with reference to taxing power that a question not presented in the Minsinger case must be considered. As to it the court below held, after a very learned discussion, that the Act of 1929 was an unlawful delegation of power and accordingly decreed the Board of Public Education of the School District of Philadelphia be restrained from levying any tax beyond that provided for in the Act of June 21, 1919, P.L. 555.

The questions presented in this appeal have a much wider scope than those presented to the court below. We consider the theory of delegation of legislative power generally, and specifically the delegation of the taxing power. In conjunction therewith we consider the right of the legislature to delegate to any appointive commission the power to levy taxes. If it be found the Act of 1929 was a lawful grant of power, our inquiry need go no further, but if we should find that the act was an unlawful delegation of power, or such delegation was in violation of Article III, Section 20 of the Constitution as conferring on a special commission the right to levy taxes, there would remain further questions of delay in instituting this proceeding and our power over the decree of the court below.

It is a well settled maxim that under our theory of the separation of powers of government, legislative, judicial and executive, the powers of each branch must be preserved to it; the legislature cannot delegate its powers to enact laws directly or indirectly to any other body or governmental agency: O'Neil v. Am. Fire Ins. Co., 166 Pa. 72. As stated by Chief Justice GIBSON early in our history, in Case of the Borough of West Philadelphia, 5 W. & S. 281, 283: "Under a well-balanced constitution, the legislature can no more delegate its proper function than can the judiciary. It is on the preservation of the lines which separate the cardinal branches of the government, that the liberties of the citizen depend . . ."

This principle, though not expressly written in our Constitution, embodies its basic strength if it is to endure as our fundamental law. It has been so considered since we have been a state; its main essentials have been rigidly adhered to. We have had many cases before this court wherein legislation has been assailed because of the delegation of legislative power. It is impossible in the short time allotted to us for this opinion to attempt to review these cases and set up some all-embracing rule that might be a guide as to what is and what is not a delegation. One cardinal principle stands out, that any fundamental or basic power necessary to government cannot be delegated.

That the power to tax is peculiarly a power of the legislature ( Sharpless v. Mayor of Phila., 21 Pa. 147) has never been questioned in this country and has frequently been asserted by our courts: City of Erie v. Reed's Executors, 113 Pa. 468; Butler's Appeal, 73 Pa. 448; Balto. & Phila. Steamboat Co.'s Appeal, 302 Pa. 364; P.R.R. Co. v. Pittsburgh, 104 Pa. 522; Gray, Limitations of the Taxing Power (1906), 271-272. The taxing power, one of the highest prerogatives, if not the highest, of the legislature, must be exercised through representatives chosen by the people. It is clearly within the interdiction of this principle of constitutional government against delegation. True, in this state, and in many others, the power to tax has been delegated to and exercised by smaller units of state government, such as municipal bodies chosen by the people. See Sharpless v. Philadelphia, supra. For, while the principle of nondelegation of taxing power is the general rule, delegation to municipal authorities has been recognized as lawful: Butler's Appeal and City of Erie v. Reed, supra; Durach's Appeal, 62 Pa. 491; 1 Cooley, Constitutional Limitations (8th ed.), 235, 389; 4 Dillon, Municipal Corporations (5th ed.), sections 1375-1376. This is an exception to the general rule, but such delegation is kept within defined lines, with supervisory control always vested in elective bodies. There are reasons for this exception, at least in this state. Justice SHARSWOOD in Durach's Appeal, supra, at pp. 493, 494, said: "Municipalities, such as counties, cities and boroughs, are public corporations created by the government for political purposes. They are invested with subordinate legislative powers for local purposes connected with the public good. . . . To carry out these objects [of local government] there must be money, and hence the necessity of taxation for the purpose." These local units of government possess a legislative body chosen by the people, and delegation of power to them does not actually remove this important subject from the control of the people. Justice SHARSWOOD stated that the great principle which lies at the base of our tax institution is popular representation. And see Thomas v. Gay, 169 U.S. 264, 276. It was the reliance on this principle that induced the framers of our Constitution to plant in the legislature the taxing power without stint or reservation. As popular representation is one of the attributes of our lesser units of government, it would seem that the theory he speaks of is maintained by delegation to them.

There is another historical reason which supports the right of the legislature to entrust local taxation to municipal governments. Local governmental units, in many instances, antedated federal or state governments and before their inception levied taxes. In this state this is particularly true. Our earliest taxes were levied by the townships under the laws of the Duke of York for poor relief and governmental expenses. Under the proprietary government the county was the taxing unit. When the legislature authorized cities, townships, boroughs and counties to levy taxes, it merely carried on a system that had been historically in existence.

There is no such historical basis to support conferring the taxing power on a school district. Our common school system was not adopted in this state as it exists today until many years after the Revolution, though the Constitutions of 1776, 1790 and 1838, and the laws recognized its vitally important part in our existence. After Thaddeus Stevens' and Governor Wolf's famous crusade for education, our schools became an integral part of our governmental system as a state institution: Minsinger v. Rau, supra, at 331; Duff v. Perry Twp. School Dist., 281 Pa. 87; Ford v. School Dist., 121 Pa. 543; Board of Education v. Ransley, 209 Pa. 51. The Constitution of 1874 fortified it and directed the legislature to maintain "a thorough and efficient system of public schools": Article X, Section 1. 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. ^[1] They have been held to be bodies of a lower grade, with less power than cities, fewer of the characteristics of private corporations and more of mere agencies of the state: School District v. Fuess, 98 Pa. 600. ^[2] They possess only the administrative...