Durach's Appeal , 62 Pa. 491 ( 1870 )

The opinion of the court was delivered,

by Sharswood, J.

The question which arises upon the bill and answer in this case does not require much research or elaboration. The reasons which dispose of it are on the surface. 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: 2 Kent’s Com. 275. Wherever masses of men are crowded together in densely populated districts, it has been found that a police is necessary to maintain peace and order, and to detect and punish crime. A sense generally felt that there is such an efficient force in a community has of itself a most potent influence in restraining and preventing the violation of law. Prevention in all cases, physical, moral or political, is much better than cure. It cannot be doubted then that the maintenance of such a force is a highly proper power, which may be constitutionally committed by the legislature to these municipal corporations. Indeed, no part of the machinery of government is more important and useful than that which is thus exercised, and most advantageously exercised in this way. It comes directly home to the hearths and firesides, and affects the daily comforts and security of the citizens. According to the system universally adopted and in use, the persons residing within the district subjected to the powers of the municipality, are their own governors; they choose by a majority of voices those who administer its affairs-. There can be no great danger of permanent abuses under such a system, especially in small corporations as boroughs usually are. All are equally interested, and the constituents are near and have an immediate supervision and influence over their representatives. To carry out these objects there must be money, and hence the necessity of taxation for the purpose. The municipal government is really but a branch of the government of the state; and whatever powers of taxation the legislature possess they may lawfully grant or delegate to such bodies. There is no limitation of these powers expressed in the Constitution of Pennsylvania as there is in the constitutions of some of our sister states; but, nevertheless, there are limits in the nature of things. The legislature cannot, under the name of taxation, take private property for public use without making compensation, and a special tax levied upon an individual, or upon particular individuals, would infringe this restriction; for one mode of enforcing its payment is by the seizure and sale of the property of the delinquent, which is a direct taking. But in the legitimate exercise of the power of taxation, persons and things always have been and may constitutionally be classified. No one has ever denied this proposition. To hold otherwise, would logically require that all the subjects of taxation, as well persons as things, should be assessed, and an equal rate laid ad valorem. Practically no more unequal system could be contrived. It is generally agreed, if not universally conceded, that the legislature cannot impose upon the persons residing in a particular locality or portion of the territory a tax for the benefit of the whole state, nor on a borough or township for the benefit of a county, any more than upon a single individual. Had the tax now in question been laid by the corporate authorities of the borough of Johnstown upon the keepers of restaurants and drinking saloons, in any particular quarter of the village, or upon any particular individuals of the class, it would have been justly liable to this objection. If the taxation is upon all of a class, either of persons or things, it matters not whether those included in it be one or many, or whether they reside in any particular locality or are scattered all over the state. If for example a general tax -were imposed upon all distilleries or owners of distilleries, it would not affect the constitutionality of the tax if the distillers all carried on their business in a particular section of the country, or were few in numbers.

The legislature has often exempted certain classes of properties and even certain classes of persons from taxation altogether. However the justice or expediency of such exemptions may be condemned, no one that I am aware of has ever questioned their constitutionality. The 29th section of the Act of April 16th 1838, Pamph. L. 525, exempted churches, colleges, academies, schoolhouses, burial grounds as well as court-houses and jails. So by the 7th section of the Act of March 1st 1780, 1 Sm. L. 479, all lands granted to any officers or soldiers of the line of this state in the Continental army of the Revolution either hy Congress or the legislature as a reward for their services, were exempted during the lifetime and ownership of such grantee. And by the 32d section of the Act of April 29th 1844, Pamph. L. 497, imposing a state tax for the payment of the interest upon the state debt, where both the objects and persons made liable to the tax are enumerated and classified, among them are “ all professions, trades and occupations, except the occupation of farmers.” No doubt all taxation should be general and as far as practicable equal. Legislation either to benefit or burden particular classes, under the. idea that it is for the good of the state at large, infringes upon the natural and guaranteed right “ of acquiring, possessing and protecting property,” subject only to fair and equal contributions to the just and necessary expenses of government in the exercise of its proper and legitimate functions. A government, which assumes the office of controlling and directing the lawful industry of the citizens into the channels which it may choose to deem best, assumes what does not legitimately belong to it. Some states in modern times, in undertaking to find work for the people, have discovered that it was a sure way to make work for themselves. But we cannot sit in judgment upon the wisdom or expediency of laws. An act of the legislature must clearly transcend the limits of the power confided to that department of government, or more properly speaking, it must violate some prohibition, either express or necessarily implied, either of the Federal or state constitutions, before it can be pronounced by the judicial department to be unconstitutional and void. We cannot so pronounce as to the Act of October 30th 1865, Pamph. L. 1866, p. 1224, and the court below was therefore right in dismissing the bill.

Decree affirmed, and appeal dismissed at the costs of the appellants.