Commonwealth ex rel. Dysart v. M'Williams , 11 Pa. 61 ( 1849 )

The opinion of this court was delivered by

Bell, J.

The gravamen of the relator’s complaint is, that the defendants claimed to exercise the office of supervisors and assessors of taxes in the township of Franklin, and the right and authority to assess upon, and collect from, the inhabitants of the township, taxes and large sums of money, for the use of “ the Spruce Creek and Water Street Turnpike Company,” without any warrant or lawful authority for exercising the same, under and by colour of an act of Assembly, passed the 13th day of April, 1846. The defendants, by their plea, take issue upon the averments, and deny that they claim to exercise the office of supervisors, or authority to assess, levy, and collect taxes, for the use suggested, under and by virtue of the act mentioned. It was competent to the defendants so to traverse, for though in a writ of quo warranto a simple plea of not guilty, or non usurpavit, is bad, a defendant may deny the material allegations tendered by his antagonist. Thus he may plead that he did not use or exercise the office or liberties in question : Rex v. Ponsonby, Sayer’s R. 245; 2 Bro. P. C. 311; 1 Ves. Jr. 1; or, that it is not a public office, touching the government of a borough, or touching the election and return of burgesses to serve in parliament: Rex v. M’Kay, 4 B. & C. 351; 6 D. & R. 432. Perhaps, in strictness, these defendants ought to have gone further, and shown by what authority they claim to execute the office of supervisors of Franklin township, by specially setting out their title to it. Admitting this to he so, it is shown by. the record the relator consented to go to trial on the issue tendered, and prosecuted it to judgment, without objection on this score. Now all the evidence in the cause proves, conclusively, the taxes complained of were not levied under the act of Assembly pleaded, but by virtue of the authority vested in supervisors of townships, by the act of 15th of April, 1834. Consequently, upon the very point presented by the pleadings, the verdict and judgment could not be otherwise than for the defendants. .

But the object of the relator was to ascertain whether the defendants were justified by the act of 1834, in levying and collecting tax to enable them, as supervisors, to subscribe for shares of the capital stock of the turnpike company, at the cost of the inhabitants of the township ? No doubt the remedy he adopted would have afforded him the means of testing this. Long disused in England, the writ of quo warranto was unknown to our practice until introduced by the act of June 1836. Following the example of the mother country, we had substituted the device of an information in nature of the ancient writ. But both these methods of proceeding are available, not only against one who usurps an office or franchise, but also for an abuse of it. Thus a quo warranto was held to lie against a mayor, &c., for an unlawful exercise of power, by admitting as freemen, persons who were not entitled ; for it is said, there is no other remedy: Com. Big. tit. Quo warranto (C); and the same is true of an information, which lies wherever the writ was available. Holt, C. J., said, the officers might be ousted and fined, although the franchise could not be seized into the king’s hands, for, in such cases, the misconduct of the incumbent does not work a forfeiture of the corporate office: Rex v. Hertford, 1 Salk. 374; S. C. 1 Ld. Bay. 426; Willcock on Mun. Corp. 454; Cole on Inform. 111.

The second section of our statute on this subject relates to public and private corporate offices, and the first clause of the section gives the writ of quo warranto, “ in case any person shall usurp, intrude into, or unlawfully hold or exercise any county or township office, within the respective county.” As the object was to revive the old writ, in the cases enumerated, it is not to be pi-esumed, in the absence of a distinct manifestation, the legislature intended to cripple its common-law efficacy. Although the language of the statute is not, on this point, as explicit as it might be, still the words used are sufficiently broad to include the abuse of a township office, by a legal incumbent. It is an unlawful exercise of it.

The relator might, therefore, under this statute, have raised the question of which he seeks the decision, hy a proper suggestion; and as it seems important it should be settled, I will, following the example of the court below, proceed to express the opinion of this court, irrespective of the defective suggestion and plea.

It is conceded the defendants were duly elected and qualified supervisors of their township, and it is proved, that as such, they assessed a tax not exceeding the rate authorized by the act of 1834, defining their powers in this particular. But they avow a portion of this tax is levied to enable them to pay for certain shares of capital stock of the turnpike company before mentioned, to be subscribed by them ex officio. The 16th section of the act of April 1846 (P. L. of 1847, pa. 15), provides “that the supervisors of the public highways, in the townships through which the said turnpike road may pass, be and they are hereby authorized to subscribe for, and in the name and behalf and for the use of the inhabitants of such townships, any number of shares not exceeding 3,600, in the capital stock of the said turnpike road — provided always, that the said supervisors, in subscribing as aforesaid, shall be entitled to use the rights and privileges granted by this act to other stockholders in the said company.” How the act of 1834 empowers the supervisors of townships to assess and levy township taxes for the purpose of making and repairing roads and bridges, and “for such other purposes as may he authorized hy law and the act of 1846, as we have seen, authorizes these supervisors to subscribe to the stock in question. The tax in controversy is, therefore, levied for a distinct purpose authorized by law. But it is suggested that the latter act is unconstitutional. What provision of the constitution of Pennsylvania does it infract ? Hone has been pointed out, for none such exists. Of late years it has been much the fashion to impeach the action of the legislative bodies, as unconstitutional, when it happens not to accord with the party’s notion of propriety and abstract right. This is very frequently done in sheer oblivion of the doctrine that express prohibition or necessary implication is essential to oust the state legislature of authority. Where this prohibition is not found in the primordial part, the exertion of a power cannot be deemed unconstitutional, even though it seems to trespass upon our ideas of natural justice and right reason: Commonwealth v. M’Closkey, 2 R. 374, 382. So far has this principle been carried, that in Harvey v. Thomas, 10 W. 63, it was intimated the legislature might appropriate private property to the use of a private way, without making compensation, since the constitutional inhibition relates solely to public uses.

From the commencement of the government, our representative bodies have exerted the unchallenged power to levy taxes, mediately or immediately, for every purpose deemed by them legitimate. Among these purposes, the construction and maintenance of roads and highways, to meet the necessities and to facilitate the commerce of the people, have ever been deemed of the first importance. Without these, a commercial community could scarcely exist. Indeed, they are so essential to the progress of civilization and the cultivation of the arts of life, that the degree of refinement attained by a people may, in some sort, be measured by their extent and condition. With us, accordingly, much attention has been bestowed upon them, and liberal powers for raising money by taxation, vested in the officers charged with their superintendence. No one has yet dreamed of doubting the validity of that power, when applied in maintenance of the ordinary roads of the country. And yet it is difficult to distinguish between these and a public turnpike road, so far as-the advantage of the community is involved. The right to exert the power of taxation in support of the latter, was considered at an early day in this state, in M’Clenaghan v. Curwin, 3 Y. 362. In delivering the judgment, Shippen, C. J., said, “ such an artificial road being deemed by the legislature a matter of general and public utility, and considering it was not to be effected but at considerable expense, which could not be defrayed in the ordinary way, by the inhabitants of the several townships though which the road was to run, they devised the mode of accommodating the public at the expense of individuals, who might be induced to do it from the prospect of gain. It was immaterial to the public, whether it -was done by a general tax, to be laid on the people at once, or by the gradual payment of certain specified sums, &e. For though every man has a right to the free use of a public road, yet every member of the community may be taxed for making the road in any manner the legislature may think reasonable and just.” In our case, the law-makers have done nothing more than is here recognised as their right to do.

A very signal instance of the exercise of a similar power is afforded by the recent act of 27th March, 1848, P. L. 273, authorizing the city of Philadelphia, the county of Allegheny, the cities of Pittsburgh and Allegheny, and the municipal corporations of Philadelphia county, to subscribe for shares of the capital stock of the Pennsylvania Railroad Company, to borrow money to pay therefor, and to pay the principal and interest of the sum so borrowed. The exercise of this authority may, of course, entail additional taxation upon the inhabitants of the several places designated. Yet, though before the enactment, the right of a municipal corporation to subscribe to the stock was strongly contested, no one has doubted it since, and, on the faith of this legislation, millions of dollars have been subscribed. Like this, the act of 1846 says nothing about taxation. By both, this is left to depend on other laws, and they may, therefore, be said to rest in precisely the same principle.

The constitutionality of the law under which the defendants acted, being shown, it follows the judgment of the court below, in this aspect of the case, was right. This conclusion renders it unnecessary to consider whether an objection to the sufficiency of the defendants’ plea, could be entertained at this stage of the proceeding. We will not reverse, where, from the record, it is demonstrable the judgment must be the same on an amended pleading, especially where the case of the plaintiff in error has been considered as though no defect existed.

Judgment affirmed.