McKeesport Borough v. Fidler , 147 Pa. 532 ( 1892 )

Opinion by

Mr. Justice Green,

The action in this case is the ordinary action of assumpsit brought by the borough of McKeesport against Eliza Fidler. In the statement of the plaintiff’s cause of action, it is claimed to recover the amount of an assessment made by viewers upon certain real estate of the defendant within the limits of the borough, for the cost of building a sewer upon a certain street and alley in said borough. The affidavit of defence alleges that the sewer was not built along any part of her property, but that her property is half a mile away from it, and that she had no notice of the appointment of viewers, nor of any hearing before them. The action is the mere personal action of assumpsit, in which a personal judgment is sought to be recovered against the defendant. Of course, the cause of action is not founded upon any relation of contract, express or implied, between the parties, and the question is, whether there can be a recovery of a personal judgment against the defendant upon the facts set forth in the plaintiff’s statement as affected by the defendant’s affidavit.

There can certainly be no recovery in such a case without a clear legislative authority. The defendant had no hearing before any tribunal, and had no opportunity to make anjr defence whatever to the claim of the plaintiff. The affidavit of defence alleges that the first notice she received was a demand upon her for the payment of the assessment. Passing by the constitutional question as to the validity of the act under which the assessment was made, let us inquire whether the act does confer a right of recovery in this form of action against the defendant personalty.

The act under which the assessment was made is an act passed May 24, 1874, P. L. 879, and is a supplement to the several acts incorporating the borough of McKeesport. The 14th section is the one upon which the right of recovery is based. An examination of it shows that it confers power upon the council of the borough to cause sewers to be constructed in the streets and alleys of the borough, and it authorizes the council to make an assessment upon all property in the borough which may seem to be benefited thereby, fairly and equitably in proportion to the benefits received; that the assessments shall be made by three disinterested persons to be appointed by council, and that “ when said assessment has been approved by said council it shall be a lien upon the property upon which it shall be made, and, after public notice through the borough paper, if not paid within thirty days after the said approval, the amount of said assessment, with five per cent added thereto, shall be collected by the solicitor of said borough, and by him deposited with the treasurer of said borough.”

It is immediately apparent that no right to file any municipal lien against the property, for the amount of the assessment, is conferred by the act, and on that subject the case comes directly within the operation of two of the decisions of this court, in both of which it was held that liens in the nature of mechanics’ liens cannot lawfully be filed by a municipal corporation to enforce the payment of municipal charges unless authorized by statute: Phila. v. Greble, 38 Pa. 339; Mauch Chunk v. Shortz, 61 Pa. 399.

The question then recurs, is any right to recover in a personal action against the owner conferred by the act. It cannot be questioned that, under a number of our decisions, the assessment is a tax: Olive Cemetery Co. v. Phila., 93 Pa. 129; Erie v. Church, 105 Pa. 278.

In Emrick v. Dicken, 92 Pa. 78, we said: “A municipal lien for street improvements is a proceeding in rem. It is filed against the abutting or adjacent property, and involves no personal liability on the part of the owner.” In Neill v. Lacy, 110 Pa. 294, we held that unseated lands are alone liable for taxes assessed thereon; there is no personal responsibility upon the owner thereof. In Council v. Moyamensing, 2 Pa. 224, we held, that the lien for curbing, etc., given to the districts, is not limited by the act for limitations of personal actions, there being no personal liability therefor.

Recurring to the 14th section of the act of 1874, we find that it simply directs that the assessment shall be a lien on the property, but gives no right to file a claim of lien, or to prosecute the lien, or any lien, by any form of action, and it imposes no personal' liability of any kind upon the owner. It contemplates only a liability of the property, but omits to give any remedy for enforcing it against the property. No right to maintain any action against the owner is given, and hence there is no personal liability of any kind created by the act. When it directs that the amount shall be collected by the solicitor of the boroughs, no method of collection by an involuntary proceeding is prescribed. This part of the act implies nothing more than that he shall collect it out of the property, but it gives no means of doing even that. In no aspect of the act ,is any remedy by a personal action against the owner provided.

Nor does it help the case to say that the assessment is to be treated as a sum of money due, and is directly to be collected, and is therefore to be regarded as a debt which can be recovered as ordinary debts are recovered. Being a tax, the assessment cannot be collected as an ordinary debt by a common law action, unless such remedy is given by statute. This view was fully adopted by the Supreme Court of the United States in the case of Lane Co. v. Oregon, 7 Wall. 71, in which explicit approval is given to various decisions of state courts, cited in the opinion, which hold that assessments of taxes do not create debts which can be enforced by suit.

The case of Shaw v. Pickett, 26 Vt. 482, is one of those in which the Supreme Court of Vermont said: “The assessment of taxes does not create a debt that can be enforced by suit, or upon which a promise to pay interest can be implied. It is a proceeding in invitum.” Another of the cases cited was City of Camden v. Allen, 26 N. J. 398 (2 Dutcher). It was an action of debt to recover a tax brought by the municipality to which it was due. The Supreme Court of New Jersey said:- “ A tax, in its essential characteristics, is not a debt, nor in the nature of a debt. A tax is an impost levied by authority of government upon its citizens or subjects for the support of the state; It is not founded on contract or agreement. It operates in invitum. A debt is a sum of money due by certain and expressed agreement. It originates in and is founded upon contracts express or implied.”

In the case of Crapo v. Stetson, 8 Mete. 898, the Supreme Court of Massachusetts said: “The validity of the tax, and the liability of the defendant to be assessed therefor, have been settled by the jury in favor of the plaintiff; and the remaining question is, whether, although thus liable to be assessed, an action of assumpsit will lie in the name of the collector of taxes, to recover the amount of the tax of the defendant. It is well settled that the law gives no remedy for the collection of taxes other than those provided by statute; and unless the mode now sought to be enforced is given by statute, it does not exist.” It was held the tax could not be recovered.

In view of the various authorities referred to, and of the underlying principle involved, we feel constrained to hold that the present action of assumpsit cannot be maintained.

Judgment reversed.