Philadelphia v. Pennsylvania Hospital , 143 Pa. 367 ( 1891 )

Opinion,

Mr. Justice Sterrett:

In this action of scire facias sur municipal claim for curbing, etc., the defendant’s affidavit of defence was adjudged insufficient, and judgment was accordingly entered in favor of plaintiff for the amount of its claim. From that judgment this appeal was taken by defendant. The facts are fully presented in the statement of claim and affidavit of defence. There is no question as to the curbing having been properly done, nor as -to the cost thereof. The sole question is whether, upon any legal ground, either as a tax or under the police power of the city, the assessment in question can be sustained.

It is contended by defendant that an assessment for curbing is a tax; and inasmuch as its “ estate and property, both real and personal, are by law exempt from the payment of tax of any kind whatsoever,” the plaintiff’s claim cannot be enforced; and in support of the position, Olive Cemetery Co. v. Philadelphia, 93 Pa. 129, and other cases, recognizing the right of local-taxation for certain local purposes, are cited. But it is a mistake to assume that the authority vested' in municipal corporations to require property owners to curb, pave, and keep in repair the sidewalks in front of their respective properties, rests upon the same basis as the right of local taxation recognized in the cases referred to. There is a marked distinction between them. In the former, a duty is imposed on the property owner in the nature of a police regulation. In the latter, no such duty is cast upon him. This distinction was clearly pointed out by the present Chief Justice in Wilkinsburg Bor. v. Home for Aged Women, 131 Pa. 117, which, in principle, is identical with this.

In Cooley on Taxation, 398, the learned author says: “ The cases of assessments for the construction of walks by the sides of the streets in cities and other populous places are more distinctly referable to the power of police. These footwalks are not only required, as a rule, to be put and kept in proper condition for the use of the adjacent proprietors, but it is quite customary to confer by municipal charters full authority upon municipalities to order the walks, of a kind and quality by them prescribed, to be constructed by the owners of adjacent lots at their own expense, within a time limited by the order for the purpose; and that, in case of their failure so to construct them, it shall be done by the public authorities, and the cost collected from such owners or made a lien upon their properties. When this is done, the duty must be looked upon as being enjoined as a regulation of police, made because of the peculiar interest such owners have in their walks, and because their situation gives them peculiar fitness and ability for performing, with promptness and convenience, the duty of putting them in proper state, and of afterwards keeping them in a condition suitable for use.....The courts distinguish this from taxation, on the ground of the peculiar interest which those upon whom the duty is imposed have in its performance,” etc. Again, on page 588, he says: “ The distinction between a demand for money under the police power and one under the power to tax, is not so much one of form as of substance. The proceedings may be the same in the two eases, though the purpose is essentially different. The one is made for regulation, the other for revenue. If, therefore, the purpose is evident, there can be no difficulty in classifying the case and referring it to its proper power.” The same distinction was recognized in re Goddard, 16 Pick. 504, 509.

The ordinance of May 8, 1855, passed in pursuance t,of the authority vested in councils by the acts of April 16, 1838, and February 2, 1854, provides that “the footways of all public streets and highways.....shall be graded, curbed, and paved, and kept in repair, at the expense of the owners of the ground fronting thereon.” The third section of same ordinance provides that the owner shall have the right to do the work of paving and curbing and keeping in repair said foot-ways, and, on his failure to do so, the city shall do it at his expense, and may file a lien for the amount. This requirement is clearly not for the purpose of revenue. It is simply a regulation under the police power of the municipality. On principle, as well as on the authority of our own and other cases, the amount expended by the city in enforcing the regulation is not in any proper sense of the word a tax. It is a liability incurred for neglect to perforin a duty imposed by the police power of the city. In so holding, we adhere to the principle ruled in Wilkinsburg Borough v. Home for Aged Women, supra.

Judgment affirmed.