Appeal of Hewitt , 1879 Pa. LEXIS 16 ( 1879 )

Mr. Justice Mercur

delivered the opinion of the court, January 6th 1879.

The object of this bill was to restrain the collection of municipal taxes levied on lands of the complainants. The territory in which these lands are situate, was annexed to, and brought within the city of Allegheny, under the Act of 10th March 1871, Pamph. L. 304. The eighth section of the act declares “ that when, at any time, the two-thirds of the property holders of said district shall petition the councils of said city to be admitted into and become a part thereof, such described territory may be admitted into said city by resolution of the councils thereof, and shall thereafter be subject to all laws and ordinances governing the same.” In pursuance of the act and according to its provisions, more than two-thirds of the property owners of the district, then called “North End,” petitioned the councils of the city to be admitted into and become a part of the same. By resolution of the councils and proclamation of the mayor, the district was duly admitted into said city. That the substantial forms of law were complied with, cannot be successfully denied. Tho slight technical objections made are insufficient to affect the regularity of the proceedings annexing the territory. In fact, they were not pressed on the argument. The strong ground of objection was, that the territory was not improved city property, but was composed of suburban and rural lands; and that “ the lands and occupants thereof enjoy no city conveniences; and in return for the taxes levied and collected, they receive no appreciable benefits, beyond what they enjoyed before.” Therefore it is claimed that the taxes are illegally assessed, and the collection of them is contrary to equity and the provisions of the Constitution of the Commonwealth, prohibiting tho taking of private property for public use without rendering due compensation therefor.

All the objections made to municipal taxes, levied on property of like character, were most carefully considered, after being twice argued, in the recent case of Kelly v. City of Pittsburgh, 4 Norris 170. The authorities on which the counsel for the appellant now relies, were there cited and examined. This court, nevertheless, held the taxes valid. The conclusion at which we then arrived, remains unshaken. It is unnecessary to repeat tho many sound reasons therefor, given in the opinion of our brother Gordon. Any other conclusion would be a denial of that discretion which the Constitution gives to the legislature. An act extending the limits of a municipal corporation, and subjecting the property thereby included, to taxation, is clearly within legislative power. Its wisdom or discretion ■we cannot review. Possessing the whole taxing power, we cannot interfere with its exercise unless it be so grossly perverted as to be in manifest violation of the Constitution. The authority to the city, to impose municipal taxes, on all the lands within the district in question, is no such violation.

It is urged that the park tax is so irregular as to be invalid. Conceding the illegality alleged in regard to it, yet the complainants have a full and adequate remedy at law, and, therefore, a bill in equity to restrain its collection should not be entertained. A further answer to that part of the bill is this. The 3d sect, of the Act of 25th March 1878, cured all irregularities and defects in the taxes theretofore levied for park purposes. If the legislature has antecedent power to levy a tax, it can, by a retroactive law, cure an irregularity, or want of authority in the persons levying it: Grim v. Weissenberg School District, 7 P. F. Smith 433. So a statute which makes valid a municipal ordinance, void for want of jurisdiction, and the contract made under it, is constitutional: Commonwealth v. Marshall, 19 Id. 328. The learned judge committed no error in dismissing the bill.

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

Chief Justice Agnew and Justice Trunkey dissented.