Van Loon v. Engle

Opinion bx

Mb. J ustice Williams,

This is an action of ejectment in which the plaintiff’s right to recover depends on the validity of the tax sale through which he acquired his title. The defendants hold the title under a regular chain of conveyances and are in possession as owners. They have a right to the verdict unless the title has been taken from them by virtue of the tax sale under which the plaintiff claims. This sale was made under the act of 1881, P. L. 45, and upon a collector’s return of the lot in controversy for the nonpayment of taxes assessed upon it as seated land. Two questions are raised, viz: the constitutionality of the act of 1881, and the sufficiency of the return made by the collector. The act of 1881 purports to be a general law, and provides that “ all taxes whether count3T, township, poor, school or municipal taxes” shall be a first lien on the real estate on which such taxes are assessed. It provides for the return of such lands upon nonpa3'rnent of the taxes and for their sale for the collection of the taxes unpaid. Cities of the first, second and fourth classes are excepted from its operations. Townships, boroughs and cities of the third class. remain under its operations. We thus have one system for the collection of taxes, and for creating liens in one class of cities, and a different system in the other classes. The difference does not relate only or mainly to municipal taxes. It affects all the taxes levied by all the taxing officers. The collection of a county tax is not a municipal purpose. The same thing maybe said of school and poor taxes. Classification has been upheld for municipal purposes only. Legislation fora class of cities is only general and valid under our constitution, when it relates to some municipal purpose. If it does not affect the exercise of some municipal power, or the number, character, powers and duties of the municipal officers, or the regulation of some subject within the appropriate range of municipal control, the legislation is local and unconstitutional: Ruan Street, 132 Pa. 257 ; Ayars’ Appeal, 122 Pa. 266: Meadville v. Dickson, 129 Pa. 1; In re Wyoming Street, 137 Pa. 494. The constitutional provisions involved in this inquiry are art. 3, sec. 57, which provides that no local or special law shall be passed “ authorizing the creation, extension or impairing of liens ; ” “ creating offices or prescribing the powers and duties of officers in counties, cities, boroughs, townships, election or school districts ; ” “ regulating the affairs of counties, cities, townships, wards, boroughs or school districts.” Under the provisions of the act of 1881 unpaid county, school, township, and poor taxes are collected in one way in the county of Philadelphia, and in a very different way in the other counties of the state. In the county of Allegheny the collection of unpaid county taxes falls under the act of 1881 so far as the townships, boroughs and cities of the third class are concerned. In the cities of Pittsburg and Allegheny they do not. Thus two different methods are in force within the limits of the same county for dealing with county, school, poor and municipal taxes.

This is so clearly in the face of the constitutional provisions referred to, and so destructive to that uniformity of procedure upon subjects of general iuterest which it is the object of the constitution to bring about and to preserve, that a simple statement of the necessary consequences of the enforcement of the act of 1881 renders an argument upon the constitutional question unnecessary.

But we concur with the learned trial judge upon the second question, viz : the sufficiency of the description of the lot sold in the collector’s return. The description is as follows :

Owner, McGurk; street, Washington; ward, 2; Val. 62.; Co. tax .37; other taxes were carried out.

The act of 1881 requires that the return shall contain a statement “ of each kind of tax so returned, the names of the parties assessed with the same, the year when such taxes were assessed, a sufficient description by boundaries or otherwise of each separate lot or tract and about the quantity of the same and the township or borough in which it is located, that the person making such return has a warrant for the collection of such taxes, and the date thereof, and that after a proper effort at the proper time he could not find sufficient personal property, by the legal sale of which, such taxes or any portion thereof could have been collected.” The return does not state the year when the taxes were assessed nor does it give any description of the lot which it is sought to charge with their payment. It is said in reply to this position that unseated land is sufficiently described by giving the number of the part and the name of the warrantee, and may be sold without other effort to describe the land. But the number and name of the person to whom the warrant issues are matter of record, and as there can be no actual occupancy of unseated land the records afford the only means for investigating the ownership. But a sale of unseated land made in the name of a warrantee who was not such in fact, and whose name was in no way connected with the recorded title, would not ordinarily pass the title. So in this ease. The name of McGurk afforded no help in locating the lot to be sold for he was in no way connected with the recorded title. He was not in possession, and as we understand the evidence he had at no time been in the actual, visible occupancy of the lot. Any lot on Washington street, in the Second ward, might be intended, so far as anything in the description would enable an intending purchaser to judge, or a lot owner to ascertain. If therefore the act of 1881 had been unobjectionable the collector did not follow its provisions, and his return was insufficient to authorize the sale of the lot for unpaid taxes. The assignments of error are overruled and judgment appealed from is now affirmed.