Zelesnick v. Spring Township School District

12 Pa. D. & C. 345, 1929 Pa. Dist. & Cnty. Dec. LEXIS 359
CourtPennsylvania Court of Common Pleas, Centre County
DecidedJanuary 8, 1929
DocketNo. 3
StatusPublished

This text of 12 Pa. D. & C. 345 (Zelesnick v. Spring Township School District) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Centre County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zelesnick v. Spring Township School District, 12 Pa. D. & C. 345, 1929 Pa. Dist. & Cnty. Dec. LEXIS 359 (Pa. Super. Ct. 1929).

Opinion

Fleming, P. J.,

The plaintiff has filed exceptions, twenty-five in number, to the decree nisi entered in this case.

Exceptions 1 and 2 are wholly without merit, in that plaintiff complains that we did not find certain findings of fact, whereas we found in the exact words set forth in such exceptions.

Exceptions 3 to 16, inclusive, complain that we did not, in this case, reiterate verbatim certain findings of fact found by us in Beaver et al. v. these same defendants, to No. 1, September Term, 1926, in equity, and which we have incorporated, by reference, in the opinion filed in support of our decree nisi herein.

Exception 17 complains of our finding that there was no abuse of sound discretion by the defendants in selecting the land of the plaintiff for condemnation, and raises the question that such is a conclusion of law and not a finding of fact.

Exception 18 complains that the resolution adopted by the defendants on Sept. 8, 1926, set forth that the land of the. plaintiff was intended for a proposed “new school site,” which, plaintiff contends further in said exception, was, under all the evidence, the site intended to be used by the defendants in the erection of a school building from a proposed loan, which has been declared invalid in Beaver et al. v. these same defendants, and mentioned above.

Exception 19 complains of our failure to find that defendants, between Aug. 2, 1926, and Sept. 8, 1926, removed valuable timber from plaintiff’s land sought to be condemned, and also that defendants partially destroyed plaintiff’s crop.

Exception 20 complains of our failure to find as a fact that, by agreement of counsel of record, this case and that of Beaver et al. v. these same defend[346]*346ants, mentioned above, were tried by agreement together with the understanding that the evidence, so far as admissibility, was to apply in both cases.

Exception 21 complains that we have entirely ignored the 2nd, 3rd, 4th and 5th paragraphs of the prayer of the plaintiff’s bill.

Exception 22 raises the question as to the retroactive effect of the Act of May 11, 1927, P. L. 965, and assigns eight alleged reasons why such act cannot be retroactively applied in the present case.

Exception 23 complains that the decree as framed vests title in fee simple in the defendant school district.

Exceptions 24 and 25 complain of the imposition of the costs upon the plaintiff.

Let it be kept clearly in mind, in our consideration of these exceptions, that no requests for findings of fact or for conclusions of law were made by either of the parties to this case.

We shall first consider exception 22, for if such is to be sustained, consideration of the further exceptions will be to no purpose. Let us note the reasons given in support of this exception, as follows, to wit:

“Because the said court held as a matter of law that the Act of Assembly of May 11, 1927, P. L. 965, validated the resolution of the defendant school board, passed the 2nd day of August, 1926, for the following reasons:
“(a) Because said resolution did not divest the title of the plaintiff to the land described therein under the right of eminent domain.
“(b) Because, while retroactive acts of the legislature are permissible under certain facts, the act above referred to contains no language which would be sufficient to divest the title of plaintiff’s land and place it in the defendant school district.
“(c) Because the legislature cannot by an arbitrary edict take the property of the plaintiff and give it to the defendant, because the legislature is powerless to infuse life into a resolution such as adopted by defendants on Aug. 2, 1926, which was absolutely null and void.
“(d) Because the action in this case was brought on the 1st day of September, 1926, and said act of assembly was not passed until the 11th day of May, 1927, and could not in any manner affect the pending proceeding.
“(e) Because said curative Act of 1927, as applied to the defendants’ resolution, is a violation of the Constitution of Pennsylvania in attempting to take from the plaintiff her property without due process of law.
“(f) Because said act of assembly could not in any manner apply to the pending proceeding.
“(g) Because the resolution of the defendant school board, passed the 8th day of September, 1926, has no reference of any kind whatever to the instant case and does not show that it was passed as a substitute for the resolution of Aug. 2, 1926, and, so far as the present proceeding is concerned, it is null and void.
“(h) Because the resolution of the defendant school board, passed Sept. 8, 1926, sets forth that the plaintiff’s land is necessary for the proposed new school site in the School District of Spring Township. The evidence in the case shows that the new school-house, then contracted for and in connection with which the plaintiff’s land was to be used, was never built, and that the loan contemplated by the defendant school district to raise funds for said purpose was invalid.”

The defendant school district, on Aug. 2, 1926, passed a resolution, the content and purport of which was the exercise of the right of eminent domain [347]*347vested in such school district by section 605 of the School Code. That such resolution was “passed” in the common and accepted sense of the word, that is to say, by a majority of the members voting, has not been denied. Nor has it been denied that all the members of the board were actually present and voting. Indeed, the minutes of the defendant school district plainly disclose this to be the fact. We are fully, therefore, entitled to conclude that three of the five members, at least, voted in the affirmative, and that the resolution was passed by a majority of all of the members of the board, as is required by sections 605, 608 and 609 of the School Code. No evidence has been adduced to controvert this fact. That the secretary of the defendant school district failed to record the vote, as stipulated in section 403 of the School Code, is not denied.

On May 11, 1927 (P. L. 965), an act of assembly was approved by the Governor of the Commonwealth, the title to which is as follows:

“An act validating actions of boards of school directors in certain cases where there was a failure to record the vote of members of the board.” The sole section of the act is as follows:
“Section 1.

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Bluebook (online)
12 Pa. D. & C. 345, 1929 Pa. Dist. & Cnty. Dec. LEXIS 359, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zelesnick-v-spring-township-school-district-pactcomplcentre-1929.