Harrisburg v. McPherran , 1900 Pa. Super. LEXIS 68 ( 1900 )

Opinion by

Rice, P. J.,

This appeal raises but a single question, namely, the constitutionality of the clause of the Act of May 23,1889, P. L. 277 (paragraph 10 of section 3 of article 5, p. 288), which authorizes cities of the third class to provide for the payment of the cost and expense of paving city streets, “ by the owners of real estate bounding and abutting thereon, by an equal assessment on said property in proportion to the number of feet the same fronts on the street.” The case is not complicated by any question as to the character of the property, as, for example, that it is not urban, but rural; nor by any question as to its liability to special assessment, as, for example, that it does not abut on the improvement, or that this was a repaving; nor by any question as to the regularity of the proceedings. The defendant’s contention, broadly stated, is that the legislature has not power to direct or to authorize the assessment of the entire cost of any local improvement whatever upon the abutting properties and to apportion the same according to the “ front-foot ” rule, unless the fact that the special benefits to the properties are equal to the cost of the improvement be first judicially ascertained by some competent tribunal, after due notice to the property owners, and an opportunity to be heard upon that question. He contends that, as neither the act, nor the ordinance, provided for such a hearing, both are in conflict with the provisions of our state constitution, and of the fourteenth amendment of the United States constitution, forbidding deprivation of property, without due process of law, and the taking of private property for public use without compensation. This, it seems to us, is claiming more for the decision of the United States Supreme Court in Norwood v. Baker, 172 U. S. 269, 43 L. ed. 443, than was actually decided. It is undisputed that the legislature may, in the exercise of the power of taxation, authorize municipal corporations to assess the cost of such improvement upon abutting properties, but their power is not without limitations. It has been held repeatedly by our Supreme Court that such assessments are sustainable only on the basis of special benefit, and the limit of the benefit is the limit of the taxing power. When this limit is exceeded, the assessment is not taxation, but confiscation, and, in many instances, such assessments have been declared invalid because this principle was violated. At the same time the court has uniformly held that the system is not, per se, a violation of any constitutional provision, as, for example, when it is applied to the laying of a sewer, or to the original paving of a street, in the built-up portion of a city or large town. This is so, not because the legislature has unlimited power absolutely and conclusively to determine what properties are specially benefited by an improvement of that kind, but because such an improvement in such circumstances is manifestly a special benefit to the abutting properties. But when the property manifestly could not be peculiarly benefited, the courts of our state have not hesitated to declare that the assessment could not be sustained. The front-foot rule of assessment does not express a principle of taxation,- but merely a convenient method, as was said in Witman v. Reading, 169 Pa. 375, the application of which by the legislature to such conditions as we have suggested has been sustained by the courts of this state, not upon the ground that it is a matter of legislative- discretion purely, but because, as a practical adjustment of proportional benefits, it is under such circumstances a reasonably certain mode of arriving at a true result: Washington Avenue, 69 Pa. 352. “ Perhaps no fairer rule can be adopted than the proportion of the feet front, although there must be some inequalities if the lots differ in situation and depth. Appraising their market values, and fixing the proportions according to these, is a plan open to favoritism or corruption, and other objections. No system of taxation which the wit of man ever devised has been found perfectly equal: ” Sharswood, J., in Hammett v. Philadelphia, 65 Pa. 146. On the other hand, Mr. Justice Mitchell, in rendering the opinion of the court in Witman v. Reading, supra, whilst not questioning the authority of the legislature to adopt the front-foot rule in such cases as we have mentioned, said: “ In my own view the best, if not the only entirely just plan would be as was done in the earlier cases, to assess the benefit in each instance by the difference in market value of the property before and after the improvement.” In Washington Avenue, supra, Chief Justice Agnew said of the front-foot rule: “ Whatever doubt might have been originally entertained of it as a substitute, which it really is, for actual assessment by jurors or assessors-under oath, it has been so often sanctioned by decision, it would ill become us now to unsettle its foundation by disputing its principle.”

The question is, whether the adoption of this mode of assessment is, under all circumstances, a violation of the general principle governing such special assessments that the limit of the benefit is the limit of the taxing power; that is, whether it is essentially an assessment irrespective of benefits conferred? But for the recent decision of the United States Supreme Court, in Norwood v. Baker, supra, we would not be at liberty to regard this as an open question in Pennsylvania. If, however, it was decided in that case that an act of a state legislature which authorizes tbe assessment of tbe entire cost of a local improvement upon the abutting properties, and the apportionment of the charge by the front-foot rule is a violation of the provisions of the federal constitution forbidding the taking of private property for public use without compensation, and the deprivation of property without due process of law, we are bound by it, even though up to the time of the rendition of that decision the courts of our state held differently.

It will be well, therefore, to look first at the facts of that case, second at the precise question for decision, as stated by the Supreme Court itself, third at the ground upon which the decision was based.

Briefly, the facts were, that the village appropriated a part of Mrs. Baker’s land for a public highway; that in condemnation proceedings prescribed by the laws of tbe state of Ohio where the case arose, the value of the land taken, without deduction for benefits to the remainder of the tract, was ascertained and awarded to her, and that subsequently this sum, together with tbe costs and expenses of tbe condemnation proceedings, was assessed by ordinance against her remaining land abutting on the new street. This was done under a law which authorized the village to place the cost and expense attending the condemnation of land for a public street on the general tax list of the corporation, or to assess the same “ on the abutting and such adjacent and contiguous or other benefited lots and lands in the corporation, either in proportion to the benefits which may result from the improvement, or according to the value of the property assessed, or by the front-foot of the property bounding and abutting upon the improvement, “ and providing that in the case of the opening, etc., of a street,” the cost and expense “ shall be assessed only on the lots bounding and abutting on such part or parts of said street or avenue so improved, and shall include such lots and lands only to a fair average depth of lots in the neighborhood.”

The particular question presented for consideration, said Mr. Justice Hablan, “involves the validity of an ordinance of that village, assessing upon the appellee’s land abutting on each side of the new street an amount covering, not simply a sum equal to that paid for the land taken for the street, but, in addition, the costs and expenses connected with the condemnation proceedings.” This was the precise question for decision as stated by the court, and it is plain to be seen, when looked at in the light of the facts of the case, that it was not necessarily as broad a question as that presented here. That is to say, the case might have been decided in precisely the same way it was decided without invoking or establishing a principle that would control the decision of the present case. As the learned president judge of the court below well says: “ We do not know of any case, and we venture to say none can be found, deciding that when part of a tract of land is taken for public use by the right of eminent domain, it can be presumed without an actual assessment that the value of the rest of the tract from which the part is taken is increased to the extent of the value of the part taken. Yet this is precisely what was done here.” If we had nothing to guide us but the facts of that case and the judgment, we would have no hesitation in saying that the decision would not control in a case like the present.

But the court took pains, after a thorough and exhaustive consideration of the principles governing special assessments for local improvements, to state the grounds of its decision of the particular case in the following explicit language: “ The judgment of the circuit court must be affirmed, upon the ground that the assessment against the plaintiff’s abutting property was under a rule which excluded any inquiry as to special benefits, and the necessary operation of which was, to the extent of the cost of opening the street in question over any special benefits accruing to the abutting property therefrom, to take private property for public use without compensation.” On a hasty reading it might seem that the court meant that the front-foot rule whenever and wherever applied is necessarily a rule or mode of assessment which excludes from consideration special benefits to the properties assessed. We do not so interpret the decision. On the contrary, we think it is apparent from the opinion, that the thing condemned was the arbitrary assessment of the whole cost of an improvement upon abutting properties, whether such properties are specially benefited or not to the extent of the cost, and without regard to that consideration. And we may' remark in passing, that this was no more emphatically condemned than it has been by our own Supreme Court. Great prominence was given to the terms of the Ohio statute, which seemed to give to the municipal authorities an election to assess the cost of the improvement “ either in proportion to the benefits which may result from the improvement, or according to the value of the property assessed, or by the front-foot of the property bounding and abutting upon the improvement.” Justice Hablan took pains to underscore the words “either” and “or” for the obvious purpose of showing that authority was given to assess the cost of the improvement upon the abutting properties, either in the proportion of special benefits or irrespective of them. “ It thus appears,” he says, that the statute authorizes a special assessment upon the bounding and abutting property by the front-foot for the entire cost and expense of the improvement without taking special benefits into account. And that was the method pursued by the village of Norwood. The corporation manifestly proceeded upon the theory that the abutting property could be made to bear the whole cost of the improvement, whether such property was benefited or not to the extent of such cost.” In proceeding upon that theory they have the warrant, apparently, of the statute. The same thought is expressed in another part of the opinion : thus : “ As the pleadings show, the village proceeded upon the theory, justified by the words of the statute, that the entire cost incurred in opening the street, including the value of the property appropriated, could, when the assessment was by the front-foot, be put upon the abutting property, irrespective of special benefit.” But our statute gives the municipal authorities no discretionary power to choose between an assessment in proportion to special benefits and an assessment irrespective of benefits. As interpreted by our decisions, it authorizes an assessment according to the front-foot rule only where the special benefits to the properties assessed equal the amount of the assessment, and when from the nature of the case it is a reasonably certain mode of arriving at the true result in the apportionment. There is no authority given to apply that rule irrespective of the benefits. If it appeared here, as it did in the Norwood case, that the municipal authorities proceeded on the theory that they had arbitrary power to assess the cost of the paving upon the abutting properties, whether they were benefited or not to the extent of the cost, we would have no hesitation in saying that the presumption in favor of the validity of the ordinance would be destroyed. But as we have shown, our statute, as interpreted by our decisions, gives no such authority, and there is not an intimation in the evidence nor any presumption that the municipal authorities did in fact proceed on that theory, nor is there any evidence that the pavement as ordained was not a special benefit to the abutting properties to the extent of the cost, or that there were special circumstances which made the front-foot rule an unfair mode of apportioning the cost. There was, it is true, an allegation that the contract of the paving company had not been fully complied with, but that question was submitted to the jury and decided against the defendant. We must, therefore, assume that the pavement as ordained was laid.

It so happens in the present case that the defendant was one of the petitioners for the improvement. He must be presumed to have known that if a majority petitioned, the statute gave the councils authority, if the circumstances warranted it, to assess the cost on the abutting properties. But so far as appears in this record, neither he nor any of the property owners raised any objection to the proceedings until after the improvement had been made and they were called upon to pay their assessments. It is not necessary to hold that they are estopped in order to sustain this judgment. Nor do we put our decision upon that ground. We refer to these facts simply for the purpose of showing that under our law the property owners have ample notice of the proceedings, and that they were not conducted in the present instance in an arbitrary or underhanded manner.

After a careful study of the case of Norwood v. Baker, and of the cases cited by Mr. Justice Hablan in support of the judgment (many of which distinctly recognize the power of the’ legislature to adopt this mode of assessment under special circumstances, as,’ for example, when it is applied to the original paving of a street of uniform width in the built up portions of a city or large town), we are not convinced that it establishes a general rule which controls in the present case. See further, Sears v. Boston, 173 Mass. 71, 350; Gleason v. Waukesha, 103 Wis. 225; Hayes v. St. Louis, not officially reported. In arriving at this conclusion, we have not overlooked the cases cited by the appellant’s counsel in which a different opinion has been expressed as to the principles decided in that case. These are Hutcheson v. Storrie (Texas), 45 L. R. A. 289; Loeb v. Co. lumbia Township, 91 Fed. Repr. 37 ; Lyon v. Town of Tonawanda, U. S. Circuit Court, N. D. of New York, not officially reported; Cowley v. Spokane, 99 Fed. Repr. 840; Norfolk v. Young, Va. 47 L. R. A. 574.

We might well have rested our decision on the able opinion of the learned president of the court below in Harrisburg v. Miller, ante, p. 476, in which Norwood v. Baker, is thoroughly reviewed. But the importance of the question, involving, as it does, legislation, the validity of which has been recognized by our Supreme Court in a multitude of cases, seemed to justify further discussion, even though it involved repetition of much that is contained in his opinion. For the reasons there given in connection with the suggestions we have added the judgment is affirmed.