Kelly v. City of Pittsburgh , 1878 Pa. LEXIS 238 ( 1877 )

Mr. Justice Gordon

delivered the opinion of the court, January 7th 1878.

The lands of James Kelly, the appellant, upon which the taxes complained of were assessed, were formerly within the township of Collins, and were afterwards, under the provisions of the Act of April 6th 1867 (Pamph. L. 846), made part of the city of Pittsburgh. That there may be no doubt concerning the subject-matter of the plaintiff’s complaint, and that we may exhibit’ precisely the nature and character of his contention, we give the 6th paragraph of his bill in extenso.

“ It is competent for the legislature, with or without the consent of the citizens, to enlarge the limits of any town or city, and it is competent for the defendant (city), when the requirements of'population, commercial and mechanical interests, sanitary or protective municipal purposes require it, to apply to city uses, the full extent of her territorial limits, but your orator expressly denies that such necessity or even propriety exists; on the contrary, large amounts of city territory, on either side and in front of your orator’s farm, are occupied, held and owned, without prospects of demand for city purposes for many years to come. Your orator insists that by extension of city territorial limits, the character, situation and use of his said lands were not changed, but remain an improved and occupied farm as before, and agricultural lands only, having received no benefit whatever in the way of municipal improvements, aid, protection, convenience or care; and that, therefore, they 'are not in any sense liable to municipal or city taxation for any purpose whatever, for no single benefit has been received.” Again, paragraph 18, latter part: “ But your orator expressly denies that the defendant had any municipal jurisdiction over his said land, or farm, or any right to impose taxes thereon, for city or municipal purposes whatever.”

We are thus presented with the broad question of the right of the city to tax rural lands within its bounds for any municipal purpose whatever. It is not admitted that the city succeeded to the rights of the township in this respect, for this would be a surrender of the whole controversy, since it is not doubtful that the township had the power to tax these lands for every lawful municipal purpose whatever.

The power of the legislature to transfer the plaintiff’s farm from the one municipality to the other is admitted; indeed that power could not, in the face of Smith v. McCarthy, 6 P. F. Smith 359, be gainsaid. But it is urged, nevertheless, that the city’s power of taxation must be suspended until this land becomes necessary for city uses. Exactly what this means we are not informed, nor do we suppose it can be certainly known except from some judicial decree not yet rendered. No doubt the meaning of the plaintiff is, that this power of the city is to be suspended or to rest in abeyance until the city is so nearly built up to his lands that they may be advantageously laid out and sold as city lots, and until this occurs they are to be exempt from all taxes of a municipa cnaracter. This proposition is novel in Pennsylvania, since we have uniformly, and heretofore without serious complaint, in boroughs as well as cities, taxed rural and even unseated lands for borough and city purposes. This doctrine is, however, supported by certain cases, cited by the learned counsel for the appellant, decided in the superior courts of Iowa and Kentucky. The bill seems closely to have followed these cases, and it is principally upon their authority that the plaintiff's case is rested. These decisions, whilst entitled to great respect, are not to be allowed to unsettle our own rules on the subject of taxation or change the current of our policy on that subject. They are, indeed, of doubtful authority; for Judge Cooley, in his work on taxation, when speaking of these very cases, remarks : that it is difficult to harmonize them with the conceded principles governing the laws of taxation ; for they, not questioning the legislation as being in excess of authority, leave it to stand, and only interfere to qualify its effect on the ground that it has been adopted on improper grounds and will operate unequally. This is done on an inquiry into the facts and a substitution of the judicial for the legislative conclusion on a subject not at all judicial; a subject too — the proper limits of city extension — upon which persons are certain to differ widely, and where inquiry, after the judicial method by examination of witnesses, is usually much less satisfactory than that personal knowledge and investigation which legislators are supposed to possess or make. It has, indeed, the effect to suspend the legislation until certain conditions influencing the judicial mind are fulfilled. We need not stop to consider the inconvenience or uncertainty of such a condition of things, or how little consonant it would be with our settled modes of thought and action on subjects of this kind. There is, however, an element in the case in hand, which either did not exist in the cases alluded to or was not sufficiently considered; that is, the subjugation of the lands to previous municipal taxes. The argument in favor of their exemption, would have more strength had they previously to their attachment to the city, been subject only to state and county rates and levies; had they not been within the dominion of any municipality equivalent to that now complained of. But the plaintiff’s property was subject to municipal taxes when it was yet in the township of Collins, hence, it is not subjected to any new or even greater powers than formerly; it has been but transferred from township to city. This element breaks the force of the plaintiff’s argument, as it leaves him nothing of which to complain; for his complaint is not that his municipal burthens are greater in the city than they were in the township, but that as his lands are now situated the city has no power to tax them in any manner whatever. This is the bald proposition submitted for our discussion ; a proposition requiring little consideration for its disposition, since there is here no room for the intervention of judicial interference, or for the exercise of judicial discretion. The legislature certainly did not exceed its powers in the act consolidating the two municipalities, and as both had the power of taxation over their several territories, that power must remain with the present corporation, and the plaintiff’s lands must continue liable for those rates and levies to which it was subject under the township government, otherwise they are exempt from those impositions for the maintenance of the public schools, the support of the poor and construction and repair of the highways, from which no one’s property ought to be exempt.

On the broad ground, therefore, on which the plaintiff has put his plaint, it cannot be maintained and must be dismissed. Considering it, however, from the less general and most favorable point of view and it but comes to this: that the taxation is unequal and burthensome, and that the complainant is taxed for some things, as police and water, from which, however necessary for the welfare of the municipality, he derives no benefit. Granted, that the tax is both, unjust and unequal, it does not follow that the remedy is within the power of the courts ; on the other hand, the contrary has been expressly ruled. In the case of Weber v. Reinhard, 28 P. F. Smith 370, Mr. Justice Sharswood says, in commenting on the case of the Philadelphia Association v. Wood, 3 Wright 73, “ the idea that the court could pronounce a tax unconstitutional on the mere ground of injustice or inequality, was expressly repudiated.” He'further remarks; “There is no provision in the constitution that taxation shall be equal. Sound policy requires that it should be so as far as possible, but perfect equality is not possible.”

So in Kirby v. Shaw, 7 Harris 258, Gibson, C. J., says, “As regards taxation, there is no limitation of it. Equality of contribution is not enjoined in the Bill of Rights, and, probably, because R was known to be impracticable.” That the person taxed derives no immediate personal benefit from the purposes to which the taxes are appropriated, is, in like manner, no argument against the constitutionality of the law imposing them. Eor if direct personal benefit were to form a criterion for taxation we should have half the community clamoring at our doors for relief. What interest, direct and personal, has the unseated landowner in the schools or poor of the borough or township in which his lands lie ? Or, for that matter, what interest has any one, not having children to educate, in the schools of either township, borough or city ? Why shall one pay road tax when roads are of no benefit to himself or his property ? Why shall he help pay the expenses of a fire department when his property is so situated that it may burn down before an engine can reach it ? Or, why, either in the country or city, having a supply of water on his own premises, shall he pay a water tax ? To these questions there is but one answer; these things are intended for the public good, and hence, every one is indirectly if not directly,‘benefited thereby; the taxes, levied for their maintenance, are a public burthen and therefore every one must contribute to its support. If, however, this burthen rests unfairly heavy upon some classes or upon some individuals the remedy is not with the courts but with the legislature. As is said in Kirby v. Shaw, the judiciary could interfere, only, “ by overstepping the limits of its sphere; by arrogating to itself a power beyond its province ; by producing intestine discord, and by setting an example which other organs of the government might not be slow to follow.” But the legislature has granted all the relief that the plaintifl' and his class ought, in reason, to expect or ask, for at the time of filing of this bill, rural lands were authorized to be taxed at but two-thirds of the ordinary municipal rates, and now, by the Act of May 5th 1875, Pamph. L. 124, at but one-half those rates. Thus the injustice and inequality of the taxation complained of, has been, if not wholly obviated, at least, very much mitigated.

Again, taxation is peculiarly a legislative function, and, before wTe undertake to revise it, we should have a clear warrant therefor in the letter of the constitution. “ A tax law must be considered valid, unless it be for a purpose in which the community taxed has no palpable interest — when it is apparent that the burthen is imposed for the benefit of others, and when it would be so pronounced at first blush Sharpless v. The Mayor of Philadelphia, 9 Harris 147 (Black, C. J.); Speer v. Blairsville, 14 Wright 150 (Agnew, J.) But in the present case there is no doubt that the community, called the city of Pittsburgh, of which the plaintiff is a member, has a direct and vital interest in the taxation complained of, and such being the case, there is an end of our power to grant relief.

It will not do for us to stop to consider the peculiar interests of the individual as segregated from the community, for if we should so do, few tax laws could be enforced, since it often if not generally happens that such laws bear hardly upon some individuals, and not unfrequently individual interest is opposed to that of the public. We must have regard to the public welfare. If it bo not shown to us that the legislation is for the promotion of'the good of some other party or community than the one taxed, we have no right to pronounce it unconstitutional. The individual must be regarded as interested in the public welfare, hence his interest must be looked for in that of the community of which he forms part. Now, it may be true that the plaintiff is not personally benefited by either the educational or poor department of the city; but neither is any one not having children to educate, and not being himself a pauper. Yet, for such reason wo are hardly prepared to stay the hand of the collector of school and poor rates. Ho may not be personally benefited by the fire or police department; but the general municipality is largely benefited thereby, and his welfare is found in the prosperity of that municipality. As was well said by the learned master to whom this case was referred, the value of the plaintiff’s property has, heretofore, depended upon- the growth and prosperity of the city; but these, in turn, depend upon the character of the city streets and police department, and upon its water, gas, and educational facilities. Without these it would fall into decay, and the value of real estate within the boundaries of the municipality, including that of the complainant, would be incalculably reduced. It is thus apparent that the plaintiff has not only a general, but a direct interest in the objects which the taxation complained of is intended to promote.

Decree affirmed.