Enos v. City of Springfield

Mr. Justice Walker,

dissenting:

There is perhaps no more indefinite term in the English language than the words “local improvements. ” I can imagine no improvement, public or private, that is not in some sense local. It is made, in a particular locality, and is therefore local. But the term can not have been used in that sense in the nintti.' section of article 9 of the constitution. It would be unreasonable to hold it was used in this broad and unrestricted sense, and would be liable to great if not ruinous abuse. Had the constitution simply created the legislature, and vested it, as was done by the fourth article, with legislative power, it could. have levied or. authorized the levy of taxes to any extent, for any purpose, and in any manner it might choose. The whole of that article is a limitation on the exercise of the taxing power. It is in all liberal and constitutional governments a legislative function, and our constitution limits or 'restrains the manner of its exercise. That instrument limits the power to the value of the property taxed, and not only so, but imperatively demands that it shall be imposed by a uniform rate, upon an ascertained value. It also provides for uniformity of burthen when taxes are imposed on business, professions, occupations, franchises, persons and corporations. It leaves the legislature free to adopt such manner as it may choose in imposing such taxes, but requires in terms that it shall be by general law, and shall be uniform as to the class upon which it shall operate. It is also provided that “the General Assembly shall have no power to release or discharge any county, city, township, town or district whatever, or the inhabitants thereof, or the property therein, from their or its proportionate share of taxes to be levied for State purposes; nor shall commutation for such taxes be authorized in any form whatever. ” This, like the previous provisions, was intended to enforce equality and uniformity of burthen upon the tax-payers. In the same spirit and for the same purpose it is provided by the ninth and tenth sections of that article, that municipal taxes shall be uniform as to persons and property within the corporate limits.

It is thus seen that the great central and controlling idea of the constitution is, in levying taxes, that there shall be equality and uniformity in their imposition and burthen. That purpose pervades the entire article, and is too plain to be misunderstood, and I presume none will question its truth. This being true, every rule of construction requires that it should be kept in view in construing every clause or provision of that article. That principle is the touchstone by which every clause of the article must be tried, and to which the various provisions should conform.

What, then,- in the constitutional sense, is a local improvement? We have seen that it is not such an improvement because it is made at a particular place. Improvements are private or -public, and public improvements may be divided into such as affect or benefit the general public, and local, such as affect or benefit the local public or a small number of persons of the local public. An improvement that is or may be used by the entire public, or is designed to and does accommodate the whole community, is a public improvement that may be denominated as general, as contradistinguished from a local improvement, A local improvement, in the sense of the constitution, is one in which there is no intention to accommodate or benefit the general public, but to benefit a few individuals of the local public. Such an im- ■ provement is not private, but is quasi public.

The question then arises, was the improvement of these streets, by laying cedar-block pavements therein, and costly dressed stone sidewalks, a local improvement ? I think not. The streets are public highways, constructed and maintained for the use of the general public,—for all citizens, strangers or aliens, who may desire to use or travel over them. This is the primary purpose of their construction. They are open and free to all persons, and I am at a loss to imagine any improvement more general and public than common highways in counties and streets in cities. They do not have a single element of private or local use beyond all other public improvements conceded by all to be general in their character.

Again, the term “local improvements, ” being uncertain in its meaning and as to what it shall be applied, and as it pertains to the exercise of legislative power to levy or authorize to be levied a tax, it is a function of the legislature to construe its meaning, and apply the power to such improvements as it. shall declare local. In the exercise of this power the General Assembly has declared the making or repairing sidewalks on streets is a local improvement, within the meaning of that section of the constitution, but has not declared that the paving of streets or other public highways is a local improvement. The court, in such cases as this, has no power to say that such improvements are local, and that the power may be exercised, under the constitution, without legislation. The first clause of section 9, of article 9, provides that the General Assembly may vest the power in the corporations named, to make local improvements by special taxation of contiguous property. This clause does not invest such bodies with the power, but authorizes the legislature to confer the power. These bodies can not so act until so empowered, and no power has been conferred to pave streets or highways, and the attempt to exercise the power is unauthorized, and the action is void, and the city is not liable. The constitution has not authorized the courts to say what are local improvements, nor to confer the power on municipalities. It provides that the General Assembly may confer the power, not that such bodies may exercise the power. The General Assembly, in conferring the power to so make sidewalks, withheld the power to make or pave streets in that manner. To hold that the term “sidewalks” embraces streets, would be a perversion of terms and violation of every rule of interpretation. To hold that the law empowers cities, towns and villages to so make streets, is to enact another provision to embrace streets. It is not construction, but it is enactment, and an encroachment upon legislative functions.

Nor can there be the slightest pretence that the power to make local improvements by special taxation is conferred by the seventh clause of section 62 of the general law for the incorporation of cities, towns and-villages. It authorizes such municipalities “to lay out, establish, open, alter, widen, extend, grade, pave or otherwise improve streets, alleys, avenues, sidewalks, wharves, parks and public grounds, and vacate the same. ” This provision manifestly empowers these bodies to make such improvements in the usual manner, and not by resort to extraordinary means or by the employment of extraordinary powers. It simply confers the usual corporate powers, but not by the arbitrary and unjust burthen of taxing ' the few for the benefit of the many,—provisions to prevent which pervade the entire ninth article of the constitution. If streets may be paved in this manner, then all the enumerated improvements of this clause may be for the same reason and by the same construction embraced. If it confers power to do one thing in that mode, it does for all the enumerated objects. No person can, with the slightest pretence of reason, claim that all these objects may be so constructed or repaired. The only power ever conferred1 by the General Assembly, so far as I can find, to make such improvements, is by the act of April 15, 1875. (Sess. Laws, p. 63.) That act provides that sidewalks may be constructed by special taxation on contiguous property. The act provides in detail for levying and collecting the tax and making the improvement, but the paving of streets is not named or authorized in that manner. The fact that streets are not provided for, is strong evidence that the General Assembly did not intend, to confer the power to improve streets in that mode; and -when it is remembered that, under the constitution, cities, etc., can not exercise the power until it is conferred by the General Assembly, it is apparent the city was destitute of all power to adopt and enforce this ordinance, and it and all liability under it must fail.

There is another view of the case, even if the act of 1875 did authorize the ordinance, that is equally fatal to the proceeding. There are in the act several modes of levying the tax on contiguous property, for making local improvements. One is, to apportion the cost on contiguous property according to its assessed value for taxation, previously made. This would be in harmony with the central and controlling purpose of the framers of the ninth section of the ninth article. Another mode provided is, to assess the cost of the improvement, or any portion thereof, on the lot in front of which the improvement is made, or a pro rata portion thereof. And still another way is, to tax the cost on the adjoining lots according to their frontage. These last modes manifestly are opposed to the spirit, if not the' letter, of that entire article of the fundamental law. In modern times the word “taxation” has come to mean, unless otherwise restricted, a certain rate or per cent levied on the value of property ascertained for the purpose of its imposition. To hold that a tax may be levied on property without regard to value, is arbitrary, unequal, and highly unjust. If a tax may be thus imposed for paving-streets, it may, for the same reason and on the same principle, be imposed on adjacent property to build a ward school house, a city prison, a market house, a fire engine house, bridges, and other structures, no matter how costly or how ruinous to property holders. On the same reasoning the city might construct a sewer through the entire length of the city, costing hundreds of thousands of dollars, and impose the burthen on contiguous property, to its entire confiscation.

All these improvements are less general in their character than the streets of a city, and partake more of the nature of local improvements than streets.

In the case at bar, from the extent of the improvements we have a right to suppose- the lots in front of which the pavement is made are of unequal value. Doubtless, some of the same frontage and dimensions, owing to their proximity to the business portion of the city, their improvement, location, and other causes, are worth double, treble or quadruple that of others. This being true, one owner will be compelled to pay double, treble or quadruple more than another on the value of his property, for the construction of an improvement that is not local, in the constitutional sense, but is in every sense general and public. I, for these and other reasons that might be specified, am unable to concur in the opinion of the majority of the court.