Allen v. Drew

| Vt. | Jan 15, 1872

The opinion of the court was delivered by

Redefield, J.

This action was replevin for a bale of robes, taken by the defendant, as constable and collector, upon a warrant and rate-bill for “ water-rents,” in the city of Burlington.

The defendant, in his avowry, avers in justification of the taking of the property, that plaintiff was the owner of several houses and vacant house-lots in said city; that the city, having been fully authorized by its charter so to do, had extended water-pipes along the streets upon which the plaintiff’s lots abutted ; that the city, by ordinance, under the act of the legislature, approved November 12th, 1868, prescribed and established “ rates of annual rents, to lie charged to, and paid by, the owners of lots and buildings adjoining any street or avenue in said city in which the aqueduct of its water-works was then, or thereafter might be, laid, and from which such lots and buildings could be supplied with water, to wit: buildings one story, twelve cents per front foot; for buildings of two stories, sixteen cents per front foot; for vacant land, eight cents per front foot.” That under such act of the legislature and city ordinance, the plaintiff was assessed $80.72 ; that after due notice, and refusal to pay, the tax was duly committed to the defendant for collection, under a warrant therefor, signed by the city treasurer. The plaintiff refused to pay the assessment, and the defendant seized the bale of robes in satisfaction of the same, upon said warrant. And while the defendant was proceeding with the sale, the property was taken from his possession by virtue of this writ of replevin.

I. The plaintiff claims that the warrant is invalid, in that it was signed by the treasurer, and issued under the amended charter, approved November 19th, 1868 : while the act authorizing the assessment, approved November 12, 1868, provides that “ the same proceedings shall be had thereon by said treasurer, and the constable of said city, in respect to the collection of said water-rents, as is, by the amended charter of said city, provided for the payment and collection of city taxes.” This amended charter, under which the proceedings were had, was not approved until the 19th of November, seven days afterwards. So that, strictly speaking, this “ amended charter ” did not exist as a law at the time the act providing for these assessments took effect.

It is not claimed by the plaintiff that there .is any other “ amended charter” providing for the “assessment, payment, and collection of taxes.”

The two acts were pending before the legislature at the same time, and there is no violence in the presumption that the act last approved may have been first introduced and first have passed one branch of the legislature. Besides, there is evidence on the face of the acts, that one refers to the other. And, we think, from the language of the act, and by ' just intendment, the legislature intended that the water-rents should be paid and the collection enforced by the “ treasurer and constable” in the same manner as “ other 'city taxes'.” And that the “amended charter” referred to was the “ act ” in amendment of the charter then pending before the legislature.

The warrant and the assessment we deem in accordance with the act of the legislature.

II. It is insisted that if these laws shall-be construed to authorize the proceedings set out in the avowry, they are unconstitutional and void. It is conceded that local and unequal assessment in the ratio of benefit received may be upheld as warranted under the taxing power of the State. But it is claimed that the rule adopted by the council of like assessment upon like buildings, but in the ratio of frontage upon the streets containing the water-pipes, without any reference to the use or benefits from the use, is so unreasonable that it should be adjudged by the courts void.

General taxation implies a distribution of the burden upon some general rule of equality. So a local assessment, or tax’for a local benefit, should be distributed among and imposed upon all equally, standing in like relation. But equality can never be but an approximation.

The legislature authorized “ the city council of Burlington to ■> establish rates of annual rents for the supply of water, by means of the city water-works, and apportion to the different classes of buildings, &e., * * * * and to vacant lots as near as may be practicable.”

In order to meet the annual interest accruing on the bonds issued for the construction of the water-works, the city council “ apportioned” this burden, by assessing vacant land eight cents per front foot abutting on the water-pipes, and a higher assessment upon lots having buildings thereon, according to the chai actor and uses of the buildings.

The demurrer admits the facts averred in the avowry. And the assessment having been made for a beneficial purpose, every fair and reasonable intendment should be made in favor of upholding it.

That a municipal corporation may be authorized to make a local ard special tax, or assessment, for the building of sewers, siclo-wallcs, drains, and aqueducts, and apportion tlie expense in the ratio of the benefits received, is admitted, and is well settled by authority. People, ex rel. Griffin v. Mayor, &c., of Brooklyn, 4 Com., 419 ; Nichols v. Bridgeport, 28 Conn., 189. Ang on High., p. 157, and cases there cited.

And it is not easy to see any distinction between an assessment for building a sewer or side-walk, and an aqueduct. They are each, in degree, a general benefit to the public, and a special benefit to the local property, both in the uses and the enhanced value of the property. The proprietor may, indeed, leave his houses tenantless, and his vacant lots unvisited, but the assessment is not, for that reason, void. Such assessments are justified on the ground that the subject of the tax receives an equivalent. But if the court should hold the assessment void, because they adjudged the equivalent unequal, then no tax could stand, and government would' cease. Labor and the small estates bear the great burden of taxation, while wealth eludes it, and the wit of men has not yet made any near approach to the equal distribution upon property of the burdens of taxation.

In the case Northern Ind. R. R. Co. v. Connelly, 10 Ohio ‘N. S., 159, Peck, J., says, “ It is quite true that the right to impose such special taxes is based upon a presumed equivalent, but it by no means follows that there must bo, in fact, such full equivalent in every instance; or that its absence will render the assessment void.” In that case the assessment was in the ratio of frontage upon the street; and although the plaintiff railroad was in no degree directly benefited, yet the assessment was held valid. It rvas subject to a general rule that applied to all in like relation and like position.

There is little profit in discussing whence the power is derived. It is enough that it exists. It is quite clear that the levying such local assessments is not taking private property “ for public use,” under the right of eminent domain; but is the exercise of the right of taxation inherent in every sovereign State. People v. Mayor, &c., of Brooklyn, supra; Williams v. Mayor, &c.., of Detroit, 2 Mich., 565; Cooley’s Com. L., 497-8.

The power of taxation implies apportionment; and when the legislature have exercised the right, and made the apportionment, a court should not assume to declare it void unless the invasion of private right was flagrant, and its demonstration clear.

It is said in argument, that there are shops in the city with fifty feet frontage, which derive from the aqueduct the same measure of benefit as other shops with two hundred feet frontage, and occupying no greater area; but no such fact is in the ease, and we could take no judicial knowledge of such fact if it existed.' Wo can only look at the possible and probable evils that might occur under such system of local assessment. Nor are we called upon to determine what manner of apportionment is in our judgment most equable and just. It is obviously not unjust that property abutting on the aqueduct, and enhanced in value by it, should bear a portion of the expense, though its owners elect to have no beuefit from its use. And we thiuk the apportionment of the burden in the ratio of frontage is not in violation of the constitution.

We have no doubt that a local assessment may so transcend the limits of equality and reason, that its exaction would cease to lie a tax, or contribution to a common burden', and'becomo extortion and confiscation. In that case, it would be the duty of the court to protect the citizen from robbery under color of a better name.

The result is that the judgment of the county couit is reversed, and judgment that the avowry is sufficient. That the plaintiff return the property replevied to the defendant, and that the defendant recover one cent damage and his costs.