City of Williamsport v. Beck

128 Pa. 147 | Pennsylvania Court of Common Pleas, Lycoming County | 1889

Opinion,

Mb. Justice Steebett :

The main question in this case is, whether the cost of repaving a public street or thoroughfare can be legally charged against the property fronting thereon.

This is neither a new nor an open question. It has long since been definitely settled that, as a general rule, it cannot be done. In several cases, among which is McMasters v. Commonwealth, 3 W. 292, the constitutional authority of the legislature to confer upon municipal corporations the power of assessing the cost of local improvements upon the properties specially benefited thereby, was recognized as a species of taxation; but, in Hammett v. Philadelphia, 65 Pa. 146, 156, the question arose whether under the authority of those cases, the cost of re-paving a public street could be charged against the abutting property. After considering the principle underlying the exceptional species of taxation referred to, and cases in which it is applicable, including the original paving of streets, Mr. Justice Shabswood, speaking for this court, said: “ But when a street is once opened and paved, and thus assimilated with the rest of the city and made part of it, all the particular benefits to the locality, derived from the improvements, have been received and enjoyed. Re-paving streets is as much part of the ordinary duties of the municipality, for the general good, as cleaning, watching, and lighting. It would lead to monstrous injustice and inequality should such general expenses be provided for by local assessments.”

The limitation, thus declared to exist, upon the power of taxation for special benefits of a local character, rests upon a clearly defined and impregnable basis; but notwithstanding this, municipal authorities, charged with the duty of maintaining their streets and highways in proper condition, had become so wedded to the pernicious system of maintaining such improvements at the expense of abutting property owners, that they were loth to abandon it, and various schemes were devised to obviate the difficulty that resulted from the decision in Hammett v. Philadelphia, supra, but without much success.

Speaking of the act of 1871, under consideration in Protestant Orphan Asylum’s App., 111 Pa. 135, 142, Mr. Justice Gordon said it “was evidently devised for the purpose of avoiding the constitutional prohibition against unequal taxation, and, as far as possible, to render ineffectual the blow struck at this kind of taxation in the case of Hammett v. Philadelphia.”

By that act a board of viewers was authorized to arbitrarily carve out, from the general municipality, a district that should in whole or in part, as it might determine, bear the burden of re-paving or re-grading a public street. In declaring the act unconstitutional, it was further said: “We can readily understand why the cost of constructing and maintaining a sewer, which is designed for the drainage of a particular street or locality, and which is essentially necessary for the health, comfort, and convenience of the inhabitants of such street or locality, should be assessed upon the property of the district or locality thus benefited, for the improvement as well as the use is local, and the benefit to the public is but secondary. So with a sidewalk, without which a house in a town or city cannot be said to be finished, and, though the public has a right of way over it, the greater benefit results to the property itself. But, when we come to a street or other highway, which is primarily designed, not for the use or welfare of the inhabitants-of any particular locality, but for the public at large, the case is very different. It then becomes utterly unjust to charge the cost of what is purely a public improvement, designed exclusively for the general welfare, upon the property of a few individuals, who, however they may be incidentally benefited, have neither been consulted, nor their profit or convenience regarded. Under such circumstances we cannot agree to proceed a single step beyond what is warranted by the case of Hammett v. Philadelphia. There is some show of reason why the original cost of grading and paving a street in a populous municipality should be charged upon the adjacent property, for it receives from the improvement some benefit of a local character ; but when this is done, it has fully paid for all its local advantages and it cannot thereafter be charged for maintenance and repairs.”

The second, third, fourth, fifth, and eighth points submitted by defendant were rightly affirmed by the court, and were conclusive against the right of the plaintiff to recover. Neither of the assignments of error is sustained.

Judgment affirmed.