13 R.I. 50 | R.I. | 1880
I. This kind of assessment, if in exercise of the power to tax under our Constitution, must be levied with equality, fairness, uniformity, and proportion. The assessment must be imposed upon estates "in proportion to a special benefit or advantage which it may be found that each may receive from the construction of a work of public utility or necessity," in the language of the court in Merrick et al. v. Inhabitants ofAmherst et al. 12 Allen, 500, 507; People v. Mayor ofBrooklyn et al.
Thus the right, formerly in New York considered an exercise of power of eminent domain, the judges in the case cited from 4 N.Y. are forced to shelter in the taxing power. In New York it is always exercised subject to revision by some power or tribunal, and even then is so offensive as to call for severe judicial criticism. In the Matter of Van Antwerp,
II. This species of assessment is more like an application of the principle of eminent domain, though it is its converse. It is the exaction of compensation for a benefit furnished, instead of payment for an injury inflicted.
In fact, this species of assessment is in this State imposed under our Constitution for the protection, safety, and happiness of the people, as a burden, and as such is to be fairly distributed. Constitution R.I. art. I. sec. 2; In the Matter ofDorrance Street,
The city therefore is empowered to construct sewers for highway drainage, and for the benefit which the estate of each citizen receives above the common benefit, he shall pay proportionally. Here, then, is every requisite of a contract: two parties and a consideration of benefit received, the one party conferring the benefit, the other under obligation to pay therefor.
This analysis shows that some tribunal, some judicial authority, must determine by a judicial judgment that a benefit is received, and if such authority so determine and fix the amount of the same, then the corporation conferring it may exact payment therefor to the amount of the benefit. *54
III. This burden must then be assessed:
(a) On lands benefited by the construction of the sewers. See English cases cited under Point V.; Boston v. Shaw, 1 Met. 130.
To compel an estate to contribute for a sewer when the estate cannot use and receives no benefit from the sewer would be palpably unjust.
While the legislature may fix a district to be assessed for a sewer, it cannot decide what lands are benefited, but merely that if benefited, an estate shall pay proportionally and in common with other estates benefited.
(b) The assessment in gross for benefits derived from a sewer must not exceed the cost of the same, otherwise an estate where the cost of a sewer is small pays a portion of the cost of some sewer where the cost is large, or contributes to a fund for general city expenses, which would be to derive revenue from the construction of sewers.
(c) And it must be levied upon the estates benefited in proportion to the benefits received. Wright v. Boston, 9 Cush. 233, 241; Tide Water Co. v. Coster,
These acts of the legislature and ordinances do not purport to levy the assessments upon lands that may be benefited, or in proportion to such benefits, nor do they consider the cost of the improvement. They assume that there is no difference in the benefits conferred upon the respective estates bordering upon streets through which the sewers pass, except as the estates vary in frontage and area. Nichols v. Bridgeport,
Benefit received is not the standard, but a geometrical figure is, and the superficial contents of that figure are the elements to determine the amount of the assessment. Boston v.Shaw, 1 Met. *55
130; Downer v. Boston, 7 Cush. 277; Clapp v. Hartford,
IV. In other words, in prescribing the method of assessments of these several acts in question, the legislature, aiming to authorize the imposition of a burden and apportion the same, infact exercises a judicial power, which authority is vested in another branch of the government. State v. Newark, 25 N.J. Law, 399, 426; Chicago v. Larned,
V. This method of assessment provides no means of revision whereby the owner of an estate, if assessed for wrong frontage, wrongly computed area, or assumed benefits by him denied, may have his assessment reduced to conform to the facts.
It is true that the first sewer act, Pub. Laws R.I. cap. 807, passed at the January session, 1869, contemplated a right of appeal to a designated tribunal, but this privilege was, by cap. 313 of March 28, 1873, known as an act establishing a Board of Public Works, taken away.
In this State we have always enjoyed this right, even ingeneral taxation. See Gen. Stat. R.I. cap. 40; Cooley on Taxation, cap. 2.
This right of appeal in this form of assessment was incorporated in the early sewer acts in the mother country, and we received it, and it has been acted on in our State, as a portion of our law.
An appeal was always part of the English system of sewer tax. 23 Henry VIII. cap. 5; R.I. Col. Rec. vol. v. p. 289; Sisson v.Seabury, 1 Sumn. 235, 262; 1 Kent Comment. 12th ed. 473, note;Soady v. Wilson, 3 Ad. E. 248; Rex v. Commissioners ofSewers for the Tower Hamlets, 9 B. C. 517; Right of direct appeal given by Stat. 50 Geo. III. cap. 144, quoted in Board ofWorks v. Vauxhall Bridge, 7 El. B. 964, 970.
This scheme of assessment, by which the legislature assumes arbitrarily that the benefits to the estates abutting on the line of the sewer are in proportion to frontage and area, and provides for no redress of errors, is an infraction of the Constitution of this State, and of the 14th Amendment to the Constitution of the United States, because it takes property of the complainants by *56
legislative decree, passing beyond the legislative power into the exclusive domain of the judiciary. Wynehamer v. ThePeople,
VI. Estates in streets where the sewers were ordered and constructed, while the law provided for an assessment for benefits, and before the Public Works Act was passed, cannot be assessed under the hard and fast rule of the Public Works Act. 1 Dillon Municip. Corporat. § 46; City of Bridgeport v. TheHousatonic R.R. Co.
Nicholas Van Slyck Stephen A. Cooke, Jr., CitySolicitors, for respondent.
The constitutionality of this species of legislation has been definitely settled in this state, and its want of novelty shown.In the Matter of Dorrance Street,
That the legislature has the power to lay the whole expense of building a sewer upon abutting owners, that is, the expense of building the sewer in front of the respective premises of the abuttors, is affirmed by abundant authority. The greater power includes the lesser one of imposing a less burden. Cooley on Taxation, pages 399, 436-444. Stroud v. Philadelphia, 61 Pa. St. 255; Magee v. Commonwealth, 46 Pa. St. 358; McGonigle v. Allegheny, 44 Pa. St. 118; Commonwealth v. Woods, 44 Pa. St. 113. *57
An assessment by frontage at a rate per foot for improvements in streets is constitutional. Chambers v. Satterlee,
Legislatures can authorize special assessments, and it is an exercise of the right of taxation inherent in every sovereign. That power implies apportionment, and when legislatures have exercised the right and made the apportionment, a court should not assume to declare it void unless the invasion of private right is flagrant and its demonstration clear. Nor can a court determine what manner of apportionment is most equable and just.State v. Fuller,
The entire expense of street improvement may be assessed by foot front upon abutting lots. Parker v. Challiss, 9 Kansas, 155.
King v. City of Portland, 2 Oregon, 146, upholds the doctrine of the power of the legislature to authorize assessments for the probable cost of a street improvement, and holds that it is in the discretion of the legislature to provide the mode of assessment of such expense, and that the exercise of that discretion is not reviewable in the courts. Warren v. Henly,
31 Iowa, 31; Williams v. Mayor of Detroit,
Every presumption is to be made in favor of the right of taxation. If the case is within the principles, the proportion of contribution and other details are within the discretion of the taxing power.
St. Louis v. Oeters, 36 Mo. 456, sustains an assessment for the whole expense of building a sewer, the cost of work and assessment having been made by the city engineer.
The People v. Mayor, c. of Brooklyn,
Litchfield v. Vernon,
Palmer v. Stumph,
The power to determine when a special assessment shall be made and on what basis it shall be apportioned is wisely confided to the legislature, and cannot, without the introduction of some new principle in representative government, be placed elsewhere; and with the wisdom or unwisdom of special assessments when ordered in cases in which they are admissible at all, the courts have no concern unless there is plainly and manifestly such an abuse of power as takes the case beyond the just limits of legislative discretion. Cooley on Taxation, 429; Lockwood v.City of St. Louis, 24 Mo. 20, 22; The People v. Mayor, c.of Brooklyn,
This power has been frequently exercised in making assessments by front foot as well as by valuation, and sustained.
The authorities are well united that frontage may lawfully be made the basis of apportionment. Cooley on Taxation, 451; *59 McGonigle v. Allegheny City, 44 Pa. St. 118; Magee v.Commonwealth, 46 Pa. St. 358; Stroud v. Philadelphia, 61 Pa. St. 255, Spring Garden v. Wistar, 18 Pa. St. 195;Chambers v. Satterlee,
And assessments by the acre for constructing levees have been sustained. Cooley on Taxation, 443; Daily v. Swope,
Brewer v. City of Springfield,
There has been like legislation before the adoption of the Constitution and continued since. Ames, C.J., cites instancesIn the Matter of Dorrance Street,
It cannot be denied that these complaints are founded in fact. But the question is, Do they warrant our holding that the statute complained of is unconstitutional. The question is not new either in principle or form. In this State, however, the question is new in the precise form in which it now arises, though it is closely allied in principle to the question decided in 1857, in the case of Deblois v. Barker,
The reasons given for decision in the cases above cited are two. The first is, that such assessments are a species of taxation, and the power of taxation is so high and sovereign a power, and withal so essential to the conservation and progress of society, that it ought not to be limited by judicial construction without strict necessity. The second is, that such an assessment, though theoretically more unequal than an assessment in the ratio of benefits received or than an advalorem assessment, is nevertheless, in its practical operation, a very fair substitute for either of them, especially when it is considered that the improvements are intended to be permanent, and that present inequalities may be redressed by the changes of the future. It is admitted that these reasons are valid only in respect of improvements in the compact parts of large towns or cities; and that an assessment by front foot for a street improvement, extended to rural lots or farm lands, is so plainly unfair or extortionate that it cannot be sustained. Seeley v.City of Pittsburgh, 82 Pa. St. 360; Kaiser v. Weise, 85 Pa. St. 366.
We confess that these reasons are not perfectly convincing. But the question is whether, reinforced as they are by so many precedents, they are not sufficient. The first reason is the stronger; for, without doubt, the propriety of any given tax and the modes in which it shall be apportioned and assessed are legislative *62
matters, with which the courts will not interfere unless the legislature has palpably transgressed some limitation of the Constitution. The complainants contend that the legislature here has so transgressed. But our Constitution is extremely latitudinarian. It contains no restriction except what is implied in the declaration that "the burdens of the State ought to be fairly distributed;" and this declaration, as was said in In theMatter of Dorrance Street,
The complainants make the further point that an assessment under the statute may bring in more money than is required for the construction of the sewer; they submit testimony to show *64 that this has happened in several instances, and they contend that the statute is unconstitutional on account of it. We think, however, it would be preposterous to hold the statute unconstitutional on that account, for the sewer could be readily made expensive enough to exhaust the proceeds of the assessment. But, though the statute is not unconstitutional on that account, it is doubtless true that the proceeds of the assessment must either be wholly expended on the sewer, or, if not so expended, the surplus must be held by the city ratably for the abuttors, and cannot be diverted to any purpose for which the city had no authority to raise it.
The complainants also contend that the statute is unconstitutional because it does not direct any notice to be given of the assessment, and does not give any right of appeal by which errors in the assessment may be corrected. We presume the General Assembly considered the assessment so purely a matter of measurement and arithmetical computation, that no error of any moment was likely to occur, and that therefore no provision for notice or appeal was necessary. See Clapp v. City ofHartford,
Finally, the complainants contend that the assessment here is void because the statute under which it was made was passed after the sewer, to pay for which it was made, had been constructed. *65
The statute which was applicable when the sewer was constructed differed materially from the present in its methods and results. The present statute is, therefore, retrospective in its operation, and the question is, whether it is not unconstitutional on that ground. We do not think it is. Our Constitution does not inhibit retrospective legislation simply because it is retrospective; and it has been held that, in the absence of such an inhibition, a statute authorizing an assessment to pay for a local improvement previously made, on the estates specially benefited, is valid. Howell v. City ofBuffalo,
Our conclusion is, that the complainants are not entitled to relief. We have reached this conclusion not without much hesitation, but in obedience to the rule that a statute duly enacted, however questionable it may be in point of constitutionality, is not to be pronounced void for unconstitutionality until the court is clearly convinced of it.
Decree entered July 3, 1880, dismissing the bill, butwithout costs.