4 R.I. 445 | R.I. | 1857
He contended, that the law in question did not fairly distribute the burden in question, and so was in derogation of art. 1, § 2, of the constitution; and called attention to the ten per cent. to be added in case of neglect to pay the assessment, which, he said, might, with just as much propriety, have been 100 per *448 cent., as indicating that this was an attempt to deprive the citizen of his property without due process of law, since the law provided no notice of the assessment to be given, and yet punished, by the added ten per cent. the party assessed, for neglect to pay it.
He cited 4 N. Hamp. R. 565, and Couch v. Ulster OrangeTurnp. Co. 4 Johns. Ch. R. 26. The constitutional power of the general assembly, in providing by law for the making of necessary and convenient public ways, to order the expenditures thus occasioned to be assessed either in proportion to benefits received therefrom, or in proportion to ratable estate possessed, has already been considered and affirmed by this court, after full argument, in the case In the matter of Dorrance-street; and we see no reason to doubt the soundness of the conclusion to which, in that case, we arrived. One of the earliest occasions of the first mode of assessment was the paving of streets in Newport in 1719, (Digest, 1730, p. 107,) and the successive sidewalk acts, as they are called, passed since 1821, in relation to the city of Providence, have, as we all know, sometimes thrown the whole, and sometimes, as in the law now under consideration, a portion of the expense of making the sidewalks of that city, upon the owners of the adjoining estates. Indeed, there is hardly a city in the Union in which this or similar burdens are not thus imposed; and the almost universal practice in this respect, amongst so many distinct and intelligent communities, is no bad proof of its practical fairness. We do not see the distinction in principle between the making of a sidewalk in a highway already opened, and the opening of a new highway, attempted by the counsel for the complainant. It is in our judgment quite as necessary that the foot passengers in the streets of our cities should be safely and conveniently accommodated, as that carts and carriages should be; and the frequent passage of the latter, renders absolutely necessary for the safety of the life and limbs of such passengers, that they should have a distinct place set apart for them in passing along the streets. Nor do we see any force in the objection to this law that it empowers a single street commissioner, instead of a board, to fix the grade and *449 pave the gutters of the streets of Newport; a species of duty quite as well, to say the least of it, performed by one as by many; and, at all events, involving a question of mere expediency, quite within the constitutional power of the legislature to decide. A surveyor of highways has much greater powers within his district, though he acts singly.
The last objection made to the law, that it provides for no notice of the amount of this charge, and yet inflicts a penalty of ten per cent. for neglect to pay it, applies rather to the exaction of the penalty than to the charge itself. There can be no neglect to pay a charge, the amount of which has not been ascertained and shown to the party to be charged; and the language of the act plainly implies, that it is the duty of the street commissioner to demand the cost of the curb-stones from the owner of the land, before giving the amount of it to the assessors to be assessed against him, with the ten per cent. penalty for neglect to pay it. The assessors give the same notice of this assessment as of the assessment of any other tax. The owner of the land knows, or is presumed to know this law, as well as every other law, under which taxes may be assessed against him. He attends the board upon their notice or not, at his pleasure. If a sidewalk has been built in front of his land, he knows, or is presumed to know, that the cost is a charge upon him and his land, and if not paid, will be assessed against him with the penalty. The assessors would not exact the penalty for neglect to pay, if he had no opportunity to pay; and if they did, he would have his remedy by the appeal which the law provides for him. But, as we have said, the objection applies to the ten per cent. penalty rather than to the charge of the cost of the curb-stones. It is quite time enough to consider it when a case is presented to us in which it is sought to be enforced, no notice having been given, or knowledge had, of the charge. This bill admits, in terms, that the complainant did not pay the charge, on account of the supposed want of legal authority to impose it; and nowhere avers that she did not have notice and demand of it. We see no want of authority in the street commissioner to set the curb-stones in front of the complainant's lots, and, she neglecting to pay the *450 cost of them, none in the assessors of taxes, to assess such cost with ten per cent. against her; and under such circumstances it is certainly the duty of the defendant, as collector, to sell the land to pay for it.
The demurrer must be sustained, and the bill dismissed, with costs.
