31 Pa. Super. 638 | Pa. Super. Ct. | 1906
Opinion by
To view, in the light most favorable to the appellee, the Act of April 28, 1899, P. L. 74, under which the present proceeding was instituted, we would classify it with a long series of acts, passed since the adoption of the new constitution, in" which the legislature has authorized the construction, b3^ municipalities, of vai’ious local improvements such as streets and sewers, and the collection of the whole or part of the cost thereof from certain properties found to have been peculiarly and specially benefited thereby. So much litigation has arisen under these various acts resulting in the judicial construction of almost every one of them, that we must now regard as firmly imbedded in the bod3 of our law those principles stated and reiterated in this long line of decisions. It is settled that the imposition on certain properties in a town or city, of the burden of paying all or part of the costs and expenses of an improvement, when other properties in the vicinity or in the municipality generally are not called upon to share in such burden, is an exercise of the taxing power. At the outstart all acts of this class were strongly attacked on the ground that they were in violation of that provision of the constitution which requires that all taxation must “ be uniform upon the
Had the courts, however, in the construction of these legislative acts, gone no farther than to announce the two principles already referred to, but little would have been accomplished of practical importance to protect the property of the citizen from unjust and unconstitutional taxation. The municipality, a city engineer, a board of viewers or other body provided by the legislature would still be at liberty to range at will over sections of the community more or less remote from the location of the improvement, and, on the theory that they lay in the same watershed, or within the lines to which the swollen waters of some stream in times of great floods had risen, or for other like reason, determine that they were specially benefited by the construction of the improvement and should be saddled with the cost of it. Thus could the citizen be so loaded with benefits that his property would be taken from him in discharge of burdens which should be borne by all, and the provisions of the constitution directing uniformity of taxation and forbidding the taking of private property for public use without making just compensation therefor, be rendered wholly ineffectual.
When a street is opened or paved or a sewer constructed in a city or borough, the improvement comes into actual contact with the properties that abut on the line of it. By its construction these properties are physicalty and palpably changed and affected. This physical, tangible change in their condition may result in making them worse or better, may damage or benefit them. But such damages are actual and real, such benefits are special and peculiar. . And surely, in sustaining what is admittedly a species of special taxation and therefore an apparent exception to the broad constitutional provision on the subject, the courts must have intended that the properties sub
Our courts, however, in upholding legislation authorizing the levying of special taxes, under the guise of assessments for benefits, to pay the cost of improvements, have repeatedly declared that such assessments must be confined to properties abutting on the line'of the improvement. Many ably contested and well-considered cases have held that this line could neither be overstepped nor departed from. In Morewood Avenue, 159 Pa. 20, where Mr. Justice Gbeen fully reviews the entire line of cases on the subject, it is said : “ As we have repeatedly decided, the doctrine of assessment for benefits, to pay for public improvements, can only be defended upon the ground that the benefits are local and essentially peculiar to the very property assessed, and then it can only be done once. This can only be the case when the property assessed abuts directly upon the line of the improvement. Having their own burthens to bear in this respect, the owners cannot be subjected to the discharge of similar burthens upon other properties, whether situate on the same street or in the same neighborhood.” In Park Avenue Sewers, 169 Pa. 433, Mr. Justice Mitchell, speaking for the court, says: “ But viewing the subject on the broader ground of the nature of local assessments, it is settled beyond all question by a line of cases of which it is only necessary to mention Ham
But it is ingeniously argued by the .learned counsel for the appellee that the “ improvement ” in the present case is “ the removal of the floods and waters from the properties within the affected area,” and as a consequence that every property in that section may be said to abut on the line of the improvement within the reason and meaning of the decisions cited. This seems to be a substitution of the effect for the cause, of the results following or expected to follow the completion of the improvement for the improvement itself. The word “ improvement,” as used in the act of 1899 and the earlier acts with which it may be properly classed, we understand to mean the work done on the ground which involved the expenditure of monejr, to recoup which, in whole or in part, the authority to levy special taxes on properties specially benefited is conferred on the municipality. The improvement in the present case is
“That the estimated cost of construction of the main sewer down Locust street, from High street to the river, is about 195,000, of which sum the undersigned viewers have assessed against the properties which, in their judgment, are or will be affected by the proposed improvement, the sum of $25,398.” Strong reasons, indeed, might be urged for holding that, in a proceeding like the present, under the act of 1899, the line of improvement would embrace not only the line of the newly constructed channel of the stream, whether on or beneath the surface, but also the line of the old and vacated.channel, because the properties abutting on the latter would be physically changed and affected by the accretion to each of its proportionate share of the abandoned water way. But as the properties of the appellants here are remote from both the old and new channels, we are not required to consider that question.
The special benefits which it is alleged have accrued to the properties of the appellants, remote from the line of the improvement, are thus described in the report: “ That the waters of Grafius’s Run have within two years past overflowed its banks and flooded the following described territory: ” (Here follows a description of a large section of the city, including the properties of appellants) “. . . . that if the plan of sewerage or drainage' adopted by said ordinance No. 753 (an ordinance earlier in date than the one under which the present improvement was begun and which provided apparently a comprehensive plan for the sewerage of the city) is fully carried out, the waters of Grafius’s Run will be effectually disposed of and removed from the territory first described,” etc. How frequently and upon what kind of occasions the waters of the Run reached the properties of the appellants, Avhether on every ordinary rise and freshet in the stream, whether on the occasions of extraordinary floods only, or whether indeed the visitations were confined to those rare but awful elemental disturbances we call acts of God, the report does not inform us. Thus the supposed benefits, which consisted in the probable removal of danger from such floods, would become more and more remote, speculative and uncertain as the danger of the recurrence
Looking at the case in every aspect, at the character of the improvement, the area supposed to be affected and benefited thereby and at the nature of the benefits claimed to have accrued to non-abutting properties, we are unable to discover any difference in principle between it and Beechwood Avenue Sewer Cases, 179 Pa. 490. In that case the Supreme Court reaffirmed the doctrine of the entire line of cases herein so often referred to. The same reasoning that led the court in that case to confine assessments for benefits to abutting properties, must logically lead us to the same conclusion here. As the properties of the appellants did not abut on the line of the improvement, their assessment cannot be sustained.
We hold, therefore, that the act of April 28, 1899, under which this proceeding was begun, did not confer on the city of Williamsport the power or authority to levy any special taxes against or assess with benefits any property not abutting on the line of the improvement which was constructed. Even if the intention to confer such power could be found in the act when construed in the light of the decisions of the Supreme Court and this court, I would hold that the legislature had exceeded its constitutional powers, because such legislation would result in the practical nullification of the provisions of the constitution hereinbefore referred to.- But as my brethren are not all of one mind on this question and do not regard its determination as necessary in disposing of the case before us, we rest our judgment on the other ground. The second and third assignments of error are sustained.
Judgment reversed.