Appeal, No. 10 | Pa. | Jul 17, 1901
Opinion by
The right to adopt the “ foot front rule ” in assessing the cost of "street paving, in Pennsylvania, must be regarded as definitely settled. It is not to be considered as an assessment, irrespective of benefits conferred, when it is applied to the original paving of a street, in the buijt up portion of a city. Under such circumstances, the improvement is manifestly a special benefit to the abutting properties. It could hardly have been urged that the question was an open one, had it not been for
But the very careful consideration of that decision by Judge Smonton, in the present case, filed in the trial court, shows that the principles upon which Norwood v. Baker was decided do not, when properly understood, run counter to our own decisions. In that case, there was a taking of private property for a public purpose, under the power of eminent domain, not only without compensation, but, further than that, the defendant was required to pay for the costs of the proceedings. Clearly that was a very different procedure from that now under review.
The same discriminating study was given to the opinion in Norwood v. Baker by the learned and conscientious president judge of the Superior Court, who states his conclusion as follows : “ On a hasty reading, it might seem that the court meant that the ‘ foot front rule,’ whenever/ and wherever applied is necessarily a rule or mode of assessment which excludes from consideration special benefits to the properties assessed. We do not so interpret the decision. On the contrary, we think it is apparent, from the opinion, that the thing condemned was the arbitrary assessment of the whole cost of an improvement upon abutting properties, whether such properties are specially benefited or not, to the extent of the cost, and without regard to that consideratión.”
That the meaning of the Supreme Court of the United States was thus properly apprehended, and its effect correctly applied to the present case, both by the trial court, and the Superior Court, is fully demonstrated by the opinion of the United States Supreme Court in Wight et al. v. Davidson et al., filed April 29, 1901, 181 U.S. 371" court="SCOTUS" date_filed="1901-04-29" href="https://app.midpage.ai/document/wight-v-davidson-95473?utm_source=webapp" opinion_id="95473">181 U. S. 371, in which it is stated, that the interpretation of Norwood v. Baker, in which “ the limit of assessment on a private owner of property is the value of the special benefit which has accrued to him from the public improvement adjacent to his property ” was a misconception of the meaning and effect of that decision.
And in French v. Barber Asphalt Paving Company, 181 U.S. 324" court="SCOTUS" date_filed="1901-04-29" href="https://app.midpage.ai/document/french-v-barber-asphalt-paving-co-95472?utm_source=webapp" opinion_id="95472">181 U. S. 324, filed the same day, the Supreme Court of the United States enters an even more emphatic disclaimer against the prin
The Superior Court, and the court below, were, therefore clearly right in holding that Norwood v. Baker was decided upon its own facts alone, and that it also involved the question of eminent domain. There seems to have been a great difference of opinion as to the real meaning of the decision, but all doubt is now set at rest by the statement of the Supreme Court of the United States itself.
The facts of the case of ■ French v. Barber Asphalt Paving Company last cited, are so nearly in line with those of the present case a§ to make them particularly applicable. Those facts are thus stated by the court:
“ The work done consisted of paving, with asphaltum'the roadway of Forest avenue, in Kansas City, thirty-six feet in width, from Independence avenue to Twelfth street, a distance of half a mile. Forest avenue is one of the oldest and best improved residence streets in the city, and all of the lots abutting thereon front the street, and extend back therefrom uniformly to the depth of an ordinary city lot, to an alley. The lots are all improved, and used for residence purposes, and all of the lots are substantially on the grade of the street, as improved, and are similarly situated with respect to the asphalt pavement. The structure of the pavement along its entire extent is uniform in distance and quality. There is no showing that there is any difference in the value of any of the lots abutting on the improvements.” The cost of the pavement was apportioned and charged against the abutting property owners, according to the “ foot front rule.” This method of assessment was approved by the Supreme Court of the United States with the statement that it was “ an orderly procedure, under a scheme of local improvements, prescribed by the legislature, and approved by the courts of the state, as consistent with constitutional principles.”
The assignments of error are all overruled, and the judgment is affirmed.