14 Pa. Super. 473 | Pa. Super. Ct. | 1900
Opinion by
This appeal raises but a single question, namely, the constitutionality of the clause of the Act of May 23,1889, P. L. 277 (paragraph 10 of section 3 of article 5, p. 288), which authorizes cities of the third class to provide for the payment of the cost and expense of paving city streets, “ by the owners of real estate bounding and abutting thereon, by an equal assessment on said property in proportion to the number of feet the same fronts on the street.” The case is not complicated by any question as to the character of the property, as, for example,
The question is, whether the adoption of this mode of assessment is, under all circumstances, a violation of the general principle governing such special assessments that the limit of the benefit is the limit of the taxing power; that is, whether it is essentially an assessment irrespective of benefits conferred? But for the recent decision of the United States Supreme Court, in Norwood v. Baker, supra, we would not be at liberty to regard this as an open question in Pennsylvania. If, however, it was decided in that case that an act of a state legislature which au
It will be well, therefore, to look first at the facts of that case, second at the precise question for decision, as stated by the Supreme Court itself, third at the ground upon which the decision was based.
Briefly, the facts were, that the village appropriated a part of Mrs. Baker’s land for a public highway; that in condemnation proceedings prescribed by the laws of tbe state of Ohio where the case arose, the value of the land taken, without deduction for benefits to the remainder of the tract, was ascertained and awarded to her, and that subsequently this sum, together with tbe costs and expenses of tbe condemnation proceedings, was assessed by ordinance against her remaining land abutting on the new street. This was done under a law which authorized the village to place the cost and expense attending the condemnation of land for a public street on the general tax list of the corporation, or to assess the same “ on the abutting and such adjacent and contiguous or other benefited lots and lands in the corporation, either in proportion to the benefits which may result from the improvement, or according to the value of the property assessed, or by the front-foot of the property bounding and abutting upon the improvement, “ and providing that in the case of the opening, etc., of a street,” the cost and expense “ shall be assessed only on the lots bounding and abutting on such part or parts of said street or avenue so improved, and shall include such lots and lands only to a fair average depth of lots in the neighborhood.”
The particular question presented for consideration, said Mr. Justice Hablan, “involves the validity of an ordinance of that village, assessing upon the appellee’s land abutting on each side of the new street an amount covering, not simply a sum equal to that paid for the land taken for the street, but, in addition, the costs and expenses connected with the condemnation pro
But the court took pains, after a thorough and exhaustive consideration of the principles governing special assessments for local improvements, to state the grounds of its decision of the particular case in the following explicit language: “ The judgment of the circuit court must be affirmed, upon the ground that the assessment against the plaintiff’s abutting property was under a rule which excluded any inquiry as to special benefits, and the necessary operation of which was, to the extent of the cost of opening the street in question over any special benefits accruing to the abutting property therefrom, to take private property for public use without compensation.” On a hasty reading it might seem that the court meant that the front-foot 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 consideration. And we may' remark in passing, that this was no more emphatically condemned than it has been by our own Supreme Court. Great prominence was given to the terms of the Ohio statute, which seemed to
It so happens in the present case that the defendant was one of the petitioners for the improvement. He must be presumed to have known that if a majority petitioned, the statute gave the councils authority, if the circumstances warranted it, to assess the cost on the abutting properties. But so far as appears in this record, neither he nor any of the property owners raised any objection to the proceedings until after the improvement had been made and they were called upon to pay their assessments. It is not necessary to hold that they are estopped in order to sustain this judgment. Nor do we put our decision upon that ground. We refer to these facts simply for the purpose of showing that under our law the property owners have ample notice of the proceedings, and that they were not conducted in the present instance in an arbitrary or underhanded manner.
After a careful study of the case of Norwood v. Baker, and of the cases cited by Mr. Justice Hablan in support of the judgment (many of which distinctly recognize the power of the’ legislature to adopt this mode of assessment under special circumstances, as,’ for example, when it is applied to the original paving of a street of uniform width in the built up portions of a city or large town), we are not convinced that it establishes a general rule which controls in the present case. See further, Sears v. Boston, 173 Mass. 71, 350; Gleason v. Waukesha, 103 Wis. 225; Hayes v. St. Louis, not officially reported. In arriving at this conclusion, we have not overlooked the cases cited by the appellant’s counsel in which a different opinion has been expressed as to the principles decided in that case. These are
We might well have rested our decision on the able opinion of the learned president of the court below in Harrisburg v. Miller, ante, p. 476, in which Norwood v. Baker, is thoroughly reviewed. But the importance of the question, involving, as it does, legislation, the validity of which has been recognized by our Supreme Court in a multitude of cases, seemed to justify further discussion, even though it involved repetition of much that is contained in his opinion. For the reasons there given in connection with the suggestions we have added the judgment is affirmed.