76 N.W. 242 | N.D. | 1898
Lead Opinion
The owner of abutting property is by this action attacking the validity of an assessment to pay the expenses of paving a street in the City of Fargo. He grounds his assault
That there is a line of decisions which more or less supports the plaintiff’s theory in this action cannot be doubted. They illustrate a tendency of the judicial branch of the government to usurp power for the purpose of preventing injustice or hardship in individual cases. Such a course is indefensible. If the courts are to interfere whenever inequality in taxation is discerned, civil government must cease. What has led some of the tribunals to adjudge illegal the exercise of this peculiarly legislative function, when it has been applied to local assessments has been the greater ease of tracing to the property assessed the benefit of the improvement for which it is assessed. The advantage which will accrue to the citizen from the maintenance of public schools cannot be even approximately measured in money. But, when a street is paved or a sewer constructed, it is possible to discover some peculiar benefit to property in the immediate vicinity. It therefore seems to have been thought that because inequality could be more easily pointed out in such cases, there was some limitation upon the taxing power when exercised in this way which does not exist when it is employed for purposes of general revenue. But it must be obvious that the fact that inequalities
To exhibit the folly of this rainbow pursuit of an ideal equality in the apportionment of a local assessment, it is only necessary to point to the injustice which it must be conceded the legislature may perpetuate in the collection of the expense of any local improvement. The cost of paving a street may be levied upon an entire city, and the millionaire who has his domicile therein may be compelled to bear a large portion of the burden, though he spends his time in foreign travel, and never even sets his foot upon the street. He may not own any land in the city which can be benfited by the tax, he being taxed there for only his personal property. When contrasted with the gross inequity of his contributing to the expense of improving the street, — an inequity which is constitutionally possible, — how paltry seems the grievance of the plaintiff in this suit, who is asked to pay for an improvement in front of his own lot only the same proportion of the expense thereof that is charged up to other abutting proprietors? We are apt to deceive ourselves by names and generalities. Because, forsooth, taxes must, under the constitution, be apportioned according to the value of property, it is thought that equality is approximated. But this is not true. It does not follow that one who owns ten times as much property as another receives a tenfold benefit from the government which taxes him. His investments may be made
There are two settled doctrines which are fatal to the proposi
The other doctrine refered to is that the assessment may be apportioned according to frontage. These decisions (and they are a host) are not sound if the limit of the power is the enhancement in value of the land assessed. It will not do to say that such a method of apportionment will result in approximately the same distribution of the burden as the mode of assessing according to benefits. When constitutional rights are involved, the courts will not suffer a single citizen to be harmed, though a million are fully protected under the system whose legality is challenged. Nor will the insignificant nature of the injury he receives weigh against his assertion of his constitutional rights. It is impossible that in every case the front-foot system should apportion the tax according to actual money benefits. We know that it will not. And yet practically all the courts, including those who indulge in much loose reasoning on this subject, agree that the taxpayer cannot complain when the frontage of his lot
In Michener v. Philadelphia, 118 Pa. St. 535, 12 Atl. 174, the court sustained a sewer assessment without reference to the question of benefits. The sewer was laid along the street bounding the side of the lot, the lot being a corner lot running through from one street to the other. There was already a sewer at each end, so that the lot could not possibly have been benefitted by the last improvement. It had been already assessed twice before for similar improvements, and these assessments had been paid. The court said: “The plaintiff alleges, however, that his property is not benefited by the sewer. He may or may not be mistaken in this. We cannot say. But this is a species of taxation, and all taxation is presumed to be for the benefit, directly or indirectly, of the taxpayer or his property. Laid as taxes are, under general laws, there will always be cases of apparent individual hardship. The childless man may claim that the taxes which he is compelled to pay for the education of the children of other persons confers no benefit upon him. The law does not so regard it. Education produces a higher degree of intelligence, the fruits of which are seen in increased good order and dimin
In the Madera Irrigation Dist. Case, 92 Cal. 296, 28 Pac. Rep. 272, 675, the court say, at page 328, 92 Cal., and page 280, 28 Pac. Rep.: “It is not necessary to show that property within -the district may be actually benefited by the local improvement, and, even if it positively appear that no benefit is received, such property is not thereby exempted from bearing its portion of the assessment, nor is the act unconstitutional because it provides that such property shall be assessed. Property that is exempt from taxation has always been held subject to the burdens of assessment for local improvements, and property within a district that is not susceptible of receiving any immediate benefit from the improvement is nevertheless so indirectly benefited thereby that it must bear a portion of the burden. If, within the limits of a levee district, a parcel of land should be so situated as not to require the protection of the levee, that would be no reason for excluding it from its share of the expense; or if, within the limits of a drainage district, there should chance to be found a cliff, that would be no reason for exempting it from assessment.”
We are referred to the decision of the Michigan Supreme Court in Thomas v. Gain, 35 Mich. 155. But Judge Cooley expressly limited the decision to the peculiar facts of that case. See page 164. And in his work on taxation, (page 622,) he says: “For this very reason 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 could not, without the introduction of some new pidnciple in representative
The Tide-Water Company Case, 18 N. J. Eq. 518, is cited by counsel for plaintiff, but is plainly distinguishable from the case at bar, and this fact has been pointed out by the courts of that state. See State v. Fuller, 34 N. J. Law, 227, 230. While there are decisions in that state which favor the contention of plaintiff’s counsel, yet in the Fuller Case, 34 N. J. Law, 227, language was used which fully supports our views. See pages 229 to 232.
The general theory upon which particular taxes are collected within particular districts is the theory of local benefit. It is precisely the same theory which underlies the law relating to local assessments. As one improvement is of local benefit to a county, and another to a city, and still another to a school district, so other improvements, such as sewers, water mains, and street paving, are of local benefit to a yet more circumscribed area. The taxpayers of a county are required to pay for erecting the public buildings thereof, because such structures are presumed to be for
While it is true that it is not competent for the legislature to compel the taxpayers of one county to pay for the public buildings of another, yet it may indirectly accomplish this result at any time by making the former county a part of the latter. This may be done after the debt has been incurred. And it is likewise true that the limits of the taxing district within which the expense of such structures must be collected may be narrowed by a division of the county into two counties, leaving all the burden of taxation for existing indebtedness to be borne by the fragment in which the buildings stand. Johnson v. City of San Diego, (Cal.) 42 Pac. Rep. 249, and cases cited; Petition of Kingman, 153 Mass. 566, 573, 27 N. E. Rep. 778, and cases cited. Nor does the law so limit the power of the legislature to tax for such an improvement that only those who are in fact benefited thereby can be required to pay. The childless nonresident owner of land in a city, who never beholds the county or city buildings or the school houses therein, must nevertheless contribute to the cost of them all. And so with respect to a work that is still more local in character. When once the boundaries of the special taxing district have been established, it is utterly unimportant that a particular piece of property happens to be so situated that no benefit can accrue to it from such work. Of course, this reasoning would not apply if a distant lot should be capriciously included within the district. But it does apply when all the property is similarly situated with reference to the improvement, as, for instance, when it is all abutting property. When the property belongs to a class that may'be benefited, it is no objec
It is said that practically all the cases which sustain the front-foot basis of apportionment are cases in which the legislature was dealing with a particular city; and it is urged that there is plain distinction between a special law relating to a single city and a general law which embraces all municipalities. We are unable to discover any such distinction. The question is one of power. Can the legislature determine that the abutting property will be benefited to the extent of the cost of paving a street, and that the property shall be assessed according to its frontage? If it can, then it is immaterial whether it establishes such a rule for all cities or for only one. We know of no principle which permits a court to deny to a co-ordinate branch of the government the right to exercise a conceded power because it may surmise that the power has been exercised without due consideration of the facts. Besides it is absurd to assume that the legislature ever takes into consideration the varying topographical conditions and other relevant circumstances when it authorizes a large city to levy local assessments by the front foot rule for local improvements. It is impossible for that body to consider in advance the effect of such improvements upon abutting property under every conceivable circumstance. It often happens that when-such laws are passed much territory that is subsequently included within the city limits is not then within its borders. Counsel’s argument proves too much. It strikes at the power of the legislature to establish the front-foot rule at all in a large city, or even in any city with respect to territory which may be thereafter annexed. We have thus far refrained from grouping around the several propositions, which support our decision that the limit of the power is not the enhanced value of the particular land assessed, those cases which sustain such propositions. This course has been pursued that the continuity of the argument might not be broken. To recapitulate, we assert that the decisions which recognize the front-foot rule are fatal to the theory that the public can
Again, it is clear that those cases which sustain any other basis of appoi'tionment than that of actual benefits to each parcel of land, — as, for instance, value or area, — ax-e likewise hostile to the naxTow xmle for which counsel for plaintiff contends. We refer to a few of the authoxdties which uphold such modes of apportionment: In re Madera Irr. Dist., 92 Cal. 296, 324, 28 Pac. Rep. 272, 675; Burnett v. Mayor, etc., 12 Cal. 76; Creighton v. Scott, 14 Ohio St. 438; Lockwood v. City of St. Louis, 24 Mo. 20; Keese v. City of Denver, 10 Colo. 112, 15 Pac. Rep. 825; Gilmore v. Hentig, 33 Kan. 156, 173, 174, 5 Pac. Rep. 781; Wright v. City of Boston, 9 Cush. Downer v. City of Boston, 7 Cush. 277; Strowbridge v. City of Portland, 8 Or. 67, 82; Snow v. Fitchburg, 136 Mass. 183; Williams v. Cammack, 27 Miss. 209; Levee Co. v. Hardin, 27 Mo. 495; Wallace v. Shelton, 14 La. Ann. 498; Daily v. Swope, 47 Miss. 367; Irrigation Dist. v. Bradley, 164 U. S. 112, 176, 17 Sup. Ct. 56; Walston v. Nevin, 128 U. S. 578, 9 Sup. Ct. 192; Cleveland v. Tripp, 13 R. I.
There is another line of adjudications which are inimical to the views of counsel for plaintiff, — those which hold that the legislature may direct that all the expense of the improvement be collected out of the abutting property, — for it may happen that such expense will exceed the aggregate enhanced valuation of the property assessed which results from the local improvement. In this line we find the following decisions: Lent v. Tillison, 72 Cal. 404, 14 Pac. Rep. 71; State v. Fuller, 34 N. J. Law, 227; Spencer v. Merchant, 125 U. S. 345, 8 Sup. Ct. 921; Bauman v. Ross, 167 U. S. 548, 589, 17 Sup. Ct. 966, and cases cited; Dorgan v. City of Boston, 12 Allen, 223; City of Parkersburg v. Travenner (Va.) 26 S. E. Rep. 179. What is true of the foregoing cases is also true of those which assert the power of the legislature to fix the percentage of the cost of the work to be raised by local assessment, for such percentage may double the total increase in value because of the improvement of all the assessed property. We cite a few of those cases: Bauman v. Ross, 167 U. S. 548, 589, 17 Sup. Ct. 966, and cases cited; Hilliard v. City of Asheville (N. C.) 24 S. E. Rep. 738; City of Parkersburg v. Travenner (Va.) 26 S. E. Rep. 179; Norfolk City v. Ellis, 26 Grat. 224.
Again, those cases which hold that the total cost of the improvement in front of a particular lot may be assessed against it are opposed to the doctrine of actual benefits. Weeks v. City of Milwaukee, 10 Wis. 258; Warren v. Henly, 31 Iowa, 31.
In Michigan, the judges were equally divided on the question. See Woodbridge v. Detroit, 8 Mich. 274. And, while Judge Cooley is opposed to the rule established by the Wisconsin and Iowa courts (See Cooley, Const. Lim. 508), yet Judge Dillon, whose opinion is so much relied upon by counsel for plaintiff in this case, favors that rule. See 2 Dill. Mun. Corp. § 753.
And, finally, we marshal against counsel’s theory those decisions
In Irrigation Dist. v. Bradley, 164 U. S. 112, 17 Sup. Ct. 56, the court say,,at pages 176, 177, 164 U. S., and pages 69, 70, 17 Sup. Ct.: “It is insisted that the basis of the assessment upon the lands benefited, for the cost of the construction of the works, is not in accordance with, and proportion to, the benefits conferred by the improvement; and therefore there is a violation of the constitutional amendment referred to, and a taking of the property of the citizen without due process of law. Although there is a marked distinction between an assessment for a local improvement and the levy of a general tax, yet the former is still the exercise of the same power as the latter, both having their source in the sovereign power of taxation. Whatever objections may be urged to this kind of an assessment, as being in violation of the state constitution, yet, as the state court has held them to be without force, we follow its judgment in that case, and our attention must be directed to the question whether any violation of the federal constitution is shown in such an assessment. Can an ad
In Bauman v. Ross, 167 U. S. 548, 17 Sup. Ct. 966, the court say at page 590, 167 U. S., and page 982, 17 Sup. Ct.: “ It was contended by some of the owners of lands that the public improvement proposed was not of a local character, but was for the advantage of the whole country, and should be paid for by the United States, and not by the District of Columbia, or by the owners of the lands affected by the improvement. But it is for the legislature, and not for the judiciary, to determine whether the expense of a public improvement should be borne by the whole state, or by the district or neighborhood immediately benefited. The case in this respect comes within the principle upon
In English v. Mayor, etc. (Del. Err. & App.) 37 Atl. 158, the court say: ‘‘It is altogether too late in the development, both by legislation and elaborate judicial decisions, in states other than our own, of the general principles controlling local assessments for local improvements, for it to be necessary or proper for me to enter into a more elaborate or detailed review of the multitude of authorities sustaining the general propositions already laid down. It is well settled law (1) that the whole subject of taxing districts belongs to the legislature; (2) that the apportionment between the public and the local owners is within the power of the legislature; (3) that the legislature may fix upon the basis of apportionment between individuals. In fixing upon the basis of apportionment, the two methods between which a choice is commonly made in statutes providing for local assessments are: (1) An assessment made by assessors or commissioners appointed for the purpose under legislative authority, who are to view the estates, and levy the expense in proportion to the benefits which, in their opinion, the estates, respectively, will receive from the work proposed; (2) an assessment by some definite standard fixed upon by the legislature itself, and which is applied to estates by a measurement of length, quantity or value.” See, also, the very able opinion of Judge Sawyer in Emery v. Gas Co., 28 Cal. 345.
We do not desire to create the impression that under no circumstances can the courts review the exercise of the power of
Much of the fear of disastrous consequences to the taxpayer for an abuse of the power of local assessment is fanciful. Legislators are not-destitute of a sense of justice. They are controlled
The conclusion we have reached as to the legality of the statute, in so far as it requires all the expenses of the improvement to be assessed against the abutting property in proportion to frontage, leads necessarily to the further conclusion that there is no force in the contention of counsel for plaintiff that the taxpayer is not allowed a hearing by the law. It is true that he is given no hearing on the question of benefits. But he is furnished with an opportunity to demonstrate that the assessor in apportioning the tax according to frontage has committed an error by charging up against his land a larger sum than should be assessed against it. Section 2280, Rev. Codes. The right to a hearing at some stage -in the proceedings is universally recognized where the apportionment of the tax involves the exercise of an act judicial in character; for instance, an assessment according to benefits. Ulman v. Mayor, etc.(Md.) 20 Atl. Rep. 141, 21 Atl. Rep. 709; Mayor, etc. v. Ulman, (Md.) 30 Atl. Rep. 43; Mayor, etc. v. Scharf, 54 Md. 499; Spencer v. Merchant, 125 U. S. 345, 8 Sup. Ct. 921; Lent v. Tillson, 140 U. S. 316, 11 Sup. Ct. 825; Violett's Heirs v. City Council of Alexandria (Va.) 23 S. E. Rep. 909; Dietz v. City of Neenah (Wis.) 64 N. W. Rep. 299; Spencer v. Merchant, 100 N. Y. 585, 3 N. E. Rep. 682; Cooley, Tax’n, 655; Stuart v. Palmer, 74 N. Y. 183. But there is authority for the proposition that, when the apportionment of the assessment involves only a mathematical calculation, the taxpayer is not entitled to be heard. English v. Mayor, etc.
We are not called upon in this case to determine whether the legislature could have dispensed with a hearing, as it has not done so.
It is no objection to the law that it provides that the assessment shall be based upon an estimate of the cost before the work has been finished. See English v. Mayor, etc. (Del. Err. & App.) 37 Atl. Rep. 158; Davidson v. New Orleans, 96 U. S. 97; Cleveland v. Tripp, 13 R. I. 60.
Our conclusion is that the statute is valid, and we therefore reverse the judgment of the District Court, which is founded upon the contrary view of the law.
Rehearing
ON APPLICATION FOR A REHEARING.
Despite the length of the original opinion in this case, we deem it due to the able argument made by counsel for the plaintiff in their petition for a rehearing that we should briefly discuss the particular point therein presented. Our apology for our elaborate treatment of the case is that we believed that nothing short of an exhaustive review of the whole subject would enable us to answer the ingenious and powerful presentation of the plaintiff’s theory of the case by his counsel, both in their printed brief and their oral arguments. They contend in their petition for a rehearing that the law is unconstitutional because no board or officer is authorized to determine, after due notice to the public, what property will be benefited by the improvement. Their claim, in brief, is that, even conceding that the citizen has no right to be heard as to the quantum of benefit his property derives from the improvement or with respect to the basis of apportionment of the assessment, yet that he has a constitutional right to
While fully appreciating all the force of the arguments advanced by counsel for plaintiff, and while conceding that a remarkably strong presentation of that side of the question has been made by them, we still believe that their vigorous assault upon the constitutionality of the law in question cannot be sustained. The petition for a rehearing is denied.