142 Pa. 601 | Philadelphia Cty. Ct. Qtr. Sess. | 1891
Opinion,
The most serious question presented by this appeal is the constitutionality of the provisions of the act of April 21, 1858, § 6, P. L. 386, which direct that the damages awarded to property owners for the vacation of a street shall be assessed upon the owners of properties benefited. It was held in Centre St., 115 Pa. 247, that the imposition of the assessed benefit upon the owner, instead of upon his land only, was within the discretion of the legislature, and that the act was not unconstitutional on that account. But it is argued in the present case that the commonwealth’s power of taxation is only for the purpose of raising funds to discharge the public obligations; and as, under the act, the state, or its representative the city, is not interested in the payment of the damages, it has no power to impose a special tax for their, payment, under the name of benefits, upon individuals; or, in other words, that such procedure is taking the property of one man to pay the debts or damages due to another, for the public benefit, and therefore outside the limit of constitutional legislation. In, the case of opening or widening streets, it is said, the city, as the agent of the commonwealth, is liable primarily for the damages, and it therefore pays them to the parties injured and collects them from those benefited; but, in the case of vacating streets, the city is not bound to pay, and therefore cannot collect. This is the cornerstone of the argument, but it rests upon a misapprehension.
hi or is the mode in which the principle is applied by the act of 1858 bejmnd the legislative discretion. The jury is directed to ascertain both damages and benefits, and to appty the latter directly to the payment of the former. This is doing directly by a single proceeding what had usually been done theretofore by two separate acts. But it is in effect no more, and no different from assessing the benefits in favor and the damages against the city, which are thus collected with one hand and
We have thus considered the constitutionality of the act at some length, because, in the case of Centre St., 115 Pa. 247, the attack upon it was made on other grounds, and did not call for the special discussion of this point. But the consideration of the subject was necessarily involved in that case, and we see no reason to change the views there expressed.
It is objected that there is no authority in this or any previous act for the appointment of a jury in the case of vacation, and certainly no express provision therefor has been shown. But, as already discussed, there was a well-known and long-established system of proceeding in regal’d to the opening and widening of streets in Philadelphia, under which juries were appointed and their duties regulated. Into this system the act of 1858 brought the vacation of streets by the express command that “it shall be the duty of juries selected to assess damages for the opening, widening, or vacating roads or streets,” etc. It would be utterly nugatory and meaningless for the act thus to prescribe the duties of a jury which was not to come into existence at all. The words of the act, expressly including and assimilating the duties of juries for the opening and vacation of streets, necessarily imply the appointment in the latter cases as well as in the former.
There are other questions argued with great force by the learned counsel for appellant, but, so far as they are necessarily raised in this case, they are settled by the decision in Centre St. Yery serious difficulties are suggested, in the lack of provisions for process, means of collection, and method of distribution of the assessments, etc. But none of them arise in this case, and perhaps they may never arise. The report of the jury must receive the approval of the court, and if it should show assessments for damages in excess of benefits, with no general benefit which the city could properly be called upon to pay, it would not be likely to be ajjproved. Some embarrassment may be created by the verdicts of petit juries on appeals, but we may well leave these to be solved when they arise. Our duty is to give effect to the act if we can reasonably do so in accordance with settled legal principles, and we have no serious difficulty in doing so, to the extent called for by the present case.
Judgment affirmed.