Wilzinski v. City of Greenville

85 Miss. 393 | Miss. | 1904

Whitfield, C. J.,

delivered the opinion of the court.

The question for solution in this case is: Could the city of Greenville charge a local assessment for sidewalk improvements upon the property of the appellant abutting upon the pavement, making such charge a lien upon said property according to what is known as “the front-foot rule,” without limiting the amount of such assessment by the special benefits accruing to' such property so charged with the cost of the improvements? The only duty we have to perform in this case is to ascertain the holding, on the point involved, of the supreme court of the United States. Yolumes have been written in text-books and decisions upon the conflicting views on what is known as the “front-foot rule.” Macon v. Patty, 57 Miss., 378 (34 Am. St. Rep., 451), exhausted the subject. It would be idle for us to attempt to add to the learning on the subject,’ and doubly idle, in view of our duty to follow the supreme court of the United States, whatever might be our opinion on the subject. In Tillage of Norwood v. Baker, 172 U. S., 294 (19 Sup. Ct., 196; 43 L. ed., 453), the United States supreme court, by a vote of six to three, through Mr. Justice Harlan, held: “That, while abutting property may be specially assessed on account of the expense attending the opening of a public street in front of it, such assessment must be measured or limited by the special benefits accruing to it — that is, by benefits that are not shared by the general public — and that taxation of the abutting ■ property for any substantial excess of such expense over special benefits will, to the extent of such excess, be a taking of private property for public use without compensation.” But in French v. Barber Asphalt Pv. Co., 181 U. S., 324 (21 Sup. Ct., 625; 45 L. ed., 879), the United States supreme court, by a vote of six to three, expressly held that such assessment by the-“front-foot” rule, although not measured by the value of the benefits received by the particular property, is not a taking of private property for public use without compensation, to the extent of any substantial excess of the cost over the benefits, and that whether such front-foot rule or other method shall be adopted is a question exclusively within the legislative discretion, over which the courts will not exercise corrective control; unless, as we understand this case, the action of the city authorities in making such assessment shall amount to “an act of confiscation.” We think this exception is clearly deducible from the distinction the court seeks to draw between the cases of Village of Norwood v. Baker and French v. Barber, etc., Co. The court say on this point: “That was a case where, by a village ordinance apparently aimed at a single person, a portion of whose property was condemned for a street, the entire cost of opening the street, including not only the full amount paid for the strip condemned, but the cost and expenses of the condemnation proceedings, was thrown upon the abutting property of the person whose land was condemned. This appeared, both to the court below and to a majority of the judges of this court, to be an abuse of the law, an act of confiscation, and not a valid exercise of the taxing power.” In Webster v. City of Fargo, 181 U. S., 395 (21 Sup. Ct., 624; 45 L. ed., 914), the United States supreme court again held — divided as before,, six to three — “that it is within the power of the legislature of the state to create special taxing districts, and to charge the cost of a local improvement, in whole or in part, upon the property in said district, either according to valuation or superficial area or frontage; and that it was not the intention of that court, in Village of Norwood v. Baker, 172 U. S., 269 (19 Sup. Ct., 187; 43 L. ed., 443), to hold otherwise.” And the same doctrine was again announced in 181 U. S., 396 (21 Sup. Ct., 644; 45 L. ed., 915), the court dividing as before, six to three, in Cass Farm Co. v. Detroit, which last, however, it should be noted, is, like the case before us, a case of laying pavement on sidewalks, and not one of opening streets, as was Village of Norwood v. Baker. And so to the same effect see City of Detroit v. Parker, 181 U. S., 399 (21 Sup. Ct., 624; 45 L. ed., 917); Wormley v. District of Columbia, 181 U. S., 402 (21 Sup. Ct., 609; 45 L. ed., 921); Shumate v. Heman, 181 U. S., 402 (21 Sup. Ct., 645; 45 L. ed., 922); and Farrell et al. v. West Chicago Park Commission, 181 U. S., 404 (21 Sup. Ct., 609; 45 L. ed., 924). In the Cass Farm Company case stress is laid upon the fact that it was a paving case, and not a street opening case. In the Detroit case, supra, attention is called to the facts that there was no disregard of the statute of the state and the ordinances of the city; that the matter had .been conducted in strict conformity to them as to notice and all else; and that there was no claim that the appellant’s property had been charged differently from that of the other landowners, nor “that the portion and share of the cost for making the improvements assessed against complainant’s property in point of fact exceeded the benefits accruing to such property by reason of such paving.” In all these respects the case we are dealing with is like the Detroit case. In the case of the Town of Tonawanda v. Lyon, 181 U. S., 389 (21 Sup. Ct., 609; 45 L. ed., 908), the supreme court of the Dnited States again held: “The apportionment of the entire cost of a street pavement upon the abutting lots according to their frontage, without any judicial inquiry as to their value or the benefits they receive, may be authorized by the legislature; and this will not constitute a taking of property without due process of law.” We call special attention to what the court says at p. 911, 45 L. ed. (p. 391, 181 U. S.; and p. 610, 21 Sup. Ct.): “What was claimed was that a state statute which directs municipalities to assess the whole expense of paving any highway therein upon the lands abutting upon the highway so improved in proportion to the feet frontage of such lands, without providing for a judicial inquiry into the value of.such lands and the benefits actually to accrue to them by the proposed improvement, is unconstitutional and void. And it was held by the court below that, notwithstanding the courts of .the state may have held otherwise, it was its duty to follow the decision of this court, in the case of Village of Norwood v. Baker, 172 U. S., 269 (19 Sup. Ct., 187; 43 L. ed., 443), which was regarded by the court below as establishing the principle contended for, and accordingly the defendants were enjoined from enforcing payment of the assessment. But we think that, in so understanding and- applying the decision in Village of Norwood v. Baker, the learned judge extended the doctrine of that case beyond its necessary meaning. It was not the intention of the court in that case to hold that the general and special taxing systems of the state, however long existing and sustained as valid by their courts, have been subverted by the fourteenth amendment of the constitution of the United States. The purpose of that amendment is to extend to the citizens and residents of the states the same protection against arbitrary state legislation affecting life, liberty, and property as is afforded by the fifth amendment against similar legislation by congress. The case of Village of Norwood v. Baker presented, as the judge in the court in the present case well said, ‘considerations of peculiar and extraordinary hardships,’ amounting, in the opinion of a majority of the judges of this court, to actual confiscation of private property to public use, and bringing the case fairly within the reach of the fourteenth amendment. The facts disclosed by the present record do not show any abuse of the law, nor that the burdens imposed on the property of the complainant were other than those imposed upon that of other persons in like circumstances; and it is obvious, from expressions in the opinion of the trial judge, that he reached his conclusion because constrained by what he understood to be the principle established by the Norwood case.” It will be observed that the court again distinguishes the Village of Norwood v. Baker case upon what it calls the “peculiar and extraordinary hardships” involved in that case. In this ease our sole duty is, without reference to which we think the better view between these two views, to ascertain what the holding of the supreme court of the United States is, and to follow it. We understand the supreme court of the United States to now hold two things: First, that the doctrine of Village of Norwood v. Baker is to be limited strictly to the peculiar facts of that particular case, as one in which the assessment was treated as an act of confiscation; secondly, that it is not a taking of private property for public use without compensation where the legislature, or a city exercising delegated legislative power, charges the cost of paving a sidewalk as a lien upon the abutting lots of different proprietors according to the “front-foot” rule, without limiting the cost of the improvements- by the special benefits received by such abutting lots, but that such levy is within the legislative discretion. The ease at bar is one involving many other persons besides Mrs. Wilzinski; she, indeed, appearing to be the only one objecting. It follows from what we understand to be the doctrine now announced by the United States supreme court that the action of the learned court below in overruling the demurrer to the bill was correct.

Affirmed, and remanded, with leave to answer in thirty days from the filing of the mandate in the court below.

Case Details

Case Name: Wilzinski v. City of Greenville

Court Name: Mississippi Supreme Court

Date Published: Nov 15, 1904

Citation: 85 Miss. 393

Court Abbreviation: Miss.