Hammett v. City of Philadelphia

• Citation: 65 Pa. 146
• Decision Date: 11 May 1869
• Court: Pennsylvania Supreme Court
• Parties: Hammett v. Philadelphia.

65 Pa. 146

HammettversusPhiladelphia.

Supreme Court of Pennsylvania.

March 15, 1869.

May 11, 1869.

July 2, 1869.

March 15th 1869.

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Error to the District Court of Philadelphia: No 152, to January Term 1869.

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C. Guillou and Porter, for plaintiff in error.—The improvements contemplated by the Act of Assembly and the ordinance are not the usual public improvements, but special improvements.An act shifting the expense of making these improvements from the city to individuals is not legislation, but a decree: Sharpless v. Philadelphia, 9 Harris 168.

The principle which lies at the root of all the decisions that property-holders shall pay for paving before their lots, is that all owners shall do in front of their estates what is necessary to give the usual highway privileges to the public, the same privileges as have heretofore been given on other avenues, and as are to be expected hereafter in streets to be opened, not for general public improvements.This act and ordinance allows different kinds of improvements in different places.This act gives the councils power to discriminate as between different property-holders.The legislature cannot delegate her power of legislation: Parker v. Commonwealth, 6 Barr 507.The Commonwealth cannot alienate her power of taxation: Mott v. Penna. RailroadCo., 6 Casey 1; Gault's Appeal, 9 Casey 100.Broad street is ordained to be "a public drive" for the enjoyment of the people in general and the duty of maintaining it is by this act and ordinance thrown on individuals.Broad street is already improved by paving within the limits of the plaintiff in error; the act applies to such parts as are not so improved.The paving has already been done at individual expense, any change is but repairing, which the city should do.

W. McMichael and D. W. Sellers, for defendant in error.— Acts imposing the cost of opening and paving highways, on owners of ground fronting thereon, are within the power of the legislature: McMasters v. Commonwealth, 3 Watts 292; Hancock Street, 6 Harris 26;Commonwealth v. Woods, 8 Wright 113.The mode and kind of paving is wholly for the judgment of the councils of the city, and if this is so, the exercise of that discretion is not the subject of judicial review.The principle is, that all questions not arising in the course of the common law, and the decisions of which have been committed to a special tribunal, are outside of the jurisdiction of the courts, unless the same be expressly conferred.

The opinion of the court was delivered, May 11th 1869, by SHARSWOOD, J.

It may be considered as a point fully settled and at rest in this state, that the legislature have the constitutional right to confer upon municipal corporations the power of assessing the cost of local improvements upon the properties benefited.It is a species of taxation; not the taking of private property by virtue of eminent domain.It was decided in McMasters v. Commonwealth, 3 Watts 292, that in the opening of streets in a town or city, the damage occasioned to some of the lots might be apportioned and assessed upon others in the neighborhood improved in value thereby.It is there assumed, as a well-settled principle, employing the words of Chancellor Walworth in Livingston v. New York, 8 Wend. 85, that when any particular county, district or neighborhood is exclusively benefited by a public improvement, the inhabitants of that district may be taxed for the whole expense of the improvement and in proportion to the supposed benefit received by each.The conclusion seemed logically to follow; for, if a county, district or town can be assessed for a public improvement on the ground that they are particularly benefited, there can be no constitutional reason to exempt an individual from assessment on the same principle.It becomes a mere question of expediency, of which the legislature are the competent and exclusive judges, and not of right.This doctrine is again asserted in Fenlon's Petition, 7 Barr 173; and in the subsequent case of the extension of Hancock street, 6 Harris 26, the constitutionality of such an exercise of the taxing power was declared to be no longer an open question.

On the same principle the validity of municipal claims assessing on the lots fronting upon streets their due share of the cost of grading, curbing, paving, building sewers and culverts, and laying water-pipes, in proportion to their respective fronts, has been repeatedly recognised, and the liens for such assessments enforced: Pennock v. Hoover, 5 Rawle 291; The Northern Liberties v. St. John's Church, 1 Harris 104; The City v. Wistar, 11 Casey 427;The Commonwealth v. Woods, 8 Wright 113;Magee v. The Commonwealth, 10 Id. 358;Wray v. The Mayor, &c., of Pittsburg, Id. 365.

These cases all fall strictly within the rule as originally enunciated — local taxation for local purposes — or, as it has been elsewhere expressed, taxation on the benefits conferred, and not beyond the extent of those benefits.There is, indeed, no clause in the Constitution of Pennsylvania which restricts the power of taxation in the legislature as is to be found in the constitutions of many of our sister states.Yet it must be confessed that there are necessary limits to it in the very nature of the subject.It is very clear that the taxing power cannot be used in violation of provisions in the Bill of Rights, everything in which is "excepted out of the general powers of government, and shall for ever remain inviolate."There is no case to be found in this state, nor, as I believe after a very thorough research, in any other — with limitations in the Constitution or without them — in which it has been held that the legislature, by virtue merely of its general powers, can levy, or authorize a municipality to levy, a local tax for general purposes.I shall have a word to say presently of two or three of our cases which are supposed to countenance such an idea.It may be shown logically, and that without difficulty, that such a doctrine lands us in this absurd proposition: That the whole expenses of government, general and local, may be laid upon the shoulders of one man, if one could be found able to bear such a burden.A conclusion so monstrous shows that the premises must be wrong.Such a measure would not be taxation, but confiscation.That can only be the consequence of attainder for crime, and not even then to its full extent, for there can be no forfeiture of estate to the Commonwealth except during the life of the offender.It is well remarked by Chief Justice Robertson, of Kentucky, under a constitution without restraint on the legislative power of taxation: "An exact equalization of the burden of taxation is unattainable and utopian.But, still, there are well-defined limits within which the practical equality of the constitution may be preserved, and which, therefore, should be deemed impassable barriers to legislative power.* * The legislature, in the plenitude of its taxing power, cannot have constitutional authority to exact from one citizen, or even one county, the entire revenue of the whole Commonwealth.Such an exaction, by whatever name the legislature might choose to call it, would not be a tax, but would undoubtedly be the taking of private property for public use, and which could not be done constitutionally without the consent of the owner or owners, and without retribution of the value in money:" Lexington v. McQuillan's Heirs, 9 Dana 513."A legislative act," says Chief Justice Beasley, of New Jersey, "authorizing the building of a public bridge, and directing the expenses to be assessed on A., B. and C., such persons not being in any way peculiarly benefited by such structure, would not be an act of taxation, but a condemnation of so much of the money of the person designated to a public use:" The Tide-water Company v. Carter, 3 C. E. Green 518."The whole of the public burden," says Chief Justice Black, "cannot be thrown on a single individual under pretence of taxing him, nor can one county be taxed to pay the debt of another, nor one portion of the state to pay the debts of the whole state.These things are not excepted from the powers of the legislature, because they did not pass to the Assembly by the general grant of legislative power.A prohibition was not necessary.An Act of Assembly commanding or authorizing them to be done, would not be a law, but an attempt to pronounce judicial sentence, order or decree: Sharpless v. The Mayor of Philadelphia, 9 Harris 168.It is said that the line of distinction between the right of taxation and the right of eminent domain is clear and well defined.Taxation exacts money or services from individuals, as and for their respective shares of contribution to any public burden.Private property, taken for public use by right of eminent domain, is taken not as the owner's share or contribution to a public burthen, but as so much beyond his share: The Peopleex rel. Griffin v. Brooklyn, 4 Comst.419.It has been said by Judge Field, of California, now on the bench of the Supreme Court of the United States, that "money is not that species of property which the sovereign authority can authorize to be taken in the exercise of its right of eminent domain.That right can be exercised only with reference to other property than money, for the property taken is to be the subject of compensation in money itself; and the general doctrine of the authorities of the present day is, that the compensation must be made, or a fund provided for it in advance:" Burnett v. Sacramento, 12 California 76.I am not able, and do not feel disposed to enter the lists upon such a question, but it does seem to me that there may be occasions in which money may be taken by the state in the exercise of its transcendental right of eminent domain.Such would be the case of a...