Kelly v. City of Pittsburgh

• Citation: 85 Pa. 170
• Parties: Kelly v. City of Pittsburgh.
• Decision Date: 07 January 1878
• Court: Pennsylvania Supreme Court

85 Pa. 170

Kelly v. City of Pittsburgh.

Supreme Court of Pennsylvania.

January 7, 1878

October 4, 1877

By the Act of April 6th 1867 the territorial limits of the city of Pittsburgh were extended and thereby embraced within its boundaries certain lands used only for farming purposes. These lands were taxed for municipal objects, from some of which, on account of the situation of the lands, they could not derive any benefit or receive any protection. Held, AGNEW, C. J., and STERRETT, J., dissenting that this tax was constitutional.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON, WOODWARD and STERRETT, JJ.

Appeal from the decree of the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1876 No. 172. In Equity.

The case was first argued on the 30th of October 1876, and this re-argument was subsequently ordered of the court's own motion.

It was a bill in equity, filed the 15th of August 1874, by James Kelly, against the city of Pittsburgh, to restrain said city from taxing the farm of plaintiff for city purposes, from which it derived no benefit, on the ground that such attempted exercise of the taxing power was in conflict with sect. 10, art. 1, of the Declaration of Rights of the Constitution of Pennsylvania. The bill, in substance, set forth, that plaintiff is the owner of a farm of 80 acres of land within the consolidated limits of the city of Pittsburgh; that the city, with the single purpose of increasing her revenues, and without any pretext of extending any municipal benefit of any kind to plaintiff, and against his will, through the aid of a portion of the citizens living in the new district, was instrumental in procuring an Act of the legislature (Act of April 6th 1867, Pamph. L. 846) extending the territorial limits of the city over and beyond his farm, with full knowledge that it was an improved farm occupied by the owner as fields, pasture and woodlands situated and adapted to farming or agricultural purposes only, and had always heretofore, and since, been used as such; that the said lands had never, nor have they as yet, been laid off in lots, streets or avenues, or city improvements of any kind made thereon, nor are they used or needed in any way for city purposes; that the city has not filled up her original limits, but that large quantities of vacant lands lie between the plaintiff's said lands and the inhabited portions of said city, and consequently the natural growth and developments in extension of said city have not, and the plaintiff believes will not for a generation to come, need or require any portion of the plaintiff's said lands for city purposes to accommodate her increasing population; that not one single city improvement, convenience, protection, regulation, water facility, road or street convenience, protection from fire, drainage, light or schools has been bestowed on said lands; that the plaintiff's farm, improved and now occupied as aforesaid, has received no benefits from the city whatever, and can derive none; that the city has never expended a dollar to enhance the value of the plaintiff's farm; nor does the plaintiff expect or require anything, as his farm is not needed for city purposes; that plaintiff has not himself appropriated his said lands to town or city purposes; has not laid them off into parcels or lots; has not opened streets thereon, nor invited nor held out inducements to any one to purchase, or settle on the same, for he does not wish so to sell, but to retain the same for his own use, and not divert it to any other purpose than as a farm; and until the natural growth and multiplication of numbers and extension, and reasonable business of the city shall require the use of his said farm for city purposes, he denies the right of the city to invade or interfere with his said premises, or require him to abandon the rural use thereof; that by the extension of the city territorial limits the character, situation and use of said lands were not changed, but remained an improved and occupied farm as before, and agricultural lands only, and therefore are not, in any sense, liable to municipal or city taxation for any purpose whatever; that, notwithstanding these facts, his said farm, and the few necessary improvements thereon, have been returned at an assessed value of $244,000, and the city has levied a tax thereon amounting to $2672.48 for the year 1874; that the greatest productive income or value of his said farm is $10 per acre, or $800 for the whole; of this sum $428.47 was paid for county and state taxes, the balance, $371.53, mainly required for necessary repairs, leaving said city taxes unpaid by any income or productive value of said farm, and which can only be paid by taking the farm or a portion thereof; that, if the said city is permitted thus to deprive him of his individual property through the taxing power, it is forcing him to surrender his property for the benefit of others; that no compensation has been given, none promised and none intended; that such exercise of the taxing power would be confiscation; that the attempt of the city to force city revenue for the purpose of making municipal improvements, not one of which has been extended or can be extended to plaintiff's land, is directly in conflict with the rights of plaintiff, guarded and protected by section 10, article 1, of the Declaration of Rights of the Constitution of Pennsylvania, which protection he invokes; that plaintiff applied to the Board of Revision for relief, and that his appeal was dismissed; that shortly after the Act of Consolidation extending the limits of the city of Pittsburgh, said city had some surveys made, fixing her boundaries and designating where streets might at some future day be made; and in this way plaintiff is informed and believes defendant surveyed his said lands, but with no intention at the time of occupying the same for city purposes or of making city improvements, for they are not required or needed for that purpose, and will not be for fifty years to come; and the plaintiff submits that this nominal exercise of municipal jurisdiction, unconnected with any protection or benefits, is not such an appropriation as justifies taxation for municipal benefits from year to year, when none of said improvements or benefits extend to or near the plaintiff's land; that said city is threatening to enforce the collection of said taxes, and, if not restrained, great injury and wrong will be done to said plaintiff.

The bill prayed that an injunction should be issued, restraining said city from again assessing or taxing the plaintiff's lands or farm, or from exercising any municipal jurisdiction over the same for raising city revenue, as long as said lands or farm shall be as they are in fact, farm or agricultural lands, and appropriated to such purposes.

The answer averred that said land, with the other portion of the city in that neighborhood, was laid off in streets and avenues by councils, by a plan approved in 1870; that immediately adjoining the south side of plaintiff's property squares of ground have been laid off in small lots, and dwelling and store-houses erected upon them; that plaintiff's land has the advantage of Frankstown Avenue, which has been graded and paved with wooden pavement to within a short distance of it; of Spencer Avenue, which has been graded, and runs along a portion of the north side of said land; of streets and avenues, graded and paved, running within a short distance of three sides of complainant's said land; of the city police, stationed in the immediate neighborhood; of water and gas, which run along Penn Avenue and within a stone's throw of complainant's land; of the New Water Works, now in course of construction; and of all the benefits and protection afforded to life and property by the municipal government; that the consolidation of 1867, under which complainant's property was brought into the city, has and will be for the benefit of the citizens of the annexed districts, including the complainant, and has and will appreciate the value of their property, including the said land of the complainant.

The bill and answer were referred to a master, T. McConnell Esq., to take testimony and report. In the facts found by him it appeared that the land remained substantially in the same situation as it was before the consolidation; that gas had not been extended to it, nor were the streets paved thereto; that the land was sufficiently watered by springs and wells thereon, and there was no need for the water from the city works; that there was no necessity for streets through the same, as the old roads afforded ample accommodation; that the fire department could not be made available on the land, and that no police visited the localities. He reported further:--

" Mr. Kelly does not want streets opened to or through his land; or to have them graded or paved, and he does not want water or gas. He desires to use his land as a farm, and to apply it to no city purpose. He alleges that for farming purposes his land needs no city improvements, and therefore it ought not to be taxed for them. He asks nothing from the city, and he wants it to ask nothing from him. He asks exemption from taxation for city purposes, on the ground that he is not interested in the objects to which the taxes are to be applied, and therefore gets nothing in return for the taxes. Mr. Kelly's land was, up to consolidation, in close proximity to the city. Its value, therefore, depended on the growth and prosperity of the city. As the city grew and prospered the value of this land increased, until it became very great. It was then brought into the city and made a part of it, but its value still continued to depend on the growth and prosperity of...