Rutherford v. Maynes

• Decision Date: 21 January 1881
• Citation: 97 Pa. 78
• Court: Pennsylvania Supreme Court
• Parties: Rutherford et al. <I>versus</I> Maynes.

97 Pa. 78

Rutherford et al.versusMaynes.

Supreme Court of Pennsylvania.

January 12, 1881.

January 21, 1881.

January 12th 1881.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY and STERRETT, JJ.GREEN, J., absent

Error to the Court of Common Pleas, No. 3, of Philadelphia county:Of January Term 1881, No. 132.

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J. M. Moyer(with whom was R. C. Garsed), for the plaintiffs in error.—The Greenwich Island Meadow Company is a quasi corporation erected for a public object, as well as for private interests.Where any considerable tract of land owned by different persons is in a condition precluding cultivation by reason of moisture and overflow, which embankments and drains would relieve, the public have an interest in the improvement.General taxation is admissible for this purpose, but the legislation which authorizes special assessments on the owners, has been sustained against all objections: Cooley on Taxation 424-427.The legislation in this case constitutes the owners, for the time being, members of the corporation, who elect their own managers for the inspection of the banks, and for levying the necessary assessments.The constitutionality of the Acts of 1760 and 1804, has never been seriously doubted, and the owners of the premises in question have always heretofore recognised the validity of the acts, and enjoyed the benefits.The assessments are not liens upon the land, but a personal charge on the owner or possessor, which may lawfully be collected by distraining goods found on the premises, whether they belong to the owner or tenant in possession.The land could not be sold to pay the tax.The supplementary Act of 1804, is not in violation of the Bill of Rights.It is neither an exercise of the right of eminent domain, nor taxation for private purposes.The legislature may confer upon municipal corporations the right to assess the cost of local improvements, in which the public welfare is interwoven, upon the properties benefited.It is a question of expediency, of which the legislature are the competent and exclusive judges: Hammett v. Philadelphia, 15 P. F. Smith 146; Sharpless v. The Mayor, 9 Harris 147;Henry v. Horstick, 9 Watts 412;Sharp v. Spier, 4 Hill 76; Pray v. Northern Liberties, 7 Casey 71;Beekman v. Railroad Co., 3 Paige Ch. 73;Hagar v. Supervisors of Yolo County, 47 Cal. 222, 223;O'Reiley v. Kankakee Valley Draining Co., 32 Ind. 169;Sessions v. Crunkilton, 20 Ohio St. 349;Whiting v. Lake, 9 W. N. C. 187.

George W. Thorn, for defendant in error.—Whatever may have been the condition of Greenwich Island a hundred and twenty years ago, when the Act of 1760 was passed, it does not in its present condition fall within the principle that applies to vast bodies of swamp lands, which in many states are detrimental to the public weal.It is a comparatively small tract, liable to be overflowed by the tides unless protected by banks.Such protection is purely for the benefit of the private owners, and the managers of the meadow company have no legal right to collect from one owner taxes for the general improvement of the whole tract.This authority, even if rightfully conferred by the Act of 1760, is in violation of the Bill of Rights, and repealed by the constitutions of 1790, 1838 and 1874: Rutherford's Case, 22 P. F. Smith 82; Washington Avenue, 19 Id. 352;City v. Scott, 31 Id. 80;City v. Field, 8 Id. 320;Philadelphia Association v. Wood, 3 Wright 73.

But even if constitutional, the acts would not warrant taking the property of a tenant, to pay taxes which had been levied prior to his occupancy.The act by its terms makes the "owner or possessor" liable, but the clear intent is, that it shall be the possessor at the time the tax was levied.It is sought in this case to make the present possessor pay the accumulated taxes for years previous to his possession, which the company failed to collect, and from which payment the present occupant derives no benefit.

Mr. Justice TRUNKEYdelivered the opinion of the court, January 21st 1881.

Greenwich Island, described in the preamble of the Act of 1760, as marsh, meadow and cripple land, partly drained and partly open to the overflowing of the tide, is the territory required by said act to be embanked and drained for the common benefit of the owners.That it is divided into a number of farms, with several owners; that the lands would be almost, if not altogether unfit for cultivation without embankment and drainage; that the statute provides a just mode for making the general improvements and keeping up the same, and for levying the costs thereof as between the owners, are uncontroverted facts.After the lapse of one hundred and twenty years, during which time the landowners have enjoyed the benefits of the statute, it should not be declared void but for imperative reasons.Indeed, the court below held it to be valid, and charged that if the assessments were made after the tenant went into possession, and the requisite notice had been given him, the jury could find for the defendant.But it was ruled that if the assessments were made before the tenant went into possession, he was not bound to pay them.

When any considerable tract of land, owned by different persons, is in a condition precluding cultivation by reason of moisture and overflow, which embankments and drains would relieve, the public have such an interest in the improvement, and the consequent advancement of the general interest of the locality, as will justify the levy of assessments upon the owners for the purposes of such improvements: Cooley on Taxation 424, and cases cited in note.No doubt general taxation is admissible for this purpose, but the special benefits from enhancements of values must accrue mainly to the owners of the lands, and legislation which imposes the costs upon those who, without the improvements, would be the principal sufferers, is probably in most cases wiser and better: Id. 427.When there is no consideration other than the improvement of land as property, the authority to levy such assessments is confined...