State ex rel. Egan v. McCrillis

• Decision Date: 01 February 1907
• Citation: 66 A. 301,28 R.I. 165
• Parties: STATE ex rel. EGAN v. McCRILLIS.
• Court: Rhode Island Supreme Court

66 A. 301

28 R.I. 165

STATE ex rel. EGAN

v. McCRILLIS.

Supreme Court of Rhode Island.

Feb. 1, 1907.

Case certified from Superior Court.

J. Wilson McCrillis was convicted for violation of a city ordinance, and appeals. The questions raised are certified by the superior court to the Supreme Court for its opinion. Ordered sent back with decision to the superior court for further proceedings.

Argued before DOUGLAS, C. J., and DUBOIS, BLODGETT, JOHNSON, and PARKHURST, JJ.

Albert A. Baker and Henry C. Cram, for complainant. Littlefield & Barrows, for defendant.

BLODGETT, J. The questions raised by the appellant in his reasons of appeal from a conviction in the police court of the city of Providence for a violation of section 33 of chapter 20 of the Ordinances of that city have been considered of such doubt and importance that they have been certified by the superior court to this court for its opinion thereon. The ordinance in question is as follows: "Sec. 33. The owner or owners, occupant or occupants, or any person having the care of any building or lot of land bordering on any street, square, or public place within the city, shall within the first four hours of daylight, after the ceasing to fall of any snow, cause the snow to be removed from the sidewalk adjoining said building or lot of land, and each and every hour after the expiration of said four hours that the snow shall remain on said sidewalk shall be deemed to be a separate violation of this section. The provisions of this section shall also apply to the falling of snow from any building." The questions certified by the court are: "(1) Whether an ordinance of the city of Providence, to wit, section 33 of chapter 20 of the Ordinances of the city council of said city, requiring owners and occupants of real estate to remove snow and ice from the sidewalks adjacent to such real estate under a penalty, was illegal and void because said city of Providence at the time of the passing of said ordinance had no power or authority under the laws of the state of Rhode Island to pass such an ordinance. (2) Whether said ordinance is contrary to article 1, section 2, of the Constitution of the state of Rhode Island, which declares that: 'Laws, therefore, shall be made for the good of the whole and the burdens of the state ought to be fairly distributed among its citizens.' (3) Whether said ordinance is contrary to article 1, section 16, of the Constitution of the state of Rhode Island, which declares that: 'Private property shall not be taken for public uses without just compensation.' (4) Whether said ordinance is contrary to the fourteenth amendment of the Constitution of the United States, which declares that: 'No state shall deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction equal protection of the laws.'"

It is clear that the city council had abundant authority to provide by ordinance for the clearing of the sidewalks in said city, as appears by clause 1 of section 9 of its charter, viz.: "The city council of said city shall have power to make laws, ordinances and regulations for the government of said city relative to * * * the streets, sidewalks and highways of said city, and to the ordering of the same to be made, and to amending, paving, cleaning and lighting the same." See, also, section 9, el. 2, and section 1, el. 1. It follows that this contention cannot avail the appellant.

It is next objected that this ordinance is repugnant to the provisions of article 1, § 2, of the Constitution of this state, as well as of article 1, § 16, thereof, which are as follows:

"Sec. 2. All free governments are instituted for the protection, safety, and happiness of the people. All laws, therefore, should be made for the good of the whole; and the burdens of the State ought to be fairly distributed among its citizens."

"Sec. 16. Private property shall not be taken for public uses, without just compensation."

The questions here raised are presented to this court for the first time, although similar questions have been raised frequently in other jurisdictions, and the decisions thereon are not uniform. Counsel for the appellant contends that the ordinance is invalid, and relies upon the cases of Gridley v. Bloomington (1878) 88 Ill. 554, 30 Am. Rep. 566, affirmed by a divided court (three justices dissenting) in Chicago v. O'Brien, 111 Ill. 532, 53 Am. Rep. 640, decided in 1884, and upon the case of State v. Jackman (1898) 69 N. H. 318, 41 Atl. 347, 42 L. R. A. 438, and the decision of the Court of Appeals of the District of Columbia in McGuire v. District of Columbia (1904) 24 App. Cas. D. C. 22, in support of his contention. The reasoning by which this conclusion is reached may be thus briefly summarized. The state imposes upon the municipalities the duty of constructing highways and of maintaining them in a safe condition for travel under a penalty for failure so to do, and also imposes a civil liability for damages for accident arising by reason of such neglect. This is a public improvement, and is also a public duty for which taxes are properly levied upon a taxing district, which may, indeed, include the whole municipality, or which may be limited to include only those whose property is specially benefited; but in either case the tax must be assessed upon the principles of uniformity and of equality. The sidewalks in a city are undoubtedly part of the highway, and the general duty of removing or rendering harmless the accumulations of snow and ice thereon constitutes a repair of a public highway and a public improvement as to which the same rules of equality and uniformity must be observed when a tax is to be levied therefor. Consequently, a requirement that each abutter shall be required to remove the snow and ice from the sidewalk in front of his premises, whatever their extent, and irrespective of their value, is a violation of this rule of uniformity and equality, inasmuch as it imposes a burden and creates a duty which does not bear on all citizens alike; nor equally upon all abutters, inasmuch as it is a uniformity of system only, and not a uniformity of result. The argument would seem to rest upon the postulate that "taxation must be uniform and equal," and this is doubtless true when it is so expressed in the Constitution; but it is not a fundamental maxim of government, limiting the Legislature, unless it is so expressed therein.

In Chicago v. O'Brien, supra, cited by the appellant, it was said (page 535 of 111 Ill. ) that: "In City of Chicago v. Larned, 34 Ill. 203, a case very elaborately argued by able counsel, the principle involved in the decisions of these cases was carefully considered, and it was held they could not apply here, that they were decided under Constitutions so materially different from ours that the same line of reasoning is not applicable to both." This statement is the more clearly apparent upon referring to the decision in Chicago v. Larned, where it appears by the opinion (page 268) that section 5 of article 9 of the Constitution of Illinois contained a provision requiring "such taxes to be uniform in respect to persons and property within the jurisdiction of the body imposing the same"; the court adding (page 275): "The framers of our Constitution have taken unexampled pains by these separate sections to affirm the principles of 'equality' and 'uniformity' as indispensable to all legal taxation whether general or local. Section five, supra, is believed to be peculiar to our Constitution, and manifests the great anxiety of its framers to place every possible species of taxation upon the only equitable basis conceivable, and is believed to be more stringent than any provision in any other state Constitution on the same subject." It is obvious, accordingly, that the decision in Chicago v. O'Brien was rendered in accordance with special requirements of the Constitution of Illinois. A similar consideration seems to have controlled the decision in State v. Jackman, 69 N. H. 318, 329, 41 Atl. 347, 348, 42 L. R. A. 438, in which the court refers with approval to the decision in State v. Express Co., 60 N. H. 219, 237, in which latter case the court said: "But this general principle of equality, which, independent of any constitutional provisions, underlies and forms the basis of all taxation, is enforced here by the provision of the Constitution that requires that 'all assessments, rates and taxes shall be proportional and reasonable.' It is not left to the discretion of the general court to determine what is equal and reasonable, and to impose such as they may consider equal, but any other than equal and reasonable taxes, rates, and assessments are prohibited; and the equality intended is 'that the same tax shall be levied on the same amount of property in every part of the state, so that each man's taxable property shall bear its due proportion of the tax according to its value.' 4 N. H. 568." The remaining case cited by the appellant is McGuire v. District of Columbia, 24 App. Cas. D. C. 22, in which an act of Congress passed in 1904 and applicable to the District of Columbia, because of certain inequalities and exceptions therein, was thus characterized by the court: "We find only one section in it, that which repeals the act of 1897, which does not in some way contravene the principles of common right and the fundamental law." The court, continuing (page 31): "The act is entirely destitute of any provision for the removal of snow and ice from the sidewalks of adjoining improved property that happens to be vacant or untenanted at the time, and this class of property and its owners escape all liability under the act. This exemption or omission, whichever we call it, would be fatal to the act, even if there were no other defect, for the duty required to be performed is one which requires the most absolute uniformity with respect to all property within...