State v. McMahon

• Decision Date: 24 July 1903
• Citation: 76 Conn. 97,55 A. 591
• Parties: STATE v. McMAHON.
• Court: Connecticut Supreme Court

55 A. 591

76 Conn. 97

STATE

v. McMAHON.

Supreme Court of Errors of Connecticut.

July 24, 1903.

Case Reserved from Court of Common Pleas, New Haven County; Julius C. Cable, Judge.

Prosecution by the state against Matthew McMahon for violation of a city by-law requiring removal of ice and snow from sidewalks abutting defendant's premises. Demurrer to the information reserved for the advice of the Supreme Court. Overruled.

Cornelius J. Danahcr, for accused.

Robert J. Woodruff, Pros. Atty., for the State.

HAMERSLEY, J. The common council of the city of Meriden passed a by-law containing the following provisions:

"Sec. 7. Whenever the sidewalk fronting or adjoining any lot of land in the city of Meriden shall be wholly or partially covered with snow or ice, it shall be the duty of the owner or occupant of such building or lot of land, or persons having charge, thereof, to cause said sidewalk to be made safe and convenient * * * by removing said snow or ice therefrom within six hours after the accumulation of the same thereon or in the case of ice, by covering the same with sand or other suitable substance, the same to be done within six hours after the accumulation of said ice. * * *

"Sec. 8. Any person failing or neglecting to comply with the provisions of the foregoing section shall forfeit and pay a fine of $10 to the treasurer of the city for the use of the city, and any failure or neglect to comply with the provisions of said section shall be a misdemeanor, and it shall be the duty of the city attorney to prosecute any person so failing and neglecting to comply therewith."

The Legislature authorized the common council of the city of Meriden to enact by-laws "to compel the occupant, persons in charge or owners of lands or buildings to remove snow and ice from the sidewalks and gutters in front of such land or buildings and to keep such sidewalks safe for public travel." to impose fines for violation of such by-laws, and prescribe the mode of enforcing the fines by action of debt, or by prosecution as in case of misdemeanor. 8 Sp. Laws, p. 307, § 17; Sp. Laws 1879, p. 147. This is a prosecution by the city attorney for a violation of the provision of said by-law above quoted. The defendant demurred to the information on two grounds only—because said by-law is vague and indefinite, and because the by-law is in violation of the Constitution, state and federal, and therefore void. The case is reserved for the advice of this court as to what judgment should be rendered upon this demurrer.

The offense for which the defendant is prosecuted is not described in the by-law in terms so vague and indefinite as to render it for mat reason invalid.

The other ground of demurrer presents this question: Does the Legislature, in enacting a law which makes it the duty of al! inhabitants of a city, being owners or agents of owners of land abutting on sidewalks within the city limits, to aid in keeping those sidewalks safe for the common use by removing or otherwise rendering harmless accumulations of snow and ice on the sidewalks in front of their respective premises, violate any constitutional provision? It is true, as claimed by the defendant, that this question, in its present form, is now presented to us for the first time. But we think that the trend of our decisions in cases involving similar considerations leads naturally, if not necessarily, to a negative answer. State v. Wordin, 56 Conn. 216, 226, 14 Atl. 801; Levick v. Norton, 51 Conn. 461, 469; Yale College v. New Haven, 57 Conn. 9, 17 Atl. 139; Lewis v. New Britain, 52 Conn. 568; Hartford v. Talcott, 48 Conn. 525, 534, 40 Am. Rep. 189.

We are referred to decisions in other states where such legislation has been held void. Ottawa v. Spencer, 40 Ill. 211; Gridley v. Bloomington, 88 Ill. 554, 30 Am. Rep. 566; State v. Jackman, 69 N. H. 318, 41 Atl. 347, 42 L. R. A. 438. The argument which leads to such a conclusion would seem to be this: The state imposes upon cities the duty of constructing and maintaining in condition safe for public travel highways within their limits. It punishes a neglect of this duty by appropriate penalties, including a liability to pay damages to a person injured by means of a defect in a highway existing through such neglect. The repair as well as the construction of highways is a public improvement, and contributions by individuals for that purpose through enforced labor or payment of money is a tax. Such tax may be collected from a limited faxing district, including those only whose property is specially benefited by the public improvement, or from a taxing district including the whole city, but in either case the tax must be laid upon a principle of uniformity and equality. Sidewalks are a part of the highway, and cannot be distinguished, in respect to their construction, maintenance, and care, from the rest of the highway. The general duty of maintaining highways in a condition safe for public travel has been construed as including the duty of removing or rendering harmless accumulations of snow and ice upon sidewalks. Therefore such removal is a repair of a highway and a public improvement, for which no individual can be taxed, unless upon a principle of uniformity and equality. Requiring each owner of land abutting on a sidewalk to remove the snow and iff accumulated on the walk in front of his premises is a violation of this principle, whether the requirement be regarded as an assessment for special benefits or as a general tax. Even if the requirement to remove snow and ice from a sidewalk cannot be regarded as a tax, yet it is certainly a burden, and a purely public burden cannot be laid upon a private individual, except as authorized in cases to exercise the right of eminent domain by virtue of proper proceedings to enforce special assessments or special taxation. Chicago v. O'Brien, 111 Ill. 532, 53 Am. Rep. 640. As an exercise of the right of eminent domain, the requirement takes private property for public use without compensation. Moreover, the requirement imposes a burden and creates a duty which does not bear on all citizens alike, and violates the principle of impartial equality which pervades the Constitution. State v. Jackman, 69 N. H. 318, 41 Atl. 347, 42 L. R. A. 438.

In deference to the high character and acknowledged authority of the courts which have taken this view, we have carefully considered these decisions, but we cannot accede to all the assumptions on which the conclusion reached seems to be founded. The Constitutions of the states where this view is taken contain provisions adopting as a fundamental maxim some theory of uniformity and equality in taxation, and purporting to limit the field of taxation by requiring all laws imposing taxes to conform, in respect to the subjects of taxation, the modes of valuation, and stress of the tax, to this theory of uniformity and equality. Our own Constitution contains no such provisions. On the contrary, it distinctly secures the right of the people to tax themselves through their representatives, and recognizes the duty of exercising the power of taxation wisely and only for the public good, as a legislative duty for the performance of which the General Assembly is responsible to its constituency, and recognizes the power of considering the conditions of population or property, the theories and maxims of political economy or moral philosophy which may affect taxation, and of determining what, on the whole, is a wise and fair mode of distributing the burden, as a legislative power which the judicial department is by express provision forbidden to exercise. Nor is the aphorism, "Taxation must be equal and uniform," embodied as a fundamental maxim in the United States Constitution, restricting the...