Cleveland v. Tripp

Duffee, C. J. The complainants, who are owners of lots abutting on North Main Street, in the city of Providence, and who, as such, have been assessed for the construction of a sewer in that street, under Pub. Laws R. I. cap. 313, § 4, of March 28, 1873, bring this suit to have the assessments set aside as void on the ground that section 4 of chapter 313 is unconstitutional. The section provides that all such assessments as are laid under-certain statutes, for the construction of sewers in the city of Providence, shall be made upon all estates abutting upon those portions of the streets or highways in which the sewers have been or may be constructed, at the rate of sixty cents for each front foot, and one cent for each square foot, extending back one hundred and fifty feet; provided that when the estates lie between two streets the assessments per square foot shall not extend to more than half the distance between the streets; and that, when an estate lies at a corner, it shall not be assessed more than once for each square foot and each linear front foot. The complainants contend that such a mode of assessment is unequal and unfair, and consequently unconstitutional. Their chief complaint *60 is that the assessments are not proportioned either to the benefits received or to the value of the estates assessed, but are mathematically determined by area and frontage. In this way, they say, an unimproved suburban lot may be more heavily assessed than an improved lot in the centre of the city, which has many times its value, and derives a vastly greater benefit from the improvement. They also call attention to the fact that certain streets in the eastern part of the city lie along a hillside, so that when a sewer is built in one of them, the abuttors on the lower side are much less benefited than the abuttors on the upper side, though there is no recognition of the difference in the assessments. It cannot be denied that these complaints are founded in fact. But the question is, Do they warrant our holding that the statute complained of is unconstitutional. The question is not new either in principle or form. In this State, however, the question is new in the precise form in which it now arises, though it is closely allied in principle to the question decided in 1857, in the case of Deblois v. Barker, 4 R. I. 445. That case involved the constitutionality of a statute, enacted in 1858, making abuttors liable for the cost of curbstones set in front of their lots. The court sustained the statute, being of the opinion that there was no practical unfairness in the mode of assessment. It is difficult to discover any essential distinction between that case and the case at bar. In other States it has been repeatedly decided that statutes authorizing assessments for sewers or other street improvements on the abutting lots according to their frontage, and without regard to value or benefit received, are constitutional and valid. Such assessments under statutes, or city ordinances authorized by statute, have been decided or recognized to be valid in Pennsylvania: Magee v. Commonwealth, 46 Pa. St. 358; Stroud v. City of Philadelphia, 61 Pa. St. 255; In re Washington Avenue, 69 Pa. St. 352, 361; in Indiana: Palmer v. Stumph, 29 Ind. 329; in Vermont: Allen v. Drew, 44 Vt. 174; in Ohio : Ernst v. Kunkle, 5 Ohio St. 520 ; Upington v. Oviatt, 24 Ohio St. 520; in Kansas: Parker v. Challiss, 9 Kans. 155 ; in Michigan: Motz v. City of Detroit, 18 Mich. 495; in New Jersey : State v. Fuller, 34 N. J. Law, 227 ; in Missouri: City of St. Louis v. Clemens, 49 Mo. 552; and in California: Emery *61 v. San Francisco Gas Co. 28 Cal. 345; Chambers v. Satterlee, 40 Cal. 497, 514; People v. Lynch, 51 Cal. 15. In Missouri, an assessment for a street improvement on abutting lots, according to tlieir area, has been held to be valid. City of St. Louis v. Oeters, 36 Mo. 456. And assessments according to acreage, for the construction of levees, have been held to be valid in both Missouri and Mississippi. See, also, Selby v. Levee Com missioners, 14 La. An. 434. In Michigan, however, assessments for street improvements according to area, not limited to abutting lots, have been held to be too clearly unequal to be sustained. We do not find any case in which, as in the case at bar, a combination of area and frontage has been made the basis of assessment ; but we think it clear that their combination, as they are here combined, rather adds to, than diminishes, the fairness of the assessment. The reasons given for decision in the cases above cited are two. The first is, that such assessments are a species of taxation, and the power of taxation is so high and sovereign a power, and withal so essential to the conservation and progress of society, that it ought not to be limited by judicial construction without strict necessity. The second is, that such an assessment, though theoretically more unequal than an assessment in the ratio of benefits received or than an ad valorem assessment, is nevertheless, in its practical operation, a very fair substitute for either of them, especially when it is considered that the improvements are intended to be permanent, and that present inequalities may be redressed by the changes of the future. It is admitted that these reasons are valid only in respect of improvements in the compact parts of large towns or cities; and that an assessment by front foot for a street improvement, extended to rural lots or farm lands, is so plainly unfair or extortionate that it cannot be sustained. Seeley v. City of Pittsburgh, 82 Pa. St. 360; Kaiser v. Weise, 85 Pa. St. 366. We confess that these reasons are not perfectly convincing. But the question is whether, reinforced as they are by so many precedents, they are not sufficient. The first reason is the stronger ; for, without doubt, the propriety of any given tax and the modes in which it shall be apportioned and assessed are legis *62 lative matters, with which the courts will not interfere unless the legislature has palpably transgressed some limitation of the Constitution. The complainants contend that the legislature here has so transgressed. ' But our Constitution is extremely latitudinarian. It contains no restriction except what is implied in the declaration that “ the burdens of the State ought to be fairly distributed ; ” and this declaration, as was said in In the Matter of Dorrance Street, 4 R. I. 230, 249, expresses no more than would be implied without it, “ from the fact of our free institutions and the general principles of constitutional law.” To entitle us to hold that the statute authorizing these assessments is unconstitutional, we ought to be satisfied, not only that fairer modes of assessment might be devised, but that the prescribed mode is indefensibly unfair; for in a matter of legislative policy, it will not do for the court to substitute their own judgment for that of the General Assembly, and to convict the General Assembly of fatal error simply because they differ from it in opinion. The complainants have found no case from any State having a Constitution like ours, in which such assessments have been declared void.. They cite cases from Illinois and Alabama in which such assessments were pronounced unconstitutional; City of Chicago v. Larned, 34 Ill. 203 ; Mayor, Aldermen, &c. of Mobile v. Dargan, 45 Ala. 310 ; but in Illinois the Constitution requires that assessments for corporate purposes shall be “uniform in respect of persons and property,” and in Alabama the Constitution requires that all taxes on property shall be “ in exact proportion to the value .of such property.” In Connecticut, in the case of Clapp v. City of Hartford, 35 Conn. 66, the court held that an assessment by frontage was unreasonable and could not be sustained, but they so held, not under the Constitution of the State, but under a city charter which required that assessments should be proportional, meaning, as the court thought, that they must be proportioned to the benefits received. The mere fact that a tax operates unequally does not make it void if it is not designedly oppressive and unfair. Cooley on Taxation, 125-128. The statute here was doubtless designed for the compact parts of the city, and it does not appear that it will be necessary to apply it elsewhere. The General Assembly must have known this, and, *63 knowing it, it probably supposed that the statute would generally operate equitably, and that, under tbe limitations prescribed in it, it would not lead to any serious injustice even in exceptional eases, while, at the same time, it would avoid the litigation incident to other modes of assessment. We are not prepared to say that in this the General Assembly committed any fatal error, though we think an assessment according to benefit would have been more unquestionably right. Even in the case of a hillside sewer, it is not clear that the benefit, even to the lower abuttor, will not be equivalent to the burden, if such equivalence is required. But we are not satisfied that such equivalence, except in some large and general way, as a matter of average, is required. If it were required, an assessment by valuation would often be more indefensible even than an assessment by area and frontage. The idea that a full equivalence is necessary rests on an assumption that the legislature has a right to compel a man to pay for benefits conferred what they are worth, whether he wants them or not, whereas we do not see how it can be deemed “ due process of law ” for the legislature to do this except under the power of taxation, the exercise of which is not, in our opinion, dependent for its justification upon any exact or full equivalence of benefit to burden, though doubtless a special tax without any special benefit, approximately equivalent as a general rule, would be too grossly unfair to be sustained. We are of the opinion that such assessments are to be regarded as a species of taxation, and that, with a view to them, a city may properly be subdivided into numerous tax districts, each made up of abutting lots or estates, because in that way the burden chiefly falls where the benefit chiefly accrues; and, regarding them in that light, we think it may be enough that a statute authorizing them is intended to be practically fair, and is not in fact oppressive in its operation. We therefore decide that the statute here, as applied in the compact part of the city, is constitutional, or is at least not so clearly unconstitutional that it is our duty to declare it void. The complainants make the further point that an assessment under the statute may bring in more money than is required for the construction of the sewer; they submit testimony to show *64 that this has happened in several instances, and they contend that the statute is unconstitutional on account of it. We think, however, it would be preposterous to hold the statute unconstitutional on that account, for the sewer could be readily made expensive enough to exhaust the proceeds of the assessment. But, though the statute is not unconstitutional on that account, it is doubtless true that the proceeds of the assessment must either be wholly expended on the sewer, or, if not so expended, the surplus must be held by the city ratably for the abuttors, and cannot be diverted to any purpose for which the city had no authority to raise it. The complainants also contend that the statute is unconstitutional because it does not direct any notice to be given of the assessment, and does not give any right of appeal by which errors in the assessment may be corrected. We presume the General Assembly considered the assessment so purely a matter of measurement and arithmetical computation, that no error of any moment was likely to occur, and that therefore no provision for notice or appeal was necessary. See Clapp v. City of Hartford, 35 Conn. 66, 80. Previously, under other forms of taxation-or assessment, it has been usual in this State to require notices to be given; but such notices, it has been held, are not essential to the validity of such a tax or assessment. Stuart v. Palmer, 17 N. Y. Supreme Ct. 23 ; McMicken v. Cincinnati, 4 Ohio St. 394 ; see, also, Allen v. City of Charlestown, 111 Mass. 123. It has been held by the Supreme Court of the'United States, that such an assessment without notice and without any right of appeal is not void for repugnancy to the provision of the Fourteenth Amendment of the Constitution of the United States, that no State shall “deprive any person of life, liberty, or property, without due process of law.” McMillen v. Anderson, 5 Otto, 37; Davidson v. New Orleans, 6 Otto, 97. It is enough, the court hold, if the person assessed has an opportunity to contest the validity of the assessment in some judicial proceeding after it has been made. We are not prepared, therefore, to pronounce the statute unconstitutional on this ground. Finally, the complainants contend that the assessment here is void because the statute under which it was made was passed after the sewer, to pay for which it was made, had been con *65 structed. The statute which was applicable when the sewer was constructed differed materially from the present in its methods and results. The present statute is, therefore, retrospective in its operation, and the question is, whether it is not unconstitutional on that ground. We do not think it is. Our Constitution does not inhibit retrospective legislation simply because it is retrospective ; and it bas been held that, in the absence of such an inhibition, a statute authorizing an assessment to pay for a local improvement previously made, on the estates specially benefited, is valid. Howell v. City of Buffalo, 37 N. Y. 267; Matter of Van Antwerp, 1 N. Y. Supreme Ct. 423 ; Butler v. The City of Toledo, 5 Ohio St. 225. The statute here is the less objectionable, because it was not designed for an isolated case, but creates a system for the whole city. Our conclusion is, that the complainants are not entitled to relief. We have reached this conclusion not without much hesitation, but in obedience to the rule that a statute duly enacted, however questionable it may be in point of constitutionality, is not to be pronounced void for unconstitutionality until the court is clearly convinced of it. Decree entered July 3, 1880, dismissing the bill, but without costs.