City of Scranton v. Pennsylvania Coal Co.

Mr. Justice Gordon delivered the opinion of the court, April 14, 1884. The contention in the case before us has its origin in a scire facias issued on a municipal claim, filed on behalf of the city of Scranton, against certain lands of the defendant below abutting on Washington Avenue in said city. This avenue or street was laid out, opened and graded under the provisions of the Act of the 3d of April, 1872, entitled “an Act to extend certain avenues in the city of Scranton,” and its supplement of the 17th of April, 1873. This Act provided for the appointment, by the Court of Quarter Sessions of Luzerne county, of five commissioners, two of whom should be citizens of the borough of Duñmore, who were authorized to view, lay out and extend either Wyoming, Washington or Adams avenue from Vine street in the city of Scranton, to the Philadelphia and Great Bend turnpike in the borough of Dunmore. These extensions were to be so laid out as to connect them with those parts of the avenues above named then opened and graded, in order to make them continuous highways between the terminal points fixed by the aforesaid Act of the General Assembly. It was further provided by the 6th section of said Act, “ That as soon as- the grading of said avenues is completed, or the cost thereof is accurately ascertained, it shall be the duty of the said supervisors,” created by the previous section, “ to equitably apportion and assess the same on the property or lots fronting on and adjoining said avenues.”..... “ And unless lots are otherwise defined and laid out by the owners, forty feet front and one half of the block in depth [449] shall be taken to be a lot, except corner lots, which shall be taken as fifty feet front, and the same depth as others.” It would thus seem that at the time of the passage of this Act, the city of Scranton and the borough of JDunmore were separate municipalities, and that the avenues mentioned were designed to extend from the one to the other, and it further appears, not only from the evidence but also from the verdict, that much of the land, including that of the defendant, through which Washington avenue was extended, was rural and used only for agricultural purposes. Now, it is contended by the counsel for the plaintiff, that the assessment made upon the defendant’s land, and for which the lien was filed, having been made under the above recited sixth section, it is extra the previous decisions of this court, in that the foot front rule is not here applied, but instead thereof an equitable apportionment and adjustment of the cost of the grading among and upon the several properties abutting upon the said street. But, in the first place, we are not convinced that this is a proper interpretation of the Act. If the foot front rule was not in some shape to be an element-in the proposed assessment, we cannot understand why a measure of forty feet was arbitrarily adopted as a lot front notwithstanding no subdivisions whatever had been made by the proprietors of the lands. Why, for instance, was the farm land, of the defendant to be thus cut up for taxation, unless these subdivisions were to be assessed in the proportion that each of their fronts bore to the whole length of the avenue ? Under any other hypothesis than that just indicated, the question here put is certainly not of easy solution. Passing, however, this phase of the case, we are yet at a loss to understand how the mere method of assessing the cost of grading the street can affect the principle here involved. In the Washington Avenue Case, 19 P. F. S., 352, the assessment was not on the basis of the foot front rule, but by the acre, yet not the less was the Act condemned which authorized it. It is the-vicious principle of compelling certain farm lands, to the exclusion of others, to pay for an improvement which to them, as farm lands, is of no more benefit than to the general public,, that has met with the reprobation of this court; the singling-out from a community certain persons, and compelling them to shoulder a burthen which should be borne equally by all the taxables of the municipality; the imposition upon one man of the cost of a public improvement, and that merely on the ground of the accident of proximity. But we need not discuss this matter at greater length, for it does not enter into this case. The learned attorney for the plaintiff seemed to have forgotten that the assessment was [450] made under the supplement of the seventh of April, 1873, and that if there ever was any doubt as to the proper construction of the Act in this particular, it was resolved by the language of this supplement. By it some material alterations were made in the previous statute, inter alia, the number of persons constituting the board of commissioners was raised from five to seven; these commissioners were authorized to open, extend, and grade other streets and avenues as though included in the previous Act, and were to make the assessments necessary to cover the cost of grading. The manner in which they were to perform this duty is thus specified in the 6th section of the supplement: “ That as soon as the cost of opening and grading the avenues and streets for public travel is ascertained from the proposals accepted, the same shall be justly and equitably apportioned and assessed on each lot fronting on the avenues and streets to be opened and graded by said commission, so that the cost shall as nearly as practicable to distribute it, be borne equally by each lot.” Here we see that the assessment is to be made, as it in fact was made, in no other way than by the lot, and as we have previously seen, where along said streets farm lands occur, which have not as yet been subdivided by their owners, forty feet front is to be regarded as a lot and assessed accordingly. Thus it appears that the just and equitable apportionment is to be made, not upon the lots according to their relative values, but according to their frontage. We thus have strictly and literally an assessment and taxation by the foot front rule, a rule which, when applied to rural property, has met with the emphatic condemnation of this court in a number of cases, among others, the Washington Avenue Case, above cited: Seely v. Pittsburgh, 1 Norris, 360; Craig v. Philadelphia, 8 Norris, 265, and the City v. Rule, 12 Norris, 15. The material point raised in the court below being thus disposed of, we need not consider the assignments of error seriatim. The learned Judge of that court clearly and positively instructed the jury that if they found the property charged with the lien to be farm land, and that it was used for farming purposes only, their verdict should be for the defendant, and if, on the other hand, it was not rural or farm property the plaintiff was entitled to recover. Thus the jury in determining for the defendant also determined the character of the land charged, and so, without regard to the questions which incidentally arose during the trial, definitely settled the controversy between the contestant parties. The judgment is affirmed.