Appeal of the Protestant Orphan Asylum

Mr. Justice Gordon delivered the opinion of the court, January 4th, 1886. The Act of the 13th of May, 1871, Avas evidently devised for the purpose of avoiding the constitutional prohibition against unequal taxation aiid to render as far as possible ineffectual the blow struck at this kind of taxation in the case of Hammett v. Philadelphia, 15 P. F. S., 146. The twelfth section of this Act provides as follows: “ Whenever the councils [143] of the said city of Pittsburgh shall desire to re-pave or re-grade any street, lane or alley, or parts thereof, either with the same or improved kind of paving, and the cost of the original grading or paving was paid by the property holders, it shall be the duty of the said councils to refer the petition therefor to the viewers appointed in pursuance of this Act, who shall inquire and report to councils whether the improvement is of local or general benefit, or partly local; and if they shall report that it was in whole or in part local benefit, they shall designate the district to be benefited thereby, and the proportion to be paid by the district benefited.” Here we see that the viewers have the power to carve out arbitrarily a district from the general municipality that shall, in whole, or in part, bear the burthen of the proposed alteration or repair. This involves a principle of taxation that we refused to acknowledge in the cases of the Washington Avenue 19 P. F. S., 364 and the Saw-mill Run Bridge 4 Nor., 169; it is utterly vicious, and can be sustained by no authority. • That any part of a municipality should be arbitrarily set apart by a board of viewers, and specially taxed for an improvement which, like Tenth street, belongs to the whole of it, is a proposition involving so gross a perversion of constitutional right that it will not bear discussion. The 14th section then provides, that this “local assessment” shall be apportioned among the property of the district designated, in proportion to the benefits supposed to be conferred by the proposed improvement upon the said property. Here we have another step in the direction of arbitrary and unconstitutional taxation. The viewers, without any fixed rule, but according to their own notions as to what the property owner ought topa3r, are to apportion the tax as they may think proper. Thus, we. have first, the uncertainty as to what the district shall be, and, second, of the amount of the tax, and both are made to depend upon the judgment of a board of viewers. The Constitution provides that, “ all taxes shall- be uniform, upon the same class of subjects, within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws.” Now, the class of propert3r dealt with b3r the Act of 1871 is real estate, but the taxation is not uniform within the city of Pittsburgh, the taxing authority, but local and special; some property. being burthened with the whole cost of the repairs necessary for this public highway, and the rest wholly exempted. Moreover, as we have already pointed out, there is no legal rule or uniformity either for the creation of the district to be taxed, or for the assessment of the property within said district; but these matters, so momentous to the tax-payer, are committed to the judgment of an irresponsible commission. [144] specially created for the purpose. Than this, the foot-front rule is altogether better, at least in the way of uniformity; under it the'district is limited to the street proposed to be improved. and the tax is assessed equally upon every foot of land adjacent to such street. We have thus certainty and equality established by a fixed rule of law, both of which are wanting in the Act under consideration. We admit that the Legislature has the right to confer upon municipalities the power to assess the cost of local improvements upon the properties benefited thereby. We can readily understand why the cost of constructing and maintaining a sewer, which is designed for the drainage of a particular street or locality, and which is essentially necessary for the health, comfort and convenience of the inhabitants dwelling along such street, or in such locality, should be assessed upon the property of the district thus benefited, for the improvement as well as the use is local, and the benefit to the public is but secondary. So with a sidewalk, without which a house in a town or city^ cannot be said to be finished; and though the public has the right of way over it, the greater benefit results to the property itself. But when we come to a street or other highway7, which is primarily designed,not for the use or welfare of the inhabitants of any particular locality, but for the public at large, the case is very different. It then becomes utterly unjust to‘charge the cost of what is purely a public improvement, designed exclusively for the general welfare, upon the property of a few individuals, who, however they may be incidentally benefited, have neither-been consulted, nor their profit nor convenience regarded. Under such circumstances we cannot agree to proceed a single step beyond what is warranted by the case of Hammett v. Philadelphia. There is some show of reason why the original cost of grading and paving a street in a populous municipality should be charged upon the adjacent property, for it receives from the improvement some benefit of a local character, but when this is done it has fully .paid for all its local advantages, and it cannot thereafter be charged for maintenance and repairs. Much has been said in the attempt to weaken the force of the point ruled in Hammett v. Philadelphia; as that Broad street was intended for a great public drive, and that thus was given to it a character not attaching to ordinary city highways. But all this is sound without substance. The question, and the only question, before the court was the constitutionality of the Act imposing the cost of repaving Broad street on the adjacent property, and this matter is thus disposed of by Mr. Justice Sharswood : 11 But when a street is once opened and paved, thus assimilated with the rest of the city and made part of it, all the particular benefits to [145] the locality derived from tbe improvements have been received and enjoyed. Repairing streets is as much a part of the ordinary duties of the municipality, for the general good, as cleaning, watching and lighting. It would lead to monstrous injustice and inequality should such general expenses be provided for by local assessments.” This disposes effectually of the case in hand, for it leaves no room for the imposing of any part of the expenses of repairing on the lot-owner. Indeed, the principle involved is precisely the same whether the whole, one half or one quarter of such expenses be imposed on the abutting propertjq for if the lesser amount may thus be charged so may the greater, and so the Act of 1871 contemplates; for whether the one or the. other shall be so charged is left to depend upon the discretion of the board of viewers. The decree of the court below is now reversed and set aside, together -with all previous proceedings which in any manner charge the petitioners with any part of the costs of re-pav- ' ing Tenth street. Further ordered, that the appellees pay the costs of this appeal.