In re Vacation of Centre Street

Mr. Justice St.ee,rett delivered the opinion of the court January 31st, 1887. In his opinion sustaining the exceptions and setting aside the report of the jury, the learned judge says: “The Act of April 21st, 1858, which makes it the duty of juries, selected to assess damages for opening, widening and vacating streets, to assess and apportion the damages against such owners of land as shall be benefited thereby, is deficient in not directing the jury to specify the property benefited, so that the benefits may be collected out of that property. There is no personal liability for taxes of that nature.” In thus virtually declaring' the Act inoperative and void, and thereby depriving plaintiff of the remedy given him by the provisions thereof, we think the learned judge was clearly wrong. The Act makes it the duty of the jury “to ascertain and report to the court: first, what damages the parties claiming the same are entitled to; and second, to assess and apportion the same among and against such owners of land as shall be benefited by such opening, widening and vacating any such road or street, and when such report shall be affirmed by the court upon notice to all such parties, and the damages paid or secured by the parties among and against whom it shall be so assessed and apportioned, the chief commissioner of highways shall proceed to open, widen or vacate such road or street [252] accordingly; Provided however, it shall be lawful for councils, when in their judgment the public interest requires it, to provide for the payment of such damages out of the city treasury.” It may as well be remarked, in this connection, that inasmuch as councils have made no provision for paying any damages in this case, the city is not interested in the controversy and has no standing in court. Plaintiff's claim is under the Act above quoted for damages he sustained by the vacation of a portion of Centre street. As to such claims, the Act has never been modified or repealed and is therefore in full force, unless, as the learned judge appears to think, it was an abortive attempt to provide a remedy for persons damaged in property by the vacation of streets. The report of the jury conforms strictly to the requirements of the statute. They find that, in consequence of the vacation of Centre street, plaintiff’s land “has received special damage, over and above any which may have been received by it in common with the adjoining land in general, in the amount of seven hundred dollars; and further, that the land owned by the Pennsylvania Schuylkill Valley Railroad Company, in the locality of said portion of said street, has received special benefit from said vacation over and above any benefit which may have been received by it in common with neighboring lands in general, in an amount not less than seven hundred dollars.” They further find that no other land than that of said railroad company has received any special benefit from said vacation, and report “ that in their opinion the said claimant is entitled to the sum of seven hundred dollars, and they assess and apportion the whole of said sum against the Pennsylvania Schuylkill Valley Railroad Company.” It appears in the report of the jury that, on hearing before them, defendant railroad company declined to consider the question of damages to be awarded to plaintiff, or the amount of benefits that should be assessed against it, and rested its defense solely on the broad ground that the law does not authorize any assessments of benefits, for the purpose of paying damages occasioned by the vacation of a street. But, as we have seen, the Act of 1858 does, in express terms, authorize such assessments; and, the only question worthy of consideration is whether it was within the scope of legislative power to provide the remedy given by the Act. We have no doubt it was. The assessment of special benefits for the purpose of raising a fund to pay those who have been damaged by the opening, widening or vacation of streets, has long been recognized, in this state and elsewhere, as a species of taxation and therefore within the power of the legislature. To hold other [253] wise would overthrow the general system of street improvements in operation in our principal cities and towns. There is no difference, in principle, between cases of opening and those of vacating streets. Property fronting on a street may be either damaged or benefited by the one as well as the other; that is to say, while one piece of property may be injured, another may be specially benefited, even to a greater extent. In the present case, for considerations of public convenience or advantage, that portion of Centre Street, between' High and Main streets, was duly vacated by order of court; and the fact is conclusively established by the finding of the jury that while plaintiffs’ property was thereby damaged to the extent of seven hundred dollars, that of the railroad company was specially benefited to at least an equal extent, and that no other property was specially benefited. Municipal assessments for grading, paving, opening, widening or vacating streets, and other purposes for which, within proper limits, they may be authorized, are referable solely to the taxing power. Indeed there is nothing else upon which they can be sustained: McMasters v. Commonwealth, 3 Watts 292; Washington Avenue, 69 Pa. 352, 360; Seely v. Pittsburgh, 82 Pa. 360, and other cases recognizing the same principle. In Washington Avenue, supra, the system of assessing benefits is spoken of as “Simply a new development of that principle of local taxation, before mentioned as undisputed, which assesses on property benefited, or its owner, a tax in proportion to the superadded value of the property caused by the local improvement of which this property has a peculiar advantage beyond that of others not in like circumstances. .....The exercise of this power of assessments for benefits is not by way of eminent domain, in the usual sense of that term, for it is not a taking at all, followed by compensation for the taking, but a special mode of taxation whereby those benefited more, pay more and those benefited less pay less. It is thus special as contradistinguished from general taxation, and not special as making one man pay all, or more than his just proportion of a common burden......Taxation, according to benefits received, is neither unequal nor unjust, and cannot therefore come in conflict with these clauses in the Bill of Rights which regard as sacred the right of private property. So long therefore as the law faithfully and reasonably provides for a just assessment according to benefits conferred and does not impose unfair and unequal burdens, it cannot be said to exceed the legislative power of taxation when exercised for proper objects.” While it is perhaps true that such assessments are generally against the property specially benefited, and not against the [254] owner thereof personally, the fact that the legislature has authorized them to be made against the owner, as in this case, cannot affect the constitutionality of the law. The object, in either case, is to provide a mode of collecting the assessment, and that is wholly within the discretion of the legislature; Desty on Taxation 286. ■ Assessment against the property itself is only a method of compelling the owner to pay and thus relieve his property from the charge or lien against it. In some cases dieta may be found, and perhaps decisions also, to the effect that assessments for benefits cannot be made or enforced against the owner of the property benefited ; but the principle is unsound. As already remarked, the remedy for the collection of such assessments or taxes, as well as every other species of tax, is a matter of legislative discretion. We therefore hold that plaintiff’s claim, established by the finding of the jury, is within the express provisions'of the Act of 1858; that the Act is constitutional, and not having been repealed or modified, as to claims for damages occasioned by vacation of streets, is still in force, at least as to such claims. It follows from what has been said that the assignments of error are all sustained. It is unnecessary to notice them seriatim. The order of court sustaining exceptions and setting aside report of the jury is reversed; and it is now here ordered that the said report be affirmed with costs to be paid by the ex-ceptants in the court below.