Witman v. City of Reading

Opinion by Me. Justice Mitchell, The learned judge below held that the foot front rule could not be lawfully applied as a method of assessment, to complainant’s property, and based his conclusion mainly if not exclusively on the difference in value per foot front, of the property along the line of the sewer. From this result we are constrained to differ. While the foot front rule of assessment, it is true does not express a principle of taxation but merely a convenient method, yet its foundation is not in uniformity of value, but in uniformity of benefit. The latter is not always, and perhaps not even generally dependent on the'former, or in any fixed ratio to it. Properties in the same general situation are presumed to get the same general benefit from a common improvement, aud as this benefit is assessed exclusively on property abutting on the line of the improvement, it is presumed to be fairly measured by the foot frontage of the property on that line, though values may be aud usually are very different, and dependent on other circumstances, such as the depth of the lots, the buildings erected upon them, the use to which they are put, and their proximity to business centers, etc. Value undoubtedly is one element to be considered but no case has been cited, nor have I found any in which it was held to be controlling, while in at least one, Harrisburg v. McCormick, 129 Pa. 213, it was practically considered of little or no weight at all. It is held in several of our cases that there must in the public interest be a general rule, and it must be certain and uniform. And there could be no more striking-examples of the unbending necessity for a general rule than Harrisburg v. McCormick, supra, and Michener v. Philadelphia, 118 Pa. 535. In. my own view the best, if not the only' entirely just plan would be as was done in the earlier cases to assess the benefit in each instance by the dlfférence in market value of the property before and after the improvement, 3ret of this plan Justice Sharswood says in Hammett v. Philadelphia, 65 Pa. 146, “ appraising market values and fixing the pro [390] portion according to these is open , to favoritism or corruption and other objections. No system of taxation which the wit of man ever devised has been found perfectly equal.” And he adds, “ perhaps no fairer rule can be adopted than the proportion of feet front, though there must be some inequalities if the lots differ in situation and depth.” And in Washington Avenue, 69 Pa. 352, although the foot front rule was held inapplicable to the circumstances of the property there charged, 3ret Chief Justice Agnew says of it, “ whatever doubt might have been originally entertained of it as a substitute, which it really is, for actual assessment by jurors or assessors under oath, it has been so often sanctioned by decision, it would ill become us now to unsettle its foundation by disputing its principle.” In the present case the sewer district is large, and includes lots with very different frontages and veiy varying values per foot, but it is not averred that it is not all a closety built-up portion of the city, and fairly within the situation laid down in regard to the applicability of the foot front rule, even in Washington avenue, the most unfavorable case to the rule, in our reports. We are of opinion that the circumstances of this case do not justify the setting aside of the rule. The city took the aggregate cost of local sewers for the whole district, that is, for the purpose of assessment it treated the main sewers as local, and required the excess of > cost to be paid by the city, and divided this aggregate sum by the aggregate frontage of the abutting lots, to-establish a rate of'cost and then assessed this rate so ascertained, against each lot fairly in accordance with its frontage, with an equitable allowance for corner lots, etc., liable to charge for more than one sewer. It is objected that by this method the properties in front of which the smaller sewers are laid, are assessed with more than the cost of those sewers, and that they thus have to pay in part the cost of other sewérs from which they derive no benefit. And this result is found as a fact in the case. The objection must prevail, .for it is settled that while the measure of assessment is the amount of benefit, yet it is limited to the cost of the improvement. -If the cost is only one dollar a foot, that is all that can be assessed p_n the property, though the benefit may be equal to two dollars a foot. It may be said [391] with some plausibility that while by the system pursued in this case the small sewer fronts pay more than the actual cost of such sewers, yet they get the advantage of the outlet into the larger ones, and therefore do not pay more than for the benefit received. If each local sewer had to be extended to the point of final discharge its length and cost would be greatly increased. If instead of being thus extended, it gets its outlet through the medium of another sewer, there.is a certain fairness in assessing the properties with a part of the cost of that other sewer, and it is argued that such part may be reasonably included in the cost of the small sewer. This argument however is open to the serious objection that it presents no principle on which the limitations of such charges can be fixed. The main sewer into which any particular branch shall empty is not located or its size determined by the needs or convenience of that branch alone or even chiefly, but by the requirements of the whole district. This includes, or may include many branches, of different situations and very various cost. Thus one branch may be through ordinary ground having a natural grade in the right direction, while another may have to be built up through low land with the wrong slope, or cut through rock at greatly increased expense. A ratio of cost made up of the average of these, is-not an accurate measure of any one of them. It is held in Re Park Avenue Sewer, opinion filed herewith, that no properties can be assessed for the cost of a sewer, except those that abut on the line of it. We are of opinion that the mode of ascertaining the rate of cost in the present case is in conflict with that principle, and therefore cannot be sustained. We have reached this result with some regret, as the system adopted by the city of Reading is an earnest and intelligent effort to deal fairly with a subject of serious and inherent difficulties, and the plan appears to work in practice as justly and conveniently as any that has come to our notice. But the legal and constitutional objections are insurmountable: There are some other questions in the case which have been argued, but which we do not think necessary to pass upon at the present time as they may become unimportant. The injunction being against the whole assessment because of- the application of the foot front rule, is too broad and must be [392] dissolved, but the complainant may show that her property is one of those charged more by the city’s mode of assessment, than its proper share for the sewer in front of it, and if so her assessment will have to be reduced. Decree reversed and record remitted for further proceedings in accordance with this opinion.