McCormack v. Patchin

Wagner, Judge,

delivered the opinion of the court.

The sole ground of objection urged against the jtrdgment in this case is, that the ordinance on which.the special tax bill was founded was unconstitutional and void. By that ordinance the City Council of St. Louis ordered certain streets to be re-paved, with what is kfiown as the Nicholson pavement, and authorized the cost or expense of the work to be assessed as a special tax against the owners of the ground fronting on the streets where the work was done. The City Charter clearly grants this power, but it is now insisted, that this’provision in the Charter and the ordinance passed thereunder are unconstitutional, or, in effect, take private property for public use without making compensation, and that the power of paving at the property holders’ expense, once exercised, becomes exhausted.

If the power to re-pave and assess the costs and expenses against the adjoining proprietors exists, the exigency which demands its exercise would rest primarily with the council, and would not ordinarily be under the supervision or control of the courts. Whether the power exists or is maintainable at all, is the only question.

The only cases which I have been able to find, sustaining the views urged by the appellant, are those decided in the Supreme Court of Pennsylvania. The first and principal case is Hammett vs. Philadelphia, (65 Penn. St., 146,) in which a majority of the court held, that although the original paving of a street was a local improvement and within the principle of assessing the costs on the lots lying upon it, yet, when a street was once opened and paved, it was thereby-assimilated with the rest of the city and made part of it, and all the particular benefits to the locality derived from the improvements were then received and enjoyed.

The learned Judge, who delivered the prevailing opinion, *36 discussed with considerable fullness the principle underlying the power to make assessments for local benefits.

The opinion consists mostly of generalizations in regard to established and well admitted principles. It is perfectly true that it would be wholly beyond the scope of legislative power, to authorize a municipality to levy a local tax for general purposes. The burdens of the whole community cannot be shifted to the shoulders of one man, who has only an interest in common with all the rest.

■The whole theory of local taxation or assessments is, that the improvements, for which they are levied, afford a remuneration in the way of benefits. A law which would attempt to make one person or a given number of persons, under the guise of local assessments, pay a general revenue for the public at large, would not be an exercise of the taxing power, but an act of confiscation.. In effect it would be transferring the property of one individual to another. These are legal truisms, which have long been entertained and firmly established. The line of separation exists between local and general taxation, and the boundary which lies between them is not always very clear or definite.

The case of Hammett vs. Philadelphia shows that it is difficult to draw the true line of distinction between these respective modes of taxation, and the Judge, who wrote the opinion of the majority of the court, finally placed it upon the fact that the act which he was construing relieved the case of all difficulty and showed upon its face that the special taxation authorized was avowedly for a general and not a local object.

The law was for the uses and purposes of the public, and not specially beneficial to any particular class. The power to grade and improve streets is a legislative power, and is a continuing one, unless there is some special restraint imposed in the Charter of the corporation. It may be exercised from •time to time as the wants of the municipal corporation may require, and of the necessity or expediency of its exercise, the governing body of the corporation, and not the courts, is the *37 Judge (Hoffman vs. St. Louis, 15 Mo., 651 ; Macy vs. Indianapolis, 17 Ind., 267 ; Gall vs. Cincinnati, 18 Ohio St., 563 ; Furman Street, 17 Wend., 649 ; Smith vs. Washington, 20 How. U. S., 135; Plum vs. Canal Company, 2 Stockt., 256.)

As the power to tax and the power to make local improvements at the expense of the property benefited, is, like all the other legislative power of the municipality, a continuing one, unless there be something to indicate the contrary, it follows that the power to compel the property owners to pave genererally, extends to compelling them to re-pave when required by the municipal authorities. (Dill. Munic. Corp., § 619.)

In Gurnee vs. The City of Chicago, (40 Ills., 165,) the point was directly decided, and the court held that the power to repair or pave streets, authorized a corporation to remove an old pavement and replace it with a new one of a different description, and assess the expense against the property holders fronting on the street.

The same doctrine is held by the court in Indiana, (City of Lafayette vs. Fowler, 34 Ind., 140 .) In the case of the Municipality vs. Dunn, (10 Laian., 57,) the city sued to recover a portion of the cost of re-paving a street in front of defendant’s lot. It appeared that the street had been previously paved at the expense of the property, but it was deemed advisable to replace the first pavement with one of a different material.

The defense was that, although the right to assess the property for the first pavement was given, yet the corporation had no right to compel a contribution from the same property for the second pavement. But the court decided that the power to pave the streets was a continuing power, to be exercised when the public good required it, and extended as well to the making of a new in the place of an insufficient pavement as to the one first built, the equity in both cases being regarded the same.

If the first paving of a street is a special benefit to the front proprietor, justifying the imposition upon him of a portion of the expense, so the removal of an insufficient pavement and *38 the making of a new and sufficient one in its stead, is a matter of special bejieiit to the front proprietor, although it may also be of general utility.

Every street when it is opened and improved is doubtlessly beneficial to the general public, but the property holder on the street receives a greater and additional benefit in the enhancement of the value of his property. If the street is permitted to get out of repair, so as to render it difficult or dangerous to travel, his property deteriorates as a consequence.

It is then for his advantage and benefit that the street • should be repaired or re-construed, and he receives a special benefit not shared by the public at large.

My opinion is that the law is not illegal, and that the judgment should be affirmed.

The other Judges concurring.