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remedy by injunction: Coffeen v. Brun cases upon the law of trade-marks, we ton, 4 McLean 519; Dale v. Smithson, acknowledge our indebtedness to the 12 Abb. Pr. 238.
able brief of S. S. Boyd, counsel in the In the collection of the foregoing case to which this note is appended.
Supreme Court of Pennsylvania.
HAMMETT v. TIIE CITY OF PHILADELPHIA.
It is settled in Pennsylvania that the legislature may confer upon municipal corporations the power to assess the cost of local improvements upon the property benefited.
But such local assessments can only be imposed to pay for local improvements, clearly conferring special benefits on the properties assessed, and to the extent of those benefits. They cannot be imposed when the improvement is either expressed or appears to be for general public benefit.
The paving of a street, changing a road into a street, and bringing the land fronting on it into the market as building lots, is a local improvement, with special benefits to the land fronting on it, and the cost of such paving may be assessed on the property benefited.
But when a street is once opened and paved, and has thus become a part of the public highways of the city, the repaving of it, either with a new and different pavement, or by repairing the old one, is a part of the general duty of the corporation, and cannot be paid for by assessments on the adjoining properties.
Writ of error to the District Court of the city of Philadelphia. The action was on a municipal claim filed in the following form.
The City of PHILADELPHIA to the use of CHARLES E. JENKINS and JONATHAN
In the District Court of the TAYLOR,
City and County of Philadel
phia, of March Term 1868. BARNABAS II AMMETT, owner or reputed
NUMBER 31. owner.
The City of Philadelphia, to the use of Charles E. Jenkins and Jonathan Taylor, files this claim against Barnabas Ilammett, owner or reputed owner, of all that certain lot or piece of ground, with the buildings and improrpa ments thereon erected, situate at the south-west corner of Broad and Poplar streets, for 1007** square yards of Nicolson pavement, done and laid in front of the premises above described, in Broad street, on the 27th day of November 1867, pursuant to the authority of “An Act supplementary to an Act to incorporate the City of Philadelphia, authorizing the improvement of Broad street in said City," approved March 23d 1866, and of " An Ordinance authorizing the paring of a portion of Broad street with Nicolson Pavement," approved July 5th 1867, at the rate of four dollars per
square yard, or the sum of $4029.04, and for five per cent. on said sum, or the sum of $201.45, as imposed by “A further Supplement to an Act consolidating the City of Philadelphia, et cetera, regulating the filing and collection of Municipal Claims," approved March 23d 1866; for which sum of $1230.49, with interest thereon, a lien is claimed against the above described premises, pursuant to divers statutes enacted and provided.
JAMES LYND, Solicitor of the City of Philadelphia.
David W. Sellers, Attorney for Jenkins and Taylor. March 26th 1868.
The Act of March 23d 1866, Pamph. L. 299, in sect. 1 thus enacted :
"That the city of Philadelphia be and it is hereby authorized and empowered and required to occupy Broad street, in the city of Philadelphia, for its entire length, as the same is now opened or may hereafter be opened, and from curb to curb thereof, except as hereinafter provided, for the uses and purposes of a public drive, carriageway, street, or avenue, and to improve the said street, or portions thereof, from time to time, and in whole or in part, with such mode of pavement, paving, macadamizing, gravelling, or other roadway, as may, in the judgment of the Select and Common Councils of said city, be best adapted to and for the uses and purposes aforesaid; and for that purpose the said Councils shall have, and are hereby authorized to enact such ordinances or resolutions, with such conditions or stipulations as may require the cost of said improvements to be paid for by the owners of property abutting upon said street."
Under the authority of this act the city of Philadelphia contracted with the licensees of the patentee of the Nicolson pavement to pave a portion of Broad street with that pavement, the cost thereof to be paid by the owners.
The licensees were authorized to use the name of the city to recover the cost.
A scire facias was issued upon the above claim, and the owner of the ground filed an affidavit of defence as follows:
“Barnabas Hammett, defendant above named, being duly sworn, deposes and says: That there is a defence to the plaintiff's claim, as follows:
“ Broad street, at the part described in the claim, in front of the premises owned by this deponent, was, at the time of making the contract for paving the same by Jenkins & Taylor, and of doing the work thereunder for which the claim is filed, well paved with cobble stones in the style universally adopted for years past in this city for the best paved avenues, and such pavement was then in good order and condition, with every probability of it so continuing: it had been laid by the city and her authorized
agents, of their own option, at the time they saw fit, and in such mode and with such material as they chose to select, irrespective of any wish of the then owner of the premises, and the entire expenses thereof both of the materials for the pavement and the laying of the same, were paid by the then owner of the said real estate to the city and her agents at their request, and in obedience to the laws authorizing the pavement of the streets. Afterwards and while (as above stated) the pavement laid by the city at the expense of the owner of the premises was in good order, the city of Philadelphia entered into a contract with said Jenkins & Taylor, under which and not otherwise the plaintiff's did the work for the price of which the said claim is filed and this suit is brought.
“ Deponent is advised that the said Act of Assembly is unconstitutional and therefore void, in this: that it delegates to the councils of the city power to impose upon certain persons owners of certain properties facing a public avenue, the entire burden of a general unrestricted work to be undertaken, in the words of the preamble, 'for the uses and purposes of the public and the benefits and advantages which will enure to them,' when those properties had already been subjected to the contribution for paving usual to all other city properties.”
The District Court, upon rule, entered judgment for want of a sufficient affidavit of defence, and to that judgment this writ of error was taken.
William A. Porter and Constant Guillou, Esqs., for plaintiff in error, contended that no case in Pennsylvania had recognised any power in the legislature to re-pave at the expense of the ground which had already borne the expense of paving.
William McMichael and David W. Sellers, Esqs., for defendants in error, contended that acts imposing the cost of opening and paving highways, on owners of ground fronting thereon, are within the power of the legislature; and cited most of the cases quoted in the opinion of the court, and the dissenting opinion of READ, J.
They further contended that if there was no constitutional limit on the power, the whole subject matter was one of public policy for the legislature, and not for the courts; and that if the
power was conceded, the reason for its exercise was not reviewable anywhere. That in a former case this court had declined to allow a similar averment that municipal work was wholly for public uses to defeat the charge against the individual: City v. Tryon, 11 Casey 401.
The opinion of the court was delivered by
SHARSWOOD, J.-It may be considered as a point fully settled and at rest in this state, that the legislature have the constitutional right to confer upon municipal corporations the power of assessing the cost of local improvements upon the properties benefited. It is a species of taxation; not the taking of private property by virtue of eminent domain. It was decided in McMasters v. The Commonwealth, 3 Watts 292, that in the opening of streets in a town or city, the damage occasioned to some of the lots might be apportioned and assessed upon others in the neighborhood improved in value thereby. It is there assumed, as a well-settled principle, employing the words of Chancellor WALWORTH in Livingston v. New York, 8 Wend. 85, that when any particular county, district, or neighborhood is exclusively benefited by a public improvement, the inhabitants of that district may be taxed for the whole expense of the improvement and in proportion to the supposed benefit received by each. The conclusion seemed logically to follow; for, if a county, district, or town can be assessed for a public improvement on the ground that they are particularly benefited, there can be no constitutional reason to exempt an individual from assessment on the same principle. It becomes a mere question of expediency, of which the legislature are the competent and exclusive judges, and not of right. This doctrine is again asserted in Fenlon's Petition, 7 Barr 173; and in the subsequent case of the Extension of Hancock Street, 6 Harris 26, the constitutionality of such an exercise of the taxing power was declared to be no longer an open question.
On the same principle the validity of municipal claims assessing on the lots fronting upon streets their due share of the cost of grading, curbing, paving, building sewers and culverts, and laying water-pipes, in proportion to their respective fronts, has been repeatedly recognised, and the liens for such assessments enforced : Pennock v. Hoover, 5 Rawle 291; The Northern Liberties v. St. John's Church, 1 Harris 104; The City v. Wistar, 11 Casey 427;
The Commonwealth v. Woods, 8 Wright 113; Magee v. The Commonwealth, 10 Id. 358; Wray v. The Mayor, g'e., of Pittsburgh, Id. 265.
These cases all fall strictly within the rule as originally enunciated—local taxation for local purposes—or, as it has been elsewhere expressed, taxation on the benefits conferred, and not beyond the extent of those benefits. There is, indeed, no clause in the Constitution of Pennsylvania which restricts the power of taxation in the legislature as is to be found in the constitutions of many of our sister states. Yet it must be confessed that there are necessary limits to it in the very nature of the subject. It is very clear that the taxing power cannot be used in violation of provisions in the Bill of Rights, everything in which is “excepted out of the general powers of government, and shall for ever remain in violate." There is no case to be found in this state, nor, as I believe, after a very thorough research, in any other—with limitations in the constitution or without them in which it has been held that a legislature, by virtue merely of its general powers, can levy, or authorize a municipality to levy, a local tax for general purposes. I shall have a word to say presently of two or three of our cases which are supposed to countenance such an idea. It may be shown logically, and that without difficulty, that such a doctrine lands us in this absurd proposition: That the whole expenses of government, general and local, may be laid upon the shoulders of one man, if one could be found able to bear such a burden. A conclusion so monstrous shows that the premises must be wrong. Such a measure would not be taxation, but confiscation. That can only be the consequence of attainder for crime, and not even then to its full extent, for there can be no forfeiture of estate to the Commonwealth except during the life of the offender. It is well remarked by Chief Justice ROBERTSON, of Kentucky, under a constitution without restraint on the legislative power of taxation : “An exact equalization of the burden of taxation is unattainable and Utopian. But, still, there are well-defined limits within which the practical equality of the constitution may be preserved, and which, therefore, should be deemed
, impassable barriers to legislative power.
The legislature, in the plenitude of its taxing power, cannot have constitutional authority to exact from one citizen, or even one county, the entire revenue of the whole Commonwealth. Such an exac