Woodbridge v. City of Detroit

Manning J.:

I can not see that the present case differs essentially from Williams v. The Mayor of Detroit, 2 Mich. 560. The city charter then in existence contained the following clause: “And the Common Council shall have full power and authority to provide funds for defraying the expenses of such paving of streets or sidewalks as may be deemed necessary, either by assessment on the owner or occupant of such lot or premises, in front of or adjacent to which such streets or sidewalks may be directed to be paved or repaired, or otherwise, as they may direct.” And it was provided by a city ordinance that, “Whenever the Common Council of said city shall deem it necessary to provide funds necessary for defraying the expenses of grading, paving, or planking any alley, avenue, or street of said city, or any portion thereof, they shall cause an assessment to be made by the city surveyor on the owners or occupants of the lots or premises in front of or adjacent to the avenue or street directed to be graded,' paved, or planked.” And it appears from the opinion of the court that the aggregate cost of the pavement was “apportioned according to the width of each lot fronting on the street paved.”

The assessment was held to be a tax, and not the taking of private property for public use.

The only difference between that case and the present is, that the revised charter requires the cost of paving and grading to be assessed “ on the owner of the lot or premises in front of or adjacent to which” the paving and grading are done. In Williams’ case the cost of the paving and grading was apportioned between the owners of the lots by the number of feet frontage each lot bore to the frontage of all the lots contiguous to the pave *280 ment. If the street in front of some of the lots had to be cut down, and in front of others to be filled up to bring it to the grade of the pavement, the expense was assessed on all the lots in proportion to their several frontage on the street. In the .present case a different principle of apportioning the expense was adopted, to comply with the revised charter, which requires the owner of each lot to pay for the grading as well as paving in front of his lot. The thing is not impracticable. The work is done by contract; and to carry out the new rule of apportioning the aggregate cost of the whole work, the different parts of it should be, and I presume are, contracted at different prices' — the paving at one price and the grading at another. Men will differ as to which' of these two modes of apportioning the expense is most just and equitable. The difference, it seems to me, is not of such a nature that one can be a tax and the other not.

Judge Ruggles, in the case of The People v. Mayor of Brooklyn, 4, Comst. 423, says: “Taxation exacts money or services from individuals, as and for their respective shares of contributions to any public burthen.”

“Private property taken for public use by right of eminent domain, is taken not as the owner’s share of contribution to a public burthen, but as so much beyond his share,” “Special compensation is therefore to be made in the latter case, because the government is a debtor^for the property so taken; but not in the former, because the payment of taxes is a duty, and creates no obligation to pay, otherwise than in the proper apjfiication of the tax.”

“Taxation operates upon a community or upon a class of persons in a community, and by some rule of apportionment.

“The exercise of the right of eminent domain operates upon an individual, and without reference to the amount or value exacted from any other individual or class of individuals.”

*281 I know of no case in which the distinction, with the reasons for it, between taking property by taxation and by the right of eminent domain, is more clearly pointed out; and I find no difficulty in sustaining the assessment in the present case on the principles stated by the learned judge.

Article 14 of the Constitution contains the following sections relative to taxation:

“Sec. 11. The Legislature shall provide an uniform rule of taxation, except on property paying specific taxes; and taxes shall be levied on such property as shall be prescribed by law.

“ Sec. 12. All assessments hereafter authorized shall be on property at its cash value.

“Sec. 13. The Legislature shall provide for an equalization by a state board, in the year one thousand eight hundred and fifty-one, and every fifth year thereafter, of assessments on all taxable property, except that paying- specific taxes.”

Taking the three sections together, there seems to be no reason to doubt the taxes here referred to are the ordinary taxes raised for state, county, township and municipal government. The word “assessments” in the 12th and 13th sections, does nqt mean taxes in any sense, but the valuation of property for the purpose of raising the taxes referred to in the 11th section.

Taxes for purely local public improvements, like the one before us, more generally called assessments, are not mentioned in the Constitution, nor is it necessary they should be to give the Legislature power over them. The power to impose and collect such taxes, like all other legislative powers not mentioned in the Constitution, is plenary, and in the exercise'of it is subject to legislative discretion only.

As this description of taxes does not come within the sections of the Constitution mentioned, valuation in the property taxed is not a necessary element in the apportionment of the tax. The apportionment of it may be based on valúa *282 tion or not. This is for the Legislature to determine, which alone has power to prescribe the rule of apportionment. And as there is nothing in the power of taxation itself requiring a tax to be apportioned in any particular way, the rule by which the amount of tax to be paid by each taxpayer is to be determined (which is all that is meant by apportioning a tax when applied to him) can not be made a test of the taxing power.

But the Constitution provides, “Private property shall not be taken for public improvements in cities and villages without the consent of the owner, unless the compensation therefor shall first be determined by a jury of freeholders, and actually paid or seemed in the manner provided by law.” Art. 15, §15.

The taking here referred to is the taking of private property by right of eminent domain, which can not be done by the city of Detroit except in the manner stated.

Admitting money can be taken in this way, is the attempt made to take it in the present instance by right of the taxing power, or by right of eminent domain? If the former, the city is entitled to it; if the latter, it is not, because it has not taken the requisite steps to perfect its right.

In the case before us we have all the characteristics of a tax, and not a solitary characteristic of the exercise of the right of eminent domain;

The money is demanded as complainant’s apportionment or share of the cost of paving a part of Fort street, on which he and others have lots fronting on the part of the street paved; and the law imposes on him and them the cost of the [paving as a public burden, and prescribes the rule by which that burden shall be borne by them respectively.

Here, then, we have all the characteristics of a tax; A public burden imposed by law, a description of the property and persons by whom it is to be borne, the *283 contingency on the happening- of which it is to be imposed, and the apportionment of it in pursuance of law. With' all of these characteristics of a tax, there is not a solitary characteristic of a taking of property by right of eminent domain. The warrant of the collector does not demand property of complainant only, but of him and others; nor does it demand property of him only, for public use, for it at the same time, makes a like demand of others for the same use. Nor is the demand made on him uncertain in amount, or made without reference to the amount to be contributed by others. The aggregate cost of the whole work is apportioned among- the several lot owners, in proportion to the work done in front of their respective lots.

If the ease before us is not an attempt to take private property for public use, without making compensation as required by the Constitution, it is most clearly a tax, and as such, subject "to no rules but legislative discretion. In the case of The People v. Mayor of Brooklyn, Judge Buggies says it is the duty of the Legislature “to prescribe the rules on which taxation is to be apportioned,” and that its determination, “being within the scope of its lawful authority, is conclusive.” And in Brewster v. City of Syracuse, 19 N. Y. 116, in which > the constitutionality of the power was again before the same court, Johnson Ch. J., in delivering- the opinion of the court, says: “The nature of this power was fully examined in The People v. Mayor of Brooklyn, 4 Comst. 419, and it was declared to be a part of the legitimate exercise of the state’s power of taxation, to ascertain, subject to no judicial review, the public burdens to be borne and the persons or class of persons who were to bear them. It would, therefore, have been within the clear authority of the Legislature to have authorized the city government of Syracuse, without the consent of any person specially interested, to construct this sewer, and to assess, by way of tax, the expenses on *284 such persons as ought, in the judgment of the Legislature, to bear the burthen.”

It is quite evident, from the large number of cases to be found in the books of reports of the several states, that courts have experienced much difficulty in supporting this kind of legislation; and yet in almost every instance it has been sustained. The difficulty, it would seem, has generally been in determining the assessment to be a tax, because of the supposed injustice or inequality of the assessment by reason of its not being co - extensive, as in case of ordinary taxes, with some one of the civil divisions into which the state is divided for governmental purposes; that is, on all the taxable property of the county, township, city, or ward, in which the improvement is made.

When the consequences of a statute are not subversive of the very end and object of a constitutional government, they can not, —if the Constitution itself contains no inhibition, and if it does there is no occasion to resort to them, — be made the basis for declaring the law unconstitutional. In construing a statute the case is different, for the reason that they are not used to overturn the law, but to give a reasonable interpretation to the intention of the Legislature, and the language of the statute when it it is susceptible of more than one meaning. But to go beyond this, and give them the effect of annulling a statute, would be an assumption of legislative functions.

The supposed hardship in many if not most cases, it seems to me, is more imaginary than real. Things with which we are not familiar not unfrequently, at first view, meet with condemnation, although undeserving of it, while those with which we are familiar, and that really deserve condemnation, are looked upon as right in themselves. A law requiring the owner of a lot of ground in a dense and populous city, for the accommodation of the people and vehicles that throng its streets, to pave the street in front of his lot, and his neighbor to do the same thing, *285 is looked upon by many as unjust and inequitable. Now, we have a statute requiring a specific tax of four per cent, to be paid on all ores, with the exception of iron ore, which pays but two per cent. Why this difference between iron and other ores? Why are not all ores taxed alike? And why is the miner required to contribute to the public the one twenty-fifth or one fiftieth part of the product of his mine, as the case may be, while no such tax is imposed on the products of the farmer? Again, a pecller on foot is required to pay a specific tax of $10 a year; if he uses a horse in his business, $25, and if two horses and a vehicle, $50. Why this difference ? Is it that he who goes best prepared to accommodate his customers must pay most? But why is he required to pay a tax at all? Is it because, as a vender of goods, or traveling merchant, he goes to his customers instead of requiring them to come to him ? If we were not accustomed to such and the like taxes, and they were now for the first time' about to be introduced, we have no doubt we should hear much of their- injustice and unconstitutionality. They differ, however, from the tax before us, in this, that while the exigency, the growth of a large city, that renders pavements necessary, at the same time increases the value of the lot on which the burden is imposed ten, twenty, or, perhaps, fifty times the amount of that burden, nothing of the kind exists in the case of the miner, whose ores are not more valuable by reason of the public exigency that stands in need of his money.

For all ordinary ^’purposes of government, the Constitution makes it the duty of the Legislature^44 to provide a uniform rule of taxation, except on property paying a specific tax,” cfcc. And this uniform rule of taxation is to operate on property assessed at its cash value. But the Constitution has never been understood as requiring the rule to be so framed as to make each piece of property of the same value, throughout the state, pay the same amount of tax. Such *286 a rule would be uniform, but it has not been adopted. The taxable property of the whole state is taxed to pay state expenses, and that in the counties only to pay county expenses, and in townships to pay township expenses. All of these expenses pertain to] the administration of the government,’ but each piece of property of the same vahie, in every part of the state, does not pay the same amount of tax — the equality and uniformity of the rule of taxation consisting in requiring each county and township to pay its own expenses. These expenses are not probably the same in any two counties or townships in the state, and it is not likely that a $1,000 worth of property in any two townships in the state contributes the same amount in any one year for the support of government. We hear of no complaint, in all this, of inequality, or of a want of uniformity in the rule of taxation. Each county and township is required to pay its own exj>enses, because it is more directly interested in, and benefited by, such expenses than other counties or townships, or the state at large.

This rule of taxation, it seems to me, is analogous to the one by which the cost of the paving is apportioned in the present case; and that, to make the analogy complete, it is only necessary to suppose the counties and townships to be individuals instead of political corporations. The reason of the rule is the same in both, and its justice as obvious in one case as in the other.

The current of authorities is, that assessments for local improvements need not be co - extensive with the county, city, or ward in which the improvement is made; and this, it seems to me, removes the only obstacle in fact to this species of taxation, that courts have had to encounter where the state Constitution was silent on the subject.

To show the state of the law at different times in the state of Kentucky, I will refer to two decisions made by the Court of Appeals of that state. In Suttons's Heirs *287 v. City of Louisville, 5 Dana, 28, it was held the expenses of a local improvement must he borne by the whole city, and not by the property more directly benefited by it. This case was, in effect, afterwards overruled by the same court, in The City of Lexington v. McQuellan's Heirs, 9 Dana, 513, Ch. J. Robertson giving the opinion of the court in both cases. The charter of the city of Lexington authorized streets to be paved or turnpiked “at the cost and expense of the lot owners fronting such street or alley.” A cross street, extending the length of a block, was graded and macadamized. A deep cut was made opposite the lot owned by McQuellan’s heirs, and the expense of making it was assessed on their lot, and not on all of the lots on both sides of the street. The court sustained the constitutionality of the charter authorizing an assessment, on the ground that, for the purpose of making such improvements, the charter might be considered as making each block a separate municipality. But as the charter required the expense of grading to be borne by all the lots, the decree of the court below enjoining the collection of the assessment was reversed, as the city should have been enjoined against collecting the exc'ess of the assessment only. Had the charter authorized the expense of the grading to be assessed on the lot in front of which it- was done, the charter would still, I think, have been sustained by the court; for, in speaking of the city at large, — and the remark was strictly applicable . to the block where the improvement had been made, and the attention of the court was called to the point by the assessment before them, — they say: “And if all those ways should be reconstructed or repaved during the same fiscal year, we are not prepared to question the public authority to require each of the owners of grounds on the streets respectively, to pay one - half of the cost of the improvement made opposite to his lot.”

I think the questions reserved for the opinion of this court should be answered in the aflirmative.