Anderson v. Lower Merion Township , 217 Pa. 369 ( 1907 )

Opinion by

Mr. Justice Mestrezat,

These several cases were heard at the same time and decided by the court below in one opinion, and we will dispose of them in the same way. The questions raised on the record have been so satisfactorily considered and determined by the trial court that we rest our decision upon its conclusion. The questions have all been substantially passed upon by this court, as will appear by the authorities cited in the opinion of the court below. It would serve no good purpose to discuss the questions at length which have been adjudicated in those cases.

The many assignments of error filed by the property owners raise substantially the one question, the constitutionality of the Act of February 23, 1905, P. L. 22, and of the ordinance enacted under its authority by the board of township commissioners of Lower Merion township. In many respects wherein the constitutionality of the act is attacked, it is almost identical in language with that part of the Act of May 23, 1889, P. L. 277, relating to sewer construction and assessments in cities of the third class which has been considered and sustained by this court, as numerous cases will disclose.

Townships of the first class were created by the Act of April 28, 1899, P. L. 104, and this court sustained the authority of the legislature in making the classification: Commonwealth v. Blackley, 198 Pa. 372. The general assembly may legislate upon any municipal function relating to that class of townships and it will not offend the constitutional prohibition, against special or local legislation: Reeves v. Traction Co., 152 Pa. 153; The Commonwealth v. Guthrie, 203 Pa. 209. The act of 1905, which is attacked in these proceedings, deals with a subject proper for municipal regulation, and is, therefore, within the legislative province. There are, it is true, some features of the act of 1905 which cannot be sustained, as pointed out in the opinion of the court below, but they are not so interwoven with the balance of the act, that they render the whole statute unconstitutional and void.

The third clause of section 7 of the act of April 28, 1899 conferred upon the board of commissioners the authority to establish a system of sewers and drainage and to require connection to be made with such sewers; and also made provision for the construction, maintenance and repair of the sewers in whole or any part by an equitable assessment upon the properties benefited, in such manner as might be prescribed by ordinance. The Act of May 24, 1901, P. L. 294, amendatory of this clause of section 7 of the former act, omitted the provision authorizing the cost of the sewer to be charged on the property benefited* but conferred power on the township to enter on private lands for the construction of sewers. The act of February 23, 1905 restores the power of the townships to assess the cost of the sewer on the properties benefited. Legislation, therefore, bearing upon townships of the first class has conferred upon such townships the power and authority of other municipalities in regard to the construction and maintenance of sewers, as well as providing for the expenses necessarily incurred for the purpose. As suggested above, the creation and maintenance of a sewer system for a municipality is clearly a municipal function and hence the legislature may confer authority for the purpose on a class of municipalities without impinging the constitution.

As we have said, the act under consideration is very similar to former legislation on the same subject enacted for cities of the third class. We have ruled that it is within the province of the legislature to authorize the division of the territory of a municipality into sewer districts and provide for alternative methods of assessment. See Oil City v. Oil City Boiler Works, 152 Pa. 318. We think it quite clear that there is a necessity for such division in townships of the first class, much more than in boroughs and in cities. Part of the township may be sparsely settled and needing no system of sewers, while other parts of it may be densely populated, as much so as a-borough or city, and needing a system of sewers and drainage. If the legislature can confer authority upon the councils of boroughs and cities to make such divisions, it is quite apparent, we think, that it can confer a like authority upon the commissioners of a first-class township. In the cases before us the court has found that the whole territory in sewer districts Nos. 1 and 2 is devoted to or is ripe for residential purposes, and that the inhabitants enjoy all the comforts of city homes. The properties in these districts were held to be subject to the foot front rule of assessment. On the other hand, the court found that sewer district No. 3 was rural and not thickly populated, and held that it was proper to assess the property in that district according to the benefits derived. The court, therefore, in both instances, followed the well-established rule announced by this court that the foot front rale is applicable to property situated in á city or other densely populated community, and that the rural properties must be assessed according to the benefits derived from the improvement.

The property owners also contend that the legislature could not authorize the commissioners to appoint viewers to ascertain the benefits accruing from the improvement, but the appoint ment of such viewers must be made by the court. This provision of the act of 1905, however, is sustained by Commonwealth v. Woods, 44 Pa. 113, as well as by later decisions of this court. In the Woods case the court held an act of assembly to be constitutional which authorized the councils of Pitts-burg to construct sewers in the streets, and to appoint three viewers to levy and assess the cost upon the property benefited and to make report thereof to the city councils, and provided that the assessment, when approved by the councils, should be a lien on the property assessed. An appropriate ordinance was passed to carry out the provisions of the act of assembly. In delivering the opinion in that case Mr. Justice Read, quoting from Gault’s Appeal, 33 Pa. 94, says (p. 100): “ States and cities cannot exist without taxation. The time, the mode, and the manner of taxation are committed altogether and exclusively to the legislative discretion.” The decisions in that case and in Oil City v. Oil City Boiler Works, 152 Pa. 348 and Winter v. City of Reading, 15 W. N. C. 329, also meet the objection of the property owners that the act should have provided for an appeal from the assessment made by the board of viewers.

It is contended by the property owners that the act offends against article 9, section 1 of the constitution, which provides that all taxation must “ be uniform upon the same class of subjects, within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws.” That contention, however, is without merit for the reason that? we have held time and again that this section of the constituA tion has no application to assessments for local improvements. In the many decisions on the subject it has uniformly been ruled that this section refers only to such taxes as are of a general nature, and does not apply to such as are levied for local improvements. It is also suggested that the act exceeds the general powers of taxation conferred upon the legislature, and its effect is to confiscate private property, in violation of the restrictions of the declaration of rights. But this position finds nothing to sustain it in the numerous cases of this court cited 'by counsel for that purpose. None of those cases decide that the legislature does not have the power to authorize a. municipality to construct a necessary sewer system and impose the cost upon the abutting property owners according to the benefits derived from the improvement. That is the extent of the authority conferred by the act of 1905 on the board of commissioners of townships of the first class. It is strictly within the rule established by our decisions, which requires the assessment to be made on the basis that the benefits are local and essentially peculiar to the property assessed and that the limit of the benefits is the limit of the taxing power.

It has been suggested, although there is no argument in support of it in the printed brief, that the statute as applied to Lower Merion township is_ retroactive, a¡nd that as the. township had paid for the improvement the legislature could not authorize the commissioners to collect the cost of the sewer off the owners of the property benefited by the improvement. The learned court below has fully answered this contention in the opinion filed. In City of Chester v. Black, 132 Pa. 568, it is said (p. 571): “ The principle has been repeatedly recognized in this state that, where the legislature has antecedent power to authorize a tax, it can cure, by retroactive law, an irregularity or want of authority in levying it, though thereby a right of action which had been vested in an individual should be divested. . . . The constitutionality of this kind of legislation is not open to objection.” In Magee v. Commonwealth, 46 Pa. 358, it was held that an act of assembly was constitutional which authorized the city councils of Pittsburg to grade and pave the streets and to collect the cost and expense from the owners of lots abutting thereon, by an equal assessment upon the front foot of each owner, and providing for the appointment of appraisers to value and appraise the paving, the cost of which had been paid or assumed by the city. In that case one of the points for instruction submitted by the defendant, and which this court held was rightly refused, was the following: “ That if the jury believe that the city of Pittsburg has paid for the paving for which this suit is brought, and that said payments were made from moneys collected by general taxation, and that the property to be subject to the lien here was assessed and taxed for said purpose, and that the amount so assessed was paid, the plaintiff cannot recover.” In re Beechwood Avenue, 194 Pa. 86 was an appeal by a property owner from the order of the court below confirming a report of viewers appointed to assess damages for improving Beechwood avenue in the city of Pittsburg. One of the exceptions to the report of viewers, filed by appellant and overruled by the court, is as follows: “ The cost of said improvement has been provided for by city bonds payable by taxpayers generally, and the present assessment amounts to double taxation, and is unjust, inequitable and illegal.” In sustaining the position of the court below Mr. Chief Justice Stereett said (p. 91):

“ It is a grave error to assume that the cost of the improvement should be paid out of the proceeds of the loan created by the city for the purpose of enabling it to meet deficiencies that will arise in cases where property fronting on improvements of the same kind will be but slightly benefited, relatively, and the city will be obliged to pay nearly all, or at least a very considerable part, of the costs and expenses of such improvements. In providing the fund referred to, it was never intended by the city to relieve from assessments for ‘ special benefits ’ any property fronting on her newly improved streets, avenues or boulevards that may be actually benefited specially, that is, benefited over and above the general benefit accruing to it in common with other property in the vicinity of such improvements.” Here the complaining property owners are in error in thinking that the sewer system constructed by the township is a general public improvement and that, therefore, they should not be required to contribute for the benefits they have received from the improvement. The township was divided into sewer districts and the improvements were in those districts, and hence were local to that part of the territory embraced in the whole township. Those districts were the territory accommodated by the improvement and, being local, may be paid for by the abutting property owners.

The learned court below was clearly right in refusing to sustain the legislation in so far as it authorizes the assessment of benefits where the sewer had passed through private lands. In such cases the land is taken, injured or destroyed by virtue of the power of eminent domain, and in the assessment of damages the owner cannot be deprived of his constitutional right to demand a trial by jury.

We fail to see that the act of 1905 deprives the complaining landowners of any constitutional right. Taxation is a- legitimate burden imposed upon the property owner, and Ke must submit to it when he is not discriminated against in behalf of others similarly situated. If the property owners of townships of the first class believe that the method adopted by the act of 1905 for meeting the expenses incurred in constructing and maintaining sewer systems imposes unjust or unequal taxation, their relief must come from the legislative, and not the judicial, department of the government.

The assignments of error in each of the four appeals are overruled, and the decree in each case is affirmed.