State v. Jackman , 69 N.H. 318 ( 1898 )

Among the various purposes enumerated in the act incorporating the city of Concord, and for which power is expressly given the city council to make ordinances, is that "To compel all persons to keep the snow . . . from the sidewalks in front of the premises owned or occupied by them." Laws 1849, c. 835, s. 17, p. 819. The ordinance in question, therefore, having been authorized by specific and definite legislative authority, and having also been "duly and legally adopted," has the effect of a special law of the legislature within the limits of the city and with respect to persons upon whom it may lawfully operate, and cannot be declared invalid except for unconstitutionality. 1 Dill. Mun. Cor. (4th ed.), ss. 319-322, 327, et seq.; Tugman v. Chicago, 78 Ill. 405; Phillips v. Denver, 19 Col. 179, — 41 Am. St. Rep. 230; Brooklyn v. Breslin, 57 N.Y. 591, 596; St. Paul v. Colter, 12 Minn. 41.

Under our statutes, the duty of keeping highways in repair and free from obstruction by snow or other things that impede travel or render it dangerous, is imposed upon the municipalities in which they are situate (P.S., c. 76, ss. 1, 2); and this duty extends to sidewalks as well. Hall v. Manchester, 40 N.H. 410, 415; Stevens v. Nashua, 46 N.H. 192, 195. For these purposes municipalities are empowered to "raise such sum as they judge necessary for each year," to be assessed upon all the polls and estate subject to taxation therein, and may order the same paid in money, — in which case "the tax shall be committed to the collector of taxes and be collected as other taxes," or if not so ordered, it "may be paid in labor." P.S., c. 73, ss. 1, 5, 8.

Burdened with this duty and invested with this power in respect of highways, we are of opinion that the city of Concord could not by its ordinance impose upon the defendant the labor or expense of removing the snow from the sidewalk adjoining his premises, and which constituted a part of the highway itself. Having contributed his proportional share of the public expense of keeping the highway in a suitable condition for the public travel, we are not aware of any constitutional principle upon which more can be lawfully exacted of him.

Nor should there be. A property owner has no other or greater right in or to, or control over, that part of the public street in front of his property than any other part of the highways of the town. All the streets of a municipality are equally free to the general public, who at all times are entitled to the free and unobstructed use of every foot of them. 2 Dill. Mun. Cor. (4th ed), ss. 659, 683. It is true that the fee of the street may be, and generally is, in the adjoining lot owner, but this can be of no consequence, because the easement over it is in the public. This being so, it is plain that the lot owner has no other interest in the street as such than any other citizen of the municipality.

"The same is true of the sidewalk. It is a part of the street set apart for the exclusive use of persons traveling on foot, and is as much under the control of the municipal government as the street itself. The owner of the adjacent lot is under no more obligation to keep the sidewalk free from obstructions than he is the street in front of his premises. He may not himself obstruct either so as to impede travel on foot or in carriages. It will be conceded the citizen is not bound to keep the street in front of his premises free from snow or anything else that might impede travel; then, upon what principle can he be fined for not removing snow or other obstruction from the sidewalk in which he has no interest other than what he has in common with all other persons resident in the city? It is certainly not upon the principle under which assessments are made against the owner for building sidewalks in front of his property. The cases are not analogous. Such assessments are maintained on the ground the sidewalk enhances the value of the property, and to the extent of the special benefits conferred they are held to be valid." Gridley v. Bloomington,88 Ill. 554, 556, 557, — 30 Am. Rep. 566, 567; Chicago v. O'Brien,111 Ill. 532, — 53 Am. Rep. 640.

And, certainly, he cannot be so fined upon any principle of taxation which obtains in this jurisdiction, for "the unconstitutionality of unequal taxation is too plainly declared by our constitution, and too well settled by repeated decisions made during the last fifty-three years, to be debatable" (Railroad v. State, 60 N.H. 87, 94), and "under the constitution . . . there is no warrant for the imposition of any other tax than one assessed upon a proportional and equal valuation of all the different kinds of property on which it is to be levied." State v. Express Co.,60 N.H. 219, 246. And no more can he be upon any principle of division of the public expense, for "the unconstitutionality of an unequal division of public expense among New Hampshire taxpayers has been settled too long and by too many decisions to be a subject of debate or doubt." Ib. 246, per Doe., C. J.

True, the ordinance is not strictly a law levying a tax, the direct or principal object of which is the raising of revenue (Goddard, Petitioner, 16 Pick. 504); but it is such a law practically, both in substance and in effect, and should fairly be so regarded. The amount of expense from which the city is relieved by the operation of the ordinance is equivalent to so much revenue derived from taxation; the additional burden to which the lot owners are subjected is none the less a tax because it is exacted in labor and not in money (P.S., c. 73, s. 8, before cited; Cool. Tax. 12); and the fine imposed for its non-performance is as useful to the city as a tax of equal amount. "Courts are not bound by mere forms, nor are they to be misled by mere pretences. They are at liberty — indeed, are under a solemn duty — to look at the substance of things, whenever they enter upon the inquiry whether the legislature has transcended the limits of its authority." Mugler v. Kansas, 123 U.S. 623, 661. In whatever language a statute may be framed, its purpose must be determined by its natural and reasonable effect, and such purpose must be taken into consideration in passing on its validity. Collins v. New Hampshire,171 U.S. 30, and authorities cited. "Its constitutionality must depend upon its real character, upon the end designed and to be accomplished, and not upon its title or professions." Pierce v. State, 13 N.H. 536, 580.

But it makes no difference, so far as the decision of this case is concerned, whether the ordinance is or is not regarded as a law levying a tax. It undeniably imposes a duty and operates as a law creating a burden which does not bear upon all citizens alike, and which makes an unequal division of public expense among taxpayers, in direct violation of the principle of equality which pervades the entire constitution, and to which all other purposes are incidental and subordinate. State v. Pennoyer,65 N.H. 113, 114. And not only is the ordinance a palpable violation of the equality of privilege and of burden guaranteed by the constitution, but it is the taking of private property for public use without just compensation, and a denial to the persons upon whom it operates of the equal protection of the laws, within the meaning of the fourteenth amendment of the federal constitution, providing that no state shall deprive any person of property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. See Smyth v. Ames, 169 U.S. 466. The amendment, however, "adds nothing to the rights and liberties of the citizens of this state. It merely confirms to them by federal sanction the rights secured by the action of their ancestors a century ago. . . . An enactment obnoxious to this provision of the national constitution is in New Hampshire no more ineffective than it would be in its absence." State v. Pennoyer, supra, 115.

It would seem unnecessary to go farther. But the ordinance stands no better on the ground that it is an exercise of the police power inherent in all municipal and state governments, and which, it may be conceded, properly extends to "the protection of the public morals, the public health, and the public safety." Beer Co. v. Massachusetts, 97 U.S. 25, 33; Mugler v. Kansas, supra. Nobody doubts that when an occasion for its exercise exists, the police power may be invoked in behalf of these objects; but it is entirely plain that the ordinance has no real or substantial relation to any of them. It is not an exercise of restraining or protective power like the dog law, so called, or the statute empowering towns to require buildings to be provided with such ladders and buckets as may be necessary for use in case of fire, under a penalty of six dollars for every three months' neglect, and other enactments of like character, cited by the state. It is simply an unequal division, for economy and convenience only, of public expense and public burdens, among a class of taxpayers who have not only once contributed and borne their full share agreeably to their constitutional duty, but who are again required to make contribution, not proportionately and according to the valuation of their property or the benefits they receive, but disproportionately and solely according to the length of the street lines of their respective lots. This is extortion and inequality, pure and simple — and it is nothing else. See Curry v. Spencer,61 N.H. 624, 631, 632. "An act which operates on the rights or property of only a few individuals, without their consent, is a violation of the equality of privileges guaranteed to every subject." Merrill v. Sherburne,1 N.H. 199, 212.

But suppose the legislature, in empowering the city of Concord to adopt the ordinance, intended and understood it to be an act of the protective power, and that it may properly be so regarded, it is, nevertheless, such a manifest violation of rights secured to every citizen of the state by the fundamental law that it cannot be upheld. These rights are "paramount to all governmental authority; and this constitutional principle has never been abandoned." Wooster v. Plymouth, 62 N.H. 193, 200, and authorities cited. They are private rights of the subject, and not public rights of the state; and no legislature can invalidate or abridge them. A purely public burden cannot be laid upon a few individuals, as here attempted, by an ordinance or by any other enactment; nor can public expense be apportioned among them arbitrarily, disproportionably, and without regard to the value of their property; nor can they be subjected to double taxation, in whatever form it may be disguised, or be held responsible for the action of the elements which they could not control, and to the production of which they did not even theoretically contribute.

It is true, nevertheless, that in several of the states all these things are held to be right and proper as a legitimate exertion of the police power (Goddard, Petitioner, 16 Pick. 504; Carthage v. Frederick,122 N. Y. 268), or the power to remove nuisances. Mayor v. Maberry, 6 Humph. 368. But even the police power, comprehensive as it admittedly is, has its limitations, and in this state, at least, it is subordinate to the equality of privilege and of burden secured by the bill of rights and guaranteed by the constitution in clearly expressed provisions which mean just what they declare; and in the proposition that, in the exercise of a power to remove nuisances, a private individual may be compelled to remove an obstruction to travel which he did not create, from premises over which he has no control and which it is the statutory duty of the municipality to keep free from obstruction, we fail to discover any merit except that of novelty.

But there is no occasion to dwell upon these or other somewhat analogous decisions to which our attention has been called. They are plainly not in conformity with the often declared New Hampshire understanding of the constitutional principle of equality and the reservations of private rights of the subject, which, as before stated, are paramount to all governmental authority; and therefore, while the reasoning on which the decisions referred to are based does not commend itself to our judgment, it is only necessary to say, in the language of Doe, C. J., that "any law or practice of Massachusetts or any other jurisdiction, American or foreign, in which the rule of equal rights does not prevail, or taxation is an exception to that rule, is not an authority on which an unequal division of public expense can be made in this state." State v. Express Co., supra, 250.

If one public burden may be shifted from the public and cast upon a certain class of property owners, upon considerations of economy, convenience, or peculiar interest, actual or supposed, others may and doubtless will be, for "it is a familiar fact that the corporate conscience is ever inferior to the individual conscience, — that a body of men will commit as a joint act that which every individual of them would shrink from did he feel personally responsible"; but it cannot be done in this jurisdiction until the constitutional reservations and guaranties intended "as a protection of the subject against the government, and of the weak subject against the powerful subject," are regarded as "glittering generalities" merely, and the reported decisions of three generations of courts are reversed. That time may come, but it has not yet arrived.

Appeal sustained: judgment for the defendant.

WALLACE, J., was absent: the others concurred.