Washington Avenue

The opinion of the court was delivered, January 9th 1871, by

Agnew, J.

This case presents a new question upon the power of taxation: the authority of the legislature to compel the owners of farm lands, lying within one mile on each side of a public highway, to pay for grading, macadamizing, and improving it, by an assessment upon their lands by the acre. It is not a ease of municipal taxation by a county, township, city or borough, for local improvements. The law created a corporation of seven commissioners to take charge of the avenue, make the improvements, lay and collect the taxes, and provide for the collection of tolls for its use. The-road has no respect to township authorities, township lines, or the mode of levying township taxes. It is not the case of taxation by frontage, for the lands of the plaintiffs in the bill do not abut upon the avenue, but merely lie within the prescribed lines of taxation. It is not a ease of local improvement, and taxation therefor, upon those exclusively, or even those peculiarly benefited; for the master finds that some of the plaintiffs do not use the avenue, but travel on parallel' roads, that persons two miles outside, and on each side of the lines of taxation are nearly, or quite, as much benefited as those within these lines, -and that owners of property and the public, far beyond the southern terminus of the avenue in the direction of Canonsburg *358and "Washington are greatly benefited. In short, he finds that the proposed improvement will be a general public benefit.

Washington avenue is but seven miles long, passing through six townships and part of a seventh; but if this mode of taxation, to grade, macadamize and improve it, can be maintained, the legislature, on the same principle, can make a turnpike, a canal, a railroad, or any other highway across the.state, and compel the owners of lands within one, or any fixed number of'miles, to pay for it, and can assess the cost per acre, not only at $6, $4 and $3 per acre, as in this law, but at sixty, forty, thirty, or any number of dollars, necessary to build the highway. If this be legitimate taxation, it has no bounds, for it must be conceded that the power of taxation, properly so called, has no limit in the Constitution, and is bounded only by the necessities of the state or the will of the people.

The practice of municipal taxation by counties, townships, cities and boroughs for local objects, had its origin in necessity and convenience. Hence roads, bridges, culverts, sewers, pavements, school-houses, and like local improvements, are best made through the municipal divisions of the state, and paid for by local taxation. These have always been supported as proper exercises of the taxing power. Nor is this mode of taxation inconsistent with our notions of the right of private property and of the equality of burdens; for each municipality in its turn (sooner or later) by a tax on all its inhabitants pays only for what it makes and enjoys within its own limits, and thus in the course of time the burthen is equalized upon all, as every portion of the state makes its own improvements and enjoys their peculiar benefits. This practice was followed by another advance in the local mode of taxation. In cities and towns where population was dense the authorities began to make improvements of special advantage to certain of the citizens at their expense; such as footwalks in the front of dwellings, and pavements in those streets which were well built up, and where good carriage-ways were needed. Here, too, though a step far in advance of the system of general taxation, our notions of private right were not violated; for the advantages to the owners were so clear in the promotion of their convenience, and the enhanced value of their lots, caused by improved foot-walks and carriage-ways, that the burthen was duly compensated, and again equality was produced as each street or alley came to be paved. So far, public opinion and ancient and long-continued legislative practice have sustained local taxation with great unanimity, and this is strong evidence of the true interpretation of the constitutional power of the legislature to authorize municipal taxation of this sort. Indeed, the general acquiescence of the people in this exercise of the power is so clear, that few *359cases are to be found in tbe books, wherein any question has been made upon the power itself.

In two cases, coming under my notice, it was said that a municipal assessment upon property subjected to payment for local improvements, is not a tax: Pray v. Northern Liberties, 7 Casey 69; The Borough of Greensburg v. Young, 3 P. F. Smith 280. Technically the statement is true when we speak of a tax as ordinary revenue, but it is clear that in neither case it was meant to say, that such an assessment is not taxation within the general legislative power to tax, but only that it was not a tax within the Acts of Assembly requiring certain things to be done prescribed in the case of ordinary taxation for revenue. Had it been meant to say that such an assessment is not taxation at all, it would, in effect, deny the power of the legislature to authorize the assessment, a power which was affirmed in both of these cases.

In order to take the money or effects of the citizen and apply them to public uses, beside the power of taxation, I know none other than that of eminent domain. But such an assessment does not fall within the latter, for eminent domain acts only by a direct taking of the property for a public use, and by way of a compensation for the taking, in obedience to a constitutional injunction forbidding the property of the citizen to be otherwise taken. The power of taxation and eminent domain have always been clearly distinguished.

Next came another step forward in the exercise of the power of local taxation, but one more doubtful, and at first view not so easily perceived to be within the legislative power; that is to say, the assessment of the property of one man to pay the compensation due to another whose property has been taken for a public use. Here the right to assess seems to be further removed from the true source of the power, and it is more difficult to discern the liability of the few to pay what the state herself seemingly should pay by general taxation, for property taken under the power of eminent domain.

In consequence of this doubt the question was presented to this court in the case of McMasters v. The Commonwealth, 3 Watts 292. There the property of Nancy Knox and others was taken for the purpose of making a new street from the Diamond to Fifth street, in the city of Pittsburg, and their compensation ascertained by a jury of freeholders.

The McMasters lot was then assessed with a part of the compensation in proportion to the benefits found by the jury to be conferred upon the lot by the opening of the adjoining new street. The eminent counsel of McMasters, the late Judge Forward, seems to have considered the assessment of his property as an exercise of the power of eminent domain, and denied its validity upon the ground that the act proposed to take his property, or at *360least his money, and to compensate him in benefits. This he contended the legislature could not do, but must compensate him in money, citing Vanhorne v. Dorrance, 2 Dallas 315, on this point.

Justice Rogers, however, denying the authority of Vanhorne v. Dorrance, held that compensation under the Constitution need not necessarily be in money, but may be in whole or in part by actual benefits conferred; instancing the numberless turnpike and canal laws (to which railroad acts may be added), in which the viewers in estimating damages are required to take into consideration the advantages accruing to the landowner. And when he comes to consider the question as to the assessment on McMasters’s lot, he admits that it is a new feature in our legislation, yet thinks the principle not new: citing Livingstone v. The Mayor of New York, 8 Wend. 85. But what the precise principle is he does not very distinctly define, though in the main he seems to derive it from the power of local taxation for benefits received. It appears to me, when closely examined, this is its only true source. It is simply a new development of that principle of local taxation before-mentioned as undisputed, which assesses on the property benefited or its owner, a tax in proportion to the superadded value of the property, caused by the local improvement of which this property has a peculiar advantage beyond that of others not in like circumstances. For if we analyze the transaction, we shall find that the compensation paid to Mrs. Knox and others for their property taken to make the new street, is a thing wholly distinct from, and independent of, the money paid by McMasters. The assessment upon him is not simply by way of taking his money to pay them, but was by way of an assessment upon him for the benefits he received from- the improvement. His money, it is true, passes directly into their compensation, but this is merely to avoid circuity of payment, by an immediate appropriation of his tax. In principle, therefore, it is an independent transaction, and is the same thing as the money paid by an abutting lot-owner for the pavement before his door, into the public treasury, and thence paid out to the paver of the street. Yet in that case what difference would it make were the money of the abutting lot-owner appropriated directly to pay the paver ? provided his assessment be made on the principle of his paying according to his proportional benefit. Indeed, this is nearly the present system of paving streets in Philadelphia. The exercise of this power of assessments for benefits (as before remarked) is not by way of eminent domain, in the usual sense of this term, for it is not a taking at all, followed by compensation for the taking; but it is a special mode of taxation, which equalizes burdens, by a counterbalance of benefits, whereby those benefited more pay more, and those benefited less pay less It is thus special as contradistinguished from general taxation, but not special as making one man to pay all or more than his *361just proportion of a common burden. General taxation pays no regard to equality of burden, further than to lay the tax in proportion to the amount of the assessable property of each tax-payer, throwing out of view all questions of special benefit. So long, therefore, as the benefits of each- tax-payer are justly and impartially assessed under the special system, I cannot see that the general system is more just or impartial. Indeed, if faithfully executed the special system seems to be more equal and just, for, under the general system, some may be greatly benefited more than others, and yet pay but a small proportion of the tax, considering what they receive. For example, a poor man may send many children to school, while a man of large property, having none to send, may pay a large tax — and a man being greatly benefited by a public road may pay a very small proportion of the tax which keeps it up.

Taxation, according to benefits received, is neither unequal nor unjust, and cannot, therefore, come into conflict with those clauses in the Bill of Bights, which regard as sacred the right of private property. So long, therefore, as a law faithfully and reasonably provides for a just assessment according to the benefits conferred, and does not impose unfair and unequal burdens, it cannot be said to exceed the legislative power of taxation, when exercised for proper objects. It is on this ground only that assessment according to the frontage of property on a public street to pay for its opening, grading and paving, is to be justified. As a practical result, in cities and large towns, the per-foot front mode of assessment reaches a just and equal apportionment in most cases. Hence this mode has been deemed a reasonable exercise of the taxing power in such places, with a view to taxation according to the benefits received. Whatever doubt might have been originally entertained of it as a substitute, which it really is, for actual assessment by jurors or assessors under oath, it has been so often sanctioned by decision, it would ill become us now to unsettle its foundation by disputing its principle. But it is an admitted substitute, only because practically it arrives, as nearly as human judgment can ordinarily reach, at a reasonable and just apportionment of the benefits on the abutting properties. Hence the fairness of the rule of charging benefits by frontage was a conceded point in Hammett v. The City of Philadelphia, 15 P. F. Smith 155. But this rule, as a practical adjustment of proportional benefits, can apply only to cities and large towns, when the density of population along the street, and the small size of lots, make it a reasonably certain mode of arriving at a true result.

To apply it to the country and to farm-lands would lead to such inequality and injustice as to deprive it of all soundness as a rule, or as a substitute for a fair and impartial valuation of benefits in pursuance of law; so that at the very first blush, every one would *362pronounce it to be palpably unreasonable and unjust. Judged of by this rule for deciding in a question of constitutional power, the law in this ease cannot stand.

Whether we view this avenue as a macadamized highway, seven miles long or three hundred, the result is the same to those along its route. To charge its cost upon the farms lying within one mile on each side at a fixed sum per acre, is so obviously onerous and unreasonable, and leads to such a destruction of private right, and such unfairness of imposition for tho advantage of the public at large, and of individuals who pay nothing, it cannot, on any fair principle of reasoning, he said to be a valuation according to benefits. In other words, it cannot with any degree of truth be pronounced to be a proper substitute for a just and impartial valuation of benefits. This needs no reasoning to make it plainer than the proposition presents itself to the mind the moment it is stated. If unreasonable and not a fair substitute for a valuation made by a disinterested tribunal, acting according to the law of the land, then it plainly is not within the principle of the many decisions, in this and other states, recognising the per-foot frontage rule as a fair mode of measuring the benefits, and is consequently not a legitimate method of assessment upon the adjacent farm-lands. I admit that if we do not analyze the reason and trace the origin of the frontage rule, there is a seeming analogy between the Washington Avenue Act and many preceding it for the improvement of streets in cities and towns.

But reasoning by analogy is sometimes a dangerous source of error, and is always so, if we'fail to see that the analogy itself is accurate. In the present case, an examination of the facts in which the per-foot frontage rule is based, discloses at once the want of analogy between large farms with single occupants or owners, or wild or untenanted land, in the country, and the small lots of a crowded street in a populous town. The legislature therefore made a mistake in fixing such a burden upon the lands along the route of this avenue. It is in fact nothing more than a law to coerce certain landowners to pay for a public improvement in which their interest is no greater, and as to some of them not so» great, as that of many others who pay nothing; and it offends against the clear intent and spirit of the Bill of Rights. There is no case in our books, wherein the legislative power to tax has been maintained with greater vigor and ability than Sharpless v. The City of Philadelphia, 9 Harris, yet even there, the then Chief Justice admits (p. 166), that the exercise of the power may be forbidden by clear implication, as well as express restriction. “ It is not every act the legislature may choose to call a tax-law that is constitutional.” “ The whole public burden,” he contends, “ cannot be thrown upon a single individual, under pretence of taxing him.” This is a concession that taxation has a limit per *363se, and is not always co-extensive with, legislative exaction. When, therefore, the Constitution declares in the ninth article, that among the inherent and indefeasible rights of men is that of acquiring, possessing and protecting property, — that the people shall be secure in their possessions, from unreasonable seizures, — that no one can be deprived of his property unless by the judgment of his peers, or the law of the land — that no man’s property shall be taken or applied to public use without just compensation being made — that every man for an injury to his lands or goods shall have remedy by due course of law, and right and justice administered without sale, denial or delay — and that no law impairing contracts shall be made — and when the people, to guard against transgressions of the high powers delegated by them, declared that these rights are excepted out of the general powers of government, and shall for ever remain inviolate, they, for their own safety, stamped upon the right of private property, an inviolability which cannot be frittered away by verbal criticism on each separate clause, nor the united fagot broken, stick by stick, until all its strength is gone.

There is a clear implication from the primary declaration of the inherent and indefeasible right of property, followed by the clauses guarding it against specific transgressions, that covers it with an segis of protection against all unjust, unreasonable and palpably unequal exactions under any name or pretext. Nor is this sanctity incompatible with the taxing power, or that of eminent domain, where for the good of the whole people, burdens may be imposed or property taken.

I admit that the power to tax is unbounded by any express limit in the Constitution — that it may be exercised to the full extent of the public exigency. I concede that it differs from the power of eminent domain, and has no thought of compensation by way of a return for that which it takes and applies to the public good, further than all derive benefit from the purpose to which it is applied. But nevertheless taxation is bounded in its exercise by its own nature, essential characteristics and purpose. It must therefore visit all alike in a reasonably practicable way of which the legislature may judge, but within the just limits of what is taxation. Like the rain it may fall upon the people in districts and by turns] but still it must be public in its purpose, and reasonably just and equal in its distribution, and cannot sacrifice individual right by a palpably unjust exaction. To do so is confiscation, not taxation,. extortion not assessment, and falls within the clearly implied restriction in the Bill of Bights.

It is found by the master, and if it had not been found by him, it is perfectly obvious, that this avenue will be one of general public benefit; and specially that it will be of great convenience *364and individual benefit to citizens and taxpayers, beyond the limit of taxation along the road, both laterally and terminally.

Indeed, beyond its southern terminus its benefits reach a considerable distance into the county of Washington. This brings it within the principle of Hammett v. The City of Philadelphia, supra; expressed in these words, at the conclusion of the opinion of our brother Sharswood: “ Local assessments can only be constitutional when imposed to pay for local improvements, clearly conferring special benefits on the properties assessed, and to the extent of these benefits. They cannot be imposed when the improvement is either expressed, or appears to be, for general benefit.” I concurred in that opinion, and I see no reason to regret my concurrence; but on the contrary, I see in the present case much to confirm it; and the examination I have just made into the power of special taxation, it seems to me, tends to confirm and strengthen what was so well reasoned in Hammett v. The City. Indeed I consider it a fortunate circumstance that that case came up, for it led to an inquiry into the power of special taxation, which was in danger of running wild by insensible degrees, and leading, before we had become aware of it, into the exercise of a bastard power, dangerous to the right of private property, and violative of the provisions in the Bill of Rights, placed there for its protection. In questions of power exercised hy agents, it is sometimes the misfortune of communities to be carried, step by step, into the exercise of illegitimate powers without perceiving the progression, until the usurpations become so firmly fixed by precedents, it seems to be impossible to recede or to break through them.” The majority opinion in that case did not then, and this opinion does not now, dispute the long-recognised power of local taxation for local improvements, according to the benefits conferred; but they meet and dispute departures from that power, which if recognised, will land in the overthrow of the right of private property. Laws which cast the burdens of the public on a few individuals, no matter what the pretence, or how seeming their analogy to constitutional enactments, are in their essence despotic and tyrannical, and it becomes the judiciary to stand firmly by the fundamental law, in defence of those general, great, and essential principles of liberty and free government, for the establishment and perpetuation of which the Constitution itself was ordained. Should we now suffer this law to pass without judicial criticism and condemnation upon a false analogy of the frontage rule in cities and large towns, we should leave open a door for future impositions upon private property, so wide and specious, errors the most odious and of enormous proportions would enter in.

For these reasons the decree below is affirmed.