Kelly v. City of Pittsburgh. KELLY V. CITY OF PITTSBURGH. (85 Penn. St. 170.) - Taxation - farming lands added to city — lack of benefit. The limits of a city were extended by legislative enactment so as to embrace farming lands. The lands were taxed for municipal purposes, some of which afforded no benefit or protection to them. Held, a constitutional tax. (See note, p. 638.) ILL to restrain a tax. The opinion states the case. BILL A. N. and W. H. Sutton, for appellant. The city taxes these lands for fire, water, schools and city buildings, and yet none of these are necessary or available. The legislature cannot confer upon a municipality the power to tax property that receives no benefit or protection therefrom, and for purposes in which the people taxed have no interest. Sharpless v. Mayor of Philadelphia, 9 Harris, 147; Hammett v. City of Philadelphia, 15 P. F. Smith, 153; s. c., 3 Am. Rep. 615; Washington Avenue, 19 P. F. Smith, 352; s. c., 8 Am. Rep. 255; McKeen v. County of Northampton, 13 Wright, 524; Pittsburgh, Fort Wayne and Chicago Railway Co. v. Commonwealth, 16 P. F. Smith, 73; s. c., 5 Am. Rep. 344; Lewis v. County of Chester, 10 P. F. Smith, 329; Borough of Carlisle v. Marshall, 12 Casey, 402; Hilbish v. Catherman, 14 P. F. Smith, 159; Durach's Appeal, 12 id. 491; Grim v. Weissenberg School District, 7 id. 437; State v. Mayor of Newark, 18 Am. Rep. 729; 8 Vroom, 415; Weismer v. Village of Douglas, 64 N. Y. 91; s. c., 21 Am. Rep. 586; Bradshaw v. City of Omaha, 1 Neb. 16; State of Georgia v. Stanton, 6 Wall. 50. The mere extension of corporate terrítorial boundaries does not carry with it per se the right and power to tax for all municipal purposes: Seely v. City of Pittsburgh, 1 Norris, 360; s. c., 22 Am. Rep. 760; Hammett v. Philadelphia, 15 P. F. Smith, 146; s. c., 3 Am. Rep. 615; Washington Avenue, 19 P. F. Smith, 352; s. c., 8 Am. Rep. 255; Cooley on Taxation, 104 et seq.; Cheaney v. Hooser, supra; City of Covington v. Southgate, supra; Morford v. Unger, supra. Thomas S. Bigelow, city solicitor, and George Shiras, Jr., for the city. VOL. XXVII - 80 Kelly v. City of Pittsburgh. GORDON, J. The lands of James Kelly, the appellant, upon which the taxes complained of were assessed, were formerly within the township of Collins, and were afterward, under the provisions of the act of April 6, 1867 (Pamph. L. 846), made part of the city of Pittsburgh. That there may be no doubt concerning the subject-matter of the plaintiff's complaint, and that we may exhibit precisely the nature and character of his contention, we give the 6th paragraph of his bill in extenso. "It is competent for the legislature, with or without the consent of the citizens, to enlarge the limits of any town or city, and it is competent for the defendant (city), when the requirements of population, commercial and mechanical interests, sanitary or protective municipal purposes require it, to apply to city uses, the full extent of her territorial limits, but your orator expressly denies that such necessity or even propriety exists; on the contrary, large amounts of city territory, on either side and in front of your orator's farm, are occupied, held and owned, without prospects of demand for city purposes for many years to come. Your orator insists that by extension of city territorial limits, the character, situation and use of his said lands were not changed, but remain an improved and occupied farm as before, and agricultural lands only, having received no benefit whatever in the way of municipal improvements, aid, protection, convenience or care; and that, therefore, they are not in any sense liable to municipal or city taxation for any purpose whatever, for no single benefit has been received." Again, paragraph 18, latter part: "But your orator expressly denies that the defendant had any municipal jurisdiction over his said land, or farm, or any right to impose taxes thereon, for city or municipal purposes whatever." We are thus presented with the broad question of the right of the city to tax rural lands within its bounds for any municipal purpose whatever. It is not admitted that the city succeeded to the rights of the township in this respect, for this would be a surrender of the whole controversy, since it is not doubtful that the township had the power to tax these lands for every lawful municipal purpose whatever. The power of the legislature to transfer the plaintiff's farm from the one municipality to the other is admitted; indeed that power could not, in the face of Smith v. McCarthy, 6 P. F. Smith, 359, be gainsaid. But it is urged, nevertheless, that the city's power of Kelly v. City of Pittsburgh. taxation must be suspended until this land becomes necessary for city uses. Exactly what this means we are not informed, nor do we suppose it can be certainly known except from some judicial decree not yet rendered. No doubt the meaning of the plaintiff is, that this power of the city is to be suspended or to rest in abeyance until the city is so nearly built up to his lands that they may be advantageously laid out and sold as city lots, and until this occurs they are to be exempt from all taxes of municipal character. This proposition is novel in Pennsylvania, since we have uniformly, and heretofore without serious complaint, in boroughs as well as cities, taxed rural and even unseated lands for borough and city purposes. This doctrine is, however, supported by certain cases, cited by the learned counsel for the appellant, decided in the superior courts of Iowa and Kentucky. The bill seems closely to have followed these cases, and it is principally upon their authority that the plaintiff's case is rested. These decisions, whilst entitled to great respect, are not to be allowed to unsettle our own rules on the subject of taxation or change the current of our policy on that subject. They are, indeed, of doubtful authority; for Judge COOLEY, in his work on Taxation, when speaking of these very cases, remarks: That it is difficult to harmonize them with the conceded principles governing the laws of taxation; for they, not questioning the legislation as being in excess of authority, leave it to stand, and only interfere to qualify its effect on the ground that it has been adopted on improper grounds and will operate unequally. This is done on an inquiry into the facts and a substitution of the judicial for the legislative conclusion on a subject not at all judicial; a subject too - the proper limits of city extension - upon which persons are certain to differ widely, and where inquiry, after the judicial method by examination of witnesses, is usually much less satisfactory than that personal knowledge and investigation which legislators are supposed to possess or make. It has, indeed, the effect to suspend the legislation until certain conditions influencing the judicial mind are fulfilled. We need not stop to consider the inconvenience or uncertainty of such a condition of things, or how little consonant it would be with our settled modes of thought and action on subjects of this kind. There is, however, an element in the case in hand, which either did not exist in the cases alluded to or was not sufficiently considered; that is, the subjugation of the lands to previous municipal taxes. The argument in favor of their Kelly v. City of Pittsburgh. exemption would have more strength had they, previously to their attachment to the city, been subject only to State and county rates and levies; had they not been within the dominion of any municipality equivalent to that now complained of. But the plaintiff's property was subject to municipal taxes when it was yet in the township of Collins, hence, it is not subjected to any new or even greater powers than formerly; it has been but transferred from township to city. This element breaks the force of the plaintiff's argument, as it leaves him nothing of which to complain; for his complaint is not that his municipal burdens are greater in the city than they were in the township, but that as his lands are now situated the city has no power to tax them in any manner whatever. This is the bald proposition submitted for our discussion; a proposition requiring little consideration for its disposition, since there is here no room for the intervention of judicial interference, or for the exercise of judicial discretion. The legislature certainly did not exceed its powers in the act consolidating the two muncipalities, and as both had the power of taxation over their several territories, that power must remain with the present corporation, and the plaintiff's lands must continue liable for those rates and levies to which it was subject under the township government, otherwise they are exempt from those impositions for the maintenance of the public schools, the support of the poor and construction and repair of the highways, from which no one's property ought to be exempt. On the broad ground, therefore, on which the plaintiff has put his plaint, it cannot be maintained and must be dismissed. Considering it, however, from the less general, and most favorable point of view and it but comes to this: That the taxation is unequal and burdensome, and that the complainant is taxed for some things, as police and water from which, however necessary for the welfare of the municipality, he derives no benefit. Granted, that the tax is both unjust and unequal, it does not follow that the remedy is within the power of the courts; on the other hand, the contrary has been expressly ruled. In the case of Weber v. Reinhard, 23 P. F. Smith, 370; 13 Am. Rep. 747, Mr. Justice SHARSWOOD says, in commenting on the case of The Philadelphia Association v. Wood, 3 Wright, 73, "the idea that the court could pronounce a tax unconstitutional on the mere ground of injustice or inequality, was expressly repudiated." He further remarks: "There is no provision in the Constitution that taxation shall be equal. Sound Kelly v. City of Pittsburgh. policy requires that it should be, so far as possible, but perfect equality is not possible." So in Kirby v. Shaw, 7 Harris, 258, GIBSON, C. J., says, "As regards taxation, there is no limitation of it. Equality of contribution is not enjoined in the bill of rights, and probably, because it was known to be impracticable." That the person taxed derives no immediate personal benefit from the purposes to which the taxes are appropriated, is, in like manner, no argument against the constitutionality of the law imposing them. For if direct personal benefit were to form a criterion for taxation we should have half the community clamoring at our doors for relief. What interest, direct and personal, has the unseated land-owner in the schools or poor of the borough or township in which his lands lie? Or, for that matter, what interest has any one, not having children to educate, in the schools of either township, borough or city? Why shall one pay road tax when roads are of no benefit to himself or his property? Why shall he help pay the expenses of a fire department when his property is so situated that it may burn down before an engine can reach it? Or, why, either in the country or city, having a supply of water on his own premises, shall he pay a water tax? To these questions there is but one answer; these things are intended for the public good, and hence, every one is indirectly, if not directly, benefited thereby; the taxes levied for their maintenance are a public burden, and, therefore, every one must contribute to its support. If, however, this burden rests unfairly heavy upon some classes or upon some individuals, the remedy is not with the courts but with the legislature. As is said in Kirby v. Shaw, the judiciary could interfere only "by overstepping the limits of its sphere; by arrogating to itself a power beyond its province; by producing intestine discord, and by setting an example which other organs of the government might not be slow to follow." But the legislature has granted all the relief that the plaintiff and his class ought, in reason, to expect or ask, for at the time of filing of this bill, rural lands were authorized to be taxed at but two-thirds of the ordinary municipal rates, and now, by the act of May 5, 1875, Pamph. L. 124, at but one-half those rates. Thus the injustice and inequality of the taxation complained of has been, if not wholly obviated, at least very much mitigated. Again, taxation is peculiarly a legislative function, and, before we undertake to revise it, we should have a clear warrant therefor |