Kelly v. City of Pittsburgh.

in the letter of the Constitution. "A tax law must be considered valid, unless it be for a purpose in which the community taxed has no palpable interest when it is apparent that the burden is imposed for the benefit of others, and when it would be so pronounced at first blush." Sharpless v. The Mayor of Philadelphia, 9 Harris, 147 (BLACK, C. J.); Speer v. Blairsville, 14 Wright, 150 (AGNEW, J.). But in the present case there is no doubt that the community, called the city of Pittsburgh, of which the plaintiff is a member, has a direct and vital interest in the taxation complained of, and such being the case, there is an end of our power to grant relief. It will not do for us to stop to consider the peculiar interests of the individual as segregated from the community, for if we should so do, few tax laws could be enforced, since it often if not generally happens that such laws bear hardly upon some individuals, and not unfrequently individual interest is opposed to that of the public. We must have regard to the public welfare. If it be not shown to us that the legislation is for the promotion of the good of some other party or community than the one taxed, we have no right to pronounce it unconstitutional. The individual must be regarded as interested in the public welfare, hence his interest must be looked for in that of the community of which he forms part. Now, it may be true that the plaintiff is not personally benefited by either the educational or poor department of the city; but neither is any one not having children to educate, and not being himself a pauper. Yet, for such reason, we are hardly prepared to stay the hand of the collector of school and poor rates. He may not be personally benefited by the fire or police department; but the general municipality is largely benefited thereby, and his welfare is found in the prosperity of that municipality. As was well said by the learned master to whom this case was referred, the value of the plaintiff's property has heretofore depended upon the growth and prosperity of the city; but these, in turn, depend upon the character of the city streets and police department, and upon its water, gas and educational facilities. Without these it would fall into decay, and the value of real estate within the boundaries of the municipality. including that of the complainant, would be incalculably reduced. It is thus apparent that the plaintiff has not only a general, but a direct interest in the objects which the taxation complained of is intended to promote. Decree affirmed.

AGNEW, C. J., and STERRETT, J., dissent.

Kelly v. City of Pittsburgh.

NOTE BY THE REPORTER. — In consideration of the importance of this question, we subjoin portions of the dissenting opinion of AGNEW, C. J.:

"If the legislature can, by a mere extension of boundary, authorize the city to tax farm lands for purely city purposes, it might, without extension, direct all farms within given lines, outside of the city, to pay these city taxes. Thus, when we get rid of that confusion of thought which confounds extension of boundary and power of taxation, we perceive that taxes laid on mere farm lands to pay city levies applicable only to the built-up or true city, is nothing more than an order to farmers to pay for the benefit of the city residents; it is taking the money of A to pay for improvements made for the use of B. This is palpably and flagrantly unjust, and, therefore, against common right. If the legislature itself cannot compel farmers to pay city taxes for purely local purposes in which they have no share, it is clear it cannot authorize the city to do indirectly what it cannot do directly. An order, with or without the extension of boundary, upon a certain class to pay taxes for local benefits conferred on others, is wholly different from a power to lay a general tax for the support of government. The latter is a power to which every citizen of a State submits himself in consideration of the general benefits derived from government. But as to the former, it is well said, in Bradshaw v. The City of Omaha, 1 Neb. 16, that the object is to make the owners of farms divide the expense of supporting the municipal government with those who need it; that the true city is the built-up part, while the levy of taxes on farms is to confiscate property outside for the benefit of those within the true city. See, also, Taylor v. Porter, 4 Hill, 140; Holden v. James, 11 Mass. 396.

"The power of the legislature is clear to divide the State, for convenient local government, into countles, townships, cities, boroughs, etc., conferring on each an appropriate autonomy. But in doing this, the powers conferred must be adapted to the ends to be accomplished by each. A sound and large discretion is necessarily exercised in this adaptation of powers. But it is equally clear that the powers conferred must have a reasonable appropriateness to the end proposed. Such an exercise of power only can fairly comport with the true and acknowledged principles of our American governments, which are all founded on the rights of the people, and for their peace, safety and happiness' • Section 2, Declaration of Rights, New Constitution. These principles are well stated by Justice CHASE in Calder v. Bull, 3 Dall. 386. The people of the United States,' he says, 'erected their Constitutions or forms of government to establish justice, to promote the general welfare, to secure the blessings of liberty, and to protect their persons and property from violence. The purposes for which men enter into society will determine the nature and terms of the social compact, and as they are the foundation of the legislative power, they will decide what are the proper objects of it. The nature and ends of legislative power will limit the exercise of it.' Again: There are acts which the Federal or State legislatures cannot do without exceeding their authority. There are certain vital principles in our free republican governments which will determine and overrule an apparent and flagrant abuse of the legislative power; as, to authorize manifest injustice by positive law; or, to take away that security for personal liberty or private property for the protection whereof the government was established.'

"The same thoughts were thrown out by Chief Justice MARSHALL, in Fletcher v. Peck, 6 Cranch, 87: It may well be doubted,' he says, 'whether the nature of society and of government does not prescribe some limits to the legislative power, and if any be prescribed, where are they to be found if the property of an individual, fairly and honestly acquired, may be seized without compensation? To the legislature all legislative power is granted; but the question whether the act of transferring the property of an individual to the public be in the nature of the legislative power, is well worthy of serious reflection.'

"This is precisely the question before us, whether, under the mere name or color of taxation, the legislature can confer on a city a power to transfer the money or property of farmers outside of the true city to those who live within it, for purposes by which they alone are benefited?

"The inviolability of the right of private property and the natural boundary of the legislative power has been enforced already in this State in the case of Washington

Kelly v. City of Pittsburgh.

Avenue, 19 P. F. Smith, 363, in these words: 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 searches and seizures; that no one can be deprived of 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 have declared that all these rights are excepted out of the general powers of government, and shall forever 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 ægis 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 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 by 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 restrictions of the bill of rights.'

"Therefore, while we concede the wide range to be given to legislative discretion in adapting the means to the end, that is, to the purposes of local government, there is a limit beyond which the legislative power cannot sacrifice the sacred right of private prop erty. This limit is reached when it palpably and plainly sacrifices this right, which the people themselves have jealously guarded against transgression in their fundamental law. There must be, therefore, a reasonable appropriateness in the means employed to execute the legislative purpose. This has been well expressed by Chief Justice MARSHALL, that bright luminary of constitutional law, in discussing the power of Congress, under the 19th clause of the 8th section of the 1st article of the Federal Constitution, to make all laws necessary and proper for carrying into execution the Federal powers. But we think," he said, 'the sound construction of the Constitution must allow to the national legislature that discretion with regard to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which plainly are adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional.' McCulloch v. Maryland, 4 Wheat. 316. The italics are mine.

"This was said by that great jurist of an express power to pass all laws necessary and proper to execute expressly conferred powers- the means must be appropriate-must be plainly adapted to a legitimate end-one not prohibited, but consistent with the letter and spirit of the Constitution. How much stronger, then, does the language apply to a case like this, where no express power over the means is given, but the power is left to be inferred only from its appropriateness.

"The taxing power conferred on the city, therefore, cannot extend to such a case as this, where a ruinous burden is laid on land wholly rural and outside of the city proper, for purely local and city objects, in which Mr. Kelly, the owner, has no interest. This dis

Kelly v. City of Pittsburgh.

tinction between local taxation for purely local purposes, and general taxation by the State, in which all are interested, cannot be overlooked or thrust aside. It is the very pivot of the question. People v. Mayor of Brooklyn, 4 Comst. 419; Morse v. Stocker, 1 Allen, 159. It is not the extension of boundary which is unconstitutional, but it is the imposition of a burden, where it is palpably and flagrantly unjust and contrary to common right. Bradshaw v. Omaha, 1 Neb. 16.

"We are not without very respectable and numerous precedents for the doctrines contended for. The very point in question is decided in the following cases: Cheeney v. Hooser, 9 B. Monr. 330; Covington v. Southgate, 15 id. 491; Morford v. Unger, 8 Iowa, 82; Langworthy v. Dubuque, 13 id. 86; Fulton v. Davenport, 17 id. 404; Bradshaw v Omaha, 1 Neb. 16. The opinions in some of these cases are elaborate, well considered and very convincing to my mind.

"Much of the answer given to this view of the natural right of property secured by constitutional limitations is a mere criticism on words. Thus it is said the protection claimed refers only to the power of eminent domain, which relates to a taking, not a taxation, of property. Even this clause is entitled to a liberal interpretation. Pearce's Heirs v. Patton, 7 B Monr. 162. But the declaration of rights does not confine its protection to this clause when it declares the inherent right of private property, and places it on the same high plane of protection as the rights of life and liberty, or when it declares that the possessions of the people, as well as their persons, houses and papers, shall be secure from unreasonable seizures; and when it asserts that free governments are instituted for their peace, safety and happiness. Indeed, the whole circle of fundamental rights rise up in earnest protest against the doctrine of the absolute despotism of the legislative power over property; while the clause relating to the power of eminent domain only strengthens the protest. It is not the province of the courts, which stand between the citizen and the abuse of power by public servants, to fritter away these clauses to mean next to nothing. Eminent domain is simply high and eminent domain, and is but another name for sovereignty. Specially, it is but one of the powers of sovereignty, which includes the taxing power as well as that which takes. Taxation exacts of the owner of property a share of the public burdens, as his just proportion, for the benefits received from the government. Eminent domain goes a step farther, and takes more than a just share, and, therefore, awards compensation for the excess. People v. Brooklyn, 4 Comst. 420. But it is evident that both are founded on the consideration of benefits conferred in some form. Sovereignty, in a constitutional government under a bill of rights, imports no arbitrary power for any purpose. What is taxation but a delegated power, and, therefore, subject to the fundamental rights of men, which government is intended to protect when the exercise of this power conflicts with them without just cause? If the power to tax be absolute and unbounded by just cause, there is no protection whatever. You cannot take property without just compensation, but you may tax it to destruction. You may not lop off a limb or cut off the head without a just cause, but you may bleed the whole trunk to death. Or if you cannot find a good cause, you may presume it; or you may find it in some infinitesimal quantity to furnish a pretext. Clearly, the power of taxation is not so destructive. It is bounded by the exigency which calls forth its exercise. Kirby v. Shaw, 7 Harris, 259, a case admittedly on the verge of the taxing power, contains probably the strongest expressions of the absolute character of the taxing power; yet these must be taken in reference to the case itself which called them forth, and it was one where a special benefit was conferred on the borough of Towanda, and the chief justice made this the corner stone of his argument.

"In discussing this question, the advocates of unlimited power ignore the distinction so palpable between the general power of taxation for the benefit of the whole State, though laid in districts, and the imposition of local burdens in return for specific benefits. As to the former, all men participate more or less in the general advantages of government; but there can be no such postulate for the latter where it is palpably clear the local burden is imposed without just cause and is plainly for the benefit of others. And a court must regard a substantial return not a merely speculative or shadowy benefit, which amounts to no more than a pretext.

"When, therefore, the exercise of the power of local taxation is manifestly arbitrary and palpably unjust and without just cause, when, according to Chief Justice MARSHALL, it is VOL. XXVII-81

City of Erie v. Caulkins.

not 'appropriate' to the true purpose of local or city government, it is not constitutional, it infringes the fundamental rights of the citizen and is void. This is the rule laid down in Sharpless v. City of Philadelphia, 9 Harris, 164, and many other cases to determine the constitutionality of laws: Fletcher v Peck, 6 Cranch, 87; Cooper v. Telfair, 4 Dall. 14; Eakin v. Raub, 12 S. & R. 339; Commonwealth v. Smith, 4 Binn. 123; Cheeney v. Hooser, 9 B. Monr. 330; Morford v. Unger, 8 Iowa, 82; Bradshaw v. Omaha, 1 Neb. 16. In this case it is palpably, clearly plain, that as to gas, water, fire and police, Kelly's farm is taxed for purely city purposes in which it has no share. It is perfectly manifest that his money is transferred to a local use for the benefit of others Why, then, shall a court hesitate to pronounce the burthen contrary to right, and void?"

By

A city employed a contractor to construct a sewer in one of its streets. the contract, power was reserved to the city engineer to direct changes in the time and manner of conducting the work, and the contractor was held responsible to indemnify the city for any damages it should be subjected to in consequence of his neglect; and the contractor executed a bond to the city for such indemnity. The plaintiff was injured by falling into the excavation, carelessly left unguarded. Held, that the city was not liable to the plaintiff therefor. (See note, p. 647.)

A

CTION for personal injuries. The contract mentioned in the opinion contained the following specifications: "The contractor will be required to guard the public effectually from liability to fall into the trenches or from upsetting their vehicles against the earth thrown from them, during the whole progress of the work, both by night and by day; and will be held responsible for any damages the city may have to pay in consequence of neglecting the necessary precautions.

"The contractor will be required to dismiss from his employment all incompetent or unfaithful persons; also, to keep in perfect repair, for six months after its completion, the whole of his work, except in cases where the repairs may be rendered necessary by causes clearly beyond his control.

"All the work to be commenced and carried on at such times and in such places and in such a manner as the engineer shall direct, he being aided by his assistants and inspectors. No work will be paid for unless accepted by the engineer or some other person