“The power of appropriation being given to the public only and only for the public use, it follows that the public, the taker, must pay for what it takes, because he who takes from another should himself make restitution, not compel others to pay for what they have not taken.”
The language of the decision is given since it is believed to be the most pointed judicial expression of the chief argument against the validity of special assessments. It is in substance a decision that a tax, unless uniformly levied, amounts to an illegal taking of private property. In this respect the decision is contra to the great weight of authority in the United States.
In 1912 the people of Ohio ratified the following constitutional amendment which makes the law of Ohio uniform with that of the rest of the country:
“Section 11. Any municipality appropriating private property for a public improvement may provide money therefor in part by assessments upon benefited property not in excess of the special benefits conferred upon such property by the improvements. Said assessments, however, upon all the abutting, adjacent, and other property in the district benefited, shall in no case be levied for more than fifty per centum of the cost of such appropriation.”[38]
In Missouri we find St. Louis making no special assessment for the cost of taking park lands, but in the same state Kansas City assesses the entire cost of park acquisition on the land specially benefited.
In Massachusetts, since 1882, park commissioners have been allowed to assess an amount not exceeding one-half of the special benefit, but no assessment can be laid upon any land except such as abuts on a park or on a way bounded by a park.[39] Whether because of official inertia, or because of the ineffectiveness of the legislation due to its cumbersome machinery or to the limitation on the assessment area, special assessments have been rarely levied. Inquiry in ten of the largest cities in the state shows that only in two has there been any use of this power, and that quite infrequent. In takings by the Metropolitan Park Commission of Massachusetts, the practice is to levy no assessment; but where owners are compensated for land taken or damaged, the amount of their compensation is reduced by the amount representing the special benefit to the land remaining by reason of the improvement. Owners whose land is not taken may be equally benefited, but the benefit is not assessed.
The New York practice shows interesting changes from the time of the acquisition of Central Park to the present. Both the creation of Central Park in 1853 and of Prospect Park, Brooklyn, in 1865 were considered to benefit property in the vicinity, and that benefit was held to diminish with the distance from the park. Of the entire land cost of Central Park, $1,657,590, or 32 per cent, was assessed on property specially benefited, and the assessment was collected in one instalment. Of the entire cost of Prospect Park, $1,236,655, or 38.5 per cent, was assessed on private property specially benefited.
The report of the park commissioners for 1867 does not give the valuation of the property in the area assessed because of special benefit due to the creation of Prospect Park, and it is now possible only to approximate the proportion of increase in value which the special assessment represented. Roughly, the special assessment district in the Prospect Park case included 30 per cent of the area of ward 8, 12 per cent of ward 9, and 20 per cent of ward 20. The value of the assessed portion of ward 8 in 1865 has been reckoned at 30 per cent of the entire valuation of the ward, or at $1,200,000. The increase in value in the area assessed in ward 8 is estimated to be 400 per cent as against an increase in value of 100 per cent in other parts of the city since 1865. At this rate its assessed value in 1905 would be $6,000,000; estimated value at the ratio of increase of the rest of the city, $2,400,000; increase in value assumed to be largely due to the improvement, $3,600,000. Since the entire assessment over the three wards was only $1,236,655, we may conclude with due allowance for inflation of values and inaccuracy of estimates that the special assessment was not in excess of the special benefit to the property.[40]
The figures for Central Park are even more striking. Value of land assessed for benefit (half the valuation of wards 12, 19, and 22), $13,250,000; estimated value of land of this same area in 1873, $118,000,000; estimated value at the ratio of increase of the rest of the city at 100 per cent, $26,500,000; increase in value due to the improvement, $91,500,000; amount of special assessment, $1,657,590. Here, too, the valuations are probably inflated and the estimate of the valuation of assessed property is no better than a rough guess, but the margin of increase over the special assessment is wide enough to justify the conclusion that land owners were not unfairly burdened by the share of the cost of the improvement levied against their property.[41]
From the consolidation of Greater New York under the charter of 1901 to the year 1907, there was a legal reason for the city assuming the entire cost of acquiring title to parks, since a resolution of a “local improvement board” was considered necessary before any part of the expense of acquiring land could be assessed as a special benefit on a local district. The decision of the court of appeals of March 5, 1907, seems to change the impression in this regard. The case was Rose Reis vs. City of New York,[42] which is held to have decided that the board of estimate and apportionment has the right to initiate local improvements and to provide for the assessment of their cost against property deemed to have received a special benefit. Following this decision the board of estimate and apportionment resolved that property specially benefited by parks should be assessed for their cost. Previous to that time requests for parks frequently had come from local sources, and the first striking result of the action of the board was the falling off in such requests.