Platt v. Towns of Milton & Colchester

58 Vt. 608

• Court: Supreme Court of Vermont
• Decided: January 15, 1886
• Status: Published

Opinion

The opinion of the court was delivered by

Powers, J.

The general policy of the legislature respecting the burden of building highways is expressed in sec. 2913 R. L., which provides that “highways shall be laid out, made and repaired, and damages to land-owners paid, by the town in which such highways are situated, except as otherwise specially provided by law.”

Although highways are built for the use of the public generally, yet it is ordinarily true that the inhabitants of the towns in which they are situated have a special and more enlarged use of them than other portions of the public, and for this reason such towns are compelled to build them. This is one of the numerous instances in which local taxation for a public use has been upheld as a valid exercise of the taxmg power. Such taxation, however, is only warrantable upon the theory that highways are built for public use, — for purposes of public travel. If built for private use or to promote private interests merely, public taxation cannot be imposed, for their construction. These propositions are too elementary to require the citation of authorities.

Sec. 2975, and following sections of the Revised Laws, provide for the cases in which other towns are compellable to contribute towards the construction of highways. If the town in which the highway is situated would be excessively burdened by defraying the whole expense of its construction, other towns in the vicinity benefited by the construction of such highway may be assessed for a portion of such expense. The benefit contemplated by the statute as the basis upon which neighboring towns are assessed, is precisely the same benefit in kind as that shared by the town primarily liable for the expense of constructing the highway, namely; a benefit gained by the use of the road for purposes of travel. The assessed town can be taxed for this purpose on the same ground only as the town in which the road is situated; that is, that its inhabitants have a larger use of the road than the general public. Neither town can be taxed on the ground that its business interests will be subserved by the construction of the road.

The County Court found that the inhabitants of Burlington did not need the proposed road; that they will not use it much; but held as matter of law that it was enough to warrant an assessment upon the city that the road would bring increased trade and business to the inhabitants of the city. This doctrine calls for the imposition of taxes upon the city to foster the interests of its business men, which is clearly an unconstitutional exercise of the taxing power.

The judgment of the County Court is reversed and judgment rendered on the report that the city of Burlington be dismissed without costs, and the cause remanded to the County Court to be further proceeded with.