177 Pa. 292 | Pa. | 1896
Opinion by
The defendant is the owner of a large lot of ground in the city of Philadelphia, fronting on Richmond street about one thousand five hundred and forty-seven feet, and extending back to the Port Warden’s line on the Delaware river. Against this property, the city filed a municipal lien for part of the cost of constructing a sewer on Richmond street between Cumberland and Williams streets. Sci. fa. was issued on the lien, to which defendant made affidavit of defense, of which this is the material averment:
*295 “The said large lot of ground is entirely and exclusively used as the tidewater coal and iron ore terminal of the Philadelphia & Reading Railroad Company.
“ As appears by the said plan, which is an accurate representation of the place, it is covered throughout with a great number of diverging railroad tracks, the said main line entering the property near Somerset 'street, and spreading out and running to the ends of the wharves, some twenty in number, whereby coal is shipped into vessels for export and iron ore is received from vessels bringing the same here and loaded into the cars for inland transportation. Engines traverse all the tracks as upon other parts of the railroad.
“ The said lot of ground is an absolutely necessary part of the railroad of the said company.”
There was a rule for judgment for want of a sufficient affidavit of defense, which the court below, in opinion filed (4 Dist. Rep. 453), made absolute, and defendant appeals.
It was decided the roadbed of a railroad is not, as land, subject to general taxation, nor to special assessments for city improvements, in City v. Railroad Co., 33 Pa. 41. This case was decided in 1856, but not reported and published until 1859, so that the act of April 21, 1858, P. L. 385, could not have been before the court. The facts of the case show it was a scire facias on a municipal lien for paving along the railroad which occupied a strip of land two thousand and forty-six feet long by forty-seven feet wide. The court below says: “ The single question is whether the remedy by scire facias on the claim filed can be enforced against a corporate body clothed with the usual railway franchise. The process which the plaintiff seeks to use is directed wholly against the soil of the railway, together with the structure of the railway itself, and upon a judgment upon it for the plaintiff, this corpus may be sold under a levari facias to the highest bidder at a sheriff’s sale. To authorize this would be to inflict a serious public evil; and tins, too, without the pretext of a benefit having been received by the company by reason of the paving of the public highway contiguous to the railroad.” The court then cites a number of cases in this state which hold certain kinds of real estate cannot be taken away from the company by sale under the ordinary forms of adverse process ; that even conceding the railroad company might be charged in some
The decisions of the court below and this court are based mainly on the absence of statutory authority to seize and sell for assessments the roadbed of a railroad company as land; and reasons of more or less force are given why the absence of such authority is wise.
While the facts in this case show'the decision was eminently just, for the sale sought to be enforced by a levari facias was of a strip of land only forty-seven feet wide, on which was the actual structure of the railroad, yet the cases decided up to that time show the exemption of property from taxation on the plea that it was an indispensable part of the corporate franchise, had reached a point which in the legislative mind was no longer tolerable. Water stations, depots, toolhouses, reservoirs, houses and gardens of lock-tenders and collectors, engines and machinery for raising cars up planes, collectors’ and engineers’ offices, all were exempt on the ground they were indispensable to the exercise of the franchise. As noticed, this last decision was in 1856, but then came the act of April 21, 1858, which contains this provision: “ The offices, depots, car-houses and other real property of railroad corporations situated in said City (Philadelphia), the superstructure of the road and water stations only excepted, are and hereafter shall be subject to taxation by ordinances for city purposes.” From its plain words, this was not an act defining what amount or what character of taxes might be imposed on corporate property, but an act declaring what property thereafter should not be exempt and what should be from taxation. It brought again within the taxing power a very large amount of property which under the former decisions of this court had escaped. And it declared in explicit terms the superstructure and water stations should be exempt. Although the word superstructure might, in present railway engineering
But it is argued the words, “ subject to taxation by ordinances for city purposes,” only mean taxation for ordinary revenue, and give no authority to assess for municipal improvements. Under the authorities the word taxation does not always indicate a power of assessments for local improvements; the purpose as well as the language of the act may exclude such power. But this act plainly includes the power. The purpose as declared in the preamble is the equalization of the public burden; the burden, under the decisions, had not been theretofore shared equally, if the landowner for fifteen hundred feet of a large lot on one side of Richmond street escaped assessments for municipal improvements, while the lot owners on the opposite side paid the whole; the intention was inequality should be remedied: how? By conferring power to tax it by “ordinance for city purposes.” The construction of the sewer is a city purpose ; therefore the power to assess for payment of the cost of it, theretofore limited, is thereafter almost unrestricted. The power conferred is intended to be ample, that the evil before existing because of want of it should be remedied. We are of opinion this act conferred fully on the city the power here claimed to assess by ordinance railroad real estate for local improvements.
The Junction Railroad case, 88 Pa. 428, following City v. Railroad Co., supra, declares the roadbed exempt, but recognizes the well marked distinction made by the act of 1858 between the roadbed and other real estate of the company. The claim in the Junction Railroad case was filed against the strip of land constituting the roadbed, and on that ground, was not sustained. Nor can the roadbed here be made subject to this lien. Just what portion of this land is subject to lien for this assessment we do not decide. Clearly a large part of it is not roadbed. The affidavit and map filed show a large part of the land is a coal yard or terminal. Defendant by its act of incorporation is authorized to appropriate for roadbed a strip of land
In Howard Street, 142 Pa. 601, our Brother Mitchell, in passing on the constitutionality of this act of 1858, as to the apportionment of benefits and damages, suggests that serious difficulties may arise from lack of provision for collection and distribution, but he says, none of them arise in that case and they may never arise. A similar question was raised in Berks Street, 12 W. N. C. 10, where the court says, it is something with which it has nothing to do. The same argument is presented here, that is, the insufficiency of the process to enforce the judgment. We might pass the question, as was- done in the other cases, as one which could only arise when the writ was issued on the judgment. But the difficulties presented in the cases cited, which were to assess and apportion damages and benefits caused by the opening of streets, do not appear here. The city has' its judgment in rem against land on which defend
The judgment is affirmed.
