104 Pa. 522 | Pa. | 1883
Lead Opinion
delivered the opinion of the court, January 7th 1884.
These six cases were argued together. They present substantially the same question. The contention is, whether taxes, for city purposes, may lawfully be assessed, by the city of Pittsburgh on certain property situate therein, owned by these corporations ?
The property of the railroad companies consists of freight stations, offices and depots, round-house, machine shops, passenger stations and ground covered by tracks, and used as ways of approach to the stations and buildings used in connection with the railroads : and the property of the Passenger Railway Company is occupied for the stabling of horses of the company. It is found as a fact in each case, that the property is such as is ordinarily and properly pertinent to the several railroads, and to the railway, as such, and is strictly necessary for their proper operation in exercising their several franchises, that the property is used exclusively for such purposes, and was so used during the years for which the taxes in question were assessed,, and that the property was not then or now assessed as taxable for county purposes.
It is conceded, under the legislation existing prior to the Act of January 4th 1859, P. L. 828, that this property would not bo liable to taxation as real estate. Its exemption from such taxation was settled by a long line of cases, among which are: Ridge Turnpike Company v. Stoever, 6 W. & S. 378; Lehigh Coal & Navigation Company v. Northampton County, 8 Id. 337; Railroad v. Berks County, 6 Barr 70; Navigation Company v. Same, 1 Jones 202; Wayne County v. Del. & Hud. Canal Company, 3 Harris 351; N. Y. & Erie Railroad Co. v. Sabin, 2 Casey 242; West Chester Gas Company v. The County of Chester, 6 Id. 232; Carbon Iron Company v. Carbon County, 3 Wright 251.
While the language of previous Acts, subjecting teal estate to taxation, was broad enough in its general terms to include the public works of a corporation, used as such, with the necessary appurtenances, yet the courts held they were exempt from taxation as land, but were subject to it in another form: Coatesville Gas Co. v. County of Chester, 1 Out. 476. The cases rested on the presumed intention of the legislature, iu the absence of express declaration, not to subject such property to taxation as land. The power, however, of the legislature to make it subject to taxation as real estate, cannot be successfully denied. The taxing power in this Commonwealth is vested absolutely in the legislature, and when not prohibited by the Constitution, it is limited in the exercise of that power by its discretion only. It may tax every species of property perma
Legislative power to tax the property in question as real estate being clear, it remains only to consider whether the legislature has authorized it to be so taxed. This depends on the effect to be given to the Act of 4th January 1859. It is entitled “ An Act to enable the city of Pittsburgh to raise additional revenue.”' A very natural and effective way to raise more revenue, was to impose taxes on property which at that time was exempt from such taxation. Therefore section 3 of the Act declares “ that all real estate situated in said city, owned or possessed by any railroad company shall be and is hereby made subject to taxation for city purposes, the same as other real estate in said city.”
This Act contains no obscure language. It expresses no doubtful meaning. It speaks so clearly that it cannot be misunderstood. Its purpose is distinctly stated in the title. To that end the enacting clause provides that “all real estate” in the city belonging to any railroad company shall be “ subject to taxation for city purposes the same as other real estate in the city.” Other real estate in the city was then taxable for city purposes. Up to that time all the real, estate of any railroad company was not subject to taxation the same as other real estate for the purpose named. Thenceforth, for that purpose, no distinction was to be made between the real estate of a railroad corporation, and that owned by any individual: The lawmakers are presumed to have known that this property was then exempt from such taxation. All other real estate of any railroad company outside of that in question was already subject to this form of taxation. Unless the intention of the'Act was to bring this property within the taxing power of the city, this section has no meaning. We cannot impute to the legislature the folly of assuming that it did not intend to produce a practical result for the benefit of the city. The fact that such property had theretofore been held to be an incident to the corporate franchises of the railroad companies, matters not. It nevortheless was real estate. Land purchased and owned by- copartners as partnership' .property, may, for many purposes, be
. ' It is claimed that the property is exempt from taxation as real estate, under the authority of "Wayne County v. Delaware and Hudson Canal Co., supra, notwithstanding the Act of 1859. At first view that case might appear to sustain this claim. A careful examination of the case, however, leads to a different conclusion. The Act authorizing the canal company in that case, to improve the navigation of the river, declared that “ the property of said company, whether real or personal, within this state, shall at all times be liable for its debts and subject to taxation in like manner as similar property held by an individual or by a corporation now is or may be.” The preamble to the Act recites the fact that the canal company had been incorporated by the legislature of the state of New York : and by the Act of our legislature of 1st April 1825, P. L. 141, the company was authorized “to purchase and hold any quantity of lands situate at any place within ten miles of the waters of the Lackawaxen, not exceeding five thousand acres.” Undoubtedly the purpose of the clause first quoted was to make all the property of the company within this state liable for its debts and subject to taxation. How liable, and how subject ? It did not attempt to create any new forms of proceeding: but to preserve and apply the forms of law then applicable to each kind of property. Its property was to be liable for its debts and subject' to taxation, “ as similar property held by an individual or by a corporation.” That is, so much of its property as was subject to sale on execution or to taxation as individual property might be so sold and taxed ; but such other property as it held and used as essentially necessary for the enjoyment of its franchise was to be held liable for its debts and subject to taxation in like manner as similar property held by a corporation — that is, by'other corporations. The exemption of such property of a corporation from taxation as real estate, was then well recognized law.' The Act does not contain anything indicating an intention to change the manner of its taxation. The court therefore ruled that case On the general principle recognized in other cases where the charters did not contain such language. It is not. applicable to' the present case.
we discover nothing to exempt the Passenger Railway Company from the operation of the Act of 1859. Such a company is within the intent and spirit of the Act, making its real estate subject to taxation as such: Hestonville, Mantua and Fairmount Passenger Railroad Company v. Philadelphia, 8 Norris 210.
Judgment affirmed in each,ease.
Dissenting Opinion
filed the following dissenting opinion, in which Paxson, J., concurred.
For more than half a century it has been the imdoubted law of this Commonwealth that the works and structures of railroad and canal companies, which are essential to the exercise of the corporate franchise, are not taxable under the designation of “real estate,” “houses,” “lands,” “ lots of ground.” Thus in Lehigh Coal & Nav. Co. v. Northampton Co., 8 W. & S. 334, decided in 1845, it was held that the bed, berme-bank and tow-path of an incorporated canal are not taxable as land or real estate under the Acts of 15th April 1834 and 29th April 1844, nor are the toll-houses and collectors’ offices belonging to the canal and incident thereto. The express words of the Act of 1834 declared that, “real estate, viz: All houses; lands, lots of ground,” &c., &c., should be subject to taxation. The Act of 1844, § 32, declared that “all real estate, to wit:' houses, lands, lots of ground. . . and all other real estate not exempt by law from taxation,” should be assessed and subject to taxation for all state and county purposes. In considering the application of this language in the case above cited, Kennedy, J., on p. 337 said: “ But if the lock-houses and collectors’ offices attached to the canal belonging to the plaintiffs in error, are to be considered as constituent parts of the canal, or necessarily incident thereto, it will be very difficult, if not impossible, fairly to show that they are embraced within the list of enumerated articles above. If the lock-houses and collectors’ offices be necessarily incident to the canal, of which I think there is no doubt, they cannot well be considered as either lands, houses, or lots of ground, according to the true meaning of the Acts recited, and a fair interpretation thereof.”
The same doctrine was applied in Navigation Co. v. Commissioners, 1 Jones 202, to the case of a toll-house which was also occupied as a residence by the collector. Kogees, J., ori p. 204, in speaking of the house and this use of it, said, “ It is nevertheless a constituent part of the canal, necessarily incident thereto, within the meaning of the decisions already cited.
In Railroad v. Berks Co., 6 Barr 70, the distinction was more definitely taken between such buildings and works as are necessary, and such as are only convenient, to the exercise of the franchise, holding that the former are to be regarded as a part of the franchise or principal structure, while the latter retain their character as real estate in .the proper sense of that term. Water stations, depots, offices,'oil houses, places to hold cars, and such buildings and places as may fairly be deemed necessary and indispensable to the construction of the road, were held to be free from taxation as “real estate,” or “ houses” or “ lands,” for the reasons given in the previous decisions.
In Railroad v. Sabin, 2 Cas. 242, we held that the machine-shops, foundries, freight and passenger houses of a railroad company, were not subject to taxation under the Acts of 1834 and 1844, because they were used to carry on the business of the company, and the expense of their erection was charged to the cost of construction, and represented, in part, the stock which was subjected to taxation. In West Chester Gas Co. v. Chester County, 6 Cas. 232, the doctrine was extended to the necessary works of a gas company. This decision was followed in Coatesville Gas Co. v. County of Chester, 1 Out. 476, as to the lot and buildings erected thereon for the necessary puroses of the company. On page 481, the present chief justice, delivering the opinion of the court, said : “ As we have already shown, this lot constitutes a part of the stock of the corporation which already pays a tax thereon to the commonwealth, and the owners of the stock pay taxes thereon to the county:” After reviewing the leading cases, he says: “ The principle which appeal’s to be recognized, is, that the public works of a corporation, used as such, with their necessary appurtenances, shall be exempt from taxation as land, but be subject to it in
The practical meaning of this proposition is that the indispensable works of a public corporation are a part of its corporate franchise, and therefore taxable as stock, which is personal property, and hence can not be regarded as real estate in any form. This is the express ground upon which the whole doctrine is based in the opinion of this court in the case of Northampton County v. Lehigh Coal & Nav. Co., 25 P. F. S. 461. It was there held that neither the Act of April 8th 1873, repealing all laws exempting real estate from taxation, nor the Constitution of 1874, made any change in the course of judicial decisions upon the construction of the general laws. On p. 464 Sharswood, J., says : “ There is nothing in the provision that all taxes shall be uniform upon the same class of subjects, within the territorial limits of the authority levying the tax, which at all contravenes the general principle settled by the Supreme Court as to what is real estate within the classification of the tax laws, and that land, necessary to the franchise of a railroad corporation, is a part of such franchise, and not real estate subject to local taxation under the existing laws.” In my judgment this is the only true ground upon which the decisions holding the indispensable structures of corporations of a public character to be free from taxation as real estate, can be rested. In point of fact the passenger station of a railroad company is a “ house,” and the ground upon which it is erected is “ land,” no matter what purposes they may be used for. But when they constitute part of a railroad, while they are still in fact a house and land or “ real estate,” they have in legal contemplation entered into, and become a part of the railroad itself, the whole of which is represented by the capital stock. This stock is the legal manifestation of the corporate franchise, which is the right to build, maintain and conduct a railroad. The indispensable structures therefore, have, by the character of their use, absolutely lost their quality of real estate, and are not at all defined or included in any Act of legislation which uses that term or mode of designation, only. In the entire course of the decisions of this court not a solitary case has been found in which this rule has been departed from. With absolute and unbroken uniformity, we have always held that this class of structures is not taxable even under Acts which make all real estate, and all houses, lands, and lots of ground, subjects of taxation. It must certainly be conceded that the generality of this mode of designation permits no distinction as to the use or ownership of the real estate, the houses, the lands or lots of ground, which are declared to be subjects of
In the present case it is proposed to disregard this law. The subjects of taxation are all of them structures which are indispensable to the exercise of the corporate franchise, and therefore personal property. The legislation which, it is claimed, subjects this personal property to taxation is the third section of the Act of January 4th 1859, P. L. 828, authorizing the city of Pittsburgh to raise additional revenue. It is in the following words:
“Section 3. That all real estate situated in said city owned or possessed by any railroad company, shall be and is, hereby made subject to taxation for city purposes the same as other real estate in said city.”
It will certainly not be claimed that there is the slightest attempt here to change the general law of the state, that the necessary works of railroad companies are personal estate. It can not be claimed that there is any declaration that for the purposes of this Act, the necessary works of railroad companies within the city of Pittsburgh shall bo treated as real estate. There is no provision that such works of those companies shall be taxable. There is no ambiguity in the language of the Act. It means just what it says : that the real estate of railroad companies within the city is to be taxed for city purposes. Whatever real estate such companies possess within the limits designated, is taxable under the act. The terms of the Act are fully satisfied, and apparently there is nothing to be determined by ■construction or interpretation. Yet it is perfectly manifest t hat if the works and structures in question are to be taxed at all, it can only be done by construction. Considered affirmatively, and by force of its plain words, there is not the slightest
I do not regard the argument as of any serious moment, which would by sheer force, confer a meaning by construction, upon the unmeaning or unintelligible words of a statute. If upon the literal and legal reading of the words employed they are incapable of application or enforcement, the Act simply falls. It is incapable of execution, and of this there are many examples in the books. A notable instance of this kind occurred in the case of the Commonwealth v. Bank of Pennsylvania, 3 W. & S. 173, in which this court refused to enforce an Act of Assembly and supplement thereto, relating to the election of assignees of the Bank of Pennsylvania, for the express reason, that the meaning of the Act was so uncertain that it could not he determined to the satisfaction of the court.
It has been repeatedly held that if the plain words of a statute lead to an absurd result that is not a sufficient reason for changing the natural interpretation of the word employed. Thus in Abley v. Dale, 11 C. B. 378, the chief justice, on p. 391, says, “ If the precise words used are plain and unambiguous in our judgment, we are bound to construe them in their ordinary sense, even though it lead in our view of the case to an absurdity or manifest injustice. Words may be modified or varied where their import is doubtful or obscure. But we assume the functions of legislators when we depart from the ordinary meaning of the precise words used, merely because we see, or fancy we see, an absurdity or manifest injustice from an adherence to their literal meaning.” In Woodward v. Watts, 2 Ell. & Black. 452; Crompton, J., said, “Ido not understand the rule of construction to go so far as to authorize us, where the legislature have enacted something which leads toan absurdity, to repeal that enactment and make another for them, if there are no words-to express that intention.” In Green v.
But there is a still more serious objection to the argument we are considering, and that is, that the assumption upon which it is based is not true in fact. The act upon its plain reading is neither meaningless nor absurd. It means that the real estate of railroad companies in the city of Pittsburgh is taxable for city purposes. That meaning we are compelled to respect and to enforce. If there is prior legislation to that effect we must nevertheless give to this Act the same effect. If such prior legislation should be repealed, this remains, and we can not refuse to enforce it in its literal sense, without repealing it, which of course we can not do. The utmost, therefore, that can be said of the Act in question, is that it is superfluous. It is very certain, however, that mere superfluity of legislation is no objection either to its validity or its effective operation. It is not at all uncommon to discover different legislative enactments in relation to the same subject, but surely it was never considered that the redundancy of legislative action thus ascertained, constituted any reason for denying its actual operation, or for changing its plain meaning.
In the Act under consideration the words “ real estate” are the only words which designate the subject of taxation, and it is the real estate of railroad companies only which is directed to be taxed. These words, when applied to the property of railroad
But let us consider the argument by which the contention of the city in the present case is sustained. It is thus stated in the paper book of the very able counsel for the city: “ The legislature of 1859 knew of the decisions in the Permanent Bridge case and in the Lehigh Coal and Navigation Company case. They knew that merely subjecting land or real estate to taxation within the county or city did not thei-eby enable the county or city to tax the real estate occupied by (the) corporation with its necessary works. Therefore, in the Act of 1859, in so mauy words they said that the real estate either owned or possessed by a railroad company, should be therefore (thereafter?) subjected to municipal taxation, the same as other real estate owned by individuals.” This is probably the strongest and most ingenious presentment, in support of the construction contended for by the city, that the subject will admit of. It refers the meaning of the Act to the conscious, or supposed conscious, intelligence of the members of the legislature which passed it. Yet what is the true character of this argument? In very terms it affirms that the legislature know the existing state of the law, knew that if they simply declared that the “ real • estate ” of railroad corporations should be taxed, the “ necessary works” would not become subject to taxation. Yet, notwithstanding this knowledge, they deliberately, consciously and intelligently chose those very words in designating what property should bo taxed. The learned counsel for the city conclude from this premise that the legislature meant that all the real estate of railroad companies, including the indispensable structures, should be taxed. To my mind precisely the opposite inference is the only one that can be drawn. If the legislature knew that the words used had a defined and restricted meaning, which excluded the structures in question from taxation, how is it possible to resist the conclusion that if they used them at all they used them in that sense? To hold the contrary is to hold that the members of the legislature vio
It is argued with much earnestness that because the real estate of railroad companies, as distinguished from all other real estate, was made taxable by this Act, therefore we must infer, that the necessary works and structures were intended to be included. When it is considered that the general Acts of 1834 and 1844 made taxable all real estate, and all houses, lands and lots of ground, without any distinction of ownership or use, this argument loses much of its force, because those Acts were quite as applicable to the real estate, houses, lands and lots of railroad companies, as to those of other corporations or individuals. But the argument is definitely met and answered by a decision of this court which lias never been doubted or overruled, in which the ownership of the property subject to taxation was much more limited than in .the present case. In the case of Wayne Co. v. Del. & Hudson Canal Co., 3 Harr. 351, the Act of April 1st 1825, P. L. 141, which authorized the company to improve the navigation of the river Lackawaxen, provided in the fifth section, “ That the property of the said company, whether real or personal, within this state, shall at ail times be liable for its debts, and subject to taxation, in like manner as similar property held by an individua] or corporation, now is or may be.” It was lieid by this court that the reservoirs created by the company for supplying the canal with water, the houses and gardens occupied by the lock-tenders and collectors along the canal and railroad, the engines.
I can not help thinking that a due respect to the dignity of this tribunal, to the consistency of our own decisions, to the stability of legal principles, requires that we should adhere to the construction we have always given to the identical words we are now considering, and to hold that the works proposed to be taxed in the present proceedings are not taxable because they are not real estate, and, therefore, do not come within the operation of the Act in question. If they are taxable it will necessarily follow that all of the track, and the land upon which it is laid, within the limits of the city of Pittsburgh, will be subject to taxation, and therefore, to seizure and sale. As such
I am equally unable to follow the devious path of a supposed legislative intent, which may or may not exist, according to the higher or lower grade of intelligence or of personal integrity of individual members of a legislative body ; especially as it is quite possible to understand, that many members may have been willing that such a bill should pass, for the very reason that they regarded it as unavailing to change the existing law, and subject indispensable structures of railroad companies to taxation.
The vice of the argument from intention in this particular case is, that the evidence of the supposed intention is not found in the words of the Act but in facts and considerations outside of it. Thus it is argued that the real estate of the city of Pittsburgh is subject to taxation by other law, and therefore an intent must be inferred to tax the necessary structures. The existence of such other legislation is a fact entirely outside of the present Act. We must take cognizance of that legislation, of its terms and its import, before we can proceed' with the argument founded upon its meaning and effect, as affecting the supposed intent in the present legislation. We are not referred, either by the findings of the court below, or by the arguments of counsel on either side, to the legislation which imposes taxation for city purposes upon real estate within the limits of the city of Pittsburgh. Whether it is the general law of the state alone, or whether it is composed in part of local statutes affecting the city, or the county of Allegheny, we are not informed. But it is sufficient to know that it is not contained in the Act we are considering, and must be ascertained by an examination of Acts altogether foreign to, and independent of it. Row as I understand the law uj>on this subject this can not be done; in other words, construing an Act upon the theory of a supposed intention, the evidence of the intention must be found in the language of the Act and not outside of it.
In the case of Schooner Paulina’s cargo v. The United States, 7 Cranch 52, Ch. J. Marshall says: “In construing these laws, it has been truly stated to be the duty of the court to effect the intention of the legislature ; but this intention is to be searched for in the words which the legislature has employed to convey-it.” . . . “But should this court conjecture that some other Act, not expressly forbidden, and which is in itself the mere exercise of that power over property which all men possess, might also be a preliminary step to a violation of the law, and ought therefore to be punished for the purpose of effecting the legislative intention, it would certainly trans
In the case of Rex v. Stoke Damerel, 7 Barn. & Cress. 563, Bayley, J., says : “I do not know how to get rid of the words of this section of the Act of Parliament, and where the legislature, in a very modern Act of Parliament have used words of a plain and definite import, it is very dangerous to put upon them a construction, the effect of which will be to hold that the legislature did not mean that which they have expressed.”
In Rex v. Poor Law Commissioners, 6 Ad. & Ell. 1, Coleridge, J., says, “ It is in my opinion so important for the court in construing’ modern statutes, to act upon the principle of giving full effect to their language, and of declining to mould that language in order to meet either an alleged convenience, or an alleged equity, upon doubtful evidence of intention, that nothing will induce me to withdraw a case from the operation of a section which is within its words but clear and unambiguous evidence that so to do is to fulfill the general intent of the statute, and also that to adhere to the literal interpretation is to decide inconsistently with other and overruling provisions of the same statute.”
In Everett v. Wells, 2 Scott N. C. 531, Tindall, C. J., says, “It is the duty of all courts to confine themselves to the words of the legislature,' nothing adding thereto, nothing diminishing.”
In Potter’s Dwarris on Statutes, p. 146, one of the rules of interpretation is thus stated: “ 20. In the enactment of statutes the rule of interpretation is, in respect to the intention of the legislature, that where the language is explicit, the courts are bound to seek for the intention in the words of the Act itself, and they are not at liberty to suppose or to hold, that the legislature intended anything different from what their language imports citing Supervisors of Niagara v. The People, 7 Hill 513.
In Priestman v. United States, 4 Dall. 28, Chase, J., said, on p. 30, n. 1, “By the rules which are laid down in England for the construction of statutes, and the latitude which has been indulged in their application, the British judges have assumed a legislative power, and on the pretence of judicial exposition, have in fact made a great portion of the statute law of the kingdom. Of those rules of construction, none can be more dangerous than that, which, distinguishing between the intent and the words of the legislature, declares that a case not within the meaning of a statute according to the opinion of the judges,’shall not be embraced within the operation of the statute, although it is clearly within the words ; or, vice versa, that a case within the meaning, though not within the words,
In Sedgwick on the Construction of Statutory and Constitutional Law, on page 205, the writer concentrates an exhaustive consideration of the subject thus : “ But in modern societies, where the division of political attributes is so much more nice and rigorous, where the business of legislation has become multifarious and enormous, and especially in this country, where the judiciary is so completely separated from the legislature, it must be untrue in fact that they can have any personal knowledge, sufficient really to instruct them as to the legislative intention ; and if untrue in fact, any general theory or loose idea of this land must be dangerous in practice. I believe that, subject to the rules hereafter declared, and subject to the exceptions of equitable construction, to be discussed in the next chapter, the tendency of all our modern decisions is to the effect, that the intention of the legislature is to bo found in the statute itself, and that there only the judges are to look for the mischiefs meant to be obviated, and the remedy meant to be provided.”
It is not necessary to prolong citations of this class of authorities; they are very numerous.
It cannot be argued that the words “ real estate” in the Act in question have an ordinary meaning which would include the necessary works of railroad corporations, because those words have received a judicial construction which fixes and establishes their meaning, excluding those works, on the ground that they are not real estate. This consideration brings into operation another rule of construction which seems equally decisive of the present contention. In Potter’s Dwarris on Statutes, page 274, it is thus expressed: “Words and phrases, the meaning of which in a statute has been ascertained, are, when used in a subsequent statute, to be understood in the same sense.” In note 4, at the foot of the same page, the rule is more fully expressed and accompanied with authorities, thus: “Where the terms of a statute which has received judicial construction, are used in a later statute, whether passed by the legislature of the same state or country, or by that of another, that construction is to be given to the later statute: Commonwealth v. Hartwell, 3 Gray 450; Ruchmaboye v. Mottichmed, 32 Eng. L. & Eq. 84; Bogardus v. Trinity Church, 4 Sandf. Ch. 633; Rigg v. Wilton, 13 Ill. 15; Adams v. Field, 21 Vt. 256. It is to be presumed in such cases, that the legislature who passed the later statute knew the judicial construction which had been placed
Where a statute is enacted substantially the same as a previous one which has received judicial construction, the legislature will be presumed to have known that construction, and to have intended to adopt it: O’Byrnes v. State, 51 Ala. 25; Cota v. Ross, 66 Me. 161.
Applying this principle to the present case, it is apparent that the legislature must be presumed to have used the words “ real estate ” according to their fixed legal meaning. It follows that there is no ambiguity in the words of the Act, and jt must therefore be read in conformity to the rule stated by Mr. Justice Thompson in Bradbury v. Wagenhorst, 4 P. F. S. on p. 182, to wit: “Whatever may have been the legislative thought, no ambiguity exists in wliat they have said, and where the words of a statute are plainly expressive of an intent the interpretation must be in accordance therewith.”
There can be no question that the words employed in this Act are clearly expressive of an intent to tax real estate, for that is the positive language used. There are no words indicating an intent to tax personal estate, and therefore there is no ambiguity to be explained.
When we come to declare what was the intention of the legislature which passed thi& Act, we enter at once upon a sea of conjecture. If we say they must have intended to tax the necessary'works of the companies, we assert for them an intent which they did not assert for themselves. Of course we can only do this upon the theory that they really designed, had the mental purpose, to tax such works. But by what authority can we say this? We know nothing of them as individuals, we can not possibly know anything about their mental purposes. We know nothing of their personal integrity, nothing of their intelligence. Suppose the Act was drawn by a crafty and designing person in the interest of the railroad companies, who used this language because he knew that the words “ real estate” would not include the necessary works of the companies? Or suppose certain members, in sufficient numbers to constitute a majority, voted for it, for the same mason, and in the same interest ? Either or both of these suppositions are entirely in accord with actual experience in the business of legislation, and yet either of them, would, if true, utterly destroy the argument from intention. Who shall say they are not true in this case, or, by what authority shall we so declare ? Or suppose that either the draftsman of the Act, or the members who voted for the bill, or all the members, entertained the belief that the real estate of railroad companies was free from taxation, and sought to make it taxable in the city of Pittsburgh by this Act? In that event
There is a curious circumstance in the work of the legislature of 1858, which strongly illustrates the danger of conjecturing an intent upon considerations which are outside of an Act in question. It happens that this same legislature passed an Act which was approved on April 21st 1858, and is found on p. 385 of the Pamphlet Laws of that year. It is a supplement to the Act incorporating the city of Philadelphia, and its purpose is expressed in the preamble, thus:
“ Whereas, the burden of taxation for the support of the government of the said city is'now mainly boi’ne by the owners of real estate therein, and it is just that the ownei'S of personal property should contribute thereto: therefore,
“ Section 1. Be it enacted by the senate and house of representatives, &c., that the offices, depots, car houses and other real property of x’ailroad coi’porations situated in said city, the superstructure of the road and water stations only excepted, are and hereafter shall be subject to taxation by ordinances for city purposes.”
Ho other section of the Act imposes any-taxation upon any property, and all but one relate to other subjects than taxation. It is apparent, therefore, that this legislature, when they really intended to tax the necessary works of railroad companies,
On this question of intention outside the words of the Act there is another .circumstance of the greatest significance. The Act was approved the éth of January 1859, which was one day before the legislature of that year assembled. It was really passed by the legislature of 1858, on April 15th, and as the legislative record of that session shows, it was reported, considered and passed as a private bill, and without a word of debate. The express purpose of the Act was to enable the city of Pittsburgh to raise additional revenue by taxation. Onerous taxation was imposed by the other sections. Yet it is conceded that in all the time from the passage of the Act, down to the present proceeding, twenty-two years, no attempt was made by the city to tax the necessary works and structures of the railroad companies. Why is this ? Certainly the persons who procured the passage of the Act knew what their own purpose was in obtaining its enactment. It must be assumed the money was needed which would be derived from the enforcement of the Act, and that the city authorities would use all the agencies which the Act afforded. Acting upon this theory they would at once and continuously thereafter have proceeded to assess and tax the structures in question. But they never did, and the only reason that can be assigned for this omission is that it was not supposed that the structures were taxable under the Act. Had the persons who obtained the passage of the Act believed the necessary works were taxable, they would at least have made the attempt to have them taxed, and would have appealed to the courts for that purpose, by proper proceedings. The fact that no sucli attempt was made for more than twenty years after the passage of the Act in question, affords a most persuasive inference that it was not expected, and therefore was not intended by the Act to subject the necessary works of railroad companies within the city
The legal rule upon this subject is expressed in the maxim contemporánea expositio est fortissimo in lege: Potter’s Dwarris on Stat. 184; Phila. & Erie R. R. Co. v. Catawissa R. R. Co., 8 P. F. S. 61. In Stuart v. Laird, 1 Cranch 299, the court said : “ To this objection, which is of recent date, it is sufficient to observe that practice and acquiescence under it for a period of several years, commencing with the organization of the judicial system, afford an irresistible answer, and have indeed fixed the construction. It is a contemporary interpretation of the most forcible nature. This practical exposition is too strong and obstinate to be shaken or controlled. Of course the question is at rest and ought not now to be disturbed.” In Rogers v. Goodwin, 2 Mass. 475, the court, speaking of a long usage under an old Act, says : “ The legal ground on which this provision is now supported is, that long and continued usage furnishes a contemporaneous construction which must prevail over the mere technical import of the words.”
In Packard v. Richardson, 17 Mass. 143, Ch. J. Parker says, “ A contemporaneous, is generally the best construction of a statute. It gives the sense of a community of the terms made use of by a legislature.”
To give to this Act the effect that is sought, we must either strike out the words “ real estate, ” as useless, and insert in their place the words, “ passenger stations, freight stations, freight houses, offices, engine houses, car houses, machine shops, and all other works and structures:” or if the words ‘Teal estate : are left in, we must add to them, words to the following effect” ‘ including all passenger stations, freight stations, freight houses,” &c., as above, or to this effect: “ and for the purposes of this Act all the necessary works and structures of said companies, used in conducting the business thereof shall be deemed and taken as real estate.” Of course we have no right to take such liberties with any legislation, and the mere statement, in words, of what it is that we are asked to do, in order to affirm the judgment in this case, is, in my opinion a conclusive reason for its reversal.
I am authorized to say that my brother Paxson concurs with me in this opinion.
