Pittsburgh Railways Co. v. Pittsburgh ( 1905 )

Opinion by

Mr. Justice Brown,

Tlie decree in this case might well be affirmed on the opinion of the learned president judge of the court below. We shall not, therefore, attempt to add anything to what he has said, but very briefly emphasize his view that the city of Pittsburgh is attempting to levy and collect a property tax from the appellee without statutory authority to do so.

The ordinances under which the city has imposed the tax provide that there shall be established and levied as an annual “ license ” tax “ upon each and every street railway company or corporation the sum of twenty-five (25) cents per foot for each lineal foot of track laid, maintained or operated by such company or corporation within the limits of the city of Pittsburgh, exclusive of such track as may be in the yards or buildings of such company or corporation.” As authority for the passage of these ordinances and the collection of the tax imposed by them, the city relies upon paragraphs IY and XXII of the third section of art. 19 of the Act of March 7, 1901, P. L. 20. Those paragraphs are: “IV. Every city of the second class shall have power, for general revenue purposes, to levy and collect a license tax, to be fixed by ordinance, upon street railways, hack drivers, auctioneers, and all and every corporation, company or individual doing business in said city, payable annually, and to regulate the collection of the same.” “ XXII. And every city of the second class shall have power, for general revenue purposes, to levy and collect license taxes or fees, to be fixed by. ordinance, upon street railways, hack drivers, auctioneers, bill posters, public balls or dances, night soilers, garbage collectors, railroad switches, pawn brokers, peddlers; venders of any kind of merchandise whatever, using the streets, lanes, highways, wharves, or public squares or grounds, for the purposes of vending the same; all theatrical exhibitions, whether permanent or transient (including circuses), vehicles, bicydes, tricycles, automobiles, dogs, ball games or ball parks, and all other matters and things of a like nature, and to regulate the collection of the same and to provide penalties for default therein.”

What the act of assembly authorizes the city to levy and collect is a license tax or fee, and the ordinances are so worded. They term the tax assessed against the appellee a “ license ” tax; but no matter what the municipal authorities call it, the question is, what is it ? The tax is twenty-five cents per foot “ for each lineal foot of track laid, maintained or operated ” by the appellee within the city of Pittsburgh, exclusive of such tracks as may be in its yards or buildings. The tracks of a street railway company are as much its property as are its power houses, car barns or repair shops; and, if so, could it be seriously argued that an annual tax of twenty-five cents per lineal foot on a car barn would not be a tax on the property, no matter by what name called, especially if to be collected for the general revenue purposes of the municipality ? Manifestly it would be such a tax, and such is the character of the tax which the appellant would impose on the tracks of the appellee. We are told that this question has not been decided in this state. We can recall no case in which it was raised, but in other jurisdictions the view just expressed lias been entertained. By a statute of the state of Ohio $1.00 per annum was imposed upon each mile of railroad track within the state, the statute calling it a fee. Of it the supreme court of that state said, in Railway Co. v. State of Ohio, 49 Ohio, 189: ^* “ Its nature is not affected by the name that may be assigned to it. It is an exaction levied upon railroad tracks and railroad tracks are property. It does not differ in principle from a fixed sum levied upon all farmers of the state for each acre of land of which they may be seized, or each head of horses or other live stock that they may own. In both instances the tax is levied upon property.” In State v. South Carolina Railroad Co., 4 So. Car. 376, it was held that a sum of money which an act of' the legislature required to be paid to the state treasurer for the use of the state by every railroad company, to be determined by the length of its road, was a tax upon property.

The authority conferred on the city of Pittsburgh by the paragraphs quoted from section 3, art. 19, of the act of 1901, is to levy and collect a license tax or fee. The attempt is to collect a property tax which is not authorized by either of the paragraphs and the decree is affirmed at appellant’s costs.

* Also reported 30 N. E. Repr. 435. Reporter.