Allegheny City v. West. Penna. R.

OPINION,

Mr. Chief Justice Paxson:

This was a municipal claim filed by the city of Allegheny against the Western Pennsylvania Railroad Company, for grading, paving, and curbing East Ohio street, in said city. An affidavit of defence was filed on behalf of the defendant company, in which it is set forth, inter alia.

“ That the lot of ground, hereinbefore described, is at present used and occupied by said railroad company with two main tracks, known a!s an east-bound and a west-bound track; and, in addition thereto, there is constructed over said lot, and now in use, two sidings extending the whole distance and more than the distance of the 442 feet of ground against which said lien is filed; that there is no room left between the siding and the retaining wall, built by said city, for another track or siding ; that there is also a third siding on the south of the main east track for the whole distance extending over the lot described as aforesaid; that the whole of said lot being 52 feet or more in width, and in length a distance of 442 feet, is covered with said tracks and sidings to such an extent as to be wholly occupied, leaving no additional room for other tracks.”

It will thus be seen that the claim is filed against 442 feet of the roadbed or right of way of the railroad company, the whole of which is covered with its main tracks and sidings. It further appears that the roadway, at this particular point, is depressed, and that the city was compelled to construct a retaining wall to hold up the street. Under this state of facts, the court below refused judgment for want of a sufficient affidavit of defence, from which judgment this appeal was taken by the city.

It was expressly ruled in Philadelphia v. Railroad Co., 33 Pa. 41, and in Junction R. Co. v. Philadelphia, 88 Pa. 424, that the roadbed of a railroad company was not liable to a municipal claim for street improvements. We need not repeat what was there said, nor re-state the reasons upon which those decisions rest. Their authority is not questioned; on the contrary, the city bases its claim upon the act of April 1, 1870, P. L. 751, entitled, “An Act relative to streets in the city of Allegheny,” which act it was alleged clothed the city with ample power to assess railroad property for the cost of street improvements. It is necessary, therefore, to consider the provisions of said act, so far as they bear upon this case.

Section 6 provides as follows: “ The said councils are hereby authorized, whenever they deem the same necessary, to cause to be graded, re-graded, paved, re-paved, or macadamized, any public street, lane, or alley, or any parts thereof, which is now or which may hereafter be laid out and opened in said city, or which may be in whole or in part boundaries of said city, and to have the same sot with curbstone, and the foot or sidewalks paved; and the said councils are hereby authorized to levy and collect the cost and expense of grading, paving, and macadamizing, from the owners of property bounding or abutting on said streets, lanes, or alleys, or parts thereof, thus improved, by an assessment of an equal sum per foot front of said properties.”

Section 18 of said act provides: “ That the term owner, as used in this act, shall be construed to mean all individuals, incorporated companies, and religious, benevolent, literary, or other societies or associations having ,any title or interest in the properties appraised or assessed.”

Section 20 provides : “ Where the defendant in any writ of scire facias authorized by this act may be a public corporation, and the property assessed and upon which the scire facias is issued, cannot for any reason in law be sold upon a judgment obtained on such scire facias, such lien shall be prosecuted to-judgment on the scire facias; and the writ of execution to be issued on any such judgment, shall be a writ of fieri facias, by virtue of which the sheriff may levy upon any personal property, goods, chattels, money or effects of the said corporation.”

If we concede that the act is broad enough to cover, and was intended to cover railroad property, it by no means follows that it applies to the roadbed.. We have decided, in an opinion filed herewith, Mt. Pleasant Bor. v. Railroad Company, ante 365, that a lot of land belonging to a railroad company, on which were erected a depot, freight depot, and lumber yard, was liable to a municipal claim for paving the sidewalk in •front of said lot. At the same time, we held that so much of the said lot, if any, as formed a portion of the roadbed or right of way, was not subject to the lien. We need not repeat what was said in that case. The constitutionality of assessments for street improvements can be sustained only upon the ground that the property assessed is benefited by the improvement. This is the doctrine of all the authoritiés. It is sufficient to refer' to Hammett v. Philadelphia, 65 Pa. 150.

It is true, as a general rule, the property-owner cannot defend on the ground that his property is not benefited by theo improvement: Michener v. Philadelphia, 118 Pa. 535; Commonwealth v. Woods, 44 Pa. 113. These cases, however, and the reasoning by which they are supported, have no application to the roadbed of a railroad company. This is the one species of property which it is conceded can derive no possible benefit from street improvements. "As was said in Philadelphia v. Railroad Co., supra, “ A railroad cannot, from its very nature, derive any benefit from the paving, while all the rest of the neighborhood may.” The owner of an ordinary lot of ground, whether such owner be an individual or a railroad corporation, cannot be heard to defend against a municipal assessment for paving, for the reason that the law presumes such property is benefited. But, in the case of the roadbed of a railroad, the presumption of law is the other way. It is the same at all times and under all circumstances; hence, the law declares the absence of benefits.

It was urged, however, that tbe liability of a railroad company for municipal assessments was decided by this court in Western Peuna. R. Co. v. Allegheny, 2 W. N. 229. That case does not rule this, however. A railroad company may be liable for some municipal assessments. We have just decided, in Mt. Pleasant Bor. v. Railroad Co., as has been already stated, that a passenger depot, freight depot, and lumber yard were so liable. But neither of the above cases, nor any other case to which my attention has been called, has ever held that such a lien may be hied against the roadbed. It was urged, however, that it is within the power of the legislature to subject it to such claims, and that the act of 1870 has done so in the city of Allegheny. We are not discussing the power of that body to impose general taxation. It is admittedly very great, and, as observed in Fox’s App., 112 Pa. 337, “ within the limits of the constitution it is bounded only by the necessities of the state and the will of the people.” We are dealing with the question of special, local taxation; of the right of municipal authorities to levy a tax upon A, which it does not impose upon B, for the reason that it has done something by which the property of A has been specially benefited to the amount of the tax. In the absence of any such benefit; in á case where we can declare as a matter of law no such benefit1 can arise, the legislature is powerless to impose such a burden, It would not be a tax in any proper sense of the term; it would be in the nature of a forced loan, and would practically amount to confiscation.

Judgment affirmed.