Wilson v. Allegheny City

Chief Justice Agnew delivered the opinion of the court, January 6 th 1876. The city of Allegheny claimed to recover against defendant below the cost of grading so much of the Allegheny and Perrys [276] ville Plank-road as lies opposite to his lot. This plank-road was laid out under an act of incorporation, passed the 27th of February 1849, Pamph. L. 290, many years before the territory embracing the said lot was brought into the city of Allegheny. It was a toll-road laid out under the provisions of the Act of 26th of January 1849, regulating turnpike and plank-road companies; it was then .not a public street of the city of Allegheny; has it since become so by any law or act of legislation ? In the year 1867, the legislature, by an act in general terms (Pamph. L. 979), annexed to the city of Allegheny the territory in which this portion of the plank-road lies; the revised charter of 1870, in general terms, embraced all the territory then within the city of Allegheny; it confers many powers for the purposeofpolice, health, improvement, &c., but none specially over the roads of private corporations laid out under the terms of their charters. But by continuing in force all the powers and privileges conferred by former laws, and re-enacted, supplied or repealed by the revised charter, it retained the powers conferred in the Act of 1869, Pamph. L. 1168, “ to purchase the right of any or all of the various chartered road companies lying or being within the corporate limits of said city, upon such terms as may be agreed upon between councils and said road companies.” In pari materia with this power, is that conferred by the Act of May 13th 1871, Pamph. L. 818, enabling the city to appraise and take, at the valuation, so much of any turnpike or plank-road as lies within the limits of the city, that the same be free from tolls, and on payment of the valuation may pass under the control of the city as a street thereof, and all toll-houses be removed out of the city limits. Nothing has been done by the city under these acts, but the acts themselves are important, not merely as exhibiting the special power conferred but as interpreting the revised charter, and the Act of April 1st 1870, Pamph. L. 751, “relative to streets in the city of Allegheny,” for the plank-road being private property, with the right to take toll, protected by a charter, and not a public street in any proper sense; and the power to purchase or to condemn it being essentially a different power from that to improve a public street,.the laws relative to the' improvement of streets cannot be applied to the plank-road. But apart from this argument, which in itself is sufficient, the language of the Act of 1870 does not apply to a plank-road. By the first section the city is authorized “to lay out and open new streets, lanes and alleys in said city, and to widen, straighten and to extend any street, lanes or alleys of said city, and to levy and collect damages done to property thereby, by an assessment upon the property benefited by any such improvement.” It is needless to say that this provision has no relation to special corporation toll-roads. Then we come to the sixth section, for the improvement, of the streets of the city; it authorizes the council “to cause to be graded, re-graded, paved, re-paved, or [277] macadamized a,ny public street, lane or alley, or any parts thereof, which is now or which may be hereafter laid out or opened in said city, or which may be in whole or in part boundaries of said city, and to have the same set with curbstone, and the foot or sidewalks paved; and the said councils are hereby authorized to levy and collect the cost and expenses 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 property.” It must be noticed that this power to assess the cost on abutting owners is confined to the “said streets,” the same only which the city is empowered to improve. If there be no power to improve, there is none to assess. Now it is obvious that the streets authorized to be improved are those of the city itself, over which it has jurisdiction and control, or in the language of the act, “ which are now, or which may be hereafter' laid out and opened in said city'.” This language applies to public streets, not private toll-roads. That the city had no power or control over this chartered plank-road, is conceded by the very contract of the city with the plank-road company, and the admitted necessity of obtaining the company’s consent to interfere with its roadway. If the power contained in the Act of 1870 extended to this plank-road, it could be exercised in invitum, and consent was not necessary; but the fact that it was the. roadway of a private corporation, protected by a state charter, which is a contract, at once took it out of the-description in the Act of 1870, that is to say, a public street, lane or alley, which is now or hereafter may be “laid out and opened in said city.” If then, as is perfectly plain, the plank-road did not fall within the term “public street,” used in the Act of 1870,' it is equally clear that the property adjoining it is outside of 'the power of assessment, which we have seen, is confined to the public streets which the city is authorized to improve; and if the municipal power does not apply no element of contract can be injected into it to give it vigor. It was well said by the learned judge below in his charge: “ But if the city had no legal right under the Acts of Assembly to grade this portion of the plank-road and assess the property abutting thereon with the cost, I cannot see that such request, on part of defendant, would give the city a right to file a lien therefor. This is a sci. fa. on a municipal lien, and must be sustained by an Act of Assembly authorizing it. The defendant might be liable to the city in an action of assumpsit, and yet the city might not have the right to enforce the collection of her claim by a municipal lien.” This view is sound, yet when the learned judge adopted the suggestion, that the city, having acted under a contract with the plank-road company, and graded its roadway, could then turn round and collect the cost from the property abutting, he evidently overlooked the fact that a mere [278] contract right to grade does not rest on the basis of municipal authority, and this plank-road being no street of the city, the municipal power did not exist, either to grade it or to collect the the cost of doing so. An argument in support of the power is made to arise out' of the supposed benefit to the property of the defendant. But liens of this kind rest on the law alone. The equity was the reason for making the law, but does not stand in the place of the law. Without a law there can be no lien. A municipal lien is an adverse right given by the law against the will of the citizen, and, unless plainly given, cannot take from him his property or his money. It is also to be noticed that the analogy is wanting in material respects, which would liken a plank-road to a city street. The Plank-road Company has but an easement in the land, under the Act of 1849, and on abandoning its road or yielding up its charter, the land reverts to the owner unencumbered by the easement. The city cannot prevent this, and cannot assert authority over it as a highway, unless she had purchased it under the Act of 1869, or condemned and paid for it under the Act of 1871. Then the right of the company to take toll continuing, it bears no analogy to a public street. The testimony shows that the defendant’s property lies between two toll-gates, one, perhaps both, in the city, and that he pays his toll quarterly. Now one of the benefits, for which the law assesses the cost on the owner of the adjoining property, is the free use of the street it opens and improves for him. But here he must pay the same toll as before, and has no right to the free use of the plank-road. Nor is it in the power of the city to secure to him this free use, unless she purchases, or condemns and pays for the plank-road. The citizen does not obtain in such case the benefit which lies at the very root of the power to tax him. Another difference lies in the fact that the plank-road is governed by different laws and regulations from those in regard to the streets of the city. Offences against the Plank-road Company are punished under the General Plank-road Law of 1849. Eor example, the defendant cannot, contrary to the 19th. section, pass through any private gates or bars, or along or over. private’ grounds near to a toll-gate, with intent to avoid payment óf toll, under a penalty of ten dollars. It would be a serious question whether the city, without purchasing or taking the plank-road, could run a street into the plank-road near to a toll-gate, to divert the tolls. The argument that police and health powers, the taxing powers and the like, may be exerted over this plank-road, and the abutting property, evidently does not touch the question before us. Here the general jurisdiction of the city is extended over this territory, and general municipal powers may be exercised for the general welfare. In this aspect, the Plank-road Company stands in the [279] relation of a private citizen, and must conform to laws made for the public good. But the enforcement of a specific lien for street improvement stands on the special authority conferred, and this, we have seen, does not comprehend a private company’s chartered toll-road. In no proper sense, therefore, can this plank-road be viewed as a public street, subject to the power to widen, straighten, improve, repair, macadamize, and curb it, and to*the power of collecting the cost of so doing from the abutting property. Hence the assessment in this case was illegal and void. Judgment reversed.