Oshkosh City Railway Co. v. Winnebago County

NewmaN, J. No question is made of the power of the legislature to make the right of way of a railroad company [437] subject to special assessment for tbe improvement, by paving, of a street in a city — to tbe extent, at least, to which it is benefited by tbe improvement. It is not so clear that it may authorize an assessment for an improvement which, from the nature of the property, cannot benefit it. 2 Dillon, Mun. Corp. §§ 761-768. In this case the important question is, Has the legislature made property situated as this property is subject to special assessment for paving the street m which it lies ? The answer to this question depends altogether upon what may be the proper interpretation of the statutes which are thought to give the power to make such assessment to the city. The first consideration is whether these statutes are to have a liberal construction or a strict construction. It is believed to be elementary that every statute which is in derogation of the right of property, or that takes away the estate of the citizen, ought to be construed strictly. It should never be enlarged by an equitable construction. Suth. Stat. Const. § 363; 23 Am. & Eng. Ency. of Law, 383 et seq,, and cases cited in notes. The power to make local assessments is a part of the power of taxation. It is a sovereign power. It resides alone in the legislature. It can be delegated, but only by plain and unambiguous words. Statutes delegating such authority will be construed strictly; nothing will be taken by presumption or intendment; and such statutory powers must be strictly pursued. Suth. Stat. Const. § 365, and cases cited in notes 4 and 5; Curtis v. Brown Co. 22 Wis. 167; Potts v. Cooley, 51 Wis. 353, and cases cited. The affirmative is on the city. It must produce express power in legislative enactment, and show that it has followed strictly every legal requirement. In re Second Ave. M. E. Church, 66 N. Y. 395. Any doubt or ambiguity arising out of the terms used by the legislature must be resolved against the power. Minturn v. Larue, 23 How. 435. Guided by these principles of interpretation, the stat [438] utes which are claimed to be authority for the levy of this assessment are to be tested. First is sec. 1836, R. S., which requires every corporation which owns or operates a railroad in the street of a city to restore the street to its former condition, so that' its usefulness shall not be materially impaired, and “thereafter maintain the same in such condition against any effects in any manner produced by such railroad.” It would certainly require a very wild flight of imagination to discover in this statute any plain power to make a local assessment on the railroad corporation to improve the street. The statute, in terms, only requires the corporation to “ maintain ” the street, not to improve it. Then there is sec. 1038, R. S. This is in the chapter relating to general taxation. It is no part of the purpose of the chapter to provide for special'assessments. The section relates especially to “ property exempt from taxation.” It provides generally that “ the track, right of w~ay,” and the other property named, belonging to railroad corporations, shall be exempt from taxation. This is followed by this exception or proviso: “ Except that the same shall be subject to special assessment for local improvements in cities and villages.”' It is as if the legislature had said “ the track, right of way,” and other property of railroad corporations shall be exempt from taxation, “provided, nothing in this section shall be construed as exempting such property from local assessment for improvements in cities and villages.” The proviso in no way changes the force or meaning of the purview. It neither enlarges nor subtracts from it. Such property would have been and remained liable to local assessments if the proviso had been entirely omitted. 2 Dillon, Mun. Corp. § 777. The proviso was added for reasons of caution. It is one office of a proviso to exclude some possible ground of misinterpretation of the act. Studley v. Oshkosh, 45 Wis. 380. Rut if this statute should be held to [439] be an affirmative statute, enacted with a view to make property of this class subject to local assessments, it is, at most, a mere general declaration that such property shall be subject to local assessments for improvements in cases to be provided by law; for it has no self-executing force. The «ases in which it shall be liable must be defined and limited, as well as the manner of the assessment directed, before such property can really be made subject to such assessments. So the real power to make this assessment, if it exists, is to be found in some other exercise of legislative power. If it exists, it should be found in the charter of the city of Oshkosh. This is ch. 183, Laws of 1883. Subch. 10, sec. 3, gives power to the aldermen to make such improvements as were made in Oeape street, and to “ charge the cost and expense thereof to the center of the street or . alley to any lot or lots fronting or abutting on such street or alley.” These are all the words in the city charter which are claimed to evince the legislative intention to subject the plaintiff’s right of way in Ceape street to local assessment for paving the street. This statute, in words, gives power to charge the cost of the improvement only against “ lots ” which front or abut upon the street improved. Waiving all •question of strict or liberal construction, the court must, at least, be able to see in the words used a legislative intention to make the plaintiff’s right of way liable to the assessment. Even with the definition stating that the term “ lot ” may include “ a strip of land,” it is not easy to see that the term “ lot ” describes the plaintiff’s right of way, with its roadbed and tracks, wholly within the street, and not outside of it, and of indefinite length. Nor is it easy to see that this strip of land, even if it could be termed a “ lot,” fronts or .abuts upon the street; for it is wholly within and a part of the street. The conclusion seems to be irresistible that, by the use of the words it has chosen, the legislature has not [440] intended to subject tbe rights of way of railroad companies in tbe city of Osbkosb to sucb special assessment. Certainly, it is not clear that tbe law-making power did so intend. By the Court.— Tbe judgment of tbe circuit court is affirmed.