159 Pa. 411 | Pa. | 1893
Opinion by
By sect. 9, art. 17 of the constitution, “ no street passenger railway shall be constructed within the limits of any cit}*-, borough or township without the consent of its local authorities.” This language is repeated in sect. 15 of the street railway act of May 14, 1889, P. L. 217, but this is merely an express subjection ex majori cautela, of the privileges to be granted by the act, to the terms of the constitution, which would be implied without it. It neither enlarged nor diminished the constitutional powers of the local authorities, and may therefore be dis
There is nothing of that kind here. There is nothing illegal in the conditions as to the rate of fares, or the taxation of the dividends. The legislature could have imposed both as conditions to the grant of the charter, or could have delegated that power to the cities as a condition of their consent. If the authority would have been legal on a delegation from the legislature, a fortiori it cannot be illegal on a grant from the constitution. Neither the constitution nor the legislature has in fact conferred such power on the cities, but the illustration holds good to show that there is nothing in the conditions imposed by the city of Allegheny, intrinsically opposed to the law or to public policy. It is not a question of the municipality’s power to regulate fares or tax dividends. There is no contention for that. If the city was assuming such authority as against the railway company, the argument for appellant would be of convincing force. But the city is not doing so. It simply says, “ I have the sole and exclusive power to consent or refuse; on certain conditions I consent, otherwise I refuse ; I don’t compel you to do anything, I merely give you a choice between alternatives; you have no power or right to demand my consent, you ask it, and I give it on my own terms or not at all.”
Nor can we see that there is anything unreasonable in these conditions, even if that matter were within our province. A valuable franchise, to use public property, the streets, for corporate profit, is about to be granted. It is not illegal or unreasonable that the public or the city which represents it should have a consideration for the privilege that it confers. If it were a right of passage over private property, there would be no question about it, and the right could not be got in any other
The conclusion thus reached is so clear upon indisputable principles that it does not require aid from authority, but it is in fact supported by the exactly similar case already cited from 110 N. Y. 552, and by our own decision in Federal St. R. W. Co. v. City of Allegheny, 14 Pitts. Legal Journal, N. S. 259. In the latter case the city, in 1870, without authority either constitutional or legislative to tax, but under the proviso in the charter of the railway that no street should be occupied without consent, made its consent conditional on the payment of a car tax, and a per centage of the dividends, into the city treasury. The company accepted the ordinance, paid the ear tax, but refused to pay the percentage on dividends, upon substantially the same grounds as the appellant relies on here. The court however gave judgment against it, saying, inter alia, “ The policy of our legislation has been to make the passenger railway companies pay the municipalities for the use of the streets. ... It is said the city has no power to impose-such conditions when giving its consent to the use of the streets. . . .
There is a wide difference between the present case and Pittsburgh’s Appeal, 115 Pa. 4. The contention there was over the rights of a natural gas company in the streets of the city. As to that s.ubject the legislative control of the streets was complete, and the city had only such authority in regard thereto as the legislature chose to allow it. This court held that the legislature having invested the gas company with the right of eminent domain, and provided only that it should get the assent of the city and be subject to “ such regulations as the councils may adopt,” the city’s legislative power over the subject was limited and did not extend to any conditions to be attached to its consent, except such as were reasonable regulations of the mode of carrying out the statutory powers of the corporation.
The conditions in the present case being within the power of the city to prescribe, and therefore entirely valid, the other question raised becomes unimportant. It may be well to say however that the ordinance of consent was an entirety, to be accepted or refused just as it was, and acceptance was expressly made a condition precedent. Nothing therefore could make the ordinance a consent but the. performance of the condition, the acceptance of the whole. Even if any part ot the condi
Decree affirmed.