Berks County v. Reading City Passenger Railway Co.

167 Pa. 102 | Pa. | 1895

Opinion by

Mr. Justice Williams,

We are satisfied with the decree appealed from in this case, but we are not satisfied with all the reasons given for it by the learned judge of the court below. The findings of fact show that the Reading City Passenger Railway Company and the Penn Street Passenger Railway Company were incorporated in 1873, by a special act of assembly for each, in which the route to be occupied was plainly and specifically described. Each company entered upon the route assigned it. In 1893, the Penn Street Company was merged in the Reading City Company, so that the latter became the owner and operator of both routes. But the Harrisburg bridge over the Schuylkill river at Reading was not included in the route of either company, and under the charters of 1873, the Reading City Company had no means of extending its lines upon and over the bridge. In December, 1893, it accepted the provisions of the act of 1889 and a new charter was issued to it under section twenty of that act. The first important question is therefore over the effect of this action. The learned judge held it to be an idle ceremony which gave to the company none of the powers conferred upon companies incorporated under the provisions of that act, and for the reason that as the company was lawfully organized under a valid act of assembly, it was not within the letter or the spirit of the provisions contained in said section. It is clear that the act of 1889 was intended to provide a new and complete system for the organization and government of street railway companies in this state. After its approval by the governor, it became the only general law in force upon the subject, so that all companies thereafter organized would have exact uniformity of powers, privileges, and duties. At the end of this comprehensive system, we find the provision now to be interpreted. It declares that all companies theretofore incorporated under the act of 1878 (which had been held to be unconstitutional) and under the act of 1879 (which was subject to the same objection) and “any street passenger railway company heretofore existing under color of any charter or letters patent of the commonwealth, upon accepting the provisions of this act in writing under the seal of the corporation, filed in the office of the secretary of the commonwealth, shall thereupon become and be a body corporate hereunder, and shall be entitled to, and have possession of, all the privileges, franchises and powers conferred by this act upon corporations to be created under this act, .... and the governor shall forthwith cause new letters patent under this act to issue to such corporation under the same name as the company had in the charter under which it was originally incorporated.” We are of opinion that this provision was intended to afford first, a way for companies organized under laws that were invalid, to secure a lawful, corporate character; and next, to open the way for companies legally organized under special acts of assembly to lay off their special belongings and put on the uniform dress which the body of the statute had so carefully provided for the class of corporations to which they belonged.

The words “ under color of ” in the sentence that reads “ any street passenger railway company heretofore existing under color of any charter or letters patent ” were not happily chosen. They often mean what the learned judge held them to mean in this case, that the authority “ under color ” of which a thing is done is assumed, or defective. But their meaning like that of all words not purely technical must depend on the connection in which they stand, and the fixed character of the things to which the}'- relate. In this provision the companies organized under defective laws had already been provided for. There were no “heretofore existing” companies «left to be taken into account except such as had been organized under charters resting on special acts of assembly like those under which the Reading City Company was at that time acting. These charters and letters patent were valid, but they left the companies holding them to stand outside the class created by the act of 1889, and outside the operation of general laws to be thereafter passed as applicable to the class. The legislative intent was to reduce so far as possible the number of outstanding special charters and bring the entire street passenger railway business as rapidly as possible under the same system of management and control. To this end it was necessary to provide a way for existing street railway companies to surrender their special charters and secure new ones resting on the new general law. The words “undercolor of” must, in the connection in which they stand in the twentieth section of the act of 1889, be read as equivalent to the words “ under authority of.” This is neces • sary to give effect to the legislative intent, and to open the way for any and all companies existing under charters or letters patent issued previously to the passage of the act, to come in under its provisions and avail themselves of its benefits. The Reading City Railway Company by its surrender of its old charter and acceptance of the act of 1889 acquired, in the language of this section, the rights and powers of “ a body corporate hereunder,” and became entitled to “all the privileges, franchises and powers conferred by this act upon corporations to be created under this act, and all the properties, rights and jnivileges belonging to such corporation theretofore acquired by gift, grant, conveyance, municipal ordinance, assignment or otherwise.” In other words, it ceased to stand alone upon its special act of assembly, and passed with all its belongings under the general law.

Let us now, conceding the right of this company to extend its lines within the meaning of the act of 1889, inquire into its right to occupy the Harrisburg bridge. This bridge belongs to the county of Berks and is under the control of the county commissioners. It cannot be occupied without their consent, but that consent cannot be arbitrarily withheld. It is in an important sense a part of the highway and its ownership by the county cannot be made use of to block the course of improvements or to extort unreasonable concessions. The county is liable to the public for its safe condition, and the commissioners have a right to consider its strength, and to refuse to permit its use in a manner that would jeopardize the traveling public using it in the ordinary manner. But if it can be made safe for us.e both by the public and the street railway company, the duty of the commissioners is to consider what is necessary for that purpose and in what way it can best be accomplished. The cost of the work found to be necessary, as well as the cost of repairs, they may require the company to pay or secure as a condition of its occupancy of the bridge. In this case the company applied to the county commissioners and in December,-1898, obtained a contract from them for the occupancy of the Harrisburg bridge with their railway. We have examined this contract. It may be that it is somewhat improvident, but we are clear that it'is not so grossly so as to justify the court in pronouncing it absolutely void for that reason. The county commissioners however, for some reason refused to be bound by it, and of this the railway company had actual notice. Nothing had been done under it by the company up to the time that its officers were made fully aware of the refusal of the commissioners to abide by it or to permit them to occupy the bridge. Under such circumstances if they regarded the contract as binding upon the county, the courts were open to them- and it was their duty to settle the extent of their rights in an orderly manner. It seems doubtful upon the evidence now before us relating to the strength of’the bridge and its inability to stand the increased burden to be put upon it, whether a court of equity would have enforced this contract without imposing additional terms. The company probably entertained the same view of the situation. It accordingly decided to shove by the courts, seize the bridge, and attempt to defend under its contract. This it did in the night time and with a strong hand. This is a method of asserting property rights that courts do not favor. It is a race against the law which it is rarely, if-ever, worth the while to run, and which if won, cannot often yield the winner any substantial advantage. This court has frequently condemned this disorderly and dangerous practice. One of its most recent utterances can be found in Easton Passenger Railway Co. v. Easton Borough, 133 Pa. 505.

The injunction was properly issued in this case because the seizure of the bridge was without the consent of the county commissioners and after notice that their consent had been withdrawn ; and because upon the evidence before us we cannot enforce the contract under which the company seeks to j ustify its entry upon the bridge. The strength of the structure does not seem to be sufficient to bear the additional burden without some changes or repairs. The decree is affirmed. The costs of the appeal to be paid by appellant.

Subsequently a motion was made to modify the decree entered in the court below.

Opinion by

Mr. Justice Williams,

April 8, 1895:

We were at first inclined to refuse this application, and to look upon the ill-considered reply of the county commissioners to the letter of the defendants asking them to determine what ought to be done in order to render the county bridge in question sufficiently strong to justify its use by their tracks, as the hasty expression of a litigant that the sober second thought would qualify in a proper manner. The answer now filed in this court shows that our confidence was not well founded and leads us all to conclude that some modification of our decree should now be made. This bridge, as we said in the opinion disposing of the appeal in this case, is a part of the highway for purposes of passage. The county owns it, not as a house or a farm is ordinarily held, for the benefit of the owner, but for the convenience and comfort of the traveling public. Because of the cost of its original construction, and of its maintenance, the burden of such construction and maintenance is lifted from the local subdivision of the county in which it is situated, and placed on the county at large. The county thus becomes liable for its proper construction and its safety as a part of the highway. In consequence of the duty so cast upon the county it is •clothed with the powers necessary to enable it to regulate the public use of the bridge so far as its own protection and the safety of those using it may require. The county cannot close it against the public, as an owner might shut up his house. It is bound to keep it open and in good repair. The proper local and municipal authorities within whose jurisdiction this part of the highway is located have given their consent to its occupancy by the defendant’s railway, as we understand the facts. The question then arises, can the county which is a trustee for the public, and not an owner in its own right, arbitrarily refuse the use of the bridge for purposes which the proper local authorities have regularly authorized ? There can be but one answer to this question. The control of the county relates to the structure, not to the highway. If the structure is insufficient to support the increased and lawfully authorized use of the highway of which it is a part, it is the duty of the county commissioners to say so, and to determine what ought to be done to strengthen and prepare the structure to meet the demands that will be made upon it. They may also within any reasonable limits regulate the manner of its use, and provide for its repair and a proper compensation by way of rental. Beyond this their power of control cannot be exercised to defeat the purposes of the local authorities who control the highway. The line that divides the respective provinces of the county and the municipality so far as this subject is concerned is easy to trace and hard to mistake.

We shall amend our decree by adding the following paragraph to the end thereof.

And now April 8, 1895, it is further ordered adjudged and decreed that the record be remitted to the court below with direction to appoint, on the petition of the defendants, a competent engineer to examine the bridge described in the bill and report in writing to the said court its-general condition and the extent of the repairs or supports that may be necessary to prepare it to support safely the defendants’ street railway and its traffic in addition to the ordinary public travel. After the report of the engineer has been made the defendants may apply to the court for the dissolution of the injunction so far as to permit them to enter upon the bridge with their employees and under the general supervision of the county commissioners, make the changes and repairs found by the court on the report of the engineer to be necessary. When these are completed and that fact is made to appear to the satisfaction of the court below, the injunction heretofore directed will be dissolved upon the giving by the defendants of a bond in the sum of five thousand dollars with surety to be approved by the court, conditioned that the defendants will faithfully observe and abide by the terms and conditions relating to the manner of the use of said bridge by them, the repairs thereof, and the payment of rent therefor, which may have been or may thereafter be agreed upon by the parties or, in the absence of an agreement, may be determined upon by the court.

The costs of this motion to be paid by the county of Berks.