Commonwealth v. Pennsylvania Canal Co.

66 Pa. 41 | Pa. | 1870

The opinion of the court was delivered, July 7th 1870, by

Sharswood, J.

The very able and exhaustive opinion of the learned president judge of the court below in entering judgment upon the special verdict, relieves us from the necessity of any further discussion of the important constitutional and legal questions involved in this case. That opinion is in entire accordance with our own views, and we adopt it as the opinion of this court.

It is strongly urged, however, on behalf of the Commonwealth, and this has been the principal contention here, that he fell into a fundamental error, which vitiated all his reasoning, by treating the case as though it were a question between the Commonwealth and the Pennsylvania Railroad Company, who were the original purchasers of the dam at Duncan’s Island, together with tbe other public works, under the provisions of the Act of Assembly, passed May 16th 1857, Pamph. L. 519, entitled “ An Act for the sale of the main line of the public works.” It is apparently conceded that the Pennsylvania Railroad Company took the works under that act by contract, and paid for them to the state a valuable consideration, and consequently the state could not impose upon the’ir grantee any new burthen not contained in the original sale; for that would be for one of the parties to add a new term or condition to the contract. In that respect the case is stronger than The City of Erie v. The Erie Canal Company, 9 P. F. Smith 174, for the Erie Canal Company was the donee rather than the vendee of the Commonwealth. But it is said, that by the Act of 1857 the Pennsylvania Railroad Company were not authorized to sell any part of the works to the Pennsylvania Canal Company, because, at the time of the original sale of the whole, it was not then an existing corporation, and consequently, when the last-named company were incorporated by the Act of May 1st 1866 (Pamph. L. 1068), and were thereby authorized and empowered to purchase, take and hold from the Pennsylvania Railroad Company, and which said railroad company were thereby authorized and empowered to grant, the canal from Columbia to the junction at Duncan’s Island, &c., with all the property and appertenanees thereto appertaining, they necessarily took the same under and subject to the provisions of the previous Act of Assembly of March 30th 1866, Pamph. L. 370, entitled “An Act relative to the’ passage of fish in the Susquehanna river and certain of its tributaries,” for a violation of which this indictment was preferred. The argument has great ingenuity and plausibility, and if its premises be admitted, the conclusion would have to follow logically and inevitably. All legislative acts alienating public rights or domain are to be strictly construed, and no such grant is to be inferred by implication merely. Accepting this as not only the well established, but sound and reasonable canon of construction, let us examine how it applies in the case before us; whether there is not here a sufficient actual expression to be beyond the reach of the rule. By the third section of the Act of 1857, it was provided, “ that it shall be lawful for any person or persons, or railroad or canal company now incorporated or which may hereafter be incorporated by and under the laws of this Commonwealth, to become the purchasers of the said main line of the public works.” Then, after various provisions, applicable specially and severally in case individuals or associations of individuals, or the Pennsylvania Railroad Company, should become the purchasers; and directing in the fifth section, that immediately after the said purchaser or purchasers, or their assignee, shall take possession of the same, the said purchaser or purchasers, or assigns, shall be bound ever thereafter to keep in good repair and operating condition, the main line of said railroad and canal, extending from Hollidaysburg to Philadelphia, &c.; it is added in these words: “ Provided that said purchasers be authorized to grant, sell and convey, or to lease for a term of years, upon such conditions as may be agreed upon, any part or portion of said canals, and any corporation or association of individuals, authorized by this act to purchase the whole, may purchase or lease such portions and hold the same subject to the conditions and entitled to all privileges contained in this act.” ' As by the third section any corporations thereafter to be incorporated were entitled to become purchasers of the whole, it would seem at first blush to follow by the express words that such corporations would also be authorized to become sub-purchasers or lessees of part. But it is maintained, and here is the stress of the argument, that by the third section it was only meant that corporations, which should be incorporated between the date of the act and the sale, should become purchasers; for how in the nature of things, it is asked, could a corporation purchase, which was not in existence at the time of the sale ? By a necessary inference, a corporation not in existence at the time of the sale could not become a purchaser of a part under the fifth section. The argument is more refined than solid. We must bear in mind that an established canon of construction is that verba relata hoe máxime operantur per referentiam ut in eis inesse videntur. If, in pursuance of this rule, we transfer the words of the third to the fifth section, they must then receive the same construction, which it is conceded that they have in the third section, so as to authorize a sale to any corporation created after the passage of the act and before the sale or lease mentioned in the fifth section. That this was really the mind of the legislature can hardly be matter of doubt with any one who reflects upon the circumstances of the case. That body cannot fail to have perceived that the only really practicable mode by which a sub-sale or lease of part of a work of that character was likely to be effected would be by some corporation specially to be created for the purpose, just as they evidently did see the same thing in the provision made for the original sale of the whole. It was highly improbable that any corporation existing at the time of the original sale, could, consistently with its charter, unless incorporated expressly for the purpose, become a sub-purchaser. The Pennsylvania Canal Company, incorporated May 1st 1866, and specially authorized, as we have seen, to purchase from the Pennsylvania Railroad Company, became their assignees under and by virtue of the original power to sell, contained in the Act of 1857, and of course took the subject of the grant with all the privileges thereby conferred upon them. Nay, the terms of the Act of Incorporation, May 1st 1866, seem intended to leave no possible doubt upon this point, for it declares that they shall be vested “ with all the powers, privileges and franchises granted or intended to be granted ” to the Pennsylvania Railroad Company. And this is again repeated: “ And the said Pennsylvania Canal Company, their successors and assigns, be and they are hereby vested with the said powers, privileges and franchises.” They became, thereby, the assignees of the Pennsylvania Railroad Company, and stood in their shoes to all intents and purposes as parties to the contract authorized by the Act of 1857. The learned president judge below, therefore, fell into no error in treating the case as though it was a question between the Commonwealth and the Pennsylvania Railroad Company.

The franchises conferred upon the Pennsylvania Railroad Company, and vested in the Pennsylvania Canal Company, as their assignees, on this great public highway, are undoubtedly still within the right of eminent domain of the state, and may be resumed or taken under the limitation of Art. IX, sect. 10, of the Constitution, “ nor shall any man’s property be taken or applied to public use without the consent of his representatives, and without just compensation being made:” West River Bridge Company v. Dix, 6 How. (U. S.) Rep. 507 ; Commonwealth v. Pittsburg and Connellsville Railroad Company, 3 P. F. Smith 50.

Judgment affirmed.