23 Pa. Super. 235 | Pa. Super. Ct. | 1903
Opinion by
The act, entitled “ An act incorporating' the Miramar Iron Company,” purported to confer upon the company thereby incorporated “ all the rights, powers, privileges, franchises and immunities ” of the Caledonia Iron, Land & Railroad Company, and made it subject to the provisions and restrictions of the act incorporating the latter company and the several supplements thereto : Act of May 3, 1869, P. L. (1870) 1440. By appropriate corporate action, the authority for which is not disputed, the name of the Miramar Iron Company was changed in December, 1871, to Harrisburg & Potomac Railroad Company. In January, 1874, the latter company executed a mortgage to the Provident Life & Trust Company for $1,800,000 upon its railroad, real estate, corporate rights and franchises, and in July, 1890, pursuant to foreclosure proceedings, the trust company conveyed the same to A. A. McLeod. In the same year and month Mr. McLeod conveyed the railroad and other property to the Harrisburg & Shippensburg Railroad Company, a corporation formed by the persons for whom, and on whose account, they were purchased. In the meantime (June 3, 1889) the Harrisburg Terminal Railroad Company had been incorporated with authority to construct, maintain and operate a railroad from Bowmansdale, in Cumberland county, to Harrisburg, and by articles of consolidation and merger, dated in July, 1890, and duly filed in the office of the secretary of the commonwealth in August of the same year, these two companies, the Harrisburg & Shippensburg Railroad Company and the Harrisburg Terminal Railroad Company, were united to form the Philadelphia, Harrisburg & Pittsburg Railroad Company, the defendant in the present case.
It is thus seen that the defendant has succeeded to the “rights, powers, privileges, franchises and immunities” of the Miramar Iron Company, to determine which we are referred to the act, and supplements thereto, incorporating the Caledonia Iron, Land & Railroad Company.
Section 5 of the act incorporating the latter company (Act pf March 22, 1867, P. L. 542) authorised qnd empowered the
A supplement to the foregoing act declared that after organization the company might proceed to purchase lands for the purposes of the corporation, but could not purchase, lease or hold more than 4,000 additional acres of land under the act to which this was a supplement: Act of April 10, 1867, P. L. 1122.
A further supplement authorized the company to secure the bonds, which under the 8th section of the original act it was authorized to issue, by “ mortgages upon the railroad, railroad equipment, corporate franchises, real estate and all other property of every kind whatsoever, acquired or hereafter to be acquired by the said company: ” Act of February 20,1869, P. L. 230.
1. This recital, tedious though it be, of the legislation relative to the Caledonia Iron, Land & Railroad Company, is the best answer that we can make, and we think it a complete answer to the suggestion that no right to construct or operate a railroad was conferred upon the corporation except for the purpose of carrying the products of its own lands to market. The exclusion of the second proviso of the 18th section of the act of 1849 is significant. Taken in connection with what precedes it clearly indicates an intention to extend the provisions of the remaining portions of the section to this corporation, and to make its railroads, when completed, “ a public highway' for the conveyance of passengers, and the transportation of freight, subject to such rules and regulations, in relation to the same, .... as the president and directors may prescribe and direct.” See Act of February 19, 1849, section 18, P. L. 79. And to remove all doubt upon the point it was expressly declared, as we have seen, that the corporation should have “ all the rights, powers and privileges of a general transportation company.” True, its lands were made the terminus a quo, and if it had no lands from which the things mentioned in the 5th section could be produced and transported, it could build no railroad. This was the point actually decided in Warren and Franklin Railroad Co. v. Clarion Land &c. Co. 54 Pa. 28, as we understand that case. We have not overlooked that part of the opinion of Justice Read, in which, speaking of a section
2. But, say appellant’s counsel, the railroad originally built by the Harrisburg & Potomac Railroad, successor in name to the Miramar Iron Company, did not touch any of the company’s lands, and this is true. It appears, however, that in 1882 it was connected with the company’s lands by what is called the Cleversburg branch, that for a period of years ore taken from the company’s lands was transportated over it to the company’s furnace at Boiling Springs, that this branch is'still maintained but is used exclusively for the storage of cars. With the right to maintain and operate that portion of the main line lying
3. Much stress is laid by counsel for appellant upon the fact that the portion of the railroad known as the Cleversburg branch is not now used for the conveyance of passengers and the transportation of freight but is used exclusively for the storage of cars. We fail to see what bearing this fact can have upon the question whether the railroad at the crossing described in the indictment is a nuisance per se. As we have said, the company’s charter authorized it “ to construct and operate a railroad or railroads, with branches, from any part of their lands, to connect with the Caledonia and South Mountain railroad, or its branches, or with any other railroad now or hereafter to be built.” The company built such railroad and the tracks at the crossing in question are part of it. We have assumed that we have a right to inquire and determine whether the franchises claimed by the defendant are included in the legislative grants above referred to, but whether we have a right, in this form of proceeding, to adjudge such franchises to have been forfeited by reason of the use of one portion of the railroad, remote from the locus in quo, for the storage of cars, instead of the conveyance of passengers and the transportation of freight, is an entirely different question. We do not mean to intimate that this would be cause of forfeiture even in a direct proceeding. No part of the railroad between the termini named in the charter has been abandoned. The whole of it, including the Cleversburg branch, is being used for legitimate railroad purposes. But even if the objection to the present use of that portion of the railroad were more serious, we think it
4. Finally, upon this branch of the case the counsel for appellant attack the validity of the charter of the Miramar Iron Company upon the ground that the title of the act granting it does not conform to the requirements of the constitutional amendment of 1864. It is to be borne in mind that the act was passed at a time when special legislation was not forbidden by the constitution, and when it was permissible, and very common in legislative practice, to extend and confer the rights, powers and privileges granted by an act incorporating one company to another company, as was done in this case, without re-enacting and publishing at length the provisions of the former act. To adopt the language of Judge Black in the case heretofore cited, the objection under consideration “ goes not to the nature and essence and character of the law itself.” It is not asserted that the legislature had no jurisdiction of the subject-matter, or that the law interferes with any right made inviolable by the constitution, or that it conferred any right or franchise which the legislature had not power to confer, but merely that the legislature neglected to clearly express the subject of the
In the first place, it is distinctly alleged in the indictment that the defendant company is “ an existing corporation, duly chartered by the commonwealth of Pennsylvania.” In view of this admission it may well be questioned whether it was bound to prove that it is a corporation de jure as well as de facto, or to defend the validity of the successive legislative grants which go to make up its charter. It would seem that the second count of the indictment was drawn, not with a view to bring these matters into question, but only to raise the issue whether the maintenance and operation of a railroad at the locus in quo was within the scope of the powers thus conferred upon the company.
In the second place it appears from the evidence that the railroad in this place was built in 1872, or thereabouts, under what appeared, and was believed, to be the charter powers of the original company; that it was mortgaged in 1874 for $1,800,000, and pursuant to regular foreclosure proceedings was sold in 1890; that it was immediately reorganized by the purchasers in the mode prescribed by the statute under the name of the Harrisburg & Shippensburg Railroad Company; that it was consolidated with the Harrisburg Terminal Railroad in 1890, in good faith, and in accordance with the provisions of the general statute authorizing the consolidation of railroads, the corporation thus formed being the defendant in the present case; that the railroad forms a link connecting the Western Maryland & Baltimore & Ohio Railroad on the west with the Reading Railroad system on the east, over which at least forty trains pass daily; that the said railroad has cost several millions of dollars ; that a mortgage securing bonds to a large amount, which have been sold and are held by third parties, has been placed upon the property and franchises thus held and claimed by the defendant; and that the commonwealth has
But, in the third place, we need not, and do not, put our decision on the ground that the commonwealth is conclusively estopped. It may be safely rested upon the narrower ground that the validity of the defendant’s charter cannot now be inquired into by any one, except the commonwealth, nor by the commonwealth, except in a direct proceeding instituted for that purpose. This case grew out of a controversy between the defendant and the Carlisle & Mt. Holly Electric Railway Company, the history of which is set forth in the opinion of Justice Fell in Carlisle & Mt. Holly Railway Co. v. Philadelphia, Harrisburg & Pittsburg R. R. Co., 199 Pa. 532. After reciting some of the facts to which we have alluded, the court concluded: “ But it is wholly unnecessary to consider the extent of the charter powers of the defendant or the right of the plaintiff to inquire as to them. The railroad is now in place, and is a part of line of road over which more than fifty trains pass daily. It cannot be removed except at the suit of the commonwealth.” A few months after that decision was rendered the burgess of Mt. Holly Springs made the information upon which this indictment rests, and the Carlisle & Mt. Holly Railway Company, in return for the advantages which it expected to obtain through a determination of the questions it had unsuccessfully raised in the former proceedings, agreed to become responsible for the costs, if any should be placed upon the nominal prosecutor or the borough. As was said in Commonwealth v. Pittston Ferry Bridge Company, 176 Pa. 394, “ The case bears very strong indications of belonging to the class in which the name of the commonwealth is used not
5. Section 12, of the act of 1849, requires that, whenever it shall be necessary to cross any established road or way, the railroad shall be so constructed “as not to impede the passage or transportation of persons or property along the same.” It appears that in 1881 the company put in a second track, within the limits of its right of way, which necessitated the remaking of the approach on the south side. In doing this the width of the highway, which could be traveled, was somewhat narrowed, but whether to such an extent as to impede travel is' not absolutely free from doubt. We can conceive of cases where, there being no conflict of evidence as to the facts, it would be the duty of the court to declare as matter of law that the construction of such approach in such manner as to narrow the traveled way, even to a slight extent, would be in contravention of the statute. But we are not convinced that this can be laid down as a rigid and unvarying rule of law applicable as well to a country road, upon which there is comparatively little travel, as to a crowded street of a great city. This distinction has been recognized in analogous cases. See Monongahela City v. Fischer, 111 Pa. 9, and Commonwealth v. Shoemaker, 14 Pa. Superior Ct. 194, at p. 205. The question is, is travel upon the highway unnecessarily impeded ? A jury of the vicinage is quite as able and quite as likely to determine that question according to truth and justice as any other tribunal, and ordinarily, where it arises in a criminal prosecution,
6. Some of us were inclined to think upon the argument that the portion of the charge, which is the subject of the fifteenth assignment of error, might be construed to mean, although not so intended by the learned trial judge, that there can be no conviction, on an indictment for maintaining a nuisance which had been abated prior to the date of the information, a general proposition that we are not to be understood as assenting to. But a more careful examination of the evidence has convinced all of us that, if there was a technical error in this part of the charge, it was harmless. In overruling the motion for new trial the learned judge showed that “ the crossing was probably in worse condition on January 11, than at any previous time.” At any rate, it is perfectly accurate to say, that the condition of the crossing complained of in the first count of the indictment, which was occasioned by the reconstruction of the approach, appears from the commonwealth’s evidence not to have been improved at the date of the information but was as bad then as at any previous time. Under the commonwealth’s own showing, and the defendant’s as well, a finding that the condition complained of was in fact a nuisance prior to January 11, the date of the information, but was not so on that date, would have been unwarranted. The commonwealth was not harmed by having the attention of the jury directed to that date ; and it is too well settled to require citation of authorities that an error which did the appellant no harm is not ground for reversal.
7. The objection to the map made by -Mr. McGowan, the commonwealth’s engineer, was that the vertical scale to which it was drawn was forty feet to the inch, and the horizontal scale four feet to the inch. It was so drawn, said the witness, “ to make mope distinct the irregularities of the surface; if
All the assignments of error are overruled and the judgment is affirmed.