Frankford & Philadelphia Passenger Railway Co. v. City of Philadelphia

58 Pa. 119 | Pa. | 1868

The opinion of the court was delivered, March 2d 1868, by

Strong, J.

The argument on behalf of the plaintiffs starts with the assertion that, being a corporation created by the state, they are subject only to such burdens as are clearly imposed by their charter. If by this it is meant that they are subject to no other burdens, regulations or restrictions than those which are expressly enumerated 'in the Act of Assembly which authorized their corporate existence, we cannot yield our assent to it. They were incorporated with two privileges. The one was a right to construct a railway upon and along some of the public streets of the city of Philadelphia, and the other was a right to run passenger cars on the railway constructed, and to engage in the business of passenger carriers. Of both these privileges they are undoubtedly purchasers, and they cannot be deprived of them by any action of the city. But the grant of a privilege to carry passengers in cars over the streets does not necessarily involve exemption from liability to municipal regulation. It is not the bestowal of a right superior to the rights enjoyed by passenger carriers generally, whether such carriers be natural or artificial persons. The facilities for the use of the right may be greater, but the right itself can be neither more nor less than a natural person possesses. It is to be presumed that when the legislature creates a corporation, and authorizes it to carry on a specified business within the limits of a municipal organization, the business is intended to be conducted under the restrictions, rules and regulations that govern the same business when transacted by others within the same corporate limits. Can it be doubted that a. company chartered and endowed with the single privilege of running a line of omnibuses within a city or borough, would take the privilege subject to reasonable municipal regulations of its enjoyment ? Would the vehicles of such a corporation be beyond all control of the city or borough, as to the rate of speed at which they might be run, or as to the places where they might stop ? Might they obstruct crossings whenever and wherever the company might please, and the municipal authorities be powerless to restrain the public inconvenience ? Is such an exemption from reasonable local regulation a part of the legislative grant ? If it is, the grant is more than conferring a right to do the business. Suppose a company chartered to mg,ke and sell bread in the city, is it beyond the power of the local authorities to prescribe the weight of the loaves which they may make and sell? Or if" authorized to own and use hackney coaches, may not stands be prescribed for them? These and a multitude of similar questions may be put, to which there can be but one answer. A power or a right in the hands of a corporation can be no greater than the same power or right in the hands of a natural person. Any regulations which may be imposed upon its exercise by one, may be imposed upon its exercise by the other. It is not maintained that the use of a privilege conferred by the legislature may be denied by city authorities, but a reasonable regulation of the use is not such denial. No city ordinance can prevent any person from using drays or carts, but the mode and conditions of use are confessedly subject to direction by ordinance. And corporations chartered to do business in a city are to be regarded as inhabitants of the city, and, in the absence of special exemption, subject to its ordinances. In The Trenton Water Company’s Case, 6 Penna. L. J. 32, it was said that “ private corporations take their franchises subject to the rights of individuals and communities, and the strong presumption of law is always against unconditional adverse privileges.” Upon this subject the case of The Commissioners v. The Northern Liberties Gas Co., 2 Jones 318, is very full and decisive. There a company had been chartered with full power to lay gas mains in the streets of the Northern Liberties. There was no restriction in the charter as to the time of the year when the mains might be laid. They were empowered to lay them along the streets within the chartered limits, on application of the owners of property, whenever; in their opinion, the profit would yield six per cent, interest on the expenses. After the charter was granted the municipal authorities passed an ordinance, prohibiting opening of the streets for the purpose of laying gas mains between the 1st of December and the following March. This ordinance, it was ruled, bound the gas company. The opinion of the court, delivered by Rogers, J., treats it as a regulation, not a restraint of the powers of the company, and it asserts in the fullest degree the subordination of such companies to the control of reasonable local regulations, both as to the time and manner of exercising their powers. Other cases to the same effect are numerous. It is a mistake to argue, then, as has been argued on behalf of the plaintiffs, that they are subject to no burdens or restrictions other than such as are expressly mentioned in their charter. Liability to restrictions and regulations is involved, in the designation of the place where their authorized business is to be carried on.

It is surely unnecessary to spend time in showing that their right to run cars and carry passengers is neither enlarged nor diminished by the other right which they possess, viz. that to construct and own a railway upon which their cars may run.

The power of the city to regulate the use of the franchise of the plaintiffs to run cars being then established, the next question is whether the ordinance of which they complain is such a regulation. It provides that each car run shall be numbered, and have its number painted in a conspicuous place, that each car shall be licensed, on the payment of a stipulated sum, and that a certificate of the license, duly numbered, shall be hung in each. The case stated hardly raises the question whether this is a reasonable regulation. The argumeiit rather denies that it is a regulation at all. It is obvious, however, that its effect is that of a police regulation. It clearly furnishes a means of identifying every ear which may be run in violation of those rights and public interests which the city is authorized by its charter to maintain and secure. The city is authorized to “ ordain, constitute and establish such ordinances, regulations and constitutions, as shall be necessary for the government and welfare of the said city.”

But it is insisted there can be no regulation by license without express legislative authority. The mode or form of regulation, however, must be immaterial. It is the substance or effect only which need to be considered. Whether it is true that a police regulation cannot be made, by a requisition of licenses, without express authority from the legislature, may perhaps be a question in other cases. It is not in this. The 12th section of the Act of Assembly of April 15th 1850, Pamph. L. 469, enacted, “ that the Select g,nd Common Councils of the city of Philadelphia shall have authority by ordinance or ordinances, to provide for the proper regulation of omnibuses, or vehicles in the nature thereof; and to this end, it shall be lawful for the said councils, &c., to provide for the issuing of licenses to such and so many persons as may apply to keep and use omnibuses or vehicles in the nature thereof, and to charge a reasonable annual or other sum therefor.” This act is still in force. It plainly authorizes'regulation by the issue of licenses. And we are of opinion that it applies to passenger railway cars. They are omnibuses, or if not, they are vehicles in the nature of omnibuses. They are opened to all, intended for all. The change of form from that of anything known when the Act of Assembly was passed, is not a change of the nature of the vehicle. In one city, at least, of Europe, large vehicles intended for indiscriminate public -use, run sometimes upon a railway track, and at other times upon a common pavement. Nobody can doubt they are omnibuses. The form of the wheels, or the character of the roadway over which a vehicle runs, does not determine its nature so much as do the uses to which it is put, and for which it was designed. We hold then that the ordinance of January 2d 1867, is valid as a police regulation, there being nothing to show that it is unreasonable. It follows that the plaintiffs were not entitled to a judgment on the case stated. We have been referred to the case of The Mayor, &c. v. The Second Avenue Railroad, 32 N. Y. Reps. 261. It sustains the positions of the plaintiffs, but it is not authority with us,' and we do not accept it as such. It differs in some particulars from this case. The municipal powers of New York were less than those of Philadelphia. The ordinance itself declared invalid, looked not to identification or to regulation in any way, but simply and exclusively to raising revenue. It was treated therefore as a fiscal measure. Rut in this case there is express power to grant licenses as a mode of police regulation, and other provisions of the ordinance tend to show that regulation was the object.

The judgment is affirmed.

Thompson, C. J., dissented.