Hampe v. Pittsburg & Birmingham Traction Co.

165 Pa. 468 | Pa. | 1895

Opinion by

Mb. Justice Mitchell,

The master found the facts as to good faith, advantage to the lessor, etc., in favor of the lease, but both he and the learned court below held it void for want of authority. In reaching this conclusion they failed to give sufficient weight to the special and extraordinary charter powers of the Mount Oliver Inclined Plane Railway Company, and fell into error by separating its franchises and having regard to the several parts singly and not to the whole. The master rests his finding on the classification of railroads and the absence of authority to lease between the different classes. The court puts its decision rather on the proviso of the act of 1870, by which the right of leasing is limited to railroads forming a continuous route.

The master’s view rests on the finding that the Mt. Oliver Company is an inclined plane railroad, and as such has no power to lease to a passenger railroad. But under its charter the Mt. Oliver Company is not only an inclined plane company but also a passenger railroad. In law it is as much the latter as the former, and in fact it is more so, for it owned and operated one incline and three passenger roads at the time of the lease. As a passenger railway its power to lease to another passenger road under the acts of 1861 and 1870 cannot be doubted, and such power was not taken away by the possession of the additional franchise of an inclined railroad. To hold that it was, would be to hold that a gift meant to be additional and cumulative, in effect took away powers expressly granted in the first instance. If there were any doubt on this point moreover it would be conclusively settled by the express grant in the charter, of “ all the powers and privileges .... in constructing, locating and operating any of the said planes or railways ” contained in the general railroad act of 1849.

Turning now to the other point, was the lease void because of the proviso of the act of 1870 requiring the lessor and lessee roads to form a “ continuous route ? ” The act of April 23,1861, P. L. 410, requires only that the roads leasing and leased shall be “ connected,” and in Phila. & Erie R. R. Co. v. Catawissa R. R. Co., 53 Pa. 20, it was held that this does not mean necessarily that the same cars shall pass from one road to the other without interruption, but it is sufficient if the roads intersect in such manner as to admit of the convenient interchange of passengers and freight at the point of intersection. The wisdom of the broad view taken in that case, in furtherance of the real object of the statute, has been signally illustrated by the subsequent progress of mechanical inventions, for while it was there declared that the roads in question being of different gauges there was a “ physical impossibility ” that the ears of one line should run on the tracks of the other, or that there should be “ any mechanical connection between the two roads,” that difficulty, then argued to be insuperable, has long since been overcome by the transfer of the car bodies to trucks of the other gauge. Under that decision therefore the mere fact of the necessity of changing cars at the inclined plane, would not prevent the roads from being connected within the requirement of the act of 1861. It has never been held by this court that that act was repealed by the act of Feb. 17, 1870, P. L. 31. The reasoning of the court in Pittsburg & Connellsville R. R. v. Bedford R. R., 81* Pa. 104, is not reconcilable with that view. The opinion of the court is an argument to show that the roads in question in that case were not connected within the meaning of the act of 1861, and a fortiori not within the act of 1870. It would have been much easier to have rested the decision on the latter act alone, and as there was a dissent, it is not to be supposed that Justice Sharswood voluntarily assumed the heavier burden, if the opinion of the court had been that the act of 1861 was out of the way by repeal.

But we are not prepared to say that even under the act of 1870 an absolute passage of the same car from one road to the other without break or interruption, is necessary to constitute a “ continuous route.” The reasoning of the court in Phila. etc. R. R. v. Catawissa R. R., 53 Pa. 20, supra, is against such a construction, and, as already noted, time and experience have amply vindicated the wisdom of a broad interpretation of the statute in furtherance of its real object, the facilitation and convenience of travel and transportation. But the question does not arise in the present case, because there is no doubt of the continuity of the route at the point of intersection of the leased and leasing roads. The break, whatever its effect, is not at the junction but in the centre of the lessor, and is neither greater nor less after the lease than it was before. As already said the Mt. Oliver Company is both an inclined plane and an ordinary passenger raih'oad. Ixx its latter capacity it is strictly continuous with its present lessee, and the fact that it has at another point of its lixxe an inclined plane, and that the whole system is leased as an entirety, does not make it any less so. The passenger who before the lease came down the plane, and there changed cars to be carried on the lessor’s railway by 12th street to Carson, now does exactly the same thing with the addition that he may continue in the same car beyond Carson street over the line of the lessee company. This is clearly a continuous route.

How far the franchise of the Mt. Oliver Co. to purchase and Improve real estate may be ultra vires as to tbe lessee is a question not raised and we do not pass upon it in any way.

Decree reversed and bill dismissed with costs.