Mahoning & Shenango Railway & Light Co. v. New Castle
82 A. 501
Pa.
1912
Check Treatment

Opinion by

Mr. Justice Moschzisker,

This was a proceeding in equity for an injunction to restrain the defendants from arresting the motormen and conductors in charge of the plaintiff’s cars or from in any other manner enforcing the provisions and penalties of a certain municipal ordinance.

The ordinance was approved November 30, 1908, and required all companies operating street railway lines in the city of Newcastle, (sec. 1) to “equip.each and every car operated .... with the latest, best and most approved safety brakes;” (sec. 2) “until some better or more practical brake or device is made for the purpose of braking or locking cars .... to equip each of their respective cars with the kind of brake known as the magnetic brake .... the said brake to be the same or similar to those which were recently used by the Mahoning & Shenango Railway & Light Company .... in said city, or an air brake similar to those now in use on the Inter-Urban lines now entering the city, the said brake or brakes to be in addition to the hand brakes with which each car shall be equipped;” and (sec. 3) that upon conviction of any violation of the ordinance a fine shall be imposed of not less than $10 or more than $100 and costs of suit; and upon refusal to pay, imprisonment not exceeding thirty days, with an allowance of execution process to collect fines and costs from corporations.

The court below decided that the ordinance was valid excepting in so far as it required the trailer cars to be equipped with the brakes designated; that if the plaintiff was affected it had an adequate remedy at law; and that equity had no jurisdiction to grant the relief prayed for. A decree was entered dismissing the bill.

*418It was the threat to take the employees of the plaintiff company off its cars by arrest which caused the filing of the bill. Had this threat been carried out it would have meant the tying up of the plaintiff’s lines and a serious interference with the use of its property. Under such circumstances, if the ordinance was invalid, there was ample authority to sustain equitable interference. In Bryan v. Chester, 212 Pa. 259, where the validity of a police power ordinance was in question, it was contended, upon practically all of the grounds now urged, that equity had no jurisdiction and should not interfere. But we said, “There can be no doubt that this proceeding was properly instituted;” and we sustained an injunction decree declaring the ordinance invalid.

There is nothing in the Act of February 25, 1869, P. L._ 249 (incorporating the city of New Castle), in the Act of May 16, 1901, P. L. 224 (to amend the act of May 23, 1889, as to cities of the third class), or in the Act of March 22, 1887, P. L. 8 (for the incorporation and regulation of motor power companies), which confers upon the defendant city the express right- to enact an ordinance in the terms of the one in this case; nor had the city any incidental or implied power which would enable it so to do.

In constructing and maintaining its streets, a city is not bound to adopt the latest and best devices: Canavan v. Oil City, 183 Pa. 611; and yet that is the standard of public duty which the defendant city attempts to set for the plaintiff company; and more than this, by designating what the latter must use as the latest and best safety brakes, the ordinance assumes to declare how the company shall perform this duty. In the absence of express authority conferring the power of enactment, a penal ordinance such as the present, which undertakes to enforce a higher standard than that imposed by the principles of the common law, should not be sustained; if a new and different one is to be set, the legislature should act. Aside from the strictly legal aspect, it is apparent *419that if such minute regulation is to be attempted at all, it is far better that the matter shall be under state control; for if each municipal subdivision be permitted to prescribe the particular Mnd of safety brakes to be used by. cars passing through its territory, since there is no guarantee that the judgment of the different authorities will accord, the important development of connecting trolley lines as competitors of the railroads, which has added so much to the comfort and convenience of the traveling public, will be seriously handicapped if not practically brought to a standstill.

However, it is not necessary to theorize upon the subject in hand, for no matter what the law may be in other jurisdictions the controlling principles have been settled in this state. In The Pennsylvania Railroad Company’s case, 213 Pa. 373, this court squarely ruled against the validity of an ordinance of the character of the one under consideration. We there said, “The question raised on this appeal is as to the power of the borough .... to pass an ordinance .... requiring the Pennsylvania Railroad to erect, maintain and operate safety gates. ... A penalty is provided for a failure to comply with the requirements. ... In the operation of its road and in the running of its cars the judgment of the board of directors of a railroad company, in the absence of statutory provision, is supreme and exclusive. The public safety imperatively requires that thére be ho division of this great responsibility with others — not even with municipalities .... for division of it would be the shifting of it in every case of accountability for failure to properly operate the road or run the cars. But, while this is true, corresponding duties of the highest order are imposed exclusively upon those having the control and management of railroads. One of these is to adopt and use suitable and adequate means to give notice of approaching trains. . . . What particular means, however, shall be employed to protect the public .... is left to the company operating the road, the law merely *420demanding and requiring reasonable care. . . . What is attempted by the appellee in the present case? Having no voice in the operation of the appellant’s road, it undertakes to do what the common law itself does not do. It assumes to declare how the railroad shall perform a public duty .... and would substitute its judgment for that of the board of directors as to what kind of protection shall be afforded but with no corresponding responsibility resting upon it. . . . If it. has the power to require the defendant to erect safety gates, it has the power to require the adoption from time to time of such other means as in its judgment ought to be adopted by the company for the protection of the public. . . . The power for which it contends would be practically unlimited. . . . The power which it would exercise may be a desirable one, but courts cannot recognize it unless it exists. ...” After distinguishing the cases relied upon to support the municipal authority to pass the ordinance and determining that the general welfare clause was not a sufficient warrant for that purpose, we ruled that the borough had no such express or implied power and declared its action void. On principle that case governs the present one.

The assignments of error are sustained, and the decree is reversed; the record is remitted to the court below with directions to reinstate the bill and to grant the injunction prayed for at the cost of the appellee.