277 Pa. 459 | Pa. | 1923
Opinion by
The Borough of Norristown, in 1884, by ordinance gave a passenger railway permission to occupy certain of its highways, upon condition that the latter should repair and renew, when necessary, the streets on which the line was proposed to be built, and the grant was duly accepted and the tracks laid. Some years thereafter, the motive power in use was changed to electricity, and, in the franchise so providing, a like stipulation appeared. A lease to a traction company followed, by which the contract liabilities of the original grantee were assumed, and, in 1913, the rights of the second corporation were transferred to the Reading Transit Co., one of the defendants.
In 1902, the construction of a branch on De Kalb Street was authorized on the same conditions, the purpose being to connect with a line of another railway operating from an adjoining town. As an additional consideration, a new pavement was then laid at the cost of defendant’s predecessor. Later, the highway fell into disrepair, and frequent demands were made on the company to proceed with the work of rebuilding. Failing to comply, the present bill was filed to compel performance.
Jurisdiction of the court is assailed on the ground that the remedy at law is adequate, and, therefore, exclusive. It is true, the work contemplated might have been done by the borough, and the cost thereof collected from defendant (Collingdale Borough v. P. R. T., 274 Pa. 124), or it might have forfeited the right to occupy the street (Keystone S. T. & T. Co. v. Ridley Park, 28 Pa. Superior Ct., 635, 641), but plaintiff was not limited to such redress, and relief may be had by a proceeding to compel the company to specifically perform the obligation which it assumed when the franchise was accepted: Sayre Borough v. W. S. & A. Trac. Co., 270 Pa. 412. Without municipal consent, no railway could have been built, and the agreement to repair was one of the conditions precedent to the coming into effect of the grant. “When, as here, in consideration of the franchise, it has agreed to make the necessary improvements, the terms of the contract must be complied with, until it has by some recognized legal method been released formally from the agreed obligation”: Collingdale Borough v. P. R. T., supra, p. 127. If this has not occurred, its liability continues, and may be equitably enforced. For another reason, also, the suggested jurisdictional question cannot be successfully raised. No such complaint was made prior to hearing in the court below, and the objection must therefore be treated as waived, even if it had merit: Act June 7, 1907, P. L. 440; Friedline v. Hoffman, 271 Pa. 530.
It is argued that the contract under consideration cannot be enforced without approval of the Public Service Commission, since the effect of payment for a new highway would necessarily be reflected in the fares charged, or result in a reduction of service to the public, which brings the case within the purview of the Act of 1918 (July 26, 1913, P. L. 1374). This proposition has been the subject of recent discussion by our appellate courts (Borough of Swarthmore v. Pub. Serv. Com., 80 Pa. Superior Ct. 99, affirmed, 277 Pa. 472), and the able opinions filed so thoroughly answer the complaint that it is useless to do more than refer to what is there said. The commission can exercise only such authority as has been conferred upon it, either by specific words or necessary implication (Citizens Pass. Ry. Co. v. Pub. Serv. Com., 271 Pa. 39), and jurisdiction to pass on the reasonableness of agreements with municipalities, such as
In the answer filed, and, later, on hearing, the defendants offered to surrender their right on the street proposed to be paved, and remove the tracks, since further operation had become unprofitable. The court below held this could not be done, to escape liability, in the way proposed, and its ruling is complained of in the ninth assignment of error. Delay was granted, so that appropriate action might be taken by the railways to carry out their purpose, but no attempt to do so was made before final decree entered. A mere declaration of willingness to give up the franchise does not suffice. The duty which the company owes the public continues until relieved of its obligation in some legal way.
A public service corporation cannot be compelled to continue indefinitely operations which will result in the exhaustion of its assets: New York Trust Co. v. B. & L. E. Trac. Co., 183 N. Y. Supp. 278. When the railway cannot be run except at a loss, the owners may withdraw from the enterprise, but this must be done in the way provided by law. If the company desires to surrender all of its powers and franchises, and cease its corporate existence, then the application is to be made under the provisions of the Act of 1856 (Act April 9, 1856, P. L. 293). If the intention is merely to reduce the field of activity, by abandoning certain territory which it otherwise would be compelled to supply, the determination of the question is for the Public Service Commission: Peoples Nat. Gas Co. v. Pub. Serv. Com., 79 Pa. Superior Ct. 560. To it is committed the regulation of service, by which is meant the duty owed by the corporation to its patrons, employees and the public, in the performance of its charter obligations: Swarthmore Borough v. Pub. Ser. Com., 277 Pa. 472.
As was said, in part, by Judge Keller, in pointing out this distinction: “The curtailment of service, the withdrawal of trains, the failure to supply equipment, the
The change in extent of service is a matter for the commission, and, after investigation, it can determine whether a portion of the line, unprofitable in itself, may, in the interest of the public, be abandoned or continued at a risk of loss of entire service, because of the drain on revenues by operation of the unproductive branch. Such orders have been made in this State (Re Waverly, S. & A. Trac. Co., P. U. R. 1920 F, 673), and in others having like legislation: Re Reno Trac. Co., P. U. R. 1920 B,
Complaint is made of the final decree entered, as indefinite in its description of the material to be used in repaving. This objection is without merit. Even if there was doubt of the meaning, it was the duty of appellants to apply to the court below for clarification of the order, and thus remove any question it had as to the manner in which the work was to be done: Scranton v. Peoples Coal Co., 274 Pa. 63.
Without referring to each of the assignments of error, all are overruled.
The decree is affirmed at the costs of appellants.