Pennsylvania R. v. Bowers

124 Pa. 183 | Pa. | 1889

Opinion,

Mr. Chiee Justice Paxson :

The fifth assignment squarely raises the important question of this case. It alleges that the learned court below erred in affirming the plaintiff’s second point. The point is as follows: “ That the limitation of liability for damages claimed by the defendant under and by virtue of the act of April 4, 1868, has been revoked and avoided, as to the defendant corporation, by the provisions of the twenty-first section of article III. of the constitution of Pennsylvania, known as the new constitution.”

The second section of the act of 1868, P. L. 58, limits the amount to be recovered in actions against railroad companies and common carriers, for negligence, to $3,000 in cases of personal injuries, and $5,000 in case of death. The fourth section of said act provides that “ upon the acceptance of the provisions hereof, by any carrier or corporation, the same shall become a part of its act of incoiporation.” Upon the trial below the defendant company proved its acceptance of the provisions of this act, and claimed that by such acceptance the act of 1868 was written into its charter. The manner of the proof of this fact has been criticised. The acceptance as shown upon the trial was by a resolution of the board of managers, and not by a vote of' the stockholders. We prefer, however, not to decide this case upon technical grounds, and shall treat the action of the managers as an acceptance by the company.

Section 21 of article III. of the constitution is as follows: “ No act of the general assembly shall limit the amount to be recovered for injuries resulting in death, or for injuries to person or property; and in case of death from such injuries, the right of action shall survive, and the general assembly shall prescribe for whose benefit such actions shall be prosecuted. No act shall prescribe any limitation of time within which suits shall be brought against corporations for injuries to persons or property, or for other causes, different from those fixed by general laws regulating actions against natural persons, and such acts now existing, are avoided.”

This clause of the constitution first came up for consideration, in connection with the act of 1868, in Pennsylvania Railroad Company v. Langdon, 92 Pa. 21. It was there held, Mr. Justice Tjktjnkey dissenting, that the act of 1868 was not avoided by the above-recited clause in the constitution. The writer of this delivered the opinion in that case. It was followed by Lewis v. Hollahan, 108 Pa. 425, where it was said by Mr. Justice Stebjrett: “The case of Pennsylvania Railroad Company v. Langdon, cited andrelied on by the plaintiff in error, was well decided on other controlling questions, but we do not see our way clear to follow it as authority on the precise constitutional question involved in this case. One of the questions in that case was as to the acceptance by the company of the act of 1868. In this case the Question does not arise.” There was no dissent in that case. In a subsequent case, Philadelphia, Wilmington & Baltimore Railroad Company v. Conway, 112 Pa. 511, there was an attempt to raise the. same question on the part of the above named railroad company. There was no proof on the trial below that the company had accepted the provisions of the act of 1868, and that case was decided upon other grounds. In delivering the opinion of the court I said: “ It may not be out of place, just here to correct a misapprehension of the learned judge below in regard to Railroad v. Langdon. That case has not been overruled, as he supposes. Some of the reasoning by which it was supported is not sustained by the late case of Lewis v. Hollaban, and as my brethren are wiser than myself I cheerfully submit to their views. Moreover, if, when the main question comes up again, Railroad Company v. Langdon shall be found to be a mistake, it will afford me pleasure to join in overruling it.” This was our latest deliverance upon this subject. The broad question is now fairly presented again; we have been aided by an exceptionally able argument, and it is fitting that we should now review our former ruling, and if necessary, correct it. I am free to say that my own views upon this question have undergone a serious change.

The first thought which an examination of it suggests is the effect of the acceptance by the defendant company of the act of 1868. If it was a contract with the state, based upon a sufficient consideration, and a contract which the state had the power to make, there would he room for the argument that it came within the principle of the well known line of cases commencing with Dartmouth College. The act of 1868, however, was not a part of the original charter of the company; its road was not constructed nor was a dollar expended upon the faith of it. So far as appears by this record, no consideration was paid for it. It was an additi onal franchise or right which the state granted to the company and which does not necessarily involve a contract. At common law a promise without consideration is not binding; so, I apprehend, a franchise granted without a consideration moving from the grantees of such franchise, is not binding upon the state. Tbe rule as laid down in 2 Morawetz on Private Corporations, § 1050, is as follows: “ A franchise is a mere legal right or privilege and may result from a simple legislative enactment without any contract between the state and the possessors of the privilege. There is a plain distinction between a simple legislative enactment that a person or association shall be authorized to exercise certain rights or powers, and a contract or treaty made by the state through its legislature, that the person or association shall be entitled to exercise the rights or powers. If a franchise is the result of a mere legislative enactment, it may be undoubtedly cut short by a repeal of the enactment. If, however, the franchise is conferred by a contract or treaty on the part of the state, and is absolute in terms, it must be regarded as an irrevocable right.”

Based upon the same common law rule, that a promise without a consideration is not binding, a grant of exemption from taxation by the legislature, unless based upon a consideration, does not bind the state, and property thus exempted by one legislature may be taxed by the next. In the recent case of Philadelphia and Gray’s Ferry Passenger Railway Company’s Appeal, 102 Pa. 123, in which I had the lionor to deliver the opinion of the court, the rule is thus stated: “ There is reason and authority for holding that a supplement to a charter of incorporation, which merely confers upon it a new right, or enlarges an old one, without imposing any new or additional burden upon it, is a mere license or promise by the state, and may be revoked at pleasure. It is without consideration to support it, and cannot bind a subsequent legislature : Johnson v. Crow, 87 Pa. 184; Christ Church v. Phila., 24 How. 300. In the present age of corporate greed it would be dangerous to hold the contrary doctrine. Were we to do so, corporations, instead of being the creatures of the state, might become its masters.” In the same line are Tucker v. Ferguson, 22 Wall. 527; Railroad v. Supervisors, 93 U. S. 595; Salt Co. v. East Saginaw, 13 Wall. 373; Hewitt v. The Railroad Co., 12 Blatch. 452.

The right to recover damages for acts of negligence resulting in death did not exist at common law. It was conferred by the legislature, and the authority which gave it can take it away. It follows that it may limit it. The right of the legislature to barter away this right to a corporation, or to limit it, so as to make it a binding contract beyond the reach or power of subsequent legislatures, may well be doubted. It was within the power of the legislature at any time to have repealed the act of 1868. It follows that it came within the power of constitutional repeal, and we are all of opinion that the provisions referred to of said act are avoided by the present constitution. I make no apology for my change of views. Had I adhered to those formerly expressed there might have been occasion for one.

Railroad Company v. Langdon, as was said by our brother Sterrett in Lewis v. Hollahan, supra, was well decided on other controlling questions, and upon all of those questions it stands as authority. To the extent, however, that it refers to the effect of the present constitution upon the act of 1868, it is now overruled.

Judgment affirmed.