Southwark Railroad v. City of Philadelphia

| Pa. | Jul 1, 1864

The opinion of the court was delivered by

Agnew, J.

This case comes before us upon a motion for a special injunction to prevent the removal of the railroad upon Broad street, between Olive and South streets, under an ordinance of the city, approved the 18th of May 1863.

The railroad along Broad street, from Vine to Cedar, now South street, was laid down under an ordinance of the city, passed the 10th of January 1833, under the following circumstances.

The Act of 21st March 1831, providing for the construction of the railroad from Philadelphia to Columbia, contained the following clause: “ And provided also, that before the canal commissioners shall contract for any part of a railroad between the western shore of the river Schuylkill and the intersection of Yine and Broad streets, the mayor, aldermen, and citizens of Philadelphia, by their proper authorities, shall engage to construct and continue the railroad from the intersection of Yine and Broad streets, down Broad street to Cedar street,” &c.

This pledge was given by the city councils on the 28th of April 1831, and the canal commissioners accordingly, on the 6th of May 1831, authorized the construction of the Columbia Railroad from the Schuylkill to the intersection of Yine and Broad streets. The state entered upon the work, and the city in process of time passed the ordinance of the iOth of January 1833, already referred to in fulfilment of the pledge.

As between the Commonwealth and the city there can be no doubt these proceedings created a contract for the maintenance of the railroad along Broad, from Yine to Cedar street. But neither the Commonwealth herself, nor any one in her behalf, is here,'insisting in this bill upon her right to enforce the contract.

Whatever authority may be supposed to be necessary to lay down the railroad upon the street as a public highway, there cannot be a doubt of the authority of the city, under its general powers in the acts of incorporation, to remove the rails and clear the highways of the obstruction, when, in the judgment of the councils, it becomes necessary or convenient for the government and welfare of the city. The 16th section of the charter of 1789 is full to this purpose. The Consolidation Act of 1854 continues the powers of the former .corporation, and confers “ all the powers, right, privileges, and immunities incident to a municipal corporation” upon the present city. The doctrine of Pennsylvania, as in England; is, that. “ highways being universally the property of the state, are subject to its absolute direction and control:” Philada. and Trenton Railroad Company, 6 Whart, 43, 44; Commonwealth v. Erie and N. E. Railroad Co., 3 Casey 354. Subject to the paramount authority of the Commonwealth, the regulation and control of the streets, which are the great highways of the city, belong to the city government. This is clearly within the wide domain of power, conferred in the charters of 1789 and 1854, subject only to the exception, “provided the same shall not be repugnant to the laws and constitution of this Commonwealth.” Coupled with the power given to pass laws, &c., is the authority “ at their pleasure to revoke, alter, and make anew, as occasion may require.”

The right of the city to pass the Ordinance of 1863 to remove the track from Olive to Cedar street, and thereby to repeal so much of the Ordinance of 1833, cannot therefore be disputed, except by the Commonwealth, or unless the complainant is protected by a vested right.

The Commonwealth does not dissent, so far as we know, and on the contrary, by her laws and acts, seems to acquiesce. By the Act of 10th April 1849, the canal commissioners were authorized and required to locate and put under contract a railroad to avoid the inclined plane, on the Columbia Railroad, near the Schuylkill.

To counteract the probable effect of this action the same act authorized the city and adjoining districts to create and construct a railroad to connect with the eastern termination of the state road by bridges across the Schuylkill, and to take the tolls thereupon. This connection has been made via Market street to Broad. In addition to this, byjthe Act of 10th May 1850, the Commonwealth authorized the sale of all that part of the state road lying east of the inclined plane, “ rendered useless by the near road to avoid the Schuylkill inclined plane.” This portion of the road was accordingly sold by the canal commissioners to the Philadelphia and Reading Railroad Company, by deed dated 27th December 1850, for $243,000. The latter company, have connected their road with the state road at the west side of the Schuylkill, and now use the bridge and state road to its termination at Broad and Vine streets, thus securing to the city the tráde of the Philadelphia and Reading Railroad Company.

By further legislation the Commonwealth has secured, by the Act of May 3d 1860, a connection for her assignee the Pennsylvania Railroad Company, with the Philadelphia and Reading Railroad, and the Baltimore Railroad, on the west side of the Schuylkill, thus superseding to a great extent the necessity, so far as she is concerned, of continuing the railroad from Market, down Broad to South street.

All this seems to have been done harmoniously, as we hear of no remonstrance or complaint from either the city or the Commonwealth.

Finally, in the Act of 10th May 1861, incorporating the Navy Yard, Broad Street, and Fairmount Railway Company, it was provided in the 9th section that “ when the Pennsylvania Railroad Company shall complete their connection with the Philadelphia, Wilmington, and Baltimore Railroad, and the councils of the city of Philadelphia shall direct the removal of the rails now laid in Broad street from South to Chestnut street, the Navy Yard, Broad Street, and Fairmount Railway Company shall, with the appurtenances and materials thus removed, be required to place Broad street, from South to Chestnut street, in such a condition, as far as the paving, curbing, and macadamizing is concerned, as will accord with any plan which may be adopted, for the improvement of said street, by the councils of said city.”

This act authorizes the Navy Yard, Broad Street, and Fair-mount Railway Company to lay down a double track upon Broad street.

From all these laws and acts of the Commonwealth, it is very manifest that the Ordinance of 1863, authorizing the removal of the rails from Olive to South street, is not against but with the assent of the state. Olive street is south of Chestnut street. The ordinance is therefore valid, unless the Southwark Railroad Company, the complainants in this bill, have vested rights which it impairs.

The Southwark Railroad Company was incorporated under an Act of the 2d of April 1831, P. L. 360. The 22d section authorizes the company “ to construct a railroad of one or more tracks from the river Delaware in the district of Southwark, and thence through the county of Philadelphia to Broad and Cedar streets, in such direction as they shall deem best to connect with the termination of the Oity Railroad.”

It is argued that this permission to connect with the termination of the City Railroad is a contract on the part of the Commonwealth, which is infringed by the taking up of this portion of the City Railroad, between Olive and South or Cedar streets; and reference has been made to many cases, deciding that a grant of franchise to a private corporation is a contract which cannot be impaired by subsequent legislation.

Many of these cases were examined, and the doctrine summed up by Justice Woodward, in The Iron. City Bank v. The City of Pittsburgh, 1 Wright 340" court="Ohio" date_filed="1833-08-15" href="https://app.midpage.ai/document/kinneys-administrator-v-lockwood-6802301?utm_source=webapp" opinion_id="6802301">1 Wright 340, wherein he states “that a grant of land or of a corporate franchise by an act of legislation, is a contract between the state and the grantee, the obligation, of which a subsequent legislature cannot'impair p. 347.

This being the admitted principle,-it becomes a question of interpretation only, and the point is, what contract did the state make with the Southwark Railroad Company when she authorized them to construct a railroad ^“in such direction as they shall deem best to connect with- the termination of the City Railroad ?”

Before solving this, it is necessary to state the rule which must guide the interpretation in this case. It is one well settled in the courts of the United States and of this state.

In the case of The Charles River Bridge v. The Warren Bridge, 11 Peters 544, Chief Justice Taney, following the language of an English decision, stated the rule to be, “that any ambiguity in the terms of the contract must operate against the adventurers and in fa,vour of the public, and the plaintiffs can claim nothing that is not clearly given them by the act.” In The Susquehanna Canal Company, v. Wright, 9 W. & S. 11, Chief Justice Gibson restates the rule, as decided in The Monongahela Navigation Company v. Coons, 6 W. & S. 113, to be, “that the state is never presumed to have parted with one of its franchises in the absence of conclusive proof of such an intention.”

Chief Justice Black afterwards statéd the rule in these words: “ If anything is settled, it is this rule of construction, 'that a corporation takes nothing by its charter, except what is plainly, expressly, and unequivocally granted:” Bank of Pennsylvania v. Commonweath, 7 Harris 155.

In The Commonwealth v. Erie and N. E. Railroad Company this rule of interpretation is still more strongly stated: 3 Casey 359

In- the present case, what was the authority conferred upon the Southwark Railroad Company ? It was simply to construct their railroad “ in such direction as they shall deem best to connect with the termination of the City Railroad.” The authority is not expressly to connect with the City Railroad, but merely to the end that they might do so. Clearly, the utmost that can be asked for these words is a permission to connect. That it was nothing more than a mere license is evident, not only from the language thus used, but from the’ attending circumstances. The City Railroad then had no existence in fact or in contract. It was not until the 28th of April 1831,. twenty-six days after the passage of the charter in question, that the city gave the pledge to make the City Railroad, in order to have the State Railroad continued from the Schuylkill to Broad and Vine streets, nor until the 10th of January 1838, that the ordinance was passed to construct it.

Besides this, the City Railroad was not a creation of the state, but of the city; while in the law authorizing the extension of the state railroad to Broad street, upon the pledge of the city, and in the resolutions of the canal commissioners founded upon it, there was no provision for the exercise of any authority by the state over the City Railroad after its completion. It is clear, therefore, that at the time of the charter of the Southwark Railroad Company the state had no power whatever to compel a connection between the two roads. There was nothing then in being to which a vested right could attach, nothing but a mere expectancy, and a legislative license to seek the connection when the city built her road, and permitted the connection. If any authority were necessary, we have a decision directly on the point in the case of The North Branch Passenger Railway Company v. The City Railway Company, 2 Wright 361.

As between the state and the Southwark Railroad Company, the contract could rise no higher than the franchise granted, and the state became bound only not to withdraw from the company the permission or license she had given. It involved no guaranty on the part of the state that the City Railroad should be continued for a day or an hour. It is impossible to discover in the language of the license any contract for the perpetuity of the railroad to be connected with, and therefore, according to the rule laid down, none can be implied.

So far, then, as the state is concerned, the complainants can draw no authority from her acts to bind the city to continue her railroad, and they must resort to their contract with the city (if any) in order to estop her. But here they are met by the fact that no contract regulating the connection between their road and the City Railroad was ever made, for none is set forth.

All we have in the case is, that the Southwark Railroad Company was chartered before the City Railroad was authorized to be built, and that after it was built a connection between the roads was permitted by the city, and this is only an implication from the facts stated. No time and no terms are stated to have been agreed upon, and no consideration paid. Clearly, such a license is revocable, but admitting that it might endure while the City Railroad should last, where is the contract or guaranty on the part of the city that she should keep up her road for ever, or so long at the least as the Southwark Company should require the use of the connection ? Suppose the Southwark Company should choose to abandon its road at this point, and pass directly from the Delaware to the Schuylkill, is there any contract in favour of the city which she could enforce to prevent the abandonment? We have seen no evidence of any such, yet the obligation, to be effectual, must be mutual.

Upon the whole, therefore, we perceive no ground in law upon which the complainants can compel the city to maintain a railroad in existence, which, from the passage of the ordinance to abandon, we must presume to be no longer profitable, but to be against her welfare. The facts stated and proved clearly create no ground for an equitable estoppel.

The special injunction is therefore refused.