121 Pa. 143 | Pa. | 1888
Opinion,
By its charter the West Branch Boom Company was authorized to erect and maintain a boom on the south side of
First, it was provided that rafts of logs or other lumber might be landed and fastened as theretofore, and that any staved or broken raft coming into the boom should be delivered to the owner, upon payment of a certain price in the nature of salvage.
Second, that logs or other lumber might be driven into the boom for manufacture at Lock Haven, or to be formed into rafts and transported upon the water, in that form, to the place of their destination below Lock Haven. This would seem to have been the first and principal object in view in the construction of the boom, as it is provided in the charter as follows: “It shall be the duty of the corporation to cause the passage ways or open spaces to be carefully guarded day and night, so that no lumber be permitted to escape; to raft all lumber in said booms securely and faithfully, with suitable warps and wedges for rafting and securing the same below the said boom.” The corporation had the right to charge and collect toll or boomage upon the lumber thus • boomed, rafted and secured, including warps, wedges, etc., at rates in the 6th section specified.
Third, other logs and lumber rafted in above Lock Haven and destined for points below, and logs and other lumber not rafted, which were to be driven to. their destination below Lock Haven. As to this there was a proviso or saving clause to the second section as follows: “ Provided that said booms shall not extend more than half way across said river, and be so constructed as to admit the safe passage of rafts, boats, logs, masts, spars or other lumber, and not impede the navigation of said river and the branches thereof;” also a fike proviso or saving clause to the 7th section as follows: “Provided at
It is upon the proper construction of these saving clauses that the controversy arises. Plaintiffs’ contention is, that as their Logs were destined to points below the Lock Haven boom, and due and proper notice of that fact had been given as required by the act of May 8, 1854, P. L. 666, the defendants had no right to stop them, or to detain them, for any length of time in their boom, under any circumstances or for any purpose; and that, having done so in the years 1883 and 1884, they are answerable in damages for the loss occasioned thereby. The defendants maintain, however, that this construction of their charter would give it no practical effect whatever; that the several provisos mentioned, if so construed, are totally repugnant to the body of the act of incorporation and would wholly defeat the public purpose which the legislature manifestly had in view in its enactment. Their contention is, therefore, that the saving clauses should receive such a reasonable construction as would not practically nullify their charter. They offered to prove, in substance, that the plaintiffs’ logs, for the detention of which damages are claimed in this suit, were thrown into the river, or some of its tributaries, in the winter or spring of 1883 and 1884, to be driven into the Susquehanna boom, 22 miles below the West Branch boom; that at or about the same time a very large amount of other logs, perhaps 200,000,000 feet or more, some destined for the West Branch boom, and some for the Susquehanna boom, were thrown into the same stream indiscriminately, and that, when the spring freshets came, the whole mass of logs was driven down the stream; that the swollen stream was filled with logs from bank to bank, and as the “ drive ” approached the West Branch boom, it was absolutely impossible to ascertain to which boom the logs were destined; that they could only be known by inspection of the marks on the ends of the logs, of which there were over 100 different kinds; that some of the
Was this testimony admissible ? Under the circumstances stated in the offer, had the defendants a right to detain the plaintiffs’ logs, until the marks upon them could be seen, and until they could be separated from logs which were consigned to their custody and care ? Boom companies are organized to carry on, on a large scale, and under one management, the business of driving and rafting logs which would otherwise have to be done by individuals; they are intended to supply facilities for the driving of logs to the general public, and are therefore quasi public corporations: Osborn v. Boom Co., 32 Minn. 412; Cohn v. Boom Co., 47 Wis. 314. “ It is doubtless true,” as we said in Brown v. Susquehanna Boom Co., 109 Pa. 68, “that such charters ought to be construed most beneficially for the public, and more strictly against the company, but the construction must be a reasonable one. The charters of most private corporations are for the purpose of private gain, and many of them grant exclusive privileges in abridgment of individual right; but as they are intended also to sub-serve great public interests, they should be so construed as not to defeat the purpose of their creation. The Susquehanna Boom Company was not only intended to serve the private interests of the corporation, but also that of the public, and
It is a general principle in the construction of statutes, that a proviso or saving clause, which is directly repugnant to the body of the act, will not have effect to defeat the purpose of the enactment. This principle it is true will not apply in the construction of the charters of pritate corporations, where the matters contained in the saving clause are made, and intended to be made, an essential condition of the enjoyment of the charter. If private corporations accept charters under such circumstances, they take them cum onere; they must enjoy their privileges subject to the conditions, or not enjoy them at all; Dugan v. Bridge Co., 27 Pa. 809. But, even in such case, we must first be satisfied what the condition really is, and in' case of ambiguity or doubt, the intent of the legislature, in this respect, must be ascertained from a consideration of the whole instrument. In the case just cited, although the building of the bridge may necessarily have involved the erection of piers, yet it was not shown that these piers could not have been erected in such place and in such a manner as not to injure the navigation. Besides, the condition was plainly expressed : it involved no ambiguity or repugnancy, either in the words of the statute, or arising out of its practical operation.
In this case however, the manifest purpose of the legislature was to authorize the West Branch Boom Company to stop all lumber marked for their boom. ‘ The defendants allege that to do this and to comply with the provisions of the saving clause contained in the 2d and 7th sections, in any literal or strict sense, involves a practical and palpable absurdity, and that it is not probable the legislature intended the language of this proviso to be read in that sense. They contend that the saving clause to the 7th section, which provides that “No lumber of any description shall be stopped except upon the written request,” etc., does not apply to the mere temporary detention of the logs, until the marks can be seen and their destination determined.
But the rule of construction applicable here would seem to have been settled by the judgment of this court in the unreported case of the Susquehanna Boom Co. v. The West Branch Boom Co., argued at the January Term, 1877. The proviso to the 2d section, as we have said, provides “ That the said booms shall not extend more than half way across the river and be so constructed as to admit the safe passage of rafts, boats, logs, masts, spars or other lumber, and not impede the navigation of said river and branches thereof.” Whilst
These cases show conclusively that we are not to adhere strictly to a literal construction of this charter, if by so doing
That this was the actual legislative intent, however, is manifest upon a careful reading of the proviso to the 7th section. It is provided that “ no lumber of any description shall be stopped except upon the written request of the owner or owners of the same.” Now it is plain that the stopping referred to here, is not a mere temporary interruption of the progress of the logs for the purpose mentioned, but a stopping of the logs as at the place of their destination at the request of the owner. Further, it is provided “ that no toll or expense shall accrue to any lumber, designed to .run or to be driven to any point below Lock Haven.” If it was contemplated that such lumber was not under any circumstances to be stopped in the West Branch boom, how could any toll or expense accrue upon it ? Assuming, however, that this class of lumber might and probably would at times come within the inclosure of this boom, it was reasonable and proper, conceding the right to interrupt its passage temporarily and for a lawful purpose, to make provision that there should be no toll or expense charged for turning it out.
But it is said that the identical question now under discussion was decided otherwise in West Branch Boom Co. v. Dodge, 31 Pa. 285. What the precise facts in that case were does not appear ; it was an action on the case for the detention of a quantity of saw logs which ran into the defendants’ boom in the spring of 1852. The jury found a verdict for the plaintiffs by consent, subject to the opinion of the court whether in law the plaintiffs were entitled to recover. Under what circumstances, for what purpose, or for what length of
If the facts set forth in the offer are established by the proofs, it follows, that the defendants in stopping the plaintiffs’ logs, under the circumstances and for the purposes stated, were exercising powers conferred by their charter, and for any negligent performance of these powers, would be answerable only according to the provisions of the charter: Bald Eagle Boom Co. v. Sanderson, 81* Pa. 402.
The judgment is reversed and a venire facias de novo awarded.