Philadelphia & Gray's Ferry Passenger Railway Company's Appeal

Mr. Justice Paxson delivered the opinion of the court, March 19th 1883. The right of the appellants to lay their track on Twenty-second street, from Walnut to Chestnut street, is resisted by the appellees on two grounds, viz: 1st. That the appellees have the exclusive use of said street by the express terms of their charter, and, 2d. That the appellants, having elected under their charter to occupy certain streets with their tracks to avoid the obstruction at Twenty-second and Market, cannot, now that said obstruction has been removed, relocate their tracks so as to occupy Twenty-second street from Walnut to Chestnut. I will consider these objections in their order. The charter of the appellees (The Philadelphia City Pass [129] enger Railway Company) gives them no exclusive use of the streets which they are authorized to use. But by the second section of an Act entitled “ supplement to an Act to incorporate the Philadelphia City Passenger Railway Company, passed the 26th day of March, a. d. 1859,” which said supplement was approved the 31st day of March 1859, it was enacted that • “ The said company shall have the exclusive right to and occupy the streets named in the Act to which this is a supplement,” &c. It was .argued, that this created, a contract with the state which was beyond the interference of the Legislature. 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, 6 Norris 184; Christ Church v. Philadelphia, 24 Howard 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.. , But it is said that the appellee’s charter and the supplement thereto were passed at the same session of the legislature, with only a few days intervening, and that the organization of the company took place after the passage of the supplement, and upon the faith thereof. We are not called upon in this case to decide upon the legal effect of a supplement passed under such circumstances. There are other questions of controlling importance in the case. The grant of exclusive privileges must have a reasonable construction. The object was to protect the appellees from competition, nothing more. It is difficult to see how the laying down of a track and its use by the appellants for a single square by cars running in an opposite direction from those of the appellees can produce competition. Even if we are wrong in this, the principle is well settled that a franchise is property, and like any other species of property may be taken by the Commonwealth by virtue of the right of eminent domain upon making compensation. This principle was decided at the present term in the matter of the opening of Twenty-second street, and it v^ould be an affectation of learning to cite the authorities which establish this principle. It is equally clear that any one to whom the Commonwealth has delegated its power of eminent domain is clothed with the same power. It follows that when the legislature by the Act of April 16th 1866 (P. L. 934), incorporated the Schuylkill River Passenger Railway Company (appellants), and authorized them [130] to use Twenty-second street, the most the appellees can claim is compensation for the use of this one square. The question of compensation, however, is not before us and is not decided. The second objection has even less merit. There was no election within the meaning of the cases cited by the appellees. A discussion of them is therefore unnecessary. The right to occupy Twenty-second street was expressly given by the terms of the appellant’s charter. But at Twenty-second and Market streets there was an.impassable obstruction. In order to avoid this, their charter authorized them “ to use such portions of any of the adjacent streets as may be necessary.” The only option which the appellants had, and the only election which they made, was as to what streets they would occupy in order to avoid the obstruction. That election, once made, could not, in my opinion, be changed, and to this extent the doctrine of election applies and no further. I am unable to see what standing the appelleés have, to raise this question. The Commonwealth might do so, but she is silent. . The city of.Philadelphia might do sq,. but her councils have expressly authorized the appellants to do what they pro-, pose to do, while the solicitor for the city in a well considered opinion addressed to the chief engineer and surveyor has instructed that officer that it is not only the right of the appellants to lay their track on Twenty-second street from Walnut to Chestnut, but that in view of the. fact that the obstruction at Twenty-second and Market streets has been removed, it is their plain duty to do so, and to take up their tracks on the streets which have been heretofore used to avoid said obstruction. The appellees are not in any sense the guardians of the rights of the city or of the people, arid may not interfere with the use of the street beyond the privileges conferred by their charter. Their right to be heard upon such a question is more than doubtful. The decree is reversed, the injunction is dissolved, and the bill dismissed at the costs of the appellees. Mercur, C. J., and Sterbett, J., dissented.