Borough of Millvale v. Evergreen Railway Co.

Opinion, Mr. Justice Green: Notwithstanding the very ingenious and elaborate argument of the learned counsel for the appellant, we feel constrained to concur with the master and court below in their view of the contention between these parties. It is very earnestly argued for the appellant that both the original act of incorporation of the defendant company and the supplement thereto, are in hostility with the provisions of the constitution, and therefore void. The basis of the argument as to the act of incorporation is, that the title of the act conveys a purpose to charter a passenger railway company, whereas the text of the act really charters a steam railroad company, and the two are so' inconsistent that the text must fall. If it were true that a passenger railway could only be a railway laid upon the streets of a municipality, of a very limited extent, propelled only by horse-power, without authority to carry anything but passengers, and limited to the use of a particular kind of rail, upon which steam cars and engines could not be propelled, there would be considerable force in the argument. But there is no such definition of a “passenger railway,” and there never was. It is true that when passenger railways, located upon the streets of cities and towns, were first built and used, they were, in point of fact, usually characterized by some of the above qualifications. But that circumstance proves nothing as to the extent or kind of the corporate franchises in any particular case. There was no general law at that time under which this class of railroad companies could be incorporated, and hence there were no means of determining what the corporate franchises were, except by an examination of the act of incorporation in each instance. These were altogether without uniformity. The language of the learned master in his report in this case describes them correctly when he says: “ They all, like the defendant company, existed and held their franchises under and by virtue of special acts of incorporation, and, while usually confined by the terms — 15 — of their charters to the streets of a particular town or city, such limitation was neither necessary nor universal, while the powers conferred differed in scope in almost every instance; some companies, for example, being confined to the transportation of passengers only, and the use. of horse-power as a motor, while others were permitted to carry freight as well as persons, and also to use steam as a motive power.” An inspection of some of the numerous charters for this kind of roads, granted about the years 1857 to 1860, will show the greatest possible variety of conditions annexed to the grant of corporate powers in different charters. There being then no specific definition of the term “ passenger railway,” either prescribed by statute or existing in the common understanding, it follows that no necessary inference of a restricted franchise flows from the use of the term in the title of an act. In the case of Allegheny Co. Home’s App., 77 Pa. 77, we said: “ It will not do therefore to impale the legislation of the state upon the sharp points of criticism; but we must give each title as it comes before us a reasonable interpretation, ut res magis valeat quam pereat. If the title fairly gives notice of the subject of the act, so as reasonably to lead to an inquiry into the body of the bill, it is all that is necessary. It need not be an index to the contents, as has often been said.” The title to the present act of incorporation gave notice that a company bearing the name of the “ Lawreneevillo & Evergreen Passenger Railway Company,” was to be incorporated. It was only the name of the company, and not its purpose or object, that was described. The terms “ railway ” and “ railroad ” company have no different signification. They are defined synonymously in the dictionaries, and are used in the same sense in the common language of men. In the general law of May 23, 1878, P. L. 111, authorizing the incorporation of street-railway companies, the terms “ railway ” and “ railroad ” are used indiscriminately, as representing the same thing. Thus, in the title it is “ railway ” companies that are mentioned. In the second section it is provided that $2,000 of stock for every mile of “ railroad ” shall be subscribed. The sixth section provides that the president and directors of any “ railroad ” company organized under the act shall have power to borrow money. The seventh section directs notice to be given for payment of instalments by publication in one or more — 16 — newspapers published in the county where such “railroad” shall be located. This form of expression is repeated in the twelfth section, and in the thirteenth the corporation created under the act is called “ railroad corporation.” In the fifteenth section it is referred to as a “ passenger railway company,” and in the sixteenth as “street passenger railway,” where the structure itself is described. It is perfectly clear, therefore, that in the legislative sense these several modes of expression are used to designate the same thing. So far as the judicial sense of the community of meaning of these terms is concerned, it is strongly expressed in the case of Hestonville etc. R. Co. v. Philadelphia, 89 Pa. 210, in which we expressly held that city passenger railways were included within the term “ railroads,” employed in the act of May 16, 1861, and that the provisions of said act relating to merger apply to said railways. The act of 1861 is entitled “ An Act relating to railroad companies.” It was argued there, as now, that this title did not embrace street passenger railway companies, and hence there could be no merger of such under the provisions of the act. But we held differently. Mr. Justice Trunkey, in delivering the opinion of this court, said: “In 1861 all railroads were incorporated by special laws, and, in so far as each law did not prescribe specially, reference was made to the provisions of the act of February 19, 1849. Tins was common in charters for passenger railroads as well as others. In the statutes one class was generally styled ‘ railroads,’ and the other more frequently, but not always, ‘ railways.’ These words are popularly used as synonymous, and Webster defines both alike; but this matters little. A slight examination will show that the legislature did not use the words in a distinctive sense.” After referring to several charters which combine both classes of roads into one corporation, the opinion proceeds: “ These instances sufficiently indicate that the legislature indiscriminately used the words in^ their popular sense. It is true that railroads were used in the country prior to their use on the streets of towns, and that many differences necessarily exist in their regulation and management. It is useless to name points of likeness and unlikeness, for there are many of each. And these vary in the same road, when one part is in the country and the other in a city. Recently narrow-gauge railroads have been introduced, — 17 — not laid on streets of cities, nor tunneled through hills and mountains, but running over 'the latter. All three kinds are railways, — are railroads. Then, as respects the title of the act of 1861, it embraces railways on streets as well as those through or over hills and mountains.” The foregoing expressions must be regarded as qualifying certain remarks contained in the opinion of this court in the case of Commonwealth v. Central Pass. Ry., 52 Pa. 506, in which a distinction between passenger railway companies and railroads generally was apparently asserted, of such a character as that legislation intended for one class could not or would not embrace the other. We say “ apparently,” because such was not the real meaning of the court, as the learned counsel for the appellant seems to think. Our Brother Strong, who delivered the opinion, was simply interpreting the actual charter of a passenger railway company, in which there was nothing that gave it the right to use steam as a motor, or the right to carry freight as well as passengers, or, by consequence, the right to use the heavy high rails used on steam-roads for running locomotives and heavy freight trains. All this was literally true, and those conclusions were strictly correct, but what was said on this subject was said exclusively with reference to the facts of that case, and, by way of illustration, the difference between the heavy rails, which rise several inches above the surface of the street, and do constitute a material obstruction tb the travel, and the rail in ordinary use in passenger roads, was selected and emphasized, but that was all. It was never intended to say or to intimate that there might not be different kinds of rails for passenger railway tracks, or that one kind of rail might not be used, even though it were in a slight degree more obstructive than another, if in other respects it were a suitable rail for such use. We think the learned counsel for the appellant overestimate the meaning of the language quoted in their argument from the opinion in the case referred to. If, now, we turn to the language of the act of incorporation of the appellee in this case, we find it does, in the most express and emphatic manner, confer upon the appellee the right use steam as a motive power, on and over any part of road outside the limits of the city of Pittsburgh, and those limits if certain consents are obtained. We find — 18 — that express power is given to carry freight as well as passen gers over the road, and to construct such turn-outs and switches as may be necessary, and pass over and across any other railroad at grade. In all these respects the grant of powers differs from that of the Central Passenger Railway Company, and it is seen at once that there is an absence of analogy between that case and the present. It is true, that in this case, as in that, there is no provision as to the kind of rails that may be used, but as the powers conferred are those of steam railroads, both as to the motive force and the kind of traffic to be transported, there is a perfectly legitimate inference that such rails may be used as are ordinarily used in the transportation of freight as well as passengers, in cars moved by steam-power. No such inference was legitimate in the Central Passenger Railway case, because there were no such powers expressly granted, and they could not be inferred from a charter which conferred only the power to carry passengers, and upon a passenger railway to be laid upon the streets of a city. It was therefore properly held that the right to lay a heavy T rail, such as is used on steam-roads authorized to carry freight as well as passengers, did not exist. In the present case the road is authorized to be built in the country as well as in the city and town, and by the nearest practicable route between terminal points, with a right to occupy any public road then or thereafter to be opened; and, in this respect also, it differs from the Central Passenger Railway case, and more nearly resembles the Hestonville etc. R. Co.’s case. We are clearly of opinion that the title of the act of 1871 sufficiently expresses a purpose to charter a railroad company, and that there is nothing contrary to the constitution in the text of the law. But the supplement of 1872 is also attacked for a similar reason, because the title contains no reference to the subject-matter of the act other than by reference to the title of the principal act. But the answer to this objection is, that the rule governing such cases is “ that, where the legislation in the supplement is germane to the subject of the original bill, object of such supplement is sufficiently expressed in the : ” State Line etc. R. Co.’s App., 77 Pa. 431. This makes ecessary to consider only the character of the legislation d in the supplement. That legislation is all contained — 19 — in two sections, the first of which authorizes the company by name to extend its road to the coal fields of Butler county, and the second confers upon the company all the powers and privileges of the act of February 19, 1849. All this relates to the Lawrenceville & Evergreen Passenger Railway Company, and as that is the name of the company chartered by the act of 1871, to which it is expressly declared to be a supplement, and as the powers conferred are properly those which pertain to railroad companies, it cannot be doubted that the legislation of the supplement is germane to the subject of the original act of 1871. In the case of Craig v. First Presb. Church, 88 Pa. 42, we held that when an act of assembly is entitled a supplement to a former act, and the subject thereof is germane to the subject of the original act, its subject is sufficiently expressed to meet the requirements of article III., § 8, of the constitution. In view of these considerations and decisions, we are clearly of opinion that both the act of 1871 and the supplement of 1872 are lawful exercises of the legislative power, not prohibited by the constitution. It only remains to consider whether the matters complained of in the bill are authorized by the charter and its supplement. These matters are the construction of the road itself as a steam railroad, the change of gauge from a narrow-gauge to the full width of the ordinary steam railway, and the proposed extension of the road beyond its original limits. The road was built and run as a narrow-gauge steam railroad upon certain streets of the borough of Millvale, for a number of years prior to the filing of the present bill. A former bill for an injunction to restrain the construction of the road seems to have been filed, and proceeded with to a final decision favorable to the company and adverse to the borough. From that decision it seems no appeal was taken, and the occasion of the present bill appears to be the proposed widening of the gauge and extension of the road under the authority of the supplement. As the authority to use steam as a motive power, and to carry freight as well as passengers, is clearly given by the charter, we think there is no merit in the objection to the right of the company to construct and maintain the steam railroad which it has built and operated thus far. In point of fact, the defendant company has only exercised the powers expressly given to it when it made use of — 20 — steam as a motor, and when it carried freight as well as passengers. These powers carry with them the right to construct and to use the appliances ordinarily employed for those purposes. It is true no express power is given to use locomotive engine's, or the heavy passenger and freight cars commonly used for the carriage of freight and passengers, nor is any express authority given to lay the T rails, which are also in common use on steam railroads. But as these are the methods which experience has established as appropriate, and indeed essential in the carriage of freight and passengers upon railroads or railways with steam as the motive power, they must be regarded as authorized by plain implication from the grant of the powers in question. It is argued with much earnestness and,force, by the learned counsel for the appellant, that “ corporate franchises can only be plainly and unequivocally conferred, and, where a doubt exists as to the powers claimed by a corporation against the public, the construction is most strongly against the corporation in favor of the public.” In support of this contention the customary citations are submitted in the paper-hook from Commonwealth v. Railroad Co., 27 Pa. 339, that “ a doubtful charter does not exist; because whatever is doubtful is decisively certain against the corporation,” and, “ if you assert that a corporation had certain privileges, show us the words of the legislature conferring them.” Other citations from that and other cases are also presented. They are entirely correct, and when appropriate they are of controlling forcé. But they must not be misused. That each individual act done or proposed to be done by a corporation must be authorized by the express letter of its charter, is sheer nonsense. Powers are conferred, and, of course, there must be no doubt as to them; but the means of carrying those powers into operation follow the grant of the powers, and do not require express mention. Take the present case as an illustration. The right to use steam as a motive power is expressly given, hut no power is given to use locomotive engines. Nevertheless, it is too plain for argument that the right to use locomotive engines undoubtedly exists under the defendant’s charter ; for the right to carry freight and passengers over a railroad or railway is given, and to use steam as a motive power, and in order to exercise that right — 21 — with that motive power, locomotive engines are essential, probably indispensable. So, too, the right to lay a T rail for such a railroad, while not expressly given, and while it is an obstruction to travel, is equally clear, because they are in common use for such railroads. Yet it may be, perhaps is, possible to carry both freight and passengers over a flat rail bolted to longitudinal stringers, or the ordinary flange rail used on street passenger railroads. But that possibility will not take away the right to use the more obstructive rail, because the latter is the one in general use for the exercise of the power which is conferred by the letter of the statute. It is true, also, that in the title of the defendant’s charter it is named as a “passenger railway company,” and an inference is sought to be drawn that its powers of carriage must be subordinated or limited to those ordinarily exercised by that kind of companies. This would be certainly so if there were no other powers expressly conferred, but, as such other powers are expressly conferred, they necessarily carry with them all the customary modes in which such powers are exercised. So, too, it is urged that there was no power to change the gauge of the road from a narrow gauge of three feet to the wider one in ordinary use. But, as all the powers conferred upon railroad companies generally by the act of February 19, 1849, are extended to the defendant company by the second section of its supplement, there is no force in the contention. There is no limit to the gauge of this company’s road in the charter or supplement, and they would necessarily have the same right to adopt any gauge in ordinary use, or that they might desire, which any railroad company would have under the general railroad law of the state. If it be said that the defendant adopted the narrow gauge at the time its road was built, and has used it ever since until now, as is alleged in the bill, the reply is at once manifest, that it is not at all concluded by such original adoption and continuous use. It parted with no right thereby to make any change in the gauge of its track or the character of its rail which its own interests or the advance in the science of railroad building might suggest, always, of course, within the limits of its chartered rights. It might as well be argued against the proposed change of gauge that because a particular kind of rail was m vogue, and was actually — 22 — adopted and used by a railroad company at and after tbe time of the construction of its road, it could never adopt another, but was concluded by its first choice, upon the theory of an exhaustion of its power. It will be seen at once that such an argument is entirely fallacious and untenable. Instead of such being the law, we have always held that railroad companies not only have the right, but are by law bound, to make use of the latest and best inventions and appliances tending to promote the comfort and safety of the public. This is notably the case in the matter of spark-arresters, and is equally applicable to couplings and other contrivances. The writer remembers when strap rails, laid upon longitudinal stringers and fastened down with spikes, were in common use on steam railroads; and he also remembers that snake-heads at the ends of the rails resulted from this method, occasioning frequent accidents and loss of life. When the T rails came into use, it became the undoubted legal duty of the old companies to abandon the flat rail, and use the new one, and any company failing to perform this duty would very quickly have received forcible *andlemphatic admonition to that effect both from juries and coufm. It is also alleged in the plaintiff’s bill that all the acts of the defendant, both in laying its original track and in operating the same, and now in the proposed change of gauge and extension of its road, were and are done without the consent of the plaintiff, and against its earnest protest, and that the construction and operation of the road upon the streets of the borough is a great public nuisance, and dangerous to the lives of the citizens, and a hindrance to business on the streets. Of course, if, by the terms of the charter, it were necessary to obtain the consent of the borough authorities to construct and operate the road of the defendant upon the streets of the borough, this point would be well taken, and would prevail. But no rule is better settled than that the power of the commonwealth over the streets and roads within its territory, including those of its cities and towns, is paramount to that of the local authorities, and that right, when granted to a railroad company, is altogether independent of the municipality within which it is to be exercised. Said Black, C. J., in Commonwealth v. Railroad Co., 27 Pa. 354: “The right of the supreme legislative' power to authorize the building of a railroad on a street or — 23 — other public highway is not now to be doubted.....If such conversion of a public street to purposes for which it was not originally designed does operate severely upon a portion of the people, the injury must be borne for the sake of the far greater good which results to the public from the cheap, easy, and rapid conveyance of persons and property by railway..... The right of a company, therefore, to build a railroad on the streets of a city, depends, like the lawfulness of all its other acts, upon the terms of its charter. Of course, when the power is given in express words there can be no dispute about it. It may also be given by implication.” In the leading case upon this subject, the Phila. etc. R. Co., 6 Wh. 25, Gibson, C. J., said: “It would be strange, therefore, were the streets of an incorporated town not public highways, subject perhaps to corporate regulation for purposes of grading, curbing, and paving, but subject also to the paramount authority of the legislature in the regulation of their use by carriages, rail-cars, or means of locomotion yet to be invented, and this without distinction between the inhabitants and their fellow-citizens elsewhere.” In Williamsport Pass. Ry. Co.’s App., 120 Pa. 1, the present Chief Justice said: “ It is not denied that the charter of the appellant company gives it the power to lay its tracks upon the streets in question, and, if it were denied, it would not matter, as such power is expressly conferred.....There is nothing in the company’s charter which makes the consent of councils a prerequisite to the exercise of its corporate powers in the extension of its road; ” and we therefore held that the company was at liberty to extend its road without obtaining such consent. In the present case the right to lay the track upon any public road then opened, or thereafter to be opened, is expressly given, without any qualification, and hence the consent of the borough of Millvale to the construction and operation of the road over its streets need not be obtained, and is a matter of indifference. But the charter does require that in order to cross the Ewalt-street bridge the consent of the bridge company must be obtained, and the right to use steam-power in the city of Pittsburgh also requires the consent of the bridge company, a majority of the property owners on Ewalt street, and the councils of the city. The necessity of obtaining consent in — 24 — these special instances intensifies the force of the proposition that consent is unnecessary for all the other purposes of the defendant in the exercise of its franchise. This being so, it will be seen' at once that the borough has no control over the construction or operation of the road within its limits. The power of the defendant in the exercise of its franchise is altogether independent of the borough, and is of just as high and authoritative origin as the right of the borough to exist at all. The rights of both are derived from the same source, to wit, the legislative power of the commonwealth, and the company is not subject to the slightest obligation to go to the borough for consent to exercise any part of its corporate franchise. Any other doctrine would subordinate the corporate franchise of the defendant to the will of the borough councils, and cannot be sanctioned for a moment. Upon a careful consideration of the merits of the case, we are persuaded that there was no error in the action of the learned court below, and we must therefore sustain its decree. Decree affirmed, and appeal dismissed, at the appellant’s cost.