Philadelphia v. Ridge Ave. Pass. Ry. Co.

Opinion, Mr. Justice Sterrett: This suit was brought against appellant to enforce payment of the cost of re-paving Ninth street from Race to Sergeant street, in the city of Philadelphia, with interest thereon. The city authorities, having determined that it was necessary to repave that portion of Ninth street, and claiming that appellant company, under its charter and contract obligations, was bound to do the work at its own expense, notified it to do so. The company denied its obligation, and refused to re-pave. The city then advertised for bids, awarded the contract to the lowest bidder, and the work was done at the cost of and was paid for by the city. There was no question as to the amount of the claim. The sole contention was in regard to appellant’s liability, and that depended on the questions of law and fact involved. They were determined in favor of the city, and a verdict in her favor for $1,026.50 was rendered. From the judgment entered on that verdict this appeal was taken. After the cause was at issue, but before it was called for trial, the defendant company presented a petition, signed and affirmed to by its president, setting forth: “ That this action is for the cost of re-paving certain streets of the city of Philadelphia with an alleged improved pavement, and not only involves a very large sum directly in controversy in this case, but will be a precedent, and possibly an adjudication and estoppel for similar claims in the near future against this company amounting to many hundreds of thousands of dollars; and, in addition thereto, will greatly affect similar litigation and claims against other railway companies in this city, amounting in the aggregate to millions of dollars. “And your petitioner further shows that the plaintiff is a municipality in this county and is coterminous with the county, and that public attention has been attracted, to an unusual extent, to the claim which is the subject-matter of the suit; that a large number of the inhabitants of this county have an inter — 464 — est in the question involved adverse to petitioner; that there are issues of fact as well as of law to be tried; and that local prejudice exists, and a fair trial cannot be had in this county. “Wherefore your petitioner prays for a change of venue herein.” That application was refused, and the trial proceeded before the learned president of Common Pleas No. 1. The refusal to grant the application for a change of venue is the subject of complaint in the first and second specifications. In § 23 of article III., our constitution declares: “ The power to change the venue in civil and criminal cases shall be vested in the courts, to be exercised in such manner as shall be provided by law.” The act of March 30, 1875, passed to carry that provision into effect, provides: “ §1. That changes of venue shall be made in any civil cause in law or equity depending in any of the courts of this commonwealth in the cases following, to wit: 1. “Whenever the judge, who by law is required to try or hear the same, shall be personally interested in the event of such cause, or in the question to be determined thereby. 2. “ Whenever the title under which the parties, or either of them, claim in any such cause, shall have been derived from or through such judge, and he shall be liable thereunder, or whenever he shall hold under the same title with either of the parties in the said cause. 3. “Whenever any near relative of such judge shall be a party to any s,uch cause or interested in the event thereof. 4. “ Whenever the county in which such cause is pending, or any municipality therein, or the officials of any such county or municipality are parties thereto, and it shall appear by the oath of the party desiring such change of venue that local prejudice exists, and that a fair trial cannot be had in such county. 5. “ Whenever a large number of the inhabitants of the county in which such cause is pending, have an interest in the question involved therein adverse to the applicant, and it shall appear by the oath of such applicant that he believes he cannot have a fair and impartial trial. “ § 2. The applicant for any such change of venue may apply to the court in term time, or to any law judge thereof in — 465 — vacation, by petition setting forth the cause of the application, which shall be accompanied by his affidavit of the truth of the facts alleged therein, and that the said application is not made for the purpose of delay and praying a change of venue; and, after reasonable notice thereof having been given to the opposite party or his attorney, the said court or judge shall, if satisfied of the truth of the facts alleged, award a change of venue of the said cause to some county where the cause complained of does not exist.” The first three paragraphs above quoted are inapplicable to this case. The reasons assigned in the petition are not within the purview of either. They are solely within that of the fourth and fifth paragraphs, one of which provides for a change of venue when it shall appear “ that local prejudice exists and that a fair trial cannot be had,” and the other when “ it shall appear by the oath of such applicant that he believes he cannot have a fair and impartial trial.” To whom must these matters appear ? Certainly, not to any one save the court or judge who passes upon the application. It was never intended that the mere statement of facts coming within the purview of either of these two paragraphs, should of itself entitle the petitioner to a change of venue. The act requires more than the mere making of the affidavit. It means that the statements set forth shall be true ; that their truth shall appear to the court or judge who hears the application, and, further, that, by -reason thereof, a fair and impartial trial cannot be had. In the second section of the act, after stating to whom the application shall be made, what it shall set forth, etc., it is provided that “ the said court or judge shall, if satisfied of the truth of the facts alleged, award a change of venue,” etc. It is very evident from this that it is not enough that the applicant be convinced of the truth of what he alleges; tire court or judge must be satisfied of their truth. If all others concerned are fully satisfied of their truth, and the court or judge is not, the change of venue should not, and cannot, consistently with the letter as well as the spirit of the act, be made. Nobody can for a moment doubt that the learned president of the court below was not satisfied. If he had been, he would have granted the application. We are quite clear that there is — 466 — nothing in the record that would justify us in sustaining either the first or second specification. The third, sixteenth, and seventeenth specifications of error -may be considered together. The first of these is to the admission in evidence of the agreement of the Girard College Passenger Railway, executed July 29, 1858. The others are to the answers of the court to defendant’s sixth point, which point is as follows : “ The city councils had no authority to make their approval to the laying of defendant’s railway conditioned upon their entering into a written obligation to observe and be subject to all the ordinances of the city, in relation to passenger railways, then in force or thereafter to be passed! The agreement thus compelled to be signed by the defendants did not bind them, so far as it exceeded the authority of the city to impose conditions.” The agreement referred to was rightly admitted in connection with the agreement of merger between that company and the Ridge Avenue & Manayunk Passenger Railway Company, which were consolidated in January, 1872, and thereafter known as the Ridge Avenue Passenger Railway Company, the appellant, the ordinance of July 7, 1857, referred to in the charter of said Girard College Passenger Railway Company, and other evidence. In refusing to affirm defendant’s sixth point, above quoted, the learned judge correctly said : “ The city had a right to impose that condition upon the corporation before it could enter upon the streets and lay its track upon them. The act of assembly made the consent of the city to the exercise of that power by the company, a prerequisite to the right to use the streets of the city for the purpose of constructing upon “them, the streets defined in the act, a city-passenger railway; and, if the city had a right to refuse or consent, it had a right to say upon what terms it would consent, and upon what terms it would refuse. Perhaps, if the question were raised by the city, with the view of preventing the exercise of this power under the act, that it had imposed impossible conditions on the railway company, that might be held to be an exercise of authority not warranted by law; but the condition which is here imposed, and which is the one to which this point is directed, I hold was not an impossible con — 467 — dition nor an unreasonable condition, and therefore I decline to affirm this proposition.” The agreement, binding the company to “ observe and be subject to all ordinances of said city in reference to passenger railways, now in force or hereafter passed,” was the voluntary act of the company. It was executed and filed pursuant to the unanimous direction of the stockholders,„and has stood unchallenged from 1858 until this contention arose. But, as we shall see presently, that agreement has little if any effect on the liability of the company, so far as the matter involved in this contention is concerned. It is a mistake to suppose that, if that agreement can be repudiated, the company is at liberty to ignore the provisions of the ordinance of December 12, 1881, forbidding the paving, with cobble or rubble, except between tracks of railways, etc. The contention of the defendant as to the invalidity of the agreement, under consideration, is not sustained by anything that was decided in Pittsburgh’s App., 115 Pa. 4. As will appear by an examination of that case, its facts are wholly unlike those of the present case. Among other things, councils in that case undertook, as a condition of their assent, to deprive gas companies of the right of appeal expressly given them by the act under which they were incorporated. That was attempted by making councils themselves a court of last resort, and exacting a bond in large amount binding them to submit to that self-constituted tribunal. The animus of this and other conditions, clearly violative of the corporate rights of the companies and ultra vires, was so apparent that the companies affected thereby refused to submit. They declined to recognize any such usurpation of authority, and entered into no agreement. Referring to the unreasonable and unlawful character of the conditions imposed in that case, we held that councils had no right to couple their assent with any condition or restriction not imposed by the act, unless the gas company agreed to accept the same and be bound thereby; and even then the conditions or restrictions so accepted by the company must harmonize and in nowise conflict with the provisions of the act incorporating such companies. The case before us is very different. As we shall presently see, the terms of the agreement are not in conflict with the provisions of defendant company’s — 468 — charter. They are neither unlawful nor unreasonable. A meeting of the stockholders was called for the purpose of considering the ordinance. They agreed to accept its provisions, and authorized their officers to execute the agreement. It was accordingly executed and filed. A question similar to that under consideration was ruled in Pittsb. etc. Ry. Co. v. Birmingham, 51 Pa. 41, and Pittsb. etc. Ry. v. Pittsburgh, 80 Pa. 72. The Pittsburgh & Birmingham Passenger Railway Company was authorized to construct and Operate a railway along Carson street, in the boroughs of Birmingham and South Pittsburgh, both of which were afterwards consolidated with the city of Pittsburgh. The eighth section of the company’s charter provided “ that the said railway company shall not be permitted to use or occupy any of the streets of the said city of Pittsburgh, or streets of said boroughs, for the purposes of their railway, until the consent of the councils of said city and boroughs is first thereto had by ordinance duly passed.” The consent of both boroughs was given upon certain terms expressed in ordinances passed by them respectively. That of Birmingham was given in the following words: “ Said railway company, in addition to other requirements of the charter, shall keep Carson street in perpetual good order and repair, from curb to curb, its whole length, from the time of the acceptance of this ordinance.” That of South Pittsburgh was as follows: “ And provided, also, that said railway company shall keep said Carson street in a good and sufficient state of repair, from curb to curb, to the satisfaction of the committee on streets, .... and also keep said Carson street in a reasonable sanitary condition.” The company having refused to remove from Carson street the dirt that accumulated by reason of its ordinary use as a thoroughfare, the court, in an action brought by the borough to recover the cost of cleaning the street, held that “the duties of defendants below arise, not only from the act of assembly, but also from their contract with the plaintiffs, the borough authorities, without whose consent they could not have used and occupied Carson street: ” Pittsb. etc. Ry. Co. v. Birmingham, 51 Pa. 42. Subsequently, after consolidation of the boroughs with the city of Pittsburgh, a mass of débris, stones, and gravel was thrown upon Carson street by an unusual rain-fall. The city — 469 — was requested by tbe company to removg the obstruction, clean the street, etc., and, having refused to do so, it was done by the company, and suit was brought against the city to collect the cost thereof. This court held that there could be no recovery. Referring to the act of incorporation and ordinance giving consent of the borough, Mr. Justice Merctjr said: “ The manifest intention of the statute and of the ordinance was to transfer to the company the exclusive duty of keeping in repair all that portion of the street which lies between curbs. Hence, in the words of the former, the company was to ‘keep the street in perpetual good repair; ’ and, in those of the latter, ‘ in a good and sufficient state of repair.’ Neither contains any intimation that the municipality was to repair under any, contingency. But, to make it more clear that the company assumed the whole duty of keeping the street in repair, the ordinance required it to be so kept to the satisfaction of the committee on streets. This practically gave to the municipality the power of deciding on the goodness and the sufficiency of the repairs made by the company. Still further, the ordinance required the company to keep the street ‘ in a reasonable sanitary condition:’” Rittsb. etc. Ry. Co. v. Pittsburgh, 80 Pa. 74. By reference to second proviso to seventh section of the act of April 15, 1858, incorporating the Girard College Passenger Railway Company, authorizing it to occupy Ninth street, etc., it will be seen “ that the city councils may from time to time, by ordinance, establish such regulations in regard to said railway as may be required for the paving, re-paving, grading, eulverting, and the laying of gas and water pipes in and along said streets, and to prevent obstructions thereon.” We are unable to see that there is anything ultra vires in the ordinance granting consent, or that there is anything in the company’s agreement accepting same, and consenting to be bound thereby, that in any manner conflicts with the provisions of its charter. As heretofore stated, the defendant company was formed by merger of two passenger-railway companies, and assumed the name of Ridge Avenue Passenger Railway Company. By that merger, the duties and obligations of the respective companies devolved on the new one. The street for the re-paving of which this suit was brought, was occupied by the Girard — 470 — College Passenger Railway Company, chartered by the act of April 15, 1858. By § 8 of that act the company was, in express terms, declared “subject to an ordinance of the city councils entitled ‘An ordinance to regulate passenger railways in the city of. Philadelphia,’ approved the seventh day of July, A. D. 1857.” That ordinance provided, inter alia, as follows : “ § 1.....That all passenger railroad companies within the city of Philadelphia shall be subject to the restrictions, limitations, terms, and conditions hereinafter provided; and any such company, before entering upon any road, street, avenue, or alley, within the limits of the said city, shall be understood and deemed to be subject thereto, upon the conditions hereinafter prescribed. “ § 2. That it shall be the duty of said companies, or any of them, to conform to the surveys, regulations, and gradients as they are now or may hereafter be established by law. They shall submit all proposed plans, courses, styles of rails, and the manner of laying the same to the board of surveys and regulations for their approval and sanction;.....to lay flagstones or crossings along the line of the paved streets upon which the rails are laid, at intervals not exceeding two hundred and fifty feet,” etc. “ § 3. That all railroad companies as aforesaid, shall be at the entire cost and expense of maintaining, paving, repairing and re-paving that may be necessary upon any road, street, avenue, or alley occupied by them. That for the convenience of the public, it shall also be the duty of the said companies to clear the streets or other public highways that they may occupy, of snow or any obstruction placed therein by such companies, when the same impedes the travel upon said highways,” etc. “ § 4. That it shall be the duty of any company as aforesaid, when requested to do so by the chief commissioner of highways, to remove any obstruction, mend or repair their road, pave or re-pave the highways, as hereinbefore provided; and should they refuse or neglect to do so for ten days from the date of such notice, then, and in such case, councils may forbid the running of any car or cars upon the said road until the same is fully complied with; and the city reserves the right in all such cases to repair or re-pave such streets, and the expense thereof shall be a judgment upon the road, stock, and — 471 — effects of such company, recoverable as judgments are now recoverable by the city of Philadelphia.” The remaining five sections of the ordinance provide in detail for other matters which have no special bearing on this contention, except to show, what is already quite apparent, that the permission given to occupy streets, etc., is in subordination to the general authority and power of the municipal authorities over the streets, etc. The ordinance thus referred to in the act of assembly is, in effect, read into and made part of the company’s charter. It is as much a part of the law of its being as any part of the act of assembly itself; and, by the merger and consolidation aforesaid, it in fact became an integral part of defendant company’s charter. The third section declares, in plain and unequivocal language, that the company shall be at the entire cost and expense of maintaining, paving, repairing, and re-paving that may be necessary upon any road, street, lane, or alley occupied by it. Considered in connection with other provisions of the company’s charter, the words here employed are not susceptible of any other than their ordinary meaning. It has never been seriously doubted, nor can it be, that the duty to repair or to re-pave, when either is adjudged necessary, extends to the entire roadway from curb to curb. In Phila., etc. Ry. Co. v. Philadelphia, 2 W. N. 639, a similar question was mooted; and, in a very able opinion by the learned president of Common Pleas No. 4, it was held that the railway company was bound to keep in repair the entire roadway of the streets it occupied, not only the space between the rails, but the entire roadway from curb to curb. To the same effect are Thirteenth St. Ry. Co. v. Philadelphia, 13 W. N. 487; Campbell v. Railway Co., 139 Pa. 522, Ridge Ave. Ry. Co. v. Philadelphia, 124 Pa. 219; Pittsb. etc. Ry. Co. v. Birmingham, and Pittsb. etc. Ry. Co. v. Pittsburgh, supra. By whom is the necessity for repairing or re-paving, etc., to be determined ? Certainly, not by the company itself, but by the municipal authorities. As a general rule, it is their special province to determine when re-paving is needed, and how it shall be done, whether with same kind of material as before, or with a different and better material. It was never intended to transfer the duty of determining these matters, or either of — 472 — them, from the municipal authorities to any one else. The proposition that, because cobblestone was the kind of pavement ordinarily in use when defendant company was chartered, it is in no event bound to re-pave with any other and more expensive kind of material, etc., is wholly untenable. It cannot be entertained for a moment. It was never contemplated that the railway company would continue to exist and perform its corporate functions in a cobblestone age. It was called into being with the view of progress. The duties specified in its charter were imposed with reference to the changes and improved methods of street paving which experience might sanction as superior to and more economical than old methods. In other words, the company is bound to keep pace with the progress of the age in which it continues to exercise its corporate functions. The city authorities have just as much right to require it to re-pave at its own expense with a new, better, and more expensive kind of pavement as they have to cause other streets to be re-paved, in like manner, at the public expense.’ Six points for charge were submitted by the plaintiff, all of which were rightly answered by the learned judge. His answers appear of record, and require no further comment, except to say that the fifth and sixth points were more favorable to the defendant company than any evidence in the case warranted. The first three presented questions of law, and, for reasons given in the answers thereto, they were properly affirmed. As requested in the fifth and sixth points, he instructed the jury : “ (1) If the jury believe that, in 1886, it was necessary to re-pave the pavement on Ninth street, above Race, and the company defendant failed to comply with notice to re-pave it with the kind of pavement suited to the traffic on the street, the city had a right to lay such a pavement at the cost of defendant. “ (2) If the jury believe that, granite-block pavement is, considering the first cost and the item of repairs, as cheap if not cheaper than cobblestone pavement, and is the kind of pavement suited to the neighborhood and traffic of Ninth and Race streets, and with which the city is, as fast as its finances will permit, re-surfacing its main streets, then the city had the right to re-pave and repair Ninth street north from Race street — 473 — witb granite blocks, and the defendant company is liable for the just and proper cost thereof.” These instructions were more favorable to the defendant company than it was entitled to. The verdict, as has been stated, was in favor of the city. By necessary implication, the jury must have found, as the basis of their verdict, the facts of which the plaintiff’s fourth to sixth points, inclusive, are predicated. The facts thus established by the finding of the jury, in connection with the charter obligation and duty of the railway company, as correctly explained by the court, entitled the plaintiff to recover. The eight points for charge submitted by defendant were rightly refused, for reasons given by the learned judge in his answers. It follows that neither of the specifications of error is sustained. Judgment affirmed.