Harrisburg, Carlisle & Chambersburg Turnpike Road Co. v. Harrisburg & Mechanicsburg Electric Railway Co.

Opinion by Mr. Justice Williams, There is no room for doubt that the general purpose and character of the act of May 14, 1889, entitled “ An act to provide for the incorporation and government of street railway companies in this commonwealth,” are within the constitutional powers of the legislature. There may be particular provisions that are not. This appeal challenges the constitutionality of a provision found in the seventeenth section, and raises a question not heretofore considered. The eighth section of the sixteenth article of the constitution was intended to protect private property against the exercise of the right of eminent domain in a harsh or unjust manner. It provides that “just compensation ” shall be made to the owner for all property taken, injured or destroyed by any corporation, “ which compensation shall be paid or secured before the taking, injury or destruction shall be [588] permitted. The machinery by which “just compensation” may be ascertained has been provided by law, and it includes an appraisal made by viewers appointed by the proper court, an appeal by either party therefrom, and an ascertainment of the amount of the “just compensation” by a jury upon a trial after the forms of the common law. Security for the payment of the just compensation to which the property owner is entitled must therefore be security for the amount that may be recovered upon the trial of the appeal from the appraisement before a jury. This is a plain constitutional requirement, and the legislature can neither dispense with it in whole or in part. The provision of the act of 1889 now complained of authorizes the corporation, when an appeal has been taken from the award of viewers by the property owner, to pay into court the amount of the unsatisfactory award, and thereupon to take possession of, or proceed to injure or destroy, the property of the appellant. The section declares that the right to build and use the desired crossing over the plaintiff’s turnpike “ shall vest ” in the railway company upon the payment into court of the amount of the award, and the money shall remain in court to “ await the final judgment on said appeal.” If the verdict should be much more than the award the plaintiff has np security for its payment, and may have no means for its collection. The title to the crossing having “ vested ” when the money was paid into the court, the crossing became a part of the line of the railway subject to incumbrance by mortgage or otherwise and subject to alienation. It might well happen that when a judgment was finally entered on the verdict in favor of the property owner ascertaining the amount of compensation due him, the corporation would be found to be insolvent, the line of railway with all its appurtenances incumbered to its full value or transferred to a purchaser, and the plaintiff left without security or any responsible party to whom to look for the larger part of his “just compensation” for the injury sustained by him. This is a result that the constitutional provision was intended to guard against, and would effectually prevent if it was fully enforced. The act of 1889 is unconstitutional in so far as it undertakes to confer an absolute right on the corporation to injure the property of the plaintiff by its crossing, without payment or security for the payment of a just compen [589] sation as it may be finally ascertained upon tbe disposition of tbe appeal. The decree was erroneous and must be reversed, but it is not necessary that the injunction shall be restored if the defendant will promptly give the security that should have been given before making the crossing. The decree is reversed and the record remitted with direction that the injunction be restored unless the defendant corporation shall within ten days after notice of this order give security to be approved by the court below for the payment to the plaintiff of such sum as may be found due upon the disposition of the appeal from the award of the appraisers now pending, as the damage sustained by, or the compensation due to, the plaintiff by reason of the crossing of its turnpike road by the railway of the defendant at grade. Injunction not to issue if such security be given, costs to be paid by the defendant.