Nanticoke Suburban Street Railway Co. v. People's Street Railway Co.

Opinion by Mb. Chief Justice Mitchell, Understanding from the agreed statement of facts that the disposal of the injunction will really decide the whole controversy and that the parties desire the case to be so disposed of, we waive our usual rule of filing no opinion in cases on preliminary hearing and proceed to consider the main question. By the agreed statement of facts it appears that the appellant was chartered February 18,1904, that it has no municipal consent, and in fact has not yet applied for it. It has, therefore, no completed title to occupy the streets in controversy, but relies on the claim that the field was clear in February, 1904, and that by its charter at that time it pre-empted the right to occupy the streets, and cannot be interfered with during flie two years given by the statute for obtaining the municipal consent. A preliminary question is made, whether appellant has lost any of its rights, whatever they were, by laches. The Act of June 7, 1901, see. 1, P. L. 514, requires for even the inchoate exclusive right to occupy the streets, that “ the consent of the local authorities shall be promptly applied for, and shall have been obtained within two years from the date of the charter.” The limit of time permissible under the term “ promptly ” has not been decided, nor is it in the nature of things capable of exact determination by the calendar. In Homestead St. Ry. Co. v. Pittsburg, etc., Electric St. Ry. Co., 166 Pa. 162, under the act of 1889, which did not contain the requirement of prompt application, it was held that the company was entitled to a reasonable time and could not be defeated by a rival company with a later charter which succeeded in getting the municipal consent first. What is reasonable time must always depend upon circumstances. The statute fixes two years as reasonable time for obtaining consent, and prima facie any application long enough beforehand to afford fair opportunity to the municipality to consider and act upon it within the two years would comply with the statutory requirement. But, on the other hand, the intent of the statute is to push forward the work, not to hold it in abeyance, and the courts are at liberty at all times to inquire into the delay for the purpose of ascertaining whether the intention is to make an effort in good faith to get consent, or merely to shut out rival competitors as [400] long as possible. The delay of the appellant in the present case has been considerable, but there is no evidence before us at present to indicate want of bona fide intention to obtain consent. We cannot, therefore, say that appellant has lost any of its rights by laches. Coming now to the main question, was the field clear when appellant obtained its charter? That depends on the status of the appellee’s charter at that date. The Nanticoke and Hanover Railway Company obtained a charter on February 11, 1902, and under the act of 1901 it had a prior claim on the disputed streets for two years from that date. But on February 11, 1904, it had not obtained the municipal consent of the borough of Nanticoke, and its rights lapsed. So far as it was concerned, therefore, it dropped out of the case and left the way clear for the appellant on February 18. But prior to the expiration of its limit the appellee, in December, 1903, had passed a resolution to extend its route over the streets in controversy and had obtained the municipal consent. It is argued by appellant that these proceedings were void and wholly inoperative by reason of the prior existing, though inchoate and defeasible, title of the Nanticoke and Hanover Railway Company. That is the only relevancy the latter corporation has to this case. The Nanticoke and Hanover Railway Company as already said, was chartered on February 11,1902, and, therefore, under the statute, had two years until February 11, 1904, in which to obtain the consent of the borough. It is claimed, however, by the appellee that this right was terminated before the expiration of the two years, by the express and formal refusal of the borough’s consent in February, 1903. This question whether the “ statutory period in which to procure consent will be shortened or terminated by a positive act of refusal on the part of the municipality, or whether the full period may still be available for an opportunity to overcome objections ” was left open in Coatesville, etc., St. Ry. Co. v. West Chester Ry. Co., 206 Pa. 40. But it was said in that case that for the substantial protection of the franchise granted, “ the time for obtaining the municipal consent was enlarged (by the act of 1901) to the time allowed for building, and made an absolute right. Under this section, if municipal consent has been promptly [401] applied for, the want of it cannot be taken advantage of in anyway to the prejudice of the company until the two years’ limit has expired. ” As we hold in the present case that an application within the two years, will prima facie meet the statutory requirement of promptness, unless the circumstances indicate a want of bona fide intention to obtain consent at all, it must follow that the company, notwithstanding a refusal, is entitled to the full period to overcome objections. There are good reasons why it should be so. Modifications of plans may be proposed, better terms offered and the public wants and convenience, the underlying consideration to the commonwealth for the grant of the franchise, may be more clearly understood. We are of opinion, therefore, that the statutory grant of two-years in which to obtain the municipal consent is not shortened by an earlier refusal. The remaining question, whether the proceedings by which the appellee extended its route during the two years for which the Nanticoke and Hanover company had the prior and exclusive claim, were so absolutely void that no subsequent acts could give them any A'ulidity, depends on the language of section one of the act of 1901, “ no other charter to build a road on the same streets .... shall be granted to any other company within the time during which the company first securing the charter has the right to commence and complete this work.” Literally this is a positive prohibition of a second charter within two years, and necessarily of what is equivalent, the extension of routes .under prior charters. But a consideration of the intent of the statute, and the circumstances under which it was passed, is convincing that notwithstanding the positiveness of the language of that provision, it was not intended as a literal and mandatory prohibition under all circumstances. The act of 1901, section one, was a reenactment of the same section in the act of 1889 almost in the same words. As recited in the later act, for the purpose of amendment, it occupies something over a page (at a rough estimate 500 words, P. L. 1901, 514), yet the whole intent of the act and the substantial change of the law were expressed in less than a dozen words. The act of 1889 authorized charters for companies to construct railways on any street “ upon which no track is laid, or authorized to be laid or to be ex [402] tended, under any existing charter." In re-enacting this section, the Act of 1901 omitted the words “ or authorized to be laid or to be extended,” and substituted the words “ upon which no track is laid under any existing charter, and in constant daily use for the transportation of passengers.” This feature of the act was discussed in Coatesville, etc., St. Ry. Co. v. West Chester Ry. Co., 206 Pa. 40, where it was shown that the act of 1901 took away the protection previously afforded to “ mere paper routes authorized but not built and perhaps not intended to be built but only adopted to close the streets to rival companies.” But for the protection of rights acquired bona fide, and which such cases as Homestead St. Ry. Co. v. Pittsburg, etc., Electric St. Ry. Co., 166 Pa. 162, had shown were liable to certain dangers, the act of 1901 contained the provisions under discussion, giving two years for municipal consent, and prohibiting the grant of any other charter during that period. What is said in Coatesville, etc., St. Ry. Co. v. Ry. Co., 206 Pa. 40, need not be repeated here, but it is in exact line with our present view that the provision as to any second charter is not a mandatory prohibition under all circumstances, but is directory only, for the protection of prior rights, and to prevent the commonwealth from doing a vain thing by the grant of a charter which would be illusory and misleading. But if the circumstances show that the act would not be vain, as for instance if the first company had within the two years abandoned its route, or in any way the rights had ceased which the statute was designed to protect, the prohibition would no longer have any purpose to serve and might be disregarded. So also it is to be remembered that the main intent of the act was to abolish the exclusive prior claim over merely authorized routes, intended only to close the streets to others, and that its policy was to facilitate the development of transportation in the public interest. Bearing in mind also the fact that the first company’s title, while prior and exclusive, was conditional on consent, etc., and therefore incomplete and defeasible, and that the time limit is in the public interest, it is entirely in accord with the intent and policy of the statute, that a second company should be allowed to put itself, so far as practicable, in position to step into the place should the failure of the first leave it vacant. Of course the presumption [403] is in favor of the first charter, and nothing can be permitted to be done to interfere with it, by seekers after a second place. The statute prima facie prohibits a second charter during the running of the first, and should one for any reason be issued it will be set aside on quo warranto, as in Com. ex. rel. v. Uwchlan St. Ry. Co., 203 Pa. 608. But where the first lapses, the newcomer, next in position may step into its place. When the appellee started its proceedings to extend its route, the two years allowed the Nanticoke and Hanover company were nearing the close, and the borough of Nanticoke had twice refused consent. While there was still time for a possible change of the municipal mind, yet the presumption was that consent would not be given, and that the Nanticoke-and Hanover charter would fail. There is nothing in the circumstances, therefore, to impugn the good faith of the appellee, and when the prior charter did in fact lapse the appellee was first in the field. Appeal dismissed.