Frankford & Southwark Philadelphia City Passenger Railway Co. v. City of Philadelphia

Opinion by Mr. J ustice Paxson : A very few words will dispose of this case. The plaintiff in error admits its liability to pave and keep in repair all the streets south of Cherry street which it occupies with its tracks. It claims, however, to be exempt from this burden as to all streets north of Cherry street. It was conceded that the consent of the city councils was necessary in order to authorize the company to occupy streets south of Cherry street. That consent was granted upon the condition that the company should first comply with the ordinances of councils regulating passenger railway companies. That the councils had the right to impose conditions in giving their assent is settled law. Mercer v. Pittsburgh, Ft. W. & C. R. Co. 36 Pa. 99; Dill. Mun. Corp. § 706 (559). This, however, is not disputed, as the company on the 8th of July, 1857, filed its bond in the office of the city solicitor referring to the ordinance of July 7, 1857, requiring all passenger railway companies to file in the office of the city solicitor “a written obligation to comply with the provisions of the said ordinance;” reciting further a resolution of the directors of the said company passed July 7, 1857, that the company would comply with the provisions of said ordinance. The condition of this bond was as follows: “Now, therefore, Know all men by these presents, that the Philadelphia & Delaware River Railroad Company do hereby bind themselves to, and covenant and agree, to and with the city of Philadelphia as follows: That is to [587] say, that they, the said Philadelphia & Delaware River Railroad Company, their successors and assigns, will well, faithfully, and truly comply with the provisions of the said ordinance and perform all the conditions and execute the provisions thereby laid and imposed upon them.” One of the conditions laid upon the railroad companies by the 3d section of the ordinance aforesaid was that they “shall be at the entire cost and expense of maintaining, paving, repairing, and repaving that which may be necessary upon any road, street, avenue, or alley occupied by them.” Having given bond to comply with this ordinance the company was plainly chargeable with the duty of paving the street in question, and whether it was above or below Cherry street is wholly immaterial. We find no error in this record. Judgment affirmed.