Johnson v. Philadelphia ( 1869 )

The opinion of the court was delivered,

by

Sharswood, J.

This is a bill filed by the plaintiffs for themselves and others, stockholders of the West Philadelphia Passenger Railway Company, against the said company and the City of Philadelphia, praying that the company may be restrained from paying and the city from receiving or exacting the annual charge of thirty dollars for each car intended to be run on the railway of the said company, under an ordinance of the said city, approved April 1st 1859.

The principal question involved in this controversy, was considered and decided by this court in The Frankford and Philadelphia Passenger Railway Company v. The City of Philadelphia, on a writ of error to the District Court for the city and county of Philadelphia, and the judgment of that court was affirmed March 2d 1868. Our Brother Read was not present on the hearing, and the same question has been now again argued before a full bench. A majority of the court adhere to the principles settled in that ease. The opinion delivered by Mr. Justice Strong expresses so fully and well the grounds of the decision, that to add anything to it would be a work of supererogation.

It is to be remarked, that now, as then, no question is raised by the bill as to the reasonableness of the sum demanded as the price of a license. The power of the city to require any license or to exact any sum, is denied in toto, and to that ground for the interposition of the court only was the city called on to make answer. It cannot, therefore, properly enter into the consideration of the question as it is presented to us upon the pleadings.

It has, however, been strenuously contended, that the object of the city was to raise a revenue from the passenger railway companies by the ordinance in question, and the clause by which it is declared that the payment of the license fee is to be “ for the use of the city,” has been referred to as conclusively establishing this view. It is not denied by the defendants that the imposition of such a sum or any other upon the cars of the companies as a tax for the purpose of raising revenue, would be an invasion of their corporate franchises derived by grant from the Commonwealth, and therefore unlawful and void. But if it be admitted that the sum in question is a reasonable charge for a license as a police regulation (which we must assume), then its incidental operation in augmenting the receipts into the city treasury cannot invalidate it. Such is the necessary effect of all fines, penalties and forfeitures for the infringement of what are confessed to be valid ordinances. It is unnecessary to enumerate or specify. The digest of city ordinances abounds with them. The fact that such moneys are paid into the treasury for the general purposes of the municipality, has never been supposed to impress them with the character of taxes. In the case before us it may be allowable to conjecture that the principal object of requiring the license was to place some check upon the number of the ears employed on the road, so that the streets might not be unduly obstructed, and their passage by the citizens at large interfered with and prevented. If the sum charged was more than sufficient for this or any other proper object of police regulation, then indeed a question might arise as to whether it was not in effect a tax on the ■franchise. Whether it is so or not, in this instance, we are not called on to determine, and would not, therefore, be justified in expressing any opinion. It is clear that the sum demanded and paid can only he for the use of the city, for if it were appropriated to the highway or police department, it would, to that extent, relieve the city treasury from a part of the expense of those departments, and its ultimate effect would be precisely the same. Certainly, if a municipal regulation is adopted, which would be lawful if intended for one purpose, and unlawful if for another, the presumption is that the purpose was lawful, unless the contrary clearly appear.

It has been contended, also, that the 12th section of the Act of Assembly, incorporating the West Philadelphia Passenger Railway Company, passed May 14th 1857, Pamph. L. 1858, p. 585, exempts that corporation from all municipal control, except what is therein expressed. That section provides that “ said councils may from time to time by ordinance establish such regulations in regard to said railway as may be required for the paving, repaving, grading, culverting and laying of water and gas pipes in and along said streets, and to prevent obstructions therein.” Expressio unius est exclusio alterius,” argues the learned counsel for the plaintiffs. But surely, that is not the rule of construction applicable to charters. They are to be taken most strongly against the corporations or persons who claim rights or powers under them, and most favorably for the public: Mayor v. Railroad Co., 7 Georgia 221; Railroad Co. v. Briggs, 2 New Jersey 623; Packer v. Sunbury and Erie Railroad Co., 7 Harris 211; Com. v. Erie and North East R. R. Co., 3 Casey 339. The exercise of the corporate franchise being restrictive of individual rights, cannot be extended beyond the letter and spirt of the act of incorporation : Beatty v. The Lessee of Knowles, 4 Peters 168. In the charter of a company incorporated for the purpose of marine and fire insurance, the common provision expressly forbidding them from engaging in the business of banking, could not certainly be construed into an implied authority to engage in and carry on any other kind of business. The clause in question was no doubt inserted ex viajori cautela, because it was feared that the express power conferred of laying the track of the road might be held to restrain the authority of the municipality in the particulars mentioned, but by no logic can it be inferred that the effect of this express saving is impliedly to take away their general power to regulate the use of public conveyances on the streets. It is unnecessary, therefore, to consider whether the reservation of the right to make regulations to prevent the obstruction of the street, is not broad enough to comprehend the very regulation now in question, as made for that object.

It is further urged that the ordinance of July 7th 1857, and the bond executed by the West Philadelphia Passenger Railway Company, dated April 15th 1858, conditioned that the company shall “ faithfully and truly comply with the provisions of the said ordinance, and perform and fulfil the conditions thereby laid and imposed upon them” constituted a contract, and that it was not competent for the city to vary the terms of that contract. It is not easy to see how a bond or other security to comply with existing rulés and regulations can, without express words, be construed into a binding engagement to make no other rules or regulations which it is within the lawful authority of the obligors to make, even if the municipality had the power to barter away any portion of its legislative functions, a power which has been questioned, if not denied: Goszler v. The Corporation of Georgetown, 6 Wheaton 593. The security may be gone, but it cannot affect the rights or obligations of the parties which are independent of it. The bond, as appears by the 9th section of the ordinance of July 7th 1857, was exacted by the city as the condition of its consent to the use and occupation of the streets by the railway company under the 12th section of their charter, and the ordinance included many provisions which could not have been required without the consent of the company. Certainly without express words the city cannot be held to have surrendered any portion of its lawful authority over the streets and those who use them for the purpose of the conveyance of passengers or merchandise, whether corporations or natural persons.

Decree affirmed at the costs of the appellants.

Thompson, O. J., dissents.