Commonwealth v. Penn. R. Co. , 20 W.N.C. 448 ( 1888 )

Opinion,

Mu. Justice Clank:

When a body corporate commands or directs an act to be done, and it is done to the nuisance of the community at large, there is no principle which places it beyond the reach of the criminal law. An indictment will lie, at the common law, against a corporation for not repairing a road, a bridge, or a wharf, when by statute or prescription it is bound to do so: Wharton Crim. Law, 7th ed., 86. If it were not so, there would be no effectual means for deterring railway and other corporations from an oppressive exercise of power in this respect. A railway corporation may take possession of such portion of any public road as may be within the limits of the right of way; it is not liable to indictment for nuisance for the mere taking and occupancy of the road: Danville etc. R. Co. v. Commonwealth, 73 Pa. 29.

In Northern Central Railway Co. v. Commonwealth, 90 Pa. 300, it was held, however, that, although the company may construct its railway across any established road whenever it is necessary to cross or intersect it, the railway must be so constructed that it will not impede the passage or transportation of persons or property along the roád; if it is not, but on the contrary, is so constructed as to be a dangerous obstruction to travel along the road, the company may be indicted therefor.

The act of April 3, 1837, which constituted the charter of the Sunbury and Erie Railroad Company (now the Philadelphia and Erie Railroad) in the fourteenth section expressly provides that the said railroad shall be so constructed as not to impede or obstruct the free use and passage of any public road or roads which may cross or enter the same, etc. By a supplement passed in the year 1852, it was provided “ That, if said railroad company shall find it necessary to change the site of any turnpike or public road, they shall cause the same to be reconstructed forthwith, at their own proper expense, on the most favorable location, and in as perfect a manner as the original road.” The provision last quoted is similar, in all respects, to the thirteenth section of the act of February 14, 1849, and it has been held that an indictment will lie against a railroad company for failure to reconstruct the road within a reasonable time in accordance with the requirements of this section of the act of 1849: Pittsburgh etc. R. Co. v. Commonwealth, 101 Pa. 192. “The injury,” says the court, in the case cited, “is not to an individual' only, but to the public; it is the denial to every citizen of the commonwealth of a right to the use of a public highway in place of the one taken by the ■corporation.....The act provides no specific remedy for the -enforcement of this duty. All common law remedies are therefore open against the violators of this law; the failure to reconstruct concerns the public, it is therefore an injury to the ■commonwealth, to which belongs the franchise of every highway, as the trustee for the public: O’Connor v. Pittsburgh, 18 Pa. 187.”

In the case we are now considering, the road was situate between the railroad and the river. It is admitted that the company appropriated a considerable portion of the road, not by crossing it, or by passing along it at grade, but by constructing upon it a retaining wall of stone, and a high embankment, upon which the railroad bed is built. It was such an appropriation as was wholly inconsistent with the use of the same ground for a public road. It was the duty of the company, therefore, at then’ own proper expense, forthwith to change the site and to reconstruct the road, on the most favorable location, in as perfect a manner as the original road for the public use. No new road has ever been constructed, and it is alleged that the public has ever since been obliged to pass at great inconvenience, and with much danger upon a narrow shelf, between the wall and the river.

Now the Philadelphia and Erie Railroad Company, if they were operating their road, would without doubt be responsible criminally for the failure to comply with the requirements of its charter. This is settled by the case we have referred to: Pittsburgh etc. R. Co. v. Commonwealth, supra. “ In accepting ■the charter,” as Mr. Justice Merctjb. says in the case just cited, “ the corporation acquires all the rights and privileges thereby-given, but it assumes all the duties and obligations thereby imposed. Having taken the benefits, it cannot repudiate the burdens; it cannot be tolerated that the corporation may claim to enjoy everything beneficial to itself, and wholly omit to perform an act in which the public is so largely interested. The rights granted are in consideration of- duties assumed, among which is the duty of reconstructing the public highway, from which it has excluded the public. Having accepted all the provisions of the act, this duty arises not only from the imperative command thereof, but also from an implied agreement and by tenure.”

But the contention is, that the defendants are mere lessees of the railroad; that this public duty did not legally devolve upon them as lessees, and that the criminal law will not charge them with the performance of duties which the Philadelphia and Erie Company alone had assumed.

The Pennsylvania Railroad Company became the lessees of this road in the year 1862, before its completion. The lease was of a road “ located, in part constructed and now being constructed, and to be constructed' and completed, from its terminus at Sunbury, etc., to its terminus at the harbor of Erie, etc., with all the lands, bridges, depots, station-houses, machine-shops,” etc., etc., embracing the entire property and estate of the company, for a period of nine hundred and ninety-nine years, etc., with the right to use, exercise, and enjoy all the rights, powers, and authority, etc., and all the corporate powers, and privileges, etc., of the Philadelphia and Erie Railroad Company, as fully and amply as the same might be used, exercised, and enjoyed by the lessors, had the lease not been made.

These rights and franchises in the hands of the lessees were of the same public character as if they had remained in the hands of the lessors; they were public rights to be exercised by the Philadelphia and Erie Railroad Company, in conjunction with the performance of certain public duties, which, by the acceptance of tlie charter and the construction of the road under it, were assumed. It is from the exercise of these public privileges and franchises granted by tlie charter that the public duty arises. Moreover, the commonwealth not only granted tlie charter to the Philadelphia and Erie Company; it also authorized the transfer by the lease of the powers and privileges it secured to the Pennsylvania Railroad Company, and the latter company, in accepting the same and in the exercise thereof under the charter of the Philadelphia and Erie Company, must be taken to have assumed all the correspondent duties and obligations resting upon the lessors.

Where a corporation leases the road of another corporation, it becomes subject to all the statutory duties, obligations and restrictions imposed upon the leasing company: 1 Wood on Railroads, 578. The lessee of a railroad is subject to all the provisions of the lessor’s charter, and during the existence of the lease is subject to all the duties and liabilities of the lessor under the charter, except such as may be said to be personal: Chicago v. Evans, 24 Ill. 52.

The Pennsylvania Railroad Company could not exercise these extraordinary powers under their lessor’s charter to the exclusion of all others, even of the Philadelphia and Erie Company itself, without assuming all the correspondent duties imposed by the charter upon the latter company. The state confers upon railway companies some of its most essential powers of sovereignty, and in return stipulates for the faithful performance of such duties by the corporation as are deemed an equivalent or consideration, and neither the terms of their contract, as contained in the charter, nor any sound principle of public polic3r, will permit another railroad corporation, by a lease or transfer, to enjoy these high privileges and immunities, except on the terms imposed. The -Pennsylvania Railroad Company, as the lessee, must accept the subject matter of the lease cum onere. As the duty to reconstruct this public road was a public duty, the disregard and violation of it is a public wrong; and, as we said in Pittsburgh etc. R. R. Co. v. Commonwealth, supra, this is a proper subject for indictment.

The judgment is therefore reversed, and a venire facias de novo awarded.