Paradise Township v. Public Service Commission , 1920 Pa. Super. LEXIS 251 ( 1920 )

Opinion by

Linn, J.,

The Lincoln highway extends through Paradise Township, Lancaster County. It is carried over the Pennsylvania railroad by a bridge at a point where part of the township is bisected by a cut in which the railroad is operated. A street railway company operates over tracks laid on the bridge.

The state highway department filed a complaint with the Public Service Commission alleging that the bridge was so dangerous to public safety as to require reconstruction. Hearings were held and evidence was taken. The township appeared by counsel and conceded that the bridge required reconstruction and approved the plans proposed therefor. The report of the commission states: “Tlie highway crosses the railroad tracks at this point obliquely. The present structure, built many years ago, crosses the tracks at right angles, making a very sharp curve at each end thereof and on account of the very extensive public travel over this highway, creates a very dangerous situation. The commission determines the present structure, as unsafe and dangerous......The plans as submitted by the railroad company are approved by the street railway company, the county and the township and the same are hereby approved by the commission......” It then ordered that a new bridge be built, carrying the highway over the railroad by a straight course instead of at right angles; it apportioned the cost thereof and directed that a very small part of the cost be paid by the township. The township alone appealed, desiring to be advised, as its learned counsel states, whether it is a municipal corporation “concerned” in the improvement within the meaning of the law.

We are all of opinion that it is so concerned. There is no force in the contention made on behalf of the township that as the Lincoln highway is not a road constructed and maintained by the township, it is not concerned in the improvement. The provisions of the Public Service Company Law, July 26, 1913, P. L. 1374, are more comprehensive than that. The general assembly declared that “......to the end, intent and purpose that accidents may be prevented and the safety of the public promoted,” P. L. 1409, the commission should have “exclusive power to determine, order and prescribe in accordance with plans and specifications to be approved by it, the just and reasonable manner, including the particular point of crossing......in which any public highway may be constructed across the tracks or other facilities of any railroad corporation, or street railway corporation, at grade, or above or below grade......,” P. L. 1409. It was given “exclusive power......to order any crossing aforesaid, now existing or hereafter constructed at grade, or at the same or different levels, to be relocated or altered, or to be abolished......,” P. L. 1409. The act provides that “......the expense of the said construction, relocation, alteration or abolition of any such crossing shall be borne and paid as hereinafter provided by the public service company or companies, or municipal corporations concerned, or by the Commonwealth, either severally or in such proper proportions as the commission may after due notice and hearing in due course determine, unless the said proportions are mutually agreed upon and paid by those interested as aforesaid,” P. L. 1410. “The term ‘municipal corporation’ as used in this act shall include all......townships......,” P. L. 1376.

On this record the township, the county, the Commonwealth and the two public service corporations ordered to contribute are all “concerned” and “interested.” The residents of this township require this bridge to enable them to cross the tracks of the railroad company. The new bridge removes the elements of danger under which the old bridge was used; it makes provision for pedestrians which the other lacked; substitutes a much wider driveway for one conceded to be too narrow; removes the danger incident to the vehicular traffic and street railway operation over the narrow bridge built at right angles to the general course of the highway. These residents have direct and positive concern or interest in the removal of the danger found by the commission to exist and in the enjoyment of the proposed improvement. The words ‘concern’ and ‘interest’ are classified by lexicographers as synonyms; they are to be construed as used in the statute in their popular well known sense. Residents of this township are as much concerned or interested in the safety of travel over this bridge as they would be if it were a township road constructed and maintained by the township; the fact that it is not, does not lessen either the concern or interest.

The order is affirmed and the appeal dismissed at the cost of appellant.