Bennett's Branch Improvement Co.'s Appeal

The opinion of the court was delivered, May 5th 1870, by

Thompson, C. J.

There are three other cases raising the questions presented in this case, that will be disposed of by our decision in this appeal. There is also an appeal by the company which was argued together with the above, and will also depend on the decision in this case, and will be determined therein.

The matter to which the strength of the arguments of the learned counsel for the appellants in the first three cases was directed, was the constitutionality of the act of incorporation, firstly; and secondly, to the constitutionality of certain provisions in one or more of the supplements to the act of incorporation if the original act should be held constitutional. The first of these questions depends upon whether the company was incorporated to improve the Bennett’s Branch of the Sinnemahoning, for the sole use of the corporation, or for the use of the public as a highway. I regard the question of very easy solution. Indeed the learned master has given a conclusive reason why the improvement authorized by the Acts of 1864 and 1865, must, in the absence of any limitation in the acts, be regarded a public improvement, and that is, that the authority conferred on the company, was to improve by dams and cribs, the natural navigation of what was already by law, a public highway, open and free to everybody who chose to use it as such, and a,s far as capable of being used. There is nothing in these acts of incorporation excluding the public. On the contrary, every provision of the act looks to the use of the improved navigation, by all who choose, on the sole condition of paying toll. The act prescribes the name and style of the corporation, authorizes it to use a common seal, defines the purposes of the corporation and the use of its works, and how it is to be governed; fixes the amount of its capital stock, the par of its shares, cedes to it the right of occupancy of one of its public highways, to be improved in the manner proposed, gives the public the right to subscribe to its stock, by requiring a book for subscriptions to be opened for that purpose at a certain time and place mentioned, and fixes a tariff of tolls to be paid by all persons passing over the waters of the stream, from the various points mentioned, when improved, with logs, lumber, &c. These things are the elements of a corporation designed for the public benefit, and not merely for the benefit of its promoters, excepting only in its earnings. Anybody and everybody may use it on equal terms. Discrimination between parties, as to its usé, would he a violation of its charter. The improvement designed by the act, is beyond doubt, public, and any misuse of the privilege granted, if there be any, does not turn it into a private corporation for private purposes. While comparatively but a few companies of the kind we are considering, exist in this state, many exist in the states north of us, where driving disconnected logs is a more common mode of taking them to places of sale or manufacture, than with us. It seems to me, that such corporations often become a public necessity, in streams not naturally navigable excepting for short seasons, and where individuals are not allowed to improve them 'because of their public character. With the wisdom of such legislation, however, we have nothing to do. We are dealing with a question of power. We are to assume that the legislature had it, in this instance, and this presumption stands. until- disproved. The general power to incorporate improvement companies, is not to be questioned at this day. The hundreds which exist, and have for long years existed, precludes discussion of any such question. The power exists, and why may it not exist in favor of such a company as this ? That has not been shown, and it ought to have been, by those who doubt or deny it. If the purpose be novel but legal, and provisions to suit-its character be consistent, I see not how it can be illegal. That the state might have done all that is authorized by the act, is not disputed, and could not be. If she might, why might she not accept the assistance of citizens to do it, on being permitted to take such tolls as the state should allow to be taken; or which she might herself have taken if she had performed the work'? That she could, will not be disputed. This doctrine is ably discusssed by Black, C . J., in Sharpless v. Philadelphia, 9 Harris 170. Without further elaboration, we concur with the court below that the position taken by the complainants against the acts incorporating this improvement company was not well taken, and was properly overruled.

The exception that the master did not find that the improvements made by the company, were injurious to the natural navigation of the stream, instead of reporting as he did, that they were beneficial to the descending navigation, had nothing to do with any question raised by the bill or answer. It was not charged, that if not beneficial, it ought to suspend the right of the company in the exercise of its franchises. There is no limitation of that kind in the act. The company having authority by law, to improve the. stream in the manner prescribed, for the consideration of taking toll on the lumber and logs floated thereon, would not lose its franchises, because the improvement was in fact not beneficial, there being no such condition prescribed. The legislature determined that question in granting the charter, and all the franchises granted will remain, in the absence of any limitation, until taken away by some direct action for that purpose, legislative or judicial. These remarks apply equally to the fourth and fifth exceptions of the appellants.

The right to impose tolls as a consideration for the completion of an enterprise intended to benefit the public, is a right of government. It is conceded to the promoters, as a compensation for the benefit in contemplation of law, which every individual receives for an improved mode of transit of person or property. Individual complaints avail nothing against the right. These individual inconveniences must yield to the wants of the whole public. In most of these cases of improved navigation by companies, or the state, if not all, individuals have always been found' who would claim to be as well off without such improvements as with them, and yet they are obliged to pass over them with their property, and pay tolls. There is no reason in this for impeaching the validity of the law. This results from the accidency of location, and of this nobody is to blame but the owner, and he must submit to all legal consequences incident thereto.

The exception also that the master should have found that the company was only authorized to take tolls for logs or timber floated “across” the waters of the stream, is somewhat hypercritical. It cannot be held to mean floating or crossing over from side to side of the stream, as the word imports; a thing not needed, or within the purview or purpose of the act. The words are found in the same connection, in the supplement to the act incorporating the Little Anderson Creek Navigation Company, a precisely similar improvement company, and was adopted by the framer of the act incorporating the Bennett’s Branch Improvement Company. The object of this act, as was the Anderson Creek Company, was to improve the descending navigation of the stream, for logs and lumber, and not to improve its crossings with lumber, and this is so said in every part of the act, but in this single instance. We must construe the expression in subordination to the declared purposes of the act, and in accordance with all its provisions, and so the learned master and court construed it, and they could do no otherwise.

These views determine the several appeals of the complainants against them, and they are to be dismissed at their costs.

The company’s appeal will now claim our attention. The court below enjoined the company as prayed, from selling the logs of the complainants, as advertised by it at Linden station, on the 4th day of September 1867, and from ariy future seizure and sale of the logs of the plaintiffs, for the payment of any claim for "tolls and penalties, until the same, if disputed or denied, shall have been established and adjudicated by due course of law.

The injury impending from this alleged attempt to sell logs to compensate tolls due and unpaid and for forfeitures, in the absence of the property, either potentially or in fact, was thus redressed by the perpetual injunction granted in the case, and this we think the court was right in doing. In Klopp v. Witmoyer, 7 Wright 219, it was held that personal property must be in the power of the sheriff when he sells, and where bidders may inspect it. There may be exceptions to the' rule, but nothing appears in this case to bring it within any conceivable exception. Indeed, the master reports that the sale was to be made without the possibility of the logs being presont. They were mixed with an indiscriminate mass of millions of feet of logs, belonging to many and various owners, and that it was not possible by any probable force, that the logs of the complainant could have been selected and taken up the stream to the place of the anticipated sale. The sale advertised was therefore a contemplated sale of lumber, where it could not be inspected by, nor delivered to, the purchaser.

We think the injunction granted was all that the case required. That the defendant should, in the future, be enjoined from using the remedy of the act by seizing and selling logs or lumber without writ or judgment, applies properly to a threatened exercise by the company of the power, and is not so charged in the bill. I regard this as a somewhat doubtful right in view of the clause of the bill of rights, which declares that no one “ shall be deprived of his life, liberty or property, unless by the judgment of his peers, or the law of the land.”

To determine this point now, however, is not required to give the complainants the benefit of their bill. Their property, imperilled by the proposed sale, is relieved effectually by the injunction against selling in the absence of the property, and we do not feel any necessity to determine the question of the future right of the company to seize and sell for tolls, &c., even where the property is present and in view, without writ and judgment. For this case that is not necessary. There are several other companies in this Commonwealth possessing like powers with those in this act of incorporation. Besides, there is the law of common carriers, which authorizes sales of goods for charges, without judgment or writ, and other summary remedies in other cases, which are to some extent at least involved in the constitutional question sought to be raised here, because of similarity of enactment and practice. For the present we will not decide this question, affecting so many interests, but leave it to some future action of parties interested, to bring it distinctly before the court when we can command a full bench.

And now, May 5th 1870, in the first of the above-mentioned cases, viz., Winslow & Crowell’s Appeal v. Bennett’s Branch Improvement Company, No. 508 of August Term 1867, in the Common Pleas of Lycoming county, and the Appeal of Elijah B. England and Jacob Brown v. The Same, No. 599 of the same term; and of George Quinn & Co. v. The Same, No. 510 of the same term; and of Woolverton & Tinsman v. The Same, No. 511 of the same term; and Philip G. Fessler v. The Same, No. 512 of the same term, the decrees of the court below are severally affirmed, and the appeals are dismissed at the costs of the complainants to the several bills.

And the appeal of the Bennett’s Branch Improvement Co. is affirmed as modified hereinafter.

Now, May 5th 1870, this came on to be argued in this court on appeal, and was argued by counsel, and was considered by the court, and it is now ordered, adjudged and decreed that the special injunction granted by the Court of Common Pleas of Lycoming county, in this case, be made perpetual, and that the defendant be perpetually enjoined, its officers and agents, from selling as advertised the logs of the plaintiffs, in their bill mentioned, at Linden station, the logs not being present, and liable to inspection by bidders, or delivery to purchasers; and the defendants are ordered and decreed to pay the costs in the court below and of this appeal. Per Curiam.