Hestonville, Mantua & Fairmount Passenger Railroad v. City of Philadelphia

Mr. Justice Trunkey

delivered the opinion of the court, May 5th 1879.

The Act of April 6th 1859, and its supplement of March 8th 1860, incorporating the Hestonville, Mantua and Fairmount Passenger Railroad Company, gave it no power to construct a double track on Callowhill street. By the original act the company was authorized to lay a double track on designated streets, and a single track on others; and the latter authorized construction of their 'tracks across- the Schuylkill and along Callowhill. According to familiar rules, the right granted by the supplement was to lay a single track.

Section 3 of the Act of 24th March 1859, permitted the Fair-mount ánd Arch Street City Passenger Railway Company to elect to construct one of their tracks on Twenty-second and Hamilton streets, in lieu of two tracks on that part of Callowhill between Hamilton and Twenty-second; and the company so elected and laid their' tracks.

The Eairmoiint Passenger Railroad Company was incorporated by Act of April 13th 1858, with power to construct a double track on Callowhill from Fairmount to Twenty-second street. Upon specified conditions, the councils of the city gave the requisite assent as prescribed in the act. On June 21st 1858, the Board of Surveyors of the city approved a plan for construction of the Fair-mount Railroad, with double track on Callowhill street, and shortly after said double track was laid. Early in 1865, under the Act of May 16th 1861, “ relating to railroad companies,” the Fairmount Passenger Railroad Company and the Fairmount and Arch Street Passenger Railway Company were merged into the company appellant, and the three were thereby consolidated. Afterwards, in the same year, the appellant took up said double track and laid a single one in the middle of the street, which they used till April 23d 1875. On that day they began to take up and remove the cobble stones from said street for the purpose and with the avowed intention of laying a double track therein; whereupon this suit was commenced and the work enjoined. It is .not charged, and, of course, could not be, or it would have been, that the plan of the double track proposed to be constructed differs from the one which was duly approved and laid in 1858 and removed in 1865. The answer avers that by reason of the alteration of grades caused by construction of the double-decker bridge and the increased public travel, it is necessary that the franchise of a double track be maintained.

The Fairmount Passenger Railroad Company had right to lay a double track on Callowhill street, which was promptly done and the track used for seven years. Then followed a period of ten years during which a single track being sufficient for the business, the double one Avas removed. Their charter required no continuous use of a double track on pain of forfeiture of the right. The public interests, either of the city at large or of the portion adjoining and near the street, were not prejudiced. There has been no attempt to enlarge the power originally granted, or to vary the location of the double track as first laid, nor such frequent changes as to give just cause of complaint. Hence, there are no peculiar circumstances calling for unusual strictness of adjudication on account of misuse or non-user. And, if there were, this bill would not authorize a decree of forfeiture: Slee v. Bloom, 5 Johns. Oh. 879. HoAvever, Ave are of opinion that there is no ground for holding a forfeiture of the right to a double track for non-user.

■ An absolute right, vested by legislation of the state and assented to by the councils of the city, cannot be subverted by city ordinances. The franchise is not held at the mercy of any one. It is not now necessary to speak of the,extent of the power of the city to regulate and control the operations of passenger railways. The ordinances set forth in the bill may be valid. Possibly the company may incur a penalty of $500 for each offence of removing cobble pavements for the purpose of relaying a double track as they first laid it under the city’s sanction. Be that as it may, we are not convinced that they should be prohibited the enjoyments of a franchise solemnly granted.

The learned counsel for the city contend that the Act of May 16th 1861, entitled “ An Act relating to railroad companies,” must be regarded as a portion of the General Railroad Law, authorizing roads to be built where none was built before ; generally through the country, requiring bridges, cuttings and fillings, and sometimés tunnels through hills and mountains ; dealing with a distinct subject which existed before passenger railways came into use, while the latter, unlike a railroad, always contemplates a track laid upon an established road, is always restricted to the bounds of a city or town and its immediate vicinity ; and, in the law, a distinction has always been made between railroads and railways, the former term being applied to subjects of the General Railroad Law, and the latter to passenger railways in cities. Their argument is, at least, plausible, but we are not satisfied that it is free from error. In 1861, all railroads were incorporated by special laws, and in so far as each law did not prescribe specially, reference was made to the provisions of the Act of February 19th 1849. This was common in charters for passenger railroads, as well as others. In the statutes, one class was generally styled railroads, and the other more frequently, but not always, railways. These words are popularly used as synonymous, and Webster defines both alike, but this matters little. A slight examination will show that the legislature did not use the words in a distinctive sense. On th;e same date of the act, in consideration, the “ Philadelphia and Delaware River Railroad Company” was authorized to lay passenger tracks on certain streets in Philadelphia, thereby combining both classes in one corporation. Also, same day, a supplement to the charter of the “ Philadelphia and Olney Railroad Company” was passed, which company was incorporated April 1st 1859, with right to lay their tracks on specified streets and highways and connect with passenger railroads. In 1859 the “ Pittsburgh and Birmingham Passenger Railroad Company” was incorporated. Also the “Passenger Railroad Relief Association of Philadelphia.” Two of the three companies consolidated into the company appellant are “ railroads.” These instances sufficiently indicate that the legislature indiscriminately used the words in their popular sense. It is true that, railroads were used in the country prior to theix*' use on the streets of towns, and that many differences necessarily exist in their regulation and management. It is useless to name points of likeness and unlikeness, for there are many of each. And these vary in the same road when one part is in the country and the other in a city. Recently narrow gauge railroads have been introduced, not laid on streets of cities, nor tunnelled through hills and mountains, but running over the latter. All three kinds are railways — are railroads. Then, as respects the title of the Act of 1861, it embraces railways on streets as well as those through or over hills and mountains. It is equally comprehensive in its provisions, not one of which is inap-. plicable to any class of railroads. Not an incongruous clause has been pointed out, considered in relation of proceedings for merger of city passenger railway companies. The right of consolidation is limited to connecting roads. Not in the title, nor in the body of the act, is anything discoverable why its benefits should be confined to a class instead of embracing all. We were not informed at the argument of any extraneous cause for holding that one class was without the legislative intendment.

Mergers have been made of passenger railway companies and new corporations formed thereby, under this statute. The proper state officers filed the agreements and certificates. No 'one has directly questioned the right of such new corporations to hold property and transact business. Very likely many citizens would severely suffer if all these organizations are void. While the hardship resulting from their mistake, if mistake it was, is no reason for improperly placing them within the intendment of the statute, it is a reason for careful inquiry into the meaning of the law, and not excluding them from its operation by a forced construction against its letter and apparent spirit.

Decree reversed, and now it is adjudged and ordered that the bill be dismissed, the appellee to pay costs below and of this appeal.