Commonwealth v. Pennsylvania Canal Co.

• Decision Date: 07 July 1870
• Citation: 66 Pa. 41
• Parties: The Commonwealth <I>versus</I> The Pennsylvania Canal Co.
• Court: Pennsylvania Supreme Court

66 Pa. 41

The Commonwealth versus The Pennsylvania Canal Co.

Supreme Court of Pennsylvania.

March 19, 1870.

July 7, 1870.

March 19th 1870.

Before THOMPSON, C. J., READ, AGNEW and SHARSWOOD, JJ.

Error to the Court of Quarter Sessions of Dauphin county: to May Term 1870, No. 11.

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J. W. Simonton and F. C. Brewster, Attorney-General (with whom was R. L. Muench), for plaintiff in error.—Did the railroad company, by their purchase and deed, take the right to sell said works to the Pennsylvania Canal Company, the defendant in this case? A grant of land or of a corporate franchise by an act of legislation is a contract, the obligation of which a subsequent legislature cannot impair: Southwark Railroad v. Philadelphia, 11 Wright 314; Iron City Bank v. Pittsburg, 1 Id. 340. This being admitted, what was the contract of the Pennsylvania Railroad Co., with the Commonwealth?

Any ambiguity in the contract operates in favor of the public: Charles River Bridge v. Warren Bridge, 11 Peters 544; Susquehanna Canal v. Wright, 9 W. & S. 11; Monongahela Nav. Co. v. Coon, 6 Id. 113. A corporation takes nothing by its charter except what is plainly, expressly and unequivocally granted: Bank of Penna. v. Commonwealth, 7 Harris 155; Commonwealth v. Erie and N. E. Railway Co., 3 Casey 359.

The defendants were incorporated after the passage of the Fish Act, and therefore took subject to its obligations: Armstrong v. Treasurer of Athens Co., 16 Pet. 281. Corporations are subject to the provisions of general laws in force at the time they obtain their charters: Pratt v. Atlantic and St. Lawrence Railroad, 42 Me. 597; Bowen v. Sears, 5 Hill 221; Bank v. Nolan, 7 How. (Miss.) 508; Bank v. Archer, 8 Smedes and M. 151; Coffin v. Rich, 45 Me. 507. And to general laws passed subsequently, not conflicting with the clearly expressed or necessarily implied provisions of their charter: Easton Bank v. The Comm'th., 10 Barr 442; Providence Bank v. Billings, 4 Peters 514; Iron City Bank v. The City of Pittsburg, supra; Norris v. Androscoggin Railway, 39 Me. 293; Railway v. Smith, 37 Id. 35; English v. N. H. and Northampton Co., 32 Conn. 240; Monongahela Nav. Co. v. Coon, 6 Barr 379.

The obligation of a contract depends upon the laws in existence when it is made: McCracken v. Hayward, 2 How. 612; Ogden v. Sanders, 12 Wheat. 259; Pomeroy's Const. Law 382-8; Cooley's Const. Law 285-6. To declare an act void it must clearly, palpably and plainly violate the Constitution: Sharpless v. Philada., 9 Harris 164. The Fish Act is a proper and legitimate exercise of the police power of the state: Thorpe v. Rutland and Burlington Railroad Co., 27 Vt. 149; Railway Co. v. Gilliland, 6 P. F. Smith 452. The right of free fishery, which is vested in all the inhabitants of the state, is of such importance and value to the health and prosperity of the citizens of the state at large, as to bring it within the class of rights which may be defined and protected by this police power. The right to fish in such rivers as the Susquehanna and Delaware belongs to the public: Carson v. Blazer, 2 Binn. 475; Shrunk v. Nav. Co., 14 S. & R. 71; Moulton v. Sibley, 37 Maine 472; Denham v. Lamphen, 3 Gray 268; Hart v. Hill, 1 Whart. 132; Angell on Watercourses, § 86; Comm'th. v. Tewksbury, 11 Metcf. 55; Coates v. The Mayor, 7 Cow. 585; Brick Church v. The Mayor, 5 Id. 538; Cooley's Const. and Stat. Lim. 579, 580, 597; Gilman v. Philad., 3 Wall. 730.

L. W. Hall and F. Jordan, for defendants in error.—The 2d section of the Fish Act, that under which the indictment was found, had expired before judgment, and no further proceedings can be had: Road in Hatfield Township, 4 Yeates 392; United States v. Passmore, 1 W. C. C. R. 84; North Canal Street Road, 10 Watts 351; Stoever v. Immel, 1 Id. 258; Commonwealth v. Duane, 1 Binn. 601; Comm'th. v. King, 1 Whart. 448; Hastings v. The People, 8 Smith (N. Y.) Rep. 95.

The canal company assumed the same duties and responsibilities as the railroad company, and no others: their charter is a contract with the state, not subject to alteration by the latter, so as to deprive them of the rights secured by it: Pierce on Am. Railroad Law 20; Monon. Nav. Co. v. Coon, 6 Barr 381; Erie & N. E. Railroad Co. v. Casey, 1 Grant 275; Comm'th. v. Cullen, 1 Harris 133; Brown v. Hummel, 6 Barr 86; Terrett v. Taylor, 9 Cranch 43; Calder v. Bull, 3 Dall. 386; City of Erie v. The Erie Canal Co., 9 P. F. Smith 174. The Fish Act takes private property for public use, without compensation: Angell on Watercourses, §§ 457, 8, 9, &c. Redfield on Railroads 555-6; Pierce on Am. Railroad L. 38; 2 Kent's Com. 408-9; Cranshaw v. The Slate River Co., 6 Rand (Va.) Rep. 245; Washington Bridge Co. v. The State, 18 Conn. Rep. 53; Miller v. The N. York and Erie Railroad Co., 21 Barb. Rep. 513; Bell v. The Ohio and Penna. Railroad Co., 1 Grant 105; Erie v. The Erie Canal Co., supra; Comm'th. v. Reed, 10 Casey 275; Cooley on Constitutional Lim. 577, 578.

The opinion of the court was delivered, July 7th 1870, by SHARSWOOD, J.

The very able and exhaustive opinion of the learned president judge of the court below in entering judgment upon the special verdict, relieves us from the necessity of any further discussion of the important constitutional and legal questions involved in this case. That opinion is in entire accordance with our own views, and we adopt it as the opinion of this court.

It is strongly urged, however, on behalf of the Commonwealth, and this has been the principal contention here, that he fell into a fundamental error, which vitiated all his reasoning, by treating the case as though it were a question between the Commonwealth and the Pennsylvania Railroad Company, who were the original purchasers of the dam at Duncan's Island, together with the other public works, under the provisions of the Act of Assembly, passed May 16th 1857, Pamph. L. 519, entitled "An Act for the sale of the main line of the public works." It is apparently conceded that the Pennsylvania Railroad Company took the works under that act by contract, and paid for them to the state a valuable consideration, and consequently the state could not impose upon their grantee any new burthen not contained in the original sale; for that would be for one of the parties to add a new term or condition to the contract. In that respect the case is stronger than The City of Erie v. The Erie Canal Company, 9 P. F. Smith 174, for the Erie Canal Company was the donee rather than the vendee of the Commonwealth. But it is said, that by the Act of 1857 the Pennsylvania Railroad Company were not authorized to sell any part of the works to the Pennsylvania Canal Company, because, at the time of the original sale of the whole, it was not then an existing corporation, and consequently, when the last-named company were incorporated by the Act of May 1st 1866 (Pamph. L. 1068), and were thereby authorized and empowered to purchase, take and hold from the Pennsylvania Railroad Company, and which said railroad company were thereby authorized and empowered to grant, the canal from Columbia to the junction at Duncan's Island, &c., with all the property and appertenances thereto appertaining, they necessarily took the same under and subject to the provisions of the previous Act of Assembly of March 30th 1866, Pamph. L. 370, entitled "An Act relative to the passage of fish in the Susquehanna river and certain of its tributaries," for a violation of which this indictment was preferred. The argument has great ingenuity and plausibility, and if its premises be admitted, the conclusion would have to follow logically and inevitably. All legislative acts alienating public rights or domain are to be strictly construed, and no such grant is to be inferred by implication merely. Accepting this as not only the well established, but sound and reasonable canon of construction, let us examine how it applies in the case before us; whether there is not here a sufficient actual expression to be beyond the reach of the rule. By the third section of the Act of 1857, it was provided, "that it shall be lawful for any person or persons, or railroad or canal company now incorporated or which may hereafter be incorporated by and under the laws of this Commonwealth, to become the purchasers of the said main line of the public works." Then, after various provisions, applicable specially and severally in case individuals or associations of...