Frankford, &c., Railway Co. v. City of Philadelphia.

• Decision Date: 02 March 1868
• Citation: 58 Pa. 119
• Court: Pennsylvania Supreme Court
• Parties: The Frankford and Philadelphia Passenger Railway Company <I>versus</I> The City of Philadelphia.

Page 119

58 Pa. 119

The Frankford and Philadelphia Passenger Railway Company versus The City of Philadelphia.

Supreme Court of Pennsylvania.

February 6 and 7, 1868.

March 2, 1868.

February 6th and 7th 1868.

Before THOMPSON, C. J., STRONG, AGNEW and SHARSWOOD, JJ. READ, J., at Nisi Prius

Error to the District Court of Philadelphia: to July Term 1867, No. 183.

COPYRIGHT MATERIAL OMITTED

D. W. Sellers and G. W. Thorne, for plaintiffs in error.—The plaintiff is liable to such burdens only as are clearly imposed; keeping the streets in repair, and several are specified; — this is not one. The obligation to keep the streets in repair gives the city no power over the plaintiffs' franchise: Pennsylvania Railroad v. Duquesne Bor., 10 Wright 224.

This is not valid as a tax. The cars are personalty, and have not been assessed: Acts of August 25th 1864, Pamph. L. 1030; April 29th 1844, § 32, Pamph. L. 497; April 21st 1858, § 1, Pamph. L. 385, Purd. 947, 949, pl. 108, 117; Navigation Co. v. County, 8 W. & S. 334; Navigation Co. v. Commissioners, 1 Jones 202; Iron Co. v. County, 6 Wright 424.

It is not valid as a license. The charter gave the company license to use the highways: Case of Philadelphia & Trenton Railroad, 6 Whart. 25; Stormfeltz v. Turnpike, 1 Harris 555; Mercer v. Railroad, 12 Casey 99. This power to the city should be given by express words in the charter of the company: Faust v. Railway, 3 Phila. R. 164; Philadelphia v. Railroad, 3 Grant 403; Railway v. Birmingham, 1 P. F. Smith 41; Railway v. Philadelphia, Id. 465; Philadelphia v. Railway, 2 Id. 177; Commonwealth v. Railroad, 3 Casey 339.

The city has no legislative powers but those granted, and it exercises power to license hackney coaches, &c., by express grant: Acts of April 2d 1790, § 3, 2 Sm. Law 526; April 15th 1850, § 12, Pamph. L. 468. Power to demand licenses is always strictly construed: Chess v. Birmingham, 1 Grant 438; Bennett v. Borough, 7 Casey 15; Phillips v. Allen, 5 Wright 481.

It is not valid as a police regulation. Where there is power granted, a reasonable exercise of the power will be upheld: N. Liberties v. Gas Co., 2 Jones 318; City v. Cook, 6 Casey 56; City v. Tryon, 11 Id. 401. But where there is no power to do the thing, calling it a police regulation will not relieve the difficulty.

J. Lynd, for defendant in error.—The validity of the ordinance is based solely on the ground that it is a police regulation. The power to make such regulations is incident to all municipal regulations: Willcock Mun. Corp., Part I., §§ 229, 242, 335, 339; Buffalo v. Webster, 10 Wend. 101; Petition of Vandine, 6 Pick. 187; Commonwealth v. Bean, 14 Gray 52; Paige v. Forsacking, 36 Barb. 392; Commonwealth v. Robertson, 5 Cush. 438. They require no express charter provision: Commissioners v. Gas Co., Stormfeltz v. Turnpike, supra; Trenton Water Co.'s Case, 6 Pa. L. J. 32; City v. Harlem Railroad, 1 Hilton 580.

Regulations to control highways are pre-eminently police regulations: Milhan v. Sharp, 17 Barb. 437; Coates v. Moyer, 7 Conn. 585; Williams v. Central Railroad, 16 N. Y. 97.

A license is a police regulation: Boston v. Shaffer, 9 Pick. 419; Commonwealth v. Kimball, 24 Id. 359; Ash v. People, 11 Mich. 347; Cincinnati v. Buckingham, 10 Ohio 257; City v. Bryson, 15 Id. 643; Thompson v. State, 15 Ind. 451.

The city has express authority to enact this ordinance: Act of April 15th 1850, § 12, Pamph. L. 469, authorizes the councils "to provide for the proper regulation of omnibuses and vehicles in the nature thereof." Such are passenger cars. They have power also to make such laws, &c., "as may be necessary and convenient for the government and welfare" of the city: Acts of March 11th 1789, §§ 16, 44, 2 Sm. Laws 467, 455; February 2d 1854, §§ 4, 6, Pamph. L. 24.

The opinion of the court was delivered, March 2d 1868, by STRONG, J.

The argument on behalf of the plaintiffs starts with the assertion that, being a corporation created by the state, they are subject only to such burdens as are clearly imposed by their charter. If by this it is meant that they are subject to no other burdens, regulations or restrictions than those which are expressly enumerated in the Act of Assembly which authorized their corporate existence, we cannot yield our assent to it. They were incorporated with two privileges. The one was a right to construct a railway upon and along some of the public streets of the city of Philadelphia, and the other was a right to run passenger cars on the railway constructed, and to engage in the business of passenger carriers. Of both these privileges they are undoubtedly purchasers, and they cannot be deprived of them by any action of the city. But the grant of a privilege to carry passengers in cars over the streets does not necessarily involve exemption from liability to municipal regulation. It is not the bestowal of a right superior to the rights enjoyed by passenger carriers generally, whether such carriers be natural or artificial persons. The facilities for the use of the right may be greater, but the right itself can be neither more nor less than a natural person possesses. It is to be presumed that when the legislature creates a corporation, and authorizes it to carry on a specified business within the limits of a municipal organization, the business is intended to be conducted under the restrictions, rules and regulations that govern the same business when transacted by others within the same corporate limits. Can it be doubted that a company chartered and endowed with the single privilege of running a line of omnibuses within a city or borough, would take the privilege subject to reasonable municipal regulations of its enjoyment? Would the vehicles of such a corporation be beyond all control of the city or borough, as to the rate of speed at which they might be run, or as to the places where they might stop? Might they obstruct crossings whenever and wherever the company might please, and the municipal authorities be powerless to restrain the public inconvenience? Is such an exemption from reasonable local regulation a part of the legislative grant? If it is, the grant is more than conferring a right to do the business. Suppose a company chartered to make and sell bread in the city, is it beyond the power of the local authorities to prescribe the weight of the loaves which they may make and sell? Or if authorized to own and use hackney coaches, may not stands be prescribed for them? These and a multitude of similar questions may be put, to which there can be but one answer. A power or a right in the hands of a corporation can be no greater than the same power or right in the hands of a natural person. Any regulations which may be imposed upon its exercise by one, may be imposed upon its exercise by the other. It is not maintained that the use of a privilege conferred by the legislature may be denied by city authorities, but a reasonable regulation of the use is not such denial. No city ordinance can prevent any person from using drays or carts, but the mode and conditions of use are confessedly subject to direction by ordinance. And corporations chartered to do business in a city are to be regarded as inhabitants of the city, and, in the absence of special exemption, subject to its ordinances. In The Trenton Water Company's Case, 6 Penna. L. J. 32, it was said that "private corporations take their franchises subject to the rights of individuals and communities, and the strong presumption of law is always against unconditional adverse privileges." Upon this subject the case of The Commissioners v. The Northern Liberties Gas Co., 2 Jones 318, is very full and decisive. There a...