Commissioners v. Gas Co.

• Decision Date: 18 December 1849
• Parties: The Commissioners, &c., of the NORTHERN LIBERTIES <I>v.</I> The NORTHERN LIBERTIES GAS COMPANY.
• Court: Pennsylvania Supreme Court

12 Pa. 318

The Commissioners, &c., of the NORTHERN LIBERTIES v. The NORTHERN LIBERTIES GAS COMPANY.

Supreme Court of Pennsylvania.

March 22, 1849.

Reargued December 12, 1849.

December 18, 1849.

March 22, 1849; reargued Dec. 12.

IN error from the Common Pleas of Philadelphia.

E. Spencer Miller and T. Sergeant, for plaintiffs in error.—The authority of the legislature to authorize the breaking up of the streets is settled by the case of the Trenton Railroad, 6 Whart. 25. The defendants are a corporation not merely authorized but required to exercise this trade of furnishing gas to the community; and this is absolutely prohibited by the ordinance during one-fourth of the year, which is a restraint, not a regulation, and hence void: London v. Compton, 7 Dow. & Ry. 597; London v. Le Crew, 9 B. & Cress. 52; 1 Lutw. 563; Wilcox on Munic. Corp. §§ 342-9; Calder Nav. Co. v. Pilling, 14 M. & W. 75; Buffalo v. Buffalo, 5 Hill, 209; New York v. Ordrenan, 12 Johns. 122; 19 Ib. 248; 7 Cow. 585; 14 Wend. 87; 6 W. & S. 269.

By the charter of defendants, which is a special statute on this branch of police, the plaintiffs' charter is so far annulled: Mayor v. Nichols, 4 Hill, 209; Collet v. Flinn, 6 Cow. 467. At all events, it is for the plaintiffs to show that their ordinance is reasonable and necessary, which is matter of law: Goddard's case, 16 Pick. 127.

Brightly, contrà.—The defendants, though a corporation, are inhabitants, and subject to ordinances as others: Ang. and Ames on Corp. 240, 379, 428; 10 Wend. 186. The franchise they exercise is necessarily subject to reasonable municipal legislation as to time and place: Buffalo v. Webster, 10 Wend. 99; Mayor v. Thorne, 7 Paige, 261; Stokes v. New York, 14 Wend. 87; Willes, 388. The reason for the ordinance is the impossibility of repaving during the winter months. If a doubt exists, the construction must be in favour of the municipal corporation, who represent the public: 2 B. & Ad. 793; 11 Peters, 545; 6 Penna. L. J. 32.

Dec. 18. ROGERS, J.

By the 11th section of the Act of the 16th March, 1819, incorporating "The Commissioners and Inhabitants of the Incorporated District of the Northern Liberties," the Board of Commissioners, elected by the inhabitants of the district, are empowered "to make, ordain, constitute, and establish such and so many laws, ordinances, and regulations, as shall be necessary for the governing of the district and the welfare thereof," and by the 16th, 17th, and 18th sections they are invested with full jurisdiction over the streets and highways of the district.

With this full and plenary power granted to them, to be exercised for the benefit and welfare of the inhabitants, it will not admit of question, a general authority is conferred to prevent the opening and digging up paved streets in the district, except in the manner, and at times, to be prescribed by them, and that a general ordinance, such as the one in question, would be valid, as well against the Gas Company, who stand in the same category as inhabitants, as against any other person or persons whatever. The ordinance, which is for a limited time merely, is a regulation, and not a restraint of trade, as is clearly shown by all the cases cited. Nay, it may be absolutely necessary to prevent an obstruction or stoppage to the trade of the district, of which as well the public as the inhabitants or others having commercial relations with them, would have a just right to complain. If, then, this be an undoubted authority expressly granted to the corporation, for the purposes stated, it remains to inquire, whether this power is restrained, altered, or impaired by subsequent legislative enactment. The plaintiff in error contends, that the ordinance conflicts with the 8th section of the charter of incorporation of the Gas Company. [His Honour here stated it; see antè, p. 318.] It is contended this section overrides and annuls the general power given to the municipality for the regulation of streets and highways, so far as regards the laying the pipes for the distribution of gas. But we do not so understand the charter of the Gas Company. There is nothing, that we can perceive, inconsistent in the powers claimed by both. It is conceded, that the district cannot, on the ground of the public welfare, pass an ordinance which conflicts with, adds to, or controls the provisions of the charter granted to the Gas Company; and no person doubts the power of the legislature to restrain or alter, as they may deem proper, the provisions of their charter. But where, in a subsequent act in favour of a private corporation, it is sought to control the general powers before granted to a public corporation, the intention of the legislature ought distinctly to appear. Any ambiguity in the grant must be construed against them, and in favour of the public. The rule of construction in all such cases is, that any ambiguity in the charter of the company must operate against the corporation and in favour of the public: 2 B. & Ad. 793; 2 M. & G. 196; 11 Pet. 545; 4 Bing. 452; 11 East, 685; 6 Pet. 738; 1 Am. Law Journ. 362. "It would present a singular spectacle," says Chief Justice Taney, in 11 Peters, 545, "if, while the Courts in England are restraining within the strictest limits the spirit of monopoly, and exclusive privileges in the nature of monopolies, and confining corporations to the privileges given them in their charter, the courts in this Country should be found enlarging their privileges by implication, and construing a statute more unfavourably to the public and the rights of the community, than would be done in a like case in an...