Commonwealth ex rel. Hensel v. Sturtevant

• Decision Date: 15 July 1897
• Docket Number: 366
• Citation: 37 A. 916,182 Pa. 323
• Parties: The Commonwealth of Pennsylvania ex rel. William U. Hensel, Attorney General, Appellant, v. Peleg Sturtevant and Henry F. Zaring, Owners and Operators of "The Liverpool Ferry.&quot
• Court: Pennsylvania Supreme Court

37 A. 916

182 Pa. 323

The Commonwealth of Pennsylvania ex rel. William U. Hensel, Attorney General, Appellant, v. Peleg Sturtevant and Henry F. Zaring, Owners and Operators of "The Liverpool Ferry."

No. 366

Supreme Court of Pennsylvania

July 15, 1897

Argued May 24, 1897

Appeal, No. 366, Jan. T., 1896, by plaintiffs, from order of C.P. Perry Co., Nov. T., 1894, No. 12, arresting judgment. Reversed.

Quo warranto to forfeit ferry franchises.

The suggestion for quo warranto was as follows:

Be it remembered on this 11th day of September, A.D. 1894, comes William U. Hensel, the attorney general of the commonwealth of Pennsylvania, and files this his suggestion, and gives the court to understand and be informed.

1. That by an act of assembly approved the 21st day of March, 1865 P.L. 1867, page 1356, there was established a public ferry over the Susquehanna river at the borough of Liverpool, Perry county, Pa., from Shank's Bridge in said borough to a point at or near Liverpool Station on the Northern Central Railway in Dauphin county, Pa., to be known as "The Liverpool Ferry" and one, William Inch, Sr., his heirs and assigns were by the said act given the franchise to carry foot persons by the said ferry for tolls not to exceed twenty cents.

2. That by the said act the said William Inch, Sr., his heirs and assigns were directed to keep the said ferry in good order and repair and furnish all needful facilities for ferrying foot persons across the said ferry and upon condition that he or they should so do and continue so to do, he or they were given the exclusive right and franchise to conduct the said ferry, and it was further enacted that so long as the said duty was so performed no other ferry should be established for one half mile above or below the said "The Liverpool Ferry."

3. That the franchise aforesaid has passed by devolution, purchase assignment, etc., from the said William Inch, Sr., to divers persons from time to time, and it is now vested in Peleg Sturtevant and Henry F. Zaring, who claim to be the sole owners of the said franchise at present and for some time past, and are now and have been conducting the said ferry.

4. That the present owners of the said ferry and their predecessors from time to time have failed to furnish all needful facilities for ferrying foot persons across the said river and to keep the said ferry in good order and repair, but on the contrary have conducted and maintained the said ferry in an inadequate, improper, negligent and unlawful manner, and not as required by the conditions of the said grant, which acts of omission, misuser, nonuser and illegal maintenance of the said ferry are specifically as follows: (a) that they and their predecessors have for a long time past furnished for the said ferry, inadequate, unfit and dangerous boats; (b) that they and their predecessors have for a long time past employed and placed in charge of said ferry and boats inexperienced, improper and negligent ferrymen; (c) that they and their predecessors have for a long time past refused and neglected to ferry foot persons on divers occasions, so that large numbers of persons have been compelled to seek other ferries above or below the said "The Liverpool Ferry;" (d) that they and their predecessors have for a long time past charged extortionate, excessive and illegal tolls and refused to carry foot persons for the tolls and ferriage provided by the said act; (e) that they and their predecessors have for a long time past done other and different acts and omissions of misuser and nonuser through and by which they have failed to keep said ferry in good order and repair and furnish all needful facilities for ferrying foot persons across said ferry.

All of which acts, matters and things in the premises have been and continue to be to the great loss, delay and damage of the public, whereby the condition upon which the exclusive grant to the defendants and their predecessors has been violated and failed, and the said exclusive grant and franchise has long since in fact and in law become forfeit.

Wherefore the said commonwealth prays the consideration of the court here in the premises, and that due process of law be awarded against the said Peleg Sturtevant and Henry F. Zaring, owners and operators of "The Liverpool Ferry," and that it be adjudged that the said Peleg Sturtevant and Henry F. Zaring, owners and operators of "The Liverpool Ferry" and their predecessors have forfeited all and singular the exclusive right, property and franchise to own and conduct the said "The Liverpool Ferry," as the sole and exclusive ferry between the points in the said act of grant named, and have in fact and in law no longer such sole and exclusive power and franchise, so that the commonwealth of Pennsylvania may, if it so is moved, grant to others than the defendants rights and franchises to establish and conduct ferries upon the said Susquehanna river between the points named according to law.

And further that a quo warranto be issued against the said Peleg Sturtevant and Henry F. Zaring, sole owners and operators of "The Liverpool Ferry," to show by what warrant or authority they claim to exercise the said sole and exclusive right to maintain the said "The Liverpool Ferry" as the exclusive ferry between the points named in the said act of March 21, 1865, so that the commonwealth of Pennsylvania may not of her pleasure and mere motion grant unto others than they, the said defendants, the franchise and right to establish and maintain other ferries between said points, etc.

The defendants filed a general denial, and a trial was had on the merits, resulting in a verdict for plaintiff.

The defendants filed the following reasons in support of a motion to arrest the judgment:

1. The 7th section of the Act of June 14, 1836, P.L. 621, provides that "every suggestion as aforesaid shall set forth the facts as fully as has heretofore been required in informations aforesaid." Regularly the same certainty is required in an information that is required in an indictment. But the suggestion in this case is too general and uncertain because it does not allege that any particular person was refused ferriage, within any particular time mentioned in the suggestion; neither does it mention any particular person from whom extortionate tolls were taken; nor does it set forth any limits of time within which it is alleged the causes of forfeiture occurred.

2. The writ of quo warranto cannot be used to prohibit a person exercising a public franchise from the doing of any particular act or thing which constitutes but a portion of the rights, powers and privileges incident thereto.

3. The suggestion does not aver that the alleged causes of forfeiture were wilful and persisted in by the owners and operators of said ferry, or by the defendants.

4. It appears from the suggestion that the right of the present owners of the said ferry and of their predecessors to exercise the franchise granted by the act of assembly establishing the ferry, has been acquiesced in for a long time past.

5. The suggestion is uncertain, insufficient, and does not set forth any legal cause of forfeiture.

6. The court is without jurisdiction to try the issue presented by the pleadings.

LYONS, P.J., filed the following opinion:

Six different reasons have been assigned in arrest of judgment. It will be necessary to consider only the first and third.

1st. It is contended by the learned counsel for the defendants that "the suggestion in this case is too general and uncertain because it does not allege that any particular person was refused ferriage within any particular time mentioned in the suggestion; neither does it mention any particular person from whom extortionate tolls were taken, neither does it set forth any limits of time within which it is alleged the causes of forfeiture occurred." The seventh section of the Act of June 14, A.D. 1836, Purdon (12th ed.), page 1774, Plac. 7, P.L. 621, provides that "every suggestion as aforesaid shall set forth the facts as fully as has heretofore been required in informations aforesaid." "Regularly, the same certainty that is required in an indictment is in like manner required in an information:" 5 Bacon's Abridgement (ed. of 1854), 178, citing King v. Roberts, Carth. 226; s.c. 3 Salk. 198.

The suggestion filed in this case would not be sufficient to sustain an indictment. There is no time mentioned or limited within which any of the acts complained of as alleged causes of forfeiture of the franchise owned and enjoyed by the defendants were done or omitted. The suggestion does not state the name of any particular "inexperienced, improper or negligent ferryman" or the time when or within which such ferryman was employed. It does not state the time when or who the "foot persons" were that were refused ferriage. It does not state when nor from whom excessive and illegal tolls were collected, nor who were refused ferriage for the tolls provided by the act of incorporation, nor the time when such refusal took place.

In this respect the suggestion is entirely deficient. There is not that certainty required by the act of assembly above referred to. The cause or causes of forfeiture ought to be set forth with the time and circumstances and the nature and character of the unlawful acts of commission or omission, and the name of the person injured thereby, with such clearness and particularity that the defendants may be informed of the nature and character of the charge they are called upon to meet. This has not been done in the case at bar. In the case of The Com. v. The Commercial Bank, 28 Pa. 383, the suggestion originally filed was general, and lacked the particularity and precision of statement required. For...