Johnson v. Philadelphia

• Decision Date: 08 March 1869
• Citation: 60 Pa. 445
• Court: Pennsylvania Supreme Court
• Parties: Johnson <I>et al. versus</I> Philadelphia <I>et al.</I>

60 Pa. 445

Johnson et al. versus Philadelphia et al.

Supreme Court of Pennsylvania.

February 1, 1869.

March 8, 1869.

February 1st 1869.

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

Appeal from the decree of the Court at Nisi Prius in Equity: No. 38, to January Term 1864.

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T. Cuyler, for appellant.—The franchise of the company to run cars over the streets is by the sovereign power of the Commonwealth: Philadelphia and Trenton R. R., 6 Wharton 25. The restrictions and conditions which the city may impose on the company, are defined in the company's charter, and all others are therefore excluded. The power to charge the annual sum of $30 is not one granted. By the bond of the company of April 15th 1858, and its acceptance by the city, it has been determined what the company would pay, to wit, $5 per car, and equity will restrain from collecting a larger amount: Second and Third Avenue Railway, 32 N. Y. R. 261. This is a tax imposed on the franchise which might result in prohibiting its use: Commonwealth v. Erie & N. E. R., 3 Casey 339; Susquehanna Canal Co. v. Bonham, 9 W. & S. 27; Ammant v. Turnpike Co. 13 S. & R. 210; Carbon Iron Company v. Carbon County, 3 Wright 251; N. Y. & Erie R. R. Co. v. Sabin, 2 Casey 242; The Gas Company v. Chester Co., 6 Casey 232; Lehigh Coal & Nav. Co. v. Northampton, 8 W. & S. 334; Schuylkill Nav. Co. v. Berks, 1 Jones 202; Lackawanna Iron Co. v. Luzerne, 6 Wright 424. Is it a license? The company derives its license from the Commonwealth: Stormfeltz v. Turnpike, 1 Harris 555; Mercer v. R. R., 12 Casey 99. The power to the city must be from express words in the charter: Faust v. Railway, 3 Phila. Rep. 164; Musser v. Railway, 7 Amer. Law Reg. 164; Philadelphia v. Railroad, 3 Grant 403; Pittsburg & B. R. R. v. Birmingham, 1 P. F. Smith 41; Second St. Pass. Railway v. City, Id. 465; Philadelphia v. Gray's Ferry R. R., 2 Id. 177; Commonwealth v. Railroad, 3 Casey 339; Acts of April 2d 1790, § 3, 2 Smith's Laws 526; April 15th 1850, § 12, Pamph. L. 468. The power to license is strictly construed: Chess v. Birmingham, 1 Grant 438; Bennet v. Borough, 7 Casey 15; Phillips v. Allen, 5 Wright 481. It is not a police regulation, which is a rule relating to something to promote the safety or convenience of citizens.

J. Lynd (with whom was T. J. Barger), for appellees:—As to the effect of giving the bond to comply with the ordinance of 1857:

1. If the ordinance is to be construed as a contract, it is a bartering away of the police power of the city; and it is therefore void: Mott v. The Penna. R. R., 6 Casey 9; Brewster v. Hough, 10 New Hamp. 147; Goszler v. Georgetown, 6 Wheat. 598; Milhau v. Sharp, 27 N. Y. 611; State of New York v. The Mayor, 3 Duer 119; The Church v. The Mayor, 5 Cow. 538; Faust v. R. R., 3 Phila. 168.

2. If the ordinance is a mere matter of legislation, then it is subject to modification by subsequent councils.

3. It is certainly in the form of legislation, and is not in the form of a contract.

In so far as the regulations were unlawful, the company was not bound by them; nor could it enter into a valid agreement to be bound by them: Faust v. The R. R. Co., supra.

4. But if the said ordinance was a contract, the consideration moving to the appellants was "the consent of the city to the use by them of the streets."

This was all the city gave for the obligation executed by the appellees to observe the terms of the ordinance of July 7th 1857: Act of May 14th 1857, § 12, Pamph. L. 1858, 587.

The consideration was not the abandonment by the city of her power of police regulation.

A corporation takes nothing by its charter, except what is plainly, expressly and unequivocally granted: Bank of Pennsylvania v. The Commonwealth, 7 Harris 155; The Commonwealth v. Erie and N. E. R. R., 3 Casey 359; Southwark R. R. v. The City, 11 Wright 323; Susquehanna Canal Co. v. Wright, 9 W. & S. 11; Easton Bank v. Commonwealth, 10 Barr 442.

The opinion of the court was delivered, March 8th 1869, by SHARSWOOD, J.

This is a bill filed by the plaintiffs for themselves and others, stockholders of the West Philadelphia Passenger Railway Company, against the said company and the City of Philadelphia, praying that the company may be restrained from paying and the city from receiving or exacting the annual charge of thirty dollars for each car intended to be run on the railway of the said company, under an ordinance of the said city, approved April 1st 1859.

The principal question involved in this controversy, was considered and decided by this court in The Frankford and Philadelphia Passenger Railway Company v. The City of Philadelphia, on a writ of error to the District Court for the city and county of Philadelphia, and the judgment of that court was affirmed March 2d 1868. Our Brother Read was not present on the hearing, and the same question has been now again argued before a full bench. A majority of the court adhere to the principles settled in that case. The opinion delivered by Mr. Justice Strong expresses so fully and well the grounds of the decision, that to add anything to it would be a work of supererogation.

It is to be remarked, that now, as then, no question is raised by the bill as to the reasonableness of the sum demanded as the price of a license. The power of the city to require any license or to exact any sum, is denied in toto, and to that ground for the interposition of the court only was the city called on to make answer. It cannot, therefore, properly enter into the consideration of the question as it is presented to us upon the pleadings.

It has, however, been strenuously contended, that the object of the city was to raise a revenue from the passenger railway companies by the ordinance in question, and the clause by which it is declared that the payment of the license fee is to be "for the use of the city," has been referred to as conclusively establishing this view. It is not denied by the defendants that the imposition of such a sum or any other upon the cars of the companies as a tax for the purpose of raising revenue, would be an invasion of their corporate franchises derived by grant from the Commonwealth, and therefore unlawful and void. But if it be admitted that the sum in question is a reasonable charge for a license as a police regulation (which we must assume), then its incidental operation in augmenting the receipts into the city treasury cannot invalidate it. Such is the necessary effect of all fines, penalties and forfeitures for the infringement of what are confessed to be valid ordinances. It is unnecessary to enumerate or specify. The digest of city ordinances abounds with them. The fact that such moneys are paid into the...