Loraine v. Pittsburg, Johnstown, Ebensburg & Eastern Railroad Co.

• Decision Date: 23 February 1903
• Docket Number: 356
• Citation: 54 A. 580,205 Pa. 132
• Parties: Loraine, Appellant v. Pittsburg, Johnstown, Ebensburg & Eastern Railroad Company
• Court: Pennsylvania Supreme Court

54 A. 580

205 Pa. 132

Loraine, Appellant v. Pittsburg, Johnstown, Ebensburg & Eastern Railroad Company

No. 356

Supreme Court of Pennsylvania

February 23, 1903

Argued February 4, 1903

Appeal, No. 356, Jan. T, 1902, by plaintiff, from judgment of C.P. Clearfield Co., Dec. T., 1902, No. 343, refusing mandamus in case of C. D. Loraine v. Pittsburg, Johnstown Ebensburg & Eastern Railroad Company. Reversed.

Petition for mandamus.

The facts are stated in the opinion of the Supreme Court.

Error assigned was in quashing writ of mandamus.

David L. Krebs, of Krebs & Liveright, with him Murray & Smith, for appellant. -- It is absurd to contend that the relator's rights and relations to the defendant corporation are the same as those of any other person in the community. They are no higher in degree than those of the other operators and shippers of coal over the defendant corporation railroad dependent upon it alone for transportation of their products; but his interests are immeasurably higher than those of the public or the individual who may occasionally ship a half car of freight. The very life and existence of his business is founded on the performance by the defendant of its duty as a common carrier which it claims to exercise, and which can only exist by virtue of the grant from the state: Com. ex rel. Hamilton v. Pittsburg, 34 Pa. 509; Union Pacific R.R. Co. v. Hall, 91 U.S. 343; Miller v. Canal Comrs., 21 Pa. 23; Penna. R.R. Co. v. Canal Comrs., 21 Pa. 9; James v. Comrs. of Bucks Co., 13 Pa. 72; Com. v. Rosseter, 2 Binn. 360; Treas. Jefferson Co. v. Shannon, 51 Pa. 221; Com. ex rel. v. McCandles, 129 Pa. 492; People v. Collins, 19 Wend. 56; County of Pike v. The State, 11 Illinois, 202; Ottawa v. The People, 48 Illinois, 233; Hamilton v. State, 3 Indiana, 452; People v. Halsey, 37 N.Y. 344; State v. County Judge, etc., 7 Iowa, 186; State v. Common Council of Rahway, 33 New Jersey Law, 110; Dillon's Munc. Corp. sec. 865; Com. v. Williamsport, 84 Pa. 487; Cheetham v. McCormick, 178 Pa. 186; Coulston v. Dickinson, 3 Brewster, 561.

The courts of Clearfield county had jurisdiction to issue the writ: Jensen v. Phila., etc., Ry. Co., 201 Pa. 603.

Oscar Mitchell, with him Harry Boulton, for appellee. -- The prayer of the relator is for the enforcement of a public duty and this is clearly admitted when the court is asked "to require the defendant company to continue to do as legally bound by its duty to plaintiff as common carrier."

All railroads and canals shall be public highways, and all railroad and canal companies shall be common carriers; Art. XVII, sec. 1, Const. Pa.

The interest of the plaintiff in the defendant's railroad as a shipper is in common to all other shippers on the railroad, and while it may benefit him more than his neighbors, yet it is manifest his interest, in kind if not in degree, is common to all the other shippers on the railroad: Heffner v. Commonwealth, 28 Pa. 108; Commonwealth ex rel. v. Park et al., 9 Phila. 481; Reading v. Commonwealth, 11 Pa. 196.

The relator does not show a right independent of that which he holds in common with the public at large: Commonwealth ex rel. v. Park et al., 9 Phila. 481.

The court of common pleas of Clearfield County had no jurisdiction to issue the writ to this defendant: Whitemarsh Twp. v. Phila., etc., R.R. Co., 8 W. & S. 365.

Before MITCHELL, DEAN, MESTREZAT and POTTER, JJ.

OPINION

MR. JUSTICE DEAN:

The defendant company was chartered sometime before 1897 under the general railroad act of 1868 as the Altoona & Phillipsburg Connecting Railroad Company; in the year 1897 it was leased to the Pittsburg, Johnstown, Ebensburg & Eastern Railroad Company, the principal line of which last named road extended beyond the boundaries of Clearfield county; but the Altoona & Phillipsburg, the lessor road, was wholly within that county. The lessee road was only a project; was never constructed and existed only on paper. The lessor road was actually constructed for about twelve miles to connections with the Beech Creek and Pennsylvania railroads and was in operation between those points carring freight and passengers. It owned about 300 coal cars for the transportation of coal upon its twelve miles of line, to the through roads with which it connected. Along these twelve miles were several coal mining plants in active production, which could reach the market in no other way than over this short railroad; among them was plaintiff's, fully equipped and in active operation, mining and shipping coal to market. While in the active pursuit of his business, plaintiff avers, that on November 19, 1902, by written communication from defendant company, through its superintendent, he was notified, in substance, that on and after the 20th of that month no more cars for shipment of his coal would be furnished him, unless he sold it to the American Union Coal Company; this latter company at the time offered to pay him $1.50 per ton for coal delivered on cars at his mine, while in the market it was worth $3.00. This offer he declined. Since that time defendant has refused to furnish him cars. He, therefore, prayed the court of common pleas of Clearfield county for a mandamus on defendant requiring it to place cars upon his siding for coal shipment as before November 19, 1902, as it is legally bound as a common carrier to do. On this petition the court awarded a writ of alternative mandamus directed to defendant which was served by the sheriff on defendant by delivering personally, within his bailiwick, to the superintendent company of defendant company, a copy of the writ. No answer was made to the averment of facts in the petition by defendant. It moved, however, to quash the writ mainly on two grounds, (1) because the writ was prayed for in the name of a private individual, to enforce a public duty, and (2) because the defendant is not a corporation within the county of Clearfield, under the act of June 8, 1893, and therefore the court of Clearfield county had no jurisdiction to entertain the petition or to issue the writ. Thereupon, the court dismissed the petition.

The facts as stated in the petition in their full scope must be taken as averred by plaintiff, for they are not denied by defendant. Therefore, the first and main question is, can the plaintiff ask on his own complaint for the issue of the writ, without the intervention of the attorney general? We concede that there is apparent conflict in the decisions, not however in the principle on which they are based, but in the application of the principle to the varying facts of different cases. The test of right of a private relator to the writ is not, as stated by appellee, whether the duty sought to be performed be a public one, but whether the complainant by breach of the public duty has suffered an injury special and peculiar to himself. The defendant under the statute from which it derives its being is a common carrier and as such has imposed upon it certain public duties, such as to construct its road, to equip it with cars, locomotives and employ hands to run them for all the public. This is a public duty. If it fail in performing it, it fails to carry out the very purpose of its charter and the public without distinction, suffers by the breach of duty. In such case both at common law and under our statute of 1893, proceedings should be instituted by the commonwealth at the instance of the attorney general.

But it is held in England that "in general all those who are legally capable of bringing an action are also legally capable of applying to the Court of King's Bench for the writ of mandamus. This is true in all cases it is believed where the defendant owes a duty in the performance of which the prosecutor has a peculiar interest:" Tapping on Mandamus, page 28. The right is distinctly recognized in this state in Com. ex rel. Hamilton v. Pittsburg, 34 Pa 496, and in many cases following it. Nor, as argued by appellee...