Pennsylvania Railroad Co. v. Lutheran Congregation

• Decision Date: 07 January 1867
• Citation: 53 Pa. 445
• Parties: Pennsylvania Railroad Company <I>versus</I> The First German Lutheran Congregation of Pittsburgh.
• Court: Pennsylvania Supreme Court

Page 445

53 Pa. 445

Pennsylvania Railroad Company versus The First German Lutheran Congregation of Pittsburgh.

Supreme Court of Pennsylvania.

January 7, 1867.

CERTIORARI to the Court of Common Pleas of Allegheny county, to remove the proceedings for assessment of damages done by the Pennsylvania Railroad Company, in constructing a tunnel under the church property of The First German Evangelical Lutheran Congregation of Pittsburgh.

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J. H. Hampton, for plaintiff in error, cited O'Hara v. Penna. Railroad Co., 1 Casey 448; Penna. Railroad Co. v. Keiffer, 10 Harris 356; Acts of April 23d 1864, Pamph. L. 535, August 12th 1864, Pamph. L. 963; Commonwealth v. Erie and N. E. Railroad Co., 3 Casey 355; People v. The Saratoga Railroad Co., 15 Wend. 113; Newburyport Turnpike Co. v. Eastern Railroad Co., 23 Pick. 326; The King v. Pease, 4 B. & Ad. (24 E. C. L. R.) 30; Penna. Railroad Co. v. Hiester, 8 Barr 445; Troy and Boston Railroad Case, 13 Barb. 169; Schuylkill Nav. Co. v. Thoburn, 7 S. & R. 411; Watson v. Pitts. and Con. Railroad Co., 1 Wright 480; Searle v. Lack. and Bl. Railroad Co., 9 Casey 57.

H. P. Mueller, T. Ewing and A. M. Brown, for defendant in error, cited Berger v. Smull, 3 Wright 302; Harres v. Commonwealth, 11 Casey 416; Union Canal Co. v. Keiser, 7 Harris 134; Catharine and Frankstown Townships, 7 Casey 303; O. and P. Railroad Co. v. Bradford, 7 Harris 363; Penna. Railroad Co. v. Porter, 5 Casey 165; Boyd v. Negley, 4 Wright 377; Beates v. Retallick, 11 Harris 288; Griffith v. Eshelman, 4 Watts 55; Brooks v. Miller, 1 Grant 202; Everhart v. West Chester and P. Railroad Co., 4 Casey 339; Charles River Bridge v. The Warren Bridge, 11 Pet. 420; Packer v. Sunbury and Erie Railroad Co., 7 Harris 211; Commonwealth v. Erie and N. E. Railroad Co., 3 Casey 339; Bank of Penna. v. Commonwealth, 7 Harris 144; Bank of Easton v. Commonwealth, 10 Barr 442; Commonwealth v. Chathams, 14 Wright 181; Ohio and Pa. Railroad Co. v. Vicary, 1 Am. Law Reg. 121; Reitenbaugh v. Chest. Val. Railroad Co., 9 Harris 101; R. Railroad Co. v. Gesner, 8 Id. 240.

The opinion of the court was delivered, January 7th 1867, by AGNEW, J.

The 1st assignment of error comprehends thirteen exceptions, which were all overruled by the court below. Most of them relate to the decision of the viewers upon the evidence and on the merits, and we are asked to consider them on the authority of Railroad Co. v. Heister, 8 Barr 445. That case really does not support the doctrine sought to be drawn from it. It admits the rule to be as set forth in Allison v. The Delaware and Schuylkill Canal Co., 5 Whart. 482, that this court cannot examine into the merits of the report of viewers, and places its interference on the refusal of the court below to interfere under mistaken views of its own power. The whole tone of the opinion shows that the case is exceptional, and is unfortunate in its tendency to mislead in its seizing upon matters for interference which numerous cases before and since have held as constituting no part of the record. It will be serviceable, therefore, to collect and collate the cases which prove the extent of the revisory power of this court, first stating the position of the case before us.

The charter of the Pennsylvania Railroad Company is contained in the Act of 13th April 1846, Pamph. L. 312, and its various supplements. The 12th section of this act and the 4th section of the supplement of 27th March 1848, Pamph. L. 274, confer the power of assessing the damages for property taken for the railroad upon viewers, whose report is made upon their own view, and is subject to the confirmation of the Court of Common Pleas. That court, therefore, holds a supervisory power over their proceedings, to see that they are regular and not contrary to law. It may set aside the report for gross errors or misconduct in the viewers, or for very gross inadequacy or excessiveness in the damages. But no appeal is given to this court and the judgment of the lower court is therefore final, except for errors or irregularities manifest upon the face of the record.

The power of the legislature to regulate the mode of assessing the damages in this way is clear. A railroad corporation is a creature of law, deriving its powers and privileges from the will of the legislature, and its charter is therefore the law of its birth and its growth. In taking private property for its road it exercises a part of the sovereign power of the state — that of eminent domain, which is uncontrolled by constitutional restriction, except that of making just compensation, the mode of ascertaining which is regulated by the law which gives the consent of the legislature to the taking. The corporation, itself the creature of the law, can therefore demand no trial or superior supervision withheld from it by the law. Indeed the right of trial by jury has never been held to belong to the citizen himself in proceedings by the state under her powers of eminent domain: McKinney v. Monongahela Nav. Co., 2 Harris 65.

The only supervision of this court in proceedings of this sort is that given by the general law conferring the authority to correct all and all manner of error of the justices, magistrates and courts of this Commonwealth in the process, proceedings, judgments and decrees, both in criminal and civil proceedings: Acts 22d April 1722, § 13, and 16th June 1836, § 1; Brightly's Purd. 1861, p. 928, pl. 19. If anything can be considered settled it is that the power under these acts is confined to those matters which appear upon the face of the record, so that neither upon a writ of error nor upon a certiorari will this court travel out of the record to take up the evidence, oral or written, or the unrecorded determination of any inferior tribunal, unless when legally brought up by a bill of exceptions tacked to the record. And the bill of exceptions itself lies only in the cases given by express statute. It therefore does not lie to the opinion of the Common Pleas in receiving or rejecting testimony on a motion for summary relief: Shortz v. Quigley, 1 Binn. 222. It will not lie to a decision upon the right of counsel to conclude to the jury: Robeson v. Whitesides, 16 S. & R. 320. But what is more to the purpose, in Bell v. Bell, 9 Watts 47, the statute of Westminster 2d, giving the bill of exceptions to any one impleaded, &c., does not extend to an inquiry of damages executed at the bar of the court. See also Clymer v. Thomas, 7 S. & R. 180.

What is properly brought up by a certiorari is so fully stated by Gibson, J., in Union Canal Co. v. Keiser, 7 Harris 137, it may be given in his own language. The proceeding related to the assessment of damages for diverting water from a mill. "Being here on certiorari" (he says), "we are not at liberty to rejudge the judgment of the inquest; nor, if we had the power, have we the lights proper to do so. The Statute of Westminster 2d gives a bill of exceptions only in a trial according to the course of the common law, and there is no other means of putting evidence on a record. The testimony of the witnesses at the hearing of the inquest is consequently not before us; nor would depositions at the hearing of the exceptions to the inquisition have been so. No lawyer ever heard of sending up evidence given to freeholders on a plaint under the Landlord and Tenant Act. Under what seal would such evidence come, or by whom would it be certified? A certiorari lies not to an inquest, but to a court which has cognisance of exceptions to its inquisition; and the regularity of the proceedings is all that is examinable on it. Exceptions to the merits of the inquisition being addressed as they are like a motion for a new trial to the discretion of the judge, are determinable by him exclusively; for we would be incompetent to judge how far he ought to have believed the witnesses. The legitimate business of a court of error is not the trial of facts."

The extent of the revisory power of this court upon a certiorari, had been before fully stated by the same judge, when Chief Justice, in The Commonwealth v. Nathans, 5 Barr 124, a case of wife desertion removed from the Quarter Sessions. It was there held to be confined to the correction of irregularity in the proceedings and of excess in jurisdiction. See also Commonwealth v. Nathans 2 Barr 144. The subject was again examined and fully discussed by Coulter, J., in Derry Overseers v. Brown, 1 Harris 390, a pauper case; and the same principle stated. These principles were applied to the following cases. The dissolution of a foreign attachment and discharge on bail: Mille...