Phil., W. & B. R. v. Chester City , 121 Pa. 44 ( 1888 )

Opinion,

Mr. Justice Green:

The act of March 25, 1873, P. L. 376, contains in the concluding clause of section 6, the following provision: “Such grants as aforesaid, when made and approved by ordinance of the mayor and council, shall be as valid and effectual to transfer the rights and privileges therein contracted for to the said railroad companies, or any of them, or any of their successors and assigns, as if made between individuals; and the mayor and council of the said city shall have power to enact ordinances from time to time as they may deem advisable and expedient for the purposes of this act.” The agreement of July 2,1874, between the city of Chester and the P. W. & B. R. Co. was duly approved by an ordinance of the city council on August 17, 1874, and, so far as it was in the power of these contracting parties to do so, they bound themselves to the just performance of all the terms of that contract. If the question now at issue arose out of a contract between individuals, there would not be a moment’s doubt as to its determination. As a matter of course, neither the parties, nor the legislature, nor the courts, could disregard the terms of the contract; nor could any rights acquired under it be defeated, taken away or impaired without the consent of the party affected. By necessary consequence it follows, that if the grants made by the city to the railroad company by the contract of July 2, 1874, were within the lawful power of the city under the act of 1873, the city is bound by them with the same effect in all respects as if it were an individual.

Does that act confer the power to make the contract of July 2,1874? If it does, there is an end of the discussion.

The act is special and local. It confers expressly certain powers upon the city of Chester to make certain grants to the Philadelphia, Wilmington & Baltimore Railroad Company. So far as the parties are concerned, and so far as the contracting power is concerned, and the quality or legal character of any actual exercise of that power, there is no kind of question. The one. solitary question in this case is, so far as this branch of it is concerned, whether the contract of July, 1874, was an exercise of the power conferred by the act of 1873. This involves an interpretation, of the act. Its terms are as follows : “ That the mayor and council of the city of Chester shall have power to grant to the Philadelphia. Wilmington & Baltimore Railroad Company, The Philadelphia & Baltimore Central Railroad Company, The Chester Creek Railroad Company, or any of them, or any of their successors or assigns, the use and occupation of the streets, lanes, courts, and alleys lying within three hundred feet of the said railroads, or any of them now opened or hereafter to be opened or established, to be used and occupied by the said railroad companies respectively, only so long as the said streets, lanes, courts and alleys shall remain open to public use and travel, and shall have the power to vacate any of the said streets, lanes, courts or alleys, concerning which no grant as aforesaid shall have been made.”

Referring now to the terms of the contract, we find that in consideration of the undertakings to be performed by the company, the city agrees that Pennell street shall be open to public use and travel between Third and Seventh streets, and that the grades of the street shall be fixed in accordance with the grades, lines and marks ordained by an ordinance approved May 19, 1874, entitled “ An ordinance directing the opening and grading of Pennell street and changing the grades thereon between Third and Seventh streets, the said grades being so established and fixed with the intent and purpose of having the said Pennell street cross the said railroad at such a height, not less than eighteen feet above the top of the ties of the said railroad, as will permit the free operation of the same under the said street and prevent the dangers of a crossing of said railroad by said street at level grade.” Then follows the stipulation of the company thus : “ And for and in consideration of the above recited contract and agreement of the said city and of the establishment of the said grades as defined in the said ordinance, and with the intent and purpose of preventing a level or grade crossing over the said railroad by the said street as aforesaid, the said The P. W. & B. R. Co. hereby contracts and agrees with the said city of Chester as follows: that is to say, to build over the said railroad where the said Pennell street crosses the same, at the grades herein-before recited, an iron bridge as before described and donate the said bridge with the appurtenances hereinafter enumerated to the said city.” Then follows a description of the manner in which the bridge shall be built.

In substance, this means that the street shall be opened and used at certain grade lines so fixed that the street shall be at an elevation of eighteen feet above the railroad and that the railroad shall be operated freely under the said street, and that a crossing of the railroad by the said street at grade shall be prevented. It means, also, that the railroad company shall so use the ground over which Pennell street would necessarily be laid, if it crossed the railroad at grade, as that such a crossing shall not be permitted, and hence that portion of Pennell street which would cross the railroad at grade is devoted to the exclusive use of the railroad. If Pennell street had then been laid out and opened, it cannot be questioned that the subsequent use of the street at the place of crossing, under the contract, would have been the use of a part of that street, and hence it would come within the very words of the power granted by the legislature to the city.

Whether the user of the street granted by the contract was longitudinal or transverse, is immaterial in considering the question of power, since the act which gives the power authorizes the city to grant “ the use and occupation of the streets etc., or any of them now opened or hereafter to be. opened or established,” without any limitation as to the extent or manner of the use. The use of the street crosswise its direction, or lengthwise, is of the same generic character, and, where it is exclusive, it is just as effectual if it be sixty feet as if it were six hundred.

But, more than this, the railroad company is to build that portion of Pennell street which crosses the railroad. The street at this point is to consist of abutments twenty-six feet long and a superstructure of iron “ twenty-four feet in width with wooden flooring and capable of carrying a load of one hundred pounds per square foot in addition to weight of structure.” This part of the street is to be constructed at the cost of the railroad company and donated to the city in consideration of the previous contract of the city, and the railroad company is prohibited from using any part of the street so as to constitute a grade crossing. In this sense also, therefore, the provision of the contract is a provision in regard to the use of the street; and, while it is negative in that it prohibits the use of the street, it is affirmative in that it grants the exclusive use of that portion of the street which would necessarily be used as a street if a grade crossing were established. Moreover the construction of the street at an elevation for purposes of use, with a prohibition against the use of a grade crossing, is so necessarily and fundamentally germane to the power conferred by the act to grant “ the use and occupation ” of the streets, that, if there were any doubt upon the subject, we would feel quite justified in holding it to be included by necessary implication in the general grant of power expressed in the act.

, We have no difficulty, however, in holding that the power exercised by the city in making the contract in question comes within the letter of the act, and hence the rights conferred by the contract upon the railroad company are inviolable. This ' view of the case renders unnecessary the consideration of the several matters discussed in the printed arguments. There is no question as to the performance by the railroad company of its part of the contract, and the question of the right of a municipality to grant away its control of the streets is foreign to the discussion. If there is a legislative grant of the power in controversy, to the municipality, it is only necessary to consider whether that power has been exercised. We hold that it has been in the present case, and by the express terms of the law the city is as completely bound by it as though it were an individual.

The decree of the court below is reversed at the cost of the appellees; and the record is remitted with direction that an injunction be awarded in conformity with the terms of the agreement of the parties under which this proceeding was commenced.