Moers v. City of Reading , 21 Pa. 188 ( 1853 )

The opinion of the Court, filed was delivered by

Black, C. J.

— By an act of the legislature, passed April 5,1853, supplemental to the charter of the Lebanon Yalley Railroad Company, that corporation was authorized to increase its capital, to borrow money, to construct a branch, and to pay interest to its stockholders until the work was finished. The same act provided that the corporate or constituted authorities of Reading city, Lebanon county, and Lebanon borough, might subscribe for shares in the stock of the company. It was further provided that in case the constituted authorities of the city, borough, or county aforesaid should propose to make such subscription, they should fix upon, and give notice of a time for holding a public election, at which the people might vote for or against the subscription, which should be valid if a majority was for it, and otherwise should not be made. On the 10th of May last, the select and common councils of Reading met in joint session, and by a joint vote adopted a resolution, that an election should be held on the 15th of June, “ to decide for or against a municipal subscription of two hundred thousand dollars.” The election was had, and resulted in favor of the measure by a majority of more than two to one. This bill is brought to restrain the corporate authorities from making the subscription.

The injunction is claimed on four different grounds, which may be stated as follows : 1. All laws authorizing subscriptions by municipal bodies to the stock of railroad companies, are unconstitutional and void. 2. This particular act is void, because it extends the charter of more than one corporation. 3. The act is void, for the further reason that it delegates legislative power to the people of Reading. 4. Supposing the law to be in itself constitutional and valid, it has not been properly complied with by the corporate authorities, inasmuch as they did not propose to subscribe before the election of the people was ordered. I shall consider these points in their order.

I. The first one has been already decided in the case of Sharp-less v. Philadelphia. However easy it may be to demonstrate that public debts ought not to be created for the benefit of private corporations, and that such a system of making improvements is impolitic, dangerous, and contrary to the principles of a sound public morality, we can find nothing in the constitution on which we can rest our consciences in saying that it is forbidden by that instrument.

II. The constitution, in sect. 25 of art. 1, provides that “ no corporate body shall be hereafter created,, renewed, or extended with hanking or discounting privileges, without six months’ previous notice of the intended application for the same, in such manner as shall be prescribed by law. Nor shall any charter, for the purpose aforesaid, be granted for a longer period than twenty years, and every such charter shall contain a clause reserving to the legislature the power to alter, revoke, or annul the same, whenever in their opinion it may be injurious to the citizens of the Commonwealth, in such manner, however, that no injustice shall be done to the corporators. No law, hereafter enacted, shall create, renew, or extend the charter of more than one corporation.” It is insisted that the last clause of this section is violated by the lawr before us, inasmuch as it extends the charters of the railroad company and of the city of Reading, as well as those of the county and borough of Lebanon.

The object of this section seems to have been a restraint upon the chartering of banks. Whether it can be made to cover the ease of other private corporations, is a question which need not now be determined. But there is not the least reason to believe that public political corporations were in the minds of the convention when the amendment was agreed on, or thought of by the people when they adopted it. It was meant to meet a well-known evil, much discussed at the time, as well as before and since, and not to prevent what nobody ever thought to be wrong. Qui hceret in litera hceret in cortice is a maxim in the interpretation of all laws, the fundamental law among others. The constitution is entitled, like other instruments, to a construction, as nearly as may be, in accordance with the intent of its makers.

Again: it is very far from being clear, that increasing the privileges of corporations, or assigning new duties to them, is an extension of the charter, within the meaning of the constitution. If it be, and i'f all corporations are included within this prohibition, then no law could be passed authorizing two railroad companies to connect their works, or two counties to make a contract with one another, even though. it should be to compromise a dispute; because these are powers which in their nature could not be given to, nor executed by one alone. What is still worse, a general law would be unconstitutional if it gave new privileges to a whole class of corporations. Is this Court expected to decide, that when the legislature desire to add to the public functions of supervisors, they must pass a separate bill for every township in the state ? Or that the many general laws already passed relating to improvement companies are unconstitutional, and everything done under them void? We must keep clear of these absurdities, if we can do so, without allowing the constitutional injunction to be disregarded. Let us see, therefore, if we cannot satisfy the words in another way.

To create a charter, is to make one which never existed before. To renew a charter, is to give a new existence to one which has been forfeited, or which has lost its vitality by lapse of time. To extend a charter, is to give one which now exists greater or longer time to operate in than that to which it was originally limited. I do not say that these words have no other meaning in the English language. They are not entirely free from ambiguity. Their signification, like that of other words, must depend much on the context. But the definitions here given are consistent with the sense in which they are, if not always, at least very often used, both in popular and legal phraseology; and to understand them so here is no violation of the “jus et norma loquendi.” It is fair to suppose that they are not used in the first sentence of the section with a different meaning from that which they are intended to express in the last. What, then, do they mean' in the first ? The language is, “No corporate body shall be hereafter created, renewed, or extended.” Though an increase of privileges might be, in some sense, extending a eliarter, it can hardly be said that a corporate body is extended in any other way than by prolonging its entire existence.

This construction is not unsupported by authority. It has not, indeed, received the direct sanction of any express judicial decision. But the legislature, with many members of the convention in it, has always acted upon this interpretation. And this has been done with the silent acquiescence of all the people, including the legal profession and the judiciary. The defendants’ counsel has produced us a list of two hundred and seventy-nine acts of Assembly, passed only within the last four years, creating one, and enlarging the powers of another corporation, or enlarging the powers of two corporations, both municipal and private. Some thousands of such laws have probably been passed since 1838. If we now declare them to be unconstitutional, and sweep away at once all the rights, publib and private, which have been acquired under them, we must do an amount of mischief which no man’s arithmetic can calculate. This is a proper element of legal judgment on such a subject. We are not to overlook the practice of the legislature, or disregard the consequences of doing so. The law questioned in Norris v. Clymer (2 Barr 277), was sustained by this Court principally because there had been many laws like it, and l’ights had grown up under them which it would be mischievous to annihilate. And the Supreme Court of the United States have declared (11 Peters 257), that the uniform exercise of an important power almost without question is no unsatisfactory evidence that the power is rightfully exercised.

III. It is argued that this is not an exertion of legislative power by the assembly, but a mere delegation of it to the people of Reading. We cannot see it in that light. Half the statutes on our books are in the alternative, depending on the discretion of some person or persons to whom is confided the duty of determining whether the proper occasion exists for executing them. But it cannot be said that the exercise of such a discretion is the making of the law. New privileges, conferred on a public corporation, need not be absolute and peremptory, so as to force them on the members against their consent. When individuals or corporators are merely authorized to do a thing, the doing of it necessarily depends on their own will; and we can see no reason why the acceptance of a new power, tendered to a public corporation, may not be made to depend on the will of the people when it is expressed by themselves, as well as when it is spoken by the mouths of their officers and agents.

The case of Parker v. The Commonwealth (6 Barr 507), has been cited, and much ingenuity has been expended in the effort to make the principle there decided cover the facts which exist here. I do not propose to discuss it. In the case of the Cin., Wilm., & Zanesville R. R. Co. v. The Commissioners of Clinton County, very recently decided by the Supreme Court of Ohio, and not yet regularly reported, all the authorities which bear on the point, our own among them, are very carefully and ably reviewed. The opinion of the Court contains a full and convincing refutation of the plaintiffs’ argument here. When that case and the case of Slack v. The Maysville & Lexington R. R. Co., determined by the Supreme Court of Kentucky, shall come to be in the books, they will leave but little more to be expected or desired on the subject.

But there is one view not distinctly taken by either of those courts, which I will add, because it strikes me as very conclusive.

When the city was chartered, the legislature' had a right to prescribe, and did prescribe, how its municipal affairs should be administered. They ordained that this should be done by two bodies called the Select and Common Councils. But they had the power to give it a very different organization. They could have made its government as purely democratic as that of Athens, requiring the people in their primary capacity to decide every question for themselves. Having this power at first, and there being nothing to forbid an alteration in the charter of a city, they could afterwards change it so as to increase the power of the people, and diminish that of the councils. This, in point of fact, is all that has been done. The law of 1853 is but an amendment of the charter, and declares that with reference to this affair of a railroad subscription the city shall be governed, not by the councils alone, but by the councils and the people together.

IV. There is another objection to this subscription, which, though comparatively unimportant as a general principle, is much more serious than any of the rest in its effect on this case. The law says that in case the constituted authorities shall propose to subscribe, it shall be their duty to fix upon a time for holding an election, &c. I am of opinion that this made it the duty of the councils to meet separately, to deliberate on the question, and to decide it, before ordering an election — that the people had no more than a veto on the decision of the councils — and that an election before a formal proposal by the con'stituted authorities is void. Of this opinion also is Mr. Justice Lowrie. But the three other judges think differently. There is therefore no point in the cause on which a majority is willing to decree an injunction. Such a decree cannot be made either on the first or fourth without basing it on a foundation which the Court decide to be illegal.

The motion for a special injunction is refused.

Lewis, J., and Lowrie, J., dissented.