Commonwealth v. Philadelphia, Harrisburg & Pittsburg Railroad , 23 Pa. Super. 235 ( 1903 )

Opinion by

Rice, P. J.,

The act, entitled “ An act incorporating' the Miramar Iron Company,” purported to confer upon the company thereby incorporated “ all the rights, powers, privileges, franchises and immunities ” of the Caledonia Iron, Land & Railroad Company, and made it subject to the provisions and restrictions of the act incorporating the latter company and the several supplements thereto : Act of May 3, 1869, P. L. (1870) 1440. By appropriate corporate action, the authority for which is not disputed, the name of the Miramar Iron Company was changed in December, 1871, to Harrisburg & Potomac Railroad Company. In January, 1874, the latter company executed a mortgage to the Provident Life & Trust Company for $1,800,000 upon its railroad, real estate, corporate rights and franchises, and in July, 1890, pursuant to foreclosure proceedings, the trust company conveyed the same to A. A. McLeod. In the same year and month Mr. McLeod conveyed the railroad and other property to the Harrisburg & Shippensburg Railroad Company, a corporation formed by the persons for whom, and on whose account, they were purchased. In the meantime (June 3, 1889) the Harrisburg Terminal Railroad Company had been incorporated with authority to construct, maintain and operate a railroad from Bowmansdale, in Cumberland county, to Harrisburg, and by articles of consolidation and merger, dated in July, 1890, and duly filed in the office of the secretary of the commonwealth in August of the same year, these two companies, the Harrisburg & Shippensburg Railroad Company and the Harrisburg Terminal Railroad Company, were united to form the Philadelphia, Harrisburg & Pittsburg Railroad Company, the defendant in the present case.

It is thus seen that the defendant has succeeded to the “rights, powers, privileges, franchises and immunities” of the Miramar Iron Company, to determine which we are referred to the act, and supplements thereto, incorporating the Caledonia Iron, Land & Railroad Company.

Section 5 of the act incorporating the latter company (Act pf March 22, 1867, P. L. 542) authorised qnd empowered the company to take and hold, in fee simple or for any less estate or upon lease, lands and mineral rights not exceeding 16,000 acres at any one time; to mortgage, sell or lease the same; to manufacture and prepare for market lumber and other articles produced therefrom ; to mine and prepare for market coal, iron ore, limestone, fire clay and other minerals; to manufacture iron and fire brick; to transport all or any of said articles to market; and to do all such other acts, and to make all such improvements and erections as a successful promotion of said business would require. The 6th section of the act, which we quote in full, reads as follows: “ That it shall be lawful for said company to construct and operate a railroad, or railroads, with branches, from any part of their lands, to connect with the Caledonia & South Mountain Railroad, or its branches, or with any other railroad now, or hereafter to be built: Provided, That in the construction of the same, the said company shall have all the powers and privileges, and be subject to all the limitations and restrictions, of an act regulating railroad companies, approved nineteenth February, one thousand eight hundred and forty-nine, and the supplements thereto.” Some comment has been made on the fact that it was only in the “ construction ” of its railroad that the company was given the the powers and privileges specified in the act of 1849. But we need not stop to consider the effect of this language upon the question before us, because the provision was enlarged by subsequent legislation so as to include “ operation ” as well as “ construction,” as we shall show presently.

A supplement to the foregoing act declared that after organization the company might proceed to purchase lands for the purposes of the corporation, but could not purchase, lease or hold more than 4,000 additional acres of land under the act to which this was a supplement: Act of April 10, 1867, P. L. 1122.

A further supplement authorized the company to secure the bonds, which under the 8th section of the original act it was authorized to issue, by “ mortgages upon the railroad, railroad equipment, corporate franchises, real estate and all other property of every kind whatsoever, acquired or hereafter to be acquired by the said company: ” Act of February 20,1869, P. L. 230.

A still further supplement, passed in the same year, provided in its 2d section as follows: “ That in the construction and operation of its railroad or railroads, the said company shall enjoy all the rights, powers and privileges, and be subject to all the provisions and restrictions of an act regulating railroad companies,” (act of 1849) “and the several supplements thereto, except so far as they are altered, amended or supplied by the act to which this is a further supplement, and the several supplements thereto: Provided, That said company shall have all the rights, powers and privileges of a general transportation company, and may construct, maintain and operate a telegraph along its line of railroad; and the second proviso of the 18th section of said act regulating railroad companies, shall not apply to this company: ” Act of April 30, 1869, P. L. (1870,) 1439.

1. This recital, tedious though it be, of the legislation relative to the Caledonia Iron, Land & Railroad Company, is the best answer that we can make, and we think it a complete answer to the suggestion that no right to construct or operate a railroad was conferred upon the corporation except for the purpose of carrying the products of its own lands to market. The exclusion of the second proviso of the 18th section of the act of 1849 is significant. Taken in connection with what precedes it clearly indicates an intention to extend the provisions of the remaining portions of the section to this corporation, and to make its railroads, when completed, “ a public highway' for the conveyance of passengers, and the transportation of freight, subject to such rules and regulations, in relation to the same, .... as the president and directors may prescribe and direct.” See Act of February 19, 1849, section 18, P. L. 79. And to remove all doubt upon the point it was expressly declared, as we have seen, that the corporation should have “ all the rights, powers and privileges of a general transportation company.” True, its lands were made the terminus a quo, and if it had no lands from which the things mentioned in the 5th section could be produced and transported, it could build no railroad. This was the point actually decided in Warren and Franklin Railroad Co. v. Clarion Land &c. Co. 54 Pa. 28, as we understand that case. We have not overlooked that part of the opinion of Justice Read, in which, speaking of a section similar in terms to the 6th section of the act of 1867, above quoted, he said : “ The object of this section was to give them the means of carrying the coal, oil and other minerals mined from their lands, and their produce to a point from which they could reach a market. It was not to build a railroad independent of their own lands, for the mere accommodation of the public, and for the company’s pecuniary profit arising only- from general travel. If they had no lands they could build no railroad, and they could only build it from their own land to carry off its products,” etc. Two things are to be-noticed in determining whether that case rules the present. First, the railroad in that case had not been built, and, strictly speaking, the question as to whether the company would be restricted in its use, if built, to the transportation of the products of its own lands was not before the court. Second, after this decision was rendered, the powers of the Caledonia Iron, Land & Railroad Company were very much enlarged by the 2nd- section of the act of 1869, above quoted. The two cases are not parallel, and it would be a perversion of the case cited to treat it as binding authority for the proposition, that a corporation having the powers of the Caledonia Iron, Land & Railroad Company was restricted to the carriage of its own products to market, and, therefore, when it ceased to have such products to carry, its right to maintain and operate its railroad ceased. “ The construction which it is the duty of the court to put upon a grant like this, is indeed strict against the grantees. But no construction can be sharp enough to withhold what is clearly given : ” Black, J., in Cleveland, Painesville & Ashtabula R. R. Co. v. City of Erie, 27 Pa. 380, at p. 386. We do not deem it necessary to dwell longer upon this point.

2. But, say appellant’s counsel, the railroad originally built by the Harrisburg & Potomac Railroad, successor in name to the Miramar Iron Company, did not touch any of the company’s lands, and this is true. It appears, however, that in 1882 it was connected with the company’s lands by what is called the Cleversburg branch, that for a period of years ore taken from the company’s lands was transportated over it to the company’s furnace at Boiling Springs, that this branch is'still maintained but is used exclusively for the storage of cars. With the right to maintain and operate that portion of the main line lying west of the Cleversburg junction we have nothing to do in the present case. It is sufficient for present purposes to show that long prior to the finding of this indictment the company had extended the railroad, which crosses Mill street in the borough of Mt. Holly Springs, to its lands, and for a considerable period used the whole of the railroad thus extended for the purposes, special as well as general, contemplated in its charter. The company having thus complied literally with the terms of its charter as to the termini, it seems plain that its railroad cannot be declared a nuisance per se upon the ground that the part thereof, which it had constructed and operated prior to that time, did not have the company’s lands as one of its termini.

3. Much stress is laid by counsel for appellant upon the fact that the portion of the railroad known as the Cleversburg branch is not now used for the conveyance of passengers and the transportation of freight but is used exclusively for the storage of cars. We fail to see what bearing this fact can have upon the question whether the railroad at the crossing described in the indictment is a nuisance per se. As we have said, the company’s charter authorized it “ to construct and operate a railroad or railroads, with branches, from any part of their lands, to connect with the Caledonia and South Mountain railroad, or its branches, or with any other railroad now or hereafter to be built.” The company built such railroad and the tracks at the crossing in question are part of it. We have assumed that we have a right to inquire and determine whether the franchises claimed by the defendant are included in the legislative grants above referred to, but whether we have a right, in this form of proceeding, to adjudge such franchises to have been forfeited by reason of the use of one portion of the railroad, remote from the locus in quo, for the storage of cars, instead of the conveyance of passengers and the transportation of freight, is an entirely different question. We do not mean to intimate that this would be cause of forfeiture even in a direct proceeding. No part of the railroad between the termini named in the charter has been abandoned. The whole of it, including the Cleversburg branch, is being used for legitimate railroad purposes. But even if the objection to the present use of that portion of the railroad were more serious, we think it clear, both upon reason and authority, that it cannot be urged as a cause of forfeiture of the company’s franchises except in a direct proceeding instituted by the commonwealth for that purpose: Commonwealth v. Allegheny Bridge Co., 20 Pa. 185 ; Murphy v. Farmers’ Bank, 20 Pa. 415; Hinchman v. Phila. & West Chester Turnpike Co., 160 Pa. 150; West Phila. Pass. Railway Co. v. Phila. & West Chester Turnpike Co., 186 Pa. 459, at p. 467; Downingtown Gas & Water Co. v. Downingtown, 193 Pa. 255 ; Olyphant Sewage Co. v. Olyphant Boro., 196 Pa. 553. “The only evidence, competent to prove the forfeiture of a charter, is the judgment of a court directly on the point; and no inferior evidence can be admitted for that purpose, unless it is otherwise directed by the legislature in express and positive terms: ” Irvine v. Lumbermen’s Bank, 2 W. & S. 190. In the case of Hinchman v. Phila. & West Chester Turnpike Road, supra, Justice Green declared it to be the law, “that no charter to a corporation for a public purpose can be forfeited except by the commonwealth in a proceeding for that direct purpose.” This rule or principle applies with equal force to the appellant’s contention based on the delay in extending the railroad to the company’s lands.

4. Finally, upon this branch of the case the counsel for appellant attack the validity of the charter of the Miramar Iron Company upon the ground that the title of the act granting it does not conform to the requirements of the constitutional amendment of 1864. It is to be borne in mind that the act was passed at a time when special legislation was not forbidden by the constitution, and when it was permissible, and very common in legislative practice, to extend and confer the rights, powers and privileges granted by an act incorporating one company to another company, as was done in this case, without re-enacting and publishing at length the provisions of the former act. To adopt the language of Judge Black in the case heretofore cited, the objection under consideration “ goes not to the nature and essence and character of the law itself.” It is not asserted that the legislature had no jurisdiction of the subject-matter, or that the law interferes with any right made inviolable by the constitution, or that it conferred any right or franchise which the legislature had not power to confer, but merely that the legislature neglected to clearly express the subject of the act in the title. In short, the objection goes to the form of the title, not to the power of the legislature over the subject-matter of the act. Béfore entering upon a discussion of the.question whether the objection is well founded, it will be well to consider whether the validity of the incorporation of the Mira-mar Iron Company and of the charter thus granted to it can be attacked at this time and in this proceeding. We are of opinion that this latter question must be answered in the negative.

In the first place, it is distinctly alleged in the indictment that the defendant company is “ an existing corporation, duly chartered by the commonwealth of Pennsylvania.” In view of this admission it may well be questioned whether it was bound to prove that it is a corporation de jure as well as de facto, or to defend the validity of the successive legislative grants which go to make up its charter. It would seem that the second count of the indictment was drawn, not with a view to bring these matters into question, but only to raise the issue whether the maintenance and operation of a railroad at the locus in quo was within the scope of the powers thus conferred upon the company.

In the second place it appears from the evidence that the railroad in this place was built in 1872, or thereabouts, under what appeared, and was believed, to be the charter powers of the original company; that it was mortgaged in 1874 for $1,800,000, and pursuant to regular foreclosure proceedings was sold in 1890; that it was immediately reorganized by the purchasers in the mode prescribed by the statute under the name of the Harrisburg & Shippensburg Railroad Company; that it was consolidated with the Harrisburg Terminal Railroad in 1890, in good faith, and in accordance with the provisions of the general statute authorizing the consolidation of railroads, the corporation thus formed being the defendant in the present case; that the railroad forms a link connecting the Western Maryland & Baltimore & Ohio Railroad on the west with the Reading Railroad system on the east, over which at least forty trains pass daily; that the said railroad has cost several millions of dollars ; that a mortgage securing bonds to a large amount, which have been sold and are held by third parties, has been placed upon the property and franchises thus held and claimed by the defendant; and that the commonwealth has had knowledge of the construction of the railroad from 1874 to the present time through annual reports made, and the payment of taxes, to the state authorities, the tax paid on capital stock for the year prior to this indictment being $16,665. There is no controversy over these facts. .They are set forth still more fully in the opinion filed by the learned judge below overruling the motion for new trial. The doctrine, sometimes asserted, that laches is never imputable to the commonwealth is not without exceptions, as was clearly shown by Chief Justice Paxson in Commonwealth ex rel. Attorney General v. Bala & Bryn Mawr Turnpike Co., 153 Pa. 47. The similarity between that case and the present is apparent from the following quotation: “In the case in hand, were we to consider that the order of court amending the company’s charter was ineffectual ” (it was claimed that the court was without jurisdiction of the subject-matter of the order) “ as concerns the extension of its road, it yet clearly appears that said extension was made under a mistake and belief as to the company’s legal right, honestly entertained and based upon an order of one of the commonwealth’s courts, which order stands unreversed and unappealed from; that the company has made a large expenditure of money on the faith of this mistaken belief ; that the commonwealth knew, or ought to have known, and is chargeable with knowledge of this expenditure, and with knowledge of the company’s mistaken belief, and encouraged that expenditure by neglecting or abstaining from asserting the commonwealth’s rights.” It was upon these grounds that judgment was entered against the commonwealth in a direct proceeding by quo warranto. The authority of the case has been recognized in Pennsylvania Schuylkill Valley R. R. Co. v. Philadelphia & Reading R. R. Co., 160 Pa. 277, and by our own court in Wenger v. Rohrer, 3 Pa. Superior Ct. 596. In the present case the railroad was built and is being maintained under a franchise granted by the commonwealth, irregularly perhaps, but nevertheless a franchise which the legislature had a right to grant. Not only has the commonwealth, with knowledge of the facts, encouraged the expenditure of large sums of money by the company, and the giving of credit thereto by third persons, upon the faith of its grant, by neglecting and abstaining from asserting its supposed right to repudiate the act of its legislature, but it has positively and affirmatively recognized the right asserted by the defendant during a long period of years. The learned judge below thought that the principle upon which the Bala Turnpike case was decided would control the present case, and we are not prepared to hold the contrary. It would seem that a charter right, which has for its foundation a decree of a court, which had no jurisdiction of the subject-matter, is not more sacred than one which rests upon an act of the legislature which had power to grant it, but in doing so omitted to clearly express and define the powers of the company in the title of the act incorporating it.

But, in the third place, we need not, and do not, put our decision on the ground that the commonwealth is conclusively estopped. It may be safely rested upon the narrower ground that the validity of the defendant’s charter cannot now be inquired into by any one, except the commonwealth, nor by the commonwealth, except in a direct proceeding instituted for that purpose. This case grew out of a controversy between the defendant and the Carlisle & Mt. Holly Electric Railway Company, the history of which is set forth in the opinion of Justice Fell in Carlisle & Mt. Holly Railway Co. v. Philadelphia, Harrisburg & Pittsburg R. R. Co., 199 Pa. 532. After reciting some of the facts to which we have alluded, the court concluded: “ But it is wholly unnecessary to consider the extent of the charter powers of the defendant or the right of the plaintiff to inquire as to them. The railroad is now in place, and is a part of line of road over which more than fifty trains pass daily. It cannot be removed except at the suit of the commonwealth.” A few months after that decision was rendered the burgess of Mt. Holly Springs made the information upon which this indictment rests, and the Carlisle & Mt. Holly Railway Company, in return for the advantages which it expected to obtain through a determination of the questions it had unsuccessfully raised in the former proceedings, agreed to become responsible for the costs, if any should be placed upon the nominal prosecutor or the borough. As was said in Commonwealth v. Pittston Ferry Bridge Company, 176 Pa. 394, “ The case bears very strong indications of belonging to the class in which the name of the commonwealth is used not to enforce substantial rights in the public interest, but to assert a technical title for private ends.” But whilst it may-have been competent to show who was behind the prosecution, for the purpose of enabling the jury to determine who was the real prosecutor, it is urged, and we concede, that the motives of the real or nominal prosecutor are immaterial in the present inquiry, that is, on this appeal. Leaving the evidence upon that subject entirely out of view, and bearing in mind that it has been authoritatively decided that this railroad cannot be removed “ except at the suit of the commonwealth,” how does the case stand ? Under the undisputed facts is the commonwealth entitled to proceed in this way to accomplish that end, when to do so it must, in effect, deny the valid corporate existence of the defendant and one of its constituent companies ? The defendant is, to say the least, a de facto corporation (Freedland v. Penna. Central Ins. Co., 94 Pa. 504) and in maintaining and operating its railroad at the locus in quo it is asserting a right apparently within its charter powers, which, we reiterate, the legislature was not forbidden to confer, and the exercise of which interferes with no right made inviolable by the constitution. Assuming that, notwithstanding its laches, the commonwealth may, in an appropriate proceeding instituted by the attorney general for that purpose, put in issue the validity of the grant of those powers and of the corporate existence of the defendant, we are clearly of opinion that a criminal prosecution, which any citizen may institute, for doing the very thing which its charter apparently authorizes it to do, is not the proper mode to obtain an adjudication of that question. To adjudge that the railroad at the locus in quo is an unlawful obstruction of the highway, a common nuisance, because the Harrisburg & Potomac Railroad, which was originally the Miramar Iron Company, was not created by or under any valid law of this commonwealth, and was never constitutionally invested with any franchises, whatever, and, therefore, none passed to the purchasers at the foreclosure sale, is to imply as well that the Harrisburg & Shippensburg Railroad Company was organized without authority of law, and never had a valid corporate existence, and to imply further, that its consolidation with the Harrisburg Terminal Railroad Company to form the Philadelphia, Harrisburg & Pittsburg Railroad Company was equally unauthorized by law. If we are right in our construction of the statutes under which the railroad was built and is being maintained, the commonwealth could not obtain a conviction upon the second count of the indictment without first establishing all of these things. But, not only are these matters excluded from the issue by the admission contained in the indictment, but it is well within the principle of the Bala Turnpike case to say that tire commonwealth is precluded by its laches and positive acts- from going into that inquiry .in this case. Whatever may be the rights of the commonwealth, the right to treat the act of the defendant in maintaining and operating a railroad at this crossing as criminal and punishable by fine is not one of them. The court 'was clearly right in instructing the jury that there could be no conviction on the second count of the indictment.

5. Section 12, of the act of 1849, requires that, whenever it shall be necessary to cross any established road or way, the railroad shall be so constructed “as not to impede the passage or transportation of persons or property along the same.” It appears that in 1881 the company put in a second track, within the limits of its right of way, which necessitated the remaking of the approach on the south side. In doing this the width of the highway, which could be traveled, was somewhat narrowed, but whether to such an extent as to impede travel is' not absolutely free from doubt. We can conceive of cases where, there being no conflict of evidence as to the facts, it would be the duty of the court to declare as matter of law that the construction of such approach in such manner as to narrow the traveled way, even to a slight extent, would be in contravention of the statute. But we are not convinced that this can be laid down as a rigid and unvarying rule of law applicable as well to a country road, upon which there is comparatively little travel, as to a crowded street of a great city. This distinction has been recognized in analogous cases. See Monongahela City v. Fischer, 111 Pa. 9, and Commonwealth v. Shoemaker, 14 Pa. Superior Ct. 194, at p. 205. The question is, is travel upon the highway unnecessarily impeded ? A jury of the vicinage is quite as able and quite as likely to determine that question according to truth and justice as any other tribunal, and ordinarily, where it arises in a criminal prosecution, if should be submitted to them, as was done in the present case. The jury upon a consideration of all the circumstances as disclosed by the evidence, aided by a view of the crossing, decided the question in the negative. We are not required to say, that this is the only verdict that was warranted by the evidence, or that we would determine the question of fact in the same way, if it were our duty to decide it. All that we decide or are called upon to decide is that, under the evidence, the question was properly submitted to the jury.

6. Some of us were inclined to think upon the argument that the portion of the charge, which is the subject of the fifteenth assignment of error, might be construed to mean, although not so intended by the learned trial judge, that there can be no conviction, on an indictment for maintaining a nuisance which had been abated prior to the date of the information, a general proposition that we are not to be understood as assenting to. But a more careful examination of the evidence has convinced all of us that, if there was a technical error in this part of the charge, it was harmless. In overruling the motion for new trial the learned judge showed that “ the crossing was probably in worse condition on January 11, than at any previous time.” At any rate, it is perfectly accurate to say, that the condition of the crossing complained of in the first count of the indictment, which was occasioned by the reconstruction of the approach, appears from the commonwealth’s evidence not to have been improved at the date of the information but was as bad then as at any previous time. Under the commonwealth’s own showing, and the defendant’s as well, a finding that the condition complained of was in fact a nuisance prior to January 11, the date of the information, but was not so on that date, would have been unwarranted. The commonwealth was not harmed by having the attention of the jury directed to that date ; and it is too well settled to require citation of authorities that an error which did the appellant no harm is not ground for reversal.

7. The objection to the map made by -Mr. McGowan, the commonwealth’s engineer, was that the vertical scale to which it was drawn was forty feet to the inch, and the horizontal scale four feet to the inch. It was so drawn, said the witness, “ to make mope distinct the irregularities of the surface; if could not be done on a smaller scale; a smaller scale horizontally and a larger scale vertically.” Probably the jury would not have been misled if it had been sent out with them with proper explanation. Admittedly, however, it was not an exact representation of the height of the embankment at the crossing as compared with its length. Whether such a map should be sent out with the jury must, to some extent, be left to the sound discretion of the trial judge. We cannot say that it was improperly and injuriously exercised in the present case, especially as the witness was permitted to use the map and to exhibit it to the jury in explanation of his testimony, and the jury were sent to view the crossing.

All the assignments of error are overruled and the judgment is affirmed.