Union Passenger Railway Co. v. City of Philadelphia , 83 Pa. 429 ( 1877 )

The judgment of the Supreme Court was entered, February 12th 1877,

Per Curiam.

— When the case of the Frankford Passenger Railway Co. v. Philadelphia, 8 P. F. Smith 119, was before this court, the power of the city to collect a license-fee was necessarily found in the exercise of the police power, and under the provisions of the Act of 15th April 1850, for “the regulation of omnibuses or vehicles in the nature thereof,” for the reason that then no express power had been conferred by law to impose a tax directly upon the cars of the company. This power, however, has been supplied by the Act of 11th April 1868, Pamph. L. 849, enacting “ that the several passenger railway corporations in the city of Philadelphia shall pay annually to the said city, in the month of January, the sum of fifty dollars, as required by their charters, for each car intended to be run over their roads during the year, and they shall not be obliged to pay any larger sum.” Stress is Mid on the words “as required by their charters,” as if the obligation was to be contained therein, to pay fifty dollars. That this was not the meaning of the law is obvious, for if it were a charter obligation to pay this sum the law would be unnecessary. Its reference was clearly to the duty to pay, not to the sum to be paid. These charters require obedience to the lawful ordinances of the city, under its municipal powers. This is rendered evident by the remainder of the section of the law just quoted, which as a set-off to or consideration for the payment-of the fifty dollars tax, took away from the city all power, by ordinance or otherwise, to regulate passenger railways, unless authorized by the express terms of laws referring directly to these corporations. It appears that in each year previous to the year 1875, the defendants paid to the city the sum of fifty dollars for each car run during the year. Now as this was not done under protest, or in any other way reserving the right of the company to object to the Act of 1868, it is a legal conclusion that this company accepted of that act in order to obtain the benefit of the legislation that forbade the city from making regulations affecting it unless authorized by a law referring in express terms to these railway corporations. This puts an end to all controversy as to the power of the legislature to pass the Act of 1868. But we áre not even disposed to regard that act as unconstitutional. We do not think the terms of the charter which provided for the payment of such a license-fee of thirty dollars as was then paid by other passenger railway companies in this city, negatives all right of the Commonwealth to impose the tax of fifty dollars contained in the Act of 1868. The right of the state to impose such a tax, rate, or imposition in future, cannot be taken away by-a mere implication arising from a direction to pay a certain sum. To fetter her power to levy moneys for public purposes, it needs a plainer negation of her own power. There might be indications of this intention found in other provisions sufficient with the direction to pay, taken together as a whole, to establish a relinquishment of the power, but this must be plain, when it is sought to establish disability to exercise one of the great functions of government. We therefore regard the 10th section of the charter as conferring an authority only upon the city to receive, and imposing an obligation on the company to pay this sum, hut not as a contract on part of the Commonwealth for the relinquishment of her own power to impose a future burthen.

. And if this be not so, still we think the amendment to the Constitution of 1857 subordinates charters of incorporation thereafter granted to the power to make alterations therein, provided no injustice be done the corporators. Now, a general law, such as the Act of 1868, which imposed the duty on_all these corporations in this city alike, to pay a reasonable sum of money as a tax or rate for the use of the city, whose streets are used by these companies in such a manner as to be often detrimental to their use by the citizens, cannot be said to be injurious to the corporators. In the use of the public streets the balance of convenience over inconvenience is undoubtedly in favor of these railways, else they would not be allowed. Nevertheless, there is a counter weight of inconvenience very serious to the citizens in the use of vehicles, the delivery of heavy articles and portage of goods in narrow streets, which must be taken into account, while the profit taken by the stockholders for the use of these railways is often great, and forms a consideration for reasonable burthens.

Upon the whole case, we think the judgment of the court below was right, and must be affirmed. Judgment affirmed.