Commonwealth v. Erie & North-East Railroad

The opinion of the court was delivered,

by Black, C. J.

This case requires us to give a construction' to the charter of a private corporation. The frequency of such cases excites some surprise, when we reflect that an act of incorporation is and always must be interpreted by a rule so simple, that no man, whether lawyer or layman, can misunderstand or misapply it. That which a company is authorized to do by its act of incorporation, it may do; beyond that all its acts are illegal. And the power must be given in plain words or by necessary implication. All powers not given in this direct and unmistakeable manner are withheld. It is strange that the attorney-general, or anybody else, should complain against a company that keeps itself within bounds, which are always thus clearly marked, and equally strange that a company which has happened to transgress them should come before us with the faintest hope of being sustained. In such cases, ingenuity has nothing to work with, since nothing can be either proved or disproved by logic or inferential reasoning. If you assert that a corporation had- certain privileges, show us the words of the legislature conferring them. Failing in this,, you must give up your claim, for nothing else can possibly avail you. A doubtful charter does not exist; because whatever is doubtful, is decisively certain against the corporation.

If loss or injury comes to anybody in consequence of an ignorant disregard of this principle, it is not our fault. We have done all that in us lay to impress it on the public mind, and to warn corporations of the danger they might incur by disobedience. We enforced it to the utmost in The Bank of Pennsylvania v. The Commonwealth, Susquehanna Railroad Company v. Sunbury and Erie Railroad Company, The Pennsylvania Railroad Company v. Canal Commissioners, The Commonwealth v. The Franklin Canal Company, and in several other cases. All of our predecessors on this bench occupied the same ground. The doctrine is maintained *352 by the Supreme Court of the United States, and in many states of the Union. Even in England, the justice and necessity of.it are universally acknowledged and acted upon. But we do not mean to discuss the subject over again. The lawyer who is not already familiar with the numerous authorities upon it, to be found in every book of reports, will probably never become so; and the citizen who does not believe it to be a most salutary feature in our jurisprudence, would hardly be convinced though one rose from the dead.

Our duty in this ease is, therefore, not a difficult one. If the words of the defendants’ charter, understood in their ordinary sense, cover the acts complained of; or if there be a necessary implication of the power to do those acts, and nothing to forbid them, then this bill must be dismissed. But the defendants can take nothing at our hands by construction. We cannot widen the limits set to their privileges, because they have found them inconveniently narrow. We have no more right or authority to stretch an old act of incorporation than we have to make a new one. In either case, we would be usurping legislative power, and granting away from the state privileges which she has seen proper to withhold.

The bill complains — 1st, That the Western terminus of the defendants’ railroad is not where the act of incorporation requires it to be. 2d, That it is so constructed as to impede and obstruct the free use of certain streets in the city of Erie. 3d, That it also obstructs and impedes the free use of a public road laid out from Erie in the direction of Buffalo ; and 4th, That the defendants have made a contract by which they have surrendered the control of their road to a foreign corporation.

I. The act of incorporation authorizes the defendants to build a railroad ufrom the borough of Erie to some point on the east boundary of the township of North-East.” The defendants’ counsel insist that the word from should be taken inclusively, and that a road from any part of the borough to the proposed terminus ad quern is a compliance with the law. On the other hand, the counsel for the plaintiff insist that it must begin at the borough line, and not elsewhere. Our opinion is with the defendants on this point, but we think the argument on it was rather beside the purpose, since the terminus of the railroad is neither at the line of the borough nor inside of it. Coming from the east, it passes the east boundary of the borough at a distance of sixty rods south, and runs on about-rods further, in a direction precisely parallel with the south line of the borough, and there stops or connects with the road built by the Franklin Canal Company to the Ohio line. Certainly this is not a literal compliance with the act of incorporation. Making a road from a point selected by the defendants themselves sixty rods south of the borough, not coming *353 within that distance of the borough at any place, is not making a road from the borough eastward. Is there anything in the peculiar circumstances of this case which will justify us in treating this infraction of the law otherwise than as we treat similar violations of duty when committed by companies ? We shall see.

What I have said concerning the borough of Erie, refers to what it was when the act of incorporation was passed. In 1848, and before the defendants’ work was made, its limits were extended so as to include the place where the terminus of the railroad had been fixed. At a still later period, the borough was incorporated as a city. But we are very clear that this alteration of the borough lines did not in the least change the rights or obligations of the railroad company. All laws must be executed according to the sense and meaning which they imported at the time of their passage. A line which did not exist until 1848, could not have been in the mind of the legislature in 1842. The modifications made in the charter of the borough left the defendants’ charter just where it was before. The amendment of one is not to be taken as a supplement to the other. If “ the east boundary line of North-East township” had been shortened or obliterated, or differently named by an Act of Assembly passed in 1848, the defendants would have understood very well that their right to locate the eastern terminus on any part of the township line as it existed in 1842, was not thereby altered or taken away. The law commanded the defendants to begin their railroad at the borough of Erie as it then was, and that command is in full force notwithstanding the change which has been made in other matters.

Is this violation of the charter so trifling that we can overlook it on the principle of de minimis ? The counsel of the company have not argued that it is — and certainly it is not. The place at which the terminus should be established being precisely and particularly designated by the act of incorporation, in words which rendered mistake impossible, all other places, whether near or far, are as surely excluded as if they had been expressly forbidden. If we cannot hold companies to a strict compliance with their charters, we cannot hold them at all. In some situations (and, for aught we can see, this may be one of them), the purpose and object of allowing the road to be built can be as completely defeated by a deviation of sixty rods as sixty miles. The directors must have thought that they could gain a point of great value to them by changing their terminus, or else they certainly would not have ventured upon it in the teeth of the law. And they must have been conscious, too, that the legislature had some important reason for confining them to the borough, or else they would have sought and got an amendment to their charter. This railroad was probably intended as an outlet to New York for the lake trade of Erie. It could not have been meant as a link in the connexion between *354 Buffalo and Cleveland, for there was not then any authority given to this company or any other to build a road westward from Erie to or towards the Ohio line. Its actual location puts it beyond the reach of the lake trade, being one hundred and ten feet above and three-quarters of a mile distant from the harbour. It connects itself there with a road to Ohio built in violation of law, and by a fraud which has already received its condemnation. By this means it has become part of a continuous line from New York to the West, carrying goods and passengers not to the borough of Erie, but quite around and past it. I mention this merely as showing that the general scope of the law, as well as its literal words, has been disregarded. It is suggested, however, as a mere probability. We do not know nor care what the purpose of the state may have been. But one thing we do know — and that is enough —that the board of directors had no right’ to substitute their will for the plain requirement of the law. If the fair interests of the stockholders, — if the accommodation of the neighbouring people,— if a due regard for the commerce of the whole country, — if a magnanimous liberality to the citizens of adjoining states, — if these considerations, or any one of them, required an amendment of the charter, the managers should have asked the proper authority of the government to make it. Assuredly there is no legislative body on the face of the earth to whom such an appeal, if well grounded, could be made with more certainty of success than to the General Assembly of'this state.

II. The right of the supreme legislative power to authorize the building of a railroad on a street or other public highway is not now to be doubted. It has been settled not only in England (1 Barn. & Ad. 30), but in Massachusetts (23 Pick. 328), New York (7 Barb. 509), and in Pennsylvania (6 Whart. 43). If such conversion of a public street to purposes for which it was not originally designed, does operate severely upon a portion of the people, the injury must be borne for the sake of the far greater good which results to the public from the cheap, easy, and rapid conveyance of persons and property by railway. The commerce of a nation must not be stopped or impeded for the convenience of a neighbourhood. But we can say this only in cases where the authority has been given by the sovereign power of the state. That any private individual or incorporated company, not empowered to do so by an act of the legislature, can take possession of a street and make a railroad upon it without being guilty of a criminal offence, is a proposition which I am sure no lawyer would dream of making. The right of a company, therefore, to build a railroad on the street of a city, depends, like the lawfulness of all its other acts, upon the terms of its charter. Of course, when the power is given in express words, there can be no dispute about it. It may also be given by implication; for instance, if a company be authorized to *355 make a railroad, by a straight line, between two designated points, this implies the right to run upon, along, or across all the streets ©r roads which lie in the course of such line. So also when an act of incorporation directs a road to be made between certain termini, by such route as the grantees of the privilege shall think best, it may be located on an intervening street or other common highway, if in the judgment of the directors it be necessary or expedient to do so. But when an act of incorporation authorizes the making of a railroad which it is not possible to make without using the streets of a town for part of it, still such streets cannot be so used if the same act of incorporation forbids it. If the powers given to the corporators cannot be executed rvithout disregarding the restrictions with which they are coupled, they cannot be executed at all. In a private deed, an exception as large as the grant, is void because private deeds are construed most strongly against the grantor. But a grant of privileges by the state, to a body of adventurers, must be construed precisely the other way — 1 in favour of the public and against the grantees. A prohibition, exception, or reservation in a charter, must therefore stand in full force, though it destroy or make nugatory all the powers given to the company.

The act of incorporation now before us, contains the following very emphatic clause: “ The said railroad shall be so constructed a-s not to obstruct or impede the free use of any public road, street, lane, or bridge, now laid out, opened, or built, or to interfere with any burial-ground, dwelling-house, or building without the consent of the owner.” It would certainly strike most men upon the first look, that a railroad company with such a provision in its charter is on dangerous ground when it takes possession of a street. It is not at all easy to understand how the people of a city can have the use of a street free from obstructions and impediments, when the street is of ordinary width, and has two railroad tracks upon it, along which locomotive engines, with trains of cars, are running every five minutes of the day. Nor is it by any means impossible, that in this case the legislature intended to exclude the company altogether from the streets, even at the risk of having no railroad made; for the desire to preserve to the people of Erie and its neighbourhood the free use of their streets and roads, may have been stronger than the wish to establish a railway communication for them with New York.

An obstruction is anything set in the way, whether it totally closes the passage or only hinders and retards progress. A road may be obstructed more or less. The word impediment is almost synonymous with obstruction, except that it is seldom, if ever, used to signify an entire blocking up of the way. It is an obstacle — not an impassable barrier. To understand these words in their ordinary import, and then say that a railroad is not per se an obstrue *356 tion or impediment to the free use of a street by the public, is rather more than I can do. But perhaps it is not quite safe to interpret them according to their popular sense. Certain it is that they have sometimes been otherwise used in Acts of Assembly. A law of Massachusetts provides, that “ if any railroad shall be so laid out as to cross any turnpike or other way, it shall be so made as not to obstruct such turnpike or way.” It was decided (23 Pick. 226), that this did not prevent all interference with the road, but required only that it should cause the least possible inconvenience or impediment. By a statute of this state, enacted in 1803, the owners of lands adjoining navigable streams were permitted to build dams, provided that such dams should “ not obstruct or impede the navigation of such streams, or prevent the fish from passing up the same.” This court (4 Watts 440) declared, that if these words were taken literally, the owners could not avail themselves of the privilege at all; but as this construction would have been contrary to the grant itself, a more liberal one was adopted, and a dam which did not materially hinder the navigation was held not to be within the prohibition. Although the reasoning of these cases does not altogether fit the one before us, they are entitled to much weight. They are decisive, indeed, of one thing which is important, namely: that the words in question may sometimes have a legal signification different from that which we would otherwise have been disposed to assign them. Eor the sake of consistency we must follow in the steps of those who went before us, though it be true that the track is not very clearly marked.

Let it then be conceded as a possible thing, that a railroad can be so constructed on a public street that it will not be an obstruction to its free use; that such railroad is not in any sense a nuisance per se ; that a street may be occupied in common by a railroad and the public without any such inconvenience to the latter as will amount to an impediment, or abridge the freedom of its use for ordinary purposes: still it is not true (as the converse of the argument would make it) that the street is unobstructed as long as travel upon it is not entirely prevented. If it be proved that a man may squeeze himself along beside the track, or dodge across at the peril of his life, it does not follow that the use of the street is free, unobstructed, and unimpeded. We hold, therefore, that under a charter like this, a railroad cannot be built on a street in such a manner as to cause any material obstruction. If we assume, as we do, that the clause under consideration does not entirely forbid the company from going on any street, we must also allow them to create such impediments as cannot be avoided. But those which are not absolutely necessary to the making and using of the railroad, are unlawful; for managers are bound to leave the street as nearly free from obstructions as they can, and for that purpose to spare no reasonable expenditure of money or *357 labour. If, for instance, the railroad be made above the level of the street, they must grade the rest of the street also, if that will make it better for the public accommodation. They cannot say to the city authorities, We have destroyed your street, and rendered it impassable; but we have not impeded its free use, because you can restore it again to a tolerable condition, at your own expense. Neither does it make any difference whether it be a main thoroughfare or an unimportant by-street, for this act of incorporation protects all alike.

We have attentively considered the bill, answer, and evidence in the cause, and they satisfy us of the following facts: 1. A considerable portion of one street within the present limits of Erie city is occupied almost entirely by the railroad in a manner which makes any considerable use of it for other purposes almost impossible ; and this is true, although the defendants themselves say that the street might be safely and conveniently used if it were properly graded — a duty which they left unperformed. 2. Two streets are crossed by the railroad on bridges, which are too low and too narrow for large wagons passing one another, or for a single wagon with a bulky load. 3. Two other streets are crossed on an embankment, considerably above grade, with a ditch on each side, and thus all passage along those streets, by any kind of vehicle, is as completely stopped as it could be by a stone wall twenty feet high. All these things are illegal, for the reasons given. That some of these streets are on low, wet ground, and little used, might be a sort of apology for the defendants, if we were sitting here to take excuses for the violation of the law. But that is no part of our duty.

A large part of the evidence refers to the danger encountered by persons obliged to cross the railroad when trains were approaching, and the delay and inconvenience caused by ears, which totally blocked up the crossing places. If the defendants have a right to make the road on a street, they have also the right to use it when made. They may carry all the freight and passengers they can get. If the number of cars and locomotives necessary to do their business be so great as sometimes to choke the thoroughfares over which they pass, it must be remembered that the same thing would happen in a much greater degree, if the twentieth part of the business were done in carriages, coaches, and common road wagons. If the cars are suffered to stand for an unnecessary length of time, at places inconvenient to the public, the act is indictable as a nuisance, and for any want of proper care, the defendants are liable in damages to the persons injured by it. But it cannot be said that they have violated their charter in causing obstructions of this kind, unless such obstructions could have been prevented or diminished by a different construction of the road.

*358 Under other circumstances, the voluminous body of evidence laid before us might require a much more extended discussion. But we are content with the compendious reference we have liiade to it, because every inch of this railroad which lies upon any street of the city is unlawful, at all events. If the defendants had begun their railroad at the place designated in their act of incorporation, they would not have interfered with any of the streets mentioned in the bill, except Ash Lane, and that-would have been crossed at a different place. When a railroad authorized to be made at one place is made at another, it is a mere nuisance on every highway it touches in its illegal course. The streets in question, not being on any route which the defendants were authorized to take, they are on them in disobedience of their charter, and all they have done there is without the shadow of authority. It is useless, therefore, to inquire how much of the inconvenience complained of might have been avoided by a better construction. It is enough to say that the railroad has no business at all to be where it is.

It appears that the city authorities gave their consent to the use of the streets, and to the location of the railroad on the ground which it now occupies. This privilege was given “ so far as the mayor and councils have legal power in the premises,” upon condition that the railroad should cause the least possible obstruction to the ordinary travel and business of the streets, and with a reservation of the right to withdraw the privilege whenever it .should appear to the councils to be injurious to the interest and welfare of the city. The condition was broken, and the privilege was revoked. But if the resolution of the councils had remained in full force up to this time, it would have been of no avail here. They had no “legal power in the premises.” An act of the legislature cannot be repealed or modified by the ordinance of a city corporation. What the defendants did in disregard of the law was no less an offence against the rights of the public, because the city was in some sort pwrticeps criminis. If both had persisted in it, the Commonwealth’s duty would have required her to see that the rights of her citizens were vindicated against both.

III. It is alleged and proved, and not denied, that the railroad has been laid down on and along a public road, called the Buffalo Road, in such a way, that for some distance it cannot be, and is not, used by the public at all, but on the contrary, that portion of the people who would otherwise travel thereon are obliged to , take another way, which the railroad company has opened for them. Of course, this is within the prohibition against obstructions and impediments to the free use of public highways. The answer to this charge is not based on any interpretation which the charter is thought to be capable of. Other grounds are taken. One defence is, that the railroad could not be made in a straight *359 line without taking a part of the Buffalo Road. We can only say, that if a railroad cannot he made straight without violating the law, it must be made crooked, or not made at all. Equally baseless (even if true) is the other argument, that the public has suffered no injury by this act. Those public interests which lie outside of the, defendants’ charter are not committed to their: keeping. The legislature has thought proper to guard the right of the people to the free use of their own roads, by enjoining the defendants not to impede or obstruct them. This injunction it was wrong to disregard, even for the sake of a supposed public benefit. The people have rejected the boon which the company tendered them, and the state, parens patrice now demands for them the rights which are secured and reserved by her own laws.

IV. The charge that the defendants have, by contract, surrendered the control of their road to a foreign corporation, was but faintly pressed in the argument. We do not consider the contract illegal, and if our opinion were different, we would withhold it until all the parties could be brought before us.

This disposes of the principal allegations in the bill. But aside from these there are one or two matters suggested by the defendant’s counsel, which ought not to be passed without a remark.

They have argued that no decree could be based on obstructions created by the use of the railroad, because the act of incorporation provides only against the road being so constructed as not to impede, &c. And the bill charges nothing else. Whatever impediments are caused by the ordinary and proper use of a railroad we attribute to its construction, if such impediments could have been avoided by a different construction. The legislature said to the corporators, you may make a railroad between certain given points, and use it when made by running cars and steam-engines on it; but you must so make it that its existence and use in this way will not impede the travelling on any highway now laid out. The railroad is so made that locomotives cannot be used on it without impeding travel on a certain highway, previously laid out. Such a railroad is not constructed according to the law. If it were, the use would be proper enough.

The defendants’ counsel have made another point which it is right to notice. It is said that though this proceeding is conducted in the name of the state, its real object is to redress a supposed injury, which is private, or at most merely local, in its character. We are urged to look not at the flag, but at the parties who fight under it. These parties — the public authorities of Erie, and the people of the neighbourhood — enepuraged the defendants to expend large sums of money in building the railroad, and the attempt which they are now making to break it up, is denounced in the argument as an act of wanton injustice. The only party before us is the Commonwealth. We do not even know the names of the *360 other persons alluded to. The Commonwealth complains in due form by her accredited legal representative, the attorney-general, that one of her corporations has violated its charter. We have investigated the case and found the complaint to be true. The delinquent corporation cannot justify itself by showing that in the commission of the wrong it received aid and comfort from other persons. If the mayor and councils of Erie, or their constituents, connived at this breach of law, they were guilty of a sin, for which their best excuse is that they seem to have repented of it, and are now disposed to assist the state in bringing the other offenders to the same wholesome state of mind. It cannot be that the defendants were misled by the people or their officers, for they must have known that a city ordinance could not authorize what an act of the legislature forbade. No laches can legally be imputed to the Commonwealth, and in point of fact, she has been guilty of no unfairness. She spoke her will plainly in the act of incorporation, and gave it to the defendants to be a guide to their feet and a lamp to their path. They disregard it. The attorney-general proves the fact, and stands up for judgment. We cannot refuse what law and equity demand.

Decree. — This cause came on to be heard before the Supreme Court, on the bill of complaint, on the answer of the defendants, and on the proofs and evidence taken by both parties, and was argued by counsel; and thereupon it appears to this court that the defendants have built, and do now use and maintain a certain railroad, known as the Erie and North-East Railroad, of which said railroad a part is within the present limits of the city of Erie, and upon certain streets thereof, and another part is upon the bed of a certain public road, known as the Buffalo road, in Harbour Creek township, Erie county; and that the said railroad in those parts thereof, is a public and common nuisance. It is, therefore,

Ordered, adjudged, and decreed, that the defendants shall, on or before the expiration of four months from this date, break up so much of their said road as lies upon the said streets, and upon the Buffalo road, and remove the materials thereof, so as to leave the said streets and road in as good condition as they were in before the construction of said railroad.

And it is further declared and adjudged, that the said defendants are bound to make the borough of Erie, with such limits as it had in 1842, the western terminus of their railroad. It is therefore decreed and ordered, that the said defendants shall, within four months from this date, change the route and construction of their railroad accordingly, and make their western terminus at what was the eastern *361 line of the said borough in 1842, or within the same borough. And the said defendants shall re-construct their railroad to supply the parts hereby ordered to be broken up, according to plans and specifications to be by them made, and to be submitted to and approved by this court, on full notice to the counsel of the Commonwealth, and not otherwise. And the defendants shall pay all lawful costs, to be taxed by the prothonotary.