Case of "the Philadelphia & Trenton Rail Road"

6 Whart. 25

• Court: Supreme Court of Pennsylvania
• Decided: July 1, 1840
• Status: Published

Opinion

The opinion of the court was delivered by

Gibson, C. J.

A certiorari lies in all judicial proceedings in which a writ of error does not lie; and being a substitute for a writ of error, it is governed by the same, or strictly analogous, principles: consequently no point can be raised on it which is not apparent exclusively in the proceedings removed by it. Though not peculiar to road cases, this principle was enforced in the case of the Schuylkill Falls Road, (2 Binney, 250;) of Penn's Grove and ■ Concord Road, (4 Yeates, 372;) and of Spring Garden street, (4 Rawle, 194:) in all which this court refused to enter into the merits, or to decide facts on depositions. One exception alone has been made to it. In the Case of the Baltimore Turnpike, (5 Binney, 484,) evidence was heard in support of the proceedings on a point which perhaps did not need it; as all presumptions favourable to regularity may be made in consistence with the record. The exceptions in the case before us, have been framed in disregard of the general rule. In the twenty-six points raised by them, I discern few that are legitimate subjects of re-examination; and as we sit here, not to settle abstract principles, but to determine matters which lie in the course of our functions, my first business will be to cast out such of them as are not determinable here.

It is obvious that the fourth, fifth and sixth exceptions, and also the ninth, with its eight specifications, belong to the rejected class. The supposed misleading of parties by the advertisement; the alleged misconduct of the jury in refusing to hear the owners of property and their witnesses in support of their objections and claim to damages ; are matters that do not appear by the record: by reason of which, even were there substance in them, we would be compelled to dismiss them. We do not find, however, that the act by which the proceeding was directed, authorised the jury, or any one else, to assess damages; and objections to the route on the ground of policy or convenience, they were to determine, not on the testimony of witnesses, but on their own view, as was decided in Johnson's case, (2 Wharton’s Rep. 277.) The judges of the Quarter Sessions, as they had not viewed, might indeed have satisfied themselves of the propriety of the location by the information of others; but that they were satisfied without it, is not ground of error examinable here. The ninth exception, also, with its specifications, by which is alleged that the reported route agrees not with the directions of the act, depends on facts of which we judicially know nothing; nor would they perhaps avail the exceptants if they were properly before us. We perceive not that the act requires the assent of the districts to the location; nor did it appear on the diagram exhibited at the argument that the road is not laid upon streets between the depots ; and that it is not another rail-road upon another route; or that it is partly on private property. It may, as alleged, be partly on the track laid down under an agreement with the district of the Northern Liberties; but what of that! A part of that track may, notwithstanding, be on “ the best route along the streets between the said depots;” and the act requires no more. As to its being laid on the track of the Northern Liberties and Penn Township Rail Road, the interference .might be made a subject of complaint by that company, but certainly by no one else; and the complaint could be heard only by the court below, no other tribunal having power to investigate the fact.

The same remarks may be applied to three specifications of the allegation contained in the tenth exception. Of contracts made by the company with the exceptants or the Northern Liberties and Penn Township Rail Road Company, we judicially know nothing; and we cannot test the constitutionality of the statute by an allegation of matters which cannot legitimately appear in the proceedings or in our paper books. From the copies furnished, they appear to be contracts for privileges purchased in other streets; and the law does not disturb them. If they bound the company originally, they bind it still, and the parties may still have an action for any breach of the company’s engagements. None of these matters, however, are subjects of revision by us; and I turn to those which properly belong to us, premising that most of them may be despatched in a few words.

The first exception—that the jury of view was not appointed pursuant to an' authorised application by the company—seems not to be founded in fact. They were appointed on the motion of the company’s solicitor; and were it not so, the manner of the appointment is a matter to which the exceptants cannot make objection, since the company’s ratification of the appointment by claiming under it, is equivalent to a precedent authority.

The second is, that the road was located by the jury instead of the company. In the act it is said that the company shall locate, and that the court may approve on a jury’s report; but how the inhabitants could be prejudiced by allowing the act of location to be performed by the jury instead of the company’s officers, has not been shown. It is not to be credited that the jury would be less disinterested and regardful of “ the public business, trade, and private property” of the inhabitants,' than the company itself would be. It was the privilege of the company to make the location by its officers; and in surrendering it to the jury it renounced a benefit provided for it, which a common -law maxim too trite to be repeated, authorised it to do. Even were that not so, the jury might be considered as its agent, having made the location by its direction, as evidenced by its subsequent ratification of the act. The question before the court, however, regarded not the paternity of the location but the propriety of it. Not only the court, but the jury were to be satisfied of the propriety of the latter; and it is' not probable that the jury would have been as well satisfied with the propriety of any other, as with their own. The exception at best depends on a literal interpretation ,■ and it is not to be favoured.

The third is, that the jury were not sworn by the authority of the ' court, or in the terms prescribed by the law. What terms 1 The act itself prescribed none: nor did it direct the jurors to be sworn at all. And yet it is stated in the report that they were sworn or affirmed according to law; and as nothing in the record contradicts it, we are to take it as it is stated. It was provided that the jury should be appointed “ as directed ”—and here the sentence was left incomplete by the omission of something intended to have beén sub-, j.oined; but what that was, cannot be conjectured. In the case of Adelphi Street, (2 Wharton’s Rep. 176,) a proceeding to vacate a street, was held to be within the purview of a preceding section to vacate a particular alley, which was directed to be in the usual manner; and this on the ground that there were general principles of practice in laying out and vacating streets, to which the legislature must have referred." That-practice, however, has no relation to the proceeding before us which is sui generis. That it-was not intended to be regulated by the road law, is clear from the fact that no petition for a view was required; nor was there to be an order to view, because the jury were to act on being applied to, and consequently without a particular mandate. As then no oath was prescribed, it is not necessary that the jurors should have been sworn qt all; and this disposes also of the eighth exception that the court had not allowed, in conformity to the general road law, two full terms betwixt the appointment of the jury -and the confirmation of their report. „

The remaining exception is more important, because it calls in N question, for specific reasons, the validity of the statute which is the ■ foundation of the proceeding, and which is said to be unconstitutional because it impairs the obligation of contracts; by violating the | chartered rights of the districts of Spring Garden and the Northern I Liberties; by violating the contract under which the right qf pass- f age is assured to the inhabitants of this particular street; by taking the property of the street without compensation to the districts of individual proprietors; and by monopolising the street in derogation of the public and private uses to which it had been applied. This, perhaps, is the substance of all these multifarious specifications.

What is the dominion of the public over such a street! In England, a highway is the property of the king as parens patriae, or universal trustee; in Pennsylvania, it is the property of the people, not’of a particular district, but of the whole state; who, constituting as they do the legitimate sovereign, may dispose of it by their representatives, and at their pleasure. Highways, therefore, being [ universally the property of the state, are subject to its absolute direc- f tion and control. An exclusive right of ferriage across a navigable Stream, which is a public highway, is grantable only by it; and the navigation of the stream may be impeded or broken up by it at its pleasure. In the construction of her system of improvements, Pennsylvania has acted on this principle. Her dams across her principal rivers to feed her canals, have injured if they have not destroyed the , descending navigation by the natural channels; and this without a suspicion of want of constitutional power. The right of passage by ^ land or by water, is a franchise which she holds in trust for all her j citizens, but'over which she holds despotic sway, the remedy for an I abuse of it being a change of rulers and a consequent change of the law. No person, natural or corporate, has an exclusive interest in the trust, unless she has granted it to him. Her right extends even to the soil, being an equivalent for the six per cent, thrown into every public grant as compensation for what may be reclaimed for roads; and she has acted on the basis of it; for though damages for special injuries to improvements have been-allowed by the general road laws, nothing has been given for the use of the ground. This principle was broadly asserted in the Commonwealth v. Fisher, (1 Penns. Rep. 466.)

Such being a highway as a subject of legislative authority, in what respect is a street in an incorporated town to be distinguished from it? A municipal corporation is a separate community; and hence a notion that it stands in relation to its streets as the state stands in relation to the highways of its territory. That would make it sovereign within its precincts—a conséquence-notto be pretended. The owner of a town plot lays out his streets as he sees fit, or the owner of ground in an incorporated town, dedicates it to ; public use as a street; but it follows not that the dominion of the state t is not instantly attached to it. The general road law extends to every incorporated town from which it is not excluded by provision of the charter; and the statute book is full of special acts for opening, widening, altering, or vacating streets and alleys in Philadelphia and our other cities. Were it not for the universality of the • public sovereignty, the public lines of communication, by rail-roads and canals, might be cut by the authority of every petty borough through which they pass; a doctrine to which Pennsylvania cannot submit, and which it would be dangerous to urge. It would be strange, therefore, were the streets of an incorporated town, not public highways, subject perhaps to corporate regulation for purposes of grading, curbing, and paving; but subject also to the paramount authority of the legislature in the regulation of their use by carriages, rail-cars, or means of locomotion yet to be invented, and this without distinction between the inhabitants and their fellow-citizens elsewhere. The doctrine was carried to its extent in Rung v. Shoenberger, (2 Watts, 23,) in which it was affirmed that, though a city has a qualified property in its public squares, it holds them as a trustee for the public for whose use the ground was originally left open; and that the enjoyment of them is equally free to all the inhabitants- of the commonwealth, subject to regulations not inconsistent with the grant. In Barter v. The Commonwealth, (3 Penns. Rep. 259,) it was inadvertently-said that the title to the soil of a street'is in the corporation, whose right to improve it for purposes which conduce to the public enjoyment of it, is exclusive and paramount to the right of an inhabitant. The point was only incidentally involved, and consequently not very particularly considered; but the question of title, involving as it has done, no more than the bounds of the grant, has lain between the grantor and the grantee, or those deriving title from them. In no case has title been claimed by the corporation. In the Union Burial Ground Company v. Robinson, (5 Whart. 18,) in which the point was elaborately argued, the contest was betwixt the grantor and a purchaser from the grantee; and though the cause was eventually decided on another ground, the court inclined to think, on the authority of many-decisions, that the title to the street, even had it been opened, would have remained in the grantor; and such' appeal's to be the principle of Kirkham v. Sharp, (1 Whart. Rep. 323.) The legal title to the ground, therefore, remains in him who owned it before the street was laid out; but even that is an immaterial consideration; for an adverse right of soil could not impair the public right of way over it, or prevent the legislature from modifying, abridging, or enlarging its use, whether the title were in the corporation or a stranger. I take itj ¶ then that the regulation of a street is given to a corporation only for|| corporate purposes, and subject to the paramount authority of the|!' state in respect to its general and moi’e extended uses; and that Sl there would have been no invasion of chartered rights in this instance, even did either of these districts stand in a relation to the public, which would impart to its charter the qualities of a compact.

What then is the interest of an individual inhabitant as a subject of compensation under the constitutional injunction that private property be not taken by a corporation for public usewithout it? Even;, agreeing that his ground extends to the middle of the street, the-public have a right of way over it. Neither the part used for the | street, nor the part occupied by himself, is taken away from him;» and as it was dedicated to public use without restriction, he is not within the benefit of the constitutional prohibition, which extends not to matters of mere annoyance. The injury of which he can complain, is not direct but .consequential. It consists either in an obstruction of his right of passage, which is personal; or in a depreciation of his property by decreasing the enjoyment of it: but no part of it is taken from him and acquired by the company. The prohibition, even when it precluded a seizure of private property immediately by the state, was not largely interpreted, nor was there reason that it should be, as ample compensation was obtained from her sense of justice without it. The sufferers were overpaid, and this sort of aggression was always courted as a favour. But though she usually compensated consequential damage, it was of favour, not of right. Nor did she always make such compensation. In one well known instance, she destroyed a ferry by cutting off access to the shore, without provision for the sufferer; and in the Commonwealth v. Richter, (1 Penns. Rep. 467,) damages were unavailingly claimed from her for flooding a spring by a dam. The clause in the amended constitution which narrows the former prohibition to a taking of private property for a public use by a corporation, is to \ receive the same'construction; the word ‘ taking ’ being interpreted to \ mean, taking the property altogether; not a consequential injury \ to it which is no taking at all. For compensation of the latter, the \ citizen must depend on the forecast and justice of the legislature.

On the subject of the next specification, it seems scarcely necessary to say that monopolies are not prohibited by the constitution; and that to abolish them, would destroy many of our most useful institutions. Every grant of privileges so far as it goes, is exclusive ; and every exclusive privilege is a monopoly. Not only is every rail-road, turnpike, or canal such, but every bank, college, hospital, asylum, or church, is a monopoly; and the ten thousand beneficial societies incorporated by the executive on the certificates of their legality,by the attorney general and judges of the Supreme Court, are all monopolies. Nor does it seem more necessary to remark, on the subject of the concluding specifications, of exception to the confirmation ofthe report by the associate judges of the sessions alone, that the approval was an act of the court; and that they were competent to hold it.

Proceedings affirmed-