Commonwealth ex rel. Leech v. Canal Commissioners

5 Watts & Serg. 388

• Court: Supreme Court of Pennsylvania
• Decided: May 15, 1843
• Status: Published

Opinion

The opinion of the Court was delivered by

Gibson, C. J.

The conclusion at which we have arrived in respect to the merits of the complaint, makes it unnecessary to act on the motion to quash the writ.

The Commonwealth’s lines of canals and railroads are not highways, which the citizen is entitled to use of common right; or what would in England be called, in technical language, the King’s highways, which are free and common passages for his people. Like the crown there, the Commonwealth here, as parens patrice, or general trustee of popular franchises, has highways which are free to all the citizens; but such are not her railways and canals. Being made at her particular cost, they are, so to speak, her private property; and they are consequently subject to her exclusive use, or the use of those to whom she farms them for her emolument. But she does not permit individuals to use them as she permits them to use her highways, properly so called, which are common to all. The citizen has a personal interest in the public works, it is true; not however immediately as a proprietor, but remotely as a member of the community. These railways and canals are held by the State as others are held by incorporated companies whose members have no greater right to use them than have their fellow-citizens who are not corporators ; and the public lines partake even less of the character of highways, inasmuch as the State might suspend the use of them or close the business on them entirely by virtue of its sovereign power; which might not be done by a corporation whose charter is granted on an implied condition that the public accommodation afforded by it be not discontinued. This principle of the State’s absolute ownership of the property, and consequent power to control the use of it for the public benefit, without regard to the private interests of individuals, is of such importance to the question before us, that it may be said to lie at the -very root of it. It has not been urged, however, that the State would not be competent to make the regulations in question by the instrumeptality of the Legislature or agents duly authorized, and the question is whether the respondents were so.

Specific powers have been given to the canal commissioners by sundry enactments; but the general power which is thought to authorize the regulation in question, is found particularly in three of them. By the Act of the 15th April 1834, they were empowered to put locomotive engines on the Commonwealth’s railroads under such regulations as they should deem necessary to be prescribed, and the citizens were authorized to attach cars to them : and by a joint resolution passed the 21st of February, in the same year, these officers were required to permit cars to be put on the finished part of the Portage Railroad, “ and also to adopt rules and regulations for the use of the said road.” But their general and permanent authority is contained in the 12th section of the Act of 16th April 1838, which is, in substance, a repetition of the 6th section of the Act of 8th April 1834, and which declares, “ that the board of canal commissioners shall have power to make such rules and regulations not inconsistent with the latos of this Commonwealth, as to the form and structure of the locomotive engines and vehicles used on the State railroads, for weighing and inspecting such engines and other vehicles and their lading; for collecting tolls; and in all matters connected with the use and preservation of the railroads; and impose such fines for breach of such rules and regulations, as they may deem reasonable.” We perceive in this, no other limitation of the power to make rules and regulations connected with the use of the railroads, than that they be not inconsistent with the laws of the Commonwealth. Words could scarce be found to carry a grant of larger powers; and, indeed, as the commissioners were not to have the Legislature perpetually at hand to provide for emergencies, nothing less than plenary powers would have enabled them to execute their office to the greatest public advantage. The question, then, comes to this: In what respect are these regulations, eonneetéd as they are with the use of the railroads, inconsistent with the laws of the Commonwealth?

They give certain individuals a preference, say the relators, which is virtually a monopoly; and all their argument is comprised in' that one word — an unexpected one from them. But granting the fact of preference, for the sake of the argument, in what respect are monopolies inconsistent with the laws of Pennsylvania ? We have no general statute which prohibits them; but certain monopolies granted by the British crown, were held to be illegal and void at the common law; such, for instance, as an exclusive right to import, buy, sell, make, work, or use, any particular article or thing. We are told that the abuses of such grants, in the reign of Elizabeth, led to the more effectual suppression of them by the 21 Jac. 1, c. 3, which, however, has never been in force in this State. That statute, which w’as declarative of the fundamental laws of the realm, imposed a more effectual restriction on the power of the crown to create monopolies, propria vigore, than had previously been provided; but an attempt to create them by the concurrent action of the parliament and the crown, would equally have been a violation of the constitution, and one which would speedily have been redressed by the nation. But we have no constitutional prohibition on the subject; and though the common law principle might be opposed to these regulations, if they were found to conflict with it, yet it is not every preference or monopoly that is illegal. .On the contrary, we have a countless number of them which are entirely consistent with the constitution and the laws. An office is a monopoly. Grants of land to settlers or soldiers, patents for discoveries or inventions, charters of corporate powers and privileges, are all lawful monopolies. A turnpike company monopolizes its tolls; a bank, its profits; a congregation, the offices of its church: and why might not the State monopolize the business of its railways and canals, if it desired to do so, by taking it into his own hands, or farming it out on terms to make it the more productive, by excluding competition ? I speak not of the policy, but the legality of such a measure. Should it be injudiciously attempted, there would be no remedy for it but an appeal to the discretion of the Legislature.

But the respondents aver with great earnestness, and much apparent sincerity, that their purpose has been not to extinguish competition, but to promote it, by putting all the carriers in the trade, as near as may be, on a footing of equality. They have certainly created neither preference nor monopoly, as regards the public trucks; for these are open, on the same terms, to all the citizens, the relators included, who may desire to use them ; and if the relators think proper to use their own, they are free to do so, but they have no further cause for complaint than that their o.wn monopoly has suffered encroachment from a competition nourished by the public patronage. But it would be hard to convince the wor'.d that the relators are wronged, or that the public is prejudiced by it. It has brought down the price of freight and increased the amount of the revenue. The pretension of the relators to be put on a footing with the State, and that her agents shall not be suffered to underbid them for the public good, is a monstrous one. As individuals, destitute of a right to peculiar privileges, all they can demand, is to be put on a level with their neighbours; and are they not so when they can use the public trucks on the general terms ? They are not bound to lay aside their own for those of the State; but that the State’s officers are not at liberty to put the use of her trucks to her customers on her own terms, is a proposition that cannot be maintained. She is the mistress of her property, and may use it or hire it out as she pleases.

But the respondents deny that their regulations put those who use the public trucks on better ground than those who use their own. They admit that they do not charge their customers for motive-power; but they assert that this is necessary, not only to maintain the balance of competition, but to break up the monopoly of the trade formerly enjoyed by capitalists and companies. They allege, that before the necessity of transhipment at the Portage was obviated, the owner of but a few boats could not engage in the trade with a prospect of success, because the profits of a small business would not support the expense of the necessary agencies and commissions at Hollidaysburg and Johnstown. The difficulty has been surmounted by the introduction of the section-boat, which enables a carrier to engage in the business on equal terms with but a single craft; but the respondents say that they were at first without authority to provide the trucks necessary to transport the boats of those who had them not themselves, and that the relators refused to hire their trucks, or suffer them to be used for the transportation of any other boats than their own; by reason of which, they were still able to keep up the price of carriage despite of the respondents’ efforts to lower it by reducing the tolls, which served no other purpose than to put just so much in the relators’ pockets. They aver, too, that the exorbitance of the charges for transportation had driven a great part of the business to antagonist routes in the adjoining States in prejudice of the revenue, and the trade of our principal emporium : and all this, that a few capitalists and companies might suck the marrow out of the public works. I pretend not to determine the truth of these assertions; but that such abuses existed, is made more than probable by the conviction in Pittsburgh of certain conspirators bound by a written constitution and by oath to adhere to the prices fixed by the association; by the consequent decrease of the business on the lines; and by the enormous increase of it that has taken place since section-boats have come into general use. It had been perceived that the price of transportation could not be brought down by lowering the tolls without doing more; and that to put the principle of competition into effectual operation by introducing small capitalists into the business, it would be necessary to provide trucks to pass the sections of their boats across the Portage free of expense. The project was accordingly submitted to the Legislature, by whom it was coldly received ; and though the commissioners were authorized to lay out $40,000 in purchasing trucks, no appropriation was made to enable them to do so, but they were directed to fix rates and charges for their use, and apply the proceeds to the cost of procuring them. They were thus compelled to lay a duty on them which, to effect the declared object of securing “ a fair and free competition,” it was necessary to compensate by a decrease of tolls or the charge for motive-power, in order to enable the public trucks to compete with those already on the road. The respondents had, therefore, to choose between giving up a part of the tolls or the charge for motive-power; and they chose the latter, by which, they say, the publie charges on transportation have been as nearly equalized among all classes of the carriers as they can be; and they allege that the increase of business consequent on the success of their measure, has exceeded their expectation. Certain it is, that the public works, since the introduction of the State trucks, have given strong indications of the profit which the Commonwealth is likely to derive from the introduction of this new system, and that the revenues, so far as past experience affords any evidence, will be greatly improved by it; and that this has been produced mainly by controlling and decreasing the charges for transportation, is not to be doubted; and this shows how necessary it is for the officers of the State to have a controlling influence over the prices of carriage, in order to bring our public lines of transportation into successful competition with the lines of our neighbours. There was a time when the produce of our western counties found its way to the New York market, even partly through our own canals to Lake Erie, despite of a reduction of the tolls on produce coming from places beyond Pittsburgh, merely because a few cents were saved by it on the bushel or the barrel. Thus the produce, not only of these counties, but of the valley of the Mississippi, was drawn from our main line; and by what 1 Evidently by the cupidity and extortion of the carriers, the paucity of whose numbers enabled them to make common cause. It is evident that a power to control them is necessary; and the section under consideration, therefore, ought not to be too strictly interpreted. But the most strict interpretation would leave power enough in the respondents to warrant what they have • done. They had power to take the entire business of the line into their own hands; and .they, who put their trucks on the road-for their own accommodation, must at least allow the State to hire her trucks to others on her own terms.

The principle which rules the preceding part of the complaint, also rules the application to annul the contract of Cameron and Wilson to carry passengers over the Philadelphia and Columbia Railroad for reduced fare, and at á reduced rate of tolls. The State did no more, by becoming a party to it, than farm its right to carry; and in framing the bargain, it had a right to consult its exclusive interest; nor has it been asserted that its interest was forgotten. But the respondents’ answer contains a denial of the relators’ most material allegation, in point of fact, that they had directed their officers to attach all passenger cars, except those of Cameron and Wilson, to the burthen trains; and as the relators have not thought proper to take the matter before a jury, we are to treat the allegation as a chancellor would treat it, at a hearing on bill and answer. By Act of the 15th of April 1834, every citizen has a right to attach a car to a public engine; but no one pretends that the relators have not been allowed to do so. What more do they want 1 They surely cannot expect that their interest is to be made a subject of peculiar protection, to the prejudice of the State. Even had the respondents, in fact, attached the relators’ cars, as they are said to have done, they would not have exceeded their power; and if they discriminated, in respect to the rate of tolls, between passengers agreed to be carried for a reduced rate of fare, and those who were carried under no such an agreement, they were competent to do so, for the whole subject is left to their discretion by the Act of the 8th of April 1834; and they nay have exercised it very judiciously, in this instance, to attract custom to the road, by encouraging the owners of cars to carry their passengers on reasonable terms. But even for an abuse of it, they would not be answerable to this court. What we have to.do with, is the legality of their acts; to judge of their propriety, is the province of another tribunal.

We are of opinion that the answer is sufficient, and that the motion for a peremptory mandamus be dismissed.