Gyger v. Phila. etc. Ry. Co.

20 A. 399, 136 Pa. 96, 1890 Pa. LEXIS 1016

• Court: Pennsylvania Court of Common Pleas, Philadelphia County
• Decided: October 6, 1890
• Docket: No. 106
• Status: Published

Opinion

Opinion,

Mr. Justice Green:

It is undoubtedly true, as we have several times decided, that the words “ railroad ” and “ railway ” are synonymous, and in all ordinary circumstances they are to be treated as without distinction of meaning. When either one or the other of these words is used in a statute, and the context requires that a particular kind of road is intended, that kind of a road will be held to be the subject of the statutory provision; but if the context contains no such indication, and either of the words is used in describing the subject-matter, the statute will be held applicable to every species of road which is embraced within the general sense of the word used. All of this was decided in the case of Hestonville etc. R. Co. v. Philadelphia, 89 Pa. 210, where we held that the act of May 16, 1861, P. L. 702, entitled “ An act relating to railroad companies,” and authorizing the consolidation and merger of railroad companies, embraced within its meaning street passenger railroad companies as well as steam railroad companies. The reasoning of the opinion was principally upon the proposition that the expressions “ railroad ” and “ railway ” were in fact synonymous terms, and that there was nothing in the context of the act inconsistent with the application of the word “railroad” to a Street passenger road. It was conclusively shown in the opinion that the legislature was in the constant habit of using both words indiscriminately as expressing the same thing. No necessary inference is therefore to be drawn from the mere use of either word that a limited class of roads was intended. It follows that we must search the context of the seventeenth article of the constitution in order to ascertain in what sense the word “railroad” was used in the fourth section. It is the contention of the appellant that the prohibition of the section against the amalgamation of competing roads applies to street passenger railroad companies as well as to those of steam roads, and, if this contention is unsound, the appellant has no case.

The title of the article is “ Railroads and Canals.” This is, of course, sufficiently comprehensive to embrace all classes of railroads and railways; and we accordingly find that a number of the sections are applied to steam railroad companies exclusively, and at least one section, the ninth, is applied exclusively to street passenger railway companies. The first section provides that all railroads and canals shall be public highways; that any association organized for the purpose shall have the right to construct a railroad between any points within the state, and to connect at the state line with railroads of other states; and that every railroad company shall have the right to intersect, connect with, or cross any other railroad, and shall receive and transport, each, the other’s passengers, tonnage, and cars without delay. It must be conceded at once that this section cannot possibly apply to street passenger railway companies, as all its provisions are utterly hostile to such a thought. Section third provides that all individuals, associations, and corporations shall have equal right to have persons and property transported over railroads and canals, and no unreasonable discrimination shall be made in charges for, or in facilities for transportation of freight or passengers within this state, or crossing from, or going to, any other state. It is equally certain that this section, also, cannot embrace passenger railway-companies, since such companies are, as a rule, though not always, without authority to carry freight, and do not extend to state lines. The fifth section is also inapplicable to street railroad companies, because it imposes disabilities upon carrying companies against engaging in mining or manufacturing articles for transportation over their roads; and, as street passenger companies do not transport articles of manufacture over their roads, as a regular business, they are not included within the manifest meaning of the section. The same remarks apply to the sixth section, which imposes the same disabilities upon officers as are imposed by the fifth section upon the companies themselves. The seventh section plainly relates to the transportation of merchandise or freights, and hence is equally inapplicable to street passenger companies. The eighth section prohibits any railroad, railway, or other transportation company, from granting free passes to any persons but officers aud employees. This section relates to the carriage of passengers only, and it plainly includes street passenger companies as well as all others, because it expressly mentions “railroad” and “railway ” companies. But, because it uses both terms, “railroad ” and “ railway,” a most convincing argument arises that the convention considered it necessary to use both in order to embrace both, and hence it must be considered they did not intend to include both in the other sections where only one is used. The force of this argument is greatly strengthened when we consider the ninth section, which provides that “ no street passenger railway shall be constructed within the limits of any city, borough, or township, without the consent of its local authorities.” It is perfectly clear that the convention did not regard the word “ railroad ” as synonymous with “ railway ” or “street passenger railway,” when this section of the article was framed. It is equally conclusive that they were perfectly conscious of the difference between the two classes of roads, and that when they intended to make provision respecting “street passenger railways,” they considered it necessary to use this kind of phraseology in order to designate them. Can the courts do any less ? Can we attribute to them any other meaning than the one they have, by well-chosen words, clearly expressed, when they desired to make provision for this partióular class of roads ? Are we at liberty to infer, in considering the fourth section, where they made a provision as to railroad and canal companies, that they intended by that mode of description to designate “ street passenger railway companies ” as well? We think not. Having a full knowledge of the precise manner in which they considered it necessary to express themselves when they desired to provide for “ street passenger railway companies,” we find that in the fourth section they entirely abstain from that mode of expression, or from any similar phraseology. We must conclude that the reason for such abstention was that they did not intend to include them in the prohibition of the fourth section.

This is the obvious and natural conclusion to reach, and we know of no reason why we should not regard it and be governed by it. If we consider the subject-matter of the fourth section, we are strengthened in the correctness of this conclusion. It provides that “ no railroad, canal, or other transportation company, or the lessees, purchasers, or managers of any railroad or canal corporation, shall consolidate the stock, property, or franchises of such corporation with, or lease or purchase the works or franchises of, or in any way control, any other railroad or canal corporation owning, or having under its control, a parallel or competing line.” The subjects of the prohibition are railroad and canal companies. They are classed together as the subjects of a prohibition common to both. Railroads and canals are means of transportation which relate to and cover the territory of the state. In their ordinary understanding by the people they are regarded as methods of carriage of freights and passengers—most largely of freights—between distant points within the state, and to the borders of the state, so as to connect with other similar systems of transportation without the state to still more remote points. It would be a most strained and unreasonable conclusion, to hold that the constitutional convention, when it plainly, and for wise reasons, prohibited the amalgamation of railroads and canals of this, .character, and parallel or competing with each other, had any possible reference to the mere passenger travel over the streets of cities and towns. There is nothing in the section or in the article XVII. itself indicating that the convention had any such thought or any such purpose. There is no argument in support of such a theory except that which is based upon the generality of the word “ railroad; ” but it has been already seen that there is no necessary, essential force in that argument considered by itself alone; that it is always subject to the effect of the context when considered in connection, and that upon such a consideration in this particular case it falls to the ground.

We think, also, that it is quite clear that the sense of “ competing,” which is the essential sense of the prohibition, is not applicable to the travel upon the streets of cities and towns over passenger railways. The competition of traffic between distant points, by rival roads and canals, tends to promote cheap transportation and thereby tends to the public good. But, if this is suppressed by the absorption of one of the competing lines by the other, the wholesome competition ceases and higher rates soon result. ' This is the evil which was sought to be prevented by the fourth section of the seventeenth article. It will be seen at once that it is inapplicable to the travel upon streets of cities and towns on passenger railways. The travel over parallel streets is not necessarily a competing travel. Each street has travel of its own which is conducted upon its own railway. That travel may be almost entirely conducted without competition with the travel upon another though parallel street, nor do railways upon parallel streets have the same termini. Many of them, though running upon parallel streets for a considerable distance, diverge altogether from such a course at their extremities. Two roads would be competing if laid upon the same street, and running in the same direction, but that is not this case, and probably is not the case anywhere in the state. Moreover, no freight is carried upon passenger railways, and it is the carriage of freight that was probably of principal importance in the design of the fourth section. All the analogies which would liken the traffic upon street railways with that upon the railroads and canals of the state are wanting, and hence we are without authority to impose upon the language of the fourth section a meaning which does not reside in its words, and which does not result by any rational implication. The language used in the fourth section in designating the objects of its provisions is precisely the same as is used in all the other sections for the same purpose, and when passenger railways are intended to be indicated a different phraseology is employed. We find nothing in the fourth section indicating that the word “ railroad ” was there used in any other sense than that in which it was manifestly used in the other sections, and we are therefore not at liberty to give it any other meaning than is apparent in those sections. We think the court below was right in dismissing the plaintiff’s bill.

The decree of the court below is affirmed, and the bill of the plaintiff is dismissed at the cost of the appellant.

Mr. Justice Sterrett dissented.