Opinion by
Mr. Justice Sterrett,
We quite agree with the learned president of the common pleas in saying “ that a grade crossing at the place selected by defendant is so exceedingly dangerous that it should not be allowed if there is any power in the court to prevent it; ” but we are not prepared to assent to his conclusion that the court has been shorn of that power by the eighteenth section of the act of May 14,1889, under which defendant company was incorporated.
It is impossible to consider the testimony in this case, in connection with the statement of facts agreed upon by counsel, without being forced to the conclusion that the crossing in question is one of those death traps which should not be permitted to exist in any community. One of the witnesses, whose large and varied experience as a railroad superintendent entitles his opinion to great weight, says: “ My own judgment in regard to a street crossing, either by horses, electricity or cable, is that any one attempting such a crossing at camp Copeland is no less guilty than a man who would in cold blood murder his fellow being. ... I mean by that, what I have said to these people,that no power on earth, nor any arrangement, nor any mechanical, electrical or other device that I am personally aware of at present, can prevent the loss of life.” Again, speaking of electric roads, he further testifies: “ I can say from personal observation that an electric street railroad is the most dangerous of all street car railroads, from the fact that there are two parties in control, the motorman in front with his electricity and the conductor in the rear with his trolley — and unless they both act in unison and fully understand what each other desires to do, trouble ensues. A conductor on the rear end of the car can place the motorman entirely helpless. In crossing the railroad at such points as Copeland there is great danger — as I have [125]*125personally noticed in Pittsburgh. — of their trolley being disconnected and the car stopping.”
Without further reference to the testimony, it is sufficient to say, that the very frequent and rapid passage, to and fro, of trains on the four tracks of plaintiff’s road (over two hundred daily between six o’clock, A. M., and midnight), the descending grade and curvature of said tracks, obstructed view, in short, all the environments of the crossing, co-operate in making it exceedingly perilous, so exceptionally dangerous, indeed, that it is surprising the directors of defendant company are willing to imperil the lives and limbs of their patrons by attempting to cross at grade.
It is conceded that the topography of the vicinity is such, that, at First street, about seven hundred feet west of defendant’s road, it would be practicable to cross plaintiff’s tracks by means of a substantial overhead viaduct or bridge, spanning plaintiff’s right of way and costing from $6,000 to $7,000, exclusive of approaches on the south side; that, “ a short distance east of the said road, a crossing, beneath plaintiff’s tracks, is also practicable, but at considerably greater cost, and in part through private property.”
More than twenty years ago, the necessity for special judicial control of corporations, and especially railroads, assumed tangible form in passage of the act of June 19,1871, entitled “An act relating to legal proceedings by or against corporations: ” P. L. 1360.
The first section provides that in all proceedings in which it is alleged that the private rights of individuals or the rights or franchises of other corporations are injured or invaded by any corporation, etc., it shall be the duty of the court to examine, inquire, and ascertain whether such corporation does in fact possess the right or franchise to do the act or acts complained of, and, if it does not, to restrain such injurious acts, etc.
The second section declares: “ When such legal proceedings relate to crossings of lines of railroads by other railroads, it shall be the duty of the courts of equity of this commonwealth to ascertain and define by their decree the mode of such crossing which will inflict the least practical injury upon the rights of the company owning the road intended to be crossed; and, if in the judgment of such court it is reasonably practicable to [126]*126avoid agrade crossing, they shall by their-process prevent a crossing at grade.”
The manifest purpose of this is not merely to discourage grade crossings because of their danger to the public as well as injury to the company whose road is crossed, but also to prevent them whenever in the judgment of the court it is reasonably practicable to avoid such dangerous and injurious crossing. As an exercise of the police power of the state, the wisdom of the provision has become more manifest, from year to year, as railroads multiply. Referring to the general necessity for exercising the restraining power thus conferred on courts of equity, the present Chief Justice, in Perry County Railroad, etc. v. Newport, etc. Railroad Co., 150 Pa. 193, 199, says: “ The time for grade crossings in this state has passed. They ought not to be permitted, except in case of imperious necessity. They admittedly involve great danger to life and property. In the earlier period of railroads this danger was overlooked, or, at least, disregarded. The desire of the people for this species of improvements tended to close their eyes to the dangers involved. The traffic then upon railroads was comparatively light, and trains ran at long intervals. The rapid development of the country, the enormous growth in wealth, population and business, has materially changed the relations of railroads to the public and to each other. The result is that we now see railroad companies and municipalities spending enormous sums in correcting the defects of earlier railroad construction, and especially in avoiding grade crossings. We must, therefore, construe the act of 1871 in accordance with our present surroundings.”
It is claimed by defendant, however, that the eighteenth section of the act of 1889, under which it is incorporated, expressly authorizes it “to cross at grade, diagonally or transversely, any railroad operated by steam or otherwise, now or hereafter built.”
If by the language thus employed the legislature intended not only to barter away the police power of the state in regard to such grade crossings, but also to limit the jurisdiction of courts of equity in relation thereto, then, indeed, the learned judge fitly characterized such legislation as “exceedingly vicious,” but we cannot think any such construction as that-[127]*127should be given to § 18 of the act (art. 16, § 8, const.). It is a well recognized principle of legislation that grants of franchises áre made and accepted in subordination to the police power of the state. This results from the inherent nature of that power, which, “ in its broadest acceptance, means the general power of a government to preserve and promote the public welfare, even at the expense of individual rights: ” 18 Am. & Eng. Ene. L. 740. The exact scope of the term is not easily defined, but all agree that it “ extends to the protection of life, limbs, health, comfort and quiet of all persons, and protection of all property within the state, according to the maxim sio utere tuo ut alienum non laedas: ” Thorpe v. Railroad Co., 27 Vt. 149. In Com. v. Alger, 61 Mass. 53, Mr.
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Opinion by
Mr. Justice Sterrett,
We quite agree with the learned president of the common pleas in saying “ that a grade crossing at the place selected by defendant is so exceedingly dangerous that it should not be allowed if there is any power in the court to prevent it; ” but we are not prepared to assent to his conclusion that the court has been shorn of that power by the eighteenth section of the act of May 14,1889, under which defendant company was incorporated.
It is impossible to consider the testimony in this case, in connection with the statement of facts agreed upon by counsel, without being forced to the conclusion that the crossing in question is one of those death traps which should not be permitted to exist in any community. One of the witnesses, whose large and varied experience as a railroad superintendent entitles his opinion to great weight, says: “ My own judgment in regard to a street crossing, either by horses, electricity or cable, is that any one attempting such a crossing at camp Copeland is no less guilty than a man who would in cold blood murder his fellow being. ... I mean by that, what I have said to these people,that no power on earth, nor any arrangement, nor any mechanical, electrical or other device that I am personally aware of at present, can prevent the loss of life.” Again, speaking of electric roads, he further testifies: “ I can say from personal observation that an electric street railroad is the most dangerous of all street car railroads, from the fact that there are two parties in control, the motorman in front with his electricity and the conductor in the rear with his trolley — and unless they both act in unison and fully understand what each other desires to do, trouble ensues. A conductor on the rear end of the car can place the motorman entirely helpless. In crossing the railroad at such points as Copeland there is great danger — as I have [125]*125personally noticed in Pittsburgh. — of their trolley being disconnected and the car stopping.”
Without further reference to the testimony, it is sufficient to say, that the very frequent and rapid passage, to and fro, of trains on the four tracks of plaintiff’s road (over two hundred daily between six o’clock, A. M., and midnight), the descending grade and curvature of said tracks, obstructed view, in short, all the environments of the crossing, co-operate in making it exceedingly perilous, so exceptionally dangerous, indeed, that it is surprising the directors of defendant company are willing to imperil the lives and limbs of their patrons by attempting to cross at grade.
It is conceded that the topography of the vicinity is such, that, at First street, about seven hundred feet west of defendant’s road, it would be practicable to cross plaintiff’s tracks by means of a substantial overhead viaduct or bridge, spanning plaintiff’s right of way and costing from $6,000 to $7,000, exclusive of approaches on the south side; that, “ a short distance east of the said road, a crossing, beneath plaintiff’s tracks, is also practicable, but at considerably greater cost, and in part through private property.”
More than twenty years ago, the necessity for special judicial control of corporations, and especially railroads, assumed tangible form in passage of the act of June 19,1871, entitled “An act relating to legal proceedings by or against corporations: ” P. L. 1360.
The first section provides that in all proceedings in which it is alleged that the private rights of individuals or the rights or franchises of other corporations are injured or invaded by any corporation, etc., it shall be the duty of the court to examine, inquire, and ascertain whether such corporation does in fact possess the right or franchise to do the act or acts complained of, and, if it does not, to restrain such injurious acts, etc.
The second section declares: “ When such legal proceedings relate to crossings of lines of railroads by other railroads, it shall be the duty of the courts of equity of this commonwealth to ascertain and define by their decree the mode of such crossing which will inflict the least practical injury upon the rights of the company owning the road intended to be crossed; and, if in the judgment of such court it is reasonably practicable to [126]*126avoid agrade crossing, they shall by their-process prevent a crossing at grade.”
The manifest purpose of this is not merely to discourage grade crossings because of their danger to the public as well as injury to the company whose road is crossed, but also to prevent them whenever in the judgment of the court it is reasonably practicable to avoid such dangerous and injurious crossing. As an exercise of the police power of the state, the wisdom of the provision has become more manifest, from year to year, as railroads multiply. Referring to the general necessity for exercising the restraining power thus conferred on courts of equity, the present Chief Justice, in Perry County Railroad, etc. v. Newport, etc. Railroad Co., 150 Pa. 193, 199, says: “ The time for grade crossings in this state has passed. They ought not to be permitted, except in case of imperious necessity. They admittedly involve great danger to life and property. In the earlier period of railroads this danger was overlooked, or, at least, disregarded. The desire of the people for this species of improvements tended to close their eyes to the dangers involved. The traffic then upon railroads was comparatively light, and trains ran at long intervals. The rapid development of the country, the enormous growth in wealth, population and business, has materially changed the relations of railroads to the public and to each other. The result is that we now see railroad companies and municipalities spending enormous sums in correcting the defects of earlier railroad construction, and especially in avoiding grade crossings. We must, therefore, construe the act of 1871 in accordance with our present surroundings.”
It is claimed by defendant, however, that the eighteenth section of the act of 1889, under which it is incorporated, expressly authorizes it “to cross at grade, diagonally or transversely, any railroad operated by steam or otherwise, now or hereafter built.”
If by the language thus employed the legislature intended not only to barter away the police power of the state in regard to such grade crossings, but also to limit the jurisdiction of courts of equity in relation thereto, then, indeed, the learned judge fitly characterized such legislation as “exceedingly vicious,” but we cannot think any such construction as that-[127]*127should be given to § 18 of the act (art. 16, § 8, const.). It is a well recognized principle of legislation that grants of franchises áre made and accepted in subordination to the police power of the state. This results from the inherent nature of that power, which, “ in its broadest acceptance, means the general power of a government to preserve and promote the public welfare, even at the expense of individual rights: ” 18 Am. & Eng. Ene. L. 740. The exact scope of the term is not easily defined, but all agree that it “ extends to the protection of life, limbs, health, comfort and quiet of all persons, and protection of all property within the state, according to the maxim sio utere tuo ut alienum non laedas: ” Thorpe v. Railroad Co., 27 Vt. 149. In Com. v. Alger, 61 Mass. 53, Mr. Chief Justice Shaw speaks of it as a settled principle, growing out of well ordered civil society, that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it may be so regulated that it shall not be injurious to others or to the rights of the community. The principle finds appropriate expression in the maxim, salus populi suprema lex. “Franchises are always granted subject to the police power. The doctrine that grants of .franchises are contracts has also been frequently invoked in efforts to protect corporations from the operation of laws passed in pursuance of the police power of states. But all .agree that the legislature cannot bargain away the police power of the state: ” 8 Am. & Eng. Ene. L. 621, and notes. We are, therefore, warranted in concluding that a’surrender of that power was neither affected nor intended to be made by the act under consideration. Nor, do we think that the jurisdiction, conferred by the second section of the act of 1871, was in any manner restricted or limited by the act of 1889. As we have seen, the latter is entitled “An act to provide for the incorporation and government of street railway companies in this commonwealth.” This title conveys not the slightest intimation of any intention to interfere with the jurisdiction theretofore conferred on courts of equity relating to railroad crossings at grade.
The tenth section of the general railroad act of April 4, 1868, provides that “ railroad companies formed under the provisions of this act shall have the right to construct roads so as [128]*128to cross at grade the track or tracks of any other railroad in this commonwealth.” In Pittsburgh etc. R. R. Co. v. Railroad Co., 77 Pa. 173, it was held that the exercise of this right was subject to judicial control. It was there said: “ The appellee was subjected to the operation of the act of June 19, 1871. Under the act of 1868, the place where and the manner in which one railroad might cross another at grade were undoubtedly subjected to review by a court of equity. The fact that it might cross at grade gave it no perverse and arbitmy right to do so, regardless of the rights of the corporation injured thereby, and of the safety of the public. Every legislative grant is made with the implied reservation that it shall not injure others: Com. v. Penna. Canal Co., 66 Pa. 42. Railroads are public highways. They cannot, therefore, for all purposes, be considered private property only. As they possess a public character, they are subject to public supervision. Besides we cannot presume the legislature ever intended to divest itself of the exercise of the police power of the state. The right to regulate railroad crossings naturally flows from that reserved power. . . . Moreover, the evident intendment of the statute is to discourage crossing at grade. . . . Each succeeding year will increase the necessity for avoiding them. Their construction should now and henceforth be discouraged.”
We have no doubt electric railways are within the purview of the act of 1871. They are certainly within the mischief for which the second section provides a remedy. In Hestonville R. R. Co. v. Phila., 89 Pa. 210, it was held that the act of May, 1861, entitled an “ act relating to railroad companies,” included passenger railway companies. This was approvingly followed in Citizen’s Pass. Railway Co. v. Pittsburgh, 14 W. N. 268, wherein it was held that the real estate of a passenger railway company was within the meaning of an act making real estate of “ railroads ” liable to taxation.
The view we have thus taken of the main question renders unnecessary the consideration of minor questions presented by the record.
Decree reversed, with costs to be paid by defendant, and record remitted to the court below with instructions to enter a decree perpetually enjoining defendant from crossing plaintiff’s road at grade, etc.