Pennsylvania Railroad v. Canal Commissioners

1. The Supreme Court, at its session in either of its districts, may issue writs of mandamus to any part of the state; and therefore, at its session at Pittsburgh, it may issue a writ of mandamus to the Canal Commissioners, though their chief place of business was at Harrisburg, in the Middle District of the state. 2. The Pennsylvania Railroad Company by its Act of incorporation has no legal rights upon the state works. The power to_ run cars over the Columbia and Philadelphia Railroad has not been given to it by the Act of 13th March, 1847, which authorizes any Railroad Company to run cars over another road connected with their own, the Pennsylvania Railroad not being so connected with the state road, as the former terminates at Harrisburg. 3. Though the word “ individuals” in the Act of 15th April, 1834, authorizing individuals to place cars on the Columbia Road, may include corporations, yet as such privilege is withheld by its Act of incorporation, the Pennsylvania Railroad Company is not authorized by that Act to use the said state road. 4. Nor is such privilege given to it by the Act of 23d April, 1852, authorizing it to purchase and hold certain real estate in the comity of Philadelphia. Corporate powers are not to be created by implication nor extended by construction.

This was a proceeding had upon petition on the part of the Pennsylvania Railroad Company, by its President, praying for the issuing of a writ of mandamus to the Canal Commissioners. It was addressed to the Supreme Court for the Western District of Pennsylvania, in September, 1852. It represented, inter alia, as follows: | “ That they are a Company constituted a body politic and corporate, under this title, by an Act passed on the 13th day of April, 1846, entitled, ‘ An Act to incorporate the Pennsylvania Railroad Companyby which enactment and various supplements, they are authorized to construct and use a railway from Harrisburg to Pittsburgh, to own land within and near to the city of Philadelphia, and to exercise such other franchises as may be necessary or convenient for the full benefit of the said railway ; but which said Act and its supplements, the petitioners, for greater certainty, refer to as a part of their present petition. “ The railway thus authorized, is now nearly finished, and they have purchased land and built valuable structures, for the various purposes of transportation at West Philadelphia, the eastern terminus of the Philadelphia and Columbia Railroad, known as and commonly called the Columbia Railroad. They have been running cars both by themselves and other persons, for the transportation of passengers, merchandise, and the United States mail, over such parts of their railroad as are finished, and for more than a year over the said Philadelphia and Columbia Railroad, belonging to the state of Pennsylvania, and a railway intervening between the eastern terminus of the railway of the said Pennsylvania Railroad Company, belonging to the Harrisburg, Portsmouth, Mount Joy and Lancaster Railroad Company. “ That one of the great objects of the law incorporating the Pennsylvania Railroad Company, was to connect Pittsburgh with Philadelphia, and to enable the latter as an Atlantic city, .to participate more largely in the commerce of the west than she was able to do by means of the main line of the public works of Pennsylvania, and especially than she should do upon the completion of rival railways, in the course of construction by the respective states of Maryland and New York. “ In order to enable the Pennsylvania Railroad Company to carry out the great objects of their expensive work, it was necessary that their cars should have the right to run over the said two intervening railroads between Philadelphia and their eastern terminus at Harrisburg. On the 21st day of April, 1849, the petitioners entered into an agreement with the said Harrisburg, Portsmouth, Mountjoy, and Lancaster Railroad Company, for the use of their railroad, for the period of twenty years; (a copy of which agreement was attached.) “ That for some years, a large portion of the passenger' business done on the Philadelphia and Columbia Railroad, was performed by a company whose cars were known as the Eagle Line. At the solicitation of a member of the Board of the then acting Canal Commissioners, the petitioners were induced about the month of March, 1851, to purchase from said company all their cars; since which time down to the 15th instant, inclusive, the said cars, and others for the conveyance of passengers and the United States mail, as well as freight, were used and run by the said petitioners,' over the said Philadelphia and Columbia Railroad, with the knowledge, assent, and approbation of the Canal Commissioners, a body constituted by law to superintend the said railroad as one of the public works of the state. “ That the petitioners paid to the Canal Commissioners, or their duly constituted agent, from time to time as required, such tolls and other charges, as were imposed by the said Canal Commissioners, both for the conveyance of freight and passengers over said railroad, and in all other respects complied with the rules and regulations of said railroad. “ On the 20 th day of May last, the petitioners received notice from the said Canal Commissioners of a resolution adopted by the Board on the previous day, stating that a contract had been formed with Messrs. Bingham & Dock, for the carriage of all passengers and mails over the state road, except passengers carried by the West Chester Railroad Company, and by market cars. “ That the contract was to go into effect by its terms on the 1st of July ensuing, a copy of which notice is hereto attached. “ Since the date of this notice, a publication has been made, under the apparent authority of the Canal Commissioners, of which a copy of the paper purporting to be a copy of the contract above referred to, forms a part.” They charged that if the said Canal Commissioners made such a contract as is contained in that paper they made it without any public notice inviting proposals for such a contract. “ They also annex a copy of a resolution passed by the said Canal Commissioners, on the said 19th of May last, prescribing the terms upon which transporters of passengers were to use the said Philadelphia and Columbia Railroad, including the toll and motive power. ’ The petitioners complied with this resolution by continuing to carry passengers, and paying the rates fixed therein, until stopped by the order of the said Canal Commissioners from using said railroad as hereinafter stated. “ The petitioners received a copy of a notice of another resolution, dated Towanda, June 12, 1852, postponing the commencement of the contract with Bingham & Dock, to the 16th day of August. “ Various advertisements were printed in several of the newspapers of the city - of Philadelphia, by Bingham & Dock, and the said Canal Commissioners, announcing to the public that the said Bingham & Dock, only (except the West Chester Railroad Com-party and market cars), could carry passengers, on and after the 16th day of August, 1852. “ On the 16th day of August last, two passenger cars, a baggage car, and mail car, belonging to petitioners, were taken by petitioners’ agents, from their passenger depot at the south-east corner of Eleventh and High streets, in the city of Philadelphia, at precisely eight o’clock, the usual and proper time for the morning train going west, and arrived on the railroad of the state, at West Philadelphia, at the regular time of attaching the train to the locomotive of the state, for conveyance, that being the place assigned by the said Canal Commissioners for said attachment, and the departure of westward trains, drawn by the motive power. The said cars contained respectively thirty-three passengers, or thereabouts, the baggage of said passengers, and the United States mail. The passengers were bound to various places on the Pennsylvania and Columbia Railway, to Pittsburgh, and to points west of that city. “ The agent in charge of the locomotive and train of cars, on behalf of said Canal Commissioners, was then and there requested by an agent of the petitioners, authorized for that purpose, to attach or permit the attachment of the said ears of the petitioners to the train which was to be drawn by the locomotive engines belonging to the state. The said agent acting as he said, and as petitioners aver, for and under the authority of the Canal Commissioners, refused to permit or to make any attachment whatever. The locomotive engine was started on its way to the west by order of the Canal Commissioners, carrying only the train of cars belonging to Bingham & Dock, leaving behind the said cars of the petitioners, which the said agent refused to attach or permit to be attached, and convey or draw or permit to be conveyed and drawn, under the authority aforesaid. On the same day, to wit, the 16th day of August last, passenger cars of the petitioners for the two other trains going west and east, both the way and through trains, were also duly offered at the proper times and places by their agents for attachment and conveyance as aforesaid, over the said Philadelphia and Columbia Railroad, and were refused by the agents of the Canal Commissioners such attachment and conveyance, it being alleged by said agents that the orders of the Canal Commissioners were not to take and transport, or permit to be taken or transported, the passenger cars of the petitioners over the said railroad. The petitioners say that the state tolls were duly tendered to the proper officers, by an agent of the petitioners duly authorized for that purpose in two of the aforementioned cases, before the cars were offered for attachment and transportation, and refused as aforesaid. They further say that the said cars offered for attachment to and transportation by the motive power of the state, were in all respects conformable to the rules and regulations of the Board of Canal Commissioners, and that the time and manner of attachment demanded, were also in conformity therewith. They further alleged, that the refusal to permit to he attached and transported, the said cars of the petitioners, was made by the order and authority of John A. Gamble, William T. Morrison, and Seth Clover, the persons who now fill the office of Canal Commissioners. The petitioners further represented that since the 16th day of August last, the said persons, Canal Commissioners, have attempted, under color of their said alleged contract with Bingham & Dock, to force, by the exaction of illegal tolls, the through travel from its natural and accustomed channel around by a circuitous route via Columbia. It was alleged that these exactions were proposed to compel the petitioners to change their rules and connect with Columbia for said through passengers, a connection which they never made (except for a short time to enable necessary repairs to be made on the main and direct thoroughfare), because they believe it would prove injurious to the whole Pennsylvania line as a route to the west. The petitioners insisted that they had the right by law, and are authorized by their Act of incorporation, to transport passengers and tonnage over their own road and the said Philadelphia and Columbia Railroad, and that the refusal to attach or permit the attachment of their cars to the motive power as aforesaid, was without legal authority and contrary to law. They charged that the said John A. Gamble, &c., under the pretence of their authority as Canal Commissioners, have, in refusing to carry petitioners’ cars, as aforesaid, occasioned damage to the petitioners, and that great public mischief must ensue therefrom to petitioners, to the public treasury, and to the commerce of the state. ‡ ^ ^ ‡ ‡ ^ ‡ ^ They also charged that said acts of the said Gamble, &c., were without and in violation of the law and the rights of the petitioners. They prayed the Court to issue a writ of mandamus to the said John A. Gamble, &c., Canal Commissioners, requiring them to attach the passenger cars of the petitioners to the motive power provided by the Commonwealth for the transportation of passenger cars over the said Philadelphia and Columbia Railroad. Signed ■Sworn and subscribed the 4th 1 day of September, 1852. j J. Edgar Thompson, President. In the agreement between The Harrisburg and Lancaster Railroad Company and the Pennsylvania Railroad Company, it was agreed that the former would transfer to the latter their locomotive cars, machinery, materials and tools on hand, to be paid for at a fair valuation. The Pennsylvania Railroad Company was to have the exclusive use of the roads then or thereafter to be constructed by the other Company. The Pennsylvania Railroad Company was to use exclusively the Harrisburg and Lancaster Railroad for carrying and transporting all passengers and freight carried over their road to and from Philadelphia and Pittsburgh, during the term of the contract, which was to continue in force for twenty years, unless discontinued or altered by the consent of both contracting parties. In the contract executed on the 19th May, 1852, between The Canal Commissioners and Bingham & Dock, the latter party agreed to carry all the passengers over the Philadelphia and Columbia Railroad and intermediate points, except such passengers as the West Chester Railroad Company were then permitted to carry, and such market-men as are carried in market cars under regulations then existing. They also agreed to carry the United States mail as often as required by the Post Office Department— to collect the fare on each passenger — to stock the road with first class passenger cars — their compensation to be five mills per mile for each passenger — for emigrant passengers 2J mills per mile, &c. It was also understood that the agreement gave to the party of the second part, the exclusive right of carrying all the passengers over the railroad aforesaid, except those carried by the West Chester Railroad Company and by market cars. The'agreement was to continue in force for four years, commencing on 1st July, 1852. In the answer of the Canal Commissioners it was admitted that the Pennsylvania Railroad Company had been running cars for the transportion of passengers, merchandise, and United States mails for more than a year over the state road; but it was said that they had used the road exclusively under and in obedience to the regulations of the Board of Canal Commissioners. It was said that the subject of an arrangement meditated for the transportation of passengers over the state works, to be conducted under the control of the Canal Commissioners, was known to the President and Superintendent of the Pennsylvania Railroad Company not less than two months before the 19th May, 1852, the date of the agreement with Bingham & Dock; and that the Pennsylvania Railroad Company proposed an arrangement at a higher rate than was afterwards agreed to by Bingham & Dock; that under the arrangement made with the latter, there has been so far an increased revenue to the state of above $9000 over the corresponding period of the last year; and that the total gain to the state for transporting the mails and passengers during four years might be $150,000. The first Act of Assembly relating to a state railroad, is that of 9th March, 1827. By the 3d section of it, it was provided, That it shall he the duty of the Canal Commissioners to cause examination, survey and estimate to be made of the route for a canal, and also for a railway with locomotive or other stationary power from Philadelphia through Chester and Lancaster counties, so as to connect by the nearest and most eligible route with the Eastern section of the Pennsylvania Canal. By the 5th section of the Act of 24th March, 1828, authority was given to the Canal Commissioners to locate a railroad from Philadelphia to Columbia. By the 9th section of the Act of 6th April, 1830, it was provided “that the Board of Canal Commissioners shall appoint supervisors to take charge of such portions of the canals and railroads as shall be finished, for public use.” It was said on the part of the Pennsylvania Railroad Company, that the words “ public use” in the Acts of Assembly relating to the canal and railroad mean common use, in contradistinction to the use of the state: 6 Wharton 44; 2 Watts 23; 1 Baldwin 205; 2 B. A. 648; Shelford on Railways 67; Wolford on Railways 299. By the Act of 11th June, 1832, the Canal Commissioners were authorized to permit cars to he placed on such parts of the Columbia Railroad as are or maybe finished; and the Act of 15th April, 1834, provided that “ individuals shall have the right to place cars on the road, and, under such rules and regulations as may be adopted, attach their cars to the locomotive cars belonging to the Commonwealth, for the purposes of transportation.” This act in its title refers to both the railroads of the state. It was said on the part of the relator that this right is not confined to the transportation o'f merchandise, but embraces cars for the conveyance of passengers. It was also said that no act authorized the Canal Commissioners to purchase cars for either railroad, or boats for use on the canal. That their whole power was to keep those works in repair, to fix the tolls, to adopt rules and regulations concerning them, and to supply motive power for the railroads. That their powers on these subjects are to be found in the Acts of 24th March, 1828; 6th April, 1830; 11th June, 1832; 21st February, 1834; 15fch April, 1834; 8th April, 1834; 28th January, 1836; 16th April, 1838. Further: By theJAct of 8th April, 1834, the Canal Commissioners were'authorized to make rules and regulations relative to the railroads of the state, which were “ not inconsistent with the laws of this state.” Another provision of a similar character exists in the 12th section of the Act of 16th April, 1838; and it was contended that that power did- not authorize the purchase of cars or boats at the expense of the state, or the assumption of the carrying business or the exclusion of transporters from its use. The Pennsylvania. Railroad Company was incorporated in pursuance of the Act of 13th April, 1846. The 11th section authorized the location and construction of a railroad, beginning at and uniting with the western terminus of the Harrisburg, Portsmouth, Mountjoy and Lancaster Railroad, in the borough of Harrisburg: Provided said Harrisburg, Portsmouth, Mountjoy and Lancaster Railroad Company shall be subject to and consent to the same rate of tax on tonnage for the use of the state, as is provided to be paid in this Act, by the Pennsylvania Railroad Company; and •in case the said H., P., M. & L. Railroad Co. should not agree to comply with these conditions, within three months after the distance of fifteen miles from Harrisburg westward shall bona fide be put under contract, the said Pennsylvania Railroad Company are authorized to connect their road with the Columbia Railroad, at or near the borough of Columbia in Lancaster county, and thence terminating at such point or points in, at, or near the city of Pittsburgh, or other place in the county of Allegheny, with authority to extend the road or a branch to the town or harbor of Erie, as to the said president and managers may seem most advantageous or expedient. The Pennsylvania Railroad was never extended eastward beyond Harrisburg. An Act was passed on 18th March, 1847, by which it was enacted, That in all cases where two railroads in this Commonwealth are or shall be connected, it shall be lawful for the company owning either of the said railroads (with the consent of the company owning the other of said railroads) to run its cars and locomotive engines upon said other railroad, and to erect water stations and other buildings for the due accommodation of the cars and engines employed thereon, &c. If this Act of 1847 was not applicable to the railroads of the Commonwealth, it was said that the Pennsylvania Railroad Company had, by a subsequent Act, the right to pass with cars over the Philadelphia and Columbia Railroad to and from Philadelphia. That the right of the said company to transport passengers and tonnage over the Columbia Railroad, was given or confirmed by the Act of 23d April, 1852. By the second section of that Act, the Pennsylvania Railroad Company were authorized to purchase and hold the title to two several estates, situated in West Philadelphia and county of Philadelphia, and also to purchase the title to any portion of the Powelton estate, “ for the purpose of erecting thereon offices, station-houses, warehouses, shops, car-sheds, sidings, cattle-yards, and for such other objects as appertain to the legitimate business of the company, authorized by their Act of incorporation, of transporting passengers and tonnage over their road and the Columbia Railroad, not exceeding thirty acres of uplands. The boundaries of such quantity of land as said company may deem proper to take, to be determined by the President of the company, and the Governor of the State of Pennsylvania, or the President of the Board of Canal Commissioners; also the right to purchase and hold within the city of Philadelphia, such other property for depots, offices, and sidings as may be necessary or convenient for the transaction of the proper business of said company, authorized by their Act of incorporation.” This case was argued in Philadelphia.