Commonwealth v. Franklin Canal Co.

The opinion of the Court was delivered, by Black, C. J.

— The Franklin Canal Company was incorporated by the legislature, on the 27th April, 1844, for the purpose of reconstructing and repairing the Franklin Division of the Pennsylvania Canal, from the aqueduct over French Creek to the mouth of French Creek. By the act of incorporation the proprietary rights of the state to that division of the canal was vested in the company, together with the surplus water-power, toll-houses, implements, and all property, real and personal, which the Commonwealth owned there for the use of the canal. On the 9th of April, 1849, the company was authorized to construct a railroad instead of repairing the canal, if they should think it more expedient, and to use the graded line or towing path of the canal as the bed of the road; and by the same act the privilege was granted to the company, upon increasing its stock to $500,000, of extending northward to the lake, and south to Pittsburgh.

The Attorney-G-eneral in the bill before us complains, on behalf of the Commonwealth, that the defendants, instead of doing what the act of incorporation, and the subsequent laws extending it, authorized them to do,„ have proceeded to construct a railroad from Erie to the Ohio state line, without any purpose of making the road between Franklin and the lake; but with the sole intent to form a connection with a railroad running from the state line to Cleveland. This the bill avers to be such an injury to the Commonwealth as can only be remedied by an injunction: because, — 1. The Commonwealth is interested in the proper application of the funds of the company'to the purposes for which it was chartered, the Franklin canal being given to it with the right to resume it to the use of the state. 2. A railroad from Pittsburgh to Erie would have been tributary to the works of the state; but the road actually made, will divert the trade and travel in another direction, to the diminution of the revenues and the detriment of the people. 3. The railroad is an unauthorized and illegal obstruction of certain public highways across which it passes. 4. It is inconsistent with the policy of the state to surrender the advantages which her position *125 gives her of controlling the commercial intercourse between Ohio and New York. 5. If this surrender were consistent with policy, it is of great pecuniary value, and could be disposed of for a large sum.

The counsel on behalf of the Commonwealth have moved us for a preliminary injunction to restrain the defendants from proceeding with their work, or using it until the final hearing and determination of the cause. To sustain this motion, affidavits have been presented, from which it appears that the defendants have already made a railroad, commencing in the city of Erie, at the depot of the Erie and North-east Railroad (which extends into the state of New York), and terminating at the point where the Cleveland, Painesville, and Ashtabula Railroad strikes the line between Ohio and Pennsylvania. This road is now in use, carrying the freight and passengers which arrive in both directions on the respective roads with which it connects.

Numerous difficulties in the way of a preliminary injunction have been suggested by the defendants’ counsel. Rut the great central point on which the rights of all parties must finally turn, is, whether the conduct of the Company in making the road they have made, is authorized by the charter. If it be not consistent with the act of incorporation, then it is a lawless aggression upon the clearest right, and the most valuable prerogative which a state can possess. It is in vain to deny that the Commonwealth has an interest in this business. To usurp the right of eminent domain, and establish a thoroughfare for the benefit of those who are not our citizens, by means of a railroad laid down on our soil without asking the leave of the government, is something more than a mere insult. It touches the revenues of the Commonwealth as well as her pride, and it is no imputation upon the honor and magnanimity of a state in debt forty millions of dollars, to say, that she is willing to protect both the pockets and the feelings of her people. It is not a disgrace that she thinks of justice to her creditors before she parts with her resources to those who have no claims upon anything but her courtesy. If the railroad complained of has been made in violation of law, it is such a wrong as will surely be righted somehow; and therefore those who are charged with committing it, will be glad to have our opinion, whether it be for them or against them. If it be true that the defendants have been guilty of conduct which cannot and will not be tolerated, the sooner they are made aware of the extreme peril to which they have exposed themselves, the better for them. For these reasons, principally, we proceed to examine the charter and its supplements, and to compare them with the acts of the company, that we may see how they agree together.

The original act of incorporation makes the company a gift of *126 tjie Franklin division of the state canal, from the aqueduct to the mouth of French Creek; together with all property, real and personal, which the Commonwealth owned for the use of that canal, and authorizes the reconstruction and repair of it by the company. The Act of 9th April, 1849, authorized them, instead of repairing the canal, to make a railroad, and to use the towing path for the bed of the road. Another section of the same Act contains this provision, “That upon the said company’s increasing the stock thereof to five hundred thousand dollars, it shall have the privilege of extending from the north end thereof to Lake Erie, and from the south end thereof to Pittsburgh, by such route as the said company shall deem the most expedient and advantageous.” It is upon these words that the defendants now rely to make out the lawfulness of constructing a railroad from the city of Erie .to the Ohio state line.

We will not pause for a definition of the word extend, nor stop to consider whether the main purpose of the company’s existence must be accomplished before an incidental privilege can be exercised. We will not inquire whether a railroad which does not exist, can’be extended. If the defendants had obeyed their charter in other respects, we would be too anxious to protect them in the prosecution of their enterprise, to allow them to be defeated on points so sharp as these.

But assuming that the clause, quoted above, gives to the Franklin Canal Company the right simply to make a railroad from Pittsburgh to Lake Erie, without any restriction, expressed or implied, as to the part of the work which shall be first done (and this is the utmost that ought to be claimed), can we say that they are within the law in making a road from the city of Erie to the Ohio line ? To this question, the only answer we can give is a most emphatic negative. The more we have reflected on the case and examined the affidavits and arguments of the defendants, the more deeply have our minds been penetrated by the conviction that the charter creates a simple duty, which has been most palpably violated.

No human mind can be so perverse as to doubt that the object of the legislature in passing the Act of 1849, was to make a connection by railroad between Pittsburgh and some harbor on the lake. Instead of this a connection has been made between Buffalo and Cleveland, with no more practical regard for either of the designated termini than if the corporators had never heard of them. The state contemplated an improvement which would bring a certain portion of the western trade through her own works to her own commercial cities. But the privileges she gave for that ■purpose, have been so perverted as to carry that trade away; increasing.the wealth and adding to the advantages of her rivals.

*127 The road made by the defendants begins at the depot of the Erie and North-East Railroad, three-quarters of a mile away from the lake, and one hundred and ten feet above it, and runs thence as directly as the nature of the ground will permit, to that point on the Ohio state line where the Cleveland, Painesville, and Ashtabula Railroad meets it: and there it stops. The defendants ask us to give a solemn judgment that this is extending a road which has not been made between Franklin and the aqueduct, over French Creek, from the north end thereof to Lake Erie. We do not say that there is any obligation to begin at one place more than another, and if this could'be properly called a part of the work required, it might very well be justified. But it is not part of the road chartered; it is the whole of another road not chartered. It bears no resemblance to that described in the act of incorporation. It is different at both ends — different in character, location, and object — and is used at this moment for purposes totally opposite to those which the legislature ever expressed an intention to permit.

But they urge that inasmuch as their act of incorporation permits them to extend, the road from the aqueduct to the lake, “by such route as the said company shall deem the most expedient and advantageous,” they are at liberty not only to begin at either end or in the middle, but to deviate from the natural and proper course for any purpose which may be advantageous to them ; and they do not conceal that the profit of a connection with the Ohio road, is their motive for making it. This is a grave error. It is not their own, but the advantages of the route as a route, which they are permitted to consult. . Between two routes they may choose the one which will, in their opinion, lead them most advantageously to the point fixed by law. But they must not turn aside to effect another and unauthorized purpose, however profitable it may seem to the finances of the company or the private fortunes of the stockholders. Every railroad company has and must necessarily be allowed to have the same discretion, which this one had, to choose the best route between fixed points; but the authority to depart from the route has never before been claimed. No one ever thought because the Pennsylvania Railroad Company had a right to choose its route between Harrisburg and Pittsburgh, that it therefore had a right to make a road from Harrisburg to Easton, or to Sunbury, or to the Maryland line; or that it could begin at Pittsburgh and go to Virginia, upon the plea that such a location would be best for the interests of the company. These are extreme cases, but they illustrate the principle. A deviation of half a mile to effect a forbidden purpose, is not more lawful than if it were a hundred miles out of the way.

Besides; we hold without doubt or hesitation that no railroad *128 company can connect with a foreign railroad which meets it at the state line, unless expressly authorized by its charter, or unless such connection cannot be avoided without losing the advantage of what is clearly the best route. If this be not so, the doctrine of strict construction is a mockery. The right of determining to what extent and in what manner our territory shall be made a thoroughfare for the benefit of foreign corporations, belongs to the state herself. It is so important to the interests of our own commerce and the prosperity of our own public works, that no proposal to surrender it has ever been made without grave deliberation, and seldom without more or less opposition. The fiercest of our legislative struggles have been upon bills granting rights of way. The state will not be held to have parted with this -right until she does so in plain words, of which the sense cannot be mistaken. It will not pass by construction as an incident of the privilege to make a railroad between two designated points within the state.

This connection also violates the spirit if not the letter of the Act of 15th April, 1851, which forbids all connections by means of private railroads with any railroad authorized by the laws of New York or Ohio. This act was intended to guard the territory of the state against lawless invasions like the present. True, the prohibition does not extend to companies who profess to make such connections under their charters. And why ? Because some of them are expressly authorized to make them, and those which are not so authorized, are impliedly forbidden — as much forbidden as if their cases were included in the terms of this act.

The question of state policy is nothing to us. It is' not for us to say whether or not it is just, generous, or prudent for the state to make railroads, or suffer them to be made by others, without regard to any consideration but the convenience of neighboring states. If it be the policy of this Commonwealth to furnish such facilities to the trade of her rivals, the Franklin Canal Company is decidedly not the instrument she has chosen to carry it out; else it would have been so expressed in the charter. But the law is otherwise written, and that is our only guide.

If the defendants had happened to make these connections at both ends of their road, in the prosecution of what they thought their duty, they might be entitled to more sympathy in their day of trouble than they are likely to have. But such accidents never occur, and certainly did not occur in this case. They must have known that the depot of the North-East Bailroad was not a harbor on the lake, and they could not mistake the terminus of the Ohio road for the French Creek aqueduct. They may not have known that it was wrong to make one road under a charter which authorized another, but to suppose that they thought them identical would require “the charity which believeth all things.”

*129 It is said, however, that they intend to make the road to Franklin. This is a good intention certainly, but not good enough to sanctify an evil deed. It is no excuse for doing a wrong that they mean also to do a right. If they will immediately break up the connection complained of, and convert their work to the purpose which they say it was designed for, though it may not atone for the great fault they have committed, it will certainly be better than persisting in it.

But there are certain facts which indicate the absence of all such intention, unless at a very remote period. 1. Dividing eight per cent, of the net profits among the stockholders, is not applying all their means to the finishing of the work. 2. The agreement with the Ohio company is for an indefinite time. It covenants for the joint use of the road at the joint expense, and for the joint profit of the two companies. It makes no allusion to nor provision for an intersection from the direction of Franklin. 3. It is said on the part of the defendants that a survey was made for them of the whole line, from Franklin-to Erie, in the summer and fall of 1849, a report of which was made and adopted on the 10th of January, 1850. This report has been submitted to us, and it is entirely silent about all that part of the line’ between the first lock at the outlet of the French Creek feeder and the intersection with the road now in use. Where, how, or when that intersection is to be made we are not informed. The two divisions, located by this survey, seem to have been intended for different purposes, and as separate works, and not to be used together. The engineer, addressing the company at the close of his report, says, “ The Erie division of your railroad will form a most important link in the great chain connecting the west with the east — the lakes with the sea-board — the producing with the manufacturing parts of the country,” to. He describes the object of the other division thus:

“ The Franklin section of your road will form a connection much wanted between the navigation of the Allegheny and that of the French Creek feeder, and will form a present continuous means of communication between Pittsburgh and Lake Erie, by way of the river, your road, the French Creek feeder, and the Extension Canal to the harbor of Erie.”

The valley of the Conneaut is without doubt the best route from Erie to Franklin, if we believe the evidence before us. But we have no means of determining where the valley can be reached most easily from the lake-shore. A map has been submitted to us with the defendants’ affidavits, on which the southward curve from the line of the finished road is marked at two places, one about five miles east of the Ohio line, and the other about half a mile. But neither of them appears to be the line of any survey. We well satisfied that the to into the *130 valley of the Conneaut is not by the terminus of the Cleveland road. The route followed by the defendants goes very straight to that terminus, passing the points of divergence as if they were not there, and looking only to the west.

This is a motion for a preliminary injunction. The counsel of the defendants have urged many arguments, with great power, against the right of the plaintiff to claim it under the circumstances of this ease. We could not think of granting such a motion without weighing these objections well, and finding a clear answer to each of them. Rut the discussion of them is unnecessary, since there is another insurmountable reason for refusing the motion. There is an Act of Assembly which, according to our construction of it, directly forbids the awarding of a preliminary injunction in any case where the Commonwealth is the plaintiff. The statute I refer to is that of 6th May, 1844, and says, “ No injunctions shall be issued by any Court or judge, until the party applying for the same shall have given bond with sufficient sureties to be approved by said Court or judge, conditioned to indemnify the other party for all damages that may be sustained by reason of such injunction.”

This of course does not mean final injunctions, which conclusively settles the rights of the parties, leaving no question of future damages. We cannot doubt that it was intended to prevent men’s rights from being jeoparded by special injunctions awarded during the pendency of causes. The words are broad and general. They apply to all cases, and we cannot see upon what principle we could except a case in which the Commonwealth is plaintiff. Rut the Commonwealth can give no bond, there being no organ of the government authorized to execute it for her; and if she could give bond, she would not be suable on it. The law which forbids an injunction to be granted without bond from the party can only be obeyed, in this case, by refusing the injunction altogether.

This disposes of the matter for the present. We might have refused the motion without more than a mere reference to the statute which made it necessary. Rut after the elaborate and able argument of counsel, and the full affidavits submitted, we thought the parties entitled to some expression of our opinion on the main question. A mere naked statement of our conclusion without the reasons, would have been unjust to ourselves; and hence this somewhat extended discussion of it.

Mr. Justice Gibson, who was prevented from sitting in the case, but who has considered it on the printed arguments, authorizes me to say, that he fully concurs in the views of the majority, as I have expressed them.

We feel compelled, by the Act of 1844, to refuse injunctions in cases like this, at least until the legislature shall provide for giving bond or dispense with the necessity of it.

Motion for preliminary injunction refused.