Commonwealth ex rel. Hensel v. Sturtevant
The Commonwealth of Pennsylvania ex rel. William U. Hensel, Attorney General v. Peleg Sturtevant and Henry F. Zaring, Owners' and Operators of "The Liverpool Ferry."
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Opinion of the Court
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Opinion by Mr. Justice Dean,
By special act of assembly of March 21, 1865, the common *331 wealth granted to one William Inch and his assigns, a ferry-franchise for foot travelers across the Susquehanna river, at the village of Liverpool, Pennsylvania. The right to conduct the ferry was exclusive in the grantee, and the legislature stipulated that no other grant would be made for a ferry to others, within one half mile above or below; upon this condition, however: “ That the grantee and his successors should at all times keep the ferry in good order and repair, and furnish the needful facilities for ferrying foot persons over said river.”
The grantee proceeded to construct and operate the ferry, and his successors, these defendants, were in the control and management of it, on September 12, 1894, when the suggestion for a quo warranto was filed by the attorney general. Defendants had succeeded to Inch some years before. The information avers: That the defendants have for several years neglected to furnish facilities for passing foot travelers across the river; have not kept it in repair, or complied with the conditions of the grant; then follow the specifications: 1, the ferryboats are and have been unfit, inadequate and dangerous; 2, the employees in charge of the ferry are and have been inexperienced, incapable and negligent; 8, defendants do refuse and have refused, on divers occasions, to ferry travelers over the river when requested, so that they have been compelled to go to other ferries a long distance above or below; 4, that defendants and their predecessors have charged excessive and illegal tolls for ferriage; 5, have been guilty of other acts of misuser and nonuser; whereby, it is averred, the condition of the grant has been broken, and the exclusiveness of the franchise has become forfeit to the commonwealth. On this suggestion, the quo warranto issued, directed to defendants to appear and show cause why they claim the exclusive grant to establish and maintain a ferry at that point. To this defendants appeared and filed plea denying all the averments in the suggestion, and on replication by plaintiff, issue was joined, and the cause proceeded with to trial before a jury. The trial occupied two days; many witnesses testified; the evidence was conflicting, and was submitted by the court to the jury, who found a verdict for plaintiff. Although the evidence is not before us, the parties and the court below assume, that there was evidence sufficient, if the jury believed it, to sustain the averments and warrant the verdict. After ver *332 diet, however, the defendants filed a motion in arrest of judgment, for the reasons: 1, there was not that certainty in the information required by law ; 2, the writ of quo warranto cannot be used to forfeit a part of a public franchise; 3, there is no averment that the acts complained of were wilful; 4, that the acts complained of were acquiesced in for so long a time that this method of redress cannot be adopted; 5, no legal cause of forfeiture is set forth.
After argument, the court, in opinion filed, sustained the motion'and arrested judgment; from this order, plaintiff appeals. The learned judge of the court below sustains the motion, in substance, for two reasons: First, the averments in the information are too general, in that they do not set out the time within which the acts were committed, the name or names of any incompetent employees, the names of any persons who were refused ferriage, or from whom excessive tolls were demanded. In these particulars, he holds that the same certainty is required as in an indictment for a misdemeanor. Second, he is of opinion that the failure of the suggestion to aver that the acts complained of were “ wilful,” is fatal, and no judgment for plaintiffs could be entered because of that omission.
While the opinion is forcible, on the premises assumed and sustained by the authorities cited, it seems to ignore the nature of the condition imposed by the special act, and the character of the proof necessary to show a breach of it. If a single act of omission or commission were sufficient to work a forfeiture, and the commonwealth sought to rest its case on proof of such act, the opinion of the court would be sound. As has been noticed, the defendants, when called on to plead, filed a general denial to the information. If, at that time, they had demurred for the same reasons set up after verdict, it may be that the court, unless the charges were particularized by plaintiffs within a reasonable time before trial, would have been justified in sustaining the demurrer. And this would have been done, not because the charges were not certain enough to warrant judgment, but because the court might have assumed that they lacked that definiteness which would enable respondents to defend against them. Or, on application by defendants, the court might, and doubtless would, have ordered plaintiff to file a bill of particulars, which would have reached the same end.
*333 It must be borne in mind, however, that in all applications for this writ, before it issues, the party charged has always one and often two hearings before the commonwealth’s officers; the plaintiff’s case must then, to a great extent, be disclosed; not only the nature of the charges, but the particular evidence on which they are based and the names of witnesses to sustain them, all come to the knowledge of the respondent. It may well be, then, that when the issue is framed in court, he is in full possession of plaintiff’s case, and requires nothing further, because he apprehends no surprise. Here, defendants went through a prolonged and careful trial; took their chances of a verdict; they lose, then raise an objection which goes to a matter just as obvious before trial as afterwards. To succeed by such a method of practice, the party adopting it should have a very strong case to induce the court to sustain a motion in arrest of judgment, based on purely formal and technical defects.
What conduct of defendants in operating their ferry under the grant will warrant a withdrawal of the franchise in part by the commonwealth ? The second section of the special act says: “ The said William Inch, his heirs and assigns, shall own, establish and have the exclusive right to use the said public ferry, and keep the same in good order and repair, and furnish all needful facilities for ferrying foot persons across said river, and receive as tolls for each person a sum not exceeding twenty cents.” This is the full extent of the exclusive grant. Now comes the condition plainly annexed, and upon which its exclusiveness depends : “ That no person or persons shall be permitted to keep a public ferry within one-half mile above or below said ferry, so long as the said incorporator or his assigns afford facilities for crossing said river.”
The act or omission to act which will constitute a violation of the condition must be a course of conduct, not a single failure to carry a passenger, or several isolated acts of negligence, but a continued, persistent neglect of duty must be shown, before a failure to “ afford facilities,” would be proved. “ Facilities,” in the sense here used, means everything incident to the general, prompt, and safe carriage of passengers, boats in good repair, appliances answering the purpose, and readiness and willingness to perform throughout the year. Interruptions by ice, floods, accidents to machinery or employees might often occa *334 sion temporary inconvenience to the public, but of these the public could have no right to complain. It is obvious that the charge which would cover a violation of the condition must go to a persistent and general course of conduct, covering more than special days and acts; it must be continuous through months and perhaps years. This, the plaintiff concisely and clearly averred; his proof, necessarily, must come from many witnesses, part of the traveling public, to whom ferrying facilities have not been afforded; they must testify to acts of defendants on many days, though each one would, probably, be able to testify to but one act on one day, but all of them together would testify to acts and days spread over a considerable period; their testimony, taken as a whole, would show a continuous state of affairs at the ferry, and would prove facilities had not been afforded. The averment would then be proved; and there is no reason why such averments would not, in view of such proof, warrant a judgment. We are not speaking now of what defendants might have demanded from the discretion of the court, to enable them to prepare a defense; they demanded nothing. We are discussing only whether the averment is lacking in legal formality and definiteness under this statute. This is the exact point decided by this court in Commonwealth v. Commercial Bank, 28 Pa. 391 . There the quo warranto was issued against the bank to forfeit its charter, because of exacting usurious rates of interest. One of the counts, the second, in the information, charged : “ For many months past, the defendant has been in the constant practice of discounting promissory notes at exorbitant and usurious rates of interest, far exceeding the rate of one half of one per centum for thirty days.” The special demurrer to this count was that it did not allege any facts to sustain it, or any of the particulars of such alleged dealings. This court held the count good, saying: “It is not necessary that the acts constituting the offense be particularly described with all their circumstances, if it can be distinctly defined without this, and much of the particularity of pleading comes from an abundant caution, rather than from the requirements of the law. But many offenses are composed of a class of forbidden acts, punishable as a class, and such offenses are properly described by the general term under which the acts constituting them fall, and are individuated only by time and *335 place.” And again: “ It is the diversion of its business out of the prescribed way that constitutes the offense, though the proof of it can be made out only by giving particulars. The particulars which it is thought ought to have been given are not the facts charged, but the evidence of them, and are properly left out.”
We think, under this special act imposing the condition, the charge of a violation of the condition is sufficiently certain to sustain a judgment on the verdict.
As to the omission of the word “ wilful,” we do not think it essential, because a neglect or failure to “ afford facilities for crossing said river ” is the breach of the condition on which the exclusiveness of the franchise is forfeited. The information avers an unlawful and negligent operation of the ferry; this is sufficient after verdict, because the objection is to an omission purely formal. In an indictment, since the criminal code of 1860, it is sufficient to charge the crime substantially in the language of the act of assembly prohibiting it; and further, any objection to any indictment for any formal defect must be taken by demurrer or motion to quash before the jury was sworn, and not afterwards. Under the strictness of criminal pleading that now prevails in this state the defendant’s motion was too late.
The forfeiture sought by the writ is only that which confers the exclusive right, for it is only that part of it which is dependent on a performance of the condition. There is no reason why it should be held that the writ extends to the entire franchise or to no part of it.
There is nothing of merit in the remaining reasons. The judgment of the court below arresting judgment is reversed, and it is ordered that judgment be entered for plaintiff.
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