their findings under oath, to said court, within thirty days after the date of such view, which date and time shall be fixed by the court when making such appointment.

SEC. 3. If the viewers shall report that any damages will be sustained by the owners or occupiers of such land, by reason of the construction or operation of such tramway or other devices for the carrying the product of such mines, the party or corporation giving the notice of its on their intention to construct such tramway or other device shall, either immediately pay the amount of such damages and the costs of the view and proceedings, or give bond to be ap proved by the court, condition to pay such damages and costs; and upon paying such damages and costs, or giving bond therefor, as above provided, shall be entitled to construct and operate such tramway or other device.

SEC. 4. Either party dissatisfied with the amount of damages as assessed by such jury may appeal from such assessment to the court of common plea of the county, and have the question of damages tried and decided by such court and a jury, as in other civil suits.

ANNOTATIONS.

TRAMWAYS ON PRIVATE ROADS.

1. CONSTITUTIONALITY OF ACT.

2. APPLICATION AND CONSTRUCTION OF ACT.

3. APPROPRIATION OF PRIVATE PROPERTY-LEGISLATIVE POWER.

4. APPROPRIATION OF LAND ASSESSMENT OF DAMAGES.

1. CONSTITUTIONALITY OF ACT.

It is not necessary to declare this act of May 5, 1911, (P. L. 167), wholly unconstitutional where the court may say only that the act can not authorize a private business corporation to appropriate private property for the construction and operation of a tramway for its own exclusive private business. Philadelphia Clay Co. v. York Clay Co., 241 Pa. St. 305, p. 315.

2. APPLICATION AND CONSTRUCTION OF ACT.

This act provides that tramways or other devices for moving the products of mining operations may be placed upon private roads laid out under the authority of the acts of April 4, 1901 (P. L. 65), and May 17, 1901 (P. L. 259). Philadelphia Clay Co. v. York Clay Co., 241 Pa. St. 305, p. 308.

This act in its construction and application must be distinguished from the acts relating to the appropriation of private property by a private corporation for the construction of a lateral railroad. These acts are sustained in so far as the right to condemn private property is involved on the ground that the public has the right to use such lateral railroads for every purpose for which they are authorized to be constructed. This is the only ground on which such acts can be sustained. When the public have the right to use such lateral railroads, then the appropriation is regarded as being for the public use, but it is not intended that the public at large can make any possible use of the tramways constructed under the authority of this act, nor can the public demand as a matter of right that a private business corporation should become a common carrier in the sense of being compelled to accept any freight offered for transportation. The property to be acquired under this act is for a corporation's own business purposes and not for a public use. The act can not authorize private corporations to appropriate private property for such a tramway. Philadelphia Clay Co. v. York Clay Co., 241 Pa. St. 305, p. 314.

8. APPROPRIATION OF PRIVATE PROPERTY-LEGISLATIVE POWER.

The act of May 5, 1911 (P. L. 167), gives to persons or corporations the right to construct a tramway or other device upon a private road for the purpose of conveying mineral mined from the lands of a private owner, that is the right of a mining company to construct a tramway or other device upon a private road for the purpose of conveying minerals mined from land owned or leased for that purpose. But private property can not be taken for private use and the legislature is without power to authorize such taking and the legislature can not authorize business corporations to condemn lands or property of a private owner for a private purpose.

Philadelphia Clay Co. v. York Clay Co., 241 Pa. St. 305, p. 308.

Under the right of eminent domain private property can only be taken for the public use and it is not within the power of the legislature to invest either an individual or a corporation with the right to take the property of a private owner for a private use, of some other individual or corporation even if a method is provided for ascertaining the damages being what shall be deemed just compensation.

Philadelphia Clay Co. v. York Clay Co., 241 Pa. St. 305, p. 310.

A public service corporation is created to serve the public and to carry out the corporate purposes the legislature may properly delegate the power of eminent domain; but a private business corporation has no public use to serve and can not be properly invested with the privilege of taking private property for private uses. The legislature can authorize the taking of private property for no other than a public use.

Philadelphia Clay Co. v. York Clay Co., 241 Pa. St. 305, p. 314.

4. APPROPRIATION OF LAND-ASSESSMENT OF DAMAGES.

This act authorizes the construction of a tramway to convey the products and minerals of a mining company over a private road and provides a method for ascertaining the amount of damages sustained by the land owner over whose land the tramway passes. It can not be said that the method provided for the ascertainment of damages is so objectionable as to require a court to declare the act unconstitutional on that ground. The inquiry must be whether the purpose for which the proposed tramway is to be constructed is a public or private use. If it is a public use, the legislature has the power to invest a corpcration with the right of eminent domain; but if it is a private use, the legislature has no such power.

Philadelphia Clay Co. v. York Clay Co., 241 Pa. St. 305, p. 310.

PUBLIC SERVICE COMPANIES.

APPLICATION OF ACT TO MINING COMPANIES.

See also Railroads, p. 872.

LAWS 1913, 1374, PP. 1377, 1386, 1420.

JULY 26, 1913.

AN ACT defining public service companies; and providing for their regulation by prescribing and defining their duties and liabilities; prescribing, defining, and limiting their powers, and regulating their incorporation, and, to a limited extent, regulating municipal corporations engaged or about to engage in the business of public service companies; creating and establishing a public service commission for the regulation aforesaid; prescribing and defining the powers and duties of such commission and its officers, including the exclusive power to regulate the construction, alteration, relocation, or abolition of the crossings of railroad corporations, street railway corporations, or other public service companies, and of public highways by the tracks or other facilities of said company; sections 1 and 2

repealing

of the act, approved June 4, 1883, entitled "An act to enforce the provisions of the 17th article of the constitution, relative to railroads and canals;" and the proviso of clause 3 and the provisos of clause 7 of section 34 of the act, entitled "An act to provide for the incorporation and regulation of certain corporations," approved April 29, 1874, and all other legislation inconsistent with or supplied by this act.

ARTICLE I.

DEFINITIONS.

SEC. 1. Be it enacted, etc.:

That this act shall be known, and may be cited, as the public service company law."

The term "public service company," when used in this act, includes all railroad corporations, canal corporations,

* natural gas corporations,

* * *

*

pipe line corporations, and also all persons engaged for profit in the same kind of business within this Commonwealth:

46

The term corporation," as used in this act, shall be construed to include all bodies corporate, joint stock companies, or associations, domestic or foreign, their lessees, assignees, trustees, receivers, or other successors in interest, hav ing any of the powers or privileges of corporation not possessed by individuals or partnerships, and shall not include municipal corporations, except as otherwise provided in this act.

The term "common carrier," as used in this act, includes any and all com mon carriers, whether corporations or persons, engaged for profit in the con veyance of passengers or property, or both, between points within this Commonwealth, by, through, over, above, or under land or water, or both.

The term "conveyance of passengers or property," as used in this act, includes any and all service in connection with the receiving, transportation, elevation, transfer in transit, ventilation, refrigeration, icing, storage, handling, and delivering of property, baggage, or freight, as well as any and all service in connection with the transportation or carrying of passengers.

The term "service" is used in this act in its broadest and most inclusive sense, and includes any and all acts done, rendered or performed, and any and all things furnished or supplied, and all and every the facilities used or furnished or supplied by public service companies in the performance of their duties

to their patrons, employes, and the public, as well as the interchange of facilities between two or more public service companies.

The term "facilities," as used in this act, includes all plant and equipment of a public service company, which includes all tangible real and personal property, buildings, materials, easements, rights of way, rights of trackage, subways, tunnels, * * reservoirs, purifiers, oil tanks, gas tanks, holders, retorts, ducts, pipes, pipe galleries, pipe lines, mains, meters, lamps, scrubbers, wharves, piers, docks, ferries, incline planes, side tracks, spurs, turn outs, switches, systems, stations, depots, terminals, terminal facilities, water or gas jet, wells, and any and all other means of instrumentalities in any manner owned, operated, leased, licensed, used, controlled, furnished, or supplied for, by, or in connection with, the business of any public service company:

ARTICLE II.

DUTIES AND LIABILITIES OF PUBLIC SERVICE COMPANIES.

SEC. 1. It shall be the duty of every public service company

(n) If a railroad corporation or other common carrier, engaged in the transportation of freight or property, to furnish, upon reasonable request, to all persons and corporations who may apply therefor, and offer freight or property for transportation, sufficient and suitable cars, vehicles, boats, motive power, or other facilities, as may be reasonably required for the transportation of such freight or property; or, in case at any particular time it may not have sufficient cars, boats, vehicles, motive power, or other facilities to meet the requirements for the transportation of property, then lawfully to distribute all available cars, vehicles, boats, motive power, or other facilities among the several applicants therefor, without discrimination between shippers, localities, or competitive or noncompetitive points, in accordance with the rule of distribution of the Interstate Commerce Commission. But preferences may always be given in the supply of cars, boats, vehicles, motive power, or other facilities for shipment of live stock or perishable matter.

(0) If a railroad corporation, upon application of any owner or operator of any lateral railroad, or any private side track, or of any shipper, tendering property or traffic for transportation, or of any consignee, to construct, maintain, and operate, at a reasonable place and upon reasonable terms, a switch connection with any such lateral railroad or private side track which may be constructed to connect with its railroad, where such connection may be reasonably practicable and can be put in with safety, and will furnish sufficient business to justify the construction and maintenance of the same: Provided, That whenever any lateral line of railroad or private side track has been so connected with a line of any railroad, or whenever any owner of such lateral railroad or any private side track has at any time heretofore sold or leased, or shall hereafter sell or lease, such lateral railroad or side track to any railroad corporation, any person or corporation shall be entitled to connect therewith, or to use the same, upon payment to the party incurring the primary expense thereof of a reasonable proportion of the cost of the said lateral railroad or private side track, and of the maintenance thereof; which shall be determined, in case of disagreement among the parties, by the commission, after notice to the interested parties, and a hearing. Provided that such connection and use can be made without unreasonable interference with the use thereof by the party incurring the primary expense or owning or leasing said lateral railroad or side track. (See Lateral Railroads, p. 160.)

(x) To give immediate notice to said commission of the happening of any accident in or about, or in connection with the operation of its property, facilities, or service, wherein any person shall have been killed or injured; and to furnish such full and detailed report of such accident, within such time and in such manner as the commission shall, by general rule or special order, or otherwise, require. Such report shall not be open for public inspection, except by order of the commission, and shall not be admitted in evidence for any pur pose in any suit or action for damages growing out of any matter or thing mentioned in said report.

(y) To observe and obey all and singular the lawful orders and regulations which may be issued or made by the commission in the exercise of the powers conferred upon it by this act.

ARTICLE III.

CREATION AND POWERS OF PUBLIC SERVICE COMPANIES.

SEC. 7. It shall be unlawful for any public service company after the first day of January, 1914, to render or furnish, or to offer to render or furnish, within this Commonwealth, any service of the kind or character rendered or furnished by it, until it shall have filed and posted its tariffs and schedules in accordance with the provisions of subsection (d) of section one of article II. SEC. 8. It shall be unlawful for any public service company

(a) To charge, demand, collect, or receive, directly or indirectly, by any special rate, rebate, drawback, abatement, or other device whatsoever, from any person or corporation, for any service rendered or to be rendered, a greater or less compensation or sum than it shall demand, charge, collect, or receive from any other person or corporation for a like and contemporaneous service under substantially similar circumstances and conditions.

(b) To make or give any undue or unreasonable preference or advantage in favor of or to any person or corporation or any locality, or any particular kind or description of traffic or service, in any respect whatsoever; to subject any particular person or corporation or locality, or any particular kind or description of traffic or service, to any undue or unreasonable prejudice or disadvantage in any respect whatsoever.

ARTICLE VI.

PRACTICE AND PROCEDURE BEFORE COMMISSION AND ON APPEAL.

* * *

SEC. 51. Sections one and two of the act, approved June 4, 1883, entitled "An act to enforce the provisions of the seventeenth article of the Constitution relative to railroads and canals; " * and the proviso of clause three, and the provisos of clause seven of section 34, of the act entitled "An act to provide for the incorporation and regulation of certain corporations," approved April 29, 1874 (P. L. 73), and all other acts or parts of acts inconsistent herewith or supplied hereby, be, and the same are also hereby, repealed: Provided, That the repeal of sections one and two of said act of June 4, 1883, shall not affect actions for violation of said act of June 4, 1883, instituted prior to the passage of this act.