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establish streets, determine lines and grades, pave and keep them in repair, and generally to see that the free and common right to an unobstructed passage over them is secured to the public. In the case of the Commonwealth vs. The Central Passenger Railway Company, 2 P. F. Smith, 506, the Supreme Court have decided that, to a certain extent, the city is the owner of the highways within her boundaries. The power, therefore, of the city to regulate the use of the streets for the public welfare is a near approach to an absolute power, and no authority short of the Legislature may abridge the dominion which the municipality possesses over highways, when that dominion is exercised inside of the grant of municipal corporate authority. That the Legislature may do this is beyond question; that which it has given to the local government it may take from it; it may entirely abrogate the power of the city over streets; or it may modify or change the same according to its will or caprice. In the exercise of this right, grants are every year made to private corporations, or to associations of individuals, of limited and restricted use of roads and streets, and to the extent of such grant, in any given case, is the general power of a municipality abridged. And yet these grants of special privileges must, in order to control or override the general powers of a public corporation, be clearly conferred. In the case of the Commissioners vs. Gas Company, 2 Jones, 320, the court say, any ambiguity in the grant must be construed against them, and in favor of the public. The rule of construction is, that in all such cases, any ambiguity in the charter must operate against the corporation and in favor of the public. In the Trenton Water Company, Pennsylvania Law Journal, 32, the rule is stated thus: Private corporations take their rights subject to the rights of individuals and communities; and the strong presumption of law is always against unconditional adverse privileges. This doctrine was recognized and acted on by this court in the case of the North Pennsylvania Railroad vs. Stone, 3 Phila. R. 421, where the city, by several acts of assembly, was authorized to culvert Cohocksink creek. The plaintiff was also by an act of assembly empowered to construct a railroad upon certain streets of the city. We held that the city could temporarily remove the railway of the plaintiffs, to the extent to which the same was necessary in the execution of its undoubted right to build the culvert; that the interests of the private corporation must for a time give way before the higher right of the public, whose convenience, comfort and health were all to be conserved by the construction of the culvert.

To this may also be added the general principle that where a private corporation accepts the grant of a franchise upon a highway, over which a municipality possesses a general power of regulation and control for public purposes, it accepts its special privileges upon the implied condition that it holds them, subject to the reasonable and necessary exercise of the general power of the municipality. "Until the Legislature overrides the local authorities their jurisdiction is not ousted:" Philadelphia vs. The Lombard, etc., Railway, 3 Grant, 405.

We do not, therefore, agree with the plaintiffs in the radical position on which they rest their application for an injunction, asserting that they are beyond all municipal control, in regard to a modification, or

change of the lines and track of their road, even when such modification is required by public necessity or convenience. We hold, on the contrary, that, having accepted their charter with the knowledge that the city possessed the most ample power to legislate by ordinance as to her streets and highways, to make all needed regulations for the most convenient enjoyment of the same, by the citizens of the Commonwealth, they are bound by an implied agreement to hold their special privileges subject to a proper exercise of this power by the councils of the city. This looks to regulation only of the franchises of the corporation, not to a restriction or destruction of corporate rights, and this regulation must be reasonable and necessary for common benefit, not in restraint of trade or imposing a burden without an apparent benefit: Goddard's Case, 16 Pickering, 504 Upon this principle the case in 2 Jones, 320, of Commissioners vs. The Gas Company, was decided. An ordinance of the Northern Liberties, prohibiting the opening of streets for the purpose of laying gas mains between December and March, was held to be a reasonable regulation, which bound the private corporation; and an ordinance which prohibited the gas company from opening streets for the purpose of introducing gas into dwellings was declared to be null and void, as an unreasonable exercise of authority. The vital question in every such case is, is the regulation or order of the municipal authority reasonable and necessary? If it is, it will be maintained; if it is not, it will be set aside.

This principle must not be confounded with that which was asserted in the case of The West Philadelphia P. R. W. Co. vs. The Commissioners of Public Buildings, Legal Intelligencer of March 28, 1873. It was asserted upon the argument that the ruling in that case was conclusive of the present motion in favor of the plaintiffs. We then said the act of August 5, 1870, under which the defendants claimed a right to take possession of a portion of the track and roadway of the plaintiffs, whereby their property in this portion of the road, and all corporate franchises incident thereto, were utterly destroyed, was null and void; because it was in conflict with the constitution of the State, which declares, that private property shall not be taken for public use without first making or securing compensation to the owner. We also said: It is true the defendants have proposed to give a new line or route of railway to the plaintiffs as a substitute for that which they intend to take from them. This route diverges from complainant's tracks at Merrick street, and is carried around the north and south sides of the proposed new buildings, etc. Our answer to this was, this would be satisfactory, if it were not for two substantial objections. First, plaintiffs have not the power to accept the offer of defendants; and second, the defendants possess no such rights as they propose to confer on the plaintiffs. The general remarks which follow this sentence, in the opinion of the court, as to the want of power in plaintiffs to lay new tracks on Market street, must be taken in connection with the point then under consideration, namely, a change of route of the Market street road, and the power to change location of track on Market street at the will of the plaintiffs, and of their own motion, which is an entirely different question from that which arises when the city becomes the actor, and from the highest considerations of public policy and necessity, undertake to regulate the use of the

street by ordinance, prescribing a change in location of a track of a railway in a street. If this does not amount to a destruction of corporate franchise, or to a serious injury to them, and if common benefit makes it proper and necessary that it should be done, we think it is within the power of the municipality to direct such change, and to see that it is accomplished. But the defendants further argue against the injunction, upon the ground that by an express stipulation of their act of incorporation, the plaintiffs have agreed to the exercise of the power now sought to be enforced. The 12th section of the act of May 19, 1857, appendix to P. L. 1858, page 687, provides that councils may, from time to time, by ordinance, establish such regulations in regard to said railway as may be required for the paving, repaving, grading, culverting, and laying water and gas pipes in and along said street, and to prevent obstructions thereon.

The preamble, if it may be regarded as explaining the true purpose and object of the ordinance of June 21, 1873, recites that the tracks of the two companies are so laid as to occasion inconvenience to the business men on Market street, and to others having occasion to use the same.. This in effect declares the tracks as now laid to be an obstruction to the business of the street. But it is not that kind of obstruction contemplated by the twelfth section of the charter of the company, which the city, by this grant of express power, is authorized to remove. Ordinances passed under this section could only prescribe regulations in relation to the road, in connection with laying pipe, etc., and to prevent obstructions thereon, on the railway. This evidently has reference to the travel of wagons on the track in such manner as to prevent obstruction of the cars; regulate stoppages at intersections of streets; the rate or speed of travel on the road; so that cars might not obstruct the travel of other persons on the street, or by being themselves obstructed, constitute an obstruction thereon.

This is wholly distinct from the track or roadway, being in itself a hindrance or obstruction to the business of the street. That the twelfth section of the charter of the plaintiffs gives to the city power to remove obstructions from the road, and not from the street generally, is, we think, evident, from the fact, that the city needed no such grant of authority, as the defendants contend is conferred by the act of 1858. It possessed at that time most sufficient authority to clear obstructions from public highways, but when the right was conferred on the plaintiffs to lay their road on Market street, the power was reserved to the city, to legislate for the removal of obstructions from the railway, if necessary. We do not think this point is well taken.

The defendants also ground their resistance to the application of plaintiffs, on the act of April 8, 1846, which prevents the courts in Philadelphia granting or continuing injunctions against the erection or use of any public works of any kind, erected, or in progress of erection, under authority of an act of the Legislature, until questions of title and damages shall be submitted, and finally decided by a common law court. We think it would be straining this law beyond its true meaning, to hold that a mere change in the location of railway tracks of two private corporations upon the street can be construed to fall under the designation of "public works." Nor can it with truth be asserted that such

works have been erected, or that they are in progress of erection; for the removal and replacement of the tracks, so far from having been erected or completed, has not even been commenced. The public work contemplated and already begun, is the repaving of the street; this is to be done for the benefit of the entire community, at public cost. But if the railway tracks are to be shifted to the centre of the street, they are and will continue to be the private property of private corporations. Nor is it intended that the city shall bear the burden of effecting the change, the ordinance providing that each corporation shall be compelled to reimburse the city, if the outlay is, in the first instance, required to be paid out of the treasury of the municipality. That the work may be done by the agents of the city, if done for individual corporations, does not make it public work or public property; it remains the property of private owners. We do not agree with the plaintiffs, however, that because the work is not done under a special act of the Legislature, that it is wanting in sufficient legislative authority, if there is in the act of incorporation of the city, or its supplements, to be found a grant of general power, sufficient to authorize them to remove the plaintiffs' tracks of railway. It may, in such case, be properly said to be done under the authority of an act of the Legislature.

This brings us back to the question, is the proposed interference by councils with the right of plaintiffs to continue to use their road as now constructed, justified by the law of necessity? Is the ordinance a reasonable and proper ordinance? Nor must it be forgotten that all that is proposed to be done, is to regulate the enjoyment of corporate franchises, not to destroy them, as was done by the action of the building commissioners taking absolute possession of the road between Juniper and Merrick streets. The ordinance does not aver that the tracks of the railway of the plaintiffs as they have heretofore existed, or that their use by the company plaintiff, have, or do now of themselves occasion inconvenience, to any portion of the public; but it is asserted that they do so in connection with the tracks of the Union Passenger Railway. This is not such an averment of inconvenience or obstruction as we can consider as at all conclusive of the fact itself. If the hardship recited in the ordinance be not occasioned by, or is not properly chargeable upon the plaintiffs, but by something which another has done, it is much more reasonable, and it is every way proper, to first endeavor to cure the existing evil by removing its cause, and not inflict punishment upon. those who have not offended. If the removal of both tracks of railway from their present location nearer to the centre of the street is a public necessity; if common benefit or general advantage demand it, let it be done as councils have ordained; but if the whole of the inconvenience arises from the fact that the Union Passenger Railway have, without a necessity to justify it, exercised their right to lay their tracks upon Market street in such a manner as to have occasioned all the mischief, then the evil ought to be abated by the removal of their tracks to another portion of the highway. A personal inspection of the street has satisfied us that this can be done, and if in this we are mistaken, we hold ourselves open to correction, and to such a modification of the order, which we propose to make, as may appear proper under the circumstances of the case. Between Eighth and Ninth streets the north track of the

Union road can be laid near the centre of the street, and south of the northernmost track of the plaintiffs, connecting with the Union track, as now laid, at the intersection of Ninth and Market; this will take away, as it appears to us, all cause of objection west of Eighth street. Aud on the south side of Market street the inconvenience can be removed by placing the southerly track of the Union road north of the southernmost track of the roadway of plaintiffs. There appears to be ample space in the centre of the street for this readjustment of tracks, except for a short distance west of Third street. But this difficulty can be obviated by straightening the track of plaintiffs on the south side of Market street west of Third, so as to make the space between the tracks of the Market street road uniform from Third to Seventh streets. The Union road can cross the track of plaintiffs at the intersection of Third and Market streets to connect with their track as now laid from Third street, east.

It is possible that it may be necessary, if this plan is adopted, that the Union track must cross that of the plaintiffs west of Eighth street; if this is found to be the case, and if the connection cannot be made at the intersection of Eighth and Market, then I shall require the plaintiffs to agree to such a crossing of their track at this point, or if they do not concede this, I will dissolve the injunction so far as it applies to the street between Eighth and Ninth streets.

This arrangement, if practicable, renders unnecessary any disturbance of the plaintiffs in the enjoyment of their franchises, which they have possessed since 1858, and which they are entitled to continue to enjoy until the public benefit, or the general welfare of the community, shall justify any interference with them, by way of regulation, by the corporate authorities of the city.

Until further orders the injunction is continued.
Theodore Cuyler, Esq., for plaintiffs.

R. N. Willson, Esq., for city.

[Leg. Int., Vol. 30, p. 257.]

WEST END PASSENGER RAILWAY COMPANY OF PHILADELPHIA v8. THE PHILADELPHIA CITY PASSENGER RAILWAY COMPANY et al. The act incorporating the defendants authorizing them to extend their road at any time, repeals the 19th section of the act of 1849, as far as it applies to them. Motion for a special injunction. Opinion delivered August 5, 1873, by PEIRCE, J.-This injunction is asked for to restrain the defendants from constructing a railway on Lancaster avenue, upon the grounds that they have no authority in law for the construction of their proposed railway, and that it will interfere with the rights and franchises of the plaintiffs, who are authorized to lay a railway on a portion of said

avenue.

Since the recent decisions of the Supreme Court, in the cases of the Union Passenger Railway Company vs. The West Philadelphia Passenger Railway Company, and in the matter of the opening of Fifteenth and Sixteenth and Norris streets through Monument Cemetery, it is difficult' to say what is and what is not a violation of Article XI., Section 8, of the Constitution of the State, which declares that "no bill shall be

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