Neither the charter of the Pennsylvania Railroad Company,
contained in an Act of the Legislature of Pennsylvania passed April
13, 1846, Laws of 1846, No. 252, p. 312, nor the acts supplementary
thereto, nor the Act of that legislature passed May 16, 1857, Laws
of 1807, No. 579, p. 519, constituted such a contract between the
state and the company as exempted the latter from the operation of
Section 8 of Article XVI of the Constitution of Pennsylvania of
1573, requiring that corporations invested with the privilege of
taking private property for public use should make compensation for
property injured or destroyed by the construction or enlargement of
their works, highways or improvements; nor did such constitutional
provision, as applied to the company, in respect to cases
afterwards arising, impair the obligation of any contract between
it and the state.
The company took its original charter subject to the general law
of the state, and to such changes as might be made in such general
law, and subject to future constitutional provisions and future
general legislation, since there was no prior contract with it
exempting it from liability to such future general legislation in
respect of the subject matter involved.
Page 132 U. S. 76
Exemption from future general legislation, either by a
constitutional provision or by an act of the legislature, cannot be
admitted to exist unless it is expressly given or unless it follows
by an implication equally clear with express words.
The case is stated in the opinion of the Court.
MR. JUSTICE BLATCHFORD delivered the opinion of the Court.
This is an action on the case, brought in June, 1881, by George
R. Duncan against the Pennsylvania Railroad Company, a Pennsylvania
corporation, in the Court of Common Pleas No. 2 for the County of
Philadelphia, Pennsylvania. The plaintiff sued as the owner in fee
of a piece of land, with the buildings, wharves, and improvements
thereon, situated at the northwest corner of Twenty-Third Street
and Filbert Street, in the City of Philadelphia, and extending 230
feet and 11 inches along the west side of Twenty-Third Street, and
426 feet from that corner along the north side of Filbert Street,
to low water mark on the Schuylkill River. The declaration alleged
that the defendant had constructed along and upon Filbert Street,
and in front of the premises of the plaintiff, an elevated
railroad, placed on iron and stone pillars set at the curb lines in
Filbert Street at intervals longitudinally of 50 feet, more or
less, and at an elevation of at least 20 feet above the established
grade of Filbert Street, and had constructed an abutment for the
sustaining of a bridge superstructure across the Schuylkill River,
on the eastern side of said river, and in the middle of Filbert
Street, in front of the premises of the plaintiff, and had
constructed, opposite Filbert Street, in the channel of the river,
two piers to further support the bridge superstructure, the bridge
and the elevated railroad making a continuous line of railway,
operated by the
Page 132 U. S. 77
defendant, to transport freight and passengers in cars drawn by
steam locomotives; that Twenty-Third Street and Filbert Street at
the place in question, were public highways of the City of
Philadelphia; that the construction by the defendant of the
elevated railroad, and of the abutment and pier for the support of
the bridge superstructure, and the operation and use of the
elevated railroad to transport freight and passengers in cars drawn
by steam locomotives, and the noise, burning cinders, smoke, dust,
and dirt incident to the use of such railroad, had injured the
plaintiff in the enjoyment of his premises, and had rendered the
same incommodious, and of little or no value to him, and had
deprived him of the free use of Filbert Street as a highway, and of
free access to and from the wharves on the riverfront of his
property, by the river as well as by Filbert Street, and had
greatly depreciated the value of the wharves, and that the injuries
were committed on the 1st of June, 1881, and at all times
since.
The elevated railroad in question was built by the defendant in
1880 and 1881, and was opened for freight in April, 1881, and for
passengers in December, 1881. It is known as the "Filbert Street
Extension," and crosses the Schuylkill River a short distance above
Market Street, and ends at Broad Street. From Twenty-First Street
west to the river, the tracks were laid upon a structure of wooden
and iron beams directly over the cartway of the street, and were
sustained by iron pillars, some 18 inches square, resting upon the
footway inside of the curb line. This was the case along the whole
length of the south side of the plaintiff's property, the structure
being some 40 feet high, and the railing or guard along the track
coming within one or two feet of the wall the plaintiff's building.
None of the plaintiff's property was actually taken by the
defendant, but the action was brought for the consequential damages
caused by the construction of the railroad and its use and
operation.
The defendant set up, among other defenses, that it had the
right to do what it had done, without liability to the plaintiff,
by virtue of its charter, contained in an Act passed by the
legislature of Pennsylvania, April 13, 1846, Laws 1846, No.
262,
Page 132 U. S. 78
p. 312, and by virtue of a further Act of that legislature
passed May 16, 1857, Laws 1857, No. 579, p. 519.
The case was tried before a court and the jury, and resulted in
a verdict for the plaintiff for $20,000, for which amount, with
costs, he had judgment. On a writ of error, the judgment was
affirmed by the Supreme Court of Pennsylvania,
Railroad Co. v.
Duncan, 111 Penn.St. 352, and the defendant has brought the
case to this Court by a writ of error to the court of first
instance, to which the record had been remitted. Duncan having
died, his administrator has been substituted as defendant in
error.
The federal question involved is whether the acts of 1846 and
1857 constituted a contract between the state and the defendant
relieving the defendant from liability in this suit, and whether
such contract was of such a character that its obligation could not
be impaired by subsequent legislation by the state.
It is first necessary to see what are the provisions of the
statutes on which the defendant relies.
The 11th section of the act of 1846 gave authority to the
defendant to construct a railroad from Harrisburg to Pittsburgh,
with a branch to Erie, and gave to it the right to enter upon and
occupy all land necessary for the purpose, and to "take" the
necessary materials from any land adjoining or in the neighborhood
of the railroad so to be constructed:
"
provided that such compensation shall be made,
secured, or tendered to the owner or owners of any such lands or
materials as shall be agreed upon between the parties, or in such
manner as is hereafter mentioned;
provided further that
the timber used in the construction or repair of said railroad
shall be obtained from the owners thereof only by agreement or
purchase."
The 12th section provided for the fixing of such compensation,
when not agreed upon through a petition to the court of quarter
sessions of the proper county. The 17th section contained this
provision:
"And it shall be lawful for the said company, in the manner and
subject to the conditions and provisions hereinbefore provided, in
relation to the main line of their railroad by this act authorized
to be made, to make such
Page 132 U. S. 79
lateral railroads or branches, leading from the main line of
their said railroad, to such convenient place or points, in either
of the counties into or through which the said main line of their
road may pass, as the president and directors may deem advantageous
and suited to promote the convenience of the inhabitants thereof,
and the interests of said company."
By the 4th section of the Act of March 27, 1848, Laws 1848, No.
224, p. 274, passed as a supplement to the act of 1846, provision
was made for ascertaining, through the action of the court of
common pleas of the proper county, the damages sustained by the
owner of land or materials "taken" by the defendant, in case such
compensation could not be agreed upon. Section 5 of that act
provided as follows:
"That if said railroad company shall find it necessary to change
the site of any portion of any turnpike or public road, they shall
cause the same to be reconstructed forthwith at their own proper
expense on the most favorable location, and in as perfect a manner
as the original road,
provided that the damages incurred
in changing the location of any road authorized by this section
shall be ascertained and paid by said company in the same manner as
is provided for in regard to the location and construction of their
own road."
By § 1 of an Act passed April 12, 1851, Laws 1851, No. 297, p.
518, it was provided that the 5th section of the act of 1848 should
be so construed as to include the streets, lanes, and alleys in any
town, borough, or city through which the road passed.
By the Act of May 16, 1857, before referred to, provision was
made for the sale at public auction of the whole main line of the
public works of the State of Pennsylvania, which included the
Philadelphia and Columbia Railroad. The act provided, among other
things (§ 3), that it should be lawful for any railroad company
then incorporated by the state to purchase such main line for a sum
not less than $7,500,000, and that if the Pennsylvania Railroad
Company should become the purchaser at such public sale or by
assignment (which assignment the act provided for), it should pay,
in addition to the purchase money of not less than $7,500,000,
Page 132 U. S. 80
the further sum of $1,500,000, and should, in consideration
thereof, have forever certain exemptions from taxation. This
provision in regard to taxation was held unconstitutional by the
Supreme Court of Pennsylvania in
Mott v. Pennsylvania Railroad
Co., 30 Penn.St. 9, a decision made before the sale took
place. The third section of the act further provided that it should
be lawful for the purchaser "to straighten and improve the said
Philadelphia and Columbia Railroad, and to extend the same to the
Delaware River in the City of Philadelphia." The 11th section of
the act provided as follows:
"That, should any company already incorporated by this
commonwealth become the purchaser of said main line, they shall
possess, hold, and use the same under the provisions of their act
of incorporation, and any supplements thereto, modified, however,
so as to embrace all the privileges, restrictions, and conditions
granted by this act in addition thereto, and all provisions in said
original act and any supplements inconsistent with the privileges
herein granted shall be, and the same are hereby, repealed."
At a meeting of the stockholders of the defendant, held on the
20th of July, 1857, for the purpose of accepting or rejecting the
provisions of the act of 1857, and of considering such action as
the directors of the defendant had taken in pursuance of that act,
subject to the approval of the stockholders, it was resolved that
the stockholders of the defendant accepted the provisions of the
act so far as the same in any way related to or affected the
defendant, and ratified and approved of such action as had been
taken by the board of directors of the defendant in purchasing the
said main line of the public works, pursuant to the provisions of
that act, for the sum of $7,500,000. The sale at public auction had
taken place on the 25th of June, 1857, and the property had been
purchased by the defendant for the sum above mentioned. On the 31st
of July, 1857, the state conveyed by deed poll to the defendant the
property so purchased, described as in the margin.
*
Page 132 U. S. 81
By the Constitution of Pennsylvania of 1873, which took effect
January 1, 1874, it was provided as follows, by § 8 of Article
XVI:
"Municipal and other corporations and individuals invested with
the privilege of taking private property for public use shall make
just compensation for property taken, injured, or destroyed by the
construction or enlargement of their works, highways, or
improvements, which compensation shall be paid or secured before
such taking, injury, or destruction."
With these premises, we are prepared to consider the views taken
of this case by the Supreme Court of Pennsylvania. That court gave
its assent to the principle that the charter of the defendant was
inviolable. It further stated that the framers of the Constitution
of 1873 did not intend to repeal any of the provisions of that
charter. It held that § 8 of Article XVI of that Constitution
included not only then existing
Page 132 U. S. 82
municipal corporations, but also then existing "other
corporations." It further held that the defendant did not derive
its authority to build the branch road in question, from the
western side of the Schuylkill River through Filbert Street, from
the act of 1846, because that act embraced only the power to build
and operate a road from Harrisburg to Pittsburgh, but that it
derived such authority from the Act of May, 1857, in the 11th
section thereof, before quoted, and that the convention which made
the Constitution of 1873 had the power to subject the defendant's
exercise of the right of eminent domain to the provision that it
should make just compensation not only for the property which it
might choose to "take," in the strict sense of that word, but also
for such as it might injure or destroy.
We think these views are sound. There was no such contract
between the state and the defendant, prior to the Constitution of
1873, as prevented the subjection of the defendant by that
constitution to the liability for consequential damages arising
from its construction of this elevated road in 1880 and 1881. Prior
to the Constitution of 1873, and under the constitutional
provisions existing in Pennsylvania before that time, the supreme
court of that state had uniformly held that a corporation with such
provisions in its charter as those contained in the charter of the
defendant was liable, in exercising the right of eminent domain, to
compensate only for property actually taken, and not for a
depreciation of adjacent property. The eighth section of Article
XVI of the Constitution of 1873 was adopted in view of those
decisions, and for the purpose of remedying the injury to
individual citizens caused by the nonliability of corporations for
such consequential damages. Although it may have been the law in
respect to the defendant, prior to the Constitution of 1873, that
under its charter and the statutes in regard to it, it was not
liable for such consequential damages, yet there was no contract in
that charter, or in any statute in regard to the defendant, prior
to the Constitution of 1873, that it should always be exempt from
such liability or that the state, by a new constitutional provision
or the legislature, should not have power to impose such liability
upon it
Page 132 U. S. 83
in cases which should arise after the exercise of such power.
But the defendant took its original charter subject to the general
law of the state, and to such changes as might be made in such
general law, and subject to future constitutional provisions or
future general legislation, since there was no prior contract with
the defendant exempting it from liability to such future general
legislation in respect of the subject matter involved.
This principle is well set forth in the opinion of the justices
of the Supreme Judicial Court of Massachusetts, given by them in
answer to a question submitted to them by the Senate of that
commonwealth in
In re Provident Institution for Savings, 9
Cush. 604.
See also Nelson v. Vermont & Canada
Railroad, 26 Vt. 717;
Thorpe v. Rutland & Burlington
Railroad, 27 Vt. 140;
Branin v. Connecticut &
Passumpsic Railroad, 31 Vt. 214;
Frankford Railway v. The
City, 58 Penn.St. 119;
Baltimore & Susquehanna
Railroad v. Nesbit, 10 How. 395,
51 U. S.
399-400;
Pumpelly v. Green Bay
Co., 13 Wall. 166;
Railroad Co. v. Hecht,
95 U. S. 168,
95 U. S. 170;
Beer Co. v. Massachusetts, 97 U. S.
25,
97 U. S. 32-33;
Newton v. Commissioners, 100 U. S. 548,
100 U. S. 557;
Missouri Pacific Railway v. Humes, 115 U.
S. 512; 1 Hare's American Const.Law 609, 610; 2 Morawetz
on Private Corporations, 2d ed. §§ 1062, 1065, 1067; Cooley's
Const.Lim., 4th ed. *574, 716.
The provision contained in the Constitution of 1873 was merely a
restraint upon the future exercise by the defendant of the right of
eminent domain imparted to it by the state. By its terms, it
imposes a restraint only upon corporations and individuals invested
with the privilege of taking private property for public use, and
extends the right to compensation, previously existing, for
property taken, to compensation for property injured or destroyed
by the construction or enlargement of works, highways, or
improvements, made or constructed by such corporations or
individuals. Such provision is eminently just, and is intended for
the protection of the citizen, the value of whose property may be
as effectually destroyed as if it were in fact taken and occupied.
The imposition of such a liability is of the same purport as the
imposition of a liability
Page 132 U. S. 84
for damages for injuries causing death, which result from
negligence, upon corporations which had not been previously
subjected by their charters to such liability.
Boston, Concord
&c. Railroad v. State, 32 N.H. 215;
Southwestern
Railroad v. Paulk, 24 Ga. 356;
Duncan v. Pennsylvania
Railroad, 94 Penn.St. 435;
Georgia Railroad & Banking
Co. v. Smith, 128 U. S. 174;
Cooley's Const.Lim., 4th ed. *581, 724; 1 Hare's American Const.Law
421.
Nor will the exemption claimed from future general legislation,
either by a constitutional provision or by an act of the
legislature, be admitted to exist unless it is expressly given or
unless it follows by an implication equally clear with express
words. In the present case, the statutory provisions existing prior
to the Constitution of 1873 in favor of the defendant cannot be
properly interpreted so as to hold that the state parted with its
prerogative of imposing the liability in question in regard to
future transactions.
Providence Bank v.
Billings, 4 Pet, 514;
Charles
River Bridge v. Warren Bridge, 11 Pet. 420;
Christ Church v.
Philadelphia, 24 How. 300;
Gilman v.
City of Sheboygan, 2 Black 510;
Tucker v.
Ferguson, 22 Wall. 527;
Fertilizing Co. v. Hyde
Park, 97 U. S. 659;
Newton v. Commissioners, 100 U. S. 548,
100 U. S. 561;
2 Hare's American Const.Law, 661, 663, 664.
Judgment affirmed.
*
"The whole main line of the public works between the said Cities
of Philadelphia and Pittsburgh, in the State of Pennsylvania,
consisting of the Philadelphia and Columbia Railroad, the Allegheny
Portage Railroad, including the new road to avoid the inclined
planes, with the necessary and convenient width for the proper use
of said railroads, the eastern division of the Pennsylvania Canal,
from Columbia to the junction, the Juniata division of the
Pennsylvania Canal, from the junction to the eastern terminus of
the Allegheny Portage Railroad, and the western division of the
Pennsylvania Canal, from the western terminus of the Allegheny
Portage Railroad to Pittsburgh, and including also the right,
title, and interest of the commonwealth in the bridge over the
Susquehanna at Duncan's Island, together with the same interest in
the surplus water power of said canals, with the right to purchase
and hold such lands as may be necessary to make the same available,
and all the reservoirs, machinery, locomotives, cars, trucks,
stationary engines, workshops, tools, water stations, toll houses,
offices, stock, and materials whatsoever and wheresoever thereunto
belonging, or held for the use of the same, and together with all
the right, title, interest, claim, and demands of the Commonwealth
of Pennsylvania to all property -- real, personal, and mixed --
belonging unto or used in connection with the same by the said
commonwealth, and together with all and singular other the
buildings, improvements, powers, authorities, ways, means, and
remedies, estates and interests, rights, members, incidents,
liberties, privileges, easements, franchises, emoluments,
reversions, remainders, rents, issues, profits, hereditaments, and
appurtenances, of what name, nature, or kind soever thereto
belonging or in anywise appertaining, which by force and virtue of
the said recited act of assembly, and the provisions thereof, were
meant and intended, and of right ought to be, hereby assigned and
transferred therewith."