#### Sunbury Steam Ferry & Towboat Co. *v.*Grant.

The special Act of April 5, 1870, granting 'special privileges to a ferry company, by prohibiting all persons, except their agents or employes, from towing any rafts, etc., for pay, over the river “to or from any point opposite or within the limits of a certain borough,” does not apply where the raft is towed from a point which is not opposite, although towed to a point within the borough.

*It seems*that the meaning of the word “ opposite,” in this Act, is ascertained by moving the position of the borough directly across the river and not by extending the boundaries of the borough in the directions in which they incline.

May 23, 1888.

Error, No. 421, Jan. T., 1888, to C. P. Northumberland Co., to review a judgment, in an action of debt, on an appeal from a justice of the peace, at Sept. T., 1886, No. 199.

The declaration averred a violation of § 8 of plaintiff’s incorporating Act of April 5, 1870, “by towing four rafts and floats, for hire, over the Susquehanna river, in Shamokin dam, to a point opposite and within the limits of the borough of Sunbury, aforesaid, in the county aforesaid, to said point, to wit, to a point on the Sun-bury shore at or near Chestnut street, Sunbury.” The plea was nil debit, with leave to give special matter in evidence.

*288The facts appear in the charge of the court below, as follows, by Rockefeller, P. J.: •

“ The action which you have been sworn to try is one brought by the Sunbury Steam Ferry & Towboat Co., which sues as well for itself as the borough of Sunbury, against George E. Grant and Charles H. Grant. This action was brought by these plaintiffs to recover a penalty which is imposed by law upon any person who does certain things named in the Act of Assembly, which incorporated the Sunbury Steam Ferry & Towboat Co., which will be read to you as we reach it.

“ The evidence in this case discloses the fact that these defendants towed four hemlock rafts from a point above the west branch bridge, and in the west branch of the Susquehanna river, to a point within the borough of Sunbury. It also discloses that they towed a pine raft, thus making five rafts that they towed. The record which was put in evidence, showing the proceedings that were had before the justice of the peace, sets forth the towing of four rafts only, and the declaration filed in this case also sets forth the towing of four rafts, so counsel have elected, which was very proper for them todo, that the rafts to be considered are the four hemlock rafts that came from above the west branch bridge, and the pine raft is not in the case. It is very proper that we should know just exactly what we are trying; otherwise, if we should try this case and cover five rafts when the papers only speak of four, it would be hard to tell what rafts you were passing upon. But, with this election made by counsel, you have no difficulty in applying the facts of this case which relate to the four rafts that came from above the west branch bridge. If those rafts were towed by these defendants in violation of this Act of Assembly, then the plaintiffs will be entitled to your verdict for the sum of twenty dollars, which is the penalty fixed by the statute.

“ The circumstances under which this case arises are something like these : As you know, the Susquehanna river and the north and west branches of it are the great public highways of the state of Pennsylvania, free to all people. No one has a right to interfere with any person’s use of that stream, for going where they please upon it, unless they can show a clear and distinct legislative authority for such interference. It belongs to the people, and when a man says that another shall' not do a lawful thing upon that common highway he must show clear authority for it, otherwise such authority does not exist. From time to time, it became necessary to put more or less obstructions upon these public highways. It was found that, by damming them up, the water could be used for mill power, and there were other obstructions put in the highway, but there were safeguards thrown about them so as to protect the people and give the public its rights. Then, again, it became necessary that there should be established ferries, where, when a person came to the water’s edge desiring to cross, they would always be sure to find *289somebody, not only who would take them over, but whose duty it was to take them over. And, in many instances, exclusive privileges were granted to persons to maintain ferries along .the river, and no other person was entitled to or allowed to interfere with them, because it became necessary that some one should be responsible ; that it should be the duty of some one to take people across the river. [On April 5, 1870, the Legislature created a corporation known by the name of the Sunbury Steam Ferry & Towboat Co., and gave them authority to establish and maintain a public steam ferry over the Susquehanna river — nothing said about branches here,, the words are, over the ‘ Susquehanna river,’ — in Shamokin dam, and from and to any and every point along the eastern and western shores of the Susquehanna river,] [r] within the limits of the borough of Sunbury, and also gave them power to establish and erect suitable wharves or landings at any convenient point on either side of said river, etc., and authorized them to charge tolls. There are no words in this section that gave to the Sunbury Steam Ferry & Towboat Co. the exclusive right to do this thing. The word exclusive is not to be found in the Act at all. But a provision is made to protect their rights, in § 8, and it is expressly there enacted that it is for the purpose of protecting their rights. It reads in this way: ‘ The said company shall keep the said landings and ferry in good condition for the accommodation of the public, and for the better protection of the same ’ — that is, the better protection of the landings and the *ferry*— ‘ all persons, except the agents or employes of said company, are hereby prohibited from pushing, rowing or towing any boat, raft, float, ark, flat or other vessel, laden or unladen, for pay, hire, gift or reward, over the said Susquehanna river to or from any point opposite or within the limits of the borough of Sun-bury.’ It then provides, if they so violate this Act, they shall be subject to a penalty of twenty dollars.

“ The plaintiffs allege in this case that these defendants violated this prohibition and therefore should be subject to this penalty of twenty dollars. Now, what is necessary for the plaintiffs to show to be entitled to your verdict; what sort of a case must they make out ? There is no doubt but what this company has been organized and was in effective force and operation; that is not questioned. But they must show to you that these defendants did tow a raft for pay, hire, gift or reward, over the Susquehanna river to or from any point opposite or within the limits of the borough of Sunbury. Those are the two things they must establish before they can recover in this case and they must show both of them; it is not enough that they establish one. There is no dispute in the evidence as to these defendants towing the four rafts from a point in the west branch of the Susquehanna river, above the west branch bridge, down to a point within the borough of Sunbury, and that word raft is one of the very words used in this section. Now, did they do that for pay, hire, gift or reward ? There can be but little *290dispute on that point. There undoubtedly was an agreement whereby the defendants were to be paid five dollars for this towing and an agreement to pay is just as good as a payment and must be considered the same as a payment for the purposes of this case. If I agree to dox a thing, the law presumes I will" do it, and so an agreement to pay, so far as this part of the section is concerned, is equivalent to payment. I think you will have no trouble in coming to the conclusion that these parties did tow these four rafts under an agreement that they were to be paid for so doing, which, I say to you, is equivalent to payment.

“ The next serious point in the case is, whether the defendants took these rafts from a point opposite the borough of Sunbury. This steamboat company is protected in its rights just to that extent ; this penalty is to be enforced for no other purpose than the purpose of protecting the rights of this company, and they must satisfy you that these defendants towed these rafts for pay, hire, gift or reward, to <pr from a point opposite or within the limits of the borough of Sunbury. Now, they certainly brought them to a point within the limits of the borough of Sunbury; that is not disputed. [But did they bring them from a point within the limits of the borough or opposite the limits of the borough of Sunbury? This case is just narrowed down to that question. The witnesses testified that the eastern shore of the river is the western boundary limits of the borough of Sunbury. The defendants did not bring the rafts from that place; they brought them to that place. Sun-bury does not extend out into the river to any extent at all. Therefore, to find that these rafts were brought here in violation of this Act of Assembly, it must be shown that they were brought from some point opposite the borough of Sunbury, the other questions in the case to which I have called your attention not being disputed. How will you ascertain what is ‘ opposite the borough of Sunbury ’ as used in this Act of Assembly ? Of course, taken literally, everything in this world is opposite something else; and, if you take this broad signification, the whole western hemisphere is opposite to the town of Sunbury, if you keep widening it out; but the Act does not mean that. It is claimed here, by the plaintiffs, that the correct way of ascertaining what is opposite to the limits of the borough of Sun-bury is by extending the northern line across in the direction in which it runs and the southern line in the direction in which it runs. Would that be the correct way of ascertaining what is opposite this borough? The river may be a mile wide, or it may be more. Suppose that the northern and southern lines took an opposite direction from what they do, when you have run them the distance of a mile from the borough of Sunbury and gotten to the other side, while Sunbury might be two miles long on the river, the shore on the other side would only be half a mile, if the exterior lines north and south happened to converge, lean that way. Now, that would not be right. Supposing, then, they go in an opposite direction and *291one of them leans very far to the south and the other very far to the north, when you came to the opposite side, you would find that you had got a shore over there ten miles long, opposite a town two miles long. Now, would that be right ? As it happens in this case, the northern line of the borough of Sunbury does take a course strongly bearing towards the north, and, when you follow the extension of that line a short distance, you find it takes just about the course of the west branch of the Susquehanna and if you follow it far enough-you will get away on up the west branch nearly to Lewisburg, or certainly a very great distance up. Now, can it be said that those points up there are opposite to Sunbury? It seems to me that, getting rid of all this fine surveying and all theories, there is a very plain and simple way to get at what is opposite Sun-bury on this river. Suppose you were to move this town straight across the river, what would you strike? ' That is just what is opposite. Lay a card on the map, cover Sunbury with it, and move it straight across the river, where does it go ? That is what is opposite Sunbury, nothing more, nothing less. So you have a plain, common sense, understanding of what is really opposite Sunbury, it covers just what Sunbury does, it L not too long, it is not too short. It seems to me that is what the word ‘ opposite ’ means as used in this statute.

“ Now, gentlemen, if you find what is opposite in this way, will you come anywhere near this bridge across the west branch of the Susquehanna? When you come to look at the maps you will ascertain that question and see whether these rafts that were above the west branch bridge, in the west branch of the Susquehanna river, were opposite Sunbury.] [2] If you find they were, then these plaintiffs are entitled to recover, because this was done for pay, as we have already stated, [and, if these rafts were brought from a point opposite to Sunbury to a point in Sunbury, then the case is made out and the plaintiff is entitled to your verdict. But, if these rafts were brought from a point not opposite to Sunbury, then the plaintiffs are not entitled to recover, and your verdict must be for the defendant.”] [3]

Verdict and judgment for defendants.

*The assignments of error*specified, 1-3, the portions of the •charge included within brackets, quoting them.

*Geo. B. Reimensnyder,*with him *S. P. Wolverton,*and *Wm. A. Sober,*for plaintiff in error.

Statutes are to be construed so as may best effectuate the intention of the makers, which may sometimes be collected from the cause or occasion of passing the Act, and, when discovered, it ought to be followed with judgment and discretion in the construction, though that construction may seem contrary to the letter of the statute. Big Black Creek Imp. Co. *v.*Com., 94 Pa. 450; People *v.*Utica Ins. Co., 15 Johns. 358; 1 Kent. 462; Whitney *v.*Whitney, 14 Mass. 91; Potter’s Dwarris, 231.

*292A statute is not to be so strictly construed as to defeat the grant. Cleveland, Painesville & Ashtabula R. R. *v.*Erie, 27 Pa. 380.

The Legislature intended to prohibit all persons from towing any rafts, &c., to any point or from any point opposite the borough of Sunbury; or to any point or from any point within the limits of Sunbury. If this was not so, then § 8 is meaningless, and in no sense protects the plaintiff in the maintenance of its ferry, its wharves and its landings, and the plaintiff could not keep them in a good condition and so as to accommodate the public, for every other person may set up opposition to it just as the defendants in this case have done.

Besides, the evidence shows that, by protracting the northern line of the borough across the waters of the river, the point at which the rafts were lying falls south of that line and brings the point opposite to the borough. So that defendants towed the rafts from a point opposite to and within the limits of the borough as well as to a point within the limits .of the borough. The Legislature did not intend that a straight line should be drawn from one side of a triangle to a base line directly opposite the single side of the triangle. It was presumed to know that there were three sides of Sunbury, or three base lines, bounding Sunbury, lying open to the river, and that the word opposite included all that was opposite to all of these lines.

S'. *B. Boyer, Lewis Dewart,*and *E. W. Greenough,*for defendants in error,

not heard. — This Act was before this court once before, on a different point, in Sunbury Steam Ferry & Towboat Co. *v.*Heim, 4 Penny. 325. It was there said: “ There are two rules of law to which this court has steadfastly adhered, and which by this time ought to be pretty generally known to the Pennsylvania bar; one is, that the powers of a corporation are to be found in its charter alone, and cannot be created or extended by implication; the other is, that a penal statute must be strictly construed.”

The Act says “ Susquehanna river,” but does not mention either of its branches; and “ to or from any point opposite or within the limits of the borough of Sunbury,” not to or from any point on the Sunbury shore or the shore opposite, from or to any point on the river or its branches.

An examination of the map will show that any point above the southern end of the bridge, across the west branch of the Susquehanna river, is in said branch, and not in the main stream; and that such point can not possibly be opposite the borough of Sunbury, because an island extends down so far as to be entirely between the the mouth of said branch and the Sunbury shore directly in line with it.

We print the charge of the court below', on the construction of the word opposite, as apart of our argument.

*293Oct. 1, 1888.

Per Curiam,

The charge of the court contains so full and complete an exposition of the terms and meaning of the Act of Assembly, under which the plaintiff claims its exclusive right, that we deem it unnecessary to add anything, except to say that we approve of and concur in it.

Judgment affirmed.

Trunkey, J., absent.