The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1895-08-13

| tion Of the use a the streets and ave-
nues and under the NTH section OF said
act their consent must, therefore. be
deemed to have been given. As the
company was Incorporated prior to the
constitution Of ls74 II was not subject
to the provisions thereof. 1t IL claimed.
however. that having been consolidated
with and merged into the Peoples COM
pany In 1858. and that company having
leased Its road to the Traction company.
II availed itself Of the benciit OF the act
Of 1887. =. L.. :. and thereby made itself
subject to Section 3 Of Article XVII, of
the constitution. which requires street
railway companies to obtain the con-
sent of the local authorities before they
can construct their tracks. I do not
think the contract with the Traction
company had such an effect. The Peo-
pies company had the power Of enter
ing into contract prior to the act OF 1857.
That act conferred no new power or
right upon 1t. And 1t Is to be borne in
| mind that the consent Of the borough
authorities had already been obtained
years before. The right to construct a
railway on Franklin avenue, from
Lackawanna avenue to Spruce street.
Is already given the company by Its
charter and unless 1t has been aban-
doned or lost. 1t still exists. Before
passing upon that question It will be
necessary to consider some others upon
| which its determination may depend.
l have no doubt Of the right Of the
Traction company to operate the road
of the Peoples company by electrical
appliances whenever the latter COM
pany is authorized to construct Its road.
While the charter of the company pro-
vides that its railway is to be used ex-
clusively with horse power the act Of
1887. under which the Traction company
Is Incorporated, gives companies incor-
porated under its provisions power to
enter upon any street, upon which a
passenger railway now is, or may here
after be constructed, with the consent
OF said passenger railway company. and
make, construct, maintain and operate
thereon such motors, cables, electrical
and other appliances and the necessary
and convenient apparatus and me-
chanical fixtures as will provide for the
traction of the cars of such passenger
railway, and TO enter into contract with
passenger railway companies, etc.
suppose Part Of Road Had Bccn Lost.
III the authority given the Scranton
and Providence Passenger Railway
company as to this part of the road has
been lost or abandoned. then the Trac-
tion company has no right to construct
or operate an additional track there
under its name. On the other hand, II
that right and authority still exists
then the Scranton and Suburban Rail-
way company has no right and can ac-
Quire no right there under existing
laws, to construct or maintain a road
of its own. 1t appears that this COM
pany was first incorporated under the
act of May %, 1878. BY resolution Of
the councils of the city Of Scranton, ap-
proved by the mayor June /, 1886, they
were given permission to construct and
operate street passenger railway
through certain streets of the city, in
cluding that portion of Franklin ave-
nue. which is between Lackawanna ave-
nue. and Spruce street, the ground now
in question. On the trial the point was
raised that the consent Of the city must
be given by ordinance and that 1t
could not be given by a joint resolution.
l was of the opinion then. and am still,
that a joint resolution, passed by both
councils and approved by the mayor,
was sufficient. There does not appear
to have been any method or form pre-
scribed by law by which such consent
should be given, and in the absence Of
any authority to the contrary / con-
clude that the Joint resolution in ques-
authority and charter the company con-
structed its road on Franklin avenue
and operated the same until the act Of
1878 was declared unconstitutional. 1t
then accepted the provisions of and
made application for Incorporation un-
der the act entitled An act to provide
for the Incorporation and government
Of street railway companies iffthis COM
monwealth,' approved May IA, 1889. P.
L., 2ll. The first section of this act
provides That any number Of persons,
not less than five, may form a COM
pany for the purpose Of constructing,
maintaining and operating a street rail-
way on any street or highway upon
which no track is laid. or authorized to
be laid, or to be extended under any en-
isting charter. ETC. 1t Is plain from
reading the whole act that under Its
provisions there can be only one rail-
way franchise on the same street. 1t
was said by our supreme court. in pass
Ing on this very statute, Justice Green
rendering the opinion, that this 'statu.
tory power of Incorporation can only
be exercised in favor of company
which will construct and operate rail-
way on street or highway upon which
no track Is laid or authorized to be laid
under any existing charter. There can
be but one meaning to these words, and
that Is If track Is already laid, or
even authorized to be laid, on the pro-
posed street or highway, then there can
be no Incorporation Of such company
Homestead Street Railway company VS..
Pittsburg and Homestead Electric
Street railway. 1866 Pa. 1G2.
Letters Patent Issued.
Letters patent were issued to the
IN nap n hn
1889. 1t Is contended by counsel for the
defendants that because the company
had obtained the consent of the city and
had constructed its road on Franklin
avenue before the act of 1889. and that
under the provisions Of sectlsn 20 Of
said act. upon the re-incorporation Of
the company II became entitled to and
have possession of all the privileges,
franchises and powers conferred by this
act upon corporations to be created un-
der this act, and. all the properties,
rights and privileges belonging to such
corporation heretofore acquired by
gift, grant. conveyance. municipal or
dinance. assignment or otherwise I'm
doubtedly that Is true. Because the act
ratifies, approves, confirms and assures
the same. But the act does not confirm
or assure to such company any right
which 1t could not acquire under said
act II incorporated hereunder In the
first instance. To hold otherwise would
give to a usurper Of the powers OF the
commonwealth greater rights than
those who obey and comply with Its
laws. While the company had the con-
sent Of the city. 1t had no right or au.
thority to invade the public highways
with its tracks. That authority could
come only from the commonwealth, and
was obtained, II obtained at all, by
virtue of the incorporation under the
act Of 1885,
Claim Of the Plaintiffs.
Counsel for plaintiffs contend, and 1t
Ii alleged in the bill, that even IL the
Peoples company ever had the author
ity to construct their road on Franklin