Philadelphia, Morton & Swarthmore Street RailwayCo.'s Petition

Citations

• 203 Pa. 354

Syllabus

<p>Street railways — Use of tracks of another company — Final order— Appeals.</p> <p>An order of the court made at the instance of a street railway company which desires to complete its circuit by the use of the tracks of another company, appointing viewers to assess damages, and approving bond of the petitioning company, is a final order from which an appeal will lie, even though the proceedings for the assessment of damages are undetermined.</p> <p>Street railways — Eminent domain — Use of another company's tracks— Ac£s of May 14, 1889, P. L. 211, sec. 14, and May 21,1895, P. L. 93 — Constitutional law.</p> <p>/While the legislature may in the exercise of the right of eminent domain take franchises and property engaged in a public use, and apply them to another public use, a statute cannot be maintained which confers upon one corporation for profit the right to appropriate the property of another to exactly the same public uses merely for the convenience and profit- of the younger corporation. /</p> <p>The Act of May 14, 1889, P. L. 211, sec.14, as amended by the Act of May 21,1895, P. L. 93, which gave to a street railway company subject to the payment of damages, the right to use 2,500 feet of the tracks of another street railway company is unconstitutional. Section 14 of the act of May 14, 1889, is also unconstitutional because it provides no adequate security for damages for the property taken. Harrisburg, etc.,' Turnpike Road Co. v. Harrisburg, etc., Railway Co., 177 Pa. 585, reaffirmed.</p> <p>A street railway company organized under the Act of May 14, 1889, P. L. 211, may deny the constitutionality of section 14 of the act with its amendments, inasmuch as the section is a distinct legislative enactment which maybe eliminated, leaving all the other provisions to stand in full force. Lockhart v. Craig Street Railway Co., 139 Pa. 419, and Homestead Street Railway Co. v. Pittsburg, etc., Electric Street Railway ©o., 166 Pa. 162, explained.</p>