pany v. Clarion County, 172 Pa. 243, 33 Atl. | 2. RAILROADS (§ 102*)

580.

CONSTRUCTION

CAUSEWAY-ASSESSMENT OF DAMAGES. railroad is not required to construct a causeUnder Act Feb. 19, 1849 (P. L. 79), a way adequate for the passage over it of locomotives, coal cars, tram cars, and other masary to enable the owner to properly and profitably mine and transport coal which is upon the land; the owner's remedy for interfering with mining and transporting his coal being the view appointed to determine the general damassessment of damages through the jury of ages from construction of the railroad.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 306-314, 769; Dec. Dig. § 102.*1 Appeal from Court of Common Pleas, Armstrong County.

[2] It is true that long after the street was opened for travel from the turnpike to the bridge it is referred to by scriveners in deeds as a street upon which conveyed prop-chinery, utensils, tools, and equipment neceserties abutted, but these references, merely for the purpose of description, throw no light upon its real character as found by the court below. The same is true of the references to it in the city ordinance offered in evidence, and of the placing of it on the map prepared by the city engineer showing the streets and highways within the city limits. Nor was the paving of Main street out on Bridge street to the railroad track, under a special contract with property owners, inconsistent with the claim of the bridge company to the ownership of the street. These are matters to which the learned counsel for appellant attach much importance in insisting that Bridge street was one of the accepted highways of Monongahela City, but they are not to be so regarded in the face of the other evidence in the case.

Petition by William N. Ferguson and others for the appointment of viewers. From an order dismissing the petition, petitioners appeal. Affirmed.

Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ.

C. E. Harrington, of Kittanning, John S. Ferguson and H. M. Scott, both of Pittsburg, and H. P. Boarts, of Kittanning, for appellants. Edwin E. Tait, of Bradford, and John S. Porter, of Kittanning, for appellee.

STEWART, J. It would be quite sufficient to say, in vindication of the court's action in dismissing appellant's petition, that the petition contemplated a proceeding unauthorized by statute.

From 1904 to 1907 the bridge, from the middle of the river to the Washington county side, and the approach to it on that side, became a public road under the control of the county and subject to its supervision, with continuing liability by the county to keep it in repair. It did not become in any sense a municipal street, to be controlled by the municipality. In the proceedings in the quarter sessions in 1907 this short public for the appropriation of land under right of The recovery of damages highway was vacated, the vacation by the eminent domain is a matter regulated by viewers including, in express terms, the link statute entirely; and the method provided connecting the bridge and Main street "across by the statute for the recovery must be the tracks of the said Pennsylvania Railroad strictly pursued. Petitioners are the owners Company." As Bridge street was thus legal- of a certain tract of land in South Buffalo ly vacated, the public no longer have any township in Armstrong county, upon and right to use it, and it no longer exists as a over which the Pittsburg & Shawmut Railpublic crossing over the tracks of the appel-road company, at the time of the filing of lant company.

the petition, was engaged in constructing its The assignments of error are all overrul-line of railroad. Proceedings were pending ed, and the judgment is affirmed.

(238 Pa. 78)

In re FERGUSON et al.

(Supreme Court of Pennsylvania. Jan. 6, 1913.)

1. RAILROADS (§ 102*) - CONSTRUCTION CAUSEWAY-ASSESSMENT OF DAMAGES. Under Act Feb. 19, 1849 (P. L. 79), requiring a railroad company to build a sufficient causeway to enable the occupant of land to pass over it with wagons, carts, and implements of husbandry, and that, if the company shall refuse on request to make such causeway, it shall be liable to any person aggrieved for all damages from such refusal, a petition for the appointment of viewers to assess damages filed when the railroad had not, without vexatious or malicious delay, finally completed its construction on the petitioner's land was premature.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 306-314, 769; Dec. Dig. § 102.*]

for the assessment of damages sustained by petitioners in consequence of the appropriation of part of their land for such purpose, when petitioners, on the 21st of March of the present year, applied for the appointment of viewers to assess damages which had resulted from the railroad company's neglect and refusal "to make, or cause to be made, a good and sufficient causeway to enable petitioners to cross and pass over its railroad with wagons, carts, implements of husbandry, locomotives, horses, animals, coal cars, tram cars, and other machinery, utensils, tools, and equipment reasonably necessary, useful, and proper to enable petitioners to properly and profitably cultivate and transport said valuable merchantable coal, minerals, stone, clays," etc. The petition, in an earlier part, averred that the tract of land contained large and valuable deposits of coal, and that the railroad as constructed, or

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

While

the work is there in progress, the company is not only in exclusive possession, but it alone has the right to determine where and. in what manner each item of work is to be

must show a sufficient causeway, within the meaning of the statute. Except as it does so, the owner may enforce his right to a causeway, and, independently of other proceedings which may have been had for the assessment of damages by reason of the taking of the land, may have a separate view to assess the damages which resulted from the company's neglect or refusal in this regard. But until then the owner has no standing to

about to be constructed, would not only pre-, struction upon the complainant's land. vent convenient access to the coal for mining purposes, but, except as a causeway be constructed in a given place and after the manner of an elevated drawbridge, which would admit of being lowered as occasion accomplished. The road, when constructed, might require, in order to permit petitioner's pit cars, buggies, locomotives, etc., to pass over to other portions of the tract, and particularly to petitioner's landing place on the river, one of the boundaries of the tract, the petitioners would be unable to economically, efficiently, and practically operate their mine and transport their coal. "Wherefore," concluded the petition, "petitioners pray the court to appoint seven (by amendment changed to three) discreet and disinterested free-enforce a request or demand for a causeway, holders of said county to ascertain and assess all damages sustained by the petitioners in consequence of the neglect and refusal of the railroad company to make, or cause to be made, a good and sufficient causeway to enable petitioners to cross or pass over said railroad with wagons, carts, implements of husbandry, locomotives, horses, animals, coal cars, tram cars," etc.

except, perhaps, as he can show that its construction has been delayed vexatiously, wantonly, and maliciously, to his special injury. In the present case, admittedly when the petition was filed, the railroad company was engaged in the construction of its road upon petitioner's land.

[2] Again, the petition demands damages for failure on the part of the railroad comThe petition shows a clear misapprehen- pany to do what is not required of it by any sion of the several provisions of the statute statute. The statute does not require a governing such matters, and of the respec- causeway to be built adequate for any and tive rights of landowner and railroad com- all purposes for which the owner may desire pany as well. The statute requires of a rail- to use his land. What it does require is a road company that has condemned land for sufficient causeway to enable the occupant of its right of way, and, in constructing its the land "to pass over the same with wagrailroad, has bisected the tract, that it shall ons, carts, and implements of husbandry," make, or cause to be made, and thereafter thus showing unmistakably that all that is maintain, "a good and sufficient causeway required is a causeway sufficient to admit of or causeways whenever the same shall be the divided parts of the tract being used for necessary to enable the occupant or occu- agricultural purposes by the occupant as a pants of said land to cross or pass over the whole. The petitioners ask for the ascersame with wagons, cars, and implements of tainment of damages resulting from the comhusbandry, as occasion may require," with pany's failure to construct a causeway adethis proviso: "That the said company shall quate for the passage over it of the locomoin no case be required to make, or cause to tives, coal cars, tram cars, and other mabe made, more than one causeway through chinery, utensils, tools, and equipments neceach plantation or lot of land for the accom- essary to enable them to properly and profmodation of any one person owning or pos- itably mine and transport coal which is upon sessing land through which the said railroad the land. Assuming it to be true that such may pass." Then we have this further pro- causeway would be inadequate to, and would vision: "And if the said company shall neg- prevent, the profitable mining and transportlect or refuse, on request, to make such ing of the coal on petitioner's land, to whatcauseway or causeways, or when made, to ever extent this circumstance would impair keep the same in good order, the said com- the market value of the land, taken as a pany shall be liable to pay any person ag- whole, petitioners would be entitled to comgrieved thereby all damages sustained by pensation in damages. Such damages, howsuch person in consequence of such neglect ever, are to be ascertained through a jury or refusal; such damages to be assessed and of view appointed to determine the total ascertained in the same manner as provided damages that have resulted from the conin the last section for the assessment of dam-struction of the railroad. The jury of view ages." The reference here is to assessment by a jury of viewers to be appointed by the court.

already appointed by the court for this purpose is the tribunal to pass on this particular question; and its jurisdiction can be neither enlarged nor reduced by any order of the court.

[1] It is quite evident that the refusal or neglect of the railroad company to build the causeway required can be affirmed, so as to The assignment of error is overruled, and afford the remedy provided, only upon and the order of the court is affirmed, at costs

necessary expense were just and legal. The COMMONWEALTH ex rel. WOLFE et al. v. matter came before the court for adjudica

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

teenth section of article 3 of the Constitution; and it cannot be claimed that that office is created by the Constitution.

to them out of the county treasury. Wely decided that a county solicitor was a pubfind that they are elected by the people as lic officer within the meaning of the thirother public officers are elected and at the general election held for the election of other public officers; and they are elected for a specific term, and they must give an account of how they expended the money committed to their care.

"In Richie v. Philadelphia, 225 Pa. 511, 74 Atl. 430, 26 L. R. A. (N. S.) 289 (it being an appeal from a judgment of the superior court holding that a real estate assessor in Philadelphia was a public officer within the meaning of the thirteenth section of article 3 of the Constitution), Justice Brown makes use of the following language: "Two reasons are assigned why the judgment of the superior court should not be sustained. The first is that the clause in the Constitution prohibiting the increase of the salary of a public officer, after his election or appointment, applies only to public officers who hold constitutional offices. A real estate assessor is not such an officer, for his office is not one of those named in the Constitution. * What we are again called upon to decide is whether the thirteenth section of the third article of the Constitution is broad enough, and was so intended by the framers of the Constitution, to extend to all public officers (except those saved by the Constitution itself) upon whom grave and important duties are imposed for a fixed term.

*

*

"In Commonwealth v. Evans, 74 Pa. 124, the Supreme Court say: 'We are of the opinion that the defendant below was a public officer within the purview of the first section of the act of July 12, 1842 (P. L. 339), which excepts from the provisions of that act, abolishing imprisonment for debt, proceeding for the recovery of "moneys collected by any public officer." It may sometimes, indeed, be a difficult matter to distinguish between a public officer and a person employed by the government to perform some special service by contract. We are of the opinion that all persons who, by authority of law, are intrusted with the receipt of public moneys, through whose hands money due to the public or belonging to it passes on its way to the public treasury, must be so considered by whatever name or title they may be designated in the law authorizing their appointment, and whether the service be special or general, transient, or perma

nent.'

"In the case of Commonwealth v. Sharetts, 231 Pa. 525, 80 Atl. 1100, it is held that directors of the poor are not county officers; but in that case it is held that they are public municipal officers. Among other things, hold their office by virtue of a special act of the court say: 'Where directors of the poor assembly erecting them into a corporate body, they are not county officers; but they their selection is not provided for specifically are public municipal officers, and although by the Constitution, nevertheless they are quite as much municipal officers in essential characteristics as though specifically therein enumerated.'

The third article of the Constitution is, throughout its 33 sections, a restraint upon the powers of the General Assembly; and if its thirteenth section was intended to apply only to the comparatively few offices created by the Constitution, with which alone state, county, and municipal government could not be administered, such intention would certainly have found expression somewhere in the article upon legislation. * * * It is to be regarded as settled that an office that R. C. Buchanan, when acting as a di"We are therefore clearly of the opinion is a public one within the meaning of the rector of the poor, is a public officer, and Constitution, if the holder of it exercises that the act of 1911 increasing the salary of grave public functions, and is clothed at the that office after he was inducted into office, time being with some of the power of sover- under the Constitution, cannot be made to eignty. In every case in which the apply to him, but that he should draw his question arises whether the holder of an salary under the act of assembly in force office is to be regarded as a public officer at the time he was inducted into office, and within the meaning of the Constitution, that therefore that the controller was justified question must be determined by a considera-in refusing to issue the warrant asked for tion of the nature of the service to be per- so long as the directors insisted that that formed by the incumbent and of the duties item remain as constituting part of the warimposed upon him; and whenever it appears rant that he would have to issue. that those duties are of a grave and im'portant character, involving in the proper performance of them some of the functions of government, the officer charged with them is clearly to be regarded as a public one.'

* *

"In Houseman v. Commonwealth, 100 Pa. 222, it was held that the receiver of delinquent taxes in Philadelphia was a public officer.

"In Lancaster County v. Fulton, 128 Pa.

"Here we might stop; but, in view of some things that were said at the hearing by counsel, we wish to say that we are not in a proceeding like this called upon to give advice that would regulate the conduct of the parties to this suit in the future. The directors of the poor and the county commissioners and the controller are each concerned in having the business that pertains directly and indirectly to the county home con

the public interests; and as the law in regard | tional officers. Whether an officer is a "pubto the matter is rather meager as to many lic officer" within the intendment of the conof the details of that business, and as much is left to the discretion of the directors of the poor and the county commissioners in conducting their business, and much also is left to the discretion of the controller as to fixing rules and regulations that are matters of form and not of substance, it is necessary, in order to bring the best results, that their actions shall be harmonious. And as each of these three bodies have counsel, we would suggest that their counsel get together and formulate rules and regulations for the presentation of bills and the conduct of their business that will be productive of harmony rather than friction. These officers all stand on an equal footing, and no one has a right to domineer over the other. What they all should strive for would be to so act as to get the best possible service for the people whom they represent.

"And now, April 15, 1912, it is ordered that the foregoing adjudication be filed; and if no exceptions be taken thereto, as provided by law, that judgment be entered in accordance with the adjudication in favor of the defendant for costs."

Argued before FELL, C. J., and MESTRE ZAT, POTTER, ELKIN, and STEWART, JJ. Harry L. Williams, Jas. P. Eagleson, W. A. H. McIlvaine, and J. R. McCreight, all of Washington, Pa., for appellants. C. L. V. Acheson, of Washington, Pa., Guy Moffitt, of Charleroi, and J. Boyd Crumrine, of Washington, Pa., for appellee.

stitutional prohibition depends upon the manner of his selection, the duties imposed, and the powers conferred, upon him. If he is chosen by the electorate for a definite and certain tenure in the manner provided by law to an office whose duties affect and are to be exercised for the benefit of the public for a stipulated compensation paid out of the public treasury, it is quite safe to say that the incumbent is a public officer within the meaning of the constitutional provision in question. He is selected by the people to perform certain imposed duties and exercise certain prescribed powers in the government of the state or the municipal division thereof for which he is chosen. His office is administered for the benefit of the public; and, to the extent of the powers conferred by law, he exercises the functions of government.

Tested by this definition, which is sustained by the authorities, we think a poor director in Washington county is a public officer within the meaning of the constitutional provision. A brief reference to the statute creating the office and prescribing his duties and powers will remove any doubt as to the character of his position. The special act provides for the erection of a house for the employment and support of Pursuant the poor in Washington county. to its provisions, three directors of the poor are elected by the voters of the county for the term of three years, and compensated for their services out of the public funds. They take an official oath, and are empowered to make rules and regulations for the

MESTREZAT, J. The elaborate opinion of the court below, applying and distinguish-government and support of the poor and ing our cases bearing on the question at is- house of employment and of the revenues sue in this case, fully vindicates the judg- thereunto belonging, and of such persons as ment against the relators, and renders un- shall come under their cognizance. They necessary any extended discussion here. The are required to furnish annually an estimate single question for determination is wheth- of the probable expense of the poor and er the incumbent of the office of poor di-poorhouse to the county commissioners, who rector, created under a special act applicable must assess and collect the amount of the to Washington county, is a public officer estimate and pay the same to the poor diwithin the meaning of section 13, art. 3, of rectors by warrants drawn on the county the Constitution, and thereby deprived of treasurer. The directors disburse the fund the right to receive an increase of salary in supporting and maintaining the poor of under the act of June 15, 1911 (P. L. 986), the county, and are required annually to passed after he was inducted into office. We render an account of moneys received and are clear that the court below correctly an- expended by them to the county auditors. swered the question in the affirmative.

[2] We are of opinion that a director of the poor of Washington county is a public officer within the constitutional provision prohibiting his salary from being increased or diminished during his incumbency of the office, and the judgment of the court below

[1] It is settled by many decisions of this court that the prohibition against the extension of the term of a public officer, or the increase or diminution of his salary after his election or appointment, contained in section 13, art. 3, is not limited to constitu- is affirmed.