The burden of proof is upon those who allege its unconstitutionality. Every doubt must be resolved in favor of the act. Unless the case is entirely clear, a Court of Common Pleas may well sustain the law and remit the parties to the court of last resort, where questions of constitutional law more appropriately belong.

Nor have we any thing to do, in the consideration of questions of this nature, with the wisdom of the particular statute. Such arguments should be addressed to those who make the law, not to those who expound it. Were we to set aside an act of assembly in obedience to popular clamor, or because, in our judgment, it is unwise or improvident, we should be substituting the will of the judiciary for the will of the people. Such act would be judicial usurpation.

It is conceded that the act of assembly under which the defendants now propose to lay their tracks upon Market street is constitutional; and that they have a right to lay said tracks somewhere upon said street, including the right to lay a loop on Front street. The majority of the court, however, hold that the defendants have not the right to lay their tracks as indicated by the plan, for the reason that they cross the tracks of plaintiffs, at several intermediate points.

The right to cross at an intersection is admitted; but intermediate crossing without a necessity is denied. In order to properly understand what is conceded, and what denied, we must look at the facts. From Front street to Ninth street there are four places where the proposed Union track would cross the track of the Market street road. One occurs at Seventh street, another at Ninth street, and both are necessary to enable the Union line to connect with its other road on the streets referred to. I understand the right to do this is conceded. Indeed, it could not be denied without depriving the Union road of all right to lay its track with the connections referred to. In addition, the south track of the Union road crosses the south track of the Market street road once above Third street, and the north track of the Union road crosses the north track of the Market street road, above Eighth.

Both of these crossings are at au obtuse angle, and result from the fact that the track of the Market street road, at both these points, deflects from a straight line. I note no other crossing of the track upon the plan prepared by the city surveyor, and which is admitted to be the one by which defendants propose to build their road. There are other crossings referred to in plaintiffs' bill, but they are distinctly denied by defendants' affidavits, and are not sustained by proof.

It will be seen that the question comes down to the single point, whether the Union company have the right to cross the tracks of the Market street road once between Front street and Ninth street. The act of assembly says the defendants may so construct their road. The majority of the court say they have no such right. I would not override an act of assembly in this summary way, upon a motion for a special injunction, unless the case was perfectly free from doubt, and the necessity for an injunction overwhelming.

It is held by the majority of the court that the crossing referred to would be a destruction or violation of the corporate franchises of the plaintiffs. I am unable to see in what way it would so destroy said franchises. That it would introduce competition, and enable thousands

of persons crossing the river at Market street ferry to go up or down town, by way of Seventh or Ninth streets, by the payment of a single fare, and without change of cars, is apparent. That this would result in a diminution of plaintiffs' cash receipts is equally clear. While this would subject plaintiffs to loss, it is damnum absque injuria. The right of the Legislature to charter a rival road, and thus introduce competition, is too plain for argument. If it is contended that the said crossings would seriously impede the running of plaintiffs' cars at the points of intersection, it is sufficient to say that no such fact is averred in plaintiffs' bill, or sworn to in any affidavit that I have seen, while it is expressly denied by defendants' affidavits. If the special injunction rests upon this question of fact it has neither averment nor proof to sustain it.

No case can be found in which it has been held that the crossing of the track of one railroad by another road, in pursuance of an act of assembly authorizing it to be done, was per se, a destruction of corporate rights. In the case in 5 Green, cited by the majority of the court, the question was not whether one road might cross another, but whether the cars of one company could be run for several squares over the rails of the other. It is no answer to this to say that if the Legislature may authorize such crossing at one place, it may do so in a hundred places, and in such manner as to practically prevent the running of plaintiffs' cars. The question is not what the Legislature may do, but what it has done. If the crossing of plaintiffs' tracks in the manner indicated would not interfere with the running of their cars as heretofore, how can it be said to interfere with their franchises? And if said crossing does not so interfere with said franchises, ought we to enjoin the defendants because some other imaginary plan, which they do not purpose to adopt, might do so?

It does not follow that because the Legislature may authorize the crossing of a railway track in a manner that would cause no practical injury, it may also authorize such a crossing as would amount to a destruction of the franchises of a corporation.

There is a marked distinction between the rights of a city railway company in the use of its track, and a railway company whose road is operated by steam. In the latter case the company always purchases or pays for the right of way, and sometimes the soil itself. It has of necessity the exclusive use and possession of its road bed. Such railroad is not a public highway in the ordinary sense of the term. But our city railways have no such exclusive possession of our streets. They occupy them in common with our citizens generally. Their tracks may be used indiscriminately for either business or pleasure, subject only to the restrictions imposed by law.

Their tracks may be crossed by citizens with vehicles or otherwise, at any point, and the Legislature may, in my judgment, grant a corporation the right to do so with its cars, subject only to the restriction that such crossing shall not prevent existing roads from operating their cars. The claim which the plaintiffs set up to an exclusive use of the street is one which cannot be conceded without serious detriment to the public interests.

The crossing of the plaintiffs' track in the manner proposed seems to have been rendered necessary by the peculiar manner in which the

Market street road has been laid. This is apparent from an inspection of the plans. In his affidavit, Mr. Shedaker, city surveyor, says:

"The proposed tracks of the defendants, between Ninth street and Front street, as delineated on the map already exhibited to the court, were located by affiant, with a view to cause the West Philadelphia Company, and the merchants on Market street, and the public generally, the least possible inconvenience. And affiant saith, that as the West Philadelphia tracks are now laid, he knows of no method by which his original draft can be altered so as to effect the above purpose, unless the West Philadelphia Company will consent to an alteration in the lines of their tracks as now laid. Affiant firmly believes, as an expert, that the use of the Union tracks, as located on affiant's original plan, will not occasion the West Philadelphia Company any more inconvenience than the passage of carriages and other vehicles now occasion on said routes."

In view of these facts, which appear too self-evident to be contradicted, it would seem difficult to understand how the crossing complained of involves the destruction of the franchises of the Market Street Company; and from so much of the opinion of the majority as assert that it does, I respectfully dissent.

I have purposely avoided all reference to the merits of this controversy. I do not regard the claim of either company, to be conservators of the public good, as entitled to very much weight. I view it as a contest between rival companies, each having a warm regard for its own interests. The vindication of public rights may well be left to other hands. I would give to each company its legal rights; nothing more, nothing less.

The practical effect of this decision may be, if acquiesced in by the parties, or confirmed upon appeal, to have additional tracks laid down. between plaintiffs' present tracks and the curb. Whether this result will be satisfactory to those most interested in this street remains to be seen. I regret the majority of the court, having reached the conclusion that they had a right to continue this injunction, did not exercise, if practicable, their equitable powers as chancellors to put the parties upon such terms as would have compelled them to come to some agreement by which the use of this noble highway should not be needlessly interfered with.

As the case now stands, with the right of the Union Company to lay its tracks on Market street established, I must be permitted to indulge the hope that wiser counsels may yet prevail, and some amicable arrangement made by which the cars of both companies may be accommodated without the laying of additional tracks.

I am glad to be able to say that this is the first occasion I have felt compelled to dissent in this formal manner from the judgment of the majority of the court. The minority is of course always wrong; but, with an anxious desire to be right in this matter, I am utterly unable to see my error.

Dissenting opinion delivered by

PEIRCE, J.-I do not concur in the decision of the majority of the court, and I do substantially concur in the dissenting opinion of Judge Paxson. It having been conceded that the defendants have the right to

lay their railway down Market street, it is their duty to lay it in the manner which will least interfere with the public use of the street; and this, I conceive, they propose to do by the plan prepared for them by the surveyor of the district. That this plan involves the necessity of crossing the plaintiffs' track is not the fault of the defendants, but of the curved manner in which the plaintiffs, from necessity at the time, or inclination, have laid their track. If the view of the majority of the court be correct, the plaintiffs could have obtained the exclusive use of the street by running their road from side to side in a zigzag course through the street. It does not become the plaintiffs, then, to complain that the defendants cross their track seven times. In my opinion they would have the right to cross it seventy times if the plaintiffs had laid their road in a manner which compelled them to the necessity of so doing. If there were a disposition on the part of the plaintiffs to consent to the straightening of their track, a plan could be agreed on in ten minutes which would end this controversy, and which, whilst securing to each company the franchise bestowed on it by the State, would least interfere with the public use of the street. And I think it is the duty of this court, sitting as a court of equity, and having supervision and control of these corporations, whilst securing to them the full and proper exercise of the franchises conferred on them by the Commonwealth, to see that they so lay their tracks as will least interfere with the use of the street as a common and public highway, and for the transaction of business on it by the merchants resident on it and others.

The only other plan left to the defendants to lay their tracks, unless the plaintiffs will consent or be required to straighten their road, is to lay them between the footwalks and the plaintiffs' tracks, which will bring the defendants' tracks so near to the curbs as to seriously interfere with the business of the merchants on the street lading and unlading their goods, and with the transit of the cars of the defendants along the highway.

I do not quite understand the criticism which is made on the language of the act giving power to cross all railways, that the "words now or hereafter to be laid on Market street" mean now to be laid, and do not mean now laid on Market street. The construction would imply that the Legislature meant to give a right to defendants to cross their own railway, which surely cannot be the meaning of it.

This is the first instance of a healthful rivalry in the interests of the public among the railway companies of our city, on whom the use of our streets has been so liberally conferred, and I think that the power of the court ought to be so used in the control of them as to favor and promote to the greatest degree the interests of the public, which in this case will be best done by requiring the plaintiffs to straighten their track, or in default thereof to permit the defendants to lay their road in the manner proposed by them.

William H. Rawle, Theodore Cuyler, George W. Biddle, and William M. Meredith, Esqs., for the plaintiffs.

Hon. James Thompson, Hon. F. Carroll Brewster, and Charles H. T. Collis, Esq., for defendants.

4

[Leg. Int., Vol. 30, p. 168.]

THE CITY OF Philadelphia vs. George F. Keyser.

1. If the answer of defendant cannot by act of assembly be admissible in evidence against him if he were charged with a misdemeanor, he will be compelled to answer complainant's bill.

2. The fact that defendant has given plaintiff a bond for the performance of his duty does not prevent plaintiff proceeding in equity against him.

3. The jurisdiction in equity having once rightfully attached, it can be made effectual for complete relief.

Opinion delivered May 17, 1873, by

ALLISON, P. J.-The defendant was register of water rents for the city of Philadelphia from February 28, 1867, to February 1, 1872. The plaintiff charges that, during all of this period, he neglected to pay in daily to the city treasury, as required by ordinance, all moneys received by him for water rents, and did not make daily returns, under oath, of all moneys so received to the controller of the city.

It is further charged, that during all the time he was in office, the defendant deposited the moneys of the city in his own name, with individuals and with certain banking institutions, and received interest upon the same, for his own use and benefit, and that he has never paid the said interest or profit to the city.

The plaintiff prays for discovery by defendant of the several matters charged against him, and that he be compelled to account for and pay over to the city all interest or profit on moneys received in violation of his obligation and duty of office which in any way accrued to him from detention and use of the moneys of the city.

There is also a prayer for general relief.

The defendant demurs generally to the bill, and specially to the prayers for discovery and relief.

The chief ground of demurrer is, that if compelled to make answer of the matters mentioned in the bill, the answers might be evidence tending to subject the defendant to punishment, penalties and disabilities, under the laws of Pennsylvania.

It is an elementary principle of equity jurisprudence that no man need discover matters tending to criminate himself, or to expose him to a penalty or forfeiture. He may refuse to answer not only the leading facts, but as to every incidental fact which may form a link in the chain of evidence, if any person should choose to indict him: Adams' Equity, section 3, and authorities cited in note. In Story's Eq. Juris., sec. 1494, it is laid down, that discovery will not be enforced in aid of a criminal prosecution, or of a penal action, no one being compelled to accuse himself: Wigram's Law of Discovery, 82. It has also been held that a married woman will not be compelled to answer a bill which would subject her husband to a charge of felony: 8th Vesey, 405. Same principle sustained by this court in The Bank vs. Biddle, 2 Parsons, 58. The protection thus afforded to a defendant, against being compelled to prove himself guilty of a criminal act, is subject to modification, in respect to frauds; but objection to discovery of a fraud will not hold, on the mere ground that it might be indictable; it is necessary that an indictment shall be actually pending, or, at all events, a reasonable probability that