Then the latter clause of the section applies more particularly to the officers, declaring that any violation on the part of the officers shall be a misdemeanor. What will be the state of affairs if we provide that railroad officers shall not do this and shall not do that, and make no provision for their punishment at all, unless it may be an appeal to their board of directors, or to drive the shipper to a suit against the railroad company. The shipper will be afraid to do that. He is afraid to do it now. We propose to make it a penal offence for the officer to violate these provisions. Then any man whatever may become the prosecutor; any man may appear on behalf of the Commonwealth, and he may make the information, and that officer may be arrested, tried and punished. That is the proper way for us to provide for the punishment of these men if they violate the provisions that we have enacted. Why should we sit here and waste our time in the consideration of this subject if we are to turn our work all over to the Legislature? The sting of the law is its virtue; it is the penalty, and we know from past experience what we may expect in the future, especially in regard to the management of these great corporations, that nothing but the most stringent penalties will hold these institutions to their proper bounds. I certainly hope that this section will be adopted, as it has been amended, at the suggestion of the chairman of the committee.

The CHAIRMAN. The question is on the section as amended.

The section, as amended, was rejected, there being on a division: Ayes, twentyseven; less than a majority of a quorum. The CHAIRMAN. The next section will be read.

Mr. T. H. B. PATTERSON. I move that the committee now rise.

["No! No!"]

The CHAIRMAN. The Chair will suggest to the gentleman that he first allow the section to be read.

Mr. T. H. B. PATTERSON. Very well.
The CLERK read as follows:

"SECTION 14. All railroad and canal corporations shall be liable for the payment of consequential damages committed in or resulting from the construction, repair or enlargement of their works, and the said damages shall be paid or secured to be paid before the injury is done."

Mr. T. H. B. PATTERSON. I now insist on my motion.

Mr. KAINE. I simply wish to make a remark. I consider this a very important section, perhaps one of the most important in the whole article. I have not troubled the committee in the entire discussion of this subject. I therefore hope that the committee will now rise.

The CHAIRMAN. It is moved that the committee rise, report progress, and ask leave to sit again.

The motion was agreed to. The committee rose, and the President having resumed the chair, the Chairman (Mr. Broomall) reported that the committee of the whole had had under consideration the article reported by the Committee on Railroads and Canals, and had instructed him to report progress, and ask leave to sit again.

Leave was granted the committee of the whole to sit again on to-morrow.

Mr. D. N. WHITE. I move that the Convention do now adjourn.

The motion was agreed to, and at five o'clock and forty-five minutes P. M. the Convention adjourned until to-morrow at ten o'clock.

FRIDAY, April 25, 1873. The Convention met at ten A. M., Hon. Wm. M. Meredith, President, in the chair. Prayer by Rev. Jas. W. Curry.

The Journal of yesterday was read and approved.

RAILROADS AND CANALS.

Mr. COCHRAN, chairman of the Committee on Railroads and Canals, presented the following report:

uals shall be liable for any consequential damages resulting from the construction, enlargement, repair or operation of their works."

I think, Mr. Chairman, that a provision of this kind is necessary in the Constitution. The amendment offered contains the substance of everything that is in the section as reported by the committee, but is in somewhat different language. The

That they have had under consideration the resolutions hereunto annexed, which were presented to the Convention and referred to this committee. The propositions therein contained were considered by the committee before they made their general report on the subject committed to them, and their conclusions thereon were embodied in that report, now pending in committee of the whole. There being nothing new or additional which this committee is prepared to recommend, the following resolution is respectfully submitted:

Resolved, That the Committee on Railroads and Canals be discharged from the further consideration of the subject.

[The resolutions annexed were submitted on Wednesday, April twenty-three, by Mr. Broomall.]

The resolution reported by the Committee on Railroads and Canals was read twice and agreed to.

Mr. LILLY. I move that the Convention do now resolve itself into committee of the whole for the further consideration of the report of the Committee on Railroads and Canals.

The motion was agreed to, and the Convention resolved itself into committee of the whole, Mr. Broomall in the chair.

The CHAIRMAN. The committee of the whole resumes the consideration of the article reported by the Committee on Railroads on Canals, and the question is upon the fourteenth section.

Mr. KAINE. Mr. Chairman: I move to amend the section, by striking out all after the word "all," in the first line, and inserting: "Corporate bodies and individ

provides that "all railroad and canal corporations shall be liable for the payment of consequential damages, committed in or resulting from the construction, repair or enlargements of their works; and the said damages shall be paid or secured to be paid before the injury is done.”

I apprehend that last part of it would be impossible of execution. Consequential damages can only be ascertained after the injury is complete, after the act has been done that produces the injury. So far as direct damages are concerned, we have already a provision in the Constitution, and I have used the words of that section, so far as I could, in this amendment. The section, as reported from the committee. provides that "all railroad and canal corporations shall be liable." I have stricken that out, and inserted this language, from the fourth article of the old Constitution: "The Legislature shall not invest any corporate body or individual with the privilege of taking private property for public use, without requiring such corporation or individual to make compensation to the owners of such property, or by giving adequate security therefor, before such property shall be taken."

That, of course, applies only to direct injury for taking property directly. It has been held by the Supreme Court that there can be no compensation recovered for consequential damages unless a provision for that purpose has been inserted in the charter of the corporation. It was decided by Judge Strong, in 5th Wright, "that a corporation invested with the right of eminent domain is liable for consequential damages to private property no further than it is declared to be so in the act of

incorporation." That decision, and all its cognates, were based upon the celebrated decision of Coons vs. the Monongahela Navigation company, for the destruction of a mill and mill dam upon the Youghiougheny river. The doctrine was first enunciated, I believe, by Chief Justice Gibson, in that opinion, and our Supreme Court have followed that decision from that day to this.

The Supreme Court decided that boroughs, cities and counties were capable of subscribing to the stock of railroad companies; and the great case upon that subject was Sharpless vs. the mayor of Philadelphia. When the mayor and authorities of the city of Philadelphia undertook to and did subscribe to the stock of the Hempfield road, a Mr. Sharpless, in the city, brought an injunction to restrain them from that act. Upon the hearing of that case before the Supreme Court, Chief Justice Black decided that the city had a right to do it. That decision, and others of the same kind, produced the amendment to the Constitution of 1857, prohibi ting subscription of that kind by municipal corporations.

That course of decision upon the part of the Supreme Court induced that amendment. Since its adoption there has been no injury arising therefrom, because nothing of the kind has been done. The decisions of the Supreme Court on this other question, I think, now require to be corrected by a provision in the Constitution, such as the amendment proposes.

There are various kinds of damages that are done by corporations in the construction of their works, for which there is no remedy. For instance, a man owns a mill, and his custom is entirely from the country. A railroad is built right alongside of his mill. It becomes a great thoroughfare. Cars and locomotives are passing along it continually. That drives the customers from his mill; persons are afraid to go to the mill, for fear of injury to themselves or their horses or their property, and the result is that the mill property becomes perfectly worthless. For a thing of that kind there is no remedy.

The Pittsburg and Cleveland railroad built a road from Pittsburg to the city of Cleveland, commencing in Manchester, and in the construction of that road they built it close by a dwelling house. Cars were placed upon the road and allowed to stand there. Locomotives were continually passing and shaking the house, and filling it with smoke. The owner of

the house brought an action against the railroad company for damages, but the Supreme Court decided that he had no remedy; that the railroad company was not liable

Now, sir, I think a provision affording a remedy for things of that kind should be placed in this Constitution. Consequential damages in this country, I believe, are now a recognized fact. They have been claimed, at any rate, before the highest tribunal that has sat in the world for years; I refer to the arbitration at Geneva. I think we had better put such a provision into our Constitution, to make it the law of the land. If the party chooses to withdraw his claim for damages he may; but, nevertheless, he should have the right to enforce it if he will.

I

Mr. DARLINGTON. Mr. Chairman : feel very much averse to the introduction of a provision such as this into the Constitution, for the reason that its present provision seems to be ample for all practical purposes. You cannot take private property for private use; nobody ever pretended that you could. It can only be taken for public use under any pretence. The Constitution guarantees that private property shall not be taken for public use, whether it be by the State or by any company or individual authorized by the State to take it, without not only paying, but, if necessary, securing the payment, before the property is taken, of the damages that will be done.

Now, it is proposed to engraft upon this a new principle, that consequential damages shall be secured by the Constitution. Precisely what "consequential damages" may mean, it is a little difficult to fortell. You cannot anticipate all the circumstances that may arise; but one thing we do know, that there may be damages arising from the taking of private property for public use, which are already sufficiently secured. I do not know of any instance in which damages done by the taking of private property for public use may not be assessed and paid. I know of no such case under our existing Constitution. "Consequential damages" may refer to specu lative, uncertain, contingent things that may never arise, and which, of course, ought not to be compensated. But what we should seek to do is to secure to every individual the right, not to damages, but to compensation (for that is the proper word) for the taking of his property. If it be taken by a canal company, they inust pay for it. Although it be not taken

directly by the canal company, if they flow water back on the land of a private owner, it is to all intents and purposes a taking; and all damages resulting from such taking are now assessable and payable.

The damages in the case put by the gentleman from Fayette, of running a railroad alongside of a man's property, thereby injuring it, are also now ascertainable and payable. I admit that you cannot assess damages for and cannot compensate for an injury which may never happen, such as the liability of buildings to be burnt down; but if you run your railroad so near to the buildings of an individual as to lessen their market value and make them unsafe for occupation by reason of the danger to which every one is subjected in going to and from them, then damages may be assessed.

Mr. KAINE. Will the gentleman allow me to ask him a question?

Mr. DARLINGTON. Yes, sir.

from Chester, it was a case of direct and not of consequential damages.

Mr. DARLINGTON. I answer to that, that it was not a case of actual taking of the building, but it was a case of damage to the freehold.

Mr. KAINE. Will the gentleman allow me to interrogate him?

Mr. DARLINGTON. Yes, sir.

Mr. KAINE. I know that the gentleman who is now addressing the committee is a distinguished railroad lawyer; he has been counsel in an adjacent county for the Pennsylvania railroad; and in stating that case, with which he is perfectly familiar, I hope he will deal candidly with the members of this Convention.

Mr. DARLINGTON. I will answer the gentleman's suggestion by saying, first, that I am not here as a railroad lawyer. I am here as a man with equal rights on this floor with every other member, but not with equal talents. I have been con

and I am, almost every day I live, con

Mr. KAINE. What is the case?

Mr. DARLINGTON. In the case of Stauffer vs. the East Brandywine and Waynesburg railroad, in Chester county, a case in which 1 bore a part.

Mr. KAINE. How long ago?

Mr. DARLINGTON. Three or four years. Mr. KAINE. The Supreme Court decided exactly the other way in the case to which I referred.

Mr. DARLINGTON. The case to which I refer was based on the decision in Johnston vs. the Railroad, which arose in the western part of the State. The circumstances of Stauffer's case were that a railroad was laid through a barn-yard, and although no damages could be claimed for the burning of the building, yet the court held that if the road was so near as to make it unsafe for a prudent man to store his grain there, it was injury and must be paid for. In other words, if its market value was reduced by the position in which they placed it, injuring it as a place of storage for grain or produce, then it must be paid for. That case went to the Supreme Court, and the judgment of the court below was affirmed.

not so concerned as to place me in the unfortunate position of being on both sides on the same question; I do not mean that.

Mr. KAINE. What I complained of was that the gentleman, in stating that case, did not tell the Convention that the damages there were considered as direct damages, as the result of the original taking.

Mr. DARLINGTON. I state with candor, what the book will show, that the claim there was that the property was injured in the market by reason of the occupation of it and the road running so near to the barn as to make it an unsafe place to store grain, and therefore useless as a place of storage. That was the exact point.

Mr. KAINE. The question was considered as part of the taking.

Mr. DARLINGTON. Of course it was in the taking, because for nothing else could damages be given but for the taking. It was a taking of the property so that it could be used for no such purpose as before, and therefore the damages were assessed and paid. The party was compensated for the injury done, by rendering his barn useless as a place of storage, though they did

Mr. DARLINGTON. Certainly.

Mr. COCHRAN. If I understand the statement of that case by the gentleman

venture to say, has not been over-ruled; at least it has not came to my knowledge that it has been over-ruled, nor can it be over-ruled, I apprehend, while the law is