 Opinion, Me. Justice Paxson: It is not denied that the charter of appellant company gives it the power to lay its tracks upon tbie streets in question. And if it were denied it would not matter, as such power is expressly conferred. The city of Williamsport, appellee, contends that it has no right to do so without the consent’ of city councils first had and obtained, and refers us to section 9 of article XVII. of the constitution of 1874, and to the act of May 23, 1878, section 16, P. L. Ill, as authority for this position. The constitutional provision and act of assembly re*11ferred to, are in substantially the same language, viz.: “No street passenger railway shall be constructed within the limits of any city, borough or township, without the consent of the local authorities thereof.” The appellant company was chartered by act of April 15, 1868, P. L. 1080, and has expended a considerable amount of money on the faith of its charter. It had entered into contracts involving still further expenditure for the purpose of extending its road, and had incurred serious obligations on account thereof, when its operations were arrested by the injunction of the court below, issued at the instance of the appellee. There is nothing in the company’s charter which makes the consent of councils a prerequisite to the exercise of its corporate powers in the extension of its road. Hence we have the question, clearly cut, whether its charter is affected by either the constitutional provision or the act of assembly referred to. If the charter of the company remains in full force as originally granted by the commonwealth, its right to extend its tracks as proposed, is too clear for argument. It has been said by this court on more than one occasion that the constitution of 1874 did not ipso facto repeal charters. This principle was expressly ruled in Hays v. Commonwealth, 82 Pa. 523, in a very clear opinion by our brother Gordon, and the same thought was expressed by the same judge in Penn. R. Co. v. Duncan, 111 Pa. 352, where he said: “We also agree that the framers of the constitution of 1874, did not intend to violate the laws of the federal government, or to repeal the provisions of any charter granted by the legislature of Pennsylvania.” That this case was not intended to assert the doctrine that the constitution repealed existing charters, the extract I have given fully shows; nor was it intended to overrule Hays v. Commonwealth. It was urged, however, that appellant’s charter postdates the constitutional amendment of 1857, which provides that “ the legislature shall have the power to alter, revoke or annul any charter of incorporation hereafter conferred by or under any special or general law, whenever in their opinion it may be injurious to the. citizens of the commonwealth, in such manner, however, that no injustice shall be done to the corpo*12rators,” and that the appellant’s charter is subject to this provision and to appropriate legislation to enforce it. I concede all this, but I do not understand that the act of 1878 was intended to enforce this amendment or to repeal the charter of the appellant. The amendment of 1857 did not give an arbitrary power to the legislature to repeal charters at will. It only authorizes such repeal for cause. It can only be done where the charter is injurious to the citizens of the commonwealth, and such reason should appear in some way as the moving cause which induced the legislature to take such action. And even where such cause appears, the charter must be revoked or annulled in such manner, and no other, “that no injustice shall be done to the corporators.” That I am right in this construction of the amendment of 1857, was clearly shown by our brother Gordon in his opinion in Hays v. Commonwealth, where he says at page 528: “ It is said, however, that by the amendment of 1857, the legislature has the power to alter or revoke the charter of this corporation. Be it so; it may be an answer to say, that a constitutional convention is not the legislature in the meaning of that amendment. If, however, it were such, it could only make such alteration or revocation when it was made to appear that the charter in the part proposed to be revoked or altered was ‘ injurious to the citizens of the commonwealth; ’ for the legislature cannot act arbitrarily in a matter of this kind, and impose its own will as the ultima ratio. In the case last above cited, Commonwealth v. Pittsburgh & Connellsville Railroad Company, 58 Pa. 26, Mr. Justice Sharswood sets it down as a rule settled not only by judicial but by legislative authority, that the legislature is not the final judge of whether the casus foederis, upon which the authority to repeal is based, has occurred. As there is in this case no allegation of a breach of any condition under which the Pittsburgh & Castle Shannon Railroad Company accepted its charter, or that that charter is in any particular obnoxious to the welfare of the citizens of this commonwealth, it cannot be successfully urged that it may be revised or abrogated by any state authority whatever. But the constitutional convention claimed for itself no such power; on the other hand, it has expressly set down in article II. of the Schedule, that all rights, actions, prosecutions and contracts shall continue as *13if the constitution had not been adopted. And by the 2d section of article XVI. it is manifest that the convention did not intend to subject any private corporation to any of the provisions of the constitution which might in any degree change the charter thereof. If otherwise, why say, ‘ The general assembly shall not remit the forfeiture of the charter of any corporation now existing, or alter or amend the same, or pass any other general or special law for the benefit of such corporation, except upon the condition that such corporation shall thereafter hold its charter subject to the provisions of this constitution.’ This section is so comprehensive and clear that nothing is left for surmise or doubt. Charters of private corporations are left exactly as the new constitution found them, and so they must remain Tintil the companies holding them shall enter into a new contract with the state by accepting the benefit of some future legislation. It is only on the theory that the manner of voting is not material that the cumulative system is sought to be saddled on this corporation ; but if this company does not hold its charter subject to the provisions of the present constitution, how can it be made subject to any one of its provisions, material or immaterial?” Hays v. The Commonwealth received the assent of six judges of this court, only the late Justice Woodward dissenting. It is sound law and must stand. Our conclusion is that the charter of the appellant is not affected by the constitution of 1874 or the act of 1878. It follows that it was error to grant the injunction. We have departed in this instance from our rule not to discuss cases coming here upon appeals from preliminary injunctions. This appeal presents a question of law only; there are no facts in dispute. The report of a master under such circumstances could not aid us. We have all the light now we could have upon final hearing. In addition we have been earnestly requested by the counsel on both sides to treat the decree as final. The decree is reversed at the costs of the appellee, and the injunction dissolved. 
Clark, Gordon, Green, Paxson, Sterrett, Trunkey, Williams
Williamsport Pass. Ry. Co. v. Williamsport
WILLIAMSPORT PASS. RY. CO. v. WILLIAMSPORT
<p>APPEAL PROM THE COURT OP COMMON PLEAS OP LYCOMING COUNTY, IN EQUITY.</p> <p>No. 400 January.Term 1887, Sup. Ct.; court below, No. 4 March Term 1887, C. P. in equity.</p> <p>On February 28,1887, the city of Williamsport filed a bill in equity against the Williamsport Passenger Railway Company, the prayers whereof were:</p> <p>1. That an injunction may issue, temporary until hearing and permanent thereafter, restraining said company defendant, its officers, employees, agents, contractors and servants from digging up any part of West Third street, or any other street in said city, or constructing any railroad upon said street or any of the streets of said city.</p> <p>2. Such further and other relief as the necessity may require and which shall seem meet.</p> <p>A preliminary injunction was granted as prayed for and February 28, 1887, fixed for further hearing upon its continuance or dissolution, on which day an answer was filed together with affidavits presented on each side.</p> <p>At the argument on March 1, 1887, the following were the undisputed facts and the positions of the parties as appeared from the pleadings and affidavits:</p> <p>The plaintiff, the city of Williamsport, is a municipal corporation of the fourth class, chartered under and by virtue of an act of assembly, commonly called the Wallace law, approved May 23, 1874, P. L. 230, and its several supplements. Prior to its acceptance of said act of assembly it was a city incorporated by an act of assembly which became a law January 15, 1866, P. L. 1231; before which time it was called the borough of Williamsport.</p> <p>The defendant, the Williamsport Passenger Railway Company, was incorporated by an act of assembly approved April 15,1863, P. L. (1864), 1080, whereby inter alia it was given power “ to lay out and construct a railway, commencing at Third and Market streets, in the borough of Williamsport, Lycoming county, and continuing westwardly along Third street or any other street in said borough, to the village of Newberry, in said county, and eastwardly through said Third streer, or any other street or streets in said borough, as may be deemed advisable by the said company, to and through the borough of Montoursville, with the right to construct branches to the main track of said passenger railway through any of the said streets of the borough of Williamsport, with single or double track, etc., etc......provided that the borough councils may, from time to time by ordinance, establish such regulations in regard to said railway as may be required for grading, cul verting and laying of gas and water, in and along said streets and to prevent obstructions thereon.” It was also provided that said company in constructing its said road should “ conform to the grades now established, or hereafter to be by law established, of the several streets, roads, or avenues traversed by said road.”</p> <p>Pursuant to this authority the company defendant organized, laid out and constructed a railway commencing at Third and Market streets in said borough, thence westwardly, in the direction of the village of Newberry, by Third street to Pine street, by Pine street to Fourth street, and by Fourth street to a point near its intersection with the Philadelphia and Erie Railroad, and from the starting point at Third and Market streets eastwardly, in the direction of the borough of Montoursville, on said Third street, to a point near its intersection with the Philadelphia and Erie Railroad. The company also constructed branches on Campbell street and Herdic street, and expended large sums of money in the construction, repair and maintenance of its road, and has had the same in operation since the year 1864, but has not since that time built any extensions of its main lines or branches into or through any other streets or parts of streets of said borough, now city.</p> <p>On February 9, 1887, the company defendant determined to lay additional branches to its main line in streets not heretofore occupied by it, and entered into contracts with competent parties to furnish all material and do said work, in pursuance of which the company incurred considerable expense and liability, and on the 21st day of February, 1887, proceeded to place its rails upon and along the streets it intended to occupy by other proposed branches.</p> <p>After giving the company notice not to put its rails on said streets nor proceed with said work, the city of Williams-port filed her bill in equity in this case, wherein, it was charged: That said company defendant holds its charter subject to section 9 of article XVII. of the constitution of 1874, and section 16 of an act to provide for the incorporation and government of street railway companies in cities of the third, fourth and fifth classes, etc., approved May 23, 1878, P. L., Ill, which sections of the constitution and act of assembly are in the same words as follows: “No street passenger railway shall be constructed within the limits of any city, borough or township, without the consent of the local authorities thereof.”</p> <p>It was further charged in said bill that the company defendant had not obtained the consent of the local authorities of the city of Williamsport to construct its proposed extensions ; that without such consent the occupation of its streets by said company would be unlawful, and therefore would be a public nuisance, etc. The answer substantially admitted the facts stated in the bill. It admitted that defendant had not obtained the consent of the local authorities of the city, and averred that such consent was not necessary. It denied that the construction of said branches would be without authority of law, etc., but averred that the defendant had lawful authority to construct said branches, and therefore that such occupation of the streets would not be a public nuisance, wherefore it was prayed that plaintiff’s bill be dismissed, etc.</p>
<p>A street passenger railway company incorporated in 1863, with nothing in its charter making the consent of councils a prerequisite to the exorcise of its powers in the extension of its road, prior to 1874 had constructed and operated its road in but a few of the streets it was authorized by its charter to occupy. In 1887, being about to extend its tracks into the unoccupied streets, the city filed a hill for an injunction on the ground that the consent of councils had not been obtained: Held,</p> <p>1. That the fourth constitutional amendment of 1857, providing power in the legislature to alter, revoke or annul any incorporating charter thereafter conferred, gave no arbitrary power to repeal such charters at will, and even where a moving cause was made to appear, such alteration and revocation must be so made that no injustice should be done to the corporators: Hays v. Commonwealth, 82 Pa. 523, approved.</p> <p>2. That the unrestricted right of the company to lay its tracks in the streets authorized by its charter, was not repealed by § 9, article XVII., of the constitution of 1874, and § 16, act of May 23, 1878, P. L. Ill, providing that no street passenger railway should be constructed within the limits of any city, borough or township,without the consent of the local authorities thereof.</p> <p>3. Charters of private corporations are left exactly as the new constitution found them, and so they must remain until the companies holding them shall enter into a new contract with the state by accepting the benefit of some future legislation: Hays v. Commonwealth, 82 Pa. 523.</p>
Supreme Court of Pennsylvania
Supreme Court of Pennsylvania