
    EASTERN DISTRICT, PHILADELPHIA, 1856.
    Erie and North East Railroad Company versus Joseph Casey.
    This case is reported in 2 Casey’s Rep., 287, where the opinions of Justices Black, Lowrie, and Knox, the majority of the court, may be found. Lewis, 0. J., and Woodward, J., dissented, and delivered opinions, which are here reported.
    Lewis, C. J., held as follows:—
    1. A charter, granted to a railroad company, which has been accepted and acted upon, cannot be annulled against the consent, and without the default of the corporators, judicially ascertained and declared, unless the power be reserved in the grant.
    2. Under the power of eminent domain, a State may resume grants of lands, franchises, or any .other private property, whenever the public interest requires it; but in such cases, the resumption must always be accompanied with just compensation to the party injured thereby.
    3. A legislature may pass an act, annulling the charter of a railroad company, but its validity depends upon the existence of the facts which constitute the cause of forfeiture; and these must be determined by a court and jury, according to the constitution and law of the land.
    4. Where the power to repeal a charter is reserved unconditionally, or “ whenever, in the opinion of the legislature, there has been an abuse,” there can be no objection to its exercise.
    5. The adjudication of the legislature, convicting this corporation of misuse or abuse, is void, for want of authority, in that body, to hear and determine the case, and also for want of that notice and opportunity, to the company, to be heard, which is indispensable to the validity of all adjudications.
    6. Where the sovereign having authority over two railroad companies, authorizes one to connect with the other, both are bound ; one actively, the other passively.
    7. There can be no abuse, or misuse, without a positive act of malfeasance. This, to furnish ground of forfeiture, must be wilful. It must be something more than accidental negligence, excess of power, or mistake in the mode of exercising an acknowledged power.
    8. The reserved power to annul the charter, carries with it no power whatever to seize the railroad, or to divest the stockholders, or the owners of the land, of their rights and property, but only takes away the franchise, this being ail the legislature gave.
    Per Woodward, J.
    9. Where a right to repeal a charter is reserved, the repealing law must be in accordance with the terms of the reserved right.
    10. A tacit condition which the law annexes to all charters, even without a repealing clause, is, that the sovereign power shall have the right, by quo warranto, or scire facias, -in a court of law, to enforce a forfeiture for misuse or abuse.
    11. Where the sovereign power reserves the right to declare a forfeiture for misuse or abuse, she may do it by her legislative instead of her judicial agents.
    12. Where the contract stipulates a condition of fact, on which alone one of the parties may rescind it, that fact must be ascertained and established, before the power of recision can be exercised, either by the legislative or judicial organs of the government.
    
      13. The legislature may ascertain a fact, upon which the forfeiture of a charter depends, where the power of forfeiture is reserved, through committees of investigation, although the more prudent course is to send it to a court and jury to be determined.
   Lewis, C. J.

— That a private corporation, when accepted and «capital expended on the faith of it, is a contract, is too well settled to be denied. That a charter for the construction of a railroad is a private corporation, is equally well settled. That the obligation of a contract cannot he impaired by a State, is a principle to be .found in the constitutions of the United States and the State of Pennsylvania. It follows that a charter granted to a railroad company, thus accepted and acted on, cannot be annulled against the consent and without the default of the corporators, judicially ascertained and declared, unless the power be reserved in the grant. 4 Wheat. 518; 6 Cranch, 88; 7 Id. 164; 9 Id. 43; 6 W. & S. 101; 6 Barr, 86, 379; 7 Harris, 151; 7 Pick. 344. The arguments founded on the inconveniences to the public, Avhich might flow from a power in one legislature to bind another, have their origin in an inattention to the eminent domain which rests in every sovereignty. Under that power a State may resume grants of lands, franchises, or any other private property, whenever the public interest requires it. But, in such cases, the resumption must always be accompanied with just compensation to the party injured thereby. It is not pretended that the charter of the Erie and North East Bailroad Company has been taken under this power, or that any compensation has been given or offered to the corporators. The act of 6th October, 1855, professes to annul it either under some general claim to judicial authoi'ity, or by virtue of a power reserved in the contract. The reservation is in these words: “ If the said company misuse or abuse any of the privileges hereby granted, the legislature may resume the rights and privileges hereby granted to said company.” The reservation is upon condition. But who is to judge whether the contingency upon which it depends has or has not occurred ? The act is silent on this point. There is not the slightest intimation that the question of “abuse” or “misuse” is to be adjudicated by the legislature. There is no provision for any notice or trial before that body. Notice to the party accused, and an opportunity for a fair trial and a full hearing, is so indispensable to the validity of a judicial sentence, that it may be presumed that these essentials would have been provided for, if the intention had been to give to the legislature the power to try and, determine the question. As the legislature possesses no judicial authority under the constitution, and have no established course of proceeding in the exercise of such a power, it is also reasonable to presume that in all cases where it was to be conferred by contract, the instrument conferring it would also prescribe tbe course of trial. This, of course, would not be indispensable, if the power be clearly reserved. Where an unconditional right of repeal is reserved no trial is necessary, and the repealing act is valid without it. This was the case of M'Larren v. Pennington, 1 Paige, 108. So also where an unlimited right of repeal “ at the pleasure of the legislature” is reserved, no trial is necessary; and a proviso that the power is not to be exercised “ unless for some violation of the charter or other default,” is not a limitation of the power which remains complete, by the terms of the contract, to be regulated only by “the pleasure of the legislature.” This was the case of Crease v. Babcock, 28 Pick. 342. It is true that the counsel have found one case in Green’s Iowa Reports, 561, where the territorial legislature, at a time when “ the territorial courts were imperfectly organized in legal proceedings,” adjudicated upon a forfeiture under a power reserved to vacate the charter, in case of abuse or misuse; and that proceeding was sustained. The “ disorganized condition of the courts” of the territory at the time the legislative action occurred, was assigned by the court as one reason for the decision. The authority of Crease v. Babcock, 23 Pick. 340, was relied on as another, although, from what has been said, it is manifest that it gives no support to such a proceeding; and, lastly, it was thought absolutely necessary to construe the reservation as giving the legislature the power to adjudicate on the misuse or abuse, in . order to give effect to it, and that it meant nothing without it. If this were true, it would not give the legislature the power to adjudicate where it has not been reserved by the contract. But it is a very gross error to suppose that the reservation means nothing without giving it this enlarged construction. The evil which would have existed without it was that the corporation, at common law, might have continued to exist with full power to practise its abuses, until arrested in its career by a judgment of ouster. This could not be obtained without the delay incident to all legal proceedings. But a repeal, if valid, put an immediate stop to its abuses, so that all its acts afterwards would be null and void; and all parties would be bound to take notice of the repeal. But the validity of the repeal was still a question which it had a right to have decided according to law in any direct proceeding for the purpose. If its validity depended upon the existence of abuses, it had a right to demand a trial, and to call for the proofs before it could be deprived of its possessions. If the abuse was established, its charter was gone from the time of the repeal, and its intermediate acts were void. But if the contingency upon which the right of repeal depended did not exist, the repeal, of course, would be inoperative. This is the construction which such a reservation would receive in contracts between individuals ; and there is no propriety in adopting a different rule for contracts with the State. All parties stand on equal footing in a court of justice. If a landlord reserves the right to enter upon the tenant and take away his term in case of waste, non-payment of rent, or improper culture of the land, his right to vacate the lease depends upon the proof of the forfeiture in a court of justice. No lawyer ever supposed that such a clause gave the landlord the right of adjudicating finally upon the forfeiture, so as to deprive the tenant of a trial by due course of law. If he attempts to enter without cause, he may be restrained by injunction; or, if he is not thus restrained, he may be sued for trespass. So here the legislature may pass the act annulling the charter, but its validity depends upon the existence of the facts which constitute the cause of forfeiture, and these must be- determined by a court and jury, according to the constitution and the law of the land. This construction of a clause of this character is sanctioned by this court in The Commonwealth v. Bonsall et al., 3 Wharton, 567, where it is said that when a power to annul a charter is reserved upon terms or conditions, there can be no objection to its exercise, “provided the ease contemplated has arisen.” 3 Wharton, 567. The same principle is affirmed by the Supreme Court of the United States, 15 How. 313. Where the power to repeal is reserved unconditionally, or “whenever in the opinion of the legislature there has been an abuse,” there can be no objection to its exercise. But in this case no such general power is reserved. The legislature did not think proper to insist on any such reservation. The judicial power over the case is therefore not given by the contract. Nor is it conferred by the constitution. It follows that the corporators have a right to a trial by jury. The stockholders are tangible individuals, with rights to protect and defend. They have a right to demand that their property shall not be taken away, “ unless by the judgment of their peers,” or the due course of law as administered by the constitutional tribunals, where alone the judicial power is vested.

The case originating in the territorial transactions of Iowa, when her courts of justice were in a “disorganized condition,” is the only one cited which sustains the position that a reservation of power to revoke a charter, in case of abuse, carries with it the additional reservation of judicial power to try and convict the accused corporation of abuse. A few years earlier, the case of Titus Losey was decided by a “Lynch court” of the same territory. He was convicted and sentenced to pay a fine of $800. He appealed from the decision, and as the appellate tribunals of the territory were in a “disorganized condition,” the court sent up the appeal to the president of a Pennsylvania Common Pleas. He reversed the judgment, and awarded restitution of the fine which had been levied. The “Lynch court,” with a proper regard for the due course of law, immediately obeyed the decision. The case is cited, not because it is a better precedent than the one from the same quarter reported in Green’s Reports, but merely to show the progress of judicial authority. A few years ago the “ popular” tribunals of Iowa were willing to receive the “gladsome light of jurisprudence” from the president of a subordinate court in Pennsylvania. But now, even the irregular struggles of her infant existence furnish a precedent sufficiently potent to shift this ancient and stable commonwealth from her constitutional moorings. “The sceptre has” indeed “departed from Judah!”

If the preamble is to be construed as an adjudication of the legislature, convicting the corporation of misuse or abuse, it is void for want of authority in that body to hear and determine the case, and also for want of that notice and opportunity to be heard, which is indispensable to the validity of all adjudications. But in no part of the preamble does it appear that the legislature have given their judgment that the corporation has been guilty of abuse or misuse of the privileges granted. No such words are to be found in it. On the contrary, it professes to recite a decree of this court relative to the improper location of their road, alleges an “omission” to “complete and bring it into use” within the ten years prescribed, and then pronounces “ the solemn judgment of the legislature,” not that the corporation has “misused” or “abused” its privileges, but that the charter has “become entirely null and void.” It then alleges a reserved right to resume the franchise, and the first section professes to revoke and annul the charter previously stated to have already become null and void. It is manifest that the revocation is founded on the “ omission” to complete the road in ten years, and not in the “abuse or misuse” of the charter. In the first mentioned contingency no power whatever is reserved to the legislature. In the last there is a reservation. The act is therefore void, because it is not founded on the section which reserves the power of repeal, but on another section relating to another contingency, in which no power whatever was reserved to the legislature.

But as the right of repeal existed in case of abuse or misuse, a court of justice might be willing to sustain the act, if the fact of abuse or misuse could be duly established now, provided the State had done nothing to waive the forfeiture. It must be remembered that forfeitures are odious, and that the law not only construes with great strictness, statutes imposing them, but always lays hold of every act of waiver to relieve against them. If a lease be forfeited for non-payment of rent at the day, or omission to repair, the acceptance of rent after the day, in the first case, and giving notice to repair by a particular time, in the last case, are waivers of the forfeitures. Doe v. Meux et al., 4 Barn. & Cress. 606; 10 Eng. C. L. Rep. 417; Doe v. Lewis, 6 Neville & Manning, 672; 36 Eng. C. L. Rep. 455. These waivers apply to a State as well as to an individual; 9 Wend. 379; 12 Conn. 7.

What evidence of misuse or abuse has been produced ? The act of confiscation recites and relies on the decree of this court, which was pronounced on the 7th September, 1854, in determining a case in equity between the commonwealth and the corporation. This is the only evidence of misuse or abuse shown or relied on to sustain the forfeiture. But the bill filed by the State demanded no forfeiture, and none was decreed. A court of equity never deals with the question of forfeiture; 2 Kent, 313. The application by the commonwealth to the equity side of the court, in a bill which acknowledged the legal existence of the corporation, and its competency to answer, was a strong intimation that she intended to waive the forfeiture if any existed. It is not pretended that the decree contains any adjudication that the company had forfeited its charter. This court had no power to pronounce such a decree without a trial by jury. The decree, so far from adjudging the charter void, proceeds upon the ground that the company has a legal existence and an ability to perform corporate acts. Accordingly, it directs the company to break up certain portions of the railroad, and commands them to “ change the route and construction of it within four months,” and to “make their western terminus at what was the eastern line of the borough of Erie, in 1842, or within the same borough.” It also commands them “ to re-construct their railroad, to supply the parts ordered to be broken up, according to plans and specifications to be by them made, and to be submitted to, and approved of, by this court, on full notice to the counsel for the commonwealth, and not otherwise.” If the State intended to exact the forfeiture arising from the mistake in the location of the road, the plainest principles of common honesty required her to say so before the company had expended large sums of money in re-constructing the road in obedience to this decree. The decree was pronounced in favor of the State, at her own suit. It never could have been enforced except through her procurement and prosecution. Instead of suggesting on the record that she would not further prosecute the suit, but would exact the forfeiture, she appeared in court, by her counsel, with her plans for the location of the parts to be re-constructed. She demanded that the western terminus should be fixed at the harbor of Erie, and that the corporation should be compelled to construct it to that point. This was asking more than was provided for in the charter, and so the court decided. The new location, in conformity with the decree, was approved of. If the State intended to exact the forfeiture at all, here, again, was an opportunity for her to say so, in time to save the stockholders the expense of re-constructing a road under a charter which was to be taken from them. But nothing of this kind was suggested. On the contrary, the company was compelled, at the instance of the State, in a suit in her name, and prosecuted by her authority, to expend the sum of $50,000 in reconstructing their road. The State, at this time, had full notice of all the causes of forfeiture now relied on to justify the Act of October last. She was also bound to know that her legislature, after the existence of the alleged causes of forfeiture, had passed the Act of 14th April, 1852, regulating the manner of conducting the elections of the company — fixing the extent of the rights of the stockholders in voting at such elections — continuing the old officers until others should be elected — prohibiting the corporation Prom changing the gauge of the road from the gauges established by the Act of 11th March, 1851, declaring that the acceptance of the Act of 1852 should be deemed an acceptance of the Act of 1851, and imposing a forfeiture of the charter if the company should construct, or alter, or use, any railroad of any other gauge of track than that prescribed by the Act of 1851. The State was also fully aware of the fact, that the corporation had accepted the Act of 1852, thereby consenting to the burthens imposed by the Act of 1851; for all this was set forth in her own bill. All these transactions were after the alleged cause of forfeiture had arisen. It was also well known to the authorities of the State, (and as public acts, connected with acts of the government under legislative authority, judicial notice may be taken of the facts,) that the Erie and North East Railroad was connected at Erie'with the Franklin Canal Company’s Railroad; and the two roads formed links of a great chain of railroad communication, extending from the Eastern to the Western States, and that the legislature, when it annulled the charter of the latter company, were so deeply impressed with the necessity and importance of keeping up the railroad communication from the East to the West, that they expressly provided, in the Act of 28th January, 1854, that the governor should “keep” the latter railroad “in repair and good running order, for the accommodation of the public travel and business.” The “public travel and business,” could only be accommodated by preserving the connection with the Erie and North East Railroad at Erie. Without that connection, the railroad running west from Erie, would be almost worthless, as a means of accommodating public travel and business. Accordingly, the State herself, by her authorized officers and agents, did not only keep the road last mentioned in repair and good running order, but actually kept it in operation, in connection with the Erie and North East Railroad, at the very point where the location was afterwards objected to. The Commonwealth herself, while in possession of the Franklin Canal Railroad, brought her freight and passengers to that very point, to be forwarded on the Erie and North East railroad to the East, and received from the said railroad, at the same point of connection, the freight and passengers destined for the West. This open and notorious use of the connection with the Erie and North East Railroad, by the Commonwealth, was continued from January until the 5th May, 1854, when' the legislature passed the act of that date, authorizing and requiring the Cleveland, Painesville and Ashtabula Railroad, to purchase the railroad now constructed from the city of Erie to the Ohio State line, and all the right and interest of the Franklin Canal Company, or any other parties in the same, with its appurtenances and the rights of way, and all other rights of property connected therewith.” It was also provided, that the Cleveland, Painesville and Ashtabula Railroad Company, “might use and enjoy the said Franklin Canal Railroad, and its appurtenances, with a full release of any and all rights and claims of the Commonwealth thereto or therein ; and might construct a railroad, with one or more tracks, on and along it,” with full power to “ connect their road with any railroad or railroads legally authorized to come to, or to lay abroad within the city of Erie.” The Cleveland, Painesville and Ashtabula Railroad was required to purchase all the stock of the Franklin Canal Company, and all the debts of the company by bond, principal and interest; and, in addition, to subscribe half a million of dollars to the Sunbury and Erie Railroad. These conditions were fully complied with, and the Franklin Canal Railroad, as “ then constructed, from the city of Erie to the Ohio State line,” was sold by authority of the Commonwealth herself, to the Cleveland, Painesville and Ashtabula Railroad Company. The State thus secured half a million of dollars towards the completion of a great work of public importance, as well as other advantages of connection and trade by this transfer. She disposed of the Franklin Canal Railroad for fj>500,000 more than its cost of construction, and appropriated that money according to her own pleasure. Every one, in the least degree acquainted with the subject, knows that it was the connection at Erie with the Erie and North East Railroad, and at the Ohio State line with the Cleveland, Painesville and Ashtabula Railroad, that gave to the Franklin Canal Railroad its chief, if not its only value. Without those connections the road was almost worthless; with them it formed a link in the great thoroughfare, from the Eastern to the Western States, which was of the highest value to the purchasers, and of the greatest benefit to the commerce of the several States, and to the travelling community in general. The connection at the Ohio State line, had been decided to be illegal, buj; the object of the sale was to render it valid; and that it had that effect no one has ever doubted. If the connection at Erie was invalid, the sale of the road, a as then constructed,” and in notorious use, ought to have the same effect. That this was the intention of both parties, seems too plain to require further argument. It is not to be believed for a moment, that the State intended to entrap a corporation of a sister State into a purchase of a railroad, the sole value of which, to that company, was its connections with their own road and with the road east of it, and that as soon as an enormous price was secured, on that consideration alone, she intended to break up the connection and destroy the whole value of the purchase, on the ground of some mistake in locating the road, or other cause of forfeiture, well known to have existed long before the sale. The right to use and enjoy the Franklin Canal Railroad, as then constructed, with its appurtenances, was transferred by the State. That transfer carried, with it the right of connection with the Erie and North East Railroad, as then used and enjoyed, and as that right could not be enjoyed if the charter of the Erie and NorthjEast Railroad was declared null and void, it follows, necessarily, that the sale, under the Act of 5th May, 1854, vras a waiver of the forfeiture. Either company may insist on the waiver, because, where there is a legal connection of two railroads, it is a matter in which both have an interest. Where the sovereign, having power over both, authorizes one to connect with another, both are bound, one actively, the other passively. One is to do and the other to submit, and both have a right to insist on all the legal consequences of such duties imposed and powers conferred.

With this full recognition by the State, of the existence of the charter of the Erie and North East Railroad Company, clothing it with new powers, imposing on it new duties, making use of the location now complained of herself, when in possession of the Franklin Canal Railroad, and gaining a large sum of money, in the sale of the latter road, by reason of its connection with the Erie and North East Railroad, at that very point, the authorities of the Commonwealth could draw no other conclusion than that the legislature intended to waive the forfeiture. That the public interest required the waiver is plain, because the interruption of the immense and incalculable amount of travel and business carried on by means of the Lake Shore Railroad, could not be otherwise than a great public calamity. That the principles of natural justice demanded the waiver, is equally clear, from what has already been said. That the high character of the Commonwealth for integrity and good faith, required that she should not take advantage of the forfeiture, after such repeated acts encouraging the belief that it was waived, is also fully apparent. But it seems to be thought, that the State is above the law — that she is not bound by the ordinary principles of justice — that waivers and estoppels, founded on the purest equity, have no effect on her rights, and that her legislature, whenever they think proper, may ignore and disregard her own tribunals of justice, and the rules of law and equity which govern them. The judiciary of Pennsylvania is established by the Constitution. It administers 'the law according to equity and good conscience. The rules of law, which govern it in the administration of justice, form a part of every contract, whether with the State or with individuals. And if the legislature is unwilling to submit to the application of those rules in the construction of’ their contracts, they should take care to reserve the right of exclusive jurisdiction to themselves as a part of the bargain. If they do not they are bound to submit to the high mandate of the Constitution, that no man shall be “ deprived of his property, unless by the judgment of his peers or the law of the land,” as administered by the courts of justice.

It is a great mistake to suppose that the State cannot waive a forfeiture, or that she is not bound by estoppels arising from her own acts. It has a thousand times been decided, that the sovereign, as well as an individual, may waive a forfeiture. 1 Pa. Rep. 436; 16 S. & R. 145; 5 Mass. Rep. 232; 9 Wend. 379. The doctrine has never been doubted. It was unanimously affirmed by this court at the very last sitting for the Eastern District, in the case of the Commonwealth v. The West Chester Railroad Company. The Commonwealth, like an individual, is bound by the acts of her agents, within the scope of their authority. The executive, legislative, and judicial authorities, may each bind her, when acting in their appropriate spheres. The judiciary may bind her by a judgment, as often as she voluntarily consents to become a party to a suit in court. On this ground, a judgment in a quo warranto is conclusive, even against the king. Com. v. Burrell, 7 Barr, 35. On the same principle, an acquittal in a criminal case may always be pleaded in bar to a new prosecution for the same offence. The legislature may bind her by acts of assembly, as often as those acts assume the substance of a contract, under, which private rights are acquired. On this ground she is restrained from enacting laws impairing the obligation of contracts created by legislative enactment. The executive may bind her, in the exercise of his official functions. On this ground, a pardon, by the governor alone, is an absolute bar to any prosecution by the State for the offence pardoned. The officers of the land office may bind her, in the exercise of their duties. By a warrant, survey and patent for land, she is precluded from selling the same land a second time. Iler Attorney-General may bind her by coming into court with her suits, and thus bringing her within its jurisdiction and subject to its judgment. It follows, from these principles, that when the Commonwealth voluntarily came into the equity side of the court with her bill, she bound herself to submit to the decree. If the bill was ambiguous, there was no ambiguity in her subsequent application. When she demanded a decree to compel the re-construction of the road to the harbor of Erie, and obtained one ordering ■its re-construction to Twelfth street, a judgment was pronounced which was utterly repugnant to any claim of forfeiture previously known! to exist. That the alleged cause of forfeiture was known to exist when the bill was filed, fully appears from the bill itself.

It is manifest, therefore, that the decree relied upon as establishing the right of the legislature to annul the charter confers no such authority. On the contrary, when considered in connection with all the acts which preceded and followed it, that decree is a perfect estoppel against any such enactment. It is a solemn adjudication, awarding compensation for the alleged cause of forfeiture, instead of exacting the forfeiture itself. The State had the right of election to demand either, but could not enforce both. She elected to receive compensation, and has thereby precluded herself from exacting the forfeiture. To insist on both, is repugnant alike to the rules of law and common honesty. If the condition of a bond be performed after the day, and the obligee accept it, the penalty cannot afterwards be exacted. If the money due on a mortgage be accepted after the day of payment prescribed, and after the estate of the mortgagor is forfeited at law, the forfeiture is waived, and the estate is saved. We have already seen that where the estate of a tenant is forfeited for omitting to repair, if the landlord, instead of exacting the forfeiture, gives the tenantnotice to repair within a particular time, the forfeiture is waived; and the reason is, that were it not so, the landlord might wait until the tenant had made the repairs, and then deprive him of his repairs as well as of the estate. 10 Eng. Com. Law Rep. 417; 36 Id. 455. It is true, that where a turnpike company has forfeited its charter, by permitting its road to remain out of repair and impassable, for the period prescribed as constituting a forfeiture, the subsequent repair of the road at its own motion, and for its own profit, will not atone for the past offence. People v. Turnpike Oo., 23 Wend. 258. But what lias that to-do with a demand by the Commonwealth for specific restitution for an injury caused by an error in the location? What has that to do with a case like the present, where the State made use of the compulsory power of her own judiciary, to compel the expenditure of $50,000, to repair the error complained of, and afterwards attempts to seize the charter and the improvements thus made, under an allegation that the expenditures were not made within the ten years prescribed ? If that was ground of forfeiture, the corporation had no right to expend the money at all. If the powers of the corporation had expired, it had no right to take private property for the new location, or to do any other corporate act. But the decree recognized its corporate capacity to act, and the Commonwealth, in procuring it, necessarily waived the forfeiture. I cannot assent to the doctrine, that the State may demand compensation' for a forfeiture, and after-wards exact the forfeiture itself! Such a doctrine is monstrous! It has no parallel, even in the unmitigated exactions of circumcised extortion. The principles of Shylock himself were quite elevated in comparison with it. He adhered religiously to the penalty of his bond, and had too much respect for law and common sense, to accept of compensation, so long as it was his purpose to exact the “pound of flesh.”

We have already endeavored to show that the failure to complete the road within ten years was not an “ abuse” or misuse,” within the meaning of the clause reserving the power to annul the charter. The inability to complete an expensive work of that kind within a particular time, is neither an abuse nor a misuse in any sense. It may be an unavoidable misfortune. It is especially no misuse or abuse within -the meaning of the charter in question, because that instrument has expressly made other provision for that contingency in a separate section, in which no legislative power of abrogation is reserved. The clause relating to the failure to complete the road within ten years, composes the 10th section of the Act. The reservation of the power to annul the charter for abuse or misuse is to be found in the 11th section. The two sections have no connection with each other. They relate to different conditions. The 11th section applies exclusively to positive acts. The 10th section to mere omissions. There can be no abuse or misuse without a positive act of malfeasance. This, to furnish ground of forfeiture, must be wilful. It must be something more than accidental negligence, excess of power, or mistake in the mode of exercising an aeknoiuledged power. 23 Wendell, 193; Angel & Ames on Corporations, 745. But a failure to complete an expensive work within a particular time may arise from inability, misfortune, mistake, and many other causes, entirely destitute of any wilful intention to disregard the condition. The forfeitures arising from the causes first mentioned were those provided for by the reservation of power. But the forfeiture arising from the cause last named is not within the reservation at all. So that as already stated the action of the legislature, on the face of the Act itself, evidently exceeds the power reserved. It is founded on a mere omission, and not on any act of misuse or abuse of the charter.

The section relating to the completion of the work provides that if the company do not complete the work, so as to bring it into use within ten years after the passage of this Act, “then this charter shall become null and void.” It is a well-established rule of law that statutes imposing forfeitures are strictly construed. If the Commonwealth had demanded the forfeiture by proceeding at law, a very different question would have been presented from that which was adjudicated by the court when sitting in equity; and the course of trial would have been entirely different. The facts would have been ascertained by a jury according to the due course of the common law prescribed by the constitution. What were the facts ? The work was completed “ so as to bring it into use within ten years after the passage of the act” of incorporation. This is not denied. The work was done within the time prescribed. The road was in full operation within the time. The travelling and business community were in the full enjoyment, within the ten years, of all the advantages contemplated by the charter. Every substantial object contemplated by the 10th section had been fully attained. But it is contended that the charter required the road to be constructed to the borough of Erie. True, the_ legislature had made a municipal corporation the western terminus of the road; but the same authority afterwards, and before the road was finished, enlarged the area of that municipal corporation, and converted it from a borough into a city. And the railroad company, with the assent of the municipal powers established by the legislature, fixed the terminus within the limits of the city, without carrying it to the obliterated borders of the extinguished borough. This was done under resolutions of the city councils expressly consenting to it, but reserving the right to withdraw that privilege, provided the use and occupancy thereof shall appear to them to be injurious to the interests and welfare of the city.” It is not necessary to discuss the extent of authority existing in the municipal corporation. It is sufficient to say that it was clothed with a portion of the governmental power, and that it was the creature of the State, and, to the extent of its authority, it was the agent of the State. It assumed to act in the matter. Its action was well known to the State authorities. It was her duty, if she intended to exact the forfeiture, to disavow the authority the moment it came to her knowledge. But no such disavowal took place until the work was completed and the ten years had expired. Under these circumstances it seems clear that no court of justice in the civilized world, proceeding with the aid of a jury to determine the facts, would have decided that “ the work was not completed so as to bring it into use within ten years; and that the charter had thereby become null and void.” On the contrary, the rule would have been laid down, as it always is in such cases, that a substantial performance of the conditions is all that is required, whether they be conditions precedent or subsequent.” 21 Wend. 235; 23 Wend. 537. And it would undoubtedly have been held that the completion of the road to a point within the new municipal corporation, which had been substituted for the old one, so as to furnish the required facilities for commeree~and travel within the time prescribed, was a substantial compliance with the conditions of the grant. But a very different rule might be applied when the State merely sought the equitable intervention of the court to compel a change of location at the western terminus, in accordance with the arrangement made with the authorities of the city. These remarks apply also, in general, to the location of the road at Harbor creek, which was directed to be changed on account of its interference with the Buffalo road. An errqp in the location, 'S? even a nuisance in a common highway occasioned by an erroneous location, or an unskilful plan, or execution of the work, is surely not a failure to complete it, in any just sense of the term, so as to authorize a judgment of forfeiture for that cause.

But the Act of 1855 bears upon its face decisive evidence, that othér objects were in contemplation than the mere nullification of the charter. It provides for taking possession of the railroad, beeping it in good running order for the accommodation of the public travel and business, collecting the revenues and disposing of them as the legislature may hereafter declare, subject to any rights or obligations which may exist. It also provides for restoring the possession of the road to the company, if they shall break up the connection at present existing with the western road — extend their road to the harbor of Erie and terminate it at that point, and change the gauge throughout the whole length of it, either to four feet eight and a half inches, or six feet, and maintain the same thereat. These are burthens which the charter did not authorize the legislature to impose. That the termination at the harbor would greatly increase the expenditures of the corporators, and materially impair the usefulness of the road for the purpose for which it was designed is perfectly manifest. That this is the principal object of the act is too evident to escape observation; and that it is imposing a ruinous burthen, not warranted by a single word in the charter, is-equally clear.

If the corporation refuses to comply with the conditions proposed by the Act, what is to become of the railroad ? It must be remembered that the State is acting under a reservation, not a grant of power. It is the very essence of a reservation that it can operate only upon the powers existing before in the party making it. It has no effect whatever upon rights which previously existed in the opposite party, or were afterwards acquired by his labor and money expended on the faith of the grant. The powers existing in the State before the charter were merely the privileges granted by it. These were all that she granted, and these only can she take away under a reservation. The language of the reservation plainly confines its operation to these only. The State granted neither land, nor money, nor goods, and she can take none of these from the stockholders. The reserved power to annul the charter carries with it therefore no power whatever to seize the railroad, or to divest the stockholders or the owners of the land, of their rights and,property. At common law, upon the civil death of a corporation, all its real estate remaining unsold reverts to the grantor and his heirs; for the reversion in such case is a condition annexed by law, inasmuch as the cause of the grant has failed. 1 Bl. Com. 484 mr 2 Kent’s Com. 307; Angel & Ames on Corporations, 159, 750; Co. Lit. 13, b; 15 Howard’s Rep. 310. It might be that a Court of Chancery, in a proper case, would appropriate it to the debts of the corporation. But this is not the question here. It has been held that where a title to land is vested in a turnpike company for the purpose of a road, and the road is abandoned, the land reverts to the original owner; 12 Wend. 371. And writers of approved authority inform us that the grant to a corporation is indeed only during the life of the. corporation, and that when its life is determined by the dissolution of the body politic, the grantor takes it back by reversion, as in ease of any other grant for life. 1 Bl. Com. 484; Angel & Ames, 159. If the charter in question is legally declared null and void, the railroad reverts to the former owners of the land on which it is constructed. The title by reversion is as sacred as a title in possession or remainder, and the owners cannot be deprived of it except' by due course of law. So that the only effect of this act of abrogation will be to destroy the railroad altogether, or to throw it into the hands of the individual landholders along the route, without any security that it will be kept in running order for the public accommodation. Under the power to take lands for ordinary roads, the legislature might take the land on giving compensation for the improvements. But in this case no provision for compensation has been made, and that already received was only for the easement during the life of the corporation. So that by no rule of law, nor any fair construction of the clause of reservation, can the State take possession of the railroad in the manner and for the purposes proposed by the act, even if her right to annul the charter were fully conceded. It is idle to call the railroad a common highway, in order to justify this extraordinary act of confiscation. The State has not made it so, nor can she make it so, unless she takes the land for the purpose upon just compensation to the owners. It is of the utmost importance that the law on this branch of the case should be insisted on. If a State, under a reservation of power to revoke a charter may also seize and confiscate all the acquisitions of the stockholders, a constant temptation will be presented to exercise the power without cause. A judgment should be impartially pronounced. But if the State, or local authorities of great influence, are to gain by confiscating the assets of a wealthy corporation, who can hope for an impartial decision, or whalt corporation in the Commonwealth is safe 2

It would be unjust to the members of the legislature who voted for the Act of 5th October, 1855, to suppose that they would have sanctioned any such a violation of contract as that act proposes, if the decree of this court had been fully recited in the preamble, and the facts which preceded and followed that decree had been fully made known. It would be equally unjust to the governor, who refused to sign the bill for many months after it had passed the two houses, to believe that he intended anything more than to present the question to the proper judicial authority for decision. Indeed, the readiness with which that officer yielded to the intimation of this court, in suspending the execution of the act, until its validity was passed upon by the judiciary, is evidence that he entertained doubts on the question. The enterprising population of Erie, if they had no interest in the question, and had not been excited by the long conflict in which they have engaged, would scarcely sanction this proceeding. It is but just to look at the circumstances under which they have resorted to this measure. They consider themselves in a state of war with these corporations. They have battled bravely, and at much sacrifice of time and money, for the advancement of their local interests, and now, when they think they have their enemy conquered, they may feel justified in claiming, by right of conquest, the privilege of dividing the spoils.

In conclusion, I am of opinion—

1. That the charter of the Erie and North East Railroad Company is a contract.

2. That the legislature have no right to revoke it, unless the power be reserved in the grant.

3. That the reservation of power to annul the charter by the legislature, is upon the condition of misuse or abuse: and the legislature possesses no judicial power under the Constitution, and have reserved none in the grant, and are therefore not authorized to adjudicate upon the abuse or misuse.

4. That the validity of the Act of 5th October, 1855, depends upon the existence of the abuse or misuse, and the right of the Commonwealth to take advantage of the forfeiture at the time the act was passed.

5. That the law existing at the time of the contract, formed an essential part of it, and creates the very obligation which the Constitution declares shall not be impaired. The stockholders have, therefore, by the contract, a constitutional right to a regular trial by jury.

6. That there has been no misuse or abuse within the meaning of the reservation.

7. That the road was substantially completed and brought into use within ten years, so as to save any forfeiture on that ground.

8. That the error in the location of the railroad was neither an abuse, misuse, nor failure to complete it, within the meaning of the 10th and 11th sections of the act of incorporation.

9. That if any forfeiture had accrued, the State has waived it, and estopped herself from taking advantage of it, by compelling compensation for it under a judicial decree of this court.

10. That if the Act of 5th of October, 1855, was valid in annulling the charter, the legislature have no power under the reservation, to take possession of the railroad.

11. That the Act of 5th October, 1855, impairs the obligation of the contract with the stockholders of the corporation, and is, therefore, a violation of the Constitution of the United States. It is, also, for the same reason, a violation of the Constitution of Pennsylvania.

12. That it is an exercise of judicial power, vested by the Constitution in the courts of justice, and not in the legislature, and is, therefore, void.

18. That it deprives the parties of the trial by jury, contrary to the Constitution, and is, therefore, void.

14. That it takes the property of the stockholders, without the judgment of their peers, and contrary to the law of the land established by the Constitution, and is, therefore, void.

I am in favor of granting an injunction to prevent the seizure of the railroad, until the rights of the parties be determined by due course of law.

Woodward, J.,

dissentiente. — Concurring in several of the propositions, better stated in the opinion of the majority than I could express them, I am relieved from the necessity of discussing tljem, and will content myself with indicating which they are, and then assign, as briefly as possible, my reasons for dissenting from the general conclusion to which the majority have arrived.

That the judiciary may, in a clear case, declare an act of assembly unconstitutional, that he who seeks to impeach it is bound to show what part of the Constitution it violates — that no statute is unconstitutional merely because it is against public policy, or inconsistent with rules of law or principles of equity — that an act of assembly, granting corporate rights, which are accepted, is a contract and inviolable, — that if it contain a clause of repealibility such clause is part of'the contract, and a law passed in pursuance thereof is not a law impairing its obligations — and that corporations with such a clause in their charter, may be repealed without resort to legal process in a court of justice, are propositions of a general nature, to which I assent. A-corollary from these principles is, that where the right of repeal is reserved, the repealing law must be in accordance with the terms of the reserved right.

Now, to make an immediate application of these principles to the case before us — the Act of 12th April, 1842, was a contract between the Commonwealth of Pennsylvania and the above-named company, wherein the parties agreed, that “ if the said company abuse or misuse any of the privileges hereby granted, the legislature may resume the rights hereby granted to said company.” Had there been no such clause in that act, the State would still have had the right, by quo warranto, or soire facias, in a court of law, to enforce a forfeiture of the charter, for the same causes, misuse or abuse; for such is the tacit- condition which the law annexes to all charters, but being expressed in this one, she may do it by her legislative instead of her judicial agents. This I conceive is the whole effect of the clause.

In the one case, the power is judicial, because such is the implied contract; in the other it is legislative, because so is the express contract; but in both, it derives its right to act from the contract, and can only act according to the terms and conditions of the contract. When, therefore, the contract stipulates a condition of fact, on Avhich alone one of the parties may rescind it, that fact must be ascertained and established before the power of recision can be exercised by either the legislative or judicial organs of the government. The power is tied to the fact, and without .the fact there is no power.

The condition of fact here is misuse or abuse. Had the legislature ascertained and established that, I agree they might have repealed. And I will not say that they should have sent the fact to be inquired of by a court and jury; though this would doubtless have been the most prudent course. They might have ascertained it for themselves, through committees of investigation, which are common in legislation. But until the fact was established, the legislature had no more power to repeal this charter than they had to destroy any othei; contract in the Commonwealth. They made no inquiry into the fact. Their preamble proves this, and a preamble, though strictly no part of the statute, may be resorted to for discovering the grounds and inducements of the law. Lord Coke considered the preamble a key to open the understanding of the statute.

What says this preamble ? It recites no inquiry or investigatión on the part of the legislature, but that certain facts had been “judicially determined” by this court, and, thereupon, the legislature epters its “solemn judgment” of forfeiture. When it is considered that this court is not the constitutional trier of any fact, and that the Constitution gives the legislature no judicial powers, it is a singular reversal and confusion of settled ideas— this solemn judgment of the legislature, on facts judicially ascertained in a proceeding on the equity side of the court.

So far as a legislative investigation might ascertain the fact of misuse and abuse, there was no ascertainment nor attempt to ascertain it. Did it exist ? Had there been misuse or abuse ? The legislature says it had been judicially ascertained, but, unfortunately, the record referred to shows that misuse and abuse of charter privileges, were not charged, were not tried, and were not found. Unlawful interference with certain roads and streets, and adopting the city of Erie for the borough of Erie as the western terminus of their road, were the complaints against the company in that record, and upon facts that were admitted, the judgment of this court, sitting as a court of equity, was, that the complaints were well founded, and should be redressed. And the record shows that they were redressed — the company, at the suit of the Commonwealth, was made to alter its road in the particulars specified, so as to conform to the literal and most exact interpretation of the charter. The bill before us now, alleges compliance with that decree, at a cost of about $50,000, and there is no denial of it on the part of the defendant. When the legislature then recited these judicial proceedings, and entered its solemn judgment of forfeiture, this company had a road on the very ground specified in their charter, and had complied, so far as it is now shown us, with every part and parcel of their contract with the Commonwealth. There was, then, no misuse or abuse. The contingency did not exist in which the reserved right of repeal was to be exercised.

But it had existed, say the majority, and the State might recur to the former breach, although cured now, and repeal because of that.

I dissent totally froüi this position, and from all that is said in the majority opinion in support of it.

1. Because I am not satisfied that the violations of charter which were established in that judicial proceeding amounted to misuse or abuse of charter privileges. These words are not very well defined in the law, but if we can fix their legal meaning* we are to presume that the parties to this contract used them in that sense. Franchises, says Baron Comyn, may be forfeited by breach of the trust on which they were granted and perversion of the end of the grant. And again, franchises may be forfeited by misuser or abuser or other misdemeanor, in him to whom they were granted. Digest, title Franchise, pi. Gr. 3. I am of opinion, said Lord Holt, in Rex v. Mayor of London, 1 Shower’s R. 280,, that a corporation may be forfeited if the trust be broken and the end of the institution be perverted. And Lord Coke in the Earl of Shrewsbury’s case, 9 Coke’s R. 50, explains the term misuser by the example of a judge taking a bribe. Now from all this we are to understand these words as importing something more than involuntary misconduct or mere technical wrongs — something that implies a high degree of turpitude —a wilful malfeasance, a species of misdemeanor. A deliberate perversion of charter powers to an object not contemplated in the grant, such as occurred in the instance of the Franklin Canal Company, 9 H. 117, is a breach of trust, and misuse and abuse.

'But if the facts which attended the construction of the Erie and Eorth East Railroad ever come to be investigated with a view to forfeiture, it is exceedingly doubtful whether they will be found to be misuse or abuse. The oldest and most experienced member of this bench did not consider them even substantial violations of charter duties. And it is possible to conceive that the company considered themselves bound to interfere with streets and roads to the extent they did, in order to accomplish the main purpose of their institution in a manner most beneficial to the public; and that, as the city of Erie included the borough, they touched the one when they came to the other. I say merely that these were possible views, which a- company intent on doing its whole duty might take, without intending any breach of trust, or deliberate perversion of their powers.

On the questions then presented, however, and for the purposes of that proceeding, I did not hesitate to give my voice for compelling them to a strict performance of their undertaking. With the majority I held any interference with the Buffalo road to .be wrong, and read the word b.orough strictly, not because any grievous infraction of the charter had occurred, nor because the public interests were to be subserved by the change of location which we compelled, but because in construing charter powers, I knew of no better guide than charter words, and was, as I always am, quite willing to enforce corporate deference to legislative authority when constitutionally exercised. But I did not understand, and I think none of us did, that we were passing on the meaning of the words misuse and abuse as grounds of forfeiture. Sitting, as we then were, as a court of equity, we had no jurisdiction of a question of forfeiture, and none was raised or decided. The promoters of that suit insisted we should send the company to the harbor, but as that word was not in the law, we could no more decide that they were bound to terminate at the harbor than at the court-house. We asserted the sound principle that we would, when called on for the purpose, compel corporations to walk in the precise path prescribed, but we did not decree a forfeiture or decide that cause of forfeiture had occurred. The legislature therefore misconceived the purport and effect of the record to 'which they appealed. It did not establish misuse and abuse, and I repeat that I am not satisfied that the facts it did establish amounted to misuse and abuse.

2. A second ground of dissent is, that it appears from all that has been said, that the company never had a chance to contest the facts of misuse and abuse. I never have as a judge condemned anybody unheard, and I never will. There is not probably a corporation in Pennsylvania, which has not omitted some duty, or done something it should have left undone. Annual reports to the auditor-general are required by law, but they are often delayed and sometimes omitted. Doubtless on an injunction we would compel a corporation to perform the duty, but would that record prove misuse and abuse for purposes of forfeiture ? The Central Railroad Company have no right to commit nuisances in the streets, which they do frequently, perhaps daily. If a conductor were indicted and punished, or a verdict in damages recovered against the company, would the record prove misuse and abuse as grounds of forfeiture ? Not until all rules of reason and justice are forgotten, and why ?

Without other reasons this one would be sufficient, that the company had not been tried for a forfeiture; had not been called on to answer for misuse or abuse. Summon a jDarty and try him for one thing, and then punish him for another — was that ever heard of before ? And when he claims the right of the meanest felon, to be heard before he is condemned and executed, is he to be told that a record made up for another purpose established his guilt ? Such doctrines confound all my ideas of the course of justice. The law of the land is, that a cause of forfeiture cannot be taken advantage of or enforced against a corporation collaterally, or incidentally, or in any other mode than by a direct proceeding for that purpose against the corporation, so that it may have an opportunity to answer. Angel & Ames on Corporation, 664, and the cases cited in the note. But here is a corporation holding its existence -on the faith of a contract with Pennsylvania, condemned to capital punishment without arraignment, trial, or proof of guilt. We treat traitors and felons better than that.

I maintain that somewhere, and in some way, this corporation should have been permitted to answer to the charges of misuse and abuse — and that, not only for the sake of decency and justice, but also because they held the right by contract. When they staked their existence on a fact, and the State pledged her faith on the same fact, it must be inquired into, found, and fixed with full opportunity to controvert it, before that existence can be imperilled. The State has many organs, of whom the legislature is one, but she has no agent authorized to disregard or violate her plighted faith. It would be strange if the rule of good faith and the constitutional inhibition bound all the other organs of the State, and left the legislature free. It is not so. The State herself in her aggregate capacity is bound — “ no State shall pass a law impairing the obligation of contracts” — and of course all her agents are bound.

When I concede that the legislature might have inquired into the facts of misuse and abuse, I -do not mean to recommend legislative investigations as the best mode of establishing facts. They are not worthy of as much confidence as the verdict of a jury under the direction of a court of law, but still, where they are entrusted to a competent committee, and conducted in the forms of legal proceedings by examination of witnesses in the presence of the accused party, and with the right fully secured to him of cross-examining, and being heard by counsel, they are not unfit to be the basis of legislation. In cases of contested membership, and-of impeachment, the legislature are made, by the constitution, triers of fact, and in practice they become such in many other cases. When a charter therefore expressly reserves to this department the right of resumption on a condition of fact, they may try and find the fact — or send it to a court and jury to be found — but. to say that they can resume without that fact found, is to contradict the Constitution, and to say they may violate the contract with impunity.

3. A third ground of dissent is this ; if the mistakes or misdeeds of this corporation did indeed amount to cause of forfeiture, the State waived it, and then it was as if it had never existed.

The principle of the common law is not controverted, that if an estate be held of another on a condition to be performed by the grantee, the grantor may enter for condition broken, but if he accept compensation, and particularly if he compel performance of the condition, his right to enter and forfeit the estate is gone, because, in the language of Lord Coke, he affirmeth the estate and zoaiveth the condition, 2 Coke, Litt. 83. And that this principle is applicable to a Commonwealth in respect to corporate grants, is abundantly shown by the authorities. Said Chief Justice Parsons, in 5 Mass. 232, the Commonwealth may waive any breaches of any condition express or implied on which the corporation was created; and the same thing was said or assumed by this court in 16 S. & R. 145; 1 Penna. R. 426; 7 Barr, 34; 8 H. 417. It is on this ground that we do not allow a private citizen to sue out a quo warranto to.forfeit charters — the Commonwealth may have waived the breach, and therefore she only shall sue.

The State, then, may waive a cause of forfeiture, and the matters alleged in the plaintiff’s bill persuade me that she intended a waiver in this instance. If not, why was the Act of 14th April, 1852, passed, recognizing the continued existence of the company and regulating it ? And why was injunction in a court of equity sued out to compel strict performance of duties, instead of a quo warranto in a court of law to resume the franchise ? The State is an intelligent body, capable of choice; and when a deliberate election of one remedy instead of another has been made, we must make the rational and necessary presumptions. It seems to me she meant chastisement and not destruction, and if she did, then all prior causes of forfeiture were gone. The State is bound by the same rules of honesty and morality as her citizens; and if one of them having compelled a refractory tenant to perform his covenants, could not enter and dispossess him after he had done so, neither can the State.

But it is said this is common law, which the legislature is competent to repeal. Whilst the general power of altering the common law is fully conceded, I deny that the legislature can alter it after it has entered into a contract of the State. The contract set up here involved these common law principles, which are nothing else than the principles of common honesty, and the constitutional provisions which give inviolability to contracts, were also part of this particular contract. The State bound herself by this contract not to use her power of repeal, except for misuse or abuse. If misuse or abuse ever existed, it was waived and forgiven. When the repealing law was passed, therefore, the State had not the power of repeal; it was restrained, held in check, and held hard by her contract. The error of the majority is, that they begin by conceding the contract, and then reason as if there was no contract in the case but only laws. If there is any truth in logic, such reasoning is outside of the premises.

Another position founded, it seems to me, in the petitio principii, is this : every act of assembly is presumed to be constitutional till the contrary is proved. The constitutionality of the Act of 1855, depends on the existence of a certain fact. That, therefore, must be presumed, and then it is concluded, that he who would prove the act unconstitutional must disprove the fact. In other words, an act, confessedly impairing the obligation of a contract, is to be presumed constitutional until a negative is proved.

Now to this, I reply, that the constitutionality of the act being the very point for demonstration, it is not to be assumed. Primarily, I agree, one department of the government will, from courtesy, presume the action of every other department to be within its proper sphere; but when it is shown that a particular act of the legislature on its face transcends the constitutional limits, no presumptions are to be set up in favor of such an act, and against him whose contract is impaired. On the contrary, the presumption which arises on such an act, is against its constitutionality, and if facts exist to justify it, they must be proved by him who pleads the act. It is admitted on all hands, that the Act of 1842 was a contract, and that the Act of 1855 impaired it. At this point, then, I insist the necessary presumption is that the Act of 1855 is unconstitutional. But, says the defendant, the legislature reserved the right to impair it, on the happening of a certain event. Granted, say the plaintiffs, but that event has not happened, and if you allege that it has, you must prove it. No, says the defendant, without either alleging or proving it, it must be presumed to have happened, because the law must be presumed constitutional, and nothing can rebut this presumption but your proving that it has not happened.

On this method any legislation that is imaginable might be sustained, and it would follow that, notwithstanding our written constitutions, full of checks on legislative power, we have got a parliament so omnipotent that they may dispense with trial by jury, and make and unmake facts as well as laws at their pleasure. Attainders for treason, and confiscation of estates, might thus become fashionable Pennsylvania legislation.

I cannot yield my understanding to such reasoning or conclusions. I read in the books that the law leans against forfeitures, that the party claiming a forfeiture or penalty is bound to make out his case precisely, and that if it involves a negative he must prove it; 2 G-allison’s It. 498 — that a law, confessedly impairing the obligation of a contract, must have a clear warrant in the contract itself — that a sovereign State, when it condescends to contract with a citizen, is bound to the same measure of fidelity which binds him, and that the obligation is all the more sacred because no legal remedy is afforded for its breach, and on such principles I conclude that a forfeiture waived cannot be reclaimed, and that a contract not violated cannot be repealed.

The preamble also recites, that it had been “judicially determined” that the road was not completed in ten years. Many of the observations made on the other point are applicable to this. Without intending the least disrespect to the legislature of 1855, it must be said, that here again they misconceived the recited record. It did not establish that fact within the meaning and for the purposes of the 10th Section of the incorporating law. That section provided that the charter should be null, not that'it should be resumed, “if the company do not' complete the work so as to bring it into use within ten years,” and the bill for the injunction charged, that it was not so completed; but it did not ask that the charter should be declared null on this account, and it was not so decreed — nor was the fact ascertained, that the “work” was not completed so as to ube brought into use.” What the fair import of these words was, and whether they had not been complied with far enough to save the charter, were not subjects of investigation or decision in that record, and therefore it is inaccurately cited in the preamble. Had the legislature referred themselves to the bill -which was the foundation of that record, they would have seen, that after charging a variety of matters, the failure to complete among the rest, the Commonwealth complained, that “all of which doings, actings, and pretences of said Erie and North East Railroad Company, are contrary to equity and good conscience,” and concluded by praying that they be enjoined from using and occupying certain public roads and streets. And so. was the decree. It compelled the company to do equity, but it did not declare .their .charter null, any more than it declared it forfeited for misuse or abuse. It was no less a mistake, therefore, for the legislature to surmise this a defunct corporation, than it was to consider it convicted of a capital offence.

And before it can be treated as a defunct corporation, it must be shown, upon an inquiry into that fact, that it did not build as required by the 10th section. "When the Commonwealth undertakes to show that, she will be met by this same record to which the legislature appeals, and that will prove that she sued the company as a live corporation after the ten years had expired, and compelled them to put their road in the right place.

There is no ground in this part of the preamble for such an enactment as followed it.

Enough has been said to. indicate my deeply-seated conviction, that the Act of 1855, as impairing the obligation of a contract, is in conflict with the 10th section of the 1st article of the Constitution of the United States, and the 17th section of the 9th article of the Constitution of Pennsylvania.

I am obliged to say, further, that I consider this Act of Assembly in direct conflict with that clause of the 10th section of the 9th article of the Constitution of Pennsylvania, which is in these words : “JSTor shall any man’s property he talcen and applied to public use without the consent of his-representatives, and without just compensation being made.”

The stockholders of the Erie and North East Railroad Company are men within this clause — the franchise they hold, (-which is the right to maintain and enjoy their railroad,) and the interest they have in the ground occupied by it, and in the material substances of - which it is composed, are property: and that it is to be taken and applied to public use under the Act of 1855, is proved by the 2d section, which authorizes the governor to appoint a suitable person to take charge and custody of the road, “until the same shall be further disposed of according to law;” and by the declaration óf the defendant, that he will, as the appointee of the, governor, take possession of the road, unless restrained by the injunction of this court. If it be assumed that the law was passed with the consent of the representatives of these men, the only remaining question is, does it provide a “just compensation?” There is not a word or syllable in the act looking to compensation. The 5th section authorizes the governor to restore it to the company on certain conditions to be performed by them, which, instead of being compensation, are burthens laid upon the company as the price or consideration of a renewed existence. How then can I,' who am sworn to support the Constitution, support a law which is in such direct and palpable conflict with it ? The Constitution says, that property shall not be taken without compensation — this law says it shall.

Let us examine the argument set up in favor of the law on this point.

Again the resort is to the repealing clause, and that is made to bear the burthen of this palpable infraction of the Constitution. Does it say that the franchise maybe resumed without compensation ? Not a word of it. Does the Constitution say that property shall not be taken for public use, except in the instance of a corporation, with a clause of,resumption in its charter? Nota word of it. And yet judicial construction can so bend both the law and the Constitution, as to make them meet.

That the State, in virtue of her eminent domain, can take all kinds of property when public exigencies require it, is a doctrine I hold most distinctly. Every man holds everything which can be included in that most comprehensive word, “property,”by no higher tenure than the will of the sovereign; but “just compensation” is the correlative duty of the sovereign. A franchise, like any other hereditament, incorporeal or corporeal, may be taken on this single condition, but nothing that is property can be taken in violation of it. Whether a mere franchise, where nothing has been done or invested on the faith of it, is property within the meaning of the Constitution, is a question which, need not now be considered, for it is not presented in the case that is before us.- This is the case of a private corporation, with large investments actually made. Here the franchise, or the “ rights and privileges,” in legislative language, have been accepted, —property, real and personal, accumulated on the faith of them, • — a railroad built in a most important line of trade and travel, and furnished with all appliances for the accommodation of the public, and a distinction can no longer be made between the franchise and the material, and tangible property with which it is identified. The legislature attempted no distinction, for in resuming the franchise, they provided also for taking the visible property, and I agree that they were so indissolubly united, that to take one was to take both.

' But to take both, without a word or thought of compensation, was justified by nothing that is set down in the contract, and was forbidden by as plain words in the Constitution as the English language could place there.

Upon the dissolution of a corporation bj judicial sentence, its real estate reverts to the grantors or their heirs, and its personal property goes to the State, as the successor to this prerogative of the crown, but no such incidents attend a legislative forfeiture. That must be, in all its parts, according to the contract which gives the legislature the power, and when the contract does not stipulate that property held on the faith of it may be taken without compensation, it cannot be so taken if the Constitution means what it says. If, therefore, there had been no waiver in this instance, and if the legislature had established misuse and abuse, and, in virtue of the reserved power, had resumed the rights and privileges granted, they were bound to provide a just compensation for the property taken. Confiscation of that was not in the contract, and, therefore, not within the legislative power.

Hitherto, property, in all its forms, has been regarded as one of the “ general, great, and essential principles of liberty” in Pennsylvania. When the government has required more of the citizen than his share of general burthens imposed through the taxing power, he has been compensated for what has been taken. And looking to the immense investments already made on the faith of our constitutional guaranties, and yet to be made before the high destinies of the State are fully reached, it is obvious that our settled policy is not more agreeable to our fundamental law than it is to the honor and interests of the State. This act of assembly is a wide departure from our established policy and practice — evidently passed in ignorance or forgetfulness of the salutary injunction of Chancellor Kent, that “theselegislativereservations of a right of repeal ought to be under the guidance of extreme moderation and discretion.” 2 Com. 307. The best wish that such an act is capable of exciting is, that as it has no precedent, it may never itself become one.

There is an observation in the printed argument of the counsel for the plaintiffs, which, on reflection, has made a sensible impression on my mind. It is, that the Act of 1855 is not a bona fide exercise of the reserved right of repeal. If this be a fair comment, it answers the whole argument in support of the law, for that rests on the reservation and nothing else. Taking the ten sections of the repealing law together, there is ground to doubt whether the legislature did not use this reservation as the means of forcing new and onerous burthens upon the company — whether they did not mean, that, instead of dying and being buried, it should survive and perform the arduous and expensive work of building a road to the harbor, and of changing their gauge throughout.

I do not intend to discuss this view of the act, but allude to it for the purpose of saying, that it would be, if so understood, no less a violation of the contract than in the other views that have been presented.

I am now done with this Act of Assembly. Contemplated in any light in which I have been able to view it, it seems to me an unconstitutional enactment. It places Pennsylvania in the perilous position of a sovereign punishing for unascertained offences — reclaiming forfeitures once released for a consideration — and taking from the citizen his'property, without compensation or trial.

It only remains for me to condense my thoughts into two propositions.

1. The act is unconstitutional, because it impairs the obligation of a contract, and is warranted by nothing contained in the contract.

2.. Because it takes private property for public use, without just compensation.

On these grounds I would award the injunction.  