Erie & North-East Railroad Company v. Casey

• Decision Date: 01 January 1856
• Citation: 26 Pa. 287
• Parties: Erie & North-East Railroad versus Casey.
• Court: Pennsylvania Supreme Court

Page 287

26 Pa. 287

Erie & North-East RailroadversusCasey.

Supreme Court of Pennsylvania.

THIS was a bill in equity filed in the Eastern District of the Supreme Court by the Erie and North-East Railroad Company, upon which the complainants moved for a special injunction.The bill set forth the act of incorporation dated the 12th day of April, 1842.And that on the 9th of August, 1849, they commenced the construction of their railroad; and at that time the borough of Erie was comprised between the streets now known as Parade, Chestnut, and Twelfth streets, and the harbour.That on the 15th April, 1851, the city of Erie was incorporated with extended limits.On the 1st of January, 1852, the company had completed their road from Sassafras street in the city of Erie to the east boundary line of the township of North East, being the New York state line.It was further averred that the use of the streets and the location of the road had been approved by the councils and city authorities of Erie; and that no controversy existed in reference to the location of the road or the use of the streets until after the passage of the Act of 11th April, 1853, which authorized a change of gauge in the railroads of the Commonwealth, — in pursuance of which the complainants changed the gauge of their road, and that thereupon the corporate authorities of the city of Erie revoked the license to the said company to use and occupy the streets, &c., of the said city.That the railroad has been continued in public use, from the 8th day of January, 1852, to the time of filing the bill, for the transportation of passengers and freight.That on the 14th of April, 1852, an Act of Assembly, changing the right and the manner of voting in said company was passed, by which the continued corporate existence of the complainants was recognised.

COPYRIGHT MATERIAL OMITTED

Thompson and Casey, for the motion.

Meredith and Stanton, contrà.

The opinion of the court was delivered by LEWIS, C. J.

On the 19th of this month a bill was filed in the Eastern District, praying for an injunction to restrain the defendant from taking possession of the Erie and North-East Railroad, in pursuance of the Act of the 6th of October last.A rule was granted calling on him to show cause why a special injunction should not issue, returnable before the court at Philadelphia, on the first Monday in January next.At the same time, it was ordered by Mr. Justice WOODWARD, then at his chambers in the Eastern District, "that an admonitory order issue (to the defendant directed)commanding him to suspend all action under the Act of 6th October, 1855,""until the hearing and decision of the rule."The present motion is to dissolve the order last mentioned.As the injunction operates on the person of Mr. Casey and not on the railroad, the subpœna might have been served upon him in any district where he was to be found; and as he"accepted service," it must be intended that the service was legal.The judge, at his chambers, had therefore authority to make any proper order preparatory to the hearing of the cause on its merits.An "admonitory order," in the proper sense of the term, is such an order as he had authority to grant.But an injunction, whether preliminary, temporary, or special, cannot be granted without security, "to be approved of by the court or judge, conditioned to indemnify the other party for all damages that may be sustained by reason of such injunction."This is a positive provision of the Act of 6th May, 1844, which the courts have no right to disobey.Its terms are general, and they include injunctions of every description, except those granted on the final hearing of the cause.

Injunctions are frequently in the form of a writ, but these forms are not adapted to every case, and therefore the prohibition in numerous instances assumes the shape of an order, in the nature of an injunction.As the courts treat the disobedience of all orders as a contempt, and enforce the performance of them by imprisonment, the distinction between a writ of injunction and an order in the nature of one, is disregarded in practice.Both are known by the name of injunctions: Eden on Injunctions 337-8.If the order be issued in mandatory language, it is substantially an injunction.If in terms of advice or caution, it is what has become known as an "admonitory order."Where there is no statute requiring security before injunctions are granted, the chancellor may use language so imperative as to amount to an injunction without transcending his power.To call such an order an "admonitory order" would be a misnomer; although a harmless one.But under the Act of 1844the case is very different.We must be careful to distinguish one from the other.To issue an order which is to have the effect of an injunction, without demanding the security required by the statute, would be an unjustifiable evasion of the law.

It is plain that the judge did not intend to grant an injunction.It is designated as an "admonitory order," and was intended for nothing more.But the counsel in preparing the draft inadvertently introduced a word which might be understood as giving it a character more effective.In practice it is the business of the party in whose favour a decree is made to prepare a draft of it and submit it to the opposite party, and then to the judge.(Rule 79.)It is usually approved of, if not excepted to.As both parties were present when the draft was signed by the judge, and as no exception was taken to the form of it, his signature was almost a matter of course.But it is liable, in its present form, to misconstruction, and must therefore be amended.

Let the order granted by Judge WOODWARD be amended so as merely to caution the defendant against taking any action under the Act of 6th October, 1855, mentioned in the bill of complaint, until the decision be made on the rule to show cause why a special injunction should not issue in this case.

Let a similar amendment be made in the case of the Cleaveland, Painesville and Ashtabula Railroad Companyv.Joseph Casey.

On the 9th January, 1856, the rule for a special injunction was heard on the bill, and special affidavits and exhibits before the court in banc, at the city of Philadelphia.

St. G. T. Campbell and Meredith(with whom were Stanton and Hurst), for complainants.—The seizure of the complainants' road under the Act of Assembly of the 6th October, 1855, is resisted —

First.Because the road is now used under the decree and the protection of this court.At the time of the passage of this actthe case of the Commonwealth against this company was still pending.A writ of assistance has been granted to preserve their property, and, it is submitted, there is no warrant for legislative interference with these judicial proceedings, to seize upon and confiscate that which is in the hands of the court in due legal administration.

Second.Does the omission to complete the road to the borough of Erie within ten years work a forfeiture?On this point the facts are familiar to the court.To justify a decree of forfeiture, even in a proceeding appropriate to that end, it must be shown that there was a wilful abuse, something more than accidental negligence, excess of power, or a mistake in the mode of exercising it, or a want of substantial compliance with the charter.It must arise from wilful abuse or improper neglect:People v. Turnpike Co., 23 Wend. 223.

Corporations are political trustees.Have they fulfilled the purposes of their trust: 6 Cow. 215;6 PaigeCh. R. 497.That an honest mistake will not work a forfeiture: 22 L. &E. R. 338;11 Ala. R. 472; 8 Humph.235.

The Supreme Court of the United States, in defining cause of forfeiture, enumerates wilful misuser and nonuser: Mumma v. The Potomac Co., 8 Peters 287.Slight deviations from a charter are neither misuse nor abuse of it: 22 Eng. L. & E. R. 338;21 Wend. 235;23 Id. 537;12 Eng. L. & E. Rep. 429.

There is nothing shown against the complainants that would justify an allegation of wilful misuse or abuse, either as it regards time or location.

Third.Even if there be cause of forfeiture, can it be done by an act of legislature, under the reservation in this charter, without judicial proceedings?From the great interests involved, this becomes a question of the first magnitude.It embraces the determination of how far, upon an allegation of forfeiture, the legislature can determine the fact, impose the penalty, and take the property, without resort to the judicial tribunals.The right to resume in this case depends upon the existence of a fact — misuse or abuse; and it is insisted this fact must be judicially found."It is against the principles of liberty and common right to deprive a man of his property or franchise while he is within the pale of the constitution, with his hand on the altar, without hearing and trial by due course of law:" Brown v. Hummel, 6 Barr 86.

Such has been the doctrine in Pennsylvania from the earliest periods, whenever the legislature has attempted to determine the rights of property without the intervention of the judiciary: 1 Yeates 260.

Nor can the fact that the legislature reserves the power to resume the franchises affect the right of the party to have the question of fact tried according to the law of the land.There has been no trial or hearing.The law of the land, in its legal and constitutional sense, does not mean an Act of Assembly, but the law of the case as established in a fair open trial: 6 Barr 86;1 Bl. Com. 44; De Chastellux v. Fairchild, 3 Harris 18; Irving's Appeal, 4 Id. 265.

Corporate franchises can only be forfeited for abuse by trial and judgment, for they ought not to be condemned unheard: King v. Passmore, 3 T. R. 144.Even the crown in England cannot take away the chartered rights of lay corporations — such as universities, &c.: 3 Burr. 1656.

But if the legislature may, under the reservation, resume...