author: Mr. Justice Sterrett

text:
    Foreman versus Hosler et al.
    1. A married woman who was deserted by her husband was declared a feme sole trader under the Act of May 4th 1855. Subsequently, she executed a mortgage, not in her own name, nor as a feme sole trader, but as the wife of a man with whom she was living, but to whom she was not married, and who joined with her in the mortgage. Held, that as she had the power to execute the mortgage, as a feme sole, it bound whatever title she had in the land.
    2. Per Sterrett, J. — When a married woman conveys under the authority given her by the Act of 1855, it would be well to recite the fact or facts which bring her within its provisions, and refer to the decree, if any has been obtained, but we cannot hold that a failure to do so vitiates the deed. While such recital of authority is entirely proper and desirable it is not essential. The act prescribes no particular form.
    3. Where a case is submitted to the court under the Act- of April 22d 1874, it is of the utmost importance that the requirements of the act should be strictly complied with. The facts found by the court should be separately and distinctly set forth with at least as much precision and particularity as are required in a special verdict, and then the conclusions of law as applicable to the facts should be clearly stated. Ellis v. Lane, 4 Norris 265, followed.
    May 13th 1880.
    Before Merctjr, Gordon, Paxson, Trunkey and Sterrett, JJ. Sharswood, C. J., and Green, J., absent.
    Error to the Court of Common Pleas of Cumberland county : Of May Term 1880, No. 89.
    Ejectment by James K. Boreman against Benjamin Hosier and others, for a tract of four acres of land in the borough of Carlisle.
    On October 25th 1870, Robert Given conveyed to Mary S. Sawtelle, wife of Nathaniel H. Sawtelle, a tract of land, embracing about five acres, within the borough of Carlisle. Mrs. Sawtelle continued seised of this tract until 4th June 1871, when she died intestate, her husband, and an only child, Eva Amelia, wife of James B. Richards, surviving her.
    On the 19th June 1871, Mrs. Eva Amelia Richards executed a power of attorney to her father, which, after reciting the late death of her mother, proceeds :
    “ I, the said Eva Amelia Richards, being of full age * * * do hereby constitute and appoint the said Nathaniel H. Sawtelle,' my father, my true and lawful attorney in fact for me, and in my name to collect all the assets of the estate of said decedent; to sell and convey any real or personal estate belonging thereto, and to receive, receipt for and release the purchase-money thereof, and to do any and every act which may be necessary, or which he, my said attorney in fact, may consider proper and prudent in order to dispose of said real estate. * * *
    ■ (Signed) Mrs. Eva A. Richards, [l. s.]”
    It was thus acknowledged:
    “Personally appeared before me, a justice of the peace in and for said county, the above-named Mrs. Eva A. Richards, who, being duly sworn, did acknowledge the foregoing power of attorney to be her act and deed, and desired the same to be recordéd as such.
    (Signed) David Smith, J. P. [seal.]”
    It did not appear, from anything in the power or in the certificate of acknowledgment, that Mrs. Richards was a feme covert.
    On the 27th of May 1872, Nathaniel H. Sawtelle executed a deed for the land which had belonged to his wife, Mary S. (with certain reservations unimportant in this controversy), to Eva A. Richards, his daughter. The parties are described in that deed as “ Nathaniel H. Sawtelle and Eva Amelia Richards, of the borough of Carlisle, Cumberland county, of the first part, and Eva Amelia Richards of the same place, party of the other part.”
    The indenture is made to witness that the said Nathaniel H. Sawtelle and Eva Amelia Richards, for and in consideration of the sum of $500, * * * hath bargained, granted, sold, released, * * * and by these presents do bargain, grant, * * * unto the said Eva Amelia Richards, her heirs and assigns, certain land.
    “ In witness whereof, the said parties to these presents have interchangeably set their hands and seals.
    (Signed) Nathaniel H. Sawtelle, [seal/
    Eva Amelia Richards. [seal/
    By her attorney in fact: Nathaniel H. Sawtelle.”
    This deed was acknowledged by Nathaniel H. Sawtelle alone, but “for himself and as attorney in fact for Eva Amelia Richards.’

      The plaintiffs contended at the trial, 1st. That this deed, executed by N. II. Sawtelle in a double capacity, for himself and as attorney in fact for Eva Amelia Richards, though it contains no other express reference to a power of attorney, must be taken as an execution of it.
    2d. That, in any event, it conveyed to Eva Amelia Richards the life estate which her father had, as tenant by the curtesy, an estate undetermined by his death.
    On the 19th March 1872, on the petition of Eva Amelia Richards, in which she alleged desertion by her husband, the Court óf Common Pleas of Cumberland county decreed that she should have the status of a feme sole trader, in so far as such status could be acquired under the Acts of 22d February 1718, and 4th May 1855 : (Purdon, Feme Sole Traders.)

    A ceremony of marriage was shortly thereafter undergone, by which Mrs. Richards supposed herself to become the wife of J. J. Cart, whose name she assumed, with whom she lived as wife, and as whose wife she became known in the community.
    On the 80th September 1874, this woman, then for a long time known as Mrs. Cart, executed a mortgage which purported to be “ between Jacob Cart and Eva Amelia Cart, his wife, of the borough of Carlisle, of the one part, and L. T. Greenfield, of the same place, of the other part,” and to be made to secure a bond of $416.58, conditioned for the payment of $208.29. This mortgage was signed thus:
    J. J. Cart, [l. s.]
    Eva Amelia Cart. [l. s.J
    The certificate of separate acknowledgment reads: “ The said Eva Amelia Cart, being of full age, and by me privately examined and apart from her said husband, declared that she did voluntarily seal and deliver the same without any coercion or compulsion of her said husband.”
    Having ascertained that no valid divorce from Mr. Richards had been obtained, Mrs. Richards petitioned for a divorce to the Court of Common Pleas of Cumberland county, and on the 22d April 1878, a decree divorcing her was made.
    A sci. fa. issued on the said mortgage to No. 185, August Term 1876, and judgment was recovered against the mortgagors, September 1st 1876, for $213.24. On an alias levari facias, the mortgaged property was sold to James K. Foreman, the present plaintiff, for $250.75.
    The defence ivas, as to all the defendants, that Foreman had failed to show a prima facie title, because the mortgage to Greenfield, under which he. claimed, was made by one styling herself Eva A. Cart, the wife of J. J. Cart, whereas she was in fact not lawfully married to him.

      John H. Boyd, and those claiming under him, defended for his part of the land in default, under a deed to him from N. H. Sawtelle, executed in his own name and in that of Eva A. Richards, as her attorney in fact, September 2d 1872. Plaintiff insisted that the deed of 27th May 1872, had executed and exhausted the power of attorney. He also insisted that the power of attorney embraced only the real estate which Mrs. Richards possessed at its execution, and that since this deed conveyed to her her father’s life-interest, he could not again convey it to John H. Boyd four months afterwards.
    Others defended under deeds executed by Sawtelle, for himself and as attorney in fact, after the deed from Sawtelle to Mrs. Richards. While others defended under parol contracts of sale made before the deed to Mrs. Richards.
    Benjamin Hosier, John Neff, II. G. Carr, defended under deeds executed by N. H. Sawtelle, for himself and as attorney in fact, after the deed from Sawtelle to Mrs. Richards.
    The case was submitted to the court, McClean, P. J. of the Forty-second judicial district, under the Act of April 22d 1874, who filed the following decision:
    “ The controversy in this case relates to the title to certain parts of a tract of land in the borough of Carlisle, which had been conveyed by Robert Given and wife, by deed dated 25th October 1870, to Mary S. Sawtelle, the wife of Nathaniel H. Sawtelle.
    “ This land was laid off in lots, and contracts for the sale of those claimed by John Neff, James Tait, two of the defendants, and also of George Lane and Emma Bridget, for which defence is now made in the name of Benjamin Hosier, were entered into before the 4th day of June 1871, at which date Mrs. Sawtelle died intestate. She left surviving her Nathaniel H. Sawtelle, her husband, and one child, Eva Amelia Richards, who was married to James B. Richards on the 27th day of November 1867.
    “ It is in evidence that Richards had deserted his wife before the death of Mrs. Sawtelle, and that consequently Mrs. Richards had all the rights and privileges secured to a feme sole trader under the Act of the 22d of February 1718, and her property, real and personal, acquired upon the death of her mother intestate, was subject to her free and absolute disposal without any liability to be interfered with or obtained by her husband. Thus, as if he were previously dead, Mrs. Richards, on the 19th day of June 1871, about a fortnight after the death of her mother, being of full age and under the circumstances sui jxiris, constituted and appointed in writing, under seal, her father, Nathaniel H. Sawtelle, her true and lawful attorney in fact, for her and in her, name to collect all the assets of the estate of her deceased mother, to sell and convey any real estate, &c., belonging thereto, and to receive, receipt for and release the purchase-money thereof, and to do any and every act which may be necessary or which her said attorney in fact may consider proper and prudent in order to dispose of said real estate, and to collect the proceeds of any sale made by him, and in general to do any act relating to the sale, disposal or improvement of said real estate of said decedent as she herself could do._ One of the objects of the power of attorney as expressed therein being to save the expense and delay of making the sale of the said real estate under proceedings in the Orphans’ Court, the said decedent having no debts, &c. This express, full and plain letter of attorney was acknowledged under oath, and on the day following recorded in the recorder’s office at Carlisle.
    “ On the 19th of March 1872, the Court of Common Pleas of this county finds the fact of desertion of Mrs. Richards by her husband, covering and relating back to the date of the letter of attorney nine months previously, and made a decree, and granted her a certificate under the Feme Sole Trader Act.
    “We have then next on the 27th day of May 1872, a conveyance, as given in evidence by the plaintiff, of the land described in the writ, with certain reservations by N. H. Sawtelle and Eva Amelia Richards, by her attorney in fact, N. H. Sawtelle, to Eva Amelia Richards:
    “ This was offered by the plaintiff for the purpose of showing a conveyance of the life estate of the grantor to the grantee, and also to show an intention on the part, of the grantor to convey the fee under the power of attorney and exhaust the power of attorney. This deed was recorded the same day. The plaintiff then next, in further claim of the passage of title,.gives in evidence a mortgage not in the name of Mrs. Richards, the feme sole trader, but by J. J. Cart and Eva Amelia Cart, his wife, to L. T, Greenfield, dated and recorded 30th September 1874, upon same property described in the Given deed, with certain exceptions; - and it is proven and admitted that this Eva Amelia Cart is identical in person with Eva Amelia Richards. Scire facias was issued upon this mortgage against J. J. Cart and Eva A. Cart, and judgment entered 1st September 1876 for $213.24. Levari facias was issued against same defendants to No. 2, November 7th 1876, and returned stayed by endorsement of plaintiff’s attorney November 28th 1876. A levari facias issued to No. 62, January 7th 1878, and sheriff returns 14th January 1878 premises sold 11th January 1878. Second described property (being the Given tract) sold to James K. Foreman for $250.75, which is followed by the sheriff’s deed of 21st January 1878 to the purchaser.
    “ Then we have it established that there is no presumption of the death of James B. Richards, and that on the 22d^of April 1878, and not until that day, Mrs. Eva A. Richards, not Cart, obtained from this court a decree of divorce from her husband, James B. Richards. Now how can it be seriously contended that the title of Mrs. Richards passed by and under the mortgage of 30th September 1874 of J. J. Cart and Eva Amelia Cart, his wife? The mortgage-creditor does not contract with the feme sole trader, Eva Amelia Richards, not with her as the deserted wife of Richards, but distinctly and expressly with her as the wife of J. J. Cart, who unites with her in the execution of he mortgage. It is lie estate of Mr. and Mrs. Cart, if any passed by the mortgage, which is levied on and sold to the plaintiff.
    “ How can he invoke the aid of the feme sole trader acts when their provisions were never exerted in the indenture of mortgage ? Can he pretend to elaim to have the estate of a married woman, whose husband was living, and who did not join with her in the mortgage ? He has not this woman’s title in either of these two ways, either as a feme sole trader or as a married woman uniting . with her husband in executing a valid mortgage on her separate property, for Cart was not her husband, but Richards was, even after the time of bringing this ejectment. The plaintiff has shown no title to the real estate of Eva Amelia Richards.
    “ The mortgage-creditor obtained a lien on such estate, and only on such estate as Mr. and Mrs. Cart, as such, could create. The court cannot add to or strengthen it, the subject of the mortgage. Me nihilo nihil fit. It is too weak to stand alone. The parties making defence prove that they held under N. H. Sawtelle and Eva A. Richards. They were all in possession at the time of the execution of the mortgage, 30th September 1874, and at the time of the issuing and service of the writ in December 1877, and at the time of the sheriff’s sale to the plaintiff on the 11th January 1878, except H. G. Carr, whose lot was unimproved and unoccupied, but whose deed was recorded 24th December 1872. He shows, however, a better title to it than does the plaintiff, the purchaser of the real estate in controversy, who has been substituted as the plaintiff on record under the Act of 26th April 1850.

      “ The purchaser prosecutes the action. His claim is distinctly rested upon the mortgage and the proceedings thereupon. He w.as substituted as plaintiff, Mrs. Eva A. Cart, by writing endorsed upon the motion, agreeing to the substitution. The plaintiff on the trial expressly objected to the admission of any evidence which might affect Mrs. Richards alone, such as the evidence in the proceedings resulting in the decree of Mrs. Richards as a feme sole trader (although offered by the plaintiff himself), and that might therefore prejudice the present plaintiff. It appeared upon the trial that the purchaser has found abundant fruits of the sale in portions of the Given tract which are not in dispute, which had not been contracted for under the power given by Mrs. Richards by her letter of attorney of June 19th 1871, with third parties, yet the purchaser continues to cry give! give! against poor people defending who have contracted and paid purchase-money and built themselves houses on this tract. The claim on his part is utterly destitute of actual or legal merit. It is not at all necessary to attack the judgment on the scire facias sur mortgage. That was against Mr. and Mrs. Cart alone. The parties defending in this suit had no notice of that proceeding, and they are not to be affected by it. Their titles are all prior in time to the mortgage, and none of the 'questions arising in this case were considered or adjudicated upon the scire facias.
    “ The defendants are not intruders or trespassers. They all hold deeds from and by N. H. Sawtelle for himself, and as attorney in fact for Mrs. Richards, except James Tait, who, however, is entitled to a deed, having contracted in Mrs. Sawtelle’s lifetime, and paid all the purchase-money to Sawtelle, w.ho was administrator of the estate of Mrs. Sawtelle as well as attorney in fact of Mrs. Richards, and who signed receipts for some of the Tait purchase-money sometimes as administrator, and once, at least, as agent.
    “ Let judgment be entered for the defendants agreeably to the provisions of sect. 2 of Act 22d of April 1874.”
    Foreman filed a number of exceptions, which the court overruled. He then took this writ, and alleged that the court erred, inter alia, as follows:
    1. In not “stating distinctly and separately the facts found and the conclusions of law.” 2. -In declaring the mortgage under which the plaintiff claims inadequate to convey -to him by purchase at sheriff’s sale upon a levari facias thereunder, all the right, title and interest of the person who styled herself therein Eva Amelia Cart.

      W. Triehett, J. W. Wetzel and F. F. Beltzhoover, for plaintiff in error.
    The decision of the court in this case intermingles the law with the facts and does not state them separately and distinctly as the Act of 1874 requires. Assuming a new name and executing an instrument in that name does not vitiate it when the identity of the person is undisputed. The use of a name in a deed is to identify the grantor and grantee.
    The identity of the maker of the Greenfield mortgage with the woman who had been the wife of Richards, but was emancipated from his control, is not only proven, but is conceded. The court also finds it to be a fact. The function of the name is fully discharged in this case therefore. The woman who had been decreed a feme sole trader, under the name of Eva Amelia Richards, is the woman who made the mortgage.
    Does a woman who has the power to mortgage her real estate lose that power, if, in the instrument, she adopts the surname of a man of whom she styles herself the wife, and whose name, as a party in the conveyance, she combines with her own ?

      May 31st 1880.
    Mrs. Richards pretended to Greenfield that she was the wife of Cart, and as such she adequately executed a mortgage. The plainest equity requires that whatever name or status she assumed, she shall be held at least as far as she could be, as if such name was in fact hers, or such status really existed.

      O. P. Pumrieh, W. J. Shearer and John Pays, for defendants in error.
    The Act of 1855, Purd. Dig. 1008, Pamph. L. 24-26, extending the provisions of the Act of 1718, 1 Sm. Laws 99, to wives deserted or neglected by their husbands, intended that the liabilities of the Act of 1718 should only extend to married women pursuing a business or trade. The trading here did not fall within the act: Jacobs v. Featherstone, 6 W. & S. 346. It is not a question of identity but one of power.
    Clearly Mrs. Richards was not a deserted wife engaged in some business for the support of herself and children. If she was not she had no power to execute the mortgage as a feme sole. The certificate of the court had become a nullity. She discovered it in her acts. She asserted she was a wife living with her husband, and as such gave this mortgage, and that she was not a feme sole trader. The mortgage therefore was without validity. All proceedings under it bear the same taint. Foreman therefore took no title under his purchase. The defendants were in possession when the mortgage was recorded, and whether their title be good or bad cannot be auestioneq in this case by this plaintiff.
   Mr. Justice Sterrett

delivered the opinion of the court,

This action was commenced by Mrs. Eva A. Richards, the only child and heir-at-law of Mrs. Mary S. Sawtellev who acquired title to the land in controversy in 1870, and died intestate June 4th 1871. In September 1874, Mrs. Richards, claiming to be the wife of J. J. Cart, united with him as such in executing the Greenfield mortgage, which embraced the same land. Judgment was subsequently obtained on the mortgage, and the land was sold and conveyed by the sheriff to James K. Foreman, the plaintiff in error, who, claiming the title of Mrs. Richards by purchase at sheriff’s sale, had himself substituted on the record as plaintiff, and thenceforth the suit was prosecuted by him in his own name.

The parties, by agreement, dispensed with trial by jury, and submitted the decision of the case to the learned judge of the Common Pleas, who found, inter alia, that Mrs.. Richards was deserted by her husband from the decease of her mother in 1871, until she was divorced by decree of court in 1878, and that she is the same person who, as the wife of J. J. Cart, united with him in executing the mortgage above mentioned. It was claimed by the plaintiff, that the interest of Mrs. Richards in the land was bound by the mortgage, and passed to him as purchaser at the sale under the levari facias, and hence he was entitled to recover. The mortgage was thus an essential link in the only chain of title under which he claimed; and if, as'was contended by the defendants, it was invalid or insufficient to pass title, he failed to make out even a prima facie case, and the defendants were entitled to judgment without proof of any title in themselves. Another ground of defence was, that the defendants were in possession under title derived from Mrs. Richards, or her mother, anterior to the date of the mortgage.

While it was conceded by the learned judge, that as a deserted wife in fact, and so-found by the decree of court in March 1872, Mrs. Richards was invested by the Act of May 4th 1855, with full power and authority to convey or encumber her real estate as a feme sole, he held that inasmuch as she had not undertaken to execute the. mortgage in that capacity, but as the wife of J. J. Cart, her interest in the land, whatever it might have been, was not bound by the mortgage, and the plaintiff acquired no title under the sheriff’s sale. The> other ground of defence, viz., possession under superior title was not fully considered, nor were all the facts necessary to a just determination thereof found by the court. The judgment was based solely on the insufficiency of the mortgage. In this we think there was error. It is conceded that at the date of the mortgage, and for a long time before Mrs. Richards was deserted by her husband, and was not divorced from him until 1878. While she assumed to be the wife of Cart, and in that name united with him in executing the mortgage, she was in reality the deserted wife of Richards. This fact was found by the court, and was also conclusively established by the decree made in 1872. Her status being thus fixed, she had full power and authority under the Act of 1855 to sell or mortgage her separate real estate: Wilson et al. v. Coursin, 22 P. F. Smith 306. In that case it was held that a married woman who had been decreed a feme sole trader under the act, had power during the lifetime of her husband to convey her separate real estate by deed in which he did not join. In several of its features the act has received judicial construction which is not in conflict with the doctrine of that case. It was ruled in Black et al. v. Tricker, 9 P. F. Smith 13, that the act was designed to suspend the mai-ital rights of the husband in consequence of desertion and other acts enumerated, and to relieve the wife of some of her marital obligations; that a decree was not necessary to enable her to acquire and hold property, and that when acquired by her own-industry and exertions under the circumstances specified in the act, it could not be taken from her by her husband’s creditors. In Cleaver v. Scheetz, 20 P. F. Smith 496, and Winternitz v. Porter, 5 Norris 35, the question of a deserted wife’s liability for debts was discussed. As is said in the former of these cases, her rights and privileges under the act are not correlative to her liabilities; the former are more extensive than the latter. The first branch of the second section of the act declares that she shall have all the rights and privileges' secured to a feme sole trader by the act of 1718, and be subject as therein provided. The second branch declares that her property, real and personal, however acquired, shall be subject to her own absolute disposal during life, or by will, and in case of intestacy shall go to her next of kin as though her husband were previously dead. The language of the act is such as to leave no doubt as to the power of a deserted wife to sell or encumber her real estate without her husband being a party to the deed or mortgage. Indeed it was not questioned by the learned judge that if Mrs. Richards, as a deserted wife and feme sole trader, had executed the mortgage it would have bound any interest she then had in the land; but, he based his conclusion on the fact that the mortgagee did not contract with her either as a feme sole trader or as the deserted wife of Richards. On the contrary, he dealt with her expressly as the wife iff J. J. Cart, who united with her in executing the mortgage, and consequently the lien he acquired was “ on such estate, and only such estate as Mr. and Mrs. Cart, as such, could create.”

It is not pretended that Cart had any interest in the land. If either of the mortgagors had any title it was in Mrs. Richards, and it cannot for a moment be doubted that it was her title the mortgage was intended to convey. If she, being a deserted wife, had power to convey, her deed could not be nullified by the fact that she called herself Mrs. Cart, or the wife of J. J. Cart, when it is conceded she was not. Styling herself in that way could not destroy her identity nor divest her of any power or authority she had over her separate estate as the deserted wife of Richards. By whatever name she chose to call herself, she was still the same Mrs. Richards ; nor could the fact that Cart, as her pretended husband, was a party to the mortgage affect its validity. When a married woman conveys under the authority given her by the act, it would be well' to recite the fact or facts which bring her within its provisions, and refer to the decree, if any has been obtained, but we cannot hold that the failure to do so vitiates the deed. While such recital of authority is entirely proper and desirable, it is not essential. The act prescribes no particular form.

We are of opinion that the mortgage executed by Mrs. Richards, in the name of Cart, &e., bound whatever title she had in the land at that time, .and that the same passed to the purchaser at sheriff’s sale under the mortgage. The judgment was therefore based on an erroneous conclusion.

The second ground of defence, as already stated, was possession under superior title derived from Mrs. Richards or her mother. The questions involved in this were not fully considered, nor were all the facts necessary to a proper determination of them found by the court, and hence the case must be remanded for re-trial. Some of the defendants claim that before and at the time the mortgage was given they were in possession under conveyances duly executed by N. H. Sawtelle as attorney in fact for his daughter, Mrs. Richards; others claim under equitable titles, of which it is alleged the mortgagee had actual or constructive notice. In June 1871 the power of attorney referred to was executed by Mrs. Richards, giving her father full power -and authority to soil and convey her real and personal estate, to receive, receipt for and release the purchase-money thereof, and to do any act that might be necessary or that he might consider proper in order to dispose of the real estate, &c. This power of attorney was not revoked by the deed of May 1872. The effect of that deed was to pass his title as tenant by the courtesy, and unite his life estate with her estate in remainder. It appears her father subsequently acted under the power of attorney, and it is claimed that she not only recognised some of his acts, but compelled him to account for purchase-money which he collected. These and other matters pertaining to the defence will claim the consideration of the court, and so far as they tend to sustain the titles set up by the respective defendants, due weight should be given to them.

As is said in Ellis v. Lane, 4 Norris 265, it is of the utmost importance that the plain and explicit requirements of the Act of April 22d 1874 should be strictly complied with. The facts found by the court, so far as they are relevant or material to a just decision of the cause, should be separately and distinctly stated, with at least as much precision and particularity as are required in a special verdict; and then, after answering the points, if any are submitted, the conclusions of law applicable to the facts should be clearly stated. When, as in this case to some extent, the facts are blended with the conclusions of law, neither the letter nor the spirit of the act is complied with; and sometimes great trouble is experienced in gleaning the facts upon which the judgment is based.

Judgment reversed and record remitted for re-trial.


source: Caselaw Access Project

author: Mr. Justice Mercur

license: Public Domain

text:
    Spahr versus Farmers’ Bank, Carlisle.
    1. Where a charter has been granted to certain parties to act as a corporation, and they are actually in the possession and enjoyment of the corporate rights granted, such possession and enjoyment are valid against any one who deals with them in their corporate character, and he cannot be permitted, in a collateral proceeding, to prove that a condition precedent to its full corporate existence has not been complied with.
    2. The Farmers’ Bank was chartered in 1868, and did business under the provisions of the Free Banking Act of 1861. In 1871 its officers obtained a new charter by a special act of the legislature which conferred other corporate powers. When the act was passed, the bank ceased to do business under the old charter, and began to act under the new charter in the name of the “ Farmers’ Bank, Carlisle.” The stock and assets of the old bank were treated as belonging to the new, and the business continued, with the old officers, without interruption. Renewal notes were taken for portions of notes which were unpaid during the existence of the old bank, and which had been discounted by the old bank at usurious rates, and new notes and renewals were also made by the new bank at usurious rates. In a suit by the new bank against-the endorser of the series of notes and renewals, Held, that the defendant in said suit could not set up the validity of the change made by the corporation, or question its powers in this transaction. •
    May 13th 1880.
    Before Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Sharswood, C. J., and Green, J., absent.
    Error to the Court of Common Pleas of Cumberland county: Of May Term 1880, No. 71.
    Assumpsit by the Farmers’ Bank, Carlisle, against Peter Spahr, on certain promissory notes endorsed by defendant.
    The case, by an agreement filed, was submitted to the court, Herman, P. J., for trial without a jury. The court found the facts substantially as follows :—
    The plaintiff is a corporation, and was originally the “ Farmers’ Bank,” which was organized and incorporated by letters patent issued by the governor under date of 28th October 1868, as a bank of discount, deposit and circulation, under the provisions of the Free Banking Act of 1st May 1861. Under its charter thus granted, it immediately went into operation in the borough of Car-lisle, as a bank of discount and deposit, with a paid up capital stock of $50,000, divided into one thousand shares of the par value of $50 each, and continued to do business as such until 1st May 1871. On the 15th of March 1871, the persons who were then the directors, president and cashier of the “Farmers’ Bank,” obtained from the legislature the passage of a special act (Pamph. L. 366) by which they were created a corporation by the name of the “Farmers’ Bank, Carlisle,” with certain powers and restrictions which differed materially from those contained in the original charter.
    At a meeting of the board of directors, a resolution was passed whereby the bank, on May 1st 1871, was to cease to act under the charter of 1868, and thenceforth act under the charter of March 15th 1871. This change was assented to by the stockholders by an agreement in writing. After the 1st of May 1871, the bank, therefore, conducted its business under the provisions of the new charter and in the name of the “Farmers’ Bank, Carlisle.” A notice of this change was sent by the cashier to the auditor-general of the state.
    No change of books was made, and the business was carried along without any interruption and in the same manner as before, except in the discounting of paper. Prior to the 1st May 1871, notes, on which a greater rate than six per cent, was taken, were made payable at some place other than the bank, and the excess was entered in the books as exchange and taken as such, but after-wards all notes were made payable at the bank, whether a greater than the legal rate was taken or not, and when a greater rate was received, it was taken and entered in the books as discount. The same dividend book continued to be used, the printed heading over each page of this book styled the bank as the “ Farmers’ Bank, of Carlisle,” but' after 1st May 1871, when the dividends were entered in it, the word “ of” was stricken out, leaving the name stand as the “Farmers’ Bank, Carlisle.” The capital stock, as it existed under the old charter, was carried along as the stock of the bank under the new charter, and dividends' were continuously and regularly declared and paid by the bank, and received by the stockholders. At the time of the acceptance of and change to the new charter, no new officers were elected. The same officers continued to servé under the new charter. The old directors continued to serve until the second Monday of November following, on which day an election for directors was held, and directors elected, directors were regularly elected on the second Monday of November of every succeeding year, according to the provisions of the charter of 1871. The old cashier continued to serve as such under the new charter without any new election.
    All the property and assets of the bank at the time of the change became and continued to be the property and assets of the bank under the new charter. Prior to the organization under the new charter,'the bank had discounted certain notes and renewals at the rate of eight per cent., on which Spahr was accommodation endorser. After the reorganization, a portion of these notes were renewed at the same rate, and new notes and renewals were discounted at a like rate, the notes in suit being the last renewals in these various series. On all the bank charged and took a discount of eight per cent.
    The defendant pleaded specially that there was no such corporation as the “Farmers’ Bank, Carlisle;” that it never completed its organization, and was Incapable of doing business as a corporation under the Act of March 15th 1871, inasmuch as it had failed to comply with the terms of the act; that the Farmers’ Bank was still in existence and subject to the provisions of the Act of 1861, and that it therefore had no right to discount said notes at a higher rate than six per cent, without incurring the forfeiture of the whole debt.
    The plaintiff submitted a number of points, in substance as follows: That all the facts show an intent to abandon the old charter and act under the new, and that all acts done subsequent to the grant of the new charter are to be presumed to have been done in the exercise of the rights conferred thereby, that the change as effected, -was practically and legally a determination of the first charter so far as the subsequent acts of the corporation were concerned under the new charter; that discounting notes was one of the rights secured to the plaintiff by the Act of 1871, agd if usury was received the excess only could be set off; that the defendant being a debtor to the bank, cannot deny its legal existence and defend against the notes by any alleged irregularities or omissions in its organization ; that the discount of the notes by plaintiff which originated in the Farmers’ Bank was a novation founded on a sufficient consideration., and the plaintiff took them free from any taint of usury ; that the acceptance and use of the new charter made it valid and binding on all parties dealing with the bank and unimpeachable, except, perhaps, by the Commonwealth or a corporator. All of these points the court affirmed.
    The points of the defendant which the court refused were, in substance, as follows: That the Act of 1871 did not transform the Farmers’ Bank into a new corporation; that there is no power conferred by said act to adopt the organization, stock and liabilities of an existing corporation; that there was not a bona fide organization by subscription to stock, payment of money therefor, payment of state tax, election of officers, &e ; that there -was no actual surrender of the old charter according 'to law; that the payment of $50,000 in money as capital was a condition precedent to doing business under the charter of 1871; that the corporation called the Farmers’ Bank, Carlisle, has never had any legal existence; that the illegal interest having been taken on all the debts on which this suit is based, the plaintiff cannot recover anything in this action.
    In an opinion filed, the court, inter alia, said: “These being' the facts of the case, I am of the opinion that the ‘ Farmers’ Bank, Carlisle,’ is a corporation duly organized,' doing business and having its legal existence under and by virtue of the charter of 15th March 1871, and that it is entitled to recover from Peter Spahr, the defendant, the amount of the notes in suit, after deducting the sum of $384.35, being the excess over the legal rate of interest taken and received by the bank, on all the different series of notes represented by the notes in suit, and also allowing a credit of $1000, paid on account of these notes by him on 17th January 1876. * * * I think it cannot be seriously doubted, that the charter of 1871 was granted by the legislature, with the intention that it should be accepted and used by the ‘ Farmers’ Bank,’ in lieu of the old charter of 1868, and that the bank has practically done precisely what it was thus intended it should do. The corporators named in the charter of 1871, cannot complain of what was done, for they recommended it, neither can the stockholders complain for they assented to it. There are no creditors to complain, for all the liabilities of the bank incurred under the old charter have been fully discharged and paid. No person has been hurt or prejudiced by the change, certainly, not this defendant, for the bank’s money was procured on the faith of his endorsements, and full value given therefor, excepting only in the taking and reserving the excess over the legal rate of interest, and for this he can and will now be fully compensated by deducting it from the amount of the notes in suit. And if the bank owes any duty to the state which it has failed to perform, this defendant cannot take any advantage of that, it will not relieve him of his duty to pay his debt to the bank.
    “ The bank having, since 1st May 1871, been a corporation existing and operating under the charter of 1871, and not under that of 1868, it has not since then been subject to the charter of 1868, and all the notes in suit having been given and discounted in the years 1874 and 1875, the taking and reserving of a greater than the legal rate of interest thereon, does not operate as a forfeiture of the debt represented by any of the notes. The decision of the court is in favor of plaintiff for $5587.40.”
    The exceptions filed to this decision were overruled by the court, and judgment entered for plaintiff. Defendant then took this writ, and alleged that the court erred in this entry of judgment, and in the answers to the points.

      S'. Hepburn, Jr., and S. Hepburn, for plaintiff in error.
    — This is not an attempt, as the court below implies, to set up a defective organization as a defence to an honest debt. It was the bank which attempted to escape liability by setting up a pretended charter, and acts which were not only without legislative authority, but in the face of positive enactments, which direct how the organization shall be made, and prohibit doing any business until they are complied with. The defendant, as an endorser, had rights which were secured to him by the Act of 1868, and these rights cannot be destroyed by the substitution of one charter for another where the terms of the act under which the charter rights are claimed have not been complied with. ■ The manner in which charters may be surrended, or corporations dissolved, is fixed by statute: Act of April 9th 1856, 1 Purd. Dig. 285, pl. 21; Commonwealth v. Slifer, 3 P. F. Smith 71; Brice’s Ultra Yiras 65; Potter on Corporations, sect. 703. If, by non-performance of a condition of its charter, a corporation has forfeited any of its rights, the legal existence of the corporation may be questioned by any one affected: B., W. & N. Railway Co., 27 Sides 245.
    The Act of 1871, was not a recharter, supplement or amendment of any existing charter. The intention of the legislature as gathered from the act is clear and unequivocal. The intention of the corporation cannot affect its meaning. The act provides for a bank to be organized in the future. It directs that the capital stock of $100,000 shall be divided into two thousand shares of $50, which shall be paid in such instalments as the said bank shall by its by-laws direct. There was no bona fide organization under the new charter and it was invalidated: Sect. 1, art. 16, of the Constitution.
    All the evidence was offered by the plaintiff below for the purpose of showing “abandonment of charter,” dissolution of the “Farmers’ Bank,” and organization of the “Farmers’ Bank, Car-lisle.” We submit that it establishes the existence of the “Farmers’ Bank,” and that both on the law and on the facts the court below should have found that the “Farmers’ Bank, Carlisle,” has no corporate being, and that the bank which did discount the notes in suit violated its charter in taking more than six per cent, as the rate of discount; and as by the express terms of its charter, this forfeits the whole debt and interest, judgment should have been entered for the defendant.

      W. F. Sadler and Lemuel Todd, for defendant in error.
    The corporate being began with the approval of the Act of 1871. When the charter constitutes persons named, and those who should become associated with them, a corporation, they become such immediately on the passage of the act: Talladega Insurance Company v. Sanders, 43 Ala. 115. Omission to organize in the way prescribed by the charter, does not take away the corporate franchise, and will not support a plea of no corporation: Brouer v. Appleby, 1 Sandf. (Superior Ct.) 158. When a corporation is created by a general statute, which requires preliminary steps to be taken by the corporators before it possesses legal existence, it must, in order to prove its corporate existence, show that all such preliminary steps have been taken; it is otherwise where the charter is by a special act, which declares it to be a body corporate: Potter on Corporations, sect. 66. So, when a charter creates a corporation in prcesenti, but with a proviso that it shall do certain things, the omission to do those things, though cause for dissolution by courts, cannot be inquired into collaterally. A debtor of the company, when sued, could not set up want of compliance with the proviso, unless there had been a judicial dissolution of it for non-compliance: People v. Manhattan Co., 9 Wend. 383. The act itself constituting the corporation, the production of the charter is sufficient proof of incorporation: Fire Department v. Kip, 10 Wend. 266. See, also, Rathborn v. Tioga Navigation Co., 2 W. & S. 74; Hughes v. Parker, 20 N. J. 58; Newcomb v. Reed, 12 Allen 362; Irvine v. Bank, 2 W. & S. 190.
    May 24th 1880.
    Spahr dealt with the bank as such, and he cannot therefore deny its corporate existence: Congregational Soc. v. Perry, 6 N. H. 164; Manufacturing Co. v. Davis, 14 Johns. 238; Worcester Med. Inst. v. Harding, 11 Cush. 285; Circleville v. Renick, 15 Ohio 322; Jones v. Bank, 8 B. Monroe 122; Angell & Ames on Corp., sect. 94; Leonardsville Bank v. Willard, 25 N. Y. 574; Franklin v. Twogood, 18 Iowa 515; Bigelow on Estoppel 425, and note 4.
   Mr. Justice Mercur

delivered the opinion of the court,

A corporation is the mere creature of the law. It can exercise no powers which are not expressly conferred or necessarily implied in furtherance of the object of its creation : Diligent Fire Co. v. Commonwealth, 25 P. F. Smith 295. When, however, a charter has actually been granted to certain persons to act as a corporation, and they are actually in the possession and enjoyment of the corporate rights granted, such possession and enjoyment will be held valid against one who has dealt with them in their corporate character: Angell &. Ames on Corp., sect. 80. He cannot be permitted to prove, in a collateral proceeding, that a condition precedent to its full corporate existence has not been complied with. As against him, the charter and a user of rights claimed to have been conferred by it, are sufficient. When there is a de facto corporation, and the state does not interfere, its corporate existence and its ability to contract cannot be questioned in a suit brought upon an evidence of a debt given to it: Commissioners v. Bolles, 4 Otto 104. It is well settled that although a charter may be declared null and void by the proper authority, yet the violation thereof cannot be determined in a collateral suit: Irvine v. Lumbermans’ Bank, 2 W. & S. 190.

The facts show that the bank has professed to carry on all its business under the Act of 15th of March 1871. On the 1st of May 1871, it reported to the auditor general that it had ceased to.act under its former charter, and commenced operations under the Act of 15th March 1871. It transferred all the stock and assets of the former corporation to the present one. It gave up the exercise of all powers under the old charter, and has continuously used and exercised the powers given by the new charter. Although it has been done in an irregular manner, yet it lies not in the. plaintiff in error to question its powers in this transaction and in this suit.

Judgment affirmed.


author: Per Curiam.

text:
    Duncan versus Pennsylvania Railroad Co.
    The Act of 1846, incorporating the Pennsylvania Railroad Company, declares that it shall be lawful for said company to make such lateral roads or branches to such convenient points in either of the counties through which the main line may pass as the president and directors may deem advantageous and suited to promote the convenience of the inhabitants thereof and the interests of said company. The Act of 1857, authorizing the sale of the public works, including the railroad from the town of Columbia to the city of Philadelphia, provided that any 'company, already incorporated by this Commonwealth that might purchase the said railroad, should possess, hold and use the same under the provisions of their act of incorporation, and any supplements thereto. The Pennsylvania Railroad Company bought said public works in pursuance of said statute. Said company commenced the construction of a branch, or lateral railroad, from its main line in West Philadelphia by means of a bridge across the Schuylkill river and along Filbert street on an elevated railway to Merrick street in Philadelphia. A property owner on the line of Filbert street sought to restrain the construction of the road and applied for an injunction. Reld, that the injunction was properly refused.
    May 14th 1880.
    Before Mbrcur, Gordon, Paxson, Trunkey and Sterrett, JJ. Sharswood, C. J., and Green, J., absent.
    Appeal from the Court of Common Pleas No. 2, of Philadelphia county: Of January Term 1880, No. 118. Certified from the Eastern District.
    Bill in equity filed by George R. Duncan against the Pennsylvania Railroad Company, to restrain the defendant from building a bridge across the Schuylkill river, and extending their road by means of an elevated railway along Filbert street to Merrick street, in the city of Philadelphia.
    The bill averred that the plaintiff was seised in fee of certain premises at the corner of Twenty-third and Filbert streets, and extending to low water-mark in the river ¡Schuylkill; that the defendant proposes to construct a line of railway from the west side of the river Schuylkill to Merrick street, in the city of Philadelphia ; that the said line of railroad was to cross the river on a bridge, whose eastern abutment was to be erected on Filbert street, in front of plaintiff’s premises, and within the warden’s line on the east side of the river; that said railroad was to be constructed eastward along Filbert street on what was known as the elevated railway plan, that is, an elevated frame-work twenty feet above the bed of the street, supported by iron pillars fifty feet apart, which were to be placed along the curb of the street; that said street was a highway, and defendant had no right to change the grade thereof. The bill further alleged that the company had no authority to construct said line; that the road and bridge, if constructed, would injure the property of plaintiff both in his riparian rights and his privileges on Filbert street, and that it would be thereby greatly impaired in value. He therefore prayed that the defendant be restrained from constructing said bridge and road.

      The answer admitted the principal facts in the bill, but averred that the elevation of the road was a necessity from the nature of the ground and the purposes for which it was to be used. It denied that any damages capable of legal compensation would be done plaintiff, and set up authority in the company to make the road under its charter: Act of April 13th 1846; under the Act of May 16th 1857, authorizing a sale of the public works, and under the Act of April 18th 1856, and that it had been authorized by ordinance of councils of October 13th 1879, to occupy Filbert street for railroad purposes, and by the board of port wardens to build the bridge.
    After argument the court refused the motion for an injunction. Hake, P. J., delivering the following opinion :
    “ The bill avers that the defendant is a corporation chartered by the Commonwealth of Pennsylvania, with authority to locate and construct a railroad having its eastern terminus at Harrisburg, and extending thence to the county of Allegheny; that the legislature, on the 16th of May 1857, authorized the sale of a railroad belonging to the state, and reaching from the Susquehanna river, at Columbia, to the western end of Market street bridge, in the city of Philadelphia, at which latter point it connected with a railroad which had been built by the city under an authority conferred by various statutes; that the defendant proposes to construct a railroad from a point on its present road on the west side of the river Schuylkill, north of Market street to Fifteenth street, on the east side of the said river, and that the proposed line or route is to cross the Schuylkill by a bridge, and proceed eastward along Filbert street to Shock street, and thence over land purchased by the defendant to the station at Fifteenth street; that the track is to be laid at a height of from thirteen to twenty feet above the existing grade of Filbert street, and used for trains and locomotives, and that the effect will be to impair and depreciate the real estate owned by the complainant. The bill also avers that the corporation defendant has no authority under the Constitution and laws of this Commonwealth to lay out and build such a line of road, and that the erection of a bridge to cross the Schuylkill, and the occupation of a street in the city of Philadelphia for such a purpose, are not only ultra vires, but contrary to law'and prejudicial to rights which the complainant is entitled to enforce. The defendant’s case, so far as it is considered in this opinion, may be briefly stated as follows:
    “ 1. That the 17th section of the act incorporating the Pennsylvania Bailroad Company, declares that it shall be lawful for the said company ; to make such lateral railroads or branches leading from the main line of their said railroad, to such convenient place or points in either of the counties into or through which the said main line of the road may pass, as the president and directors may deem advantageous, and suited to promote the convenience of the inhabitants thereof, and the interests of said'company.’
    “ 2. That the act authorizing the sale of the main line of the public works, including the railroad from Columbia to this city, provided that any company already incorporated by this Commonwealth, that might purchase the said main line, should possess, hold and use the same under the provisions of their act of incorporation and any supplements thereto, and that the defendants subsequently bought in pursuance of this statute.
    “ 3. An ordinance of the city of Philadelphia, reciting that, whereas the Pennsylvania Railroad Company is about to construct a branch line of railroad to extend from its main line in West Philadelphia to the business portion of the city, and it is necessary that a portion of Filbert street shall be occupied thereby, therefore, the select and common councils of the city of Philadelphia, do ordain that the Pennsylvania Railroad Company be, and it is hereby authorized to occupy the end of Filbert street, with an abutment for a railroad bridge, and use the line of Filbert street, from said abutment, eastward to Shock street, with an iron trestle-work for supporting a branch line of railroad: Provided, that the said abutment and trestle-work shall not prevent the use of Filbert street as a public road or highway.
    “4. An act approved June 9th 1874, authorizing the counties, cities and townships of this state to enter into contract with any railroad companies whose roads enter their limits, whereby the said railroad companies may relocate, change or elevate their roads within said limits, in such manner as in the judgment of such authorities may be best adapted to secure the safety of life and property, and promote the interest of said city, county or township, and for that purpose to do all such acts as may be necessary and proper to effectually carry out such contracts.
    “ It is proper to add, for the better understanding of what follows, that the 10th section of the 17th article of the new Constitution declares that ‘no railroad, canal or transportation company * * * shall have the benefit of any future legislation, * * * except on condition of the complete acceptance of all the provisions of this article.’
    “ Reasoning from these premises, the case may be brought within comparatively narrow limits. The act for the sale of the main line of the public works, provided that any company already incorporated by this Commonwealth that might become a purchaser should ‘ possess, hold and use the same under the provisions of their act of incorporation;’ and when the Pennsylvania Railroad Company bought on the faith of this statute, it acquired an indefeasible title to every privilege within the scope of the assurance thus held forth.
    “The clause of the 17th section of the charter, which confers the right of making lateral roads or branches, is therefore as much a part of the grant under which the corporation defendant holds the line which it acquired by purchase, as it is of that by which it was created and authorized to build a railway from Pittsburgh to Harrisburg. This conclusion is the more reasonable, because no sufficient ground has been or can be assigned why the power to construct lateral arms or feeders, and use them as a means for the collection and distribution of passengers and freight, is less necessary and convenient on this side of the Susquehanna, than on the other; or why a privilege, which may confessedly be exercised in Allegheny county, should have been denied in Lancaster, Montgomery or Philadelphia. Such a franchise is no doubt so far severable, that the power to construct a main or trunk railroad may be confided to one party corporate, and that of making the branches to another; but both powers should obviously be lodged in the same hand, from motives of policy and convenience. What, however, we have to determine is not what the legislature should have done, but what they did; and if the power in question, was in our judgment unfit or dangerous, we should not be justified in disregarding the plain language of the contract. Public grants should unquestionably be read in the sense which is the most fayorable to the state; but this rule, like its converse, fortius contra proferentem, which prevails among individuals, has no place, unless the language is ambiguous or admits of two interpretations. Whether the contract bears the seal of the Commonwealth or of a citizen, the real question is, what did the grantor intend ? and if his purpose is plainly written, good faith requires that it should be carried into effect.
    “Another point for consideration is, whether the grant of a right to construct a railway authorizes the taking of land that has already been appropriated to a different and inconsistent public use; or, to put the question in the form in which it is presented here, can the Pennsylvania Railroad Company lay a track in a street in this city without an express authority to that effect ? If the question were an open one under the decisions of the Supreme Court, we should have little difficulty in arriving at a conclusion, in view of the general principles of jurisprudence and the authorities in other states. Land which has been taken under the right of-eminent domain, and confided to a natural or to an artificial person for a public use, may be again taken by virtue of the same right, and appropriated to any purpose in which the community is interested. But such an intention should not be imputed to the legislature, unless it is distinctly expressed, or is a necessary inference from the nature of the grant. Hence, the incorporation of a company with authority to construct a railway from one given point to another, may authorize the crossing or intersection of the intervening highways, but will not justify the location of the railway along the line of a public road, or of the streets or avenues of a city. But for this principle, a newly-incorporated company might intrude on the franchise of its predecessor, and occupy so much of the road-bed as suited its convenience, subject to such compensation as might be awarded by a jury. This consideration is of the greater moment, in view of the constitutional provision that, -‘any association or corporation' organized for the purpose, shall have the right to construct and operate a railroad between any points within this state.’ The authority is given broadly, and in terms which preclude legislative restriction, and if a turnpike or public street can be occupied by virtue of the right which it confers, I know of no principle which will protect the tracks of the Pennsylvania Railroad Company against a similar interference. We are not, however, free to be guided by our own judgment, because we are bound by the authorities in the court above, which indicate that the corporation defendant is empowered to occupy the streets and highways of every county through which it passes. The point has arisen in various instances, and has always been determined the same way; and if each one of these decisions may be explained or qualified when considered separately, they yet as a whole present an unbroken front. The power to enjoin is one that should not be exercised except to prevent some act which is clearly contrary to law ; and in a doubtful case, a chancellor should stay his hand. There is the more reason for caution in the present instance, because an appeal may be at once had from our decision to the Supreme Court, which can much better than a subordinate tribunal define the law and ascertain the exact measure of the right in dispute.
    “ There is another consideration which has largely influenced our judgment. The Pennsylvania Railroad Company cannot be said to come as a trespasser ; the gates were thrown open to it by the body which is presumably most competent to speak for the citizens. The ordinance above cited, distinctly sanctions what the defendant proposes to do, and all that the complainant would have us forbid. Aside from a doubtful ground that will be presently stated, this ordinance and the Act of June 9th 1874, are decisive of the controversy. Conceding that the defendant has no direct authority from the legislature to occupy Filbert street, it may still rely on the grant made by councils, which is clearly a contract within the broad and comprehensive language of the statute. It may be said that the city did not receive value for this agreement, but a consideration is not requisite for the support of contracts of record, made by statute or ordinance, or under seal; and, moreover, the undertaking of the railway company 1 to keep the said railroad and structures in good repair,’ and ‘ save the city of Philadelphia harmless,’ is a valuable, if inadequate, consideration. Singular as it may seem, this important statute was not referred to in the able and otherwise exhaustive arguments made on either side. It was ignored by the railroad company, which disdains municipal concessions, and claims a paramount right to use the streets of the city, and the complainant’s counsel did not think it worth their while to refute an argument which their opponents had not made. Such might well be the duty of counsel; but it was obviously incumbent on th'e court to ascertain the true meaning of an act which bore directly on the matter in dispute, before proceeding to judgment. Councils have no right to dispose of the streets of the city independently of the statute; and if it is not applicable, they much exceeded their authority in making such a grant. It is not less plain that if Filbert street can be occupied without the consent of the city, other thoroughfares may be obstructed in the same way. A re-argument was consequently directed on this point, when it was forcibly contended by the complainant’s counsel that the corporation defendant could not claim or exercise any right under the ordinance, because it had not accepted the provisions of the 17th article of the Constitution, in the manner required by an act approved June 5th 1874, which provides that such acceptance shall be signified by filing.1 in the office of the secretary of the Commonwealth, a certificate in writing signed by the president and secretary, and attested by the corporate seal of the company, stating * * * that all the provisions of said article’ have been accepted at . a regular or special meeting of the board of directors, with the consent of the stockholders.
    The counsel for the Pennsylvania Railroad Company tacitly conceded that this position was well taken, by omitting to notice it in their reply, and, basing their client’s -right exclusively on the power conferred by the charter, which, as they insisted, authorized the Pennsylvania Railroad Company to lay a track, and run locomotives in any highway in this county which the board of directors should think fit to use for such a purpose. It does not often happen that the counsel on opposite sides agree, and when they do, it is not always safe to differ from them ; but the case is of one so much importance to the city and Commonwealth, as well as to the parties, that we may be permitted to say, that while recognising the complexity of the question, we are not convinced. What the legislature is precluded from doing directly, it may not do indirectly through the instrumentality of a municipal corporation; as, for instance, by authorizing the city of Philadelphia to create canal or railway companies, or enlarge the powers of those already chartered; but it does not follow that a city may not since, as well as before the' adoption of the new Constitution, be empowered to enter into agreements with railway and transportation companies,* for the' purpose of facilitating or regulating any work which they are authorized to perform within the city limits, or that will be conducive to the interests of the inhabitants, although the effect should be to enable the company to occupy a street that could not otherwise be diverted from the general use. The primary object of such legislation is to promote the welfare of the city; and the intent should not be frustrated, or the municipality denied the right to proceed in accordance with the grant, because the power which it confers cannot be exercised without incidentally benefiting a company that has not accepted the provisions of the seventeenth article of the Constitution. When, therefore, as in the case in hand, the company, though not authorized to take, is entitled, under its charter, to receive and use, and the obstacle is the city’s want of power to convey, an act enabling the city is not, as I suppose, a ‘ benefit’ to the company from ‘ subsequent legislation’ within the meaning of the seventeenth article of the Constitution.
    “ There is another aspect of the question. The words of the Constitution are, that ‘ no railroad, canal or other transportation company * * * shall have the benefit of any future legislation * * * except on condition of the complete acceptance of all the provisions of this article.’ This language is ambiguous, and may be understood as meaning that acceptance is a condition precedent, or that the use and enjoyment of a privilege conferred by a subsequent statute shall operate as an acceptance. The latter interpretation seems to us to be best calculated to effect the object, which was not to hinder future legislation, or prevent it from having full and immediate effect, but to bring corporations which had been chartered prior to the Constitution within its fold. The Constitution, as Mr. Webster well observed, is as much a part of every statute as if it were recited in the preamble; and when a corporation accepts the benefit of a subsequent statute, it necessarily assents to the express or implied conditions of the grant. If this view is correct, the Act of June 5th 1874, must be regarded as directory, and the legislature could not, by prescribing a particular mode of acceptance, prevent any other from having its appropriate effect. On the assumption, therefore, that the license given by the ordinance is such a benefit as the framers of the new constitution contemplated, the corporation defendant will be as much bound under the seventeenth article, by proceeding to extend its road in the manner indicated by councils, as if it had declared its assent formally in writing, and filed the instrument in the proper office.
    “ We have not determined that the prayer for an injunction must be refused, without some misgivings as to the possible consequences of a conclusion that seems to be an unavoidable inference from the premises, and the decisions of the court above. A citizen of Philadelphia, or, I might add, of any part of the Commonwealth, should not readily assent to the claim advanced by the defendant’s counsel. It is that the corporation defendant has a dominion over the highways of Philadelphia, and, indeed, of every-county through which its roadway passes, that cannot be controlled by the courts, the legislature, or even by the people assembled in convention, short of an amendment to the Constitution of the United States. The case is still more grave, if, as we are told, the power may be usedgin a way to hinder or prevent ordinary traffic, and that will be detrimental to the owners and occupants of the adjacent buildings, without a liability in damages for the resulting loss. Rails may, it is alleged, be laid at grade, and locomotives run down Chestnut or Market street, or an elevated railway constructed on a level with the bed-chambers on either side of the street. The board of directors are the sole judges of the necessity for the exercise of the power, and their determination cannot be reconsidered elsewhere. If, as we are inclined to believe, the sanction of the municipality is essential to the execution of such a project, there may be less danger of abuse, but this alone will not satisfy the requirements of justice, which are that every one who is injured by such a change shall be indemnified for his loss. Compensation could not be recovered at common law for the appropriation of land or chattels to a public use, not because, the right was doubtful or denied, but because the law as it stood then did not provide a remedy by suit. There was no contract expressed or implied, and an act done by virtue of the sovereign power of the state could not be treated as a tort. The danger in England was theoretical, because Parliament, though free to withhold if it thought proper, was careful of vested rights, and gave an ample equivalent when property was taken for public use. When our system of government came to be organized, it was instinctively perceived that so much latitude could' not safely be accorded here. An amendment to the Constitution of the United States accordingly provided that property should not be taken for public use without compensation, and like restrictions were imposed by the constitutions of the several states. This provision was rigidly construed in this Commonwealth as meaning simply what its letters said. Property taken for public use must be paid for, but no compensation was due for property injured or destroyed. A house might be rendered uninhabitable, or the means of access to it cut off by a change of grade, or an embankment, or it might be consumed by a fire kindled by the sparks issuing from the funnel of a locomotive, and the owner have no legal means of redress. This injustice was remedied by the Constitution of 1874, which provides that “municipal and other corporations and individuals invested with the privilege of taking private property for public use shall make just compensation for property taken, injured or destroyed by the construction or enlargement of their wmrks, highways or improvements, which compensation shall be paid or secured before such taking, injury or destruction.” Our first care at the argument for the injunction, was to ask whether this requirement had been fulfilled; but it- appeared that counsel on both sides agreed in holding that it did not apply. Two reasons were assigned : one that the bill did not demand compensation, or complain that it was unduly withheld ; the other, that the Pennsylvania Railroad Company having been chartered long before the adoption of the Constitution, the state could not legally impose any liability that did not exist when it was incorporated. As the former objection might be obviated by an amendment, we think it proper to say that we are not satisfied of the validity of the latter. The Constitution of the United States undoubtedly precludes a state from impairing the obligation of a charter even through an amendment of its organic law; but this restriction has never been held to forbid such remedial legislation as may be requisite to give effect to antecedent rights, or provide a remedy for injuries that previously went unredressed. A child was entitled to support from his father at common law, but he could not recover damages for the frustration of this right through the parent’s death from injuries occasioned by the negligence of an individual or a body corporate. The act which now affords a remedy for such deprivations, and under which damages are constantly assessed and judgments rendered, is of recent origin, and was passed since the creation of the Pennsylvania Railroad Company, and yet it has never, that I am aware of, been contended that it was invalid as to pre-existing corporations or impaired their chartered privileges. In like manner the citizen has a natural right to compensation, for the consequences of acts done for the public benefit that are injurious to his estate or person, and a statute which affords a remedy cannot justly be assailed as unconstitutional. Such an argument would obviously be fallacious if advanced on behalf of an individual, and the principle is the same when the defendant is a corporation. A power conferred by a charter cannot be abrogated without impairing the obligation of the contract; but the legislature does not, in making such a grant, contract that persons who are injuriously affected by the exercise of the power are not entitled to indemnity,' nor that it will not provide a means for rendering their demand effectual. This may be tested by supposing the incorporation of a railway company in a state where, as was long the case in Rhode Island, there is no constitutional restraint on the right of eminent domain, and the subsequent enactment of a law providing that land should not be taken for the use of the road without payment. Would any one contend that such a statute impaired vested rights, or was within the prohibition of the Constitution of the United States ? If the question must be answered in the negative, the legislature might obviously proceed to give a remedy for property injured or destroyed.
    u In dismissing the motion for an injunction, we, therefore, have the satisfaction of believing that the complainant may recover compensation in damages for any injury that he may sustain from the proposed extension of the Pennsylvania Railroad. The motion for an injunction is refused.”
    Mitchell, A. L. J., filed the following concurring opinion:
    “ As this case involves interests of very great magnitude, and may become a precedent of importance with regard to future litigation, I think it proper to indicate my individual views, though I shall do so briefly and without argument.
    “ I am unable to assent to the conclusion that by the purchase of the line of completed railroad from the state, the Pennsylvania' Railroad Company acquired the separate and severable franchise of building branch roads in connection with that line between Harrisburg and Philadelphia,. I am¡ therefore, of opinion that the defendant has no privilege or authority under the Act of 1857, or any other law that has been shown to us, to build branch roads in the county of Philadelphia.
    “ I am further of opinion that even if the power to build branch roads did exist, it would not authorize the use of a public street for that purpose. There is neither the express grant nor the necessary implication which is required to authorize the taking of property already dedicated to public use for another use, though it be also public.
    “Under the general rules of law, the city of Philadelphia could not, by its permission, give the railroad company any authority not contained in its charter, nor could it dispose of the streets, which are not its property, but highways of the Commonwealth, without express legislative sanction; and the ordinance relied upon by the defendant would be, therefore, insufficient as a defence to this bill. Were we, therefore, to rest upon the grounds set up by defendant’s answer, I should be of opinion that they were wholly inadequate, and that the injunction ought to be granted. Under the Act of 9th June 1874, however, referred to by the president judge, the authorities of the city are authorized and empowered to enter into contracts with railroads within its limits, whereby the said railroads may relocate and change their roads in such manner as the city authorities may deem best for the interests of the city, &c. A fair construction of this act would seem to give the city councils the right to enter into a contract with the defendant railroad by which the latter might relocate its point of crossing the Schuylkill river, and the terminus at which its rails should stop. By force of this act, the ordinance of October 13th 1879, is a valid authority to the defendant to make the proposed change in its route, and I concur in the judgment of the court refusing an injunction, upon this ground alone.”
    The plaintiff took this appeal, and alleged that the court erred in refusing the motion for an injunction. The appeal was certified to the Middle District under the provisions of the Act of June 12th 1879, Pamph. L. 1879, p. 177. (See next case.)

      M. Hampton Todd and David, W. Sellers, for appellant.
    The plaintiff sustains damages consequential to his ownership and his riparian right. Under the latter, he is entitled to have the water in front of Filbert street untouched. The city, not being a riparian owner, cannot build a wharf, nor can the wardens give permission for the defendants to build beyond their line: Cramp’s Appeal, 86 Leg. Int. 284; Wardens v. City, 6 Wright 209. Damages are only for taking land or materials. No consequential damages are chargeable to defendants as to land: Navigation Co. v. Coon, 6 Barr 379. Nor as to riparian rights: Bridge Co. v. Kirk, 10 Wright 112.
    If the plaintiff has a right to compensation for the injury to his property and the destruction of his dock, then no method exists which, in a legal sense, would adequately and easily afford him compensation, and defendants will be enjoined until it is provided: Bonaparte v. Railroad Co., Baldwin 205; Pittsburgh v. Scott, 1 Barr 315; Railroad Co. v. Congregation, 3 P. F. Smith 445. There is no commonlaw right: Struthers v. Railway Co., 6 Norris 282; Railroad Co. v. Speer, 6 P. F. Smith 334; Bridge Co. v. Bridge Co., 7 N. H. 35; Gulf R. R. Co. v. Shiels, 33 Geo. 609.
    ■ There can be no claim for damages, because there is no actual “ taking” in this case: Henry v. Bridge Co., 8 W. & S. 85. The damages are consequential. Under art. xvi., sect. 8 of the Constitution, the plaintiff would be entitled to compensation, but the rights of the company were fixed at the time of its adoption, and it has not been accepted by them. The plaintiff is, however, bound by it and entitled to its protection : Mott v. Railroad Co., 6 Casey 9; Navigation Co. v. Coon, 6 Barr 379; Buckwalter v. Bridge Co., 2 Wright 281; Struthers v. Railroad Co., supra.

    The plaintiff has a standing in court to compel the defendants to show their authority, by reason of his ownership upon the line of the street: Faust v. Railway Co., 3 Phila. R. 164; Act of June 19th 1871, Pamph. L. 1361; Lejee v. Railroad Co. 10 Phila. R. 362; Edgewood Railroad Co.’s Appeal, 29 P. F. Smith 257. This authority can be claimed by the defendants only upon the theory that the proposed road is a branch or an extension. The power to build a branch in Philadelphia has never been given them. Under the charter , of 1846, Pamph. L. 312, sect. 11, they were authorized to construct a road from Harrisburg to Pittsburgh, and (sect. 17) branches to any point in either of the counties into or through which the main line might pass. The Act of 1857, Pamph. L. 519, providing for the sale of the Philadelphia and Columbia Railroad, granted only a single franchise, and the Pennsylvania Railroad Company were equal bidders with all others: Mott v. Railroad Co., 6 Casey 9. They purchased a completed line, from -which they certainly were given no express right to build branches, such as they had with respect to the original line, west from Harrisburg; nor even an implied right, because that can, in no sense, be considered necessary to the possession and use of a line which is in a finished condition. A corporation takes nothing by implication, except where the implied power is indispensable to the exercise of an express power. Where there is a doubt it must be resolved in favor of the public, who are the grantors: Black v. Canal Co., 9 C. E. Green 476; Stevens v. Railroad Co., 5 Vroom 537; Commonwealth v. Railroad Co., 3 Casey 339.
    Nor have the defendants a right to build an extension. The Sale Act gave such a power, but it was exhausted when the line to the Navy Yard, by way of Christian street, was finished, and that line has been expressly recognised by them (Annual Reports 1862 and 1863) as constituting the extension intended by the act. Even if this were not so, the proposed road, which is to stop at Fifteenth street, would not fulfil the requirements of the law, for that speaks of the Delaware river as the terminus ad quem. When there is such a grant of power, the law will not permit the grantee to construct a part only, and then stop : Stewart’s Appeal, 6 P. F. Smith 413; Cohen v. Williamson, 1 Macn. & G. 481; Logan v. Earl Courtown, 13 Beav. 22; People v. Vermont Railroad Co., 24 N. Y. 267; Commonwealth v. Railroad Co., 3 Casey 339; Martin v. Railway Co., 3 Phila. 316.
    The defendants have no right to construct any other than a surface railroad: Charter of 1846, sects. 11, 12, 13, 17; General Railroad Law of 1849; Act of 1868, Pamph. L. 62, sect. 9.
    The bed of a street cannot be occupied longitudinally by a railway without express legislative authority: Commonwealth v. Railroad Co., 3 Casey 339; Dillon on Corp. 560; Springfield v. Railroad Co., 4 Cushing 63; Boston and Albany Railroad Co.’s Case, 53 N. Y. 574; Cake v. Railroad Co., 6 Norris 307; Cemetery Co. v. New Haven, 43 Conn. 234; Bridge Co. v. Bridge Co., 7 N. H. 35; Gulf Railroad Co. v. Shiels, 33 Georgia 609. A crossing or intersection of a public street is implied to reach the terminus; but an alignment concurrent with a public road or street must be the result of express grant.
    The city ordinance has no effect on the plaintiff’s rights: Attorney-General v. Railway Co., 1 W. N. C. 489.

      Wayne MaeVeagh and John Scott, for appellee.
    The sole question here is, whether the Pennsylvania Railroad Company has authority to build its proposed line of railroad from a' point on its main line in West Philadelphia to Fifteenth and Filbert streets. The charter of 1846, Pamph. L. 312, sect. 11, provides that “the president and directors of said company shall have power and authority by themselves, their engineers, superintendents, agents, artisans and workmen, to survey, ascertain, locate, fix, mark and determine such route for a railroad as they may deem expedient:” sect. 17. “And it shall be lawful for the said company* in the manner and subject to the conditions and provisions hereinbefore provided, in relation to the main line of their railroad, by this act authorized to be made, to make such lateral railroads or branches, leading from the main line of their said railroad, to such convenient place or points in either of the counties into or through which the said main line of their road may pass, as the president and directors may deem advantageous and suited to promote the convenience of the inhabitants thereof and the interests of said company.”
    This was applicable only to the main line between Harrisburg and Pittsburgh; but, by the Sale Act 1857, Pamph. L. 519, sect. 11, “ Any company already incorporated by this Commonwealth, becoming the purchaser of the said main line, shall possess, hold and use the same under the provisions of their act of incorporation and any supplements thereto: modified, however, so as to embrace all the privileges, restrictions and conditions granted by this act in addition thereto.”
    The line of the Columbia Railroad having been purchased by the Pennsylvania Railroad Company, the branching power theretofore possessed by them as to the original line was, by this act, extended to the road purchased.
    The right to build such a portion of a railroad as is now proposed, was brought into direct question before the Supreme Court, and decided in favor of the company: Pittsburgh v. Railroad Co., 12 Wright 355. There the city was opposed to the new road; here it is not.
    The Sale Act 1857, Pamph. L. 519, sect. 3, provides that “ it shall be lawful for the purchasers * * * to straighten and improve the said the Philadelphia and Columbia Railroad, and to extend the same to the Delaware river in the city of Philadelphia.” The line of railroad which it is proposed to build, being from a point near the eastern terminus of the Columbia Railroad, to the Delaware river, it is difficult to understand how the legislature could confer the right claimed by the defendants by more suitable language than that which has been quoted. The plaintiff contends that this power has been exhausted, but evidéntly through some confusion or misunderstanding of dates óf legislation. Before the Sale Act, the Pennsylvania Railroad Company was empowered (1852, Pamph. L. 394,) to acquire real estate in West Philadelphia for depot purposes ; and in 1856 (Pamph. L. 447) was authorized to construct a railroad from a point on the Philadelphia and Columbia Railroad, near the repair shops of the Pennsylvania Railroad in West Philadelphia, to a point on the west side of the Schuylkill near Gray’s Eerry, crossing the Schuylkill to the Delaware river below the Navy Yard; and, by the 4th section of the latter act, to connect the said railroad with any railroads now or hereafter constructed within the limits of the city of Philadelphia, upon the route of said road so extended, on such terms and for such time and under such restrictions as may be agreed upon by the officers and directors of said companies.” This act was accepted by the Pennsylvania Railroad Company on the 6th of April 1857, more than a month' before the Act of Sale. It is not easy to understand how the exercise of franchises granted to and exercised by the stockholders of the Pennsylvania Railroad Company previous to the passage of the act authorizing the sale of the main line of the public works, can be supposed to have exhausted a subsequent and distinct authority expressly conferred upon the company as the purchaser of the main line.
    May 24th 1880,
    If the company possesses the right to build its road from West Philadelphia to Fifteenth and Filbert streets on a line to the Delaware river, it can occupy that portion of Filbert street mentioned in the plaintiff’s bill: Rex v. Pease, 4 B. & Ad. 30; Turnpike Co. v. Railroad Co., 23 Pick. 328; Philadelphia v. Trenton Railroad Co., 6 Whart. 258. Expressly decided in Commonwealth v. Railroad Co., 3 Casey 339; Railroad Co. v. Commonwealth, 23 P. F. Smith 29; Green v. Reading, 9 Watts 382; Henry v. Railroad Co., 8 W. & S. 85; Mercer v. Railroad Co., 12 Casey 99.
    To the Commonwealth belongs the franchise of every highway within its limits as a trustee for the public. Every public road therein exists by force only of the Commonwealth’s authority. As she then authorized the defendant to appropriate so much of the public road as was necessary for its purposes, and the portion taken did not exceed the width fixed by law, it follows that the taking in pursuance of law cannot be a public nuisance; Fletcher v. Railroad Co., 25 Wend. 463; Drake v. Railroad Co., 7 Barb. 508; Harris v. Thompson, 9 Id. 350. The taking of a street or highway for the purposes of a railroad is taking it for a public use: People v. Law, 34 Barb. 502. A structure authorized by the legislature cannot be a public nuisance. A public nuisance must be occasioned by acts done in violation of law. A work which is authorized by law cannot be a nuisance,: Rex v. Pease, 4 B. & Ad. 30; Commonwealth ex rel. v. Railroad Co., Pitts. Leg. Jour., January 2d 1858.
    Here we have the approval of the city, while in Pitts, v. Railroad Co., supra, the right was affirmed, though the city opposed.
   The judgment of the Supreme Court was entered

Per Curiam.

Decree refusing preliminary injunction affirmed, and appeal dismissed at the costs of the appellant.


author: Chief Justice Sharswood

text:
    Kraft’s Appeal. Arthur’s Appeal.
    An appeal from the refusal to grant a special or preliminary injunction may be certified by the prothonotary of the Supreme Court to any district where said court is in session, or will hold its next session, and the appeal may be ordered down for argument and will be heArd when reached in its order.
    March 20th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Appeals from the Courts of Common Pleas, Nos. 2 and 3, of Philadelphia county: Of January. Term 1880, Nos. 140 and 141.
    These were the appeals of Robert Arthur and George Kraft from the decree of the court refusing to grant' an injunction in proceedings against the Pennsylvania Railroad Company, similar to those in- the preceding case of Duncan’s Appeal. A motion was made in the Supreme Court that the cases should be certified to the Middle District.

      Prank P. Prichard, Albert B. Gruilbert and Moses A. Bropsie, for the motion.
    The first section of the Act of June 12th 1879, Pamph. L. 1879, pl. 177, under which these appeals are entered, provides that “ all such appeals shall be heard by the Supreme Court in any district in which it may be in session, as is provided in cases in equity.”
    These cases cannot be heard on the list at this session in the Eastern District, and they should, therefore, be certified to the Middle District, -and immediately marked down for argument, so that they may be "reached at the session of the court commencing the first Monday of May next.
   Chief Justice Sharswood

delivered the following oral opinion: “We have considered this Act of Assembly. Such appeals have the right to be heard at any session. We cannot fix a time for hearing. The prothonotary must make the list, for we cannot know what cases have already been ordered down. Let the records be certified to the Middle District. You can at once order them on the list for argument, and we will hear them when reached in their order.”