author:
Mr. Justice Gordon
      Mr, Justice Paxson

text:
    Pennsylvania Railroad Company’s Appeal.
    1. Although a franchise is property, and as such may be taken by a corporation having the right of eminent domain, yet in favor of such right there, is no implication, unless it arises from a necessity so absolute that without it the grant itself will be defeated. It must also be a necessity that arises from the very nature of things, over which the corporation has no control, and not a necessity created by the corporation itself for its own convenience or for the sake of economy.
    2. A street is a public franchise, and cannot be invaded, except by direct legislative grant.
    3. By the Act of March 12th 1873, the Pennsylvania Railroad Company was authorized to lay a track on Delaware avenue as far north as Dock street, and to acquire such “ ground and property, near or convenient to said avenue or street, as said company may deem necessary for depot and other railroad purposes.” The company constructed a depot a short distance above the northwest corner of Dock street and Delaware avenue. To connect their line on Delaware avenne with this depot, they tore up the tracks of a street passenger railway on Dock street. It was shown that if the company had bought the property at the corner, there would have been no necessity to cross Dock street to reach their depot, but without this purchase there was no other way of reaching it, unless they removed the street railway tracks. Held, that under the Act of 1873 the Pennsylvania Railroad Company had no authority to interfere with the franchise of the street railway.
    February 10th 1880.
    Before Mercur, Gordon, Paxson, Turnkey, and Sterrett, JJ. Sharswood, C. J., and Green, J., absent.
    Appeal from the Court of Common Pleas, of Philadelphia county: Of July Term 1878, No. 4. In Equity.
    Appeal of the Pennsylvania Railroad Company from the decree of the court ordering them to remove the tracks laid by them on Dock street, in the city of Philadelphia, and to relay and restore the tracks of the Lombard and South Street Railway Company.
    Bill in equity filed by the Lombard and South Street Railway Company against the Pennsylvania Railroad Company. The bill sets forth substantially: That the plaintiffs were duly incorporated with the power, among other things, of laying a single-track railway upon certain streets in the city of Philadelphia, and that by a supplement to their charter authority was given to them to extend their railway from the intersection of Front and Lombard streets, along Front street to Dock street, and along Dock street to Delaware avenue; that in pursuance of their authority they laid, in 1868, over the route granted, a railway which they have since maintained; that the defendants are also a corporation, with certain powers by virtue of their original act of incorporation, and of several supplements thereto; that by an Act of the General Assembly of this Commonwealth, approved the 12th day of March 1873, Pamph. L. 235, entitled “An Act to authorize the Pennsylvania Railroad Company to occupy certain portions of Delaware avenue, in the city of Philadelphia, for railroad purposes, and make connections therewith, and to acquire property near or convenient to the said avenue for depot and other railroad purposes,” it was provided as follows :

      “ Whereas, for the purpose of increasing the business facilities and commercial advantages of the city of Philadelphia, the said city has, by ordinances, authorized the widening of a portion of n Delaware avenue to the width of eighty feet, and has, by a resolution of its councils, authorized the Pennsylvania Railroad Company to occupy the easternmost thirty feet thereof, as relocated and widened, for railroad purposes. Now, therefore,
    “ Sect. 1. Be it enacted, &c., That the Pennsylvania Railroad Company bo, and is, hereby authorized to construct a double-track railroad upon the easternmost thirty feet of Delaware avenue, in said city, as relocated, between Queen and Washington streets and as widened between the north side of Dock street and said Christian street, with such connections with its Delaware river extension and turnouts as may be necessary.
    “ Sect. 2. And the said company is hereby further authorized to purchase, take and hold in fee-simple, such ground and property near or convenient to the said avenue or streets as the said company may deem necessary for depot and other railroad purposes : Provided, however, That,if the said company cannot agree with the owner or owners of such land or property so to be taken as to the value thereof, or for the damage done or likely to be done to or sustained by any such owner or owners of such property which said company may enter upon and take in pursuance of the authority hereby given, or when by reason of the absence or legal incapacity of any such owner or owners no compensation can be agreed upon, the Court of Common Pleas of said city and county, on application thereto, by petition, either by said company, or owner or owners, or any one in behalf of either, shall appoint five disinterested and competent persons as viewers, residents of the said city, to assess damages, &c. * * * Provided, however, That when said company is unable to, or cannot agree with the owner or owners of the said land or property, then the said company may enter upon and take possession of the same, on giving to said owner or owners adequate security, by bond, for the value thereof, as the same may be determined by the said viewers; and if such owner or owners shall refuse to receive such bond when tendered by the said company, then the same shall be presented to the Court of Common Pleas of said city, and if approved by the said court, shall be filed in the office of the prothonotary thereof, for the benefit and use of such owner or owners.”
    That the defendants claimed that by virtue of the provisions of the Act of 1873, the power was conferred on them to lay a double-track railroad from the terminus of their “ Delaware river extension,” not only on the easternmost thirty feet of Delaware avenue, but also on a line running diagonally from the easternmost part of Delaware avenue across the westernmost part of that avenue near Dock street, and along Dock street into a proposed freight depot of the defendants, situate on the north side of Dock street.i
    That the defendants further claimed, that by virtue of the provisions of the Act of 1873, the power was conferred on them to cross with their double-track railroad at grade the railway of the plaintiffs on Dock street, west of Delaware avenue.
    That the defendants further claimed, that by virtue of the provisions of the Act of 1873, the power was conférred on them to take such portion of the franchise and railway of the plaintiffs as they, the defendants, might deem necessary, the latter making or securing compensation- to the plaintiffs therefor.
    That the defendants have prepared and adopted a location for their proposed railroad whereby it will run northward along the easternmost -thirty- feet of Delaware avenue to a point near Dock street, and thence northwestwardly on a line running diagonally from the easternmost part of Delaware avenue, across the westernmost part of the avenue near Dock street, and along Dock street, crossing the plaintiffs’ railway on Dock street, west of Delaware avenue, at grade, and running into a proposed freight depot of the defendants, situate on the north side of Dock street. That by that location, the easternmost proposed rail of the defendants’ railroad on Dock street would be about fifty-five feet "west of the west line of Delaware avenue, on the northernmost rail of the plaintiffs’ railway, and about twenty feet west of the west line on the southernmost rail of the plaintiffs’ railway.
    That the defendants intended forthwith to lay their double-track railroad across Dock street and across the plaintiffs’ railway, in the manner described.
    That Delaware avenue was a highway, and the franchise of the plaintiffs, permitting them to run to Delaware avenue, enabled them to attract the.attention of travellers on that highway to their line of railway, and thus brought traffic to their railway.
    That if the defendants’ railroad was laid there would not be sufficient space left on the plaintiffs’ railway, east of the defendants’ proposed track, for a car with horses, and the plaintiffs would be thereby prevented from running their cars further east than to a point west of the defendants’ proposed railroad. That the franchise of the plaintiffs would be utterly destroyed for eighty or one hundred- feet.
    That the defendants have no authority to lay their railroad on any part of Dock street, or to cross the plaintiffs’ railway, or to take any portion of the franchise or railway of the plaintiffs.
    That on the 6th of June 1874, the Court of Common Pleas of this county appointed viewers to assess the damages 'to be occasioned by the defendants’ proposed taking of the railway and franchises of the plaintiffs. That the viewers would meet on the 29th June, and might not report for sometime thereafter. The plaintiffs averred that by the Act of 1873 no power was conferred on the court to appoint siich viewers. That even if the viewers were properly appointed, and the defendants’ rights under the Act of 1873 were as they claimed, which the plaintiffs denied, it was’ incompetent for the defendants to take possession of the plaintiffs’ railway and franchise, until such viewers had determined the value of the railway and franchise to be taken, and until the defendants had paid or secured to the plaintiffs the amount so fixed. That the bond for the sum of $1000 filed by the defendants was inadequate to secure the plaintiffs against the loss to be sustained if the defendants should take their railway .and franchise.
    The plaintiffs then prayed for the following relief: 1. That by a preliminary, and after hearing by a final, injunction, the defendants might be restrained from constructing any portion of their proposed double-track railroad on Dock street. 2. That they might be restrained from crossing the complainants’ railway on Dock street with their , railroad. 3. That they might be restrained from taking the plaintiffs’ franchise or railway, or any part thereof, on Dock street.
    An amendment to the complainant’s bill averred that since the date of filing their bill the defendants had taken up the railway track of the plaintiffs on Dock street, from Delaware avenue westward, about seventy-five feet, and the defendants had laid down a double track railroad across Dock street, crossing the place where the defendants had removed the plaintiffs’ railway on Dock street westward from Delaware avenue at grade; and had extended and continued their double track across Dock street to the north side thereof, and by leave of the court added this further prayer: That the defendants be enjoined and directed to restore the plaintiffs’ track to the same position that it was previous to its being taken up by the defendants, and to remove the tracks of the defendants from Dock street.
    The answer of the defendants in substance, averned that by virtue of the Act of March 12th 1873, entitled “ An act to authorize the Pennsylvania Railroad Company to occupy certain portions of Delaware avenue, in the city of Philadelphia, for railroad purposes, and make connections therewith, and to acquire property near or convenient to the said avenue for depot and other railroad purposes,” the defendants were authorized to construct a double-track railroad upon a part of Delaware avenue, in said city, as therein mentioned, between Queen street and Washington avenue,' and between the north side of Dock street and Christian street, with such connections with their Delaware river extension and turnouts as might be necessary for them to make. In pursuance of which authority they engaged in constructing a double-track railroad, to be connected with their Delaware river extension.
    That by virtue of the second section of the Act of 1873, the defendants acquired certain ground, bounded partly by Delaware avenue, Water and Dock streets, and were erecting upon the greater part- of the square of ground bounded by Walnut, Water 'and Dock streets and Delaware avenue, a freight depot for the accommodation of their business. That to make their depot available for the use of the public, it was absolutely necessary that the tracks should be connected by a suitable turnout with their double-track railroad, authorized to be laid by virtue of the first section of the act. That the second section of the Act of March 12th 1873, expressly authorized the defendants to purchase, take and hold such property near or convenient to the avenue or streets as the defendants might deem necessary for depot or other railroad purposes.
    That the defendants had endeavored to agree with the plaintiffs as to the value of that portion of their track on Dock street necessary to be taken for the aforesaid turnout, or for the damages likely to be sustained by them as the owners of that property, and up to a certain time they had every reason to believe that the plaintiffs would have agreed without suit or other legal proceedings to ascertain the value thereof.
    That the defendants denied that their right to lay a double-track railroad was confined to the easternmost thirty feet of Delaware avenue. For by the first section of the Act of 12th of March 1873, authorizing the said' company to occupy any portion of Delaware avenue, between the north side of Dock street and the south side of Christian street, in said city, for railroad purposes, with the consent of the councils of said city, the defendants were expressly authorized, with the consent of the councils of the city of Philadelphia, to construct a double-track railroad upon any portion of Delaware avenue between the north side of Dock street and the south side of Christian street, in the said city. The defendants further showed that, by a resolution of the Select and Common Councils of the city of Philadelphia, entitled, “ A resolution relative to opening Delaware avenue,” approved the twenty-fourth day of June 1873, passed in pursuance of the said Act of Assembly, they were authorized to lay their double-track railroad upon Delaware avenue in such position that the centre line thereof should be forty-eight feet three inches from the westerly line of the said Delaware avenue; and by a subsequent resolution, amendatory of the aforesaid resolution, approved July 26th 1873, the centre line of their tracks, as specified in the resolution approved June 24th 1873, was moved westward three feet nine inches, to give an equal width of roadway on each side thereof.
    That the defendants have prepared and adopted a location for their proposed railroad or main tracks, whereby the same would extend to the north line of Dock street; with these main tracks it was necessary that the tracks in their freight depot should be connected by means of a turnout, diverging from the main tracks at a point south of the south line of Dock street, passing over a portion of the westerly part of Delaware avenue and Dock street by a reversed curve, crossing the extreme ends of the plaintiffs’ tracks as authorized by law, and connecting with the tracks of the defendants in their freight depot. The defendants denied that they proposed to make their connection between their main tracks on Delaware avenue and the tracks in their freight depot in the manner stated in the plaintiffs’ bill.
    The defendants denied that in consequence of the proposed location of their turnout, the public would not be able to reach the plaintiffs’ cars except by crossing a double-track railroad.
    They also denied that it was not competent for them to enter upon and take possession of a part of the plaintiffs’ railway and franchises over which the proposed turnout was to be constructed, until viewers, appointed under the Act of 1873, had determined the value .of the tracks and franchises so to be taken, or until they should have paid the plaintiffs the amount which might be assessed by the viewers. The proviso in the second section of the act approved March 12th 1873, expressly authorized the defendants, when they were unable to agree with the owners of property, to enter upon and take possession of the same on giving to the owners thereof security by bond for the value thereof, as the same might be determined by viewers; and if the owners should refuse to receive such bond when tendered to them, the same should be presented to the Court of Common Pleas of Philadelphia, and, if approved by that court, should be filed in the office of the prothonotary thereof for the benefit of such owners. The defendants averred that they had filed a bond in conformity with this proviso, which bond had been approved by the Court of Common Pleas, and remained in the office of the prothonotary thereof for the benefit of the plaintiffs.
    The supplemental answer of the defendants set forth that since the date of filing their answer they had petitioned the late Court of Common Pleas of this county for the appointment of a jury to assess the damages which the plaintiffs had sustained by reason of the defendants entering upon and taking possession of a portion of their railway for the purpose of constructing a turnout under and by virtue of the authority contained in the Act of Assembly approved the 12th of March 1878. That after the jury had met and had been duly sworn or affirmed, the plaintiffs formally appeared by counsel before them at one or more of their meetings, and subsequently the jury had assessed the damages which the plaintiffs had sustained by reason of the said taking, at the sum of §1000, ■which sum of money, with an allowance for interest and costs, was, by the leave of the said court, on or about the 18th of September 1876, after due notice to the plaintiffs, paid by the defendants into court to abide the final determination of the rights of the partjes thereto. The defendants admitted the taking of a part of the track of the plaintiffs under and by virtue of the right of eminent domain conferred upon them by the Legislature of Pennsylvania, for the purpose of properly connecting their main tracks on Delaware avenue with their main tracks in their freight depot on Dock street; but they denied that they had taken any part of the plaintiffs’ tracks except in pursuance and under the authority of law as aforesaid.
    An examiner was appointed and testimony taken for both complainants and defendants. It appeared that'there was a property on the northwest corner of Dock street and Delaware avénue, and that the Pennsylvania Railroad Company had considered the advisability of purchasing it. John C. Trautwine, a civil engineer, and a witness on behalf of the complainants, testified that if the defendants had purchased said property they could have entered the block of ground at the north side of Dock street and west side of Delaware avenue, without crossing the complainants’ railway; that this entrance to their depot could have been effected by means of a reversed curve, the rails of which could be laid a little east of the terminus of the Lombard and South Streets Railway, and thence curve by a reverse curve into said block near its southeast corner; that this curve, being of a greater radius, would have enabled the defendants to save motive power in running into the depot. Mr. Strickland Kneass, the assistant to the president of the Pennsylvania Railroad Company, testified, on cross-examination by the complainants, that the advantages of holding this property had been discussed, but no decision had been arrived at as to the necessity of its purchase; that there would have been some advantages if the company could have gotten the property at a fair cost, but that it could operate the depot without it; that the reason why. the company refrained from buying it was one of economy merely. Mr. William Wharton, a contractor, who had been consulted by the defendant company in reference to this connection between their depot and the main line on Delaware avenue, while admitting that it would have been practicable to have made an entrance to the depot through this property, as suggested by Mr. Trautwine, testified that the tracks in that case would not run down the centre of the building through its entire length, and there would be too much space on one side and too little on the other for the convenient handling of freight; that it would not prevent the depot being used by the Pennsylvania Railroad Company, but that they could not transact their business in it with as much advantage as with the present arrangement of tracks.

      The corner property not having been purchased, it was not denied that the present entrance to the depot was the only practicable one.
    The court heard the case on bill, answer and proofs, and after argument, made a decree “ that defendants be perpetually restrained and enjoined from constructing or maintaining any portion of their railroad on Dock street, near Delaware avenue, in the city of Philadelphia, and from constructing or maintaining their said railroad on or across the bed of complainants’ railway on said Dock street in said city, and from taking, destroying, or in any manner interfering with said complainants’ franchise or railway, or any part thereof. And, that said defendants shall forthwith remove their railroad tracks from said Dock street, west of Delaware avenue, in the city of Philadelphia; and forthwith relay and restore the railway of the said plaintiffs, as the same was laid at the date of the filing of the bill, and that the defendants pay costs of this cause.”
    From this decree this appeal was taken.

      Chapman Biddle, for appellants.
    The right of the legislature to authorize the building of a railroad upon a public road, is undoubted: Com. v. Erie & North Bast Railroad Co., 3 Casey 354 ; Danville Railroad Co. v. Commonwealth, 23 P. F. Smith 38. The property of a corporation may be taken for public use, like any other property: West Bridge Co. v. Dix, 6 How. 507 ; Richmond Railroad Co. v. The Louisa Railroad Co., 13 Id. 83. One railroad, in the exercise of the power of eminent domain, may take the track and property of another railroad, where the public interests demand it: Northern Railroad Co. v. Concord & Claremont Railroad Co., 27 N. H. 183; New York & Housatonic Railroad Co. v. Boston, Hartford & Erie Railroad Co., 36 Conn. 196. See also the cases collected in the notes to section 231 of Redf. on Railways, v. 2, p. 406.
    The connections permitted to be made by the Act of 1873, were not only those with the Delaware River Extension, but with the property near or convenient to Delaware avenue, which might be acquired by the appellants for depot purposes, as well between the north side of Dock street and Christian street, as elsewhere.

      Mayer Sulzberger and Moses A. Dropsie, for appellees.
    A corporation takes nothing by a charter, except what is clearly expressed or necessarily implied: Commonwealth v. Erie & North East Railroad Co., supra; Pennsylvania Railroad Co. v. Canal Commissioners, 9 Harris 10 ; Currier v. Marietta & Cincinnati Railroad Co., 11 Ohio 228; Miami Coal Co. v. Wigton, 19 Ohio 560.
    Where a charter has for its main purpose the grant of a street to a corporation, which grant, is express, there can be no implied grant of another street not named: Commonwealth v. North East Railroad Co., supra; Stormfeltz v. Turnpike Co., 1 Harris 555.
    The right to take property for “ depot or other railroad purposes,” being a mere incident of the right to use the highway, there can be no implication of a right to use another highway not named, as accessary to this incidental right: Kitchen v. Shaw, 6 A. & E. 729.
    The right to take away the franchise of another corporation, must be by express words or necessary implication: Packer v. Sunbury & Erie Railroad Co., 7 Harris 211; Market Street Passenger Railway Co. v. Union Passenger Railway Co., 30 Leg. Int. 154; Ex parte Boston & Albany Railroad Company, 53 N. Y. 574; Inhabitants of Springfield v. Connecticut River Railroad Co., 4 Cush. 63; Little Miami & Xenia Railroad Co. v. City of Dayton, 23 Ohio 510.
    Without express authority, a railway company cannot cross another railway, even if they cannot reach the terminus expressly given them by law : Clarence Railway Co. v. Great North of England Junction Railway Co., 4 Q. B. 46.
    The words of the Act of 1873, authorizing the appellants to take “ ground and property,” are not apt words to grant the right to take a franchise. 'A franchise cannot be property near and convenient to a street. These are words of corporeal location and proximity, whereas, a franchise is ideal and incorporeal. Nor can a franchise be necessary for a depot, or other like railroad purposes.
    If the Act of 1873 gave the appellants the power to take the appellees’ franchise by the right of eminent domain, such right and power could not be exercised by the appellants, because its exercise was not necessary. ■ .
   Mr. Justice Gordon

delivered the opinion of tne court, March 1st 1880.

About the right of the Lombard and South Street Passenger Railway Company to have its tracks on Dock street there is no dispute. It had occupied this ground from the year 1863 by virtue of a charter granted to it by the legislature of this Commonwealth. As between itself and the Pennsylvania Railroad Company it had the prior right, and that company, the present appellant, can justify its conduct, in entering upon and removing the appellees’ tracks, only by the exhibition of a better right — some superior authority. Such right and authority it claims by virtue of the Act of March 12th 1873, Pamph. L. 253. Upon the construction of this act the result of this controversy depends. By the first section thereof, the Pennsylvania Railroad Company was authorized to'construct a double track railroad upon the easternmost thirty feet of Delaware avenue, in the city of Philadelphia, as relocated between Queen and Washington streets, and as widened between the north side of Dock street and Christian street, with such connections with its Delaware river extention and turnouts as may be necessary. This section gives this company no power to go beyond the line of Delaware avenue at the northern or Dock street end of its route, for there it had neither connections nor turnouts. Were this all the defendant had to show for its right to enter upon Dock street and the appellees’ franchise, the case would be a short one, for here is no warrant whatever for the assumption of such powers. But it is said that such authority is found, if not by direct grant yet by necessary implication, in the second section. That part of this section, which is material to the point under discussion, reads as follows : “And the said company is hereby further authoi’ized to take and hold, in fee-simple, such ground and property, near and convenient to said avenue or streets, as said company may deem necessary for depot and other railroad purposes.”

Now, it is said, as power is here given to take and hold ground and other property, near or convenient to said avenue or streets, for depot and other railroad purposes, it must necessarily have the right to use the adjacent street and intervening franchise in order to gain access to its depot or other property. This may be so, but this plea o-f necessity is so frequently used to cover infractions of both public and private rights that, prima facie, it is suspicious, and must be closely scrutinized, especially where it is used to carry corporate privileges beyond charter limits. This plea, in the first place, must be tested by the rule, now of universal acceptation, that all acts of incorporation, and acts extending corporate privileges, are to be construed most strongly against the companies setting them up, and that whatever is not unequivocally granted must be taken or withheld. This rule is to be held in all its rigor where the attempt is so to construe a corporate grant as to interfere with a previous grant of the same kind: Packer v. The Railroad Co., 7 Harris 211. It is true that a franchise is property, and, as such, may be taken by a corporation having the right of eminent domain, but in favor of such right there can be no implication unless it arises from a necessity so absolute that, without it, the grant itself will be defeated. It must, also, be a necessity that arises from the very nature of things-, over which the corporation has no control; it must not be a necessity created by the company itself for its own convenience or for the sake of economy. To permit a necessity, such as this, to be used as an excuse for the interference with, or extinction of, previously granted franchises would be to subject these important legislative grants to destruction on a mere pretence, in fact, at the will of the holder of the latest franchise.

Now, the appellant admits that it has entered upon, and, for its own uses and purposes, has destroyed part of the plaintiff s road, but it attempts to justify its action in that it was necessary for it so to do in order to reach its depot on Dock street. But the question recurs, how came it that this warehouse was placed in such a position that it became necessary to enter upon and cross Dock street in order to reach it? The answer is found in the testimony of Mr. Kneass, the assistant of the president of the railroad company. He says, the whole block, from Walnut to Dock, and from Delaware avenue to Water street, excepting some stores fronting on Dock street, at the corner of Water street and at the corner of Delaware avenue, was purchased for the use of a freight depot, and the offices necessarily connected therewith. But we learn from the evidence of Mr. Trautwine, whose ability as an engineer no one doubts, that .a practical entrance to this depot might be made either at the corner of Delaware avenue or at a short distance north of it. This, of course, would avoid any interference with the rights of the appellee, but the appellant did not purchase, or take, as it might have done, the property on the corner of Dock street and Delaware avenue, and so was obliged to enter upon, with its tracks, and cross Dock street in order to reach its warehouse. The reason why this property was not purchased or taken, is explained, by the witness first above mentioned, to have been that the necessities for that property were not imperative and the price therefor not satisfactory. He also says, further on, that the reason for not purchasing this property was one of economy merely. We thus discover that this necessity, by which the unlawful acts of this company, appellant, are sought to be excused is one of its own making — a matter af economy. It is cheaper to use Dock street, and the appellees’ franchise, than to buy the property above mentioned. A defence more weak, or one more barren of equity, could scarcely be imagined. Moreover, though a franchise may be property such as a corporation, vested with the power of eminent domain, may take for its own uses, a public street or highway is not such property. It is a public franchise and cannot be violated except by direct legislative grant: Commonwealth v. Erie and North East Railroad Co., 3 Casey 339; Cake v. Philadelphia and Erie Railroad Co., 6 Norris 307. But for the invasion of Dock street the appellant has shown no legislative grant; its structures upon that street are merely nuisances ; hence, it follows, that the plaintiffs’ tracks were protected from disturbance, if for no other reason, because they were upon ground dedicated to public use, and upon which the appellant had no right to enter.

The decree is affirmed, the appeal is dismissed, and the appellant ordered to pay the costs.

Mr, Justice Paxson

delivered the following dissenting opinion.

The decree of the court below, which this court affirms, is mandatory, and requires the appellant company to remove their railroad tracks from Dock street west of Delaware avenue. It further enjoins the appellants from constructing or maintaining their said railroad on or across the bed of complainants’ (appellees’) railway on Dock street.

So far as t'he use of Dock street is concerned the city of Philadelphia is the only party having a right to object. The city makes no objection, and this portion of the decree has nothing to support it.

The effect of the remainder of the decree is to deprive the Pennsylvania Railroad Company of the use and enjoyment of its large freight depot on Dock street, in the city of Philadelphia; that is to say, the company is enjoined from using its track connecting the depot with their road, and are commanded to take up and remove said track. As this depot is the place where an enormous traffic centres, and the improvement itself is one of vast importance to the commercial interests of the city of Philadelphia, wc naturally look to see what inexorable rule of law it is that so suddenly and so rudely disturbs the large business of the city. The right should be very clear, and the injury to the complainants both serious and irreparable to justify such a decree.

The appellants laid their track on Delaware avenue, and built their depot on Dock street, under the authority conferred by the Act of 12th March 1873 (Pamph. L. 253), entitled “An act to authorize the Pennsylvania Railroad Company to occupy certain portions of Delaware avenue, in the city of Philadelphia, for railroad purposes, and make connections therewith, and to acquire property near or convenient to the said avenue for depot and other railroad purposes,” it was enacted as follows :

“ Whereas, for the purpose of increasing the business facilities and commercial advantages of the city of Philadelphia, the said city has, by ordinances, authorized the widening of a portion of Delaware avenue to the width of eighty feet, and has by a resolution of its councils, authorized the, Pennsylvania Railroad Company to occupy the easternmost thirty feet thereof, as relocated .and widened, for railroad purposes. Now, therefore,
Sect. 1. “ Be it enacted, &c., That the Pennsylvania Railroad Company be, and is hereby authorized to construct a double-track railroad upon the easternmost thirty feet of Delaware avenue in the said city, as relocated, between Queen and Washington streets, and as widened between the north side of Dock street and said Christian street, with such connections with its Delaware river extension and turnouts as may be necessary.
Sect. 2. “ And the said company is hereby further authorized to purchase, take and hold in fee-simple, such ground and property near or convenient to the said avenue or streets as the said company deem necessary for depot and other railroad purposes.” The remainder of the section provides for the modes of assessing the damages for property taken where the parties cannot agree upon the price.

Here is a grant of express power, as clear as language can make it, to construct the road on Delaware avenue; to purchase or take “ ground and property near or convenient to the said avenue, as the said company may deem necessary for depot and other railroad purposes.” The power to erect a depot near or convenient to their road being expressly given, the power to connect said depot with their road follows by necessary implication, even were the right to do so not expressly recognised in both the preamble and body of the act. And it matters not whether the depot is upon Delaware avenue; it is within the act if it is near or convenient thereto. It follows, therefore, that the argument that the depot can only be entered by a track from. Delaware avenue is without support. The appellants had the right, under the Act of Assembly, to select such ground as in their judgment was suitable for a depot; they were not confined to a frontage on Delaware avenue, and they are.entitled to connect the depot with their road in a suitable manner.

I do not understand it to be denied that the appellants are entitled to connect their depot with their track; but it is alleged that in doing so they cannot occupy any portion of Dock street, nor cross the track of the Lombard and South Street Road.

I have already said that the city does not object to the use of Dock street, and the Lombard and South Street Road, not being owners of the street, have no standing to object. Their objection to the crossing of their track presents another question, upon which they are entitled to be heard.

It is alleged that the crossing of the track of the street railroad is a taking of the franchise of the company (appellee), and that the Act of 1873 does not authorize such taking.

A great deal of learning has been wasted upon this point. A franchise is an intangible thing. It can neither be seen nor handled. When, therefore, we speak of taking a franchise under the right of eminent domain, we mean the taking of the property of a corporation. The invisible, intangible thing is never taken, except as the exercise of its right may be affected by the taking of its property. The track of the Lombard and South Street road was “ property convenient to the said avenue,” within not only the meaning but the precise language of the Act of 1873, and it was as much the right of the appellants to take it, subject to the duty of compensation, as it was to take the property upon which the depot stands. That the property of a corporation may be taken for public use, with any other property, is settled by a host of authorities. Indeed, the principle is not denied.

It is said, however, that there must be a necessity for such taking. Granted. The right of eminent domain rests upon necessity and that alone. Beyond this there is no such right. And of this necessity the sovereignty taking the property must be the judge: Darlington v. The United States, 1 Norris 382. There is no distinction in this respect between individual and corporate property. The same necessity must exist in either case.

The appellants contend that it is necessary to cross Dock street and the Lombard and South Street track in order to enter their depot. The answer to this is that the necessity is self-imposed; that by taking a lot at the corner of Dock and Delaware avenue under the right of eminent domain, and tearing down the buildings, they could, by the use of a reverse curve, have entered one corner of their depot with their cars. Upon this proposition this whole case has been made to turn.

Were it not that this principio has been practically adopted by the court, I would find it difficult to treat it seriously. It amounts to just this, that there is no necessity of taking the property of A. because you might have taken the property of B. In other words, the appellants might have avoided crossing the tracks of the street-road, by taking the lot and pulling down the house at the corner of Dock street. But has the owner of that house and lot no rights ? He could with equal justice and far more reason allege that there was no necessity for taking Ids property. What is there about the track of this street-road that is so sacred that other property must ho taken that it may be preserved ? It is property, merely, and is equally liable as other property to be taken under the right of eminent domain. I will never agree to clothe corporate property with greater sanctity than that of the individual citizen. It must share the same burdens, be exposed to the same risks, and respond in the same manner to the calls of the state.

If, however, the appellants had taken the lot at the corner of Dock street and Delaware avenue, and had thus obtained an entrance to the depot, it would not have been such an entrance as they were entitled to. It would have been an entrance at a corner of the depot and upon a short curve, while every intelligent man knows that to make a large freight depot fully available, the track should be laid as near the middle as possible. Here it was stated by the witnesses and not denied, that a corner entrance would leave “too much space on one side and too little on the other for the convenient handling of freight.” I do not think the legislature which authorized this costly improvement, and the councils of the city of Philadelphia which sanctioned and invited it, intended that their grant should be belittled and defeated by depriving the appellants of the usual and proper terminal facilities. It was not intended to give a depot which could not be used with the usual advantages. As the decree stands, however, it is impossible to use the depot to any extent. Even by the purchase of the lot referred to, it cannot be entered from Delaware avenue. It must be entered from Dock street or not at all. This is not denied by the witnesses, and is apparent from the plan submitted' upon the argument.

How, what is the grievance of the passenger railway company ? It is merely that about eighty feet of their track is cut off at .the east end of their road, and that passengers to reach the horse ears from Delaware avenue must cross the road of the appellants, and that this would decrease their legitimate -traffic. There is no averment in the bill of any injury beyond this. There is no taking of the franchises of the passenger railway company beyond the crossing of its track at grade, nor any averment that the road cannot be operated precisely as before, and without inconvenience.

It is patent that the injury alleged is of the most trifling and inconsiderable character, and can easily be compensated in damages. On the other hand, we have not only the enormous pecuniary loss which the decree must entail upon the appellants, but also the serious interruption to the commercial business of a great city. The appellants have acted in entire good faith, and in my judgment are fully sustained by the provisions of the Act of Assembly. I do not think a chancellor should be on the alert to strike down, for light reasons, great interests, and thereby embarrass, to a great extent, the business of the country. But I do not wish to elaborate, nor have I time to do so. These observations, hastily penned, are filed as containing some of my objections to this judgment. I must also be allowed to express the fear that the clothing of the track of a horse-car railroad with such sanctity that it may not be crossed by a steam road may lead to possible difficulties in the future. Such crossings have been quite frequent in the past, and the tracks of most of the steam roads are crossed by the tracks of the street roads. It is certainly so as to the road of the appellants.


source: Caselaw Access Project

author: Mr. Justice Paxson

license: Public Domain

text:
    Manners versus Philadelphia Library Company.
    1. A demurrer does not admit tlio truth of an averment where the document referred to shows that it is not true.

      '2. A direction that the trustees of a public library shall not exclude any book because of its differing from the conventional notions on the subjects of theology, morals, medicine, &e., does not avoid the trust; it is a negative recommendation only.
    3. A direction to publish certain works which are averred to be atheistic &c., coupled with a gift to found and endow a library, does not avoid the gift; it is not a condition precedent, and if illegal, it will he disregarded.
    4. An averment of a refusal to accept a devise by trustees for a charity is immaterial, the bill showing that the time for them to accept or refuse has not, arrived.
    5. Where a charity is a residuary devisee of land, a purchase by the testator, within thirty days of the testator’s decease, though expressly in trust for that charity, passes to the charily as residuary devisee.
    6. Query. Whether the Act of 1855 sustains a devise for charitable uses against the heir, though the particular object is illegal.
    7. A demurrer does not admit evasive or uncertain averments.
    February 11th 1880.
    Before Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Sharswood, C. J., and Green, J., absent.
    Appeal from tbe Court of Common Pleas, No. 1, of Philadelphia county: Of July Term 1878, No. 7. In Equity.
    Robert Manners filed this bill in equity against Henry J. Williams and “ The Philadelphia Library Company,” contesting the validity of certain alleged trusts and alleged devises in papers, called tbe will and codicils of Hr. James Rush, deceased.
    Tbe bill was filed by an heir-at-law and next of kin of .Dr. James Rush, deceased, and asked that tbe title to the estate of tbe said James Rush be decreed to be in the complainant, as to bis share under tbe intestate laws; because, 1. The rule was uncertain and impossible of execution, and if possible, immoral and illegal. 2. Because tbe purchase of a certain lot for tbe library company, was void under the Act of 1855. 3. Because the codicil of 1867 was a
    revocation of the will and codicils of 1860 and 1866. There were some other reasons which are not deemed material. Copies of the testamentary papers were annexed to tbe bill.
    By his will dated in 1866, Dr. Rush devised the whole of his estate, after payment of debts, annuities and legacies to H. J. Williams, in trust, to select and purchase a lot and erect thereon a building, according to directions to be given by the testator; and upon its completion, to convey the same to the Library Company of Philadelphia, for tbe uses of their library. Proviso, that before conveyance, the library company should bind themselves to certain conditions not important to be here stated. And also, in trust, to assign the residue of the assets to the company, upon certain trusts as to administration, the surplus income to be applied to the increase and extension of the library.
    By the first codicil of 1866, he directed that certain rules for administration should be inserted in the Act of Assembly, which would be required to carry out the provisions, of the will. He then added a clause, which is set out in the judgment of the court, on which the charge of immorality turns. And also a clause, directing the devisee, on the refusal of the library company to accept or their failure to comply with the preliminary stipulations, to found and endow a library, with the estate devised to him; and added, that the annuities as they fall in, will be amply sufficient for the legitimate purposes of a library.
    He remarked, that he was compelled to make his will by separate instruments, lest by his declaration a month after a formal and harmonious testamentary disposition, it should be avoided.
    By a codicil of 1867, he directed, that the whole of his residuary estate should be expended on the purchase of the lot and erection of the building, leaving the library company only a sufficient income to defray ordinary and strictly appropriate expenses. He then directed that every ten years or oftener, editions of his works should be published exactly as he left them. And then declared the library company a trustee for the objects and purposes of his will; and gave certain visitorial powers to a commercial institution in this city and to all citizens.
    All these documents were admitted to probate in May 1869. The bill was filed in March 1878. It was on behalf of all the heirs-at-law of Dr. James Rush who would unite. It charged, that the execution of the trusts of the will would be contrary to sound morals and religion, and opposed to the policy of the law._ That the library company had declined to accept the trusts, and had no power to do so, and were incompetent. That the direction to found a library in the event of a refusal of the library company to accept, was impossible of execution, as there would be no income, as the whole estate was to be spent in the purchase of the lot and erection of the building; that this direction was a personal trust, and yet required perpetual discretion in management. That the clause (set out in the judgment) compelled the admission of books inculcating rebellion, treason, deism and polygamy (a long catalogue of improprieties), which would be subversive of religion.
    The bill then charged, that the codicil of 1867 was a revocation of the will of 1860, and of the codicil of 1866 ; and no disposition was made of the estate, on the failure of the library company to accept the same. It then charged a purchase by Doctor Rush( within a calendar month of his death, of a lot of ground, which was conveyed upon the charitable uses set forth in the alleged will and codicils. By amendments of the bill it was averred, that the surplus in the hands of the executor, H. J. Williams, after providing for the annuities and building, exceeded $100,000, and was undisposed of by the codicil of 1867.
    And there was a further amendment after the cause had been argued in the court below, averring that the works directed by Dr. Rush to be published every ten years contain infidel and atheistic sentiments, teachings and arguments, and deny the truths of the Christian religion and the existence of God, and- that the execution of said trust would be the propagation of infidel and atheistic doctrines and contrary to morals and law. Therefore the residue has become the property of the heirs-at-law.
    There was no averment that a building had been erected or a tender of conveyance made to the library, or anything from which it would be inferred that the time had arrived when the corporation could be compelled to elect whether to accept or reject the gift.
    Among the grounds of demurrer by the Library Company were these: 1. That by the Act of 1855 (cy pres clause), no right remained to the heirs. 2. The bill itself shows there is a fund which the testator says is sufficient to maintain the substituted library. 8. The clause, contrary to morality, is directory only and cannot be construed as compelling the purchase of an illegal publication, and no others can be objected to. 4. If parts of the scheme are impracticable or illegal, the rest will be executed as near to the instruction as possible. 5. The purchase within thirty days by the statute enures to the residuary devisee. 6. The codicil did not revoke the residuary devise to the library, and the omission of the trustee to expend the money cannot deprive the devisee of the benefit. 7. It does not appear that the time for the company to accept or reject has yet arrived. 8. The person on whom all discretionary power rests is still living.
    The executor also demurred because it was not shown how the Library Company had debarred themselves from accepting the devise, and if so, how the persons authorized to found a library in the event of a refusal to accept were barred from doing so, and because the Act of April 25th 1855, preserved the property for charitable uses if the devises are void.
    (The second amendment was made long after the argument in the court below, and is therefore unnoticed in the demurrer.)
    The court below sustained the demurrer.

      F. Carroll Brewster and Wm. A. Porter, for appellants.
    [They read extracts from what were asserted to be Dr. Rush’s works, to prove their allegations of immorality taught, and also referred to the circumstances connected with the purchase within thirty days of the testator’s death, from the report of a case which that gave rise to. -None of these facts were on the record, and as the cause was heard on demurrer, these statements are omitted.]

      Every fact averred is admitted. The codicil of 1867 disposing of the whole remainder, is a revocation of the previous disposition. The demurrer admits that the devisee has declined to accept, and there is no alternative provision for that event in the codicil. It also admits the averment of intestacy as to the surplus and accumulations. The scheme is impracticable, as a shell is provided but no means to fill it. The scheme of management is personal, and the whole will be impracticable at the death of Mr. Williams.
    None of these powers can be executed by a successor: Redf. on Wills, Pt. II., c. 3, sect. 14, p. 10; Ross v. Barclay, 6 Harris 179; Waters v. Margerum, 10 P. F. Smith 39.
    The directions as to the non exclusion of books are imperative,. not mere suggestions or wishes which need not be obeyed : Pennock’s Estate, 8 Harris 268; Second Reformed Presbyterian Church v. Disbrow, 2 P. F. Smith 219; Paisley’s Appeal, 20 Id. 153. As to the nature of the contents of his own works they are admitted on this record.
    The effect of this for evil cannot be exaggerated, and that such a trust is void has already been settled: Zeisweiss v. James, 13 P. E: Smith 465, which merely follows Updegraph v. Commonwealth, 11 S. & R. 394, followed by a series of cases terminating in Mohney v. Cook, 2 Casey 342. This was admitted in Vidal v. Girard, 2 How. 127, by Story, J; while we admit no one could have objected to the publications by Dr. Rush himself.
    The cypres doctrine has never been so far recognised here as to authorize a diversion of the fund from the particular objects: Theological Seminary v. Wall, 8 Wright 355. Th.e Act of 1855 does not aid this defect. As to the purchase, the averments ai’e admitted. It is a mere evasion of the statute to say that the charity is the residuary legatee, and therefore takes the property when the statute (April 26th 1855, § 11), prohibits the gift: McLean v. Wade, 5 Wright 266; Price v. Maxwell, 4 Casey 23; Miller v. Porter, 3 P. F. Smith 292; Schultz’s Appeal, 30 Id. 396 ; Hegarty’s Appeal, 25 Id. 503. It is a mere nullification of the law to let this bill stand dismissed and its sworn maintainers become its executioners.

      W. H. Rawle and R. C. McMurtrie, for the Library Company.
    [The executor had died and no one appeared for him, as in fact the property had been handed over by him pending this appeal and accepted by the Library Company.] There are two cardinal defects in the argument. 1. The factum of the will is not open to discussion in this court. It has no jurisdiction on that question, which is exclusively in the register’s court, subject, of course, to an appeal. And the' statute forbids the will as proved being questioned because of lapse of time: 1 Williams on Ex. 405, et seq., and 185; 1 Jarm. 159; Lemage v. Goodbau, 1 Prob. & Div. 57; In the Goods of Petchel, 3 Id. 153. Therefore the only question as to revocation is, whether the codicils revoke by construction or inconsistency. Then the position is, that a subsequent disposition, though ineffectual because it is incomprehensible, impossible or illegal, avoids a prior disposition because of inconsistency. Surely if a gift docs not take effect at all, it is impossible to be inconsistent with anything. 2. The assumption is, that tho purpose and object of the trust is to publish blasphemy, &c. If the allegations can be noticed at all, i. e., if they are well pleaded, which they are not, the argument ignores the distinction between primary objects and incidental directions. Granting the truth of all tho allegations, the trust is to found a library; incidentally tho testator wishes a certain class of books not to be excluded and others published. If this cannot bo permitted it is because such things are illegal, for there is no other standard of morality for a court. If illegal, the only question is, can the trust be executed without doing anything that is illegal ? This has been the uniform rule: Attorney-General v. Parsons, 8 Vesey 186; 4 Brown Ch. Rep. 412; 2 Kel. 34, pl. 24; Grimmett v. Grimmett, Ambler 210 ; Williams v. Williams, 4 Seld. 525 ; City v. Girard’s Heirs, 9 Wright 27-8 ; Dupre v. Thomson, 4 Barb. S. C. 279; Lorillard v. Coster, 5 Paige 227. This applies much more when as here there is a devise complete and the objectionable directions are found in a distinct instrument. If effectual they must be legal and binding. If so how can they render the gift void ? But it would be a singular spectacle that this court should declaro this trust void because the managers are enjoined to admit books which the library of every theological school must have to be competent for the education of the clergy. As to tho alleged purchase, tho Act of Assembly invoked vests such property in the residuary devisee, and the whole purpose of the act is gained, which is, that there shall be no gifts w'ithin thirty days to a stranger to the scheme of distribution, made more than thirty days before death. The want of funds to administer a library will certainly not avoid a gift to put up a building, but tho hill shows that this alleged insufficient income will be $12,000 per annum. The allegation of refusal, &c., is met by tho fact apparent on the record. The devisees are made a trustee, and are a corporation. The time has not arrived for them to determine to accept, for it is not alleged that a building has been erected and until then there can be no tender and no election. The fact is of course otherwise, but insisting on their allegations they must stand by them. As to the surplus and unexpended estate, the argument really is that the omission of the trustee to spend the money for the benefit of the library as ho was directed, works a forfeiture. Apply this to a direction to spend a legacy in building a residence for an infant daughter, and this assuredly becomes apparent.
   Mr. Justice Paxson

delivered the opinion of the court, March 1st 1880.

This was a hill in equity filed in the court below by Robert Manners, of London, one of the heirs-at-law of Dr. James Rush, deceased, against Henry J. Williams and The Library Company of Philadelphia. ■ Subsequently Elizabeth Murray Rush, a daughter of James Murray Rush, deceased, and a grand-niece of the said James Rush, upon application to the court below, was allowed to become a party plaintiff. The defendant Williams was the executor of the last will and testament of Dr. Rush, and the defendant corporation was the residuary legatee under his will, and the recipient of nearly the whole of his large estate. The object of the bill, briefly stated, was to recover from the defendants the residuary estate, and the court below was asked to declare that the provisions of the testator’s will in regard to the Philadelphia Library were impracticable and impossible of execution, or if capable of execution, that they were contrary to public policy and sound morals, and that the defendant Williams be declared a trustee for plaintiff. The defendants filed separate demurrers, upon which issue was joined. The demurrers were sustained, and the bill dismissed, with costs. It is the appeal from this decree we are now called upon to consider.

We need not dwell at length upon that part of the bill which charges that the provisions of the will are impossible of execution. The argument upon this branch of the case rests upon the fact that the testator, in and by the last codicil to his will, directed that the “whole remainder” of his estate should be expended '“in the purchase of a lot and the erection of the library building, construction of book-cases, &e., leaving the said company only an income sufficient to defray the ordinary and strictly appropriate expenses of such an institution.” It was urged that here was a direction for the consti-uction of a magnificent shell without any provision to purchase books; that to erect a building of the character indicated, and line its walls with shelves upon which no books could ever be placed, would not be creating a library, but, on the contrary, would defeat the very object the testator had in his mind, and would serve no useful purpose which a court of equity would be under a duty to enforce as against the heir-at-law. It is sufficient to say, by way of answer to this, that the allegation of want of funds to sustain the library is unfounded. The codicil relied on by the plaintiffs provides that the annuities, amounting to $10,400, shall be applied to the support of the library as they shall respectively fall in. In addition, this was the gift of a building to a library company already organized, which had been" in existence for many years, and, as we learn from the will of Dr. Rush, with funds and income of its own. The chief object of the testator was to enlarge the scope of a charity already in existence, not to found a new one. It cannot be seriously contended that the devise of a building to a library company for the safe keeping and convenient use of its books is void or incapable of execution, because unaccompanied with the bequest of a fund to purchase books, pay the taxes, or provide for any of the other expenses of such institutions.

The entire weight of the able arguments on behalf of the plaintiffs was brought to bear upon the single point, that to carry out the provisions of the will of Dr. Rush would be contrary to every principle of good morals and religion, and against the policy of the law; the amended bill expressly charging “that the works directed by the said Dr. James Rush to be published every ten years, and earlier and oftener if called for, in the paper writing dated April 18th 1867 (last codicil), contain infidel and atheistical sentiments, teachings and arguments, and that said works deny the truths of the Christian religion, and of revelation, and the existence of a God; and the plaintiff charges that the effect of carrying out and executing said trust would be the propagation of infidel and atheistical doctrines, and would be contrary to good morals and to law.” The amendment containing the. foregoing grave averments was filed in the court below after the case had been argued and the day before it was decided. The defendants contend that it was filed irregularly, and' ought not to be considered here. Yet it comes up regularly, no motion has been made here or in the court below to purge the record, and for the purposes of this case we shall consider it as before us, without, however, deciding any question of its regularity. The only other matter relied on by the plaintiffs to sustain their position is the fifth section of the first codicil of the testator’s will, which is as follows:

“ I do not w.ish that any work should be excluded from the library on account of its difference from the ordinary or conventional opinions on the subjects of science, government, theology, morals or medicine, provided it contains neither ribaldry nor indecency.”

Following immediately after, in the same section of the same codicil, the testator adds, evidently in explanation and vindication of the above, the following : — -

“ Temperate, sincere and intelligent inquiry and discussion are only to be dreaded by the advocates of error. The truth need not fear them, nor do I wish the Ridgway Branch of the Philadelphia Library to be encumbered with the ephemeral biographies, novels and works of fiction or amusement, newspapers or periodicals, which form so large a part of the current literature of the day. The great object of a public library is to bring within the reach of the reader and student works which private collections do not and cannot contain, and which in no other way could be accessible to the public. Its excellence will depend, not upon the number of its volumes, but upon their intrinsic value; and I wish this principle to be carried out by the managers, who, I hope, will never be influenced by the too common ambition for mere numerical superiority.”

The plaintiffs contend that the will and codicils of Dr. Rush contain a foundation for atheism and infidelity ; that the law while tolerating the freest discussion, will never lend its hand for the protection and support of immorality; that in a land where religion and sound morals are recognised as the foundation-stones of government, no trust' can exist for the protection of that which destroys the state. «

Ño fault is found with this statement of the law. It may be regarded as settled in Pennsylvania, that a court of equity will not enforce a trust where its object is the propagation of atheism, infidelity, immorality or hostility to the existing form of government. A man may do many things while living which the law will not do for him after he is dead. He may deny the existence of a God, and employ his fortune in the dissemination of infidel views, but should he leave his fortune in trust for such purposes, the law will strike down the trust as contra bonos mores. We need not elaborate this question nor extend the illustrations. The whole subject is thoroughly discussed in a number of cases which fully sustain the principle above stated. See Updegraph v. The Commonwealth, 11 S. & R. 394; Vidal v. Girard’s Executors, 2 Howard 127; Zeisweiss v. James, 13 P. F. Smith 465. In the case last cited, the testator devised all his property to his grand-nieces for their lives and the life of the survivors, remainder to “ The Infidel Society in Philadelphia, hereafter to be incorporated for the purpose of building a hall for the free discussion of religion, politics,” &e. This court said, referring to the trust for the infidel society : “It is plain that no court would ever undertake to administer such a charity.”

This brings us to the examination of the grounds upon which it is alleged that the trusts of Dr. Rush’s will are not fit to be enforced in a state where good order and sound morals prevail, and where Christianity is the popular and recognised religion.

Much stress is laid upon the expression by the testator in the first codicil, of the wish that no work should be excluded from the library on account of its difference from the ordinary or conventional opinions on the subject of science, government, theology, morals or medicine. This language is construed by the plaintiffs as a direction or command that every work shall be included, however much it may be at variance in its teachings or doctrines from the ordinary or conventional opinions on the subject referred to, provided it contains neither ribaldy nor indecency. That is to say, all works ■ advocating atheism, infidelity and immorality generally shall be included; and that no discretion is left to the executor undef the will to exclude such books. While the words “ I wish” in a will are sometimes construed as a command and not as merely precatory, we do not so regard them here. The testator evidently intended to express a preference merely, and however binding the executor might regard it in foro consoientice, it would not be held to be binding upon him legally.

We must examine this clause of the will from the testator’s standpoint, so far as that is possible, in order to ascertain his meaning in the paragraph in question. lie was an educated man, of scholarly habits, and of no mean scientific attainments. The ample fortune which he enjoyed gave him the opportunities of indulging his tastes fully. He says in his will: “ My property has enabled me to devote, happily and undisturbed, the latter part of my life to pursuits of scientific inquiry, which I have deemed to be more beneficial than the mere common enjoyment of an ample fortune.” In his researches in the paths of science, even in the line of his own profession, it is not unlikely he fully realized that the conventional opinions of yesterday may not be those of to-day, and are not likely to be those of to-morrow. He possibly remembered that when he commenced the practice of medicine, a patient burning with fever was not allowed a breath of fresh air or a drink of cold water; that bleeding was. resorted to in almost every disease ; that the introduction of anaesthetics was by some regarded as impious and unscriptural, and an attempt on the part of females to defy the primeval course ; that before his day, Harvey’s theory of the circulation of the blood was treated with derision and cost that eminent physician a large portion of his practice, and that Tenner’s discovery of vaccination was denounced by his own profession as empirical, and by the clergy as wicked. And outside of his own profession, in science, government, theology and morals, he would have seen substantially the same thing; one discovery treading quickly upon the heels of another; one conventional opinion after another giving way before the spread of learning and the advance of science. From his own experience in his various researches the testator probably realized the importance and value to educated men of a public library which should place within their reach such books as are not readily accessible. With a desire to promote temperate, sincere and intelligent inquiry and discussion, he imposes no restriction upon the character of the books except that they shall not contain either ribaldry or indecency. He would make his library a place where the student, whether of science, government or theology, could find the information for which he longed. Ilis recommendation in regard to books was negative merely. Beyond his own writings, which will be noticed hereafter, he directed no book to be placed upon the shelves. This is as true in regard to theology as to any of the other subjects mentioned. It can hardly be said that the interests of Christianity and sound morality require that the student of theology shall be debarred access to all books that may be regarded as objectionable from am orthodox standpoint. He is best armed to defend Christianity who is familiar with arguments against it. To enforce such a rule would exclude from this library a vast amount of the choice literature of the past; the works of authors who merely wrote according to the light of their day and generation. We may now safely enjoy all that is good of their' writings. The -world has outgrown their errors.

The amendment to the bill presents, a different question. It is there distinctly charged that the works of Dr. Rush, which by his will he directs to be published every ten years, contain atheistical and infidel sentiments, and deny the truths of the Christian religion, of revelation, and the existence of a God. As this averment comes up upon the record, and stands unchallenged, we must assume it to be true. The works of Dr. Rush are not before us, and we state merely the legal effect of the pleadings. We have already seen that no trust can be sustained in Pennsylvania for the propagation of such sentiments. Hence, if the primary object of the trusts of the will is to disseminate infidel views, or to attack the popular religion of the country, it would be the duty of a court of equity to declare such trusts to be against public policy and therefore void. But the devise in his will is to a public library; to extend the uesefulness of one already in existence if his devise is accepted, or to found a new one if his munificent gift is declined. This is an object which the law favors, and a trust which equity will administer. It was recently held by this court that the Philadelphia Library was a public charity, and its property, the very building in question, free from taxation for that reason: Donohugh v. Library Company, 5 Norris 306. The devise to the library being for a lawful purpose, and having vested, and the primary intent of the testator being to assist what this court has declared to be a “ purely public charity,” is the intent of the testator to be defeated, and the trust set aside because one of the directions or conditions of the bequest as to a secondary intent may happen to be illegal ? The answer to this question is not difficult. It is at least doubtful since the passage of the Act of 26th of April 1855, Pamph. L. 331, whether the heir-at-law has any standing in court upon a bill to set aside the trusts of a will. Conceding, however, that said act does not apply to this case, the authorities are clear that the law will strike down the unlawful direction and leave the primary intent untouched. To this extent the.doctrine of cy pres is part of the law of Pennsylvania. We need not load this opinion with an extended citation of authorities. The subject is fully discussed and the authorities collected in the recent case of City of Philadelphia v. Girard’s Heirs, 9 Wright 9. The principle is there stated that “it is a rule of law and equity that where a vested estate is distinctly given, and there are annexed to it conditions, limitations, powers, trusts (including trusts for accumulation) or other restraints relative to its use, management or disposal, that are not allowed by law. It is these restraints, and the estates limited on them that are void, and not the principal or vested estate.” The clause in Dr. Rush’s will regarding the character of the works to be placed in the library, and the provision in the codicil for the publication of his own works are not conditions precedent to the vesting of the estate. If they are unlawful they will be disregarded. If the fact be that the testator’s works are of the character alleged in the bill it is not likely the defendants will ever publish them. No court would compel them to do so.

The averment in the sixth paragraph in the bill, that the library company have not finally accepted the devises contained in the will and codicils, and have declined to accept the same upon the trusts and conditions therein contained, does not help the plaintiffs. The bill does not allege, that the time has yet arrived for the defendant company, to elect or refuse the trusts referred to; while it is expressly provided in the will, that in case of such refusal, the estate shall be held by the executor in trust “to found and endow a public library, entirely distinct from and independent of the Philadelphia Library, to be named and called the Ridgway Library, under the rules, regulations, conditions and stipulations in my said last will, and the codicils thereto expressed and contained.”

The twelfth paragraph of the bill avers, “ That within one calendar month prior to his decease, the said Dr. James Rush, purchased a lot of ground, situate on the southeast corner of Broad and Christian streets, in the city of Philadelphia, which said lot was purchased by him, and was subsequently conveyed for a charitable use, as set forth in the trusts and conditions contained in the aforesaid writings, alleged to be his last will and codicils.”

It was further averred, that said transaction is void, by reason of the purchase for the use of said charity having been made within one calendar month of the decease of the said testator, contrary to the provisions of the Act of Assembly of the Commonwealth of Pennsylvania, entitled, “ An act relating to corporations and estates, held for corporate, religious and charitable uses,” approved 26th April 1855. It was urged, that as the facts are admitted by the demurrer, upon this point at least, the plaintiffs are entitled to a decision in their favor. It is true that a demurrer admits all the facts well and sufficiently pleaded. It requires but a glance at this section of the bill, however, to see that it is evasive and uncertain. There is no statement how the lot was so purchased and conveyed ; nor whether it was convoyed by the testator or to the testator; nor when, by whom, or in what manner it was conveyed for a charitab.le use. The Act of Assembly is in derogation óf the common-law right of conveyance, and the averments of the bill must be so distinct and clear, as to bring the case within the terms of the law. Instead of these defects being cured by the demurrer, the law has always been, that upon special demurrer, such defects are fatal. One of the principal rules laid down by Stephen in his Treatise on Pleading, at page 878, is the following: “Pleadings must not be ambiguous or doubtful in meaning; apd when two different meanings present themselves, that construction shall be adopted which is most unfavorable to the party pleading.” To the same point is the third of Bacon’s maxims: “You shall find, that in all .imperfections of pleadings, whether it be in ambiguity of words' and double intendments, or want of certainty and averments, or impropriety of words, or repugnance and absurdity of words: ever the plea shall be strictly and strongly taken against him that pleads.” And Evans in his work on Pleading, referring to the above rule laid down by Stephen, says at page 188 : “ This rule, which is applied by our law to all writings whatever, has its origin in the just and obvious policy of discouraging a crafty ambiguity. Its application is more rigorous in some cases than in others. Rigor is more or less proper as the probability of a designed ambiguity is greater, and that of ignorance less. In pleadings which are, or ought to be drawn with great care, by men thoroughly acquainted with the effect of language, a case proper for the utmost rigor is presented.” A host of authorities are cited by Stephen in support of his text. We need not refer to them, as the rule is well settled.

Aside from the defective averments in the bill, it is manifest, from an examination of Dr. Rush’s will, that the provision for the endowment of this library was written years before his death, and that the purchase of the lot in question was but an investment, or a change of investment, and has no more significance for the purposes of this case than if he had invested a corresponding amount in city loan or other securities. It hasmever been held that where a testator devised the bulk of his fortune to a charity that a change of investment made within one calendar month prior to his death, avoided the prior, devise or trusts of his will. Such a rule would seriously embarrass the management of his property by a testator and serve no useful purpose. In Schultz’s Appeal, 30 P. F. Smith 396, the testator devised his estate unconditionally to an individual with the intent to evade the statute, and it was held that the devisee not being a party to the fraud, the estate vested in him, and the case was not within the statute, though he designed to carry out the testator’s verbal directions, “ the bequest was not within the words of the statute.”

We need not pursue the subject further, nor discuss the minor questions involved. With the failure to establish the main proposir tion, that the trust fails by reason of the objectionable character of Dr. Rush’s works, the superstructure of this bill crumbles.

The decree is affirmed and the appeal dismissed at the costs of the appellants.


author: Per Curiam. Per Curiam. Per Curiam.

text:
    Littleton’s Appeal. Neill’s Appeal.
    1. O., a widow, died in 1859, leaving three minor children and possessed of certain real and personal property. In her will she bequeathed certain legacies and annuities, and appointed. II. her executor and trustee. In 1863 II., as “ executor and trustee,” petitioned the Orphans’ Court, alleging that the personal estate was insufficient to pay the legacies and annuities, and that they were claimed to be a charge on the real estate. The court issued citations and a number of parties interested filed answers. No answer was filed for the minor children, but an appearance was entered of record by the counsel of their guardian, which counsel also argued the question for some of the annuitants. A decree was made in accordance with the petition, and the real and personal estate of the decedent in charge of the guardian was transferred to II., the executor. H. paid the legacies and annuities in full, the taxes, and also the income tax, out of the funds in his hands. When the eldest child attained her majority II. filed his account and the children of decedent excepted to all credits for expenses in the Orphans’ Court proceedings in 1863, on the ground that the court had no jurisdiction, and to the payments on account of income tax Held, that the court had jurisdiction, as making the executor a party did not avoid the proceeding for want of jurisdiction if the legatees were in point of fact parties. Held, further, that the income tax was properly paid by the executor and trustee.
    2. A petition for a bill of review was filed after the eldest minor attained her majority in 1876, by said minor and the guardian of the others. Held, that the bill was too late in point of time.
    3. Pisr Curiam. — With reference to bills of review courts of equity govern themselves by the analogy of the law in regard to writs of error. Perhaps in this state it would be wise to follow the rule established by the legislature as to review of final decrees confirming the original or supplementary account of any executor, administrator or guardian by the Act of October 13 th 1840, which is five years.
    January 27th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Appeals from the Orphans’ Court of Philadelphia county: Of January Term 1878, Nos. 199 and 200.
    Appeal of William E. Littleton, guardian of Walter and Herbert Oox, minors, and of R. R. Neill and Mary C. his wife, in right of said wife, from the decree of the court dismissing exceptions to and confirming tho adjudication of the account of Charles Ilewson, executor of the estate of Mary R. Cox, deceased.
    Appeal of R. R. Neill and Mary C. his wife, in right of said wife, and of William E. Littleton, guardian of Walter and Herbert Oox, minors, from the decree of the court dismissing the petition for a bill of review of the proceedings in the estate of Mary R. Cox, deceased.
    It appeared that Mary R. Cox, the widow of Hewson Cox, died October 16th 1859. She had a separate estate derived solely from the estate .of her father in which she had only a life interest. She owned certain other property derived from her aunt Mrs. Ricketts. This property consisted of both real and personal estate. She left surviving her three minor children. James Markoe was appointed their guardian. He survived until the summer of 1876, when he died; whereupon William E. Little-ton was appointed guardian of the estate of two of the minors, Walter and Herbert Cox, their sister Mary, now Mrs. Neill, having attained her majority.
    On the 15th day of October 1859, the day previous to 'her death, decedent executed her last will and testament, with a codicil attached bearing the same date. Both were duly proved, and letters testamentary were granted to the executor, the present accountant, on November 7th 1859.
    By her will the decedent left certain legacies and annuities, and provided “ the annuities in all instances to cease at the death of the annuitants, and to revert to my estate and be equally divided between my children, the issue,” &c. The will appointed Charles Hewson her executor and trustee, and a codicil provided “in case my above-named executor and trustee, Charles Hewson, shall find that the sum left me by Mrs. Ricketts shall not be sufficient to cover the annuities and legacies above named, then shall a deduction be made, pro rata, in all the sums mentioned, with the exception of those left to Mrs. Emlen, Rosalie, and Medora Cox, - to Mrs. Chapman, and to Dr. Addinell Hewson.”
    On October 25th 1863, Charles Hewson, as “ executor and trustee” under the will of Mary R. Cox, presented his petition to the Orphans’ Court, alleging that the personal property of the decedent’s estate was insufficient to pay the legacies and annuities; that said legacies and annuities were claimed to be a charge on the real estate thereof and praying that citations might issue. A number of parties interested filed answers, but it did not appear that any was filed on behalf of the minor children of Mrs. Cox, although the docket entries which were put in evidence at the audit showed the. following entry on the margin: “Gr. M. Wharton, attorney for James Markoe, guardian of Cox’s minors et al.” The proceeding appeared to have been amicable, although there was evidence that the question had been argued adversely on behalf of the minors by the same counsel who represented some of the legatees and annuitants. The matter was proceeded in to final decree on October 31st 1863, whereby the legacies and annuities were adjudged to be payable out of and chargeable upon the above estate, real and personal, and Mr. Markoe, the guardian of the minor children, was directed to pay over to Mr. Hewson, the executor, all the real and personal property of Mrs. Cox, the decedent, in his possession or control. No one took an appeal from this decree, and it was carried into effect, and Charles Hewson then assumed control of all the property of the decedent and her control therein. He paid the legacies and annuities in full, paid the taxes, including the income tax, and all the expenses, and accumulated a surplus. Upon Mrs. Neill attaining her majority he filed his first account, and at the audit thereof the children of Mrs. Cox objected to all credits for expenses in the Orphans’ Court in 1863, and for counsel fees in the proceedings therein; to commissions charged on the real estate or its income; to the payment of legacies or annuities out of the real estate or its income, and to all payments of income tax.
    Th'e exceptions to the adjudication were dismissed and the adjudication confirmed, when this appeal was taken by Littleton, guardian, alleging that the court erred in their action.
    On the 30th of December 1876, a petition was filed by R. R. Neill and his wife, in right of said wife, and by Littleton, guardian of the minor children of Mrs. Cox, praying for a hill of review of the proceedings in said estate, and that the court would make a decree that said legacies and annuities were not a charge upon the real estate. Citations issued, pleas were filed and demurrers, and the court sustained the latter and dismissed the petition on the ground that it was too late. From this decree the second appeal was taken.

      W. Wynne Wistar and E. Coppee Mitchell, for appellants.—
    The authority of the Orphans’ Court to afford relief by way of a bill of review has been exercised since its earliest foundation: Briggs’s Appeal, 5 Watts 91. A review will be allowed, even after twenty years, in favor of persons under disabilities : Kay v. Watson, 17 Ohio 27; Lytton v. Lytton, 4 Id. 458.
    The present hill is founded on an error in law, apparent on the face of the record, and is therefore not only clearly within the power of the court to allow, but appeals peculiarly to the exercise of such jurisdiction : Fitton v. Macclesfield, 1 Vern. 292 ; James v. Fish, 9 S. & M. 144; Daniels Ch. Pr. 1576. At the time the decree, sought to be reviewed, was entered, all the parties whose interests were to he affected were minors, the proceedings themselves were amicable, which in the case of infants, is sufficient of itself to induce a court of chancery to be especially careful. The legal guardian of the minor’s interests perhaps was not hound to appeal, and therefore allowed the time for such a course to expire, and it would be a case of extreme hardship if on the attainment of majority by the infants, and when for the first time, the knowledge of the proceedings was brought to their notice, and the magnitude of their interests affected shown, there should be no redress permitted, on the simple ground that too long a time had elapsed. The lapse of time was no ground for refusing the prayer of the bill; for it is never allowed to affect the rights of an infant, or of a person under disabilities: Briggs’s Appeal, supra; Whelen’s Appeal, 20 P. F. Smith 401; Steward’s Appeal, 85 Leg. Int. 60.
    It is the duty of the executors, or their substitutes, to discharge legacies so far as funds come to their hands. For deficiencies the legatees must proceed themselves against those whose land is charged. We know of no law authorizing executors to attend to this duty: Field’s Appeal, 12 Casey 11.
    The income tax was in the nature of a direct tax, and was laid upon the income of every person receiving and enjoying an income, and to throw this burden upon those who do not receive or enjoy the income, for the relief of those who do, would appear to contravene both the words and object of the act. The payment is to be made by the persons whose income was taxed, not by those in whose care it might be found. How, then, under any pretext, can the custodian charge the tax assessed on the share of the estate belonging to A. on the share belonging to B.

      Pancoast and Chapman Piddle, for appellees.
    In 1863 the appellants were represented by a guardian and are concluded by the decree in that proceeding.
    A bill of review, for errors apparent on the face of the record, will not lie after the time when a writ of error could be brought, for courts of equity govern themselves in this particular, by the analogy of the common law in regard to writs of error: Story’s Eq. Pl., sec. 410, and cases cited in note 7 thereto; Dan. Ch. 1580, note 1, 4th Am. ed.; Kelly v. Lennon, 1 Jones and Latouche 305; George’s Appeal, 2 Jones 262; Baggs’s Appeal, 7 Wright 514. The Statute of Limitations is applied with the same effect in a court of equity as in a court of law; Hamilton v. Hamilton, 6 Harris 20 ; Bank v. Biddle, 2 Pars. 31; Randall v. Ely, 3 Brewst. 270; Todd’s Appeal, 12 Harris 429; Waterman v. Brown, 7 Casey 161. The rules in chancery as to the cases in which a bill of review can be brought have been decided as applicable to petitions of review in the Orphans’ Court: Riddle’s Estate, 7 Harris 433; Hartman’s Appeal, 12 Casey 70; Pennepacker’s Appeal, 1 Leg. Gaz. Rep. 485.
    The petition in this case was presented by one who while an executor was also a trustee, and the persons who were beneficially interested were thus parties to the proceedings.
   The judgments of the Supreme Court were entered February 24th 1879,

Per Curiam.

(Opinion in Littleton’s Appeal.) It is very true that it was held by this court, in Field’s Appeal, 12 Casey 11, that the proceeding in the Orphans’ Court, against lands charged with legacies, must be by the legatees themselves, and that executors are not proper parties. Yet evidently making the executor a party does not avoid the proceeding for want of jurisdiction if the legatees are in point of fact parties. The court has general jurisdiction of the subject-matter, and any error of the court in the proceeding does not make void the decree. From the will and codicil of Mrs. Cox, Charles Hewson was not only executor but also trustee, to receive and hold the property which was to constitute the fund from which not only the legacies but the annuities were to be paid, and he was therefore a proper party to 'institute the proceedings. We think, then, the decree of the Orphans’ Court was conclusive. The minor children of Mrs. Cox, these appellants, appeared by guardian, and submitted to the decision of the court. This dispenses with the necessity of considering whether' the annuities were by the will of Mrs. Cox charged on her real estate. The bill of review was not filed in time. We think it clear that the income tax was properly charged on and paid by the trustee, and was not a charge against the annuitants, and that the court were perfectly right in decreeing that the trustee was entitled to hold the estate for the payment of the annuities. The proper mode of proceeding to ascertain whether the balance in his hands is more than sufficient would seem to be under the Act of February 23d 1853, Pamph. L. 98.

Decree affirmed, and appeal dismissed at the costs of the appellants.

Per Curiam.

(Opinion in Neill’s Appeal.) We have decided in Littleton’s Appeal the question of the jurisdiction of the Orphans’ Court in the proceedings of 1863, and came to the conclusion that the decree in that proceeding was a valid and binding adjudication of the main point in controversy in this case. The bill of review was too late in point of time. It is stated in Story’s Eq. Pl. 410, that such a bill will not lie after the time when a writ of error could bo brought to a judgment, for courts of equity govern themselves by the analogy of the law in regard to writs of error, and he cites numerous authorities. In New York it is held that a bill of review cannot be brought after the time allowed for an appeal: Boyd v. Vanderkemp, 1 Barb. Ch. R. 273. Perhaps in this state it would be wise to follow the rule established by the legislature as to reviews of final decrees confirming the original or supplementary account of any executor, administrator, or guardian, by the Act of October 13th 1840, sect. 1, Pamph. L. 1841, pl. 1, which is five years. This, however, would only be by analogy, for it is clear that the Act of 1840 is not directly applicable. Yet in George’s Appeal, 2 Jones 262, Mr. Justice Bell says, “should it become necessary with us to fix the time within which a review may be granted, the period will probably be much abridged by reference to our Act of 1791, prohibiting writs of error after seven years,” (now reduced to two years by Act of April 1st 1874, Pamph. L. 50,) or it may be the Ac± of 1840, just mentioned.

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

On motion a re-argument was ordered in both of these appeals, and they were re-argued on February 13th 1880, before Sharswoo.d, O. J., Mercur, Gordon, Paxson, Trunkey and Stbrrett, JJ. Green, J., absent.

On the 1st day of March 1880, the judgment of the Supreme Court was again entered as follows :

Per Curiam.

After a full consideration on re-argument, we see no reason to change the opinions filed heretofore in these cases.

Decrees affirmed, and appeals dismissed at the costs of the appellants.