Philadelphia, Wilmington & Baltimore Railroad v. Conway

Mr. Justice Paxson delivered the opinion of the court May 3d, 1886. The plaintiff in error complains in his first specification of the joinder of the minor children with their mother as plaintiffs in the action. No objection was made in the court below; the defendant went to trial upon the issue as there made up. [517] The objection is purely technical. It did not affect the trial below nor its results. This point was ruled in the case of the Borough of Easton v. Reinhart, 13 W. N. C, 389, and need not be further discussed. The second specification of error was that “the court below erred in entering a judgment in excess of $5,000, inasmuch as said defendant corporation has accepted the provisions of an Act approved. April 4th, 1868,” &e. This was intended to raise an interesting question, viz., whether a charter is repealed by the new constitution without legislation providing for such repeal. This is a new question, excepting in so far as it was considered in Hays v. Com., 82 Penn. St. Rep., 518, and Langdon v. Penn. Railroad Company, 92 Id., 21. We decline to discuss it now, however, for the reason that the question is not properly upon the record. It was not proved upon the trial below that the defendant company had accepted the provisions of. the Act of 1868. It is true the paper book contains a copy of what purports' to be resolutions of the company accepting said Act, but the resolutions were not put in evidence and no such point was made upon the trial. That it was brought to the attention of the court upon the argument for a new trial does not help the matter, and even this does not appear properly, as the opinion of the court upon that motion is no part of the record. It may not be out of place just here to correct a misapprehension of the learned judge below in regard to Railroad Co. v. Langdon, supra. That case has not been overruled as he supposes. Some of the reasoning by which it was supported is not sustained by the late case of Lewis v. Hollohan, 103 Penn. St. Rep., 425, and as my brethren are wiser than myself I cheerfully submit to their views. Moreover, if when the main question comes up again, Railroad Company v. Langdon shall be found to be a mistake, it will afford me pleasure to join in overruling it. But the question has not been here since, until the attempt to raise it in the present case. It is therefore premature to assume that Railroad Company v. Langdon has been overruled. This court has not yet said that the new constitution ipso facto repealed charters. Judgment affirmed».