Plymouth Township v. Chestnut Hill & Norristown Railway

Opinion by Mr. Justice Mitchell, This case is so clearly within the principle of Allegheny v. Millville etc. Ry. Co., 159 Pa. 411, that it would be sufficient to reverse it with a reference to that decison, in which it was held that the consent of the local authorities is a prerequisite-to the construction of a passenger railway, and that if such consent is given upon conditions, the railway company must-take it subject thereto or not at all. [187] As said in that case the right to consent or refuse is “ a gift directly from the constitution to the local bodies, and needs no help, nor permits any interference from the legislature.” The learned court below overlooked this constitutional character of the local authority, when it held that a condition to the consent, that the railway should be constructed within less time than that allowed by the statute, would be void. If there were the conflict between the conditions of the consent and the statute that the learned judge supposed, the statute, not the consent, would have to give way. How far the legislature may regulate the time or mode of indicating consent or refusal we need not consider, for the legislature has not undertaken to do so. The act of May 14, 1889, sec. 16, P. L. 217, provides that any company proposing to construct a street railway under the privleges of this act, shall in good faith commence within one year after the consent of the proper local authorities, and shall complete it within two years, unless the time shall be extended by the authorities aforesaid. This is not a privilege but a limitation on the privileges or franchise otherwise granted. It is a legislative declaration, as a condition of the grant, that the franchise shall be put in operation within the prescribed time, and not held dormant to stand in the way of the actual attainment by the public, of the benefits to them which are the consideration for the public grant. This limitation being in the fundumental law of the corporation would of itself make the charter liable to forfeiture on failure to comply, and the legislature recognizing that the general rule might be too short for special cases, expressly authorized the local authorities to extend the time. The opposite contingency, that the general rule might be too long for the circumstances or public convenience in other cases did not need to be provided for, because there was no danger in that direction from the fundamental law of the corporation, and the whole subject could safely be left to the control of the local authorities. There is nothing in the statute to indicate that the limitation in the present case to fourteen months was contrary to the legislative intent. The statute does not say “ we give you two years whether the local authorities think that too much or not,” but “ we will not give you more than two years unless the local authorities extend the time.” For the latter to curtail the time is not only within [188] their privilege in consenting, but is in the same line of general policy indicated by the statute itself, that the franchise when granted shall be put into prompt operation. It is strenuously argued that even if the limitation of fourteen months was valid as a part of the consent, it was at most a condition subsequent and there was no express stipulation for a forfeiture. But the question here is not of forfeiture, but of consent, and a consent revoked in accordance with the terms on which it was originally granted, is the same as none at all. The time limit was an express stipulation of the contract, and one of the conditions on which the consent was given. Time was plainly meant to be of the essence of the contract, to protect the public in their right to the prompt enjoyment of the benefits accruing to them from the franchise. There was no measure of damages for delay and the only way that the public rights could be' adequately enforced was by making the time essential. It is said that the township had ample protection in the provisions of the act of 1889, and if the road was not built in two years, the commonwealth would no doubt afford relief. But the township was not bound to wait two years, as already shown, nor was it bound to depend for enforcement of its rights on the favor of the commonwealth. It had the matter in its own hands, by the requirement of its consent, and it protected its rights by giving its consent on condition. When a breach of the condition occurred the consent became revocable, and was revoked. Thereafter it was as if it had never been given. We find no difficulty about the jurisdiction in equity, nor about the necessary parties. There is no question here of forfeiture of the charter or the franchises of the company. If the revocation of the township’s consent does as a practical result prevent the exercise of the franchise and render the charter ineffective, that is nevertheless in law only a collateral incident, and is no more than a refusal of consent would have done in the first place. If the appellee had undertaken to build without any consent at all, it would have been an act without authority, and for which there was no adequate measure of damages at law. Such acts equity always enjoins: Groff’s Appeal, 128 Pa. 621. Here the question is legally the same: is the appellee now undertaking to build without consent, because the consent given was conditional and has been revoked for breach of the [189] condition? The facts found by the learned court below leave no doubt that the answer to this question must be in the affirmative. Much of the appellee’s argument was devoted to the question of good faith on its part, and the hardship of a revocation of consent under the circumstances causing the delay. Those matters are for the township authorities, not for us. Decree reversed, bill reinstated, and injunction directed to be awarded as prayed, and made perpetual. Costs to be paid by appellee.