#### Zimmerman *et al. versus*Perkiomen and Reading Turnpike Company.

1. By act of 1810 the Perkiomen, etc., Turnpike Company were authorized to construct a turnpike, and were prohibited from erecting a toll-gate within a mile of Perkiomen Bridge'; this prohibition was repealed by act of 1867, and this again repealed by act of 1868. *Held,*that the company could not erect the gate.

2. Both acts being after the amendment of 1857 to the constitution, were subject to its provisions giving the legislature the right to alter, revoke, or amend any charter thereafter conferred, if in their opinion it should be injurious to the citizens.

3. The act of 1867, if in the nature of a chartered right, was within the purview of the amendment of 1857.

4. The act of 1868 was a constitutional act, restoring the ’provision of the old charter.

January 24th, 1878.

Before Read, C. J., Agnew, Williams, and Mercer, JJ., Sharswood, J., at Nisi Prius.

Error to the Court of Common Pleas of *Montgomery County,*of January Term, 1873.

This was an amicable action in the Court of Common Pleas of Montgomery County, instituted January 3d, 1873, between the president, etc., of the Perkiomen and Reading Turnpike Road, plaintiffs, and Joshua Zimmerman and Davis Longaker defendants. A ease stated was agreed upon and filed at the time of the commencement of the suit, as follows:

By act approved the 20th day of March, A.D. 1810 (P. L., p. 156), the plaintiffs were incorporated, to construct a “ turnpike road from the eastern end of the Perkiomen Bridge, in the county of Montgomery, passing through' Potfsgrove, and passing by the White Horse tavern, in Amity township,' in Berks County, to the borough of Reading.”

The 5th section of the act enacted, “That the said company shal 1 not erect a gate to receive toll within one mile of the Perkiomen and Manatawny bridges.”

The Perkiomen and Manatawny bridges are large and substantial stone county bridges, erected at great cost by the county of Montgomery, prior to the incorporation of the plaintiffs; the Perkiomen Bridge being a bridge with six stone arches, and about four hundred feet in length, having cost about $80,000, and was a free bridge at the date of said act of incorporation.

Under the said charter, the plaintiffs constructed their road between the termini named therein.

An act approved April 3d, 1867, enacted: “That the fifth section of an act entitled an act to enable the governor to *97incorporate a company to make an artificial road from the east end of Perkiomen Bridge, in the county of Montgomery, passing through Pottsgrove, and passing by the White Horse tavern, in Amity township, in Berks County, to the borough of Beading, approved the 20th day of March, 1810, be, and the same is hereby repealed.”

The said plaintiff's erected a toll-house and gate at the west end of said Perkiomen Bridge, in July, A.D. 1867, and soon after its completion and before the collection of any toll, the toll-house was burned by incendiaries, and the tollgate removed and thrown into the Perkiomen Creek.

An act approved February, A.D. 1868 (P. L., 150), was enacted, repealing the fifth section of an act entitled, “ An act to enable the governor to incorporate a company to make an artificial road from the east end of Perkiomen Bridge, in the county of Montgomery, etc., approved the 3d day of April, 1867.”

On the 31st of October, 1872, the plaintiffs erected a toll-house and gate upon the said Perkiomen Bridge, near its eastern end, with the view to collect toll at said gate; but the defendants, who were travelling on said turnpike road with a horse and vehicle, refused to pay toll when the same wa3 demanded by the gatekeeper, on the ground that the plaintiffs had no legal right to erect and maintain a toll-gate at that point or within one,mile of said Perkiomen Bridge, whereupon the plaintiff's brought suit before a justice of tbe peace against the defendants, for the recovery of the amount of toll charged.

The plaintiffs have never declared any dividends on their stock, the tolls collected having been heretofore absorbed in the repairs of the road.

Such repairs as the Perkiomen Bridge needed from time to time, were made by the plaintiffs during their use of .it.

Before the construction of the turnpike road of the plaintiffs, another turnpike road, called the Germantown and Perkiomen Turnpike Boad, had been authorized by the act of February 12th, L801, and constructed from the east end of said bridge to the city of Philadelphia, and another, called the SumneytoWu and Perkiomen Turnpike Boad, has been lately constructed from the road of the plaintiffs at a point near the western end of said bridge to Sumneytown.

The Perkiomen branch- of the Philadelphia and Beading Bailroad, constructed about five years ago, crosses the road, of the plaintiffs about a quarter of a mile west of said bridge, at which point there is a station.

Travelling has lately much increased upon the road of the plaintiffs.

*98The question for the decision of the court is, whether the plaintiffs have the right to erect and maintain a toll-gate upon or at said Perkiomen Bridge, and to collect toll at that point as aforesaid.

. If the court should he of opinion that they have such right, then judgment to be entered for the plaintiff's, for two cents with costs. But if the court should be of the opinion that the plaintiff's have not such light, then judgment to be entered for the defendants; each party reserving the right to sue out a writ of error to the Supreme Court.

The court is also requested to pass upon the question whether or not the plaintiffs have a right to erect and maintain a gate and collect toll at any point within one mile from said bridge.

The Court oí Common Pleas, Ross, P. J.,in order that the case might be speedily heard in the Supreme Court, without argument, on the 3d of January, 1873, entered judgment pro forma, for the plaintiffs, and' declared it to be the opinion of the Court that the plaintiffs have the right to erect and maintain a gate and collect toll at any point within one mile from said bridge.

The defendants sued out a writ of error and assigned for error, entering judgment for the plaintiffs, and declaring that the defendants had the right to erect and maintain a toll-gate and collect toll within one mile of Perkiomen Bridge.

*(x. W. Rogers*and *B. M.*Boyer, for plaintiff's in error.

The act of 1867, under which the plaintiffs claim to establish their bridge, is repealed by the act of 1868 ; this act is constitutional. By the amendment of 1857 to the Constitution, Article I, Sect. 26, the legislature has power to alter, revoke, or annul any charter thereafter conferred, when in their opinion it may be injurious to the citizens. This being before the act oí 1867, would seem to be conclusive: Commonwealth *v.*Fayette R.R., 5 P. F. Smith, 452. Mere incidents to contracts are subject to legislative control: Houston *v.*Jefferson College, 13 P. F. Smith, 428 ; Chadwick *v.*Moore, 8 W. & S., 50. The right of eminent domain gives to the legislature exceptional control over highways, and is paramount to the rights of private property: Palairet’s Appeal, 17 P. F. Smith, 479. The franchise of a turnpike or bridge, or other similar corporation, may be taken for a *free*road, or for a railway, which is an improved highway : 1 Redfield on the Law of Railways, 255 ; Armington *v.*Barnet, 15 Vt., 745 ; West River *v.*Dix, 6 Howard, 507 ; White River Turnpike Co. *v.*Vermont Central Railway, 21 Vt., 594; Boston Water *99Power Company *v.*Boston and Worcester Railway Company, 23 Pick., 360; Central Bridge Company *v.*Lowell, 4 Gray, 474; American Railway Cases, 305; Springfield *v.*Connecticut River Railway, 4 Cushing’s R., 73. Nor need compensation be provided where the subsequent grant only incidentally operates injuriously to the earlier one: 1 Redfield, 256.

*Cr. It. Fox*and *D. H.*Mulvany, for defendants in error.

The act of 1868 is against Article I, Section 10, of the Constitution of the United States, forbidding State laws impairing the obligation of contracts. A grant is a contract, and comes within the scope of this provision: Dartmouth College *v.*Woodward, 4 Wheat., 656 ; Rehobath *v.*Hunt, 1 Pick., 24. If there be a grant, in itself valid, any law which is or permits a direct interference with the enjoyment of the things granted, or a diminution of their value, or any depreciation of the things granted, or of the rights or interests belonging to them by the grantor, impairs the obligation of the contract: Winter *v.*Jones, 10 Ga., 190; Planters’ Bank *v.*Sharp, 6 How., 310; 2 Pars, on Cont., 683 ; Fletcher *v.*Peck, 6 Cranch, 87 ; Monongahela Navigation Company *v.*Coon, 6 Barr, 381 ; Where the grant is to a corporation, the State cannot revoke it: Terrett *v.*Taylor, 9 Cranch, 43; Wilkinson *v.*Leland, 2 Pet., 657; Dend. University of North Carolina *v.*Foy, 1 Memph., 58.

Any enlargement of the charter of a private corporation, so accepted as to become binding, is the same as to its inviolability as if it had formed a part of the original grant: Gordon *v.*The Appeal Tax Court, 3 How., 133 ; University of Maryland *v.*Williams, 9 Gill and Johnson, 365 ; Washington Bridge *v.*Connecticut, 18 Conn., 53. A grant of chartered privileges to a private corporation is an *executed*contract: Serg. Const. Law, 349; Dartmouth College *v.*Woodward, 4 Wheaton, 637 ; McKim *v.*Adam, 3 Bland Ch. Re., 307; Terrett *v.*Taylor, 9 Cranch, 52; Pawlet *v.*Clark, Idem, 292.

The repeal of a statute will not he construed to divest rights, which have vested under it: Davis *v.*Minor, 1 Howard, 183 ; Mitchell *v.*Doggett, 1 Cranch, 356; Charles River Bridge *v.*Warren Bridge, ! Pick., 507; Attorney-General *v.*Germantown and Perkiomen Turnpike Company, 5 P. F. Smith, 466 ; Commonwealth *v.*Cullen, 1 Harris, 139 ; Brown *v.*Hummel, 6 Barr, 86 ; Jones *v.*Jones, 2 Jones, 350.

Mr. Chief Justice Read

delivered the opinion of the court, January 30th, 1873.

The defendants were incorporated by an act passed the *10020th March,-1810, to make an artificial road from the east end of Perkiomen Bridge, in the county of Montgomei’y, passing through Pottsgrove, and passing by the White Horse tavern in Amity township, in Berks County, to the borough of Reading. This was a link in the chain of turnpike companies, forming , a continuous turnpike road from Philadelphia to Sunbury. The Germantown and Perkiomen Turnpike Road had been previously constructed from theeast end of said bridge to the city of Philadelphia, and the centre turnpike road, leading from Reading to Sunbury, had been incorporated in 1805. The act of 1810 had been altered by two supplements passed on the 13th February, 1811, and 31st March, 1812.

The fifth section of the act of 1810 enacted “ that the said company shall not erect a gate to receive toll within one mile of the Perkiomen and Manatawny bridges,” both of which were large and expensive stone county free bridges, over which the Turnpike. Road passed, saving the company, according to the case stated, upwards of one hundred thousand dollars in crossing those streams. The provision was, therefore, a reasonable and proper one, in view of. the great advantages gained by the company, in having one of the most costly portions of their road provided by the people of the county of Montgomery. By an' act of the 3d April, 1867, this fifth section was repealed, and by an act of the 13th February, 1868, this repealing act was repealed, thus restoring the original fifth section of the act of 1810. Under the act of 1867 a gate had been erected by the company at the west end of Perkiomen Bridge, which gate had been removed and thrown into Perkiomen Creek, and the toll-house burned by incendiaries, so that there was neither gate nor toll-house at the west end at the time of the passage of the act of 1868. It will be observed that both these repealing acts were passed subsequently to the fourth constitutional amendment of 1857, and, of course, subject to its provisions, giving power to the legislature to alter, revoke, or amend any charter of incorporation thereafter conferred by, or under, any special or general law, whenever, in their opinion, it may be injurious to the citizens of the Commonwealth, in such manner, however, that no injustice shall be done to the corporators.

The repealing act of 1867, if a simple act of legislation, is repealable at pleasure, and, if it be in the nature of a chartered right for the corporation to collect toll, then it is clearly within the purview of the twenty-sixth section of the first article of the constitution, and may be revoked, or annulled, by the legislature. Any other construction would *101place all new amendments or additions to old charters, however radical, entirely beyond the control of the legislative department of the government.

The act of 1868 was, therefore, a constitutional and proper act, restoring the original provision of the old charter. The erection of one toll-gate under the act of 1867 was simply an entering wedge to the erection of another toll-gate at the Manatawny Bridge, practically changing these free county bridges into toll bridges, and in the last case affecting very injuriously the citizens of the borough of Pottstown.

We are of opinion that the plaintiffs have no right to erect and maintain a gate, and collect tolls at any point within one mile from either of the said Perkiomen or Manatawny bridges.

Judgment reversed, and judgment entered on the case stated for the defendants.