#### Fargo *et al. versus*The Oil Creek and Allegheny River Railway Company.

1. The constitution of 1874 takes from the Supreme Court jurisdiction to decree a sale of the property, etc., of a corporation under a mortgage.

2. A bill was filed in the Supreme Court by trustees in a corporation mortgage for a decree to sell the property, etc., of a corporation; one of the prayers for relief was for an injunction to restrain the defendants “from selling or in any manner disposing of” the property covered by the mortgage. *Held,*that the injunction was merely incidental to the sale, the substantial thing asked for, and did not therefore bring the bill within the jurisdiction of the Supreme Court.

3. The Supreme Court cannot entertain jurisdiction, when, in addition to a prayer for injunction, something is asked for more than is necessary to give effect to the injunction.

4. Commonwealth *v.*Hartranft, 27 P. F. Smith, 154, recognized.

Mat 26th, 1875.

At *Harrisburg.*Before A&new, C. J., Sharswood, Williams, Mercur, and Gordon, JJ.

Sur application of “ The Pennsylvania Transportation Com:pany,” a creditor of The Oil Creek and Allegheny River ^Railway Company, to vacate the decree at Nisi Prius order*267ing the sale of the property and franchises of said railway company.

On the 80th of November, 1874, William G. Fargo and William G. Moorehead, trustees in a mortgage made by said railway Company, May 1st, 1868, filed a bill against the company in the Supreme Court for the Eastern District.

The bill, amongst other things, set out as follows :

The defendants made the said mortgage to secure bonds amounting to $1,100,000, with interest at the rate of 7 percent, per annum,-payable semi-annually on the first days of May and November in every year. By said mortgage it is provided that if the mortgagors should, at any time after demand made, make default, etc., for any period exceeding three months, to pay'the semi annual interest on the bonds secured by the mortgage, or any of them, etc., then the trustees should, on the written request of the holders of one-fourth in amount of said bonds outstanding, enter upon the railroad, etc., and premises secured by the mortgage, aucl operate, etc.; or the said trustees, on the written request of holders of bonds of a like amount, should proceed to sell the said railroad, franchises, etc., so mortgaged, at public sale, etc., and appropriate the proceeds of such sale to the payment of the principal and interest of said bonds, etc. And it was further provided by said mortgage that nothing therein contained should prevent the trustees from instituting any proceedings in law or equity which should be deemed expedient for tne benefit of the bondholders. There were outstanding in the hands of different holders bonds-to the amount of $1,050,000; the interest on the same, which was due on the first days of May and November, A.D. 1874, was unpaid, and payment of said interest had been demanded at the place where it was made payable; that due on May 1st, 1874, having been unpaid for more than ninety days. The trustees had been requested in writing, by the holders of one-fourth in amount of the outstanding bonds, to sell the railroad, franchises, etc , so mortgaged. The trustees had deemed it expedient to institute proceedings in equity for the sale of the mortgaged premises, etc , and needed equitable relief as follows:

1. That it be decreed that the Oil Creek and Allegheny River Railway Company do pay the said overdue coupons, to wit: $36,750, with interest from M'ay 1st, 1874, and the further sum of $36,750, with interest from the 1st day of November, 1874, on a short day, to be named by the Court.

2. That in default of said payments a decree be entered directing the sale of the said mortgaged premises, and the distribution of the purchase-money as the said decree may direct. Such sale, however, not to divest the lien of the said *268mortgages hereinbefore mentioned, bat the purchaser or purchasers of the said premises shall take the same subject to said mortgages.

8. That a special injunction be granted until final hearing, and perpetual thereafter, enjoining and restraining the said Oil Creek and Allegheny River Railway Company, their officers, agents, and employes, from selling or in any manner disposing of the said property, covered or intended to be covered by said mortgage made by the said Oil Creek and Allegheny River Railway Company, on the first day of May, A.D. 1868, to said William G- Fargo and William G. Moore-head, trustees as aforesaid, to secure bonds amounting in the aggregate to $1,100,000.

4. General relief.

The defendants answered, admitting the allegations in the bill and submitted themselves to such decree as the Court might make.

On the 19th day of December, 1874, the Court at Nisi Prius decreed a sale of the railroad, franchises, etc.

At the May sessions, 1875, the application to vacate the decree was made to the Supreme Court in banc. ' The question argued was whether the Supreme Court had jurisdiction to make the decree.

*D. W. Sellers,*for application.

*5. G. Thompson,*for plaintiffs.

The act of April 11th, 1862, sect. 1, Pamph. L., 477, 2 Br. Purd., 593, pl. 11, confers on the Supreme Court the jurisdiction of a court of chancery in cases of mortgages given by corporations: McElrath *v.*Pittsburgh & S. R. R., 5 P. F. Smith, 189 ; McCurdy’s Appeal, 15 Id., 295. By section 20 of the schedule of the new constitution, Pamph. L. of 1874, p. 27, the jurisdiction of the Nisi Prius Court was continued. By the 3d section of the 5th article of the constitution, Id. 13, it retains the jurisdiction in injunctions against corporations. The prayer here being for an injunction, the jurisdiction of the Supreme Court attached, it therefore has jurisdiction for all purposes: Rathbone *v.*Warren, 10 Johns. Rep., 387 ; Armstrong *v.*Gilchrist, 2 Johns. Cases, 424 ; King *v.*Baldwin, 17 Johns. Rep., 384; Bank *v.*Biddle, 2 Parsons, 63 ; Miller *v.*McCann, 7 Paige, 460; Hawley *v.*Caven, 4 Cowen,719; Weymouth *v.*Boyer, 1 Ves., Jr., 420. Injunction is an auxiliary remedy: Scofield *v.*Bokelen, 5 Jones’s Equity, 343; McCrea v.-, Id., 395 ; Morris *v.*McLean, 6 Id., 200. The mortgage provides that the whole property shall be held for the security of the bondholders: Solmon *v.*Cloggell, 3 Bland, *269125; Nelson *v.*Pinegar, 80 Ills., 481; Parsons *v.*Hughes, 12 M., 2; Brady *v.*Wolden, 2 Johns. Cases, 148.

Mr. Justice Merour

delivered the opinion of the Court, June 30th, 1875.

This is an application on behalf of “ The Pennsylvania Transportation Company,” a creditor of the defendant, praying for the vacation of the decree ordering the property and franchises of the corporation defendant to be sold.

The only question argued is, whether this Court had jurisdiction to make the decree which we are asked to vacate. From the passage of the act of April 11th, 1862, until the constitution of 1874 went into effect, it is conceded the jurisdiction was most ample. Is that jurisdiction taken away by the present constitution ?

Article V, section 3, *inter alia,*declares that the judges of the Supreme Court “ shall have original jurisdiction in eases of injunction where a corporation is a party defendant, of *habeas corpus,*of *mandamus*to courts of inferior jurisdiction, and of *quo warranto*as to all officers of the Commonwealth whose jurisdiction extends over the State, but shall not exercise any other original jurisdiction.”

It was held in Commonwealth ex rel. Butlers. Hartranft, decided at our last term at Pittsburgh (27 P. F. Smith, 154), that the 11th section of the schedule, extending the jurisdiction of certain courts for a limited time, did not apply to the Supreme Court; that it applied to those courts only which were to go out of existence on the 1st of December, 1875. We therefore have no extension of power by virtue of that section. If we have jurisdiction it is under the 3d section of the 5th article only.

This bill was filed in this Court on the 30th of November, 1874, and the decree was made on the 19th of December, 1874, by one of the judges then sitting at Nisi Prius. The Court of Nisi Prius, as such, had no original jurisdiction. In fact it had no independent existence as a court. It heard and tried those cases only which had been commenced in the Supreme Court. The bill was an original proceeding commenced many months after the present constitution went into effect, jf this Court, had jurisdiction of the case it is by reason of its being included in those “ cases of injunction where a corporation is a party defendant.”

The defendant is a corporation ; -but, is it a case of injunction? It is claimed to be, inasmuch as the third prayer is for an injunction against the company selling the property covered hy the mortgage.

An examination of the bill, and other prayers, show very *270clearly that-this was not the main purpose. It.is nowhere charged in the bill that the corporation threatened or intended to make any sale of the property. It distinctly avers that the plaintiffs, in pursuance of a request of the bondholders, and the authority contained in the mortgage, “ have deemed it best and expedient to institute these proceedings in equity for the sale of the said mortgaged premises.” The manifest object and purpose of the bill was to procure a decree requiring the trustees to sell the property. If the injunction was not asked for merely with a view of giving the Court jurisdiction, it is, nevertheless, clearly incidental to the substantial thing sought to be procured. To conclude that a mere prayer for an injunction will give this Court jurisdiction, where the main intent of the bill is to' effect another purpose, would defeat the whole spirit of the constitution limiting our jurisdiction.

It is true, an injunction may be either mandatory or prohibitory. The first compels a defendant to restore things to their former condition, while-the latter forbids his doing an act threatened. Both are of a restraining character, designed to prevent an infringement of rights, and limiting the enforcement to those rights previously enjoyed. Such was not the main purpose of this bill.

As.-the constitution has so limited our original jurisdiction, in cases of injunction, we ought not to entertain it when, in addition to a prayer for an injunction, something is asked for more than is necessary to give full effect to the injunction. It follows, then, that this Court bad no jurisdiction in the case when the bill was filed, and the decree of sale must be vacated.

And now, June 3d, 1875, decree vacated.