The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1866-03-08
LEGAL INTELLIGENCE.
Injunction Against the Lombard aud
south slreels Railway COmpnny.

ported on the argument Of the bill in equity
and demurrer thereto Justice Strong this morn
ing delivered the following opinion:-
The lrst ground ASSIGNED Tor the demurrer to the
comp plainantsi bill Is that the Legislature cannot
delegate TO the city OF Philadelphia the right of
asserting to or departing from the exercise Of the
irauenlse conferred by the General Assembly upon
the defendants In support OF this 1t is urged
that, by he Cons uton, all the eRis atve power of
the commonwealth Is vested in the Genera As
sembiy that It is in Its nature nalienabe and that
oelegaton 10 The city of right TO dissent from the
exercise OF pubic franchise granted to a corpora
the law-maklRg power, 1t is undoubtedly true that
the Legislature oannot admit any Oth1r body to a
participation with itself in the enactment of law,
nor can II delegate 10 local legislature or even TO
the people Of a municipality, the power to determine
whether q law shall have vitality or not But this
pnncIple mIsapp led when II IS used to negative
the power oil the Legislature to grant franchise de-
pcndent upon Gel ain conditions one of which NAV
be that before IL be exercised the assent OF some
person or persons shall be detained. such grant,
though having the form OF law is aitec all, in
SUI stance but conve ance OF portion OF the uub.
lc l2hr, and there is reason why it may not be
partial OF subject TO conditions precedent as well 8
unrestricted and unconditional. When the Legis-
lature cl leates corporation, with power to buid
raj way on street oil city SUBJECT to the assent or
dissent OF the City Councils to such use OF the
street the assent OF the Councils gives force to
the legislative enactment, and the dissent does not
destroy it No egls atlve power is delegated 10 the
City Councils by such an act Their nterposition
mere condition attached 10 the Grant restriction
OF the franchise. The right to build the railway ls
not conferred absolutely, but is made dependeht
upon contingency. Our books are full OF cases in
which grants of power made by the Legislature
the exercise OF which was made depend
people, the approval or disapproyal of some mu.
nlupa corporation, nave been sustained legitimate
action OF the General Assembly. Even the case of
Parker vs.. he Common wealth, Barr 5O7, relied
upon by the counsel of the defendants, recognizes
ana approve the distinction between condtion in
aw, valid under the Constitution and q delegation
or transfer by the Legislature Oh ITS functions
without undertaking 10 cite those cases. l refer to
two only IN which the principle is clearly enunc
ated. In commonwealth VS.. Painter, 10 Barr, 2l4
an act OF Assembly directing the County Commits
sioneTs to ne the exact site for and to erect
public buildings in The new county town of Della
ware county if majority OF the voters of the county
should vote in favor of the change, was he'd to be
Constitutional And in Moers VS.. The City of
Reading, Har, l95 where 1t appeared that an act
had been passed empowering the corporate author
les Of the city TO subscribe for shares the Dtal
STOCK ol railroad company and requ ring them 70
submit the question of subscription to popular
election, the result OF winch should determine
their action, Black o. D., in delivering the opnon
OF this Court. used this language:-"It is argued
that this is not an eXerton of legislative lOwer by
the Assembly but a mere delegation of it to the
people OF Reading. We cannot see it in that light.
Hall the statutes books are in the alterna.
tive, depending on the discretion OF some person or
persons to whom IS confded the duty OF deter
mining whe her the proper occasion exists for
ercislng them But it cannot be SAID the exercise
OF such discretion is the making OF the law. New
privileges conferred upon public corporation,
need not be absolute and peremptory, so far TO
Ioree them on the members against their consent
men lndIVlduals, or corporators, are merely au-
thorized TO do thing, the doing of 1t necessarily
depends on their own wI and we can see no reason
why the acceptance OF q new power rendered to q
pi bic corpolation may not be made to depend ON
the will of the people when 1t expressed by them
serves, as well rs when is spoken by the mouths of
their officers and agents." This language, it is
true was spoken of powers conferred upon public
corporation but 1t shows clearly the distinction be-
tween making a law, and a conditional grant of
power l conclude then, that the Legislature were
competent 10 grant to the dee 7dant, tight to
build a railway on certain streets Of this city, and
make the exercise of the right dependent
upon the assent or dissent of tine City
Councils, or IN other words, grant franchise
limited by the condition that the Councils should
assent TO the occupation OF the strees. But even If
tins IS not So Il will not help the detendan IN this
case; for, if their RIGHT to build railway is, by act
OF Assembly, made dependent upon their obtaining
the assent OF the City Councils TO It's exercise, and
the Legislature had no constitutional power to grant
a tlanchise thus restricted, the act of Assembly is
yoo, and the defendants have no right at all to con-
stTuct q railway.
The next question raised by the demurrer is, whe.
theT, under the act OF Assem- bly, by which they
wee Incorporated, the defendants can construct
the railway over ana along the streets named in
the bill, TO wt; BY Front or Wafer ssreer
to Walnut street, thence down Walnut street. 10
nue. to Dock street, without the sent OF the CIy
Councils whether thev are affected by the Ordl-
nnnces OF February 2S 1860, which dreamed that no
person body corporate shall be allowed TO remove
the cobble pavement on any OF the highways OF the
city without first procuring the assent OF the Coun
ellis OF SAID city. The tenth section OF tnat act (P
L. 1861, page 707l enacted that they should be sub
jeci to all the ordinances OF the Councils OF the city
lhs, then, was condition of the grant of the
franchise and as the grant IS to be construed most
sti city against them the subsection must be garded
q subjecton to the ordinances then existing, one
OF winch was prohibition against removing cobble
pavement on any highway without first procuring
the assent of Councils. The subsection SPOKEN OF IN
the act extends to all the powers granted as well
for the construction OF the railway for ITS subse
quent use There is no reason to justify us in hold
ing that any ordinance the City Councils had the
power to pass is not of thoseto watch the iran
chiae granted to the defendants was made subser.
Went by the legislative provision that they should
be subject to all the ordinances the said Councils.
What authority have / to say that while their con-
duct in the use OF their road shall be subordinated
10 city erdinances their conduct in building their
difference, and no reason for difference is seen.
The Legislature recognized par9mo olnt authority
This was ruled In this Court on the 3lst OF March,
1868 by my brother Woodward. in case between the
parties, in which sought to restrain these
defendants from removing the cObbe paYements on
Lombard and South Streets for the purpose OF build
ng their railway. In that case he ruled that the act
under which they were incorporated the same actI
am now consdering) did not authorize the defendant
to construct railway on those streets without the
consent OF the City Councils. / concur with his
opnion It is tue that alter that decision made,
the defendants obtained a supplementary Act OF
Assembly THE supplement-, of April a. 1861 by
from the intersection OF Front and Lombard streets,
along said Front to Dock street and along said
Dock street to Delaware avenue, and they were au-
thorzed to construct and lay the said railway with
out obtaining the consent of the City Councils.
Ihis very supplement- torites the construction
have gwen to the original act Of 1861 tor ii under
that act the consent OF the City Councils not
prerequisi Q, the last mentioned provision of the
SUI pement was superhuOus.
But the supplement covered nothing more thau
the railway then authorized. IL was the railway as
described in the first act and its supplement, that
tire defendants were authorized 10 construct with
out obtaining the consent OF the City Councils IL
was that alone. Being private corporation, the Act
more power than PLAINLY appears in the words OF
the grant. AS 10 the stree and paris OF streets
occupy in the construction of their railway, @eH IN
0teao Of the legislature consent or the Councils To