The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1871-06-24
DOUBLE SHEET-THREE CENTS.

tionalty Of the act therefore, as res
Gdtudieatd. Until that decision is changed by
the decision Of the court in banc, although techn-
cally at Nis Prius, must treat as decision pro-
and reason which existed and could then have
been advanced against the act The reasons given
now against its constitutonality existed then and
In presumption OF law, were then considered and
held insufficient different rule would lead to
anomalous results not to be allowed for moment.
whether all the grounds OF reasons were OF were not
given, which might have been given on the argu-
ment on which the decision should be made That
would not do as a reason for dsregardng the action
OF the court In the last resort by inferior tribunal
1t Is bound by the Judgment OF constitutl0nay pro-
nounced oy the highest authority until that auth0
riy correcs its own error II any, or changes its de-
csion. That is the situation OF this court In this
case. Al the judges declared the act in question
constitutional in the decision referred to- that dec
sion binds in this as eHectually as II techn-
But even II this were entirely out Of the way, and
there were reasons sufficient to authorize injunc
ton TO issue in ordinary cases, which do not say is
the case the first and only section of the act of Sth
April, 1S46 deprives me, think OF Jurisdiction to
grant injunction in this case. 1t provides "that
no courts within the city and county OF Philadelphia
ehoH erercise the pouer of a Court of ChGncery in
granting or continuing injunctons against the erec
on or use OF any public works OF any kind erected or
In progress OF erection, under the authority of an
act OF the Legislature, until the questions OF title and
damages shall be submitted and finally decided by
common dl1 court and In such cases the court shall
have authority to issue renire for the summoning
OF jury to the sheriff OF an adjoining county" P.
It is admitted as already remarked that, in the
plaintiffs BILL the work towards the erection OF these
buildings had been begun before hling the BILL and
that fully accords with the adavits OF the defend
ants. 1t matters not that comparatively little had
been DONE The first stroke OF the axe or the pick,
with view to the erection OF the buildings brings
their case within the provisions OF the act, which
forbds Injunction, In the first instance. 1t Is OBJ
vousy not the amount OF the work done or progress
made in the erection of buildings which Gusts the
Jurisdiction in chancery. II is, as the act plainly
shows, the fact OF being IN progress OF erection
IL Wr., 439 Flanagan vs.. The City, recent case
before Sharswood j., at Nisi Prius, arising out OF
the Penrose Ferry Bridge over the Schuylkll.
The fact being found that work had been COM
menced towards the erection OF the buildings autho-
rzed by III act Of 1S70 before this bill was filed, it
follows that no Injunction can be granted to stop its
progress until a resort has been had to common
jurisdiction in chanceryis suspended at least. What
may be done after that resort am not prepared to
say. For the wisdom of the legislation the courts
is a controlling maxim, and it must be
understand the purpose for which the act of 1876
case OF public buildings. II it should turn out in
any case, as 1t probably would in this that no dis
pute about title or damages to be assessed would
arise would the proceedings fall or revert to equity
jurisdiction? This is one OF the problems connected
with the act which am not able to solve but which
will not for that reason allow me to disregard the
positive prohibition "that no court In the
City and county Of Philadelphia shall exer.
in granting iDjunctions against the erec.
tion or use OF any public works of any kind,
until the questions Of title and damages shall be
court" This strikes down the power in chancery In
this case. can make nothing else OF 1t. But
need not enlarge regard either OF the foregoing
preliminary Injunction aked for in this case.
Preliminary injunction refused.