Opinion by
Mr. Justice Green,
The Blockley and Morion Turnpike and Plank Road Company was incorporated by the Act of Assembly of April 5,1853, P. L. 291, and various supplements thereto were subsequently passed, which are enumerated in the agreed state of facts appearing on the record. By one of these supplements passed in 1859, P. L. 289, the company was “authorized to lay out and construct a railv/ay of the same gauge as the present passenger railways in the city of Philadelphia, over the route of their road or any part thereof, subject to all the limitations and restrictions of the general railroad laws of this commonwealth, and to the ordinances of the councils of Philadelphia relative to passenger railways.” The company built its turnpike in 1853 and continually operated the same, collecting toils from persons using the road, until the year 1890. In November, 1887, the company applied to the court of common pleas of Montgomery county for further amendment to its charter extending its route, which application was granted on condition that the company should *128first file and record its acceptance of the provisions of the constitution of this commonwealth. This was done, and thereupon the company extended its route accordingly and thereafter continued to exercise its franchisedn operating the road and collecting tolls for its use until the year 1890. In August of that year all the property, rights and franchises of the company were sold at judicial sale under a mortgage executed in 1886, and James A. Logan and his associates became the purchasers thereof. Thereupon the purchasers organized a new company called the Philadelphia, Bala and Bryn Mawr Turnpike Company, in accordance with the several acts of assembly relative to the organization of turnpike companies, and letters patent were duly issued to the new company on September 15,1890, by the commonwealth, declaring that the said corporation was entitled to all the privileges, immunities, franchises and powers conferred upon the old company by the original act of 1853 and the various supplements thereto. Neither the old company nor the new one ever commenced to lay out or construct a railway along any part of the route of the road, nor did they carry on any other business thereon than that of a turnpike company except that a plank road was constructed and operated for a time over a part of the road. In February, 1897, the petitioner was duly incorporated under the Act of May 14, 1889, P. L. 211, with power to construct and maintain a street railway in the city of Philadelphia and county of Montgomery, inter alia, over aportion of the roadbed of the Philadelphia, Bala and Bryn Mawr Turnpike Company. -The city of Philadelphia consented that this might be done. The appellant filed a petition to have viewers appointed to assess damages for the occupation of the roadbed of the turnpike company, for the reason that they could not agree as to the amount, whereupon the turnpike company filed an answer and moved to quash the proceedings on the ground that the appellant had no legal right to lay a street railway on their turnpike. The rule to quash the proceedings was made absolute, hence this appeal.
The contention of the appellee is that the additional power conferred by the act of 1859, authorizing them tó lay out and construct a railway upon the bed of their turnpike, gave them a legal authority to construct such railway, and therefore brought them within the protection of the Act of May 14,1889, *129P. L. 211, Purd. Dig. 2687, under which the appellant was incorporated. The first section of that act provides that “Any number of persons not less than five may form a company for the purpose of constructing, maintaining and operating a street railway on any street or highway upon which no track is laid or authorized to bo laid or to he extended under any existing charter.” If the appellee at the time of the proposed occupation of its roadbed by the appellant by laying upon it a street railway, had a lawful authority of its own to construct thereon such a railway, it follows, under our decision in Homestead Street Railway v. Pittsb. & Homestead Street Railway, 166 Pa. 162" court="Pa." date_filed="1895-01-14" href="https://app.midpage.ai/document/homestead-st-ry-v-pittsburg--homestead-electric-st-ry-6242728?utm_source=webapp" opinion_id="6242728">166 Pa. 162, that the appellant could not lay its structure on the same roadbed. The appellant contends however that the appellee does not possess the lawful authority to lay a street railway on its turnpike road, because (1) it lost its franchise so to do by the operation of the first section of article XVI of the state constitution, and (2) by its laches in not exercising its franchise for thirty-eight years. To this contention the appellee replies that the loss or forfeiture of this franchise of the appellee from either or both of these causes can only he called in question by the commonwealth in a proceeding by writ of quo warranto,, and hence it cannot be availed of by the appellant in this proceeding. If the question cannot fairly he raised in the present proceeding, and may he raised by the attorney general upon a writ of quo warranto, .it will perhaps be more desirable that we should at present abstain from an expression of our views respecting the merits of that contention. If, on the contrary,, we are of opinion that the question can bo raised at this time, and in this proceeding, it would be our duty to decide it .fully at this time.
After a careful consideration of the subject we have reached the conclusion that the question cannot be raised in tliis proceeding, and therein we concur with the learned court below. The right claimed by the appellee is a corporate franchise which has been granted by the commonwealth. Whether it has been forfeited by non-exercise or otherwise is a question between the commonwealth and her grantee. If the commonwealth does not choose to exercise her right to assert the forfeiture, the decisions, as we understand them, do not confer that right upon a private litigant. The appellant is such a litigant, claiming a *130result only for its private advantage. The whole subject was well considered in the case of Western Pennsylvania Railroad Company’s Appeal, 104 Pa. 399" court="Pa." date_filed="1883-10-25" href="https://app.midpage.ai/document/western-pennsylvania-railroad-companys-appeal-6237591?utm_source=webapp" opinion_id="6237591">104 Pa. 399. We there said: “But the appellant by its counsel insists that the act of 1871 warrants a much wider investigation into causes of forfeiture than those which may appear merely from the conditions and limitations of a charter. In other words, the position of the commonwealth, as in a writ of quo warranto, may be assumed, and the mere non-user of the franchise proved, in order to establish a forfeiture of the defendant’s right to act under its charter. But to this we cannot agree. We are inclined to think that a forfeiture for such reason as this rests wholly with the. state, and that to this extent at least the doctrine as stated in the cases of Irvine v. The Lumbermen’s Bank, 2 W. & S. 204, and Dyer & Co. v. Walker, 40 Pa. 157" court="Pa." date_filed="1861-07-25" href="https://app.midpage.ai/document/dyer--co-v-walker--howard-6231579?utm_source=webapp" opinion_id="6231579">40 Pa. 157, still prevails. The act of 1871 contemplates nothing more than that it shall be made to appear from the charter that the corporation has the power to do the particular act in controversy, and which involves some right of the contestant; but when we get beyond this we assume something with which we have no business in a collateral proceeding. We assume to assert the rights, of a third party, the commonwealth, who may or may not, at her own option, insist upon the observance of those rights. The commonwealth and the Greenwood Railroad Company are like any other contracting parties. A contract may be forfeited by the laches of one of the.,parties to it, but if the other does not choose to insist upon that forfeiture no one. else can take advantage thereof. The appellant alleges that the appellee has omitted to do something that it ought to have done under its contract with the state, and in consequence of which the state may.move to have the contract annulled. Well let it be so that the commonwealth may move for a rescission of this contract, yet by what warrant does the Western Pennsylvania Company assume to control the will of the commonwealth, and to use the rights of the state for its own purposes ? ” .
These views seem to us to control the present case. Elaboration will not make them plainer, and their pertinency is manifest. While we do not intend to discuss the other questions presented in the paper-books, we feel at liberty to say that we do not consider the first section of the sixteenth *131article of the constitution applicable, because the appellee, of itself, and through those whose franchises it owns and represents, was at all times an active existing corporation, fully organized, and was doing business in good faith at the time of the adoption of the constitution. The “ grants of special or exclusive privileges ” mentioned in the section are expressed antithetically to “ existing charters,” and must have some other and independent repository than the charters which are separately designated. Upon the theory contended for by the appellant the subsequent language of the section would have an insensible meaning. If an existing charter did possess a bona fide organization, and was doing business at the adoption of the constitution, it certainly did not incur the penalty of forfeiture, because it had not violated the constitutional provision, although it did possess an added power to those with which it was originally clothed. Yet the penalty prescribed is a unit, and is common to both. While it is clearly applicable to each in their individuality, it is not applicable, because it is not prescribed, in the case of a charter which has conformed to the requirement, though it has an added privilege which it simply has not exercised.
Nor do we think there is any force in the contention that the appellee cannot question the right of the appellant to lay its track on their turnpike, because that question necessarily in volves the forfeiture of this appellant’s charter, which cannot be considered in a collateral proceeding. We do not understand that any such consequence results. The right involved is not essential to the validity of the appellant’s charter, and therefore its adverse determination does not affect the charter. The only question really involved is whether the appellant may lay a portion of its track on certain property of the appellee. If it cannot be laid there, it does not at all follow that the charter of the appellant is avoided. There is nothing growing out of the contention in this case that could possibly prevent the appellant from laying its track upon some other location.
The assignments of error are not sustained.
The decree of the court below is affirmed at the cost of the appellant.