Jarden v. Philadelphia, Wilmington & Baltimore Rail Road

3 Whart. 502 | Pa. | 1838

The of the Court was delivered

Sergeant, J. —

The mode of assessing the damages sustained by an individual, whose land is taken for the purpose of opening a public road which passes .through it, is now prescribed by the 6th, 7th, and 8th, sections of the act of the 13th June, 1836, reto roads, highways, and bridges. After the road has been ou* ^y *viewers, and approved by the Court, and entered of record, it is to be opened as soon as practicable ; and the owner of the land through which the road is opened, may, within one year from the opening of the same, apply by petition to the Court of. Quarter Sessions of the proper county, setting forth- the injury which he or they may have sustained thereby, and thereupon the Court is to appoint six persons to view the premises and assess the damages, &c. If their report be approved by the Court, the amount of damages awarded is to be paid by the treasurer out of the county stock, to the party entitled thereto. By the latter sections of this act,' the viewers in the county of Philadelphia, are appointed in a different manner from those in other counties, but the same proceedings are to be had as to views and assessments of damages. There are local laws, applying to the city of Philadelphia, the township of the Northern Liberties, and the district of Southwark, which provide regulations on the subject somewhat different from the above, but it seems that the township of Passyunk, in which the route of this railroad is contemplated, is governed by the law which applies to the county generally.

It is, therefore, to these proceedings the legislature must refer in the act of the 27th of February, 1838, sec. 14, stated in the bill and answer, by which they enact, that “ Prime street, from Broad street to Gray’s ferry road in the county of Philadelphia, be, and hereby is, laid out of the width and in the same direction, that it is now opened from Eleventh street to Broad street, and that it shall be the duty of the commissioners of the said county forthwith to open, or cause to be opened the street aforesaid, the damages accuruing therefrom to be assessed and paid in the usual manner, except that one-third of the expense arising from the increased width of the said Prime street, shall be paid by the Philadelphia, Wilmington and Baltimore Railroad Company.” The effect of this act of assembly is, that the street is laid out by the legislature instead of the Court. The county commissioners, however, are to open it, and the damages are to be assessed and paid in the same manner as if it had been laid out by the Court, under the act of 13th of June 1836, namely, on the petition of the owner of the land, presented to the Court of Quarter Sessions, after the street has been opened, and are to be paid by the treasurer out of the county stock. These are the only terms on which the damages can be assessed and paid. If the owner of the land should present his petition to the Court of Quarter Sessions, asking for viewers to assess the damages he may have sustained, he must'set forth and show that the road has been opened; it is not sufficient to show that it has been laid out. In many instances streets have been laid out several years before they are opened, and in the meanwhile are inclosed and occupied by the owner without any visible difference from his other property ; and the public is not bound to pay for them until they are actually opened for public use as a and become *tkus appropriated to them as their property, and the exclusive right and occupation of the former owner is away. for this reason the period of limitation prescribed, the year to which the owner is restricted for filing his petition for the assessment of damages, commences not from the laying out but from the opening of the road.

Now, it is admitted in the answer, that Prime street has not been opened by the county commissioners under this act, and that no damages have been actually assessed or paid to the owners of land — nor indeed, could they be legally assessed or paid under the act of 1838, until such opening took place. But it is insisted that it is immaterial whether such opening has taken place or not. I cannot, however, think so. It certainly was not the intention of the legislature or the purport of this act to place any owner of the land through which this railroad was to run, in such a situation as that he should have no legal remedy for the recovering of his damages. On the contrary the right of the owner to damages is carefully preserved: nor do I know of any instance in which, for many years past, the legislature has authorized a company, incorporated for the purpose of making a turnpike, canal, or railroad, to take private property without making a provision for compensation for land taken for that purpose. And here if the provisions of the act are observed and carried into effeht, the right of the owner is effectually guarded and rendered available by a course of proceeding of every day’s practice in the Court of Quarter Sessions. But if so essential an item as the opening of the street is omitted, the right to damages, which depends upon it, will he utterly defeated, and the owner may lose his land without having the damages contemplated by the act.

Besides this difficulty, there is another of great weight. The defendants have thought proper to obtain from the legislature an act authorizing them to take land for their railway, not in the ordinary mode of occupying it for their own purposes, and paying the damages themselves, but by a combined operation in conjunction with the county commissioners, in which two objects are to be attained; first, a street is to be opened by the county commissioners, of a greater width than the railway requires, which street is of course to be for the use of common wheel carriages, and to belong to the public, and to be under'the superintendence of the supervisors of the township, in the same manner as other roads and highways are under the laws of the commonwealth, and is to be paid for when opened, out of the county stock; secondly, the company are to lay down their tracks of railway on the centre of that street, the company to pay one-third of the expenses arising from the increased width, and to grade the street for ordinary travelling and use. It appears to me to be the plain construction and intent of this act, that both these objects are to be effected; and that if the street is not opened by the authority alone empowered to open it, the railway *is not to be laid down there. Why the compeny have chosen thus to combine their action with the co-operation of the county commissioners, instead of acting for themselves as is usual, or whether the county commissioners have been applied to and declined to co-operate, or if they have, for what reasons they have thought it expedient to do so, is not stated in the answer. It is admitted that the street has never been opened by them; and that being the case, to use the language of Mr. Justice Baldwin, 1 Baldwin’s Rep. 230, it is manifest “that the steps have not been taken which are made indispensable to the defendants’ right to enter upon and take ’possession of the complainant’s property; and they now stand before the Court as if their charter contained no provision for compensation, and can stand in no better, until the provisions (of the act of 1838,) are complied with. It would contradict the law, and every principle of justice, to permit the complainant to be disseised, not only without due process of law, but in violation of that which has been prescribed for the benefit of the corporation, and to be handed over to seek his compensation as he may.” Ih. What has happened has been without the act or default of the complainant, and simply frbm the terms in which the law has been enacted, and the failure to carry out those terms in the manner expressly prescribed by the act of assembly.

The subsequent clause authorising the company to lay a double track of rails on the centre of the said street immediately after the passage of this act, and on no other street running parallel therewith, has been urged by the defendants as empowering them to lay down their track at once, without waiting for the opening of the street by the county commissioners. To give the act this construction would be inconsistent with the previous provisions of the law, and effect what it is manifest the legislature did not intend — the taking away the property of the complainant without any resort for compensation; for without such opening, as has already appeared, he could not apply to the Court of Quarter Sessions, and obtain an assessment. No rail-road law has ever gone so far as this, and it is probable never will. It certainly was-not designed by this act. The street, therefore, on which the company are to lay down their rails, is the street laid out by the act after it shall have been opened by the county commissioners, in the manner prescribed, and not before; and the authority to lay the rails immediately after the passage of the act, must be construed in connexion with the context, as an authority to do so, under, and subject to previous provisions and conditions, and as contemplating that the street would be duly opened forthwith and be ready for the laying of the rails.

The allegation of defendants,, of a right under the act of the 2d of April, 1831, incorporating the Philadelphia and Delaware county and Southwark Rail Road Companies, and of their being ready and willing to pay any damages, and being liable to assessment ^therefor, seems to me to confer no right whatever them. The private of one can be taken by another only by the authority of the legislature, and under the terms it prescribes. The act of the 2d of April, 1831, sec. 10, which has been referred to by the counsel for the defendants, authorises the Philadelphia and Delaware county Rail Road Company, to locate and construct a rail-road of one or more tracks, from a point at or near the city -of Philadelphia, thence, along the route of the Baltimore post road, &c. But the rail-road now in question does not run along the route of the Baltimore post road : it runs in another direction from eastward to westward, and if continued would cross it. Besides, this provision is repealed by the third section of the supplement, annexed to the defendants’ answer: and whatever route the company might have been at liberty to take prior to the act of assembly of 1838, yet since that act they cannot take the one it prescribes, except on the terms therein contained.

As to their being liable to assessment for the damages, I think it is clear, on the face of the act of 1838, that it is only the county stock which is liable to the owners of lands, and not the company, although the latter are subjected to an ultimate responsibility for one-third of the expense arising from the increased width of the street, and to the duty of grading the street, for ordinary travelling and use. No proceeding could be had against the company under this law for the assessment of damages sustained by the owners of land; the only proceeding is in the usual manner for a recovery from the county stock, after the street shall have been opened. Nor can any offer by the defendants to pay those damages, or averment of their readiness and willingness to do so, authorise them to take the property of another without his consent, where no act of the legislature authorises them to do so. The private property of another can only he taken by the authority of the law, even though the party taking it is willing and offers to pay for it. If the company could in this way acquire the property, the object of the act of 1838 would be defeated; for if they pay for it in full, it ought to become their exclusive property, and the public would thus be forever deprived of the right to occupy and use it as a street; whereas, it was intended by the act, that it should be both a street and a railway, for the use as well of common wheel carriages, as for rail cars, and that the street should belong to the public, and be, like other streets and roads in the township, under the superintendence of the supervisors.

That this is not a proper case for an injunction, has not been much insisted upon, nor do I think it could be, after the case of Bonaparte v. The Camden and Amboy Rail Road Company, reported 1 Bald. Rep. 205, in which Mr. Justice Baldwin examines the subject with great learning and ability, cites the numerous eases that have been determined, and comes to the conclusion: that the *complainant may recover damages at law, is no answer to the application for an injunction against the permanent appropriation of his property for the road under a claim of right. This is deemed an irreparable injury for which the law can give no adequate remedy, or none equa to that which is given in equity, and is an acknowledged ground for its interference. Trespass is destruction in the eye of equity. It prevents its repetition or continuance, protects the right, arrests the injury, and prevents the wrong. This is a more beneficial and complete remedy than the law can give, and therefore the proper one for a Court of Equity to administer.

Huston, J.,

(after stating the substance of the bill and an-SAver.) — The poAver to grant injunctions, is new in Pennsylvania; to the extent in Avhich it has been used of late years, it is neAV in England; as late as 1786, Lord Thurlow, on an application for an injunction to stay a trespass in cutting timber, directed precedents to be searched for, and none being found, refused the injunction.

Of late years, they are usual to stay waste by tenants for life or for years, at the instance of the remainder-man or reversioner; in the first case, on account of the trusts, and in the latter, because it is alleged as destructive of the timber, or houses wasted, and often without any probability of redress.

We have at present to decide on a case somewhat different from these, and which did not .probably arise in England until within a few years, and within the last twenty in this state, even if we had possessed the power of granting the injunction. I shall not attempt a review of all the cases having any similarity to the one before us.. Judge Baldwin has collected a great many of them, in 1 Baldwin, 218, and following pages. Most of these cases are to be found referred to, and in addition stated and commented on, in Jerome v. Ross, (7 Johns. Chancery, 330,) the last case in which Chancellor Kent gave an opinion. Similar cases had been frequently before him; and very shortly before, in 20th Johns. 737, the whole subject had been fully discussed. That case had originated before a justice of the peace, related to a quarter or a half an acre of land, had been decided by the Supreme Court without any argument by counsel, and was of this nature. The act for laying out the New York Canal had made provisions for ascertaining the value of the land taken, and for payment of the amount found by the appraisers, very much in the manner prescribed by all our acts on similar subjects. In the progress of the work, it was found the canal would in some places be constructed on land then public highways or turnpike roads, and a subsequent act authorised the canal commissioners, in such cases, to make a new road to supply the part occupied by the canal; and in this act there was no provision for compensation to the owner of the taken for such new road. On trespass *brought by the owner of whose land perches had been so taken to a of a turnpike road, the justice gave judgment for the agents of the canal commissioners. The Supreme Court' reversed this judgment. In delivering the opinion of the Court, Spencer, J., in speaking of the canal, and the act authorising the construction of it, says, (20 Johns. 104,) “ For such objects it does not admit of a doubt, that the canal commissioners and their engineers and agents had a right to enter on and occupy land necessary to effectuate the objects of their appointment without having paid the loss and damage which the proprietor may sustain.” Again, “ the authority to enter is absolute, and does not depend on the appraisal and payment.” But he considers the land taken in that case, as not for the use of the canal, but for the turnpike road; and he considers the turnpike a private road, and there being no provision for payment of land taken for their use, the opening the road in question was a trespass, in his opinion. On a writ of error Kent, C. delivered the unanimous opinion of that Court. And first, he decided, that although the turnpike was made by a company, it was a public highway. (This Court decided the same point in M‘Clanahan v. Curwin, (3 Yeates, 363,) and often since.) And second, that if the turnpike already made was necessary for the canal, the part made new to supply what had been taken, being necessary for the public, the land occupied by it was lawfully entered on by the canal commissioners. He says, “ the commissioners were made judges of what lands were necessary for the prosecution of the improvements, and if they even erred in judgment as to the extent, or the greater or less degree of necessity, they would not be responsible as trespassers, unless they acted in bad faith, or such egregious indiscretion as to amount to it.” And again, “ they must act with good faith, and sound common sense, and then it was impossible for them to be guilty of trespass.” Again, “ every interpretation which leads to an absurdity, or to embarrass or defeat the objects of the statute, is to he avoided/’' He then states, that all acts on the same subject are to be considered, and if the part of the turnpike was necessary for the canal, and the canal commissioners were authorised to take it, and make a new piece of turnpike for the use of the public, all this will be compensated for, under the first act; and if provision for compensation is made by any act, it is sufficient: and adds, “I should doubt exceedingly, whether the general principle that private property shall not be taken for public use, without compensation, is to be carried so far, as to make a public officer, who enters on private property, by virtue of legislative authority specially given, for a public purpose, a trespasser, if he enter before the property has been paid for.” And he adds: “ The Supreme Court admit thisand the decision of the Supreme Court was reversed. But there is in one part of this opinion, a dictum which would seem to authorise Judge Baldwin to ^suppose it was Mr. Kent’s opinion, that chancery could stop a public improvement, making under a law of the state, until some future law should prescribe for compensation, if it was doubtful whether such provision was made by any existing law. The very point, however, came before him as Chancellor, in 7 Johnson, 330. It was decided in that case, that for a naked trespass, for which compensation could be made in money, the party must resort to his action of trespass. An injunction will not be granted unless under special circumstances; or where the injury was irreparable; • or there was an intention not only to injure, but actually to destroy the subject in dispute-; and some of the cases cited speak of property being of peculiar value for special purpose. All these are cases between private persons. The state has the unquestionable right to take property for public use; that is, to destroy all the right of the individual to that property — to pull down, or dig up, or haul away any property. As to the injury being irreparable, is there any such case ? Is there any house or land which is necessary for public use, for which it is impossible to make a full and adequate compensation ? But that question does not arise in the case before us; for there is no unimproved lot of ground separate from any other property of its owner which is not susceptible of valuation and compensation.

That case was an application for an injunction to prevent the commissioners from taking stone from the plaintiff’s land, at a place sixty rods distant from any part of the canal. The stone alone were wanted; the ground whence it was taken, was not excavated, and not intended to be permanently occupied; and it was contended, that it was not a case in which compensation was provided for by any act. The chancellor considered it within the spirit, if not within the letter of the statute; and he says, “ we must take expressions in the most extensive sense, when it is probable the lawgiver had in view everything pointed out by that -extensive sense, and when we give to the expressions. the sense most suitable to the subject, and best adapted to the facility and success of a great and generous scheme of public policy.”

The chancellor reviews all the cases in England and New York, in which injunctions had been granted against canal companies, or other companies acting under a law, and shows, that in every case it was where they had exceeded their authority, or acted directly contrary to it; and no case Avhere they had acted according to its spirit and letter. He then considers the case as one in Ayhich the legislature had omitted to make provision for damages, and says, (page 344,) the omission, if it is one, does not prevent the right of the commissioners to enter and use the land, nor prevent the just claim of the owner from the commissioners, or the legislature, for his reasonable compensation. The commisioners are not trespassers when the act authorises them to enter, if they enter before *the damages are paid: (this was so decided in 20 Johns. 737). The claim for compensation arises after the use has been had, and the damages cannot Avell be assessed before they have arisen. Whatever, therefore, may be the better construction of the mode of ascertaining and enforcing the compensation, it does not affect the right of the commissioners to enter, nor justify the interference of a Court of Equity to interdict their .entry.” And in the next page he concludes by saying; “ but the question of compensation is distinct from the right of entry- to take and use the land necessary for the purpose of the improvements; and that right I hold to be unquestionable, provided it be not abused in the exercise, through want of good faith -or due discretion’” -and on both grounds the injunction was dissolved.

The act of 2d April, 1831, section 11, authorises this company to enter for the purpose of exploring, locating, &c. ’ and after the route shall be determined, it authorises as follows: “it shall be lawful for the said company, their engineers, agents, officers, contractors, and servants, at any time to enter upon, take possession of, and use said land, subject however to such compensation as the said company may have agreed to pay therefor, or as shall be ascertained in manner hereinafter respectively directed.”

Section 12, provides, that where the company cannot agree, or where from infancy or other incapacity, or from the absence of tlie owner, no agreement can be made, the Court of Common Pleas of the proper county, shall, on the application of either party, nominate and appoint twelve discreet and disinterested persons, &c. &c., and provides for notice by the sheriff to the parties and appraisers, and that each of the twelve shall be sworn that he will faithfully, justly and impartially value the land occupied or required for such rail-road, or other works, and all damages which the owner or owners shall sustain, or may have siistained, by reason of the construction of said rail-road and other works, taking into consideration the advantages as well as disadvantages of the same, to the said owner or owners, according to the best of his skill and judgment. The report is to be returned to the next Court; exceptions may be filed by either party within twenty days; the Court may affirm the same or set it aside, or issue a new precept; and when a report shall be confirmed, it shall have the effect of a judgment.

Under this act the road has been made to the suburbs of Philadelphia. Some difficulty having arisen after crossing the Schuylkill, the legislature, on the 27th of February, 1838, enacted, &c.

It is not certain when Prime street, west of Eleventh street, was laid out, or whether it was at all laid out in that part. I should suppose, as the rail-road company were to pay for the increased width of the road, that it had some width before; and then the meaning of the act will be, not that it shall be laid out, but laid out of the same breadth as it is east of Broad street. Many of the streets in the *vicinity of this city are laid out, and not opened the whole length, until ordered so to be by the Court -on petition: and in more than one instance, the legislature have passed laws -directing said streets, or parts of them, to be opened. The act in this case directs, that the commissioners shall forthwith open this Prime street — that is, open it of the breadth of one hundred feet. The rail-road company do not require so broad a space; thirty-three feet in the middle of the street is allotted to them; and they are authorised “ to lay a double track of rails on th-e centre of this street, immediately after the passage <of this act.”

The whole road from Baltimore to this city was completed to the Schuylkill; it was, I suppose, not contemplated, that the commissioners would neglect or refuse to open the street; but it was foreseen that the assessment of damages, appeals, and perhaps new assessments, might take some time, and is expressly enacted, as aforesaid, that the road may be completed without a day’s delay after passing that act. If the road cannot be made on this street, it is stopped, for the act expressly directs, that the rails shall be laid on Prime street, and on. no other street running parallel therewith. The road or street in question lies in Passyunk township, adjoining this city. By the seventh, eighth and ninth sections of the act of the 13th of June, 1836, the owner of any land through which a public road shall be opened, &c., may apply by petition to the Court of Quarter Sessions, who shall appoint six viewers, &c.; and this law makes full provision for ascertaining the damage, and the payment of it; but the company have no authority to petition the Court for viewers, nor the Court to appoint viewers on their petition. The applicant for this injunction can proceed to have his damages assessed. Instead of proceeding iu that way, he applies to this Court for an injunction, until the damages are ascertained— which can never be ascertained, unless he petitions the Court of Quarter Sessions.

The act above cited is express and positive, that the commissioners may proceed to make this road, and lay their rails, without waiting for the action of the commissioners in opening the whole width of one hundred feet. It is to be done immediately after the passage of this act — not immediately after the street is opened.

The act is in some respects different from many others: it fixes with precision the site of the road, and prohibits any variation from it: it provides for compensation. But the petitioner alone can obtain the viewers: the company cannot proceed to have damages ascertained.

The object and intention of the law is as plain as its words. It was foreseen, -that in the neighborhood of this city, every difficulty and obstruction which' individual cupidity or perverseness could suggest would be thrown in the way of the company ; and it made *provision to arrest all this, and have important road at once completed.

If this man, instead of proceeding as is provided in all our road laws, rail-road laws and canal laws, can disregard the whole of their provisions, and ask an injunction — and if this Court will grant it, there is an end of internal improvements.

There can be no case imagined, where it may not be exercised as properly as in this case. The land is not improved: if the draft exhibited is correct, only somewhere between one quarter of an acre and an acre and a quarter will be occupied, and that near a corner of a ten acre lot.

As to the power of this Court. No Court ever declared an act of the legislature unconstitutional on motion, or on application for an injunction, if there was the smallest doubt. Judge Baldwin expressly states that his impression was, that the act of New Jersey was unconstitutional; but says he cannot declare it to be so in a question as to an injunction. And in the case before him, he only granted the injunction until the survey was filed, and the report of the commissioners was made, both of which were required by the act of assembly of New Jersey.

I shall conclude by a refrence to the last decision of this Court on the power of the legislature, and the subject of compensation. It had been decided before in 3d Yeates, 363, that a turnpike road was not private property, but a public highway; that laws forbidding a valuation of damages, until the work was done, and the appraisers could fairly estimate the injury, was constitutional: and Chancellor Kent thought it the most proper time. By an act of assembly of the 7th of April, 1832, it was provided, that on proper examination in the mode there prescribed, a street might be opened in the city of Pittsburg; and it was opened; some buildings, or parts of buildings, were pulled down, and the ground on which they stood converted into a street. By the law, this damage was to be rateably assessed on the owners of contiguous lots, who would derive benefit from the street being opened; and it was so assessed; but no method of enforcing the payment was found in the law. On the 6th of April, 1833, and while the Courts at Pittsburg were considering of objections to the reports of damages and assessments on those who were to pay, another act was passed, directing that the sums assessed on the contiguous lots should be a lien on the lots respectively, and recoverable by sci. fa. and judgment and execution. On a writ of error to one of those suits of sci. fa. it was objected, that the first act was unconstitutional, because it provided no mode of compelling compensation; and the second, bocause the advantage to the owners of the lots or parts of lots on which buildings had stood, was to be estimated. This Court decided both acts to be constitutional. ' See M‘Masters v. The Commonwealth, (3 Watts, 292). This case recognises the same doctrine cited from the New York *cases; the right to take property for public improvements, of the propriety and utility of which improvements the legislature is to judge; that compensation must be made; but the legislature have the power of directing the mode of ascertaining the damages, and enforcing the payment of them; and that a law is not unconstitutional, because a particular individual thinks a better mode of proceeding might have been adopted.

I consider the case before us as nothing but a question on the constitutionality of this act of the 27th February, 1838, I cannot raise in my own mind a doubt of its own meaning. I cannot reject the words “ are hereby authorised to lay a double track of rails on the centre of this street, immediately after the passage of this act,” and substitute the words immediately after the street shall he opened. The expressions are different, and I believe the intention was as different. The commissioners might refuse to open ; be indicted; convicted; go oiit of office ; and the same proceeding against their successors. At all events, the intention was the speedy completion of the road, and the certainty of compensation. The authority to enter is express and special. The road company can do no act to hasten the proceedings : the time of compensation depends on the complainant and the Court. The company offer to pay under either act. They must pay directly to the complainant, and not to the county. I cannot believe we have the power to resist an act of assembly which is not openly said to be unconstitutional, and which repeated decisions of this Court have sanctioned. I can see in this proceding what will stop every entry on land to make every canal or railroad. A man has nothing to do but refuse to ask compensation in the mode prescribed by law, and come to this Court to suspend its execution — nay, to send officers to resist its execution, whenever it can be made to appear to our satisfaction, not that it provides no compensation, but that a better or more speedy mode of compensation might have been devised. Canals and rail-roads have been begun, and not completed for months, nay, for years : the law makes no provision for compensation, nor even for assessment of damage, until it is completed; and we have decided that such cases are valid. The county officers are directed to open a street forthwith. I Avould consider this street as open, Avhen its precise course and breadth is specially designated in the law. The commissioners of rail-roads are authorised to enter instantly; and Ave are asked to presume the county officers will resist the law, and never open the road, and the owner will never be paid, or not paid for a month or two; and in defiance of the laws, and' in contradiction to our own decisions, and those of the most distinguished jurists of other states,-to arrest in a summary proceeding the execution of the law, and the completion of this improvement, and establish a precedent which may stop every improvement — to disregard plain expressions in a statute, and treat the authority of the legislature °f our state : and I cannot ^conceive any thing of worse example, or likely to produce worse effect, than one branch of our government disregarding, not to say contradicting and setting at naught, the acts and doings of another. All former decision says we are not to resist or deny effect to a law, unless it is so clearly void, as to remove all doubt. This law is not said to be clearly void, or even void; yet we resist it, because it is not in every respect framed in a manner most agreeable to the complainant, and suspend it (as I understand the decision, at least,) until this Court meet in December, even though the county commissioners should open the street within a fortnight. I say it is the legislature we resist: the rail-road company have acted as the law directed them to act. They have omitted no act required of them, or directed to be done by them : it is neither more nor less than an injunction to restrain them from acting as the law directs them to act; that is, it is a decision that the law is unconstitutional, or defective in some way which gives this Court power to suspend it. Believing it to be neither unconstitutional, nor unjust, nor unwise, I cannot agree to the decision.

Motion refused.

Cited by Counsel, 10 Casey, 383 ; 1 Grant, 417 ; 2 Ashmead, 216.

Cited by the Court, 2 Harris, 196; 12 Id. 100: 1 Grant, 93; 5 P. F. Smith, 138.