232 Pa. 525 | Pa. | 1911
Opinion by
The court below dismissed the bill upon the ground that the provision of the ordinance of councils, "That the said borough of New Cumberland shall have the option before all other persons or corporations to purchase the complete and entire plant of the said H. M. Horner at the end of ten (10) years as provided for by the existing laws of the State of Pennsylvania, and if no purchase is made by the borough at the end of ten years, then this ordinance is to remain in full force until waterworks are purchased by said borough,” did not serve to reduce the time fixed in clause 7, of sec. 34, of the Act of April 29, 1874, P. L. 73, to ten years, but merely gave the borough a contingent right to purchase the water company’s plant before all others at the end of the ten years named in the ordinance, provided the water company was then willing to sell, or, in the words of the court below, it simply meant that "at the end of ten years there can be no sale by the company of its property and rights to ‘other persons or corporations’ without first offering it to the borough.” We cannot agree with this construction. We interpret the words used to mean that the borough shall have the right to acquire the water plant upon the terms provided in the act of 1874, supra, at any time after ten years, instead of "at any time after twenty years” as fixed in the statute.
The defendants contend, however, that they' had a charter right under the act of 1874 to enter the borough and install their plant, and therefore the ordinance was not binding upon them. It is to be noted that these companies were not incorporated until after the date of the grant to Horner, and, as we understand the case from the averments of the bill demurred to, they are the assignees of the Horner privileges which were passed for the benefit
In the case just cited we remitted the record to the court below with directions to transfer the cause to the law side of the court. This was done in acquiescence with sec. 3, of the Act. of June 7,1907, P. L. 440, which provides: “If upon an appeal, after a decision upon the merits, the question whether the suit should have been brought at law is not specifically raised by the defendant’s assignments of error, the question shall be deemed to have been waived, and the decree below shall not be reversed or set aside because the suit should have been brought at law. If it is so raised, and the decision of the appellate court is that the suit should have been brought at law, it shall remit ' the cause to the court below, with directions to transfer it to the law side of the court. . . . The plaintiff shall not be permitted to raise the question» upon his appeal after a decision upon the merits, nor shall the decree below be reversed or set aside upon his appeal, because the suit should have been brought at law.” In the Williamsport case the appeal was by the defendant and the assignments
Since the suit was instituted in equity and tried without jurisdiction, a judgment in favor of the plaintiff could not have been sustained had it been entered (Lewisburg Bridge Co. v. County of Union, et al., decided at this term, ante, p. 255 — and cases there cited); under these circumstances we shall not disturb the dismissal of the bill; although, as before indicated, if the error assigned as to the construction placed upon the ordinance were the only matter before the court for decision, we should sustain the specifications and reverse the decree with a procedendo.
The appeal is dismissed, without prejudice; the costs to be divided between the parties.