168 Pa. 181 | Pa. | 1895
Opinion by
This case is so clearly within the principle of Allegheny v. Millville etc. Ry. Co., 159 Pa. 411, that it would be sufficient to reverse it with a reference to that decison, in which it was held that the consent of the local authorities is a prerequisite-to the construction of a passenger railway, and that if such consent is given upon conditions, the railway company must-take it subject thereto or not at all.
It is strenuously argued that even if the limitation of fourteen months was valid as a part of the consent, it was at most a condition subsequent and there was no express stipulation for a forfeiture. But the question here is not of forfeiture, but of consent, and a consent revoked in accordance with the terms on which it was originally granted, is the same as none at all. The time limit was an express stipulation of the contract, and one of the conditions on which the consent was given. Time was plainly meant to be of the essence of the contract, to protect the public in their right to the prompt enjoyment of the benefits accruing to them from the franchise. There was no measure of damages for delay and the only way that the public rights could be' adequately enforced was by making the time essential. It is said that the township had ample protection in the provisions of the act of 1889, and if the road was not built in two years, the commonwealth would no doubt afford relief. But the township was not bound to wait two years, as already shown, nor was it bound to depend for enforcement of its rights on the favor of the commonwealth. It had the matter in its own hands, by the requirement of its consent, and it protected its rights by giving its consent on condition. When a breach of the condition occurred the consent became revocable, and was revoked. Thereafter it was as if it had never been given.
We find no difficulty about the jurisdiction in equity, nor about the necessary parties. There is no question here of forfeiture of the charter or the franchises of the company. If the revocation of the township’s consent does as a practical result prevent the exercise of the franchise and render the charter ineffective, that is nevertheless in law only a collateral incident, and is no more than a refusal of consent would have done in the first place. If the appellee had undertaken to build without any consent at all, it would have been an act without authority, and for which there was no adequate measure of damages at law. Such acts equity always enjoins: Groff’s Appeal, 128 Pa. 621. Here the question is legally the same: is the appellee now undertaking to build without consent, because the consent given was conditional and has been revoked for breach of the
Much of the appellee’s argument was devoted to the question of good faith on its part, and the hardship of a revocation of consent under the circumstances causing the delay. Those matters are for the township authorities, not for us.
Decree reversed, bill reinstated, and injunction directed to be awarded as prayed, and made perpetual. Costs to be paid by appellee.