Smith v. Reading City Passenger Ry., 156 Pa. 5

Smith v. Reading City Passenger Ry.

156 Pa. 5 | Pa. | 1893

Opinion by

Mr. Justice Wileiams,

The appellants, who are stockholders in the Reading City Passenger Railway Company, deny the power of that company to make a lease of its road and franchises to the Reading Traction Company, and ask an injunction to prevent the consummation of such lease. The court below awarded a preliminary injunction which it afterwards dissolved, and this appeal is from the decree dissolving the preliminary injunction. It is conceded that the Reading City Passenger Railway has no power under its charter or its supplementary legislation to make the lease proposed. It is equally clear that such power is not given by any general law relating to city passenger railways.

*8The appellees claim to derive it however from an act passed in 1887, entitled “ An act for the incorporation and regulation of motor power companies for operating railways by cables, electrical, or other means.” The first section of this act defines the powers of the companies to be created under it; and subdivision 8 of this section declares that they shall have the power “ to lease the property and franchises of passenger railwa)1- companies and operate them.” It will be seen that the title of this act gives no hint of a purpose, to enlarge the powers of city passenger railways. It is also very clear that there is no express provision in the act itself that makes such enlargement or undertakes to do so. The question raised is whether such enlargement of the powers of city passenger railways results by necessary implication from the grant of power to motor companies contained in the eighth subdivision of the first section of the act of 1887 ? This is a question of much practical importance in the present state of legislation on this subject, and it is beset with serious difficulty. A preliminary injunction is not ordinarily a matter of right. It has been refused by the court below. We are asked to dispose of the legal question involved upon an appeal from this preliminary order. Under all the circumstances, as we understand them from the affidavits before us, we are unwilling to do so. We shall leave the present status undisturbed, and will meet the question of ultra vires when the case is reached on final hearing.