Tamaqua & Lansford Street Railway v. Inter-County Street Railway

167 Pa. 91 | Pa. | 1895

Opinion by

Mb,. Justice Williams,

The question raised by the first, second, third and fourth assignments of error has just been decided in the Lehigh Coal and Navigation Company v. The Inter County-Street Railway Company, ante, p. 75. It is not necessary to repeat what is there said. We have no doubt that the consent obtained from Coll was invalid for the reason stated by the learned judge of the court below, and for the further reason stated in the Penna. Schuylkill Valley Railroad Company v. The Montgomery County Street Railway Company, ante, p. 62, also decided at the present term. It was the action of an individual upon a consideration moving to him as an individual, and not the action of an officer, appearing upon the records of the township where the evidence of official action should appear.

The fifth assignment is sustained. When a corporation comes into a court of equity claiming rights against the public under an agreement purporting to be executed by township officers the agreement should be conseionable and it should have been obtained by fair and conseionable methods. The learned judge found the evidence relating to the execution of the consent by Coll to the Tamaqua and Lansford Company to be directly conflicting, and he adopted the rule of law saying “ We have no other guide than the seeming preponderance ” of the testimony, and testing the validity of the alleged consent of the local authorities of Rahu township by what seemed to him to be the preponderance of a mass of contradictory testimony, he sustained the validity of the consent. We find no fault with the view of the learned judge as to the existence of a “seeming preponderance,” but we cannot agree that the chancellor was bound by it. On the contrary, we hold that the alleged consent was ineffective for two reasons: First, it was extorted from the individual who held the office of supervisor by methods that a court of equity cannot approve, and it ought not in fairness towards the citizens and taxpayers of the township to be held binding upon them for this reason if for no other. But second, another and a sufficient reason is found in the fact that the giving of the alleged consent was not an official act. The time, the place, the occasion, were of the appointment of the company and for their benefit. The action was not taken at a meeting of the supervisors regular or special. It was -not entered upon the books of the township in the possession of the town clerk. No record of any sort was made, of what was done because no official action was taken. A frightened man executed a paper adding his official title to his name, but this did not make it the official action of the supervisors. This was a subject for deliberation, a subject of importance, not to the man but to the township whose officer he was, and the action should have been taken upon an intelligent consideration of the interests of the township and regularly entered on the proper township book. The evidence of such an official act should not rest upon a piece of paper in the pocket of a private individual who may not be a citizen of the township or within reach of its taxpayers.

But this conclusion does not require us to reverse the decree. The defendant is absolutely without authority to occupy the township roads and the injunction was properly ordered. The plaintiff held a charter which the commonwealth had not disturbed and which conferred a right, prima facie, to secure consent and proceed with the building of its roads if the township and the property holders were willing. This consent it claimed to have. It had a right to be heard therefore upon the validity of the consent of the township set up by the defendant in opposition to that held by itself. Both grants could not stand. Each contended that the grant to the other was bad. Both were right.

The fact that neither company has a valid consent from the township to occupy the public roads under the papers now before us, is no reason why the injunction ordered in this case should not stand.

The decree is affirmed. The costs to be paid by the appellant.