concurred as follows:—
Believing the Act of the General Assembly which repealed the charter of the Erie and North-East Railroad Company to be entirely constitutional, I agree with Mr. Justice Black and Mr. Justice Lowrie, in refusing the injunction prayed for. I will merely add that, in my opinion, this act is not only constitutional, but clearly right, and that its terms are as favourable to the company as it had any right to expect.
Lewis, C. J., and Woodward, J., dissented.On the 28th January, 1856, and after the special injunction was refused, the complainants obtained leave to amend their bill of complaint, and in accordance therewith filed amendments alleging in substance: — That they did complete their said railroad as provided for in their charter within ten years, and did not suffer it to go to decay and become impassable for the space of two years, or for any time. And that they have not misused or abused any of *312the privileges granted by their act of incorporation, nor violated their charter by assuming to make an unauthorized location of said road.
And that in the location, construction, and completion of their road, and in all things done or omitted by them, they designed honestly and faithfully to the best of their skill, knowledge, and ability to conform to the Acts of Assembly. And if any failure or departure occurred, it happened by an unintentional mistaken _ construction of their rights and duties, and not by any wilful neglect or default.
The complainants in the amendments filed, further set forth and alleged, that by the Act of the 14th April, 1852, and by their acceptance of and conformity therewith, the state contracted with the complainants that they should have and maintain their road as it was then located, and should hold, possess, enjoy, and retain their corporate rights, privileges, and franchises, notwithstanding any failure, neglect, abuse, or misuse before that time suffered, done, or committed, or any ground of forfeiture; and notwithstanding any claim that might then have been alleged or asserted by the state.
They also alleged, that after the passage of the last-mentioned act, and their acceptance of it, they expended large sums of money in the maintenance and equipment of their road, amounting to not less than $150,000, &e.
They also further averred, that by the proceedings in this court, in the case of The Commonwealth against The Erie and NorthEast Railroad, No. 7, December Term, 1852, and the decree in the same case, the Commonwealth undertook, contracted, and agreed with the complainants, that upon their compliance with the orders, decrees, and mandates of this court in the case aforesaid, the legislature would not, for the abuse and misuse alleged in the bill of complaint and proceedings aforesaid, resume any of the privileges granted to said company by the Act of 12th April, 1842, but that all the privileges and franchises of the said company should be held and enjoyed, notwithstanding the alleged failure to complete the road, and notwithstanding the pretended abuse and misuse of their privileges charged against them.
The answer of 'the defendant was filed on the 22d day of February, 1856. It admitted the act of incorporation as set forth in the bill of complaint, and the right of the complainants to build and use a railroad between the termini therein designated, in the 6th section of the said act. That by the 7th section of the said act, the railroad “ shall be so constructed as not to impede or obstruct the free use of any public road, street, lane, or bridge, now laid out, opened, or built.” And by the 10th section, if the road should not be completed in ten years, so as to bring it into public use, or after completion shall be suffered to go into decay for two years, then the charter to become null and void. And by the 11th *313section it was enacted, “ that if the company misuse 'or abuse any of the privileges hereby granted, the legislature may resume the rights and privileges hereby granted to the said company.” The answer then set forth the Act of the 6th October, 1855, repealing and annulling the charter of the company, and that the legislature, by virtue of the reservation aforesaid, could legally and constitutionally pass the said law. And by reason of the repeal of the said charter, and the provisions in the same law directing the governor of the Commonwealth to take the charge and custody of the railroad of the company, or to appoint and designate a person to do so; he, the defendant, was authorized and commissioned by the governor of the Commonwealth to take the charge and custody of the said Erie and North-East Railroad, and to hold and keep the same pursuant to the several provisions of the said act. And that all his acts and doings in regard to said railroad, were under and by virtue of the Act of 6th October, 1855.
The defendant further alleged that the legislature had full power and authority to pass the said law, and that it was not in any wise repugnant to the Constitution of the United States or the Constitution of this state, and that he the defendant was fully authorized and justified in taking possession of the road, and keeping the same until it should be further disposed of according to law.
The answer further set forth that the company had not located their railroad in such manner that the western terminus of the same was at the borough of Erie, as the same was bounded at the date of the act of incorporation, but fixed and established the said terminus at a point south of the borough line, and obstructed and impeded the free use of the public lanes, streets, alleys, and roads, and that these acts were in violation of their charter, and constituted such abuse and misuse of their privileges as authorized the legislature to repeal their charter.
The respondent denied that there was anything contained in the Act of the 14th April, 1852, or in the judicial proceedings in this court in the case referred to in the bill of complaint, which estopped the legislature from repealing the charter of the complainants, or in any way or manner waived or surrendered the right and power to do so.
But the defendant averred that the company had in fact abused and misused their franchises and privileges, and that by virtue of the right and power reserved in the charter the legislature had full power to repeal the charter for such abuse and misuse. And having done So, the provisions of the said act, and the commission of the governor, gave him, the defendant, full power and authority to take the charge and custody of the railroad of complainants, and keep it in his custody and take the revenues and profits, and apply them as provided for in the Act of the 6th October, 1855.
*314The defendant stated, in answer to one of the interrogatories, that by virtue of the provisions of the Act repealing the charter of the complainants, and the authority and commission of the governor, he had taken the possession of the Erie and North-East Railroad, on the 5th day of February, 1856, and that he purposed keeping the same in his custody and under his control, and taking the profits and revenue thereof and applying the same as directed by said act, until it should be otherwise disposed of according to law.
To this answer there was a general replication by the complainants, and George H. Cutler and James Sill, Esquires, were appointed examiners to take testimony in the cause.
The testimony returned by the commissioners showed,
1st, That the western terminus of the railroad was not at the borough of Erie, as it existed in 1842, but at a point within the extended limits as fixed by the act erecting it into a city in 1851, sixty perches south of the borough line, as it was when the act of incorporation was passed on the 12th April, 1842.
2. That the location of the road, materially interfered with and obstructed the free use of the public lanes, streets, and alleys of the city of Erie.
3. That the railroad of the complainants as located, materially interfered with and obstructed the free use of the Erie and Buffalo public road, in the township of Harbour Creek, in the county of Erie.
On the 22d day of April, 1856, the General Assembly passed an act restoring the charter of the complainants, upon certain conditions. (See P. L. 1856, pp. 565-6-7.) The 4th section of that act contained the following provision: “ The governor shall retain possession of the Erie and North-East Railroad, under the Act of the 6th day of October, 1855, until the provisions of this act shall have been accepted by a vote of the stockholders of the Erie and North-East Railroad Company, called for that purpose.”
In pursuance of this provision, a meeting of the stockholders was called and met at the city of Erie, on the 15th May, 1856, and the Act of the 22d April, 1856, was accepted by them.
The defendant on the 31st May, 1856, interposed this latter Act of Assembly, and its acceptance by the stockholders of the company complainant, as a plea in bar to the bill of complaint.
The cause came on for final hearing before the court in banc, at Harrisburg, on the 7th June, 1856, on the bill, answer, plea, and proofs returned by the examiners.
And defendant also gave in evidence the record in the case of The Commonwealth against The Erie and North East Railroad Company, for the purpose of showing that the company had violated their charter, and had been guilty of abuse and misuse of their privileges and franchises.
*315Stanton and Meredith, for complainants.
Thompson and FranMin, for respondent.
On tbe 16th July, 1856, the opinion of the court was delivered by
Black, J.The Act of 6th October, 1855, repealing the plaintiff’s charter, is asserted to be void and unconstitutional. To try that question this bill was brought. We have considered it without any particular reference to the pleadings, because it was expressly agreed by counsel that everything should be disregarded which might prevent the substantial truth and merits of the case from being reached.
The law is unconstitutional if it would operate to impair the obligation of the contract which was created between the state and the plaintiffs, by the act of incorporation. But the power to repeal in a certain contingency was made part and parcel of that contract. If the power was exercised agreeably to the contract, its obligation was of course not impaired: (2 Mass. 146; 4 Wheat. 708; 2 Kent 306.)
The prominent obligations assumed by the state and the plaintiffs respectively, are seen at a glance. The corporators, on their part, bound themselves to build for the state a railroad, to be used by all the people as a public highway. This railroad was to be made between designated termini within a certain time, and in a prescribed way. In consideration thereof the state consented tq clothe the shareholders with a portion of her own sovereignty, to erect them into a body politic, to delegate to them her right of eminent domain, and to grant them the franchise of taking certain fixéd tolls from all who should travel or carry on her highway aforesaid. But the estate which the corporators were to have in those franchises was expressly limited by this condition, namely, that if the privileges thus given should be abused or misused, the contract might be rescinded by the legislature. If the corpora-tors did in fact abuse or misuse the special privileges with which they were invested by the charter, the resumption of them was not a violation of the contract. It is equally clear that if the company always behaved itself well, complied in good faith with every stipulation to be performed on its own part, and was never guilty of any abuse or misuse, then the repealing act was contrary to the terms of the contract, and unauthorized by the Constitution.
Thus far all are agreed. These legal principles are not disputed at the bar or doubted on the beneh. But the fact that the company did abuse or misuse its corporate privileges, is confidently asserted by one party and strenuously denied by the other. How shall this be settled ?
For the defendant it is insisted that the repealing act is itself *316not only evidence, but conclusive evidence, that the company had previously committed some abuse or misuse which justified the repeal. No case has been cited which denies this doctrine in terms; and it was held for the true rule by the supreme courts of Iowa (1 Greene 561) and of New York (19 Barb. 81). But I do not see clearly the principle upon which it can stand. A legislative body in a matter like this is known to proceed without formal notice, without specific accusation, and without opportunity to answer. There is no confronting of the parties with the witnesses, nor nothing that can be called a hearing or trial. It would, therefore, seem unjust to hold that a legislative act is, like a judicial sentence, conclusive of every fact which ought to have been found before it was passed. It might more plausibly be likened to an award made by an umpire to whom both parties have agreed that the subject should be referred. When one employed to do work for the state consents that its value shall be estimated by a state officer, such estimate is binding. If it be agreed in a contract between a corporation and an individual that all disputes concerning the subject-matter shall be settled by the company’s engineer, the engineer’s decision is final: (4 W. & Ser. 205.) So here the plaintiffs agreed that the legislature might repeal in a certain event, and impliedly referred the whole question to that body. But even on this view it is not conclusive in any absolute sense' of the word; for an award itself may be set aside for plain mistake of law or fact. For myself, I incline to the opinion that when the constitutional power of the legislature to pass a law depends on matter of fact, the party to be affected by it ought to have an opportunity afterwards of showing how the fact is. In saying this, however, I speak for no other member of the court.
But the plaintiffs are not contented with the privilege of having their proofs heard, to show the unconstitutional character of the act. They insist that all intendments are against it.
Either the legislature has violated the constitution, or the railroad company its charter. In whose favour is the strongest presumption ? Legally as well as naturally, it is, we think, with the legislature. But according to the plaintiffs’ argument, we must start with the belief that a board of directors never do wrong, while the General Assembly always acts upon bad motives or false opinions. For a corporation we must have the “ charity that endureth all things, and believeth all things,” but to the legislature of the state we must deny even that common courtesy, which heretofore has always been considered as due from one branch of the government to another. Our experiment of a free representative government is not so bad a failure yet, as this argument would make it appear. We have faith enough still in the political system we live under, to believe that there can be no just comparison between the fidelity of the men chosen to guard the public interests, *317and those who are appointed merely to make gain for a private body of adventurers. We must presume that members of the legislature performed their sjvorn duty. And this presumption is due to them, even when it involves the necessity of supposing that a corporation may have abused its privileges.
All courts have uniformly acted on this principle. It is a maxim, indeed, that he who alleges a law to be unconstitutional, must show it to be so, and if he leaves it in doubt, it is valid. This of course means that the legislature is presumed not only to have put the true interpretation on the constitution, but also to have understood the facts of the particular case, and that it did not wilfully disregard either. It would be strange, certainly, if the judiciary would have so much respect for members of Assembly, as to follow their judgment implicitly in every difficult question of constitutional law, and at the same time so much contempt as to take it for granted that they are always wrong about the simplest matter of fact. The cases are numerous in which laws have been sustained by presuming the facts necessary to free them from constitutional objections. At our last term for the Western District, a case was before us where the title to an estate, which had descended to several heirs, was vested by Act of Assembly, for certain purposes, in one of them. We held that it was our duty, in the absence of proof on the subject, to presume that all parties in interest had consented to it. Crease v. Bobcock, 23 Pick. 334, was exactly like this. The Chelsea Bank had a charter repealable in case a certain default was committed. If was -repealed, and when the constitutionality of the repealing act came up for decision before the Supreme Court of Massachusetts, it was unanimously decided that the fact necessary to make the law valid, must be taken for true, as an inference from the law itself. A few sentences from the elaborate opinion of Judge Morton will show the conclusion of the court. “ The legislature,” says he, “ have restricted themselves from exercising the power of repeal, until a certain event happens. This they must necessarily ascertain before they can properly exercise the power. Their decision must prima facie be presumed right. Whether it be conclusive or not, is a question which it is not now necessary to determine.” The Supreme Court of the United States have given their opinion on the point in a still stronger case, Cooper v. Tellfair, 4 Dall. 14. The legislature of Georgia had passed a law, banishing a citizen and confiscating his property for treason. The state constitution required all treasons to be tried in the county where committed. The law was therefore void, if the offence charged upon the party was committed in any county. The court, for the purpose of sustaining the law, presumed the very improbable fact that the offence, though committed in the state, was not committed within the body of any county. On authority and principle we are clearly of opinion *318that the repealing act must be held constitutional, unless the plaintiffs can show by plain and satisfactory evidence, that the privileges granted in the charter of 1842 were not abused or misused.
But the evidence against the plaintiffs is so strong, that not much is left for presumption to do. In the first place, we have the record of an equity suit, in which it was solemnly decided that the plaintiffs had violated their charter by the commission of certain wrongful acts there mentioned. I do not say that this record proves abuse or misuse of the privileges granted to the corporation; for that was not the point of the inquiry. But it does conclusively establish all the facts charged in the bill, and adjudged to be true by the final decree. Whether those facts amount to abuse and misuse is another question, to be considered presently. This is not all. The same facts substantially have been proved over again by fresh depositions taken in this cause. The parol and record evidence together proves, beyond any possible chance of contradiction, that the plaintiffs put their western terminus, and consequently a portion of their line of road, at places which the act of incorporation did not authorize; taking and using for that purpose ground which they had no right to. touch, and which had been legally devoted to other public purposes. It is equally undeniable that they interfered unnecessarily with several streets, and rendered others wholly impassable; and that part of the Buffalo road was exclusively occupied by them. This was done in the face of a charter which expressly forbade them to obstruct or impede the free use of any public street or road. These are the facts. Now what is abuse or misuse ?
There is nothing profound or mystical about these words. They are not terms of art in the law. The popular sense in which they are used every day is well known. To abuse, is compounded of ab and utor; and in strictness it signifies to injure, diminish in value, or wear away, by using improperly. Catiline abused the patience of the Roman senate. A man abuses his constitution by excesses which impair its vigour. A judge abuses his office not only by taking bribes, but by any misconduct which detracts from its dignity and usefulness. To abuse the freedom of the press, or the right of debate, is a phrase from which we take a perfectly definite idea. We know very well what is meant when it is said that legislative authority or executive power has been abused. Why, then, are we expected not to know that a corporate privilege has been abused, when we see it used as a colour and a pretext for that which the law pronounces a wrong and injury to the public ? Misuse is a still simpler word. It signifies merely to use amiss. He who would prove that any power has not been misused, must' show that it has been always used rightly, or else not used at all.
But I admit that these words, like all others, may have different *319meanings, when spoken with reference to different subjects. Acts which would be an abuse of one thing may be no abuse of another. We are therefore to ascertain precisely what is abuse or misuse of corporate privileges by a company. Abuse includes misuse. We take them both together and define them thus: Any positive act in violation of the charter, and in derogation of public right, wilfully done or caused to be done by those appointed to manage the general concerns of the corporation. Let us analyze this definition.
1. The illegal act must be positive. A mere omission, like the failure of a bank to make its annual returns, is not enough. Non-use is a different thing from abuse or misuse. 2. A disregard of the charter which is injurious only to private interests, and which therefore admits of private compensation, is not, I think, within the fair meaning of the Avords. It must be some misconduct which infringes upon a right reserved by the state for the benefit of the public. 8. It must be wilful: that is, not involuntary, accidental, or the consequence of mere mistake. But I mean mistake of fact. Every man is bound to know the law. Especially are the grantees of a privilege like this bound to know the law Avbich limits and defines its extent. They bargained to obey the charter, not as they and their successors might happen to understand it, but according to its true intent and meaning. If we could allow them to have an advantage from their own errors of interpretation, then every grant of corporate privileges must be measured not by the terms of the grant itself, but by the ignorance of the grante.es. A power not large when understandingly administered, might become enormous in the hands of dunces; and the dimensions of the same charter would dilate and contract in proportion to the degree of intelligence that each new set of directors would bring to the business. So high a premium for ignorance would cause it to be feigned sometimes, Avhen it does not exist. The rule is a wise one which conclusively presumes that the managers of railroad companies, like everybody else, understand the law which prescribes their duties. 4. It cannot be said that the company has been guilty of abuse and misuse every time a subordinate officer or agent transgresses the act of incorporation, without authority, express or implied, from the board of directors. It is not sufficient, for instance, that a conductor of his own head should charge an exorbitant fare. But if the directors should establish a tariff of tolls greater than the law alloAVS, and compel the public to pay them, this would be a manifest abuse.
The plaintiffs have set up no excuse for their misconduct, except that they did not understand the act of incorporation. This is wholly inadmissible in point of law. As a matter of fact, it is more than doubtful. The act of incorporation fixed their terminus *320at the borough of Erie. They knew exactly where this was in 1842, when they got the charter. It is hard to see how anything but wilful blindness could make them believe that a subsequent change in the limits of the borough, and its erection into a city, was an extension of their charter. But allowing this to pass, what can be said for their obstruction of roads and streets ? They could not misread the command on that subject. The same clause forbids them to take down a dwelling-house, or run through a graveyard. They could shut their eyes as easily on the whole as on a part of the prohibition. They had the charter six years before they struck a blow. There was time enough for deliberation and consultation. Then they used it as a colour for the commission of public wrongs, which it expressly forbade. They lived in the guilt of these wrongs, and in the daily repetition of them, for six years more, and yielded at last only to the pow'er of an injunction. To say now that all this was involuntary, accidental; a mere innocent blunder, is not a defence but an offence.
Much has been said in argument about the consent which the councils and people of Erie gave to the illegal location. It cannot be said that the evidence fairly makes out this fact. Some of the citizens were in favour of it, some opposed it, many were silenced by the assurance that it was a mere temporary arrangement, and the majority perhaps were indifferent. The councils gave their assent with the express proviso, that they might withdraw it whenever they saw fit. But if the councils had given their absolute consent, and the whole population had backed them, what would it amount to ? It might serve some purpose as a makeweight in settling the balance of mutual grievances between the town and the railroad companies, but no man can seriously believe that it is a legal excuse, or that it would change the responsibilities of these plaintiffs to the state. I must do their counsel the justice to say that they have not urged it as having that effect.
When the cause first came before us on the motion for a special injunction, the bill was not so framed as to deny the fact of abuse and misuse. The unconstitutionality of the repealing act was then put principally on the ground, that our decree against the company on the former suit was an estoppel; an estoppel upon the state which prevents her from letting the General Assembly pass a law, or renders it void after it is passed. The notion seemed to be, that whatever was a good defence for a corporation in court on a quo warranto, would be equally available as a ground for setting aside a legislative revocation of its franchises. In other words, a charter that cannot be forfeited, cannot be repealed. Therefore if a railway corporation abuses its powers by committing a nuisance, no court can compel it to abate the nuisance without taking away from the legislature the power of repeal, at least so far as that power depends on the same abuse.
*321There is not the faintest resemblance between the forfeiture and the repeal of a charter, except'that dissolution of the corporation is a consequence of both. One is a legislative, and the other a judicial act. The power of the legislature and the power of the court are based on different foundations: are bestowed for different purposes, depend on different principles, are exercised in different ways, and their acts are valid or void for different reasons. The right of repeal (if it be reserved) is a limitation of the estate, which the corporators have in the franchises; forfeiture takes away the franchises whatever may be the extent of the grant. The Commonwealth can come into one of her courts and claim a forfeiture only when there is no rule of law to forbid it; but a charter may be repealed without regard to the law, unless it be protected by some specific prohibition of the constitution. The law in some cases will enable a corporation, which is arraigned on a quo warranto to keep the truth away from the court, by pleading an estoppel; but the constitution does not forbid the legislature to know and act upon the truth in any case, whatever. Courts it is said lean against forfeitures; and this is perhaps truer, than it ought to be; but the legislative department of the government, when it has the control of a corporation, must be allowed to- lean as it pleases. The annals of jurisprudence do not show that these two things have ever been confounded before.
Nor will it do to say that the facts and legal principles now invoked to save this corporation are part of the contract. The contract made the right of repeal dependent on the fact of misuse or abuse alone. If there was misuse or abuse, the repeal merely enforced the contract. It is alleged that, since the contract was made and broken, certain other things have been done which puts the parties in a new relation, and forbids the enforcement of the contract. It is unreasonable and contradictory in terms to say that what estops a party from setting up or claiming under a contract is, or can be, a part of the same contract.
In Satterlee v. Matthewson (2 Peters 411), the title to- the land in dispute depended on the question whether a certain lease created the relation of landlord and tenant. It did not. When made it was wholly null and void because the lessor claimed under a Connecticut title. The legislature passed a law declaring that the relation of landlord and tenant should nevertheless be deemed and taken to exist. This legislative act changed the effect of the lease to the prejudice of one party and the advantage of the other, and by consequence it destroyed a legal title previously vested. But it was held constitutional by this court and by the Supreme ' Court of the United States, though censured as unwise, unjust, retrospective, and a violation of vested rights. It was declared that to validate a void contract was not to impair it, and if the law was clear of that specific objection no other could avail. The prin*322ciple of Satterlee v. Matthewson was enforced in Mercer v. Watson (1 Watts 355) with, one of Judge Gibson’s irresistible arguments and by Judge Baldwin, with a force nearly equal, in Thomson v. Philips (1 Baldw. 284), and in Branch v. Boggs (1 Baldw. 60). If the highest authority directly on the point is to be binding — if we are not to make the law as we go — we must take it for settled that Art. I., Sec. 10, of the Federal Constitution, or Art. IX., Sec. 10, of the State Constitution is not violated by an Act of Assembly unless the act would operate directly on some contract, and literally impair its obligation. The act under examination has no direct operation on the contract, except to enforce one of its provisions. The compliance of the company with our decree may have created obligations on the part of the state to be generous, to use her authority with moderation, and to let the violators of her law pass without further chastisement. But they were not obligations of the contract. Whether they existed, and if they did, whether they should be regarded or not, were questions for the legislature to decide.
If we would declare a legislative act void on the ground of estoppel, the doctrine would render all reservation of the right to repeal nugatory. No matter how absolute and unconditional the right of repeal is, its exercise would be open to this sort of objection. In almost any case, a corporation could say to the state, “You saw our money subscribed, our labour expended, and the public work performed — our charter is not liable to forfeiture in court — you are estopped.” These arguments would have been no weaker in the present case, if the reservation had been absolute, than they are now with a reservation dependent on a condition which the corporators have broken. McLarren v. Pennington (1 Paige 107) was the case of a bank charter with an absolute right of repeal. The state took a bonus of $25,000 for the charter, and repealed it in less than a year afterwards. Was not the receipt of the bonus a complete estoppel ? In court it would be certainly. But if the bank had thought of setting it up as a ground for declaring the repeal void, the answer would have been simply that the repeal was not contrary to the contract. The same answer here is quite as effectual.
I cannot say that this idea of an estoppel on the legislature has been abandoned; for I know not that the company’s counsel are convinced of its fallacy. But it is certain that at the final argument it was not insisted on, and the bill has been changed so as to take different ground. It is now alleged that the Act of 14th April, 1852, and the decree of this court, pronounced on the 7th September, 1854, were new contracts between the state and the company, by both of which the state promised to waive all previous abuse and misuse, and not to repeal the charter on account thereof. If there were such contracts, the repealing act certainly *323impaired their obligation, and is therefore void. Let us see if the fact be true as asserted.
We are obliged here again to repeat what has been so often said, that a contract between the state and a corporation cannot be raised by implication. Judicial construction in favour of a company will go so far, and so far .only, as the state or her authorized agents intended to go when the contract was made; and that intention must be expressed in words too plain for doubt. Apply this to the Act of 1852. It authorizes the stockholders to vote for directors in a yvay which had been previously forbidden, and it contains a general provision relative to the gauge of railroads in Erie county. But no intention to embrace any other subject is hinted at in the remotest manner. Yet we are asked to declare that there is an agreement in it not to use the repealing power according to the terms of the original charter. We could insert anything else into it just as easily. We might as well say that it contains a contract to sell the Commonwealth out and out.
It is, if possible, more difficult still to make a contract out of -our decree for the removal of the road. It has no single element of a contract in it. No thought of bargaining was in the mind of any judge or counsel or party. Least of all, did we intend to take from the General Assembly any power which the constitution bestowed, or add any privilege to the company which the charter did not give. On the contrary, we expressly declared that nothing beyond the. charter could be expected at our hands. If we have any authority to make a new contract, or to change the terms of an old one between the state and a corporation, we have all along been mistaking the nature of our functions; and if a decree and a contract be the same thing, we have heretofore misunderstood the meaning of both words.
The preamble of the repealing act has been criticised with a minuteness which its importance does not warrant. It is no part of the law. When the words of the enacting -clause are very doubtful, we may look at the preamble as one means of discovering the intent of the lawgiver. It is a very unsatisfactory resort even for that purpose, as is abundantly shown by the authorities collected in Dwarris on Statutes, p. 655, and by general opinions of this court: 1 Watts 355; 4 Ser. & R. 151. But this is no question of construction. Nobody doubts the meaning of the act under consideration. It is undeniably intended to repeal the company’s charter; and what is more, the preamble has not a word in it inconsistent with that intention. It is conceded that the preamble is inartistieally drawn. Some important facts are" omitted, and others are defectively stated. But the law would be go'od without a preamble, and a bad one does not hurt it. If the proposition could be admitted that a statute of which the whole enacting part is clear, unambiguous, and free from all conflict with *324the lex legum, is nevertheless void because it does not accord with something said in the preamble, it would form a head of constitutional law as new and rather more startling than that of estoppel itself. We have said that estoppel is no part of the constitution; but preambles are not even part of the law.
J It is further objected to this law, that it is an act of confiscation — takes private property for the public use of the state without compensation. The government of the United States is forbidden to do this by the federal constitution. That instrument of course has nothing to do with this part of the case. But the ; state constitution also declares that “ no man’s property shall ’ be taken or applied to public use without the consent of his , representatives, and without compensation being made.” Does this act violate the state constitution in that part of it? We answered this in the negative when we refused the special injunction, and gave reasons which need not now to be repeated. Railroads built under the authority of law for the general purposes o? commerce, are public highways. On this principle alone~we~de-" cided that municipal subscriptions were valid. On this principle alone can land and materials be seized to make them. On this principle alone can the laws be justified which limit the tolls upon them. On this principle alone have we the power, so often exercised, of compelling those who have charge of them to keep within the boundaries of the law. On this principle alone we have always held that no individual or corporation can possibly have any right or privilege connected with them except what the law has expressly conferred. The charter of this company contained a series of regulations presenting the manner in which a public highway should be used; the repeal abolished those regulations and substituted a different set. By the charter, and by the charter alone, were the plaintiffs authorized to interfere with it at all; the repeal necessarily took that authority away. A public highway is not private property any more than a public oflice is private property. The execution of the law relating to an office is intrusted to an individual; a corporation as well as an individual may be intrusted with the execution of the law which relates to a highway. In either case, if the trust be abused it may be withdrawn; but neither the highway nor the office is thereby extinguished. The people still have a right to be served in both, and it is the duty of the state to see that they are. The removed officer has no right to keep the records, and the removed company has no right to keep the road. If this law be unconstitutional because it takes the road from the company, then it follows that no charter of a railroad, canal, or turnpike company can ever be repealed however clear the right, nor forfeited however gross the abuse, without leaving the highway in the possession of the corporators as |their private property, and giving them, as private owners, a con*325trol over it infinitely greater and more dangerous than they had before.
The suggestion that the repealing act will have the effect of putting the road into the possession of the persons whose lands were taken to build it on, is entitled to still less regard. In the first place, it is founded in manifest error. The lands were taken and devoted to public use as a highway for ever, unless the state should see proper to vacate and abandon the road. It has not been vacated or abandoned. It is to be used by the public as heretofore. The public will has been expressed that it shall be hereafter used in a different way, and the public rights upon it be guarded by different agents. If this be a vacation of the road, then the Columbia Railroad would be vacated by a change in the board of canal commissioners. Again, the landholders are not complaining of this law, nor have they authorized the company to complain for them. It is nothing to them whether the state chooses to let the cars run over the road under the command of one agent or another. But even if the landowners were here and could prove that the land has reverted to them by the operation of the repealing act, I presume nobody thinks it would be unconstitutional for that reason.
Another and most important point has been raised in the case on the final argument. Since this bill was brought, and since the motion for a special injunction, to wit, on the 22d of April, 1856, the legislature passed a new act of incorporation for the plaintiffs, giving them new privileges, and imposing upon them new duties and restrictions. This act was accepted by the stockholders, and under it the road has been redelivered to the company. Why then do they insist on a judicial recognition of their franchises under the repealed charter ? This might be hard to answer,.unless it be that they think the old charter more advantageous than the new one. They probably intend, if they can, to repudiate the contract they made with the state in 1856, and fall back upon that of 1842. But could they do this even if the intermediate repealing act were void ? Most certainly not. The charter of 1842 is repealed by the Act of 1856 if it was never repealed before. They will not say that the last-mentioned repeal is void, for they gave it their full assent. These plaintiffs then are before us demanding a restitution of what they call their rights under a contract which they themselves have solemnly agreed to rescind, and in whose place they have substituted a new contract, of which they are at this moment enjoying the benefits and advantages. We are thoroughly satisfied that if there w;ere no other objections to the plaintiffs’ case, we would be obliged to dismiss the bill for the sole reason that the law under which they claim has been repealed with their own consent.
The only specific relief prayed for in the bill, as originally filed, *326was an injunction against the defendant to restrain him from taking possession of the road and collecting the tolls. Under the Act of 1856 they have got already what is better than an injunction — the actual enjoyment of all they ask — the full possession of the road. They need no injunction, and can have none, to protect a right which nobody intends to take away. But they have amended the bill so as to pray for an account. There is no averment nor no evidence of any fact which shows that they ought to have an account. We are convinced that the defendant has no money in his hands to which the plaintiffs even pretend a claim. When this point was discussed at the bar, nobody asserted that the plaintiffs had any just demand upon the defendant for money.
The prayer of the plaintiffs to be protected in the possession of the railroad and its revenues under the charter of 1842, must be refused. — 1st, Because that charter was constitutionally repealed in 1855, for abuse and misuse; 2d, Because it was also repealed in 1856, with their own consent; and 3d, Because they have the railroad in their possession under another charter which they have accepted. Their prayer for an account is refused, because they' show us no ground nor reason for believing that there is any account between them and the defendant.
It is ordered, adjudged, and decreed, that the plaintiffs’ bill of complaint in this cause be dismissed, and that the défendant do recover from the plaintiffs the costs by him in this behalf expended.
Lewis, C. J., dissented, and Woodward, J., was absent on the final argument.