Opinion,
Me. Justice Paxson:It is not denied that the charter of appellant company gives it the power to lay its tracks upon tbie streets in question. And if it were denied it would not matter, as such power is expressly conferred. The city of Williamsport, appellee, contends that it has no right to do so without the consent’ of city councils first had and obtained, and refers us to section 9 of article XVII. of the constitution of 1874, and to the act of May 23, 1878, section 16, P. L. Ill, as authority for this position. The constitutional provision and act of assembly re*11ferred to, are in substantially the same language, viz.: “No street passenger railway shall be constructed within the limits of any city, borough or township, without the consent of the local authorities thereof.”
The appellant company was chartered by act of April 15, 1868, P. L. 1080, and has expended a considerable amount of money on the faith of its charter. It had entered into contracts involving still further expenditure for the purpose of extending its road, and had incurred serious obligations on account thereof, when its operations were arrested by the injunction of the court below, issued at the instance of the appellee.
There is nothing in the company’s charter which makes the consent of councils a prerequisite to the exercise of its corporate powers in the extension of its road. Hence we have the question, clearly cut, whether its charter is affected by either the constitutional provision or the act of assembly referred to.
If the charter of the company remains in full force as originally granted by the commonwealth, its right to extend its tracks as proposed, is too clear for argument. It has been said by this court on more than one occasion that the constitution of 1874 did not ipso facto repeal charters. This principle was expressly ruled in Hays v. Commonwealth, 82 Pa. 523, in a very clear opinion by our brother Gordon, and the same thought was expressed by the same judge in Penn. R. Co. v. Duncan, 111 Pa. 352, where he said: “We also agree that the framers of the constitution of 1874, did not intend to violate the laws of the federal government, or to repeal the provisions of any charter granted by the legislature of Pennsylvania.” That this case was not intended to assert the doctrine that the constitution repealed existing charters, the extract I have given fully shows; nor was it intended to overrule Hays v. Commonwealth.
It was urged, however, that appellant’s charter postdates the constitutional amendment of 1857, which provides that “ the legislature shall have the power to alter, revoke or annul any charter of incorporation hereafter conferred by or under any special or general law, whenever in their opinion it may be injurious to the. citizens of the commonwealth, in such manner, however, that no injustice shall be done to the corpo*12rators,” and that the appellant’s charter is subject to this provision and to appropriate legislation to enforce it. I concede all this, but I do not understand that the act of 1878 was intended to enforce this amendment or to repeal the charter of the appellant. The amendment of 1857 did not give an arbitrary power to the legislature to repeal charters at will. It only authorizes such repeal for cause. It can only be done where the charter is injurious to the citizens of the commonwealth, and such reason should appear in some way as the moving cause which induced the legislature to take such action. And even where such cause appears, the charter must be revoked or annulled in such manner, and no other, “that no injustice shall be done to the corporators.” That I am right in this construction of the amendment of 1857, was clearly shown by our brother Gordon in his opinion in Hays v. Commonwealth, where he says at page 528: “ It is said, however, that by the amendment of 1857, the legislature has the power to alter or revoke the charter of this corporation. Be it so; it may be an answer to say, that a constitutional convention is not the legislature in the meaning of that amendment. If, however, it were such, it could only make such alteration or revocation when it was made to appear that the charter in the part proposed to be revoked or altered was ‘ injurious to the citizens of the commonwealth; ’ for the legislature cannot act arbitrarily in a matter of this kind, and impose its own will as the ultima ratio. In the case last above cited, Commonwealth v. Pittsburgh & Connellsville Railroad Company, 58 Pa. 26, Mr. Justice Sharswood sets it down as a rule settled not only by judicial but by legislative authority, that the legislature is not the final judge of whether the casus foederis, upon which the authority to repeal is based, has occurred. As there is in this case no allegation of a breach of any condition under which the Pittsburgh & Castle Shannon Railroad Company accepted its charter, or that that charter is in any particular obnoxious to the welfare of the citizens of this commonwealth, it cannot be successfully urged that it may be revised or abrogated by any state authority whatever. But the constitutional convention claimed for itself no such power; on the other hand, it has expressly set down in article II. of the Schedule, that all rights, actions, prosecutions and contracts shall continue as *13if the constitution had not been adopted. And by the 2d section of article XVI. it is manifest that the convention did not intend to subject any private corporation to any of the provisions of the constitution which might in any degree change the charter thereof. If otherwise, why say, ‘ The general assembly shall not remit the forfeiture of the charter of any corporation now existing, or alter or amend the same, or pass any other general or special law for the benefit of such corporation, except upon the condition that such corporation shall thereafter hold its charter subject to the provisions of this constitution.’ This section is so comprehensive and clear that nothing is left for surmise or doubt. Charters of private corporations are left exactly as the new constitution found them, and so they must remain Tintil the companies holding them shall enter into a new contract with the state by accepting the benefit of some future legislation. It is only on the theory that the manner of voting is not material that the cumulative system is sought to be saddled on this corporation ; but if this company does not hold its charter subject to the provisions of the present constitution, how can it be made subject to any one of its provisions, material or immaterial?” Hays v. The Commonwealth received the assent of six judges of this court, only the late Justice Woodward dissenting. It is sound law and must stand. Our conclusion is that the charter of the appellant is not affected by the constitution of 1874 or the act of 1878. It follows that it was error to grant the injunction.
We have departed in this instance from our rule not to discuss cases coming here upon appeals from preliminary injunctions. This appeal presents a question of law only; there are no facts in dispute. The report of a master under such circumstances could not aid us. We have all the light now we could have upon final hearing. In addition we have been earnestly requested by the counsel on both sides to treat the decree as final.
The decree is reversed at the costs of the appellee, and the injunction dissolved.