dissenting:
I would unhesitatingly affirm the judgment below. The commonwealth concedes, as it must, that the Hyde Park Gas Company did not, by its incorporation, secure the exclusive privilege to supply gas to the public in the city of Scranton, and yet, in the same breath, insists that it -does possess such right as against the appellee. In support of this inconsistency it would have us read section 34 of the act of April 29, 1874, as I cannot understand its words. It is to be assumed that the legislature meant what it said in declaring that “the right to have and enjoy the franchises and privileges of such incorporation within the district or locality covered by its charter shall be an exclusive one,” and, if so, it could not have meant to give an exclusive right when a prior one existed, and, if it had attempted to do so, by depriving the first company of its franchises, the effort would have been abortive. To my mind *76it is not conceivable how the grant of an exclusive privilege can apply where, as a matter of fact, such right cannot be obtained. What the legislature intended was that as to territory not already occupied the grant should be exclusive. The words of the act, upon which the commonwealth relies to take summarily from the appellee its chartered rights and privileges, are, “ and no other company shall be incorporated for that purpose until the said corporation shall have from its earnings realized and divided among its stockholders, during five years, a dividend equal to eight per centum upon its capital stock.” As to what corporation shall no other company be incorporated? The “ said corporation.” What is the “said corporation ? ” The corporation upon which an exclusive franchise is conferred. The Hyde Park Gas Company is not.such, for the legislature did not give, and could not have given, an exclusive franchise to it.