The opinion of the court was delivered by
Lewis, C. J.
On the 19th of this month a bill was filed in the Eastern District, praying for an injunction to restrain the defendant from taking possession of the Erie and North-East Railroad, in pursuance of the Act of the 6th of October last. A rule was granted calling on him to show cause why a special injunction should not issue, returnable before the court at Philadelphia, on the first Monday in January next. At the same time, it was ordered by Mr. Justice Woodward, then at his chambers in the Eastern District, “ that an admonitory order issue (to the defendant directed) commanding him to suspend all action under the Act of 6th October, 1855,” “ until the hearing and decision of the rule.” The present motion is to dissolve the order last mentioned.’ As the injunction operates on the person of Mr. Casey and not on the railroad, the subpoena might have been served upon him in any district where he was to be'found; and as he “ accepted service,” it must be intended that the service was legal. The judge, at his chambers, had therefore authority to make any proper order preparatory to the hearing of the cause on its merits. An “ admonitory order,” in the proper sense of the term, is such an order as he had authority to grant. But an injunction, whether preliminary, temporary, or special, cannot be granted without security, “ to be approved of by the court or judge, conditioned to indemnify the other party for all damages that may be sustained by reason of such injunction.” This is a positive provision of the Act of 6th May, 1844, which the courts have no right to disobey. Its terms are general, and they include injunctions of every description, except those granted on the final hearing of the cause.
Injunctions are frequently in the form of a writ, but these forms are not adapted to every ease, and therefore the prohibition in numerous instances assumes the shape of an order, in the nature [292]*292óf an injunction. As the courts treat the disobedience of all orders as a contempt, and enforce the performance of them by imprisonment, the distinction between a writ of injunction and an order in the nature of one, is disregarded in practice. Both are known by the name of injunctions: ¡Eden on Injunctions 337 — 8. If the order be issued in mandatory language, it is substantially an injunction. If in terms of advice or caution, it is what has become known as an “ admonitory order.” Where there is no statute requiring security before injunctions are granted, the chancellor may use language so imperative as to amount to an injunction without transcending his power. To call such an order an “ admonitory order” would be a misnomer; although a harmless one. But under the Act of 1844 the case is very different. We must be careful to distinguish one from the other. To issue an order which is to have the effect of an injunction, without demanding the security required by the statute, would be an unjustifiable evasion of the law.
It is plain that the judge did not intend to grant an injunction. It is designated as an “ admonitory order,” and was intended for nothing more. But the counsel in preparing the draft inad: vertently introduced a word which might be understood as giving it a character more effective. In practice it is the business of the party in whose favour a decree is made to prepare a draft of it and submit it to the opposite party, and then to the judge. (Rule 79.) It is usually approved of, if not excepted to. As both parties were present when the draft was signed by the judge, and as no exception was taken to the form of it, his signature was almost a matter of course. But it is liable, in its present form, to misconstruction, and must therefore be amended.
Let the order granted by Judge Woodward be amended so as merely to caution the defendant against taking any action under the Act of 6th October, 1855, mentioned in the bill of complaint, until the decision be made on the rule to show cause why a special injunction should not issue in this case.
Let a similar amendment be made in the case of the Cleaveland, Painesville and Ashtabula Railroad Company v. Joseph Casey.
On the 9th January, 1856, the rule for a special injunction was heard on the bill, and special affidavits and exhibits before the court in bane, at the city of Philadelphia.
St. G. T. Campbell and Meredith (with whom were Stanton and Burst), for complainants. — The seizure of the complainants’ road under the Act of Assembly of the 6th October, 1855, is resisted—
First. Because the road is now used under the decree and the protection of this court. At the time of the passage of this act, [293]*293the case of the Commonwealth against this company was still pending. A writ of assistance has been granted to preserve their property, and, it is submitted, there is no warrant for legislative interference with these judicial proceedings, to seize upon and confiscate that which is in the hands of the court in due legal administration.
Second. Does the omission to complete the road to the borough of Erie within ten years work a forfeiture ? On this point the facts are familiar to the court. To justify a decree of forfeiture, even in a proceeding appropriate to that end, it must be shown that there was a wilful abuse, something more than accidental negligence, excess of power, or a mistake in the mode of exercising it, or a want of substantial compliance with the charter. It must arise from wilful abuse or improper neglect: People v. Turnpike Co., 23 Wend. 223.
Corporations are political trustees. Have they fulfilled the purposes of their trust: 6 Cow. 215; 6 Paige Ch. R. 497. That an honest mistake will not work a forfeiture: 22 L. & E. R. 338; 11 Ala. R. 472; 8 Humph. 235.
The Supremq Court of the United States, in defining cause of forfeiture, enumerates wilful misuser and nonuser: Mumma v. The Potomac Co., 8 Peters 287. Slight deviations from a charter are neither misuse nor abuse of it: 22 Eng. L. & E. R. 338; 21 Wend. 235; 23 Id. 537; 12 Eng. L. & E. Rep. 429.
There is nothing shown against the complainants that would justify an allegation of wilful misuse or abuse, either as it regards time or location.
Third. Even if there be cause of forfeiture, can it be done by an act of legislature, under the reservation in this chaster, without judicial proceedings? From the great interests involved, this becomes a question of the first magnitude. It embraces the determination of how far, upon an allegation of forfeiture, the legislature can determine the fact, impose the penalty, and take the property, without resort to the judicial tribunals. The right to resume in this case depends upon the existence of a fact — misuse or abuse; and it is insisted this fact must be judicially found. “ It is against the principles of. liberty and common right to deprive a man of his property or franchise while he is within the pale of the constitution, with his hand on the altar, without hearing and trial by due course of law:” Brown v. Hummel, 6 Barr 86.
Such has been the doctrine in Pennsylvania from the earliest periods, whenever the legislature has attempted to determine the rights of property without the intervention of the judiciary: 1 Yeates 260.
Nor can the fact that the legislature reserves the power to resume the franchises affect the right of the party to have the question of fact tried according to the law of the land. There [294]*294has been no trial or hearing. The law of the land, in its legal and constitutional sense, does not mean an Act of Assembly, but the law of the case as established in a fair open trial: 6 Barr 86; 1 Bl. Com. 44; De Chastellux v. Fairchild, 3 Harris 18; Irving’s Appeal, 4 Id. 265.
Corporate franchises can only be forfeited for abuse by trial and judgment, for they ought not to be condemned unheard: King v. Passmore, 3 T. R. 144. Even the crown in England cannot take away the chartered rights of lay corporations — such as universities, &c.: 3 Burr. 1656.
. But if the legislature may, under the reservation, resume the franchises, they cannot seize the property and dissolve the corporation without judicial proceedings. There is no warrant, express or implied, in such a reservation, for the Commonwealth to take and use the property of a defaulting corporation. What becomes of the property is a judgment of the law. If the Commonwealth may thus seize it, it is taking private property for public use without compensation. By forfeiture of a charter, the real estate reverts to the grantor — the personal alone goes to the Commonwealth.
Nothing like this, it is believed, can be found in the history of Pennsylvania, or even within the omnipotent power of Parliament. Except in the instances of the suppression of the Order of Templars in the time of Edward II., and some of the religious houses in the time of Henry VIII., it has never been attempted in England. When, in 1783, a bill was introduced, to change the charter of the East India Company, Lord TilURLOW said it was a “ violation of •private right that cut every Englishman to the bone.”
In 12 Conn. 7, the court, quoting 5 Mass. R. 230, 2 Burr. 869, 9 Wend. 352, 6 Cow. 23, 15 John. R. 379, said these and many others conclusively show that forfeiture must be first judicially determined. In R. M. Charlt. R. 250, it was considered permanently settled that private corporations cannot be deprived of their franchises but upon a judicial judgment on quo warranto ; 4 Gill & J. 421.
Fourth. Even if there was lawful ground of forfeiture, this has been waived by the Act of 14th April, 1852, and the proceedings in the bill in equity filed by the attorney-general against complainants, and the Commonwealth is equitably estopped from using the same as a ground of forfeiture.
The Act of 1852 was enacted after the road was made as it now js, and after the ten years within which it was required to be completed and brought into public use, and it recognises very distinctly the continued corporate existence of the company. So it was held in The Commonwealth v. The West Chester Railroad Company.
In 9 Wend. 379, this doctrine of waiver and equitable estoppel is fully recognised. It is most frequently applied in cases between [295]*295landlord and tenant where the lessor seeks to enforce forfeiture for condition broken: 1 Inst. 211, b. § 341; Woodf. Land and Ten. 203. The law will always lean against forfeitures, and courts will strictly adhere to the precise words of the condition to prevent a forfeiture, and the lessor will not be allowed to take advantage of it if he has done any act which amounts to a waiver: 5 Cowen 448 ; 1 H. Blk. 311; 6 T. R. 220; Adams on Eqt. 160; 1 Saund. 287, note 16; 1 Ball & Beat. 554; 3 T. R. 151; 3 Coke, Pennant’s Case, 64; Cro. Car. 234; Cowp. 803. In this last case Lord Mansfield said that “forfeitures are not favoured in law; and where the forfeiture is once waived the court will not assist it Co. Litt. 215, a; Woodf. 204; 3 Coke 64. The Act of 1852s when accepted, became in fact a new charter, and bound alike the company and the Commonwealth.
But besides this, the Commonwealth came into a court of equity against this company, not for the purpose of enforcing forfeiture, for the court had no power to make a decree of that kind, but to prevent an alleged illegal and unauthorized use of public roads and streets. The court rectify all the variances by their decree, according to plans approved by the court, as in “ conformity with the charter.”
The company expended their money in complying fully with all the decrees made in that case, at the suit of the Commonwealth, in a court all powerful to enforce corporate obedience. Is it competent for the Commonwealth to use those same grounds, which were corrected and amended at her instance, as a ground of forfeiture ? Such result would be abhorrent to every principle of justice. It would make the judicial tribunals the instruments of oppression. The right to forfeit is an extreme right, and it may be waived, and the law will eagerly seize upon anything to prevent its exaction.
. The Commonwealth had her choice — to pursue a bill in equity •to repair the wrong, or a quo warranto to forfeit the charter. She chose the former, and must abide by that election. The right to forfeit was at an end. Can the landlord receive the rent accruing subsequently to the breach of the condition and still enforce the forfeiture ? Doe v. Neux, 10 Eng. C. L. 417.
Here we are compelled by the Commonwealth to put the premises in repair in one year, and the next they are taken from us because they were not so before: Doe v. Lewis, 36 Eng. C. L. 455; 27 Id. 19-33; Id. 344; 1 V. & B. 68; 1 B. & B. 554-61; 1 M. & W. 402; 5 Cowen 448; 12 Conn. 7; 4 Gill & J. 121. These authorities, it is submitted, show that this forfeiture cannot be insisted on by the Commonwealth, in view of her own solemn acts. Even a parol license cannot be revoked after expenditures made on the faith of it: 14 Ser. & R. 267; 5 Watts 308.
[296]*296Fifth. This Act of Assembly is repugnant to the Constitution of the United States and of this Commonwealth.
This act takes not only the franchises but the property of the corporation. It provides no mode for compensation, to be made or secured. That a charter is a contract needs no authority, or if it does Brown v. Hummell, 6 Barr 86, decides it to be a contract under the Federal Constitution, and the Dartmouth College Case, 4 Wheat. 618, and kindred cases are sufficient to the same point. Does the Act of the 6th October, 1855, impair the obligation of this contract? Under this charter the complainants were authorized to construct a road, and take the profits of its use. Both are taken away by this act.
The right to do so is based upon two allegations, that the road was not completed within 10 years, and the other the clause of misuse or abuse, and the Commonwealth justifies the seizure on these grounds. The state had a right, without the reservation, to have a charter declared forfeited by proceedings on quo warranto: 9 Cranch 52.
It never was intended that the legislature should both try the question and execute the judgment. This is apparent from the 1st section of the Act of 17th March, 1853, which provides for writs of quo warranto in all cases, “ whether the forfeiture shall be declared by the legislature or otherwise,” and shows that it was never supposed that an act of the legislature, previous to trial, would work a forfeiture, even where by the terms of the charter in a particular event it was to become null and void: 2 Wend. 254; 8 Wend. 654; 9 Id. 382; 13 Louis. Rep. 497-504; 19 John. Rep. 456-473.
Casey and Thompson, for respondent. — That a charter to a private corporation is a contract between the state and the corporation is not denied on the part of the defendant; it necessarily follows that any act which impairs its obligation is unconstitutional and void. The legislature, in entering into this compact, has expressly reserved to itself the right to resume the rights and privileges granted in the contract, if the company shall “ misuse or abuse” them.
If the privileges granted were actually misused and abused, then the contingency has arisen upon which the legislature might exercise the right of resumption. If this does not follow, we must deny to these plain and express terms of the charter not only all force and vitality, but that they are destitute of all meaning and purpose.
It is contended, however, that though the words are to have effect, and the legislature may exercise this power of resumption when the contingency arises, but not until the fact of the existence of misuse and abuse has been judicially ascertained and es[297]*297tablished. That the right to exercise the power depends upon the existence of the fact, which the legislature is incompetent to try, because it is the exercise of a judicial function which they do not possess, and which by the Constitution is vested exclusively in the judiciary. Now, if this argument be sound and tenable, then it follows that a charter with such a reservation stands in a better situation, more strongly guarded against a forfeiture for violation of law and its act of incorporation, than were it entirely omitted,
For it is the very text law of corporations that with or without such a provision in the charter, the franchises of the company may be forfeited for misuse or abuse of its privileges. In such a case the court in which the quo warranto is tried, and the fact of malfeasance established, pronounces the judgment of forfeiture, and carries its sentence into execution. The power of the courts is plenary, and the remedy complete, without any such provision contained in the charter. It results from the nature of bodies corporate, and the inherent power of self-protection in the government of the state.
If, therefore, you assign to such a reservation the circumscribed limits and operation contended for by the learned gentleman upon the other side, instead of placing in the hands of the Commonwealth an additional means of controlling a disobedient, or punishing a refractory corporation, by complicating the remedial process, you afford immunity to transgression in proportion to the difficulty and delay of applying the remedy. Under the construction contended for, even upon quo warranto, no judgment of forfeiture could be pronounced by the court, but the proceedings would be in the nature of a feigned issue, directed by a court of chancery, to inform the consciences of the members of the legislature as to the existence or non-existence of certain facts, leaving them as the mere instruments to pronounce the judgment of law resulting from the facts so found. The argument is, that this provision instead of enlarging was intended to abridge or restrain the power of the state over the corporation by diffusing the control, and dividing the power over it among different and dis-. tinet branches of the government, whose successive and concurrent action should be necessary to work a forfeiture or repeal of its franchises or privileges.
But this view of the subject is confronted by the'fact, that the common law remedy would have been both more speedy and efficacious, and the words of the act, “ the legislature may resume the rights and privileges hereby granted.” And having by the very agreement and contract stipulated for the right to exercise this power as a legislature, and as an act of legislation it appears to us to follow from the nature of the powers and functions of legislation that every incident necessary to the full, intelligent, and effective exercise of this power followed and attached to it as a [298]*298necessary consequence. It was not intended to usurp the powers and functions of the judiciary, or oust the jurisdiction of the courts, if they should be invoked, but to reserve to themselves a separate, distinct, and cumulative remedy.
On this subject we are not without authority. Where the legislature of New Jersey reserved such a power in a bank charter, for which a large pecuniary bonus was paid to the state, and after-wards repealed it; the courts of New York held that the legislature could legally and constitutionally make such a reservation, and that the court would not presume that it had been improperly or unconscientiously exercised: McLarren v. Pennington, 1 Paige, Ch. R. 102. “ The reservation of such power in a legislative .grant, if it were contrary to the common law, would of itself change the law in relation to that particular grant. And the statute law of the grant itself would form the law of that case.”
So in Crease v. Babcock, 23 Pickering’s Rep. 334, the Supreme Court of Massachusetts decided that — “ a reservation by the legislature of the right to repeal an act of incorporation, for .a violation of the charter, or other default, is not unconstitutional on the ground of being a reservation of judicial power.”
And in the Miners’ Bank v. The United States, 1 Greene (Iowa Rep.) 553: that if the legislature reserve to themselves the power to repeal a charter, they may do so, and their action is conclusive,” and that “ they may do so without the interposition of a -judicial tribunal — they are the proper judges of such misuse or ■abuse, and their acts, their motives, or the sufficiency of evidence before them, cannot be collaterally questioned;” Read v. The Frankfort Bank, 23 Maine Rep. 318; Bank Commissioners v. Bank of Buffalo, 1 Paige 502; State v. Curran, 7 English Rep. 321; Commonwealth v. Bonsal et al., 3 Whart. Rep. 559.
Is this Act of Assembly obnoxious to the charge of impairing the obligation of a contract, and therefore unconstitutional and void ? In arriving at a correct conclusion in this case, we must not lose sight of the fact, that a sovereign state, but for this constitutional inhibition, might repeal or annul any charter at pleasure; and that does not forbid the repeal of a charter, but only the violation of contract. If the charter can be repealed without infringing upon the terms and obligation of the contract, then it will be readily admitted that there is no constitutional or legal difficulty in the way of sustaining the repealing act.
To determine this, we must resort to the terms of the contract, and from them ascertain the nature, character, and extent of the obligations arising, and, by comparing these with the act in quession, endeavour, to discover whether the provisions of the contract have been violated or its obligations repudiated. It will not be denied that in the grants of a sovereign state, unlike those of individuals, whatever rights the charter does clearly and expressly [299]*299confer, is held to pass, what is not so expressed is never implied.' By the express terms of the contract set up, the legislature reserve to themselves the right to resume the rights and privileges granted, if they are misused or abused by the company. With this plain and express stipulation in this agreement, and constituting a substantive part of it, the company accepted the charter and entered upon the enjoyment of the rights conferred. This stipulation was incorporated into the grant, and as such accepted, as much as any other it contained, as a condition or limitation of the grant itself. May not an individual accept of a lease as tenant at will ? And where he does so, and enters into the premises and makes large expenditures for his own benefit, will that fact change his relation to his landlord, or deprive the other of the right to determine the tenancy at his pleasure ? May not a man grant an estate upon condition, and when the contingency happens, re-enter for condition broken ? Cannot parties introduce into their contracts that all matters of dispute shall be referred to an individual named, whose decision shall be final and conclusive between them, without appeal? And having done so, can one party repudiate this stipulation and resort to an action ?
. The answers to these inquiries, and their application to the case in hand, are too obvious to require either argument or illustration. If the legislature possesses the power to grant, it must follow that they have likewise the power to determine upon what conditions and limitations the privileges conferred shall be held and enjoyed, what length of time they shall endure, the manner in which they shall be exercised, and the causes for as well as the means by which they shall cease and determine and revert to the state. In this case the legislature granted the charter with the reservation, and when the contemplated contingency arose the repeal of the charter, so far from impairing the obligation of the contract, was but enforcing and carrying it out.
The wisdom, justice, or expediency of the passage of an act of the legislature is not the subject of debate in our courts of justice. These are matters exclusively for the consideration of the lawmaking power. The only question is, does it violate the fundamental law as embodied in the constitution ? People v. Manhatten Company, 9 Wendell 351; 2 Kent’s Com. 506-7; Dartmouth College v. Woodward, 4 Wheat. 696, per J. Story; Wales v. Stetson, 2 Mass. Rep. 143.
The fact that any such misuse or abuse as was contemplated in the charter occurred or existed, is disputed. But respondent contends that the exercise of the power of repeal by the body in whom it was vested, is conclusive upon that subject: 23 Pick. 334; Decamp v. Eveland, 19 Barb. Rep. 81-89; 1 Greene 553. And if this were not so, the presumption at least would be in favour of the constitutionality of the law until it was overthrown by counter[300]*300vailing proofs: Fletcher v. Peck, 6 Cranch Rep. 87; Ex parte McCullom, 1 Cowen 564; Morris v. The People, 3 Denio 538.
Were the acts set up a waiver ? The Act of 1852 was not in relation to the subject-matter; there is not one word in relation to the violations of the charter or abuse of privileges. The proceedings had in the bill in equity in this court are equally ineffectual to estop the Commonwealth, or waive the right of the legislature to act in the premises. Where such cause of forfeiture has arisen upon which the legislature might resume the privileges, nothing will amount to a waiver which does not wipe out and purge the offence and reinstate the corporation in the same situation it occupied before the violation. This must be by some direct and express act, designed and intended to have that effect.
The only power in the state which could waive or pardon the forfeiture, was the legislature. Neither the courts, the attorney-general, nor the executive, singly or combined, possess such power: Bishop v. Turnpike Company, 23 Wend. 193; The People v. The Phœnix Bank, 24 Wend. 431; 2 Wend. 653; 23 Wend. 258.
Black, J.
The Erie and North-East Railroad Company was incorporated in 1842. The charter was repealed at the last session of the legislature, and the governor was authorized to appoint some suitable person to take charge of the road which the company had built, and keep it in good running order and repair, for the use of the public. The defendant was appointed under this provision of the repealing law, and he avows his intention to take possession of the road accordingly, unless prevented by the injunction of this court. To obtain such an injunction is the object of this hill. If the company be threatened with an illegal injury, we may protect it in this form of proceeding. If the defendant be justified by law, the complaint must be dismissed.
What the defendant means to do is to execute the plain mandate of the supreme law-making power of the state; to carry into effect an Act of Assembly, passed in regular form. This act, if it be law at all, is paramount to all other law on the subject, and must be obeyed. If, however, the legislature had no power to pass it, then it is wholly void, and we must regard it as if the place it occupies on the statute book were a blank.
The right of the judiciary to declare a statute void, and to arrest its execution, is one which, in the opinion of all courts, is coupled with responsibilities so grave that it is never to be exercised except in very clear cases; one department of the government is bound to presume that another has acted rightly. The party who wishes us to pronounce a law unconstitutional, takes [301]*301upon himself the burden of proving, beyond all doubt, that it is SO;
It is also very well settled that no statute is unconstitutional merely because it is wrong in policy or principle. It is not enough to prove that it is contrary to a sound public morality, or injurious to private rights. Inconsistency with rules of law or principles of equity, will not make it void. Nothing will have that effect but a direct collision between its provisions and those of the federal or state constitution. For this proposition I have no authority or reasons to offer beyond what are already on record in the case of Sharpless v. The City of Philadelphia, 9 Harris 147.
The plaintiffs’ counsel assert that the Act of 1855, under which the defendant proposes to take the railroad into his possession, impairs the obligation of a contract. The (Constitution of the United States (Art. I., See. 10), and that of Pennsylvania (Art. IX., Sec. 10), forbid the making of any law impairing the obligation of contracts.
An act granting corporate privileges to a body of men is, whenl accepted, a contract between the state and the corporators. It is ( not worth while now to try whether this doctrine will stand the test of original principles. It is sustained by everything that we are bound to regard as authority by the decisions of all the courts in the country, by the opinion of the legal profession, and by the general acquiescence of the people. It is not denied by the defendant or his counsel, or by anybody ej.se who has attempted to sustain the action of the legislature in this case. Being a contract, it cannot be rescinded by the act of one party without the consent of the other. A grant of corporate privileges for a specified period cannot be resumed by the state within such period. If the charter be without limitation as to time, it is for ever irrepealable.
It does not follow from this that corporations are beyond the j reach of public control. When the privileges they enjoy are ’ fraudulently abused, the courts may pronounce them forfeited. In some cases also, the legislature, when granting the franchises, reserves to itself the right to revoke them. When the charter contains such a stipulation, it is as much a part of the contract as anything else that is in it. The legislative repeal of such a, charter bears no resemblance to the judgment of a court against' the corporation on a quo warranto. They proceed upon principles as different as the functions of the legislature are different from those of the judiciary. If the power to repeal be reserved, its exercise is merely carrying out the contract according to its terms; and the state is using her own rights; not forfeiting those of the company.
The power to repeal is sometimes reserved absolutely, so that [302]*302the franchises of the corporation may he revoked whenever the’ legislature shall think proper. It is sometimes reserved conditionally ; to be exercised only in case a certain event shall happen. The event may he one which the corporators could not control, or it may be such a one as could not occur without some default of their own. In either case the charter is repealahle when the event happens.
In the charter now under consideration, the following clause occurs: “ If the said company abuse or misuse any of the privileges hereby granted, the legislature may resume the rights granted to the said company.” This was a reservation of the right to repeal the charter in ease it should be violated. If it was violated, then the repeal was not breaking the bargain hut keeping it; not impairing, but enforcing the obligation of the contract.
■ The plaintiffs’ counsel insist that inasmuch as the right to repeal depended on matter of fact, the right could not be exercised until fact was ascertained by a judicial trial. But if this were not a mistake the reservation would be nugatory. When the abuse of a charter is judicially ascertained the corporation will he dissolved without the intervention of the legislature, and the court could not decide the fact to he true without pronouncing the judgment of forfeiture.Ar'The legislature certainly meant to reserve something more than the right to dissolve the corporation after it shall be dissolved by a court. The power to kill what is already (dead is no power at all^The argument of the plaintiffs on this point is altogether unsustained by authority. There are several cases directly against it. In Crease v. Babcock (23 Pick. 234), the Supreme Court of Massachusetts said, that when the legislature reserved to itself the right to repeal a charter on the happening of a certain event, they might enact the repeal whenever the event happened; it Avas not a reservation of judicial poAver. To the same effect is McLarren v. Pennington (1 Paige 107); and in the Miners’ Bank v. The United States (1 Greene 561), it Avas held, not only that the fact, on which the right of repeal depended, might be noticed by the legislature without the assistance of the judiciary, but that its truth could never afterw'ards be questioned by any court. Without intending to endorse the whole doctrine of the last-mentioned case, we are very clear that the right to repeal vests in, and may be exercised by, the legislature whenever the event occurs upon which they stipulated for the right. The most that can he said is, that the repeal is void if it comes before the event. If the corporators desire to contest the validity of the repealing act in a court, they must at least prove that the event did not occur.
This vieAv of the subject makes it important that we should see' whether the privileges of this company were abused or misused. Did the corporators violate the charter ? We are obliged, as the [303]*303case now stands, to answer this question in the affirmative. For that answer we have three reasons, either of which would be sufficient without the others. In the first place, we are bound to take an Act of the Assembly to be constitutional until the contrary is shown. In the absence of evidence, we presume the existence of every fact on which the validity of the law depends. Secondly: the plaintiff’s bill does not aver that they performed their duties according to the terms of the charter; and this they certainly would have averred if they could safely have done so. Thirdly: a record of this court is referred to in the bill and produced in evidence, from which it appears that a decree was pronounced against them for fixing their terminus at a place not authorized, and for locating their road on streets and other highways in a manner expressly forbidden.
It is said that the repeal can be justified only if the violation of the charter was wilful. But the right is given to repeal not for a wilful, but for any abuse or misuse. The word wilful is not in the reservation, and we cannot insert it by construction. But sup$ pose it to be in. Is not any positive violation of the charter,» which might have been avoided, a wilful misuse and abuse of it ? They were not forced to lay out their road contrary to the plain directions of the law. Neither can we believe it to have been a mere blunder. The difference between what they were required to do and what they did do was too obvious and too important to be overlooked by men who could read and understand English.
After this abuse and misuse was committed, the attorney-general for the state filed a bill complaining of it; and upon hearing, we made the decree already referred to, and enjoined the company , to take up and remove the railroad to a location which would bej conformable to the charter. This decree has been partially', obeyed.
While the charter stood unrepealed, it was a law of the state, and, as such, it was the duty of the attorney-general to -'see that it was executed faithfully. Nor -was it possible for us to decree otherwise than according to the law as it then was. But how did this proceeding affect the right of the legislature to take away the charter ? The company’s counsel say that it was a waiver of the right to repeal — that the state is equitably estopped by it from using the power of revocation which she otherwise would have had.
It is well settled that a forfeiture, however incurred, is to be considered' as waived, if the party entitled to exact it has chosen tó right himself in some other way. If a tenant, for instance, should forfeit his estate by a breach of covenant, the landlord could not accept compensation and afterwards re-enter. When the state comes into court demanding a forfeiture, the principle applies to her with as much force as it does to a private party.
[304]*304But we are now dealing with an Act of Assembly, which, if it be valid, is the paramount law of the subject to which it relates. It rides down and nullifies all other laws which are inconsistent with it. Perhaps this is the very first argument, that ever was made, to show that a statute was void because it conflicted with a rule of the common law. To change the common law, and repeal earlier statutes, is the main, if not the only business which the legislature has to perform. A statute may be valid, no matter how inconsistent it is with the doctrine of estoppel, unless the doctrine of estoppel be a part of the constitution, which it certainly is not. When we are inquiring what the legislature can do, we are not helped a particle by being told what a court would do. When we are considering whether a statute ought to be obeyed or disregarded, it is very unsatisfactory to be informed how the law stood a hundred years before the statute was passed. Judges and chancellors have established certain rules of proceeding for their own guidance in the distribution of justice among Suitors. One of these rules is, that a party in certain cases shall mot be permitted to aver the truth; and this is called an estoppel. But the legislature is not restricted by it. The General Assembly can make and unmake all rules of practice, pleading, and evidence, at its pleasure. The power that makes the law must, in its nature and essence, be so totally different from the power which administers the law, that it is most illogical to reason from one to the other. The limitations on the legislative power of the state are not to be found in the general body of the law, but only in the constitution itself, which is the lex legum, or law of laws.
We must, therefore, fall back upon the constitution, to see whether there is anything there to prohibit the legislature from passing the act in question. That instrument declares that no law shall be made impairing the obligation of contracts. This charter was a contract; but one of its terms was, that it might be repealed if it should be abused or misused. The corporators did abuse and misuse it, and thus they placed themselves in the mercy of the legislature. Bid the atonement which they were compelled to make for their default, restore them again to the condition in which they would have remained if they had never been guilty of it ? They had a charter, irrepealable if they would obey it, and they were independent of the legislature. But they fell from that estate by disobedience, and their charter became repealable. Bid it become irrepealable again when they were forced by this court to undo the wrong they had committed ?
These corporators have suffered at the hands of the legislature nothing but what they expressly agreed to suffer in a certain contingency. That contingency has literally come to pass. Their privileges have been abused and misused. But they insist that the penance they were forced to undergo ought to be accepted in [305]*305place of the obedience which they promised. That is not in the bargain; and since they stand upon their contract, we do not see how we can give them more than what is there set down. The legislature agreed to disarm itself of the repealing power on condition that the corporators would remain and abide within their charter; when they went out of it, the condition was broken. The fact that they left the path of duty is not disproved by the other fact that they afterwards returned to it. Nor is their case at all helped by showing that they were driven back under the lash of a court. Their independence of legislative control was to be a consequence of innocence; not of guilt, followed'by repentance and restitution.
The most important privilege and highest immunity which a corporation can enjoy, is that of holding its franchise by a tenure above the reach of the law-making power, which regulates everything else in the state. When this immunity is bestowed on certain conditions, the conditions cannot be changed without changing the charter, and no such change can be made except by the express and plain words of the legislature. The corporation claims to hold the immunity, and for its title it points to a bill in equity filed by the attorney-general, and to a decree of the Supreme Court, and to its own act of removing the road. But the corporation itself cannot add anything to the charter, nor can it do so even with the assistance of the executive and the judiciary. It still has no more than what the legislature gave it, and the legislature did not give it what it now claims.
Another and still plainer view of the argument based on the law of estoppel, may be taken. It is a familiar and well established rule of constitutional law that the prohibition to impair the obligation of contracts is not applicable to an Act of Assembly, unless it violates directly some right secured by an existing contract, bargain, or agreement. That provision does not protect from legislative interference other rights acquired or created in other ways. Here, now, is an Act of Assembly which enforces one of the stipulations of a contract between the state and a corporation. The corporators say to the legislature, “ You shall not do this thing. We admit that your act is according to the very terms of our agreement; but certain facts and circumstances have occurred since, which bind you in justice, equity, and law, to abstain from taking advantage of the agreement.” The short and conclusive answer of the legislature is this: “ To enforce a contract is not to impair it, and whatever the obligations may be which arise out of the subsequent facts, it is enough that they are not obligations of the contract.”
-A harder task cannot be imagined than that of proving the law before us to be void, on the ground contended for. The argument would have been successful, if there had been anything in the con[306]*306stitution to forbid the carrying out of contracts. It might not have been a failure, if the obligation of contracts could be interpreted to mean all obligations of every kind, however created. And it would probably have been triumphant, if counsel could have shown that the power which is given to the legislature by the constitution is taken away by rules of court.
A better objection is made to the validity of this law by contending, that the contract ought to be so extended by construction in favour of the corporation, as to give the right of repeal only for an abuse or misuse, which shall be persisted in down to the time when the repeal is enacted. We have said, however, that this cannot be done. We are clear in our conviction, that the right of repeal, under such a reservation, can be successfully denied only when the corporators are able to show that no abuse was ever cornmitted. It was not a right which existed merely while the corpora-tors were in a state of rebellion against the law, to cease when they put themselves, or were put by the court, on their good behaviour.
A more plausible proposition than either of these would be to say, that the proceedings against the corporation in the equity suit implied a new contract, by which the state promised not to repeal the charter for any past offence. The counsel did not take this ground, doubtless because they thought it untenable. We concur in their opinion. Contracts between the state and corporate bodies cannot be implied from anything but plain words; and those words must be spoken by the General Assembly, and enrolled in solemn form among its acts.
On the 14th of April, 1852, and after the violation of the charter, the legislature passed a supplement to the charter, changing the mode of electing officers. Whatever new powers, immunities, and privileges were granted by this supplement may be lawfully claimed, but all that were not plainly granted were withheld. It was certainly a legislative recognition of the company’s existence as a corporate body; but it was no recognition of its right to exist upon terms and conditions which are not mentioned in the supplement, and which are expressly excluded by the words of the original charter. The Assembly might then, or at any other time, have made the franchise irrevocable by saying that such was its will. But it did not do so: it merely.said that the stockholders should vote in a manner different from that in which they had voted before.
We think the construction we have given to this reservation is not only required by the established rules of interpretation, but is in accordance Avith the most liberal intent that can be ascribed to the legislature in making it. Men who are capable of abusing a privilege conferred on them by the special favour of the state, are unworthy to have it. The state had a right to test the prudence of her bounty by this standard — to fix her own locus penitentise— [307]*307to try the grantees of the privilege and see whether they would behave themselves well. She kept in her hands the short, sharp remedy of repeal, to be applied whenever the conduct of the corporation would demonstrate that a remedy was needed. The error was to be repaired by the same body that committed it, at any time after the error was ascertained. For the same offence, the charter might have been forfeited on quo warranto, but another mode of reparation was adopted for the very reason that the state did not choose to undergo the risk, and embarrassment, and delay of a judicial trial. She would not have the machinery of a court interposed between her and her rights. She did not desire to play with lawyers and judges at the game of special pleading. She was unwilling to go for justice to a place where estoppels might prevent her from asserting the truth. She would retain the right of legislative repeal free from all restraints but those imposed by the constitution, or else she would not grant the charter. If the corporators did not intend to obey it when such was the stipulated penalty for disobedience, it was folly as well as wickedness to accept it.
The authority given by the Act of October, 1855, to the defendant to take possession of the railroad is asserted by the plaintiff’s counsel to be an act of confiscation — a taking of private property for public use without compensation. If this be true, the injunction ought to be awarded; for no legislature can do such a thing under our constitution. ( When a corporation is dissolved by a repeal of its charter, the legislature may appoint, or authorize the governor to appoint a person to take charge of its assets for the use of the creditors and stockholders ; and this is not confiscation, any more than it is confiscation to appoint an administrator to a dead man, or a committee for a lunatic. But money, or goods, or lands, which are or were the private property of a defunct corporation, cannot be arbitrarily seized for the use of the state without compensation paid or provided for.,) This act, however, takes nothing but the road. Is that private property ? Certainly not! It is a public highway, solemnly devoted by law to the public use. When the lands were taken to build it on they were taken for public use; otherwise they could not have been taken at all. It is true the plaintiffs had a right to take tolls from all who travelled or carried freight on it, according to certain rates fixed in the charter, but that was a mere franchise; a privilege derived entirely from the charter, and it was gone when the charter was repealed. The state may grant to a corporation, or to an individual, the franchise of taking tolls on any highway, opened or to be opened, whether it be a railroad or river, canal or bridge, turnpike or common road. When the franchise ceases by its own limitation, by forfeiture or by repeal, the highway is thrown back on the hands of the state, and it becomes her duty, [308]*308as the sovereign guardian of the public rights and interests, to take care of it. She may renew the franchise, give it to some other person, exercise it herself, or declare the highway open and free to all the people. If the railway itself was the private property of the stockholders, then it remains theirs and they may use it without a charter as other people use their own — run it on their own account — charge what tolls they please — close it or open it when they think proper — disregard every interest except their own. The repeal of charters on such terms would be courted by every railroad company in the state ; for it would have no effect but to emancipate them from the control of law, and convert their limited privileges into a broad, unbounded license. On this principle, a corporation might be rewarded, but never punished, for misconduct. Repeal of its charter, instead of bringing it to a shameful end, would put “length of days in its right hand, and in .its left hand riches and honour.” But it is not so. ^Railroads made by the authority of the Commonwealth upon land taken under her right of eminent domain, and established by her laws as thoroughfares for the commerce that passes through her borders, are her highways. No corporation has any property in them, though corporations may have franchises annexed to and exer^cisable within them.
Such a franchise the plaintiffs had, but they have it no longer. ,The right to take tolls on a road is an incorporeal hereditament, r which may be ¡granted to a corporation or to an individual, a.nd the grantee has an estate in the franchise. But what estate ? The estate endures for ever if the charter be perpetual; for years, if it be given for a limited period; and at will, if it be repealable at the pleasure of the legislature. This corporation, after its privi- * leges were abused, had an estate at will, and the Commonwealth chose to demand repossession. That terminated the estate as completely as an, estate for years would be terminated after the * expiration of the term. The grant was exhausted, the corporation lived its time out. Its lease of life was expressly limited, at the day of its creation, to the period when the legislature should dissolve it for misconduct. When the legislative will was spoken, its hour had come. Having no right to keep the franchises any longer, it would be absurd to claim compensation for taking them away. To say that the stockholders have a right to compensation for the franchises, because they are wrongfully taken, and that they were wrongfully taken because they have a right to compensation, would be reasoning in a very vicious circle. If the stockholders had a right to retain the franchises, the charter could not be repealed at all, with or without compensation. If they had no right to retain them, they have no claim to compensation.
A brief recapitulation of the main points in the case may serve to make the grounds of our judgment somewhat plainer.
[309]*309I. This charter was granted with a reservation of the right to repeal it, if the franchises should be abused or misused,
II. We are satisfied that, in point of fact, those franchises were abused and misused.
III. After that event happened, the General Assembly was invested with full power to repeal the charter, and the corporators held their franchises from the state merely as tenants at will, in the same manner as if there had been an unconditional reservation of the right to repeal.
IV. After the interest of the corporators had been thus cut down by their own misconduct to an estate at will, the legislature only could enlarge the charter, so as to make it a perpetual grant, or put the corporators on another term of probation.
V. The judicial proceedings against the corporation did not and could not disarm the legislature of its reserved right to repeal, nor enlarge the estate of the corporation in its franchises, nor change the terms of the original grant, for these are things which the judiciary cannot do, nor the executive either.
VI. The power of the legislature is not restricted by the rules of pleading and evidence which the courts have adopted; and therefore the state may act in the legislature upon a truth which she would have been estopped to show in a court if the legislature had not interfered.
VII. The power to repeal for abuse of corporate privileges is a different right from that of demanding a judicial sentence of forfeiture, and is reserved for the very reason that it may afford a remedy when a quo warranto would not.
VIII. The charter being constitutionally repealed, the franchises are, as a necessary consequence, resumed to the state, and the road remains what it always was — public property.
IX. The corporators cannot be entitled to compensation, for they had no property in the road, and after their default they held the corporate franchises at the will of the legislature, and the exertion of that will, in the resumption of the franchises, did them no injury but what they agreed to submit to.
The injunction which the. plaintiffs have moved for is to be refused.