Opinion by
Mr. Justice Mitchell,
This case was here before on an appeal from a preliminary injunction, 186 Pa. 212. There being facts involved which were not then finally ascertained we followed the usual practice of not interfering with the interlocutory action of the court below unless clearly erroneous and immediately injurious to the appellant. We therefore affirmed the decree, but did not pass upon the final merits of any of the questions involved. These therefore are now open for consideration.
In the first opinion of the court below (see 186 Pa. 215), the Olean, Bradford and Warren Company was treated as having merged in the present plaintiff, but it is now conceded that the agreement between them was not one of merger but of lease. The plaintiff, the Western New York and Pennsylvania Railway Company, is therefore a lessee of the Olean, Bradford and Warren, and has with regard to the present controversy only the powers of its lessor.
Plaintiff’s bill is based principally upon the contract made June 17,1882, between the Olean, Bradford and Warren Company and the defendant’s predecessor, the Rochester and Pitts-[142]*142burg Company, in accordance with which, as it seems, though it is not made entirely clear, the original crossing was constructed. The learned judge below was of opinion that nothing in this contract took away the right of the Olean, Bradford and Warren to change its gauge if such right existed. This we may concede, but it leaves as the ruling question in the case whether that road, under its charter and the general laws of the state, had the right now claimed to change its tracks from narrow to standard gauge.
The early policy of the state seems to have treated the gauge as a matter to be left to the discretion of each road as its requirements might dictate, and accordingly roads were built with considerable diversity in this respect. There was a time when what was commonly known as the “ broad gauge ” came into use, and considerable litigation arose in the northwestern corner of the state in which this subject played a part, as bearing on “ through lines ” and the transit of cars between different but connecting roads. But the gradual adoption of what is known as the “ standard ” gauge appears to have been the result of experience and general convenience, and not of statutory regulations.
The general railroad act of 1849 makes no direct reference to gauge, though its determination by the railroad is implied in sec. 18, P. L. 86, which provides that on the completion of any such road it shall be esteemed a public highway for transportation of freight and passengers, subject to such rules and regulations, inter alia, “ as to the size and construction of wheels, cars and carriages,” etc., as the directors may prescribe, “provided that the company shall have exclusive control of the motive power,” and may collect toll “ for the use of such road and of said motive power, and the- conveyance of passengers, the transportation of merchandise and commodities, and the cars or other vehicles containing the same, or otherwise passing over or on the said railroad.” In the light of experience this section is curious also, as showing the survival as late as 1849 of the primitive conception of a railroad as simply an improved highway on which, as on a turnpike or a public post-road, travelers would commonly use their own carriages of conveyance or draught, subject to the payment of toll, and getting their relays of motive power from the company.
I have also looked through such of the early acts of incorpora[143]*143tion of railroads as are readily accessible in tbe pamphlet laws, as far back as the charter of the Pennsylvania Railroad from Philadelphia to Columbia, in the county of Lancaster, in 1823, without finding any regulation or direct reference to the subject of gauge. It seems probable, however, that there must have been some such provisions in some of the charters, or at least that doubt and question must have arisen, for the Act of April 11, 1853, P. L. 366, is entitled “An act repealing the acts regulating the gauge of the track of railroads,” and expressly authorizes railroad companies theretofore or thereafter chartered to construct or change their gauge or gauges of road to such width as the directors may deem expedient.
Several railroads had been chartered to connect with roads in Ohio, and among others the Ohio and Pennsylvania Railroad by the Act of April 11, 1848, P. L. 1849, App. 754, which recited a similar incorporation by the state of Ohio: Act of April 11, 1848, P. L. 1849, App. 755. Neither act contains any express provision as to gauge, but reference is made to the general railroad law of Ohio, of February 11, 1848, printed in appendix to Pa. P. L. 1849, p. 756, and also in P. L. 1853, p. 66, section 21 of which prescribes a gauge of four feet ten inches between the rails on all roads under the act. Doubt seems to have arisen on this point as to the Ohio and Pennsylvania road, and on February 19,1849, a supplement was passed to the Pennsylvania act, “ That for the purpose of preventing as far as possible the evils of transshipments from one set of cars to another, and to prevent their occurring at the state line, the Ohio and Pennsylvania Railroad Company are authorized to make the width of the track of that part of their road in Pennsylvania the same as it is required to be in Ohio, .... to wit, four feet ten inches, notwithstanding anything to the contrary in the act of which this is a supplement: ” P. L. 1849, p. 78.
Whether the act of 1853 was passed with reference to other roads in a similar position, or with reference to other statutes dealing with the subject of gauge which the investigation in the present case has not discovered, I am unable to say. But it is clear that the act of 1853 gave full power, not only to construct, but to change, the gauge at the discretion of the directors. It remains to be seen whether this power has been modified in any way by subsequent legislation.
[144]*144Railroad companies, as to their formation and regulation, are governed by the Act of April 4, 1868, P. L. 62, which prescribes, inter alia, certain conditions precedent as to capital stock. It makes no distinction between roads with reference to their gauge. By a supplement, however, passed March 18, 1875, P. L. 28, very material modifications are made in favor of roads with a gauge not exceeding three feet. The required capital stock is reduced from $10,000 to $6,000 per mile, and the shares of stock subscribed for, and the amount of money necessary to be paid in before the filing and recording of the articles of association, are materially lessened. This act therefore makes a distinct classification of railroads with reference to gauge, and to that extent limits the power of the directors of a company organized under it to a gauge not exceeding three feet. To that extent it repeals the act of 1853. The latter repealed then existing restrictions on the discretion of the directors if any there were, but it cannot operate to do away with the force of restrictions imposed by the later act on railroads of a special class. The provisions are too clearly repugnant in material points to stand together.
The Olean, Bradford and Warren road was organized under the act of 1875, and therefore is expressly limited by that act and by its charter to a gauge not exceeding three feet. To become entitled to such charter, the law required it to perforin certain conditions precedent different from those required for a charter under the act of 1868, and much less onerous.
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Opinion by
Mr. Justice Mitchell,
This case was here before on an appeal from a preliminary injunction, 186 Pa. 212. There being facts involved which were not then finally ascertained we followed the usual practice of not interfering with the interlocutory action of the court below unless clearly erroneous and immediately injurious to the appellant. We therefore affirmed the decree, but did not pass upon the final merits of any of the questions involved. These therefore are now open for consideration.
In the first opinion of the court below (see 186 Pa. 215), the Olean, Bradford and Warren Company was treated as having merged in the present plaintiff, but it is now conceded that the agreement between them was not one of merger but of lease. The plaintiff, the Western New York and Pennsylvania Railway Company, is therefore a lessee of the Olean, Bradford and Warren, and has with regard to the present controversy only the powers of its lessor.
Plaintiff’s bill is based principally upon the contract made June 17,1882, between the Olean, Bradford and Warren Company and the defendant’s predecessor, the Rochester and Pitts-[142]*142burg Company, in accordance with which, as it seems, though it is not made entirely clear, the original crossing was constructed. The learned judge below was of opinion that nothing in this contract took away the right of the Olean, Bradford and Warren to change its gauge if such right existed. This we may concede, but it leaves as the ruling question in the case whether that road, under its charter and the general laws of the state, had the right now claimed to change its tracks from narrow to standard gauge.
The early policy of the state seems to have treated the gauge as a matter to be left to the discretion of each road as its requirements might dictate, and accordingly roads were built with considerable diversity in this respect. There was a time when what was commonly known as the “ broad gauge ” came into use, and considerable litigation arose in the northwestern corner of the state in which this subject played a part, as bearing on “ through lines ” and the transit of cars between different but connecting roads. But the gradual adoption of what is known as the “ standard ” gauge appears to have been the result of experience and general convenience, and not of statutory regulations.
The general railroad act of 1849 makes no direct reference to gauge, though its determination by the railroad is implied in sec. 18, P. L. 86, which provides that on the completion of any such road it shall be esteemed a public highway for transportation of freight and passengers, subject to such rules and regulations, inter alia, “ as to the size and construction of wheels, cars and carriages,” etc., as the directors may prescribe, “provided that the company shall have exclusive control of the motive power,” and may collect toll “ for the use of such road and of said motive power, and the- conveyance of passengers, the transportation of merchandise and commodities, and the cars or other vehicles containing the same, or otherwise passing over or on the said railroad.” In the light of experience this section is curious also, as showing the survival as late as 1849 of the primitive conception of a railroad as simply an improved highway on which, as on a turnpike or a public post-road, travelers would commonly use their own carriages of conveyance or draught, subject to the payment of toll, and getting their relays of motive power from the company.
I have also looked through such of the early acts of incorpora[143]*143tion of railroads as are readily accessible in tbe pamphlet laws, as far back as the charter of the Pennsylvania Railroad from Philadelphia to Columbia, in the county of Lancaster, in 1823, without finding any regulation or direct reference to the subject of gauge. It seems probable, however, that there must have been some such provisions in some of the charters, or at least that doubt and question must have arisen, for the Act of April 11, 1853, P. L. 366, is entitled “An act repealing the acts regulating the gauge of the track of railroads,” and expressly authorizes railroad companies theretofore or thereafter chartered to construct or change their gauge or gauges of road to such width as the directors may deem expedient.
Several railroads had been chartered to connect with roads in Ohio, and among others the Ohio and Pennsylvania Railroad by the Act of April 11, 1848, P. L. 1849, App. 754, which recited a similar incorporation by the state of Ohio: Act of April 11, 1848, P. L. 1849, App. 755. Neither act contains any express provision as to gauge, but reference is made to the general railroad law of Ohio, of February 11, 1848, printed in appendix to Pa. P. L. 1849, p. 756, and also in P. L. 1853, p. 66, section 21 of which prescribes a gauge of four feet ten inches between the rails on all roads under the act. Doubt seems to have arisen on this point as to the Ohio and Pennsylvania road, and on February 19,1849, a supplement was passed to the Pennsylvania act, “ That for the purpose of preventing as far as possible the evils of transshipments from one set of cars to another, and to prevent their occurring at the state line, the Ohio and Pennsylvania Railroad Company are authorized to make the width of the track of that part of their road in Pennsylvania the same as it is required to be in Ohio, .... to wit, four feet ten inches, notwithstanding anything to the contrary in the act of which this is a supplement: ” P. L. 1849, p. 78.
Whether the act of 1853 was passed with reference to other roads in a similar position, or with reference to other statutes dealing with the subject of gauge which the investigation in the present case has not discovered, I am unable to say. But it is clear that the act of 1853 gave full power, not only to construct, but to change, the gauge at the discretion of the directors. It remains to be seen whether this power has been modified in any way by subsequent legislation.
[144]*144Railroad companies, as to their formation and regulation, are governed by the Act of April 4, 1868, P. L. 62, which prescribes, inter alia, certain conditions precedent as to capital stock. It makes no distinction between roads with reference to their gauge. By a supplement, however, passed March 18, 1875, P. L. 28, very material modifications are made in favor of roads with a gauge not exceeding three feet. The required capital stock is reduced from $10,000 to $6,000 per mile, and the shares of stock subscribed for, and the amount of money necessary to be paid in before the filing and recording of the articles of association, are materially lessened. This act therefore makes a distinct classification of railroads with reference to gauge, and to that extent limits the power of the directors of a company organized under it to a gauge not exceeding three feet. To that extent it repeals the act of 1853. The latter repealed then existing restrictions on the discretion of the directors if any there were, but it cannot operate to do away with the force of restrictions imposed by the later act on railroads of a special class. The provisions are too clearly repugnant in material points to stand together.
The Olean, Bradford and Warren road was organized under the act of 1875, and therefore is expressly limited by that act and by its charter to a gauge not exceeding three feet. To become entitled to such charter, the law required it to perforin certain conditions precedent different from those required for a charter under the act of 1868, and much less onerous. There is no evidence before the court that the road has complied, or even that it was or is able to comply, with the prerequisites for a charter under the act of 1868, and if such evidence were presented the court could not consider it, for such compliance is not a matter for judicial but for executive determination, committed by the statute to the secretary of the commonwealth.
It is argued by appellee that even if a railroad should be incorporated under the act of 1875, and then it should widen its gauge, no injury could be done to the public, as the cost of the improvement must come from the stockholders or the corporate treasury, and the statutory limitation of the right of all railroads to borrow money is a safeguard which would not be impaired. But this is not a consideration which courts may regard. The legislature has made a class of railroads with [145]*145limited powers in this respect, and to it the road in question belongs. Whether the distinction between the classes could be disregarded without injury to the public or not, the law has fixed it and the courts must enforce it. The directors of a railroad chartered as a member of the limited class cannot by their own vote disregard the limitations and transfer the road to the unrestricted class. The vote of the directors of the Olean, Bradford & Warren, and the vote of its lessee, the plaintiff company, were alike unavailing for that purpose.
It is also argued by appellee that power to change the gauge is conferred by the Act of March 17,1869, P. L. 12, which declares that “ it shall and may be lawful for any railroad, canal and slack water navigation company, now or hereafter incorporated by or under any law of this commonwealth, to straighten, widen, deepen, enlarge or otherwise improve the whole or portions of their lines of railroads, canals and slack water navigation .... whenever in the opinion of the board of directors of such company the same may be necessary for the better securing the safety of persons and property and increasing facilities and capacity for the transportation of traffic thereon, and for such purposes to purchase, hold and use, or enter upon, take and appropriate land and material,” etc., with provision for ascertainment of damages in case of inability to agree with the owners of property taken. It is, however, exceedingly doubtful if this act has any applicability. The subject of gauge is nowhere expressly mentioned. The words “widen, enlarge and improve ” are sufficient in their general sense to cover it, but they are used with reference to the “ lines ” of railroads, canals and slack water navigation, which as to railroads clearly means what is commonly called the right of way. This, under the act of 1849, is not to exceed sixty feet in width, except in certain specified cases of necessity, and the power to widen given by the act of 1869 has reference to this feature of construction. So as to the power to straighten. Under the general rules of law the corporate power to locate its route and acquire the land by eminent domain is exhausted by its first complete exercise. But experience in railroading has shown the expensiveness in wear and tear and other disadvantages of curves and detours made to avoid natural obstacles, and the greater economy as well as other advantages of a straight track. It was in aid of [146]*146this kind of improvement that the act of 1869 gave the powers to straighten, widen, etc., the “ lines ” of the railroad. The. context with which the words are used, and the accompaniment throughout the act of provisions for the settlement of damages under eminent domain, tend to show that the subject of change of gauge was not within the contemplation of the act. Such change involves no exercise of eminent domain, and there was already on the statute books the act of 1853, which completely covered the subject and made the act of 1869 superfluous as to it.
But even if we.could hold the act of 1869 applicable to change of gauge, it would still be subject to the repeal, so far as relates to narrow gauge roads, by the act of 1875 already discussed.
The learned judge below was entirely correct in holding that tile Act of June 19, 1871, see. 2, P. L. 1361, in relation to the regulation of grade crossings by courts of equity, did not control this case. The Olean, Bradford & Warren was the first, and the appellant being the second comer -was bound to exercise its rights in subordination to the prior rights of the Olean, Bradford & Warren. Under the contract of 1882, however, the appellant acquired a status as to the existing crossing of which it has the burden of maintenance. This gives it a standing under the 1st section of the same act to raise the question of the complainant’s right or franchise to do the act in dispute, so far as relates to appellant’s own interests, without regard to the official action of the commonwealth.
There are some other serious questions in the case, such as those regarding the alleged abandonment by the Olean, Bradford & Warren of much the larger part of its line, and the good faith of the change of gauge, averred not to be for itself or its own legitimate use, but for ulterior purposes. As, however, the view we take of the want of power to make the change at all is decisive of the whole case, it is unnecessary to discuss these other points.
Decree reversed, injunction dissolved, and bill directed to be dismissed at costs of complainant.