Lewis, C. J.
— That a private corporation, when accepted and «capital expended on the faith of it, is a contract, is too well settled to be denied. That a charter for the construction of a railroad is a private corporation, is equally well settled. That the obligation of a contract cannot he impaired by a State, is a principle to be .found in the constitutions of the United States and the State of Pennsylvania. It follows that a charter granted to a railroad company, thus accepted and acted on, cannot be annulled against the consent and without the default of the corporators, judicially ascertained and declared, unless the power be reserved in the grant. 4 Wheat. 518; 6 Cranch, 88; 7 Id. 164; 9 Id. 43; 6 W. & S. 101; 6 Barr, 86, 379; 7 Harris, 151; 7 Pick. 344. The arguments founded on the inconveniences to the public, Avhich might flow from a power in one legislature to bind another, have their origin in an inattention to the eminent domain which rests in every sovereignty. Under that power a State may resume grants of lands, franchises, or any other private property, whenever the public interest requires it. But, in such cases, the resumption must always be accompanied with just compensation to the party injured thereby. It is not pretended that the charter of the Erie and North East Bailroad Company has been taken under this power, or that any compensation has been given or offered to the corporators. The act of 6th October, 1855, professes to annul it either under some general claim to judicial authoiity, or by virtue of a power reserved in the contract. The reservation is in these words: “ If the said company misuse or abuse any of the privileges hereby granted, the legislature may resume the rights and privileges hereby granted to said company.” The reservation is upon condition. But who is to judge whether the contingency upon which it depends has or has not occurred ? The act is silent on this point. There is not the slightest intimation that the question of “abuse” or “misuse” is to be adjudicated by the legislature. There is no provision for any notice or trial before that body. Notice to the party accused, and an opportunity for a fair trial and a full hearing, is so indispensable to the validity of a judicial sentence, that it may be presumed that these essentials would have been provided for, if the intention had been to give to the legislature the power to try and, determine the question. As the legislature possesses no judicial authority under the constitution, and have no established course of proceeding in the exercise of such a power, it is also reasonable to presume that in all cases where it was to be conferred by contract, the instrument conferring it would also prescribe tbe course of trial. This, of course, would not be indispensable, if the power be clearly reserved. Where an unconditional right of repeal is reserved no trial is necessary, and the repealing act is valid without it. This was the case of MLarren v. Pennington, 1 Paige, 108. So also where an unlimited right of repeal “ at the pleasure of the legislature” is reserved, no trial is necessary; and a proviso that the power is not to be exercised “ unless for some violation of the charter or other default,” is not a limitation of the power which remains complete, by the terms of the contract, to be regulated only by “the pleasure of the legislature.” This was the case of Crease v. Babcock, 28 Pick. 342. It is true that the counsel have found one case in Green’s Iowa Reports, 561, where the territorial legislature, at a time when “ the territorial courts were imperfectly organized in legal proceedings,” adjudicated upon a forfeiture under a power reserved to vacate the charter, in case of abuse or misuse; and that proceeding was sustained. The “ disorganized condition of the courts” of the territory at the time the legislative action occurred, was assigned by the court as one reason for the decision. The authority of Crease v. Babcock, 23 Pick. 340, was relied on as another, although, from what has been said, it is manifest that it gives no support to such a proceeding; and, lastly, it was thought absolutely necessary to construe the reservation as giving the legislature the power to adjudicate on the misuse or abuse, in . order to give effect to it, and that it meant nothing without it. If this were true, it would not give the legislature the power to adjudicate where it has not been reserved by the contract. But it is a very gross error to suppose that the reservation means nothing without giving it this enlarged construction. The evil which would have existed without it was that the corporation, at common law, might have continued to exist with full power to practise its abuses, until arrested in its career by a judgment of ouster. This could not be obtained without the delay incident to all legal proceedings. But a repeal, if valid, put an immediate stop to its abuses, so that all its acts afterwards would be null and void; and all parties would be bound to take notice of the repeal. But the validity of the repeal was still a question which it had a right to have decided according to law in any direct proceeding for the purpose. If its validity depended upon the existence of abuses, it had a right to demand a trial, and to call for the proofs before it could be deprived of its possessions. If the abuse was established, its charter was gone from the time of the repeal, and its intermediate acts were void. But if the contingency upon which the right of repeal depended did not exist, the repeal, of course, would be inoperative. This is the construction which such a reservation would receive in contracts between individuals ; and there is no propriety in adopting a different rule for contracts with the State. All parties stand on equal footing in a court of justice. If a landlord reserves the right to enter upon the tenant and take away his term in case of waste, non-payment of rent, or improper culture of the land, his right to vacate the lease depends upon the proof of the forfeiture in a court of justice. No lawyer ever supposed that such a clause gave the landlord the right of adjudicating finally upon the forfeiture, so as to deprive the tenant of a trial by due course of law. If he attempts to enter without cause, he may be restrained by injunction; or, if he is not thus restrained, he may be sued for trespass. So here the legislature may pass the act annulling the charter, but its validity depends upon the existence of the facts which constitute the cause of forfeiture, and these must be- determined by a court and jury, according to the constitution and the law of the land. This construction of a clause of this character is sanctioned by this court in The Commonwealth v. Bonsall et al., 3 Wharton, 567, where it is said that when a power to annul a charter is reserved upon terms or conditions, there can be no objection to its exercise, “provided the ease contemplated has arisen.” 3 Wharton, 567. The same principle is affirmed by the Supreme Court of the United States, 15 How. 313. Where the power to repeal is reserved unconditionally, or “whenever in the opinion of the legislature there has been an abuse,” there can be no objection to its exercise. But in this case no such general power is reserved. The legislature did not think proper to insist on any such reservation. The judicial power over the case is therefore not given by the contract. Nor is it conferred by the constitution. It follows that the corporators have a right to a trial by jury. The stockholders are tangible individuals, with rights to protect and defend. They have a right to demand that their property shall not be taken away, “ unless by the judgment of their peers,” or the due course of law as administered by the constitutional tribunals, where alone the judicial power is vested.
The case originating in the territorial transactions of Iowa, when her courts of justice were in a “disorganized condition,” is the only one cited which sustains the position that a reservation of power to revoke a charter, in case of abuse, carries with it the additional reservation of judicial power to try and convict the accused corporation of abuse. A few years earlier, the case of Titus Losey was decided by a “Lynch court” of the same territory. He was convicted and sentenced to pay a fine of $800. He appealed from the decision, and as the appellate tribunals of the territory were in a “disorganized condition,” the court sent up the appeal to the president of a Pennsylvania Common Pleas. He reversed the judgment, and awarded restitution of the fine which had been levied. The “Lynch court,” with a proper regard for the due course of law, immediately obeyed the deci sion. The case is cited, not because it is a better precedent than the one from the same quarter reported in Green’s Reports, but merely to show the progress of judicial authority. A few years ago the “ popular” tribunals of Iowa were willing to receive the “gladsome light of jurisprudence” from the president of a subordinate court in Pennsylvania. But now, even the irregular struggles of her infant existence furnish a precedent sufficiently potent to shift this ancient and stable commonwealth from her constitutional moorings. “The sceptre has” indeed “departed from Judah!”
If the preamble is to be construed as an adjudication of the legislature, convicting the corporation of misuse or abuse, it is void for want of authority in that body to hear and determine the case, and also for want of that notice and opportunity to be heard, which is indispensable to the validity of all adjudications. But in no part of the preamble does it appear that the legislature have given their judgment that the corporation has been guilty of abuse or misuse of the privileges granted. No such words are to be found in it. On the contrary, it professes to recite a decree of this court relative to the improper location of their road, alleges an “omission” to “complete and bring it into use” within the ten years prescribed, and then pronounces “ the solemn judgment of the legislature,” not that the corporation has “misused” or “abused” its privileges, but that the charter has “become entirely null and void.” It then alleges a reserved right to resume the franchise, and the first section professes to revoke and annul the charter previously stated to have already become null and void. It is manifest that the revocation is founded on the “ omission” to complete the road in ten years, and not in the “abuse or misuse” of the charter. In the first mentioned contingency no power whatever is reserved to the legislature. In the last there is a reservation. The act is therefore void, because it is not founded on the section which reserves the power of repeal, but on another section relating to another contingency, in which no power whatever was reserved to the legislature.
But as the right of repeal existed in case of abuse or misuse, a court of justice might be willing to sustain the act, if the fact of abuse or misuse could be duly established now, provided the State had done nothing to waive the forfeiture. It must be remembered that forfeitures are odious, and that the law not only construes with great strictness, statutes imposing them, but always lays hold of every act of waiver to relieve against them. If a lease be forfeited for non-payment of rent at the day, or omission to repair, the acceptance of rent after the day, in the first case, and giving notice to repair by a particular time, in the last case, are waivers of the forfeitures. Doe v. Meux et al., 4 Barn. & Cress. 606; 10 Eng. C. L. Rep. 417; Doe v. Lewis, 6 Neville & Manning, 672; 36 Eng. C. L. Rep. 455. These waivers apply to a State as well as to an individual; 9 Wend. 379; 12 Conn. 7.
What evidence of misuse or abuse has been produced ? The act of confiscation recites and relies on the decree of this court, which was pronounced on the 7th September, 1854, in determining a case in equity between the commonwealth and the corporation. This is the only evidence of misuse or abuse shown or relied on to sustain the forfeiture. But the bill filed by the State demanded no forfeiture, and none was decreed. A court of equity never deals with the question of forfeiture; 2 Kent, 313. The application by the commonwealth to the equity side of the court, in a bill which acknowledged the legal existence of the corporation, and its competency to answer, was a strong intimation that she intended to waive the forfeiture if any existed. It is not pretended that the decree contains any adjudication that the company had forfeited its charter. This court had no power to pronounce such a decree without a trial by jury. The decree, so far from adjudging the charter void, proceeds upon the ground that the company has a legal existence and an ability to perform corporate acts. Accordingly, it directs the company to break up certain portions of the railroad, and commands them to “ change the route and construction of it within four months,” and to “make their western terminus at what was the eastern line of the borough of Erie, in 1842, or within the same borough.” It also commands them “ to re-construct their railroad, to supply the parts ordered to be broken up, according to plans and specifications to be by them made, and to be submitted to, and approved of, by this court, on full notice to the counsel for the commonwealth, and not otherwise.” If the State intended to exact the forfeiture arising from the mistake in the location of the road, the plainest principles of common honesty required her to say so before the company had expended large sums of money in re-constructing the road in obedience to this decree. The decree was pronounced in favor of the State, at her own suit. It never could have been enforced except through her procurement and prosecution. Instead of suggesting on the record that she would not further prosecute the suit, but would exact the forfeiture, she appeared in court, by her counsel, with her plans for the location of the parts to be re-constructed. She demanded that the western terminus should be fixed at the harbor of Erie, and that the corporation should be compelled to construct it to that point. This was asking more than was provided for in the charter, and so the court decided. The new location, in conformity with the decree, was approved of. If the State intended to exact the forfeiture at all, here, again, was an opportunity for her to say so, in time to save the stockholders the expense of re-constructing a road under a charter which was to be taken from them. But nothing of this kind was suggested. On the contrary, the company was compelled, at the instance of the State, in a suit in her name, and prosecuted by her authority, to expend the sum of $50,000 in reconstructing their road. The State, at this time, had full notice of all the causes of forfeiture now relied on to justify the Act of October last. She was also bound to know that her legislature, after the existence of the alleged causes of forfeiture, had passed the Act of 14th April, 1852, regulating the manner of conducting the elections of the company — fixing the extent of the rights of the stockholders in voting at such elections — continuing the old officers until others should be elected — prohibiting the corporation Prom changing the gauge of the road from the gauges established by the Act of 11th March, 1851, declaring that the acceptance of the Act of 1852 should be deemed an acceptance of the Act of 1851, and imposing a forfeiture of the charter if the company should construct, or alter, or use, any railroad of any other gauge of track than that prescribed by the Act of 1851. The State was also fully aware of the fact, that the corporation had accepted the Act of 1852, thereby consenting to the burthens imposed by the Act of 1851; for all this was set forth in her own bill. All these transactions were after the alleged cause of forfeiture had arisen. It was also well known to the authorities of the State, (and as public acts, connected with acts of the government under legislative authority, judicial notice may be taken of the facts,) that the Erie and North East Railroad was connected at Eriewith the Franklin Canal Company’s Railroad; and the two roads formed links of a great chain of railroad communication, extending from the Eastern to the Western States, and that the legislature, when it annulled the charter of the latter company, were so deeply impressed with the necessity and importance of keeping up the railroad communication from the East to the West, that they expressly provided, in the Act of 28th January, 1854, that the governor should “keep” the latter railroad “in repair and good running order, for the accommodation of the public travel and business.” The “public travel and business,” could only be accommodated by preserving the connection with the Erie and North East Railroad at Erie. Without that connection, the railroad running west from Erie, would be almost worthless, as a means of accommodating public travel and business. Accordingly, the State herself, by her authorized officers and agents, did not only keep the road last mentioned in repair and good running order, but actually kept it in operation, in connection with the Erie and North East Railroad, at the very point where the location was afterwards objected to. The Commonwealth herself, while in possession of the Franklin Canal Rail road, brought her freight and passengers to that very point, to be forwarded on the Erie and North East railroad to the East, and received from the said railroad, at the same point of connection, the freight and passengers destined for the West. This open and notorious use of the connection with the Erie and North East Railroad, by the Commonwealth, was continued from January until the 5th May, 1854, when the legislature passed the act of that date, authorizing and requiring the Cleveland, Painesville and Ashtabula Railroad, to purchase the railroad now constructed from the city of Erie to the Ohio State line, and all the right and interest of the Franklin Canal Company, or any other parties in the same, with its appurtenances and the rights of way, and all other rights of property connected therewith.” It was also provided, that the Cleveland, Painesville and Ashtabula Railroad Company, “might use and enjoy the said Franklin Canal Railroad, and its appurtenances, with a full release of any and all rights and claims of the Commonwealth thereto or therein ; and might construct a railroad, with one or more tracks, on and along it,” with full power to “ connect their road with any railroad or railroads legally authorized to come to, or to lay abroad within the city of Erie.” The Cleveland, Painesville and Ashtabula Railroad was required to purchase all the stock of the Franklin Canal Company, and all the debts of the company by bond, principal and interest; and, in addition, to subscribe half a million of dollars to the Sunbury and Erie Railroad. These conditions were fully complied with, and the Franklin Canal Railroad, as “ then constructed, from the city of Erie to the Ohio State line,” was sold by authority of the Commonwealth herself, to the Cleveland, Painesville and Ashtabula Railroad Company. The State thus secured half a million of dollars towards the completion of a great work of public importance, as well as other advantages of connection and trade by this transfer. She disposed of the Franklin Canal Railroad for fj>500,000 more than its cost of construction, and appropriated that money according to her own pleasure. Every one, in the least degree acquainted with the subject, knows that it was the connection at Erie with the Erie and North East Railroad, and at the Ohio State line with the Cleveland, Painesville and Ashtabula Railroad, that gave to the Franklin Canal Railroad its chief, if not its only value. Without those connections the road was almost worthless; with them it formed a link in the great thoroughfare, from the Eastern to the Western States, which was of the highest value to the purchasers, and of the greatest benefit to the commerce of the several States, and to the travelling community in general. The connection at the Ohio State line, had been decided to be illegal, buj; the object of the sale was to render it valid; and that it had that effect no one has ever doubted. If the connection at Erie was invalid, the sale of the road, a as then constructed,” and in notorious use, ought to have the same effect. That this was the intention of both parties, seems too plain to require further argument. It is not to be believed for a moment, that the State intended to entrap a corporation of a sister State into a purchase of a railroad, the sole value of which, to that company, was its connections with their own road and with the road east of it, and that as soon as an enormous price was secured, on that consideration alone, she intended to break up the connection and destroy the whole value of the purchase, on the ground of some mistake in locating the road, or other cause of forfeiture, well known to have existed long before the sale. The right to use and enjoy the Franklin Canal Railroad, as then constructed, with its appurtenances, was transferred by the State. That transfer carried, with it the right of connection with the Erie and North East Railroad, as then used and enjoyed, and as that right could not be enjoyed if the charter of the Erie and NorthjEast Railroad was declared null and void, it follows, necessarily, that the sale, under the Act of 5th May, 1854, vras a waiver of the forfeiture. Either company may insist on the waiver, because, where there is a legal connection of two railroads, it is a matter in which both have an interest. Where the sovereign, having power over both, authorizes one to connect with another, both are bound, one actively, the other passively. One is to do and the other to submit, and both have a right to insist on all the legal consequences of such duties imposed and powers conferred.
With this full recognition by the State, of the existence of the charter of the Erie and North East Railroad Company, clothing it with new powers, imposing on it new duties, making use of the location now complained of herself, when in possession of the Franklin Canal Railroad, and gaining a large sum of money, in the sale of the latter road, by reason of its connection with the Erie and North East Railroad, at that very point, the authorities of the Commonwealth could draw no other conclusion than that the legislature intended to waive the forfeiture. That the public interest required the waiver is plain, because the interruption of the immense and incalculable amount of travel and business carried on by means of the Lake Shore Railroad, could not be otherwise than a great public calamity. That the principles of natural justice demanded the waiver, is equally clear, from what has already been said. That the high character of the Commonwealth for integrity and good faith, required that she should not take advantage of the forfeiture, after such repeated acts encouraging the belief that it was waived, is also fully apparent. But it seems to be thought, that the State is above the law — that she is not bound by the ordinary principles of justice — that waivers and estoppels, founded on the purest equity, have no effect on her rights, and that her legislature, whenever they think proper, may ignore and disregard her own tribunals of justice, and the rules of law and equity which govern them. The judiciary of Pennsylvania is established by the Constitution. It administers the law according to equity and good conscience. The rules of law, which govern it in the administration of justice, form a part of every contract, whether with the State or with individuals. And if the legislature is unwilling to submit to the application of those rules in the construction of’ their contracts, they should take care to reserve the right of exclusive jurisdiction to themselves as a part of the bargain. If they do not they are bound to submit to the high mandate of the Constitution, that no man shall be “ deprived of his property, unless by the judgment of his peers or the law of the land,” as administered by the courts of justice.
It is a great mistake to suppose that the State cannot waive a forfeiture, or that she is not bound by estoppels arising from her own acts. It has a thousand times been decided, that the sovereign, as well as an individual, may waive a forfeiture. 1 Pa. Rep. 436; 16 S. & R. 145; 5 Mass. Rep. 232; 9 Wend. 379. The doctrine has never been doubted. It was unanimously affirmed by this court at the very last sitting for the Eastern District, in the case of the Commonwealth v. The West Chester Railroad Company. The Commonwealth, like an individual, is bound by the acts of her agents, within the scope of their authority. The executive, legislative, and judicial authorities, may each bind her, when acting in their appropriate spheres. The judiciary may bind her by a judgment, as often as she voluntarily consents to become a party to a suit in court. On this ground, a judgment in a quo warranto is conclusive, even against the king. Com. v. Burrell, 7 Barr, 35. On the same principle, an acquittal in a criminal case may always be pleaded in bar to a new prosecution for the same offence. The legislature may bind her by acts of assembly, as often as those acts assume the substance of a contract, under, which private rights are acquired. On this ground she is restrained from enacting laws impairing the obligation of contracts created by legislative enactment. The executive may bind her, in the exercise of his official functions. On this ground, a pardon, by the governor alone, is an absolute bar to any prosecution by the State for the offence pardoned. The officers of the land office may bind her, in the exercise of their duties. By a warrant, survey and patent for land, she is precluded from selling the same land a second time. Iler Attorney-General may bind her by coming into court with her suits, and thus bringing her within its jurisdiction and subject to its judgment. It follows, from these principles, that when the Commonwealth voluntarily came into the equity side of the court with her bill, she bound herself to submit to the decree. If the bill was ambiguous, there was no ambiguity in her subsequent application. When she demanded a decree to compel the re-construction of the road to the harbor of Erie, and obtained one ordering ■its re-construction to Twelfth street, a judgment was pronounced which was utterly repugnant to any claim of forfeiture previously known! to exist. That the alleged cause of forfeiture was known to exist when the bill was filed, fully appears from the bill itself.
It is manifest, therefore, that the decree relied upon as establishing the right of the legislature to annul the charter confers no such authority. On the contrary, when considered in connection with all the acts which preceded and followed it, that decree is a perfect estoppel against any such enactment. It is a solemn adjudication, awarding compensation for the alleged cause of forfeiture, instead of exacting the forfeiture itself. The State had the right of election to demand either, but could not enforce both. She elected to receive compensation, and has thereby precluded herself from exacting the forfeiture. To insist on both, is repugnant alike to the rules of law and common honesty. If the condition of a bond be performed after the day, and the obligee accept it, the penalty cannot afterwards be exacted. If the money due on a mortgage be accepted after the day of payment prescribed, and after the estate of the mortgagor is forfeited at law, the forfeiture is waived, and the estate is saved. We have already seen that where the estate of a tenant is forfeited for omitting to repair, if the landlord, instead of exacting the forfeiture, gives the tenantnotice to repair within a particular time, the forfeiture is waived; and the reason is, that were it not so, the landlord might wait until the tenant had made the repairs, and then deprive him of his repairs as well as of the estate. 10 Eng. Com. Law Rep. 417; 36 Id. 455. It is true, that where a turnpike company has forfeited its charter, by permitting its road to remain out of repair and impassable, for the period prescribed as constituting a forfeiture, the subsequent repair of the road at its own motion, and for its own profit, will not atone for the past offence. People v. Turnpike Oo., 23 Wend. 258. But what lias that to-do with a demand by the Commonwealth for specific restitution for an injury caused by an error in the location? What has that to do with a case like the present, where the State made use of the compulsory power of her own judiciary, to compel the expenditure of $50,000, to repair the error complained of, and afterwards attempts to seize the charter and the improvements thus made, under an allegation that the expenditures were not made within the ten years prescribed ? If that was ground of forfeiture, the corporation had no right to expend the money at all. If the powers of the corporation had expired, it had no right to take private property for the new location, or to do any other corporate act. But the decree recognized its corporate capacity to act, and the Commonwealth, in procuring it, necessarily waived the forfeiture. I cannot assent to the doctrine, that the State may demand compensation for a forfeiture, and after-wards exact the forfeiture itself! Such a doctrine is monstrous! It has no parallel, even in the unmitigated exactions of circumcised extortion. The principles of Shylock himself were quite elevated in comparison with it. He adhered religiously to the penalty of his bond, and had too much respect for law and common sense, to accept of compensation, so long as it was his purpose to exact the “pound of flesh.”
We have already endeavored to show that the failure to complete the road within ten years was not an “ abuse” or misuse,” within the meaning of the clause reserving the power to annul the charter. The inability to complete an expensive work of that kind within a particular time, is neither an abuse nor a misuse in any sense. It may be an unavoidable misfortune. It is especially no misuse or abuse within -the meaning of the charter in question, because that instrument has expressly made other provision for that contingency in a separate section, in which no legislative power of abrogation is reserved. The clause relating to the failure to complete the road within ten years, composes the 10th section of the Act. The reservation of the power to annul the charter for abuse or misuse is to be found in the 11th section. The two sections have no connection with each other. They relate to different conditions. The 11th section applies exclusively to positive acts. The 10th section to mere omissions. There can be no abuse or misuse without a positive act of malfeasance. This, to furnish ground of forfeiture, must be wilful. It must be something more than accidental negligence, excess of power, or mistake in the mode of exercising an aeknoiuledged power. 23 Wendell, 193; Angel & Ames on Corporations, 745. But a failure to complete an expensive work within a particular time may arise from inability, misfortune, mistake, and many other causes, entirely destitute of any wilful intention to disregard the condition. The forfeitures arising from the causes first mentioned were those provided for by the reservation of power. But the forfeiture arising from the cause last named is not within the reservation at all. So that as already stated the action of the legislature, on the face of the Act itself, evidently exceeds the power reserved. It is founded on a mere omission, and not on any act of misuse or abuse of the charter.
The section relating to the completion of the work provides that if the company do not complete the work, so as to bring it into use within ten years after the passage of this Act, “then this charter shall become null and void.” It is a well-esta blished rule of law that statutes imposing forfeitures are strictly construed. If the Commonwealth had demanded the forfeiture by proceeding at law, a very different question would have been presented from that which was adjudicated by the court when sitting in equity; and the course of trial would have been entirely different. The facts would have been ascertained by a jury according to the due course of the common law prescribed by the constitution. What were the facts ? The work was completed “ so as to bring it into use within ten years after the passage of the act” of incorporation. This is not denied. The work was done within the time prescribed. The road was in full operation within the time. The travelling and business community were in the full enjoyment, within the ten years, of all the advantages contemplated by the charter. Every substantial object contemplated by the 10th section had been fully attained. But it is contended that the charter required the road to be constructed to the borough of Erie. True, the_ legislature had made a municipal corporation the western terminus of the road; but the same authority afterwards, and before the road was finished, enlarged the area of that municipal corporation, and converted it from a borough into a city. And the railroad company, with the assent of the municipal powers established by the legislature, fixed the terminus within the limits of the city, without carrying it to the obliterated borders of the extinguished borough. This was done under resolutions of the city councils expressly consenting to it, but reserving the right to “ withdraw that privilege, provided the use and occupancy thereof shall appear to them to be injurious to the interests and welfare of the city.” It is not necessary to discuss the extent of authority existing in the municipal corporation. It is sufficient to say that it was clothed with a portion of the governmental power, and that it was the creature of the State, and, to the extent of its authority, it was the agent of the State. It assumed to act in the matter. Its action was well known to the State authorities. It was her duty, if she intended to exact the forfeiture, to disavow the authority the moment it came to her knowledge. But no such disavowal took place until the work was completed and the ten years had expired. Under these circumstances it seems clear that no court of justice in the civilized world, proceeding with the aid of a jury to determine the facts, would have decided that “ the work was not completed so as to bring it into use within ten years; and that the charter had thereby become null and void.” On the contrary, the rule would have been laid down, as it always is in such cases, that “ a substantial performance of the conditions is all that is required, whether they be conditions precedent or subsequent.” 21 Wend. 235; 23 Wend. 537. And it would undoubtedly have been held that the completion of the road to a point within the new municipal corporation, which had been substituted for the old one, so as to furnish the required facilities for commeree~and travel within the time prescribed, was a substantial compliance with the conditions of the grant. But a very different rule might be applied when the State merely sought the equitable intervention of the court to compel a change of location at the western terminus, in accordance with the arrangement made with the authorities of the city. These remarks apply also, in general, to the location of the road at Harbor creek, which was directed to be changed on account of its interference with the Buffalo road. An errqp in the location, S? even a nuisance in a common highway occasioned by an erroneous location, or an unskilful plan, or execution of the work, is surely not a failure to complete it, in any just sense of the term, so as to authorize a judgment of forfeiture for that cause.
But the Act of 1855 bears upon its face decisive evidence, that othér objects were in contemplation than the mere nullification of the charter. It provides for taking possession of the railroad, beeping it in good running order for the accommodation of the public travel and business, collecting the revenues and disposing of them as the legislature may hereafter declare, subject to any rights or obligations which may exist. It also provides for restoring the possession of the road to the company, if they shall break up the connection at present existing with the western road — extend their road to the harbor of Erie and terminate it at that point, and change the gauge throughout the whole length of it, either to four feet eight and a half inches, or six feet, and maintain the same thereat. These are burthens which the charter did not authorize the legislature to impose. That the termination at the harbor would greatly increase the expenditures of the corporators, and materially impair the usefulness of the road for the purpose for which it was designed is perfectly manifest. That this is the principal object of the act is too evident to escape observation; and that it is imposing a ruinous burthen, not warranted by a single word in the charter, is-equally clear.
If the corporation refuses to comply with the conditions proposed by the Act, what is to become of the railroad ? It must be remembered that the State is acting under a reservation, not a grant of power. It is the very essence of a reservation that it can operate only upon the powers existing before in the party making it. It has no effect whatever upon rights which previously existed in the opposite party, or were afterwards acquired by his labor and money expended on the faith of the grant. The powers existing in the State before the charter were merely the privileges granted by it. These were all that she granted, and these only can she take away under a reservation. The language of the reservation plainly confines its operation to these only. The State granted neither land, nor money, nor goods, and she can take none of these from the stockholders. The reserved power to annul the charter carries with it therefore no power whatever to seize the railroad, or to divest the stockholders or the owners of the land, of their rights and,property. At common law, upon the civil death of a corporation, all its real estate remaining unsold reverts to the grantor and his heirs; for the reversion in such case is a condition annexed by law, inasmuch as the cause of the grant has failed. 1 Bl. Com. 484 mr 2 Kent’s Com. 307; Angel & Ames on Corporations, 159, 750; Co. Lit. 13, b; 15 Howard’s Rep. 310. It might be that a Court of Chancery, in a proper case, would appropriate it to the debts of the corporation. But this is not the question here. It has been held that where a title to land is vested in a turnpike company for the purpose of a road, and the road is abandoned, the land reverts to the original owner; 12 Wend. 371. And writers of approved authority inform us that the grant to a corporation is indeed only during the life of the. corporation, and that when its life is determined by the dissolution of the body politic, the grantor takes it back by reversion, as in ease of any other grant for life. 1 Bl. Com. 484; Angel & Ames, 159. If the charter in question is legally declared null and void, the railroad reverts to the former owners of the land on which it is constructed. The title by reversion is as sacred as a title in possession or remainder, and the owners cannot be deprived of it except by due course of law. So that the only effect of this act of abrogation will be to destroy the railroad altogether, or to throw it into the hands of the individual landholders along the route, without any security that it will be kept in running order for the public accommodation. Under the power to take lands for ordinary roads, the legislature might take the land on giving compensation for the improvements. But in this case no provision for compensation has been made, and that already received was only for the easement during the life of the corporation. So that by no rule of law, nor any fair construction of the clause of reservation, can the State take possession of the railroad in the manner and for the purposes proposed by the act, even if her right to annul the charter were fully conceded. It is idle to call the railroad a common highway, in order to justify this extraordinary act of confiscation. The State has not made it so, nor can she make it so, unless she takes the land for the purpose upon just compensation to the owners. It is of the utmost importance that the law on this branch of the case should be insisted on. If a State, under a reservation of power to revoke a charter may also seize and confiscate all the acquisitions of the stockholders, a constant temptation will be presented to exercise the power without cause. A judgment should be impartially pronounced. But if the State, or local authorities of great influence, are to gain by confiscating the assets of a wealthy corporation, who can hope for an impartial decision, or whalt corporation in the Commonwealth is safe 2
It would be unjust to the members of the legislature who voted for the Act of 5th October, 1855, to suppose that they would have sanctioned any such a violation of contract as that act proposes, if the decree of this court had been fully recited in the preamble, and the facts which preceded and followed that decree had been fully made known. It would be equally unjust to the governor, who refused to sign the bill for many months after it had passed the two houses, to believe that he intended anything more than to present the question to the proper judicial authority for decision. Indeed, the readiness with which that officer yielded to the intimation of this court, in suspending the execution of the act, until its validity was passed upon by the judiciary, is evidence that he entertained doubts on the question. The enterprising population of Erie, if they had no interest in the question, and had not been excited by the long conflict in which they have engaged, would scarcely sanction this proceeding. It is but just to look at the circumstances under which they have resorted to this measure. They consider themselves in a state of war with these corporations. They have battled bravely, and at much sacrifice of time and money, for the advancement of their local interests, and now, when they think they have their enemy conquered, they may feel justified in claiming, by right of conquest, the privilege of dividing the spoils.
In conclusion, I am of opinion—
1. That the charter of the Erie and North East Railroad Company is a contract.
2. That the legislature have no right to revoke it, unless the power be reserved in the grant.
3. That the reservation of power to annul the charter by the legislature, is upon the condition of misuse or abuse: and the legislature possesses no judicial power under the Constitution, and have reserved none in the grant, and are therefore not authorized to adjudicate upon the abuse or misuse.
4. That the validity of the Act of 5th October, 1855, depends upon the existence of the abuse or misuse, and the right of the Commonwealth to take advantage of the forfeiture at the time the act was passed.
5. That the law existing at the time of the contract, formed an essential part of it, and creates the very obligation which the Constitution declares shall not be impaired. The stockholders have, therefore, by the contract, a constitutional right to a regular trial by jury.
6. That there has been no misuse or abuse within the meaning of the reservation.
7. That the road was substantially completed and brought into use within ten years, so as to save any forfeiture on that ground.
8. That the error in the location of the railroad was neither an abuse, misuse, nor failure to complete it, within the meaning of the 10th and 11th sections of the act of incorporation.
9. That if any forfeiture had accrued, the State has waived it, and estopped herself from taking advantage of it, by compelling compensation for it under a judicial decree of this court.
10. That if the Act of 5th of October, 1855, was valid in annulling the charter, the legislature have no power under the reservation, to take possession of the railroad.
11. That the Act of 5th October, 1855, impairs the obligation of the contract with the stockholders of the corporation, and is, therefore, a violation of the Constitution of the United States. It is, also, for the same reason, a violation of the Constitution of Pennsylvania.
12. That it is an exercise of judicial power, vested by the Constitution in the courts of justice, and not in the legislature, and is, therefore, void.
18. That it deprives the parties of the trial by jury, contrary to the Constitution, and is, therefore, void.
14. That it takes the property of the stockholders, without the judgment of their peers, and contrary to the law of the land established by the Constitution, and is, therefore, void.
I am in favor of granting an injunction to prevent the seizure of the railroad, until the rights of the parties be determined by due course of law.