Commonwealth ex rel. Attorney General v. Bala & Bryn Mawr Turnpike Co. , 153 Pa. 47 ( 1893 )

Opinion by

Mr. Chief Justice Paxson,

We need not discuss the effect of the amendment of the charter of the defendant company by the court of common pleas of Montgomery county, by which it was authorized to extend its road. That decree stands unreversed and unappealed from, and under it, and in entire good faith, the defendant has made the extension of its road of which the commonwealth through its attorney general now complains. Upon the faith of this decree the defendant has expended a large amount of money without any warning on the part of the commonwealth of any objection on her part. The defendant company was acting under color of authority, in pursuance of a decree of one of the commonwealth’s own courts, and it seems ungracious on the part of the commonwealth after permitting the company to expend a large amount of money in extending their turnpike road to question years afterwards the regularity of the proceedings under which the expenditure was made. Were the complainant here a private individual we would not hesitate to say that his laches was a bar to this proceeding. Is the commonwealth in any better position ? We think not. It is true, the statute of limitations does not run against the commonwealth. But this is not a question of the statute of limitations. It is a question of laches, and laches may be imputed to the commonwealth as well as to an individual. While the authorities upon this subject are not abundant, there are sufficient to justify the position now assumed. Equity is as much a part of the law of Pennsylvania as it was in 1787 when Chief Justice McKean so declared it to be in Pollard v. Schaaffer, 1 Dallas, 210; see Church v. Ruland, 64 Pa. 432.

In England, from whence we derived the great body of common law, and most of our principles in equity, it is well settled that while time will not run against the crown, yet time, together with other elements, may make up a species of fraud and estop even sovereignty from exercising its legal rights.

In the case of the Attorney General v. Johnson, 2 Wilson Ch. 102, there was an attempt on behalf of the crown to restrain a purpresture in the river Thames. The court refused to entertain the bill because of the delay on the part of the attorney general in instituting the proceeding. In the case of the Attorney General v. Sheffield Gas Consumer’s Co., 3 De G., M. & G. 304, the real parties complainant after having failed in a direct attempt, as here, procured the attorney general to file an» information and bill on behalf of the public to restrain the gas company from digging up the highway for the laying of pipes. That case was originated precisely as we understand this to have been. There is nothing to show that this proceeding was directed by command of the commonwealth. On the contrary, it is at least alleged to be the act of private parties who have induced the attorney general to allow his name to be used as representing the commonwealth. In the case referred to the injunction was refused on the ground that the defendant company’s plans and acts were notorious, and that the delay of the attorney general, while the defendants were expending money in the construction of their works, disentitled even the public to relief.

The same rule has been held in the neighboring state of New Jersey. In the case of the Attorney General v. The Delaware and Bound Brook Railway Company, 27 New Jersey Equity, 1, the defendant company was constructing a bridge across the Delaware river without having, as it was alleged, legislative authority therefor. An information was filed by the attorney general alleging that the defendants were guilty of a purpresture, that the bridge was a public nuisance, and asking for a decree of abatement. In that case it was' held that where a party acting bona fide, and upon its not unreasonable construction of a public grant, has been permitted to expend a large sum of money in the construction of a public work, in the confidence that it possessed all requisite legislative authority, without a word of protest or remonstrance till the work is practically completed, equity will refuse its aid, even to the state, leaving it to its remedy at law. It was said by the chancellor in that ease: “ The work has been, from its commencement, a matter of public notoriety, and yet no action has been taken on the part of the state authorities, nor even any warning offered by them against the work. The defendants have been permitted to make their immense expenditure upon their enterprise in the confidence of their convictions that they possessed all requisite legislative authority without even a word of protest or remonstrance. Under such circumstances, equity will refuse its aid, even to the state, leaving it to its remedy at law.”

In the case in hand, were we to consider that the order of the court amending the company’s charter was ineffectual as concerns the extension of its road, it yet clearly appears that said extension was made under a mistake and belief as to the company’s legal right, honestly entertained and based upon an order of one of the commonwealth’s courts, which order stands unreversed and nnappealed from; that the company has made a large expenditure of money on the faith of this mistaken belief ; that the commonwealth knew, or ought to have known, and is chargeable with knowledge of this expenditure, and with knowledge of the company’s mistaken belief, and encouraged that expenditure by neglecting or abstaining from asserting the commonwealth’s rights.

It may be said, however, that this suit is a proceeding at law and that, therefore, the cases cited do not apply. But the remedy at law intended to bo left open by the decisions in equity is not such a proceeding as would be practically the equivalent of a bill in equity. This quo warranto aims at the destruction of defendant’s property. A bill in equity could do no more. The remedy at law referred to is not one which would accomplish the same results as a mandatory injunction, such as a writ of quo warranto, or an indictment for maintaining a nuisance. It means merely an action at law to recover damages for any injury sustained.

Under these circumstances, we are of opinion that the commonwealth is not entitled to judgment in this proceeding.

Judgment affirmed.