Commonwealth ex rel. McCormick v. Pittsburg Illuminating Co.

Opinion by

Mr. Justice Mitchell,

We cannot regard this case as raising in proper form for adjudication, the question of the constitutionality of the Act of June 24, 1895, P. L. 266, involving as it would the construction of the phrase in section 10 of article 16 of the constitution, that the general assembly shall have power to revoke or annul any charter of incorporation “in such manner that no injustice shall be done to the corporators.”

The learned judge below appears to have thought the quesfcion sufficiently raised by the stipulation of the parties that the decision should be upon the merits “ whether the defendant is entitled to exercise the franchise of furnishing gas for light only, . . ; . this question to depend upon whether prior exclusive franchises vested in the Consolidated Gas Company.” But the words “ prior exclusive franchises ” must refer in point of time to May 8, 1895,. when the defendant’s charter was issued, and its franchises, whatever they were, came into existence. It is manifest that this question of priority on May 8, cannot be affected by an act not passed until June 24, and having no retroactive words, even if such words could be effectual for that purpose. The stipulation of the parties therefore is not in terms broad enough to include the question under the act of 1895, and the appellant expressly declines to have it so enlarged.

The Consolidated Gas Company was incorporated by special Act of May 19, 1871, P. L. 1872, p. 1309, but was to be organized, managed and governed as provided by the Act of March 11, 1857, P. L. 77, for the incorporation of gas and yra,ter companies. By the general corporation Act of April 29, 1874, P. L. 73, provision was made for the incorporation of gas companies, and by section 26, corporations theretofore existing for any of the purposes named and covered by the act, upon accepting its provisions, were to be “ entitled to all of the privileges, immunities, franchises and powers conferred by this act.” And by section 34, subsequently amended by the Act of June 2,1887, P. L. 312, the franchises and privileges were to be exclusive within the district or locality covered by the charter, until certain dividends should be earned and divided among the stockholders. The Consolidated Gas Company in February, 1895, accepted the provisions of the act of 1874 in the manner prescribed, and letters patent were issued to it accordingly. It would seem clear therefore that on May 8, 1895, the privilege of the Consolidated Gas Company was exclusive, and of this opinion apparently was the learned judge below, as he based his judgment altogether on the repealing act of June 24, 1895. But for reasons already shown that act cannot control this case, and we must leave its constitutionality to be determined when it comes properly before us.

Judgment reversed and judgment directed to be entered for the commonwealth.