misunderstanding as to the scope and extent of the decision, it is proper to add that the questions whether the acts of which the defendant is accused amount to a public nuisance or not, or constitute a breach of the peace, unaccompanied by violence or otherwise, are not decided.

The Olyphant Sewage-Drainage Co., vs. The Borough of

Olyphant, et. al.

Common Pleas of Lackawanna County, No. 5, May Term, 1899, in equity. Corporation - Franchise-Non-user-Forfeiture-Act of May 16, 1889, (P. L. 242).

The corporate existance of a company cannot be attacked collaterally or incidentally, but it must be done in a direct proceeding brought for that purpose by a proper party.

The plaintiff in this case filed the following bill:

"Your orator complains and says:

"First-That a corporation under the corporate name of the Olyphant Sewage-Drainage Company was duly incorporated under an Act of the General Assembly of the Commonwealth of Pennsylvania, approved 10th June, 1893, entitled 'An Act amending an Act entitled “A Supplement to an Act approved the 29th day of April, 1874, entitled an Act to provide for the incorporation and regulation of certain corporations," approved 17th April, 1876, authorizing the incorporation of drainage companies, the said corporation having been incorporated on the 27th day of February, 1894, and its articles of association recorded at Harrisburg in Charter Book No. 43, at page 31, &c., and also recorded in the recorder's office in and for the county of Lackawanna at Scranton in Charter Book No. 3, at page 439, &c. The purpose named in the charter of said corporation being the constructing and maintaining sewers, culverts, conduits and pipes, with all necessary inlets and appliances for surface, undersurface and sewer-drainage in the borough of Olyphant, and the said business to be transacted in the borough of Olyphant, county of Lackawanna, state of Pennsylvania.

"Second-Pursuant to the charter so granted by the commonwealth of Pennsylvania, and in order to permit the carrying out of the chartered rights and duties of the plaintiff company, the councils of the borough of Olyphant did, on the 27th day

of February, 1894, enact an ordinance, of which the following is a copy, to wit:

"An Ordinance permitting the Olyphant Sewage-Drainage Company to construct and maintain sewers, culverts, conduits and pipes within the Borough of Olyphant, in the County of Lackawanna, State of Pennsylvania."

"BE IT ORDAINED by the burgess and town council of the borough of Olyphant, and it is hereby ordained by the authority of the same:

"Section 1. That the Olyphant Sewage-Drainage Company is hereby granted permission to construct and maintain sewers, culverts, conduits and pipes, with all necessary inlets and appliances for surface, undersurface, and sewage-drainage within the borough of Olyphant.

"Sec. 2. Said company are hereby granted permission to enter upon, occupy, and use such public highways within the said borough as in the judgment of the board of directors of said company may be necessary and convenient for the laying of pipes, sewers, conduits, inlets, and other necessary and convenient appliances for the proper sewering, drainage, and sani tary improvement of the said borough,' which said ordinance was duly approved by the burgess of the borough of Olyphant and recorded in the ordinance book of the said borough, and all the requirements of law connected with the adoption of the said ordinance were duly and fully complied with.

"Third-During the year 1894, and after the passage of the ordinance, the said corporation made extensive surveys of the public streets of the borough of Olyphant, and did other work preparatory to the carrying out of its chartered privileges, but became indebted to one E. M. Jones, who recovered a judgment in the Court of Common Pleas of Lackawanna county to No. 283 May term, 1895, on the 13th day of April, 1895,. against the said corporation for the sum of seventy-eight dollars and fifty cents, upon which judgment an execution was issued in the said court on May 25th, 1895, which execution was returned "nulla bona" by Frank H. Clemons, sheriff. And thereupon, on the 11th day of September, 1895, the said Court of Common Pleas of Lackawanna county ordered and directed that a special write of fieri facias be issued, commanding the sheriff

to levy the amount of the judgment in said case. with interest and cost of suit, on any personal, mixed or real property, fran chise and rights of the said corporation, and thereupon to proceed to sell the same, as provided by the Act of the General Assembly of the commonwealth of Pennsylvania, approved 7th of April, 1870. In pursuance of which order of the court, a special writ of fieri facias was issued on the 13th day of September, 1895, and upon said writ the sheriff did levy upon the franchises of the said corporation, and proceeded to sell the same on the 26th day of September, 1895, to Myron Kasson for the sum of one hundred and one dollars and made return of said sale to the said court. And thereafter the sheriff did make his deed to the said Myron Kasson for the franchises aforesaid; said deed bearing date the 26th day of October, 1895, which was acknowledged in open court on the 4th day of November, 1895, and on the said last mentioned date was duly delivered to the said Myron Kasson.

"Fourth-On the 27th day of November, 1895, after due public notice in accordance with law, the persons for or on whose account the franchises of the said The Olyphant SewageDrainage Company were sold at sheriff's sale, as hereinbefore stated, met to organize a new corporation, in accordance with the Act of the General Assembly of the commonwealth of Pennsylvania, approved 31st May, 1887, and at said meeting the said persons did organize said new corporation by electing a president and board of directors and adopting a corporate name and common seal and determining the amount of the capital stock of such corporation, and in every way complying with the terms of the said Act of Assembly. And the plaintiff corporation was there organized, adopting the name of the Olyphant-Drainage Company, accepting Article 16 of the Constitution of the state of Pennsylvania, and causing a record of its proceedings to be filed in the office of the secretary of the commonwealth of Pennsylvania at Harrisburg, which said record was filed in the said office on the 24th day of December, 1895.

"Fifth Within two years after the said 27th day of November, 1895, the plaintiff company did proceed, in good faith, to carry on its work and construct or acquire its necessary buildings, structures, property and improvements. On the 6th day

of January, 1896, by action of its board of directors, William Mahon was elected superintendent of the said company, with power to make purchases, secure bids and have all necessary work done to institute a proper plant in the borough of Olyphant. And in pursuance of his said appointment, the said William Mahon did proceed to excavate the streets of the said borough and lay pipes therein during the said year of 1896. But the same was not completed owing to a lack of funds, and on the 22nd day of October, 1898, the capital stock of the said company was increased from ten thousand dollars to one hundred thousand dollars by the unanimous consent of all the stockholders at a meeting of the said stockholders called for that purpose, and the certificates and election returns, showing that the action of the said stockholders were duly filed in the office of the secretary of the commonwealth on the 24th day of October, 1898, and the sum of three hundred dollars was at that time paid into the treasury of the state of Pennsylvania as fees upon the said increase of capital stock.

"Sixth-In the month of September, 1898, at a meeting of the board of directors of the plaintiff company, a resolution was duly adopted to proceed at once with the work of excavation and laying of pipes and other necessary appliances for a conplete system of sewage-drainage in the said borough. And in pursuance of said resolution, it was ascertained that to entirely complete the plant, as projected and required in order to carry out the chartered rights and duties of the plaintiff company, would require the sum of one hundred and fifty thousand dollars; and for the purpose of securing such funds in part, a mortgage was negotiated, with the People's Trust Company of New York as trustee, for the sum of fifty thousand dollars; which said mortgage was executed and delivered by the plaintiff company to the said People's Trust Company, trustee, and was recorded in the recorder's office in and for the county of Lackawanna on the 22nd day of November, 1898, in Mortgage Book No. 109, at page 428, &c., and contracts were at once entered into for materials, consisting of terra cotta and iron pipe of different diameters, brick, cement and lumber, which materials. the amount of nearly twenty thousand dollars, have been

to

actually delivered upon the ground for the purpose of prosecuting the said work.

"Seventh-On the 17th day of April, 1899, the officers of the plaintiff company started in to commence the work of excavating and laying said pipe, which had been delivered on the ground as aforesaid, and for that purpose had employed about one hundred laboring men to do the said work, and were about to go on, under the provisions of the charter of the original Olyphant Sewage-Drainage Company and the ordinance adopted in pursuance thereof, the rights to which said charter and ordinance had accrued to the plaintiff company, when they were illegally stopped by the defendant, P. J. McNulty, burgess of the borough of Olyphant, who refused to permit the officers, agents and employees of the plaintiff company to make any excavations whatever in the streets of the said borough, and directed the policemen to arrest the officers, workmen and agents of the plaintiff company, and by threats of violence did prevent the plaintiff company from having the peaceable occupation of the streets for the purpose of excavating and laying therein its pipes, and have continued by such threats of violence and arrest, up to the present time to prevent the further prosecution of the work. The pipe and other material of the plaintiff company are upon the ground, ready to be put in place, but the plaintiff company is unable, without committing a breach of the peace, to go on and carry out its corporate rights.

"Eighth-Unless the said P. J. McNulty, burgess and policemen, agents, officers, and other employees of the said borough of Olyphant are enjoined from any other interference with the officers, agents, and employees of the plaintiff company, the plaintiff will suffer great and irreparable loss, injury and damage, in that the season when said work can be done to the greatest advantage will soon pass and the plaintiff will be prevented from carrying out its work and instituting the system of drainage which it is entitled to do under its chartered rights and the chartered rights of the corporation to which it has succeeded and the franchises of the borough thereto granted. And it will suffer great loss by reason of having paid for the material which it has purchased for the purpose aforesaid, and which will be unavailable for other purposes; and will also suffer great loss in