facts stated in the bill. It admits that it has not obtained the consent of the local authorities of the city of Williamsport, and avers that such consent is not necessary. It denies that the construction of said branches will be without authority of law, etc., but avers that the defendant has lawful authority to construct said branches, and therefore that such occupation of the streets will not be a public nuisance; wherefore it is prayed that the plaintiff's bill may be dismissed, etc.

"On the argument many questions were discussed, which it is not deemed necessary to examine seriatim, but which are disposed of by the following general observations: It is not charged that the company defendant threatens or intends to disregard the established grades of the streets it desires to occupy; nor that it intends by its proposed branches to violate or disregard any ordinance of the city regulating its occupancy of said streets. It does not appear that the city has ever adopted any regulations or ordinance on the subject. The village of Newberry and the borough of Montoursville did not adjoin the borough of Williamsport; hence the company defendant had authority to cross the intervening space to reach its termini, and this right could not be affected by the extension of the borough or city limits so as to include the whole or any part of such intervening territory. If the section of the constitution and the act of assembly before recited do not apply to the defendant, then its right to determine what streets of the city it will occupy is vested in the company; and, indeed, is expressly reserved to the company in its charter, where it is declared that it may occupy such street or streets as may be deemed advisable by the company.

"The company defendant was incorporated in 1863, and is subject to the permission of the act of assembly of May 3, 1855, (P. L. 423; Purd. Dig. 352, p. 82;) and is also subject to the following constitutional amendment of 1857: The legislature shall have the power to alter, revoke, or annul any charter of incorporation hereafter conferred by or under any special or general law, whenever in their opinion it may be injurious to the citizens of the commonwealth; in such manner, however, that no injustice shall be done to the corporators.' No rule of law in this state requires a railroad corporation to exercise all the powers contained in its grant in the beginning, or declares that those powers which are not then exercised are lost, unless the statute expressly provides for the forfeiture of a charter at the suit of an individual. Only the government can assert the right to have it forfeited, and then it must be done in a proper proceeding commenced for that purpose. The courts interfere by injunction to prevent wrongs of a repeated and continuing character. In a case where the public rights, or private rights secured by statute or by contract, are invaded, and an injunction asked for in order to protect them, no question of the amount of damage is raised; but simply one of right. When railroad companies or individuals exceed their statutory powers in dealing with other people's property, no question of damage is raised when an injunction is applied for, but simply one of an invasion of right. Com. v. Railroad Co., 24 Pa. St. 159; Railroad Co.'s Appeal, 5 Atl. Rep. 872.

"This brings us to the consideration of the real question in this case, viz., has the company defendant lawful authority to extend its lines or build branches in the streets of the city of Williamsport without the consent of the city authorities? If it has such authority, then the preliminary injunction granted must be dissolved, and the plaintiff's bill dismissed. If it has not such lawful authority, then the preliminary injunction must be continued. The original charter of the company does not require that the consent of the local authorities shall be obtained to allow it to build its tracks in the streets. On the contrary, this power is expressly given to the company. The Williamsport Passenger Railway Company is certainly not required to obtain the consent of the city authorities to occupy its streets, unless its charter is to be construed as subject to section 9 of article 17 of the constitution of 1874, or the statute of 1878 in

the same words, viz.: No street passenger railway shall be constructed within the limits of any city, borough, or township without the consent of the local authorities.' Whether or not this constitutional or statutory prohibition applies to the company defendant depends upon whether the reasoning and the authority of the supreme court in the cases of Railroad Co. v. Duncan, 5 Atl. Rep. 742, and Railroad Co. v. Patent, Id. 747, apply to the case at bar. Prior to these decisions, it had been frequently held that railroad companies whose charters, like the Pennsylvania Railroad Company and Philadelphia & Reading Company, in the exercise of the power of eminent domain, required them to make compensation for land entered upon, used, or taken, were not liable for consequential damages. By the cases cited, it is decided that the companies therein named are now liable for consequential damages, because their charters are to be construed as subject to section 8, article 16, which declares that municipal and other corporations and individuals invested with the privilege of taking private property for public use shall make just compensation for property taken, injured, or destroyed by the construction of their works,' etc. The effect of these decisions is that the charters of the companies named, which required that they make compensation for lands entered upon, used, or taken, must now be so read that they shall make compensation for lands entered upon, used, taken, injured, or destroyed. Mr. Justice GORDON, in delivering the opinion of the court in the Case of the Railroad Co., supra, after giving at length his reasons for the conclusions arrived at, says: · We, therefore, rest our decision on what we deem its legitimate ground; that is, that the act of 1855, and the constitutional amendment of 1857, must be taken to be as much part of the defendant's organic law as though written therein; and, as a consequence, as well the constitutional convention [of 1873] as the legislature had the power to subject the company's exercise of the right of eminent domain to the provision that it make just compensation, not only for the property which it might choose to take in the strict sense of that word, but also for such as it may injure or destroy.'

“After a careful study of the cases just cited, containing, as they do, the last deliverance of our supreme court on the subject, I am of opinion that they rule the case at bar. Thus I arrive at the conclusion that the Williamsport Passenger Railway Company may not lawfully construct its railways on the streets of the city of Williamsport without the consent of the city authorities. "Preliminary injunction continued until final hearing or further order of the court."

J. G. Reading, Linn & Crocker, and H. C. & S. T. McCormick, for appellant. J. J. & V. A. Metzger and H. W. Watson, City Sol., for appellee.

PAXSON, J. It is not denied that the charter of appellant's company gives it the power to lay its tracks upon the streets in question; and, if it were denied, it would not matter, as such power is expressly conferred. The city of Williamsport, appellee, contends that it has no right to do so without the consent of city councils first had and obtained; and refers us to section 9 of article 17 of the constitution of 1874, and to the act of May 23, 1878, § 16, (P. L. 111,) as authority for this position. The constitutional provision and act of assembly referred to are in substantially the same language, viz.: "No street passenger railway shall be constructed within the limits of any city, borough, or township without the consent of the local authorities thereof." The appellant company was chartered by act of April 15, 1863, (P. L. 1080,) and has expended a considerable amount of money on the faith of its charter. It had entered into contracts involving still further expenditure, and for the purpose of extending its road, and had incurred serious obligations on account thereof, when its operations were arrested by the injunction of the court below, issued at the instance of the appellees. There is nothing in the company's charter which makes the consent of councils a prerequisite to the ex

ercise of its corporate powers in the extension of its road. Hence we have the question, clearly cut, whether its charter is affected by either the constitutional provision or the act of assembly referred to. If the charter of the company remains in full force, as originally granted by the commonwealth, its rights to extend its tracks as proposed is too clear for argument. It has been said by this court, on more than one occasion, that the constitution of 1874 did not, ipso facto, repeal charters. This principle was expressly ruled in Hays v. Com., 82 Pa. St. 518, in a very clear opinion by our Brother GORDON; and the same thought was expressed by the same judge in Railroad Co. v. Duncan, 111 Pa. St. 352, 5 Atl. Rep. 742, where he said: "We also agree that the framers of the constitution of 1874 did not intend to violate the laws of the federal government, or to repeal the provisions of any charter granted by the legislature of Pennsylvania." That this case was not intended to assert the doctrine that the constitution repealed existing charters, the extract I have given fully shows; nor was it intended to overrule Hays v. Com.

It was urged, however, that appellant's charter postdates the constitutional amendment of 1857, which provides that "the legislature shall have the power to alter, revoke, or annul any charter of incorporation hereafter conferred by or under any special or general law, whenever, in their opinion, it may be injurious to the citizens of the commonwealth; in such manner, however, that no injustice shall be done to the corporators;" and that the appellant's charter is subject to this provision, and to appropriate legislation to enforce it. I concede all this; but I do not understand that the act of 1878 was intended to enforce this amendment, or to repeal the charter of the appellant. The amendment of 1857 did not give an arbitrary power to the legislature to repeal charters at will. It only authorizes such repeal for cause. It can only be done where the charter is injurious to the citizens of the common wealth, and such reason should appear in some way as the moving cause which induced the legislature to take such action. And, even where such cause appears, the charter must be revoked or annulled in such manner, and no other, "that no injustice shall be done to the corporators." That I am right in this construction of the amendment of 1857 was clearly shown by our Brother GORDON in his opinion in Hays v. Com., where he says, at page 523: “It is said, however, that, by the amendment of 1857, the legislature has the power to alter or revoke the charter of this corporation. Be it so. It may be an answer to say that a constitutional convention is not the legislature in the meaning of that amendment. If, however, it were such, it could only make such alteration or revocation, when it was made to appear that the charter, in the part proposed to be revoked or altered, was injurious to the citizens of the commonwealth;' for the legislature cannot act arbitrarily in a matter of this kind, and impose its own will as the ultima ratio. In the case last above cited, [Com. v. Railroad Co., 58 Pa. St. 26,] Mr. Justice SHARSWOOD sets it down as a rule, settled not only by judicial but by legislative authority, that the legislature is not the final judge of whether the casus fœderis, upon which the authority to repeal is based, has occurred. As there is in this case no allegation of a breach of any condition under which the Pittsburg & Castle Shannon Railroad Company accepted its charter, or that that charter is in any particular obnoxious to the welfare of the citizens of this commonwealth, it cannot be successfully urged that it may be revised or abrogated by any state authority whatever. But the constitutional convention claimed for itself no such power. On the other hand, it has expressly set down (act 2 of the schedule) that all rights, actions, prosecutions, and contracts shall continue as if the constitution had not been adopted. And by the second section of the sixteenth article it is manifest that the convention did not intend to subject any private corporation to any of the provisions of the constitution which might in any degree change the charter thereof. If otherwise, why say: The general assembly shall not remit the forfeiture of the charter of

any corporation now existing, or alter or amend the same, or pass any other general or special law for the benefit of such corporation, except upon the condition that such corporation shall thereafter hold its charter subject to the provisions of this constitution?' This section is so comprehensive and clear that nothing is left for surmise or doubt. Charters of private corporations are left exactly as the new constitution found them, and so they must remain until the companies holding them shall enter into a new contract with the state by accepting the benefit of some future legislation. It is only on the theory that the manner of voting is not material that the cumulative system is sought to be saddled on this corporation; but, if this company does not hold its charter subject to the provisions of the present constitution, how can it be made subject to any one of its provisions, material or immaterial?" Hays v. Com. received the assent of six judges of this court; only the late Justice WOODWARD dissenting. It is sound law, and must stand.

Our conclusion is that the charter of the appellant is not affected by the constitution of 1874 or the act of 1878. It follows that it was error to grant the injunction.

We have departed, in this instance, from our rule not to discuss cases coming here upon appeals from preliminary injunctions. This appeal presents a question of law only. There are no facts in dispute. The report of a master under such circumstances could not aid us. We have all the light now we could have upon the final hearing. In addition, we have been earnestly requested by the counsel on both sides to treat the decree as final.

The decree is reversed, at the costs of the appellee, and the injunction dissolved.

WOMEN'S HOMEOPATHIC ASS'N OF PA. v. HARRISON et al.

(Supreme Court of Pennsylvania. April 16, 1888.)

1. MECHANIC'S LIEN-EXTENSION OF TIME OF FILING-SUBSTITUTING Other ProperTY FOR THAT SUBJECT TO LIEN.

In a mechanic's lien suit, the only items charged within six months were two soap-stone hearths and a laundry stove. The affidavits of defense alleged that the hearths were furnished by plaintiff "gratuitously, " to supply the place of two others furnished and charged more than six months before filing the lien, and which proved defective; that they were furnished simply to make good the previous charges; and that the second charge was made merely for convenience in book-keeping. Held, that this stated a good defense, as the furnishing of the substituted hearths could not operate to extend the time for filing the lien.

2. SAME FOR WHAT OBTAINED-PORTABLE STOVE.

The affidavits of defense alleged that the laundry stove charged "was a small, portable stove for heating flat-irons;" "in no sense any part of the building;" "it was not used, or intended to be used, in the construction or erection" of the building; it was "an ordinary piece of personal property, as much adapted for use in one laundry as in any other."" Held, that such an article was not the proper subject of a charge for lien.

Error to court of common pleas, Philadelphia county.

This is a mechanic's lien suit, by William H. and Charles H. Harrison, trading as W. H. Harrison & Bro., subcontractors, to enforce a lien against the hospital of the Women's Homœopathic Association of Pennsylvania. The following supplemental affidavit of defense was filed.

"M. Theresa Keehmle, being first duly sworn, deposes and says that she is the treasurer of the Women's Homeopathic Association of Pennsylvania, a defendant herein, and has a knowledge of its organization and business, and has been selected as the proper officer to make this affidavit on its behalf; that said defendant is a corporation duly incorporated and existing under the laws of the state of Pennsylvania; that it heretofore entered into certain contracts with the defendant George McNichol & Son, now Robert McNichol, surviving partner, whereby said firm was to erect and construct a certain hospital building for said corporation at a contract price of fifty-four thousand nine hun

dred and twenty dollars, ($54,920;) that, before the completion of said building, said firm became insolvent, and unable to pay its subcontractors, and said firm has since made a general assignment for the benefit of its creditors; that the balance now unpaid upon said building contracts between said firm and this defendant is less than twelve thousand seven hundred dollars, ($12,700;) but that the claims against said firm which are sought to be enforced against the property of this defendant by virtue of the laws relative to mechanics' liens exceed the sum of twenty thousand dollars, ($20,000;) that the plaintiffs herein claim as material-men and subcontractors under said firm, and have filed their said claim and bill of items as such, and now seek to enforce said claim under the aforesaid laws. Affiant further avers the following specific facts as constituting valid defenses to said claim:

"First. That the labor and material for which plaintiffs have filed their claim in this case are therein alleged to have been furnished in and about the erection and construction of a certain building situate upon premises, described, inter alia, as follows: Extending along the northwardly side of said Susquehanna avenue to the southwardly side of the said Dauphin street,' and as having on the eastwardly side thereof a certain street named Woodstock street. Affiant avers that, if either of the above items of description is correct, then in that event said material and labor was not furnished or performed in and about the erection or construction of any building of or for this defendant, but that said claim is a cloud upon defendant's title, and defendant should be allowed to make defense thereto before a jury.

"Second. That the claim in this case was filed on the 26th day of June, A. D. 1887. That the only items of labor or material done or furnished within the period of six months next before the filing of said claim, and included therein, are as follows: March 9, 1887, one soap-stone hearth, 5 ft. 8 ins. by 1 ft. 6 ins., set. March 9, 1887, one soap-stone hearth, 6 ft. 5 ins. by 1 ft. 6ins. Make 18 ft. 6 ins. at $1 set, $18.50. May 27, 1887, one 13-iron laundry stove and piping, $25.' That these items are followed in said bill of items by an entry without date, as follows: Credit, by two soap-stone hearths returned, $18.50.' That, as a matter of fact, the two hearths so charged in said bill were furnished by plaintiff gratuitously, to supply the places of two other defective hearths of similar size and value, (if perfect,) which plaintiffs had furnished and charged for more than six months before the filing of said claim, and was simply material furnished by plaintiff to make good their own prior charge. That the said charge of March 9th, and the balancing entry of a credit for the same amount, are therefore entries made merely for convenience in bookkeeping, and do not represent such a transaction as would extend the time for filing the lien. That the laundry stove and piping charged as of May 27, 1887, is a small portable stove for heating flat-irons, with the necessary stovepipe for connecting it with the brick chimney. That it is in no sense any part of the building; nor was it used, or intended to be used, in the construction or erection thereof. That it is an ordinary piece of personal property, and is as much adapted for use in one laundry as in any other.

"Third. That said corporation defendant was incorporated, under the laws of the state of Pennsylvania, for public charitable purposes, which are fully expressed in section 2 of its charter, as follows: To establish and maintain homœopathic, medical, surgical, and maternity hospitals, with schools for nurses in connection therewith. Applicants of all classes shall be admitted to each of said institutions upon the most liberal terms, consistent with their proper management and the laws of the state of Pennsylvania.' That said corporation has no capital stock, or other means whereby any part of its funds or property can be divided among its members; but all money or property received by it as contribution or in any other way must remain and be applied as and to the public charitable purposes herein before specified. That the property sought to be bound by this claim is necessary to and for the carrying on