(See 111 Pa. St. 352; 17 WEEKLY NOTES, 193.) The facts are fully stated in the previous reports of the case and in the opinion of the Supreme Court of the United States, infra. An application for a re-argument was refused March 22, 1886, and the record remitted to the Court of Common Pleas No. 2. The Pennsylvania Railroad Company there Supreme Court of the upon took this writ, filing the following specifica United States. Oct. '88, 291. Pennsylvania Railroad Company v. Miller, Administrator of Duncan. Constitutional law-Corporations-Eminent domain-Pennsylvania Railroad Company Consequential damages—Liability for. The Pennsylvania Railroad Company is subject to the provisions of section 8, Article XVI., of the Constitution of Pennsylvania of 1874, providing that corporations invested with the power of eminent domain shall be liable for consequential damages. The views of the Supreme Court of Pennsylvania upon this point in Penna. R. R. Co. v. Duncan (111 Pa. 352, and 17 WEEKLY NOTES, 193), approved by this Court and followed. Semble, that where the charter of a railroad company invested with the power of eminent domain contains no special provision as to the terms upon which that power may be exercised, such charter is to be deemed as taken subject to the general law of the State, and subject to such future changes as may be made in such general law relative to liability in consequence of the exercise of such power. An exemption from future general legislation, either by a constitutional provision, or by an Act of the Legislature, cannot be admitted to exist unless it is expressly given, or unless it follows by an implication equally clear with express words. Where, therefore, at the time of the granting of a charter to a railroad company investing it with powers of eminent domain generally, the general law of the State granting the charter requires corporations exercising the power of eminent domain to make compensation for property taken only, and not to pay consequential damages for property injured: Semble, that the State may subsequently by an alteration of its general law, require the payment by such corporation of consequential damages upon the exercise of the power of eminent domain without infringing the charter contract. Error to the Common Pleas No. 2, of Philadelphia County. Trespass on the case, by George R. Duncan against the Pennsylvania Railroad Company, to recover damages for consequential damages to the plaintiff's property. On the trial, before FELL, J., a verdict was rendered for the plaintiff, and judgment entered thereon. On writ of error to the Supreme Court of Pennsylvania this judgment was affirmed. tions of error :— (1) The Supreme Court of Pennsylvania erred in deciding that, notwithstanding that the Pennsylvania Railroad Company was entitled by the terms of its charter, granted in 1846, to exercise thereafter the right of eminent domain at the price of paying only for property actually taken, and was not required to pay for property injured but not taken, yet the price of the exercise of such franchise could be and was increased by the provisions of the Constitution of Pennsylvania, adopted in 1874, so that thereafter the said company should pay not only for property taken, but also for property injured but not taken. (2) The Supreme Court of Pennsylvania erred in its construction of the Act of the General Assembly of Pennsylvania, passed May 15, 1857, for the sale of the main line of the public works, and the deed of the Commonwealth to the Pennsylvania Railroad Company of July 31, 1857, in pursuance of the provisions of the said Act, in that by its said construction it permits the State to impair the obligation of the contract entered into between the said State and the said company by the said deed of July 31st aforesaid, executed by the authority and according to the terms of the said act of Assembly passed May 15, 1857. (3) The Supreme Court of Pennsylvania erred in holding that the acceptance by the Pennsylvania Railroad Company of the Act of the General Assembly of Pennsylvania, passed April 4, 1868, made it subject to the provisions of the Act of May 3, 1855, and the constitutional amendment of 1857, and, as a consequence, to the general legislative power of the General Assembly. The effect of the said decision of the said Court is that it permits the State to impair the obligation of both the previous contracts entered into between the State and the said company, to wit, one by the grant of the charter of the company, approved April 13, 1846, and the other by the deed of July 31, 1857, executed by the authority and according to the terms of the Act of May 15, 1857. (4) The Supreme Court of Pennsylvania erred in not reversing the judgment of the Court of Common Pleas No. 2, of Philadelphia County, for its refusal to affirm the second point submitted at the trial of the cause in the said Court. Second Point." The defendant, under its charter and supplements in evidence, had full and 2 Dartmouth College Case, 4 Wheat. 518. lawful authority to erect and operate the said from the new burden of liability for consequenFilbert Street extension or branch, and in doing tial damages. so had the right to occupy Filbert Street longitudinally without incurring any liability by reason thereof to the plaintiff as the owner of property abutting on said street." (5) The Supreme Court of Pennsylvania erred in not reversing the judgment of the Court of Common Pleas No. 2, of Philadelphia County, for its refusal to affirm the third point of the defendant submitted at the trial of the cause in the said Court. Third Point. "The defendant, as purchaser of the main line of the public works of this State, under the Act of Assembly and deed in evidence, had full lawful authority to erect and operate the said Filbert Street Extension or Branch, and in doing so had the right to occupy Filbert Street longitudinally without incurring any liability by reason thereof to the plaintiff as owner of property abutting on said street." (6) The Supreme Court of Pennsylvania erred in not reversing the judgment of the Court of Common Pleas No. 2, of Philadelphia County, for its refusal to affirm the fifth point of the defendant submitted at the trial of the cause in the said Court. Fifth Point."Under all the evidence in this case the verdict must be for the defendant." The defendant in error having died pending the cause in this Court, his administrator, P. H. Miller, was duly substituted as defendant in error. Wayne Mac Veagh (A. H. Wintersteen with him), for the plaintiff in error. It is now well settled that a provision in a State Constitution may be a law impairing the obligation of a contract. Fisk v. Jefferson Police Jury, 116 U. S. 131, 135. Railroad Co. v. McClure, 10 Id. 511, 515. And, once assuming jurisdiction in a case of this kind, it follows as a corollary that the Court is not concluded by the view of the questions involved taken by the Supreme Court of the State. Jefferson Branch Bank v. Skelly, 1 Black, 436. L. & N. R. R. Co. v. Palmes, 109 U. S. 244. Bridge Proprietors v. Hoboken Co., 1 Wall. 116. N. O. Waterworks v. La. Sugar Co., 125 U. S. 36, 37. The Constitution of 1874 of Pennsylvania did not attempt to impose a liability for consequential damages to property upon corporations previously chartered. Williamsport Pass. R'way Co.'s Appeal, 120 Pa. 1. In so far as this liability attempted to be imposed adds a new burden to the franchises exercised by the Pennsylvania Railroad Company, in this case, the obligation of a contract is impaired by the State within the prohibition of Article I., section 10, of the Federal Constitution. A contract existed exempting this franchise Fletcher.v. Peck, 6 Cranch, 87. Planters' Bank v. Sharp, 6 How. 301. Von Hoffman v. City of Quincy, 4 Wall. 535. Bronson v. Kinzie, 1 Id. 311. At the time of the grant of the charter in 1846 the law of Pennsylvania did not impose any liability for consequential damages. Shrunk v. Navigation Co., 14 S. & R. 71. Henry v. Pitts. & Alleg. Bridge Co., 8 W. & S. 85. . New York and Erie R. R. Co. v. Young, 33 Id. 175. Buckwalter v. Bridge Co., 38 Id. 281. Ahl v. Rhodes, 84 Id. 319. Penna. R. R. Co. v. Langdon, 92 Id. 21. Lycoming Gas and Water Co. v. Moyer, 99 Id. 615. This principle was a rule of property of the State, and must be followed by the Supreme Court of the United States. Burgess v. Seligman, 107 U. S. 20. L. & N. R. R. Co. v. Palmes, 109 Id. 244, 256. Conn. Mut. Life Ins. Co. v. Cushman, 108 Id. 51. The contract of exemption exists and is enforceable, notwithstanding the Act of 1855, and the amendment of 1857. The Pennsylvania Railroad Company, it has been mentioned, was chartered in 1846, before this Act and constitutional amendment. And long after they were passed the Supreme Court Comm'th v. Penna. Canal Co., 66 Pa. 41, 52, 53. The contract rights of the railroad company were not lost by the acceptance of subsequent legislation. The rights of the railroad company are not affected by the new Constitution, because the adoption of the new Constitution was not a valid exercise of the Legislature's right to alter, revoke, or annul charters. While possibly the Legislature might do this a constitutional convention could not White v. S. & U. R. R. Co., 14 Barbour, 559. The railroad company has not accepted or otherwise made itself subject to the provisions of George R. Duncan against the Pennsylvania the Constitution of 1874. Railroad Company, a Pennsylvania corporation, The immunity from liability for consequential in the Court of Common Pleas No. 2, for the damages, was not lost by delay in the exercise of county of Philadelphia, Pennsylvania. The the right of building this improvement. David T. Watson and M. Hampton Todd (George W. Biddle, with them), for the defendant in error. There is no contract in the charter of the plaintiff in error that it shall be exempt from liability to make just compensation for property injured and destroyed by the construction or enlargement of its works, highways, or improvements. The charter of plaintiff in error is subject to general laws, and to such changes as may be made therein. In re Provident Institution, 9 Cush. 604. Branin v. Com. & P. R. R. Co., 31 Id. 222. plaintiff sued as the owner in fee of a piece of land, with the buildings, wharves, and improvements thereon, situated at the northwest corner of Twenty-third Street and Filbert Street in the city of Philadelphia, and extending 230 feet and 11 inches along the west side of Twenty-third Street, and 426 feet from that corner along the north side of Filbert Street, to low water-mark on the Schuylkill River. The declaration alleged that the defendant had constructed along and upon Filbert Street, and in front of the premises of the plaintiff, an elevated railroad placed on iron and stone pillars set at the curb-lines in Filbert Street at intervals longitudinally of 50 feet more or less, and at an elevation of at least 20 feet above the established grade of Filbert Street, and had constructed an abutment for the sustaining of a bridge superstructure across the Schuylkill River on the eastern side of said river, and in the middle of Filbert Street in front of the premises of the plaintiff, and had constructed opposite Filbert Street in the channel of the river two piers to further support the bridge superstructure, the bridge and the elevated railroad making a continuous line of railway operated by the defendant, to transport freight and passengers in cars drawn by steam locomotives; that Twentythird Street, and Filbert Street, at the place in leg-question, were public highways of the city of Exemption from future general legislation can never be implied; there must be an express con tract. The privilege of taking private property for Hare's Am. Const. Law, 331. Mott v. Penna. R. R. Co., 6 Casey, 9. Philadelphia; that the construction by the defendant of the elevated railroad, and of the abutment and pier for the support of the bridge superstructure, and the operation and use of the elevated railroad to transport freight and passen By reason of the plaintiff in error having ac-gers in cars drawn by steam locomotives, and cepted additional privileges, and amendments to its charter since the Act of May 3, 1855, and the amendments of the Constitution of Pennsylvania of 1857, it subjected its charter to the power of the Legislature to "alter the same" in such manner, however, that no injustice shall be done to the corporators; and imposing liability for consequential damages does no injustice to the corporators. R. R. Co. v. Phila., 101 U. S. 528. By reason of the plaintiff in error having accepted the benefit of a general law, passed since the adoption of the existing Constitution of Pennsylvania, it is within the provisions of section 2, Article XVI. of that instrument, and therefore holds its charter subject to the provisions of the Constitution. November 11, 1889. THE COURT. This is an action on the case brought in June, 1881, by the noise, burning cinders, smoke, dust, and dirt incident to the use of such railroad, had injured the plaintiff in the enjoyment of his premises, and had rendered the same incommodious and of little or no value to him, and had deprived him of the free use of Filbert Street as a highway and of free access to and from the wharves on the river front of his property by the river as well as by Filbert Street, and had greatly depreciated the value of the wharves; and that the injuries were committed on the 1st of June, 1881, and at all times since. The elevated railroad in question was built by the defendant in 1880 and 1881, and was opened for freight in April, 1881, and for passengers in December, 1881. It is known as the Filbert Street extension and crosses the Schulkill River a short distance above Market Street, and ends at Broad Street. From Twenty-first Street west to the river the tracks were laid upon a structure of wooden and iron beams directly over the cartway of the street, and were sustained by iron pillars | contained this provision: "And it shall be lawful some 18 inches square, resting upon the footway for the said company, in the manner and subject inside of the curb-line. This was the case along to the conditions and provisions hereinbefore prothe whole length of the south side of the plain- vided, in relation to the main line of their railtiff's property, the structure being some 40 feet road by this Act authorized to be made, to make high, and the railing or guard along the track such lateral railroads or branches, leading from coming within one or two feet of the wall of the main line of their said railroad, to such conthe plaintiff's building. None of the plaintiff's venient place or points, in either of the counties property was actually taken by the defendant, into or through which the said main line of their but the action was brought for the consequential road may pass, as the president and directors damages caused by the construction of the rail- may deem advantageous, and suited to promote road and its use and operation. the convenience of the inhabitants thereof, and the interests of said company." The defendant set up, among other defences, that it had the right to do what it had done, without liability to the plaintiff, by virtue of its charter, contained in an Act passed by the Legislature of Pennsylvania, April 13, 1846 (Laws of 1846, No. 262, p. 312), and by virtue of a further Act of that Legislature, passed May 16, 1857 (Laws of 1857, No. 579, p. 519). The case was tried before the Court and a jury, and resulted in a verdict for the plaintiff for $20,000, for which amount, with costs, he had judgment. On a writ of error, the judgment was affirmed by the Supreme Court of Pennsylvania (Pennsylvania R. R. Co. v. Duncan, 111 Pa. 352), and the defendant has brought the case to this Court by a writ of error to the Court of first instance, to which the record had been remitted. Duncan having died, his administrator has been substituted as defendant in error. The Federal question involved is whether the Acts of 1846 and 1857 constituted a contract between the State and the defendant, relieving the defendant from liability in this suit, and whether such contract was of such a character that its obligation could not be impaired by subsequent legislation by the State. By the 4th section of the Act of March 27, 1848 (Laws of 1848, No. 224, p. 274), passed as a supplement to the Act of 1846, provision was made for ascertaining, through the action of the Court of Common Pleas of the proper county, the damages sustained by the owner of land or materials "taken". by the defendant, in case such compensation could not be agreed upon. Section 5 of that Act provided as follows: "That if said railroad company shall find it necessary to change the site of any portion of any turnpike or public road, they shall cause the same to be reconstructed forthwith, at their own proper expense, on the most favorable location, and in as perfect a manner as the original road: Provided, that the damages incurred in changing the location of any road authorized by this section shall be ascertained and paid by said company in the same manner as is provided for in regard to the location and construction of their own road." By section 1 of an Act passed April 12, 1851 (Laws of 1851, No. 297, p. 518), it was provided that the 5th section of the Act of 1848 should be so construed as to include the streets, lanes, and alleys in any town, borough, or city through which the road passed. It is first necessary to see what are the provisions of the statutes on which the defendant By the Act of May 16, 1857, before referred relies. to, provision was made for the sale at public The 11th section of the Act of 1846 gave au-auction of the whole main line of the public works thority to the defendant to construct a railroad of the State of Pennsylvania, which included the from Harrisburg to Pittsburgh, with a branch to Philadelphia and Columbia Railroad. The Act Erie, and gave to it the right to enter upon and provided, among other things (§ 3), that it should occupy all land necessary for the purpose, and to be lawful for any railroad company then incorpo"take" the necessary materials from any land rated by the State to purchase such main line for adjoining or in the neighborhood of the railroad so a sum not less than $7,500,000; and that if the to be constructed: "Provided, that such compen- Pennsylvania Railroad Company should become sation shall be made, secured, or tendered to the the purchaser at such public sale or by assignowner or owners of any such lands or materials ment (which assignment the Act provided for), it as shall be agreed upon between the parties, or in should pay in addition to the purchase-money of not such manner as is hereafter mentioned: Provided less than $7,500,000 the further sum of $1,500,further, that the timber used in the construction 000, and should, in consideration thereof, have or repair of said railroad shall be obtained from forever certain exemptions from taxation. This the owners thereof only by agreement or pur-provision in regard to taxation was held unconchase." The 12th section provided for the fixing stitutional by the Supreme Court of Pennsylvania, of such compensation, when not agreed upon, in Mott v. Pennsylvania R. R. Co. (30 Pa. St. through a petition to the Court of Quarter Ses-9), a decision made before the sale took place. sions of the proper county. The 17th section The third section of the Act further provided that |