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case on its merits, and we will do so. The same result will be reached either way.

Coffin v. Dorr, they would have disclosed the defendant's mortgage title, and have furnished at least an equitable defense to the action, on the ground that a real action by the owner of the equity of redemption will not lie against the mortgagee or one having the interest of a mortgagee. Woods v. Woods, 66 Me. 206; Rowell v. Mitchell, 68 Me. 21. [5, 6] The weakness of the petitioner's contention lies in the fact that it does not appear that the defendant had any valid title whatever. He claimed under the warranty deed of a mortgagee. It is not doubted that if a mortgagee in possession makes a conveyance by deed, the deed will operate as an assignment of the mortgage. The same result follows if the mortgage debt is assigned or transferred with the deed. But it is now well settled in this state that a deed by a mortgagee, not having made entry, and being

land, unless accompanied by a transfer of the mortgage indebtedness. Lunt v. Lunt, 71 Me. 377; Wyman v. Porter, 108 Me. 110, 79 Atl. 371. The reason is that until entry, the interest of the mortgagee is not real estate. Lunt v. Lunt, supra. The mortgage is a personal chattel, a chose in action.

The case shows that the land in question was once owned by Randall S. Clark. On January 8, 1855, he conveyed it to Charles Goodwin and George N. Severance. On the same day, Goodwin and Severance mortgaged it to Andrew H. Hall to secure the payment of three notes aggregating $2,500. The deed of conveyance and mortgage were both recorded January 12, 1855. Hall assigned the mortgage to Sarah H. Gilmore, March 26, 1858, and the assignment was recorded May 23, 1859. On May 18, 1863, J. A. Deane, by an assignment purporting to be made by him, as attorney for Sarah H. Gilmore, assigned the mortgage to Willam A. Farnsworth, Henry Morse, and Merrill Austin. The assignment was recorded the same day. No power of attorney appears of record, and none can now be found. Previous-out of possession, conveys no legal title to the ly in the same month Sarah H. Gilmore gave a warranty deed to Deane, and Deane gave one to Farnsworth and his associates. The counsel for petitioner in argument speaks of these as covering the land in question. This is denied by the defendants, and the case does not show it. From the evidence and admissions in the case we think it may fairly be inferred that, so far, the mortgage notes were transferred from party to party with the assignments of the mortgage. And we may say here, as well as anywhere, that we think that the circumstances indicate It is very evident that when Mr. Farnsthat the notes have never been paid, and we worth gave these warranty deeds he did not And for the purposes of this case transfer the mortgage indebtedness. He died we shall assume that Deane had authority in 1876. After this controversy arose, not to assign the mortgage and transfer the only the original mortgage, but also two of notes to Farnsworth, Morse, and Austin. the mortgage notes, and an execution issued It appears then that in May, 1863, Good-on a judgment on the third note, were found win and Severance were mortgagors and by this petitioner among her father's papers. owned the equity of redemption. William They apparently belong to his estate, of A. Farnsworth-and we need speak only of which she is the administratrix de bonis non. him-was the mortgagee, or had the inter- Nor is there any evidence that Mr. Farns est of a mortgagee. His associates by con- worth had made entry, and was in possession veyance drop out of the case. Afterwards, when he gave the deeds. The petitioner arin 1865 and 1868, it is said, and having no gues repeatedly that such was the fact, but other title than that of mortgagee, Mr. the record does not show it. It shows, on Farnsworth gave warranty deeds of the land the contrary, that efforts were made to ascerto two persons. At the commencement of tain whether Farnsworth had ever been in the action in the case of Kimball and Cof-possession, and that the efforts were unavailfin against Dorr, it is admitted that the ing. The only thing in the case about posplaintiffs, by mesne conveyances, held the session is an admission in these words: title of Goodwin and Severance, mortgagors, the defendant, Dorr, held the title, such as it was, of the grantees in the warranty deeds of Farnsworth, and, as we shall see presently, the petitioner's rights were those of the mortgagee.

so find.

The petitioner's contention is based upon the claim that the chain of conveyances from the warranty deeds of Farnsworth down to Dorr gave the latter some title, namely, the mortgage title of Farnsworth. And upon this assumption she urges that if the mortgage deed and notes had been offered in evidence in the original action of Kimball and

"It is but an incident attached to the debt, and, in reason and propriety, it cannot, and ought not, to be separated from its principal. is not a fit subject of assignment." Jackson v. The mortgage interest, as distinct from the debt, Willard, 4 Johns. (N. Y.) 42.

"It is also admitted that said land is and always has been wholly uncultivated, that it has never been fenced nor built upon; that the only use ever made of it has been an occasional cutting of wood, and that it has never been used as a wood lot belonging to a farm; and that there is now nothing upon it except a growth of wood."

And here the cutting of wood is the only thing that relates to the question. It does not state when it was cut, nor by whom. Surely here is not enough to warrant a finding that Farnsworth ever cut any wood, nor that he had ever been in possession.

[7] The result is that we are compelled to

find that the warranty deeds of Farnsworth conveyed no title. And if that is so, no title came to the defendant Dorr. It thus appears that the original action was a writ of entry by the owners of an equity of redemption against a stranger to the title. If the petitioner had been more diligent, had she assumed the defense, and offered in evidence the notes and mortgage, it would not have changed the situation. If a review should be granted, and she should offer them upon another trial, it would not change the situation. It would still be a suit by the owner of the equity against a stranger. Can it possibly avail in defense that the stranger has a claim against the petitioner for a breach of her father's warranty? We think not. Even suppose the petitioner should plead puis darrein continuance that the real plaintiff, the Bar Harbor Water Company, had become the owner in equity of the interest of the defendant Dorr, so that it had become the real defendant, and suppose for that reason the suit should abate. Will the situation of the petitioner be any different then from what it is now? Will she not then, as now, be the holder of an undischarged mortgage and entitled to hold it until the debt it secured is paid? And will she not then, as now, be liable for the breach of her father's covenants of warranty, to the extent of the assets received

(245 Pa. 573) '

MCCABE v. BESSEMER & L. E. R. CO.
(Supreme Court of Pennsylvania. May 22,
1914.)

MASTER AND SERVANT (§ 240*)-INJURY TO
SERVANT-CONTRIBUTORY NEGLIGENCE.

Where a railroad yard employé, while on an errand for his foreman and before entering a building, noticed an engine standing on the track, and, though on leaving the building his view of the engine was obscured by an open door, neglected to push the door back to see that the track was clear, and was caught between the side of the building and the engine, he was guilty of contributory negligence barring recovery for his injuries.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. 88 751-756; Dec. Dig. & 240.*]

Appeal from Court of Common Pleas, Crawford County.

Trespass by Michael McCabe against the Bessemer & Lake Erie Railroad Company for personal injuries. From an order refusing to take off a compulsory nonsuit, plaintiff appeals. Affirmed.

Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, and ELKIN, JJ. Samuel Y. Rossiter, of Erie, for appellant. George F. Davenport and Frank J. Thomas, both of Meadville, for appellee.

BROWN, J. The appellant was an em

from him as heir? Her father warranted the ployé of the appellee. He had been in its title. If there is damage by reason of a breach, service a number of years before he was inmust she not pay? and entirely irrespective of jured, during the last five months of which the result of the Kimball and Coffin suit? he worked at its Greenville yards. On OctoShe is indeed bound by that judgment. But ber 31, 1905, while working there, he was diwhat was that judgment? No more than this, rected by his foreman to go into the north so far as we are now concerned: It was ad- part of what was known as the sand house judged that Kimball and Coffin had a title to and get a stove. On each side of this house the land, and that Dorr did not have one. there were tracks of the defendant company, And is not that precisely the state of the title five or six of them being on the west side, as we now find it to be? The petitioner was the nearest of them about 32 feet from the not injuriously affected. Her rights under building and parallel to it. A door 4 feet in her mortgage were not adjudged nor affect-width opened outward from the west side of ed. Her liability under the warranty was not changed.

The petitioner suggests as a reason why she ought to have a review granted that she is endeavoring to foreclose the mortgage, and wishes to be able, before the case is again tried, to effect a foreclosure, so that the title thereby effected will inure to the benefit of the grantees under her father's warranty. It hardly need be said that this does not furnish legal ground for a review. To speak of only one contingency, if she has a right to foreclose, the present owner of the equity has a right to redeem, and we must assume that it will do so. There will be nothing then to inure to the benefit of grantees. And the breach will remain unsatisfied.

To repeat. We think the petitioner has stated no ground that would serve as a defense if a review should be granted. It will therefore be useless to grant one. Petition denied, with costs.

the building, and, when open at right angles to it, extended about six inches over the nearest rail, cutting off a view of the tracks to the south. Appellant entered the sand house through this doorway, and, having failed to find the stove, started for another part of the building, passing out through the same doorway, the door of which extended at right angles to the building about a half foot over the nearest rail. As he turned around the door and was about to proceed south towards another room in the building, he found in front of him an engine of the defendant company, coming towards him on the track nearest the building. To avoid being run over he pressed himself up against the building, but the side of the engine extended so far over the rail that he was caught and severely squeezed in the narrow space between it and the building. From the refusal of the court below to take off the nonsuit, in the action which he brought to

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

recover for the injuries so sustained, he has [ 2. TRUSTS (§ 324*)-TESTAMENTARY TRUSTEE taken this appeal. -ALLOWANCE OF COMMISSION · RIGHT TO OBJECT-WAIVER.

Where the trustees' commissions on income were stated and charged in accounts rendered to the life tenant, without objection on her part, she could not, on an accounting thereafter, object to the allowance of such commissions. [Ed. Note.-For other cases, see Trusts, Cent. Dig. § 482; Dec. Dig. § 324.*1

and Administrators, Cent. Dig. §§ 2089-2106, [Ed. Note.-For other cases, see Executors 2108; Dec. Dig. § 495.*]

Appeal from Orphans' Court; Philadelphia County.

Adjudication in the matter of the estate of Jacob Neafie, deceased. From a decree dismissing exceptions to the adjudication, Mary E. Whitaker and others appeal. Affirmed.

The nonsuit was directed on the ground of the contributory negligence of the plaintiff, and the motion for it could not have been denied. The appellant had been familiar for months with the situation within the Greenville yards. He had worked there constantly and knew that trains were at all times passing in and out. He admitted he 3. EXECUTORS AND ADMINISTRATORS (§ 495*) knew that the engines were wider than the -SALES OF REALTY-RIGHT TO COMMISSION. tracks and projected beyond them. He fur-missions allowed him in prior accounts, on sales An executor was entitled to the usual cointher admitted that, shortly before he went of realty, where such sales were made while into the sand house, he saw a train moving he remained in office performing the duties on the track nearest to it, and that when thereof, without reason to suppose that he he entered it the engine which injured him would not be compensated therefor. was standing at an ash pit to the south. While it does not appear in the testimony who opened the door in such a way that all view to the south was cut off as the appellant came out of the building, it is admitted in his history of the case that he himself had so opened it. Without such admission, the presumption would be that he had opened it in carrying out the direction of his employer to go into the building for the stove. His vision to the south when he came out of the building was thus obstructed by his own act; but, even assuming that some one else had opened the door, his manifest duty, when he left the building and started to go south, was to look and see whether the track was clear. This he could readily have done by closing the door or pushing it against the building. Instead of exercising this ordinary prudence, which would have given him a clear view to the south, he did not even stop to look before passing around the door, but went south several feet, with the engine almost upon him. With his knowledge that it projected beyond the rails, he took the risk of being crushed by it when he pressed himself against the wall. He heedlessly placed himself in a position of danger, which he could have avoided by the exercise of but ordinary care when he left the building. Judgment affirmed.

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The facts appear in Neafie's Estate, 199 Pa. 307, 49 Atl. 129, and in the following opinion of the lower court by Gest, J.:

The core of this case, the center about which everything revolves, is the contract made by the executors on March 29, 1898, for the sale to Somers N. Smith of the testator's shares of stock of the Neafie & Levy Ship & Engine Building Company. The exceptants seek to surcharge the accountants with the par value of the bond of Somers N. Smith, the purchaser, or rather the two-thirds thereof belonging to this estate, which is now worthless, but carried among the assets at a valuation of $270,000, on the ground that said sale of the stock by the executors to Smith (whose bond represents the purchase money) was an unauthorized investment, for making which the executor, and for continuing which the trustees, are responsible. The principal contention is whether this act of the executors was done in the exercise of a sound discretion and by lawful authority. But we do not think the matter is debatable, inasmuch as the Supreme Court passed upon it in Neafie's Estate, 199 Pa. 307, 49 Atl. 129. There the life tenant, one of the present exceptants, sought to have the executor removed as trustee under the act of April 9, 1868 (P. L. 785; Stew. Purd. § 52, p. 4893), alleging her want of confidence in him as a result of his having made this very sale. This court dismissed the trustee, and its decree was reversed by the Supreme Court in an elaborate opinion by Mr. Justice Mestrezat, who concluded that the trustee had done what his duty required. him to do and what the interest of the estate committed to his care demanded of him.

the exceptants that express authority to make [I] It is argued by the learned counsel for this sale was not given by the court to the executors, and the sale itself was only incidentally considered by the Supreme Court. We cannot of the record leads to the exactly opposite conagree with counsel in this, as our examination clusion. There were, it is true, other grounds of dissatisfaction alleged, but this one would have been vital, had the Supreme Court considered it substantial; and it may be that the subsequent history of the case shows that the sale was unfortunate, but that is not to the point. We are of the opinion that this court

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

cannot now hold the executor and trustee blameworthy for having done that which the Supreme Court, shortly after it had been done, held to

have been proper.

George Quintard Horwitz, of Philadelphia, and Max L. Mitchell, of Williamsport, for appellants. John G. Johnson, Eli K. Price, and Maurice Bower Saul, all of Philadelphia, for appellee Seddinger. John G. Johnson, Edward H. Bonsall, and Maurice Bower Saul, all of Philadelphia, for appellee Land Title & Trust Co.

(245 Pa. 561)

If this is true in the case of the trustee, who, as one of the executors, made the contract, it is true a fortiori in the case of the cotrustee subsequently appointed. This trust company had absolutely nothing to do with the making of the contract, and we fail to see what could have been done by it to better the situation that was presented. It was a condition, and not a the- PER CURIAM. The decree appealed from ory, that confronted it. There is no sufficient is affirmed on the opinion of Judge Gest. evidence to show that anything could have been done by the cotrustee which would have averted the ruin of the Neafie & Levy Company, which, as the auditing judge finds, was due, at least chiefly due, to its undertaking to build ships at a price below their actual cost. The retention of the Somers N. Smith bond as an "investment" of the estate was unavoidable, for the obvious reason that the trustees could not have disposed of it. Thus retained, the asset was not marketable. There was no testimony to show that any purchaser could have been found for it. Indeed, it would be difficult to imagine such a possibility, and the evidence shows that, up to the time of the receivership of the company, the trustees collected all that was due on the bond.

Appeal of CARLISLE & M. S. RY. CO. et al. (Supreme Court of Pennsylvania. May 22, 1914.)

1.

COURTS ($ 180*)-JURISDICTION-COURT OF QUARTER SESSIONS-VALIDITY OF MUNICIPAL ORDINANCE.

sessions is limited by Act April 3, 1851 (P. L. Since the jurisdiction of the court of quarter 326) § 27, as amended by Act May 22, 1883 (P. L. 40) § 2, to a review of ordinances and regulations done or purporting to be done in the exercise of some power conferred on the borough by statute, such court has no jurisdiction to reWe have not thought it necessary to discuss view an ordinance imposing conditions on a in detail many other matters of less importance street railway company pursuant to the authorelaborated by the learned counsel for the ex-ity conferred by Const. art. 17, § 9, providing ceptants in their able and forcible argument, for, as stated by us in the beginning, they all depend directly or indirectly upon the contract of March 29, 1898. We have, however, examined them, in the light of the testimony presented at the audit, and entirely agree with the findings of fact, as stated by the auditing judge, and his conclusions of law applicable thereto.

[2] So far as the allowance of the trustees' commissions upon income is concerned, it appears that these were stated and charged in the accounts rendered to the life tenant from time to time, without objection on her part. The auditing judge accordingly held that it was too late for her afterwards to object, and we think that his views are sustained, not only by the reasons which he has given, but by the opinion of Judge Hare, in Lodge v. Heron, 3

Phila. 356.

[3] The exceptions to the adjudication of the fourth account of the executor relate to the allowance made to him of commissions at the rate of 3 per cent. upon the sales of real estate. We are of opinion that, under the circumstances of the case, the auditing judge was right in refusing to strike them from the account. long as the accountant remains in his office as executor and performs the labor of his office without being given any reason to suppose that he was not to be compensated therefor, he should be allowed the usual commissions that were allowed him in prior accounts. The auditing judge, however, has left open the question of the allowance of commissions on future sales.

We are not inclined to think that a recommitment of the account of the trustees to the auditing judge and its postponement until the final decree of the Supreme Court in Cornell v. Seddinger would result in any revision of our opinion, and the petition is dismissed.

The court dismissed the exceptions to the adjudication. Mary E. Whitaker, J. G. Neafie Whitaker, and Anna M. Mitchell appealed.

Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, ELKIN, STEW. ART, and MOSCHZISKER, JJ.

that no street passenger railway shall be constructed without the consent of the local authorities.

[Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 412, 437, 439-447, 449-455, 457, 458, 460-464, 467, 468; Dec. Dig. § 180.*] 2. STREET RAILROADS ($ 24*)-FRANCHISE— RIGHT TO IMPOSE CONDITIONS.

Const. art. 17, § 9, providing that no street railway shall be constructed in a municipality without the consent of the local authorities, austreet railway company as a consideration for thorizes a borough to impose conditions on a the consent given.

[Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 34-38, 43, 50-55, 69-76; Dec. Dig. § 24.*]

Appeal from Court of Quarter Sessions, Cumberland County.

Appeal from borough ordinance by the Carlisle & Mechanicsburg Street Railway Company and the Valley Traction Company.. From a decree of the Superior Court affirming a decree of the quarter sessions dismissing the appeal, the companies appeal. Affirmed.

The opinion of the Superior Court by Porter, J., was as follows:

The borough of Mechanicsburg was incorporated by the special act of April 12, 1828 (P. L. 308), and by appropriate action became subject to the general borough act of April 3, 1851 (P. L. 320). The Cumberland Valley Electric Passenger Railway Company was duly incorporated, on September 11, 1893, under the provisions of the act of May 14, 1889 (P. L. 211), and the supplements thereof, by the commonwealth of Pennsylvania, to construct a street railway from the borough of Carlisle to and ing obtained the consent of the local authorithrough the borough of Mechanicsburg, and havties constructed and subsequently operated, on the public highways, the street railway authorized by said charter. The rights and franchises of this company subsequently became vested in the Carlisle & Mechanicsburg Street Railway

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

the Act of May 22, 1883 (P. L. 40) § 2, conferred jurisdiction upon that court to review the action of the borough council, upon complaint of any person aggrieved "in consequence of any ordinance, regulation or act done, or purporting to be done, in virtue of this act, and the determination and order of said court thereon shall be conclusive." The jurisdiction of the court is limited to the review of ordinances and regulations done, or purporting to be done, in the exercise of some power conferred upon the borough by the statute.

Company and the Valley Traction Company, the appellants, and the latter companies became subject to the duties and liabilities of the corporation to which they had thus succeeded. The consent of the borough of Mechanicsburg to the construction and operation within its limits of the street railway in question was by ordinance No. 133, approved August 6, 1900, and the street railway company duly accepted the said ordinance, and under the provisions thereof constructed its railway. The provision of said ordinance, which is material to the determination of this case, was as follows, viz.: "That the The provisions of ordinance No. 226 expresssaid railway company, in consideration of the ly negative the intention to impose the charge rights and privileges granted by this ordinance, in question under the police power of the borshall pay to the borough the sum of $50 per an- ough "for police and street regulations," and, num, said payment to begin two years after the when the borough undertakes to collect this completion of said railway, and to continue for charge, it must be prepared to sustain it upon three years, at the expiration of which term the the ground that it is "solely for the rights and said annual payment shall be increased to the privileges granted in ordinance No. 133." The sum of $100, which latter annual sum shall ordinance No. 133, after fixing the annual paycontinue for the period of five years, at the ex-ments during the first ten years, contained this piration of which period the council reserves explicit provision: "At the expiration of which the right to regulate and determine the future period the council reserves the right to regulate annual payment." The period of ten years fol- and determine the future annual payment." If lowing the completion of the railway expired on the borough, in granting its consent, had the March 1, 1911, and the appellant companies and right to reserve the power to fix, at some future the corporation, to the rights of which they had date, the amount of subsequent annual paysucceeded, made the annual payments during ments to be made by the street railway company that period for which the amounts had been by for the right to occupy the streets, then the orthe ordinance definitely fixed. Upon the expira- dinance No. 226 can only be considered as an tion of that period the council of the borough attempt made by the borough, at the proper duly passed the ordinance entitled "Ordinance time, to exercise the power so reserved. In deNo. 226. Fixing the annual payment to the termining the validity of this ordinance, only borough of Mechanicsburg, Pa., by the Valley two questions arise: (1) Did the borough have Traction Company, successors to the Cumber-power, as a condition of its consent to the conland Valley Electric Passenger Railway Com-struction of the street railway, to reserve the pany, for the rights and privileges granted in ordinance No. 133." This ordinance recited some of the provisions of ordinance No. 133, inter alia, that the earlier ordinance had provided for the annual payment of a fixed sum during the period specified and had reserved to the council of the borough the right to determine the annual payment to be made after the expiration of that period, and then ordained, in its first section, that the appellants, successors to the passenger railway company, should pay annually to the borough, from March 1, 1911, the sum of $1,200. The second section of the ordinance is as follows: "That said annual payment of $1,200 be considered solely for the rights and privileges granted in ordinance No. 133, to the Cumberland Valley Electric Passenger Railway Company, and shall in no way preclude or debar the borough of Mechanicsburg from collecting fines for the violation of ordinances or any acts of assembly now enacted, or that may be enacted relative to the same or levying additional taxes for police and street regulations." The appellant companies, after the enactment of this ordinance, presented their petition to the court of quarter sessions, praying leave to appeal to that court "from said ordinance No. 226," and that the said court order and decree that the said ordinance was unreasonable, illegal, and void. The court below made an order formally allowing the appeal. The borough filed an answer and the appellants a replication, but, as to the material facts, there was no dispute. The learned judge who heard the case in the court below, after full consideration, filed an opinion holding that, because of the subject-matter of the ordinance and the nature of the power exercised by the borough authorities in its enactment, the court of quarter sessions was without jurisdiction to review the action of the borough council, and dismissed the petition. The petitioners appeal from that de

cree.

[1] The court of quarter sessions is not vested with general equity jurisdiction, and its authority to review the action of the council of a borough and declare an ordinance invalid is entirely dependent upon statute. The Act of April 3, 1851 (P. L. 326) § 27, as amended by

right to determine at a future time the amount of the annual payments subsequently to be made by the company for the privilege to occupy the streets? (2) If it had that power, then, was the ordinance No. 226 a proper exercise of the power reserved by ordinance No. 133?

This pro

[2] The right of the borough to exact any compensation from the street railway company for the privilege of entering upon the streets was not conferred by any statute. The ordinance which imposes the charge does not purport to be the exercise of any power conferred by statute. The only assertion of authority for this charge, upon the part of the borough, is founded upon article 17, § 9, of the Constitution of the commonwealth: "No street passenger railway shall be constructed within the limits of any city, borough or township, without the consent of its local authorities." vision is peremptory and without express limitations of any kind. “It is a gift directly from the Constitution to the local bodies, and needs no help, nor permits any interference from the Legislature. If any limitations are to be implied by the courts, the implication must arise from clear necessity, as absolute, as peremptory, and as unavoidable as the constitutional mandate itself. *** He who can consent or refuse without reason does not make his consent or his refusal either better or worse by a good or bad reason. The same principle applies to the present subject. It is conceded that the local authorities may impose some conditions, such as those relative to the police power, but where is the grant to any other body to supervise and limit the conditions, or say what they shall be? The Legislature clearly cannot do it. The very purpose of the provision was to put an end to the Legislature's interference." Allegheny City v. Railway Co., 159 Pa. 411, 28 Atl. 202. The municipality, having the absolute power to give or withhold consent, has the matter in its own hands and may protect its interests by giving its consent upon condition. When the consent is given upon conditions clearly expressed, and the street railway company accepts the terms, a contract relation arises, and the rights of the parties are

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