Philadelphia & Baltimore Central Railroad Company's Appeal , 70 Pa. 355 ( 1872 )

The opinion of the court was delivered, February 19th 1872, by

Thompson, C. J.

The Act of 16th June 1836, “ relating to executions,” provides a mode for the collection of debts due by insolvent corporations, viz., by sequestration. A return to the fieri facias, pursuant to the directions of the 72d section of the act, showing a demand made upon the chief officer of the corporation, or other officer in charge of its principal office, of the amount of the execution, without success, and a failure to find property liable to seizure and sale upon it, make way for the operation of the 73d section, and the creditor may, upon petition to the court showing these facts, have a writ to “ sequester the goods, chattels and credits, rents, issues and profits, tolls and receipts from any road, canal, bridge or other work's, property or estate of such corporation.”

This statute was familiar to the profession and people, and largely practised under for a period of nearly twenty-eight years before the passage of the Act of 7th April 1870, which radically changes the mode of proceedings against such corporations as were previously within the sequestration provisions of the Act of 1836. By this act, instead of sequestration, based upon the return of the fi. fa. under the Act of 1836, unsatisfied in whole or in part, an alias fi. fa. may be issued to seize and sell the franchises and property of such delinquent corporation out and out.

We must presume that the legislative mind, when the Act of 1870 was passed, was fully acquainted with the provisions of the old act, and that a change of remedy was intended in regard to corporation debts. That a change was intended appears on the face of the act. Its provisions, it is said in the act, were “ to be in addition” to those contained in the 72d section of the Act of 1836 (not 62d, as it reads in the Pamphlet Laws, which is obviously a clerical error), “ and in lieu of proceedings by sequestration under the Act of 1836.” The addition to the provisions of the 72d section was simply an alias fi. fa. to seize and sell the franchises and property of the corporation, and this was, says the act, to “ be in lieu of proceedings by sequestration.”

These words are so clearly expressive of an intent to supply the old remedy by a new one, that we need not the aid of the maxim of the common law, leges posteriores priores contrarias abrogant, to guide us to our duty in construing these acts. The Act of 1870 undoubtedly supplies the provisions of the Act of 1836, in regard to insolvent corporations to the extent noticed. Both cannot possibly co-exist as remedies. A judgment-creditor proceeding by sequestration could not restrain another from proceeding by execution, the obvious result of which would be to put an end to sequestration by a sale of the property and franchises. There is nothing in any act which would prevent the latter from taking his remedy by execution, under the new law. Unless, therefore, sequestration granted would result in restraining other creditors from pursuing their executions according to the new law, it is idle to think of sequestration now as a remedy; and we have said there is no law in the statute book to that effect. We hold, therefore, that sequestration is not grantable in this case, and that the proceedings below must be reversed. For myself, I think some additional legislation is needed to prevent the Act of 1870 from operating unjustly ; inasmuch as by its provisions an entire road running the length or breadth of the state may be sold without proper notice. When, therefore, the writ issues, notices of the proposed sale should be required to be made upon the officers of the corporation, and the sale advertised in every county into which the road runs. This is but a personal suggestion, however.

The proceedings in sequestration are set aside, and the decree ordering the writ of sequestration is reversed.