Appeal, No. 8, May T., 1958, from decree of Court of Common Pleas of Dauphin County, 1956, No. 2215 Equity Docket, No. 401 Commonwealth Docket, in case of The Pennsylvania Railroad Company v. Leon Schwartz et al. Decree reversed.
John B. Prizer, with him William J. Taylor, Wallace D. Stewart, James H. Stewart, Jr., Spencer G. Hall and Nauman, Smith, Shissler & Hall, for appellant.
Edward Friedman, Deputy Attorney General, with him Thomas D. McBride, Attorney General, Howard Criden, Jack Aschinger, Thomas M. Kerrigan, Chief Counsel, Public Utility Commission, for appellees.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold and Jones, JJ.
OPINION BY MR. JUSTICE CHIDSEY
On June 2, 1937, the Pennsylvania Railroad Company (present appellant) filed a bill in equity against the Public Utility Commission and the Attorney General
in the Court of Common Pleas of Dauphin County alleging that Sections 2, 4, 5, 6, 7 and 8 of the Full Crew Act of June 1, 1937, P.L. 1120, 67 PS § 461a et seq., were unconstitutional, and praying for an injunction to prevent their enforcement. The trial court, however, described the bills as one "attacking the constitutionality of the act of assembly... commonly known as the Full Crew Act," and discussed at length the facts and law governing the general question involved, namely, whether the legislation was arbitrary and unreasonable, had no tendency to promote the safety of employes or travelers upon railroads in any actual or substantial way, and was therefore not a proper exercise of the police power of the Commonwealth. The court concluded that "A permanent injunction must be granted against enforcement of the Act," and entered a decree on April 26, 1939, enjoining defendants therein "from enforcing the Full Crew Act... or otherwise interfering with the plaintiff in the operation of its railroad in the Commonwealth of Pennsylvania because of failure to comply with any of the provisions of the said act." (Emphasis supplied).
On appeal to this Court, while we properly stated, in a per curiam opinion, that the court below had held unconstitutional only the sections of the Act referred to in the bill, we did, just as the court below had done, discuss the legislation as a whole. We approved the lower court's findings, and, on November 27, 1939, affirmed the decree. (336 Pa. 310)
Sixteen years thereafter, on June 13, 1955, the Attorney General filed in this Court a petition designated a "Bill of Review to Amend and Modify Final Decree". A rule on the Railroad Company to show cause was granted. The bill averred that the decree went beyond the allegations and prayer for relief of plaintiff's bill in equity in the 1937 proceedings in that it enjoined
enforcement of the entire Full Crew Act instead of merely the sections complained of as being unconstitutional. It prayed that the Court review, modify and amend the final decree of November 27, 1939, so as to limit its restraining effect to those portions of the Act specifically held to be unconstitutional. An answer was filed by the Railroad Company claiming that the decree was proper, but that, if believed to be wrong, application for a rehearing should have been made at the time, that the Attorney General had accepted the decree and entered into consent decrees in favor of every railroad in Pennsylvania in the exact terms of the final decree, and that the Legislature, during all the intervening years, had not re-enacted the sections now in controversy. The Court made an order on January 4, 1956 (383 Pa. 575), discharging the Attorney General's rule, "without prejudice to the right of the Attorney General to proceed ...