text:
    The Pittsburg, Fort Wayne and Chicago Railway Co. versus The Commonwealth.
    1. The taxing power rests upon necessity and inheres in every sovereignty. Per Pearson, P. J.
    2. The taxing power is unlimited except by constitutional prohibition; in amount it is co-extensive with the wants of the government. Id.

    3. It is applicable to all property and rights created or protected by the law. Id.

    4. It may not be enforced against persons not amenable to or protected by our laws, yet may be against the property or rights coming within the limits of the Commonwealth. Id.

    5. Taxation is correlative to protection. Id.

    6. The money of a creditor loaned to a citizen of this state may be taxed here and the tax collected through the debtor. Id.

    7. A railroad extended through Pennsylvania and other states. The assessment of tax on its debt is to be in proportion to its extent in this state. Id.

    8. Double taxation is not unlawful in this state. Id.

    9. Our constitution does not require equality of taxation. Id.

    10. The officers of a corporation are personally responsible for the tax. Id.

    11. The Commonwealth can sequester a railroad within her borders till the tax is paid. Id-.

    12. The negotiable character of coupons of a railroad corporation will not exempt them from taxation; every one receiving them was bound to know they were taxable. Id.

    13. An omission to charge on any particular aspect of the law where it does not necessarily present itself, is not error in the absence of a request to notice it.
    14. One object of an exception to a charge is to bring a specific error to the notice of the judge, that he may correct it on the spot before the jury have acted.

      15. The practice of excepting to the whole charge without designating a specific error is a bad one, and should be repressed by the lower court.
    May 21st 1870.
    Before Thompson, C. J., A&new and Sharswood, JJ.
    Error to the Court of Common Pleas of Dauphin county: No. 90, to May Term 1870.
    This was an appeal by the Pittsburg, Port Wayne and Chicago Railway Company from the settlement of the accounting officers of the Commonwealth, by which the company were charged with $14,510.11 for tax on interest on the funded debt of the company.
    The appeal, &c., was filed March 27th 1868.
    The charge of Judge Pearson, which was adopted by the Supreme Court, contains all that is necessary for the understanding of the case.:—
    “ The Pittsburg, Fort Wayne and Chicago Railway Company was incorporated by the states of Pennsylvania, Ohio, Indiana and Illinois. The road is about 469 miles in length, some 47 miles of which is within the state of Pennsylvania. The average funded debt of the company amounts to some $12,671,000, the most of which is secured by first, second and third mortgages, besides $59,500, a loan made to build a depot at Chicago, the whole bearing interest at the rate of 77% per cent., payable semiannually, as appears by the returns made by the company to the auditor-general’s office. The whole indebtedness is secured by bonds with coupons attached.
    “ The accounting department of Pennsylvania charged the company with a tax on its interest paid to the bondholders for a fractional portion of the year 1864, and the whole of 1865, 1866 and 1867, amounting to $14,789.01 in all, and deducted therefrom the commission to the treasurer of the corporation, amounting to $278.90, computing the tax according to the supposed length of the road within this state, parts. No exception is taken to the amount, but it is contended that no tax whatever can be imposed on these loans, as the whole road is not situated in Pennsylvania, but in three other states, mainly in Ohio and Indiana, and partly in Illinois; and the company does not know from which of the coupons to make the deduction, and consequently cannot lawfully take it off of the claims of any holder.
    “ Two questions are presented. First: Can the legislature impose the tax ? and, second: Is it done by our laws ? The power to tax rests upon necessity, and is inherent in every sovereignty. It is unlimited in extent, except by express constitutional prohibition, and in amount is co-extensive with the wants and necessities of the government. It applies to every species of property or rights, either created or protected by the law; and although it may not be imposed upon, or enforced against, the persons of individuals not amenable to, or protected by, the laws of the state, yet it may against every species of property or rights which come within the limits of the Commonwealth. This corporation derives its franchises, in part, from Pennsylvania legislation; all of its property within the state is protected by our laws, and although the creditors of the company are beyond our borders, yet their debts, and the effects from which they must be paid, the franchises and corpus of the railroad, are under state jurisdiction and protection, and the holder of the obligation must depend upon our laws for its collection. What would his debt be worth if he could not look to our laws for its enforcement ? And the very property which stands as its security was created, and is upheld, by our authority. We think that it would be impossible to doubt the power of the state to tax the stock of the non-resident corporator in this road, or at least so much of it as is constructed in Pennsylvania, and to enforce payment if necessary by a seizure of the property and franchises of the corporation: and why should not the same right exist against the debts with which the road was built ? They equally have and require the protection of our laws, and the principle of taxation is correlative with protection.
    “ By the 32d section of the Act of 1844, all moneys owing by solvent debtors were subjected to taxation, however the same might be secured, and this even fell on the holder of state bonds and stocks, which tax the state treasurer was required to withhold from the creditor, when paying interest. By the Act of May 1st 1854, Pamph. L. 536, it is declared ‘that all bonds and certificates of loans of any railroad company incorporated by this Commonwealth, be and the same shall be liable to taxation for state purposes only.’ Showing most clearly the legislative intention to relieve those debts from the burden of county and township taxes, but to subject them to that of the Commonwealth. No method was provided for collecting this tax where the creditor resided out of the Commonwealth, until the enactment of the Act of April 30th 1864, the 3d section of which required the president, treasurer, cashier or other officer of any company incorporated by the laws of this state, to deduct the state tax due upon its bonds or indebtedness, and pay over the same to the state treasurer. A similar provision is made as to city or county bonds, by the 4th section of the same act. See Pamph. L. 1864, p. 219. No exception is allowed as to the debts due to non-residents by either of these enactments. Money is quite as likely to be lent to citizens of another state by one of our cities or counties, as to a railroad company; yet it is probable that the duty and obligation of such city or county treasurer to retain the tax was never doubted. [No one can read these various enactments without coming to the conclusion that it was the legislative intention to collect a state tax from all creditors of corporations, whether private or municipal, without regard to the residence of the holder of the obligation; and it is equally manifest that this system of retention was designed to meet the case of absentees, as our own citizens were obliged to return their amount of money at interest to the township assessors. If the non-resident holder of such bonds could not be taxed, the most gross frauds would be practised by colorable transfers to persons out of the state, or by handing over the coupons to such for presentation to the treasurers.]
    “ But why should we, sitting in an inferior court, reason on this subject ? Every legal question referred to thus far, has received a judicial construction by the Supreme Court of this state. Malt-by v. The Reading and Columbia Railroad Co., 2 P. E. Smith 140, decides that [the tax now in controversy is imposed, by the various statutes cited, on corporation loans; is authorized to be retained by the Act of 1864, and must be deducted from the bonds held by non-residents, as well as those residing in the state.] The latter principle had been previously ruled, in effect, in West Chester School District v. Darlington, 2 Wright 157.
    [“ It is said, however, that these laws impair the obligation of the contract between the debtor and the creditor. We are unable to see in what particular. All citizens are subject to taxation, either in their persons or their property, or both. Therefore, where they lend money the loan may be taxed, and if the state, by its laws, chooses to make the debtor the collector, he may be ordered to withhold the amount from his obligation. If the creditor is a non-resident of the state, his person cannot be taxed, but his money, lent to our citizens or institutions, may be, on account of the protection furnished to his claim or the property on which it is secured, and the tax be collected through the medium of the debtor. The • laws tax the loan as property found here in Pennsylvania, and impose no heavier duty on it than on like property held by our own citizens.] See Maltby v. The Railroad Co., already cited; Hood’s Estate, 9 Hams 116.
    “We come now to consider another branch of this case. The railroad extending partly through four states, can its bonds be taxed at all ? If they can, must they be taxed in full or in the proportion of the length of the road in this state? We have no express Act of Assembly authorizing the tax to be apportioned, yet the unvarying custom of the state officers has measurably established the law against any claim to charge in full, where a large portion of the property is situated beyond our limits. It cannot be pretended that a state can by law impose a tax on that which is entirely beyond its jurisdiction, or on property to which its laws afford no protection. The custom to assess fro rata, to the extent of the improvement in the state, has received the sane-, tion of the court in several cases when applied to the stock of corporations, and we can see no reason why the same doctrine should not prevail in regard to their bonds. The cases, we think, are strongly analogous. In The Easton Bridge Co. v. Northampton County, 9 Barr 416, Judge Coulter says: ‘This state can tax all that is within its bounds and which receives protection from its laws, unless exempted by the Constitution of the United States or of this state.’ That was a tax imposed both on the stock of the company and its money at interest. The bridge waá incorporated under the laws of Pennsylvania and New Jersey, and extended across the Delaware river; one-half was situated in each state, and the tax was equally apportioned. In The Commonwealth v. The Trenton Delaware Bridge Co., this court held that the state of Pennsylvania could tax only one-half of the capital stock of the corporation, it being created by the laws of both states, and one-half of the bridge being in each. Pennsylvania could tax only the proportion of the property within her borders, as represented by the stock. The principal portion of the stock was owned by citizens of New Jersey, and the business of the company was transacted in that state. The decision was acquiesced in, both by the attorney-general and "the corporation. See the ease, reported in full in 9 Am. Law Reg. O. S. 298. Again, in the case of The Commonwealth v. The Cleveland, Painesville and Ashtabula Railroad Co., 5 Casey 370, it was held by the Supreme Court that ‘ the stock of the company was subject to taxation in proportion to the amount used in this state.’ That would be evidenced by the length of the road in Pennsylvania. Fractions of time have also been recognised, though not mentioned in the statute. See 14 Wright 3.99.
    “We are met here by a decision of the Supreme Court of the United States in the case of Northern Central Railway Company v. Jackson, which very clearly conflicts with all of the cases cited. Jackson sued the railroad company on the coupons due him for interest on his bonds. They were drawn in the usual form, payable to bearer, and the holder was a non-resident alien. The company defended as to the amount of tax paid by it to the Commonwealth, but it was not allowed by the court, which held that there could be no apportionment of the tax; that Pennsylvania undertook to collect taxes from claims beyond her jurisdiction; that if she could tax, Maryland could also, which would lead to double taxation; and as many of the railroads passed through several states, each could impose the same burden, which would be most oppressive. If this case depended on the Constitution or any law of the United States, we should certainly consider ourselves bound by that decision. But as we understand the subject, it must be controlled by Pennsylvania law alone, which the learned judge who delivered the opinion does not seem to comprehend. If it even resulted in double taxation, that has never been considered unlawful in this state. On the contrary it is of frequent occurrence. The real and personal property of a corporation may be taxed, although it pays a tax on the stock which purchased it: Lackawanna Iron Company v. Luzerne County, 6 Wright 424, 431. See 3 Wright 251; 6 Casey 332; 9 Barr 361. The power of the legislature is as ample to tax twice as to tax once : 6 Casey 332. And it is done daily, as all experience shows : 9 Barr 361.
    u Equality of taxation is not required by our Constitution : 7 Harris 258. The stock may be fully taxed to the institution and also to the stockholders, Whitesell v. Northampton County, 13 Wright 526, 529, and the stockholder in the corporation of another state is obliged to pay a tax to Pennsylvania on his stock, he being a resident here, although the whole property and stock is subject to taxation in the state of its location: 13 Wright 519.
    [“ In the case reviewed in the Supreme Court of the United States, as in the case now on trial, there was no attempt on the part of Pennsylvania to tax property or rights beyond her jurisdiction, she did not propose- to sever the bonds and say this one shall pay a tax to Maryland and that one to Pennsylvania, but she did equal justice to the creditor by saying: You shall pay your pro rata of the three-mill tax to us, and no more, rating it according to the length of road in each state. The same is done here. The coupons being payable out of the state, we hold to be unimportant.] The officers of the corporation are held personally responsible for the tax. It can be collected from them individually if they neglect to retain and pay it over. Nor is the state bound to pursue the mortgages to recover. She can seize the road situated within her borders by sequestration, until the debt is fully paid.
    [“ The negotiable character of these coupons will not exempt them from taxation, although they pass from hand to hand like bank notes. Every person receiving one is bound to know that it is taxable by law. The statutes are public, of which all the .world must take notice.]
    “ Although part of these bonds are secured by mortgage, and others are not, yet that has no bearing, for if the mortgages are not protected as to all by our laws, yet the road on which the whole debt is secured is protected, and therefore is taxable. The hardship under which companies labor, situated like the defendant, has been strongly pressed on our consideration. Pennsylvania, through her courts, will compel the corporation to pay the tax, whilst the courts of the United States will oblige it to pay its coupons in full; thus throwing the burden of taxation on the debtor instead of the creditor, as intended by law. We do not think that this clashing of jurisdiction can be of long continuance. It is a settled principle of Federal jurisprudence, that when the controversy arises on state laws, the United States court will follow the last decision of the court of final resort in the state. We consider the points raised here already decided by our Supreme Court. The United States court thought otherwise. When they are confessedly settled, there can thereafter be no clashing of jurisdiction. Should the Supreme Court of this state adopt our views, the United States judiciary must conform thereto, unless that court departs from its settled rule on the subject, or declares that the debts due to non-residents are protected from taxation by Federal laws, in which case our courts must succumb.
    “ Should the principle contended for by the defendant prevail, it must debar all taxation on railroad stocks, as well as bonds, where the road extends partly through more than one state, and as nearly one-half of all the railroads in Pennsylvania run a distance into, and often through, other states, Pennsylvania would probably be deprived of a million of dollars per annum in taxes, as now assessed. Yet that apprehension should not for a moment influence the courts in declaring the law. We have made our decision irrespective of the consequences.
    “ The Commonwealth’s counsel objects to a deduction of $278.90, commission allowed by the defendant to the treasurer of the corporation, on the ground that he never paid over the money. No appeal is given by law to the state from the decision of its own officers, and none was taken in this case, so that if an error exists it cannot be corrected. On the other hand, the length of the defendant’s road in Pennsylvania is computed at fifty miles, whereas the evidence shows it is only about forty-seven. When both errors, are corrected there will not be a difference of over eight dollars between them, and that is against the state. You can therefore treat the settlement as correct, and allow interest on the amount found due the Commonwealth after the expiration of three months from the date thereof, at the rate of six per cent.; this account having been adjusted at the department prior to the passage of the Act of May 1st 1868, changing the rate of interest, and the time from which it is to be computed. [Your verdict will be rendered for sixteen thousand one hundred forty-nine dollars seventy-four cents and costs of suit.]”
    The verdict was for the Commonwealth for $16,149.74.
    The company defendants took out a writ of error, and assigned for error the parts of the charge in brackets.

      J. W. Simonton, for plaintiffs in error, and ¶. Carroll Brewster, Attorney-General," for the Commonwealth,
    submitted substantially the same arguments as in The Delaware, Lackawanna and Western Railroad Co. v. Commonwealth (á,ntea p.64).
   The opinion of the court was delivered, July 7th 1870, by

Thompson, C. J.

— We have examined with care the charge of the court below in the case, and think it needs no discussion at our hands. We regard it as free from error, and a satisfactory explanation of the various Acts of Assembly and principles of law necessary to a proper decision of the case.

The case of Maltby v. the Reading Railroad Co. rules most of the positions assumed as errors, and fully sustains the learned judge in his charge.

That case, so far as the taxation of the capital of foreign residents is concerned, was substantially sustained by and is in accordance with The Borough of Carlisle v. Marshall, 12 Casey 397, West Chester v. Darlington, 2 Wright 157, and Lewis v. The County of Chester, 10 P. F. Smith 325.

But as we are entirely satisfied with the opinion of the learned judge on all the questions raised below in the case and presented for his consideration, we will add nothing, but affirm the judgment for the reasons so well given therein. The question raised in the court upon the Act of 30th April 1864 seems not to have been suggested in the court below. It was not noticed in the charge, nor was the attention of the court called to it; all reference to it was omitted.

We have often held that an omission to charge on any particular aspect of the law of a case where it does not necessarily present itself, is not error in the absence of a request to notice it: Mullen v. Wilson, 8 Wright 413; Garrett v. Gonter, Id. 143; Walter v. Humbert, 5 P. F. Smith 407. That is the case here. No point was put to the court on the subject, nor did any plea in the case raise it.

The omission was therefore not the subject of error; nor indeed is there any assignment of error which covers 'it. One rule of court is, “ that the counsel for plaintiff in error shall, on or before the third day of the term to which the writ is returnable, specify in writing the particular errors which he assigns.” That rule has not been followed even if the omission referred to had been the subject of error. It may have been an after-thought which the allowance of an exception to the whole charge as if every word of it were error, so readily allows. An exception to a charge has a twofold purpose to subserve. One to bring directly to the mind of the judge the specific error he is supposed to have committed, so that he may have the opportunity to correct it, if it exist, on the spot before the jury shall have acted. The other is that if no correction be made of the error thus pointed out it may hereafter be brought before the court of review.

It is apparent that there is no chance for the correction by the court of any specific error, where every portion of the charge is excepted to as error. A general exception discloses no specific errors. The practice is a bad one, and the Court of Common Pleas ought to repress it. I do not know that it prevails elsewhere, if it does, it is to a very limited extent in this state.

Judgment affirmed.


source: Caselaw Access Project

author: Agnew, J.

license: Public Domain

text:
    The Commonwealth versus Monongahela Navigation Co.
    1. The Monongahela Navigation Company is authorized to make a slack-water navigation and prohibited from engaging in transportation; the company is liable under the 7th and 8th sections of the Act of May 1st 1868 for tax on “ gross receipts.”
    2. As the act makes the company liable for tax on transportation, it is immaterial that they are not carriers.
    May 21st 1870.
    Before Thompson, C. J., Agnew and Sharswood, JJ.
    Error to the Court of Common Pleas of Dauphin county: No. 78, to May Term 1870.
    On the 21st of January 1869, the accounting officers of the Commonwealth settled an account against the Monongahela Navigation Company as follows, viz.:—
    “ Gross receipts, ...... $30,005.66
    Tax three-fourths of one per cent., . . . 225.04
    Due Commonwealth, ..... $225.04”
    * On the 15th of February 1869, the company appealed and filed the following specifications:—
    “ I. There is no law authorizing the imposition and collection of the taxes claimed in said settlement.
    “II. The Monongahela Navigation Company is not a transportation company.”
    The company was incorporated March 31st 1836 (Pamph. L. 282), amongst other provisions of the act of incorporation were the following:—
    Section 8, to “ make a complete slack-water communication between the city of Pittsburg and the Virginia state line,” .i
    Section 10, “ that the president and managers shall be entitle(l to take and receive the same rate of toll per ton, or otherwise, at their discretion, as the Schuylkill Navigation Company are entitled to receive under their act of incorporation.”
    Section 20, “ the said company shall not engage, directly or indirectly, in any banking, moneyed, commercial or manufacturing concern, or in the transportation or storage of any merchandise, lumber, coal, grain, flour or other articles, nor shall they hold, erect or own any lands, buildings, wharves or docks, other than such as are necessary and convenient for their business as a navigation company.”
    The tax was charged under the Act of May 1st 1868, Pamph. L. 108, Purd. 1536, pi. 24, 25; the sections bearing on the question are as follows:—

      “ Section 7. The president, treasurer, cashier or other financial officer of ever y railroad company, steamboat company, canal company and slack-water navigation company, and all other companies now or hereafter doing business in this state, and upon whose works freight may be transported, whether by such company or by individuals, and whether such company shall receive compensation for transportation, for transportation and toll, or shall receive tolls only, except turnpike, plank-road and bridge companies, * * shall pay a tax upon tonnage.
    “ Section 8. In addition to the taxes provided for as aforesaid, every railroad, canal and transportation company liable to tax upon tonnage, under the preceding section of this act, shall pay to the Commonwealth a tax of three-fourths of one per centum upoiKthe gross receipts of said company; the said tax shall be paid semi-annually, upon the first days of July and January; and for the purpose of ascertaining the amount of the same, it shall be the duty of the treasurer or other proper officer of said company to transmit to the auditor-general, at the dates aforesaid, a statement, under oath or affirmation, of the amount of the gross receipts of said company derived from all sources during the preceding six months,” &c.
    The court (Pearson, P. J.) charged that the company did “ not come within..the words of the statute imposing a tax on gross receipts;” that it was “not subject to a tax on its gross receipts, and the verdict must be for the defendants.”
    The verdict was in favor of the defendants.
    The Commonwealth took out a writ of error, and assigned for error the above instructions.

      J. M. McClure and F. C. Brewster, Attorney-General, for the Commonwealth, plaintiff in error.
    — The internal sense, not the words, make the law: Eyston v. Studd, 2 Plow. R. 465; Perry v. Skinner, 2 M. & W. 471; Dwarris on Statutes 588. They referred also to the Acts of Assembly.

      L. W. Hall and F. Jordan, for defendants in error,
    cited Dwarris on Stat. 576, 578, 583, 584; Sedgwick on Stat. and Com. Law 227; Parkman v. State, 14 Md. 184; King v. Bolton, 8 B. & C. 74; Moser v. Newman, 6 Bing. 556. The company being authorized only to receive tolls is not a transportation company : Boyle v. Philada. and Reading Railroad, 4 P. E. Smith 310; Camden and A. Railroad v. Briggs, 2 Zabriskie 630; Penna. Railroad v. Sly, 15 P. E. Smith 205.
   The opinion of the court was delivered, July 7th 1870, by

Agnew, J.

— That the Monongahela Navigation Company is not a transportation company, is settled by its charter, and by the principles of several decisions; but whether it falls within the class called “transportation companies,” as the “nomen generalissimum,” used in the Act of May 1st 1868, for the purpose of taxation, is a different matter, and raises a question of interpretation merely. The first rule of interpreting statutes requires us to seek the legislative intent in the language of the law itself; and in so doing there seems to be no doubt that the 8th section of the Act of 1868 embraces the company before us. The 7th section makes this company liable for a tax on the tonnage carried over its works, notwithstanding it is not a transportation company, and all the transportation over its works is done by others. This is not denied, and is the necessary effect of making railroad, steamboat, canal, slackwater navigation, and all other companies upon whose works freight may be transported liable for a tax on tonnage, 'whether that company receives compensation for transportation, or for tolls only, or for both. The intent of the legislature being clear to make this company liable for a tax on transportation, the fact that it is not itself a carrier is immaterial. It leaves the company to deal with the actual transporters, and make their rates accordingly. In immediate and juxtaposition .is the 8th section whose purpose it is to tax gross receipts only, a sub- , jeet disconnected from the kind of business performed by the corporation, and whether its receipts be derived from tolls, or freight, or both. The section begins with the declaration, “ That in addition to the taxes provided for as aforesaid, every railroad, canal and transportation company liable to a tax on tonnage under the preceding section of this act, shall pay to the Commonwealth a tax, &c.,” on gross receipts. => Now the preceding section (the 7th) had not used the phrase “ transportation company,” hut had simply designated some companies by name, and designated others as companies upon whose works freight might be transported, as the means of bringing all under a liability for the tonnage carried over their works, whether carriers themselves or not. When the phrase “transportation companies” was used in the 8th section, it is evident it was a nomen colleetivum to embrace all the companies described in the 7th section beside railroad and canal companies, made “ liable to a tax on tonnage under the preceding section,” and it was therefore intended to embrace all the steamboat, slackwater navigation' and other companies “ upon whose works freight may be transported.” It could not be intended to refer to turnpike, plank-road and bridge companies over whose works transportation takes place, for they are expressly excepted in the 7th section and not made liable to the tax on tonnage. Besides these, there are no other known companies owning or using works for the transportation of freight, except railroad and canal companies, which are expressly named in the 8th section; unless therefore we apply the general term “ transportation companies ” to steamboat and slackwater navigation companies, there seems to be no other known company made liable to the tax on tonnage in the 7th section, to which the phrase can apply.

And, in addition to this which confirms the view, there is no reason why a steamboat or a slackwater navigation company should be exempt from a tax on gross receipts only. Had the question related to tonnage only, and the douh.ts were, whether a slackwater navigation company not transporting tonnage, was liable for the tonnage carried over its works, it would have been one of greater difficulty. But the question being one relating to gross receipts only; and there being no doubt of the liability of the Slackwater Navigation Company for a tax on the tonnage transported over its works, it becomes evident that the legislature in using a fresh and comprehensive phrase to comprise all the companies described in the 7th section, as liable to a tax on tonnage, intended that none should be excepted from the tax on gross receipts.

We are of opinion, therefore, that the legislature meant to embrace the slackwater navigation companies described in the 7th section within the terms of the description contained in the 8th section of the Act of May 1st 1868.

Judgment reversed, and a venire facias de novo awarded.


author: Sharswood, J.

text:
    The Erie Railway Co. versus The Commonwealth.
    1. The Brie Railway Company (of New York) is subject to general taxation, notwithstanding its annual tax for the right of way through the state and the tax on its stock.
    2. A surrender of the general taxing power by any legislative act cannot be implied. s
    3. The payment for a charter does not imply a surrender of power to tax the corporation by a general tax law.
    4. The language of a judicial opinion arguendo, is to be understood with reference to the particular question for adjudication.
    5. Bank of Easton v. Commonwealth, 10 Barr 442, New York and Erie Railroad v. Sabin, 2 Casey 242, Gordon v. Appeal Tax Court, 3 How. 133, remarked on.
    May 21st 1870.
    Before Thompson, O. J., Agnew and Sharswood, JJ.
    Error to the Court of Common Pleas of Dauphin county: No. 89, to May Term 1870.
    On the 11th of July 1866 the accounting officers of the Com- ,, monwealth settled an account against the Erie Railway Company for tax on tonnage under the Act of August 25th 1864, finding that there was due the Commonwealth ¡§6334.
    The company appealed. On the trial, December 16th 1869, Pearson, P. J., instructed the jury that so far as the taxation was imposed on freight carried from Pennsylvania into another state or from another state into Pennsylvania, it was unconstitutional; in pursuance of this instruction a verdict and judgment were rendered for the defendants. This judgment was reversed by the Supreme Court: 12 P. F. Smith 286.
    The case was again tried, January 25th 1870, and a verdict and judgment were rendered for the Commonwealth for $8834.95; the defendants then sued out this writ of error.
    The Erie Railway Company was incorporated by the state of New York. By the Act of the 26th of March 1846, Pamph. L. 179, the legislature of Pennsylvania allowed them to construct their road through a portion of the county of Pike, and provided that they should pay for the privilege the sum of $10,000 per annum; the act further provided that the stock of the company to an amount equal to the cost of construction of that part of the road in Pennsylvania should be subject to taxation as similar property in the state; both the annual tax and the stock tax have been paid.
    The Act of August 25th 1864, § 1, Pamph. L. 988, Purd. 1379, pi. 11, imposed on railroad companies, &c., on freight carried on the works of such company a tax as specified in the act; it also provided that every corporation of another state enjoying privileges, &c., in this state should pay tax for freight carried over that portion of their line in this state.
    The questions considered and decided in this case were raised by the following points submitted by the defendants on the trial in the court below:—

      “ 11. The legislature, by the several acts heretofore referred to, having prescribed a rate of taxation of the New York and Erie Railroad Company, and there being a necessary implication of the relinquishment of the right of further taxation, the tax in question does impair the obligation of the contract and is void.

      “ 12. The legislature, by the several acts heretofore referred to, having prescribed a rate of taxation on the New York and Erie Railroad Company, and not having expressly reserved the power to themselves, the tax in question does impair the obligation of the contract and is void.”.
    Judge Pearson answered the points as follows:—

      “ 11. To deprive the state of the authority to tax this company, there must be an express relinquishment of the power, forming a contract between the state and the corporation. It can rarely if ever be implied, that such a power is abandoned. We can find nothing in the Act of March 26th 1846, from which it can be inferred. The 6th section of the statute requires a statement to be made annually to the legislature of its affairs, the business done on the road, number of passengers and amount and weight of freight carried. Why this report, except for the purpose of future taxation ? The right to tax must he relinquished for what the parties at the time deem a sufficient consideration, else the state will not be barred.

      “ 12. The power to tax need not be reserved; it exists without any reservation. The corporation must show that it has been released, or that there was an agreement that it should not be exercised. It is an incident of state sovereignty.”
    These answers were assigned for error.

      J. W. Simonton, for plaintiffs in error. —
    This company having been taxed specially and by a peculiar mode, it is not to be intended that they are subject to the general tax laws: N. Y. & Erie Railroad v. Sabin, 2 Casey 242; Iron City Bank v. Pittsburg, 1 Wright 340. This is a tax on the franchises : Commonwealth v. Philadelphia and Reading Railroad, 12 P. E. Smith 286; Gordon v. Appeal Tax Court, 3 Howard (S. C.) 133.

      J. M. McClure and F. C. Brewster, Attorney-General, for Commonwealth, defendant in error.
    — The relinquishment of the taxing power is never implied: Providence Bank v. Billings, 4 Peters 514; Ohio Life & T. Co. v. Deboth, 16 Howard 417; Gilman v. Sheboygan, 2 Black 510; Bank of Pennsylvania v. Commonwealth, 7 Harris 144; Academy of Fine Arts, 10 Id. 497 ; Bank of Easton v. Commonwealth, 10 Barr 442; Baltimore v. Railroad, 6 Gill 288.
   The opinion of the court was delivered, July 7th 1870, by

Sharswood, J.

— The constitutionality of the tonnage-tax having been heretofore settled by this court in The Commonwealth v. The Philadelphia and Reading Railroad Company and other cases, July 1869, the only question which we are called upon to consider upon this record .is, whether the Erie Railway Company, the plaintiffs in error, can claim, any special exemption from this tax.

By the Act of Assembly of March 26th 1846, Pamph. L. 179, the said company, then the New York and Erie Railroad Company, were authorized “ to extend the line of their said railroad from a point near the village of Port Jervis, in Orange county, state of New York, across the Delaware river into the county of Pike, and thence up the valley and near the shore of said river, within the said county, a distance not exceeding thirty miles, to a point not exceeding ten miles above the mouth of the Lackawaxen river, and there to recross the Delaware river to the easterly side thereof, in the county of Sullivan, state of New York.” By the 5th section it was provided, “ That after said railroad shall have been completed and in operation to Dunkirk, or shall have connected at the western end with any other improvement extending to Lake Erie, said company shall cause to be paid into the treasury of this state annually, in the month of January, $10,000; and any neglect or refusal by said company to pay as aforesaid,, shall work a forfeiture of the right and privileges granted by this act,” and by the 6th section, “ That the stock of said company, to an amount equal to the cost of the construction of that part of their road situate in Pennsylvania, shall be subject to taxation by this Commonwealth in the same manner as other similar property is or may be subject.” These are all the provisions which are relied on to show a special exemption from taxation. It is not pretended that there is any express release of legislative power; but it is contended that, as the company have agreed to pay, and .the state to accept these sums, it is necessarily implied that no more shall ever be exacted. So it might well be argued if any special taxation was imposed upon this company ; for that would be to require an additional price beyond the terms of the contract. But the question, whether they shall be subject to a general tax laid upon all railroad and transportation companies in the Commonwealth is an entirely different one. There is no principle better established, and it requires no long array of cases to prove it, than that no surrender of the general power of taxation by any legislative act can be implied. It must be express : The Providence Bank v. Billings, 4 Peters 514; Bank v. The Commonwealth, 10 Barr 442. In the case last cited, it was decided that a bank chartered under the Act of 1824, which prescribed the payment of a certain tax on dividends declared, was subject to a subsequent general law, which increased the rate of taxation. “ To deduce from premises so insufficient,” said Mr. Justice Bell, a consequence of such magnitude would indeed be a gross violation of the wholesome principle that an abandonment of the power of taxation is only to be established by clearly showing this to have been the deliberate purpose of the state.” Though a man pays to the Commonwealth a price for a grant of land, which certainly implies that he shall not be specially called on to pay more, but it does not imply that his land shall not be subject to general taxation, so though a corporation has paid a sum of money for the grant of its charter, that implies no surrender of the power to tax it by a general law applicable to all corporations, though certainly it can be compelled to pay no more as the price of its privileges. Every one buys land from the .Commonwealth subject in his own apprehension to the great law of necessity, that he must contribute from it and all his property something to maintain the government: Gordon v. Appeal Tax Court, 8 Howard (U. S.) Rep. 146. If this is so, it is not easy to perceive why the purchase of a franchise by a corporation is not taken subject to the like imperious law. To call upon an individual or a corporation especially to pay an additional sum, in consequence of their being grantees of the land or the franchise, would not be taxation; it would be a taking of their property for public use without compensation. Either in the case of the granted land or franchise it would be, besides, a violation of contract. In either view, the individual or the corporation would be constitutionally protected from it.

The case of The New York and Erie Railroad Company v. Sabin, 2 Casey 242, is not as is supposed inconsistent with this view. It was there held that, inasmuch as the state, by the Act of 1846, had imposed a special tax upon the stock of the company to the extent of the costs of construction, within this Commonwealth, that necessarily implied an exemption of the work itself from taxes before imposed for state and county purposes; to hold otherwise yould be to subject the same property to double taxation, which it cannot be supposed that the legislature intended. If the company,” said Mr. Justice Woodward, “ should multiply buildings and accumulate lands no w'ay appurtenant or essential to their railroad, this property would be subject to taxation like any other lands or houses; but for these erections, which are fairly included in the cost of construction of their road, they are liable to no other taxes than those specially imposed.” This was really only applying to the works of this foreign corporation, the same just rule as had been settled in the construction of the general tax laws in reference to similar works of domestic corporations: Schuylkill Permanent Bridge v. Frailey, 18 S. & R. 422; Lehigh Coal and Navigation Company v. Northampton County, 8 W. & S. 334; Railroad v. Berks County, 6 Barr 70; Lackawanna Iron and Coal Company v. County of Luzerne, 6 Wright 424. “ It sometimes happens,” said Mr. Justice Woodward in New York and Erie Railroad Company v. Sabin, “ that a bonus is demanded and received from a bank or other corporation at the granting of its charter, and afterwards all that class of corporations are expressly subjected to another rate of taxation. No exemption of a particular institution is to be implied from the payment of the bonus ; for that would be to set up judicial implications against an express exercise of the taxing power.” Nor does Gordon v. The Appeal Tax Court, 3 Howard (U. S.) Rep. 133, conflict with these principles. It was there held that the charter of a bank is a franchise which is not taxable as such, if a pi’ice has been paid for it which the legislature accepted; but that the corporate property is separable from the franchise and may be taxed unless there is a special agreement to the contrary. The language of a judicial opinion arguendo is always to be understood in reference to the particular question presented for adjudication, which, in that case, was whether a clause in a charter, pledging the faith of the state not to impose any further tax or burden during its continuance, than was therein imposed, should extend to exempt the stockholders from a tax on their stock. It evidently has no applicability to the question presented for adjudication in this case.

Judgment affirmed.


author: Thompson, C. J.

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    Edwards’s Appeal.
    1. An auditor cannot declare a judgment on an amicable scire facias void and no lien, for want of a stamp on the agreement or for any other irregularity.
    2. An irregular judgment may be reversed on error, but it is good until then.
    3. - An auditor can disregard a judgment only where it is void.
    4. A scire facias on a judgment is not original process and does not require a stamp: It is but process to continue the lien.
    5. A scire facias on a mortgage or a mechanic’s lien is original process.
    6. Whether Congress can subject judicial proceedings of the states to stamp duties, quaere?

    7. A judgment was entered against Edwards and Swiler, it was after-wards revived by amicable scire facias against Edwards alone. Reid, that the lien of the original judgment was continued on Edwards’s land.
    May 21st 1870.
    Before Thompson, O. J., Agnew and Sharswood, JJ.
    Appeal from the decree of the Court of Common Pleas of Dauphin county: No. 32, to May Term 1870: In the distribution of the proceeds of the sheriff’s sale of the real estate of John Edwards.
    John Edwards being the owner of the real estate which produced the fund in controversy, judgment was entered on the 8th of June 1858, in favor of Emeline Lutz, against him and John Swiler, for $300.
    On the 9th of April 1859, John Edwards made a mortgage to Harriet Shoemaker for $1727, which was recorded on the same day. This mortgage was afterwards assigned to Jacob Mumma.
    On the 6th of June 1863, an amicable scire facias to revive the judgment of Emeline Lutz was entered, between her as plaintiff and John Edwards as defendant; Swiler, the other defendant in the original judgment, was not included in the scire facias: the agreement to revive had no revenue stamp. Subsequently, a number of judgments - to a large amount were entered against Edwards. His real estate was sold by the sheriff to F. K. Boas for $2635, which being brought into court, was referred to Robert Snodgrass, Esq., for distribution.
    He reported that the judgment in the amicable scire facias, by reason of its being against Edwards alone, did not continue the original lien; that consequently the mortgage was the first lien and the purchaser took the land subject to the mortgage. He therefore distributed the fund amongst the judgment-creditors.
    The purchaser and the mortgagee excepted to the report, which was set aside by the court (Pearson, P. J.) and recommitted to the auditor, with instructions to distribute the fund to all the liens including the mortgage.
    The auditor made a report in accordance with the instructions ■of the court excluding the later judgments. It was confirmed by the court, and distribution decreed accordingly. Edwards and the creditors excluded appealed to the Supreme Court and assigned for error the decree of the court.

      H. M. Graydon (with whom were R. A. Lamberton and Herman Alricks), for appellants.
    — The agreement should have had a revenue stamp. The Acts of Congress requiring a stamp on “writs or other original process,” &c., apply to an agreement for an amicable scire facias: Jones’ Appeal, 12 P. E. Smith 324. A scire facias must pursue the original judgment: Panton v. Hall, 2 Salk. 598; Arrison v. Commonwealth, 1 Watts 374; Dougherty’s Estate, 9 W. & S. 189 ; Grrenell v. Sharp, 4 Whart. 344; Richter v. Cummings, 10 P. E. Smith 441.

      J. W. Awl, for appellee, was stopped by the court.
   The opinion of the court was delivered, May 26th 1870, by

Thompson, C. J.

— The auditor had not power to go behind the judgment in the amicable scire facias, in the case of Emeline Lutz v. John Edwards, and declare it void and no lien for want of a stamp or on any other ground of irregularity. To have done so would have been to assume the power to review the action of the court; because, although entered by the prothonotary on the agreement of the parties, it stands nevertheless as to conclusiveness as the judgment of the court. A voidable judgment might be. reversed on error, but-is good until so reversed, and an auditor cannot inquire into it on the ground of irregularity. It is only when void that he may disregard it, because in that case it is incapable of giving or continuing a lien.

This might be sufficient as to the exception to the judgment for want of a stamp on the agreement to revive the judgment, but we also think that the views of the learned judge, and the authorities cited by him, very clearly show that a scire facias to revive a judgment is not within the stamp law. Stamping judicial process is, as the act declares, imposed on “ writs, or other original process by which any suit is commenced.” In our practice the authorities referred to by the learned judge, and others which might be cited, establish beyond a doubt that a scire facias to revive a judgment is not a writ for the commencement of an action. It is but a process to continue the lien 'of the judgment in the original action. It is therefore not on the footing with a scire facias on a mortgage or mechanic’s lien, and the like. They undoubtedly have been regarded in the light of original writs, and consequently may fall within the requisition of the Act of Congress, if indeed Congress may subject the judicial proceedings of the states to stamp duties, a question not presented in this case, nor about which we express any opinion one way or the other. On this ground therefore, as well as on the preceding, the auditor would have transcended his powers and been wrong if he had disregarded the judgment. The agreement was a substitute and the equivalent of a scire facias, Act of March 20th 1827, and if the scire facias, had it issued, did not require any stamp, neither did the agreement for the amicable revival of the judgment.

The judgment was confessed to Mrs. Lutz by Edwards alone. He was the owner of the property bound by the original judgment and on which the mortgage in question rested, and from which the money in court was made. The judgment so confessed was good against him, and sufficient to continue the lien, and nobody else could complain, and he does not. This is too clear for argument ; consequently the learned judge below was entirely right in overruling the auditor, who held a contrary opinion on this point. Seeing no error in the record, the decree of the Common Pleas is affirmed and the appeal dismissed at the costs of the appellants.


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    Freeland versus The Pennsylvania Railroad Co.
    1. The Pennsylvania Railroad Co. after the purchase of the public works raised a dam on the Susquehanna; in an extraordinary flood the land of Freeland' was overflowed, the injury being increased by the raising of the dam. Held, that under the Act of May 16th 1857 (Sale of Public Works), the company had the right to raise the dam and were not liable to Freeland.
    2. The intention of the act was that the purchasers should hold and use the works for the objects for which they were created and bring them to the highest condition of utility.
    3. The condition in which the Commonwealth had maintained the works was not to be the standard for the future.
    4. The act conferred on the company the right to exercise the state’s eminent domain and exempted them from liability for consequential damages.
    5. The company is not bound to erect guard-walls to confine the stream to fixed limits and prevent overflow in high floods.
    6. Evidence of the height of a flood after suit brought for damages by a previous one, was irrelevant unless it had been shown to have some connection with that one.
    7. When evidence apparently irrelevant is offered, it must be stated how it is supposed to be relevant and this must appear in the bill of exceptions.
    May 21st 1870.
    Before Thompson, C. J., Agnew and Sharswood, JJ.

      Error to the Court of Common Pleas of Dauphin county: No. 84, to May Term 1870.
    This was an action on the case, commenced January 18th 1867, by James Ereeland against The Pennsylvania Railroad Company, for raising the Clark’s Perry dam of the Pennsylvania Canal, and flooding and injuring the land, improvements, &e., of the plaintiff. The dam was below and near Duncan’s Island. By the Act of May 16th 1857 (Pamph. L. 519) the legislature authorized the sale of the public works, and by the 3d section authorized the purchaser “ to alter, enlarge and deepen the canals, to make such additional locks and dams, and to make, in whole or in part, a slack-water navigation as may be deemed expedient.”
    By section 5th, the purchaser of the public works was to be bound “ ever thereafter to keep up in good repair and operating condition the line of canal from Hollidaysburg to Philadelphia (in this was included the Clark’s Perry dam), * * * and the said canal shall be and remain a public highway,” &c. Section 9th authorized the purchasers and their officers, &c., “ to enter upon any lands adjoining or in the neighborhood of the works, and dig, take and carry away therefrom any materials necessary for enlarging,' making, altering, deepening or improving said works, * * * or for constructing any * * * dam or other mechanical structure which may be required for said works, or * * * for improving any works already made.” In pursuance of this Act of Assembly, the public works, on the 21st of July 1857, were sold to the Pennsylvania Railroad Company, the defendants, who took possession of them, and in 1858 repaired the Clark’s Perry dam as well as other parts of the works.
    The plaintiff owned a tract of land on the lower part of Duncan’s Island. In the spring of 1865 there was an extraordinary flood in the Susquehanna river which swept over the farm of the plaintiff, carried away some of his buildings and did other injury to his property. The plaintiff alleged that the injury resulted from the company raising the. dam higher than it had been before the purchase from the Commonwealth, and gave evidence for the purpose of showing that the defendants had raised the dam after their purchase. He gave evidence also of the flood of 1865, and the injury he sustained by it; and evidence tending to show that the overflowing his lands and the injury he sustained resulted from raising the dam. He offered to prove the height of a flood in 1868. The evidence was rejected as relating to a time since the commencement of the suit, and a bill of exceptions sealed for the plaintiff.
    The evidence by the cross-examination of plaintiff’s witnesses and by defendants’ witnesses was, that the flood of 1865 was the highest which had been known by them.
    The defendants gave evidence also of the character of the repairs to the dam, and that what was done to the dam was necessary to keep the canal in operating condition.
    The plaintiff’s points were:—
    1. The defendants acquired no right by virtue of their purchase of said works from the Commonwealth to increase the height of said dam above the level fixed and maintained by the Commonwealth.
    2. Under the act authorizing the sale of said works to said defendants, and the deed conveying the same to them, defendants had not the right to raise the level of said dam higher than it had been built by the state, and are liable to plaintiff for the damage sustained by him from such increased height.
    3. The clause contained in said act providing that the purchaser should “he hound to keep in good repair and operating condition” said works, imposed an obligation on said defendants, but conferred no right to increase the height of said dam above the level fixed and maintained by the state.
    4. Said clause must be construed with reference to the level that had been fixed and maintained by the state, and the true intent and meaning of the act is, that the said works should be kept open and in repair for the use and enjoyment of all parties desiring to use and enjoy them, and contained no authority to increase the height of said dam above the level fixed and maintained by the state.
    5. The question of skill, care and proper management is a question for the jury, and depends upon the facts of the particular case, and greater danger or risk demands greater care; care according to the circumstances is the rule.
    6. If the defendants, supposing them to have been authorized to increase the height of the dam, could, by the use of proper skill, care and management, have so constructed the work |is to provide against the occurrence of injury, they are liable m this action for the damage resulting from the want of such care and skill.
    7. The question of the nature of the flood and its extent must be left to the jury, who must judge whether defendants took proper precautions to guard against its effects.
    8. The concurrence of want of care, skill and proper management, with the act of Providence, in causing an injury to the plaintiff, on the part of defendants, would render them liable in this action.
    9. The defendants have not shown that the building of the dam in question was ever authorized by the legislature, and in the absence of such authority shown by defendants, they are liable for all damage occasioned thereby while in their possession.
    The court (Pearson, P. J.) negatived the 1st, 2d and 4th points of the plaintiff, and answered the others as follows:—

      “ 3. We are of opinion that the purchaser of the public works was bound to keep them in good repair and operating condition, and if necessary to do so, the defendants had the right to increase the dam above the level fixed and maintained by the state, which had rarely kept the public works in what ought to be considered good operating condition.
    “ 5. This point is correct in law, but we see no evidence of want of care in the defendants in the present case.
    “6. This point is correct. We see no evidence in the ease indicating a want of proper care and skill, as the defendants were not bound to prepare for, or guard against an unprecedented flood.
    “ 7. The question of the nature of the flood and its extent is for the jury, but all of the witnesses on both sides, including the plaintiff himself, declare that it was unprecedented, being some three feet higher than was before known in the Susquehanna river. A party is not required by law to guard against such unlooked-for events.
    “ 8. The law is as stated. But we see no evidence in the case indicating that the want of proper skill and management on the part of the defendants concurred with the act of Providence in causing the injury to plaintiff’s property. We consider that the evidence shows it was solely the act of Providence.
    “9. We consider it sufficiently shown that the state had the right to build the dam in question; did build and keep it up for twenty-seven years, and then sold its right with the works to the defendants. The defendants are not liable for any injury done by the dam whilst in their possession, unless caused by their negligence or improper management, of which there is no proof.”
    Judge Pearson further instructed the jury:—
    “We instruct you, that by a fair and reasonable interpretation of the Act of Assembly, the dam could lawfully be raised, if necessary to make good navigation.
    “ But there is' clearly an implied power in the statute. The company is, in terms, authorized to build new dams ad libitum. Again, it is empowered to enter on the land.of any one near the works and take materials for constructing dams inter alia. It would be a strained and very narrow construction to say that the assignee of the state works could build as many new dams as might .by it be considered necessary, but. could not increase the height of one already erected. We therefore instruct you that the railroad company had the right to increase the height of this dam, if, in the opinion of a skilful engineer, it was necessary in order to improve and keep up good navigation.
    [“But it is said that the defendant was bound to erect guard-walls to protect the island from overflowing. This had never been done by the state in the twenty-seven years that it had kept up this dam, and their want had never been felt. In the year 1846, when an unprecedented flood occurred, some slight injury was done to the island by the water breaking over, but from that time until March 1865, nothing had occurred to prove their necessity or utility. Under these circumstances we instruct you that the defendant was not bound to build guard-walls, or to foresee that the river wTas going to rise three feet higher than the flood of 1846, which had itself been unprecedented.] * * *
    [ “ It is very questionable whether this dam added in the least to the elevation of the water at this point. Many of the witnesses testify that the dam was entirely drowned out, that there was no break of the water visible. All say that if perceptible, it was very slight. Where the break of the dam cannot be perceived, it adds little or nothing to the elevation of the surface, as is well known to every one having any knowledge of hydraulics. The river rose above all of that part of the island in the vicinity of the plaintiff’s and defendants’ property, and some of the plaintiff’s witnesses express the opinion that but for these works of the defendants the whole island would have been swept off.]
    [“You will thus perceive that almost every material position of which the plaintiff predicates his right to recover, has been decided against him by the court. Taking it for granted that the dam was raised higher by the defendant than when it was purchased from ‘the state, yet that is not the proper test of the right of elevation. The state was about to improve it, but, as it had stood for several years, boats drawing over three feet of water could not pass. That was entirely insufficient for the exigencies of trade. The boats should be able to float loaded down to four feet, else they could not compete with other carriers, and would be neither useful to the public nor to the company. The original height of the dam was not the proper test of what might be found necessary for good and useful navigation. Even at the present elevation it was found necessary, in times of low water, to use splash-boards nearly a foot wide, to float craft drawing four feet of water, which all of the witnesses say is necessary for successful navigation.]
    “ The defendant has assumed that there can be no recovery in this case because the injury is consequential, and many cases have been cited to that effect. We are of the opinion that had this dam been built, or its height increased, without authority of law, or had it been badly and inartificially constructed, whereby the river at an ordinary freshet overflowed and injured the property of the plaintiff, an action on the case might be sustained; we have several examples of such proceedings in our own reports. For flowing the water back on the owners above, by means of a dam lawfully built, the remedy must be, under the statute, to assess the damages ; or, if there is no provision in the law, the party is without redress. Here the complaint is of an unlawful and inartificial construction.” * * *
    The verdict was for the defendants.
    The plaintiff took out a writ of error, and assigned for error:—
    I. Rejecting his offer of evidence.
    2-10. The answers to his points.
    II, 12, 15. The parts of the charge in brackets.
    13. Leaving no facts to be passed on by the jury.

      S. J. M. McCarrel and J. W. Simonton (with whom was D. Fleming), for plaintiff in error.
    — The evidence rejected would have tended to show that the flood of 1865 was not extraordinary : Railway Co. v. Grilleland, 6 P. E. Smith 453. There was evidence of which to predicate plaintiff’s 2d point, and it should have been submitted to the jury: Trovillo v. Tilford, 6 Watts 468; Eish v. Brown, 5 Id. 441. The measure of care to be exercised by the defendants was for the jury: MeCully v. Clarke, 4 Wright 406 ; Penna. Railroad Co. v. Ogier, 11 Casey 71. The charge, as a whole, was calculated to mislead; this is a ground for reversal: Reeves v. Railroad, 6 Casey 454. Where there is any evidence of a fact, it should go to the jury: Stewart v. Wilson, 6 Wright 450; Stafford v. Henry, 1 P. E. Smith 518; Beatty v. Ins. Co., 2 Id. 456; Wilt v. Snyder, 5 Harris 77; Elder v. Reel, 12 P. P. Smith 308.

      L. W. Hall (with whom was F. Jordan), for defendants in error.
    — Floods such as that of 1865 are visitations of Providence, the results of which must be borne by those on whom they come: McCoy v. Danley, 8 Harris 85; Lehigh Bridge Case, 4 Rawle 9; Bell v. McOlintock, 9 Watts 119; Pitts., Fort Wayne and Chicago Railroad Co. v. Gfilliland, 6 P. F. Smith 445. The damages were consequential: Del. Div. Canal Co. v. McKeen, 2 P. F. Smith 117; Monon. Nav. Co. v. Coons, 6 W. & S. 101; Susq. Canal Co. v. Wright, 9 Id. 9 ; Henry v. Pitts, and Allegheny Bridge Co., 8 Id. 85; Watson v. Pitts, and Con. Railroad Co., 1 Wright 469. The repairs to the dam having been done under the requirements of the Act of May 1857, there can be no recovery for such damages.
   The opinion of the court was delivered, July 7th 1870, by

Agnew, J.

— Some of these assignments of error rest upon questions not in the cause, and may be dismissed by stating what the controversy was. The injury to the plaintiff’s property, as declared upon and shown by the evidence, was caused by the overflow of Duncan’s Island, in the Susquehanna, in the extraordinary flood of 1865. It was alleged that the overflow was increased by raising the Clark’s Ferry Dam, in the year 1858, by the Pennsylvania Railroad Company, after the purchase of the main line of canals and railroads under the Act of 16th May 1857, Pamph. L. 519. The real injury arises therefore from the reflux of the water caused by the increased height of the dam, and not from the manner of constructing it, or any want of skill or care in rebuilding.' All questions as to its structure and skill and care in rebuilding, are therefore out of the case, and it falls back upon the right of the company to elevate the dam. This disposes of the 6th, 7th, 8th, 9th and 11th assignments of error. And even the right to raise the dam is scarcely a question, for the weight of evidence made it pretty clear that the dam was not raised higher than the state had established it. 'But, granting the fact of increased height, the company had ample authority, whether the conclusions be drawn from the main object of the state in the sale of the works or the special terms of the lawT. The great purpose of the Commonwealth — to advance the agriculture, commerce and manufactures of the state, and to unite its natural divisions in a common interest by means of navigable streams and canals — is forcibly expressed in the preamble to the Acts of 11th April 1825, Pamph. L. 238, and 25th February 1826, Pamph. L. 55. The Act of 1857, passed in the same spirit, was intended to preserve to the people of the state these valuable interests. It therefore bound the purchasers or assigns “to keep up in good repair and operating condition the line of said railroad and canal, extending from Harrisburg to Philadelphia,” &c., and declared it to be “ the true intent and meaning of this act that the said sections of canal and railroad, and every part thereof * * * * shall be and remain a public highway, and kept open and in repair by the purchaser or purchasers thereof, or assigns as such, for the use and enjoyment of all parties, desiring to use and enjoy the same.” It was the undoubted intention of the legislature that the purchasers of the main line of the public works should hold and use them for the same uses and objects for which they were created, and therefore to bring them up to their highest condition of utility and prosperity. Not only was the duty thus enjoined on the purchaser, but ample powers were given to perform it. It is declared in the 3d section that “ it shall he lawful for the purchasers, or their assigns, to straighten and improve the said Philadelphia and Columbia Railroad, and to extend the same to the Delaware river, in the city of Philadelphia, &c., and it shall be further lawful for them to alter, enlarge and deepen the canal portion of said main line, and to make such additional locks and dams, and to make in whole or in part a slack-water navigation as may be deemed expedient.” In the 9thsection it is made “lawful for the purchasers, their successors or assigns, and their officers, &c., to enter upon any lands adjoining, or in the neighborhood of the works, and dig and take away materials necessary for enlarging, making, altering, deepening or improving said works, or any portion thereof, or for constructing any railroad, canal, bridge, viaduct, dam or other mechanical structure which may be required for the said works, or for making a slaelc-water navigation, or of improving any works already made.” Thus we have not only the great purposes of the state to be subserved by these works, but the express grant of the largest power, to alter, enlarge and improve them, so as to make them attain their highest degree of usefulness and prosperity. It is very clear it was not her intention to make her own failure to keep them in good operating* condition a standard for the future. On the contrary, it was hoped that private interest would accomplish, through these works, what she had been unable to perform through the carelesness, indifference, if not dishonesty, of many who had served her. We are therefore of opinion that the railroad company had a right to raise the height of the dam in question, and that the height at which it had been maintained by the state, previous to the sale, is not the standard. The right to alter, enlarge and improve the canal, and to make a slack-water navigation, carries with it the power to maintain the works, as thus enlarged, in a full operating condition. The learned judge below kept carefully within the limits of the company’s power in his instructions to the jury.

The right thus to exercise the power of eminent domain belonging to the state, exempts the company from liability for consequential damage caused by the back-water of the dam : Monon. Nav. Co. v. Coons, 6 W. & S. 101; McKeen v. Del. Div. Canal Co., 13 Wright 424. This rule would be overturned were we to hold that the state, or a company exercising the power, is bound to erect guard-walls along the stream above to confine the water of the stream to fixed limits, and to prevent an overflow in time of high floods. And if the duty existed, it could not serve the plaintiff’s case, when, by all his own testimony, it was shown that the flood of 1865 was the most extraordinary known within the memory of man, it being three feet higher than the highest known before. A guard-wall, if it had been built according to the then light of experience, would have fallen far short of the protection the plaintiff now asks from it. It is perfectly obvious the plaintiff’s injury arose from the act of God, and not from any unwarranted neglect of the company.

This disposes of all the remaining assignments of error, except the 1st, as to the rejection of the offer to prove the flood of 1868. In view of what we have said as to the right of the defendants to raise the dam, the rejection is immaterial, even if erroneous. But primá facie the rejection was right. The height of the flood after suit brought, was clearly irrelevant, unless it could be shown that it bore in some way on the previous flood that caused the injury. As far as we can gather from the bill of exceptions, no such bearing appears. When a party offers evidence, apparently irrelevant, it is his duty to state the aspect in which it is believed to become relevant, so as to bring it to the attention of the court, and this should be incorporated in the bill of exceptions, otherwise there is nothing to manifest the error in rejecting it. Finding no error in the record, the judgment is affirmed.


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    The Commonwealth versus Conyngham et al.

    1. The Act of March 3d 1870 (Safety in Mines) directed that “upon the passage of this act” the governor, on the recommendation of examiners, should appoint inspectors of mines, “ the examiners to be appointed by the Court of Common Pleas at the first term of the court in each year.” The act was passed after the first term. Held, that the examiners were to be appointed on the passage of the act.
    2. The act was to go into operation immediately on its passage.
    3. Incongruities must be so construed as to harmonize the general intent of the whole act.
    4. “ Terms” in the act are to be construed in reference to future years.
    5. For the portion of the year ensuing the passage of the act the appointment of examiners was not referred to any period except the first term after its passage.
    6. When a statute gives a power, what is necessary to make it effectual is given by implication.
    May 24th 1870.
    Before Thompson, C. J., Agnew and Sharswood, JJ.
    This was an alternative mandamus, issued May 3d, 1870, upon the information of F. Carroll Brewster, Esq., Attorn ey-G-eneral, against John N. Conyngham, President Judge, Edmund L. Dana, Additional law Judge, and Thomas Collins and Isaac S. Osterhout, Associate Judges of the Court of Common Pleas of Luzerne county,
    The information set out that by the 14th section of an act passed March 3d 1870 (Pamph. L. 3), it was provided that upon its “passage,” the governor should, “upon the'recommendation of a board of examiners selected for that purpose, composed of three reputable coal miners in practice, and two reputable mining engineers, to be appointed by the judges of the Court of Common Pleas of Luzerne county, all of whom shall be sworn to a faithful discharge of their duties, appoint three properly qualified persons to fill the offices of inspectors of coal-mines and collieries, for the counties of Luzerne and Carbon, whose commissions shall be for the term of five years or during good behavior.” * * * “ The
    examiners provided for in this act shall be appointed by the judges of the Court of Common Pleas for the county, at the first term of the court in each year, to hold their places during the year, and vacancies shall he filled by the court as they occur.”
    By the 16th section of the said act it was provided that “ the term of office of the inspector of coal-mines, appointed under an act for the better regulation and ventilation of mines, and for the protection of the lives of the miners in the county of Schuylkill, approved April 12th, one thousand eight hundred and sixty-nine, shall expire on the first day of June, Anno Domini one thousand eight hundred and seventy, and in Ms room three inspectors of mines for the counties of Schuylkill, Dauphin, Northumberland and Columbia, shall be appointed by examiners, to be appointed by the Court of Common Pleas of Schuylkill county, in the manner and form provided by the 14th section of this act.”
    That the respondents “ have declined for the present to make the appointment of the board of examiners for said county, as required by the aforesaid sections of the act.”
    The respondents answered that they declined making the appointment, because the time had not arrived when the appointments could legally be made. The first term of the Luzerne Common Pleas for 1870 commenced on the first Monday of January, then last past; the second term, on the third Monday of February; the third term, on the first Monday of April; that the application for the appointment of examiners was made at the third term of the year 1870, and the respondents refused to appoint for defect of present power, as they believed, because the first term of the court for 1870 had passed, and they could not appoint till the first term of the next year.
    The Attorney-General demurred to the answer.
    The Attorney-G-eneral, for the Commonwealth.
    — Statutes take effect from their date, unless it be otherwise provided: Braddee v. Brownfield, 2 W. & S. 279; Jamieson v. Attoyney-General, 1 Alcock & Napier 375; Parker v. Attorney-General, 6 Brown, P. C. 486. Wherever two parts of a statute are contradictory, the court endeavors to give a distinct interpretation to each of them by looking at the context: Pretty v. Solly, 26 Beav. 610 ; Kerlin v. Bull, 1 Dali. 178; Dwarris on Stat. 514, 517.
   The opinion of the court was delivered, May 26th 1870, by

Thompson, C. J.

— The question presented in this case is single, and not difficult. The Act of the General Assembly of the 3d of March 1870, entitled “An Act providing for the health and safety of persons employed in coal-mines,” provides for the appointment by*the governor of three coal-mine inspectors, for the counties of Luszerne and Carbon, upon the recommendation of a board of examiners to be appointed by the Court of Common Pleas of Luzerne county. The 14th section of the act provides for these appointments to be made by the governor “ upon the passage of this act,” but only upon the recommendation of the board of examiners. The examiners must be appointed by the court before they can recommend persons for appointment as inspectors. The difficulty in the minds of the respondents, the judges of the Common Pleas of Luzerne county, lies in the following provision contained in the section. It says, “ the examiners provided for in this act shall be appointed by the judges at the first term of the court in each year,” and as the act did not pass until after the first term of the court in Luzerne county had passed, they were of opinion that they had no power to appoint until the first term of the court in 1871, and they therefore declined to appoint.

This construction would defeat what seems to have been the manifest intention of the legislature in passing the act; namely, that it should go into operation immediately upon its passage. This very clearly appears in various provisions of the act. In the 14th section the governor is required “ upon the passage of the act,” subject of course to the time which may be required for the preliminary action of the board of examiners, to appoint the inspectors provided for in the act. This does not consist with the idea of waiting until another year to enable the court to appoint examiners at the first term. In the 4th section there is a provision requiring action by the inspectors in superintending the construction or sinking of slopes or outlets in mines requiring them, which are to be constructed within four months after the passage of the act, on penalty of inability to the owners to employ miners and workmen unless in certain contingencies mentioned. This shows that it was designed that inspectors should be appointed for this and other purposes at once. So in the requirement that the inspectors shall he on hand to inspect the causes of loss of life when it occurs by explosion*» in mines. This is to be their duty from and after the passage of the act, as it goes into operation from and after its passage ; and so in regard to the 15th section • of the Schuylkill Act. It is to expire on the 1st of June 1870, when inspectors are to be appointed by the courts, under the provisions of the 14th section of this act, for Schuylkill, Dauphin, Northumberland and Columbia counties. If no appointment of examiners can be made in Luzerne county, because the first term of the court for the present year has passed by, it is likely the same thing exists in regard to those counties. Is it likely that such a cause of delay could have been a possible contingency in the legislative mind? We think not. As already said, the intention is manifest, not only in the provisions mentioned, hut in many others in the act — nay, throughout the entire act — that it was to go into full operation as soon as the organization of its machinery would permit. We must therefore construe the seemingly incongruous provisions noticed, so as to harmonize with the general intent manifested in the whole enactment. We can do so without violence to any portion of it, we think, by holding the provision in question applicable to future years and not to the present. For the fraction of this year ensuing the passage of this act, the organization and appointment of the examiners mentioned were not referred to any period, excepting to the first term of the court after the passage of the act; thereafter, it is to be at the first term of the court in the year. This view enables the governor to appoint inspectors as required by the act, and put the intended reform of the mining police in operation. In this way, and in this alone, can the provisions of the act be harmonized, and the manifest intention of the legislature carried out. We may thus make the statute effectual for the purposes intended. Dwarris on Stat. 514-17, says, “ wherever a power is given by statute, everything necessary to the making it effectual is given by implication.” We must, we think, enter judgment for the Commonwealth on the demurrer, and award a peremptory mandamus against respondents.

Ordered accordingly.