text:
    The Commonwealth versus The Pennsylvania Canal Co.
    1. In 1857 the Commonwealth sold to the Pennsylvania Railroad Company the public works, including the canals, with all the rights, &c., and with authority to resell. In March 1866 an act was passed requiring owners of dams on the Susquehanna, &c., to make sluices in them for the passage of fish as directed by a commissioner: on failure they were indictable for nuisance. In May 1866 the Pennsylvania Canal Company was incorporated and authorized to buy and the railroad company to sell the canals, &c., including dams in the river; in 1867 the canal company bought the canals, &c., and refused to make the sluices. Held, that they had all the rights in canals, &c., conveyed to the railroad company, and were not liable under the Act of March 1866.
    2. The Commonwealth has the same power, and no more, over property granted to a corporation than that granted to an individual. Per Peakson, P. J.
    3. If a law creating an offence expires or is repealed before indictment there can be no prosecution, or if after conviction sentence cannot be passed. Id.

    4. A charter cannot be revoked against the consent of the corporation, unless when power to do so is reserved. Id.

    5. The legislature has not power to throw the burden of making and maintaining the sluices on a grantee of the railroad company. Id.

    6. By the sale of the public works, the dams became the private property of the purchaser and cannot be taken by the state except by paying the owner an equivalent. Id.

    7. Every legislative grant is with the implied right that it shall not injure others. Id.

    8. The police power of the state is nothing more than the authority to compel all owners of property so to use it as not to injure others. Id.

    9. The state cannot part with the power to compel the owner of real estate so to use it, as not to endanger the public health or safety. Id.

    10. The Act of March 30th 1866 (Fish Act) is void so far as it imposes on the Pennsylvania Canal Company the duty of changing the dams at their own cost. Id.

    11. All legislative acts alienating public rights or domain are to be strictly construed, and no such grant is to be inferred by implication merely.
    12. The maxim, verba relata hoc máxime operantur per rejerentiam ut in eis inesse videntur, applied in this case.
    13. The Act of 1857 for the sale of the public works, authorizes a sale to any corporation created after its passage and before a sale or lease authorized in the 5th section.
    14. The Pennsylvania Canal Company, by their purchase under the Act of May 1866, stood in the shoes of the railroad company as parties to the contract of 1857.
    15. In an indictment under the Pish Act, the canal company were to be treated as if the question was with the railroad company.
    16. Erie v. Erie Canal Co., 9 P. P. Smith 174, recognised.
    March 19th 1870.
    Before Thompson, C. J., Read, Agnew and Sharswood, JJ.
    Error to the Court of Quarter Sessions of Dauphin county : to May Term 1870, No. 11.
    The Pennsylvania Canal Company was indicted in the Court of Quarter Sessions of Dauphin county, on the 21st of November 1867, for refusing and neglecting to keep sluices open in their dam in the Susquehanna river, at Duncan’s Island, under the 2d and 3d sections of the Act of March 30th 1866, Pamph. L. 370, “relating to the passage of fish” in the Susquehanna and its tributaries.
    The Act of May 16th 1857, Pamph. L. 519, directed the sale of the public works,, with all the property thereto appertaining, or in anywise connected therewith, and authorized any corporation, then or thereafter incorporated, to become the purchaser, with power, by the 3d section, to such purchaser to resell “ to any railroad or canal company created by the laws of this Commonwealth the purchaser to be subject to all contracts made by the Commonwealth.

      By the 5th section of the act, the purchasers were authorized to sell or to- lease any part of the canals, and any corporation or association, authorized by the act to purchase the whole, may purchase or lease such portions, and hold the same subject to the conditions, and be entitled to all the privileges in the act.
    The 2d section of the Act of 1866 provided that the commissioner appointed under the act shall inspect the dams on the Susquehanna, and “ if the sluices or other devices shall not then have been made as directed,” &c., he shall report them to the district attorney, who shall prefer a bill of indictment, &c., for maintaining a public nuisance; and by this section the duties of the commissioner were to cease on the first Monday of December 1866. By the 8d section, if the sluices, &c., should not be kept open, &c., the failure should be deemed a misdemeanor, and the dam a public nuisance, &c. On the 1st of May 1866, Pamph. L. 1068, the Pennsylvania Canal Company was incorporated and authorized to purchase from the Pennsylvania Railroad Company, and the railroad company was authorized to sell, all the portion of the main line of the public works from Columbia to Duncan’s Island, and the Juniata Canal from Duncan’s Island to Ilollidaysburg, with all the property and appertenances, &c., for the purposes of navigation, which the Commonwealth granted to the railroad company under the Act of 1857,- with “the powers, privileges and franchises granted or intended to be granted,” and required the canal company to keep the canal in navigable condition. By the Act of April 13th 1867, Pamph. L. 79,. the provisions of the Act of 1866 were continued until the 31st of December 1867. By the Act of April 9th 1868, Pamph. L. 77, the office of commissioner was extended to December 31st 1868.
    The jury returned a special verdict, finding the construction of the canals, &c., by the Commonwealth; also “that the said dam and structure in the indictment in this case mentioned and described, was constructed and erected by said board of canal commissioners, at the expense and cost of the state of Pennsylvania, long prior to the year 1857, to wit, on or about the year 1826, and as one of the necessary works connected with the construction of the Pennsylvania Canal as above provided; and that said dam thenceforth continued and still continues to be used as a part of said canal.”
    They also incorporated into their finding the foregoing Acts of Assembly, the sale by the Commonwealth of the public works to the Pennsylvania Railroad Company, and their conveyance July 31st 1857. They also found “ that in accordance with the powers conferred by the Act of May 1866 the said Pennsylvania Railroad Company, on the 30th day of March, A. D. 1867, sold and conveyed the line of said canal, from Columbia to Ilollidaysburg, to said Pennsylvania Canal Company. * * * That James Worrell was duly appointed commissioner by the governor, as provided by said act and supplement, and entered upon and performed the duties devolved upon him by said appointment, and did, within the time limited and designated in said act, fix and designate the location of the wiers, steps, sluices and other devices for the free passage of fish up and down said river and through the dam and obstruction, in the indictment in this case mentioned and described, and did furnish working plans of the same to the owners thereof, to wit, the defendants herein, and did in all things observe, perform and conform to the provisions and requirements of said act and supplement.
    “ That said defendants have not hitherto made said sluices, wiers or other devices, or any sluices, devices or ways for the free passage of fish up and down the said river, through said dams and obstructions in the indictment in this case mentioned, according to the plan furnished by said commissioner or otherwise, but that said dam and obstruction remain in the same condition, in all respects, in which it was before the passage of said Act of March 30th 1866, and is an obstruction to the free passage of fish and spawn up and down said river.
    “ If the court, upon the facts stated, should be of opinion that the defendants are guilty in manner and form as they stand indicted, then we find defendants guilty, and judgment to be given accordingly; if not guilty, the verdict and judgment to be for defendants.”
    On the 15th of February 1869, Judge Pearson delivered the opinion of the Court of Quarter Sessions on the special verdict.
    The opinion was adopted by the Supreme Court, and is as follows:—
    “ The state of Pennsylvania, about the year 1827, constructed a dam across the Susquehanna river, at Duncan’s Island, for the purpose of feeding its canal, then about to be completed, and kept it up to supply the'public works with water until the year 1857, when the whole right of the state was conveyed absolutely to the Pennsylvania Railroad Company by deed, pursuant to the provisions of the Act of May 16th 1857. That company made use of the dam for the same purpose until it sold and transferred all of its interest in the property, from Columbia to Hollidaysburg, including the dam now in dispute, to the Pennsylvania Canal Company, in pursuance of the Act of May 1st 1866, by which that company was incorporated and authorized to make the purchase. The Susquehanna is one of the great rivers of Pennsylvania, navigable by nature, over which the state has exclusive control by virtue of its right of eminent domain. The claims of riparian owners to its shores run no further than ordinary low-water mark, and between that and the high-water boundary, the public has the right of free passage, and the state the privilege of taking possession at any time without making compensation to the landowner, who has but a qualified property in the intermediate space. See 1 Penna. R. 467; 1 W. & S. 364; 6 Id. 112, 113, 114.
    “ The dam was therefore the absolute and unqualified property of the Commonwealth, which by its deed, made in pursuance of the Act of 1857, conveyed all of its rights therein to the Pennsylvania Railroad Company on the 31st day of July of the same year. The Act of Assembly authorizing this conveyance is most full and ample, only reserving the power in the state to revoke the grant for misuse or abuse of the privileges granted after a judicial decree of such misuse or abuse first duly had and obtained.

      “ The railroad company to which this sale was made, held a charter from the state, granted in the year 1846, in which there is no power of change or revocation reserved, consequently it was then and still continues beyond and above legislative control. The state has precisely the same power over property granted to a corporation that it has over a like grant to a private individual —no more, no less: 6 How. 533. Thus stood the right to this feeder-dam on the 30th day of March 1866, when the act relating to the passage of fish in the Susquehanna river was passed, under which the indictment in the present case was preferred. The Act of Assembly last referred to, requires every individual or corporation having or maintaining any dam, wier or other obstruction on the Susquehanna and its various branches, including the Juniata river, to maintain and keep up at each of said dams, wiers or other artificial obstructions, a sluice, wier or other device for the free passage of fish and spawn up and down said stream, in such manner and on such plan as a commissioner to be appointed by the governor may devise. Working plans are to be furnished by the commissioner who is to inspect the dam immediately after the 1st of November next following, and if the device shall not have then been constructed as prescribed, the commissioner is to report the delinquency to the district attorney of the proper county, who is to cause an indictment to be preferred against the delinquent corporation or individual. The failure to erect and keep up devices in the dams in the mode prescribed by the commissioner, is declared to be a misdemeanor, and the dam a public nuisance; the violators of the law are subjected to a heavy penalty, and if the work be not completed within thirty days, the dam is to be abated by the sheriff at the cost of the individual or corporation offending. The Pennsylvania Canal 'Company, under its purchase from the Pennsylvania Railroad Company, made on the 30th day of March 1867, has kept up the dam, and neglected and refused to make the sluices as required by the Act of Assembly, and consequently was indicted at the November Term of court of Dauphin county, and a true bill found on the 21st day of that month.
    “A special verdict was taken embracing every fact necessary to raise the legal positions presented on the argument, which we will now proceed to consider. The defendant answers that the statute under which it is indicted was repealed by the Act of April 13th 1867, which provides that the several provisions of the 2d section of the act entitled 4 An Act relating to the passage of fish in the Susquehanna river and certain tributaries,’ approved March 13th 1866, be and the same are hereby continued to the 31st day of December 1866. On looking into the provisions of the 2d section thus referred to, we find that certain of its enactments expired in effect on the first Monday of December 1866— as the duty of the commissioner for instance. If that officer had failed to fix the width of the wiers, steps or sluices, or determine their location on the various dams, to furnish the working plans on which the sluices were to be constructed, to obtain the approval of the governor thereto, or to inspect the same and report the delinquency to the district attorney, the power on the part of that officer had ceased, and it was the intention of the legislature to prolong it by the Act of 1867. The statute is hastily and carelessly drawn; but by applying its words to the provisions of the Act of 1866 which had expired, we do not infer the absurdity to the legislature of intending to continue provisions which had not expired, to wit, the power to indict or punish for keeping up that which the law declared a nuisance, and concerning which the enactment is perpetual. It is our duty to so construe the laws as to prevent an absurdity. This can readily be done in the manner indicated, and such is the obvious meaning of the act. Apply the maxim reddendo singula singulis, and the two laws may well stand together. Had the act expired as assumed, the legal position that the indictment must fall would have been clearly tenable, for if the law expires or is repealed before indictment, there can be no prosecution, or if after conviction sentence cannot be pronounced. It is scarcely necessary to cite authorities for so plain a position; but we find them in 1 Binn. 601; 1 Whart. 460; 1 Wash. C. O. R. 84; 10 Watts 351; 8 Smith’s N. Y. R. 95. It is also urged that as this law is highly penal in its character, it must be strictly construed, and is ex post facto in its operations, punishing that which was lawful at the time it was passed. This statute does not pretend to punish the defendant for erecting the dam, it was lawfully built by the state, and kept up by it and the Pennsylvania Railroad Company for nearly forty years before this defendant had existence as a corporation. The law does not declare the erection unlawful, but forbids the keeping up of the work after the owner has been furnished by the commissioner With the plan devised for the passage of fish without making the sluices, &e., as required by the statute. It is the failure to make the change after due notice which is declared to be a public nuisance, and keeping up the dam in contravention of the legislative command.
    “ It is said that the Act of Assembly is in violation of the state and national constitutions in this: That it impairs the obligations of a contract, between the state and the Pennsylvania Railroad Company, entered into when the state sold its works; violates the charters, both of that and the Canal Company, by imposing burdens on them, which neither their charters nor the laws óf the land require them to bear, and takes private property for public use, without paying or securing any equivalent. To this it is answered by the Commonwealth that, as the Susquehanna was by nature a public navigable river, .the people on its banks had an inherent right of free fishing, which could not' be impaired or taken away. That the state possesses the right of eminent domain for the benefit of the people, and cannot part with, sell or abandon it. A charter granted to a corporation is of no greater efficacy, or of more binding obligation, than a deed to an individual; and its franchises are subject to the power of eminent domain, and are under the control of the legislature; that there is no taking of this property; and even if taken, it does not impair the contract. The point mainly relied on in response to the defence is, that this law is an exercise of police power, which the state possesses over all persons or property within its borders, is held for public benefit, and cannot be parted with or abandoned; and lastly, that the exercise of the right complained of is not a violation of the' words of the constitution, and before a law can be declared void by the courts on account of impinging with the organic law, it must be clearly so, and come within the prohibition of the very letter. It would be a waste of time, at this day, to argue that a grant is a contract executed, and the property once granted cannot be resumed .by the state, without the consent of the grantee. It is equally useless to cite authority to prove that the charter of a corporation cannot be revoked, or altered, against its consent, unless when the power of revocation or alteration is reserved in the grant, in general laws previously passed and applicable to their incorporation, or in the constitution itself. If the state has in the mode prescribed by law granted a tract of land to an individual for a valuable consideration, it cannot, by law, revoke the grant and resume the property; and even when taken for necessary public purposes, must pay the owner a full equivalent. The same rule applies, both to the franchises and property of a corporation. In the present case the state, for a full and valuable consideration, granted and conveyed its canal and railroad improvements to the Pennsylvania Railroad, a corporation over the charter of which it had retained and possessed no control whatever. That company had held and enjoyed the property for about nine years, when the Act of 1866, relating to the passage of fish, was passed. By that law the legislature attempted to impose on this company the burden of changing all its dams, from and including the one in controversy, up to, and along the Juniata to Hollidaysburg, so as to secure the free passage of fish through all the dams; some twenty-six in number; and the expense of making the directed alterations, it is said, will amount to over $200,000, independent of the cost of keeping them in repair. These alterations in the dams, it will be borne in mind, are not for the benefit of the present owner, which will, it is said, be greatly injured thereby in the loss of the necessary supply of water for its canal, but is intended for the benefit of the people at large, and the riparian owners in particular, by securing an abundant supply of fish. We would naturally conclude that in such a case the expense of these alterations should rather be borne by the public at large, or the persons who are to be especially benefited, than by the purchaser for value, who is to receive no benefit, but will be essentially injured by the change. It is said, however, that there is no taking of the property of this corporation under the statute, and therefore it cannot claim the protection of the constitutional prohibition. Although the dam in question is not taken, the money of the owner must be to a very considerable amount before the alterations and improvements required by the statute can be completed. It transcends the power of the legislature to throw such a burden on its grantee. When the legislature incorporated a company to make a bridge with a draw of 30 feet, it was decided to transcend the power of the legislature to require the draw to be extended to 50 feet: 18 Conn. R. 54. Also held that a railroad company could not be obliged to make bridges for county roads across their track when the charter contains no such obligation : 2 Barb. 513. Franchises cannot be changed without the consent of the corporators, properly expressed. The legislature cannot interfere with corporate property or franchises: Brown v. Hummel, 6 Barr 86. When no power is reserved for the legislature to alter the charter it cannot be done, nor can additional burdens be thrown on it without the consent of the corporators : Commonwealth v. The Monongahela Nav. Co., 6 Barr 379. See also Harrington’s Rep. 389, 9 Cranch 292; Dartmouth College v. Woodward, 4 Wheat. 518, and numerous other cases. But wherefore investigate these decisions when we have an authoritative exposition of the constitutional power of the legislature, made in a very recent case by our Supreme Court, which is binding on us as an inferior judicial tribunal, and which we have neither the legal power nor inclination to disregard.
    “ The state of Pennsylvania, some years since, donated the canal extending from the mouth of the Beaver to the city of Erie to a company incorporated to receive, complete and keep it up. The charter required the company to maintain farm bridges; hut no mention was made of those on the public streets and highways. The state had built, and was accustomed to keep up those bridges. Some in the borough of Meadville fell into decay and were rebuilt by the town authorities, which sued the canal company for the expense thereof; but it was decided that the corporation law did hot require it to keep up these bridges. See Meadville.?;. Erie Canal Company, 6 Harris 66. In 1864 an act was passed requiring the company to build and keep up the bridges on the public streets and highways; which the corporation refused to do, and was sued by the city of Erie for the expense incurred in rebuilding those in that city. But it was held By Derickson, J., on full consideration in the Court of Common Pleas, that the legislature had transcended its power in passing the law; and the judgment was affirmed by the unanimous opinion of the Supreme Court, in a most lucid argument by Sharswood, J., see The City of Erie v. The Erie Canal Company, 9 P. F. Smith 174. That was a vastly more favorable case for the exercise of legislative power than the one before us. There the state had originally built all of the bridges on the streets and highways, including those in question, and had always kept them up. The canal was given to the company by words of equivocal meaning, but probably intending to bind the company to do the same thing, but not so expressed. Here the public works of the state were sold to the Pennsylvania Railroad Company for $7,500,000. The dam was built, and had always been kept up by the Commonwealth, without any sluice, causeway or other device for the passage of fish, as had all of those embraced in the Act of 1866, which the railroad company was required to change at its expense. There was an apparent fairness in the law relating to the Erie Canal, as it only required the donee of the state to do w-hat the donor had always done whilst it held the property. There is nothing but unmitigated hardship and injustice in the Act of 1866, which obliges a purchaser, for value, to do what the vendor had never done when it built, or whilst it owned and kept up the dams by virtue of its sovereign power. The purchaser had a right to expect it would be permitted to use and enjoy the works as they had always been held and enjoyed by the state, without expense or molestation by the legislative authority. It is said, however, that the state can cause the dams on the river and its branches to be changed or even vacated by virtue of the right of eminent domain, an attribute of sovereignty vested in every government for the benefit of the people, and which can neither be parted with or abridged. There is no doubt of the power of this Commonwealth over the public rivers within its borders, and it was by virtue of its sovereignty that it took possession of the Susquehanna, the Juniata and other streams, and obstructed them with dams for what it considered the benefit of the people, although thereby the passage of fish was prevented, and the fisheries destroyed. Rut it also sold the whole works for what was considered the public good. The dams became, after such erection and sale, private property, and if now taken under the power of eminent .domain for public use or benefit, it must be done on paying the owner an equivalent.
    “ The present law proposes nothing of the kind, but on the contrary requires the corporation to make all of the changes and keep them up at its own expense. This transcends sovereign power. It is prohibited by the constitution. The state might as well undertake by legislation after it had parted with its land to A. for a full consideration, and conveyed it in all the forms of law, to transfer it over to B., and compel A. to make a conveyance, or after it had thus parted with its property, oblige A. to build a church or school-house for public benefit on the land at his own expense. One of the highest attributes of sovereignty, and most essential to the existence of the state, is the power of taxation, yet that may be released for a consideration, and cannot he resumed without the consent of the grantee. See New Jersey v. Wilson, 7 Cranch 164; Gordons. Appeal Tax Court, 3 How. 133; Bank v. Knoop 16 Id. 369; Id. 416-432, and many others to the same effect. This is the settled law as declared by the highest judicial tribunal in the country — the Supreme Court of the United States.
    “ It is further contended that the state can compel the holder of these dams to fit them for the passage of fish by virtue of its police power; the alteration being of great public benefit and necessary for the welfare of the people. This power is very extensive in preventing nuisances of almost every kind, as removing noisome smells, offensive trades, dangerous explosive substances, that which is deleterious to health, or dangerous to the lives of the people. The interment of the dead in a great city has been forbidden, although the corporation was expressly created for that purpose, and endowed with the authority to use the location: Coates v. The City of New York, 7 Cow. 585. Every right is granted under the implied condition that it shall not injure others : Id. 605. It has been held in several of the states that a railroad company could by law be obliged to fence its road, although no such power was retained in the words of its charter, the same being necessary for public .safety and that of the neighboring stock running at large. See 12 Indiana 3; 16 Id. 84; 27 Vermont 140. The corporation was subject to police regulations, and may be obliged to enclose its track under the penalty of paying for all cattle killed or injured: 25 Illinois 140; 28 Id. 284-290. The road takes nothing by inference or intendment, and may be obliged to do whatever the public good requires unless expressly exempt by its charter: 27 Vermont 140.
    “ The right of control over the waters of the state has perhaps been carried further as a police power in the state of Massachusetts than in any other, where the common law prevails, and that whether the franchise was in the hands of an incorporated company, or the property and privileges were claimed by a private individual. The common law may have been changed to some extent by early custom, or the power over the streams of water secured to the public by provincial legislation; for we find it decided as early as 4 Mass. 528, that where permission was given to the owner of land -to build a mill, as early as 1633, and he was granted a several fishery, the legislature could require him, after the expiration of a hundred years, to make a passage for the fish, and when badly done to rebuild it at the expense of the owner. The whole subject underwent careful examination in The Commonwealth v. Alger, 7 Cush. 53, 101. It was held that the right of free fishing and navigation was a public right, and could be controlled by legislation, although private rights were injuriously affected (see also 4 Pick. 460, 462; 5 Id. 199), and a man may be prohibited from moving timber or gravel from his own land, if by its removal the public is likely to be injured; although by such prohibition the land is greatly lessened in value: 4 Met. 55. On the other hand, it was decided in Yirginia, that when permission was given to an individual to erect a dam, in the mode prescribed by law, which' was done, and long enjoyed, that it transcended the power of the legislature to compel the owner, at a late day, to erect a lock-therein for the passage of boats at his own expense: 6 Randolph 245, considered with great care. So in the state of New York, The People v. Platt, 17 Johns. 195, where land was granted covering a stream not naturally navigable, the legislature cannot impose burdens on the owner of a dam erected thereon before the passage of the law declaring it a highway, without making or providing for compensation. It is impairing the grant, which is in violation of the contract. If a private stream is made navigable, the legislature cannot'appropriate it to the public without compensation, Angelí on Watercourses 601, § 539, 27 Fairfield (Maine) 81, and after granting it to an individual, cannot divest his right, without compensation, by declaring it a highway. It has long b.een considered the law of Pennsylvania, that when the line of survey runs across streams of water, and the owner of the land erected a mill-dam on the stream, he could keep it up without molestation after - the legislature had declared the creek or river a public highway, and the owner could not be obliged to fit his dam for the passage of boats and rafts; but if done, it must be at the public expense. Such owner might as well be required to remove bars, rocks or drift-wood for the convenience of navigation, by virtue of the police power, as to fit up a dam so erected. The case has been likened to that of paving and side-walks in cities, or opening streets at the expense of lot-owners; all of which has been sus.tained by our courts, see Schenley v. The City of Allegheny, 1 Casey 128, also 3 Watts 592, or compelling a borough to pay more than its proportion towards the erection of a court-house: 7 Harris 258. But it must be borne in mind that in each of these cases the owner was benefited or supposed to be, and therefore payment was lawfully enforced.
    “ The legislature professes, and has always exercised, unlimited control over municipalities, and the citizens thereof who, by uniting with larger bodies, bring themselves and their property under management for the benefit of the whole. As we understand the police power of the state, which has been strongly pressed upon us as being unlimited and uncontrollable, and which no state can part with, it is nothing more than the authority to compel all owners of property so to use their own as not to injure others; that therefore the state cannot, by contract or otherwise, part with the power to compel the owner of real estate so to use it as not to endanger the public health or safety. This is, perhaps, the extent to which writers on that subject press the doctrine. See Cooley’s Const. Lim. 282-3; Id. 276, 7, 8. But if it can be invoked for the purpose of enabling a state to revoke its grant, violate its contract, or take the property of an individual for public or private use, without making compensation, it is a most dangerous power, and enables the legislature to do that which is expressly forbidden by the Constitution. Our only reason for examining the subject at such length is, that the authority has been strongly pressed, and it has been urged that the exercise of the power has never been presented to or commented on by the courts of our state in any of the decided cases. We are well aware that no law can properly be declared unconstitutional unles.s it clearly violates the provisions of the organic law. But, as we understand this enactment, it takes the property of this corporation, defendant, for public use, without paying any equivalent, and clearly alters the character of the contract made with the railroad company at the time of the sale; in legal effect, violates the contract, and changes the charter of the company to which it sold; an act which transcends its power. It is very true that the present defendant was incorporated since the amendment of the Constitution, which gives the legislature the power to change and modify the charters of incorporate companies at its pleasure, provided, in its opinion, no injustice will be done to the corporators. But it will not be pretended that the legislature, by the Act of the 30th of March 1866, undertook to construe or modify the charter of the Pennsylvania Canal Company, which had no legal existence at the time, but was incorporated on the 1st of May 1866, and secured a transfer of the works'from the railroad company on the 30th day of March 1867. The whole Act of Assembly, in relation to the passage of fish, is aimed at the railroad company, over the charter of which the legislature had no control whatever.

      “ We are aware that our decision will he a great disappointment to the people who ardently desire, and fully expected an ample supply of fish by the change of these dams. We are of the opinion that the alteration can be" made if the same is deemed useful, but it must be done at the public expense; the defendant cannot be obliged to bear the burden. It is our duty to declare this act null and void, so far as it imposes on this company the duty of changing the dams at its own proper cost; and we therefore render judgment in favor of the defendant on the special verdict.”
    The Commonwealth sued out a writ of error, and assigned for error the entering of judgment for the defendants.

      J. W. Simonton and F. C. Brewster, Attorney-General (with whom was R. L. Muench), for plaintiff in error.
    Did the railroad company, by their purchase and deed, take the right to sell said works to the Pennsylvania Canal Company, the defendant in this case ? A grant of land or of a corporate franchise by an act of legislation is a contract, the obligation of which a subsequent legislature cannot impair: Southwark Railroad v. Philadelphia, 11 Wright 314; Iron City Bank v. Pittsburg, 1 Id. 340. This being admitted, what was the contract of the Pennsylvania Railroad Co., with the Commonwealth ?
    Any ambiguity in the contract operates in favor of the public: Charles River Bridge v. Warren Bridge, 11 Peters 544; Susquehanna Canal v. Wright, 9 W. & S. 11; Monongahela Nav. Co. v. Coon, 6 Id. 113. A corporation takes nothing by its charter except what is plainly, expressly and unequivocally granted: Bank of Penna. v. Commonwealth, 7 Harris 155; Commonwealth v. Erie and N. E. Railway Co., 3 Casey 359.
    The defendants were incorporated after the passage of the Fish Act, and therefore took subject to its obligations: Armstrong v. Treasurer of Athens Co., 16 Pet. 281. Corporations are subject to the provisions of general laws in force at the time they obtain their charters: Pratt v. Atlantic and St. Lawrence Railroad, 42 Me. 597; Bowen v. Sears, 5 Hill 221; Bank v. Nolan, 7 How. (Miss.) 508; Bank v. Archer, 8 Smedes and M. 151; Coffin v. Rich, 45 Me. 507. And to general laws passed subsequently, not conflicting with the clearly expressed or necessarily implied provisions of their charter: Easton Bank v. The Comm’th., 10 Barr 442; Providence Bank v. Billings, 4 Peters 514; Iron City Bank v. The City of Pittsburg, supra; Norris v. Androscoggin Railway, 39 Me. 293; Railway v. Smith, 37 Id. 35; English v. N. H. and Northampton Co., 32 Conn. 240; Monongahela Nav. Co. v. Coon, 6 Barr 379.

      The obligation of a contract depends upon the laws in existence when it is made: McCracken v. Hayward, 2 How. 612; Ogden v. Sanders, 12 Wheat. 259 ; Pomeroy’s Const. Law 382-8; Cooley’s Const. Law 285-6. To declare an act void it must clearly, palpably and plainly violate the Constitution : Sharpless v. Philada., 9 Harris 164. The Fish Act is a proper and legitimate exercise of the police power of the state: Thorpe v. Rutland and Burlington Railroad Co., 27 Vt. 149; Railway Co. v. Gilliland, 6 P. F. Smith 452. The right of free fishery, which is vested in all the inhabitants of the state, is of such importance and value to the health and prosperity of the citizens of the state at large, as to bring it within the class of rights which may be defined and protected by this police power. The right to fish in such rivers as the Susquehanna and Delaware belongs to the public: Carson v. Blazer, 2 Binn. 475; Shrunk v. Nav. Co., 14 S. & R. 71; Moulton v. Sibley, 37 Maine 472; Denham v. Lamphen, 3 Gray 268; Hart v. Hill, 1 Whart. 132 ; Angell on Watercourses, § 86; Comm’th. v. Tewksbury, 11 Metcf. 55; Coates v. The Mayor, 7 Cow. 585; Brick Church v. The Mayor, 5 Id. 538; Cooley’s Const. and Stat. Lim. 579, 580, 597; Gilman v. Philad., 3 Wall. 730.

      L. W. Hall and F. Jordan, for defendants in error.
    error. — The 2d section of the Fish Act, that under which the indictment was found, had expired before judgment, and no further proceedings can be had: Road in Hatfield Township, 4 Yeates 392; United States v. Passmore, 1 W. C. C. R. 84; North Canal Street Road, 10 Watts 351; Stoever v. Immel, 1 Id. 258; Commonwealths. Duane, 1 Binn. 601; Comm’th. v. King, 1 Whart. 448; Hastings v. The People, 8 Smith (N. Y.) Rep. 95.
    The canal company assumed the same duties and responsibilities as the railroad company, and no others: their charter is a contract with the state, not subject to alteration by the latter, so as to deprive them of the rights secured by it: Pierce on Am. Railroad Law 20; Monon. Nav. Co. v. Coon, 6 Barr 381; Erie & N. E. Railroad Co. v. Casey, 1 Grant 275; Comm’th. v. Cullen, 1 Harris 133; Brown v. Hummel, 6 Barr 86; Terrett v. Taylor, 9 Cranch 43; Calder v. Bull, 3 Dall. 386 ; City of Erie v. The Erie Canal Co., 9 P. F. Smith 174. The Fish Act takes private property for public use, without compensation : Angell on Watercourses, §§ 457, 8, 9, &c.; Redfield on Railroads 555-6; Pierce on Am. Railroad L. 38; 2 Kent’s Com. 408-9; Cranshaw v. The Slate River Co., 6 Rand (Va.) Rep. 245; Washington Bridge Co. v. The State, 18 Conn. Rep. 53; Miller v. The N. York and Erie Railroad Co., 21 Barb. Rep. 513; Bell v. The Ohio and Penna. Railroad Co., 1 Grant 105; Erie v. The Erie Canal Co., supra ; Comm’th. v. Reed, 10 Casey 275; Cooley on Constitutional Lim. 577, 578.
   The opinion of the court was delivered, July 7th 1870, by

Sharswood, J.

The very able and exhaustive opinion of the learned president judge of the court below in entering judgment upon the special verdict, relieves us from the necessity of any further discussion of the important constitutional and legal questions involved in this case. That opinion is in entire accordance with our own views, and we adopt it as the opinion of this court.

It is strongly urged, however, on behalf of the Commonwealth, and this has been the principal contention here, that he fell into a fundamental error, which vitiated all his reasoning, by treating the case as though it were a question between the Commonwealth and the Pennsylvania Railroad Company, who were the original purchasers of the dam at Duncan’s Island, together with tbe other public works, under the provisions of the Act of Assembly, passed May 16th 1857, Pamph. L. 519, entitled “ An Act for the sale of the main line of the public works.” It is apparently conceded that the Pennsylvania Railroad Company took the works under that act by contract, and paid for them to the state a valuable consideration, and consequently the state could not impose upon the’ir grantee any new burthen not contained in the original sale; for that would be for one of the parties to add a new term or condition to the contract. In that respect the case is stronger than The City of Erie v. The Erie Canal Company, 9 P. F. Smith 174, for the Erie Canal Company was the donee rather than the vendee of the Commonwealth. But it is said, that by the Act of 1857 the Pennsylvania Railroad Company were not authorized to sell any part of the works to the Pennsylvania Canal Company, because, at the time of the original sale of the whole, it was not then an existing corporation, and consequently, when the last-named company were incorporated by the Act of May 1st 1866 (Pamph. L. 1068), and were thereby authorized and empowered to purchase, take and hold from the Pennsylvania Railroad Company, and which said railroad company were thereby authorized and empowered to grant, the canal from Columbia to the junction at Duncan’s Island, &c., with all the property and appertenanees thereto appertaining, they necessarily took the same under and subject to the provisions of the previous Act of Assembly of March 30th 1866, Pamph. L. 370, entitled “An Act relative to the’ passage of fish in the Susquehanna river and certain of its tributaries,” for a violation of which this indictment was preferred. The argument has great ingenuity and plausibility, and if its premises be admitted, the conclusion would have to follow logically and inevitably. All legislative acts alienating public rights or domain are to be strictly construed, and no such grant is to be inferred by implication merely. Accepting this as not only the well established, but sound and reasonable canon of construction, let us examine how it applies in the case before us; whether there is not here a sufficient actual expression to be beyond the reach of the rule. By the third section of the Act of 1857, it was provided, “ that it shall be lawful for any person or persons, or railroad or canal company now incorporated or which may hereafter be incorporated by and under the laws of this Commonwealth, to become the purchasers of the said main line of the public works.” Then, after various provisions, applicable specially and severally in case individuals or associations of individuals, or the Pennsylvania Railroad Company, should become the purchasers; and directing in the fifth section, that immediately after the said purchaser or purchasers, or their assignee, shall take possession of the same, the said purchaser or purchasers, or assigns, shall be bound ever thereafter to keep in good repair and operating condition, the main line of said railroad and canal, extending from Hollidaysburg to Philadelphia, &c.; it is added in these words: Provided that said purchasers be authorized to grant, sell and convey, or to lease for a term of years, upon such conditions as may be agreed upon, any part or portion of said canals, and any corporation or association of individuals, authorized by this act to purchase the whole, may purchase or lease such portions and hold the same subject to the conditions and entitled to all privileges contained in this act.” ' As by the third section any corporations thereafter to be incorporated were entitled to become purchasers of the whole, it would seem at first blush to follow by the express words that such corporations would also be authorized to become sub-purchasers or lessees of part. But it is maintained, and here is the stress of the argument, that by the third section it was only meant that corporations, which should be incorporated between the date of the act and the sale, should become purchasers; for how in the nature of things, it is asked, could a corporation purchase, which was not in existence at the time of the sale ? By a necessary inference, a corporation not in existence at the time of the sale could not become a purchaser of a part under the fifth section. The argument is more refined than solid. We must bear in mind that an established canon of construction is that verba relata hoe máxime operantur per referentiam ut in eis inesse videntur. If, in pursuance of this rule, we transfer the words of the third to the fifth section, they must then receive the same construction, which it is conceded that they have in the third section, so as to authorize a sale to any corporation created after the passage of the act and before the sale or lease mentioned in the fifth section. That this was really the mind of the legislature can hardly be matter of doubt with any one who reflects upon the circumstances of the case. That body cannot fail to have perceived that the only really practicable mode by which a sub-sale or lease of part of a work of that character was likely to be effected would be by some corporation specially to be created for the purpose, just as they evidently did see the same thing in the provision made for the original sale of the whole. It was highly improbable that any corporation existing at the time of the original sale, could, consistently with its charter, unless incorporated expressly for the purpose, become a sub-purchaser. The Pennsylvania Canal Company, incorporated May 1st 1866, and specially authorized, as we have seen, to purchase from the Pennsylvania Railroad Company, became their assignees under and by virtue of the original power to sell, contained in the Act of 1857, and of course took the subject of the grant with all the privileges thereby conferred upon them. Nay, the terms of the Act of Incorporation, May 1st 1866, seem intended to leave no possible doubt upon this point, for it declares that they shall be vested “ with all the powers, privileges and franchises granted or intended to be granted ” to the Pennsylvania Railroad Company. And this is again repeated: “ And the said Pennsylvania Canal Company, their successors and assigns, be and they are hereby vested with the said powers, privileges and franchises.” They became, thereby, the assignees of the Pennsylvania Railroad Company, and stood in their shoes to all intents and purposes as parties to the contract authorized by the Act of 1857. The learned president judge below, therefore, fell into no error in treating the case as though it was a question between the Commonwealth and the Pennsylvania Railroad Company.

The franchises conferred upon the Pennsylvania Railroad Company, and vested in the Pennsylvania Canal Company, as their assignees, on this great public highway, are undoubtedly still within the right of eminent domain of the state, and may be resumed or taken under the limitation of Art. IX, sect. 10, of the Constitution, “ nor shall any man’s property be taken or applied to public use without the consent of his representatives, and without just compensation being made:” West River Bridge Company v. Dix, 6 How. (U. S.) Rep. 507 ; Commonwealth v. Pittsburg and Connellsville Railroad Company, 3 P. F. Smith 50.

Judgment affirmed.


source: Caselaw Access Project

author: Thompson, C. J.

license: Public Domain

text:
    The Atlantic and Ohio Telegraph Co. versus The Commonwealth.
    1. A telegraph company incorporated by Pennsylvania, leased its line to, another company, who agreed to pay “ 10 per cent, per annum upon the par value of the stock, excepting the amount owned at the time of each payment by the said lessee;” the lessee owned almost all the stock of the lessor.

      Held, that tax was to be paid to the Commonwealth on dividends at the rate of 10 per cent, on the whole capital of the lessor.
    2. The treasurer of the lessor returned 10 per cent, as the amount of dividend. Held, that this was the true evidence to the auditor-general of the dividend declared.
    3. The Commonwealth had nothing to do with the relations between the lessors and lessees.
    4. A declared dividend furnishes the measure for the tax.

      May 19th 1870.
    Before Thompson, C. J., Read, Agnew and Shakswood, JJ.
    Error to the Court of Common Pleas of Dauphin county: No. 16, to May Term 1870.
    This was an appeal by the Atlantic and Ohio Telegraph Company from the settlement of the accounting officers of the Commonwealth, made October 28th 1868.
    The settlement was as follows :—
    “Eor tax on capital stock, per Act of April 12th 1859, and Act of May 1st 1868, for years 1864, 1865, 1866 and 1867, ending first Monday of November of each year, as per reports herewith filed.
    “ 1864. Div’d 13 per ct. on $650,000. Tax, 6-J mills $4,225.00
    “ Add 10 per ct. penalty for failure to report per Act April 21st 1858, and Act May 1st 1868 422.50
    “ 1865. Div’d 10 per ct. on $650,000. Tax, 5 mills 3.250.00
    “ Add 10 per ct. per Act April 21st 1858 and Act May 1st 1868 ....... • 325.00
    “ 1866. Div’d 10 per ct. on $650,000. Tax, 5 mills 3.250.00
    “ Add 10 per ct. per Act April 21st 1858, and Act 1st 1868 ....... 325.00
    “ 1867. Div’d 10 per ct. on $650,000. Tax, 5 mills 3.250.00
    “Due Commonwealth .... $15,047.50”
    The defendants appealed, and filed these specifications :—

      “ The said settlement was based on a report of dividends, made by one H. H. Shillingford, who was formerly treasurer of said company, alleged to have been made by the said company during the year aforesaid; which said report is false and erroneous in fact, and was not authorized by the officers of this company. Whereas, the said settlement should have been made upon the basis of the true and correct report of dividends furnished the auditor-general, on the 5th day of August 1868, by O. H. Palmer, the then treasurer of this company.
    “ The entire amount of dividends declared for the capital stock of the Atlantic and Ohio Telegraph Company, during the years embraced in this settlement, was the sum of $100,700, on its entire capital, as appears' by the report made by O. II. Palmer, as aforesaid, and as the appellants are ready to verify; whereas, the tax in this case is levied upon the capital stock, as if dividends had been declared thereon during the years aforesaid, amounting in the aggregate to the sum of $279,500, making a difference of $10,012.50, as against the appellants on the tax above, and a proportionate sum on the penalties annexed.”
    The defendant was incorporated by the Commonwealth of Pennsylvania by Act of March 24th 1849. It owned and operated a line of telegraph in this state.
    On the trial, May 4th 1869, the Commonwealth proved and gave in evidence the following returns, all made by IT. H. Shillingford, the treasurer of defendant, on the 7th of October 1867. Report for year ending November 1864:
    Capital paid in ...... $650,000
    Dividends declared in January, April, July and October.
    “ Amount of each dividend declared, $26,000, $26,000, $16,250, $16,250.
    “ Rate per cent, per annum of dividends 13 per cent.”
    Report for year ending November 1865; * * *
    “ Amount of each dividend declared, $16,250, $16,250, $16,250, $16,250.
    “ Rate per cent, per annum of dividends 10 per cent.”
    Report for the years ending November 1866 and November 1867, the same as for year ending November 1865.
    The Commonwealth gave in evidence the settlement and rested. The defendants then gave in evidence an agreement, dated April 15th 1864, between the defendants of the first part and the Western Union Telegraph Company of the second part, which witnessed that “ the said party of the first part, in pursuance of a resolution of their board of directors, &c., does hereby lease to the party of the second part for the term of ten years, commencing on the 1st day of April 1864, and continue thereafter until terminated by six months’ notice, at the option of either party, all their telegraph lines, instruments, property, offices and franchises, with the right to work said lines at the expense of the party of the second part, and enjoy the profits of the same as fully and effectually as heretofore done by the party of the first part; and the party of the second part agreeing to assume all the present indebtedness, liabilities, contracts and obligations of the party of the first part.
    “ And in consideration of the aforesaid lease, the said party of the second part does hereby covenant and agree to pay, free from taxes, in quarterly payments of two and a half per cent, each, in April, July, October and January, in each and every year of the term, to the treasurer of the party of the first part, at the rate of ten per cent, upon the par value of the stock in said company, excepting the amount owned at the time of each payment by the said lessee party of the second part, the stock being $50 per share. The party of the second part also agree to keep said lines in repair, and deliver them and all their appertenances covered by this agreement over to the party of the first part, at the expiration of this lease, in as good working order as they now are. It is also understood and agreed between the parties hereto, that the party of the first part shall have the privilege of making the usual quarterly dividend of $2 per share during the present month.” * * *
    Signed by the officers of the company under the corporate seal.
    To the agreement was appended—
    “By.the authority conferred upon me by the Western Union Telegraph Company, as per resolution hereunto attached, I hereby agree on behalf of said Western Union Telegraph Company, to exchange at the rate of $1400 of the Western Union Telegraph Company’s stock, for $2000 of the stock in the ‘.Atlantic & Ohio Telegraph Company;” or to pay in cash $70 per share for the stock of the said ‘Atlantic & Ohio Telegraph Company.’ This agreement not to be binding after the 16th day of May next.
    “Philadelphia, April 15th 1864. J. H. Wade.”
    They then called W. II. Abell, auditor of the Western Union Telegraph Company. He testified that the first interest under the lease was paid in July 1864; the number of shares outstanding not owned by the company was 410; they were reduced in April 1869 to 189. Witness gave a statement of ■ dividends declared by the Western Union Telegraph Company. He testified : — “ They are applied to the Atlantic & Ohio Line, as that represents the entire amount made by the Western Union Co., in proportion to its length of line; — on the whole capital not including outstanding stock; — it shows what the dividends were on that part held by'the defendants.” The statement was headed :
    “Interest paid by Western Union Telegraph Company to Atlantic and Ohio stockholders.”
    It commenced July 1864, and ended April 1869, on different numbers of shares of stock, from 410 in 1864 to 130 in 1864, the rate of dividend of 10 per cent, per annum paid quarterly, and the aggregate amount of dividends during the period was $3685.
    II. H. Shillingford testified, that as treasurer of defendants he had received for some' time from the Western Union Co. dividends at 10 per cent, for all the stockholders of the defendants except the Western Union Co.; afterwards that company remitted directly to the stockholders.
    Judge Pearson charged: — ■
    “ The Atlantic and Ohio Telegraph Company was incorporated under the laws of Pennsylvania, with a capital stock of $650,000, went into operation, and at the time of lease to Western Union Company, was declaring dividends of 13 per cent, per annum. On the 15th day of April 1864 this lease was made, by which it was agreed to pay 10 per cent, per annum to the stockholders of the company on the par value of the stock, excepting the amount owned at the time of each payment by the lessee, and the tenant to pay all taxes. This sum of 10 per cent, was the amount on which the tax on capital stock must be computed under the various Acts of Assembly. No returns were made to the auditor-general by the Atlantic and Ohio Company or its lessee for the years 1864, 1865, 1866 and 1867, until produced by repeated solicitations; but in October 1867 Mr. Shillingford, the treasurer, made his report under oath, as required by law, showing that 10 per cent, dividends were made on the capital stock, that being the sum paid by him to each stockholder, except the Western Union Company, which settled its affairs in its own way. The amount of its dividends was not furnished to the treasurer to be paid out. The company was subject to a penalty of 10 per cent, on each year’s taxes for its neglect to report. This was included in the settlement ; and as to the exaction of the penalty, no exception is taken in the specifications,'consequently that is not in the issue. The return made by the treasurer is primá facie correct and binding on the company, until a mistake is clearly proved. The error is attempted to be established by showing that the Western Union Company made no profits equal to 10 per cent, dividends on the stock of the Atlantic and Ohio Company. Only about one-half of that sum was divided among its stockholders on its whole lines, nor would this company, if standing alone, have made such profits. It is conceded that the outstanding stock was paid that amount; but it is said that the contract would not have been made but for the privilege of absorbing the stock of that company, as provided in the lease. [We are unable to see how, that stock is absorbed. If the individual stockholders transferred to the Western Union after the lease, that company, if it can hold it at all, retains it intact, — it still remains the stock of the Atlantic and Ohio Company, and is entitled to its 10 per cent, dividends. If sold to others, the purchasers could demand the 10 per cent, according to the lease, and if no dividends are claimed on the stock by the Western Union Company, the state has the right to treat the stock as of the value paid to those receiving dividends.] We greatly doubt the right of the Western Union Company to buy this stock, as no authority is shown in its charter to make such purchases: but even if it could be held by its officers as trustees, it is still outstanding, and entitled to the dividends. By such a purchase the value of stock in a Pennsylvania corporation cannot be destroyed or lessened, so as to affect the right of the state to its taxes. The state is not bound to accept the dividends made by a corporation it never chartered in lieu of one of its own creation. [We are of the opinion that the amount of dividends paid to the stockholders of the Atlantic and Ohio Company is the true and proper evidence of the vaiue of the stock under the Act of Assembly; that no sufficient evidence is shown of any error in the report of the treasurer, which must, under all of the circumstances, be taken to have been correct, and therefore your verdict must be in favor of the Commonwealth for the amount fixed by the settlement, as it is conceded to have been predicated of that return. On the sum so found due you will compute interest for the time and at the rate fixed by the Act of Assembly to which we have referred.”]
    The verdict was for the plaintiff for $15,684.49.
    The defendants took out a writ of error, assigning for error the parts of the charge included in brackets.

      G. L. Crawford and D. Fleming (with whom was B. H. Brewster), for plaintiffs in error.

      L. W. Smith and F. C. Brewster, Attorney-General, for Commonwealth, defendant in error.
   The opinion of the court was delivered, July 7th 1870, by

Thompson, C. J.

It seems to us, that the only question in the cause is, whether the court below, in regarding the return of the treasurer of the Ohio and Atlantic Telegraph Company to the auditor-general, as the true evidence of what dividends it declared for the years embraced by the settlement in the auditor-general’s office, committed an error. We think it did not. In looking at the (question before us, confusion begins only when we allow our attention to be attracted to the relation existing between the Atlantic and Ohio Company and the Western Union Company. But what has the state to do with the last-named company in enforcing her claim upon the former ? Literally nothing. She is dealing with her own corporation, and acting solely on the evidence of its doings in regard to the subject of its liability to taxes, viz., dividends made or declared. This is shown by its proper officer, the treasurer, in his return to the auditor-general; and the basis of that return is the dividends declared and paid. The company admits by its instrument under seal, that its stockholders are to receive from another company, for the use of its lines, money enough to enable it to divide 10 per cent, amongst all its stockholders, except stock held by its lessee. The latter chose to pay itself what it pleased. Was not this contract and its execution sufficient to.prove a proper basis of calculation in regard to all the stock ? Any other basis would have been wrong in regard to the state. She had nothing to do with the trades and bargains between these two companies. She has a mode of estimating and' collecting her taxes from her own corporations, no matter who holds the stock. By whomsoever the stock is held the measure of the tax is upon the dividends declared, and no such thing as partial dividends is ever to be presumed. When a dividend is declared, that gives the measure and furnishes the rule for the tax. Dividends were declared for all the years to which the settlements apply, and the basis of the settlement in the auditor-general’s office was faultless. We have been shown no error in any part of the record, and the judgment is

Affirmed.


author: Sharswood, J.

text:
    Delaware Township versus Greenwood Township.
    1. In controversies between districts for the poor, the jurisdiction is in the Quarter Sessions.
    2. A promise by the overseers of one district to another cannot divest the jurisdiction.
    8. Directors of Chester v. Malany, 14 P. F. Smith 144, recognised as to this point.
    4. Consent cannot give jurisdiction.
    May 19th 1870.
    Before Thompson, C. J., Read, Agnew and Sharswood, JJ.
    Error to the Court of Common Pleas of Juniata county: No. 67, to May Term 1870.
    This case originated in an action before a justice-of the peace by the Overseers of the Poor of Delaware township against the Overseers of the Poor of Greenwood township, to recover for the support during sickness, and funeral expenses of.Samuel Simpson, a pauper of the defendants. The case was removed into the Court of Common Pleas by appeal to February Term 1869. The plaintiffs declared in assumpsit.
    The plaintiffs gave evidence of the settlement of the pauper in Greenwood township; they also gave evidence that the pauper fell sick in Delaware township and could not be removed without endangering his life, and that one of the overseers of Greenwood directed the plaintiffs, after the death of the pauper, “to go on and pay all expenses and he would levy a tax and pay the whole bill.”
    The plaintiffs submitted four points.
    The court (Graham, P. J.) referred to the facts in the case and the law, and, in conclusion, charged :—
    “ I do not consider that it would alter the law of the case even if the promise was unconditional, for if a promise was made, payment must be enforced in the Quarter Sessions, in the mode required by the Act of 1836. "We therefore answer the points presented by plaintiffs’ counsel in the negative, and instruct you that the plaintiffs cannot recover in the present form of action, and it is your duty to find for the defendants.”
    The verdict was for the defendants.

      The plaintiffs took out a writ of error, and assigned for error the charge of the court.

      Parker & Alexander, for plaintiffs in error,
    cited Act of June 13th 1836, §§ 7, 23, Pamph. L. 542, Purd. 795, 796, pl. 8, 11; Bradford Township v. Keating Township, 3 Casey 275; Directors of Chester v. Worthington, 2 Wright 160 ; Directors of Westmoreland County v. Murry, 8 Casey 178; N. Whitehall v. S. Whitehall, 3 S. & R. 128; Overseers v. Kline, 9 Barr 219.

      E. S. Doty & Son, for defendants in error,
    cited Act of March 21st 1806, § 13, 4 Sm. Laws 432, Purd. 41, pl. 5; Bowman v. Herr, 1 Penna. R. 282; Downer v. Downer, 9 Watts 60; Craven v. Bleakney, Id. 19; Strickler v. Sheaffer, 5 Barr 240; Mohler’s Appeal, 8 Id. 26 ; Thomas v. Simpson, 3 Id. 60 ; Seider v. Seider, 5 Whart. 208; Myers v. Black, 5 Harris 193; Ashford v. Ewing, 1 Casey 213.
   The opinion of the court was delivered, July 7th 1870, by

Sharswood, J.

— In The Directors of the Poor of Chester County v. Malany, argued at January Term 1870, we had occasion to consider the subject of the jurisdiction in pauper cases, and it was held that, in controversies between contending townships, the jurisdiction was exclusively in the Quarter Sessions, by virtue of the 23d section of the Act of Assembly of June 13th 1836, Pamph. L. 530, and the 13th section of the Act of March 21st 1806, 4 Sm. L. 332. Nor can a promise by the overseers of one township to another divest the jurisdiction. If the township was not legally liable for the maintenance of the pauper, the promise of the overseers could not impose that responsibility upon it: Berks County v. Pile, 6 Harris 493. Nor can consent give jurisdiction. There was no error therefore in the charge of the learned judge below directing a verdict for the defendants.

Judgment affirmed.


text:
    The Delaware, Lackawanna and Western Railroad Co. versus The Commonwealth.
    1. On an appeal from a settlement of the accounting officers of the Commonwealth, no point can be reviewed unless specified in taking the appeal.
    2. It is the right of financial officers of a corporation to retain the three-mill tax under the Act of April 29th 1844 without assessment by the county officers.
    3. The tax laws prior to the Act of April 30th 1864 imposed a tax on corporation bonds in the hands of non-residents.

      4. The Act of 1864 provides a remedy for collecting the tax out of the resources within the legislative jurisdiction of the Commonwealth.
    5. Maltby ». Columbia and Reading Railroad, 2 P. P. Smith 140, adopted.
    May 19th and 20th 1870.
    Before Thompson, O. J., Read, Agnew and Sharswood, JJ.
    Error to the Court of Common Pleas of Dawphm county: No. 13, to May Term 1870.
    This was an appeal by The Delaware, Lackawanna and Western Railroad Company from the settlement of the accounting officers, made November 18th 1867. The tax was upon the funded debt of the company, consisting of bonds amounting to about $3,500,000, secured by mortgages on its road, franchises and real estate in Pennsylvania. Of these bonds it appeared that about $2,000,000 were held by citizens of other states, about $100,000 by foreigners, and the remainder by Pennsylvanians.
    The amount of tax found by the settlement to be due by the company was $18,477.76.
    The specifications on the appeal were: 1. The Act of April 30th 1864 was not applicable, inasmuch as there was no law imposing a tax on the company’s bonds. 2. There was no law existing at the passage of the Act of 1864, imposing a tax on the bonds of the company or those held by non-residents of the Commonwealth. 3. No tax had been assessed on the bonds or their interest when the interest on which the tax is charged was paid, and the company was not bound to retain the tax from the interest. 4. The bonds are principally held by non-residents of Pennsylvania, and therefore not subject to the tax.
    The appeal was tried May 6th 1869, before Pearson, P. J., who charged the jury: * * *
    “ [The first question presented is, are these mortgages and the money they secure taxable, and taxed under our laws ? They are certainly embraced within the words of the 32d section of the Act of April 29th 1844; although we might infer that it was the legislative intention to have the tax assessed against the holder of the mortgage or debt, in the ordinary method of assessing taxes, especially as the same obligations were made taxable for county, township and school purposes, by various laws. The Act of May 1st 1854 shows clearly the intention to assess these obligations for state purposes only, and they are exonerated from all other taxes. Although we may fairly infer the -legislative intention to impose this tax for state purposes, yet no method was devised of ascertaining or collecting the amount until the Act of April 30th 1864 was passed, the 3d section of which required a. full return of all corporation indebtedness to be made to the auditor-general, and the tax to be retained for the use of the state, by the corporation officers, who paid the interest.] A similar provision is found in the 4th section in regard to county or municipal indebtedness. This was a public law, of which the respective officers were required to take notice, without their attention being called to its provisions by the state accounting department. [That the tax now in controversy is valid and binding both on the corporation and its creditor is clearly settled in Maltby v. The Columbia and Reading Railroad Company, 2 P. E. Smith 140, and that too whether the creditor resides in Pennsylvania or elsewhere. The non-resident can be taxed for the protection which his debt receives from our laws by granting and securing the franchises of the company to which he has intrusted his money.] * * * [It is also contended that this law impairs the obligation of contracts, by taking off a portion of the creditor’s claimbut that is, in all cases, a consequence of taxation. It does not enable the debtor to discharge his obligation with a less sum, but requires the corporation to become the collector of the tax for the state, and pay the amount into the public treasury, instead of giving it to the creditor, who would not otherwise pay his taxes.] * * * We are therefore of the opinion that this tax could lawfully be assessed on non-residents, as well as residents of the state; [That the officers of this corporation could be and were required to collect the tax, and it was their duty to retain it at the time of paying the interest to their creditors; That the law requiring them to retain and pay it over was a public statute, of which they were bound to take notice, without any warning from the department, and the corporation defendant is now liable for the amount thereof, with interest at the rate of 12 per cent, from the expiration of thirty days from the time of settlement.]
    “ Defendant also raised the point that the repeal of the tax laws by the Act of May 1st 1868, repealed the laws under which this tax was assessed, and discharged the same. Which was overruled by the court, and an exception sealed. This made part of the charge.”
    The verdict was for the Commonwealth for $22,558.05.
    The company took out a writ of error-, and assigned for error the parts of the charge in brackets and overruling their point.
    Section 3 of the Act of April 30th 1864, Pamph. L. 219, Purd. 1378, pi. 4, under which this tax is claimed, is as follow's :—
    “ That every president, treasurer, cashier, or other officer of any company incorporated, or that may hereafter be incorporated, which pays interest to its depositors, bondholders or other creditors, upon which, by the laws of the Commonwealth, a- state tax is imposed, shall, before the payment of the same, retain from said depositors, bondholders or creditors, the amount of state tax imposed by existing laws, and shall pay over the same to the state treasurer; and that all the laws regulating the mode of such payment, in regard to treasurers of counties, cities and boroughs, be and the same are hereby extended to the financial officers thereof, and they are hereby required to collect and pay over the taxes due to the state, on such payments of interest as provided in this section, to be done by officers of incorporated companies; and in case of any neglecting or refusing to retain the same, he shall become personally liable for the amount.”
    By the 16th section of the Act of May 1st 1868, to revise, amend and consolidate the laws taxing incorporations, &c., Pamph. L. 114, Purd. 1637, pi. 33, the 3d section of the Act of 1864 (amongst others) was repealed, so far as it was “ altered or supplied” by the Act of 1868. The Act of April 24th 1869, Pamph. L. 94, enacted that the repealing clause of the Act of 1868 should be read “ except so far as shall be necessary to enforce the collection, &c., of taxes assessed, &c., under said acts,” &c.

      J. W. Simonton, for plaintiff in error.
    This was a tax on the bondholder, not on the company: Clopton v. Phila. and R. Railroad, 4 P. F. Smith 356. That government taxation is to be anticipated when a contract is made (Maltby v. Reading & Col’a. Railroad, 2 P. F. Smith 148), is predicated of the fact that both parties are subject to the jurisdiction of the taxing power: Ogden v. Sanders, 12 Wheat. 213; Baldwin v. Hale, 1 Wall. 223; Story on Conflict of Laws, § 341. The obligation of a contract may be impaired by taxation: Iron City Bank v. Pittsburg, 1 Wright 340; Cooley on Stat. and Const. Law 280, 479. A state cannot bind property out of its territory: Story’s Conflict of Laws, §§ 17-20; Shaw v. Robbins, 7 Curtis’s Sup. Court Decisions 227, in note to Ogden v. Sanders, supra; Kelley v. Drury, 9 Allen 27. The bonds were taxable only in the state where the bondholder resides : McKeen v. Northampton, 13 Wright 519; Phila. Asso’n. v. Wood, 3 Wright 80. This is a levy upon bondholders who have no notice. Bonds owned in another state are not taxable in New Jersey: State v. Ross, 3 Zabriskie 517. So in other states: Davenport v. Railroad, 12 Iowa 539; Union Bank v. State, 9 Yerger 490; Angell & Ames on Corp., § 458. The purpose of the Act of 1864 was not to impose but collect a tax: Maltby v. Col'a. and R. Railroad, supra. He referred also to Acts of April 29th 1844, Pamph. L. 497, Purd. 949; May 1st 1854, § 1, Pamph. L. 535, Purd. 942, pl. 77.

      J. M. McClure and F. C. Brewster,
    Attorney-General, for Commonwealth, referred to the Acts of 1864: Hood’s Estate, 9 Harris 114; Maltby v. Col’a. and R. Railroad, supra.

   The opinion of the court was delivered, July 7th 1870, by

Thompson, C. J.

In Porter v. The Commonwealth, 1 Penna. R. 281, it was explicitly resolved that no point was examinable on the trial of an appeal from the 'Settlement of an account in the auditor-general’s office by the appellate court, nor reviewable im this court, unless it had been specified as a ground of objection to the settlement on taking the appeal. This is an express provision of the Act of 30th March 1811, § 5, Pamph. L. 230. The provision is that any person dissatisfied with any such settlement may appeal to the Court of Common Pleas of the county in which the seat of government may then be : u Provided, however, that the appeal be filed in the office of the auditor-general within sixty days after notice of such settlement, accompanied with specifications of objections to the said settlement.” As to this requirement, Gibson, C. J., said in the case referred to: “ As there is no reason to appeal in respect to points that are admitted, it would be flagrantly unjust to permit the accountant to hold in reserve anything that might have been allowed had it been urged at the settlement, and thus subject the Commonwealth to expense, and her officers to vexation without just cause.” In The Commonwealth v. Porter (a different party), 9 Harris 385, Lowrie, J., said: “But no appeal is allowed without a specification of objections to the decision complained of. In this case the accountant filed a specification to the principal items of the account as stated by the auditor-general, but none to the item of interest. How then could the question of interest be raised on the appeal ?” and in support of the ruling he cited the case referred to above. Both of these cases show that only so far as the specifications go, are the questions raised in the appellate court.

In taking this appeal, the specifications of objections to the account settled were:—

1st. That the Act of 1864 did not apply to the appellant, inasmuch as there is no law of Pennsylvania imposing a state tax upon the bonds, or the interest upon the bonds of their company.

2d. “ The Act of April 30th 1864, under which the aforesaid settlement was made, imposes a duty upon the company to retain from the bondholders the amount of taxes imposed by existing laws,” and there was no existing law before the Act of April 1864, imposing any tax upon the bonds of the company, or held by persons non-resident in this Commonwealth.

3d. “ No tax had been assessed upon the bondholders on the said bonds or the interest due thereon, when the said payments of interest were made upon the tax as charged by the said settlement, and the said company was not therefore legally bound to deduct or retain from the interest the tax charged against it in the said settlement.”

4th. Said bonds are principally held by non-residents of Pennsylvania, and are therefore not subject to said tax.

These were the objections filed by the company to the settlement in the auditor-general’s office, and were the only questions the court below could legally take cognisance of. This is not only so by force of the decisions referred to, but by force of the terms of the Act of 1806, which require that a remedy specially provided by statute shall be strictly followed.

The learned court committed no error, as claimed in the 1st assignment of error, supposing it to contain, in whole or in part, the first objection filed to the settlement in the auditor-general’s office. The Act of May 1st 1854 expressly subjects certificates of loans and bonds of railroad companies to taxation for “ state purposes only.” This relieved them from a portion of the burthens imposed by the Act 29th April 1844. The right of the financial ofiicers of the corporation to retain the three-mill tax, under the Act of 1844, out of the interest payable' to loan or bondholders of the company, under the Act of 30th April 1864, without an assessment by the county commissioners or assessing officers, was maintained to be undoubted in Maltby v. The Reading and Columbia Bailroad Co., 2 P. F. Smith 140, and reasserted in The Commonwealth v. The Phoenix Iron Co., not yet reported. The question is therefore settled.

The 2d specification of objection, filed on taking the appeal, denies that there was any existing law prior to the Act of 1864, imposing a tax upon the bonds of the appellants in the hands of non-resident bondholders. That question is also res adjudicata: Maltby v. The Reading and Columbia Railroad Co., supra. As to the third exception that the retention of the tax impairs the obligation of the bond or loanholder’s contract, it has been over and over again overruled. The sovereign right to impose a tax on property to which it gives protection is not to be denied, without in a measure upturning organized society entirely. The Act of 1864 provides a remedy for collecting it out of resources within the legislative jurisdiction of the Commonwealth. See the case last cited, in which this is ruled against the position assumed.

None of the remaining questions are raised in the specifications of objections filed, and are not therefore here for adjudication. The point urged that the company was not required to retain, but only its officers, is not hinted at in the specifications of objections. On the contrary, it is expressly admitted to be the duty of the corporation to retain the tax from bondholders by the Act of 1864. This must have been an after-thought, but after-thoughts are not allowable by the Act of 1811.

On the trial the point was raised that the Act of 1864, under which the company had been charged, was repealed after the settlement by the Act of May 1st 1868. But before the trial of that appeal the mistake, if a mistake, in the Act of 1868 had been corrected by the Act of 24th of April 1869. The trial was held May 6th 1869. I think this would have been a sufficient answer to the plea of a repeal. The Act of 1868 was but a substitute at least for existing laws, and I would incline to the opinion expressed in Wright v. Oakley, 5 Metc. (Mass.), by Shaw, C. J., that the repealing clause took effect only so far as the substitute took effect, and coincidental with it. The act was intended only for a consolidation of previous acts into a general system, and was not designed as relinquishing any claim of the Commonwealth. The claim for the tax in question was not released by the act, and if the increased rate of interest could he claimed to be a penalty on this precise aspect of the case, the point ought to have been made. It was not; but an exception was taken to the direction of the learned judge to the jury to find for the Commonwealth, with interest at the rate of 12 per cent, instead of 6, as allowed by law, when the settlement was made. This was not made an objection to the settlement when the appeal was taken, and on the principles stated in the outset of this opinion, is not now a question for examination. Seeing nothing else requiring notice,

The judgment is affirmed.


author: Agnew, J.

text:
    The Pacific and Atlantic Telegraph Co. versus The Commonwealth.
    The Act of May 1st 1868, consolidating the tax laws, is prospective in its operation and therefore in its repealing clause, and did not affect settlements made before its passage.
    May 20th 1870.
    Before Thompson, C. J., Read, Aghew and Sharswood, JJ.
    Error to the Court of Common Pleas of Dauphin county: No. 52 and 53, to May Term 1870.
    On the 10th of February 1869, the accounting officers of the Commonwealth settled two accounts against the Pacific and Atlantic Telegraph Company, one for tax on net earnings amounting to $1607.73, the other on capital stock to $2917.52.
    On the 18th of May 1869, the Commonwealth instituted two actions against the company for the recovery of these sums, and on the same day declarations were filed. On the 20th of July, the company presented to the auditor-general an appeal from the taxation with specification, viz.:
    “ That at the time said settlement was made, there was no law in existence authorizing the settlement of tax against the said company on capital stock, for the years 1866 and 1867 ; the Act of April 12th 1859 having been repealed by the Act of May 1st 1868.”
    The auditor-general would not allow the appeal because “ not offered within sixty days from notice of settlement.” The appeal and specification were filed in the cases in court. On the same 20th of July the company filed this affidavit of defence, viz.: that they had “ a good defence to part of plaintiff’s demand in this case, the nature and character of which is, that the settlement of the accounting officers of the Commonwealth so far as regards the tax on capital stock of the company for the years 1866 and 1867, was made without authority of law, there being at the time no law in existence authorizing such settlement or requiring said company to pay any such tax for said years.”
    The 16th section of the Act of May 1st 1868 repealed certain sections of the Act of April 12th 1859 under which this tax was laid so far as they were by the Act of 1868 “ altered or supplied.” Pearson, P. J., in delivering the opinion of the court, said: * * * “ The first and very serious objection to the sufficiency of this affidavit is, that it does not negative the fact of notice of the settlement at the department, although that is averred in the narr. to have been given within thirty days after the same was made, and a copy thereof sent to the company. Besides the law would presume that the officers did their duty, and they were required to give notice.” * * *
    “ The appeal in this case was tendered and offered to be taken on the 20th of July, which is in time so far as regards the notice by suit, but the auditor-general refused the appeal on the ground that actual notice had been given. This is also averred in the narr., and not answered by the affidavit as already stated. We must, therefore, as regards this affidavit, take it as conclusive that the defendant was duly notified and failed to appear in time; the consequence is, it is concluded by the settlement. Can this court take into consideration the repeal of the laws under which the tax was assessed ? We think not, if the settlement is conclusive. It is just as fixed and determined as the judgment of a court. It is said, however, that the laws having been repealed under which these taxes were assessed, there was a total want of jurisdiction, and the action of the state officers is a nullity. They certainly had general jurisdiction over the subject of taxes assessed against this corporation, and to determine for what years the same was due. If they decided erroneously, either as to particular years, or the general amount, the mode of redress was by appeal. The affidavit of defence, which should be full in all of its parts, does not even state that one had been taken or offered. A few words as to the effect of the repealing the laws under which a portion of these taxes were assessed for the years 1866 and 1867. * * * The legislature in consolidating all of the tax laws against corporations, inadvertently repealed the former statutes without providing for collecting the outstanding taxes assessed under the repealed laws. We have no doubt that it was not the intention of the legislature to exonerate or discharge the debtors to the government, but the legislature designed that the new laws should go into effect at the time the old ones ceased to act.” * * *

      The court entered judgment in each case for want of a sufficient affidavit of defence: in the first case the judgment was for $1750.76 ; in the second for $3177.14.
    The defendants took out writs of error and assigned the entering of judgment for error.

      S. J. M. McCarrol and C. B. M. Smith (with whom was B. Fleming), for plaintiffs in error,
    referred to Acts of April 12th 1859, Pamph. L. 529, May 1st 1868, Pamph. L. 114, Purd. 951, pl. 127, 1537, pl. 33. As to the repeal: Sedgwick on Statutes 129, 132; Commonwealth v. Duane, 1 Binney 601; Stoever v. Immel, 1 Watts 258; Butler v. Palmer, 1 Hill 324; Hampton v. Commonwealth, 7 Harris 329; Bedford v. Shilling, 4 S. & R. 401; Sedgwick on Statutes 190, 191, 202, 231, 295, 307-311; United States v. Fisher, 2 Cranch 358; The Paulina v. United States, 7 Id. 52.

      J. McClure and F. Carroll Brewster, Attorney-General, for the Commonwealth, defendant in error.
    — As to notice of settlement: Hutchinson v. Commonwealth, 6 Barr 124. As to repeal, they referred to Act of April 24th 1869, Pamph. L. 69, which enacted that the repealing clause of the Act of 1868 should be read “ except so far as shall be necessary to collect taxes assessed,” &c.: Laxawaxen Turnpike v. Com., 9 Barr 20; Moore v. Houston, 3 S. & R. 185; Albertson v. Robeson, 1 Dallas 9; Hickory Tree Road, 7 Wright 139; Uwchlan Township Road, 6 Casey 156; Brinker v. Brinker, 7 Barr 53; Mon. Navigation Co. v. Coons, 6 W. & S. 101; Susquehanna Canal Co. v. Wright, 9 Id. 9; Attorney-General v. Pougett, 2 Price 381.
   The opinion of the court was delivered, July 7th 1870, by

Agnew, J.

— We are inclined to think the court below was right on the question of notice, which the affidavit of defence failed to deny; but it is unnecessary to decide that question; as we are of opinion the Act of 12th April 1859, and the 1st, 2d, 3d, 5th and 6th sections of the Act of April 80th 1864 are not repealed so far as they involve the purpose of the settlements in question. It would be difficult to answer the argument of the plaintiff in error, if the repeal contained in the 16th section of the Act of May 1st 1868 were absolute. It is not, however, the repealing clause being qualified so as to repeal former acts only so far as they are altered and supplied by the Act of May 1st 1868. If we examine the Act of May 1st 1868 we shall find it entirely prospective in its operation, and consequently prospective only in its repeal; for it is only in this respect the act alters and supplies former acts. Hereafter, says the 1st section, no company shall go into operation without being registered. Hereafter, says the 2d section, it shall be tbe duty of corporation officers to make tbe annual returns required for taxation. So in all tbe following sections tbe language imports future action. Tbe Act of May 1st 1868 was drafted and reported by a commission consisting of tbe auditor-general, secretary of tbe Commonwealth and state treasurer, under tbe Act of 12th April 1867, “to revise, collate and digest all public acts and statutes regulating and relating to the system of taxation.” It is not likely that gentlemen so familiar with tbe system of state taxation of corporations would intend an absolute repeal, and a consequent loss of all former uncollected taxes. , No doubt tbe repealing clause was drafted in terms to avoid this effect, and therefore to extend no farther than tbe act itself was intended to operate, to wit, upon future taxation. Hence tbe qualified language of tbe clause. Tbe settlement of accounts and tbe proceedings to enforce payment do not depend upon the laws repealed, but upon general laws, not repealed.

Tbe judgments in those cases are therefore affirmed.