author: Aunew, J.

text:
    Bailey versus The Pittsburg and Connellsville Gas Coal and Coke Co.
    1. B., H. and S. were promoters of an association under the Act of July 18th 1863, with a capital of $200,000. F. and M. united with them ; after-wards, September 29th, land was purchased by B., H. and. S. for $125.000. A subscription book for stock was opened about October lst; _B._, II. and S. subscribed for stock, in the aggregate $50,000: the subscriptions of the others with a sixth name amounted to $133,000, which B., II. and S. certified under the act had been “paid in.” The land was taken by the company ; afterwards subscriptions were made by other persons. In a suit by tbe company against B. for his subscription, he alleged that the company, about October 1st, had agreed to take the land at an advance of §50,000, to be paid in stock, subject to the whole purchase-money and that his interest in the land by the authority of the corporators there, was appropriated to pay his stock. The court below charged that this allegation if proved, would be no defence as against subsequent stockholders unless cognisant of the facts when they subscribed or they affirmed it afterwards. Held to be correct.
    2. The arrangement was not a valid payment of the stock under the Act of 1863, which contemplates payment in money.
    3. The Act of July 18th 1863 (Mining Corporations), examined and construed.
    October 9tb 1871.
    Before Thompson, C. J., Bead, Agnew, Sharswood and Williams, JJ.
    Error to tbe Court of Common Pleas of Allegheny county: Of October and November Term 1870, No. 125.
    Tbis was an action of debt commenced July 3d 1869, by Tbe Pittsburg and Connellsville Gas Coal and Coke Company against James M. Bailey, for bis subscription to 150 shares of the capital stock of tbe plaintiffs at $100 per share. Tbe plaintiffs were incorporated under tbe Act of July 18th 1863, Pampb. L. (1864) p. 1102, Purd. 1347.
    On tbe trial, May 2d 1870, before Collier, J., tbe plaintiff gave in evidence:—
    “ Tbe Subscription-Book of Stock — Oct. 1864.
    Pittsburg and Connellsville Gas Coal and Coke Company.
    Capital stock, $200,000 — 2000 shares, $100 each.
    Directors: W. M. Faber, J. Meskimen, S. H. Hartman, J. P. Henderson and James M. Bailey.
    1864. We tbe undersigned do hereby subscribe for tbe number of shares set opposite our names, of tbe capital stock of tbe ‘Pittsburg and Connellsville Gas Coal and Coke Comp¡Sny.’ ” Names, Number of Shares. Amount.
    S. H. Hartman, 190
    J. Meskimen, 290
    D. B. Davidson, 250
    James M. Bailey, 150
    Wm. M. Faber, 290
    J. P. Henderson, 160
    (14 other subscribers, for 250 shares.)
    Tbe plaintiffs rested.
    Tbe defendant gave in evidence three certificates, dated November 7th 1864, to him for 50 shares each, of tbe capital stock of tbe company, and proved by J. P. Henderson, treasurer, that they had been issued in pursuance of an order of the board of directors.
    On cross-examination, Henderson said: “ No money was paid for tbis stock, it was paid in land about tbe time of tbe organization in September or October 1864; ” tbe same land paid for subscriptions of witness and S. H. Hartman, to whom certificates were issued in the same manner by order of the directors. The land had been bought from D. R. Davidson by defendant and the witness; he was the only one in the written contract; he paid no money on the land.
    Being re-examined, he said: “ The company went into possession of the land at the time. When the stock was subscribed, it was agreed it should be paid in land. This was the agreement of ail the five stockholders of the company.”
    The defendant rested.
    The plaintiff in rebuttal gave in evidence the certificate duly recorded November 3d 1864, of the formation of the company. It certified that the amount of the capital stock was $200,000 in shares of $100 each, that $133,000 of the stock had already been paid in; that it had been organized by the election of five directors. The certificate was signed and sworn to, October 26th 1864, by Bailey and Henderson, as president and treasurer, and also by them and S. H. Hartman as directors. This was accompanied by the proper certificate from the secretary of the Commonwealth.
    They gave in evidence also the affidavit of defence made by the defendant, that he had fully paid his subspription by a sale to the plaintiffs of his interest in a tract of land bought from D. R. Davidson, which was accepted by the company as payment of his subscription, and that' he owed them nothing.
    Also an agreement between Davidson and Henderson dated September 29th 1864, by which Davidson agreed to convey to Henderson his farm in Oonnellsville township, Payette county, for $125,000, payable $25,000 in hand, and $20,000 annually thereafter till the whole should be paid, Davidson to have the use of the surface except so much as might be necessary to carry on the coke and coal business till the first payment should be made. They gave in evidence also other agreements, about the property conveyed to the company, not necessary to specify.
    J. P. Henderson, called by the plaintiffs, testified that $133,000 sworn to as paid in, meant the land. Davidson never subscribed or paid anything; he was to take $25,000 as part payment for the land.
    .Under objection and exception the plaintiffs proved by a number of stockholders, that after the subscriptions of the defendant and his co-corporators, they had subscribed for stock and paid cash, and had never heard of the other stock having been paid in land.
    J. Meskimen. testified that he and Faber being in the coke business, and needing more capital, had agreed with defendants, Hartman and Henderson, after several meetings, to form a company ; the property of witness and Faber to be taken by the company at a schedule price agreed on; witness and Faber to take $58,000 in the stock. This was about October 1st, when the company took possession of their property. Faber opposed the purchase of the Davidson property. Defendant, Henderson and witness went to see Davidson, who agreed to sell it for $125,000, “and made an article that night.” It was not suggested that defendant, Henderson and Hartman were to pay their subscription in the Davidson land. Witness never heard that the land was to be put in at $175,000.
    They proved by Davidson that he had not signed the subscription-book, nor authorized any one to sign for him.
    They gave in evidence an agreement dated October 1st 1864, between Meskimen and Faber of the one part and the plaintiffs of the other part, by which Meskimen and Faber conveyed their property to the plaintiffs, specifying it, in consideration of which the plaintiffs agreed to issue to Meskimen and Faber $58,000 of the stock of the company, and to pay a mortgage of $8490 on the property conveyed, and a note of $3000. This agreement was executed before Meskimen’s and Faber’s subscription to the stock was taken, the plaintiffs’ company being then composed of the defendant, Henderson and Hartman.
    The defendant in answer gave evidence by Henderson that the Davidson land was purchased by him for himself, Hartman and the defendant. The terms of sale to the plaintiffs were, that the company should pay to the three $175,000 for the land, of which $50,000 was to be in stock; the balance was to be assumed by the company. The agreement was made the latter part of September 1864, shortly after the agreement with Davidson. It had been filed with the company, and the witness assigned it in 1867 after he had ceased to be a member. The stockholders of the company were defendant, Hartman, Meskimen, Faber and witness; the proposition to take the Davidson farm first came from the corporators and was approved by them ; after these transactions other persons became stockholders; all the directors assented to the payment of the stock in the Davidson land; the price was a fair and reasonable price.
    S. H. Hartman testified substantially as Henderson, and also ■ that he had paid nothing for the Davidson land, nor for the stock.
    The defendant also testified on cross-examination, that he had never paid anything on the land or for his stock. *
    There was evidence in rejoinder by the plaintiffs in answer to the defendant’s.
    The defendant submitted points, on which he asked the court to charge, and which with their answers will be found in the assignments of error.
    The verdict was for the plaintiffs for $19,975.
    The defendant took a writ of error, and assigned for error:—
    1. The court erred in refusing to charge as requested in defendant’s third point: “ That as between a corporation like the plaintiffs and the individuals establishing said corporation, the latter may sell and transfer unto such company an interest in real estate, and receive in payment therefor stock of the company, provided that said' sale be not induced by any fraud or misrepresentations ; that, in the present instance, if the jury believe that the defendant associated himself with Meskimen, Faber, Hartman and Henderson, to form the company plaintiff; that by mutual consent, Meskimen and Faber put their property into the company at an agreed valuation, and received payment therefor in stock of the company; that the defendants, Hartman and Henderson, put their interest in the Davidson tract into the company at an agreed valuation, and received payment therefor in stock of the company; that the said five persons, to wit, Meskimen, Faber, Hartman, Henderson and the defendant composed the entire body of corporators at the time, then the jury should find for the defendant;” and in charging the jury: “Admitting the arrangement set up by the defendant, that his subscription was agreed between himself, Hartman, Henderson, Faber and Meskimen, to be considered paid by the estimated increased valuation of the land purchased from Davidson to be true, it would be no defence as against subsequent stockholders, who had paid their subscriptions to the capital stock of the company, unless they were cognisant of the transaction before they subscribed, or, after having subscribed, they affirmed it;” and in stating in answer to said third point that the same was “ refused.”
    2. The court erred in refusing to charge as requested in defendant’s fourth point, viz.: “ That if the jury find that the plaintiff corporation accepted the defendant’s interest in the Davidson tract as payment of his capital stock, and has continued to hold and enjoy said interest for several years, and still owns and holds the same, never having offered to reconvey to defendant, then the plaintiff cannot recover in this action, and the verdict should be for the defendant.”
    3. The court erred in charging: “ Admitting the argument set up by defendant, that his subscription was agreed between himself, Hartman, Henderson, Faber and Meskimen, to be considered paid by the estimated increased valuation of the land purchased from Davidson to be true, it would be no defence as against subsequent stockholders, who had paid their subscriptions to the capital stock of the company in money, unless they were cognisant of the transaction before they subscribed, or, after having subscribed, they affirmed it.”

      G. Shiras, Jr., for plaintiff in error.
    The Act of July 18th 1863 does not require that stock shall be paid in money: If there was no fraud or misrepresentation the transaction was valid: Simons v. Vulcan Oil Co., 11 P. F. Smith 202; McElhenny’s Appeal, Id. 188; Ashhurst’s Appeal, 10 Id. 290 ; Bissell v. S. & N. J. Railroad Co., 22 N. J. 258. There should have been a tender of reconveyance of the land: Pearsoll v. Chapin, 8 Wright 12.

      J. Veech, for defendants in error.
    The Act of July 18th 1863 authorizes no other mode of paying for stock than in money. “ Sect. 16. * * * No note or obligation given by a stockholder, whether secured by pledge or otherwise, shall be considered as payment of any part of the capital stock.”
    “ Sect. 29. * * * No share shall be issued for less than its par value:” Patterson v. Arnold, 9 Wright 410. An organized corporation may do in relation to its stock, what the commissioners, promoters or associators, before incorporation, cannot do: Erie & Waterford Plank Road v. Brown, 1 Casey 157; Bavington v. Pittsburg and Steubenville Railroad, 10 Id. 358; Pittsburg and Connellsville Railroad v. Stewart, 5 Wright 54. The oath and certificate of October 26th 1864 being false, was, per se, such a fraud upon subsequent stockholders, as to entitle them in the name of the company to compel payment of the stock subscribed, by those certifiers, in cash: Henry v. Vermillion and Ashland Railroad, 17 Ohio Rep. 187 ; Minor v. Mechanics’ Bank, 1 Peters 65; Graff v. Pittsburg and Steubenville Railroad, 7 Casey 497; Robinson v. P. and Connellsville Railroad, 8 Casey 339; Bedford Railroad v. Bowser, 12 Wright 29; Caldwell v. Boyd, 7 P. F. Smith 321; McElhenny’s Appeal, Simons v. Vulcan Oil Co., supra.

   The opinion of the court was delivered, October 23d 1871, by

Aunew, J.

This action was brought to recover a subscription to the stock of the company. The plaintiffs having shown that no money was paid by Bailey when he obtained his certificate of stock, the defendant undertook to show that the stock of himself and Messrs. Hartman and Henderson was paid for upon an arrangement by which the company took a tract of coal-land from them at $175,000, which they had bought of D. R. Davidson at $125,000; the company to pay the whole sum of $125,000 to Davidson, and to credit them with the advance in the price, viz.: $50,000, in payment of their stock. By this arrrangement no money was paid, and this amount of stock represents nothing but an agreed advance in the price of land within less than a week from the time of its purchase. The corporation plaintiff, it is alleged, organized under the Act of 18th July 1863, the 1st section of which requires the formation of the association to be in writing. Whether then such a writing was entered into does not appear, the parties having contented themselves with giving in evidence only the certificate required by the law to be made, attested and recorded. It is testified that the company was organized on the 1st day of October 1864, the subscription-book bears date October 1864, and on that day, October 1st, the company, composed of Bailey, Hartman & Henderson took into the association Faber and Meskimen, as appears by their agreement of that date, while the purchase of Henderson from Davidson at $125,000 was made only on the 29th of September 1864. It is manifest no actual rise in the value of the property had taken place, and both Faber and Meskimen testify that they did not know and did not consent to the Davidson farm being put into the company at $175,000. It also appears from the testimony of both sides that the organization of the company was in contemplation before the purchase from Davidson, that several meetings had been held in reference to the subject, and Meskimen testifies, that the purchase of the Davidson farm was discussed and was opposed by Faber, and that he himself went up with Bailey and Henderson to see Davidson, who agreed to sell at $125,000, and the article was made for it that night. It is very clear from the whole evidence that if the company did take the farm from Messrs. Henderson, Bailey and Hartman, it was at an estimate only, and that these three gentlemen in fact paid nothing for their stock. This raises the question whether such an arrangement constitutes a valid payment of stock under the Act of 18th July 1863. Upon the supposition that the arrangement was not fraudulent and was consented to by all who were then members of the company, the court was asked to instruct the jury that the arrangement was valid, and that they should find for the defendant. The court refused so to charge, and said it would he no defence as against subsequent stockholders who had paid their subscriptions, unless they were cognisant of the transaction before they subscribed, or subsequently ratified it.

We discover no error in this answer. The subscription-hook of stock shows that the capital was to be $200,000, consisting of 2000 shares of $100 each, and that the stock of the five originators, Hartman, Meskimen, Bailey, Faber and Henderson, amounted to only 1080 shares, or $108,000. The recorded certificate also shows that the capital was to be $200,000, divided into shares of the par value of $100, and that but $133,000 had been then (October 26th 1864) paid in. This sum included an unauthorized and unpaid subscription in the name of D. R. Davidson. It is obvious, therefore, that the association contemplated the bringing in of other stockholders, besides the five original promoters of the scheme, to the extent of 920 shares, or $92,000. It is clearly not the case of an acceptance of land in payment of stock at an estimated value hv all the parties in interest. The five promoters were then, perhaps, the only corporators or subscribers to stock, but their scheme contemplated others who were to be affected by what they did, and who were to come in under the protection of the same law which authorized the origination of the scheme by the first promoters. It is clear, therefore, that their united consent among themselves, however binding it might be, had they been the holders of all the stock authorized by their scheme, coul'd not affect those whom they contemplated bringing in under the authority of the law, upon which they founded themselves. Such an interpretation of the law would make it the means of perpetrating the most stupendous schemes of fraud. A few individuals, founding themselves upon a highly inflated valuation of real estate, covered up and hidden under huge handbills, magniloquent descriptions, illuminated advertisements, and paid editorials, could easily draw real capital in hard cash from the dupes too often easily misled by such means. The law contemplates, we think, a stock founded on a payment in money, and not upon estimated values or mere securities for money. All its provisions tend to this belief. Thus, the power to call in the capital, is to “ assess upon each share of stock such sums of money as the company may think proper, not exceeding in the whole the amount at which each share was originally limited,” and “no note or obligation given by the stockholder, whether secured by pledge or otherwise, shall be considered as payment of any part of the capital stock:” § 16. A security by pledge of real estate would scarcely be valid as a payment under this clause. “After payment of the last instalment of capital stock,” the president and directors, with the treasurer and clerk, are bound to make out, sign and swear to a certificate “stating the amount of the capital so fixed and paid in,” and also upon an increase of the capital “added and paid in:” §§ 19 and 20. These certificates must be recorded in the office for recording deeds. If certificates be not so made and recorded, the officers referred to are made liable for all debts contracted by the company after thirty days from the payment of the last instalment : § 21. And by the 31st section, provision is made for filing a certificate with the auditor-general, signed and sworn to by the same officers, before the corporation shall commence business, setting forth the corporate name and purposes of the association, the amount of the capital stock, the amount already paid in and the par value of the shares; and by the 29th section, “ no share shall be issued for less than its par value.” From these, and other provisions of the law not referred to, it is very plain that the legislature contemplated the organization of every such corporation upon a'sound basis of actual cash capital, and intended to guard the public against unsound and illusory schemes. The material facts were to be placed of record where every one desiring to become a creditor or a stockholder could find them. But of what service will be all this precaution to either creditor or subsequent stockholder, if, instead of a “ paid-in” capital, he shall find in the end that it was a mere balloon, needing only to be pricked, to collapse and leave him penniless? It is obvious, that property bought on the 29th of September at $125,000, and put in as capital on the following 1st of October, or a few days later, at $175,000, of which not a dollar had been paid,, was no payment in money, or anything else of a substantial kind. Supposing the land to be worth $125,000, the additional $50,000 was simply an added estimate, wholly illusory as to the after or incoming subscribers provided for in the first organization. It was merely a scheme to let the promoters in, without payment of anything; while those to follow should furnish the money to carry on the business. Now, without charging or even assuming any fraudulent intent on part of the gentlemen who were the original promoters of the scheme, the mode adopted by them, however honestly intended, was a manifest non-compliance with the intention of the law, and a violation of the chief safeguard provided for the protection of the pnblic. The incoming subscribers embraced in the articles of association, and following after them, were entitled to a bonfi fide money-subscription from the first promoters, in making up the capital stock, which is the property of the entire company, and in which every subscriber, old or new, has an equal interest. The purchase of real and personal estate for the purposes of the corporation, authorized in the 30th section of the law, is the exercise of a different power by the corporation. When, by a proper subscription and payment of money, it has the possession of a capital in money, the interests of all the stockholders are motives to careful and prudent bargains, and will prevent the payment of their real cash for mere moonshine. Such will not be the case, however, where subscribers are antagonistic, and one set may obtain their stock at nominal values, while others have to pay money. Finding no error in the record,

The judgment is affirmed.


source: Caselaw Access Project

author: Sharswocd, J.

license: Public Domain

text:
    McKee versus Perchment.
    1. Aiken in a plan of lots, laid out an alley between the rear of two tiers and conveyed the lots, ninety-four feet in depth as bounding on the alley, to different persons, with use of the alley to each. The alley could not be abandoned without the consent of all the lot-holders.
    2. In an action by a lot-holder against another for obstructing the alley by a building, the defendant gave evidence that erections had been made up to the centre of the alley, and maintained for twenty-one years or more. Held, that the plaintiff might show by the acts and declarations of different former proprietors of the lots, that such occupation was for temporary purposes.
    3. The deed to defendant from a former grantee described the lot as ninety-four feet deep “ with the use of the alley." This was not a recital in the deed, but a description of the thing granted; and even if defendant’s grant- or had acquired title to the soil by abandonment, it was not conveyed to the defendant. '
    4. The plan of lots was not recorded, but was referred to in the deeds; this was notice to the defendant of the existence of the alley.
    October 9th 1871.
    Before Thompson, O. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the District Court of Allegheny county: No. Ill, of October and November Term 1870.
    This was an action on the case brought by John Perehment against Stewart McKee, on the 14th of May 1869, for obstructing the right of way, which the plaintiff claimed along the rear of lot's owned by the defendant.
    In 1844, David Aiken was the owner of a lot of ground in East Liberty, bounded on the north by the Greensburg turnpike, on the south by Shakespeare street, and on the east and west by opened alleys; being 120 feet front on Shakespea-re street and the turnpike, and 200 feet between those two streets on the alleys; and being lots Nos. 15 and 16 of another plot of Alexander Thompson. On the 30th of July 1844, Aiken divided this lot into eight smaller lots, each of 30 feet front, four on Shakespeare street and four on the turnpike; with a depth of 94 feet to a 12 feet alley; this alley had never been opened or used as such. At and for sometime before the commencement of this suit, the two lots on the extreme west, one on Shakespeare street, and the other on the turnpike, were owned by the defendant, the next two further east on the turnpike were owned by the plaintiff. The defendant erected and maintained a stable on the 12 feet appropriated in the plot for the alley, thus closing the plaintiff’s passage from the rear of his lot to the opened alley on the west.
    The annexed draft exhibits the location of the lots, streets and alleys.
    The case was tried, April 11th 1870, before Kirkpatrick, J.
    The plaintiff proved the laying out of the lots as above stated. He gave in evidence deed, August 2d 1844, from Aiken to Archibald Falconer, for the lots owned bp plaintiff, being part of lots 15 and 16 of Thompson’s plan, and described as fronting 60 feet on the turnpike, by 94 feet deep, to a 12 feet alley. “ Together with the free use of said 12 feet-alley, to be used by the said Falconer and his heirs and assigns as an alley or passage for ever, to have and to hold the said piece of ground, 60 feet on the turnpike, by 94 feet back, and the use of a 12 feet alley.” Deed, December 2d 1845, from Falconer to James Twist for part of lot 15, 30 feet front on the turnpike, “ by 94 feet back, with the use of a 12 feet alley.” Deed, December 4th 1845, Falconer to Thomas Newell for the remaining 30 feet, part of lot 16 on the turnpike. Deeds, Newell to McGowan, dated June 11th 1859, and Twist to McGowan, dated July 24th 1859, each for the 30 feet belonging to the grantors respectively. These three deeds contain the same reference to the alley: Deed, McGowan to the plaintiff for the whole 60 feet, “ To have and to hold said pieces or parcels of land, 60 feet on turnpike by 94 feet back, and the use of a 12 feet alley.” Deed, Aiken to Deborah Keeling, dated June 3d 1841, for 30 feet on the turnpike, “ 94 feet deep to a 12 feet alley. Being one-quarter part of lot No. 15, after said alley laid out by David Aiken was taken off lots Nos. 15 and 16, the free use of.which as an alley or passage is granted and confirmed to the said Deborah Keeling and her heirs and assigns for ever.” This lot is one owned by the defendant. Plaintiff gave evidence that the defendant.had erected and maintained a stable up to the centre line of the 12 feet reserved for the alley.

      The defendant gave in evidence, deed, dated June 7th 1841, Aiken to Joseph Graham, one-quarter of lot 15, beginning at an alley, &c., 106 feet from the turnpike and running by an alley laid out by Aiken, “ in the centre across lots No. 15 and 16 towards No. 16, 30 feet, thence 94 feet to Shakespeare street, being one-quarter of lot No. 15 after the said alley laid out by Aiken, was taken off lots 15 and 16, the free use of which as an alley or passage is hereby granted and confirmed to Joseph Graham aforesaid, his heirs and assigns for ever.” Graham conveyed this lot to Twist; Twist to Gamble; Gamble to Sprague; Sprague conveyed to the defendant on the 3d of February 1857, describing the lot (as in former deeds), as 94 feet deep to the alley; all the deeds containing the privilege of the alley in substantially the same terms as in Graham’s deed.
    On the 10th of February 1851, Deborah Keeling conveyed her lot to William McKee and the defendant, as described in Aiken’s deed to her, “ with a right to the use of the said alley.”
    W. Woolslayer, who since 1840, had been the owner of 60 feet, part of No. 16 on Shakespeare street and resided on it, testified that he had built a fence in the centre of the alley, which stood there until a year previously, when the plaintiff had removed his fence; all those who occupied west of witness had joined fences with him; the fence had been built the entire length through the centre of the alley and had stood there for twenty to twenty-five years. Falconer who owned part of No. 16, north of witness on the turnpike, built a stable to the centre of the alley shortly after witness had built his fence. Mrs. Keeling had built a fence along the centre of the alley about the same time. Falconer’s stable was not removed until plaintiff moved his fence; the defendant rebuilt the fence erected by Mrs. Keeling; witness planted trees and cultivated up to his fence for more than twenty-five years; Falconer’s stable and the coal-house of witness closed the alley; Mrs. Keeling had a stable which stood at the centre of the alley ; the defendant enlarged it by building over the top of it: other outbuildings were erected by the different owners of lots to the centre of the alley ; witness had never heard of any one asking for the alley until the plaintiff came.
    A number of other witnesses, including the defendant, testified substantially as Woolslayer: all concurring that there had been no demand for opening the alley until the plaintiff made one after becoming the owner of his lot.
    The plaintiff called Ann Huddle, the widow of Henry Huddle, who had owned 30 feet on Shakespeare street part of lot 16, south of plaintiff’s lot and the alley, and east of defendant’s lot. Her husband had bought the lot twenty-seven years before, and had occupied it fourteen years.
    The plaintiff proposed to prove by her that there was an understanding between the owner or owners of the lots in Aiken’s subdivision of lots that the alley might be used and cultivated to the centre thereof, until its use as an alley would be required by an adjoining owner, for the purpose of rehutting the alleged adverse enjoyment and abandonment, and to explain the defendant’s testimony as to the occupancy of the alley. The offer was objected to by the defendant, allowed by the court and bill of exceptions sealed.
    The witness testified that her husband a long time before had intended leaving the alley open, but at the request of some of the lot-holders had joined them in making the fence, with the understanding that the alley should be opened when called for. She also testified : “ I heard Mr. Huddle say that he put the fence on the line with the understanding that it was to remain there until the alley would be called for, when it would be opened.”'
    They called Charlotte Reynolds, who under objection by defendant and exception, testified to similar facts. Part of her testimony was as follows: “ Mr. and Mrs. McGowan, and William Woolslayer and myself, all talked of the subject of opening the alley. Mr. and Mrs. McGowan said they would leave it open if it was not for creating hard feeling. Mr. Woolslayer opposed it. He opened it afterwards when my husband opened ours.”
    The plaintiff gave other evidence to rebut the presumption of abandonment of the alley by the lot-owners.
    The following are points of the defendant with their answers:—
    2. If the jury find that Archibald Falconer (under whom plaintiff claims) did about the year 1845 join with the other lot-holders in building a fence through the middle of said alley, the entire length thereof, and otherwise obstructed the same by erecting side fences and a stable or other buildings up to the centre, and covering a portion thereof, and that this state of things so continued until after the plaintiff purchased from McGowan in 1869, the plaintiff cannot recover in this action.
    Answer: “ Affirmed, unless you find from the acts and declarations of the parties, which you will discover from the evidence of the case, if discoverable, that the intention in so obstructing the alley was merely temporary, and not permanent, and to be removed thereafter whenever required.”
    3. If the court refuse to charge, as requested in the 2d point, then they are requested to charge that if the jury believe that Archibald Falconer, in or about the year 1845, obstructed the said alley along the lots now owned by plaintiff, by erecting a fence and buildings up to, and through the middle of said alley, and cross fences to the centre thereof, with the intention on the part of said Falconer to abandon the use of said alley as such, and that these fences, &c., so continued from that time to the date of plaintiff’s purchase in 1860, then the verdict must be for the defendant, and especially so if the jury believe that the defendant was led by this appearance of things to erect a stable and other improvements upon the site of said alley, on his own premises, under the belief that the same had been permanently abandoned.
    Affirmed.
    4. If the jury believe that the defendant erected upon the site of the alleged alley a stable and other improvements, and that Peter McGowan, the then owner of the lots now owned by plaintiff, and through whom plaintiff claims title, stood by and knew of said erections being made, yet made no objections to them, nor to the obstruction of said alley by them, then McGowan would be estopped, so far as regards the defendant, from claiming a right of way over the site of said alley so obstructed, and the plaintiff, claiming title through McGowan, would in like manner be bound and estopped.
    Answer: “ Affirmed, if you find from all the evidence in the case that there was no agreement or understanding between these parties to the contrary; that is to say, if McKee by this conduct, intended to destroy the alley, and McGowan knew of this intention at the time.”
    6. Recitals in deeds estop only parties and privies, and the plaintiff being a stranger to the deeds in defendant’s claim of title, cannot take advantage of the recitals therein to estop the defendant from claiming and setting up that said alley or right of way was abandoned, or that it was extinguished by adverse user.
    Answer: “ Refused under the evidence of this case, whilst true as an abstract proposition. A party buying by a recorded plan, with street and alleys appertenant, would be entitled to all these privileges. The object of record is notice, and notice can be brought home without this record. The fact of notice is for the jury. All the deeds from Aiken call for this alley.”
    8. The declarations of Mrs. and Mr. McGowan, as sworn to by Mrs. Charlotte Reynolds, witness for plaintiff, should be entirely disregarded by the jury.

      9. The declarations of Henry Huddle, as sworn to by Mrs. Ann Huddle, are irrelevant and incompetent, and should be disregarded by the jury.
    Answer: “ Refused. We submit them to the jury as competent evidence. You will give them such credit and attach to them such and only such credit as you think them entitled to. This may be much, little, or nothing at all.”
    The verdict was for the plaintiff for 6 cents damages.
    The defendant took a writ of error from the Supreme Court. He there assigned for error:—
    I, 2. The admission of the testimony of Ann Huddle and Charlotte Reynolds.
    3, 4, 6, 6. The answers respectively to the defendant’s 4th, 6th, 8th and 9th points.
    7. The answers of the court to the defendant’s 2d, 3d, and 6th points are contradictory and calculated to mislead the jury.

      T. C. Lazear (with whom was J. R. Hopkins), for plaintiff in error.
    If a judge’s charge is contradictory, and misleads the jury, it is error: Selin v. Snyder, 11 S. & R. 324; Sampson v. Sampson, 4 Id. 333. As the plaintiff and those under whom he claims, are entire strangers to those deeds, the defendant is not thus estopped in plaintiffs’ favor, by any reoitals contained therein: 2 Washburn on Real Estate, 479; Miller v. Holman, 1 Grant’s Cases 243; Doe v. Errington, 6 Bingh. N. C. 79; Jackson v. Bull, 1 Johns. Cases 90; Jackson v. Brinckartoff, 3 Id. 103; Jackson v. Bradford, 4 Wend. 623; Corning v. Gould, 16 Id. 631.
    Twenty-one years’ occupation of land, adverse to a right of way and inconsistent with it, bars the right: Yeakle v. Nace, 2 Whart. 123; Crain v. Fox, 16 Barb. 184; 2 Kent’s Comm. 602 ; Taylor v. Hampton, 4 McCord 96; Sizer v. Devereux, 16 Barbour 160; Cox v. Freedley, 9 Casey 124.

      J. Mellon (with whom was S. A. McClurg), for defendant in error,
    cited Union Burial Ground v. Robinson, 5 Wharton 18; and note to Dovaston v. Payne, 2 Smith’s Leading Cases 219; Kirkham v. Sharp, 1 Wharton 323; Cope v. Grant, 7 Barr 488 ; Lindsay v. Lindeman, antea, p. 93.

       See Hall v. McCaughey, 1 P. F. Smith, 43.—Rep.

   The opinion of the court was delivered, October 16th 1871, by

Sharswocd, J.

The alley, which was the subject of controversy in this action, was laid out originally by David Aiken through the centre of two large lots which he owned, lying between the Greensburg and Pittsburg Turnpike Road and Shakespeare street, in the village of East Liberty, Allegheny county. The distance from the road to the street was 200 feet, and he divided the whole into several lots fronting on each, with a depth of 94 feet, leaving 12 feet for the alley in question. Over these 12 feet there was an express grant by him to each purchaser of an easement only. The principal defence set up on the trial was that the easement had been abandoned. It is plain that no one proprietor could do this. All the grantees of lots had an equal interest, and it required the concurrence of all. An enclosure upon any part of it would have been a disturbance of all, as it had an outlet at both ends. The defendant below and plaintiff here undertook to make out the defence by proving that it had been enclosed on each side by a fence built through the middle of it; that stables, coal-houses, privies had been erected, and trees and bushes planted on the soil over which it would otherwise have run. Now certainly, to rebut this evidence, it was entirely competent for the plaintiff below to prove by the acts and declarations of the different proprietors that the occupation and use of it in the manner stated were for temporary purposes only and not with any intention to abandon the easement. This disposes of the 1st, 2d, 5th and 6th assignments of error.

The 3d assignment complains of the answer of the learned judge below to the defendant’s 4th point, that if the grantor of the plaintiff stood by and saw the defendant erect a stable and other improvements on the site of the alley, he and the plaintiff claiming under him would be estopped from setting up any title to the easement. This the learned judge affirmed, with the qualification that there was no agreement or understanding between the several persons entitled to the privilege of the alley that erections of such a character might be made temporarily without prejudice to the right of any of those in whom the easement was vested to require the opening of it at some future day whenever it might become desirable. This is the proper interpretation of the language of the answer, and was a correct and necessary qualification of the point in view of the evidence which had been given in the cause by both the plaintiff and the defendant.

The 4th error assigned is to the answer of the learned judge to the 6th point of the defendant below, wffiich was, that recitals in deeds estop only parties and privies, and that the plaintiff, being a stranger to the deeds in the defendant’s chain of title, cannot take advantage of the recitals therein to estop the defendant from claiming and setting up that said alley or right of way was abandoned, or that it was extinguished by adverse user.” This was properly refused under the evidence in the cause. The deed, which the defendant had given in evidence and under which he claimed, from Peter Sprague and wife, dated February 4th 1857, conveyed to him the lot as 94 feet in depth to the line of the alley, “with the free use of said alley as laid out by David Aiken through lots Nos. 15 and 16.” This was not a recital in any sense of the word but a description of the thing granted. Even, therefore, if Peter Sprague had title to the soil of the alley, either by previous abandonment of the easement by those in whom it had been vested or by adverse user, it is clear that he did not grant it to Stewart McKee. He chose to restore it as he had a perfect right to do, so far at least as his lot was concerned, to its original condition as an alley or easement merely; and Stewart McKee, having accepted that conveyance, must show an extinguishment or adverse user subsequent to its date. The rule then that recitals in deeds are only binding on parties and privies, though it may have been true as an abstract proposition, had no application to the case. Though David Aiken’s plan was not recorded, the reference to it in this deed was notice to the defendant of its existence and of the alley laid down on it.

In regard to the 7th assignment of error, we perceive no such inconsistency or contradiction in the answers of the learned judge below as is pretended or anything calculated to mislead the jury.

Judgment affirmed.


author: Read, J.

text:
    Lorenz’s Appeal.
    1. A minor lived with his stepfather against whose land he held a lien. After the minor came of age, his guardian filed his account in which he charged himself with the lien, although not collected by him; and also took credit for it. The stepfather excepted to the account, alleging that his charge for supporting the minor which was disputed, should be deducted from the lien. The Orphans’ Court struck out the credit for the lien and allowed a credit for the claim for the minor’s support. Held to be error, the ward being the person to receive the lien and not the guardian.
    2. In a guardian’s account, a creditor of a ward cannot intervene between him and his guardian; therefore the Orphans’ Court had no jurisdiction.
    3. The ward had an. action at law for the lien, in which the stepfather might set up any legitimate defence.
    October 11th 1871.
    Before Thompson, 0. J., Read, Agnew, Sharswood and Williams, JJ.
    Appeal from the decree of the Orphans’ Court of Allegheny county: No. 136; to October and November Term 1871. In the matter of the account of Thomas Mellon, guardian, &c., of Frederick S. Lorenz, a minor.
    In January 1858, Hon. Thomas Mellon was appointed guardian, &c., of the minor, who was then about ten years of age, and had an estate amounting to nearly $12,000. The minor lived with his mother for fourteen or fifteen months, and she was paid in full for his boarding at the rate of $300 per annum. She then married William M. Grace, and the minor continued to live with him until shortly before his arrival at age. During that time the guardian paid to Grace $300 for boarding the minor. In 1864, Grace purchased a tract of land, on which there was an encumbrance of $2671 in favor of the minor for owelty in partition. After that Grace did not apply to the guardian for more money, because, as he testified, “ the property was subject to this debt and I owed it.”
    After the arrival of the ward at age, the guardian settled a final account, charging himself, amongst other things, with the abovesaid charge, amounting with interest to $3223.88, taking credit for payments actually made on account of the ward’s support, with other items of credit; and also taking credit for the whole amount of the charge on the land, the same being still unpaid by Grace.
    Grace filed exceptions to the credit claimed for the unpaid owelty, on the ground that the guardian should have allowed him for his support of the minor and reduced the sum due by him for the owelty to that extent. The claim of Grace for the support of the minor was disputed.
    The account and exceptions were referred to W. G. Hawkins, Jr., Esq., as auditor, who struck out the credit taken by the guardian for the owelty; credited him with $2500.88 to be paid Grace for support of the ward, and $723 as the balance still due by Grace for the owelty.
    The ward filed exceptions to the report, one of which was: That the ward having arrived at age and Grace’s claim being still unpaid, the Orphans’ Court had no jurisdiction to settle a disputed account between him and the ward. The other exceptions related to the merits of Grace’s claim.
    The court overruled the exceptions and confirmed the auditor’s report.
    Lorenz, the ward, appealed to the Supreme Court and assigned the decree of confirmation for error.

      S. A. McClurg (with whom was J. Mellon), for appellant.

      M. W. Acheson, for appellee.
   The opinion of the court was delivered, October 23d 1871, by

Read, J.

In January 1858, the Hon. Thomas Mellon was appointed guardian of Frederick S. Lorenz, whose estate, inherited from his grandfather, amounted to about $12,000. The appellant then lived with his mother, who was a widow, and who on 22d March 1859, married William M. Grace. Judge Mellon had paid her $343.50 for the maintenance of his ward, prior to her marriage. After his mother’s marriage the appellant continued to reside with her and her husband, to whom the guardian paid $300. Some time in the year 1864, Mr. Grace purchased a tract of land, on which. there was a charge of $2671 owelty of partition, in favor of his stepson F. S. Lorenz. Judge Mellon filed a first and final account of his guardianship, which was presented to the court, showing account balanced, which on the 6th December 1869 was confirmed nisi. The guardian took credit for the sums actually paid Mr. and Mrs. Grace, charging and crediting himself with the owelty charged on the lands purchased by Grace, and interest, as if still due F. S. Lorenz from William M. Grace.

Upon exceptions filed an auditor was appointed, who allowed W. M. Grace for maintenance of F. S. Lorenz, $2500.88, and taking it out of the owelty of partition, as if it had been actually received by the guardian, reduced the owelty of partition from $8223.88 to $723. Upon exceptions filed, the court dismissed appellant’s exception and confirmed the auditor’s report; from which decree this appeal is taken.

The guardian never received the money he is now charged with, nor did he ever pay the alleged debt or claim for maintenance. The ward is of age and the owelty belongs to him, and not to the guardian, and the appellant is the only person who can receive it. In a guardianship account a creditor cannot intervene between guai'dian and ward, and the court has no power to adjudicate upon the claim having no jurisdiction.

The ward is entitled to his common-law remedy and trial by jury, in which any defence his stepfather has can be set up.

Decree reversed, and the guardianship account as presented to the court and confirmed nisi, is confirmed absolutely.


author: Agnew, J.

text:
    Washington Avenue.
    1. An act was passed incorporating commissioners to make an artificial road seven miles long, mainly through agricultural land near Pittsburg and through a number of townships, the cost to be paid by assessment on lands within different distances from the road, whether abutting on the road or not; some of the owners of- taxed lands did not travel on the road. A master found that all the taxed persons, and many out of the limits of taxation would be benefited, those on the road most, and that it would be a general public benefit. Held, that the assessment was unconstitutional as being a local assessment for a general public benefit.
    2. The power of taxation by the legislature is not limited in the Constitution, and^ is bounded only by the necessities of the state or the will of the people.
    3. Taxation does not fall within the power of eminent domain; that only by a direct taking of property for public use.
    4. The legislature may enact a law providing a just assessment on proper objects according to benefits conferred, and not imposing unfair and unequal burdens.
    5. Assessing a tax to pay for streets, &c., in towns in proportion to the frontage on the street, is a reasonable exercise of the taxing power according to the benefits received.
    6. Such rule of taxation applies only to cities and large towns, where, from the density of the population, and the small size of the lots, there is a reasonable certainty of arriving at a true result.
    7. The power of the legislature as to local taxation, discussed.
    8. Hammett v. Philadelphia, 15 P. F. Smith 155, McMasters v. Commonwealth, 3 Watts 292, remarked on.
    October 12th 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Appeal from the decree of the Court of Common Pleas of Allegheny county: In Equity: No. 172, to October and November Term 1870.
    On the 7th of June 1841, the legislature incorporated the Coal Hill and Upper St. Clair Turnpike Road Company, to make an artificial road from near the top of Coal Hill, in Allegheny county, about one and a quarter miles from south end of the Monongahela bridge at Pittsburg, in a direction towards Canonshurg, in the' county of Washington; the road to be ten miles in length, reserving power to the legislature to resume the franchises of the company should the road not be commenced in two years and completed in ten years. This act was continued in force by the Act of March 6th 1847. By the Act of March 22d 1850, the company, were authorized to make a plank-road on any part of their line. By resolution of the managers of the company, April 24th 1850, they gave over to the supervisors of Scott township (through which the road passed) about three miles of their road which had been graded; and by Act of April 15th 1869, the legislature repealed the law incorporating the company and its supplements, and annulled its charter.
    By Act of the 3d of May 1870, the legislature enacted that the name of the road known as the “ Coal Hill and Upper St. Clair Turnpike Road,” should be “Washington Avenue.” It appointed John Gilfillan and others commissioners of said avenue, and ■ created them a corporation. It further enacted that the qualified electors of Pennsylvania owning property situate within three-quarters of a mile on either side of the avenue for a part of it designated; within one mile for another part; within a mile and a half for another part, should within thirty days after the passage of the act elect commissioners to serve for a year.
    Section 4 enacted, that in order to provide means wherewith to grade, macadamize and put said Washington avenue as speedily as possible in good order, repair and condition, the commissioners should “ assess and collect, in the nature of a special tax,” $6 per acre or fractional part; within half a mile of the avenue on parts specified ; $4 on each acre, &c., within half a mile on other parts; $3 on each acre, &c., within three-quarters of a mile on other parts, to be assessed and collected by the commissioners in the same manner mat road-taxes are collected; coal and minerals owned by persons who were not owners of the surface not to be taxed; and if the taxes should not be paid within ninety days, a lien to be entered for the amount against the real estate to be enforced as taxes on unseated lands.
    Section 6 required the commissioners to grade and macadamize the avenue in a substantial manner, to appoint a superintendent to keep it in repair, and to appoint toll-collectors.
    Section 7 required that the road-tax assessed by the township authorities on property abutting on the avenue should be paid to the commissioners, and applied to its construction and maintenance.
    Section 9 authorized the commissioners, on the completion of the road, to collect tolls from travellers at rates named.
    Section 10 enacted, “ That an account be kept with all persons owning and residing upon property situate either in whole or in part within the limits prescribed in the third section of this act, contributing by the assessment prescribed in the fourth section, for the construction of said avenue in which each person shall be credited with the amount of his assessment, and shall be debited with the amount of toll chargeable from time to time to himself, family and employees, and when the amount of his said tolls shall be equal to the amount of his assessment, he shall thereafter be required to pay tolls in cash in the same manner and amount as hereinbefore prescribed for other persons using said avenue.”
    Section 14 enacted, “ That all moneys received by the treasurer shall be applied to the construction and repair of said avenue; and if any surplus remains in their hands, the said commissioners, in their discretion, may apply the same to the repairs of any roads leading into said avenue.”
    The electors authorized by the act, on the 1st day of June 1870, elected John Gilfillan and others commissioners.
    On the 9th of July 1870, Ann Curran and others, owners of land within the limits set out in the 4th section of the act, whose lands do not abut on the avenue, filed a bill against “ The Commissioners of Washington Avenue,” and John Gilfillan and others (the commissioners) by name.
    The bill set out the foregoing Acts of Assembly; that the plaintiffs were owners of land in the quantities which they specified in the bill, varying between 30 to 200 acres each; that a tax had been assessed by the commissioners on their land, and the enforcement of its collection was threatened by the commissioners; that they, and others assessed with the tax, did not use Washington avenue, but used other parallel roads; that they are liable for road tax, under the general road laws, for other roads both within and outside of the limits for which the tax is assessed for Washington avenue.

      The prayers of the bill were, that the Act of 1870 should be declared unconstitutional, as a whole, or so far as it authorized the levy of the tax, or so far as it authorized the levy of the tax on the plaintiffs’ lands, for an injunction, and for general relief.
    They afterwards amended their bill by leave of the court, hy averring that the improvement of Washington avenue would be for the general benefit, and that the entire cost could not constitutionally be imposed on the lands within the limits designated in the act; that the improvement would greatly benefit persons owning lands in the immediate vicinity of the avenue, but outside the limits of the taxation; and that those within the limits of taxation could not be constitutionally taxed to the exemption of others in the immediate vicinity largely benefited by the improvement; that the benefit from the improvement to land in the vicinity, whether within or without the limits of taxation, would be unequal, and that if it was a local improvement, the taxation should be apportioned in proportion to the benefits received.
    The answer of the defendants averred, that both under the original acts and when the road was in care of the supervisors, it had always been in a bad condition; that the improvement of the territory through which the “ Old Washington road” supplied by the avenue passes, and which is adapted to agriculture, is much retarded for want of a good road; that the avenue would enhance the value of all real estate within the limits of the taxation, and would be of great public benefit. They accompanied their answer with a list of seventy-eight persons within the limits of the special taxation, but not abutting on the avenue, and owning about 3000 acres of land, “ favoring the proposed improvement” ; they averred that all the complainants, except three or four, used the line of the proposed avenue, and also will be greatly benefited by the improvement, and that their land will be enhanced in value from 25 to 100 per cent.
    A replication was filed, and James A. Lowrie, Esq., was appointed examiner and master.
    Mr. Lowrie, in his report, stated that “ Washington Avenue,” so far as it went, was located on the Washington state road, running from Pittsburg to Washington, a distance of twenty-five miles; the northern terminus of Washington avenue is one mile and a half from the Monongahela bridge at Pittsburg; its length is seven miles fifty-four rods; its southern terminus is about two miles from the Washington county line; the limits of taxation, under the Act of 1870, are from half a mile to a mile distant from the avenue; a number of roads, specified in the report, diverge from the southern terminus of Washington avenue and lead to towns and boroughs mentioned in the report; a very large amount of the travel from Washington county (the limits being specified in the report), would be greatly benefited by a macadamized road, for the extent of the line of Washington avenue; and the land in Washington county, within those limits, would be as greatly enhanced in value as lands within the limits of the special taxation; the same would be the effect on lands [designated) in Allegheny county. The greatest amount of benefit would accrue to lands abutting on the avenue, but the benefit would extend to lands for three miles .distance from the avenue, whether within or without the limits of the taxation ; the enhancement in value, according to location, &c., would vary from 15 per cent, to 100 per cent.; the road on which Washington avenue was to be located is very bad — in winter and spring almost impassable. The report then designated a number of roads running from the northern terminus of the avenue, and found that the avenue would benefit a number of boroughs which are named, and also the cities of Pittsburg and Allegheny, also that it would be a general public benefit; the tax was estimated at $46,000. A number of the complainants used the avenue, a number did not use it at all, and others used it occasionally. “ The Coal Hill Road” was graded to the extent of four miles; but the company were not able to macadamize it, as provided by the charter, and the tolls not being sufficient to keep it in repair, it had been almost impassable for travellers; the tolls would not keep the road in repair, the part improved was abandoned to the township supervisors in the spring of 1865, and it had since been taken charge of by the supervisors; had been somewhat repaired by them, but for a number of years had been in an almost impassable condition; the land through which the avenue would pass is adapted to agriculture, abounds in bituminous coal, and its improvement is much retarded for want of a good road; the avenue would enhance the value of all real estate within the limits of the proposed taxation, and also without the limits in localities specified in the report, and would also be a great public benefit. - The concluding paragraph of the report was as follows:—
    “ All the property lying within the limits of taxation for the improvement of Washington avenue, whether the owners will use the road or not, will be enhanced in value, from 20 per cent, to 100 per cent., if said improvement shall be made as contemplated by the act establishing the avenue, and such enhancement will vary according to the size of the farm, its location and facility of access to the.avenue.”
    On the 14th of September 1870, the court (Stowe and Collier, JJ.) decreed an injunction against the commissioners, restraining them from collecting the tax under cover of the Act of 1870.
    The commissioners appealed to the Supreme Court, and assigned the decree for error.

      C. S. Fetterman, for appellants.
    The legislature may tax a class of lands, or persons benefited: The People v. Mayor, &c., of Brooklyn, 4 Comstock 430; Hancock Street, 6 Harris 26; Commonwealth v. Woods, 8 Wright 113; Philadelphia v. Tryon, 11 Casey 401; Stroud v. Philadelphia, 11 P. F. Smith 255. To make a tax law unconstitutional on this ground, it must be apparent at first blush that the community taxed can have no possible interest in the purpose to which their money is to be applied: Sharpless v. Mayor of Philadelphia, 9 Harris 148. Equality of contribution is not enjoined in the Bill of Rights. Kirby v. Shaw, 7 Id. 260. The taxing power by the legislature must become so grossly perverted as to lose the character of a legislative function before the judiciary can interpose on constitutional grounds: Schenley v. City of Allegheny, 1 Casey 130; Commonwealth v. Woods, 8 Wright 113; Grim v. Weissenbergh School District, 7 P. F. Smith 437.

      M. W. Acheson (with whom was W. W. Shafer), for appellees,—
    The plaintiffs have the right to test in equity the validity of the act: Kerr v. Trego, 11 Wright 292; Mott v. Penna. Railroad Co., 6 Casey 9; Page v. Allen, and Robb v. Barlow, 8 P. F. Smith 338. This act would make the appellees corporators, without and against their consent. The government cannot incorporate persons, even for their own benefit, without the consent of such persons: Ang. & Ames on Corp., § 81. They cited Hammett v. Philadelphia, 15 P. F. Smith 155.
   The opinion of the court was delivered, January 9th 1871, by

Agnew, J.

This case presents a new question upon the power of taxation: the authority of the legislature to compel the owners of farm lands, lying within one mile on each side of a public highway, to pay for grading, macadamizing, and improving it, by an assessment upon their lands by the acre. It is not a ease of municipal taxation by a county, township, city or borough, for local improvements. The law created a corporation of seven commissioners to take charge of the avenue, make the improvements, lay and collect the taxes, and provide for the collection of tolls for its use. The-road has no respect to township authorities, township lines, or the mode of levying township taxes. It is not the case of taxation by frontage, for the lands of the plaintiffs in the bill do not abut upon the avenue, but merely lie within the prescribed lines of taxation. It is not a ease of local improvement, and taxation therefor, upon those exclusively, or even those peculiarly benefited; for the master finds that some of the plaintiffs do not use the avenue, but travel on parallel' roads, that persons two miles outside, and on each side of the lines of taxation are nearly, or quite, as much benefited as those within these lines, -and that owners of property and the public, far beyond the southern terminus of the avenue in the direction of Canonsburg and "Washington are greatly benefited. In short, he finds that the proposed improvement will be a general public benefit.

Washington avenue is but seven miles long, passing through six townships and part of a seventh; but if this mode of taxation, to grade, macadamize and improve it, can be maintained, the legislature, on the same principle, can make a turnpike, a canal, a railroad, or any other highway across the.state, and compel the owners of lands within one, or any fixed number of'miles, to pay for it, and can assess the cost per acre, not only at $6, $4 and $3 per acre, as in this law, but at sixty, forty, thirty, or any number of dollars, necessary to build the highway. If this be legitimate taxation, it has no bounds, for it must be conceded that the power of taxation, properly so called, has no limit in the Constitution, and is bounded only by the necessities of the state or the will of the people.

The practice of municipal taxation by counties, townships, cities and boroughs for local objects, had its origin in necessity and convenience. Hence roads, bridges, culverts, sewers, pavements, school-houses, and like local improvements, are best made through the municipal divisions of the state, and paid for by local taxation. These have always been supported as proper exercises of the taxing power. Nor is this mode of taxation inconsistent with our notions of the right of private property and of the equality of burdens; for each municipality in its turn (sooner or later) by a tax on all its inhabitants pays only for what it makes and enjoys within its own limits, and thus in the course of time the burthen is equalized upon all, as every portion of the state makes its own improvements and enjoys their peculiar benefits. This practice was followed by another advance in the local mode of taxation. In cities and towns where population was dense the authorities began to make improvements of special advantage to certain of the citizens at their expense; such as footwalks in the front of dwellings, and pavements in those streets which were well built up, and where good carriage-ways were needed. Here, too, though a step far in advance of the system of general taxation, our notions of private right were not violated; for the advantages to the owners were so clear in the promotion of their convenience, and the enhanced value of their lots, caused by improved foot-walks and carriage-ways, that the burthen was duly compensated, and again equality was produced as each street or alley came to be paved. So far, public opinion and ancient and long-continued legislative practice have sustained local taxation with great unanimity, and this is strong evidence of the true interpretation of the constitutional power of the legislature to authorize municipal taxation of this sort. Indeed, the general acquiescence of the people in this exercise of the power is so clear, that few cases are to be found in tbe books, wherein any question has been made upon the power itself.

In two cases, coming under my notice, it was said that a municipal assessment upon property subjected to payment for local improvements, is not a tax: Pray v. Northern Liberties, 7 Casey 69; The Borough of Greensburg v. Young, 3 P. F. Smith 280. Technically the statement is true when we speak of a tax as ordinary revenue, but it is clear that in neither case it was meant to say, that such an assessment is not taxation within the general legislative power to tax, but only that it was not a tax within the Acts of Assembly requiring certain things to be done prescribed in the case of ordinary taxation for revenue. Had it been meant to say that such an assessment is not taxation at all, it would, in effect, deny the power of the legislature to authorize the assessment, a power which was affirmed in both of these cases.

In order to take the money or effects of the citizen and apply them to public uses, beside the power of taxation, I know none other than that of eminent domain. But such an assessment does not fall within the latter, for eminent domain acts only by a direct taking of the property for a public use, and by way of a compensation for the taking, in obedience to a constitutional injunction forbidding the property of the citizen to be otherwise taken. The power of taxation and eminent domain have always been clearly distinguished.

Next came another step forward in the exercise of the power of local taxation, but one more doubtful, and at first view not so easily perceived to be within the legislative power; that is to say, the assessment of the property of one man to pay the compensation due to another whose property has been taken for a public use. Here the right to assess seems to be further removed from the true source of the power, and it is more difficult to discern the liability of the few to pay what the state herself seemingly should pay by general taxation, for property taken under the power of eminent domain.

In consequence of this doubt the question was presented to this court in the case of McMasters v. The Commonwealth, 3 Watts 292. There the property of Nancy Knox and others was taken for the purpose of making a new street from the Diamond to Fifth street, in the city of Pittsburg, and their compensation ascertained by a jury of freeholders.

The McMasters lot was then assessed with a part of the compensation in proportion to the benefits found by the jury to be conferred upon the lot by the opening of the adjoining new street. The eminent counsel of McMasters, the late Judge Forward, seems to have considered the assessment of his property as an exercise of the power of eminent domain, and denied its validity upon the ground that the act proposed to take his property, or at least his money, and to compensate him in benefits. This he contended the legislature could not do, but must compensate him in money, citing Vanhorne v. Dorrance, 2 Dallas 315, on this point.

Justice Rogers, however, denying the authority of Vanhorne v. Dorrance, held that compensation under the Constitution need not necessarily be in money, but may be in whole or in part by actual benefits conferred; instancing the numberless turnpike and canal laws (to which railroad acts may be added), in which the viewers in estimating damages are required to take into consideration the advantages accruing to the landowner. And when he comes to consider the question as to the assessment on McMasters’s lot, he admits that it is a new feature in our legislation, yet thinks the principle not new: citing Livingstone v. The Mayor of New York, 8 Wend. 85. But what the precise principle is he does not very distinctly define, though in the main he seems to derive it from the power of local taxation for benefits received. It appears to me, when closely examined, this is its only true source. It is simply a new development of that principle of local taxation before-mentioned as undisputed, which assesses on the property benefited or its owner, a tax in proportion to the superadded value of the property, caused by the local improvement of which this property has a peculiar advantage beyond that of others not in like circumstances. For if we analyze the transaction, we shall find that the compensation paid to Mrs. Knox and others for their property taken to make the new street, is a thing wholly distinct from, and independent of, the money paid by McMasters. The assessment upon him is not simply by way of taking his money to pay them, but was by way of an assessment upon him for the benefits he received from- the improvement. His money, it is true, passes directly into their compensation, but this is merely to avoid circuity of payment, by an immediate appropriation of his tax. In principle, therefore, it is an independent transaction, and is the same thing as the money paid by an abutting lot-owner for the pavement before his door, into the public treasury, and thence paid out to the paver of the street. Yet in that case what difference would it make were the money of the abutting lot-owner appropriated directly to pay the paver ? provided his assessment be made on the principle of his paying according to his proportional benefit. Indeed, this is nearly the present system of paving streets in Philadelphia. The exercise of this power of assessments for benefits (as before remarked) is not by way of eminent domain, in the usual sense of this term, for it is not a taking at all, followed by compensation for the taking; but it is a special mode of taxation, which equalizes burdens, by a counterbalance of benefits, whereby those benefited more pay more, and those benefited less pay less It is thus special as contradistinguished from general taxation, but not special as making one man to pay all or more than his just proportion of a common burden. General taxation pays no regard to equality of burden, further than to lay the tax in proportion to the amount of the assessable property of each tax-payer, throwing out of view all questions of special benefit. So long, therefore, as the benefits of each- tax-payer are justly and impartially assessed under the special system, I cannot see that the general system is more just or impartial. Indeed, if faithfully executed the special system seems to be more equal and just, for, under the general system, some may be greatly benefited more than others, and yet pay but a small proportion of the tax, considering what they receive. For example, a poor man may send many children to school, while a man of large property, having none to send, may pay a large tax — and a man being greatly benefited by a public road may pay a very small proportion of the tax which keeps it up.

Taxation, according to benefits received, is neither unequal nor unjust, and cannot, therefore, come into conflict with those clauses in the Bill of Bights, which regard as sacred the right of private property. So long, therefore, as a law faithfully and reasonably provides for a just assessment according to the benefits conferred, and does not impose unfair and unequal burdens, it cannot be said to exceed the legislative power of taxation, when exercised for proper objects. It is on this ground only that assessment according to the frontage of property on a public street to pay for its opening, grading and paving, is to be justified. As a practical result, in cities and large towns, the per-foot front mode of assessment reaches a just and equal apportionment in most cases. Hence this mode has been deemed a reasonable exercise of the taxing power in such places, with a view to taxation according to the benefits received. Whatever doubt might have been originally entertained of it as a substitute, which it really is, for actual assessment by jurors or assessors under oath, it has been so often sanctioned by decision, it would ill become us now to unsettle its foundation by disputing its principle. But it is an admitted substitute, only because practically it arrives, as nearly as human judgment can ordinarily reach, at a reasonable and just apportionment of the benefits on the abutting properties. Hence the fairness of the rule of charging benefits by frontage was a conceded point in Hammett v. The City of Philadelphia, 15 P. F. Smith 155. But this rule, as a practical adjustment of proportional benefits, can apply only to cities and large towns, when the density of population along the street, and the small size of lots, make it a reasonably certain mode of arriving at a true result.

To apply it to the country and to farm-lands would lead to such inequality and injustice as to deprive it of all soundness as a rule, or as a substitute for a fair and impartial valuation of benefits in pursuance of law; so that at the very first blush, every one would pronounce it to be palpably unreasonable and unjust. Judged of by this rule for deciding in a question of constitutional power, the law in this ease cannot stand.

Whether we view this avenue as a macadamized highway, seven miles long or three hundred, the result is the same to those along its route. To charge its cost upon the farms lying within one mile on each side at a fixed sum per acre, is so obviously onerous and unreasonable, and leads to such a destruction of private right, and such unfairness of imposition for tho advantage of the public at large, and of individuals who pay nothing, it cannot, on any fair principle of reasoning, he said to be a valuation according to benefits. In other words, it cannot with any degree of truth be pronounced to be a proper substitute for a just and impartial valuation of benefits. This needs no reasoning to make it plainer than the proposition presents itself to the mind the moment it is stated. If unreasonable and not a fair substitute for a valuation made by a disinterested tribunal, acting according to the law of the land, then it plainly is not within the principle of the many decisions, in this and other states, recognising the per-foot frontage rule as a fair mode of measuring the benefits, and is consequently not a legitimate method of assessment upon the adjacent farm-lands. I admit that if we do not analyze the reason and trace the origin of the frontage rule, there is a seeming analogy between the Washington Avenue Act and many preceding it for the improvement of streets in cities and towns.

But reasoning by analogy is sometimes a dangerous source of error, and is always so, if we'fail to see that the analogy itself is accurate. In the present case, an examination of the facts in which the per-foot frontage rule is based, discloses at once the want of analogy between large farms with single occupants or owners, or wild or untenanted land, in the country, and the small lots of a crowded street in a populous town. The legislature therefore made a mistake in fixing such a burden upon the lands along the route of this avenue. It is in fact nothing more than a law to coerce certain landowners to pay for a public improvement in which their interest is no greater, and as to some of them not so» great, as that of many others who pay nothing; and it offends against the clear intent and spirit of the Bill of Rights. There is no case in our books, wherein the legislative power to tax has been maintained with greater vigor and ability than Sharpless v. The City of Philadelphia, 9 Harris, yet even there, the then Chief Justice admits (p. 166), that the exercise of the power may be forbidden by clear implication, as well as express restriction. “ It is not every act the legislature may choose to call a tax-law that is constitutional.” “ The whole public burden,” he contends, “ cannot be thrown upon a single individual, under pretence of taxing him.” This is a concession that taxation has a limit per se, and is not always co-extensive with, legislative exaction. When, therefore, the Constitution declares in the ninth article, that among the inherent and indefeasible rights of men is that of acquiring, possessing and protecting property, — that the people shall be secure in their possessions, from unreasonable seizures, — that no one can be deprived of his property unless by the judgment of his peers, or the law of the land — that no man’s property shall be taken or applied to public use without just compensation being made — that every man for an injury to his lands or goods shall have remedy by due course of law, and right and justice administered without sale, denial or delay — and that no law impairing contracts shall be made — and when the people, to guard against transgressions of the high powers delegated by them, declared that these rights are excepted out of the general powers of government, and shall for ever remain inviolate, they, for their own safety, stamped upon the right of private property, an inviolability which cannot be frittered away by verbal criticism on each separate clause, nor the united fagot broken, stick by stick, until all its strength is gone.

There is a clear implication from the primary declaration of the inherent and indefeasible right of property, followed by the clauses guarding it against specific transgressions, that covers it with an segis of protection against all unjust, unreasonable and palpably unequal exactions under any name or pretext. Nor is this sanctity incompatible with the taxing power, or that of eminent domain, where for the good of the whole people, burdens may be imposed or property taken.

I admit that the power to tax is unbounded by any express limit in the Constitution — that it may be exercised to the full extent of the public exigency. I concede that it differs from the power of eminent domain, and has no thought of compensation by way of a return for that which it takes and applies to the public good, further than all derive benefit from the purpose to which it is applied. But nevertheless taxation is bounded in its exercise by its own nature, essential characteristics and purpose. It must therefore visit all alike in a reasonably practicable way of which the legislature may judge, but within the just limits of what is taxation. Like the rain it may fall upon the people in districts and by turns] but still it must be public in its purpose, and reasonably just and equal in its distribution, and cannot sacrifice individual right by a palpably unjust exaction. To do so is confiscation, not taxation,. extortion not assessment, and falls within the clearly implied restriction in the Bill of Bights.

It is found by the master, and if it had not been found by him, it is perfectly obvious, that this avenue will be one of general public benefit; and specially that it will be of great convenience and individual benefit to citizens and taxpayers, beyond the limit of taxation along the road, both laterally and terminally.

Indeed, beyond its southern terminus its benefits reach a considerable distance into the county of Washington. This brings it within the principle of Hammett v. The City of Philadelphia, supra; expressed in these words, at the conclusion of the opinion of our brother Sharswood: “ Local assessments can only be constitutional when imposed to pay for local improvements, clearly conferring special benefits on the properties assessed, and to the extent of these benefits. They cannot be imposed when the improvement is either expressed, or appears to be, for general benefit.” I concurred in that opinion, and I see no reason to regret my concurrence; but on the contrary, I see in the present case much to confirm it; and the examination I have just made into the power of special taxation, it seems to me, tends to confirm and strengthen what was so well reasoned in Hammett v. The City. Indeed I consider it a fortunate circumstance that that case came up, for it led to an inquiry into the power of special taxation, which was in danger of running wild by insensible degrees, and leading, before we had become aware of it, into the exercise of a bastard power, dangerous to the right of private property, and violative of the provisions in the Bill of Rights, placed there for its protection. In questions of power exercised hy agents, it is sometimes the misfortune of communities to be carried, step by step, into the exercise of illegitimate powers without perceiving the progression, until the usurpations become so firmly fixed by precedents, it seems to be impossible to recede or to break through them.” The majority opinion in that case did not then, and this opinion does not now, dispute the long-recognised power of local taxation for local improvements, according to the benefits conferred; but they meet and dispute departures from that power, which if recognised, will land in the overthrow of the right of private property. Laws which cast the burdens of the public on a few individuals, no matter what the pretence, or how seeming their analogy to constitutional enactments, are in their essence despotic and tyrannical, and it becomes the judiciary to stand firmly by the fundamental law, in defence of those general, great, and essential principles of liberty and free government, for the establishment and perpetuation of which the Constitution itself was ordained. Should we now suffer this law to pass without judicial criticism and condemnation upon a false analogy of the frontage rule in cities and large towns, we should leave open a door for future impositions upon private property, so wide and specious, errors the most odious and of enormous proportions would enter in.

For these reasons the decree below is affirmed.


author: Sharswood, J.

text:
    Pittsburg versus Walter.
    1. A law authorized the councils of Pittsburg to grade on the application of a majority of lot-holders on the street, to assess the cost and enter a lien against the lots abutting on it. Held, that an application by such majority, &c., was necessary to give the councils jurisdiction to order the grading.
    2. To a scire facias on a lien for such grading, the defendant pleaded “ nunquam indebitatus: ” this put in issue whatever the plaintiff had to prove in order to support the assessment, including the fact of the application by a majority of lot-holders.
    3. It seems, there is no general issue to such scire facias, and the defendant ought to traverse by special pleas, the material allegations of the plaintiff.'
    4. The principle Omnia prcesumuntur esse rite aota heals only apparent irregularities or omissions where jurisdiction is clearly vested.
    5. Where jurisdiction is established, the presumption is that all directory provisions have been followed.
    October 12th, 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the District Court of Allegheny county: No. 143, to October and November Term 1870.
    This was a scire facias upon a municipal claim at the suit of The City of Pittsburgh against Jacob II. Walter, issued to July Term 1869.
    The defendant filed an affidavit of defence to the merits. He also pleaded “Nunquam indebitatus,” and payment with leave to give the special matter in evidence, with leave to add, &c.
    The claim was filed May 28th 1869, for $192.17, with attorney’s fees and costs, being the assessment against the defendant’s property for his proportion of grading Mahon street, in the city of Pittsburg, his property abutting on the portion of the street graded. The grading was done under an ordinance by virtue of an Act of Assembly of April 1st 1868 (Pamph. L. 567), authorizing the grading of streets within a certain part of Pittsburg; the act providing that such grading, &c., should not be done “ unless upon the written application of a majority in interest of the owners whose property is situated or abuts thereon.”
    ■ On the trial, June 8th 1870, before Kirkpatrick, J., the plaintiff gave in evidence the grading of the street, the assessment, &c., against defendant’s lot, the ordinance under which the grading was done, &e.
    There was no evidence that there had been an application for the grading by a majority of the owners of lots abutting on the street.
    The defendant submitted several points, the first of which was:—
    “The plaintiff is bound to prove that.before the grading was done on Mahon street, for which the municipal claim now in suit was filed, a written application therefor was made by a majority of the lot-holders in value' whose property abuts on the street where it has been graded; and as no such proof has been offered, he cannot recover.”
    The court reserved this point.
    The jury found for the plaintiff $164.14, subject to the point reserved.
    The court afterwards entered judgment for the defendant non obstante veredicto.

    The plaintiff removed the record to the Supreme Court and assigned for error the entering of the judgment.

      J. F. Slagle, for plaintiff in error.
    The plaintiffs were not required to prove the regularity of the proceedings. With the exception of nunquam indebitatus, which is really no plea, all the pleadings are affirmative, and we might have rested upon the offer of the lien itself: Lybrandt v. Eberly, 12 Casey 347; Van Billiard’s Adm’r v. Nace, 1 Grant 233. It is not necessary for the plaintiff to prove affirmatively, that the ordinance has passed after application by a majority of property-owners. The councils have full authority to direct the grading and paving of streets. Their jurisdiction is undoubted, and the Act of 1868 is merely a direction as to its exercise. An ordinance passed by councils must be presumed to have been passed in due form and upon proper authority: Fowler v. Jenkins, 4 Casey 178; McCauley v. Chicago, 22 Ill. 563; New Orleans v. Halpin, 7 La. Ann. 185; Webber v. Gottschalk, 15 Id. 376; Risley v. St. Louis, 34 Missouri 404; People v. Rochester, 21 Barb. 656.

      Stoner & Patterson, for defendant in error,
    as to the plea, cited Stephen on Pleading 155. Municipal lien is not a record; Davis v. Church, 1 W. & S. 240.
    The omission of the written application which the law required should precede the action of councils was not merely an irregularity, it was a defect of jurisdiction: Graves v. Otis, 2 Hill Rep. 466; Staples v. Fairchild, 3 New York Rep. 41; People v. The Commissioners of Seward, 27 Barb. 94; Porter v. Purdy, 29 New York 106; Dwight v. City Councils of Springfield, and cases cited, 4 Gray 107. The councils of Pittsburg are a special tribunal: Hodges v. City of Buffalo, 2 Denio 100. Their jurisdiction must therefore be proved; Fowler v. Jenkins, 4 Casey 176; Sharp v. Speir, 4 Hill 76; People v. Ontario, 16 Barbour 286; People v. Goodwin, 1 Seld. R. 568; People v. Soper, 3 Id. 428; Givens v. Miller, 12 P. F. Smith 133; Roberts v. Orr, 6 Id. 176 , Kensington v. Keith, 2 Barr 218.
   The opinion of the court was delivered, October 23d 1871, by

Sharswood, J.

It is not disputed that Mahon street, for grading which the municipal claim in this case was filed, is within the territory comprehended in the terms of the proviso to the 11th section of the Act of April 1st 1868, Pamph. L. 567, which declares that no street or highway shall he opened, graded or paved in any part of the territory consolidated with the city of Pittsburg, under the Act of April 6th 1867, “unless upon the written application of a majority in interest of the owners whose property is situated or abuts thereon.” To the scire facias upon the claim filed the defendant pleaded nwnquam indebitatus. To this the plaintiffs did not demur, but went to trial upon it. It must be considered now, as it imports by its terms, that it put in issue whatever facts it was incumbent upon the plaintiffs to prove in order to support the assessment made upon the property of the defendant. There may not in strictness be any general issue in a scire facias upon such a claim, and the defendant ought perhaps to traverse by special pleas all the facts essential to the case of the plaintiffs. But if that were done it would not shift the onus probandi. It is not like an affirmative plea of payment — which is in confession and avoidance — which to a scire facias upon a mechanic’s claim was held in Lybrandt v. Eberly, 12 Casey 347, not to put in issue the formal validity of the lien. Nwnquam indebitatus is a traverse — a negative plea — not indeed as comprehensive as non assumpsit, for payment or a release could not be given in evidence under it — but nevertheless it is a denial of the plaintiffs’ cause of action, and therefore not within Van Billiard’s Administrator v. Nace, 1 Grant 233. The main question then recurs, unembarrassed by the particular form of pleading adopted, whether it was incumbent on the plaintiffs to prove affirmatively that Mahon street had been graded upon the written application of a majority in interest of the owners of property situated or abutting thereon. This question must now be considered as put at rest by the decision of this court in The Commissioners of Kensington v. Keith, 2 Barr 218, in which a proviso to an Act of Assembly, conferring a similar power of assessment, declared that the curbing should “ be not less in length than one nor exceeding three squares at once.” It was held to be a limitation of the power of the municipality — that it did not affect merely the regularity of the proceeding, but the jurisdiction. “ That the restriction,” said Mr. Justice Rogers, “assumes the form of a proviso cannot alter the ease, as the intention of the legislature, which furnishes the only safe rule, is too plain to admit of question or dispute. The proviso is a limitation of power, and amounts to a negation of all authority beyond its prescribed and clearly-defined limits. It cannot be that the proviso is directory merely, as that would be to set at nought all the guards provided by the legislature against the abuse of authority conferred by the act. It is in truth a question of power; and how a corporation, municipal or pecuniary, can acquire a right of action against a citizen, however humble, by a palpable usurpation, passes my comprehension.” In the ease now under consideration, the Act of Assembly declares that no street shall be opened, graded or paved unless upon a written application of a majority in interest of the owners of property abutting on the street. Without such application the city had no power or jurisdiction in the premises. It follows that the maxim omnia jorcesumuntur rite esse acta cannot be invoiced. That principle heals only apparent irregularities or omissions where jurisdiction or power over the subject-matter is clearly vested in the tribunal or body. When jurisdiction is proved or admitted, then, indeed, the presumption is that all mere directory provisions of the law have been substantially followed: Fowler v. Jenkins, 4 Casey 176.

Judgment affirmed.