author: Mr. Justice Paxson

text:
    Pennsylvania Railroad Company versus Price.
    1. The Act of-April 4th 1868 provides, “ That when any person shall sustain personal injury or loss of life while lawfully engaged or employed on, or the roads, works, depots and premises of a railroad company, or in or any train or car therein or thereon, of which company such person is an employee, the right of action in all such cases against the company shall be only such as would exist if such person were an employee, provided this section shall not'apply to passengers.” Held, that a route or mail agent in the employ of the United States Post Office Department, while travelling on a railroad in the performance of his duties, is not a passenger within the meaning of the act.
    2. A passenger, in the legal sense of the word, is one who travels in some public conveyance by virtue of a contract, express or implied, with the carrier, as the payment of fare or that which is accepted as an equivalent therefor.
    3. A mere trespasser, a person who steals a ride upon a train, or who is employed thereon, is not a passenger within the meaning of the Act o’f 1868, nor entitled, as such, to protection.
    November 12th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1880, No. 274.
    Case by Anna M. Price, widow of Alfred J..Price, and Jessie Price, Stella Price and Anna Price, minors, by their mother and next friend, Anna M. Price, against the Pennsylvania Railroad Company, operating the Western Pennsylvania Railroad, to recover damages for the death of the said Alfred J. Price, caused by a collision of two trains'on the Western Pennsylvania Railroad.

      The jury found the following special verdict: “We find for the plaintiff in the sum of five thousand dollars, subject to the opinion of the court on the question of law reserved, to wit: We find that A. J. Price, at the time of his death was ‘ route agent’ of the United States Post-Office Department, duly appointed and commissioned, his route being on the Western Pennsylvania Railroad, from Allegheny City to Blairsville, in the state of Pennsylvania. That his duties as such agent required him to be on the mail car on the mail train of said road, to receive and deliver mail matter along the route, and to assort the mail matter. That for the purpose of his business and that of the postal department, and in accordance with the laws of the United States and the regulations of the Post-Office Department, and acceptance thereof'by the railroad company, one end of the baggage-car on the mail train was divided off and fitted up for the use of -the department in carrying the mails, and that the duties of said route agent required him to be in said room in the car during the running of the train.
    “ That said Price was daily on said train, making a round trip from Allegheny City to.Blairsville and return.
    “That on the 23d day of July 1877, while at his post, in his room in said car, Mr. Price was killed in a collision of the mail train coming west with another train of the defendant company going east.
    “ That said collision was caused by the negligence or misconduct of the conductor and engineer in charge of the train going east, in neglecting or disobeying orders, and in the failure to take necessary precautions to avoid a collision. We find that the Pennsylvania Railroad Company by resolution, dated 16th April 1868, accepted the provisions of the Act of Assembly, approved 4th April 1868, Pamph. L., p. 59 ; and that at the time of the collision the Pennsylvania Railroad Company was operating the Western Pennsylvania Railroad'under lease.
    “ If, under this finding of facts, and under the Acts of Congress and Acts of Assembly offered in evidence, and the postal regulations in evidence, the court should be of opinion that the plaintiffs, as widow and children of deceased, are entitled to recover, judgment. to be entered on the verdict in favor of plaintiffs. If the court should be of the opinion that the law is with the defendant then judgment be entered in favor of defendant non obstante veredicto.”

    The court, Ewing, P. J., entered judgment on the verdict for plaintiffs, in an opinion saying :
    “While lawfully on the train of the defendant company on the way from Blairsville to Pittsburgh, the husband and father of the plaintiffs was killed by a collision of trains resulting from gross negligence of defendant’s agents. He was not an employee of the company; he urns in his proper place, guilty of no misconduct or negligence. The plaintiffs are clearly entitled to recover, unless precluded therefrom by the terms of the first section of the Act of 4th April 1868, Pamph. L., page 58, which is as follows:
    “ ‘ That when any person shall sustain personal injury or loss of life while lawfully engaged or employed on. or about the roads, works, depots and premises of a railroad company, or in or about any train or car therein or thereon, of which such person is not an employee, the right of action and recovery in all such cases against the company shall be such only as would exist.if such person were an employee. Provided, That this section shall not apply to passengers.'

    “ The plaintiff’s husband was ‘ route agent’ for the United States Post-Office Department, travelling daily over defendant’s road from Allegheny City to Blairsville and return, in charge of the United States mails, receiving and delivering mails at intermediate stations, and assorting and delivering the mails at the termini of the trip.
    “ Under the statutes and regulations of the post-office department the defendant company received a gross sum for transporting the mails and the route agent; likewise furnishing a car properly fitted for the purpose. Is the case governed by the Act of Assembly above quoted ?
    “ At common law the action would have abated at the death of A. J. Price. If plaintiffs are entitled to recover it is by virtue of the 26th section of the Act of 31st April 1846, chartering the company, and the Act of 15th April 1851. The right to recover in such cases being a statutory right, the legislature had power to modify and restrict that right as to any and all classes of persons. We are, therefore, unable to see that the fact that Mr. Price was at the time of the injury in the employ of the United States government has any effect on the question. We know of no sanctity or superior right created by such employment, nor do we conceive that it would affect the question ha.d the deceased been on an interstate route. The right to recover is based wholly on the laws of Pennsylvania. This Act of 1868, has received authoritative construction in Kirby v. Pennsylvania Railroad Co., 26 P. E. Smith 506, and Ricard v. The N Penna. Railroad Co., 8 Norris 193. The terms of the act are very broad. It included all persons lawfully employed in or about the roads, trains, cars, &c., of the railroad company. The terms of the section being so broad the minds of the legislature seems to have been directed to the danger of going beyond the supposed evil intended to be remedied and the proviso is added : ‘ This section shall not apply to passengers'

      “ To our minds it is very clear that Price was lawfully employed on the train of -the defendant, at the time of his injury, and unless saved by the proviso as to passengers the plaintiffs cannot recover.
    “ Was Price passenger ? Webster defines a passenger: ‘One who travels in some conveyance, as a stage coach or steamboat.’ The fact that a man is employed on his travels does not exclude him from being a passenger in the popular acceptation of the term, nor does it in view of the statute, else why the proviso excepting passengers ? While in our view of the case the deceased was carried for hire, in view of the many authorities, some of which will hereafter be referred to, we deem it immaterial as to whether or not he was carried for hire or carried free, nor is it material that he was carried on a contract of another with the defendant.
    “ In the case of Collett v. L. & N. W. Railway, 16 Q. B. 984, plaintiff was a mail agent travelling in the course of his employment on defendant’s train. The mail and agents were carried under the directions of an Act of Parliament and regulations similar to those of our case — except that the agent was to be carried free. Plaintiff was injured by negligence of defendant’s servants. It was held to be immaterial that he was carried under a contract with the government. That he was a passenger carried by consent of the company, to ivhom they owed the duty to carry safely.

    “In the case of Nolton v. Western Railroad Co., 15 N. Y. 444, plaintiff was a mail agent, carried under the same statute and orders as was Price, when he (plaintiff) was injured by the gross negligence of defendant’s employees. Held, that he was entitled to recover as a passenger, to whom the company owed a duty. In Yeomans v. The Contra Costa Steam Navigation Co., 44 Cal. 71, the plaintiff was agent or messenger for Wells, Fargo & Co., and was carried under a contract of the express company with the defendant, whereby the defendant agreed to carry the freight and messenger for a fixed monthly compensation. The plaintiff while on the car of the defendant company was injured by .reason of the negligence of defendant’s servants. Held, that the plaintiff, was a passenger and entitled to recover. In Blair v. The Erie Railroad Co., 66 N. Y. 818, the plaintiff was an express agent on the train in the course of his business, in pursuance of a contract, whereby the railroad company contracted to transport the freight of the express company for a certain consideration, and to transport the money safes and messengers free of charge. Plaintiff was allowed to recover. In argument of the case the court treated the agent as a passenger, carried without hire. In Hammond v. N. E. Railroad Co., 6 Richardson (D. C.) 130, the plaintiff was a route agent in performance of his duty when injured by the negligence of the defendant’s employees. The conditions were precisely similar to those of bur case. The court held, plaintiff entitled to recover, clearly putting it as a case of a passenger, although not in terms calling him such. In Pennsylvania Railroad Co. v. Henderson, 1 P. F. Smith 315, plaintiff's husband was a drover in charge of his cattle on defendant’s train, he riding on a drover’s pass, directing the conductor of the passenger car attached to stock train to pass the

      bearer in charge of his stock in certain cars. In an exhaustive opinion the court held the plaintiff entitled to recover for the death occurring by the negligence of defendant’s agents. Throughout the whole opinion the decedent is treated as a passenger. Numerous other cases are to the same effect. In most of these cases the person injured was employed on the train, the travel being but an incident of the employment.
    “In the case before us, while Price was employed, he was not in any way responsible for the running of trains. The conductor had no more power over him and no less than over any other passenger on the train. He had his proper place on the train, but that and his regular travels were all that distinguished him from the other passengers.
    “The case of the.Pennsylvania Railroad Co. v. Henderson, and several of the.other cases cited, had been decided before the passage of the Act of 1868. It is a fair presumption that the legislature had this class of cases in view when the proviso excepting passengers was inserted. Being of the opinion that the deceased at the time of his injury was a passenger on defendant’s train within the meaning of the proviso of the Act of 1868, the plaintiff is entitled to recover.”
    The defendant took this writ alleging that the court erred in entering judgment for plaintiffs.

      Hampton & Dalzell, for plaintiff in error.
    The relation of a railroad company to one carried on its train must arise by. a contract, express or implied, with the person carried. There must be a compensation paid, or something given or done by the person carried that in laAV amounts as the equivalent of compensation to the carrier. If there be no privity of contract between them, the relation of passenger and carrier cannot exist, and no action can be maintained by one riding on the train and injured if he is there illegally. A person stealing a ride on a train could not recover, if hurt, nor could one travelling over it, even daily, with the assent of the conductor, but not paying fare, have a right to damages if hurt: Duff v. Allegheny Valley Railroad Co., 10 Norris 458.
    We are to construe the term “passenger” in the proviso in the ordinary and usual acceptation of the term. It represents a class and appliés-to a person Avholly disconnected from the service of the company that is to carry him, and equally disconnected from the performance of any duty on the train. The contract between him and the carrier is to safely transport him on the payment of fare from one place to another, and the duty so to do must grow out of such a contract: Pennsylvania Railroad Co. v. Books, 7 P. F. Smith 346, and in Pennsylvania Railroad Co. v. Creed, 5 Norris 139.
    The authorities plainly indicate, when applied to the facts of the present case, that Price was a stranger to the arrangement between the government and the company for the carriage of the mails, and if he were living and had been injured, instead of killed by the collision, he could not maintain an action for damages against the company based upon the fact that he was a passenger and his fare paid in the round sum given by the government for the transportation of the mail. To that contract he was a stranger; no promise was made to him by the company for safe carriage; no consideration moved from him to it. He went along with the mail to distribute and have the control of it, and his being on the train was incident to the service he was performing. As between the company and the government he was the paid agent of the latter to perform such service, but as between him and the company he was directly within the very terms of the Act of 1868.
    All the authorities cited by the learned judge are fully met and reconciled by the Act of 1868, and the decisions this court has made on it. It was held in Kirby’s Case to be a police regulation, and that every one who entered the service of a railway company to follow an employment must take the risk of injury with a right of recovery only against the persons who caused it. That the relation of the person carried to the company was one established by the statute and not by contract. That one who thus voluntarily places himself in a dangerous position alongside of the servants of the .company assumes a certain risk, and'with his eyes open, and cannot hold the company liable for injuries or death caused by its employees.
    In construing the word passengers in the proviso to the act we rely upon not only its legal but its usual and customary meaning. The learned judge below, in his opinion, gives Webster’s definition of the term “passenger,” which, in a general way, may be correct. But when the legal status of one claiming to be a passenger is the subject of discussion, a legal definition is more apt and forcible than one by Webster.
    We understand the word in the act to mean, such person as ordinarily travels from one place to another upon the payment of fare, or upon its equivalent given by him. In no sense can one, running as a mail agent, express agent, or in any like capacity on a train be classed under the head of a passenger. He is a travelling employee, and not a passenger travelling on an ordinary journey:
    In considering the act, and the decisions before it, and the decisions on it, made since its passage, the following conclusions seem to be clear of doubt. Before it became a law, persons travelling on railroad trains were divided into two classes only: passengers who paid fare, and employees who were in the service of the company. There was no middle place in contemplation of our law, for the great number of people who run on trains, and were about the roads, depots, and premises of railroad companies performing acts connected with the operation of the roads. . They were constantly in danger from their exposed positions, as much so as the employees of the companies, and frequently injured or killed. The burden on the railroad companies of the state to pay when any accident happened and personal injuries or death resulted to any of such persons, was too great, and the Act of 1868 was passed to relieve them of it. By it another class is added, and now we find all those thus “ engaged or employed ” are included in it. They are not passengers, but persons who, if hurt, may recover against the employees whose want of care injured them, but not against the company. In the language of Agnew, C. J., in Kirby’s Case, the liability is shifted from the company, for the injury done, to its servants.

      Barton & Sons for defendant in error. —
    is said the railroads procured the passage of the Act of 1868 to meet the case of Catawissa Railroad Co. v. Armstrong, 13 Wright 111. At the time of its passage the court had just decided Penn’a R. R. v. Henderson, 1 P. F. Smith 315, in which it was held that the holder of a free cattle pass was a paying passenger.
    - The legislature were careful to add the proviso — this act not to apply to passengers. That is, this act not to apply to those employed on trains when the said road' receives a compensation for their transportation by the freight paid by the owner upon the property under the passenger case. And as said by Justice Read in that case, the word free, as applied to Henderson, was only true so far that the conductor was not entitled to charge him separately for his passage, as the price paid for freight included the transportation of the drover. In our case the price paid for carrying the mail, expressly includes the cost of transporting the route agent necessarily in charge of the mail. In the Henderson case it is said the presence of the drover with the cattle on the train was a necessity. In this case the presence of Price on the train with the mail was a necessity. The two cases of Price and Henderson are identical, human ingenuity cannot distinguish between them. To deny the right of Price’s widow to recover is to overrule the Henderson case. And the legislature, in express terms, have said the Act of 1868 shall not apply to passengers, to wit: to the Henderson case. O’Donnell v. Allegheny Valley Railroad Co., 9 P. F. Smith 239, is admitted not to be within the Act of 1868 ; he was a railroad employee, but not in the operating of the train; he was a carpenter working on the line of- the road and was carried back and forward to and from his work on the company’s trains. His services paid his fare. It was held he was a passenger. “ His contract with the company gave him the rights of a passenger.” This case was tried in this court both before and after the passage of the Act of 1868. And the legislature in passing the Act of 1868 expressly provides that it shall not apply to passengers. The cases of Price and O’Donnell are identical.

      But it is said there was no privity of contract between Price and the company ; on this subject we are not without authority. This point was raised, discussed and ruled in Collett v. L. & N. W. Railway, 16 Q. B. 984, where it was held that, by the statute under which the company carried the mail, the duty was cast upon the company to carry the agent safely. The statute 1 & 2 Victoria, ch. 98, is almost identical with our Act of Congress. The British statute provides that they shall carry the route agent, without additional charge. Our Act of Congress provides that the cost of transportation shall include the carrying of the agent in charge of the-mail.
    If valuable matter in the mail had been lost in this case would not the company have been liable ? “ There are two grounds of liability on the part of common carriers, contract and duty, as in the case of the officer of the post-office department, in Collett v. London & North Western Railway Company, 15 Jur., page 1053.” Read, Justice, in Henderson v. Pennsylvania Railroad Company, 1 P. F. Smith 326. A mother with' a child in her arms of tender years, procured a ticket for herself, but none for the child. The child was injured by a collision. Held, that the child was entitled to recover for the injury he had received: Austin v. G. N. Railway Company, L. R., 2 Q. B. 452. A master travelling with a servant, the master paying the fare, the servant was injured. Held, that the master could not recover, but that the servant could. That the contract, out of which the duty to carry safely arose, was to be eonsidered as a contract between the servant and the company: Alton v. Midland Railway Company, 19 C. B. (N. S.) 213. The contract between the railroad and the company was with the master, but conditioned to carry him and his servant safely; a duty assumed as to the servant and an implied contract to carry him safely. In this case it was an undertaking with the United States to carry the mail and the officer in charge safely. It was a duty assumed by the company and a contract in which the agent was interested.
   Mr. Justice Paxson

delivered the opinion of the court, January 3d 1881.

The special verdict finds all the facts necessary to an intelligent consideration of this case. The deceased, A. J. Price, was, at the time of the accident resulting in his death, a route agent of the United States Post-Office Department, duly appointed and commissioned. His route was on the Western Pennsylvania Railroad between Allegheny city and Blairsville. His duties were those incident to the position of mail agents. While engaged in the performance of those duties, on the 23d day of July 1877, he was killed by a collision on the road. The collision was found to be the result of the negligence of the employees of the defendant company. The single question to be decided is whether the deceased was a passenger within the meaning of the Act of April 4th 1868,-Pamph. L. 58. The first section of said act is as follows :—

“ That when any person shall -sustain personal injury or loss of life while lawfully engaged or employed on or about the roads, works, depots and premises of a railroad company, or in or about any train or car therein or thereon, of- which company such person is not an employee, the right of action to recover in all such cases against the company shall be such only as would exist if such person were an employee: Provided, That this section shall not apply to passengers.”

It was conceded by the learned judge who ruled the cause below, and admitted upon the argument here, that the deceased came within the precise terms of the Act of 1868. Indeed, this is apparent from the facts found by the special verdict. But it is claimed that he comes also within the exception, and was a passenger within the meaning of the act. This position, if not unsound, is certainly paradoxical. To be within the letter of an Act of Assembly, and at the same time within its exception, is a proposition that would hardly he pressed were not the defendant a railroad corporation.

The Act of 1868 has been before this court upon several occasions. Its constitutionality was affirmed in Kirby v. Railroad Co., 26 P. E. Smith 506. Other questions arising under it were considered in Mulherrin v. The Railroad Co., 31 P. F. Smith 366, and Rieard v. The Railroad Co., 8 Norris 193. The point now raised is new and was not considered in either of -the cases cited. It involves a construction of the proviso of the a-ct excepting passengers from its operation. Just here it is important to consider the mischief it was intended to remedy. Prior to its passage, it had been held in numerous cases in this state that an employee could not recover against the company in whose service he was for personal injuries resulting from the negligence of a fellow servant. This was settled law. But the non-liability for damages on the part'of the company ceased there. In the Oatawissa Railroad Co. v. Armstrong, 13 Wright 186, it was held “ That where the deceased was in the sole employ of one railroad company, who had the right to run their trains over the other’s road, the plaintiff is not precluded from recovery on the ground that her husband was in the same general employ with the defendant’s servants ; the rule that where several persons are in the same general employment, and one is injured from the carelessness of another, the employee is not responsible, is not to be extended beyond the limit of the adjudged cases.” At the time this decision was rendered, the law seemed to contemplate but two classes of persons on railroad trains, viz.: 1. Passengers who paid fare or who travelled by virtue of a contract relation with the company, and 2. Employees who were in the service of the company. The Act of 1868 was manifestly intended to create a third class who were neither employees nor passengers, namely persons who are “lawfully engaged or employed in or about the roads, works, depots and premises of a railroad company, or in or about any train or car therein, of which such person is not an employee.” This class, prior to the Act of 1868, were entitled, under the decision in Catawissa Railroad Co. v. Armstrong, supra, to recover against the company for injuries resulting from the negligence of an employee. But the employee if injured by the negligence of those whom I have designated as the third class, had no remedy against the company. He could only recover against the person whose negligence caused the injury, and as such persons were generally irresponsible pecuniarily, the employee had practically no remedy. Yet he was in daily peril of injury from the negligence of persons of the third class. The legislature doubtless saw that it was unjust to give the non-employees such an advantage, and also that the company should be held liable in damages to such persons, who although lawfully upon the road, were not under its contract. The Act of 1868 places persons in the third class upon the same plane as. the employees of the company. There is strict justice in this. No good reason can be shown why the non-employees should have higher rights than employees. Their compensation is usually equal if not greater; they enter upon the same dangerous employment with full knowledge of its perils and of their legal rights in cases of injury. The rule which prevents a recovery by an employee for the negligence of a fellow servant, is based upon the soundest principles of public policy. Railroad accidents are usually the result of the carelessness of employees. However perfect the system by which trains are moved, the heedlessness of a single man may produce disaster. So long as employees understand that they take their lives in their hands in entering upon their duties, and that their own safety, as well as the welfare of their families, depend upon their care and vigilance, the travelling public will have reasonable assurance of safety. The rule that no recovery can be had for the negligence of a fellow servant, necessarily tends to increased vigilance on the part of employees, and to that extent contributes to the public safety. Properly administered, it is wise and just.

Was the deceased a passenger within the meaning of the Act of 1868 ? Looking at the mischief which the act was intended to remedy, the answer to this question is not difficult. The deceased was “lawfully employed upon the road.” He was, therefore, within the precise language of the act, and must be held to have had the rights only of an employee unless he comes within the exception. The word “passenger” in the proviso must be understood in its ordinary and popular signification. Had the question been asked of any person, intelligent or otherwise, upon this train when the accident occurred, whether A. J. Price, the deceased, was a passenger upon said train, the answer would have been in the negative; that he was employed upon the train as a mail-agent Why then should we give to the proviso a forced construction not warranted by its language and repugnant to our common sense ?

It was urged that the deceased was a passenger because, under the Act of Congress (see sect. 4000), “Every railway company carrying the mail shall carry on any train which shall run over its road, and without extra charge therefor, all mailable matter directed to be carried thereon, with the person in charge of the same.” This act makes it the duty of the company to carry the mail-agent without extra charge, but it no more makes him a passenger than it does the mail matter of which he has the care. The company have no control of him as they have over passengers, for whose safety they are responsible. He is not bound to observe any of the rules, prescribed for the protection of passengers. He may expose his life in the most reckless manner. The mail car, like the baggage car, is a known place of danger. From its position it is peculiarly .exposed to destruction in eases of collision. The effect of the Act of Congress is to make his position on the car a lawful one. Being lawfully upon the train a recovery might possibly have been had for his death upon the duty to carry safely : Collett v. Railway Co., 16 Q. B. 984, and Nolton v. Western Railway Co., 15 N. T. 444, go to this extent. But here the Act of 1868 comes in and declares that persons employed upon the road shall have only the rights of employees of the company.

Pennsylvania Railroad Co. v. Henderson, 1 P. F. Smith 815, was decided prior to the passage of the Act of 1868, and it was urged that the legislature had this case in view when they inserted the proviso in question. Conceding this to be so it proves nothing. .There the plaintiff was a drover transporting his live stock upon the cars of the company. He had paid the freight on his stock, and at the same time received a pass for himself. He was travel-ling with his stock, and was as much a passenger as if he had been travelling with his trunk. He had a direct contract relation with the company, pie was under the control of the conductor, and was bound to conform to the reasonable rules of the company the same as other passengers. I see little analogy between such a case and that of a mail-agent, who has no contract relation with the company, and who is not in any sense under its control. It may very well be that Henderson v. The Railroad Company belongs to a class of cases intended to be covered by the proviso to the Act of 1868. Other cases might be suggested to which it may possibly apply. They will, probably, come up in due time, and we will not anticipate them. It is sufficient to say that the legislature doubtless considered that there were, or might be such cases,' and, therefore, added the proviso to save them from the operation of the act. But it would be attributing'a want of intelligence to the law-making power to hold that it meant to designate as passengers men who were employed by the year upon the road, as the mail agents of the government.

The Act of 1868 is very broad in its terms. It was said by our brother Gordon, in Ricard v. North Pennsylvania Railroad Co.,' supra, “ The comprehensive words ‘ engaged or employed’ are used to embrace évery imaginable manner by which any one may or might be brought in, upon or about the roadway, cars or works of a railroad company.” Following this sound interpretation of the act we must regard it as intended to relieve railroad companies from liability for injuries to the class of persons enumerated therein. Yet the construction now claimed for it discriminated in favor of certain persons of this class to the exclusion of all others. That is to say, those persons who, by the accident of their position, happen to be employed on the trains, may recover for injuries, while others, equally deserving, who do not ride with the trains, but are “ employed or engaged in or about the roads, works, depots and premises of the company,” have no such right. To illustrate: Suppose the deceased, instead of being employed as mail agent, had been employed by the government to carry the mail from the depot to the post-office, and while so engaged about the depot had been killed by the negligence of the defendant’s servants. In such case he would have been clearly Avithin the act and not within its exception. Can the mere fact that he AVas upon the train instead of being about the depot make any difference? We are of opinion the act contemplated no such distinction.

The learned judge of the court below places considerable stress upon Webster’s definition of the word “passenger,” as “one who travels in some conveyance, as a stage coach or steamboat.” The citation from Webster is not strictly accurate. His definition is, “ A passer or passer by ; one who is making a passage; a traveller, especially by some established conveyance; a person conveyed on a journey.” Worcester defines the same word as follows: “ One who passes, or is on his way ; a traveller; a wayfarer.” It will be seen that the leading idea of these definitions is that a passenger is one Avho travels from place to place. Mere-locomotion is not travel in the popular use of the term. There are conductors on short lines of railroad in this state Avho have passed over more miles in the course of their employment than any traveller of ancient or modern times. Yet we would hardly call them travelled men. The sense given to particular words by our great lexicographers is always entitled to weight. Yet where a word is used in an Act of Assembly regard must he had to the circumstances, surrounding its use. - A more correct definition of the word in its legal sense would be, one who travels in some public conveyance by virtue of a contract, express or implied, with- the carrier, as the payment of fare, or that Avhich is accepted as an equivalent therefor. A mere trespasser, a person who steals a ride upon a train, or who is employed thereon, is not a passenger within the meaning of the Act of 1868, nor entitled to protection as such.

We are of opinion that the case comes within the Act of 1868, and that the plaintiff is not entitled to recover.

The judgment is reversed; and judgment is now entered for the defendant below, non obstante veredicto.

Mr. Justice Trunket dissented


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Commonwealth ex rel. The Mount Washington School District versus Thomas W. Shaw et al., officers and members of the Central Board of Education.
    1. The Act of Rebruary 12th 1869 created a central board of education and made the city of Pittsburgh an independent school district. The board of directors in the sub-districts were empowered to purchase real estate and to conduct the schools and levy a special tax therefor. Said boards were to notify the central boai’d of the amount thereof, and the tax was to be collected by the city treasurer. The Act of March 22d 1877 provided that the annual levy of taxes of the city should be based upon statements of the various departments, including education and school boards, to the finance committee of councils, which amount was to be certified to councils, and the tax levied by the latter. The Act of June 12th 1878 provided that the central board should ascertain and determine the amount of money necessary for conducting the schools of the city and certify the same to councils, and .that councils shall add the amount to the aggregate taxes required for the city and appropriate the same for said purpose. A sub-school district petitioned the court for a writ of mandamus upon the central board to compel them to grant and appropriate to the petitioner the sum of §12,000 for permanent improvements, and to add the same to the amount already ascertained by them to be necessary for conducting the schools of said city for the next fiscal year, and to certify the same to city councils : He Id, that the writ was properly refused.
    2. The language of the Act of 1878, ex vi termini, involves necessarily the idea of exercising judgment and deciding according to the sense of propriety and fitness on the part of the central board. It is not only to ascertain but also to determine what amount is necessary for conducting the schools of the city.
    November 12th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunket, S.terrett and. Green, JJ.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November'Term 1880, No. 264.
    This was a petition in the court below by the Commonwealth, at the relation of the Washington School District, for a mandamus to compel Thomas W. Shaw and others, officers and members of the Central Board of Education, to appropriate to the petitioner the sum of $12,000 for permanent improvements and certify the same to the city councils.

      The petition of the school district sets forth:
    1. That by an Act of the General Assembly, entitled “ An Act consolidating the wards of the city of Pittsburgh for educational purposes,” approved February 12th 1869, the city of Pittsburgh was constituted an independent school district, and each ward of said city was constituted a sub-school district.
    2. That by an Act of the General Assembly entitled “A supplement to the several acts incorporating the city of Pittsburgh, enlarging its boundaries,” &c., approved the 2d day of April 1872, the borough of Mt. Washington (with others) was annexed to said city and made part thereof as the Thirty-second ward.
    3. That by virtue of the aforesaid acts, approved February 12th 1869, and April 2d 1872, respectively, and by an act entitled “A further supplement to an act consolidating the wards of the city of Pittsburgh for educational purposes, approved the twelfth day of February, one thousand eight hundred and sixty-nine,” approved March 20th 1873, the several boroughs, including the borough of Mt. Washington aforesaid, which were annexed to the city of Pittsburgh for municipal purposes, by the Act approved April 2d 1872, aforesaid, became and were consolidated for educational purposes, and the jurisdiction of the Central Board of Education and school laws.of the said city extended thereover; and thereby the school district, formerly embraced within the said borough of Mt. Washington, became a sub-school district of said city of Pittsburgh, under the name of Mt. Washington.
    4. That by the laws of the state of Pennsylvania relating to public schools, it is made the duty of the school directors in each district to establish a sufficient number of schools for the education of every child above the age of six years within the district, who may legally apply for admission and instruction, which laws, so far as they relate to said duty, are in full force and effect within said city of Pittsburgh.
    5. That by the fifty-second section of the Act, approved February 12th 1869, aforesaid, it is provided “ that the bo^rd of directors of every sub-district shall have power and authority to purchase and hold such real estate and personal property as may be necessary for the establishment and support of the sub-district schools within their respective districts,” and by the fifty-fifth -section of said act it is provided “ that the sub-district school directors shall cause suitable lots of ground to be purchased or rented, and suitable buildings to be erected, purchased or rented for school houses, and shall supply the proper conveniences and fuel.”
    6. That the school building heretofore erected in said sub-district has for a long time been insufficient for the accommodation of all the children of said sub-district who have applied for and are legally entitled to admission and instruction, every part of which building that can be made available, even at great disadvantage, including the vestibule, being occupied by the schools of said sub-district, and in addition thereto the said school directors have for some time past conducted two of their schools in a neighboring building, which is wholly unsuited for school purposes.
    7. That, owing to a constant and now rapid increase of population, still further school accommodations are urgently required in said sub-school district, which cannot be procured in any other way than by the erection of a new building or of an addition to the present school house.
    8. That the board of directors of said sub-school district have fully and conscientiously considered the matter and determined, as the least expensive method, to erect a suitable addition to the present building, and upon consultation and advice with competent persons have ascertained that the sum of twelve thousand dollars will be required to defray the cost of such improvement.
    9. That your petitioner has no funds or property with which to pay for said improvement, and is advised and believes, and so charges, that it has no direct power to raise money for such purpose but that the same must be appropriated by the councils of the city of Pittsburgh upon an estimate to be ascertained, determined and certified by the Central Board of Education of said city in the manner provided by the general laws of the Commonwealth relating to cities of the second class, to which class the said city belongs.
    10. That by an Act of Assembly of the state of Pennsylvania entitled, “.An Act in relation to cities of the second class, providing for the levy, collection and disbursements of taxes and water rents,” approved the 22d day of March 1877, it is made the duty of councils of such cities to make an annual appropriation of such money as “ will be required to defray all the various expenses necessary for conducting the various departments, whether legislative, executive or administrative (including schools, or boards of education, or poor boards), of the city government,” and “ to cause a tax sufficient for all purposes to be levied and collected of the estates, real and personal, subject to taxation, within such cities.”
    11. That by an Act of Assembly of said state entitled, “ A supplement to an act entitled, ‘ An Act relating to cities of the second class, providing for the levy, collection and disbursement of taxes and water rents,’ approved the 22d day of March 1877, providing the manner of making appropriations for school and poor purposes, and issuing warrants on such appropriations and defining certain powers of the educational and poor departments in said cities,” approved June 12th 1878, it is made the duty of the Central Board of Education to ascertain and determine the amount of money necessary for conducting the schools of said cities, and to certify the same to the councils on or before the second Monday of January in each year, and the councils are thereupon required to add the amount so certified to the aggregate of taxes required for said cities, and shall appropriate the same for school purposes. ■
    12. That, in accordance with the standing rules of the Central Board of Education of the city of Pittsburgh, adopted in pursuance of the provisions of the act last aforesaid, your petitioner did on or before the first day of December 1879, forward to the secretary of said board an estimate of the amount of money necessary for conducting the schools in said sub-school district for the fiscal year beginning on the first day of February 1880, in which estimate was entered and included the sum of twelve thousand dollars for permanent improvements, being for the purpose of paying for the necessary addition to the school building in said sub-district, as aforesaid.
    13. That at a meeting of the said Central Board of Education, held on the 13th day of January 1880, the said board agreed upon an amount to be certified to the city councils as the basis of an appropriation for school purposes for the fiscal year beginning the first day of February 1880, and which your petitioner is advised and believes, and so charges, has been certified by said board to said councils, but' in which amount no provision has been made for the twelve thousand dollars required by your petitioner for the purpose aforesaid. The said Central Board has wholly neglected and utterly refused to make any provision therefor or for any part thereof, without any just or lawful reason, and in open violation of, and disregard for, the law as expounded by learned and competent counsel employed by the finance committee for that purpose.
    14. That, by the laws relating to the city of Pittsburgh, it is the duty of the councils to make provision, by the passage of a proper ordinance, before the first day of February in each year, for the money for conducting the various departments of the city government for the next fiscal year, and unless the said Central Board of Education shall, prior to the passage of such ordinance, include in the sum certified to councils for conducting the schools of said city the sum of twelve thousand dollars, so as aforesaid demanded by your petitioner, the school interests of your petitioner will be greatly hindered impeded, and injured, and your petitioner will be unable to supply suitable school facilities for all the children of said sub-school district as required by law.
    15. That, in addition to the foregoing statement as to the necessity of the case, your petitioner further represents that in utilizing the school building of said sub-district it has been necessary to make use of a corridor as an office and recitation room, thereby destroying one of the modes of ingress and egress to and from the building, and thereby diminishing the means of escape from said building in case of danger.
    16. That your petitioner is without any specific legal remedy.

      17. That the said Central Board of Education is composed as follows : [the names of the members here followed.]
    Your petitioner therefore prays that a mandamus may be issued to the said board to grant and appropriate to your petitioner the sum of twelve thousand dollars for permanent improvement, and to add the same to the amount already ascertained by them to be necessary for conducting the schools of the said city for the next fiscal year, and certify the same to city councils as required by law, and it will ever pray, &c.
    The court granted a rule upon the officers and members of the board to show cause why the writ should not issue against them. The case was heard on this petition, and the rule was discharged, the court delivering the following opinion:
    “ The Act of 12th February 1869 created a Central Board of Education, and made the city of Pittsburgh an independent school district. The board was thereby empowered to' rent or purchase and hold such real estate as might be necessary for the establishment and support of a high school and schools for colored children, as required by the act. It was to assess and apportion taxes for certain school purposes and levy same, which were to be collected by city treasurer. It was also authorized to erect buildings for high schools and schools for colored children, and also furniture, books, apparatus and other personal property for same. To appoint all teachers for said schools, and teachers of music and of all special branches in ward schools; to determine what branches of learning should be taught in sub^district schools, high schools and schools for colored children; to decide what school books should he used, and the number of teachers in all schools, and fix pay for their service.
    “ The board of directors of the several sub-school districts were empowered to purchase' and hold real estate, and purchase property necessary for schools, the title of such property to be in such sub-district, and they were required to supply their school-houses with fuel and proper conveniences, and to have the appointment of teachers of the sub-district schools. They were also to levy special tax for purchasing or paying for ground and buildings, and repairs and furniture, apparatus and all necessary books and stationery and fuel therefor and janitors, levied and assessed as follows: The several boards of sub-school districts were on or before the last Monday of May of said year to notify the Central Board of the rate of taxation respectively levied by them, and thereupon the Central Board was immediately to cause the amount thereof to be added in a separate column opposite the name of each person in the duplicate for said ward of taxes levied by said Central Board. The taxes levied by the Central Board to be placed in one column, headed ‘ City School Tax,’ and those levied by the sub-school board to be placed in another column headed ‘Ward School Tax,’ and the taxes to be collected by the city treasurer. The sub-school-district was also authorized to borrow money for ground and buildings for school purposes.
    “The Act of 22d March 1877 provided that the annual levy of taxes of the city should be based upon statements of all the departments of the city government, including education and school boards, giving names, dates, amounts and objects of expenditures to the finance committee of councils, and said committee, ‘in lieu of any existing authority in relation thereto,’ were directed to make and agree upon an estimate of the various sums of money required to defray all the various expenses necessary for conducting the various departments of city government, including schools or boards of education, which estimates were to be founded upon reports obtained from said departments, and which amount, when established by said finance committee, was to be certified by it to the city councils, to be by them accepted or modified as the aggregate expenses of the city, and then a tax was to be levied by councils.
    “ The Act 15th March 1878 provides that councils shall in each district where indebtedness existed before the Act 22d March 1877, levy a sufficient tax to pay interest thereon, and the principal in thirty years, to be levied specially on the property of such district.
    “ Then comes last of all the Act 12th June 1878, providing that the Central Board shall ascertain and determine the amount of money necessary for conducting the schools of the city, and shall certify the same to councils on or before the second Monday of January of each year, and finally that councils shall add the amount to the aggregate taxes required for the city, and shall appropriate the same for the purposes aforesaid, to wit, conducting the schools of the city. The third section of this is as follows: ‘ That it is hereby declared to be the true intent and meaning of the act of which this is a supplement (22d March 1877), that none of the powers theretofore belonging to the Central Board of Education, and the various school boards in said city, prior to the passage of said act, shall be impaired or affected in any manner, except in relation to the levy and collection of taxes.’
    “ It will be seen that under the Act of 1869, sect. 17, the Central Board were to determine the amount of school taxes to be levied upon the school district (city) for each year (with money from state and other sources) to be sufficient and necessary ‘ for the purchase of ground and the erection of buildings necessary for the high schools and schools for colored children,’ to keep such schools in operation, and also for the payment of the teachers of all the sub-district schools, and the several sub-school boards were to levy and assess a special tax for purchasing and paying for around and buildings, and for repairs and furniture, apparatus and necessary books, stationery and fuel, and for pay of janitors, of wliich they were to notify the Central Board, and which amount it was the duty of the Central Board to add to its assessment in the manner specified in the act, and which it was also the duty of the city treasurer to collect from the inhabitants of the proper ward. The assessment of the Central Board was a charge upon the whole city (school district), and that of the sub-school district only a charge upon the respective wards.
    “The Act 22d March 1877 ‘impaired or affected’ (see third section), none of the powers vested in the respective school boards (Central and sub-school) except in relation to the levy and collection of taxes, but it vested the power of levy in the city councils, giving them entire control and discretion over the subject, and made it the duty of all the departments of thei city government, in terms including education and school boards, to make a statement of their several demands or requirements to the finance committee of councils, and said finance committee were directed in lieu of any existing authority, that is, in the place of and to the exclusion of existing authority, to make and agree, &c., and thereupon to certify its estimates to city councils who were to accept or modify them as their judgment dictated. Now, under this provision it is clear to my mind that the finance committee first, and the city councils ultimately, were clothed with absolute discretion as to what amount of money should be raised for the school department and to what purposes the several amounts should be applied.
    “ Then the Act 12th June 1878 took away this authority of councils over the school department, and provided that the Central Board of Education should ascertain and determine the amount of money necessary for conducting the schools of the city, and certify the same to councils, whereupon they were bound to add such sum to the aggregate city taxes and appropriate the amount so raised for the purpose specified by the Central Board. The language of this act, ex vi termini, involves necessarily the idea of exercising judgment'and deciding according to its sense of propriety and fitness, on the part of the Central Board. It is not only to ascertain but also to determine what amount is necessary for conducting the schools of the city.
    “ So that even assuming (what may admit of grave doubt) that the Central Board could by its requisition impose upon the city at large the expense of buying ground and erecting school houses in the several sub-school districts at their discretion, I have no hesitation in coming to the conclusion that under the facts alleged in this petition for mandamus the plaintiff has no right to the relief prayed for, and, therefore, the prayer thereof is refused, and this rule to show cause why an alternative mandamus should not be awarded is discharged.

      The school district took this writ and alleged that the court erred in discharging the rule.

      Samuel Harper and C. C. Taylor, for plaintiff in error.
    We contend: 1. That by the general school laws of the state, it is obligatory upon the school directors of each district to provide sufficient school facilities for the education of all children between the ages of six and twenty-one years, and that for failure to do so they are subject to removal from office. (See sect. 9, Act of May 8th 1854.)
    2. That this duty is by the Act of February 12th 1869, placed upon the school directors of the various sub-districts in the city of Pittsburgh, who alone have the right to determine when, where, to what extent, and in what manner It shall be performed.
    8. That this duty has not in any degree been lessened, nor the power of the sub-district directors in relation to it been in any manner impaired or taken away by the Act of March 22d 1877, or any of its supplements.
    4. That as the sub-district directors have been deprived of the taxing power, and it is the duty of councils to provide for all of the expenses in conducting the schools of the city, the cost of erecting school-houses is a charge upon the city at large.
    5. That when the directors of a sub-school district have determined that a necessity exists for additional school facilities, it is mandatory upon the central board to ascertain and determine the cost thereof as a part of the amount necessary for conducting the schools of the city.
    As the law makes the local boards the judges of the necessity for additional school facilities, we contend that the amount of money needed for that purpose is as absolutely determined by the action of such boards as the amount necessary to pay teachers salaries after the central board has fixed the number of teachers and the salary schedule, and is equally beyond the discretion of that board. In the exercise of the powers vested in the local boards, they clearly have the right to buy ground and build school houses. Act of February 12th 1869, sect. 55, Pamph. L. 150. This involves the creation of a debt, and authority to create a debt implies an obligation. to pay it, and where no special mode is provided, it is implied that it is to be done in the ordinary way by the levy and collection' of taxes: Commonwealth v. Allegheny County, 1 Wright 290.. In such a case mandamus will lie to compel the levy of the tax, even though the statute gives councils discretion as to the advisability or the amount of the tax: Dillon on Municipal Corporations, 2d. ed., sect. 689, and cases cited.
    The school board never exercised any discretion in this matter. It has never inquired into the necessity of the requisition, but has denied it on the sole ground that the city at large cannot be made liable for it.

      Slagle & Wiley, for defendants in error.
    Under the acts in existence at the time of the passage of the Act of 1877, the local boards had power to build school houses and to maintain them in good order, and the expense of so doing was imposed upon the local districts respectively. Many of them had built large and costly houses — the cost of which they had, in many instances, paid in whole or in part. To impose the cost of buildings in other districts upon the whole city would be so grossly unjust to the districts which had already provided suitable buildings, that it cannot be supposed the legislature intended such effect. This would be the effect of the construction claimed by plaintiff.
    All difficulty is avoided by holding that the Act of 1877 does not include the affairs of the sub-districts, and that their power to levy taxes for local purposes are not affected by it. This would be consistent with the principle of the Commonwealth v. Allegheny County, 1 Wright 290, “That authority to create a debt implies an obligation to pay it.”
    If the position of the plaintiffs is correct, that the power to levy taxes is taken away from the local boards, then it follows that the power and duty of the local boards to build school houses falls, and as it is not pretended, that this power has been devolved upon the city, it is simply a case in which the legislature has failed to furnish appropriate means to carry on these public duties. But admitting that the duty has been imposed upon the city to levy taxes to pay for building school houses, is the duty mandatory or one of discretion ?
   The iudgment of the Supreme Court was entered, November 22d 1880,

Per Curiam.

This judgment is affirmed on the clear and convincing opinion of the learned judge. We do not, however, entertain the grave- doubt therein expressed.

Judgment affirmed.


author: Mr. Justice Gordon

text:
    McKee’s Appeal.
    M. devised his mansion house to his wife for life, and bequeathed to her also an annuity of §2000 for the same period. He then provided: “ And upon her decease, I will and bequeath said house, as also the rest of my worldly estate, to my children in equal shares; and in default of children or lineal heirs of my body, at the time of my decease, I will and bequeath all my worldly estate to my brothers and sisters in equal shares.” The widow and two children of the testator survived him. After his death ther.e were large accumulations arising from the rents, issues and profits which exceeded the original estate and the necessities of the trust. One of the children, when he reached his majority, petitioned the Orphans' Court for one-half of the rents, issues and profits of the estate since he had arrived at age; for one-half of the accumulations since the death of his father, and “ the custody and possession of the property bequeathed to him in and by said will,” alleging that he was entitled thereto under the Act of May 17th 1871 : Held, that the estate created was a vested remainder; that the petitioner was entitled to one-half of the accumulations, but that he was not entitled to one-half of the corpus of the estate. ,
    November 12th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Appeal from the Orphans’ Court of Allegheny county: Of October and November Term 1880, No. 288.
    Frederick McKee, the elder, died on March 21st 1865, leaving two children, both minors, by name Melissa McKee and Frederick McKee, and his wife, Melissa McKee. By the decedent’s will, he directed that all his debts should be paid, and then provided, as follows:—
    “ And as to the balance of all my worldly estate, both real and personal; which it may please God to intrust me with at the time of my death, I do hereby dispose of the same in the following manner:—
    “ To my beloved wife, Melissa Patterson McKee (in place of her dower or share at law), I will and bequeath the mansion-house, located on Carson street, East Birmingham, purchased from the executors of the late Mark Sterling, and the lot of ground connected therewith, and the household furniture contained therein at the time of my decease, to have, to hold, and to use the same during her natural life.
    “ Also, I will and bequeath the sum of two thousand dollars ($2000) per annum, to be paid her during her life by my executors; and upon her decease, I will and bequeath the said house, as also all the rest of my worldly estate, to my children in equal shares; and in default of children or lineal heirs of my body at the time of her decease, I will and bequeath all my worldly estate to my brothers and sisters in equal shares.
    “ And it is my will, and I order and direct that my executors, hereinafter named, shall carry on the business of manufacturing flint glass, &c., at the factories now carried on by myself arid brothers, for the benefit of my heirs, as long as they may think advisable; and it is my will, and I order and direct 'that my executors, hereinafter named, shall, on the first day of July, eighteen hundred and sixty-six, ascertain the value of two-twelfths (2-12) of the whole interest or capital, and shall convey and sell the same to my brother, Stewart McKee, taking notes for same a's may suit said Stewart McKee, to pay, say, within ten years; and I further order and will and direct that my executors shall not press any of my brothers for payment of any notes I may hold against them ; and I do hereby rnake and ordain Alexander H. Miller, Esq., and my brother, William S. McKee, and my brother, Henry S. McKee, executors of my last will and testament, and T do also make my said executors the guardians of my children.”
    A. H. Miller declined to act' either as trustee or executor. William S. McKee died in 1872, and H. Sellers McKee, as exeeeutor and trustee, managed the estate. At the testator’s death, his personalty consisted of the one-fourth interest in the firm of McKee Bros., who were engaged in the manufacture and sale of glass, his interest in the estates of James McKee, deceased, and Thomas McKee, deceased, and certain notes, stock in incorporated companies, and cash on hand. The trust was so administered, that the accumulations since the testator’s death, after first deducting all the income paid to the mother, amounted to about one hundred thousand dollars, as appeared by the account of the executor and trustee, filed on May 12th Í880.
    Frederick McKee, the son, arrived at age on December 26th 1879 ; his sister is still a minor. On May 12th 1880, he filed his petition setting forth the above facts; that his mother, Melissa McKee, the widow of his father, and his sister Melissa, are still alive, and claimed as follows: That, under the Act of the General Assembly of April 18th 1853, sect. 9, Purd. Dig. 1245, commonly known as the act against accumulations, the entire accumulations since his father’s death are void, and that he is entitled now, absolutely, in his own right, to receive one-half part of the same.
    The court, in an opinion, said:—
    “ This case does not fall within the purview of the Act of May 17th 1871, sect. 1, Purd. Dig. 449, pi. 214. The petitioner cannot be said to have been bequeathed an estate ‘ for life or for years, or for any other limited period, or upon condition or contingency ’ in the personal property left by the testator within the meaning of that act; he was not given expressly a present vested interest, but on the contrary, was expressly given a vested estate in remainder limited to take effect on the decease of his mother: King v. King, 1 W. & S. 205.
    “ The testator created an antecedent active trust with respect to his personal estate, the main purpose of which was to provide for his widow during life. The amount which he directs his trustees to pay her annually ($2000), corresponds nearly with that which the available personal estate left hy him ($35,000 say), would produce if invested at legal interest. Cases in which more than six per cent, per annum has been realized on trust funds are so unusual that there is no ground for supposing that the testator expected more in this case.
    “ This view is strengthened by the fact that no one, other than the widow, is mentioned as a beneficiary during her life. Whether the corpus of the estate will continue as productive as it has heretofore, it is impossible to foretell. The retention of the whole corpus is therefore necessary to the security of the trust created by the testator. But the annuity to the widow having been expressly given in lieu of her dower in his whole estate, in no event is she entitled to accumulations heyond the amount specified in the will. These accumulations, therefore, belong to the petitioner and his sister absolutely, whether under the statute against accumulations (Washington’s Estate, 25 P. F. Smith 102), or the intestate law, is immaterial.”
    The court then made a decree: “ That the said petition of Frederick McKee be dismissed, in so far as it prays that the executor and trustee pay over to the petitioner the one-half of corpus or principal of the estate of Frederick McKee, deceased, and that the prayer thereof, so far as it prays for the payment to him of one-half of the accumulations in the hands of the said executor and trustee, is hereby sustained, and the said trustee and executor is hereby directed to pay the same, amounting to, say $50,000, over to said Frederick McKee, the petitioner.”
    From this decree the executor and trustee, the guardian of Melissa McKee, and the brothers and sisters of Frederick McKee, deceased, took this appeal and assigned for error:—
    1. The court erred in entering a decree that the executor and trustee under the will of Frederick McKee, deceased, pay over to Frederick McKee, the petitioner, the one-half part of the accumulations in the hands of said executor and trustee, amounting to fifty thousand dollars.
    2. The court erred in not entering a decree dismissing the petition of Frederick McKee.
    3. The court erred in not requiring Frederick McKee to give security as provided by the Act of May 17th 1871, sect. 1, to secure the interests of the persons entitled in remainder whenever the same shall accrue or vest in possession.
    If the accumulations are held to be void, then:—
    4. The court erred in ruling that Melissa McKee, the widow, was not entitled to share therein.

      George W. Biddle, W. A. Lewis and D. T. Watson, for appellants.
    If it be held that the effect- of this will is. a bequest for accumulation of the surplus of the income over and. above the two thousand dollars to be paid the widow, then it is submitted that such accumulations are good until the majority of Melissa, the youngest child of the testator.
    We deduce from the act against accumulations that it limits accumulation to twenty-one years; again reduces this limit to the minority of the intended beneficiary under the will or deed, and if the directions to accumulate exceed the minority of the children, it is void only for the excess of the minority,
    We contend that Frederick McKee, by his will, directed his property to accumulate until his wife should die. Then he gave it to his children, if living. Therefore the accumulations were during the minority of the intended beneficiaries under the will. That the death of the mother prior to the majority of the children would reduce the period of accumulation is not in conflict with the statute, while the lengthening of her life beyond the majoi'ity of the children will not defeat the’whole accumulation, but only so much of it as exceeds the majority of the youngest child. That this latter contingency has not yet arrived, and the period in which accumulations are valid has not yet been exceeded. That, as the point of time when the accumulations are to cease, under the directions of the will, is the mother’s death, and as this direction, if void in any part, is only void for its excess, that is, by as much as it exceeds the minority of the beneficiary, and as it may be that, on the death of the mother, Melissa 'the daughter may be living, Frederick dead, and thus Melissa be the sole beneficiary under the will, therefore the accumulations during her minority are good.'
    ' If the court should, however, hold that for any reason the implied direction to accumulate is void, then we further submit that Frederick McKee, the son, is not for other reasons entitled to these accumulations. This legacy being contingent, Frederick McKee, the son, can not under the will claim to receive any share of the accumulations, if they form part of the estate of the testator, which is distributed under the will. The point of time at which bequest is to take effect, is the decease of his wife — “ upon her decease.” Until then neither of the children have any interest in the personalty. The condition precedent upon which they are to take is living “ at the time of her decease.” If they are not then living they take nothing, but it will go to his brothers and sisters. In no manner is anything given to these children unless provided that, on condition that they be living at her decease. This, we submit, clearly makes the legacy contingent: Moore v. Smith, 9 Watts 407; King v. Crawford, 17 S. & R. 118 ; Provenchere’s Appeal, 17 P. F. Smith 466; McClure’s Appeal, 22 Id. 418.

      But suppose it be held that .the children of the testator took vested remainders in the corpus of the estate, or rather a vested estate to enjoy in future the corpus of the estate, including the accumulations during minority, which vested estate was liable to be divested and transferred to others, if the children did not survive their mother. Then these accumulations are permitted by the very language of the act. If the interest of Frederick, the son, is in remainder, then it is.vested, subject to be divested by his death before his mother. If the contingency upon which the enjoyment is to take place were to happen now, Frederick would at once enjoy, and this is the test as to whether the estate is vested or contingent. But, of course, as the present estate af'Frederick is merely a right to future enjoyment, he can only enjoy the interest or issues of the accumulation (until he has fulfilled the condition of surviving his mother), and this only upon condition of giving security to refund both the corpus and interest of the accumulation during minority to those persons who, by his father’s will, may be ultimately entitled to the same. Suppose the legacy here to the children to be vested as the court below seemed to think it was; then is Frederick McKee, the son, entitled to one-half of the accumulation ? His estate then in the personalty would seem to be this: a present vested interest, with the period of full enjoyment postponed until his mother’s death. If he dies before his mother, then a limitation over to his sister, Melissa, if she then be alive; but if not; then to the brothers and sisters of the testator. If, then, it should be held that the will does in effect contain a bequest to trustees, with directions to accumulate, that the directions to accumulate are void; that both Washington’s Estate, 25 P. F. Smith 102, and Stille’s Appeal, 4 W. N. C. 42, were correctly ruled, and that the bequest to the children is a vested legacy; that it would seem to be a case where personal property, i. e., the accumulations, as well as the corpus of the estate, has been bequeathed to the children of Frederick McKee, deceased, upon a contingency, i. e., that upon the death of either before their mother, their share goes over: then Fredérick McKee is now entitled to the one-half part of the accumulations; but, as he takes this under the will (Stille’s Appeal, supra), it is just as the corpus would be, subject to a limitation over provided he dies before his mother. This being so, he must, under the provisions of Act of Assembly of May 17th 1871, sec 1 (Purd. Dig., pi. 214, p. 449), give security which will, in the opinion of the court, sufficiently secure the interest of the persons entitled in remainder, whenever the contingency happens on which these in remainder will be entitled to possession. Why he should not so do it is difficult to see. If the present cases in Pennsylvania stand, he takes the accumulations under the will ju-st as much as he would the corpus of the estate. If he dies before his mother, without children, to the whole fund those in remainder are entitled.
    And if the court belowis correct in holding that the accumulation is void in toto, nevertheless a grave error has been committed in the form of the distribution. If it be held that the testator did not die intestate, but the accumulations go on under the will, then Frederick must give security under the Act of 1871; but if the testator did die intestate as to accumulations, then also the court erred. The court below supposed that as the testator used the language “in place of her dower or share at law,” and, as the widow accepted under the will, she is thereby debarred from her right as heir-at-law under the intestate law of the state. This is a misapprehension. The widow, by taking the devise under the will, is debarred of her option to take against the will, whatever that right might be. Her husband has, in fact, purchased that right from her, and she, by taking under the will, has released it to him. But obviously a widow cannot release a right to take as heir any more than a child could do. A release to the husband during lifetime would only confer rights to which, if he died intestate, certain persons designated by law, and these only, could lay claim. Mrs. McKee’s non-claimer hero vests nothing in her children, but her rights may pass under her will, or if she die intestate, according to the intestate law. The court below has therefore committed an error, even if right in all other branches of the decision, in the ratio of division, which in this case should be one-third to each of the children and one-third to the widow.

      George Shiras, Jr., for appellee.
    The mansion house and an annuity of $2000 are first given to the wife, and the remainder in the house and in the principal of the annuity is vested in the testators children and their issue, and in case the children both die before their mother, leaving no issue, then to the testator’s brothers and sisters. This is within the very definition of a vested remainder: Fearne, ch. 1, sect. 7; Croxall v. Sherrard, 5 Wall. 287; Goodtitle v. Whitby, 1 Burr. 288; Whimple v. Fonda, 2 Johns. 228; Doe v. Provost, 4 Id. 67; Etter’s Estate, 11 Harris 381; King v. King, 1. W. & S. 205.
    The view contended for by the appellants that the interests of the children are merely contingent, and that they take nothing until and unless they survive their mother, would attribute to the testator a most unnatural will. In that view no provision was made for the children during minority, or afterwards during the many years through which, in the natural course of nature, their mother’s life may be protracted. It is a familiar rule in the construction of wills to require clear and unmistakable language to defeat or postpone heirs, and particularly when the relation of the testator to the heirs is that of a parent subject to the natural duty of maintaining his offspring. A remainder will be considered vested rather than contingent, if possible: Dingley v. Dingley, 5 Mass. 535.
    It seems to us too plain for controversy that either the testator,' in his will, made no provision or appointment for the excess of income that should or might remain, after meeting the annuity and the maintenance of his minor children, in which event such excess or surplus would, of course, go to his children, as in case of intestacy, or the testator must be regarded as having attempted to provide far accumulations in a manner forbidden or restricted by law ; in which latter event, under the very terms of the Act of 1853, particularly as expounded in Washington’s Appeal, 25 P. F. Smith 102, the accumulations go in equal shares to the two children, as the parties who are “ entitled, if of full age, unto the rents, issues, interests and profits so directed to accumulate.”
    It is urged that supposing the children’s interests are vested, yet that under the will the estates of the two children are somehow joint, and that, therefore, the statute does not forbid accumulation during the minority of the youngest child, and that as Melissa is not yet of age, this application of Frederick is premature. The sufficient answer to this proposition is, that the will does not create a joint estate in the children. Their shares are separate and individual. There are not even cross-remainders created as between them. Doubtless if either were to die without leaving issue and intestate, the other would take, but in such case the survivor would take as heir of the deceased, and not by virtue of any provision in the will.
    If the court had awarded the appellee a portion of the corpus of the estate, it may be that securities might be exacted for the benefit of the brothers and sisters, but the learned judge, on the evidence before him, regarded the body of the estate as not more than sufficient to adequately secure the annuity of Mrs. McICee, and refused to order any portion of the original estate to be paid to Frederick.
    If our position is sound, the interest of Frederick in the income of the estate, as well as that which had accrued during his minority as that which is continuing to accrue, is absolute, and the Orphans’ .Court did not err in refusing to order that he give security therefor.
    It is evident that the testator made provision for his widow which he intended to be in full and exclusive of any further interest in his estate. The rest and residue of his estate he designed for and gave to his children. That his attempt to cause accumulations is rendered abortive by the statute does not affect or invalidate his primary purpose to give such residue to his children, nor does it increase his widow’s interest beyond that devised to and accepted by her.
   Mr. Justice Gordon

delivered the opinion of the court, January 3d 1881.

Frederick McKee died on the 21st of March 1865, leaving to survive him a widow and two children, one of whom is the petitioner. By his will he devised his mansion house to his wife for life, and also bequeathed to her, for a like period, an annuity of $2000. He then made the following direction: “ And upon her decease I will and bequeath said, house, as also all the rest of my worldly estate, to my children in equal shares, and in default of children or lineal heirs of my body, at the time of her decease, I will and bequeath all my worldly estate to my brothers and sisters in equal shares.” In this we have a precedent, estate so limited as to determine on an event which must certainly happen, that is, the death of the Widow, and the remainder so limited to ascertained persons in esse, Frederick and Melissa McKee, that the preceding estate may determine'before the estate limited in remainder. It follows that this is a vested remainder — an estate vested in prcesenti, but enjoyable in futuro ; that is, upon the mother’s death.

The corpus of the estate is thus easily disposed of, for of that the testator determined that it should not go to his children until the death of his widow. But since his death there have been large accumulations arising from rents, issues and profits; accumulations which exceed the original estate, and the necessities of the trust, and the serious question is, what disposition shall be made of them ?

Were we allowed to dispose of the matter, as we may suppose the testator would have disposed of it, had he known the facts as they now exist, we would say, without hesitation, these accumulations shall go to his children, for so he would have directed. But as it is obvious that he did not anticipate an increase so large to his estate after his decease, so it is just as obvious that he entertained no intention concerning it. Hence, of such intention we can predicate nothing. On the other hand, were it not for the eighth section of the Act of 18th April 1853, the question would not be difficult of solution ; for, before that act, accumulations as necessarily and naturally formed part of the original estate as vegetable accretions form part of the growing plant. In such case, as the children must wait for the possession of the corpus of the estate until the time fixed for the expiration of the precedent trust, so must they wait for the accretions which by natural growth form part of the corpus. But the Act of 1853 has altered this, and made such accumulations unlawful and void, unless, with relation to them, its terms and conditions are strictly followed.

If, in the present case, we compare the provisions of the will with the terms of the act, we will find that not only were the latter not complied with, but the testator, as we have already said, not having any such accumulations in view, never intended to comply with them. The extreme period allowed for accumultions by the act is t-wenty-one years, with the additional allowance of the ordinary time for gestation. Here the time is indefinite, it may be much more than twenty-one years, for it depends upon the life of Mrs. McKee. Again, in Washington’s Estate, 25 P. F. Smith 102, it was held that the statute permits accumulations in favor of one class of persons only, who are to be possessed of two qualifications; they must he minors; they must also be such persons who will be entitled to take the rents and profits from which the accumulations arise, when the gift or grant goes into effect, though at that time they have passed their minority. Under the operation of the will before us there is no direction in favor of any person or persons. On the other hand, if accumulation is allowed at all, it must be allowed to swell the general estate until the death of Mrs. McKee, when, as part of the corpus, it must go to whomsoever at that time may be entitled. No ingenuity can reconcile a provision of this kind with the statute and it must' therefore fall. Had we to deal merely with time, the act itself would settle any difficulty arising from that matter, for it avoids only the excess, but where the effect of the provision is solely to swell the bulk of the estate, it is so diametrically opposed to the intent and spirit of the statute that it cannot be sustained.

Decree affirmed


text:
    Linn versus The Commonwealth.
    1. L. filed exceptions to the sufficiency of bail in. error in a case depending in the Supreme Court. He accompanied the exceptions with his own affidavit, and the statements contained in this affidavit were alleged to he false and he was indicted for perjury therefor: Held, there being no law which requires exceptions to bail in error to be sworn to, the oath taken by the defendant was extrajudicial, and if false was not the subject of an indictment for peij ury.
    2. It is error to sentence a defendant upon an indictment which does not charge a legal offence.
    3. Where an indictment sufficiently charges an offence,' a failure to convict from want of evidence does not take from the jury the control of the costs in oases of misdemeanor. But where an offence is neither charged nor proved, the jury have nothing to do with the costs, nor have they any duty to perform whatever.
    4. When the language of a charge is intemperate and unfair and removed from the dignity and impartiality which should mark the judicial character.
    November 15th 1880.
    Before Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ. Sharswood, 0. J., absent.
    Certiorari to the Court of Quarter Sessions of Butler county: Of October and November Term 1878, No. 334.
    Appeal of L. G. Linn from the taxation of costs in the case of the Commonwealth against said Linn.
    The material facts will he found stated in the opinion of this court.

      The following were among the assignments of error:—
    I. The court, McJunkin, P. J., erred in refusing to quash the indictment for the reason that the oath taken by the defendant, and on account of which the crime is charged w'as not necessary, and hence not material and was extrajudicial.
    5. The oath must not only have been made wilfully, falsely, but absolutely. There is nothing of an absolute character about the oath, it concluding as follows: “ To the best of his knowledge, information and belief.”
    6. The court erred in overruling the motions and reasons assigned to quash before trial and after trial, instructing the jury that the charges assigned in the indictment did not constitute legal perjury; that they could (or might) have quashed the indictment, but that they wanted to give the case the light of day; that there was probable cause, and that the jury would be warranted in placing the costs on the defendant, and in not quashing the indictment before trial. Eor this reason the verdict should be set aside, and the defendant should not pay any portion of the Commonwealth’s bill of costs.
    10. The court erred in allowing the Commonwealth’s bill of costs when the testimony taken by the prosecutor on appeal from the taxation of costs shows that the large number of witnesses included in the bill who were not called or examined on part of the Commonwealth, were subpoenaed by John Smith, the prosecutor, to sustain his own private character for truth and veracity if attacked, which was not a part of the res gestee, and the witnesses were therefore not material and necessary and the costs should be disallowed.
    II. The court erred in allowing the Commonwealth any costs for witnesses, after motions made and reasons assigned to quash.

      Lewis Z. Mitchell, Charles McCandless and H. H. Goucher, for plaintiff in error.
    The court erred in overruling and refusing to quash the indictment for the reasons embodied in the first assignment of error. The indictment shows on its face that the oath on account of which the perjury is charged, was to exceptions to bail on a writ of error then pending in the Supreme Court, which oath was neither required by law, rule or order of court, and hence the oath, though it were false, was not necessary, and was immaterial and extrajudicial, and an indictment could not be founded upon it. Rule “ 5” of the Supreme Court under which these exceptions'were filed, does not require an oath, and the information and indictment are fatally defective in not showing the materiality of the oath by setting forth by way of inducement, that the oath, on account of which perjury is charged, was required by law or rule of court. The oath could not have been material to the alleged issue in this case, for it is made the duty of the prothonotary to non pros, after ten days, when exceptions are filed to bail and notice given, although the exceptions be not sworn to, the requirements of the rule are complied with without an oath.
    The language of the court in their instructions to the jury was unwarranted and greatly prejudicial to the cause of the defendant. There is no sanction of law for 'such a charge, and it was unfair to the defendant. The allowance of'fees to eighty-two witnesses was unjustifiable.

      W. A. Forquer, District Attorney, contra.

    That the oath taken by the defendant and on account of which the perjury is charged, was not necessary, and hence not material, and was extrajudicial, we contend was question of fact to be ascertained from the evidence, which could not .be ascertained before the case was put on trial, and the rules and practice in the Supreme Court, in regard to exceptions to bail, were proven to the court and jury.
   Mr. Justice Paxson

delivered the opinion of the court, January 3d 1881.

This cause was removed into this court upon a writ of certiorari specially allowed by the chief justice under the thirty-third section of the Criminal Procedure Act of 31st March 1860, Pamph. L. 427. If anything were needed to vindicate the wisdom of this legislation, it is to be found within the four corners of this record.

The defendant below, who is a member of the bar, was indicted imthe Quarter Sessions of Butler county for the offence of perjury. The defendant had filed exceptions to the sufficiency of bail in error in a cause depending in this court. He accompanied the exceptions with his own affidavit, and it was the statements contained in the affidavit that were alleged to be false. There being no law which required exceptions to bail in error to be sworn to, the oath taken by the defendant was extrajudicial, and if false was not the subject of an indictment for perjury. A motion was made in the court below to quash the indictment upon this ground. Instead of doing so the learned judge proceeded to.try the case upon the mistaken idea that it was his duty to let “the light of day” in upon the transaction. This appears by the charge of the court. After instructing the jury that the oath taken by the defendant was extrajudicial, and for that reason there could be no conviction, the court said: “The defendant may, by a legal’ technicality, escape the consequences of the guilt of legal perjury ; yet he may go out of court stained all over — covered all over with moral perjury. He may go out of court a leper with the sin of moral perjury upon him as white as snow. That question is to be considered by you gentlemen in regard to the costs. That is where we feel constrained to say to you this case comes. We might, by giving the benefit of the doubt or doubts to the accused, have kept this case out of court, but we were of the conscientious belief, and are of that belief yet, that it was important that this prosecution should see the light of day — be spread out so the sunlight might penetrate its every part and particle, and to the utmost extent of the'court, that it should receive the condemnation, the moral condemnation that the act deserves.”

This language is intemperate and unfair. It is many degrees removed from the dignity and impartiality which should mark the judicial character. It is far more objectionable than the charge which this court pointedly condemned in Cox v. Derringer, 1 Norris 258, for the reason, amongst others, that Cox v. Derringer was a civil case, while the issue here involved both infamy and imprisonment.

It is but just to the defendant to say that there was' evidence from which the jury might have found that he intended no wrong; that the affidavit was made and filed under a misapprehension; carelessly, perhaps, but not corruptly. Yet of what avail would such evidence be in the face of the language I have cited from the charge ? Coming as it did with the weight of judicial authority, it could not fail to crush the defendant. The verdict imposing the costs upon him followed almost as a matter of course. The defendant having been sentenced to pay the costs, the Commonwealth’s bill was filed. It included $607.46 for pay and mileage of witnesses. But eight witnesses were examined on the part of the Commonwealth; fees and mileage were allowed to eighty-two witnesses. Upon appeal by the defendant the clerk of the Quarter Sessions reduced the bill to $218.28, which, with the record costs, $29.21, was paid by the defendant. The Commonwealth appealed from the taxation of the clerk and the court below set aside his taxation and sustained the entire bill. The present writ of certiorari was intended to reach this ruling upon the question of costs, and error has been assigned thereto.

We need not discuss our power to review the taxation of costs in this proceeding. The judgment itself must be reversed, and the costs fall with it. It was error to sentence the defendant upon an indictment which charged no legal offence. Had the indictment been good it might have been otherwise. Where it sufficiently charges an offence, a failure to convict for want of evidence does not take from the jury the control of the costs in cases of misdemeanors. But where an offence is neither charged nor proved the jury have nothing to do with the costs, nor have they any duties to perform whatever.

The judgment is reversed, the indictment is quashed, and it is further ordered that the defendant have restitution of the taxed costs so far as they have not been paid out by the clerk, or have been received by the prosecutor below; and that the record be remitted.