text:
    Directors of the Poor of Chester County versus Malany.
    1. In controversies between different districts (for the poor) either as to order for removal or for expenses incurred where such order could not be procured in time, the Quarter Sessions have sole and exclusive jurisdiction.
    2. This rule does not apply to eases of expenses incurred by an individual.
    3. Directors of the poor made a rule that outdoor relief should not be paid for in case of emergency unless they should be notified within three weeks after the emergency occurred. Held, that this rule did not apply when it was not known to those furnishing aid, that the person was a pauper.
    January 21st 1870.
    Before Thompson, C. J., Read, Sharswood and Williams, JJ. Agnew, J., at Nisi Prius.
    Error to the Court of Common Pleas of Chester county: No. 279, to January Term 1870.
    This was an action of assumpsit, commenced November 21st 1868, by William S. Malany against the Directors of the Poor of Chester county, for services as physician rendered to Albert M. Smith, a pauper. The case was tried November 8th 1869, before Butler, P. J.
    The evidence was, that on a night in December 1867, Smith, who was a single man, was badly frozen about three miles from West Chester, the residence of tbe plaintiff, and about nine miles from the poor-house of the county. He was in so dangerous a condition that it would have been unsafe to take him to the poorhouse; he was brought to West Chester, where he was attended by the plaintiff until July 1868.
    W. Whitehead, Esq., a justice of the peace, on'the 9th of June 1848, on the information of the plaintiff, issued an order declaring Smith a pauper.
    The plaintiff did not know that Smith was a pauper. There was no question made by the defendants as to Smith being a pauper, and as to the case being one of emergency.

      The principal ground of defence, and that especially urged in the Supreme Court, was that the directors had made certain rules under an Act of Assembly relating to Chester county, which prevented the plaintiff from recovering. The act was passed February 27th 1798 (3 Sm. L. 309.)

      “ Sect. 8. * * * The said directors respectively are hereby authorized, when they shall deem it proper and convenient so to do, to permit any poor persons to be maintained elsewhere; and if the pauper be married and the person to whom he or she is married is not supported at the county expense, it shall be the duty of the said directors to place the said pauper with the person to whom he or she is married, if required: provided the expense of such maintenance doth not exceed that of the house of employment.

      “ Sect. 9. The said directors * * * shall have full power to make and ordain all such ordinances, rules and regulations as they shall think proper, convenient and necessary for the direction, government and support of the poor and houses of employment aforesaid, and of the revenues thereunto respectively belonging, and of all such persons as shall come under their care or cognisance, provided the same be not repugnant to this law, or any other of the laws of this state or United States; and provided also, that the same shall not have any force or effect until they shall have been submitted to the president and associate judges of the Court of Common Pleas for the time being, for the district within which the said county of Chester or Lancaster shall be, and shall have received the approbation of said court.”
    In pursuance of this act the directors established these “ rules and regulations in reference to out-door paupers:”
    “ 1. All relief hereafter rendered to paupers, whether for medical attendance or otherwise, must be furnished at the alms-house, unless in cases of extreme emergency, when delays would peril life, or expose the pauper to serious injury were he to be removed, and except also in such cases as in accordance with the Act of Assembly, the directors may deem it proper and convenient to authorize that the pauper be maintained elsewhere.

      “ 2. Except in cases of emergency, as mentioned in the 1st regulation, no payment will be made for medical attendance, or other relief outside of the alms-house, unless the same shall have been permitted by special order of the directors before it is rendered.
    “ 3. No payments will be made by the directors for medical attendance or other relief furnished, unless the person claiming pay shall appear before a justice of the peace and have the poor person duly constituted a pauper, by and with the consent of such person ; and the person claiming pay shall also’notify said justice of the earliest occasion it is suitable to remove said person to the alms-house, whereupon said justice shall issue his warrant to the constable and have the removal made.

      “ 4. The person claiming pay as above, must also duly notify one of the directors of the circumstances of the case within three weeks after the first services shall he rendered to the pauper.
    “ Robert L. Walter, 1 tv , „ “ S. Butler, ’ ’} Sectors.

      “ Now, to wit: June 21st, 1867, the foregoing rules and regulations having been presented according to the provisions of the 9th section of the Act of Assembly of February 27th 1798, relating to the support of the poor in the counties of Chester and Lancaster, the same are approved by the court.”
    It was admitted by the plaintiff that he had received notice of these rules before his attendance on Smith.
    The defendants submitted these points :—
    1. The directors of the poor of Chester county had power to make the rules and regulations in evidence in this case, and said rules and regulations having been approved by the judges of the Court of Common Pleas, are binding on the plaintiff.
    2. The plaintiff having failed to comply with said rules and regulations, cannot recover for the alleged services to the pauper claimed in this case.
    3. The plaintiff cannot in any event recover for more than three weeks’ services.
    4. The Court of Common Pleas has not jurisdiction in this case.
    The court denied the defendants’ points, saying amongst other things:—
    “ But the defendants urge that the rule established by the directors requiring notice (for this is the only one of the series referred to in the points involved in the case), and the plaintiff’s failure to comply therewith relieved them from obligation to pay. We are not of this opinion. The obligation is imposed, as we have seen, by the Acts of Assembly and the decisions of the court, and no rule enacted by the directors can therefore remove or affect it.
    “ But were this otherwise, the rule here relied upon would seem to be inapplicable to a case such as we are trying. The plaintiff had no knowledge of the facts of which the rule requires notice— knew nothing of his patient’s circumstances. When called in he saw a stranger suffering almost in the agonies of death, and without a question or a thought in respect to compensation, as he tells us, he rendered his services, learning, for the first time, that his patient was poor and unable to pay after he had ceased to attend. Is the rule applicable to such a case ? It .reads, ‘ Any person claiming as above (for services rendered a pauper during emergency), must duly notify one of the directors of the circumstances of the case within three weeks after the first service shall have been rendered to the pauper.’ This language certainly implies that the claimant shall have knowledge that the individual relieved is a pauper, or at least have reason to believe so; and it should not, therefore, be applied to a case like the one before us, where he had not such knowledge, and where there was nothing, so far as appears, to put him on his guard.
    “ If the rule was intended to require -an immediate examination into the pecuniary circumstances of the individual whose necessities, by reason of accident or sudden illness, call for relief, and a report thereon to the directors, on pain of receiving no compensation for relief afforded, and is to receive .such a construction, then, we think, it should be held to be unreasonable, and therefore without force. The inquiry in many cases which may be supposed would be entirely unavailing, and in all cas.es would be indelicate and repulsive. A physician, called to the bedside of a patient maimed and suffering, his life for weeks trembling in the balance (as in the case before us), cannot be required to give his thoughts or his attention to such a service.
    “ In regard to the 4th point, we will only say that the Common Pleas has so long and so frequently exercised jurisdiction in these cases, and with the apparent approval of the Supreme Court, that we cannot turn the plaintiff out on this ground.”
    The verdict was for the plaintiff for $127.Í0..
    On the removal of the case to the Supreme Court, the defendants assigned the answers to their points for error.

      W. M. Sages and P. P. Smith (with whom was Q-. P. Smithi), for plaintiffs in error.
    — On the subject of the jurisdiction of the Court of Common Pleas, they referred to the Acts of March 9th 1771, 1 Sm. Laws 332; February 27th 1798, § 5; 3 Sm. Laws 308; June 13th 1836, Pamph. L. 541, Purd. 795, et seq.; Act of April 15th 1867, Pamph. L. 78, Purd. 1472; Versailles v. Mifflin, 10 Watts 360; Sugar Loaf v. Schuylkill Co., 8 Wright 481; Nippenose v. Jersey Shore, 12 Id. 402 ; Marion v. Spring, 14 Id. 308; Act of March 21st 1806, 4 Sm. L. 432, Purd. 41 pl. 5. As to the effect of the rules of the directors, they referred to Directors v. Murry, 8 Casey 178, and the Act of 1798, above cited, relating to the poor of Lancaster and Chester counties.

      W. Darlington, for defendant in error.
    — As to jurisdiction referred to : North Whitehall v. South Whitehall, 3 S. & R. 117; Thornbury v. Directors, 12 Id. 110; Roxborough v. Bunn, Id. 292; Overseers v. McCoy, 2 Penna. R. 432; Directors v. Wallace, 8 W. & S. 94; Bradford v. Keating, 3 Casey 275; Franklin v. Hospital, 6 Id. 522; Directors v. Murry, 8 Id. 178; Directors v. Worthington, 2 Wright 160; Overseers v. The Directors of Schuylkill, 8 Id. 484; Commissioners v. Hall, 7 Watts 290; Allegheny County v. Watt, 3 Barr 462; Com. v. Harman, 4 Id. 269; County of Northampton v. Innes, 2 Casey 156; Lancaster County v. Deen, 2 Grant 262.
    January 13th 1870,
   The opinion of the court was delivered,

by Sharswood, J.

— This was an action of assumpsit commenced in the Court of Common Pleas of Chester county by the plaintiff below, who was a practising physician, against the directors of the poor and of the house of employment of the county of Chester, to recover for medical services rendered by him to a poor person, for which he claimed that the said directors were by law liable.

It is contended that the court had no jurisdiction, and that if the plaintiff had any right, his remedy was by petition to the Court of Quarter Sessions for an order on the directors for the payment of his claim. The question thus raised has never been decided by this court. Laying aside proceedings upon orders of removal which have no application in this case, and where by the 19th section of the Act of June 13th 1836, Pamph. L. 539, any person aggrieved may appeal to the next Court of Quarter Sessions, it is provided by the 23d section that in case any person falls sick or dies in any district before he has gained a settlement so that he cannot be removed, the overseers of such district shall as soon as conveniently may be, give notice to the guardians or overseers of the city or district where such person had last gained a settlement, and if they shall neglect or refuse to pay the moneys expended for the use of such poor person, it is made the duty of the Court of Quarter Sessions of the county where such poor person was last settled, upon complaint to them made to compel payment by such guardians or overseers of all such sums of money as were necessarily expended for that purpose. This provision is evidently confined to the case of the overseers of one district relieving a pauper chargeable to another. In those cases under the poor laws in which a special remedy is provided in the Court of Quarter Sessions, that remedy must be pursued. By the 13th section of the Act of March 21st 1806, 4 Smith 312 — a statute of frequent reference in our books — “ in all cases where a remedy is provided or duty enjoined, or anything directed to be done by any Act or Acts of Assembly of this Commonwealth, the directions of the said acts shall be strictly pursued and no penalty shall be inflicted or anything done agreeably to the provisions of the common law in such cases further than shall be necessary for carrying such act or acts into effect.” Applying the rule established by this legislative precept, it follows that in all controversies between different districts, either in cases of orders of removal or expenses incurred where such order could not be procured in time, the Quarter Sessions have the sole and exclusive jurisdiction. This remits to that tribunal in a summary proceeding the decision of all such questions. “ The design of the Act,” says Sergeant, J., “ was to give thfe Quarter Sessions jurisdiction over this class of cases, so as to enable them to act promptly and with as little expense as possible in compelling those districts to maintain paupers on whom the burden was imposed by law:” Versailles v. Mifflin, 10 Watts 360. “ The policy of the statute,” says Woodward, J., “ is to commit pauper eases to the jurisdiction of the Quarter Sessions that speedy relief and justice may be administered:” Sugarloaf v. Schuylkill, 8 Wright 481. The legislature subsequently,” said the same learned judge, when Chief Justice, “ having committed the care of paupers to the Quarter Sessions and clothed that court with summary powers, which are equal to all exigencies, common-law remedies would seem to be displaced by necessary construction of the Act of 1806 :” Nippenose v. Jersey Shore, 12 Wright 402; and see Marion Township v. Spring Township, 14 Wright 308. These are all cases between contending districts. I have made as careful and thorough a research as time would allow through all the reported cases in this court, and have found only five in which jurisdiction was assumed in the Common Pleas by a common-law remedy. The first is North Whitehall v. South Whitehall, 3 S. & R. 117, where a township had been divided, and an action was brought by one part against the other to recover its proportion of the expenses of a pauper who had been previously a charge on the old township. No question was made as to jurisdiction, and indeed that case was not properly within any section of the then existing Act of March 9th 1771: 1 Smith 332. The next is Hopewell v. Independence, 2 Jones 92, in which the controversy also arose out of the division of a township. To this succeeded Bradford v. Keating, 3 Casey 275, and Schuylkill v. Montour, 8 Wright 484, in which it was held that an order for the removal of a pauper, unappealed from, is conclusive against all parties bound by it, and that hence in a civil action brought by overseers of a township for maintenance and expenses of a pauper against the poor directors of a county to which he had been removed by an order of removal, unappealed from, the question whether the Common Pleas had jurisdiction to try a settlement case does not arise. The last case which I have found is Nippenose v. Jersey Shore, 12 Wright 402, before cited, which was an action by one township to recover for the maintenance of a pauper chargeable to the defendants, and would seem to have been within the 23d section of the Act of 1836. The question of jurisdiction, though adverted to in the opinion, was not however raised or passed upon.

But although by the Act of 1836 a special remedy is enacted in the case of one poor district paying the expenses of a pauper fop which another is legally liable, and therefore by the canon of construction established by the Act of 1806 such remedy must be pursued to the exclusion of the common law, yet we look in vain through this or any other act for such a provision where the expenses are incurred by an individual. Actions at common law in such cases have been often sustained, and though sub silentio, it must be regarded as very conclusive evidence of the sense of the bench and the bar upon the subject: Roxborough v. Bunn, 12 S. & R. 292; Overseers v. McCoy, 2 Penrose & Watts 432; Directors v. Wallace, 8 W. & S. 94; Franklin v. Pennsylvania State Lunatic Hospital, 6 Casey 522; Directors of Westmoreland v. Murry, 8 Id. 178; Directors of Chester v. Worthington, 2 Wright 160. This disposes of the 3d specification of error as to the jurisdiction of the court.

Upon the question which arises upon the 1st and 2d assignments, as to the liability of the defendants below to the plaintiffs, we concur with the learned judge that The Directors v. Worthington, 2 Wright 160, is an authority in point. That was a case from Chester county, though the Act of February 27th 1798, entitled “ An act to provide for the erection of houses for the employment and support of the poor in the counties of Chester and Lancaster” (3 Smith 306), does not seem to have been brought to the notice of the court. It was there held that relief may be extended to one entitled to the benefit of the poor laws without an order, in cases of emergency, and the directors are liable to pay for necessary relief furnished by others, provided an order of approval be obtained afterwards. The Act of 1798 requires the removal of paupers to the poor-house, “ except in cases where by sickness or other sufficient cause any poor person cannot be removed,” and the rules adopted by the directors in pursuance of the act prohibiting outdoor relief, expressly except “ cases of extreme emergency, when delays would peril life or expose the pauper to serious injury.” The rule which declares that any person claiming pay for medical attendance must notify one of the directors of the circumstances of the case within three weeks after the first services shall be rendered to the pauper, has no application, as the learned judge below properly held, to the case of a party who Had no knowledge of the patient’s circumstances at the time the services were rendered — that he was a pauper with whom the district was chargeable. It would be an unreasonable interpretation of the rule to require a physician, called suddenly to attend a stranger in suffering and danger, to institute an inquiry into his circumstances and condition in life. No high-minded professional gentleman would ask his patient any question upon such a subject, and in many cases it would be improper to do so. Must the district escape the liability to which it is rightfully subject unless he does ? It may be just and wise to require such a notice in the case of a known pauper; but even if the rule were susceptible of the construction contended for by the plaintiffs in error, it may well be questioned whether it would be within the power conferred upon them to make “ such ordinances, rules and regulations as they shall think proper, convenient and necessary for the direction, government and support of the poor and houses of employment aforesaid, and of the revenues thereunto respectively belonging, and of all such persons as shall come under their care or cognisance; provided the same be not repugnant to this law (of 1J98), or any other of the laws of this state or the United States.” They cannot by such a rule relieve the district from a legal obligation imposed as we have seen by the act, without any such condition or limitation.

Judgment affirmed.


source: Caselaw Access Project

author: by Sharswood, J.

license: Public Domain

text:
    Kramer et al. versus Marks.
    1. The prohibition of the Act of April 2d 1822 (Hucksters near religious meetings) was not intended to be against traffic in all articles, but that in spirituous liquors, or strong drink, &c.
    2. Fetter v. Wilt, 10 Wright 457, approved.
    January 25th 1870.
    Before Thompson, C. J., Read, SharswooD'and Wiilliams, JJ. Agnew, J., at Nisi Prius.
    Error to the Court of Common Pleas of Snyder county: No. 235, to January Term 1870.
    This was an action of trespass d. b. a. by Joseph Marks against Benneville Kramer and others. The writ was issued September 9th 1869.
    The defendants were a committee of the religious denomination of “United Brethren in Christ,” who were holding a camp meeting in Chapman township, Snyder county. The plaintiff was a huckster who had a stall in the vicinity (less than three miles) of the camp meeting, for the sale of various articles of food and refreshment. The evidence was conflicting as to whether the plaintiff had spirituous or fermented liquors. He was warned by a justice of the peace and constable and also by two freeholders of the county to desist and remove his stall and goods. He refused. Under the direction of the justice, constable and two freeholders, the constable seized the goods and sold them.
    This proceeding was under the 1st and 2d sections of the Act of April 2d 1822: 7 Sm. L. 660 j Purd. 865, pi. 4, 5.
    Sect. 1. “ It shall not be lawful for any person or persons to erect, place or have any booth, stall, &c., for the purpose or use of selling, giving or otherwise disposing of any kind of articles of traffic, spirituous liquors, wine, porter, beer, cider, or any other fermented, mixed or strong drink (excepting as hereinafter excepted), within three miles of any place of religious worship in this state, during the time of holding any meeting for religious worship at such place.”

      Sect. 2. “ If any person or persons shall or do violate this act by erecting, fixing or having any booth, stall, &c., for the purpose or use aforesaid, or by selling, bartering, giving or otherwise disposing of any kind of articles of traffic, spirituous liquors, wine, porter, beer, cider or other fermented, mixed or strong drink, in, at or about, any such booth, stall, &c., for the purpose aforesaid, within three miles of any place of religious worship, during the time of holding any meeting for religious worship at such place, the person or persons so offending shall first be informed of his, her or their violation of this act, and shall be warned by any justice of the peace, constable or two freeholders of the county, where the offence is or shall have been committed, to desist from such offence, and to remove such booth, stall, &c., together with all such articles, spirituous liquors, wine, porter, beer, cider or other strong drink, belonging to or in the possession of the person or persons so offending, and if such person or persons on receiving such information or warning, shall forthwith cease to offend against this act, and shall remove as aforesaid, at least three miles from such place of religious worship, then no further proceedings under this act shall be had against such person or persons; but if such person or persons shall refuse or neglect immediately to remove as aforesaid, when informed and warned as aforesaid, then all the said articles of traffic, spirituous liquors, wine, porter, beer, cider and other fermented, mixed and strong drink, and all the vessels, chests and other things containing the same, together with such booth, stall, &c., prepared or used for the purpose aforesaid, shall be and are hereby declared to be forfeited, and it shall be lawful for any justice of the peace and constable, with two freeholders of the county, to seize and take possession of all or any part of the said forfeited articles and liquors, together with such booth, stall, &c., and at any time within ten days after, to advertise and sell the same, and after deducting and paying the necessary and lawful expense of such seizure and sale, the residue of the proceeds of such sale shall he paid to the overseers of the poor of the township, &c.
    The court, amongst other things, charged : * * *
    “ We cannot think that the only thing intended to be prohibited by £ any kind of traffic,’ refers only to spirituous liquors, beer, &c. To our mind, it is a very narrow construction to put on this Act of Assembly, but as we said above, this act has received a construction by the court of last resort in our state, and we feel bound by their construction, and we submit our judgment to theirs, and instruct you that the law is to be construed as that court has done in the case of Eetter v. Wilt, 10 Wright 459.
    “ This then being the law, we instruct you in the language of Justice Thompson. The prohibition in the act is against the ‘traffic’ in 1 spirituous liquors, wine, porter, beer, cider, or any other fermented, mixed or strong drink.’
    February 7th 1870,
    “ If the plaintiff had any of these prohibited articles there for sale he was violating the law, and the defendants had a right to do as they did do, but if he had not any of these things at his booth for sale, then the law would not justify them in their acts and the plaintiff would be entitled to recover.
    “If you shall believe that the plaintiff did not have any intoxicating liquors at his booth, then under the decision above referred to, the defendants would not be protected by its terms. Then if you shall so find, what damages has the plaintiff sustained?”
    The verdict was for the plaintiff for $75.
    The above portion of this charge was assigned for error by the defendants, who removed the case to the Supreme Court.

      J. 0. Bucher and W. Van Grezer, for plaintiffs in error.

      J. W. Knight and A. 0. Simpson, for defendant in error,
    cited Fetter v. Wilt, 10 Wright 457.
   The opinion of the court was delivered,

by

Sharswood, J.

— For myself I do most fully concur in the opinion of the present Chief Justice as expressed in Fetter v. Wilt, 10 Wright 457^ that so much of the 2d section of the Act of April 2d 1822, Pamph. L. 286, as provides for the seizure, forfeiture and sale, of all the articles of traffic, &c., together with the booth, stall, tent, carriage, boat or vessel of any person offending against that act, is in plain violation of the declaration of rights : Const. of Penna., Art. IX., § 6, 8, 9, and therefore unconstitutional and void. It is not necessary however in this case any more than it was in that to decide that question. It was there held, and upon the soundest reason, that the prohibition of the act was not intended to be against all articles of traffic, but of traffic in spirituous liquors, wine, porter, beer, cider or any other fermented, mixed or strong drink.” It would not be proper to impute to the legislature the absurdity of this special enumeration, if the first words were meant to include all articles of traffic. It is much more reasonable to consider that the words “ articles of traffic” were intended to be followed by a videlicet or “that is-to say.” The whole spirit of the law confirms this construction. As the jury found that the defendant had'not violated the law according to this interpretation of it, there is no error in this record. It was not in very good taste in the court below to read to the jury the case of Fetter v. Wilt (if indeed they did, which does not certainly appear), especially accompanied with remarks disapproving of it, but in that there is nothing of which the plaintiffs in error have any right to complain.

Judgment affirmed.


author: by Agnew, J.

text:
    Hilbish et al. versus Catherman et al.

    1. Where a draft was impending, school directors agreed to pay for recruits $400 each, they could not be had for less than $550. Public meetings, at which there was a general turnout, were held, and it was arranged that a subscription to pay the excess over $400 should be raised, seventy-six pledged themselves “ to raise bounty for volunteers.” There was no agreement or understanding or expectation that a law would be procured for repaying the subscriptions. An act was passed authorizing the school directors to levy a tax to repay the subscriptions. Held, that the act was constitutional.
    2. An act cannot be declared unconstitutional unless its violation of the Constitution is so manifest as.to leave no reasonable doubt.
    3. Taxes are the revenue collected from the people for objects in which they are interested; for things useful and conducive to their welfare.
    4. There is no difference between a precedent authority for payment to such an object and a subsequent compensation for the same thing.
    5. It is not the hope or expectation of repayment which constitutes the ground of authority to refund, but the public benefit received, which creates the moral obligation and constitutes a sufficient consideration.
    6. The bounty system is exceptional, temporary and peculiar.
    7. Weister v. Hade, 2 P. P. Smith 474, and Tyson v. School Directors of Halifax, commented on.
    January 25th 1870.
    Before Thompson, G. J., Bead, Agnew, Sharswood and Williams, JJ.
    Appeal from the decree of the Court of Common Pleas of Union county: In Equity: No. 257, to January Term 1870.
    On the 19th of April 1868 Jacob Hilbish and others filed a bill against Ira Catherman and others, school directors of Lewis township, Abraham Mensch, treasurer, and Christian Mensch, collector of the same township. The bill set out:—
    8. The school directors of Lewis township, on the 14th of March 1868, levied a tax for the sum of $3450 for the purpose of refunding to those who contributed by subscription to the bounty fund to raise its quota under the last call of the President “such sum as they respectively paid to said fund above the amount collected from them by law,” and issued a warrant to the collector to collect the sum and pay it to the treasurer of the bounty fund, who should pay to each subscriber such part of his subscription as had not been refunded to him, with costs and expenses incident to raising said fund.
    • 4. Set out the amount levied on the plaintiffs.
    5. The tax was illegal, without authority of law, and unconstitutional.
    6 and 7. The subscription for which the tax was levied was voluntary, without any promise, understanding, agreement or expectation that it would be refunded by taxation to make up a fund to pay volunteers to clear the township from the draft.
    The defendants answered—
    8. It required seventeen men to fill the quota of the township under the last call of the President. By then existing laws the township could not levy a bounty tax for more than $400 for each volunteer. Volunteers could not be obtained for less than $550 each, and it became necessary to raise the excess over $400 by other means than taxation. Certain citizens, at the request of a large majority of the citizens and the school board, subscribed to the amount of $4200, of which $3447.47 were collected and appropriated towards procuring volunteers, and the tax complained of had been levied to repay the subscriptions.
    5. There was at the time of the subscription “ no understanding or agreement either amongst the subscribers themselves or between them and any of the constituted authorities or citizens of said township, that the same was to be refunded or paid back by taxes to be levied upon said township.”
    6. Denied that levying the tax was illegal or unconstitutional, but had been done under an Act of Assembly of the 14th of February 1868, Pamph. L. 145, as follows:—
    “Whereas, the board of school directors of Lewis township, Union county, in order to raise its quota of men under the last call for troops by the President, levied and collected a tax for that purpose; but under the law then in force they could not lay the tax for more than would pay each man a bounty of $400: And whereas, men could not be got for less than a bounty of $550, and in order to make up the excess over the amount of what the tax levied would cover, a subscription was got up which was signed by about seventy-five individuals, each one subscribing a certain sum, out of which subscription the excess required was raised and the quota filled : And whereas, it would be right and fair that the persons who contributed to the sum required to make up the aforesaid sum, should have the amount which they respectively paid refunded out of a tax laid on the taxables of the township in order to equalize the bounties among all alike; therefore,
    “ Sect. 1. Be it enacted that the school directors of Lewis township, in the county of Union, be and they are hereby authorized and directed, as soon after the passage of this act as may be, to levy and collect from the taxables of said township, in the same way school taxes are by law levied and collected, a sum not exceeding $3450, for the purpose of refunding to those persons who contributed by subscription to the bounty fund of said township, in order to raise its quota of men under the last call of the President, such sum as they respectively paid to said fund above and beyond the amount that was levied and collected from them by law, that is, in pursuance of said subscription; which sum as soon as collected shall be paid into the hands of Abraham Mensch, treasurer of the school board, whose duty it shall be to pay to each of said subscribers such part of his subscription as has not been refunded to him already, and then the costs and expenses incident to raising said fund, and putting the men into the service of the United States; should any balance be left after the payment and distribution aforesaid, then the same shall vest in the school fund.”
    The case was referred to Alfred Hayes, Esq., as master. The facts are found in his report.
    He reported:— * * ■
    “ That a number of meetings, ranging from two to six and perhaps more, were held in the month of March 1865, of the taxable citizens of Lewis township for the purpose of procuring volunteers and raising the money to pay men the necessary bounties, in order to save the township from an impending draft, the quota of said township being seventeen, at that call of the government of the United States for volunteers. At these meetings there was a general turnout of the citizens, and a majority of the school directors attended. These meetings were organized. * * * Resolutions were adopted and minutes of the meeting were kept, but the minutes have been all lost or mislaid. At these meetings there was no doubt expressed but that the authorities would levy a tax up to the full amount of $400 per volunteer, as provided by the Act of Assembly of the 15th of March 1865. It was the positive understanding that the authorities would raise $400 per volunteer in that way. No volunteers could be procured for less than about $550 per volunteer, and in order to raise the balance of excess over and above the $400 which could be got by taxation, recourse was had to a subscription on the part of the citizens of the township, that being considered by them the only feasible plan of raising the money. The subscription was headed as follows: ‘We the undersigned citizens of Lewis township, in the county of Union, pledge ourselves to the sums opposite our names to raise bounty for volunteers for said township to be collected by a due course of law, or waiving the exemption law,’ to which subscription paper are appended the names of some seventy-six of the citizens of Lewis township, subscribing a sum amounting in the aggregate to about $4200. The subscription paper was principally signed at one of the meetings, though the paper was also carried to a number at their residences who subscribed there. This subscription paper was signed with the understanding that the school directors were to levy and assess a tax for the sum of $400 per volunteer; that the rest of the money necessary to procure and put in the volunteers was to be raised by subscription, and if, after putting in the volunteers, any balance or surplus remained, said balance or surplus was to be refunded to the subscribers pro rata, and, as before stated, the subscription was made to raise volunteers to fill the quota of Lewis township under the call of the government of the United States for troops. With the tax of $400 per volunteer, and the amount of the subscription thus taken, there were ample funds to procure and put the volunteers into the service. The seventeen men constituting the quota were obtained and mustered in. All the expenses incident to this business were paid. A surplus remained on hand, and this surplus was divided among the subscribers fro rata, giving to each one a return of about 22 per cent, on his subscription. This disposes of all the important facts concerning which testimony was produced before the master with one exception, to wit, whether at the time these subscriptions were made, they were made with or upon the agreement, understanding, hope or expectation that an Act of Assembly would be afterwards passed to raise by taxation a fund for the purpose of repaying these subscriptions.” * * *
    “ The master has no hesitancy in arriving at the conclusion that the subscriptions were made and the money paid without any agreement, promise, understanding, hope or expectation that the subscribers would ever have their subscriptions or any part of theirs refunded out of moneys raised by taxation. There is no evidence of any resolution being adopted at any of the meetings looking toward the future laying of a tax to refund the subscriptions, or toward the procurement of an Act of Assembly for that purpose. There was no announcement of that kind made by the school directors, corporate authorities or the officers of the meetings to subscribers. Those who subscribed at their residences or at other places than the meeting, according to the testimony, clearly did so either without anything at all being said about the refunding of their subscriptions, or at most only a repayment of the surplus.” * * *
    “ These subscriptions, therefore, the master finds not to be advances made to the school directors, corporate authorities or any committee of citizens upon a promise, understanding, hope, expectation or agreement of future reimbursement, either from moneys to be raised by taxation or otherwise, but to be mere voluntary donations to the bounty fund, and that when said subscriptions were made and the money paid over, the subscribers (saving the hope of a return of the surplus not required for the purpose) believed that they had parted with their money for ever.
    “The Act of 14th February 1868 is in evidence in this case. The enforcement of the provisions of this act is the ground of complaint on the part of the plaintiff, and the origin of this suit in equity; but the taxes complained of by the plaintiffs cannot be said to be levied and assessed without authority of law, unless said Act of Assembly be invalid.” * * *
    “ The present case depends upon this Act of 1868, the constitutionality of which is denied by the plaintiffs and affirmed by the defendants, and the whole question is narrowed down to this: Can the legislature of the Commonwealth constitutionally pass an act authorizing a tax to be levied, assessed and collected for tbe purpose of refunding to tbe subscribers tbeir subscriptions previously made and paid to a bounty fund, voluntarily donated at tbe time, without any promise, agreement, hope or expectation that tbe same would ever be refunded to them ? With this question tbe master declines to deal. * * * He finds upon tbe statute book this Act of Assembly of 14th February 1868, authorizing and directing tbe school directors to levy and collect a certain sum of money for the purpose of refunding these very subscriptions. The levying and collecting of these taxes, complained of by tbe plaintiffs, is fully authorized and warranted by this special act. Whatever tbe facts may be, tbe master does not consider himself tbe proper authority or tribunal to declare said action invalid or unconstitutional. It must therefore necessarily be regarded by tbe master as constitutional and valid, and if so, tbe conclusion is plain that the plaintiff’s bill must be dismissed at bis costs.”
    May 5th 1870,
    The court (Woods, P. J.), after exceptions, confirmed tbe report of tbe master, and dismissed tbe bill with costs.
    Tbe plaintiffs appealed, and assigned this decree for error.

      J. M. Linn and W. 0. Lawson, for appellants,
    cited Menges v. Dentler, 9 Casey 495; Phila. Association v. Wood, 3 Wright 84; Norman v. Heist, 5 W. & S. 171; Caster v. Tidewater Co., 7 Amer. L. Reg. 760; Herser v. Casselberry, 23 Leg. Int. 405; Tyson v. School Directors, 1 P. F. Smith 9.

      A. H. Bill, J. 0. Bucher and W. Van Gezer, for appellants,
    cited Speer v. Blairsville, 14 Wright 150; Sharpless v. Philadelphia, 9 Harris 147.
   Tbe opinion of tbe court was delivered,

by Agnew, J.

— This case differs from any bounty case yet decided, and requires its facts to be clearly stated, in order to perceive tbeir true bearing and the proper principles to be applied. They are these. In March 1865, a draft was impending under tbe last call of tbe President of tbe United States for troops. Seventeen was the' number apportioned to Lewis township, Union county, under tbe Acts of Congress, which recognised the municipal divisions of tbe state for draft purposes, and enabled the draft to be avoided by the enlistment of volunteers. Tbe school directors of the township were willing to levy a tax, and to pay bounties to volunteers to enable tbe township to escape tbe draft, but tbe laws then in force limited tbe sum to be paid to each volunteer to $400; and it was found they could not be bad for less than $550. Public meetings were held, at which there was a general turnout of tbe citizens, and a quorum of tbe school board was present. It was arranged that tbe school directors should levy a tax to tbe extent of $400 for each volunteer, and that a subscription should be raised to pay the excess. Seventy-six subscribers pledged themselves in writing “ to raise bounty for volunteers for said township.” There was no agreement or understanding — not even a general expectation, that a law should be- procured for repayment of these subscriptions ; but the school directors levied a tax and paid $400 to each volunteer, and the subscribers paid the excess. An Act of Assembly was passed on the 14th of February 1868, Pamph. L. 145, reciting these facts substantially, and stating that it would be fair and right that the persons who contributed the sum required to pay the excess, should be refunded by a tax on all the taxables of the township, in order to equalize the bounties among all alike. The act then gave authority to the school directors of Lewis township to levy and collect a tax for the purpose, and they are now proceeding to do so. The plaintiff’s bill seeks to restrain them on the ground that the act referred to is unconstitutional.

In order to determine the case the bearing of the facts stated must be noticed.

1. The money was subscribed for a public, useful and indeed imperative purpose, recognised as such by this court in repeated decisions.

2. It was done with the approbation and general desire of the citizens, expressed at public meetings.

3. It was done in aid of the township, and concurrently with the action of its constituted authorities, acting up to the limit of the powers conferred by law. The simple proposition therefore is, whether the legislature is not competent to tax the township to refund the money advanced for its benefit, in aid of its citizens, and expended with their approbation and that of their public officers. We cannot declare this act unconstitutional unless we can say, in the language of Judge Tilghman, that “its violation of the constitution is so manifest as to leave no reasonable doubt.:” Com. v. Smith, 4 Binn. 123; or, in the language of many federal and state judges, that it violates the constitution so clearly, palpably, plainly, as to leave no doubt or hesitation in our minds: Sharpless v. Philada., 9 Harris 164-; or, unless we can deny that a tax law must be considered valid, unless it be for a purpose in which the community has .palpably no interest: Id. 168. How can we say this, unless we hold that the many hundred laws on our statute book, never heretofore questioned, are void, granting pensions and gratuities for past services, swords, medals, and mementoes for illustrious public actions, rewards for useful arts, donations to fire companies, agricultural societies, colleges and schools, imposing taxes to pay for property destroyed by mobs, and many other matters which will occur to every one.

What are taxes but the revenue collected from the people for objects in wbicb they are interested — the contributions of the people for things useful and conducive to their welfare ? This being the purpose of taxation, there can be no difference between a precedent authority for payment to such an object and a subsequent compensation for the same thing. The case before us is a fit illustration. Here was a general law conceded to be valid to the extent of the $400 of the $550 needed to pay the volunteer. But that less sum could not procure him. Had the general law extended the limit to $550 the whole sum could have been levied by taxation. But as to the public object and interest there is no difference between the $400 authorized to be paid and the $150 not authorized. The $150 was advanced for the same purpose, paid to the same persons and at the same time, and in relief of the same people. The special act simply comes in to compensate for the excess. As it regards the public on what different footing does it stand ? There is no difference between this case, and that of one who builds a bridge or a court-house for a specified sum. He can recover no more; but if in fact he has, by a rise in prices, an act of God, or for any other good cause, been compelled to expend a larger sum, will any one doubt the power to pay the actual cost of the work out of the public treasury ? The public received the benefit, and it is just and right that the public money should pay for it.

But it is said this court has heretofore held that there can be no recovery of bounties without a contract with the public to pay them; and that no taxes can be laid to refund advances for bounties, without they were made on the public credit. This is true, but why is it true ? Because such has been the bounty system of the state. The legislature, by its general system, properly made bounties dependent upon the consent of the public authorities, to prevent unwarranted burthens being laid upon the people. They therefore required a precedent authority. But in this act they'havejchosen to provide compensation for a precedent thing. We have not decided in any case that an advance of money, made for the actual benefit of the public, cannot be compensated, though made at the time without legal authority, or an expectation of its being repaid. It is not the hope or expectation of repayment, which constitutes the ground of authority to refund; but the public benefit received. That it is which creates the moral obligation —that imperfect but conscientious duty, which constitutes a sufficient consideration, either for a public or a private agreement to pay for the benefit conferred. In principle Weister v. Hade, 2 P. F. Smith 474, decides this case. The only difference is that there the subscriptions were made upon the common understanding among the people and their authorities that a law would be procured to refund the money subscribed. But it is manifest that understanding could create no public liability to refund — it only intensified the moral duty, but it was the public use of the money only, which warranted the passage of the law to refund it. We made that understanding an element because we found it in the case; and for the same reason influencing us in all our decisions upon the bounty laws, we have adhered closely to the facts in each case. The whole system is exceptional, temporary and peculiar, and we have constantly endeavored to keep every case within its strictest limits, taking no step in advance, and indicating no liability beyond that which the precise extent of each case called for. Hence expressions may be found in some opinions, more restrictive than the present case will admit of. That is especially so in Tyson v. School Directors of Halifax, 1 P. F. Smith 9. The precise point decided in that case was that the claim of the Bounty Association of Halifax township did not fall within the true meaning and sense of the special Act of August 25th 1864. Some of the expressions in the opinion of our Brother Thompson would indicate a belief inconsistent, probably, with the decision now pronounced. But it is just to say that he dissented from the judgment of the court in Spear v. The School Directors of Blairsville, 14 Wright 150; and whenever the naked question of the power to pay bounties has arisen, he has not agreed with the majority. Could we look upon taxation to pay bounties to volunteers to relieve the township from a draft as the application of public moneys to private ends, we should agree that the principles decided in Norman v. Heist, 5 W. & S. 171, and cases of like character, would forbid the application of the public revenue to the payments made in this case. The simple fact in Norman v. Heist was that an Act of Assembly ordered the property vested by law in one person to be transferred to another. It cannot be doubted that the legislature cannot take the property of one man and give it to another; it cannot tax the public to give the revenue to a wholly private object; and it cannot tax a few individuals to perform a general public work. In Hammett v. City of Philadelphia, decided May 1869, and Durach et al. v. Borough of Johns-town, 12 P. F. Smith 491, we have had occasion recently to examine with much care the foundation of the power to tax, and we cannot see that the Act of Assembly in the present case transgresses the limits of legislative power.

The decree of the court below is therefore affirmed, with costs.

Thompson, C. J., dissented.


author: by Thompson, C. J.

text:
    Reitz’s Appeal.
    1. Fisher conveyed real estate, a steamboat and other property to Reitz, with the stipulation that Reitz should reconvey within a year at the same price on three months’ notice by Fisher. Fisher gave the notice; before the time for reconveyance the boat was wrecked by an ice flood. On the day fixed in the notice, Keitz tendered a conveyance of all the property, including the boat in its wrecked condition. Held, that Fisher was not bound to accept.
    2. The notice amounted only to an engagement to take the property sold to Ileilz.
    3. It was not a present purchase, so as vest the property in Fisher.
    4. If the personal property did not exist in the form it was when the reservation for repurchase was made, Fisher was not bound to take it, and the notice did not alter this condition.
    5. When there is a contract to purchase at a future time no title passes.
    6. When there is a complete contract in which everything is done but transferring the possession, which is to be done at a future time, the title passes, if nothing is to be done but to hand over the thing purchased.
    7. Winslow v. Lanier, 12 Harris 14, and Chamberlain v. Smith, 8 Wright 431, remarked on.
    January 25th 1870.
    Before Thompson, C. J., Read, Siiarswood and Williams, JJ. Agnew, J., at Nisi Prius.
    Appeal from the decree of the Court of Common Pleas of Snyder county: In Equity : No. 242, to January Term 1870.
    On the 14th of April 1868 Jonathan Reitz filed a bill against John II. Eisher, and on the 16th of July filed an amended bill.
    The bills set out:—
    1 arid 2. The plaintiff on the 5th of April 1867, executed to the defendant five judgment-bonds for the payment in the aggregate of $3700, at different periods named in said bonds, the first for $500 being payable on the 1st of October 186‘7; judgment had been entered on the bonds in the Common Pleas of Snyder county. On the same day the defendant executed to the plaintiff' in payment of said bonds a mortgage (a copy of -which was attached to the bill).
    3 and 4. On the 30th of March, the defendant had entered into an agreement with the plaintiff, by which the defendant agreed to convey to the plaintiff in five days thereafter, three lots of land ort the Isle of Que, in Selinsgrove, Snyder county; also the Steam Ferryboat at Selinsgrove, and the right of the defendant in the Selinsgrove Ferry and Ferry charter: — the consideration to be paid by the plaintiff was $6035, of which the sum of $3700 wras the judgment-bonds above mentioned. The plaintiff was to pay such claim as H. B. Masser had in the Ferry and Ferry charter, &c. And further that the defendant should “ have the right to purchase back the said property within one year for the same price, upon giving at least three months’ previous notice ” to the plaintiffs; and if the defendant should purchase the property-hack, the plaintiff was to resign to him the express agency, mail and freight agency, &e., should he be appointed, with other unimportant stipulations. On the 21st of December 1867, the defendant gave notice to the plaintiff that he desired to purchase back the lots, and required the plaintiff “ to reconvey the same at the same price,” &c., on the 1st of April 1868, and also required the plaintiff at the same time to reconvey the Steam Ferryboat, Ferry Charter and all the other property which had passed by the agreement of March 30th.
    5. The plaintiff has been ready to convey, and on the 1st of April 1868, offered to reeonvey according to the defendant’s notice.
    6. On the 1st of May the defendant took the express agency, &c., into his own hands.
    7. The plaintiff had been always ready to settle with Masser and pay him, &c.
    8. About October 1st 1867, the plaintiff wished to pay the $500, then due with interest, but defendant told him he was going to take the property back in the spring, and he would have to repay the money, and advised the plaintiff to retain it.
    9. The plaintiff had been always ready to reconvey, and account for the use of the proporty, &c. The prayers were that the defendant be restrained from collecting the amount of the judgments and be ordered to enter satisfaction on them, and for further ■relief.
    The instrument called in the bill a mortgage, * * * “ in consideration of the sum of three thousand three hundred dollars, * * * paid by the said Jonathan Reitz, * * * granted unto the said Jonathan Reitz, and to his heirs and assigns, the following described three lots of ground, situate on the island of Que, in the borough of Selinsgrove, &c., * * * subject to the dower of Mrs. Hahne, widow of George Hahne, deceased, of, in and to the same, and with the right of the said John H. Fisher, his heirs or assigns, to purchase back the said three town lots for the same price as hereinafter mentioned, &c. * * * Provided always, and with the express understanding that the said John H. Fisher, his heirs or assigns shall have the right to purchase back the said real estate on the first of April, A. D. 1868, by giving at least three months’ previous notice, and shall also have the right to purchase back the Steam Ferry Boat at Selinsgrove Ferry and Ferry Charter at the same price paid for the same by the said Jonathan Reitz as agreed between the said parties by article of agreement, &c. * * *
    The defendant answered admitting several of the averments of the bill; he averred that the judgment-bonds were part of the consideration for all the property sold to plaintiff by the agreement of March 30th, that the instrument called in the bill a mortgage, was an absolute deed, that the plaintiff refused to deliver the property in the condition in which it was when the notice was served; that plaintiff tendered defendant a deed of the real estate, but defendant was not aware that he offered to transfer the steamboat, &c., that plaintiff was still using the real estate, &c., that through his own negligence plaintiff was not able to deliver the steamboat at the time named, for it was then “ but pieces of one so that in fact no steamboat was offered or ready to be delivered,” &c.
    March 21st 1870,
    The case was referred to J. M. Linn, Esq., as master. He found amongst other things, that on the 21st of December 1867, the defendant gave the plaintiff the notice as set out in the bill; he found also that in March 1868, after the notice but before the time at which the reconveyance was to be made, without any fault or negligence of the plaintiff, the steamboat was almost entirely destroyed by an ice flood; that all the consideration except the $3300 secured by the judgment-bonds had been paid, and that sum was about a fair price for the real estate alone; that on the 1st of April 1868, the plaintiff tendered the defendant a conveyance of all the real estate, also the steam ferry-boat and all the other property theretofore conveyed to him by the defendant. The defendant refused, his attorney saying “ that the steamboat was broken up, and in such a condition that Fisher could not accept a return of the property —that he would not take the property back because the steamboat was injured, through the want of care on the part of Reitz.”
    The master reported that the bill be dismissed. Exceptions were filed to his report.
    The court overruled the exceptions and dismissed the bill, saying in the conclusion of the opinion : “ Reitz cannot sustain this bill by reason of his not being able to perform his part of the covenant by delivering the steamboat to Fisher, it having been destroyed when it was in the possession of him, Reitz, and when it was at his risk.”
    The plaintiff appealed to the Supreme Court, assigning the dismissal of the bill for error.

      A. 0. Simpson and W. Van G-ezer, for appellant.

      0. Sower and J. 0. Bucher, for appellee.
   The opinion of the court was delivered,

by Thompson, C. J.

— After a careful consideration of the elaborate report of the master in this case, and the review of it by the learned judge below, we agree with the latter, that the notice of the 21st of December 1867 amounted only to an engagement by Fisher, pursuant to the deed of the 5th of April 1867, to purchase from Reitz the property sold and transferred by him to Reitz by that deed, on the 1st of April 1868. It was not a present purchase, so as to vest the property in him. That it was to be Reitz’s up to that time, the entire transactions between the parties show. Fisher had the right to elect to buy it on that day; that that engagement might be consummated on that day, depended on circumstances, the essential circumstances, of payment and satisfaction. Without that, or something to stand in lieu of it, Reitz would not be hound to part with any portion of the property. The notice, therefore, made no transfer of title to any part of the property; it is to be controlled in its operation to the right reserved to purchase, and that right was to be exercised on the 1st of April 1868. The notice was a preliminary to the exercise of the right, and no more. It was then, or at that time, the ownership of the property was to change, if ever. A creditor of Fisher could not have levied and sold the property as Fisher’s prior to that time. If it did not exist, that is the personal property, on the 1st of April, Fisher could not purchase it, and if it did not exist in the form it was when the reservation for the repurchase was made, he was not bound to take it, and the notice in accordance with the reservation did not alter this essential and implied condition. There being no contract for the sale of the property in fact, or intended, the title did not pass, so as to draw to it possession, and there being no actual delivery to Fisher by Reitz of the land in question, it remained at the risk of Reitz until an actual sale should be consummated. The title in Reitz was not disturbed by the notice — if it was, and it should be held to have passed the property to Fisher, a consideration would be altogether wanting. Reitz could not be compelled to part with his property without this. This is but a mode of illustrating the idea that the whole matter was to remain in fieri until the 1st of April 1868. The eases of Winslow, Lanier & Co. v. Leonard, 12 Harris 14, and Chamberlain v. Smith, 8 Wright 431, clearly mark the distinction between a contract to purchase at a future time, and a complete and perfect contract where everything is done but the transferring of possession, which is to be done at a future time. In the former case no title passes, and in the latter it does, if nothing is left to be done but to hand over the thing purchased. We think the learned judge took the true view' of the controversy between the parties, and was right in holding that unless the complainant could transfer the entire subject of the reservation, substantially at least, the respondent could not in equity be required to receive and pay for any of it. We do not think it necessary to elaborate what has been so well expressed by the learned judge, and have contented ourselves with this simple view, to express our approbation of the decision below.

Decree dismissing the bill affirmed, and this appeal dismissed at the costs of the appellant.


text:
    Lower Augusta versus Selinsgrove.
    1. On a writ of error under Act of March 16tli 1868 (Poor), the regularity of proceedings in the Quarter Sessions may be examined, as heretofore on certiorari.
    2. The Supreme Court cannot review the judgment below on the merits, as on an appeal.
    3. The Supreme Court can notice only the decisions on such points of evidence or of law as have been excepted to.
    4. A point of evidence does not mean whether the entire testimony makes out the case or proves the facts, but whether the evidence is competent or relevant or a witness offered is competent.
    5. A point of law is a question of law applicable to the facts as found by the court, which may be proposed in the shape of a written point and require an answer.
    6. The court may be asked to say what the law is on an hypothetical state of facts, which there is evidence tending to prove.
    7. If the point be that a certain fact must be established and there is no evidence so tending, it should be distinctly put, and the court would be bound to certify all the evidence with the exception.
    8. A general exception to the opinion of the court, is not an exception to a point of law or evidence.
    9. In a settlement case, evidence of a bastard’s residence is not necessary ; his settlement is that of his mother when he was born.
    10. Proof of assessment of taxes is admissible as a step towards showing payment of taxes, but is of no value unless followed by showing payment.
    January 25th 1870.
    Before Thompson, C. J., Read, Sharswood and Williams, JJ. Agnew, J., at Nisi Prius.
    Error to the Court of Quarter Sessions of Snyder county: to January Term 1870, No. 237.
    This proceeding originated by an order issued November 2d 1868, by two justices of the peace of Selinsgrove, Snyder county, removing Moses W. Wallace, a pauper, from Selinsgrove to the township of Lower Augusta, Northumberland county. On the 12th of May 1869, Lower Augusta appealed.
    On the hearing, before the Court of Quarter Sessions, the appellees offered in evidence the depositions of Julia Goodin and others. The appellant objected on the ground that the evidence did not tend to prove the residence of the pauper.
    The offer was received by the court and a bill of exceptions sealed.
    Julia Goodin testified: she was a daughter of Isaac Hill, he lived on an island in Northumberland county, 28 or 24 years or longer; the pauper was the child of an unmarried daughter of Isaac Hill, who paid taxes whilst he lived on the island; he claimed to own it; it was given to him and his wife by a Mr. Silverwood, during whose life his possession was undisturbed; the mother of the pauper was born on the island; Isaac Hill farmed the island.
    There was other evidence (included in the objection), of the residence of Isaac Hill on the island and of the residence of the mother of the pauper with him.
    February 7th 1870,
    The appellees offered in evidence two certified copies®of the record from the office of the commissioners of Northumberland county, for the- purpose of showing that Isaac Hill was assessed with taxes and paid them. The defendants objected, “as it does not prove the taxes were ever paid. No objections to the certificates being road, but only to their effect.” The offer was admitted, and a bill of exceptions sealed.
    The certificates showed that in 1844 and 1845 Isaac Hill was assessed in Augusta for land, &c., that there were no exonerations to collectors for those years for the taxes against him.
    The defendant gave in evidence the record of an action of| ejectment by the heirs of Simon Snyder against Isaac Hill, instituted June 21st 1839 for the island, in which the plaintiffs recovered judgment February 14th 1844; possession was delivered to them under an habere facias, April 17th.
    The island is in what is now Lower Augusta township. Many years previously Isaac Hill had been driven from the island, and had not resided there since.
    There were no points submitted by either party.
    The court (Wood, P. J., delivering the opinion), decided that “ Isaac Hill had a settlement in this township, and this would give his daughter, the mother of this boy, also a settlement there, and would be decisive of this case. The order of removal is therefore confirmed.”
    Lower Augusta Township took a writ of error.
    The 1st and 2d assignments of error related to the admission of the evidence objected to.
    The 3d, 4th, 5th, 6th and 7th assignments related to the opinion of the court.
    6r. W. Ziegler, 0. Sower and Gr. ¶. Miller, for plaintiff in error,
    referred to Wallkill v. Mamakiting, 14 Johns. R. 87 ; Overseers v. Aurand, 10 Watts 134; West Buffaloe v. Walker, 7 Watts 171; Blenheim v. Windham, 16 Johns. R. 7; Goucher v. Martin, 9 Watts 106; Woods v. Farmare, 10 Id. 195.

      A. 0. Simpson, for defendant in error.
   The opinion of the court was delivered,

by Sharswood, J.

— The Act of March 16th 1868, Pamph. L. 46, does not give an appeal to this court from the judgments of the Courts of Quarter Sessions on appeals from the orders of removal of paupers, but a writ of error. No doubt the regularity of the proceedings may be examined on that writ as has been done heretofore on certiorari. The Act specifies particularly what shall be made a part of the record, and shall be brought up by the writ. It provides that “ it shall be lawful for either of the parties to the issue to except to any decision of the court upon any point of evidence or of law, which exception shall be noted by the court and filed of record, as in civil cases.” It is not provided that the entire evidence shall be made a part of the record, and it is too plain for argument that we cannot review the judgment below on the merits as we might on an appeal. All that we are authorized to notice are the decisions of the court on such points of evidence or of law, as have been excepted to. A point of evidence cannot by any latitude of construction be considered to mean whether the entire testimony makes out the case or proves the facts. It means evidently whether a witness offered is competent or whether evidence offered is competent or relevant as tending to prove any fact material to the issue. A point of law is a question of law applicable to the facts as they may be found by the court which the party may propose in the shape of a written point and require an answer. The act expressly assimilates the proceedings to those in use in civil cases. The court may be called upon to say what the law is upon an hypothetical state of facts, which there is evidence tending to prove. If the point be that a certain fact is necessary to be established, and that there is no evidence tending to establish it, it ought to be distinctly put, and then it would be incumbent on the court to certify with the exception all the evidence in the case.

The general exception to the opinion of the court below is not an exception to any point of evidence or of law. We are asked to examine whether the court were right in the conclusion at which they arrived on the sufficiency of the evidence to prove the settlement of the pauper. This we cannot do. No point was put to the court that there was no evidence tending to prove that it was in Lower Augusta Township, and indeed there could not have been with any show of ground or reason to sustain it. We must dismiss therefore the 3d, 4th, 5th, 6th and 7th assignments of error. It remains then only to consider the 1st and 2d.

The 1st is that the court erred in admitting certain depositions which were offered by the defendants in error. The plaintiffs in error objected “because the evidence has no tendency to prove a residence of the pauper, and therefore irrelevant.” Clearly this objection was either misconceived or it was not rightly expressed. In this case no evidence of residence was necessary. The pauper was a bastard, and it is provided by the 11th section of the Act of June 13th 1836, Pamph. L. 543, that “ every illegitimate child shall be deemed to be settled in the place where the mother was legally settled at the time of the birth of such child.” The evidence contained in the depositions certainly did tend to show that the mother of the pauper at the time of his birth had a legal settlement in Lower Augusta township. There was no error therefore in the admission of these depositions.

The second error assigned is in the admission in evidence of two certified copies of record from the office of the commissioners of Northumberland county to show that Isaac Hill, the father of the mother of the pauper, was assessed with taxes and paid the same. The plaintiffs in error objected because it does not prove the taxes were ever paid: not an objection to the certificates being read, but only to their effect. It is not easy to deal with such an objection. In point of fact objection to the reception of the evidence was expressly withdrawn. Its effect was a subsequent question, which ought to have been raised if desired by a point of law put to the court. How can- we say then that the court was in error in receiving the evidence? The effect of the record might and in this case did depend upon subsequent evidence. It certainly showed that Isaac Hill was assessed for taxes in two successive years 1844 and 1845. Whether he had paid those taxes was another and different question, and might be proved by other evidence. The Act of 1836 declares that a settlement may be gained by any person inhabiting a district who shall be charged with and pay his proportion of any public taxes or levies for two years successively.” Surely there was no error in admitting evidence to show that Isaac Hill was charged with such taxes. It would have been of no effect unless followed by evidence of payment, but a party must proceed step by step. He cannot be required to prove his whole case uno flatu.

Judgment affirmed.