text:
    May Term, 1881,
    No. 155.
    May 16th, 1881.
    Philadelphia Contributionship for the Insurance of Houses against Loss by Fire versus The Commonwealth.
    1. Under the tenth section of the act of June 7th, 1879, which provides that the individuals and corporations therein named “ shall annually, upon the first Monday of November of each year, make report to the auditor-general, under oath or affirmation, setting forth the entire amount of net earnings or income received by said individual, company, or corporation, from all sources during the preceding year; and upon such net earnings or income the said individual, company, or corporation, as the case may be, shall pay into the State treasury for the use of the State, within sixty days thereafter, three per centum upon such annual net earnings or income, etc.,” income derived by a corporation from interest on bonds of the United States is taxable.
    2. And income derived from interest on bonds of the State of Pennsylvania, which by the terms of the acts authorizing their issue were expressly made payable free from State taxes, is taxable.
    3. Such a tax is not a tax on the bonds as such, but is a tax on the corporate franchise, measured by its net earnings.
    4. For the purposes of such taxation, a corporation is not entitled to deduct from its gross earnings the loss on United States securities which it had purchased above par, and which the government paid off during the year at par.
    5. This difference is in no proper sense a loss, but if it were otherwise, a decrease of capital does not necessarily diminish the annual net earnings.
    Error to the Court of Common Pleas of Dauphin County.

    Case stated upon an appeal from the settlement of an account by the auditor-general and State treasurer againstthe Philadelphia Contributionship for the Insurance of Houses against Loss by Fire.
    The defendant is a mutual fire insurance company of the State of Pennsylvania, organized in 1752, and incorporated in 1768. Under the tenth section of the act of June 7th, 1879, to provide revenue by taxation, which enacts, “that every private banker and broker, and every unincorporated banking and saving institution, express . company, palace-car company, and sleeping-car company, and all corporations incorporated by or doing business in this Commonwealth, except those liable to a tax on capital stock or gross receipts under the provisions of this act, and banks, trust companies, and savings institutions having capital stock, and foreign insurance companies licensed in pursuance of the several acts in relation thereto, shall annually, upon the first Monday of November of each year, make report to the auditor-general, under oath or affirmation, setting forth the entire amount of net earnings or income received by said individual, company, or corporation from all sources during the preceding year ; and upon such net earnings or income the said individual, company, or corporation, as the case may be, shall pay into the State treasury for the use of the State, within sixty days thereafter, three per centum upon such annual net earnings or income in addition to the taxes imposed by the preceding sections of this act, etc.” The defendant made report for the year ending October 31st, 1879, including therein $27,615 ryn, derived from the interest on loans of the United States, and $15,375 interest derived from loans of the State of Pennsylvania, which, by the terms of the acts authorizing their issue, were exjDressly made payable free from State taxes. The tax on these items amounted respectively to $828 and ¡$46173¶6^. The defendant claimed exemption from these items of taxation, and also claimed a right to deduct from its gross receipts the sum of $25,948 75sff, being the amount of losses on certain United States securities which had been purchased above par and had been paid off during the year by the government at par. The tax on the amount of these losses was $7781yr. In the settlement of the account the auditor-general and State treasurer disallowed each of these three claims. The. corporation having paid the tax under protest, appealed, and the facts above set forth were embodied in a case stated.
    The Court below, Henderson, J., found in favor of the Commonwealth in the following opinion:
    “ By agreement of parties the statement of defendant’s specifications of appeal are admitted to be true. This, then, is practically a case stated for the opinion of the Court. The Commonwealth claims the right to assess and collect from the defendant the tax upon its annual net earnings or income, under the sixth section of the act of 1st May, 1868, and the tenth section of the act of 7th January (June\ 1879. The latter is a transcript of the former. The defendant corporation claims immunity from taxation upon so much of said net earnings or income as is made up of interest received from United States and State bouds. It is not pretended that these bonds — eo nomine — are taxable by the State. We have, from this point, followed the line of argument adopted by the defendant’s counsel, but in the light of the authorities and of reason we reach a different conclusion.
    “ The defendant is a private corporation. Its franchise is a grant from the State. It exercises power and enjoys privileges. It is subject to certain limitations. It is liable to taxation. It cannot operate ultra vires its charter. The purpose of its creation was not to enable it to invest specially in United States and State bonds; and if it had been, and for no other purpose than to centralize capital, a powerful syndicate to popularize and place the bonds of the State and the National government, what then ? Can it be argued that a tax on its franchise is a tax on these bonds ? The two subjects of taxation are as real, separate, and distinct in fact and in law as land and farm property, either of which is a good basis of taxation, and each may be taxed apart from the other.. The existence of the one is in no sense dependent upon the other. The distinction between a tax on the franchise and a tax on property is warranted by decision of the Supreme Court of the United States. Accordingly, a savings institution in Massachusets, having a portion of its deposits invested in Federal securities, declared by the act of Congress authorizing their issue to be exempt from taxation under State authority, is liable under the above statute ’ (the law of Massachusetts imposes a tax on deposits) to a tax on account of such deposits as on account of others:’ Provident Institution v. Massachusetts, 6 Wallace, 611. A statute of a State imposing a tax upon the gross receipts of a railroad company is not repugnaut to the Constitution of the United States, though the gross receipts are made up, in part, from the freights received for transportation of merchandise from the State to another State, or into the State from another:’ State Tax on Railway Gross Receipts, 15 Y7allace, 284, in connection with case of the State Freight Tax, ibid., 232. If this distinction exists, the tax on the net earnings is on the franchise and not on the bonds. We cannot see that the fact that the Philadelphia Contributionship is not a stock company, in any way affects the question. The principle here contended for is not in conflict with the doctrine of the cases relied upon by the defendant’s counsel.
    “From a practical standpoint the position of the defendant is rendered uncertain when it is so apparent that its effect is to shift all of the corporate expenses from these receipts upon receipts from other sources, and to that extent relieve the franchise or working power of the corporation from taxation. The State creates and controls the franchise, and this is a subject of taxation. We confess at the first glance it does seem that the decisions in Pennsylvania which support the right of the State to levy a collateral inheritance tax on an estate composed of United States bonds are against the position maintained by the defendant’s counsel; and our difficulty in not adopting his conclusion is, that this first impression, upon a careful examination of the principles underlying the authorities, ripens into a conviction. This is not a man of straw. It matters not whether the imposition is a tax, a burden, or a bonus; called by either name it could not be imposed on the loans of the United States. In Strode v. Com., 52 Pa. St., 181, Judge Butler, whose opinion was affirmed by tbe Supreme Court, in sustaining the validity of the collateral inheritance tax, the estate being composed of United States bonds, said:‘But . . . what is called a collateral inheritance tax is a bonus exacted from the collateral kindred and others, as the condition on which they may be admitted to take the estate left by a deceased relative or testator. The estate does not belong to them, except as a right to it is conferred by the State. Independently of government, no such right could exist.’ Again, ‘ If a condition be that the kindred or legatees shall pay a bonus, this is not a tax or burden imposed on their property, or on the property of anybody else. It is simply the price of the privilege which the State has conferred upon them.’ We hold that the tax upon net earnings or income imposed by the law in question is a tax upon the franchises of corporations. And if this be so, the principle decided in and on the reasoning of Strode v. Com. sustains the claim of the Commonwealth in this case.
    “ But there is a further contention. The corporation defendant, in estimating its net earnings, claimed to deduct from its gross receipts its loss on United States securities, purchased above par and paid off by the government at par. This claim was disallowed by the accounting officers.
    “ The argument in favor of this proposition is not without some plausibility. It is crude and difficult to answer. If a man gets less for a thing than he paid for it, he meets with a loss, and it impairs his capital. But it is the annual net earnings that are taxed. A diminution of capital does not necessarily diminish the annual net earnings. To adopt the rule here contended for would be to cast an uncertain factor into the account, for this is purely a matter of speculation. The tax is assessed upon the net earnings ; it rises and falls with them, not with the capital; with the net ■earnings, not with the earning capacity. If the corporation is inactive, or its capital lies idle, it produces no basis of taxation.
    “ But it seems to me that the fallacy of the argument is in the assumption that a depreciation in the value of the bonds is a loss to be deducted from the gross receipts. Clearly not, except as the depreciation affects the annual net earnings. We should prefer to say that the premiums paid for the bonds should have been deducted when the investment was made, and might properly have been accounted for and taken from the gross receipts. But certainly the State cannot now settle a profit and loss account running through ¡several years and many transactions. The law requires an annual settlement producing an annual tax, and upon an annual basis.
    “ We are of the opinion that the objections to the settlement are not valid ; that the settlement was properly made, and therefore find in favor of the plaintiff, the Commonwealth, and against the defendant.”
    To this ruling exceptions were filed April 25th, 1881, and the same day were overruled and judgment entered.
    Defendant then took a writ of error assigning that the Court erred:

      First. In deciding that the interest received from loans of the United States is subject to tax with the net income or earnings of the defendant, under the acts of May 1st, 1868, and June 7th,1879.

      Second. In deciding that the interest received from loans of the State of Pennsylvania, which, by the terms of the ábts authorizing their issue, were made payable free from taxes, is subject to tax with the net earnings or income of defendant, under the said acts of Assembly.

      Third. In deciding that the laws of the State laying a tax on income, including income derived from such United States and State of Pennsylvania loans, are not in conflict with the Constitution of the United States.

      Fourth. In not allowing the claim of the corporation in estimating its net income to deduct from its gross receipts its losses on United States securities purchased above par and paid off by the government during the year at par.

      W. W. Montgomery for plaintiff in error.
    The question of the right of a State to tax loans of the United States in any shape or form, whether the tax be laid on the corpus of the securities eo nomine, on the income, or on the taxpayer’s property, including such loans, must be regarded as definitely settled against that right by the decisions of the United States Courts from the earliest period: McCulloch v. State of Maryland, 4 Wheaton, 316 ; Weston v. City Councils of Charleston, 2 Peters, 449 ; Bank of Commerce v. N. Y. City, 2 Black, 620 ; Bank Tax Case, 2 Wallace, 200 ; Van Allen v. The Assessors, 3 Wallace, 573 ; People v. Commissioners, 4 Wallace, 244 ; Hepburn v. Carlisle School Directors, 23 Wallace, 480 ; National Bank v. Commonwealth, 9 Wallace, 353.
    The State has no power to tax its loans issued with a contract of exemption. The constitutional provision forbidding the passage of a State law impairing the obligation of a contract is not the only safeguard : Newark City Bank v. The Assessor, 30 N. J. L., 16.

      A tax on the income is a tax on the debt; for as soon as interest is due it becomes part of the debt: Opinion of the Justices, 53 N. H., 640 ; Bank of Kentucky v. Commonwealth, 9 Bush, 46 ; Monroe Savings Bank v. City of Rochester, 87 N. Y., 365.
    The cases cited in support of the theory that this tax is a tax on the franchise and not on the property of the corporation do not bear it out: Savings Society v. Coite, 6 Wallace, 594 ; Provident Institution v. Massachusetts, 6 Wallace, 611.
    The collateral inheritance tax is so evidently a personal tax that Strode v. Commonwealth, 2 P. F. Smith, 181, cannot be an authority here.
    If a company pay over par for certain securities because the interest upon them is so high as to warrant such payment, this high rate of interest has been returned as revenue, and the State has had the benefit of taxes collected on it'. If the company had invested in securities bearing a low rate of interest at par, and afterward sold them at a premium, this profit would have been included in the income subject to tax.

      Lyman D. Gilbert and Henry W. Palmer, Attorney-General, for defendant in error.
    It has been decided that where the tax rested upon the franchise of the banks, the law imposing it was constitutional, although it appeared that a portion of the property of the banks consisted of United States securities: Society for Savings v. Coite, 6 Wallace, 594 ; Provident Institution v. Massachusetts, 6 Wallace, 611 ; Insurance Co. v. Loud, 99 Mass. Rep., 146.
    When freight has come into the treasury of the company it has lost its distinctive character as freight earned: State Tax on Gross Receipts, 15 Wallace, 284. This doctrine is recognized in Jones et al. v. Commonwealth, 19 P. F. Smith, 137, where it is decided that a change of net earnings into dividends creates a new kind of property subject to a new kind of tax. In this case no tax is laid on bonds or even on the gross receipts. This law does not look beyond the company to the source of its earnings.
    If any abatement is to be made for loss on premiums, the amount to be subtracted is merely that proportion suffered during the tax year 1879. But no deduction can be made. It knew when it bought the bonds that the sum it gave would never be returned.
   The opinion of the Court was delivered by

Sterrett, J.

By the tenth section of the revenue act of 1879, which is substantially a re-enactment of the sixth section of the act of May 1st, 1868, certain individuals, companies, and corporations therein mentioned are required to make report to the auditor-general, setting forth' the entire amount of net earnings or income received by them from all sources during the preceding year, and pay a tax of three per centum thereon for the use of the Commonwealth : P. L., 118.

The corporation, plaintiff in error, being clearly within the provisions of the act, made its return of earnings or income for the tax year ending October 31st, 1879, and included therein $28,615.73 interest on United States bonds, and $15,375 interest on Pennsylvania bonds, both of which items, however, it claimed were exempt from taxation. It was also claimed, that in ascertaining its net earnings or income, the difference between the par value of $307,000 United States bonds, which were called in and paid during the year, and the price at which they were purchased several yeai’s before, should be treated as a loss and be deducted from its gross receipts. The accounting officers having refused to allow any abatement on account of either of these three items, the tax thereon, amounting to $2068.19, was paid under protest and an appeal taken from the settlement. The decision of the Court below was also adverse to the plaintiff in error on the points in controversy. The questions thus presented by the record are: Whether the income derived from either class of bonds is exempt from taxation, and whether the difference between the price paid for the United States bonds and their par value should be regarded as a loss and be deducted from the gross receipts.

It may be conceded that the bonds, as such, are not taxable by the Commonwealth; but the ta« in question is not laid on the bonds. It is a tax on the corporate franchise of the plaintiff in error, measured by its net earnings. The right of the State to impose a tax on the franchise of any corporation that is indebted to it for existence and protection is too clear for argument. If the right exists, as it undoubtedly does, the manner of its existence must be left to the wisdom of the legislature ; and perhaps no standard or measure of taxation can be adopted that will operate more justly and equitably than a per centum on net earnings or income.

The interest received by the company on the bonds undoubtedly formed a part of its income, and while the bonds themselves are exempt from taxation by virtue of the laws under which each class respectively was issued, it does not follow that the same immunity adheres to the money paid from time to time in discharge of the interest due on the securities. When so paid it loses the non-taxable characteristic of the bond on which it accrued, and should thenceforth be treated as any other species of income derived from other sources. But, as already intimated, the tax is not laid on the money and other receipts of the company. Its net earnings or income is resorted to simply as a just measure of the tax to be paid for the enjoyment of its corporate franchise.

There is an obvious difference between a direct tax on the properly of a corporation and a franchise tax measured by its earnings, which, proximately at least, represent either the value of the franchise granted or the extent of its exercise. The distinction has been repeatedly recognized by both Federal and State Courts. In Society for Savings v. Coite, 6 Wallace, 594, corporations of the class to which the plaintiff in error in that case belonged, were required to pay annually a sum equal to three-fourths of one per cent, on the total amount of their deposits; and it was held that this was a valid franchise tax and not a tax on property, and that the society had no right to claim exemption therefrom to the extent of its deposits invested in non-taxable securities of the United States. Under a similar law in Massachusetts, it was held that a savings institution having a portion of its deposits invested in Federal securities was liable to a tax on account of such deposits as fully as on account of other deposits, notwithstanding the securities were declared, by the act of Congress under which they were issued, to be exempt from taxation under State authority: Provident Institution v. Massachusetts, 6 Wallace, 611.

A distinction somewhat similar in principle is made in the cases of State Freight Tax and State Tax on Railway Gross Receipts, 15 Wallace, 232 and 284, in the latter of which it is held that a statute imposing a tax on the gross receipts of railway companies is not repugnant to the Constitution of the United States, though the receipts are made up in part of the freights received from inter-state transportation of merchandise.

The difference between the amount paid for the United States bonds and their par value cannot in any proper sense be regarded as a loss; but if it were otherwise, the plaintiff in error is not entitled to the deduction claimed. A deci'ease of capital does not necessarily diminish the annual net earnings. It is the latter that has been adopted as a just measure of the tax'imposed on the franchise. The contention of the plaintiff in error on this point has been so fully answered by the learned judge of the Common Pleas, in the concluding portion of his opinion, that further comment is unnecessary.

Judgment affirmed.


source: Caselaw Access Project

author: Per Curiam:

license: Public Domain

text:
    May Term, 1881,
    No. 153.
    May 25th, 1881.
    Appeal of Anna B. Sieber et al.

    An antenuptial settlement which provides that the wife, in case of her surviving her husband, shall receive “out of his personal estate the one-fourth (!) part thereof, and also the one-third (J) of the annual income of such real estate as he may die seized of, for and during her natural life,” and that “ she will not claim any further interest in the estate,” does not deprive her of her right to administer upon his estate in case of his death.
    Appeal from the decree of the Orphans’ Court of Juniata County, directing the issue of letters of administration upon the estate of George W. Jacobs, deceased.
    George W. Jacobs, of said county, in anticipation of marriage with Georgia E. Brandt, entered into an agreement with her, June 11th, 1879, which provided, inter alia, that he should maintain the three minor children of the said Georgia until eighteen years of age, and “ that in case the said intended marriage shall be consummated, and the said Georgia E. Brandt shall survive him as his widow, then she is to receive out of his personal estate the one-fourth (-]-) part thereof, and also the one-third (J) of the annual income of such real estate as he may die seized of, for and during her natural life. To which settlement and allowance the said Georgia E. Brandt consents and agrees, and stipulates on her part that in the event of her survivorship as aforesaid, she will not claim any further interest in the estate of the said George W. Jacobs.”
    Jacobs died January 5th, 1881, and left surviving him his widow, the said Georgia E. Jacobs, and one daughter, Anna B. Sieber, wife of Isaac N. Sieber. Both the widow and daughter made application to the register for letters of administration on the estate. The proceedings were certified to the Orphans’ Court, which, J unkin, P. J., January 31st, 1881, made a decree directing letters to issue to Geoz’gia E. Jacobs, widow, and Benjamin Jacobs, a brother of the decedent, jointly.
    Nrom this decree Anna B. Sieber and her husband appealed, assigning for error the granting of letters as stated,, and the refusal to grant them to the appellants.

      Louis L. Atkinson and Ezra D. Parker for the appellants.
    The right to administer is put expressly on the ground of interest: Ellmaker’s Estate, 4 Watts, 38.
    One in the relation of a litigant should not have letters granted: Bieber’s Appeal, 1 Jones, 161.
    The feelings of the widow as the mother of her children, and her interests, will impel her to make all the advantage she can out of the provision in the marriage contract securing maintenance to them out of the estate. Tier interests are antagonistic to the estate.
    She can have no greater interest in the estate than the contract gives her. If her rights may be extended by the Court in one particular, why not in all?
    Marriage articles are founded on a good consideration: Shoch v. Shoch, 7 H, 252 ; Tiernan v. Tiernan, 37 Leg. In., 181.
    She was entitled to no rights in the estate "as widow, and therefore the daughter could not be passed : "Williams’s Appeal, 7 Barr, 259 ; McClellan’s Appeal, 4 Harris, 110 ; Guldin’s Appeal, 33 Leg. In., 290.
    There was no paper-book for the appellee.
   Per Curiam:

The act of 15th March, 1832, gives the widow a right to administer on the estate of her deceased husband when he dies intestate. In this case it is claimed the widow is deprived of that right by reason of her ante-nuptial settlement. If she had, in consideration of such a settlement of a specific sum, released all right of dower and all interest of every kind in the residue of the real and personal estate of her husband, there would be some force in the position taken. That, however, is not this case. Here she is to have one-fourth part of his personal estate and one-third part of the annual income of his real estate. Her interest in his estate is thus little less than if no marriage contract had been executed. She has a direct interest in the settlement of the estate. The Court committed no error in directing letters of administre tion to be issued to the widow and brother of the decedent.

Decree affirmed, and appeal dismissed at the cost of the appellants.


author: Green, J.,

text:
    May Term, 1881,
    No. 151.
    May 16th, 1881.
    The Bourgignon Building Association versus The Commonwealth.
    1. The fourth section of the act to provide revenue by taxation, approved June 7th, 1879, subjects building associations to the payment of lax upon their capital stock.
    2. The whole effect of the eighth section of the act of April 10th, 1879, was to exempt the associations named in it from taxes imposed by acts then in existence, and it did not surrender any right of the Commonwealth to impose taxes in the future.
    3. An act of Assembly imposing a tax which is necessarily and certainly inconsistent with a preceding act exempting from taxation, repeals the former act, though both were passed at the same session.
    4. A surrender in the least degree of the general power of taxation possessed by the Commonwealth cannot be implied.
    5. A “building association” is not a “savings institution.”
    Error to the Court of Common Pleas of Dauphin County.

    The facts appear from the following ease stated, viz.: This is an appeal from a settlement made by the auditor-general and State treasurer against the Bourgignon Building Association for tax on capital stock, under act of June 7th, 1879, for year ending first Monday of November, A.D. 1879. The company is a building association incorporated in 1878, under the act of 29th April, 1874, with a nominal capital of $1,000,000, divided into shares of $200 each. At the time of its incorporation no capital had been paid in. Sixteen hundred and fifteen shares have been subscribed, payable one dollar per month on each share. Up to first Monday of November, 1879, $50,113.45 had been paid in. This money is loaned out to members on mortgage security. By the act of Assembly, approved April 10th, 1879, building associations are exempted from the tax claimed under the settlement made in this ease. The act was formally accepted by appellants, and thereupon new letters patent were issued thereunder. The Commonwealth demand the tax in question under the provisions of the general revenue act of June 7th, 1879. The following questions are submitted to the Court:

      First. Are the provisions of the act of April 10th, 1879, exempting the appellants from taxation, repealed by the general revenue act of June 7th, 1879 ?

      Second. If repealed, does the act of June 7th, 1879, impose a tax upon the capital stock of building associations?
    If the Court find both these propositions against the appellants, the judgment is to be entered for the Commonwealth .for $73.03, otherwise judgment to be entered for the Bourgignon Building Association.

      On tbe 13th of April, 1881, the Court below found in favor of the Commonwealth in the sum of $73.03, and filed the following opinion:
    The facts are agreed upon,-and appear in the case stated. Upon these, two questions are submitted to the Court.

      “First. Are the provisions of the act of April 10th, 1879, exempting the appellants from taxation, repealed by the general revenue act of June 7th, 1879 ?”
    This association brought itself within the protection of the act of April 10th, 1879, by filing the certificate of acceptance required by the ninth section of said act. This released it from taxation under existing laws. We do not, however, see anything in the letter or the spirit of this act to indicate a legislative intent to exempt these associations from any burden or taxation imposed by subsequent legislation, and certainly it has no contract feature which good faith is called upon to enforce and protect against the Commonwealth’s right to tax. It does not strike me that the liability of the defendant to the tax-act of June 7th, 1879, depends upon the question of a repeal of a former act. The act of April 10th, 1879, may have served its purpose. It ended litigation. It took these associations out of the grasp of the act of 1868, and any other act then in force. But it did not cast its shadow into the future. We cannot entertain the argument that because of the eighth section of the act of April 10th, 1879, these associations are*not subject to a tax imposed by a subsequent general tax law. There is no attempt to exempt them from future taxation, or from any special tax that might be imposed. The language of the section is peculiar: “ The bonus or tax due to the Commonwealth upon the capital stock of corporations, as provided for by act of 1 st of May, 1868, or by any other act, shall not apply to or be due from mutual savings fund or building and loan associations,” and therefore the necessity of a repeal of this act, either by implication or express wmrds, in order to make effectual the subsequent tax, if there is one imposed on general terms, by a general tax law, is not apparent. This doctrine is not in conflict with Egypt Street, 2 Grant, 455, and other kindred cases, including Kilgore v. Commonwealth, 9 W. N. C., 184, relied upon by the defendants to show that implied repeals are not favored. The right to tax the capital of mutual savings fund or building and loan associations was not relinquished by the sovereign power of the legislature, and hence there is no right to be restored or law repealed before effect is given to a general tax law. There is no principle better established, and it requires no long array of cases to prove it, that no surrender of the general power of taxation by auy legislative act can be implied. It must be expressed: Erie Railway Co. v. Commonwealth, 16 P. F. S., 84.
    We come now to consider,
    “ Second. If repealed, does the act of June 7th, 1879, impose a tax upon building associations ?”
    The title of the act is, “ To Provide Revenue by Taxation,” and if we turn to the fourth section, under which the tax is imposed against the defendants, we find no appearance of an intention on the part of the law-making power to limit the scope of its grasp by any words of special or limited designation. Hence it is we read, “ That every company or association whatever, now or hereafter incorporated by or under any law of this Commonwealth, or now or hereafter incorporated by any other State or Territory of the United States or foreign government, doing business in this Commonwealth, .... except foreign insurance companies, banks, and savings institutions,” shall be subject to a tax. There is no escape for the defendants from the sweep of this section, unless it falls within the exception.
    The ingenuity of the argument that “ building associations,” because “ they may afford to the indigent an opportunity to save and profitably invest their savings,” and because of the designation of other companies in connection with them in legislation as “ savings fund and loan associations ” belonging to the excepted class of “ banks and savings institutions,” falls upon the imagination and does not convince the understanding. The same ingenuity is taxed to demonstrate that building associations are not to be taxed as “bauks and savings institutions,” under the seventeenth section of the act.
    “ Banks and savings institutions” are a class of corporations having banking privileges, and have been long known to the law-making power, and the use of these terms are not misunderstood and should not be misconstrued. They were in use and the subject of legislation and taxation long before “ building associations” demanded special exemption. Building associations have heretofore been exempt from the operation of tax impositions, but always by their technical names.
    Again, “banks and savings institutions” were exempt from the operation of the fourth section of the act of May 1st, 1868, and in the proviso of the same section we find “ building associations” exempt from liability “for any tax to the Commonwealth, when such companies make or declare no dividends.” And further on, in the general tax act of April 24th, 1874, in section five, both classes are included in the exemption, as follows, to wit: “Excepting also, banks and savings institutions, building associations, and foreign ' insurance companies.” And also, in the third section of the act of March 20th, 1377, entitled “ An Act to Equalize Taxation of Corporations and Companies,” the same .designation of corporations is used to save them from the tax imposed, “except building associations, banks, savings institutions, and foreign insurance companies.” We cannot, therefore, arrive at any other conclusion than that “ banks and savings institutions ” have been uniformly applied to a different class of corporations than “ building associations,” and hence that the latter are not by any legislative understanding within the exception of the fourth section of the act of June 7th, 1879.
    The Association filed exceptions to the finding of the Court:

      First. Because the learned Court erred in deciding that the general revenue act of June 7th, 1879, repealed the provisions of the act of April 10th, 1879, exempting defendants from State taxation.

      Second. Be®ause the learned Court erred in deciding that the defendants were taxable upon the capital stock, under the general revenue act of June 7th, 1879.

      Third. Because the learned Court erred in entering judgment for the Commonwealth on the case stated.
    These exceptions were overruled April 23d, 1881, and judgment entered on the same day.
    The Building Association took a writ of error, assigning as error the dismissal of the above exceptions.

      J. P. Klinges, M. H. Stutzbach and J. W. M. Newlin for plaintiff in error.
    As there was, at the time of the passage of the act of April 10th, 1879, no law in foi;ee imposing a tax upon the capital stock of these associations, there would be no purpose in the exemption clause of that act, unless it was to exempt them from all taxes to be imposed by acts then before the legislature, such as the revenue act of June, 1879. If it had been intended to include them in the last-mentioned act, they would have been named by their proper names. It is not possible that it could have been the intention of the legislature to enact a law imposing a tax on them when, almost in the same breath, it had declared they should not be subject to any law imposing such tax. The words “ by any other act ” mean subsequent general legislation. In the construction of a statute the intention is to be gathered from the necessity of the law, the previous defect, and the designed remedy: Potter’s Dwarris on Statutes (edition 1871), 184.
    There was no occasion for this tax law as regards building associations, as the legislature two months before tacitly admitted.
    The corporation in question can only be brought within this act by implication: Kilgore v. Commonwealth, 9 W. N. C., 184 ; Blanchard v. Sprague, 3 Sumner, 279.
    To repeal a preceding statute by implication there must be a positive repugnancy: Street v. Commonwealth, 6 W. & S., 209 ; Pearce v. Bank, 33 Ala., 693 ; McCool v. Smith, 1 Black, 459 ; Wood v. United States, 16 Peters, 342 ; Harford v. United States, 8 Cranch, 109 ; Easton Bank v. Commonwealth, 10 Barr, 448 ; Hume v. Gossett, 43 Ill., 297.
    A general law seldom repeals a special one: Dyer v. Covington, 4 Casey, 186 ; Brown v. Commissioners, 9 Harris, 37 ; Bounty Accounts, 20 Smith, 96.
    Implied repeals are not favored: Erie v. Bootz, 22 Smith, 199 ; Shinn v. Commonwealth, 3 Grant’s Cases, 205 ; Bowen v. Lease, 5 Hill, 221 ; Egypt Street, 2 Grant’s Cases, 455.
    A general law does not repeal a special law upon the same ' subject passed previously at same session, though seemingly repugnant: McFarland v. State Bank, 4 Ark., 410 ; Ottawa v. La Salle, 12 Ill., 339 ; Shinn v. Commonwealth, 3 Grant’s Cases, 205 ; Williams v. Pritchard, 4 T. R., 2; United States v. Wigglesworth, 2 Story, 369.
    Secondly, the fourth section of the act exempts “ savings institutions.” We claim that these are what building associations are. The common fund does not partake of the nature of stock. The loan is an anticipation by the member of his proportion of the fund. A member may withdraw his deposits on notice and become a creditor: Association v. Silverman, 4 Norris, 394. This precludes the possibility of assessment. In various statutes they are called mutual saving funds.

      Lyman D. Gilbert and Henry W. Palmer, Attorney-General, for defendant in error.
    In the fourth section of the act of May 1,1868, the fifth section of the act of April 24th, 1874, and the third section of the act of March 20th, 1877, building associations are exempted from taxation, and are designated by their technical names. It will also be noticed that “ banks and savings institutions” are regarded as distinct and different classes of corporations, and their exemption from taxation is not sufficient to excuse “ building associations.” The inference from legislation so explicit is that “ banks and savings institutions ” conveyed to the legislative mind a different meaning from that indicated by “ building associations.” The act of June 7th, 1879, for taxing purposes, used words wide enough to cover these associations, and then omitted to exclude them from their operation. There is but one conclusion, and that is that it .was intended and designed to tax them. There was no unfairness, as foreign insurance companies are taxable, and even unincorporated banking and savings institutions are liable to a tax on net earnings.
    As the act of June 7th, 1879, is inconsistent with that of April 10th, 1879, the earlier one is repealed. That they were passed at the same session of the legislature does not vary the rule of interpretation. Mere lapse of time does not affect the question.
    A general tax law repeals all earlier special laws, unless they are specially excepted or are protected by contract,: Iron City Bank v. Pittsburgh, 1 Wright,340 ; Commonwealth v. Fayette Railroad, 5 P. F. Smith, 452 ; Union Improvement Company v. Commonwealth, 19 P. F. Smith, 140.
   The opinion of the Court was delivered by

Green, J.,

as follows:

The fourth section of the “Act to Provide Revenue by Taxation,” approved June 7th, 1879, provides as follows: “ That every company or association whatever, now or hereafter incorporated by or under any law of this Commonwealth, or now or hereafter incorporated by any other State or Territory of the United States or foreign government, and doing business in this Commonwealth, or having capital employed in this Commonwealth in the name of any other company, association or associations, person or persons, or in any other manner, except, foreign insurance companies, banks, and savings institutions, shall be subject to and pay into the treasury of this Commonwealth, annually, a tax to be computed as follows,” etc., etc. The facts of this case are brought before us by a case stated, in which it is agreed that the appellant “ is a building association incorporated in 1878, under the act of 29th April, 1874, with a nominal capital of $1,000,000, divided into shares of $200 each.” It is also agreed that “ up to first Monday of November, 1879, $50,113.45 (of capital) had been paid in,” and “ this money is loaned out to members on mortgage security.”

By the terms of the case stated, it appears, therefore, that the appellant is an association incorporated by a law of this Commonwealth, having a paid-up capital of $50,113.45 on the first Monday of November, 1879.

Apparently, the language of the revenue act of June 7th, 1879, subjects the appellant to the payment of a tax upon its capital stock. It is contended, however, that it is not liable to such tax upon two grounds: 1st, because building associations are exempted from the tax claimed by virtue of the act of April 10th, 1879, relating to mutual saving funds, building and loan associations; and 2d, because the act of June 7th, 1879, does not, when properly construe], impose a tax upon building associations. As it is undoubted that the act of April 10th, 1879, does exempt from taxation all building associations which, prior to and at that time, were subject to taxation by existing laws, the contentions of the parties to this litigation are presented by the case stated in the two following questions:

First. Are the provisions of the act of April 10th, 1879, exempting the appellants from taxation, repealed by the general revenue act of June 7th, 1879?

Second. If repealed, does the act of June 7th, 1879, impose a tax upon the capital stock of building associations ?

The Court below having decided both these questions against the appellant, and sustained the settlement made by the auditor-general and State treasurer, the association has brought the case here for review by writ of error.

As to the first question. The language of the eighth section of the act of April 10th, 1879, is as follows: “The bonus or tax due to the Commonwealth upon the capital stock of corporations, as provided for by act of first of May, one thousand eight hundred and sixty-eight, or by any other act, shall not apply to or be due from mutual savings fund or building and loan associations.” The effect of this provision undoubtedly was to exempt mutual savings fund and building and loan associations from the payment of the bonus or tax imposed upon them by the act of May 1st, 1868, or by any other act in force on April 10th, 1879, but that was its whole effect. Neither this section nor any other of the act of April 10th, 1879, assumed to surrender the right of the Commonwealth to impose any taxes she might choose to impose in the future. Not the slightest attempt is made to prohibit subsequent legislation in hostility with that of the act in question. Hence, it cannot be doubted that on any day after the 10th day of April, 1879, it was within the authority of the Commonwealth, acting through the lawmaking power, to reimpose any taxes which were removed by the legislation of that date. While it may be argued with some force that it would be inconsistent for the same legislature to remove a tax by one act, and re-establish it by another of subsequent date, yet that is but an argument of inconsistency at the best. It would be very proper to be addressed to the legislative body as a reason for not passing the subsequent act, but it is absolutely of no force when addressed to a court which is bound to construe and enforce plain legislative words. Were the subject an open one, it would be enough to suggest that in the interval between the dates of the two acts, there may have occurred such a change in the financial affairs of the Commonwealth, or, in the opinion of the members of the legislative body respecting those affairs, as to induce them to reimpose taxes which they had by the earlier act removed. In view of these considerations it is evident that if the act of June 7th, 1879, imposes the tax in question, it is scarcely essential to the discussion to determine whether it is a repeal of the act of April 10th, preceding.

But if it were material the question is not difficult of solution. The eighteenth section of the act of June 7 th, provides : “ That this shall go into effect immediately, and that all laws or parts of laws inconsisten therewith, or which are hereby substantially re-enacted, be, and the same are hereby repealed.” The eighth section of the act of April 10th is certainly and necessarily inconsistent with the fourth section of the act of June 7th, if the latter imposes a tax which the former removes, and hence the question is not one of implied but express repeal. In the case of the Commonwealth v. Fayette Co. R.R. Co., 5 P. F. S., on page 455, we said: “ The act of 12th April, 1859, expressly repeals any existing law inconsistent with the provision as to taxation, and as the defendants are conceded to be within the words of the act, the limitation of taxation in their fifth section is clearly altered or repealed.”

In the case of the Union Improvement Co. v. The Commonwealth, 19 P. F. S., 140, the company was, by the express provision of a supplement to its charter, exempted from taxation on its capital stock and dividends. Yet we held that it was liable to such tax under the general language of the act of May 1st, 1868, imposing tax upon all corporations without any words either of special or general repeal. The decision was put solely upon the ground that the act of 1868 subjected to taxation the capital stock of all corporations, and that, therefore, it must be intended to repeal even previous acts which gave special exemption. On page 143 it was said by Williams, J.: “It is true that this company was exempted from taxation by a special act, but this is wholly immaterial if it was the intention of the legislature to repeal the exemption by the act of 1868. If no such repeal was intended, why did the legislature declare that the stock of all companies whatever, except banks, savings institutions, and foreign insurance companies should be subject to the tax imposed by the act ? The exemption of these three classes of corporations from the operation of the act, conclusively shows that the legislature intended to include within its provisions all other corporations whatever, whether they had been previously exempted from taxation or not. If such was not their intention, why were they not included wdthin the saving provisions of the act? ” This language goes much farther than any requirement of the present case demands. In the case just cited the exemption was by a special act, which constituted part of the charter of the company, and of' course it was limited to that particular corporation. In the case at bar, the plaintiff in error is one of a class, and claims the benefit of a general act exempting all building associations. The act of 1st May, 1868, contained no general repealing clause, but did contain a section (the sixteenth) which repealed a number of acts and parts of acts by precise description, but none of which embraced the exempting act of 11th April, 1862, which applied to the Union Improvement Company. Notwithstanding all this it was determined by this Court that the mere general language of the act of 1868, making the capital stock of all corporations liable to taxation, operated as a repeal of the special exemption in question. In the case of Erie Railway Co. v. Commonwealth, 16 P. F. S., on page 87, the present chief justice said: “ There is no principle better established, and it requires no long array of cases to prove it, than that no surrender of the general power of taxation by any legislative act can be implied.”

In the present case there is no language in any part of the act of April 10th, 1879,as we have heretofore shown, that purports to surrender in the least degree the general power of taxation possessed by the Commonwealth. Under the case last referred to, it is held that such surrender cannot be implied. We are therefore clearly of opinion that the act of June 7th, 1879, was a fresh and independent exercise of the taxing power, unrestrained by any previous surrender or limitation, so far as building associations are concerned, and also that it operated as an express repeal of the act of 10th April, 1879, exempting such associations from taxation.

The remaining question submitted by the case stated is: “Does the act of June 7th, 1879, impose a tax upon the capital stock of building associations?” The express language of the act includes “ every company or association whatever ”....“ except foreign insurance ' companies, banks, and savings institutions.”

A building association is neither a foreign insurance company, nor a bank, and it cannot, without a manifest abuse of terms, be denominated a savings institution. Technically, building associations and savings institutions have not a feature in common. In the practical details of their operation they are totally dissimilar. The latter were well known and in general use long before the former were ever heard of or had any authorized existence.

If there were the slightest doubt as to whether the legislature regarded savings institutions and building associations as the same, it is instantly dispelled by observing the manner in which they are treated in various acts. The act of 1st May, 1868,imposed taxation upon “ all companies whatever,” “ except banks, and savings institutions, and foreign insurance companies,” but yet provided in the same section, “that building associations, plank road, or turnpike companies, shall not be liable for any tax to the Commonwealth, when such companies make or declare no dividends.” If “building associations ” were already exempt from the operation of the fourth section because they were “ savings institutions,” the proviso clause of that section, which exempts them when they declare no dividends, would be an absurdity.

In the fifth section of the tax act of 24th April, 1874, occurs the following clause: “ And excepting also banks, and savings institutions, building associations, and foreign insurance companies.” If the two classes were the same, of course they would not receive separate designations. Precisely the same independent designation of these two classes of corporations occurs in the excepting clause of section three of the genera] tax law of 20th March, 1877. When the act of 7th June, 1879, was passed, all companies or associations whatever were subjected to the tax “ except foreign insurance companies, banks, and savings institutions,” and the conclusion is irresistible that inasmuch as in the previous acts upon the same subject, building associations were included in the •excepting clauses by express mention, they were omitted from the excepting clause of this act because it was so intended. It is unnecessary to pursue the discussion. We are of opinion that the learned Court below were correct in their conclusions upon both questions submitted, and, therefore,

The judgment is affirmed.


text:
    May Term, 1881,
    No. 191.
    June 15th, 1881.
    Wilson versus Irvin.
    1. Where, by articles of agreement under seal, the owner of timber land sold with other real estate certain standing and growing timber, with right to the vendee to enter and remove said timber, and the agreement provided that within nine years from its date the vendee should remove the timber, but that none of it should be cut until security satisfactory to the vendor should be given by the vendee for the amount of timber he proposed to cut; Held, That the interest of the vendor in the timber before severance, and before the entry of security, was real estate.
    2. Quasre as to the effect of an assignment of the interest of the vendor in the timber to a trustee to secure the payment of certain promissory notes held by a creditor, which assignment was not recorded for more than thirty days after its execution.
    Error to the Court of Common Pleas of Clearfield County.

    Attachment sur judgment in the Court below by E. H. Wilson against B. F. Douglass, James A. McGee, and H. B. Kinport, defendants, and E. A. & W. D.' Irvin, garnishees.
    By articles of agreement, dated the 6th of January, 1873, B. F. Douglass, the defendant, “ agrees to sell, and does sell ” to E. A. & W. D. Irvin two tracts of land in Susquehanna township, Cambria County, Pennsylvania, and “ also all the white pine and oak timber growing and on a certain tract of land now occupied by William Trimble, situate in Green township, Indiana County, Pennsylvania. . . . Also, all the white pine and oak timber standing and on a certain piece of land now occupied by William Trimble, lying and adjoining the afore-mentioned tract on the south, containing sixty acres, more or less. . . . Also, the undivided one-half of all white pine and oak timber standing and on a certain tract of land situate in Green township, Indiana County, Pennsylvania, . . . containing three hundred and sixty acres more or less. .... Also, the one undivided one-half of all the white pine and oak timber standing and on a certain piece of land situate in Green township, Indiana County, Pennsylvania, containing one hundred and twenty acres, more or less..... The party of the first part also gives to the party of the second part the right of ingress and egress necessary to remove said timber where timber is sold and land reserved. E. A. & W. D. Irvin of the second part agree to pay for the above described Garmantown tract of land, one hundred and fifty acres, more or less, and for the undivided one-half interest in the Oaks tract, both of the above in fee simple, free of incumbrances, and for all the white pine and oak timber on the two lots now occupied by William Trimble, containing one hundred and twenty acres, more or less, with reservation above-mentioned, and for the undivided one-half of all the white pine and oak standing and on the Stevens and Staff lots above-described, containing four hundred and eighty acres, more or less, the sum of $49,000, in manner following, to wit: $2000 at the date of this agreement; $3000 on the first day of March next; $11,000 on the first day of June next; $11,000 on the first day of July, 1874; $11,000 on the first day of July, 1875, and the final sum of $11,000 on the first day of July, 1876.
    “ The party of the second part further agree to remove the timber from the four last-mentioned lots within nine years from date of this agreement. It is also agreed that when the first three payments mentioned are made, that B. E. Douglass is to convey by good and sufficient deed to E. A. & W. D. Irvin the two pieces of land above sold in fee simple; and it is further agreed that no timber is to be cut upon the last four mentioned lots, until security, satisfactory to the party of the first part, be given by the party of the second part for amount of timber they propose to cut.”
    This agreement was recorded March 1st, 1878.
    On October 3d, 1873, Douglass being hable upon three promissory notes for $1000 each to the Indiana County Deposit Bank, executed an instrument under seal, reciting the above agreement and setting forth :
    “ I, the said B. E. Douglass, for the purpose of more perfectly securing the payment of the said notes, and for the consideration of one dollar to me in hand paid, do hereby grant, bargain, assign, transfer, and set over to William M. Stewart, Esq., in trust for the Indiana County Deposit Bank, aforesaid, all my right, title, interest, and claim to the above-recited article of agreement, and the balance of purchase-money unpaid thereon, and upon payment of said purchase-money to him, in trust as aforesaid, he to make title for the real estate and timber-leave therein described, according to the terms of said agreement, in my name and stead, as fully as I myself could do. And further, for the purpose aforesaid, in addition to what other securities I may have heretofore given the said bank to secure the payment of the said notes, in consideration of the premises, I hereby authorize and empower the said William M. Stewart, Esq., trustee as aforesaid, on failure of the payment of said notes, or any of them, or any notes that may be given as renewals of any of them at the maturity thereof, to proceed to collect the balance of the purchase-money unpaid on the said article of agreement, and to use all legal remedies for the enforcement of the terms of the said agreement which may be deemed necessary, and to apply any proceeds -which may be realized to the payment of the said promissory notes, with the interest. To have and to hold all my title, interest, and claim to the agreement, and the real estate and timber-leave therein described unto the said William M. Stewart, his heirs and assigns, to and for the use and purposes hereinbefore mentioned.”
    This instrument was acknowledged July 23d, 1875, and recorded July 26th, 1875.
    On the 27th of November, 1876, a judgment was obtained in the Court of Common Pleas, of Indiana County, by It. J. McConnaghy against B. F. Douglass and others for $131.33. This judgment was assigned to the Indiana County Deposit Bank. An execution was issued upon it, under which levy was made upon the real estate of Douglass, including the tracts described in the above agreement, and they were sold October 5th, 1877, to the Indiana County Deposit Bank. Deeds from the sheriff for the same were duly executed, acknowledged, and delivered.
    On the 2d of August, 1879, E. A. & W. D. Irvin, for $18,000, bought from the Indiana County Deposit Bank “ the interest of the bank in the land purchased at sheriff’s sale as the property of B. F. Douglass, in Green township, on which is growing the timber which you (the bank) purchased from the said Douglass in February, 1873, being four different pieces.”
    On the 10th of November, 1873, E. H. Wilson, the plaintiff, obtained a judgment against Douglass, James A. McGee and H. B. "Kinport'for $10,000,. and on November 3d, 1877, issued an attachment on this judgment, which was served on E. A.. & W. D. Irvin, as individuals and as a firm, as garnishees, on the following day. The garnishees pleaded nulla bona.

    On the trial in the Court below the above facts appeared in evidence, and it was admitted by the parties, for the purpose of the suit, that at the time ,of the service of the attachment on the garnishees and since, there was so large a sum of money due from these garnishees to Mr. Douglass on the sale of timber as would satisfy this judgment, and more than satisfy it, if it were legally applicable on this attachment.
    W. D. Irvin testified as follows:
    “ Question. How many years have you been operating on it?
    “Answer. Do you mean on the land in Indiana County?
    “ Q. Yes. The land in Indiana County. The four tracts in Green township.
    “ A. This is the third year.

      “ Q. IIow long will it be yet before you will have all the timber removed ?
    “A. We have about another winter’s work on it.
    “ Q. How long would it take you to remove all the timber from that land, to proceed with it as rapidly as possible? What is the shortest space of time in which you could have removed all of the timber on that land?
    “A. If we had good and favorable weather we could have done it in three years.”
    He further testified that no security had been given for the removal of the timber under the contract.
    Upon this state of facts, counsel for the plaintiff asked the Court to charge,
    1. The sale of the timber upon which the indebtedness of the garnishees arose to B. E. Douglass was in law a severance of the timber from the land, which had the effect of converting it into personal property.
    2. After said sale, the interest of Douglass, the -vendor of said E. A. & W. D. Irvin, was personal property.
    3. Such interest was not bound by judgments entered up against Douglass and others, the vendors of said E. A. & W. D. Irvin, and levy and sale of it as real estate conveyed no title to the purchaser at the sheriff’s sale.
    4. Such indebtedness stands on the same footing as any other debt, and is subject to attachment.
    5. Under the evidence, it being admitted that there is sufficient in the hands of the garnishees, the plaintiff is entitled to recover.
    The Court, J. H. Orvis, J., refused all of these points, and charged the jury:
    We being of the opinion that the interest in the four tracts of land in Indiana County, sold by B. E. Douglass to E. A. & W. D. Irvin, by articles of agreement of January 6th, 1873, was real estate, the.legal title to which remained in the vendor, the same was bound by the judgments against him in Indiana County. The interest of Douglass in these lands having been assigned to the Indiana Deposit Bank as collateral security for notes held by said bank, and subsequently having been sold at sheriff’s sale and purchased by said bank, no right to recover the purchase-money remained in B. E. Douglass, and therefore direct you to find a verdict against the plaintiff and in favor of the garnishees.
    Plaintiff excepted to the answers to the points and the charge.
    May 23d, 1881, the jury found a verdict for the garnishees, upon which judgment was entered.

      Plaintiff then took a writ of error, assigning as error the rulings of the Court as above set forth.

      McEnally and McCurdy for plaintiff in error.
    If the interest of Douglass, as vendor, after his sale to the Irvins of the timber, with nine years to remove the same, was real estate, so that judgments entered up against him would be a lien upon that interest and hold the balance of the purchase-money, then it would appear to follow that the purchase-money would not be the subject of attachment: Stewart v. Coder, 1 Jones, 90.
    If the purchase-money claim was only personal property, the judgments against Douglass would be no lien, the sheriff’s sale would pass no title, and, under the evidence in this case, plaintiff would be entitled to recover. The authorities are few, and none cover the precise point: 1 Greenleaf on Evidence, § 271 ; Soller on Executors, 194, 195 ; Huff v. McCauley, 3 P. F. Smith, 206 ; Pattison’s Appeal, 11 P. F. Smith, 297 ; McClintock’s Appeal, 21 P. F. Smith, 365.
    The assignment to Stewart as trustee not being recorded for thirty days was void, and does not affect .the attachment: Wallace v. Wainwright, 6 Norris, 263.

      Murray & Gordon for the garnishees, defendants in error.
    Before the' contract, the timber growing on the land was realty, and the rule is that it continued to be real until the owner should give it a different character: Roger’s v. Gilinger, 6 Casey, 188 ; Shepherd’s Touchstone, 90.
    Much the greater portion of this timber interest was an undivided half, and could not be severed without the consent, in writing, of the other joint owners : Act May 4th, 1869, § 1, Purdon, 1467.
    It was treated as real estate by the parties from first to last: Broom’s Legal Maxims, 545.
    The time given in the contract for its removal is three times as long as the time necessary for that purpose, and it is stipulated that the timber should not be severed until other security was given: Huff v. McCauley, 3 P. F. Smith, 206 ; McClintock’s Appeal, 21 P. F. Smith, 366 ; Yeakle v. Jacob, 9 Casey, 376 ; Addison on Contracts, 31 ; Crosby v. Wadsworth, 6 East, 610 ; Pattison’s Appeal, 11 P. F. Smith, 296 ; Caldwell v. Fulton, 7 Casey, 475 ; Smith on Contracts, 122, note ; Boults v. Mitchell, 3 Harris, 381 ; Clap v. Draper, 4 Mass., 266 ; Tucker v. Andrews, 13 Maine, 124.
    Whether the timber is to be treated as real or personal, the assignment of October 3d, 1873, over three years before the attachment was laid, passed the title to this money, and there was nothing for the attachment to reach.
   Per Curiam:

The only question in this case upon which the several assignments of error all depend, is whether the agreement between Douglass and the Irvins for the sale of the standing timber converted it into personal property. By this agreement the Irvins were to remove the timber within nine years from the date of the agreement, and as to certain parts of the land no timber was to be cut until satisfactory security was given by the vendees for the amount of timber they proposed to cut. As no immediate severance was in contemplation, it is clear, according to McClintock’s Appeal, 21 P. E. S., 365, that it remained real estate, subject to the lien of judgment against the vendor. His title passed to the sheriff’s vendee, and wúth it his. claim to the purchase-money. It was not then subject to the attachment, and the charge of the learned Court below was entirely right.

Judgment affirmed.


author: Per Curiam :

text:
    May Term, 1881,
    No. 165.
    June 15th, 1881.
    Hoar et al. versus Flegal.
    1. That one of the panel of jurors on the trial of a cause was personated by a stranger is a matter only to be remedied on a motion for a new trial.
    2. It cannot be reached by a motion in arrest of judgment, or by writ of error.
    3. Plaintiff in error is estopped from alleging anything which contradicts the record.
    Error to the Court of Common Pleas of Clearfield County.

    Assumpsit by David J. Hoar & Co., against Lever Elegal.
    The cause came on for trial May 21st, 1879, and the jury rendered a verdict for the defendant.
    The following day the plaintiffs made a motion in arrest of judgment and for a new trial, because, inter alia, “ John B. Mays, who served as a juror in the trial of this cause, was not drawn as a-juror for this term of court, and the said John B. Mays, a resident of Knox township, falsely personated and answered to the name of John Milton Mays, a citizen of Jordan township, who was drawn as a juror for the present -term, but was not in attendance at Court.”
    Depositions were taken in support of the rule, from which it appeared that the list of traverse jurors drawn for the third Monday of May Term, A.D., 1879, contained the following: “ 30 Jordan, John M. Mays, Farmer;” but not the name of John B. Mays.
    John M. Mays testified:
    “ I was born and raised in Jordan township, Clearfield. County. ... A few days before court, John B. Mays, of Knox township, came to where I live. He said he came up to tell me that I need not come up to court as a juror. He said he had got the notice and he was the legal man. He said he was going and I need not go; said he heard that I was going to court and he had come to tell me that I need not go, that he was going. ... I never was notified by the sheriff as a juror.”
    John B. Mays sat as a juror in the case. Neither plaintiffs nor their counsel knew that he was not John M. Mays of Jordan township until after the trial.
    June 2d, 1880, the Court below discharged the rule and refused a new trial, and May 6th, 1881, judgment was entered on the verdict.
    The plaintiff then took a writ of error, assigning for error that the Court erred in refusing to arrest the judgment.

      Frank Fielding and William D. Bigler for plaintiffs in error.
    The verdict and judgment are nullities: Commonwealth v. Spring, 5 Clark, 238 ; Commonwealth v. Sallager, 3 Clark, 127 ; Norman v. Beamont, Willes, 484 ; Hill v. Yates, 12 East, 229 ; King v. Tremearne, 5 B. & C., 254 ; Pennell v. Percival, 1 Harris, 200 ; Bank v. Eyre, 10 P. F. Smith, 441.

      Wallace and Krebs for defendant in error.
    No right was taken from the plaintiff, and no harm resulted to him from the juror. He took his chances for the verdict: Burton v. Ehrlich, 3 Harris, 236.
    In the absence of merit the Court will not set aside a verdict because of the misdescription of one of the persons named in the list of special jurors: Sparks v. Plankinhorne. 4 Yeates, 384 ; McCorkle v. Binns, 5 Binney, 340.
   Per Curiam :

The record in this case is perfectly regular. That one of the panel of jurors was personated by a stranger was a matter only to be remedied on a motion for a new trial. It could not be reached by a motion in arrest of judgment, nor on error. The plaintiff in error is estopped by the record from alleging anything which contradicts it.

Judgment affirmed.


text:
    May Term, 1881,
    No. 117,
    May 16th, 1881.
    Harris versus Nowviock et al.

    Where in an action of ejectment brought in 1876 to recover a tract of land called the “ English burying-ground ” within a town, plaintiff proved that the founder of the town in whom the land had been vested died in 1791, without in his will disposing of it specifically, and that on a plan of the town in the surveyor’s office, recorded in the office of the recorder of deeds, and acknowledged in' 1796 by three persons who were executors of the founder to be a true plan, and who agreed that it should govern in all cases of dispute that might arise between them, their heirs, and assigns, and the inhabitants, this tract was designated as the “ English burying-ground,” and further proved that it had been used from a period not later than 1807 down to 1857 as a burying-ground, hut that since the latter date the bodies had been removed and the tract used for other purposes : Held, that there was no evidence to go to a jury from which they could find that the founder had dedicated the tract for the purposes of a burying-ground, and Held, further, that there was no evidence upon which the plaintiff, as an heir of the founder, was entitled to recover.
    Error, to the Court of Common Pleas of Dauphin County.

    Ejectment, commenced May 17th, 1876, by William Harris against Louis Nowviock, W. Wayne Yogdes, and John Reatty, for one-twelfth of a tract of land in the city of Harrisburg.
    It was admitted that John Harris, the founder of Harrisburg, who. died in 1791, was the owner of the land in question. The father of the plaintiff below, and the plaintiff in error, Robert Harris, was a son of John Harris, the founder, and a devisee and one of the executors named in his will.
    The land in dispute was what, for many years prior to 1856-57, had been known as the “ English burying-ground.”
    Upon the trial of the case, the plaintiff’offered in evidence the will of John Harris, dated May 25th, 1790, probated in August, 1791, showing no disposition of the said land, and appointing as executors Robert Harris, John A. Hanna, and William Maclay. In his will the testator willed and desired that the town of Harrisburg “be, and remain, according to the plan thereof, laid down and signed by the said commissioners,” undiminished and confirmed forever; devised a lot numbered in the general plan of the town to his son, Robert Harris, in fee; as to the residue of the town “ as laid out by the aforesaid commissioners,” “except the lots before devised, or in my lifetime sold and conveyed,” and an additional described piece of land he directed and empowered his executors, and the survivor of them, “ to sell and convey in fee simple or for life, or for any less estate, or to let or rent for years, for life, or for any less estate, . . . and to collect the groundrents in arrear, growing due on any of the lots in said town;” devised and bequeathed the proceeds of the sale of the land and arrears of groundrent to his children, including Robert Harris, share and share alike, and ordered and directed that the legacies to Robert Harris be in bar of all claims Robert might have against his estate, particularly an obligation for £250,which was to be cancelled and delivered up,and in case of Robert’s refusal so to do, he revoked all legacies.
    The plaintiff also offered in evidence a plan of th§ town of Harrisburg on file in the surveyor’s office, and recorded in the office of the recorder of deeds, showing that the land in dispute was embraced within the limits of a plot marked “ E,” designated on the plan as the “ English burying-ground.” Upon this plan was indorsed the following:
    “We do acknowledge and attest that the within is a just and true plan of the borough of Harrisburg, and we do hereby agree that the same shall govern in all cases of dispute that may arise between us, our heirs and assigns, and the inhabitants of the borough of Harrisburg, forever.
    “ Witness our hands and seals, November 21st, 1796.
    “ Robert Harris, [seal.]
    “John A. Hanna, [seal.]
    “ Wm. Maclay.” [seal.]
    It was acknowledged the same day, and recorded June 16 th, 1823.
    David Harris, in his deposition taken in 1877, testified :
    “ I know the land in controversy. It is called the English graveyard. I have known this ground for seventy years,— as long as I could know anything. When I first knew it it was used as a graveyard. . . . It is not now used as a burying-ground. The remains of all those who were interred there were taken to the Harrisburg cemetery.” ....
    Other witnesses for the plaintiff testified that the land had been used as a burying-ground down to 1857, but was, at the time of the trial, fenced in, and had a stone-cutter’s shop and other buildings on it, and that no portion was then used as a burying-ground. One of the witnesses testified to having done work there at the time the bodies were removed, for the trustees of the English Presbyterian church.
    The defendants produced no testimony.
    The plaintiff presented a number of points asking the Court to charge, inter alia:

    2. That the original plan was evidence of a dedication by John Harris of the land in controversy as and for the “ English burying-ground,” and being supplemented by proof that the same had been used for seventy years as a burial-ground, was, in the absence of proof to the contrary, conclusive that the said land was thus dedicated.

      6. That if the jury find under the evidence that the land in controversy was dedicated by John Harris for a burying-ground for the English-speaking citizens or inhabitants of Harrisburg, and that the same was used as such “ English burying-ground ” for. upwards of seventy years, and that the remains of the dead formerly buried there have since been removed, and that the said ground had been, at the time this suit was brought, abandoned for burial purposes, and was used by defendants for other purposes, the title and right to the possession of the ground was in the lineal descendants of John Harris.
    The questions raised by these points were covered by the main charge.
    The Court, Henderson, J., charged, inter alia, as follows:
    “ We start, then, with the fee in John Harris. What else have we ? It is not pretended that this property, by description, was devised by him. The theory of the plaintiffs seems' to be that he died intestate as to this property. Although it is argued that even if it did pass to the executors under the clause of the will directing it to be sold, still the devisees entitled to the proceeds may elect to take it as real estate. We prefer to meet the question at the threshold. The plaintiffs are impressed, if not embarrassed, by the absence of possession for so long a time; and hence wo find their explanation in the allegation that the property was dedicated by him through whom they claim to the special use of a ‘ burying-ground.’ We have looked through the evidence in vain to find any act of dedication by John Harris. The ancient plan of the town of Harrisburg bears on its face'this piece of ground marked as the‘English burying-ground,’ but where is the evidence that this was the act or done by the direction of John Harris ? It is sufficient, we confess, to indicate the purpose for which it was used at the time of the acknowledgment of the draft by the persons named, and it may be conceded that these persons were his executors. It does not, however, appear, that the same was made in their character as such. What then, whether as executors or otherwise ? How does this act of theirs tend to show a dedication by him any more than a grant or gift ? It is evidence that it is a true plan of the boi’ough, and it may be conclusive in all disputes between the parties to it and the inhabitants of the borough. That is, it may indicate lines and determine locations. But beyond this there can be no pretence that it can abridge or enlarge titles or rights of property. It may show, and we think it does, that the right of possession was not in them or in the heirs of John Harris, deceased; but it does not determine the estate in possession or limit it to a mere easement or special use. We think it does not operate on the title at all. The fact then is that the possession has been out of plaintiffs and those through whom they claim for eighty years and upwards. The plaintiffs’ claim to possession now is not strengthened in the least by the mere fact that up until recently, if you please, the ground was used as a graveyard, which is now abandoned. For it cannot be that this indication of the ‘ English burying-ground ’ of itself on the ancient plan is evidence of a dedication by the founder of the town, or that the fee remained in him or his heirs. As this case now stands I incline to the opinion that the evidence tends to show that John Harris parted with the possession in his lifetime. It may have been an absolute gift accompanied by possession, without restriction or limitation to a special use ; the act of a broad-gauged, generous man, the founder of a city, who knew well the capacity and growth of his people, and made no attempt to hedge them in with graveyards. It is useless to talk now of the fee remaining in him for the benefit of his heirs-at-law, in the face of his well-considered will, after a possession adverse to anything like a claim of ownership for a period of over eighty years. Nor is this the ordinary case of an easement, public or private, where, from non-user or abandonment, the possession reverts to the owner of the fee. And yet whilst it may be admitted that the use of a piece of ground is not inconsistent with a dedication to this purpose, we do most earnestly hold that against those in possession such dedication is not to be presumed or inferred from the use. Then have we anything more in this case ? The words upon the plan can indicate nothing more than the marks upon the ground.”
    After answering the various points presented in accordance with the foregoing general charge, the Court said:
    “ And now, upon the whole case, I am clearly of the opinion that the plaintiffs have made out no case for the jury, and must therefore direct you to find in favor of the defendants.”
    Plaintiff excepted to the charge, ánd to the answers to the points.
    ■May 5th, 1880, the jury found a verdict for the defendants, upon which judgment was entered January 21st, 1881.
    The plaintiff took a writ of error, assigning for error the charge and the answers of the Court.

      Hamilton Alricks and Levi B. Alricks for plaintiff in error.
    The Court having taken the case from the jury, all the assignments of error will be treated together. It was admitted the fee was in John Harris, the founder. Pie died in 1791, never having parted with it. As he died intestate as to this land, the fee became vested in his descendants. How, then, could mere possession “not inconsistent with the fee being in them,” divert their title ? To constitute a valid title by possession twenty-one years hostile possession was necessary, not to be made out by inference, but by clear and positive proof: Rung v. Shoneberger, 2 Watts, 23 ; Hawk v. Senseman, 6 S. & R., 21 ; Mercer v. Watson, 1 Watts, 330 ; Comegys v. Carley, 3 Watts, 280 ; Union Canal Company v. Young, 1 Wharton, 426 ; Sailor v. Hertzogg, 2 Barr, 181 ; Moore v. Small, 9 Barr, 196.
    The learned judge below presumed, without evidence and without the assistance of a jury, that defendants held title by adverse possession: Mobley v. Buner, 9 P. F. Smith, 481 ; West v. Pine, 4 W. C. C. R.,691.
    No particular form of Avords is necessary to establish a dedication. The assent of the OAvner and the use of the premises are sufficient, and estop him from,revoking it while in uso: Commonwealth v. Alburger, 1 Wh., 469 ; Morgan v. Railroad Company, 6 Otto, 716 ; New Orleans v. United States, 10 Peters, 662 ; McConnell v. The Town of Lexington, 12 Wheaton, 582 ; Cincinnati v. Lessee of White, 6 Peters,431 ; Schenley v. Commonwealth, 12Casey, 29 ; Klinkener v. School Directors, 1 Jones, 444 ; Birmingham v. Anderson, 12 Wr., 253 ; Hunter v. Trustees, 6 Hill, 407 ; see particularly Kirk v. King, 3 Barr, 436.

      Gilbert & McPherson and Fleming McCarrell for defendants in error.
    No particular form of words is necessary to establish a dedication, but whatever the form of words may be, or Avhatever the acts of the parties, there must be some connection shown between the words or the acts alleged to be those of dedication and the person whose conduct is thus sought to be explained. Nothing relied on by the plaintiff was shown to have proceeded from John Harris.
   Per Curiam:

We concur with the learned judge of the Court below that there was no evidence of the dedication of the land in dispute to a charitable use as a burial-ground, certainly none by John Harris in his life. The plan in evidence was made by his executors. They had no power under his will to give away any portion of his land. The plan, then, was only evidence that it had been sold to some person or persons by whom it had been given [and] or dedicated to such a purpose. There was some testimony that it had been under the control of the English Presbyterian Congregation. They buried there, and the trustees of that church paid for the removal of the dead.

Judgment affirmed.