text:
    Lanahan versus The Commonwealth.
    1. The ingredients of murder in the first degree exist in the evidence in this case.
    2. The fact of a deliberate and intentional killing having been established the inability to discover motive does not disprove the crime.
    3. While flight is not evidence of the degree of murder, yet flight, under the circumstances of this case, give them strength, and they indicate the degree.
    4. To establish the ingredients of murder in the first degree, the burden of proof lies on the Commonwealth, but it is not necessary that the evidence should be express; it is sufficient if from the nature and use of the weapon and the acts and conduct of the prisoner, his intention to kill can be fully, fairly and justly inferred, with so much time and opportunity for deliberation as to convince that his purpose was wilful and premeditated.
    5. The use of a deadly weapon, .such as & pistol, when voluntarily directed against a mortal part, is evidence from which a jury may rationally infer an intention to kill, when the conduct of the prisoner and the circumstances under which he fires the shot corroborate and sustain the inference.
    March 7th 1877.
    Before Agnew, C. J., Sharswood, Merour, Gordon, Paxson and Woodward, JJ.
    Error to the Oyer and Terminer of Luzerne county: Of January Term 1876, No. 167.
    Indictment of Andrew Lanahan, the first count of which charged him with the murder of John Reilly, and the second with manslaughter.
    Plea “Not guilty.”

      The facts are sufficiently stated in the opinion of this court.
    The chief contention in the court below was to the degree of the guilt, the defence averring that voluntary manslaughter, or at most murder of the second degree, was the grade of the offence.
    The following w7ere among the points' submitted, to which are appended the answers of the court, Harding, P. J., and Handley, A. L. J.
    1. That the presumption of law arising from the use of a deadly weapon, where death results, rises no higher than murder of the second degree, and that wilfulness, deliberation and premeditation, which are essential elements of the crime of murder in the first degree, must be proved by the Commonwealth to have had an existence in the mind of the prisoner, by testimony so clear and conclusive that no reasonable doubt thereof remains in the mind of the jury.
    Answer. “ We have already said to you in the general charge, that in order to convict of murder of the first degree, you must be satisfied beyond a reasonable doubt, that the prisoner slew Captain John Reilly, and that that slaying was wilful, deliberate and premeditated.”
    2. That no positive evidence has been produced by the Commonwealth in this case to show that the killing was premeditated and deliberate, and that the circumstances under which the killing took place may be reconciled with the theory of the absence of such intent.
    Answer. “ That is a question of fact for the jury under the evidence in the case.”
    3. That if the jury can reconcile'the circumstances under which the killing took place with the prisoner’s innocence of a deliberate and premeditated intent to take life, they are bound to do so, and in that event cannot find him guilty of murder in the first degree.
    Answer. “We have already affirmed that proposition in the general charge. We affirm it again.”
    The portion of the general charge referred to was as follows:—
    “ The defence have made answer to the charge contained in this indictment. . They concede, as we have said before, the killing under the circumstances as represented by the witnesses on the part of the Commonwealth, but they deny the degree of murder charged. Their theory is, that Captain Reilly and the prisoner, while coming down the road that night, within five hundred feet of the point from which they started, got into an altercation, and that Captain John Reilly then first shot Andrew Lanahan, whereupon the latter instantly fired the fatal bullet into the body of the' former. In support of this theory they produce the defendant before you, and exhibit a wound which they allege was inflicted upon his person that night. (A ball was extracted from the prisoner’s body in the court house by the prison physician during the progress of the trial. Rep.)

      “ If that theory, supported by the evidence, raises in your minds a reasonable doubt as to whether this killing was wilful, deliberate and premeditated, that doubt belongs to the prisoner, and you should acquit him. It is for you to say whether this was so or not, but it is not to be assumed, not to be gathered elsewhere than from the record of the testimony.”
    4. That if the jury believe from all the evidence that the prisoner was so much under -the influence of liquor, at the time the offence was committed, as to be unable to deliberate upon and premeditate the killing, and to form consciously a specific intent to take life, or if the testimony has raised a reasonable doubt as to his ability to deliberate and premeditate, he cannot be convicted of murder in the first degree.
    Answer. “We have already said this, substantially, to you in the general charge; we have explained to you at. length what are mitigating circumstances, and particularly to what extent drunkenness must be shown to exist. With what we have thus said to you in the general charge, we affirm this proposition.”
    The portion of the charge referred to was as follows :—
    “ The defence, gentlemen, have further answered the charge by showing that these parties, the deceased and the prisoner, were drunk on the day in question. If you are satisfied from the testimony that Andrew Lanahan was besotted on the occasion1 to such an extent that he knew not what he was about, and .that he perpetrated this deed while in that state or condition, then the law in its mercy reduces the offence from murder of the first degree to murder in the second degree. But drunkenness should never be regarded as an excuse for crime.
    “ The man who deliberates and forms the intent to commit a murder, and then fires his courage by drinking this damning fluid, only heightens, increases the measure of his guilt. Drunkenness is no excuse for crime, particularly if that crime be previously determined upon, and intoxication is resorted to simply for the purpose of spurring on the courage. That drunkenness which besots, which renders a man unable to deliberate, reduces the crime which might be murder of the first degree to murder of the second degree.”
    The prisoner was convicted of murder in the first degree and sentenced to be hung.
    He then took this writ and his assignments of error were, among others, the above refusals of his points and the portions of the charge noted.

      Henry W. Palmer, John T. Lenahan, M. M. L'Veille and M L. Merriman, for plaintiff in error.
    To sustain this conviction it must be shown that the killing was malicious, premeditated and deliberate. There was no evidence whatever of express malice. The prisoner and the deceased were friends; there was no ill-will, no hatred, no antecedent threat, no evidence of former design or concerted scheme and no motive to kill, either for revenge or gain.
    Can malice be implied from the circumstances attending this killing — from the character of the weapon used ? The presumption of malice from the use of a deadly weapon will raise the crime no higher than murder of the second degree: Kelly v. Commonwealth, 1 Grant 492. The bare fact that Lanahan fired the fatal shot is the sole evidence upon which the jury found the deliberation and premeditation. There was nothing to show that the thought of murder had ever entered the prisoner’s mind. When the buggy-started from the hall the deceased and the prisoner were friends and had no quarrel or cause for quarrel. Within one minute, and before five hundred feet had been traversed, the fatal shot was fired. When did the prisoner premeditate the fatal deed? We are not bound to conclude that he premeditated the killing from the single fact that he did the deed. In the absence of proof of express malice or motive we must conclude that the shot was induced by something that happened in the wagon. Are not the facts that Lanahan was wounded on the night in question, his bloody clothing, the bullet in his side, where-Reilly’s right hand must have put it, evidence that.there must have been a quarrel and a mutual exchange of shots ?
    The doctrine laid down by the court in regard to the degree of intoxication necessary to excuse or palliate the offence was too stringent: Bishop’s Crim. Law, vol. 1, sect. 409 ; Keenan v. Commonwealth, 8 Wright 55. It is contended that the evidence failed to make out a case of murder in the first degree, and that it is the duty of this court, under the Act of 15th February 1870, Purd. Dig. 610, pl. 39, to review the same and determine whether all the essential ingredients exist: Grant v. Commonwealth, 21 P. F. Smith 495.

      C. R. Rice, District Attorney, Alexander Farnham, R. S. Osborne and John Lynch, for the Commonwealth.
    The counsel for plaintiff in error misapply the authority of Kelly v. Commonwealth, supra. It is true that the killing must be malicious, but it not appearing that it was done in self-defence, or in any other excusable manner, the inference of malice immediately arises from the killing itself, and murder of the first degree is presumed. There is no occasion for the use of a deadly weapon to raise this presumption. It arises from the unlawful killing, and the burden then rests on the accused to rebut this presumption, in order to reduce the grade to manslaughter: Commonwealth v. Drum, 8 P. F. Smith 17. Taking even Judge Thompson’s ruling, that the additional fact of the use of a deadly weapon would raise the presumption to no higher degree than the unlawful killing alone would have done, and that neither intention, deliberation, nor premeditation can thereby be inferred, he yet declares that, as to these last, the instrument used may be evidence, and a case can be easily supposed where it must necessarily be the only evidence affecting the degree, and yet be considered sufficient evidence. But it is held in Kilpatrick v. Commonwealth, 7 Casey 216, that the intent to take life was presumable from the nature of the weapon used. To the same effect is Cathcart v. Commonwealth, 1 Wright 112. Now how far in its legal effect does intent to take life operate ? It is that element which necessarily removes from a case the feature of murder of the second degree. If, then, from an unlawful killing, malice is inferred, but presumptive only, of murder of the second degree, and if, again, from the use of a deadly weapon, the intent to take life is to be presumed, malice also still being inferred, then the presumption in the latter case, not being that of murder of the second degree, must ‘rise to that of murder of the first degree, leaving upon the defendant the burden of reducing the grade to manslaughter; by proving that the act was without malice.
    Are the ingredients of murder of the first degree to be found in any portion of the Commonwealth’s testimony ? If so, the power and duty of the court, under the Act of 15th February 1870, is at an end. Any reasonable doubts which may have sprung from the defendant’s testimony have already been passed upon by the jury. They cannot be raised here: Grant v. Commonwealth, 21 P. F. Smith 507; Staup v. Commonwealth, 24 Id. 458.
    March 26th 1877.
   Chief Justice Agnew

delivered the opinion of the

Upon the indisputable evidence in this case the verdict was correct. These are the leading facts. Andrew Lanahan, the prisoner, and John Reilly, Esq., the deceased, were at a saloon under Landmcsser’s Hall, in Wilkesbarre, on the afternoon of the 15th of September 1874. They had not gone there together, but were drawn thither by a political convention held in the hall above. Late in the evening, Lanahan invited Reilly to take a seat in his buggy to go home. They left the saloon about dark, Lanahan sitting on the right and Reilly on the left side; Lanahan driving down Main street. When between two and three hundred yards from the saloon, and still in the built up part of Main street, a witness on the sidewalk heard two shots in pretty quick succession, and saw two flashes proceeding from the buggy, and immediately heard a voice coming from the buggy saying: “You have shot me,” or “I am shot.” The direction of both flashes was from the right towards the left side. Immediately a man’s body slipped from the seat, and his legs hung out at the left side, dangling against the wheel, and continued thus for a short time until the buggy approached Hazel street, the vehicle going at great speed. Before the firing no voices were heard, or other evidence of a quarrel in the buggy. When crossing, the railroad track into Hazel street, the buggy was held up and crossed slowly. ■ Just after turning into Hazel street, a witness saw two men in the buggy, one on the left, apparently lying with his head against the shoulder of the other on the right side, who held the reins and whip in his right hand, and was pulling a blanket over the man on the left. The buggy Avas soon driven at great speed, the driver striking the horse rapidly with the whip in his right hand. At the Newtown bridge, at a considerable distance from Wilkesbarre, two double teams Avere about crossing, and the front driver hallooed to the one behind to “ hurry up, there Avas a ‘rig’ coming pretty fast to cross the bridge.” The hindmost driver Avhipped his horses, but was not quite across Avhen the “ rig” struck his barouche, the front wheel of the former locking into the hind wheel of the latter. The driver of the “rig” whipped his horse rapidly to get loose, the driver of the barouche hallooing “whoa,” and three times telling the other to stop, and he would help him, the other saying nothing. Both got out about the same time, the driver of the barouche running down to the head of the horse in the “ rig” and the driver of the latter immediately turning from him, and running around the horses of the barouche, and then up the railroad toAvards NeAvtoAvn. The driver of the barouche called to a Avoman to bring a light, and stooping doAvn discovered a man lying under the wheel, but his horses being restive started, and he ran to catch them, got on his box and drove on to the city. The woman and others coming, the'man under the broken “rig” was discovered to be ’Squire Reilly, and the “ rig” afterwards identified as the buggy Lanahan had hired, and drove from the saloon Avith Reilly in. In a few minutes after the collision at the bridge Lanahan .was met by a woman, who knew him, going rapidly into Newtown and breathing very hard. He reached home between eight and nine o’clock, and on the same night sent a companion for a doctor to extract a ball from his body. His vest and coat were burned as if by poAvder. One of his companions felt a ball in his flesh under his arm. The doctor did not come, and the next thing knoAvn of the prisoner was on the following night when a companion, who says he OAved him twenty dollars, found him in the woods beside a rock or bushes, gave him the money, and told him the people were excited and would hang him, if caught.

Lanahan disappeared, and Avas not found until about a year after-wards, Avhen he was discovered in a western state, under a feigned name, arrested and brought back, denying his identity and not admitting it until fully identified at Wilkesbarre. Reilly, the deceased, was not known to have possessed a pistol,' and none was found upon him, or in the buggy, or on the road the buggy ran, or elsewhere. The identity of the two persons, the buggy and horse, and of the time, place and circumstances of the shooting being undeniable, the chief and indeed only possible defence was that a quarrel must have arisen between them, that each had a pistol, and that in and about the same time they fired upon each other. This raises an inquiry into the probability of such a quarrel under the circumstances. The testimony of the witness on the pavement, and close by whom the shots were fired, contradicts 'the probability of a quarrel. The relative positions of the parties make it still more improbable. Lanahan sat on the right side and Reilly on the left — this fact is beyond dispute. The ball which killed Reilly entered the muscle of his right arm, passed into his right side, diagonally upward through the lungs and auricles of the heart, and out at his left shoulder blade. This makes it clear that they were sitting side by side when the shot was fired, and not facing each other. If facing, Lanahan’s right hand would have been opposite Reilly’s left side, and the ball would have taken a contrary direction. The absence of noise or quarrel, and the direction of the ball through Reilly, show plainly that Lanahan held the pistol in the dark, with his right hand, the bend of his elbow giving it a direction slightly upwards and inwards, and near to the forepart of Reilly’s right arm, thus causing the ball to take the precise direction it did. The course of the ball which wounded Lanahan confirms this conclusion with great force. It entered his left breast near the nipple, striking and passing the rib under the left arm and lodging in the flesh under the arm pit. This wound could not have been from a pistol in the hand of Reilly. To have made it, he must have been facing Lanahan, holding the pistol in his left hand, or must have reached around Lanahan with his right. But the first shot from Lanahan’s pistol having been fired when sitting together, and passing through Reilly from right to left, the second shot was naturally turned into Lanahan’s own body precisely in the direction the. ball took, by a movement of Reilly, either in the convulsion of death, by striking Lanahan’s pistol with his arm, or by a momentary attempt before death to grasp the pistol; the shots being in quick succession, and negativing the idea of a return shot by Reilly. All doubt of this is removed by the witness on the pavement, who heard the shots quickly following each other, and saw the flashes proceeding from the right to the left. Had Reilly fired, it is probable his body would have hidden the flash from his pistol, or the flash would have been seen going from left to right. This solution is made still more clear by the subsequent facts. Immediately the man on the left side is seen to slide from his seat, and his legs fall1 out against the wheel. Then came Lanahan’s effort to retain the body, and the apparent position of Reilly afterwards, as if leaning against his shoulder, and his effort to draw the blanket or cover over Reilly. This was followed by the rapid driving, the collision at the bridge, Lanahan’s silence when spoken to three times, his leaving the buggy, his running toward home, his concealment in the woods, his final flight, assumed name, and denial of his identity. Flight it is argued is no evidence of the degree of murder; but flight under the circumstances detailed, gives them strength, and they indicate the degree. The prisoner evidently shot Reilly intentionally, by deliberately holding a deadly weapon against his side and firing the ball directly through the most vital organs of his body, without a quarrel. It is asked what was the motive ? True, this is not yet solved, but the fact of a deliberate and intentional killing is there. The fact of murder being established, the inability to discover the motive does not disprove the crime. When the question is, whether the prisoner committed the crime, his motive may be a most important fact in the proof, but the crime being established it is well shown in McCue v. The Commonwealth, 28 P. F. Smith 190, that the hidden motive is unnecessary to be disclosed.

The verdict of the jury establishes the murder in the first degree. Was the evidence sufficient ? Did it contain the ingredients ? The burden of this proof, it is admitted, lies on the Commonwealth. But it is not necessary that the evidence should be express; it is sufficient, if from the nature and use of the weapon, and the acts and conduct of the prisoner, his intention to kill can be fully, fairly and justly inferred, with so much time used and opportunity for deliberation, as to convince that his purpose was wilful and premeditated. If the doctrine were otherwise secret murders would rarely be punished. This doctrine was held by the courts immediately after the passage of the Act of 1794, and has been announced in numerous decisions down to the present hour. The case of Mulatto Bob was tried before Chief Justice McKean and Justice Smith in 1795. The Chief Justice said, “Although premeditation is necessary under the act, still the intention remains as much as ever the true criterion of crime, and the intention can only be collected from the prisoner’s words and actions: but let it be supposed that a man without uttering a word should strike another on the head with an axe, it must on every principle by which we can judge of human actions be deemed a premeditated violence 7 Sm. Laws, Appendix.

This doctrine was re-stated by Chief Justice McKean in O’Hara’s case, tried in 1796. It was also held by Judge Rush in Dougherty’s case, tried in 1807, and in Smith’s case in 1816: 7 Sm. Laws, Appendix. In the case of Kilpatrick, Judge Ludlow substantially repeated the language of Judge Rush and his charge was approved by this court in 7 Casey 198.

In Cathcart v. Commonwealth, 1 Wright 108, Justice Strong reiterates the presumptions to be drawn from the use of a deadly weapon. He says, “ If the killing were not accidental, then malice and a design to kill were to be presumed from the use of a deadly weapon ; for the law adopts the common and rational belief that a man intends the usual, immediate and natural consequences of his voluntary act.”

It is supposed that the case of Kelly v. The Commonwealth, 1 Grant 484, somewhat modifies the doctrine as to the presumption to be drawn from a voluntary use of a deadly weapon in taking life. Rut this is a great mistake. The learned justice who delivered the opinion in that case made no departure from the ancient doctrine, but he wisely and properly made a most just discrimination, arising out of the very case before him. There some young men who had been drinking entered the house of an old man for the purpose of soliciting the chastity of his daughter. Father and daughter slept together. The father jumped out of bed, and got into a scuffle. The daughter jumped out and seizing a bar of iron struck the one engaged with her father. They left the room, but soon returned, and another scuffle ensued. The daughter, having given her father the bar of iron to defend himself, fled. She returned shortly with assistance and found her father alone on the floor with his skull fractured. The girl was a prostitute and Kelly had visited her before. ■ No one saw the blow struck, but it was evident that the iron bar must have been Wrested from the old man in the scuffle, and the blow inflicted which resulted in his death. A point was put that if the prisoner was strongly under the influence of liquor, and in the excitement and tumult that ensued the iron bar was suddenly caught up and the blow inflicted, the murder was not in the first degree, but in the second. This the court ansAvered in a very indirect and somewhat confused manner,.mingling with it an attempt to commit a rape, and the law arising out of such an attempt. The facts necessarily led Justice Thompson to state the presumption arising from the use of an instrument merely likely to kill, in the absence of evidence of an intention to kill. In such case it would be only murder in the second degree. The key to his meaning is found in this sentence, which immediately follows : “ More (he says) is necessary than a Woav Avith an instrument likely to kill, to constitute murder of the first degree; there must be intention, deliberation and premeditation found; and the instrument is evidence on this point. If this do not appear the use of an instrument in a sudden quarrel, although likely to kill, and a killing ensues, leaves the grade of the crime the second degree.”

When we consider that the instrument about which he was reasoning was an iron bar, an instrument which may kill, but yet is not what is termed a deadly weapon — a weapon intended to kill— such as a gun or a pistol, Ave perceive at once his meaning; that is, that more than the mere bloAv with such an instrument, and death ensuing, or the catastrophe, as he terms it, are necessary to be shoAvn. The intention to kill must also exist, and on this point the instrument, he says, is evidence. It is clear, therefore, it was not in his mind for a moment to question, much less deny, the ancient, well-settled doctrine, that the use of a deadly weapon, such as a pistol or gun, a deadly instrument, such as an axe, when voluntarily directed against a mortal part, is evidence from Avhich a jury may rationally infer an intention to kill, when the conduct of the prisoner and the circumstances under which he fires the gun or gives the fatal blow corroborate and sustain the inference. The language of Judge Strong, in Cathcart v. Taylor, supra, which was decided two years later, and from which Justice Thompson did not dissent, strikes the very point of the old doctrine. “ Human reason,” he says, “will not tolerate the denial that a man who intentionally, not accidentally, fires a musket ball through the body of his wife, and thus inflicts a mortal wound, has a heart fatally bent on mischief and intends to kill.” The doctrine was stated with great care in The Commonwealth v. Drum, 8 P. F. Smith 16, 17. This is the opinion of a single judge, but I may say that before the charge was permitted to be published, it was submitted to Chief Justice Thompson, who, after a most careful examination, gave it his entire concurrence and recommended its publication. Great care was also taken in Drum’s case to prevent the general language in Smith’s case and others, as to the shortness of time in which an intention to kill may be formed, from misleading in cases of doubt; and it was said: “ It is true that such is the swiftness of human thought, no time is so short in which a wicked man may not form a design to kill, and frame the means of executing his purpose; yet this suddenness is opposed to premeditation, and a jury must be well convinced upon the evidence that there was time to deliberate and premeditate. The law regards, and the jury must find, the actual intent; that is to say, the fully formed purpose to kill, with so much time for deliberation and premeditation, as to convince them that this purpose is not the immediate offspring of rashness and impetuous temper, and that the mind has become fully conscious of its own design.” In regard to the evidence this was said, and is directly applicable to the case before us: “ The proof of the intention to kill and of the disposition of mind constituting murder in the first degree, under the Act of Assembly, lies on the Commonwealth. But this proof need not be express or positive. ^It may be inferred from the circumstances. If, from all the facts attending the killing, the jury can reasonably and satisfactorily infer the intention to kill and the malice of heart with which it was done, they will be warranted in so doing. He who uses upon the body of another, at some vital part, with a manifest intention to use it upon him, a deadly weapon, as an axe,' a gun, a knife or a pistol, must, in the absence of qualifying facts, be presumed to know that his blow is likely to kill, and, knowing this, must. be presumed to intend the death which is the probable and ordinary consequence of such an act.” This language was used by brother Sterrett, when in the Oyer and Terminer of Allegheny county, and affirmed by this court in Lynch v. The Commonwealth, 27 P. F. Smith 207. The doctrine we have been discussing was again affirmed in McCue v. Commonwealth, 28 P. F. Smith 185.

These principles, applied to the case before us, leave no doubt that the ingredients of murder in the first degree existed in the evidence. A man riding with another, under the cover of darkness, and without a quarrel, w'ho deliberately holds a pistol, against his side, and without warning fires a bullet through his lungs and heart, can on no principle of right reason or good sense be said not to intend, deliberately and premeditatedly, to kill.

None of the assignments of error are supported, and the sentence of the court is therefore affirmed, and the record is ordered to be remitted for the purpose of carrying the sentence into execution.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Waddell’s Appeal.
    1. The Act of 13th of June 1874-, providing “ for a right of way across or under the rivers or other streams of this Commonwealth, for the better and more convenient mining of anthracite coal,” confers authority to take private property for private use and is unconstitutional and void.
    2. The right of the legislature to authorize the construction of private roads over the land of another is predicated upon the fact that these roads shall be made to connect with a public highway or place of necessary public resort, or with a private road leading to a highway, and that the public shall have an implied right or license to use them.
    3. The right of the legislature to authorize the construction of lateral railways over the land of another is predicated upon the fact that such railways shall be made to connect with some public improvements, railroads, or highways of some description, as enumerated in the Act of 1832 and its supplements.
    March 9th 1877.
    . Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Appeal from the Court of Common Pleas of Luzerne county: In Equity. Of January Term 1876, No. 186.
    The case was this: The Act of 13th June 1874, Pamph. L. 286, Purd. Dig. 1967, pi. 1, provides, inter alia, as follows : “That any person 0or persons, owners or lessees of anthracite coal in or underlying lands on both sides of any of the rivers or other streams of this Commonwealth, may have the right of way across said rivers or other streams, or any of them, from their lands on one side to those on the other side, either upon the surface or under the same, for the purpose of mining and removing said coal, by such route as shall be deemed or found to be the nearest, most practicable and convenient for making the said way between the said lands, with the right to follow, mine, remove and dispose of any vein of anthracite coal or other material within the bounds of said way, upon paying the owner or owners of the land passed over or under for the same as hereinafter provided. .
    “ The said right of way may be made by drift, slope, tunnel, or other necessary or proper means, and shall not exceed twelve feet in width.
    “ That whenever any of the parties before named desire to make and have a right of way across any river or other stream under the surface of the same, through lands not belonging to them, for the purpose aforesaid, such party may present a petition to the Court of Common Pleas of the proper county, or any law judge thereof in vacation, setting forth that he or they are the owhers or lessees of anthracite coal lying and being under lands on both sides of a river, or other stream, which he or they desire to connect, for the purpose of mining the samé, by away under the said river, or other stream, and that the intervening lands, over which such river, or other stream flows, do not belong to them, but to other parties, and that it is his or their desire to be allowed to construct and have a right of way under such river or other stream, and praying the court to permit such party to have a right of way as aforesaid, which petition shall set forth a description of the lands on both sides of the said river or other stream which the party petitioning desires to connect and communicate with by such way, and the place of beginning and general direction, &c.
    “ In pursuance of the provisions of this act, Thomas Waddell and Joseph P. Sehooley filed their petition in the Court of Common Pleas of Luzerne county, setting forth that they were the lessees and owners of certain lands situate on either side of the Susquehanna river, about opposite each other, and therein fully described, the one being upon the western side of the river, unimproved as coal land, and incapable of such improvement by reason of its being low land and liable to overflow; and the other upon the easterly side of the river, improved, with a shaft, &c., and connecting with the North Branch Canal and the Lehigh Valley Railroad Company, both of which are upon the said -tract and directly connected, with the mining operations on the tract itself.
    "That the petitioners were desirous of connecting the said tract of land on the west side of the river ‘ with the North Branch Canal, a public highway constructed by the Commonwealth of Pennsylvania, for the use of the citizens thereof, for the purpose of shipment and conveyance of and to market of the anthracite coal under said lands, and also with the Lehigh Valley Railroad, a public highway constructed for the transportation of coal and for a like purpose. ’ ’ ’
    The petition therefore prayed:—
    “ That the court might permit the petitioners to have a right of way under the said Susquehanna river, by such route as should be deemed or found to be the nearest, most practicable and convenient for making the said way, with the right to follow, mine, remove and dispose of any vein of anthracite coal or other material within the bounds of said way, upon paying the owner or owners thereof, as by the Act of Assembly is in such case provided.”

      On the 11th of July 1874 the Pennsylvania Coal Company filed a bill in equity, which set forth that they owned a large body of coal land adjacent to the Susquehanna river, and two tracts of land known as “river warrantsthat Waddell and Schooley claimed that they were the lessees of lots and mines on the east and west side of said river, and that assuming to proceed under the Act of 1874, they had filed a petition asking for the right of way through the land of complainants under said river, and that they were about to have viewers appointed to go upon complainant’s lands and to make a slope or passage through complainant’s lands, and to mine, remove and dispose of complainant’s coal in said slope; that the extensive and valuable mines of complainant, now opened and worked, will be put in connection with such proposed tunnel or slope, and will thus become liable to great and irreparable injury; that the Act of Assembly aforesaid is unconstitutional and void, in that it proposes to authorize the taking of private property for private use. The bill then prayed that the defendants should be restrained from taking any further proceedings under their petition, and the petition dismissed.
    A special injunction issued as prayed for. A motion ivas subsequently made to dissolve this injunction, and affidavits on either side were filed as to the extent of the injury that would ensue from the proposed slope or tunnel to the property of the coal company.
    The opinion of the court was delivered by Harding, P. J., extended portions of which are herewith given, in view of the learned and exhaustive discussion of road law contained therein.
    “ The legislation as to private roads in this Commonwealth had an early beginning. The Act of February 20th 1735 was the first; the Act of April 6th 1802, Pamph. L. 178, in many respects a reenactment of the former, followed; and again, the General Road Law of June 13th 1836, Pamph. L. 556, in which there was almost an entire incorporation of the provisions of the previous acts, took its place upon the statute book. Thus far, however, the authorizing of private roads by the legislature extended only to the surface of lands ; but the Act of April 16th 1838, sect. 19, Pamph. L. 642, lengthened the reach; it authorized the construction of private roads under the surface, to connect with coal mines. This was afterwards supplemented by the Act of April 13th 1868, Pamph. L. 92, conferring authority to establish private roads to coal mines either under or over the surface of intervening lands. But it was held in Neeld’s Road, 1 Barr 352, that the Act of April 16th 1838 was crude and imperfect, and that it could only be carried into effect by adding it to our road system, and treating it as if it was a section in the General Road Law. Since then it has been thus treated uniformly.
    With reference to lateral railroads, the Act of May 5th 1832, Pamph. L. 501, was the first. It authorized the owner or owners of certain property designated in the act, to construct a lateral railroad over the lands of others intervening, for a distance of three miles, between such property and any railroad, canal or slackwater navigation. A supplement to it was enacted March 28th 1840, Pamph. L. 196, which extended the provisions of the original act to subterranean railways, and otherwise enlarged its scope in many respects. Subsequently it was further extended to the construction of canals, by the 13th section of the Act of May 5th 1841, Pamph. L. 342. Then followed the 10th section of the Act of April 24th 1843, Pamph. L. 361, relating to the use of landings by lateral railroads at the junction of railroads and canals, and to the assessment and payment of compensation; and, still later, the 3d section of the Act of January 6th 1848, extending more generally the provisions of the 10th section of the Act last referred to, followed also, both thus becoming part and parcel of our lateral railroad system.
    “ The Act of June 13th 1874, Pamph. L. 286, now under consideration, came next in order. We scarcely need to cite authorities in support of the doctrine, that where there are several statutes relating to the same subject-matter, they are to be construed together as interpreting and 'enforcing each other. We have already seen that the 19th 'section of the Act of April 16th 1838, authorizing the underground construction of private roads to coal mines, was held to be a part of the general private road system, as established by the Act of June 13th 1836; so, in Keeling v. Griffin, 5 P. F. Smith 305, it was likewise held that the 2d section of the Act of March 28th 1840, supplementary to the general act of May 5th 1832, but extending its provisions to subterranean railways, was in pari materia with the original act, and should be so construed. Adopting this view of construction, the provisions of. the Act of June 13th 1874 must be construed accordingly ; and, hence, •it can make no difference whether we regard the act as a part of our private road system, or as a part of our lateral railroad system.
    “ Considering it, first, as a part of the private road system, can its constitutionality be sustained ? The right of the legislature to establish private roads over the land of one man for the benefit of another, for the purpose of access to highways or places of necessary public resort, or even to private ways leading to highways, has never been seriously doubted in Pennsylvania; on the contrary, that right has been distinctly recognised and affirmed; it has, too, been exercised almost continuously ever since the settlement of the province. It is plain, therefore, that the exclusive consideration of the rights of individuals to whom legislative authority to construct private ways has been accorded, does not form the true ground on which the constitutional^ of these acts has been predicated. On the contrary, it is the coflnection of these private ways with public higlrways, or with places of necessary public resort, together with the implied right or license of the public to use them, at least in going to and from the premises of the person laying them out, quite as much, if not more, as the consideration of purely individual rights, that have won for these acts judicial recognition of constitutionality. The exercise of legislative power for the accomplishment of a purpose in which the general public has an interest, has, indeed, never been gravely questioned anywhere; it will probably never be denied.
    “ The private road law of Pennsylvania is not in conflict with the principles to which we have adverted. It does not, strictly speaking, authorize the taking of private property for private use, even after full compensation. The roads laid out under its provisions are quasi public roads.
    " This Act of 1874 is certainly remarkable legislation. It is general in one sense, and yet special in another; general, because it applies to all the rivers and other streams of the Commonwealth; special, not in the sense of prohibited legislation, perhaps, but special, because it applies only to the mining of anthracite coal. Iron ore, bituminous coal, limestone, fire clay, and indeed all other minerals underlying these same rivers and streams, are left outside of its compass altogether. It is general, also, because the apparent reach of its provisions is everywhere within the Commonwealth, but special, nevertheless, because their actual reach is limited necessarily to the few counties where anthracite coal exists.
    “ In Luzerne county, and these few counties, there are many ownerships and leaseholds of anthracite coal lying under, and on both sides of, ‘rivers’ and ‘other streams.’ These ‘rivers’ it must not be forgotten, are not in all cases ‘public navigable rivers,’ under which, by the Act of April 11th 1848, Pamph. L. 533, entitled ‘ An Act to encourage the further development of the mineral resources of the Commonwealth of Pennsylvania,’ the right to dig and mine for iron, coal, limestone, sand and gravel, fire clay and other minerals, was authorized to be granted; nor are these ‘ other streams,’ in a single instance, perhaps, either ‘public’ or ‘navigable.’ Furthermore, there are extensive collieries already in operation, and located quite near to these ‘ rivers’ and ‘ other streams,’ and quite near also to the ownerships and leaseholds referred to. Now, under this act, an operator of one of these collieries, no matter whether an individual or corporation, having acquired the ownership, or become the lessee of the anthracite coal under a lot lying on the other side of one of these,‘rivers’ or ‘streams,’ but separated from the colliery by the intervening lot of another over which such river or stream flows, may, ‘for the better and more convenient mining’ of his own ‘anthracite coal,’ take the private property of the owner of such intermediate lot, and appropriate it for a private way to his own colliery, although such private way does not in any manner connect with ‘ a public highway or place of necessary public resort,’ or with ‘ a private way leading to a highway.’ To use the language of a very clear and able writer on this subject (see Amer. Law Review, vol. 6, p. 197), this is legislative authority for a private way which ‘may have both termini in private lands, and be laid out solely to connect A.’s white-acre lot with A.’s black-acre lot, separated by the land of B.’ The constitutionality of such legislation never yet has received judicial sanction in Pennsylvania, nor, indeed, in any of our sister states.
    “ But considering, second, the act as a part of our lateral railroad system, can its constitutionality be sustained ? As we have seen, the Act of May 5th 1832, entitled ‘An Act regulating lateral railroads,’ was the first relating to this subject. It provides that ‘ if any owner or owners of land, mills, quarries, coal mines, lime kilns, or other real estate, in the vicinity of any railroad, canal or slackwater navigation, made or to be made by any company or by the state of Pennsylvania, and not more than three miles distant therefrom, shall desire to make a railroad thereto,-over any intervening lands,’ he or they may do so, upon compliance with other provisions of the act relating to location and to the assessment of damages. As we have seen, also, this act was from time to time supplemented, and its scope thus greatly enlarged; but none of the supplements, no, not one, ever authorized the construction of lateral railways, except they connected with public improvements, railroads or highways of some description, as enumerated in the original act or in the supplements, respectively. Keeling’s case, 6 P. F. Smith 305, involved like this, an underground right of way, and it was held, therein, that there is no authority for the connection of lateral railways, excepting with public improvements, railroads or highways of some description, as enumerated in the Act of 1832, and its supplements.
    “ Construing and treating the Act of June 13th 1874, Pamph.'L. 286, as a part of our lateral railroad system, still the difficulties are no less than we have shown them to be, if the act is considered as a part of our private road system. It makes no provision for the connection of the right of way it assumes to authorize, with any ‘ railroad, canal or slackwater navigation;’ it is barren of even a reference to them, or to any public improvement whatsoever. The single constitutional requirement of compensation, it does, however, profess to meet. But how ? ‘ It shall be the duty of the viewers and jury to take into consideration in assessing the damages, the advantages and disadvantages which may result to the owner or owners of the lands passed through by the said way.’ What advantages, pray, could fever result to one of these owners ? None of them would have the right to use the ‘way,’ except by contract; besides, if it connected with no public highway, what possible use could it be to them under any circumstances ? And, yet, upon a mistaken comparison of the ‘ advantages and disadvantages,’ the ‘ viewers and jury’ might impose on such ‘ owner or owners’ a portion of the cost of constructing such ‘way,’ by lessening the allowance for compensation.
    “ The act under consideration, besides authorizing a right of way over or under intervening lands, gives also the specific ‘ right to follow, mine, remove, and dispose of any vein of anthracite coal or other minerals, within the bounds of said way, upon paying the owner or owners of the lands passed over or under for the same,’ as thereinafter provided. Now, one of the recognised and generally accepted meanings of the words, ‘dispose of,’ is to sell. Webster has it thus : ‘ To dispose of; to part with; to sell; to alienate; as, the man has disposed of his house, and removed.’ In addition, then, to the fact that the doctrine held in Lyon v. Grormley, 3 P. F. Smith 263, is at open war with the provision just quoted, independently, indeed, of it altogether, this act, not by a strained or perverted meaning of its terms, but by a construction in exact accord with the commonly received meaning of language, proposes to legalize the taking of the private property of one man, so far as it lies ‘ within the bounds of said way,’ and giving it to another as his private property, upon payment by the latter of such compensation as may be fixed by certain other men.
    “ Again, while the private property of one man may be lawfully charged with a servitude for another, still, the act in question assumes to do much more than this; in terms it proposes to take from the former that part of his estate itself, consisting of coal ‘ within the bounds of said way,’ and give it to the latter for a price to be fixed by five other men, though in case of an appeal, by twelve other men. Now, nothing is more common in the development of anthracite coal, than the recognition of an estate in the surface of land, another in the first underlying vein of coal, another in the second, another in the third, and so on in respect of all the underlying veins. Concerning any possible proposed legislative disturbance of estates of this character, Judge Sharsw-ood remarks in Palairet’s Appeal, 17 P. F. Smith 479; ‘ Are they tobe subject to the legislative fiat ? Can an Act of Assembly compel the owner of the minerals to surrender his property to the owner of the soil at the valuation of a jury ? Can a law say that twelve men shall determine at what price I shall sell my property to another ?’
    “ But again: It is most persistently and vigorously contended by the counsel for the defendants in this bill, that, as applied to the present case, the Act of June 13th 1874, is free from all taint or suspicion of unconstitutionality. The proposition, as we understand it, is, that a former Act of Assembly of April 11th 1848, Pamph. L. 533,- already referred to, authorized a grant of the ‘ right to dig and mine-for iron, coal, limestone, sand and gravel, fire clay and other minerals,’ under the ‘ public navigable rivers’ of the Commonwealth ; that so far as the anthracite coal and other substances named in the act, underlie the Susquehanna river, between the termini of the £ way’ sought to be obtained, the plaintiffs have the right ‘ to dig and mine’ them ; that it is not, however, an exclusive right, not an absolute estate in land, but an incorporeal hereditament; that the legislature of 1874, in the exercise of its undoubted functions, authorized the construction of a £ way’ through this anthracite coal; that the defendants were acting in pursuance of this authority at the time they were enjoined by this court; and that, therefore, the injunction heretofore issued, ought now be dissolved.
    " Had the Act of June 13th 1874 only authorized the construction of a way across or under the £ public navigable rivers’ of the Commonwealth, for the ' better and more convenient mining of anthracite coal,’ as granted under the provisions of the Act of April 11th 1848, supra, there might be force in the argument. It will be full time, however, to consider that argument when such an Act of Assembly is brought to our notice. Certainly, this one is not of that character; it is general in its scope, applying as well to anthracite coal underlying the rivers and other streams of the Commonwealth which are not' navigable, as to that underlying the £ public navigable rivers,’ applying as well to grants of anthracite coal in fee, as to alleged mining rights under the Act of April 11th 1848. It would be anomalous, indeed, to sustain the constitutionality of an Act of Assembly as applied to A.’s case, and yet overturn it as applied to B.’s.
    “ The Act of June 13th' 1874 we hold to be unconstitutional and void. The motion to dissolve the injunction is, therefore, overruled.”
    The defendants, Waddell and Schooley, took this appeal and alleged that the court erred in continuing the special injunction granted in this case.

      E. P. & J. V. Darling, Henry W. Palmer and Steuben Jenldns, for appellants.
    1. That the legislature may authorize a private way over or through the lands of another upon compensation being provided for such occupation, for a general or public purpose, Avhich purpose need not include the public right to travel upon it: Concession of Wm. Penn of July 11th 1681; Act of 1700; Shippen, C. J., in McClenachan v. Curwen, 6 Binn. 509; Palairet’s Appeal, 17 P. F. Smith 479; Act of Assembly, February 20th 1735-6, which was re-enacted in 1802 ; Act of April 6th 1802, 3 Sm. Laws 512; General Law of June 13th 1836, Pamph. L. 553 ; sect. 18 of Act of 1802 and sect. 13 of Act of 1836, supra ; sect. 17 of Act of 1836, supra; Act of June 13th 1836, sect. 11; Kyle’s Penn Valley Road, 4 Yeates 514; Schuylkill Falls Road, 2 Binn. 250; Spear’s Road, 4 Id. 174; Miller’s Road, 9 S. & R. 35; Bart Township Road, 13 Id. 83; Bachman’s Road, 1 Watts 400; Holden v. Cole, 1 Barr 303; Act of April 16th 1838, sect. 19, Pamph. L. 642; Neeld’s Road, 1 Barr 353; Pocopson Road, 4 Harris 15 ; Southampton Road, 9 Id. 356; Clowe’s Road, 7 Casey 12; Fleming v. Ramsey, 10 Wright 252; Keeling’s Road, 9 P. F. Smith 358; West Pikeland Road, 13 Id. 471.
    The private road law cannot be supported on the ground, of the public’s right to travel on private roads, for the above cases show that no such right exists. Assuming, however, that these acts are in pari materia with the Lateral Railroad Laws, have the latter no other support than that of the public user ? Harvey v. Thomas, 10 Watts 63; Harvey v. Lloyd, 3 Barr 331; Shoenberger v. Mulhollan, 8 Id. 134; Yost’s Report, 5 Harris 524; Plank Road Co. v. Thomas, 8 Id. 91; Stuber’s Road, 4 Casey 199; Krier’s Private Road, 23 P. F. Smith 109 ; Act April 21st 1846, Pamph. L. 416 ; Hays v. Risher, 8 Casey 169 ; Brown v. Peterson, 4 Wright 373 ; Boyd v. Negley, Id. 377.
    The case of Brown v. Peterson, 7 Wright 495, is exactly in point. As to what is a public use: Hays v. Risher, 8 Casey 169; Potter’s Dwarris on Statutes 376-7; Cooley on Const. Limit. 533; Lance’s Appeal, 5 P. F. Smith 16 ; Lyon v. Gormley, 3 Id. 261.
    The case of Keeling v. Griffin, 6 P. F. Smith 305, is not inconsistent. No question as to the power of the legislature to authorize such a railroad was before the court. The decision was correct. The opinion is a collection of obiter dicta.

    2. The fact that the terminus of a private road is- upon the land of the petitioner, upon which land are located the canal and railroad with which connection is desired to be made, is not material; the only essential point under the Act of 1836, and its supplements, being the outlet to a public road or highway or private way leading to a public road or highway, or to some place of public necessary resort: Harvey v. Thomas, 10 Watts 63; Brown v. Peterson, 7 Wright 495; Spear’s Road, 4 Binn. 174; Bart Township Road, 13 S. & R. 83.
    By the public use is not meant that the whole public or airy considerable part shall have the right: Talbot v. Hudson, 16 Gray 417 ; Haverhill Bridge v. Essex Co., 103 Id. 120; Lyon v. Gormley, 3 P. F. Smith 263.
    3. The fee to the soil under all navigable rivers within the limits of the state of Pennsylvania, including the Susquehanna, under Avhich the present road is designed to go, being in the Commonwealth, subject only to certain licenses under the Act of April 11th 1848, Pamph. L. 533, it is competent for the legislature to authorize private ways through the same.
    That the beds of navigable rivers in Pennsylvania belong to the Commonwealth in fee will be admitted. It is equally clear that the Commonwealth has not divested herself of such estate by the Act of April 11th 1848, Pamph. L. 533. The intention of the original act was re-expressed by the Act of March 24th 1849, Pamph. L. 225, declaring its meaning, which act would be constitutional even if the plaintiff below had purchased prior to its passage: O’Conner v. Warner, 4 W. & S. 223; and the point has been finally decided on the original act: Brandt v. McKeever, 6 Harris 70.
    The license granted to the plaintiffs below is a right of common only, and not being exclusive may be granted to others by the same terms : Lord Mountjoy’s case, 1 Co. Litt. 536, 4 Leonard 147; Gloninger v. Franklin Coal Co., 5 P. F. Smith 9; Carnahan v. Brown, 10 Id. 26; Tinicum Fishing Co. v. Carter, 11 Id. 36-9; Union Petroleum Co. v. Bliven Petroleum Co., 22 Id. 173.
    That a portion of an Act of Assembly may be unconstitutional does not render the whole act unconstitutional: Breitenbach v. Bush, 8 Wright 313; Clark v. Martin, 13 Id. 299; Chicago, &c., Railroad Co. v. Smith, 62 Ill. 268 ; Mott v. Penna. Railroad Co., 6 Casey 9; Act of May 10th 1857 ; Allentown v. Henry, 23 P. F. Smith 404.

      A. T. McClintock and Henry M. Hoyt, for appellees.
    1. The of 13th of June 1874, Pamph. L. 286, is unconstitutional, because the “taking of private property” by the terms of the act is based neither upon a “public use” nor “necessity:” Const., art. 1, sects. 9, 10, 11; Pittsburgh v. Scott, 1 Barr 309; Lambertson v. Hogan, 2 Barr 24; 2 Kent Com. 239, 240; Wilkinson v. Leland, 2 Peters 657; Taylor v. Porter, 4 Hill 140. Even if it did not contravene any constitutional provision it is a violation of social compact: Goshen v. Stonington, 4 Conn. 225; Welch v. Wardsworth, 30 Id. 155; City of Bridgeport v. Housatonic Railroad Co., 15 Id. 498; Bradley v. N. Y. & N. H. Railroad Co., 21 Id. 305; Cooley’s Const. Lim. 175. What is a public use is a question for the courts and not for the legislature. The constitution and not the laws is the suprema lex; the constitution, as expounded by the courts and not by the legislature: Palairet’s Appeal, 17 P. F. Smith 488; Pittsburgh v. Scott, 1 Barr 309; Cooley’s Const. Lim. 528-532; Talbot v. Hudson, 16 Gray 417; Olmstead v. Camp, 33 Conn. 532; Bankhead v. Brown, 25 Iowa 540 : Concord Railroad Co. v. Greeley, 17 N. H. 47; Coster v. Tidewater Co., 3 C. E. Green 54; Kramer v. C. & Pitts. Railroad Co., 5 Ohio N. S. 146.
    2. The act cannot be sustained as part of the private road system. Private roads can only be sustained, because “ they are branches of public roads:” Palairet’s Appeal, 17 P. F. Smith 492 ; Hays v. Risher, 8 Casey 169 ; Brown v. Corey, 7 Wright 495; Keeling v. Griffin, 6 P. F. Smith 307; Perrine v. Farr, 2 Zab. 362; Ferris v. Bramble, 5 Ohio St. 109; Hickman’s Case, 4 Harrington 580; Taylor v. Porter, 4 Hill 140.
    In Pennsylvania, the “private road” must be “necessary,” “ must lead to a highway,” or to a “ private way leading to a highway:” Br. Purd. 1274, pl. 14, 15. The “way” provided for in Act of 1874 is based upon neither requisite.

      3. The act cannot be sustained as part of the “ lateral railroad system.” The constitutionality of this system was finally put on the true grounds by Justice Woodward, in. Hays v. Risher, 8 Casey 169, abandoning the ground taken in Harvey v. Thomas, 10 Watts 63, and Harvey v. Lloyd, 3 Barr 331. The Act of 1874 is barren of the requirements of the lateral railroad Acts of 1832 and supplements.
    4. The act is not in pari materia with the Acts of 1836 and supplements of 1838 and 1868 (Br. Purd. 1275, pl. 21, 22, 25). This is distinctly decided in Keeling’s Road, 9 P. F. Smith 361.
    5. The act is unconstitutional in that it permits the petitioners to take and dispose of the coal in the “way:" Palairet’s Appeal, supra; Lyon v. Gormley, 3 P. F. Smith 263.
    The warrant and patent from the Commonwealth, under Act lith April 1848, and 24th March 1849, confer on the appellees a title to the coal under the river and more than a mere license to dig it: Brown v. Corey & Peterson, 7 Wright 503; Caldwell v. Fulton, 7 Casey 475 (Brandt v. McKeever, 6 Harris 70, does not touch the point). “ Coal and minerals in place are land.”
    If the end to be accomplished in sect. 1, Act of 1874, is prohibited by the constitution, all the rest of the act must fall with it, being simply means to that end: Commonwealth v. Clapp, 5 Gray 100; Commonwealth v. Maxwell, 3 Casey 456; Warren v. Charlestown, 2 Gray 99; People v. Bull, 46 N. Y. 68; State v. Commissioners, 5 Ohio N. S. 507; Cooley’s Const. Lim. 187.
    As the Act of 1874 is silent as to any provisions for “use by the public” “connection with other highways” or “necessity” it cannot be helped out by the petition filed. The petition cannot operate to render the act valid by retroaction. The act stands or falls by the construction of the terms on the face of it. The way herein provided for is a mere private way and cannot be so created: Palairet’s Appeal, supra ; Taylor v. Porter, 4 Hill 140 ; Baker v. Braman, 6 Id. 47 ; Powers v. Bergen, 2 Seld. 368; Osborn v. Hart, 24 Wis. 89 ; Sadler v. Langham, 34 Ala. 311; Dickey v. Tennison, 27 Mo. 373; Bankhead v. Brown, 25 Iowa 540 — with only one case in the United States adverse, Olmstead v. Camp, 33 Conn. 532, and this case is a reductio ad absurdam.

    March 19th 1877,
   The judgment of the Supreme Court was entered,

Per Curiam.

The decree of the court below, continuing the special injunction, is affirmed, with costs to be paid by the appellants, and the appeal is dismissed.


author: Mr. Justice Woodward

text:
    Wall’s Appeal.
    1. "Where a judgment is held as security by the guarantor of another judgment, credits on account of the judgment of the principal debtor are credits pro tanto upon the judgment of the guarantor.
    2. S. gave to R. three judgment notes; P. guarantied these notes, and to indemnify P., S. gave to him a judgment note for the aggregate amount of the notes given to R. S. also gave to "W. another judgment note. All these notes were for a valuable consideration and were entered upon record on the same day. Two of the notes to R. were paid by S., who afterwards became insolvent, and upon a sale of his real estate the court below held that the judgment of P. was entitled to participate in the distribution of the proceeds, and paid the remaining judgment of R. in full. Held, that this was erroneous, and that the distribution should have been made pro rata between the judgments of R. and "W.
    March 12th 1877.
    Before A&new, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward, and Sterrett, JJ.
    Appeal from the Court of Common Pleas of Wyoming county: Of January Term, 1875, No. 107.
    This appeal was from the decree of the court confirming the report of the auditor appointed to distribute the proceeds of the sheriff’s sale of the real estate of Cyrus Stark.
    On the 29th of March 1872, Stark bought of Reed the stock and fixtures of a hotel and gave him therefor three judgment notes, amounting to $4250. Piatt guarantied the payment of these notes, and to indemnify himself, took from Stark a judgment note for $4250, and at the same time agreed in writing that when the Stark notes to Reed were paid, the judgment to Piatt should be cancelled upon the payment of the costs by Stark.
    Upon the same day that Stark gave the notes to Reed he gave to Wall a judgment note for.$3600, to secure the payment of the rent of the hotel for three years. All these judgments were entered of record upon the same day. Subsequently the real estate of Stark was sold under a prior judgment and the balance of the proceeds, $1456.16, was the fund for distribution in this case. All the other real and personal estate of Stark had been previously sold and he was insolvent. Out of the proceeds of the sale of Stark’s personal property, two of the notes to Reed had been paid, leaving a third of $945.97, which had been assigned to Bunnell & Co., and the Wall judgment had been reduced by payments to $2111.30.
    Before the auditor appointed to distribute the fund it was claimed on behalf of the Piatt judgment that it was entitled to a pro rata distribution upon the whole amount of the judgment, $4250, and the auditor held that said judgment was a valid subsisting lien for its whole amount, to be released only by the payment by Stark of the whole of the three notes guarantied by Piatt, but as the Piatt judgment was given and held only for the purpose of indemnity, and as the pro rata dividend to it; with the dividend applicable to the judgment assigned to Bunnell & Co., would, taken together, more than satisfy the unpaid balance on the latter judgment and the costs on the Piatt judgment, the auditor, therefore, distributed the fund first, to the full satisfaction of the Bunnell & Co. judgment, second, to the payment of the costs on the Piatt judgment, and the balance to the judgment of Wall. *
    To this report-Wall excepted, on the ground that no part of the fund should have been awarded to the Piatt judgment, and if any was awarded it should have only been a pro rata share upon the $945.97, .due on the notes guarantied by Piatt.
    The court overruled the exceptions and confirmed the report, and from this decree this appeal was taken.

      F. C. & R. P. Ross, for appellant.
    Piatt’s judgment was to indemnify him on his guarantee, and not having been damnified thereby what right has he to any portion of said fund against another judgment entered the same day ? Admitting Stark’s insolvency Piatt is still only liable for the unpaid balance, and more than a pro rata share thereof would be unjust to other creditors. Iiis liability was reduced by the payments by Stark and a pro rata reduction should be made in the amount awarded him: Smith’s Appeal, 24 P. F. Smith 191.

      John A. Sittser and James W. Piatt, for appellee.
    A judgment given to indemnify a surety is entitled to be paid out of the proceeds of a sale of the lands of the principal, though, the surety has not been damnified: Harrisburg Bank v. Douglass, 4 Watts 95 ; Miller v. Howry, 3 P. & W. 374.
    The auditor could not inquire into the validity of the judgment: Dyott’s Estate 2 W. & S. 557; Lewis v. Rogers, 4 Harris 18; Leeds v. Bender, 6 W. & S. 315.
    May 7th 1877.
   Mr. Justice Woodward

delivered the opinion of the court,

Mr. Piatt’s claim to control the fund for distribution by the auditor rested exclusively on the lien of his judgment against Stark. His rights stood on no higher ground than those of Wall and of Bunnell & Co.j the assignees of Reed, the other judgment creditors. Reed’s judgments were founded on notes amounting to $4250, which Mr. Piatt had guarantied. To secure him for this guaranty Stark executed to him a judgment note for the same amount. The cotemporaneous agreement explanatory of the transaction which Mr. Piatt signed, contained this provision: “If said Stark pays said notes, then the judgment of $4250 is to be cancelled by said Stark paying the costs.” Judgments were entered on the three notes to Reed, on the note to Piatt, and on a note to Wall for $360(5, on the 29th of March 1872. When the distribution was made, the amount due to Reed’s assignees was $945.97, and the amount due to Wall was $2111.30. The balance of the fund after satisfying prior liens, was $1455.16. Of this balance the auditor appropriated $945.97 to the payment of the sum remaining due to Bunnell & Oo, assignees of Reed; $4.25 to the costs of the Piatt judgment; and $505.94 to the judgment of Wall.

By express stipulation, the note to Piatt was given to protect him against the identical debt represented by the three notes which Stark had executed in favor of Reed. Confessedly, payment in full of the principal debt would have worked the satisfaction of the cumulative security. Credits on account of the one, therefore, were necessarily credits pro tanto on account of the other. There was due to Bunnell & Co., as assignees of Reed, the sum of $945.97 at the date of the sheriff’s sale. For that sum only was Mr. Piatt then liable as guarantor. If the fund had been such as to permit the legitimate appropriation of the balance due them to Bunnell & Co., the whole original indebtedness would have been satisfied, with the effect of extinguishing at once the ancillary and the principal judgments. The parties stood, then, as if the $1456.16 for distribution had been claimed by one creditor under a judgment for $945.97, and by another creditor under a judgment for $2111.30, with liens of a common and equal date. And so standing, their rights obviously consisted in a pro rata appropriation of the fund.

While the views of the auditor were not fully developed, his 'decision was apparently controlled by the principle settled in a class of cases extending from Morris v. Olwine, 10 Harris 441, to Bair and Shenk’s Appeal, 1 Norris 113. In each one of these cases, however, the question decided involved the rights of creditors under a voluntary assignment; and in each case it was held that the assignment created a right of property and not a lien. Thus it was said in Miller’s Appeal, 11 Casey 481, that “ a creditor is entitled to a dividend under an assignment, not, merely as a creditor, but as an equitable owner of the assigned estate; and the extent of the ownership is fixed by the amormt of the claim when the assignment was made.” It is manifest that no element is embraced in the present case to warrant the application of the principle of Morris v. Olwine and Miller’s Appeal in its determination. On the contrary, it is within the rule of Smith’s Appeal, 24 P. F. Smith 191. There one Herr had sold to Smith four bonds of Grerth and guarantied their payment. Herr made an assignment for the benefit of his creditors. Smith received the amount of one bond by a sale of Grerth’s property. It was held that he was entitled to a dividend only on the three bonds unpaid. “The satisfaction of the judgment out of the proceeds of the sheriff’s sale,” Mr. Justicé Williams said, in entering the judgment of this court, “ extinguished the obligor’s liability for the whole debt for which it was obtained; and it follows as a necessary corollary that the assignor’s liability on the contract of guaranty was also extinguished.’] The appellee here relies on his simple lien, and his case is not so strong as was that of the claimant in Smith’s Appeal, who asserted the rjghts of an equitable owner under a voluntary assignment. It is indifferent that Mr. Piatt’s demand was made under a single judgment. He held it to indemnify himself against liability on his guaranty of the three judgments Stark had confessed to Reed, and of these two had been fully paid. In adjusting the equities of parties litigant, the law has regard to substance and not to form.

The decree of the Court of Common Pleas is reversed at the costs of the appellee; and thereupon it is ordered and adjudged that the sum of $1456.16, being the amount of the fund in controversy, be appropriated fro rata to the judgment of Thomas B. Wall, No. 335, April Term 1872, on which the sum of $2111.30 remains unpaid; to the costs, amounting to $4.25, of the judgment of William M. Piatt, No. 337 April Term 1872; and to the judgment of O. J. Reed, assigned to E. C. Bunnell & Co., No. 340, April Term 1872, on which the sum of $945.97 remains unpaid.


author: Mr. Justice Sterrett

text:
    Wyoming County versus Bardwell.
    1. Where orders were made upon the county treasurer by the military board under the provisions of the Militia Act of 7th of April 1870, and its supplements, the county is not liable therefor, and the remedy of the holder is against the county treasurer to compel payment.
    2. A demurrer to a declaration arises on its face and is never founded on matter collateral to the pleading which it opposes, and therefore it was irregular to assign the repeal of a law as causo of demurrer ; if it furnished any ground for defence it should have been brought forward by way of a plea.
    3. On demurrer the court will consider the whole record and give judgment for the party who appears to be entitled thereto, and although the demurrer be bad in form and substance it does not follow that the plaintiff is entitled to judgment unless his declaration discloses a good cause of action.
    March 12th 1877.
    Before Agnew, C. J., Sharswood, Merour, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas of Wyoming county: Of July Term 1876, No. 31.
    This was an amicable action of trespass on the case brought by H. W. Bardwell against the county of Wyoming, the action being founded, as appeared by a statement filed by the plaintiff, on certain orders drawn by the “ Military Board of Wyoming county,” on the treasurer of said county. There were seventy of these orders, all of which were dated in 1871 and the aggregate of which amounted to $444. In his statement the plaintiff averred “ that he had made demand on the county commissioners and county treasurer for the payment of each of said orders and that the same had been refused.”
    To this statement the defendant demurred, assigning as cause therefor, “ that the treasurer of Wyoming county had not nor is he bound to have any funds out of which to pay said orders, the Act providing the ways and means for payment having been repealed; therefore the said defendant is not bound by law to provide for the payment of the said orders nor any part of them.”
    The act under which the orders were drawn is the Act of 7th April 1870, Pamph. L. 62 (the essential portions of which, as applicable to this case, being found in the opinion, of this court), and the alleged repealing clause, the 9th section of the Act of 15th April 1873, Pamph. L. 74."
    Plaintiff joined in the demurrer, and the court, Ingham, P. J., entered judgment for the plaintiff, and in an opinion said: “ The Act of April 15th 1873 provides that ‘ any acts or parts of acts which impose a per capita tax upon persons liable to military duty be and the same are hereby repealed.’ This act does not purport to operate retrospectively, and therefore reaches not back to pre-existing claims. The orders declared upon were all drawn prior to the repeal of the per capita tax. The law imposing this tax had been in force three years ; it was the duty of the county officers to collect it. The presumption is that public officers do their duty, and. it must therefore be presumed that it was collected. The demurrer does not aver that no funds were collected to discharge these obligations, nor that funds so collected had been legally applied to some purpose authorized by the act. The averment is, that ‘the treasurer hath not nor is he bound to have any funds out of which to pay the said orders.’ The answer that the treasurer ‘ hath not’ funds might be made if the commissioners had applied the funds derived from the military tax to county purposes, and does not weaken the presumption that he has had it. The answer that the treasurer is not bound to have any funds out of which to pay said orders, because the act providing the ways and means for the payment has been repealed, would be sufficient if the demand was for obligations incurred after the repeal of the law, but such repeal cannot release the county from obligations previously incurred.”

      J. A. Sittser and F. O. f R. P. Ross, for plaintiff in error.

      W. F. $ O. A. Little and R. R. Little, for defendant in error.
    March 28th 1877.
   Mr. Justice Sterrett

delivered the opinion of the court,

The plaintiff, in an action of trespass on the case against the county of Wyoming, filed a statement, in lieu of a declaration, setting forth that his cause of action was founded on orders drawn by the military board on the county treasurer; that payment thereof had been demanded of the commissioners and treasurer, and was refused. To this statement the defendant demurred, -and assigned specially, as cause of demurrer, “ that the treasurer of the county hath not, nor is he bound to have, any funds out of which to pay said orders, the act providing the ways and means for the payment having been repealed.” The plaintiff joined therein, and judgment was rendered in his favor.

The demurrer refers to the 9th .section of the Act of April 16th 1873, Pamph. L. 74, which repeals “any act or parts of acts which impose a per capita tax upon persons liable to military duty.”

It was wholly irregular to assign the repeal of the tax as cause of demurrer. If it furnished any ground of defence it should have been brought forward by way of plea. A demurrer to a declaration or statement arises on its face and is never founded on matter collateral to the pleading which it opposes. But, aside from this, the orders in suit were all drawn before the date of the repealing act, and, inasmuch as it was not retrospective in its operation, the liability of the county, if any existed, could not be affected thereby. It does not follow, however, because the demurrer was bad, both in form and substance, that the plaintiff was entitled to judgment. The recognised rule of pleading is, that on demurrer the court will consider the whole record, and give, judgment for the party who appears to be entitled thereto; or, as it is expressed in Clearweather v. Meredith, 1 Wall. 38, a demurrer, whenever interposed, reaches back arid seizes hold of the first defective pleading. The plaintiff, therefore, was not entitled to judgment, unless the statement disclosed a good cause of action. As we have seen, it simply alleges that he was the holder of orders drawn by the board on the county treasurer, payment of which had been demanded and refused. It contains no averment that funds, arising from the per capita tax, were in the hands of the treasurer, subject to the orders of the board, or of any other fact from which liability of either the county or the treasurer would arise.

But it may be said that the plaintiff’s statement might have been so amended as to present a good cause of action. This depends on whether the Militia Act and its supplements enjoin any duty from which can spring a liability of the county in its corporate capacity. It declares who shall be liable to military duty, and provides for their enrolment; and the supplement requires all who are thus enrolled and fail to become members of some military organization, to pay annually fifty cents each to the collector of taxes, whose duty it is to pay the same to the county treasurer, to be by him held and disbursed as a brigade or military fund; and the board, composed of the commanding and other officers of the brigade, are authorized to audit and adjust all claims upon the fund and “make their orders upon the treasurer for the payment thereof.”

It will be observed, from these leading features of the act, that the county treasurer is made the custodian of the fund, which he is required to keep separate and distinct, and disburse only on orders drawn by the board. The existence of the special fund in the hands of the treasurer is the foundation of the right to draw on him, as well as of his duty to honor the orders. If he fails to perform his duty in this respect, there can be no doubt as to his liability, and the remedy against him is ample. The commissioners of the county have no authority to draw upon, or in any manner control, the military fund.

There appears to be nothing in the provisions of -the act and its supplements, taken in connection with the facts, as disclosed by the record before us, to fasten liability on the county.

Judgment reversed.