text:
    Shaffner versus The Commonwealth.
    1. As a general rule, a distinct crime unconnected with that in the indictment, cannot be given in evidence against the defendant.
    2. That one crime may be evidence of another, there must have been a connection between them in the mind of the criminal or the person must be so identified as to show that one committed both.
    3. Should the judge not clearly see the connection, the defendant should have the benefit of the doubt, and the jury not be>prejudiced by an independent fact, not evidence of the particular guilt.
    4. Defendant was indicted for murdering his wife by poison, there was evidence of his criminal intimacy with the wife of another man, on whose life was an insurance, the proceeds of which on his death the defendant endeavored to procure. Held, that evidence that the husband died with the same symptoms as defendant’s wife, and that he had been attended by the defendant, was inadmissible.
    5. The judge below charged : “ If the prisoner is guilty, there can be no difficulty in ascertaining the degree, for being by poison, it must be in the first degree if purposely administered : * * * if you are convinced that he is guilty of the crime, it is murder in the first degree as declared by the Act of Assembly, and it is your duty to say so without regard to the consequences to the prisoner.” Held, not to be error.
    6. If a charge is imperative, taking from the jury the right of deciding the degree of murder, it is error.

      7. It is the duty of the judge to inform the jury the degree fixed hy law to murder hy poison, and to instruct them as to their duty.
    8. Lane v. Commonwealth, 9 P. F. Smith 371; Rhodes v. Commonwealth, 12 Wright 396, distinguished.
    May 20th 1872.
    Before Thompson, C. J., Agnew, Sharswood and Williams, JJ.
    Error to the Court of Oyer and Terminer of Dauphin county: Of May Term 1872. No. 73.
    At the November Sessions 1871, of the Court of Oyer and Terminer of Dauphin county; Emanuel Shaffner was indicted for the murder of his wife, Nancy Shaffner, by poison.
    The indictment was tried March 4th 1872, before Pearson, P. J., and his associates.
    /The deceased died on Sunday, June 11th 1871. The evidence 'tended to show that she died by poison, and the principal question was whether the poison had been administered by her husband Emanuel Shaffner, the defendant. There was evidence of improper intimacy between, the defendant and one Susan Cassell, after-wards Susan Sharlock.
    The Commonwealth gave evidence of the symptoms attending the death of Nancy Shaffner; and that Sarah Shaffner, the first wife of defendant, who died in October 1869, and John Sharlock, the husband of Susan Sharlock, both died at the house of the defendant with similar symptoms.,
    After evidence bearing on the foregoing points had been given, the Commonwealth called Samuel Seabold, agent of a life insurance company, who testified that he insured John Sharlock’s life, November 11th 1870, for $2000, in favor of his wife, Susan Sharlock ; about three months afterwards Sharlock died; on the second day after his burial, Shaffner came to the house of witness to see about the insurance. He described to the witness the symptoms of Sharlock’s sickness and the circumstances of his death. Witness told Shaffner he must bring the widow; Shaffner brought her shortly afterwards to witness and had the proof as to Sharlock’s death made; witness asked him how his wife liked his taking Mrs. Sharlock about in that way; Shaffner said she did not like it at all; said if the proof was not sufficient, witness was to write to him ; the proof was not sufficient, and it was made out again; defendant came again for the insurance-money; witness said he could not have it, that he must bring the widow; he brought her and witness paid her the money; she gave it to Shaffner.
    The foregoing evidence was admitted under objection and exception, Judge Pearson saying, that it was offered as declarations of the defendant to show his intimate relations with Susan Sharlock, being followed with his acts with her and endeavors to get the insurance-money for her.
    E. Hubbard testified that Sharlock owed him money, Shaffner said he would pay it; he was to settle the estate; he was receiving $2000 insurance-money; it was better for her than a man.
    There was evidence of Shaffner’s efforts to have the administration of Sharlock’s estate, that it had been granted to him, &c.
    The evidence tended to show defendant’s criminal intercourse with Susan Sharlock before her marriage, and during the lives of both the defendant’s wives; that Susan lived in the family of the defendant both before her marriage and afterwards with her husband.
    There was evidence of declarations by the defendant, that the symptoms of his two wives and of Sharlock at the time of their deaths were all different from each other.
    The Commonwealth then offered to show that the death of the defendant’s first wife, September 4th 1869, and that of John Sharlock, February 17th 1871, were from the same cause, poison, that they had the same symptoms as Nancy, the last wife who died June 11th 1871; that the defendant was the attendant of each and that they all died at his house;—
    1. To negative what the prisoner said of the deaths being dissimilar, using it as an argument to meet the allegations that Nancy died from poison taken by herself.
    2. The bearing of the deaths and their causes on the question of motive.
    3. To disprove any inference that Nancy died from poison by accident or suicide.
    4. That the deaths are so connected that they form one chain of facts which cannot be ascertained without rendering part of the-evidence received unintelligible, incomplete and imperfect.
    Objected to by defendant.
    The court rejected the part of the offer relating to the first wife’s death ; but as to the other part said:—
    “ The evidence proposed as to the death of John Sharlock stands on a different footing. We have heard testimony tending to show that his wife and Shaffner — the prisoner — had for a considerable time carried on a criminal connection. That the first wife had sent Susan away — probably on account of jealousy. Immediately after her death Susan returned, lived with Shaffner until he married again, and was soon after sent off by the second wife. She married Sharlock, and returned to Shaffner’s to live. Her husband had his life insured for $2000 in favor of his wife. Soon after the man died, and the day after the funeral Shaffner applied' for the insurance-money. Ultimately obtained it for Susan, wished to borrow it, but failed. Four months after Sharlock’s death the prisoner’s wife Nancy died in the manner detailed. As soon as she had departed, and before the funeral, Susan returned there to live, and continued to reside with the prisoner until two days before he was arrested, which was some time after the disinterment of Nancy, and the analysis of her viscera. The motive suggested for removing Sharlock is that Shaffner might get the life insurance, and as soon as his own wife was out of the way might also get Susan. These things tend to show the quo animo or motive for doing the act, and also to prove that in point of motive the two murders, if committed, were connected. The Commonwealth is entitled, as the case now stands, to give the death of John Sharlock, with the attendant circumstances, in evidence. This, independently of the defendant’s declaration to several that the deaths of all three of these persons were alike, and to others that they were entirely different. At the same time we are bound to instruct the jury that if they do not believe that a criminal intercourse was carried on between Susan and Shaffner, they must reject all of the evidence relative to Sharlock’s death. Its admissibility depends on that fact.”
    The defendant excepted to this ruling and a bill of exceptions was sealed.
    On the evidence received under this bill of exceptions the court in the general charge instructed the jury: “We now come to the question of Sharlock’s death; and here I must caution you in advance that the death of Sharlock was not received for the purpose of showing that the prisoner poisoned his wife because he had committed some other crime. We could not lawfully receive it for that purpose. The perpetration of one offence cannot be proved by showing that the party had committed another. You were not in when the decision was made ; we declined receiving any evidence in regard to the first wife’s death and the cause thereof, because it would have been improper. It would be equally improper to receive evidence of the manner of Sharlock’s death for the mere purpose of showing that another death had happened in the prisoner’s house in the same way and was caused by poison. It is received in connection with what is said in regard to Susan. Susan was the wife of Sharlock, and had a policy of $2000 upon his life, and the evidence is admitted for the purpose of showing a motive on the part of the prisoner to act as it is said he did, and that motive depends entirely on the course of his life in connection with Susan. If there had been no improper intimacy between them, Sharlock’s death ought not to weigh at all in the present case, although you might believe that he died from poison, and that it was administered by the prisoner. We cannot permit evidence to be given of one crime in order to prove another. If there is that chain of circumstances running through the case that would show the prisoner’s anxiety to have Susan free from the embarrassment of a husband, and obtain for her $2000 from the life insurance, then we have it followed four months after by the death of Mrs. Shaffner. You must be satisfied that both deaths were prompted by the same motive. It has been suggested, ‘ Why take the life of Sharlock before that of the wife V If the intention of the prisoner was to carry out a scheme by which the insurance-money could be obtained, and Susan obtained it, it mattered very little which point they started, whether it was commenced by the destruction of Sharlock or that of the prisoner’s wife. It would not do to have them come too close together for fear of exciting suspicion. We must not act, however, on suspicion, but upon nothing but clear conviction.”
    There was evidence of other circumstances tending to show the guilt of the defendant.
    The court charged: * * * “ It is made the duty of the jury before whom the person is indicted, to ascertain the degree of guilt in cases of conviction. [In the present case, if the prisoner is guilty at all, there can be no difficulty in ascertaining the degree of guilt, for, being by poison, it must necessarily be murder of the first degree, if purposely administered. * * * If your mind and judgment are convinced beyond any reasonable doubt that he is guilty of the crime, it is a high and heinous one, is murder of the first degree, as declared by the Act of Assembly, and it is your duty to say so, without the slightest regard to the consequences to the prisoner.”]
    To understand the points decided by the Supreme Court does not require a more extended statement-of the case.
    The jury found the defendant guilty of murder in the first degree. After overruling a motion for a new trial, and in arrest of judgment, the Court of Oyer and Terminer, on the 28th of March 1872, sentenced the defendant to be hung. He removed the record to the Supreme Court by writ of error, and there assigned seven errors.
    Those considered by the Supreme Court, related to the admission of the evidence objected to by the defendant, and the part of the charge given above.

      A. J. Herr and Hamilton AlrioJcs (with whom was JR. A. Lamberton), for plaintiff in error.
    — The admission of the evidence as to Shaffner’s death required the defendant to meet a charge for which he was not indicted, and to defend two distinct charges in one trial. Evidence of the commission of one crime is not admissible to prove another: Commonwealth v. Ferrigan, 8 Wright 387; Stone v. State, 4 Humphreys 27; State v. Wisdom, 8 Porter 511; Rex v. Ellis, 2 Russell 698; Rex v. Birdseye, 4 C. & P. 386; United States v. Mitchell, 2 Dallas 357; 1 Greenl. Ev., sect. 52, 1 Phillips Ev. 645, and note: 1 Chitty’s Cr. Law 564; Roscoe’s Crim. Ev. 70. As to the charge of the court: Lane v. Commonwealth, 9 P. F. Smith 371; Rhodes v. Commonwealth, 12 Wright 396.

      J. M. Wiestling, District-Attorney, and W. MaeVeagJi (with whom was S. H. Alleman), for Commonwealth.
    — The evidence connecting Susan and John Sharloek with the defendant tended to show his motive: 2 Russell on Crimes 774 et seq. to 779; and this is not affected by the fact that it proved another offence for which defendant might be indicted: Roscoe’s Crim. Ev. 86; 1 Phillips on Ev. 767; 1 Whart. Crim. L., sects. 647-649; Heath’s Case, 1 Harrison 607; Dunn v. State, 2 Arkansas Rep. 244; Roscoe’s Crim. Ev. 93; Reg v. Garner, 4 Foster & Finlason 346.
    July 3d 1872,
   The opinion of the court was delivered, by

Agnew, J.

— It is a general rule that a distinct crime, unconnected with that laid in the indictment, cannot be given in evidence against a prisoner. It is not proper to raise a presumption of guilt, on the ground, that having committed one crime, the depravity it exhibits makes it likely he would commit another. Logically, the commission of an independent offence is not proof, in itself, of the commission of another crime. Yet it cannot be said to be without influence on the mind, for certainly, if one be shown to be guilty of another crime equally heinous, it will prompt a more ready belief, that he might have committed the one with which he is charged ; it therefore predisposes the mind of the juror to believe the prisoner guilty. To make one criminal act evidence * of another, a connection between them must have existed in the mind of the actor, linking them together for some purpose he in- ( tended to accomplish ;ior it must be necessary to identify the person of the actor, by a connection which shows that he who committed the one must have done the other. Without this obvious connection, it is not only unjust to the prisoner to compel him to acquit himself of two offences instead of one, but it is detrimental to justice to burthen a trial with multiplied issues that tend to confuse and mislead the jury. The most guilty criminal may be innocent of other offences charged against him, of which, if fairly tried, he might acquit himself. From the nature and prejudicial character of such evidence, it is obvious it should not be received, unless the mind plainly perceives that the commission of the one tends, by a visible connection, to prove the commission of the other by the prisoner. If the evidence be so dubious that the judge does not clearly perceive the connection, the benefit of the doubt should be given to the prisoner, instead of suffering the minds of the jurors to be prejudiced by an independent fact, carrying with it no proper evidence of the particular guilt.

We come now to the offer of evidence received by the court. Leaving out that part relating to the prisoner’s first wife, which the court rejected as too remote, the offer was to prove that John Sharloek died from poison, the same kind of which Nancy, the prisoner’s wife, died; that his symptoms were the same as hers, that the prisoner attended upon both, and that both died at the prisoner’s house; Sharlock on the 17th of February 1871, and Nancy, the wife, on the 11th of June 1871. In substance, this was an offer to show that the prisoner poisoned Sharlock, as evidence that he also poisoned his own wife. The purpose insisted | on, was to show a motive on the part of the prisoner for taking the life of his wife, and that the deaths were so connected that they formed one chain of facts, which could not be ascertained without rendering part of the evidence received unintelligible and incomplete. It is argued that the motive of the prisoner for taking the.life of Nancy his wife, was to enable him to obtain her money ; and to enable him also to marry Susan, the wife of John Sharlock, Avho had been the prisoner’s paramour, as the means of obtaining her money, which was in the form of an insurance policy, on the life of her husband, John Sharlock, and that in order to carry out this plan, it was necessary first to put Sharlock out of the way.

It is obvious that to connect together the deaths of Sharlock and Nancy, and make the former bear upon the latter, they must have been both contemplated by the prisoner as parts of one plan in his mind, in which the taking of Sharlock’s life was part of his purpose of taking the life of Nancy. He must, therefore, have contemplated the death of Nancy before taking the life of Sharlock. In otder to let in the poisoning of Sharlock, the judge must have had before his mind some fact or facts exhibiting this pre-existing determination to take Nancy’s life. Herein the evidence was defective. Let us examine the question of probable motive, and first as to the money of Nancy his wife. Now clearly it was not necessary to put Sharlock out of the way to obtain it. Sharlock’s death opened no door to reach it. Nancy’s death alone would bring it. The evidence was, therefore, inadmissible on this score. Then there was the prisoner’s illicit intercourse with Susan Sharlock. This was made the turning-point of the admission of the evidence by the court. But there was no evidence that the , prisoner at any time contemplated marriage with Susan, from which such an intent can fairly be inferred to have existed before Sharlock’s death ; yet this is the essential fact to make it probable, that the prisoner took Sharlock’s life, as preparatory to taking Nancy’s life, and as the means of enabling him to marry Susan. According to the evidence, the libidinous intercourse between him and Susan existed for years, during the lives of both his wives, without restraint, and Susan continued in his family after his marriage with Nancy, and her own marriage with John Sharlock. Nor was desire of the enjoyment of Susan, so long sated at pleasure, curbed by any new impediment, to make it a ruling motive; while the evidence also shows, that after the prisoner’s first wife’s death he purposely passed by Susan, when she was single, to marry Nancy, the second wife. Now’the meretricious intercourse with Susan having existed so long, and when he could have gotten her, having left her to marry Nancy, and the opportunity of enjoying her still continuing, it is not a reasonable or probable presumption that the idea of marrying Susan was in the prisoner’s mind when he poisoned Sharlock, nearly four months before he poisoned his wife, so as to constitute a ruling motive to take the lives of both Sharlock and Nancy, as the means of marrying Susan.

Then we come to the pecuniary motive, viz., of obtaining Susan’s money. If the prisoner had been on his trial for the murder of Sharlock, his desire to obtain the policy-money dependent on Sharlock’s death, would constitute a motive for taking his life; but the question here being upon the probable motive for taking Nancy’s life, the inquiry is, what probable connection existed in the design of the prisoner to make Sharlock’s death preliminary to that of Nancy ? Let it be supposed that the purpose of the prisoner in taking the life of Sharlock, was to enable him to obtain Susan’s policy-money, yet it was not a necessary consequence that the prisoner deemed it essential to his plan that he should also take his own wife’s life. It is evident these two purposes cannot] be linked together, unless the prisoner considered his marriage/' with Susan necessary to obtain her money. Marriage with Susan must then have been a pre-existing intent, inducing him to framé in his mind the plan of taking the lives of both Sharlock and Nancy, to enable him to marry Susan and thus to obtain her money. But here the evidence fails to furnish the wanting link. There was no evidence, as we have seen, of any design to marry Susan, while it also appears that the prisoner had no cause to doubt his power to obtain possession of Susan’s money, in order to make marriage a ruling motive. On the contrary, the evidence shows that instantly on Sharlock’s death the prisoner took the steps to obtain the policy-money, and soon accomplished the purpose. The agent of the Insurance Company states, that when the money was paid to Susan she handed it to the prisoner, who put it into his pocket; and we find that afterwards he spoke of still having it, and offered to pay a debt for Susan. It might be, if the prisoner found that Susan would not part with her money after she got it, ho then formed the design of marrying her to get it, and as the means of doing so then resolved to kill his wife. But this comes too late, for unless this purpose was present to his mind before he took Sharlock’s life, it could not constitute a motive and part of his plan to take his wife’s life also, so as to link the two deaths together. But in order to be present to his mind before Sharlock’s life was taken, he must have previously known or believed, or must have plainly foreseen he could not avail himself of Susan’s money without marrying her, and,.concluded to marry her, a fact unsupported by any evidence. The previous purpose to marry Susan is the broken link in the chain to complete the connection, without which the deaths of both are not so probably connected, as to make Sharlock’s death evidence on the trial for the death of Nancy. It was therefore unjust to the prisoner to compel him, on his trial for the murder of his wife, to defend himself against the charge of murdering Sharlock. The offer should have been rejected.

The other errors assigned to the charge are not sustained. It is contended, and earnestly pressed upon us, that the judge had no right to say to the jury that if the prisoner was guilty of murder, it was murder in the first degree, and it was their duty to say so regardless of consequences. The indictment charged a murder by poison, and such was the tendency of the evidence. It was not only the right but the duty of the judge to inform the jury of the degree which the law attaches to murder by poison, and to instruct them in their duty under the law. It is only when the charge becomes imperative, and takes from the jury the right of deciding and pronouncing the degree of the murder, that we have held it to be error. When left free, as in this case they were, to decide the degree for themselves, we have not held it to be error to impress upon their minds the legal inference from the facts, and their duty to obey the law. But when, as in Rhodes v. Commonwealth, 12 Wright 896, and Lane v. Commonwealth, 9 P. F. Smith 871, a court addresses a jury authoritatively, and requires of them a verdict of murder in the first degree, it is error. Jurors uninstructed in their rights in a capital case, may feel themselves constrained by the peremptory direction of the judge. Both the cases referred to stood upon the same ground, and in both the error was the binding instruction of the court. The language in this case approaches closely the boundary line of peremptoriness, but we cannot say it overstepped it, in view of those parts of the charge which left them free to act for themselves. Jurors are so apt to lean _ away from a verdict of murder in the first degree, we must not scan too critically the language of the judge, if he has left them free to find the degree of the murder, on the evidence. None of the other'assignments of error require notice. The sentence of the Court of Oyer and Terminer is reversed, and a venire facias de novo is awarded, and the record is ordered to be remitted for a new trial.


source: Caselaw Access Project

author: Williams, J.

license: Public Domain

text:
    Shaw versus Commonwealth ex rel. Stratford.
    1. In proceedings before a justice under the Act of 1705, relating to hogs, the record must show that they were 1‘ suffered to go at large by the owner.” “ Having been running at large,” is not sufficient.
    2. Hogs at large without default of the owner, are not subject to forfeiture ; and in such case a justice has no jurisdiction.
    3. Commonwealth v. Fourteen Hogs, 10 S. &R. 393, adopted.

      May 21st 1872.
    Before Thompson, C. J., Agnhw, Sharswood and Williams, JJ.
    Certiorari to the Court of Common Pleas of Mifflin county: No. 82, to May Term 1872.
    This was a proceeding under the Act of 1705, relating to hogs suffered to run at large. The proceedings were commenced September 3d 1869, before Joseph S. Waream, Esq., a justice of the peace of Mifflin county, upon the following information:—
    “Before me, &c., came Charles Stratford, of the township of Derry, in said county, yeoman, and being duly affirmed, did depose and say, that upon the third day of September, instant, he found upon his lands, situate in the township aforesaid, three shoats without rings in their noses and yokes or bows about their necks, and one shoat without a ring in its nose but having a bow about its neck, said shoats having been running at large, and the same being then and there found, did drive and carry away,” &e.
    The justice thereupon issued an order of appraisement, &c., to “two indifferent persons of the neighborhood,” who on the same day returned that they had appraised the hogs at $24. On the same day Stratford paid to the justice $12, the one-half of the appraisement, and the justice issued a notice, reciting the foregoing proceedings, that one-half the value of the hogs was forfeited to the owner of the land where they were found, and that the remainder, after deducting costs, was in his hands ready to be paid to the owner of the hogs, &c.
    At the instance of Shaw, the owner of the hogs, a certiorari was issued to the justice from the Court of Common Pleas of Mifflin county.
    The court (Woods, P. J.) affirmed the proceedings of the justice, and Shaw removed the record to the Supreme Court by certiorari, and assigned the affirmance of the justice’s proceedings for error.

      A. Meed for certiorari
    referred to Act 1705, 1 Sm. L. 70, 2 Br. Purd. 1354; Commonwealth v. Fourteen Hogs, 10 S. & R. 393 ; Strauser v. Kosier, 3 P. F. Smith 496.
    J". Alexander, contra,
    referred to same act and Commonwealth v. Fourteen Hogs.
    October 17th 1872,
   The opinion of the court was delivered,

by

Williams, J.

— The case of the Commonwealth v. Fourteen Hogs, 10 S. & R. 393, is decisive of the question presented by this record. It was there held that the act, under which these proceedings were instituted, applies only where the swine are voluntarily suffered to go at large, not where they escape from the owner without his default; and if the proceedings do not show this they will he quashed. It does not appear from the record in this case that the swine were suffered to run at large by the owner. The phrase “having been running at large,” cannot be regarded as tantamount to an averment that they were “suffered to run at large.” They may have been running at large when found by the seizer, without any default of the owner; and if so, they were not subject to forfeiture. If they were not suffered to run at large, the magistrate had no jurisdiction of the ease, and for want of this essential averment the court below should have quashed the proceedings.

Judgment reversed and proceedings quashed.


author: Per Curiam.

text:
    Manufacturers’ & Mechanics’ Bank versus The Commonwealth.
    1. A state bank under the Act of Congress of June 3d 1864, became a national bank on the 28th of October 1864; on the 15th of December it furnished to the auditor-general the evidence that it had complied with the requirements of the state enabling act of August 2d 1864, which was certified December 19th by the auditor-general to the governor, who caused publication to be made on the 21st that the bank had become a national institution : Held, that the bank was liable to the state for all taxes to December 19th.
    2. The bank, under the enabling act, surrendered its state charter and became a bank under the Act of Congress on the 19th of December 1864.
    May 21st 1872.
    Before Thompson, C. J., A&new, Shaiiswood and Williams, JJ.
    Writs of error to the Court of Common Pleas of Dauphin county: No. 45 and 46, to May Term 1872.
    Two actions of debt, No. 605 and 606, were brought to August Term 1871, of the court below, by The Commonwealth against The Manufacturers’ and Mechanics’ Bank of Philadelphia.
    No. 605, was for the recovery of tax on dividends.
    No. 606, for tax on the capital stock.
    The following case was stated in No. 605 :—
    The Manufacturers’ and Mechanics’ Bank of the city and county of Philadelphia was, m the year 1864, a corporation established under the laws of Pennsylvania.
    Upon the 24th day of October 1864, the said bank, under the provisions of an Act of Congress of the United States, entitled “An Act to provide a National Currency, &c.,” approved the 8d of June 1864, made its organization certificate in due form for the purpose of becoming a National Association for carrying on the business of banking by the name of the Manufacturers’ National Bank of Philadelphia, which certificate, duly acknowledged and authenticated, was thereupon transmitted to the comptroller of the currency, on the 28th day of October 1864, he gave the said The Manufacturers’ National Bank a certificate, that the provision of the Act of Congress has been complied with, and that it was authorized to commence fhe business of banking under the said act.
    From and after the date of the said certificate, the said Manufacturers’ National Bank assumed the character and duties of a national association as aforesaid, and paid into the treasury of the United States the taxes imposed upon it by the said Act of Congress.
    The said Manufacturers’ and Mechanics’ Bank, on the 15th day of December 1864, furnished to the auditor-general of the state of Pennsylvania, satisfactory evidence that the requirements of a certain act of the legislature of the state of Pennsylvania, entitled, “ An act enabling the banks of this Commonwealth to become associations for the purpose of banking under the laws of the United States,” approved the 22d day of August 1864, had been complied with in relation to the said last-named bank, and that it had become a banking association under the laws of the United States.
    The auditor-general held over the evidence of the conversion of said bank, awaiting payment of a balance of taxes due to the 1st of November 1864. This balance being paid on the 19th December 1864, the auditor-general on that day certified the facts to the governor, who, on the 21st day of the same month caused notice thereof to be published in the North American, a newspaper published in the city and county of Philadelphia, where the said bank was located, for at least three weeks. All taxes upon the dividends of said last-named bank, payable previously to the 1st of November 1864, were duly paid to the Commonwealth before the commencement of this suit, as will appear by the settlement of the auditor-general, a copy of which is hereunto annexed and made a part of this case stated.
    Now, it is hereby agreed that if the court shall be of opinion that the said Manufacturers’ and Mechanics’ Bank is not liable to pay to the Commonwealth any tax upon dividends after the 1st of November 1864, then judgment shall be entered for the defendants, but if the opinion of the court shall be to the contrary, the judgment shall be entered for the plaintiff for $1008.85, with interest, at six per cent., from May 12th 1866.
    The case stated in No. 606, is similar, except that the amount of tax was $888.
    The court below (Pearson, P. J.) entered judgment for the Commonwealth as follows:—
    In No. 605 for $1349.50.
    In No. 606 for $519.01.
    The defendants removed the record in each case to the Supreme Court, and assigned for error, the entering of the judgments for the Commonwealth.

      S. J. M. MaOarroll (with whom were D. Fleming and A. H. Smith), for plaintiffs in error.

      J. O. Knox, Jr., and F. G. Brewster, Attorney-General, for Commonwealth.
    May 27th 1872.
   Judgment was entered in the Supreme Court,

Per Curiam.

— Both these cases depend upon the question, at what time did the bank, under the provisions of the enabling act of 22d May 1866, surrender its state charter and become a banking institution under the Act of Congress of June 3d 1864 ? ■

The learned judge below held that to have been on the 19th December 1864, when on the certificate of the auditor-general, that all taxes due on the 1st of the preceding November had been paid, the governor caused notice, as required by law, to be published that the bank had become a national institution.

The 10th section of the enabling act required the bank to pay all taxes imposed upon it by state laws to the date of its becoming a national bank. We think the enabling act was necessary and binding legislation on these state banks, and that the taxes due until the surrender was perfected according to its terms, were due to, and collectable by, the state. This was the opinion of the learned court below, and with it we agree.

Let the judgments in both of the above cases be affirmed.


text:
    Susquehanna Canal Co. versus The Commonwealth.
    1. A loan dne by an improvement corporation, secured by mortgage on its property in this state, is taxable under the tax laws of the Commonwealth. Per Pearson, P. J.
    2. Such loans are taxable although held by a non-resident. Id.

    3. The legislature can tax the property of another state situate in Penn- * sylvania, or bonds, &e., being a lien on property in this state and protected by its laws. Id.

    4. The state may make the debtor, when in its bounds, the collector of the tax due on the debt. Id.

    5. If another state becomes a lender here, it so far divests itself of its sovereignty. Id.

    6. Maryland in 1839 made a loan to an improvement corporation of Pennsylvania and secured it by mortgage on the property of the corporation in Pennsylvania. Held, that the loan was liable to taxation under subsequent tax laws, and that the taxation did not violate the obligation of the contract. Id.

    May 21st 1872.
    Before Thompson, O. J., As-new, Sharswoop and Williams, JJ.
    Error to the Court of Common Pleas of Dauphin county: Of May Term 1872, No. 14.

      This was an appeal by the Susquehanna Canal Company from the settlement, April 26th 1870, by the Auditor-General and State Treasurer for taxes on the loans to the Canal Company, for the years 1864, 1865, 1866, 1867, 1868, 1869, the tax amounting to $20,515.33.
    The canal company appealed and made the following specifications of objection:—
    That one of the loans on which the settlement was based was a bond of the company for $700,000 to the state of Maryland, dated May 27th 1839, “ the principal and interest of which are by its terms payable into the treasury of that state, and the interest on the bond has actually been paid there.”
    That another of the loans was five bonds of the company for $1000 each, dated January 1st 1853, held and owned by Thomas Wilson, a citizen of the state of Maryland, residing in Baltimore, and that the interest on these bonds was payable in Baltimore.
    The appellants averred:—
    1. That the third section of the act approved April 30th 1864, entitled “An act imposing additional taxes for state purposes,” &c., under which the tax,upon interest paid in the years 1864, 1865, 1866, 1867, and until the thirtieth day of April' 1868, is claimed to be due, and the eleventh section of the act approved May 1st 1868, entitled “ An act to revise, amend and consolidate the laws taxing corporations, brokers and bankers,” under which the tax upon interest paid after the first day of May 1868, and in the year 1869, is claimed to be due, were not intended to apply either to bonds or the interest thereon, held and payable as aforesaid.
    2. That the object of the said sections was merely to provide a mode of collecting a tax then due by taxable citizens or residents of this Commonwealth, and not to impose a tax where none was payable under the then existing laws; and that under the then existing laws of this Commonwealth no tax was chargeable upon either principal or interest of money payable to another state within such state, nor to a person residing in another state, who was not a citizen of the Commonwealth.
    3. That the third section of the said Act of April 30th 1864, requiring every president, treasurer, cashier or other officer of any company, incorporated, or that might thereafter be incorporated, which pays interest to its depositors, bondholders, or other creditors, upon which, by the laws of this Commonwealth, a state tax was imposed, to retain from the said depositors, bondholders, or creditors the amount of state tax imposed by the then existing laws, and to pay over the same to the state treasurer; and the third section of the said Act of May 1st 1868, requiring the president, treasurer or cashier of every company, except banks or savings institutions, incorporated under the laws of this Commonwealth, doing business in this state, to retain and pay over to the state treasurer, for the use of the Commonwealth, five per centum upon every dollar of interest paid to its bondholders or other creditors, if intended to apply to interest payable in another state on bonds held by such state, or by persons who are neither residents nor citizens of this Commonwealth, are in conflict with the tenth section of the first article of the Constitution of the United States, which provides that no state shall pass any law impairing the obligations of contracts, &c.
    The other facts in the case appear in Judge Pearson’s charge.
    The appeal was tried January 24th 1671, before Pearson, P. J.
    The defendants submitted a number of points involving the questions raised by their specifications of objection to the settlement against them.
    Judge Pearson’s charge, adopted by the Supreme Court, was the following:—
    “ This case comes into court by appeal from the decision of the accounting department, which has charged the defendant with a tax on moneys paid as interest due to his creditors, and which the state avers that the corporation was bound to retain under the Acts of 1864 and 1868, and pay into the public treasury. The Susquehanna Canal Company is a corporation of Pennsylvania, created under an Act of Assembly, passed on the 15th of April 1835, and empowered to make a canal from Columbia to the Maryland line. By a supplement to that act this company was authorized to borrow money and pledge or mortgage its works. This was done, and eventually very considerable loans made, and the company gave its bonds therefor, bearing interest. Among its creditors was the state of Maryland, which, pursuant to a statute of that state, lent this corporation some seven hundred thousand dollars, which were secured by a bond and mortgage on its works, executed on the 27th day of May 1839, and duly recorded. Prior to that time the state of Maryland had incorporated the ‘ Tide Water Canal Company,’ which was authorized to connect with the Pennsylvania work by the laws of both states, and Maryland lent the two corporations $1,000,000, which were divided at the rate of $700,000 to the one and $300,000 to the other. The Tide Water Canal was wholly in the state of Maryland. The specification of exceptions taken on the appeal and filed in the cause, embrace substantially the following: First. There is no law imposing a tax on money at interest due by a corporation. Second. That the money due to Thomas Wilson by this company could not be taxed, he being a citizen of the state of Maryland, and the interest payable therein. Third. The money due to the state of Maryland is not subject to taxation; and Fourth. The laws authorizing and requiring a deduction of the amount of tax from the interest due to the several creditors impairs the obligation of the contract.

      “ It is unnecessary and scarcely proper for this court to enter upon a course of reasoning to prove that debts due by a corporation, of the character proved here, and secured by mortgage, as shown, are taxable under the thirty-second section of the Act of April 29th 1844, and other laws of this Commonwealth, as the point has been repeatedly decided by the Supreme Court. The statute cited imposes a tax on all mortgages and money owing by solvent debtors, &c., and “on all public loans or stocks, except those issued by this Commonwealth.” Loans to corporations must have been here intended, as those to the state are excepted. This is strengthened by the Act of May 1st 1854, though it is true that it speaks of ‘ bonds or certificates of loans of any railroad company incorporated by this Commonwealth,’ but it is merely excepting those from taxation for county purposes, and shows that the legislature considered such obligations taxable by the former law. The question is settled not only in Maltby v. The Reading Railroad Company, 2 P. F. Smith 140, but in several unreported cases since. See especially Commonwealth v. The Phoenix Iron Company, where the tax is sustained purely on the word ‘ mortgages,’ and in some other of the various railroad cases. It is no longer an open question in this state, nor is the non-residence of the creditor in Pennsylvania any ground for relieving his debt from taxation, as already decided in Maltby v. The Reading Railroad Company, and many others of kindred character. The tax was always due, but there was no means to effect its collection before the enactment of the Act of April 30th 1864, which required its retention by the corporation officers, and authorized its deduction from the interest due to the creditor. The only new and undecided point in the case arises on the money due to the state of Maryland. Is that subject to taxation by our laws? We cannot doubt the power of our legislature to tax the property of another state situated within Pennsylvania, or choses in action, bonds or other claims — a lien on property protected by our laws or where they must be invoked to coerce payment of the debt. The only question is, do the laws embrace the bonds due to a sovereign state ? It may be conceded that here, as in England, laws which speak in general of inferior persons, cannot properly be applied to superiors. Those which speak of the subject do not embrace the sovereign; or of the people do not include the state. It is well settled, however, that the statute may by express words extend to the state, and where it does so it is binding. The Statute of Limitations in general will not bar the sovereign, yet it may be and often is made so to do, both here and in England; and this either by express words or necessary implication. It has also been held that where an Act of Parliament is made for the public good, the advancement of religion or justice, or to prevent injury and wrong, the king shall be bound by such act, though not particularly named therein: Plowd. 186-7, 11 Co. 586, 5 Id. 14, 7 Id. 32; Bouvier’s Bac. Abr. vol. 8, tit. Prerogative, p. 92. Laws imposing taxes would rarely be applied to property solely owned by the state, for the same hand would both pay and receive. This could not apply to the property of another state found in this, for the recipient would be different from the person paying. It is questionable whether any other sovereign can claim exemption from the laws of the state which enacts them. If another state or foreign sovereign sues to collect its debts in our courts, it cannot claim immunity from the operation of the Statute of Limitations. The doctrine of nullum tempus, &c., only runs in favor of the local, not the foreign sovereign. It may be assumed as a settled principle that when a sovereign becomes a member of a trading company he divests himself, with reference to the transactions of the company, of the prerogatives of sovereignty, and assumes the character of a private citizen. See Angelí on Limitations 33-40; 2 Brock C. C. R. 393; 3 Pet. U. S. R. 30.
    “ Instead of communicating to the company its privileges and prerogatives the sovereign descends to a level with those with whom it associates, and takes the character which belongs to them in the business which is to be transacted: United States Bank v. Planter’s Bank of Georgia, 9 Wheat. 907. The same principle is substantially stated in 11 Pet. 324; 13 How. 12 ; 15 Id. 304.
    “ And although a state cannot be sued, yet if it become interested as a stockholder in a corporation, such interest will not protect the corporation from a suit, and all of its incidents and consequences : 10 Ohio R. 476. The United States being a stockholder in the bank, is so far a party to all suits to which the bank is a party, and deeply interested in all of its dealings, yet the doctrine of nullum tempus, &c., will not apply to exempt it from the operation of the Statute of Limitations: United States Bank v. McKenzie, 2 Brock. C. C. R. 393.
    “Although the state is the sole owner in the stock of a banking corporation, it does not affect the right of creditors to be paid cut of property belonging to the bank, and to follow the fund in equity, to secure payment: United States Bank v. Planters’ Bank of Georgia, 9 Wheat. 904; Briscoe v. Bank of Kentucky, 11 Pet. 324; see also 13 How. 12; 15 Id. 304, already cited.
    “If the state of Maryland owned land in Pennsylvania, the power of the latter state to tax it could not be questioned; in fact it would be taxable by our general laws. Why will not the same doctrine apply as to its goods, or chooses in action ? The ability to collect the latter depends on our laws — resort must be had to our courts to obtain redress for non-payment. We protect the property to which that state must look for security of its debt. The loan is to the corporation created by this state, receiving its powers and franchises from Pennsylvania, and why shall not the debt of that state be taxed as well as that due to a foreign subject, which has often been decided to come within our tax laws ? The state of Maryland becomes a lender of money, trades and deals with a Pennsylvania corporation, brings itself thereby down to the level of a private individual, and its debt must bear the same burdens.
    “ It may be conceded that all of our tax laws contemplate that the creditor shall pay the tax on money at interest, yet this state may make the debtor its collector, especially when that debtor is a corporation created by its power and protected by its laws. The Act of 1844 speaks of all public loam or stocks whatever, except those due by this Commonwealth. The Act of 1864 requires retention by the corporation officers from all bondholders or creditors to whom interest is payable, and if a neighboring state chooses to become a lender here, it thus far divests itself of its .sovereignty. True, the loan may have been made for the most beneficial purpose, and with the most patriotic views. Doubtless it was here done to secure the completion of a work through which the people of Maryland would be more cheaply supplied with fuel and other products of this state, and the citizens of Pennsylvania furnished with ready access to a good market, but although this motive might well be considered by our legislature in relieving a sister state from the burden of taxation, it cannot influence the judgment of the court in construing the statutes. The eleventh section of the Act of May 1st 1868, is, if possible, even more explicit in requiring the retention of the present tax by the corporation officers, a portion of which is claimed under that law. Some stress is laid on the words of the Act of April 22d 1846, section 3, to show that persons alone are required to make returns of property, &c., for taxation, but after the most careful reading of that act we are of opinion that it has no bearing on the present case. This assessment, so far as regards the taxes of 1864-5-6-7, must be sustained, if at all, under the Act of 1844. The state of Maryland is the immediate beneficiary of the interest on the loan here, and its property alone can be looked to. We are referred to the decision of the Secretary of the Treasury, that the Acts of Congress did not contemplate a deduction from the interest due to a state by the corporations to which it had made loans, but only from that of the people of a state. It may be observed that the wording of the Acts of Congress is different from the statutes of Pennsylvania, and therefore must receive a different construction, but as the United States does not suffer its obligations, business, institutions or sources of revenue to be taxed by the state, so it extends a like comity to the revenues of the various states— will not impose any obligations in the form of taxes on the money which comes into their treasury, and it has been seriously questioned in several of the states, whether Congress could tax the judicial proceedings. The decision of the honorable secretary, although a correct exposition of the laws of Congress under their wording, and the connection between the state and Federal governments, has little bearing on the present case, at least is nowise conclusive.
    “ It is claimed, however, that the imposition of this tax impairs the obligation of the contract between the debtor and creditor; that to the extent of the tax it reduces the claim. All property, whether real, personal or mixed, is subject to taxation, and although its value may be thereby lessened, yet every member of society knows that he must contribute to the support of the government in proportion to his means and the amount of property protected. The debt due is no more sacred than the land which he has bought and for which he has paid the state, yet, in the absence of express contract, it is taxable for all time, or so long as the government requires revenue.
    “ It is immaterial to the creditor whether he pays the tax directly or it is advanced under authority of law by his debtor and deducted from the obligation. That the tax laws do not impair the obligation of the contract has been repeatedly decided by the courts of this state, and not held otherwise by any courts that we are aware of.
    “ Certainly the state of Pennsylvania might require the assessment of a tax on every mortgage, judgment or bond found of record or due here, and if the same was not paid collect it by attaching the claim. The system adopted is only a more convenient and less expensive method of collecting the tax. The case of Jackson v. Northern Central Railway Company, 7 Wall. 262, decided by the Supreme Court of the United States, has been pressed on our attention as ruling that as the non-resident of the state could not be directly taxed, therefore his debt due in Pennsylvania was also exempt. But that case is disregarded by our own Supreme Court, in Maltby v. Reading Railroad Company, and many other cases reported and unreported. The court declared that it was not a correct exposition of our tax laws. We are not bound by the decisions of our Supreme Court, except in cases arising under the Constitution of the United States, or where the Federal judiciary has superior jurisdiction. Should these courts hold that this tax impairs the obligations of the contract, which is scarcely possible, our judiciary must give way. It might possibly be decided, as, intimated in the dicta of some very able judges, that the states must have jurisdiction either over the persons or the real or strictly personal property of non-residents before they can tax them, and that taxes assessed on their debts, as is done in Pennsylvania, is in violation of the law of nations; therefore, the Federal courts may exercise the power of declaring our laws a violation of international rights, and thus set them at nought. When they do so, the judiciary of Pennsylvania must conform to that ruling.
    “ On the whole, the jury is instructed that every point of defence raised has failed, and your verdict must be in favor of the Commonwealth for the amount found due on the settlement, with interest thereon, at the rate of twelve per cent, per annum, from the expiration of two months from the date thereof.”
    The court negatived all the defendant’s points for the reasons given in the charge.
    The verdict was for the Commonwealth for $21,930.82.
    The defendants removed the record to the Supreme Court by writ of error and assigned for error the denial of their points.

      J. F. G-owen, for plaintiffs in error,
    examined, compared and discussed the several Acts of Assembly of Pennsylvania, relating to taxation of debts, &c. He cited also as to what was intended by “money owing by solvent debtors:” Hoyt v. Commissioners, 9 Smith N. Y. 224; State v. Ross, 3 Zabriskie 525; Davenport v. Mississippi & M. Railroad, 12 Iowa 539; Spangler v. York Co., 1 Harris 322.

      J. <7. Knox and F. O. Brewster, Attorney-General, for Commonwealth,
    referred to the several Acts of Assembly; Maltby v. Reading & C. Railway, 2 P. F. Smith 140; Pittsburg, F. W. & C. Railroad v. Commonwealth, 16 Id. 73; Delaware, L. & W. Railroad v. Commonwealth, Id. 64; Easton Bridge Co. v. Northampton Co., 9 Barr 415; Dobbins v. Erie Co., 16 Peters 447; Bank of Commerce v. New York, 2 Black 620; McCullough v. Maryland, 4 Wheaton 116; Passenger Cases, 7 Howard 452; Biddle v. Commonwealth, 10 S. & R. 408.
    May 27th 1872.
   Judgment was entered in the Supreme Court,

Per Curiam.

— The subjects of the exceptions taken in this case have commanded our attention, and we are of opinion that nothing more is needed to be said in regard to them than that which has been said by the learned judge in his charge to the jury. The judgment is therefore affirmed for the reasons therein stated.

Judgment affirmed.


author: Thompson, C. J.

text:
    Huntingdon County versus The Commonwealth.
    1. A county cannot be required to pay the costs of a defendant in cases of felony.
    2. The 64th section of Act of March 31st 1860 (Criminal Procedure), authorizes the payment by the county of the costs of prosecution only.
    3. The Act of March 20th 1797, directing payment by the county of all costs in criminal prosecutions on acquittal, is supplied by the Act of 1860.
    4. Since the Act of 1860, the costs of defendant are as at common law, by which none are allowed him. •*
    5. Franklin County v. Conrad, 12 Casey 317, followed.
    May 23d 1872.
    Before Thompson, O. J., Agnew, Sharswood and Williams,' JJ.
    Error to the Court of Common Pleas of Huntingdon county: Of May Term 1872, No. 39.
    This was a mandamus at the relation of A. B. Crewitt and others, against the County Commissioners of Huntingdon county, commanding them to pay the relators the costs of the defendant in the case of the Commonwealth against A. H. Crewitt, who had been indicted in the Court of Oyer and Terminer for murder and acquitted.
    A. H. Crewitt, who had been bound over to January Term 1870, on the 11th of that month, petitioned the court setting forth that he was unable to pay the expenses of his witnesses and other expenses necessary for his defence, and praying “ the court for an order that the county pay the costs of process and of witnesses for him.” On the same day the court ordered “ that process issue at the expense of the county for defendant’s witnesses.”
    The trial commenced the same day. On the 19th of January, after the trial and acquittal, the defendant’s bill costs for subpoenas, daily pay and mileage of his witnesses, amounting to $137.08, was filed.
    On the 2d of June 1870, on the petition of the relators, a rule on the county commissioners was granted to show cause why a mandamus should not issue against them, commanding them to draw a warrant on the county treasurer for the paymentof the defendant’s bill of costs. On the 22d of December 1871, the court (Dean, P. J.) made the rule absolute and awarded a peremptory mandamus, commanding the commissioners forthwith to issue “ their warrant on the county treasurer for fees and costs” in the defendant’s bill.
    The county removed the record to the Supreme Court and there assigned for error the order of January 11th 1870, and awarding the mandamus.

      J. H. Musser and JR. B. Petrilcin, for plaintiff in error,
    cited Act of March 31st 1860 (Criminal Code), § 64, Pamph. L. 445, 1 Br. Purd. 391, pl. 67; Act of March 20th 1797, § 1, 3 Sm. L. 281. Costs are not given by the common law in criminal cases, and county commissioners have no authority to pay them: Commonwealth v. Horner, 10 Casey 440; Franklin Co. v. Conrad, 12 Id. 317.

      J. JET. Grenier (with whom was R. M. Speer), for relators,
    referred to same Acts of Assembly and Act of June 13th 1836, §§ 21, 22, Pamph. L. 787, 1 Br. Purd. 233, pl. 136, 137, authorizing courts to establish rules for regulating their practice: Mylin’s Estate, 7 Watts 64 ; Vanatta v. Anderson, 2 Binney 417; Venango Co. v. Durban, 3 Grant 66; Commissioners v. Hall, 7 Watts 290; Commonwealth v. Harman, 4 Barr 269; Richardson v. Clarion Co., 2 Harris 198.
    1872,
   The opinion of the court was delivered,-by

Thompson, C. J.

— We said in the case of The County of Franklin v. Conrad, 12 Casey 317, “ that the recovery and payment of costs in criminal cases are so entirely dependent on statutory regulations in Pennsylvania, that it is indispensable for every claimant to be able to point to the statute which entitles him to receive what he claims.”

It is not worth while to inquire into the right of the defendant to prosecute the mandamus in this case without making it appear that he had paid the bill and was entitled to receive the costs; without resolving this, we may inquire where the statute is which requires the county to pay the defendant’s costs in cases of felony when he is acquitted by a traverse jury? The Act of 1797, which provides that all costs accruing on bills of indictment charging a “felony” or other indictable offence, shall, if the party be acquitted, be paid by the county, is not the law of the ease now before us; that stands upon the 64th section of the Criminal Procedure Act of 31st of March 1860. That section charges the . costs of prosecution on the county when a defendant is charged and acquitted of felony. It makes no provision for the case of I the costs accrued in the defence. That is left as at common law, where no costs are allowed a defendant.

The hardship to witnesses for an insolvent defendant is great to be obliged to attend the trial without pay. That may bé justified perhaps on the ground of duty to the community ; and so, as to the officers’ costs in issuing and serving process for witnesses. They take their offices cum onere, however. But the hardship is greater where witnesses are too poor to pay their own expenses while attending the court in obedience to its process. The court ought to have the power to provide for such cases, and in some counties they do it. But it is questionable whether the county could be compelled to pay this expense. The legislature ought to provide for such cases. A witness may be poor and sick and far away from the county seat; to compel attendance under such circumstances, would, and often is, sheer cruelty. This should be provided against most assuredly.' This court cannot do it. We construe but do not make the law.

On the argument I was inclined to think the court was right in granting the peremptory mandamus against the commissioners; more especially, so far as the public officers were concerned, but on reflection and examination of the Act of 1860, which undoubtedly supplies the rule in relation to costs in criminal cases, I feel that this would have been an incorrect view to take.

The judgment of the court below is therefore reversed, and the writ of mandamus is set aside and reversed.


author: Agnew, J.

text:
    Rutherford’s Case.
    1. The Act of May 9th 1871, providing for reopening drains in lands which have once been drained, on the application of contiguous owners and at the expense of the owner of the land on which is the drain, is unconstitutional.
    2. The act provided for an ex parte appointment of commissioners to view and determine whether the land could he redrained, report what drains should be made, their dimensions, &e.; the act required no notice to the landowner as to appointment of the commissioners or their report, on the filing of which the owner is to be ordered to open the drains within a given time under a daily penalty. This is not due process of law and is contrary to the Bill of Bights.
    3. In cases where a law omits to require notice and it might be supplied by actual notice, such notice must judicial notice.
    4. The legislature cannot impose unjust, arbitrary and grossly unequal burdens upon individuals, even for a public purpose.
    5. Washington Avenue, 19 P. E. Smith 352, followed.
    May 23d 1872.
    Before Thompson, O. J., Agnew, Sharswood and Williams, JJ.
    Certiorari to the Court of Quarter Sessions of Dauphin county: No. 27, to May Term 1872.
    This proceeding was commenced September 2d 1872, by the petition of William Rutherford, to the Court of Quarter Sessions, under the Act of May 9th 1871 (Pamph. L. 263), entitled “ An act for redraining wet and swampy lands.”
    The act provides:
    See. 1. That any contiguous swampy or wet lands belonging to several owners disjointly, which have once been drained and the drain or drains are not property opened and in good condition, shall be redrained under the following regulations.
    Sec. 2. On the petition of an owner of such lands, the Court of Quarter Sessions shall appoint three disinterested commissioners, with power to view the lands described in the petition, and if in their judgment to redrain them, shall be practicable, they shall report to the court setting forth the names of the owners through whose land the drain needs to be reopened and attach a draft of the drains to be reopened with their dimensions.
    Sec. 3. On presenting the report, the court shall order a notice to be served by a constable on the landowners through whose land the drains need to be reopened, ordering him to open the same through his land at his own expense, according to the draft attached to the commissioners’ report within a time to be fixed by the court, not exceeding sixty days.
    Sec. 4. The constable within ten days after the time set by the court, shall make return to the clerk of the court, of the service of the notice and the compliance or non-compliance with its order; and if he return that the order has not been complied with, a penalty of $10 a day from the time of filing the constable’s return, until the drain shall be reopened, shall be imposed upon the non-complying owner, recoverable in the name of the Commonwealth, by the petitioning owners, when over $50 shall become due, one-half to the person suing and the other half to the use of the directors of the poor.
    Sec. 5. The costs of the proceeding to be borne by the party through whose land the drains may be so reopened.
    Rutherford’s petition set forth: “ That there are contiguous swampy or wet lands belonging to the several owners, disjointly, viz.: James Young, Wm. W. Rutherford and James B. Henderson, situate, &c., which have once been drained, and that he is one of the owners of said lands, and that the drain or drains passing through the lands of James Henderson, who is also one of the owners of said lands, are not properly opened and in good condition, thereby preventing the free passage of water through said ditches into the Susquehanna river, and damaging the adjoining lands;” and praying for the appointment of commissioners under the act.
    On the 6th of September the court appointed three commissioners, who reported that having viewed the lands mentioned in the petition, they found that it was practicable to redrain them, and for that purpose the drains on the lands of Rutherford and Henderson should be opened to the main channel. They then reported the manner in which the drains should be made and their dimensions, &c., and accompanied their report with a draft.
    The report was filed October 4th, and on the 7th of October Henderson filed the following exceptions in the Quarter Sessions :—
    1. Because private property is taken for a private use and purpose without an equivalent.
    2. Because the property of one citizen is taken and transferred to another by an ex parte proceeding.
    3. Because a duty is enjoined and a penalty imposed upon one person, for the private benefit of another, at the costs and expense of the former.
    4. Because a person’s property cannot be taken for private purposes, even with compensation.
    5. Because an act is required to be done by one person, to his great inconvenience and loss, without any notice given to him. All which acts to be done and performed by him he believes are contrary to the spirit of the Constitution and the law of the land.
    The court (Pearson, P. J.) overruled the exceptions and directed that an order to open the drains be issued.
    Henderson removed the proceedings to the Supreme Court by certiorari, and assigned for error, that:
    “ The Act of 9th May 1871, on which these proceedings are based, is unconstitutional and void; and the court erred in exercising jurisdiction under it.”

      J. H. Weiss, L. W. Hall and F. Jordan, for certiorari.
    — The Act of Assembly is not a legitimate exercise of legislative power. It provides for no notice to parties interested, no hearing in court or elsewhere, no approval by the court of the action of the commissioners, and no right of appeal. By the Constitution of the United States, Article 5, no one “ shall be deprived of life, liberty or property, without due process of law.” By section 9, Article 9 of the Constitution of the state, no one “ can be deprived of his life, liberty or ^property, unless by the judgment of his peers, or the law of the land.”
    An Act of the Legislature is not such a law : Norman v. Heist, 5 W. & S. 171; Greene v. Briggs, 1 Curtis 311; Taylor v. Porter, 4 Hill 146. “In order to the validity of any judicial trial, the parties interested should be informed of of the nature and cause of the charge and have an opportunity to answer and defend State v. Snow, 3 Rhode Island 64; Greene v. James, 2 Curtis 187; Brown v. Hummel, 6 Barr 86. A statute is constitutional or not as it passes the legislature; and its validity cannot depend on what may be done or omitted by others after its enactment. ‘ Judicial proceedings according to the course of the common law,’ means that the right of a person to his life, liberty or property, shall not be divested, except by a judicial determination after due notice in pursuance of a general law Mason v. Messenger, 17 Iowa 261, 267 ; James v. Reynolds, 2 Texas 261; Van Zant v. Waddell, 2 Yerg. 270, 605; Jones v. Perry, 10 Id. 59; Budd v. State, 3 Humph. 483; Holden v. James, 11 Mass. 396; Dartmouth College v. Woodward, 4 Wheat. 518; White v. White, 5 Barb. S. C. 481; Bank of Columbia v. Okely, 4 Wheaton 235; Woodcock v. Bennet, 1 Cowen 740; Hoke v. Henderson, 4 Dev. 15 ; Ervine’s Appeal, 4 Harris 256 ; Arrowsmith v. Burlingin, 4 McLean 498 ; Reed v. Wright, 2 G. Green 22; 3 Story on Const. U. S. 661; 2 Kent’s Com. 13; Palairet’s Appeal, 17 P. F. Smith 479; Empire City Bank, 18 New York 199, 215; Rockwell v. Nearing, 35 Id. 302. The right of eminent domain, or inherent sovereign power, gives the legislature the control of private property for the public use Pittsburg v. Scott, 1 Barr 309; Bloodgood v. Railroad Company, 18 Wend. 14; Lambertson v. Hogan, 2 Barr 22; Philadelphia Association v. Wood, 3 Wright 73; Schafer v. Eneu, 4 P. F. Smith 304; Cooley’s Cons. Lim. 530, 531.

      O. F. Johnson, contrá.
    — To make an Act of Assembly unconstitutional, it must bear upon its face a direct inconsistency with the letter of the Constitution: Sharpless v. Philadelphia, 9 Harris 147; Monongahela Navigation v. Coons, 6 W. & S. 100; Phila. & Trenton Railroad Co., 6 Wharton 25; Watson v. P. & C. Railroad Co., 1 Wright 469.
    The state Constitution must have a liberal construction, and whatever is not prohibited by it the legislature has jurisdiction of: Commonwealth v. Hartman, 5 Harris 118 ; Lewis & Nelson’s Appeal, 17 P. F. Smith 153; Commonwealth v. Maxwell, 3 Casey 444; Philadelphia v. Field, 8 P. F. Smith 320.
    July 13th 1872,
   The opinion of the court was delivered, by

Agnew, J.

— The Act of 9th May 1871, P. L. 263, cannot be supported as a proper exercise of legislative power. It infringes the right of private property contrary to the true intent and meaning of the 9th article of the Constitution. We have had occasion lately, to discuss the inviolable character of this right, in the case of Washington Avenue, 19 P. F. Smith 352, and will not repeat what wa? then said. It is not competent for the legislature to impose unjust, arbitrary and grossly unequal burthens upon individuals even for a public purpose; and it is less so, when the purpose is private and the proceeding not in due course of law, and highly penal; as in the present case. Before discussing the objectionable features of the act, it is proper to distinguish it in some respects, that we may not seem to decide more than the case before us. This act applies to contiguous swampy lands belonging to several owners disjointly, and that have been once drained. There is nothing in the law, or in this proceeding, to indicate that the owners of such adjoining lands are under a common duty to drain their lands, either by contract with each other, or by reason of a burthen imposed, by a common predecessor in an entire title, under which all claim their several parts. We intend to express no opinion upon such a case, or to say that a remedy may not be provided for a specific performance of such a duty. In the opinion of the judge, it is said that the deeds, under which Mr., Henderson the defendant claims, require the drainage to be done. This, however, is not set forth in the petition or other part of the record, and if it had been, it does not appear that there is any privity in title or covenant, between William Rutherford and the defendant, which would entitle the former to enforce the duty against the latter by action or otherwise. The presumption would be different, arising from the recital that he is the owner of the adjoining tract, disjoinily from the defendant. There is, therefore, nothing in the act or the case itself, except that these lands have been once drained; but upon what terms or whether a continuing duty exists, it does not appear. The case therefore stands simply in the attitude that a law commands an owner of land, by a several and unconnected title, at his own expense, to drain his land, for the private and individual benefit of his neighbor, in the manner and to the extent that commissioners shall direct, in a proceeding ex parte, and without notice to him, under a penalty of ten dollars a day, for his omission to drain it, after notice of the ex parte determination of the viewers, and a certain time elapsed. Without a duty to redrain set forth and proved, clearly no law can compel a several owner of land disjointly from others, to reopen drains at his own expense for the benefit of others. This is an interference with private right not within the grant of legislative power. True, it may be greatly to his neighbor’s advantage he should do this; and so it would be to keep an open way in good repair over his land, for his neighbor’s benefit, and which his neighbor had been using, but without title. But men purchase land with their eyes open, and if it be swampy or hilly, or stony, or otherwise less valuable than their neighbors’, they take it as it is, and cannot call upon their neighbors to help them to level it, or drain it, or pick the stones from it. Of course we do not refer to that police power of the state, which for the purpose of preserving the public health, or any other legitimate public necessity, enables the legislature to drain unhealthy swamps, or do other acts essential to the public welfare. The whole proceeding under this act is not only out of the course of the common law, but is out of the due course of law. It imposes a burthen without a duty, and without notice of the proceeding which imposes it; and for a refusal to bear it, it exacts a severe penalty without a previous trial. The law provides for the ex parte appointment of commissioners to view the land, determine whether it can be redrained, and report what drains shall be reopened with their dimensions, and a draft of the same. Of this no notice is required to be given.

On the report of the commissioners, the court, shall immediately order a written notice to be served requiring the party to open the drain or drains through his lands as required by the commissioners, at his own expense and within a given time, not to exceed sixty days; and on failure to comply, then to pay a penalty of ten dollars a day, to be recovered in the name of the Common■wealth, before a justice of the peace, in sums of fifty dollars, one-half for the use of the petitioner, and the other half to he paid into the county treasury for the use of the poor. Thus the first thing the landowner may know, he finds himself made liable to an imposition without trial or hearing, and subjected to a heavy penalty for not submitting to it. This is not due process of law. It is contrary to the Bill of Rights, and he is deprived of his money or its worth, without the judgment of his peers, and not according to the law of the land. It is true, the judge says in his opinion, that Mr. Henderson had actual notice of the proceeding. But no notice appears in the record, and such notice referred to is merely accidental. It is not judicial notice, or notice by virtue of any legal order. There may be cases where the omission of a law to provide for notice might be supplied by judicial action under the general powers of the court. But then the notice should be the act of the court, and should judicially appear in the record. But such was not this case. No authorities need to be cited for the general principles thus stated, and if any be sought for, the ample brief of the learned counsel of the plaintiff in error will supply all that may be required.

The judgment and order of the Court of Quarter Sessions are reversed and set aside, and the proceedings are quashed at the costs of defendant in error.


text:
    Berg et al. versus Anderson et al.

    1. A testator devised to trustees money invested and real estate for the use of his wife for life, after her decease the trustees “ to hold the same for the sole and separate use and benefit of my two nieces, Elizabeth and Margaret;” one-half the money and two lots to the use of Elizabeth ; one-half the money and four lots for the use of Margaret, “ and at the death of either of my nieces, the portion held for her use, shall vest in her heirs absolutely for ever ; and at the death of the survivor of my nieces, and provided my said nieces or either of them should die without heirs, or their heirs or the heirs of either of them should die in their minority and without issue, then and in that case the portion above devised to the use of such niece, or the f>ortion of both, provided the contingency happens to both, shall vest absoutely in the heirs of my brothers and sister, viz.: John, Samuel and Martha, whose heirs I am unable to name.” Held, (1.) ‘‘ Heirs” meant children of his nieces. (2.) The estate limited to the nieces was defeasible on their death without issue, or of their “ heirs” in their minority without issue. (3.) The limitation over to the heirs of the testator’s brothers and sister was on a definite failure of issue of the nieces.
    2. One of the nieces died unmarried and without issue, the other married after the death of the testator and died leaving one ehild (who died), and her husband; the testator’s widow afterwards died. Held, that the devises to the nieces and “ their heirs” failed and the heirs of the testator’s sister and brothers took a fee in the devises.

      May 24th 1872.
    Before Thompson, C. J., Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Huntingdon county: Of May Term 1872, No. 60.
    This was an amicable action of covenant and case stated in which William Y. Anderson and others, children and heirs at law of John Anderson, Samuel Anderson and Martha Whittaker .were plaintiffs and Frederick P. Berg and others were defendants.
    The action was instituted December 28th 1871, for enforcing the payment of the purchase-money of six lots of land in the city of Pittsburg, formerly the property of William Anderson, deceased, which the defendants by articles of agreement of September 29th 1871, contracted to purchase from the plaintiffs for $17,000, which they declined to pay, alleging the plaintiffs could not convey to them a good title.
    Whether the plaintiffs had such title was the only question raised in the case; and this depended upon the construction of the will of William Anderson, dated November 1st 1843, and proved May 14th 1844.
    Amongst other things, the testator directed all his personal property to be converted into money, his debts collected, the real estate he held in Allegheny City to be sold and the proceeds of the whole to be safely invested; this investment and a house and six lots in Lawrenceville-(the real estate in controversy) he devised to Malcolm Leech and Richard Lea, in trust to have and hold the same, to the sole use a'ndbenefit of his wife for life; “ and after the decease of my said wife, my said executors shall hold the same to and for the sole and separate use and benefit of my two nieces, Elizabeth Anderson, who now resides with me, and Margaret Eaton, daughter of Samuel Eaton, deceased, of Philadelphia, to wit: one-half of the money invested as aforesaid (if any shall remain after the maintenance of my beloved wife, and the payment of her funeral expenses), and the dwelling-house and two lots _ eighty feet on the turnpike by one hundred and forty feet in depth, to the sole use of my said niece, Elizabeth, and the remaining four lots, being one hundred and sixty feet on the turnpike by one hundred and forty feet in depth, together with the remaining half of my money at interest, to the sole and separate use of my said niece, Margaret, and at the death of either of my nieces, the portion held as above directed for her use, shall vest in her heirs absolutely for ever; and so also at the death of the survivor of my said nieces; and provided my said nieces, or either of them, should die without heirs, or their heirs, or the heirs of either of them, should all die in their minority and without issue, then and in that case the portion above devised to the use of such niece, or the portion of both, provided the contingency happens as to both, shall vest absolutely in the heirs of my brothers and sisters, viz.: John Anderson, Samuel Anderson and Martha Whittaker, whose heirs I am unable to name.”
    Elizabeth Anderson, named in the will, was a daughter of Alexander Anderson, a brother of the testator. She married Samuel Evans and had one child, and died intestate about 1855, leaving her husband and child to survive her; the child died a ■minor and without issue about a month after his mother, leaving to survive him his father, who was still living.
    Margaret Eaton, the other devisee, was a daughter of Margaret Eaton, a sister of the testator; she (the niece) died in February 1862, intestate, unmarried and without issue, leaving neither father nor mother, nor brother nor sister of the whole blood, but leaving a sister, Matilda Nesbit,- of the half blood.
    The testator’s widow died March 17th 1868. The plaintiffs as heirs of the sister and two brothers of the testator, took and held possession of the six lots of land.
    By the case stated it was agreed: “ If the court shall be of the opinion that the title to said premises is vested in said plaintiffs in fee, under said will and the facts above agreed upon, so as to enable them to carry out their contract with the defendants, then judgment to be entered in favor of plaintiffs, damages to be assessed by counsel; but if the court shall be of the opinion that the title is not vested in the plaintiffs, the judgment to be entered in favor of defendants.”
    The court below entered judgment for the plaintiffs; this was assigned for error by the defendants on the removal of the case to the Supreme Court.

      S. A. MeQhmg and J. Mellon, for plaintiffs in error.
    — The trust in the nieces was executed : Barnett’s Appeal, 10 Wright 392 ; Physick’s Appeal, 14 Id. 128 ; McBride v. Smyth, 4 P. F. Smith 245. If the nieces took life estates with contingent remainders to their heirs, the child of Elizabeth would take a fee as her heir: Williams on Real Prop. 245. “ Heirs” must be taken in its technical sense and cannot mean children : Criswell’s Appeal, 5 Wright 288.

      S. T. Brown and J. M. Bailey, for defendants in error.
    — The intention is to be ascertained from the words of the will in connection with the circumstances in which the testator was placed: McCullough v. Fenton, 15 P. F. Smith 418. The estate to the nieces was contingent on their surviving the widow; the rule in Shelley’s Case, therefore, does not apply: Fearne on Bemainders 29, 397; 4 Kent’s Com. 230. The proviso if either of his nieces “ should die without heirs,” &c., or the heirs “ all die in their minority,” refers to the contingency happening in the life of the testator or that of his widow: Caldwell v. Skilton, 1 Harris 152. They referred also to Price v. Taylor, 4 Casey 95; Guthrie’s Appeal, 1 Wright 21: Reinhart v. Lanes, Id. 488; Chew v. Chew, Id. 17.
    October 17th 1872,
   The opinion of the court was delivered, by

Williams, J.

— The question presented by the case stated is, whether the plaintiffs under the will of William Anderson, have a valid title to the lots which they sold and agreed to convey to the defendants. If, under the limitations in the will, the contingencies have happened upon which the title was to vest absolutely in the plaintiffs, and the limitation to them is good, then they are the owners of the lots, and capable of making a valid conveyance of them to the defendants. The testator, after providing among other things that his executors should invest the proceeds of the sale of his Allegheny City property, together with the proceeds of the sale of his personal property at interest in good unencumbered real estate security, worth at least one-third more than the amount invested therein, devised the money so invested, and the brick-house and six lots on the south side of the turnpike, in Lawreneeville, in which he then resided, to trustees, to have and to hold the same to the sole use and benefit of his wife during the term of her natural life; and, after the decease of his wife, to hold the same to and for the sole and separate use and benefit of his two nieces, Elizabeth Anderson and Margaret Eaton, to wit, one-half of the money invested as aforesaid (if any should remain after the maintenance of his wife and the payment of her funeral expenses), and the dwelling-house and two lots, eighty feet on the turnpike by one hundred and forty feet in depth, to the sole use of his said niece Elizabeth; and the remaining four lots, being one hundred and sixty feet on the turnpike by one hundred and forty .feet in depth, together with the remaining half of his money at interest, to the sole and separate use of his said niece Margaret. These provisions then follow : “ And at the death of either of my nieces, the portion held as above directed for her use, shall vest in her heirs absolutely for ever; and so also at the death of the survivor of my said nieces; and provided my said nieces, or either of them, should die without heirs, or their heirs, or the heirs of either of them, should all die in their minority and without issue, then, and in that case, the portion above devised to the use of such niece, or the portion of both, provided the contingency happens to both, shall vest absolutely in the heirs of my brothers and sister, viz. : John Anderson, Samuel Anderson and Martha Whittaker, whose heirs I am unable to name.”

It is evident that by “heirs,” the testator meant children or issue of his nieces. They could not die without heirs so long as the heirs of his brothers and sister, named in the will, survived; and it cannot be supposed that he was guilty of the absurdity of meaning that his devise over should depend on an event which could not happen without involving the extinction of its immediate objects. The word “heirs” must therefore be read in the sense of children or issue. But whether the nieces, under the limitations in the will, took each an estate for life, with contingent remainder in fee or in tail to her children or issue, or whether they took each an estate tail in the lots respectively devised to their use, is wholly immaterial. Whatever may have been the nature of the estate respectively limited to the nieces and “their heirs,” it was defeasible upon the death of the former without children or issue, or upon the death of the latter in their minority and without issue. It is admitted that all these contingencies occurred in the lifetime of the testator’s wife, to whom a precedent life estate was given. The devise, therefore, to the nieces and their “heirs” wholly failed, because there was no person in esse to take, under the limitation to them, at the termination of the previous life estate given to the wife. The only question in the case then is, whether the limitation over to the heirs of his brothers and sister is good, or whether it is so remote as to be void. If the limitation to them was upon an indefinite failure of issue, it infringed the rule against perpetuities and was consequently void. But if it was upon a definite failure of issue, it was valid. It is clear that an indefinite failure of issue could not have been intended. The estate in remainder was to go-over on the death of the nieces without heirs, that is without children or issue; or upon the death of the children in their minority and without issue. The limitation must, therefore, take effect, if at all, within twenty-one years after the death of the nieces; and the contingency, upon which the limitation depended, must necessarily happen within that time. The limitation, therefore, was not too remote, for the event upon which it was to take effect must occur within a definite period, that is, within a life or lives in - being, and twenty-one years afterwards. The case is clearly within the twelfth rule laid down by Mr. Smith for determining whether an indefinite failure of issue is meant, or merely a failure of issue within a certain time, in cases of a limitation over on a failure of issue. The rule is as follows: Where property is devised to a person and his heirs, with a devise over if he should die without leaving issue, or having such issue, such issue should die under twenty-one, without issue; it will appear, from the ninth of the foregoing rules, that the failure of issue which is meant, is a failure of issue of the children of the prior taker, at the death of such children under age; so that the limitation over, instead of being a remainder after an estate tail, or an executory limitation void for remoteness, is good as a conditional limitation, by way of executory devise, to take effect, at the farthest, within a life in being and twenty-one years from the death of the testator: Smith on Ex. Int. § 552, pp. 279-80.

It follows that under the limitations of the will in this case, the title to the lots in question, is absolutely vested in the plaintiffs as the children and heirs of the testator’s brothers, John and Samuel, and of his sister, Martha; and, therefore, the defendants (the plaintiffs in error) have no defence to the payment of the purchase-money arising from failure or defect of title.

Judgment affirmed.