author: Mr. Justice Paxsqn

text:
    Trout versus McDonald.
    1. A lease which gives the right to take out all the coal beneath a certain surface confers also the right to make all necessary openings to reach the coal. .
    2. T. made a voluntary conveyance of a farm to his wife in 1867, but remained in possession of the property till his death, in June 1873. In April 1873, he granted to McD. the right to mine coal on a part of this farm. McD. worked a mine under the lease during T.’s lifetime and after his death, with the Avidow’s knowledge. McD. never knew of the existence of this deed till July 1874. It was not recorded till August 1874. After the husband’s death his widow received payments of royalty under the lease, but afterwards filed a bill to restrain MTcD. from entering upon the property to mine coal: Held (affirming the court below), that she had ratified and confirmed the lease and was bound by it.
    3. Whether .she might have avoided the lease after her husband’s death was not decided.
    4. The fact that a mere “ wet-weather” spring might be injured by working the mine is not important. Even if it was a valuable spring, it seems that its destruction, if a necessary incident to mining under the lease, would be damnum absque injuria.

    November 20th 1876.
    Before Agnew, C. J., Sharsavood, Gordon, Paxson and Woodward, JJ. Williams and Mercur, JJ.,absent.
    Appeal from the Court of Common Pleas of Mercer county: Of October and November Term 1876, No. 210.
    Margaret J. Trout filed a bill in equity against John McDonald, to restrain him from sinking a certain shaft on her land, and from entering thereon, for the purpose of mining coal. The facts Avere as folloAVS:—
    In December 1867, M. C. Trout, the husband of the plaintiff, made a voluntary conveyance of a farm of 100 acres of land in Mercer county to his Avife. This deed Avas not recorded till August 1874, and McDonald, the defendant, never knew of its existence till July of that year. In April 1873, Trout, by a writing under seal, granted McDonald the “ privilege of going on the south end of his farm, near No. 14 school-house, and from thence west to the old barn, and mining and taking out all the coal he could reach beneath the surface,” for a royalty of thirty cents per ton, and also “to work the mine in such manner as to do the least possible damage to the land, to fill up all holes made, and to level off all banks and ridges,” &c. The plaintiff was present at the execution of this lease, and knew the contents of it. Trout died in June 1873. Up to the time of his death there had been no visible Change in the possession of the farm, but the husband remained in possession with his wife till his death, exercising all necessary acts of ownership. The plaintiff did not notify McDonald of her title till July 15th 1874, but, on the contrary, she allowed him to work under the lease, and accepted about $200 from him as royalty thereunder. The defendant had been mining coal through shaft No. 1, under the lease, during Trout’s lifetime and after his death, and had sunk also a trial shaft, and when this bill was filed was about to open another shaft, No. 3, upon the property described in the lease, to the northeast of the old barn, and distant from the first shaft about 1000 feet. To restrain the defendant from sinking this shaft, and from entering on her land under the lease, was the object sought by the bill. The bill further alleged probable damage to a spring near shaft No. 3. This spring, however, appeared to be a “ wet-weather” spring, of no particular value.
    The court below, Maxwell, P. J., made a decree dismissing the bill, from which the plaintiff appealed.

      Magoffin & Tanner, for the appellant.
    McDonald had nothing more than a license to go on the land near the school-house, and make a single opening or shaft, and from that to take out coal lying between the school-house and barn.
    It cannot be held that Mrs. Trout ratified the lease, as it was not her act, nor the act of her agent. In Brown v. Bennett, 25 P. F. Smith 420, the agreement for the sale was the wife’s, and the case does not apply.

      W. W. Mason, for the appellee.
   Mr. Justice Paxsqn

delivered the opinion of the court, January 2d 1877.

There was no clear and distinct finding of the facts by the master in this case. So far as they are stated at all it is done argumentatively. This omission has been supplied by the learned judge of the court below, who has found the facts clearly, and.as the evidence shows, in the- main correctly. We may therefore dismiss, without further remark, those of the specifications of error that relate to questions of fact. It remains but to inquire whether the conclusions of law arrived at by the learned judge are correct. Passing by the question, raised by the first assignment of error, as of no possible importance in this case, we have but two prominent questions, viz., 1. Whether by a fair construction of the lease of M. C. Trout to the appellee the latter was confined to one opening ; and 2. Whether the appellant was bound by the lease executed by her husband, and if not, whether she is now estopped by her own acts from denying its validity. By the terms of the lease between M. C. Trout and John McDonald, the appellee, the privilege was granted to the latter “ of going on the south end of his (Trout’s) farm, near No. 14 school-house, and from there west to the old barn, and mining and taking out all the coal he can reach beneath the surface, and removing the same from the premises, &c.” McDonald was to pay Trout thirty cents per ton for all coal taken out; to work the mine in such manner as to do the least possible damage to the land; to fill up all holes -made, and level off all banks and ridges, so as to leave the surface smooth and naturalf The lessee made an opening near No. 14 school-house, and after taking out all the coal he could there mine with profit, made another opening near to, but east of the old barn. It is contended by the appellant that the said opening near the barn was not authorized by the terms of the lease; that said lease contemplated but one opening, and the taking out so much coal only as could be reached therefrom. The language of the lease is not very clear upon this point, but we think there is enough to show the intent and meaning of the parties. The thing for which the parties were contracting was the coal between certain points. It is a fundamental rule, in the interpretation of a deed or lease, that it is to be taken most strongly against the vendor or lessor. Applying this rule to this lease, it seems clear that it gave the lessee the right to mine all the coal that he could reach beneath the surface from No. 14 school-house west to the old barn. We regard the reference to the school-house and barn as merely descriptive of the territory leased and to be mined. There is nothing in the language of the instrument necessarily to restrict the number of slopes or shafts. If we are right in our construction of the lease, that it applied to all the coal between the points referred to, the right to make the necessary openings to reach it would follow by implication, unless restrained by the express words of said lease. It is conceded that as many test holes may be sunk as may be necessary. Why not as many shafts ? We do not think that M. C. Trout, were he still living, would have any equity to restrain his lessee from taking out coal from the new slope. Is his wife, the appellant in this case, in any better position ? The learned judge of the court below finds as a fact that the deed from M. 0. Trout to the appellant was purely voluntary; that it was not recorded until more than a year after his death; that the husband remained in possession up to the time of his death, exercising acts of ownership over the property; that the appellant was present when her husband gave the lease to McDonald, the appellee; that she knew its purpose, and did not then, nor until after the 15th of July 1874, inform the appellee of the existence of her deed, much less make any claim to him for the land described in it. It is said, however, that the answer of the appellee does not deny the title of the appellant. This is true to a certain extent. There is no denial of the execution of the deed from M. C. Trout to his wife. But an adverse title is set up to the extent of the lease, derived from M. C. Trout, executed in the presence of the wife, with her knowledge and without any objection from her. All this might not estop the appellant from avoiding the lease after discoverture; but we have the further fact expressly found by the court beloAv, that, “subsequent to her husband’s death, Avhen a single woman, and before she notified the defendant from sinking said No. 3 shaft or mine, the plaintiff, with full knowledge that defendant had been mining by virtue of said lease, received from him about $200 royalty to apply on coal so mined.” Conceding that the appellant had the right to a\'oid the lease after her husband’s death, here Avas a deliberate ratification and affirmance of it. It was not done in ignorance of her rights. She knew all about the lease, and it would only have been common justice and common honesty to have notified the appellee of her rights at the earliest moment. Instead of doing so, she withholds her deed from record for a considerable time after her husband’s death; allows the appellee to go on with his improvements for some time before she informs him of her claim, and receives $200 royalty for coal mined under the lease. It was then too late for her to repudiate it. It was competent for her to affirm the lease after her coverture had ceased: Brown v. Bennett, 25 P. F. Smith 420.

We do not attach much importance to the matter of the spring. The court below found the fact that it was a mere “wet-weather” spring. Were it otherwise, if its destruction Avas a necessary incident of mining under the lease, it would be damnum absque injuria.

The decree is affirmed; the costs of the appeal to be paid by the appellant.


source: Caselaw Access Project

author: Mr. Justice Gordon

license: Public Domain

text:
    Shamburg versus Ruggles.
    1. The members of a firm doing a banking business under the name of “ The Citizens’ Bank,”' are not dormant partners, and are all individually liable for the debts of the firm; and a member of such a partnership, upon 'withdrawing from it, must give notice of his withdrawal as in the case of ordinary partnerships; otherwise he remains liable for the subsequent debts of the firm.
    2. A new partner entering a firm is not liable for the antecedent debts of the firm, unless he has agreed to assume them.
    3. Where S. joined an association doing a banking business as “ The Citizen’s Bank” some months after it was formed, and became a director in it, and when he withdrew, in December 1872, no notice was given of his withdrawal, but, on the contrary, his connection with the bank as a director continued to he advertised, though against his wishes, till -June 1873 : Held, that he was liable for a deposit made in January 1873, although the depositor had never known that he had been a member of the firm : Held, in the absence of any evidence that he assumed the debt, that he was not liable for a deposit made before he became a partner, and that the payment of interest on such deposit while S. was a partner, even with his knowledge, was not, of itself, enough to show that he had assumed the antecedent debts of the firm.
    November 20th 1876.
    Before Agnew, C. J., Sharswood, Gordon, Paxson and Woodward, JJ. Williams and Mercur, JJ., absent.
    Error to the Court of Common Pleas of Crawford county: Of October and November Term 1876, No. 12.
    . Assumpsit by B. E. Ruggles, to the use of H. N. Hall, against Garson Shamburg and others, associated and doing a banking business as “ The Citizens’ Bank,” to recover the amount of two deposits alleged to have been made by him with the defendants. Shamburg (who alone took this writ of error) pleaded non-assumpsit and that he was not a partner with the other defendants, as to the subject-matter of this action. At the trial, before Lowrie, P. J., these facts appeared:—
    In September 1870 certain persons associated themselves together as a species of joint-stock association to do a banking business as “The Citizens’ Bank.” In June 1871 the defendant, Shamburg, became a member of the association and continued to be so until December 1872. He was a director of the bank during a part of 1872 and was so advertised in the local newspapers from early in 1872 until June 1873, some months after he had withdrawn. There was evidence tending to show that early in the spring of 1873 he had required that his name should be withdrawn from the advertisement.
    Ruggles made his first deposit (of $700) in January 1871 (before Shamburg became a partner), and his second in January 1873 (after Shamburg ceased to be a partner). Interest was paid to him on the first deposit on January 19th 1872, and on January 4th and October 4th 1873, and on the second deposit, on October 4th 1873. There was no evidence as to whether this interest was _ paid with Shamburg’s knowledge and consent. There was nothing else to show an arrangement upon Shamburg’s part to assume the debts of the firm due when he joined it. Buggies testified that he did not inquire and did not know who the partners were. The record did not bring up the articles of partnership.
    The court refused the defendant’s points (which need not be given here), and charged the jury as follows: “ It seems fair to infer that these defendants, buying stock in the bank as it stood, without any separation of past from future effects and liabilities, and continuation of the business without any discrimination between past or future profits, and paying (it may be presumed) debts and depositors and interest on this very claim: it is fair to imply that they assumed the payment of the $700. ' The other, if made while Shamburg was still published as a partner, must be considered as a debt contracted by him.”
    There was a verdict for the plaintiff for $1079. After judgment thereon, Shamburg took this writ of error, assigning as error the refusal of the defendant’s points and the above charge.

      Roger Sherman, for the plaintiff in error.
    As Shamburg was not a partner when the first deposit was made, it must be shown, in order to charge him, that he expressly assumed the prior indebtedness of the firm. There is no presumption that he did so, especially in the case of an unknown partner : Babcock v. Stewart, 8 P. F. Smith 179; Coll. on Part., §§ 521, 524; Story on Part., §§ 152, 153, 159 ; and the payment of interest alone is not enough to render him liable: Kirwan v. Kirwan, 2 C. & M. 617; Ex parte Peele, 6 Ves. 602.
    As to the second deposit the plaintiff never knew that Shamburg was a partner and the name “ The Citizens’ Bank,” disclosed no liability on his part; Shamburg was,-therefore, as to the plaintiff, a-dormant partner, and notice of his retirement was unnecessary : Story on Part., § 159; Coll. on Part., § 120; Armstrong v. Hussey, 12 S. & R. 315. Deford v. Reynolds, 12 Casey 325, does not rule this case, for there the firm name was “M. & Company,” and it was held that this was notice to all the world that there was some one besides M. in the firm, and that this was inconsistent with the idea of such a person being a dormant partner. In that case Strong, J., approves Mitchell v. Dall, 2 Har. & G. 172, where it is said that “ every partner is dormant unless his name appear in the firm or is embraced under general terms, as the name of one of the firm and company.” Therefore if the firm name gives no information as to those who compose the firm, credit is given to the partnership and not to the individuals who compose it. It follows that where one is not actually a partner and was not known as such, there is no reason for making him pay the debts of others ; Waugh v. Carver, 1 Sm. Lead. Cas. 1289 ; Bowie v. Maddox, 29 Ga. 285; Carter v. Whalley, 1 B. & Ad. 11; Dickinson v. Valpy, 10 B. & C. 140.
    The unauthorized publication of Shamburg’s name as a director cannot render him liable as a partner : Newsome v. Coles, 2 Campb. 617; Alderson v. Pope, 1 Id. 404.
    Even if the firm title had given his name or he had been published as a partner, it would merely have raised a presumption that Ruggles knew that he was a partner and gave him credit; such a presumption may be rebutted by evidence (1 Grr. Ev., § 83), as was done in this case by Ruggles’s own testimony.

      J. A. Neill, S. T. Neill and J. B. Brawley, for the defendant in error.
    The payment of interest on a debt or the knowledge that the new firm paid interest would warrant a jury in finding an assumj)tion of the debt: Pars. Part. 433; Story Part., § 152. Kirwan v. Kirwan was an action against the old firm; the liability of a new partner was not decided. The court was clearly right in telling the jury that they might find from the evidence that Shamburg had assumed the deposit of $700 : Pars. Part. 435-6; Ex parte Jackson, 1 Ves. Jr. 131. Where one buys shares in a joint stock concern, generally speaking, he takes them with all their liabilities: Add. on Con. 1328 ; 1 Pars. Con. 144.
    The defendant, Shamburg, seeks to limit his liability, 'and restrict it to the actual liabilities or debts incurred while he was the owner of his stock. This is contrary to the rule governing a stockholder’s liability, whether he be an original stockholder, or became one by purchase. The true rule is stated by Judge Drummond in National Park Bank v. Nichols et al., 2 Bissell Rep. 146, that such stockholders, in legal effect, become partners by relation to the date of the articles of association.
    As to the last deposit: It is clear that Shamburg was not a dormant partner; else all were dormant partners. This case does not fall within any of the definitions: Story Part., § 80; Deford v. Reynolds, 12 Casey 325; Jones v. Fegely, 4 Phila. 1. Ruggles was not bound to show that he knew that Shamburg was a partner at the time he made his second deposit: Walkinson v. Bank of Penna., 4 Whart. 482. Deford v. Reynolds rules this case.
   Mr. Justice Gordon

delivered the opinion of the court, January 2d 1877.

A dormant partner is one who is unknown, as such, to those doing business with the firm ; hence he is one who lends no credit to the partnership. If A., B. and C. enter into articles of association and agree that t£e business shall be conducted by A., and in his name alone; B. and C. in such case, are dormant partners, and though liable for the debts and obligations of the firm during its continuance, are not so liable for debts contracted after its dissolution, although notice of such dissolution may not have been given to the public, or those previously dealing with it; for, it is to be presumed, that credit was given upon the responsibility of A. alone and not upon that of B. and C. If, however, the business be conducted in the name of A. and Co., a different presumption arises, for then it is supposed that credit is given not to A. alone, but to all those composing the company; in other words, to the • firm and not to any one individual of it. In such case, if B. and G. retire, notice must be given to those dealing with the firm, or he will continue to be liable for the debts thereof, subsequently contracted with former creditors, who may be ignorant of the dissolution : Deford & Co. v. Reynolds, 12 Casey 325. Strong, J., in this case, remarks : “ The only object which such an one can have, in remaining dormant or secret, is, that credit may be given to the ostensible partners alone, and not to him. With such a purpose or object, doing business under the name of one partner and ‘ company’ is inconsistent. It can be nothing less than an invitation to the public to give credit to more than the single partner named.”

Shamburg and his co-partners did business under the name of “ The Citizens’ Bank,” and surely it would be understood that credit given to it would not be given to a mere name, but to the persons who formed the association. If Shamburg was a dormant partner so were all his associates, for they were like himself, but shareholders of the stock of this partnership; hence, if the argument set up for him be correct, it will apply equally to every member of this banking association, and we shall have the anomaly of a partnership composed wholly of irresponsible members. As this cannot be, we must take it, that all those who were engaged in the banking business, under the name of The Citizens’ Bank, were equally responsible for the obligation of the firm. Under this view of the case, Shamburg would be liable for the deposits of Ruggles, on the 4th of January 1873, though, at the time, he was not a member of the firm; for, not only had Ruggles no notice of the withdrawal of Shamburg, but his name continued to appear as one of the directors of the bank. We consider the instructions of the court below, on this branch of the case, as unexceptionable.

On the other point, however, we cannot see where the evidence was found to bind Shamburg for the deposit of January 19th 1871; for as we have not the articles of association before us, we must deal with this as an ordinary partnership, and in such case the defendant would not be liable for a debt contracted before he became a member of the firm. As was said, by Justice Sharswood, in the case of Babcock v. Stewart, 8 P. F. Smith 179, The credit of the new member of the firm did not enter into the consideration of those contracting with the original partners and it would be manifestly unjust to hold him liable to them.” The evidence produced to fasten this debt upon Shamburg is as follows: the certificate of deposit of the 19th of January 1871; endorsed, “ Int. paid to Jan. 19th 1872. Int. paid to Jan. 4th 1873. Int. paid to Oct. 4th 1873,” — that Shamburg became a stockholder by purchase, in May or June 1871, and that he sold his stock in Decernber 1872, that he was a director of the bank during the year 1872, and that this fact was advertised from February 16th 1872 until June 5th 1873. Rut in this there is no evidence of the assumption of this debt by Shamburg. Suppose the case to be as the learned judge puts it to the jury; that there was no separation of past from future effects and liabilities, and a continuance of business without discrimination between past and future profits; may not all this be predicated of any partnership ? Yet, ordinarily, such a state of facts would not make the incoming partner liable for the debts of the firm. As ivas held in the case above cited, he was not bound to inquire whether all the property in the possession of the firm had been paid for. Those who sold or delivered goods, or did work on the credit of the original partners, having by law no lien, parted with all their interest in the effects, and could only look personally to those with whom they contracted. Rut we apprehend that a debt, originating in a contract for the deposit or loan of money, is of no higher grade than one arising from the sale of goods, and there is, therefore, nothing to exempt it from the general rule. It is true the payment of interest, on this deposit, if made with Shamburg’s knowledge and assent, may have been some evidence of an assumption, but even this would amount to so little, that, without something else of a more definite character, it ought not to be submitted as the ground of a verdict; for, from the very nature of the association, if it were to continue the business of banking, Shamburg could not prevent it paying interest on its former deposits. We must also recollect that tins was not a new firm, but the old firm with a new member, and that, it must needs, as long as it was solvent, go on paying off its old liabilities until they were extinguished; and I cannot see how the fact that it did so, could make the new partner liable for debts, not contracted on his credit, and which he never assumed to pay.

Judgment reversed and a venire facias de novo awarded.

Agnew, C. J., doubts.


author: Mr. Justice Sharswood

text:
    Eaton’s Appeal. Eaton versus Williams.
    1. Under sect. 6 of the Act of February 28th 1866 (Pamph. L. 116), the tiixes due the city of Titusville upon real estate is prior to that of a judgment obtained before the taxes were levied.
    3. This follows necessarily from the provision of the act, that such taxes shall continue a lien “until fully paid and discharged.”
    3. An award of arbitrators in favor of a plaintiff from which he appeals is not a lien upon the defendant’s real estate so long as the appeal stands.
    4. Where K., as plaintiff, obtained an award of arbitrators in an action against W., and took an appeal therefrom, and while this appeal was undetermined, E.' obtained a judgment against W., and judgment was afterwards entered on the award: Held, in a distribution of the proceeds of a sheriff’s sale of W.’s real estate, that E.’s judgment was entitled to priority over that of K.

      November 20th 1876.
    Before Agnew, C. J., Sharswood, Gordon, Paxson and Woodward, JJ. Williams and Mercur, J.T., absent.
    Appeal from the Court of Common Pleas of Crawford county: Of October and November Term 1876, No. 100.
    ■ This was an appeal of John Eaton and Edward H. Cole from a decree of the court below ordering a distribution of the proceeds of a sheriff’s sale of the real estate of A. B. Williams. It appeared that on May 21st 1872, the firm of Keys Brothers obtained an award of arbitrators against Williams in the Common Pleas of Crawford county for $820, under the Act of 1836. The award was duly entered, and the plaintiffs took an appeal; nothing further was done in the case till January 1875, when the appeal was withdrawn by consent of both parties. On November 3d 1873, Eatonand Cole obtained two judgments against Williams. Under these judgments certain real estate of Williams was sold by the sheriff, and the proceeds of these sales were paid into court for distribution. The court below distributed the fund, first to the city of Titusville for taxes for the years 1874 and 1875, secondly to Keys Brothers on their award, and thirdly (as far as the fund reached) to Eaton and Cole on their judgments. From this decree, this appeal was taken. The errors assigned were to the award of priority to the city of Titusville, and to the claim of Keys Brothers.

      Roger Sherman, for the appellants.
    The taxes were assessed under the Act of February 28th 1866 (Pamph. L. 116), incorporating the city of Titusville ; this provides only that all taxes assessed upon real estate shall be a lien upon said real estate until paid.’ Unless they are made prior liens by construction of this act, they are subsequent to Eaton and Cole’s judgment. The language of the act does not bring the case within the decision in the city of Pittsburgh’s Appeal, 20 P. F. Smith 142. Nor does it contain the provision of the Act of February 3d 1824, relating to taxes in Philadelphia and afterwards extended to Pittsburgh, which was held in Allegheny City’s Appeal, 5 Wright 60, to give priority to taxes without regard to the date of their levy. Gormley’s Appeal, 3 Casey 49, rules this case.
    Keys Brothers could not keep their lien and at the same time appeal from it: Christy v. Crawford, 8 W. & S. 101; Lentz v. Lamplugh, 2 Jones 344.

      Guthrie & Byles, for the appellees.
    The taxes are a first charge upon the fund: Parker’s Appeal, 8 W. & S. 449. The Act of 1866 provides that the taxes shall be a lien till ££ fully paid and discharged;” similar words in other acts have been interpreted to give taxes a prior lien: Allegheny City’s Appeal, supra; City of Pittsburgh’s Appeal, supra. In Gormley’s Appeal, supra, there was no such provision in the act.

      The appeal from the award does not affect its lien : M’Kennan v. Henderson, 5 W. & S. 370 ; Wilkinson’s Appeal, 15 P. F. Smith 189. In Lentz v. Lamplugh, 2 Jones 344, the award was reversed on appeal, and a larger judgment recovered.
   Mr. Justice Sharswood

delivered the opinion of the court, January 2d 1877.

The provision of the sixth section of the Act of February 28th 1866, Pamph. L. 116, entitled An Act to incorporate the borough of Titusville, Crawford county, into a city,” that all taxes, rates and levies assessed upon real estate in said city shall be a lien upon said real estate until paid. ***** And the lien shall be continued until the taxes are fully paid and discharged” — does not change the established law that a judicial sale divests all liens and turns them over to the proceeds, but qualifies it only to this extent, that so far as the taxes are not reached and paid in full, they shall continue to be a lien. Such have been the decisions of this court upon the construction of the first section of the Act of February 3d 1824, Pamph. L. 18, “ An Act relating to taxes on certain real estate in the city and county of Philadelphia” — which, in this respect, does not materially differ from this law: Allegheny City’s Appeal, 5 Wright 60; Pittsburgh’s Appeal, 20 P. F. Smith 142. It is true that the act before us does not expressly give the taxes priority over prior liens — but that necessarily follows from the provision that they shall continue a lien until fully paid and discharged. Gormley’s Appeal, 3 Casey 49, is not applicable. It was a question „ of subrogation — the claim to which was destitute of equity. The tenant had paid the taxes, and his right to reimbursement was from his landlord, who was bound to pay them— and not from any prior mortgage or lien creditor. It was not a claim by the public authorities on the fund in court for unpaid taxes. They had been paid. The case does not state what the taxes were — whether state or city. The court evidently did not regard the special provisions of the acts creating the lien material to the only question in the cpnse. It is very important that bidders at public judicial sales should have a plain, simple rule to go by. They are bound to ascertain the amount of the public charges, and they can then understand that the taxes will be paid from the purchase-money certainly, and they will hold clear and discharged of the lien unless in the rare case, where the amount of the fund raised by the sale is not sufficient to discharge them in full. The auditor and court below were therefore right in awarding payment out of the fund, next after the costs, of the taxes due the city of Titusville.

We are of opinion, however, that there was error in giving priority to the judgment of Keys Brothers to any amount. The plaintiffs in that case had appealed from an award of arbitrators in their favor. Pending the appeal the judgments of Eaton and Cole were entered up, and subsequently Keys Brothers, with the consent' of defendant, withdrew their appeal. The court below decided that the award thus reinstated became a lien from its date. The case of Lentz v. Lamplugh, 2 Jones 344, is directly in point to the contrary. It decided that where the plaintiff appeals from an award in his favor and recovers a verdict and judgment more favorable to himself, the lien of such judgment has no relation to the date of the award. In that case there had been a conveyance subsequent to the award; and it was held that the grantee took discharged of the lien. It is evident that it made no matter what became of the case after the appeal, so far as the lien w.as concerned, whether it was withdrawn, or a less or a more favorable verdict obtained. At the time when the conveyance was made, this court held that there was no lien, and the purchaser took'free from the encumbrance. The reasoning of Chief Justice Gibson in the opinion is very cogent. The law will not allow the plaintiff to claim by two judgments in the same action, or to reverse his judgment and still claim by it; or to say “ I will hold by the one, and take all I can get by the other.” “Nothing but the force of a statute could abolish this principle; and the legislature has not applied it.” But even if the reasoning were not thus cogent, we ought to hesitate long before overruling a case which has stood unchallenged for more than a quarter of a century. There is certainly nothing in Wilkinson’s Appeal, 15 P. F. Smith 189, to shake it. There was no question of lien of the award in that case; it was a distribution of the proceeds of personal property. An execution had been issued - on an award before the twenty days allowed for the appeal had expired; and all that was decided was, that it was entitled to the fund, notwithstanding the objections of subsequent execution-creditors.

Decree reversed — each party to this appeal to pay their own costs.

And now, January 2d 1877, it is ordered that the balance of the fund, after payment of the costs and the taxes due the city of Titusville, be paid to Eaton & Cole, on their judgment, No. 125, November Term 1873, and No. 42, November Term 1873, and the record be remitted,. that this decree may be carried into effect.


author: Per Curiam.

text:
    Huidekoper versus City of Meadville.
    1. The Act of the 6th of April 1870 confers upon the city of Meadville the power of paving its streets and collecting the cost from the owners of adjoining property by filing claims for paving as liens according to the mode of proceeding under the Mechanics' Lien Law of 1836. Held that this power is well executed by a general ordinance regulating the paving of streets, followed by a special ordinance authorizing a particular street to be paved.
    2. The act is not in violation of sect. 1, art. 9, of the new Constitution, providing for uniformity of taxation, as the paving is a purpose that is purely local, and although general benefit may result therefrom this will not alter its local character.
    November 21st 1876.
    Before Agnew, C. J., Sharswood, Gordon, Paxson and Woodward, JX Williams and Mercur, JJ., absent.
    Error to tbe Court of Common Pleas of Qrawford county: Of .October and November Term 1875? No. 182.
    This was a scire facias sur municipal claim, filed by the city of Meadville against Frederick Huidekoper, for macadamizing the roadway and paving the gutters in front of two lots of defendant, whioh abutted upon the street upon which the work was done. The work was done by the city commissioner, in pursuance of a resolution of the city council, passed in conformity with a general ordinance, which ordinance was framed to accord with the Act of the 6th of April 1870, Pamph. L. 967, entitled “A supplement to an Act incorporating the city of Meadville,” and which provides as follows:—
    “ The city council is hereby vested with full power to ordain and establish such ordinances and regulations, not repugnant to the Constitution and laws of the United States and of this Commonwealth, as they shall deem expedient or necessary. * * * To survey, lay out, enact, ordain and open such streets, &c., as they may deem expedient. * * * To pave, repair or repave any public street or alley, or any part thereof, which is now or may hereafter be laid out and opened in said city. * * * To levy and collect the cost and expense of work and materials used therein from the owners of the property bounded by and abutting on said street or alley, by an equal assessment,” &c.
    The general ordinance passed in pursuance of this act contained these provisions:—
    “ That hereafter, when the city council shall deem it necessary to pave, repair or repave any public street or alley, * * * they shall pass a resolution to that effect, describing what street or alley, or part thereof, the manner, and materials to be used. * * * The costs and expenses of such work, and material used therein, shall be levied and collected from the owners of the property abutting on said street or alley, &c. On failure of said owner or owners to pay the costs and expenses within thirty days from the completion of said work, the city council shall have power to direct the city attorney to file a claim or claims therefor, with ten per cent, advance thereon, in the name of the city, under the provisions of the law in relation to mechanics’ liens, &c.”
    To the scire facias upon the lien in this case, the defendant filed an affidavit of defence, wherein he averred, “that the property against which this lien is entered has already been taxed for the year 1874, uniformly with other property in the city, for city purposes, including the improvement of streets, which tax was levied and paid before the entering of this lien; therefore, the action of the plaintiff in attempting to assess the cost of the improvement of Water street, as set forth in claim filed in this case, is unequal, unjust, and contrary to the provisions of the Constitution of Pennsylvania requiring that taxation be uniform. The assessment charged by the plaintiff upon defendant’s property was made to defray the expenses of macadamizing and paving a portion of Water street, and consists of an improvement of the street for the general public benefit, the necessity for which was caused by the erection of a freight depot by the railroad company, at or near the south end of Water street, and over which street freight is moved to all parts of the city. This improvement does not confer any special benefit upon the property assessed. A portion of said improvement, of about forty-eight feet in length, at the intersection of Mercer street, an existing, well-made pavement, was removed by the city, and no allowance made to the defendant therefor; that the street in question has been open, and used by the public for more than seventy yeai’s previous to said macadamizing; that the other streets of the city of Meadville,. so_far_as already paved, have all been paved at jgxiblic^expense, and paid for out of moneys assessed upon and collected from the citizens of the city, including the defendant; that the improvement alleged in the plaintiff’s claim as filed, was not done in compliance with the provisions of the Act of Assembly, as claimed by the plaintiff, in that the said plaintiff did not, prior to or at the time of making said improvement by its council, ordain and establish by proper ordinance the macadamizing and paving recited by the plaintiff; that the city council did not adopt any ordinance upon the subject; that ‘ the paving of gutters with cobble stone and macadamizing road with broken stone,’ as charged in the plaintiff’s claim, is not paving or repairing contemplated by the Act of Assembly, under which the plaintiff claims to assess the cost of work and materials upon the land abutting on such improvements, and even if the plaintiff’s claim is otherwise valid,' it is for this reason believed to be invalid.”
    The plaintiff entered a rule on defendant to show cause why judgment should not be entered for want of a sufficient affidavit of defence; which rule, after argument, was made absolute.
    The court, Lowrie, P. J., in an opinion, said:—
    “ The defendant’s land is taxed for its proportion of the expense of paving the street, and he resists the payment because he thinks that the work done is no especial benefit to his land, and that therefore the tax is unjustly imposed.

      “ He has not been singled out in any special way to bear this burden; but it falls on him by a general law of the city applicable to all owners of land therein. Streets are for public purposes; but they are also necessarily local and for local purposes, and it is manifestly impossible to define by a general law when one is so purely local as to be properly a subject of local taxation, or when so general or public as to be a subject only of general charges. And no matter how general a law for such cases may be, it must operate very unequally in its administration, because of the undefinable differences in the ground over which a road.passes, and of the uses demanded of it.
    “ It is not then the law that is unequal, but the circumstances of place, population, business and ownership to which it is to be adapted. The manner of local taxation, only for local purposes, is a valuable principle of limitation of authority, though it may be impossible to state it by' a law so definite that it can always be clearly seen when the line of limitation is transgressed.
    “ Townships, boroughs and cities require roads of very different qualities, and it is impossible to make the same road-laws for all without making them so general and indefinite as to be impracticable, or leaving a very annoying and oppressive discretion or arbitrariness to those who administer them.
    “ In this way the inevitable inequalities of contribution required by the public needs would disappear from the law, only to appear more arbitrarily in its administration. If there are to be roads at all, the advantage of them must be unequal accordingly as they furnish more or less convenient access to the property of individuals ; and road officers must have a large discretion in the expenditure of the public money for the maintenance of them. The city authorities did this work in pursuance of a very plain Act of Assembly, and a general ordinance for all such cases, and of a special resolution passed for the improvement of this particular street; and they have charged defendant’s ground with its proper share of the exp'ense, and in a form not complained of. Paving the gutters with cobble stone and the cartway with broken stone (macadamizing), is a paving within the meaning of the Act of Assembly.

      “ But the defendant had already paid a general city tax for the same year, being in part for the general improvement of streets; and that no allowance is made for the old pavement taken away; and complains that other streets in former times had- been paid by general taxation, and not by special charges. These all seem to us to be only a mode of stating how many ways the law is felt to be a grievance, rather than arguments against the authority to pass such a law.”

      The defendant assigned this judgment of the court for error.

      Douglass cf McCoy and Pearson Church, for plaintiff in error.—
    A municipal assessment upon property for local improvements is a tax: Washington Avenue, 19 P. F. Smith 352. Section 1st, article 9th of the new Constitution declares that “all taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax.” Two methods of obtaining this uniformity in taxation for the maintenance of streets are common. In large, and for the most part compactly built cities, all streets are made and maintained at the expense of the adjacent property; in others they are made and maintained from a common fund, the proceeds of a general tax. In Meadville all the streets have heretofore been, and a large majority if not all must, hereafter, under the provisions of the present charter, be made and maintained out of a common fund (now styled city levy), to which the property now specially assessed has heretofore contributed and must hereafter contribute its full proportion.
    An act shifting the expense of making improvements from the city to individuals, is not legislation, .but a decree: Sharpless v. The City of Philadelphia, 9 Harris 168.
    The alleged improvement was made for the general public benefit, and does not confer any special benefit upon the property assessed. Being for the public, it should be made at the public expense. Not being a local improvement, it should not be locally assessed: Tidewater Company v. Coster, 3 C. E. Green 518; Hammett v. City of Philadelphia, 15 P. F. Smith 146; Washington Avenue, supra; Weber v. Reinhard, 23 P. F. Smith 370.

      Charles M. Boush and Thomas Roddy, for defendants in error.—
    The expense of making local improvements, such as grading and paving, or otherwise improving streets and sidewalks, is very generally met, in whole or in part, by local assessments, authorized to be made upon persons or property benefited or supposed to be benefited. Whether the expense of making such improvements shall be paid out of the general treasury, or be assessed upon the property benefited, or legislatively declared to be benefited, and if in the latter mode, whether the assessment shall be upon all property found to be benefited, or alone upon the abuttors according to frontage or according to the area of their lots, is, in all cases, a question of legislative expediency, unless there be some special restraining constitutional provision upon the subject: Dillon on Municipal Corporations, 2 ed., vol. 2, § 596.
    Local impositions for grading, paving, sewerage and the like, have been many times sustained by this court, and are, generally, perfectly fair, for they enter into and enhance the value of the property assessed: City of Philadelphia v. Tryon, 11 Casey 404; Hammett v. Philadelphia, 15 P. F. Smith 155.
   The judgment of the Supreme Court was entered November 24th 1876,

Per Curiam.

The Act of Assembly of 1870 confers the power upon the city of filing claims for paving as liens, according to the mode of proceeding under the Mechanics’ Lien Law of 1836. This power is well executed by a general ordinance regulating the paving of streets, and by a special ordinance authorizing a particular street to be paved. No question under the Constitution arises as to uniformity of taxation. The purpose is purely municipal and local. General benefit may result, but does not alter its local character.

Judgment affirmed.


author: Mr. Justice Paxson

text:
    The Oil Creek and Allegheny River Railroad Co. versus The Pennsylvania Transportation Co.
    1. Where a corporation has entered into a contract which has been fully executed on one part, and nothing remains but for- it to pay the consideration money, it will not be allowed to set up that the contract was ultra vires.

    2. The Oil Creek & Allegheny Biver Bailroad Go. agreed to pay the Pennsylvania Transportation Co., an oil pipe-line, a certain sum per barrel on all oil •transported by it, in consideration that the pipe-line would deliver all the oil under its control to the railroad company for transportation; the pipe-line performed its part of the agreement and brought suit to recover the price agreed on: Held, that the railroad company could not set up as a defence that the contract was ultra vires.

    3. Whether the railroad company might rescind the contract for the future, on the ground that it was ultra vires, not decided.
    4. In this case the court held that there was evidence enough of an alleged agreement to modify an existing contract to justify submitting the question to the jury.
    November 21st 1876.
    Before Agnew, C. J., Sharswood, Gordon, Paxson and Woodward, JJ. Williams and Mercur, JJ., absent.
    Error to the Court of Common Pleas of Orawford county: Of October and November Term 1876, No. 178.
    This was an action of debt brought by the Pennsylvania. Transportation Company against the Oil Creek & Allegheny River Railroad Company to recover the amount alleged to be due on a contract between the parties. The plaintiff was the owner of pipe-lines in the oil regions of Pennsylvania, connecting the oil regions with several points on the defendant’s railroad.
    On July 26th 1871, the railroad company, of the first part, and the transportation company, of the second part, entered into an agreement, which, after reciting that the parties desired to co-operate with each other in transporting oil, and to harmonize their respective interests, provided as follows:—

      “ 1. That the party of the second part covenants, &c., to run all the oil, in any manner under its control, through its pipes, &c., to the railroad of the party of the first part, to be delivered at the tanks and depots situated upon, or near, said railroad for transportation by said party of the first part, it being understood and agreed that said party of the second part will co-operate with the party of the first part in said transportation of oil, and will use all the means within its power to deliver all the oil it can control to said party of the first part for transportation over its railroad.
    “ 2. That the party of the first part agrees to pay to said party of the second part on all oil, or its products, carried and transported over the railroad of the party of the first part, to Union, Corry, Irvington, and Oil City, ten cents per barrel, when the rates of freight on oil charged and received by the said party of the first part for transportation are forty-five cents per barrel, or more, and five cents per barrel when the rates of freight on oil charged and received by said party of the first part are twenty cents per barrel. It is expressly understood that the said payments are not to be made on oil carried through pipes now owned by the Empire Transportation Co., or oil moved in yards, or for a distance not exceeding four miles, when the rates do not exceed fifteen cents per barrel. It is further understood and agreed that in case said party of the first part shall reduce its rates below said forty-five cents per barrel that the said sum of ten cents per barrel to be paid to said party of the second part, as before provided, shall be -reduced proportionately to such reduction on the rates charged on said railroad.
    “ 3. That the party of the second part covenants, &c., that it will not construct, lay, use, lease, or operate any line or lines of pipe which may be parallel with the railroad of the party of the first part, or which may connect with any other railroad or railroads, pipe or pipes, or which may compete with the said party of the first part in the business of transporting oil by river, or rail, or otherwise.” It was further agreed therein that the contract should continue in force for twenty-five years, and that statements should be rendered and payments made under it about the middle of each month for the preceding month.
    It appeared from the evidence that when freights fell below twenty cents it was understood that the transportation company was not to receive any payment upon the oil transported by the railroad company.
    Both parties worked under this contract and monthly statements were made regularly under it till September 1872. Before that time freights were falling below twenty cents, so that the transportation company was not entitled to receive any payment under the contract for oil transported. On August 9th of that year the board of directors of the railroad company appointed a committee with power to arrange with the transportation company “fora modification of the contract by which a uniform rate of five cents per barrel on all oil carried shall be adopted in lieu of all existing arrangements. ”
    The communication of this resolution of the board of directors of the railroad company was made to the transportation company at a directors’ meeting held on September 9th 1872, by two of the directors of the railroad company, either by a copy of the resolution or by the original; the evidence did not clearly show which. At this meeting of the transportation company’s board a resolution was passed “ that this company consents to the modification suggested by the Oil Creek and Allegheny River Railroad Co. of the contract between said company for pipeage on oil, and that Henry Harley, W. H. Kemble and G. K. Anderson are hereby appointed a committee on part of this company to carry the modification or change of contract into effect, viz.: instead of the present rate of pipeage, the said Oil Creek and Allegheny River Railroad Oo. to pay to this company five (5) cents per barrel on each and every barrel of petroleum oil or its products Avhich may be transported on said railroad.”
    There was no evidence that the committees appointed by the respective boards ever met together to make a formal settlement of the modification, or that it was ever formally reduced to writing and signed by the representatives of the companies.
    W. S. Lane, one of the plaintiff’s witnesses, testified as follows:—
    “ I knew the matter of modification was being discussed. I was one of the counsel at that time, and previous, for company defendant. Mr. Gay told me a meeting of pipe company was to be held, to take action on resolutions of railway company of August 9th. Gay gave me railway company’s duplicate of contract of ’71, and instructed me, when pipe company had taken action in modification, to endorse it on contract. Was in pipe board also, elected for railway interests. Had personal knowledge that the resolution was accepted by both companies. Attended meeting of board of directors of pipe company in Philadelphia, when modification was presented and adopted. . On same day of meeting made endorsement on contract of the resolution, according to instructions of Gay, which contract, as endorsed, I have never seen from that day to this.” The witness was shown a copy of the endorsement on the contract and said: “ The copy is substantially correct.”
    Cross-examination.. “ 1 knew of the action of modification by railway company. Gay gave me instructions to endorse resolution of modification on original contract. I gave contract with endorsement to Gay, because I received it of him; because he was at the office of railway company, which was a proper place to deposit it.” Direct examination. “ Gay officiated for some time after I gave him the contract.”

      The endorsement was as follows :—

      “ By agreement of the parties to the foregoing contract, and by authority of the board of directors of the O. C. & A. R. Railroad Co., and by authority of the board of directors of the Pennsylvania Transportation Company, the foregoing contract is changed and modified in regard to the rates of pipeage, as follows, viz.: That in lieu of the rates of pipeage within mentioned the 0. C. & A. R. Railroad Co. shall pay to the Pennsylvania Transportation Company five cents per barrel on each and every barrel of petroleum, or its products, which may be transported on the said railroad of the 0. 0. & A. R. Railroad Co. This to take effect on and after the 1st day of August 1872, and continue for and during the balance of the foregoing contract.”
    There was evidence that the modification of the contract had been virtually agreed upon between the presidents of the two companies before these meetings of the respective boards were held.
    The statement of oil transported in August 1872, made out on the new basis, was paid on September 17th 1872, by the railroad company. In subsequent months the latter company refused to settle on the new basis, and the transportation company accepted payment according to the terms of the original contract, under protest.
    Monthly payments were thus made under the terms of the original contract until February 1874, when the defendant became pecuniarily unable to pay. In July 1874 it Avent into the hands of a receiver in which- condition it was when this suit was brought. This action Avas brought to recover an additional amount alleged to be due under the terms of the modified contract.
    At the trial, before Lowrie, P. J., the defendant offered to shoAv that at a meeting of its board, held August 31st 1872, EdAvard F. Gay resigned his positions as a president and director of the defendant company, and Mr. Bodine resigned his position as director; also that at a meeting of the defendant’s board, held November 15th 1872, at which C: B. Wright, a director of the transportation company, was present, a resolution Avas passed rescinding the resolution of the board of August 9th 1872 authorizing a modification of the contract with the transportation company. These offers were refused and a bill sealed for the defendant. The defendant offered evidence tending to show that the directors pf the defendant company (who were at the time of the alleged modification also directors and stockholders of the plaintiff company), had acted at variance with their duties as directors of the defendant company, and in their individual interest as stockholders and directors of the plaintiff company. This offer was also refused and a bill sealed for the defendant.
    The defendant submitted a number of points, among them these:—
    1. That the measure of the poAver of the plaintiff and defendant companies is to be found in their respective charters, and that there being no legislative authority granting to either the plaintiff or defendant company power to enter into the alleged contract sued on, such contract, even if made, was ultra vires, and the plaintiff cannot recover in this action.
    The court reserved this point, and after argument, delivered the following opinion upon it:
    “ The contract here referred to is the one composed of the written agreement of 26th July 1871, the resolution of defendant’s directors of 9th August 1871, proposing a change in that agreement and the resolution of the plaintiff’s directors of 9th September 1871, accepting that proposal. Not the agreement of 26th July merely, for they did make that, and acted under it, and the defendant still claims to do so. They did make it, and there would be a contradiction in now saying they could not make it, unless in the two assertions we use the word make in a different sense. Not that, but the change made by the resolutions is complained of, and here again it is a contradiction to say they could not, for the fact remains they did it, and for some time they acted on it. There was, in fact, a change, which was effectual at least to annul the original agreement, and the defendant would now repudiate the new in order to fall back on the old. And the relation intended by the contract was, as a fact, continued until this suit was brought, and now the only dispute is, on what terms, the new or the old.

      “ The other portion of this point, whether the making of such a contract was a lawful exercise of corporate functions by the parties, is therefore quite irrelevant. We are now to deal with the actual facts, not with the functions. Men may not lawfully make certain contracts on Sunday. But suppose them made and partly performed, then the function of the law changes. The state does not, in fact, avoid this agreement, and the defendant did not annul it as an unauthorized act of their directors, but took all the benefits it offered then, and now we must judge of the duties of each to each by their acts much more than by their functions. This point is therefore decided in favor of the plaintiff.”
    6. That a proposed contract is not binding on the party proposing it until acceptance of the other party has been communicated to the party proposing or his agent; and if the jury believe, from all the evidence, that the acceptance by plaintiff company of defendant’s proposition embodied in resolution of August 9th 1872, was never communicated to the board of directors of defendant company, or to any member thereof who had been constituted its organs of communication on this subject, then there was no contract consummated, such as is sued on, and their verdict must be for defendant.
    “Answer. We affirm this point. But we do not see that any form of communication of the acceptance was agreed on, and the jury must judge whether it was in any way made known, as an acceptance, to the defendant; and if they acted upon and according to it, this is evidence of the fact of notice.”
    10. That under the pleadings in this case, if the jury should find from the evidence that the alleged modified contract was never consummated, then the plaintiff cannot recover at all in this action.
    Answer. “We affirm this point.”
    The other important points raised either the same question as the first point or the incapacity of the same persons to act as directors of both companies in making a contract between them.
    The verdict was for the plaintiff in the sum of $197,285. The court, being of opinion with the plaintiff on the reserved point's, entered judgment on the verdict. The defendant then took this writ of error; the numerous assignments raised these two questions :— 1. Whether the contract upon which the action was brought was ultra vires ; 2. Whether such contract was found by the jury upon sufficient evidence.

      M. Crosby and Hampton & Dalzell for the plaintiff in error.—
    The resolution of the railroad board provided for a modification on the rates on all oil, while that of the transportation board applied to every barrel of petroleum or its products ; the offer and acceptance were therefore not identical in terms.
    There was no evidence that the two committees ever met to consummate the proposed arrangement. As to a ratification of the new contract by making a payment under it, the voucher put in evidence, was signed by a mere ministerial officer who had no authority to bind the company.
    The court erred in refusing evidence that two of the defendant’s directors on the committee resigned on August 31st 1872, before the meeting of the transportation board, as this tended to prove that the committee’s authority to negotiate with the transportation company was withdrawn before the latter accepted the offer. The evidence of the rescission of the resolution of August 9th, by the railroad board, on November 15th, should have been admitted as tending to prove, not a rescission of the modified contract, but that no modification was ever actually made.
    The counsel also argued at length the question of ultra vires, and of the incapacity of directors acting for both companies to bind the defendant.

      J. Douglass and Pearson Church, for the defendant in error,
    also argued fully the question of the power of the defendant below to • make the contract, and, further cited Pearsol v. Chapin, 8 Wright 9, as showing that the acquiescence in the contract by the defendant below was a complete ratification of it and conclusive upon the railroad company.
   Mr. Justice Paxson

delivered the opinion of the court, January 2d 1877.

There are twenty specifications of error in this case. They raise, however, but two substantial questions, viz.: 1. Was the contract upon which the plaintiffs were allowed to recover, ultra vires ¶ 2. Was such contract found by the jury upon sufficient evidence ? Neither proposition presents a question of serious difficulty. It does not appear to have occurred to the defendants below that the contract of July 26th 1871 was ultra vires until it became ajrparent that by their subsequent modification of it they had made a bad bargain. They then attempted to repudiate the modification and fall back upon the original agreement of July 26th. Yet the illegality, if any existed, was to be found in the original contract; assuming that to be legal, the modification of it was equally so. We do not think the defendants are in a position to defend upon the ground of the illegality of the contract. There were mutual covenants and mutual advantages. The defendants had enjoyed the advantages, such as they were. To the extent of the demand in-this suit the contract was executed, and to say now that it is ultra vires comes with an exceedingly bad grace from the defendants. It may be that having shown performance on their part they would have a right to rescind the contract as to future transactions upon the ground of its illegality. Upon that point we express no ojnnion. But there is no rule of law which permits them to retain both the benefits and the price. So far as the contract of these parties may be said to be against public policy and transgressive of their respective charters there is ample remedy. There is a mode by which the Commonwealth may call a corporation to account where it violates its charter or the rights of the people. The rights of the Commonwealth are in no manner involved in this suit.

In regard to the second proposition we think there was sufficient evidence to justify the court in submitting to the jury the question of the subsequent modification of the contract of July 26. Nor can we say that their finding was not warranted by the evidence. While some of the specifications of error in regard to the admission of evidence are not entirely free from doubt, we perceive no sufficient error to justify us in reversing upon this ground, especially in view of the fact that the defendants acted upon the modification, and settled for one month upon that basis.

Judgment affirmed.


author: Mr. Justice Woodward

text:
    In re Opening of Park Avenue. Huidekoper’s Appeal.
    1. In opening Park avenue in the city of Meadville in pursuance of an ordinance of the city council and the provisions of the Act of the 6th April 1870, complainants alleging that they were aggrieved by the action of the viewers and the city council in charging their land for contribution, and that the assessment was greatly in excess of the benefit which the property derived from the improvement, appealed to the Quarter Sessions; other parties along the avenue demanded issues and by the verdicts rendered in their cases the damages allowed by the viewers were enlarged to the extent of §7600. The court below without a decision upon the special questions raised by complainants’ demand, calculated the amount necessary to be charged against the parties assessed for contribution in order to meet this aggregate amount due to parties entitled to damages, and this ascertained amount was divided amongst the contributing parties in proportion to the several sums which the viewers originally assessed, and a decree for the payment of these sums made accordingly. Held, that this jurisdiction assumed by the court was not conferred, nor could it be implied from any of the provisions of the statute.
    2. On the theory that all the damages resulting from the opening of the street must be paid by assessments for benefits upon the property along the line of said street, the court below by a mathematical apportionment assessed the increased damages among the properties benefited, pro rata, accordingly as they had been originally assessed by the viewers and this without an adjudication of the individual merits of the cases presented. Held to be erroneous.
    3. Each appeal should have been heard on its peculiar grounds, and with the adjustment of the amount found due on one hand, or chargeable on the other, the functions of the appellate tribunal would have been discharged. The city council were responsible for the improvement of the highways of the city, and the provision of the means to effect it was a duty which the law had charged to them, and which the Quarter Sessions had no authority to assume.
    4. The authority to strike off an assessment on a lot, for reasons shown, was within the discretionary power of the court below, and is not reviewable here. If wrong was done the remedy must be sought there.
    November 21st 1876.
    Before Agnew, 0. J., Sharswood, Gordon, Paxson and Woodward, JJ. Williams and Mercur, JJ., absent.
    Certiorari to the Quarter Sessions of Qrawford county: Of October and November Term 1876, No. 253.
    On the 12th of August 1875, the council of the city of Mead-ville passed an ordinance for the opening of Park avenue, which ordinance was approved by the mayor, and public notice given of its passage according to law. The city council, in pursuance of the Act of the 6th of April 1870, Pamph. L. 974 (the substance of which, so far as it relates to this case, will be found in the opinion of this court), appointed five freeholders to view and assess the damages and benefits to property owners along said avenue, who in due time made their report to the city council. The latter appointed a time and gave notice for the hearing of all parties interested, and at the time appointed, after hearing all concerned, declined to modify the report of the viewers, and confirmed the same. A number of persons in favor of whom damages had been assessed, as well as a number upon whom contributions for benefits had been laid, dissatisfied with the report of the viewers, appealed to the Court of Quarter Sessions.
    H. S. and E. W. Huidekoper, the complainants in this case, are the owners of a piece of ground fronting eighty feet on Market street, and extending east two hundred feet to Crab alley, the greater part of which alley is occupied by the proposed Park avenue. The complainants had divided this lot into building lots for the purpose of sale — making four lots fronting on Market street of twenty feet each, and running back ninety feet; and four lots fronting on Crab alley, of the same size; the lots fronting on Market street and those fronting on Crab alley being divided by a private alley twenty feet wide.
    Upon these lots, those fronting on Market street as well as those on Crab alley, the complainants were assessed by the viewers $1800, as a contribution to be paid by them for benefits accruing to them for opening Park avenue. From this assessment the complainants appealed in due form, as prescribed by the charter of the city of Meadville.
    In the cases in which appeals were taken to the Court of Quarter Sessions, and a jury trial demanded, feigned issues were directed by the court, in the Common Pleas, to try the question of damages or contributions, as the case might be. When a jury trial was not demanded, the Court of Quarter Sessions disposed of the appeal on such proofs as were furnished. The question in a number' of the appealed cases was tried by jury. In nearly all of the appeals from the assessment of damages, the damages were increased by the jury. In some of the appeals, in cases ‘ where contributions were assessed, the contributions were diminished, and in some increased.
    After all the appeals had been disposed of, it was found that the aggregate increase in the sums to different persons for damages, exceeded the 'amount assessed for contributions by between $7000 and $8000.
    The court appointed a commissioner to take testimony and report the facts in cases where there were appeals from assessments, which jury trials had not been demanded. As no land had been taken from these complainants, who were the only ones attending before the commissioner or offering any testimony, by consent, the commissioner reported only the testimony, without any finding of facts, the complainants alleging that the viewers had made a mistake in assessing all their property, including the lots fronting on Market street as well as those on Crab alley, and that the assessment was greatly in excess of the. value of the property benefited.

      Upon return of the testimony, the appeal of the complainants was argued, and held under advisement by the court.
    After this, and before rendering a decision in this case, the Court of Quarter Sessions entered a rule requiring all persons interested to appear in court on a day fixed by the rule, and show cause why they should not be assessed pro rata for the payment of this excess, directing said rule to be published in the newspapers of the city, which was done. After argument, and holding the matter for advisement, the Court of Quarter Sessions made an order allowing all the appealed cases, in which there was a jury trial, to remain as the jury had found, as to the damages and contributions; all others they assessed for contribution, pro rata, whether they had appealed from the report of viewers or not, to make up the excess of damages over the contributions assessed by the viewers.
    On the 31st day of July 1876, the court (Lowrie, P. J., the material portion of whose opinion will be found in the opinion of this court), dismissed the appeal of complainants, and increased the assessment against them and others, increasing it in this case from $1800 to $2581, and at the same time they also set aside the report of the viewers altogether as to the lot of Mrs. McClintock, on the east side of said Park avenue and the south side of Chestnut street, which lot was assessed $1950, whereby that amount was lost to the contributing fund; and this was also added by the court to the other assessments for contribution, pro rata. The action of the court increased the assessments for contributions more than forty per cent, above the amount reported by the viewers.
    It is claimed by these complainants, that the viewers made a mistake in the assessment of their property by assessing the lots fronting on Market street, in connection with those fronting on Crab alley; and that the action of the court in dismissing their appeal was not a proceeding contemplated by the charter, and that action as well as the further action of the court in increasing the amount of the assessment against them, was without authority of law, and without jurisdiction in the court to make such order; and, that judgments having been entered against the city, on the verdicts increasing the damages in the appealed cases, and the increased assessments having been made for the purpose of paying their judgments, if they are compelled to pay said increased assessments, it would be a taking of private property for public use, without compensation, and without due course of law.
    The errors specifically assigned were:—
    That the court erred in deciding that the liability of each person to contribute, whether they appealed from the report of the viewers or not, could only be ascertained on the final hearing in court on the appeals ; .and in determining that the law of the case assumes that the advantages of such improvements to the other lots are at least equal to the damages.

      Pettis & Davis, for complainants. —
    The court from its ruling was' of the opinion that an appeal by any party, whether he had been awarded damages or assessed with a contribution for benefits, brought up the whole matter, and gave the court jurisdiction over all the parties to the proceeding from its inception, whether they appealed or not. In this, it is submitted there was error. And this question is clearly settled by the very language of the act. The court seems to start with the conclusion as a legal proposition, that under the act all the damages from the opening of a street must be paid by assessments for benefits upon the property along the line of it. Clearly this is erroneous ? Nor is it an answer in this case to say that we have nothing to do with results and consequences where the burden is imposed by the legislature, by way of taxation— that the power of imposing taxes by the legislature is unlimited. Be this as it may, where such burdens are imposed by the legislature, it must be done in express terms, and not by implication or construction. This act does not do so. The mode of assessing contributions is plainly given, and must be- strictly pursued: Gault’s Appeal, 9 Casey 100. Outside of the mode and extent of such taxation given by the statute, there is no jurisdiction or authority vested anywhere to impose and collect such contributions. This is a species of taxation and can be indulged to the extent of the actual benefits and no farther: Hammett v. Philadelphia, 15 P. F. Smith 146.
    The court has no other than an appellate jurisdiction. After the action by the city council the question of benefits could not be examined by any other tribunal. It was a tax definitely fixed and ascertained: Commonwealth v. Woods, 8 Wright 117 ; Hammett v. Philadelphia, supra.

      Thomas Poddy, contra.

   Mr. Justice Woodward

delivered the opinion of the court, January 2d 1877.

On the 12th of August 1874, an ordinance was passed by the council of the city of Meadville for the opening of Park avenue. Viewers were appointed soon afterwards, who reported on the 2d of December 1874, that in pursuance of the provisions of the Act of Assembly of the 6th of April 1870, they had proceeded to view the premises through which the avenue passed, having regard to the advantages and disadvantages caused to the several properties along its line, and had allowed and assessed damages, over and above advantages, in favor of a number of parties, whose names were returned in a schedule annexed, with the sum assessed and the number of the lot belonging to each. The amount, thus allowed was $27,600. The viewers returned also as part of their report, that they had assessed contributions upon the properties severally benefited by the opening of the avenue to the amount of the sums respectively specified in a list which they subjoined, over and above all disadvantages. The sum charged to H. S. and F. W. Huidekoper, the present complainants, was $1800. The report having been confirmed by the city council, these complainants, with numerous other parties, appealed to the Court of Quarter Sessions. Feigned issues were directed and tried in the cases in which they were demanded. Where they were not demanded, the court disposed of the appeal in each case upon the proofs furnished. In nearly all the appeals from the allowance of damages, the amounts awarded were increased by the verdicts. In the appeals from the assessments for contributions, the amounts were in some instances diminished, and in some increased. The general result of the investigation in the Quarter Sessions was to increase the damages allowed to the owners of property injured from $27,600 to $35,210. These complainants rested their claim to relief upon the ground that a portion of the property for which they were charged did not abut upon the avenue, and that the assessment was excessive. Testimony was taken on their behalf before a commissioner appointed for that purpose. Their appeal was argued, held under advisement, and finally dismissed when the general decree was made. At that time also the report of the viewers assessing a contribution of $1950 upon property of Mrs. A. E. McOlintock was set aside on the ground that the property was separated from the avenue by a strip of land a few inches in breadth. To make up for this sum as well as for the increase in the sums awarded for damages the court provided a fund by swelling the assessments of the viewers for contribution.

By the final decree the amounts ascertained by verdicts in cases where feigned issues had been tried were left to stand as exhibiting the rights and obligations of the parties, as well against those charged for contributions as in favor of those for whom damages had been allowed. The exact sums awarded for damages in all other cases were allowed to all the other claimants in whose favor the viewers had reported. And the remaining owners of property found to have been benefited were subjected to a pro rata assessment of an amount sufficient to make the charges for contributions equal to the awards of damages for property injured. This was done irrespective of any relation which the contributing parties held to the city or to the subject-matter of the inquiry other than that of owners of benefited lots. The- extent of the increase was about forty per cent. The charge against these complainants reported by the viewers was $1800, and was enlarged to $2581 in the final disposition of the case.

The grounds on which this decree was made were' explained by the president judge of the Quarter Sessions to be that it is only in highly .civilized states of society, that there are such proceedings as these for securing compensation to individual owners, as against the government, for property taken for public use;” that “ in less advanced societies the government usually takes what it wants, with or without compensation ;” that “in all states of society it is inevitable that there must be public exactions in the form of civil or military service, taxes, land and other property for public purposes, for without this there could hardly be any government, and without government there could hardly be any value for land or any other property;” that “however such exactions may be made, the proceedings by which they are carried into effect are so unlike the forms of judicial proceedings that the analogies furnished by these need great caution in their apjfiication;” and that “ it was hardly accurate to argue that there was no evidence to authorize the increase in the sums charged by the viewers for contributions, for the law of the case assumes that the advantages of such improvements to the other lots are at least equal to the damages, and so in fact they are generally known to be, though they may sometimes be hardly comfortable, and the damages charged upon the other lots, being in compensation for the damage to them, are necessarily limited to that.”

These proceedings were had under the 15th section of the Act of Assembly of the 6th of April 1870, authorizing the city council of Meadville, when a public highway has been laid out by them, to appoint viewers of the premises on the line of the highway, to assess the damage done to the properties injured, and to “make assessments for contributions” upon properties benefited by the improvement. The report of the viewers is made subject to approval, modification and confirmation by the council, “ which confirmation,” the act declares, “shall be final and conclusive on all parties.” By a proviso to the act any person unwilling to receive the amount fixed for his damages, and any person unwilling to pay the amount assessed against him for contribution, may appeal to the court of Quarter Sessions of Crawford county. The court is to fix a day for hearing the appeal and to cause notice of it to be given to the mayor. The proviso proceeds in these words : “ The court may hear testimony and examine witnesses concerning the amount of said damages and contributions, and may either approve the action of the city council, or diminish or increase the amount as they shall see fit; the decree of the said court shall be final and conclusive, and the amounts so ascertained shall be paid and collected as aforesaid”— that is, in the manner prescribed in the enacting clause of the section. The statutory powers thus conferred on the Quarter Sessions are large and broad; but large and broad as they are, it is insisted by the complainants that the action taken under them has transcended all scope and purpose designed by the legislature.

Throughout the opinion of the president judge, it is apparent that the basis of the decree was the theory that “ the law of the ease assumes that the advantages of such improvements to the other lots are at least equal to the damages.” But nothing in the Act of Assembly implies the idea of such equality, and there is no provision under which it can be worked out. It is very natural that the municipal authorities should desire the contributions charged to be equal to the damages allowed, so that the fund received would be adequate to meet the amount they would be required to pay. Municipal improvements would naturally he projected with the view of attaining substantially at least so desirable a result. But the sheer impossibility of securing even approximate equality, is illustrated by the facts developed in this record. The damages allowed by the viewers were enlarged to the extent of $7600 by the verdicts rendered in cases where issues were demanded. In such a proceeding as this, upon appeals from the confirmation of the council, damages might be found in favor of all the parties on whose rights the viewers had passed, with the exception of a single owner, who may or may not have appealed, but who, on the doctrine announced by the court below, could be made chargeable with the entire cost of the proposed improvement. It may be said of the power asserted here, as was said by Sharswood, J., in Hammett v. Philadelphia, 15 P. F. Smith 146, in speaking of the authority claimed for the legislature to levy, or to permit a municipality to levy a local tax for general purposes, that “ such a doctrine lands us in the absurd proposition that the whole expenses of government, general and local, may be laid upon the shoulders of one man, if one could be found able to bear such a burden.” It was suggested in Gault’s Appeal, 9 Casey 94, that as “ states and cities cannot exist without taxation, the time, the mode and the measure of taxation are committed altogether and exclusively to the legislative discretion.” This rule has been carried perhaps to the very ultimate extent that is consistent with the safety of the citizen. But it has stopped, thus far, short of the point of confiscation. There is a line at which the right of taxation, which subjects the individual to his share of the public burdens, ceases, and the right of eminent domain, which subjects him to more than his share, begins to operate. It is not requisite now to attempt to define that line, or to anticipate cases in which the question will have to be met and settled whether officers of municipal corporations, under legislative authority, may so exercise the taxing power of the Commonwealth as to work the financial ruin of the owners of lands within their boundaries. Here, however, the jurisdiction assumed by the court has not been in terms conferred, and it cannot be implied from any of the provisions the statute has made. Equality or resources and liabilities in improving the highways of the city of Meadville might promote the advantage of the municipality and the convenience of its officers. Rut the attainment of such advantage and_ convenience is not enough to justify an encroachment on rights of property so wide-reaching and so sweeping as that which was made by this decree.

These complainants, alleging that they were aggrieved by the action of the viewers and the city council, appealed to the Quarter Sessions. They insisted that an error had been committed in charging their land on Market street for contribution, and that the assessment was greatly in excess of the benefits which the property derived from the improvement. .This issue it was the right of the complainants to have tried. By their appeal they had brought themselves within the jurisdiction of the court, and were finally subject to any decision that might be made on the merits of their case. The assessment charged to them could have been increased as well as diminished, and of the increase they could not complain. But they had the right to demand that the merits of their case should be heard. And it was their case which it was the duty of the court to decide. Instead of'that, the whole question was settled by an arithmetical calculation of the amount necessary to be charged against the parties assessed for contributions, who had not asked for issues, in order to meet the aggregate amount due to parties entitled to damages. This calculation made, the ascertained amount was divided amongst the contributing parties in proportion to the several sums which the viewers originally assessed. No one of th&‘ appeals out of which the present complaint has grown was investigated on the grounds for which the action of the court was asked. All the varying questions necessarily involved amongst parties so numerous and in properties so diversified and valuable, were solved on a theory of social philosophy by an arbitrary mathematical apportionment.

Not only the sums found due for damages by juries in the feigned issues, but those ascertained by the viewers and appealed from, were left undisturbed. Why, if equality of burdens was the object of the Act of 1870, were not the claimants of damages subject to a pro rata diminution of the amounts of their awards on the same principle that the assessed contributors were subject to a pro rata enlargement of the burdens imposed on them ? Error was as likely to have been committed in the one direction as 'in the other. The changes made in the amounts originally allowed, showed that the viewers could make mistakes. The juries in some instances increased, and in some instances diminished the amounts charged for contributions. And it was not competent for the court to decide that in all of these untried cases the charge had been forty per cent, too low, and at the same time to decide that all untried claims for damages had been accurately and justly ascertained. But the equality that was sought to be gained by modifying and moulding the record of the proceeding, could in no fair and legitimate way have been secured.

Each appeal should have been heard on its peculiar grounds. With the adjustment of the amount found due on the one hand, or found chargeable on the other, the functions of the appellate tribunal would have been discharged. For eventualities the city council would have been responsible. The improvement of the highways of Meadville was in their hands, and the provision of the means to effect it was a duty which the law had charged to them, and which the Court of Quarter Sessions had no authority to assume.

The part of the decree that struck off the assessment of $1950 on lot No. 81J, belonging to Mrs. A. E. McOlintock, is not reviewable here. It was within the discretionary power of the court below. If wrong was done, the remedy must be sought there.

Decree reversed, at the cost of the appellees, and procedendo awarded.


text:
    Opening of Park Avenue. Appeal of Luce Brothers.
    1. The viewers appointed by the city council of Meadville to ascertain the damages to properties injured and to assess the contributions to properties benefited in the opening of Park avenue, charged complainants for contribution the sum of $750. This report of the viewers was confirmed by council and complainants acquiesced therein. Appeals were taken by other parties to the Quarter Sessions and various proceedings there resulted in increasing the amount of damages to the properties along the street assessed by the viewers to the extent of $7600. To make the contributions equal to the damages the court below decreed that an addition of about forty per cent, to the amount assessed by the viewers should be charged to the properties originally assossod for contribution. This charge was indiscriminate, without evidence or inquiry, or the aid of any expert in any particular case. Held, that this decree was unwarranted by any provisions of the Act of Assembly or any principle of law.
    2. It was only by appeal that jurisdiction could be conferred upon the Quarter Sessions, and subject only to an appellant’s rights, the confirmation by council was final and conclusive upon all parties.
    November 21st 1876.
    Before Agnew, C. J., Sharswood, Gordon, Paxson and Woodward, JJ. Williams and Mercur, JJ., absent.
    Certiorari to the Court of Quarter Sessions of Qrawford county: Of October and November Term 1876, No. 216.
    The facts in this case are substantially the same as those contained in case of Huidekoper, ante, page 167, with the exception that the complainants here acquiesced in the confirmation by city council of the report of the viewers.

      J). 0. McGoy Son, for complainants.

      Thomas Roddy, contra.
   Mr. Justice Woodward

delivered the opinion of the court, January 2d 1877.

The viewers appointed by the city council of Meadville to ascertain the damages sustained by the owners of properties injured by the opening of Park avenue, and to assess for contributions the properties benefited, charged Luce Brothers for' contribution with the sum of $750. The report of the viewers was confirmed by the council, and in this the complainants acquiesced. Appeals were taken by other parties to the Court of Quarter Sessions. Various proceedings there resulted in an increase of the amount of damages reported by the viewers to the extent of $7600, and the contributory fund was reduced by striking off the sum of $1950, which had been charged to a property belonging to Mrs. A. E. McClintock. In the final decree the amounts assessed by the viewers as damages, where appeals had not been taken, were left unmodified. The amounts allowed for damages and assessed for contributions which had been investigated in feigned issues or by the court were taken at the results of the investigations. And the entire sum necessary to make the contributions equal to the damages was jn’oduced by charging an addition of about forty per cent, to the amount reported by the viewers against the properties originally assessed for contributions, whose owners had not demanded issues. This charge was indiscriminate, without evidence or inquiry, and without even the aid of an expert in any particular case. The assessment against these complainants was raised to $1075.

This decree was unwarranted by any legal rule. With the case of these parties, as well as with the cases of the other parties who acquiesced in the report of the viewers and the confirmation by the city council, the court had nothing to do. By the 15th section of the Act of Assembly of the 6th of April 1870, it was only by appeal that jurisdiction could be conferred. Subject only to an appellant’s rights, the confirmation by the council was declared to “be final and conclusive upon all parties.” It was “for the final disposition of said appeal” that a day was to be fixed. It was “ concerning the amount of said damages and contributions” (that is, the damages an appellant should be unwilling to receive, and the contributions an appellant should be unwilling to pay), that testimony was to be heard and witnesses examined, and Avhich the court could diminish or increase as they should see fit. And it was for the costs of the appeal exclusively that provision was made. Each particular case was to be brought up for a review of the special grounds on Avhich it stood. As to other parties in interest, a definite and final conclusion had been reached, and over them, under the statute, the court could exercise no possible control.

Even where an appeal was taken and inquiry made into the special question it involved, it has just been held in the case of PI. S. and F. W. Huidekoper that a decree affecting all the parties to the proceeding, and resting on a purely arbitrary theory of equitable adjustment, without a decision of the special questions raised, was unwarranted by any provision of the Act of Assembly, or any principle of law. The action of the court of course could not affect these parties, over whom no shadow of jurisdiction had been acquired.

Decree reversed, at the costs of the appellees.